MacLurkin v Searle

MacLurkin v Searle was a case before the Victorian Civil and Administrative Tribunal (VCAT) where the primary issue was the modification of a restrictive covenant in relation to property at 45 Main Street, Anytown. The respondent, Searle, sought to modify a covenant that stipulated that only a single private dwelling-house of brick or brick veneer with a tiled roof could be erected on the land. The applicant, MacLurkin, opposed the modification. The dispute centred on whether the proposed modification would substantially injure the persons entitled to the benefit of the covenant, as required by section 84(1)(c) of the Property Law Act 1958.

The legal issues before the Tribunal included whether the proposed modification of the restrictive covenant would result in a substantial injury to those who benefit from the covenant. The Tribunal had to consider whether the modification would materially affect the enjoyment of the land by the persons entitled to the benefit of the covenant. The Tribunal also considered whether the proposed modification was in line with the intent of the original covenant and whether the modification would preserve the essence of the original covenant.

In reaching its decision, the Tribunal examined the evidence presented by both parties and the relevant legal principles. The Tribunal found that the modification did not substantially injure the persons entitled to the benefit of the covenant. It was satisfied that the proposed modification would not materially affect the enjoyment of the land by the neighbouring properties, and that the essence of the original covenant would be preserved. The Tribunal also considered the changes in the neighbourhood over time and concluded that the modification was in line with the intent of the original covenant, given the evolution of the area. Accordingly, the Tribunal granted the application for modification under section 84(1)(c) of the Property Law Act 1958.

The final order of the Tribunal was that the restrictive covenant be modified to permit the construction of the proposed building on the land at 45 Main Street, Anytown, subject to the terms and conditions specified in the decision. The Tribunal emphasised that the modification was conditional upon the proposed building adhering to the specified design and materials, ensuring that the essence of the original covenant was maintained.