Re DVC Management & Consulting Pty Ltd - [2018] VSC 814

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 00442

IN THE MATTER of an application pursuant to section 84 of the Property Law Act 1958 for the modification of a restrictive covenant

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IN THE MATTER of an application for the modification of the restriction arising under the covenant in transfer of land registered no. 2388522 dated 28 December 1950 affecting the land at 18 Ryland Avenue Croydon being lot 72 on plan of subdivision no. 11393 and being the land in folio of the Register volume 7696 folio 115 by:

DVC MANAGEMENT & CONSULTING PTY LTD

Plaintiff

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November, 12 December 2018
DATE OF JUDGMENT:	21 December 2018
CASE MAY BE CITED AS:	Re DVC Management & Consulting Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 814

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REAL PROPERTY ― Restrictive covenant ― Prohibition against erecting ‘any buildings save and except one dwelling house’ ― Application to modify ― Proposal to construct four double storey units ― Numerous instances of multi-unit developments in outer suburban neighbourhood ― No objection by persons entitled to the benefit of the covenant ― Court’s past allowance of similar application by owner of nearby land ― Court’s more recent refusal of similar application by owners of nearby land ― Reconciling decisions ― Analysis of contemporary conditions and location of benefitting land ― Re RJ and RG Baker Pty Ltd [2017] VSC 669 distinguished ― Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons Lawyers Pty Ltd
No appearance by or on behalf of any objectors

HIS HONOUR:

The plaintiff is the registered proprietor of land at 18 Ryland Avenue in Croydon. It is a rectangular block of land, having an area of 1508 square metres. There is built on it a single storey weatherboard home. This land, and the adjoining land at 20 Ryland Avenue, are each burdened by a single dwelling restrictive covenant that originates in a transfer of the land made on 28 September 1950. The covenant binds successors in title, and states that the transferee −

… shall not at any time hereafter excavate carry away or remove or permit to be excavated carried away or removed from the land … any earth soil clay stone gravel or sand except for the purpose for excavating for the foundations of any building to be erected thereon nor erect or cause to be erected thereon any buildings save and except one dwelling house on each of the said lots with outbuildings and each of such dwelling houses shall be of a value or cost of not less than One thousand pounds exclusive of cost out buildings …

The plaintiff proposes to demolish the existing dwelling and, subject to obtaining a planning permit from the responsible authority, to then construct four dwellings on the land according to a professionally prepared concept plan that is before the Court. That…

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 Re DVC Management & Consulting Pty Ltd

Details

AGLC: Re DVC Management and Consulting Pty Ltd [2018] VSC 814
Case: [2018] VSC 814
Decision Date: 21 December 2018

CaseChat Overview and Summary

Re DVC Management & Consulting Pty Ltd involved an application to modify a restrictive covenant on a parcel of land. The covenant originally prohibited the erection of any buildings other than one dwelling house. The applicants sought to construct four double storey units, which would contravene the existing covenant. The dispute came before the court to determine whether the modification should be approved. The key issue was whether the current conditions justified modifying the covenant, especially given the numerous instances of multi-unit developments in the outer suburban neighbourhood and the lack of objection from those entitled to the benefit of the covenant. The court had to reconcile its past decisions, which had allowed similar modifications, with more recent refusals, to assess whether the circumstances warranted a different outcome.

The court examined the contemporary conditions of the area and the location of the benefitting land. It considered the prevalence of multi-unit developments and the lack of opposition from those who could enforce the covenant. The court distinguished its earlier decision in Re RJ and RG Baker Pty Ltd [2017] VSC 669, where a similar application was refused, by highlighting the differences in the specific circumstances of the two cases. Ultimately, the court found that the contemporary conditions and the lack of objection from those entitled to the benefit of the covenant justified modifying the restrictive covenant. The court granted the application, allowing the construction of the four double storey units.

The court's decision was grounded in the specific circumstances of the case, including the current state of the neighbourhood and the absence of any objections. The analysis underscored the importance of assessing each application on its own merits, taking into account the surrounding conditions and the interests of those entitled to the benefit of the covenant. This approach ensured that the court's decision was both fair and responsive to the evolving context in which the covenant was imposed.

Orders