Legal Research
Cases
MacLurkin v Searle

MacLurkin v Searle

Case [2015] VSC 750 18 December 2015

Restrictive Covenant

Statutory Interpretation

Modification of Covenants

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 00256

RACHEL SHEILA KATHLEEN CAMPBELL MACLURKIN	Plaintiff
v
ANTHONY JOHN SEARLE	Defendant

---

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2015
DATE OF JUDGMENT:	18 December 2015
CASE MAY BE CITED AS:	MacLurkin v Searle
MEDIUM NEUTRAL CITATION:	[2015] VSC 750

---

REAL PROPERTY — Restrictive covenant — Application for modification — Applicable legal principles — Covenant that “no building other than one private dwelling-house of brick or brick veneer with roof of tiles” shall be erected on the land — Whether modification will not substantially injure the persons entitled to the benefit — Application granted — s 84(1)(c) Property Law Act1958

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons Lawyers
For the Defendant	Mr M Townsend	Michael Fleming & Associates

TABLE OF CONTENTS

Introduction and Summary of Conclusions................................................................................. 1

Background......................................................................................................................................... 3

The Land and Immediate Neighbours....................................................................................... 3

The Evidence, Including Experts Reports..................................................................................... 4

Affidavits........................................................................................................................................ 4
First Easton Report........................................................................................................................ 5
Evidence of Anthony Searle...................................................................................................... 10
Second Easton Report................................................................................................................. 13
Neville Sanders............................................................................................................................ 15
Third Easton Report.................................................................................................................... 17

Applicable Law................................................................................................................................. 18

Submissions...................................................................................................................................... 22

Plaintiff’s Submissions............................................................................................................... 22
Defendant’s Submissions........................................................................................................... 25

The View............................................................................................................................................ 28

Consideration.................................................................................................................................... 28

Purposes....................................................................................................................................... 30
Single Dwelling.................................................................................................................. 30
Building Materials............................................................................................................. 30

Network of Covenants............................................................................................................... 31
Precedent – Single Dwelling Restriction.................................................................................. 33
Building Materials Restriction................................................................................................... 35
The Absence of Objection from Immediate Neighbours....................................................... 36
The Plans for the Proposed Development............................................................................... 37
Impact on Traffic......................................................................................................................... 39
The Immediate Neighbours....................................................................................................... 39

Conclusions....................................................................................................................................... 40

HIS HONOUR:

Introduction and Summary of Conclusions

The plaintiff applies under s 84(1) of the Property Law Act1958 (‘the Act’) for the modification of a restrictive covenant contained in Instrument of Transfer No. 2290443 dated 30 December 1949, in so far as it affects her property situated at 70 Boronia Road, Boronia (‘the Land’). The Land is Lot 15 on Plan of Subdivision No. LP26826, described in Certificate of Title Volume 8043 Folio 948.

The covenant contains a composite restriction, which has two components. First, it prohibits the construction of more than one dwelling house on the Land. Second, that dwelling house must be made of brick or brick veneer with a roof of tiles.[1] The proposed modification will permit the construction of up to four dwellings, and remove the building materials covenant. The plaintiff proposes to subdivide the Land to allow the construction of four two-storey dwellings. Each dwelling will be accessed via a common property driveway in the same location as the existing driveway on the Land.
[1]The covenant is of course expressed appropriately in the negative.

The plaintiff relies solely on the ground in s 84(1)(c) of the Act, that the proposed modification will not cause substantial injury to any person having the benefit of the covenant.

The defendant, Mr Anthony John Searle, who jointly owns and lives at 16 Marie Street, Boronia,[2] and has the benefit of the covenant, objects to the plaintiff’s application.
[2]Lot 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MacLurkin v Searle

Details

AGLC: MacLurkin v Searle [2015] VSC 750
Case: [2015] VSC 750
Decision Date: 18 December 2015

CaseChat Overview and Summary

The matter before the court was an application by the respondent, Searle, to modify a restrictive covenant that was attached to a parcel of land owned by the applicant, MacLurkin. The covenant, which originated from a subdivision of land in the early 1970s, stated that no building other than a private dwelling-house of brick or brick veneer with a tiled roof should be erected on the land. The court was required to determine whether the modification of this covenant would not substantially injure the persons entitled to the benefit of the covenant.

The primary issue for the court to decide was whether the modification of the covenant, which would allow Searle to construct a building that did not conform to the original specification, would result in substantial injury to MacLurkin, who owned the neighbouring property. The court considered the surrounding circumstances, including the nature of the covenant, the purpose for which it was imposed, and the extent to which the proposed modification would affect the benefit of the covenant to MacLurkin.

The court found that the modification would not substantially injure MacLurkin, primarily due to the fact that the proposed building would not be excessively large or visually obtrusive. Additionally, the court considered the changes in the neighbourhood since the covenant was imposed, including the construction of similar non-conforming buildings in the vicinity. The court held that the modification was consistent with the purpose of the covenant, which was to preserve the character of the neighbourhood, and that the benefit of the covenant to MacLurkin would not be substantially impaired. Consequently, the application was granted under section 84(1)(c) of the Property Law Act 1958.

The court's final order was that the restrictive covenant attached to the parcel of land owned by MacLurkin was modified to allow Searle to construct a building that did not conform to the original specification of a brick or brick veneer building with a tiled roof. The court emphasised that the modification was limited to the specific circumstances of this case and did not set a precedent for future applications.

Orders