Re Forrester

Case •

[2023] VSC 284

•

2 June 2023
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 04432

IN THE MATTER of an application under s 84(1)(c) of the Property Law Act 1958 (Vic)

- and –

IN THE MATTER of an application concerning the restrictive covenant contained in Instrument of Transfer N462492B registered in the Register Book at the Office of Titles burdening the land known as 23-24 Lombard Court, Narre Warren North, Victoria, more particularly described as Lot 15 on Plan of Subdivision 209526M, being the land in Certificate of Title Volume 9789 Folio 933, by

CATHRYN SARI FORRESTER Plaintiff

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JUDGE:

Matthews AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

2 March 2023

DATE OF JUDGMENT:

2 June 2023

CASE MAY BE CITED AS:

Re Forrester

MEDIUM NEUTRAL CITATION:

[2023] VSC 284

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REAL PROPERTY – Restrictive covenants – Application for modification of covenant – Application to modify covenant to permit an additional private dwelling to be constructed on the subject land - Property Law Act 1958 (Vic), s 84(1)(c) – Vrakas v Registrar of Titles [2008] VSC 281 – Randell v Uhl [2019] VSC 668 – Application to modify covenant granted.

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APPEARANCES:

 Counsel Solicitors
For the Plaintiff Mr M Townsend MPW Lawyers
Livia Chambers, Catherine King, Daniel Busatta, in person, beneficiaries of the subject covenant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

The Subject Land and its history....................................................................................... 2

The Covenant....................................................................................................................... 3

The Plaintiff’s proposal and application.......................................................................... 4

Brief procedural history...................................................................................................... 6

Evidence............................................................................................................................................... 7

The Easton Report......................................................................................................................... 7

Beneficiaries of the Covenant............................................................................................ 8

Purpose and intent of the Covenant................................................................................. 8

Mr Easton’s approach to the assessment of substantial injury..................................... 9

The Proposal............................................................................................................ 9

An alternative complying development............................................................. 9

Planning and building controls.......................................................................... 10

The Neighbourhood............................................................................................. 10

Summary of Mr Easton’s opinion................................................................................... 13

Mr Easton’s conclusion..................................................................................................... 15

Ms Forrester’s evidence.............................................................................................................. 15

Mr Watson’s evidence................................................................................................................ 17

Applicable principles...................................................................................................................... 18

The Objectors’ submissions........................................................................................................... 20

Not in character with the neighbourhood and precedential impact................................... 21

Traffic impacts............................................................................................................................. 21

Neighbours who are not beneficiaries..................................................................................... 21

Plaintiff’s submissions................................................................................................................... 21

Consideration.................................................................................................................................... 24

Modification to allow two dwellings....................................................................................... 25

Neighbours who are not beneficiaries............................................................................ 25

Not in character with the neighbourhood..................................................................... 26

Amenities impact and traffic impact.............................................................................. 27

Precedential Effect............................................................................................................. 29

Modification in respect of garage/carport.............................................................................. 30

Modification in respect of building materials......................................................................... 31

Conclusion......................................................................................................................................... 32

HER HONOUR:

Introduction

  1. Cathryn Sari Forrester (‘Plaintiff’) is the registered proprietor of the land known as 23-24 Lombard Court, Narre Warren North, Victoria, more particularly described as Lot 15 on Plan of Subdivision 209526M, being the land in Certificate of Title Volume 9789 Folio 933 (‘Subject Land’). 

  1. By originating motion filed on 2 November 2022, the Plaintiff seeks orders pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) (‘PLA’) for the modification of a covenant burdening the Subject Land.

  1. In support of her application, the Plaintiff relies on the following materials:

(a)   affidavit of Myles Watson, sworn 29 November 2022 (‘First Watson Affidavit’).  Mr Watson is the solicitor for the Plaintiff;

(b)  affidavit of Cathryn Sari Forrester, sworn 18 November 2022 (‘First Forrester Affidavit’);

(c)   the expert report of Robert Easton, dated August 2022 (‘Easton Report’);

(d)  affidavit of Myles Watson, sworn 3 February 2022 (‘Compliance Affidavit’);

(e)   affidavit of Cathryn Sari Forrester, sworn 7 February 2023 (‘Second Forrester Affidavit’);

(f)    affidavit of Myles Watson, sworn 27 February 2023 (‘Second Watson Affidavit’); and

(g)  written submissions of the Plaintiff’s counsel dated 28 February 2023 (‘Written Submissions’).

  1. For the reasons that follow, the application to modify the covenant to permit a second dwelling is granted.  The modification to permit a garage and a carport (as opposed to one or the other) is also granted.  In respect of building materials, the application to modify the covenant to allow dwelling houses and outbuildings to be constructed with concrete or concrete blocks with a rendered finish is granted.  In addition, the further application to modify the covenant to allow outbuildings to be constructed of metal is also granted. 

Background

The Subject Land and its history

  1. The Subject Land is, as set out above, known as 23-24 Lombard Court, Narre Warren North, Victoria, more particularly described as Lot 15 on Plan of Subdivision 209526M, being the land in Certificate of Title Volume 9789 Folio 933.

  1. The Subject Land has an area of approximately 4,000m2 and is presently developed with a single storey brick dwelling house and a garage, leaving a large part of the lot undeveloped.  It is depicted in the following aerial diagram, the Subject Land being outlined in red:[1]

[1]Easton Report dated August 2022, [3.3] (‘Easton Report’), found in Exhibit ‘RWE-1’ to the affidavit of Robert Walter Easton, sworn 28 November 2022.

  1. The Subject Land is accessible via a twin driveway that loops in front of the dwelling and provides access to the rear of the Subject Land on the north side of the dwelling.

  1. The Subject Land was created following the subdivision of the land contained in Certificate of Title Volume 9782 Folio 545 (‘Parent Title’) pursuant to Plan of Subdivision 209526M (‘Plan’) on 11 January 1988.

  1. The Subject Land was sold and transferred to the Plaintiff on 13 May 1988 pursuant to Instrument of Transfer N462492B.

The Covenant

  1. The covenant is contained in Instrument of Transfer N462492B, which was signed on 13 May 1988 and registered on 18 May 1988 (‘Covenant’).

  1. The Covenant is expressed in the following terms:

(a)That at no time hereafter will there be erected upon the said lot or any part thereof any buildings save and except one private seperate [sic] dwelling house of not less than one hundred and eighty five (185) square metres in area together with usual outbuildings including therein one multi or single garage or carport (which may be erected beneath such dwelling house), laundry, tool shed and other outbuildings suitable and appropriate to the dwelling house upon the said lot and reasonable occupation and enjoyment thereof.

(b)That such dwelling house and outbuildings shall not be constructed of other than brick or brick veneer and shall not be roofed with fibrous cement and asbestos cement sheet or panelling and shall not be houses removed from another site and erected on the lot hereby transferred.

  1. Parsed, the Covenant restricts:

(a)   the use of the land to one private separate dwelling house with a minimum floor area of 185m2, together with any suitable outbuildings;

(b)  the construction of one garage or carport, but not both;

(c)   the materials that may be used in the construction of the dwelling house and outbuildings to brick or brick veneer;

(d)  the roofing materials to any materials other than fibrous cement or asbestos cement sheet or panelling; and

(e)   the use of a house removed from another site and erected on the Subject Land.

  1. The burden of the Covenant is expressed to be for ‘the lot hereby transferred’, which is identified as Certificate of Title Volume 9789 Folio 993, being the Subject Land.

  1. The land with the benefit of the Covenant is set out in the Easton Report.  There are 10 beneficiaries of the Covenant, being Lots 18, 19, 20, 22, 23, 24, 25, 26, 28 and 29 on the Plan (‘Beneficiaries’).  This is visually represented on the following map prepared by Mr Easton, with the Beneficiaries highlighted blue and the Subject Land highlighted pink:[2]

[2]Easton Report, [5.7].

The Plaintiff’s proposal and application

  1. The Plaintiff seeks the following relief:

(a) an order pursuant to s 84(1)(c) of the PLA that the Covenant burdening the Subject Land be modified, by removing the words struck through and adding the words and letters double underlined, as follows:

AND the said CATHRYN SARI FORRESTER with the intent that the benefit of this covenant shall be attached to and run at law and in equity with every Lot Plan of Subdivision No. 209526 M as enclosed save and except the Lot hereby transferred and that the burden of this covenant shall be annexed to and run at law and in equity with the lot hereby transferred and in every part thereof covenant with said COUNTY PARK DEVELOPMENT [sic] PTY. LTD. … HEREBY AND AS SEPARATE COVENANTS for himself and his successors in title … with the said COUNTY PARK DEVELOPMENTS PTY. LTD. its transferees and other registered proprietors for the time being of every lot in the said Plan of Subdivision No. 209526M as enclosed save and except the lot hereby transferred:-

(a)That at no time hereafter will there be erected upon the said lot or any part thereof any buildings save and except one two private separate dwelling houses each one of not less than one hundred and eighty five (185) square metres in area together with usual outbuildings permitted including therein one multi or single garage or and carport (which may be erected beneath such dwelling house) laundry, tool shed and other outbuildings suitable and appropriate to the dwelling houses upon the said lot and reasonable occupation and enjoyment thereof.

(b)That such dwelling houses and outbuildings shall not be constructed of other than brick or brick veneer, concrete or concrete blocks with a rendered finish and shall not be roofed with fibrous cement and asbestos cement sheet or panelling and shall not be houses removed from another site and erected on the lot hereby transferred. …

  1. The Plaintiff seeks to subdivide the Subject Land into two lots with:

(a)   the eastern lot,[3] being 2,000m2 in size, containing the existing dwelling; and

(b)  the western lot,[4] being 2,000m2 in size, accessible via a battle-axed shaped driveway to the south side of the Subject Land. The western lot would eventually be developed with a new single dwelling.

[3]Shown as Lot 1 in the concept plan at [17] of these reasons.

[4]Shown as Lot 2 in the concept plan at [17] of these reasons.

  1. An outline of the Proposal is shown on the following concept plan:[5]

[5]Easton Report, [7.1].

Brief procedural history

  1. At the first return of the application on 15 December 2022, I made orders which, inter alia, required the Plaintiff to notify the registered proprietors of the land that take the benefit of the Covenant of this application.[6]

    [6]The lands that take the benefit of the Covenant is listed in Schedule A of the orders made on 15 December 2022. 

  1. The Plaintiff provided that notice by mail sent on 16 December 2022.[7]

    [7]Compliance Affidavit, [5].

  1. Mr Watson deposed that he received one telephone call from the husband of a beneficiary, who made general enquiries about the application.[8]

    [8]Compliance Affidavit, [6].

  1. As of the date of the Compliance Affidavit, Mr Watson deposed that he received three written objections from beneficiaries of the Covenant by email:[9]

    [9]Compliance Affidavit, [6].

(a)   Ms Livia Chambers of 7 Lombard Court (Lot 23 on the Plan);

(b)  Ms Catherine King of 9 Lombard Court (Lot 22 on the Plan); and

(c)   Mr Daniel Busatta of 13 Lombard Court (Lot 20 on the Plan).[10]

(together, the ‘Objectors’).

[10]Exhibit MPW-2 to the Compliance Affidavit.

  1. At the second return of the application on 9 February 2023, I made a direction pursuant to r 52.09(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that the orders I had previously made in respect of notice had been complied with. I also ordered that the Objectors notify the Plaintiff’s solicitors by 16 February 2023 if they wish to defend the application, that the plaintiff file and serve an amended originating motion by 23 February 2023, and that the defendants, if any, file and serve a Notice of Appearance by 1 March 2023.

  1. Mr Busatta and Ms Chambers (via her husband Mr Chambers, with leave) appeared at the hearing on 9 February 2023 and Ms King had notified the Court that she was unable to attend. 

  1. On that day, Mr Busatta and Ms Chambers both expressed their objection to the application and explained what their objections were.

  1. As Ms King was unable to attend and wanting to give her an opportunity to be heard, and to give the Objectors a further opportunity to consider whether they wished to be joined as defendants, I ordered that the proceeding be adjourned to 2 March 2023 and that the Objectors may still attend that hearing to make submissions even if they do not wish to become defendants.

  1. As at 27 February 2023, Mr Watson deposed that Mr Busatta and Ms King informed him that they did not intend to be joined to the proceeding as defendants and Ms Chambers had not provided any notice of an intention to defend.[11]

    [11]Second Watson Affidavit, [3]-[4].

  1. On 2 March 2023, Ms King appeared at the hearing to oppose the application and she made submissions as to her reasons for objecting.

Evidence

The Easton Report

  1. Mr Easton is a town planner. 

  1. He states that he has been instructed to prepare a report regarding the Plaintiff’s application to modify the Covenant affecting the Subject Land.

Beneficiaries of the Covenant

  1. The land benefiting from the Covenant is summarised above.  Mr Easton goes into more detail about this. 

  1. Mr Easton states that the Plan, approved on 11 January 1988, contained 18 residential lots with areas between 4000m2 and 7789m2.  He says that only the lots on the Plan, other than the Subject Land, take the benefit of the Covenant and the roads are excluded from the benefit.[12]

    [12]Easton Report, [5.2]-[5.3].

  1. Mr Easton says that while the transfer of the Subject Land is dated 11 January 1988, all lots on the Plan of subdivision had titles issued on the same date.[13]

    [13]Easton Report, [5.4].

  1. He says although the Covenant purports to give every lot on the Plan the benefit, only lots that were (a) still owned by the vendor on the day the Covenant was signed by both the vendor and the purchaser and (b) sold after the Subject Land was sold on 13 May 1988 take the benefit of the Covenant.[14]  The Beneficiaries are described above at paragraph 14 of these reasons.

    [14]Easton Report, [5.5]-[5.6].  The table of transfers provided in [5.6] is in chronological error and thus I have taken that it was a typographical error which stated that the Covenant was signed on 13 May 1998 instead of 13 May 1988.

Purpose and intent of the Covenant

  1. Mr Easton describes the two parts of the Covenant as follows:[15]

(a)   Part (a) of the Covenant restricts the land to have a minimum lot size of 4000m2 and the use of the land to one private dwelling house which has to be at least 185m2.  At the time the Covenant was entered into, this minimum lot size reflected the prevailing planning provisions at the time.  There is no restriction on maximum size or on the height or number of storeys of the dwelling house.

(b)  Part (b) of the Covenant relates to building materials of the dwelling and outhouses, which requires external walls to be brick or brick veneer and to prevent the use of fibro cement or asbestos cement roofing materials.  The restriction preventing dwellings removed from another site would mainly prevent weatherboard and similar dwellings.

[15]Easton Report, [4.4]-[4.5].

Mr Easton’s approach to the assessment of substantial injury

  1. In coming to his opinion on the impacts of any modification to the Covenant, Mr Easton had regard to the Plaintiff’s proposal, the role of contemporary planning and building controls in the development approval process, the present and emerging character of the area, and whether the proposal will create a greater impact on the Beneficiaries than an alternate complying development.

The Proposal

  1. Mr Easton says that with the Plaintiff’s proposal, as described above at paragraph 16, the trucks and machinery business on the Subject Land would cease operating on the land.  Further, there are no Beneficiaries’ properties abutting or opposite the Subject Land.[16]

An alternative complying development

[16]Easton Report, [7.3].

  1. Mr Easton says he considered the nature of any alternate complying use or development which could otherwise be built on the Subject Land.  In particular, he considered a large double story replacement dwelling which does not require a planning permit and as such do not involve third party objection rights.  Mr Easton opines that a large dwelling could have a potentially greater impact on any nearby Beneficiaries’ properties than the Plaintiff’s proposal.  He further notes that there were several examples of new double and triple storey dwellings within the neighbourhood and the planning scheme in this location does not limit the height or site coverage.[17]

    [17]Easton Report, [8.2].

  1. Mr Easton says that another alternative use would be for onsite garaging of multiple cars, trucks, and heavy vehicles not suited for standard suburban areas.[18]

Planning and building controls

[18]Easton Report, [8.3].

  1. Mr Easton says that while town planning considerations do not themselves provide justification for modification or discharge of a covenant under the PLA, they may help with assessing how the land may be developed and by providing a range of standards to quantify the degree of impact on the neighbourhood.[19]  He states as the Subject Land’s zone[20] is for low-density residential development on lots which can treat and retain all wastewater without reticulated sewerage, the minimum lot size required is 4000m2.[21] 

    [19]Easton Report, [9.1].

    [20]This zone covers all of the parent subdivision in which the Subject Land is located and many other areas within the City of Casey originally not serviced by reticulated sewerage: Easton Report [9.2].

    [21]Easton Report, [9.2] – [9.4].

  1. Mr Easton says that in July 2013, the zone was ‘amended to provide an alternative option of 2000 s[q] metres size lots in areas where reticulated sewerage was available’ and this option was available to the Subject Land when the City of Casey amended the planning scheme in November 2019.[22]  Hence the relevant planning controls for this zone now provide for minimum lot sizes of 4000m2 for un-sewered lots and 2000m2 for sewered lots.

    [22]Easton report, [9.5].

  1. Mr Easton says that he has taken into consideration that the controls operating on the Subject Land do not restrict site coverage or maximum height of any dwelling, unlike other residential zones.[23]

The Neighbourhood

[23]Easton Report, [9.7].

  1. Mr Easton assumed that the neighbourhood contains all of the land originally contained within the parent subdivision and the subdivision immediately to its north.[24]  He says that he has inspected the neighbourhood and noted the following properties, all of which do not have the benefit of the Covenant and are burdened by a covenant expressed in similar terms to the Covenant:[25]

    [24]Easton Report, [11.1].

    [25]Easton Report, [11.2].

(a)   Lot 14 LP209526M (25 Lombard Court), located adjacent to the northern boundary of the Subject Land, contains a single storey brick dwelling and has an area of 4,146m2;

(b)  Lot 16 LP209526M (21 Lombard Court), located adjacent to the southern boundary of the Subject Land, contains a single storey brick dwelling and has an area of 4,000m2; 

(c)   Lot 21 LP209526M (11 Lombard Court), located at the southern end of Lombard Court, contains a single storey brick dwelling and has an area of 7,789m2; 

(d)  Lot 27 LP209526M (49 Fontaine Terrace), located directly opposite the Subject Land on the south east corner of Lombard Court and Fontaine Terrace, contains a rendered single storey dwelling and has an area of 4,079m2.  A sign on its frontage also indicates it is used for a home-based beauty and make up business;

(e)   Lot 31 LP209526M (46 Fontaine Terrace), located opposite the corner of Lombard Court and Fontaine Terrace, contains a rendered single storey dwelling and has an area of 4,074m2; 

(f)    Lot 13 LP209525P (45 Fontaine Terrace), abutting part of the northern boundary of the Plan, contains a single storey brick dwelling and has an area of 4,007 m2; 

(g)  Lot 32 LP209525P (42 Fontaine Terrace), abutting part of the northern boundary of the Plan, contains a large single storey brick dwelling and has an area of 4,016m2;

(h)  Lots 48 and 49 LP212666B (74 and 76 Fontaine Terrace) are battle axe shaped lots at the rear of No. 70 and 78 Fontaine Terrace, having areas of 4,656 m2 and 4,662m2 respectively.  The dwellings are not readily visible from the Fontaine Terrace frontage.  Lot 49 is burdened by another covenant relating to fencing;

(i)     Lot 51 LP212666B (66 Fontaine Terrace) contains a large double storey dwelling and has an area of 4,172m2;

(j)     Lots 52 and 53 LP212666B (62 and 64 Fontaine Terrace) are battle axe shaped lots at the rear of No. 58 and 64 Fontaine Terrace, having areas of 4,730m2 and 4,853m2 respectively.  The dwellings are not readily visible from the Fontaine Terrace frontage;

(k)  Lot 54 LP212667Y (58 Fontaine Terrace) contains a large double storey rendered dwelling extending across the width of the lot and has an area of 4,350m2;

(l)     Lot 55 LP212667Y (54 Fontaine Terrace), located directly opposite the junction of Fontaine Terrace and Maclaine Court, contains a large double storey brick dwelling on the west side of the property and has an area of 4,750m2;

(m)             Lot 74 LP212666B (93-95 Fontaine Terrace), located on the south east corner of Monroe Court and Fontaine Terrace, contains a single dwelling and has an area of 4001m2.  An application to the City of Casey for a covenant discharge and 2 lot subdivision was refused due to objections; 

(n)  Lot 76 LP212666B (15 Monroe Court) contains a single storey dwelling and has an area of 4046m2.  Mr Easton confirms that multiple cars are generally evident onsite both during his inspection and using Nearmap aerials over several years;

(o)   Lot 83 LP212666B (1 Monroe Court) has an area of 4,036m2 and Mr Easton observed that there was a bus parked beside the dwelling during his inspection.  He notes that the covenant that burdens this land does not restrict the number or type of vehicle on the property; and

(p)  Lot 85 LP212666B (101 Fontaine Terrace) contains a large partly double storey and partly triple storey dwelling, and has an area of 4,037m2.

  1. Mr Easton also describes two lots, being Lot 8 PS320500U (26 Carmen Crescent) and Lot 5 PS320500U (17 Carmen Crescent)[26] where applications for 2 lot subdivisions were made to the City of Casey.  I have not set these out here as there appears to be significant typographical and other errors in the relevant paragraphs (being [11.2(8) and (9)] and I am unable to take this into account as a consequence of it being impossible to follow.

    [26]Wrongly described in the Easton Report as Lot 8 PS320500U (26 Carmen Crescent).

  1. Mr Easton notes the following properties that do not have the benefit of the Covenant and have had the covenants burdening them varied:[27]

    [27]Easton Report, [11.2].

(a)   Lot 79 LP221666 (9-10 Monroe Court), located at the eastern end of Monroe Court, contains a single storey brick dwelling with a tiled roof and has an area of 4,021m2. The covenant was modified by this Court in proceeding number S ECI 2021 02478 on 30 September 2021 to allow 2 single storey dwellings;

(b)  Lot 57 LP212667Y (19-20 Maclaine Court), located 170 metres south east of the Subject Land, contains a single dwelling and has an area of 4,318m2.  The covenant was modified by this Court in proceeding number S ECl 2021 04108 on 21 April 2022 to allow not more than 2 separate private dwelling houses; and

(c)   Lot 38 LP206751V (21-22 Carolyn Close), located 330 metres north west of the Subject Land, contains a single dwelling and has an area of 4,000m2.  The covenant was modified by the City of Casey’s planning permit PA22-0204 to allow two separate private dwelling houses.

Summary of Mr Easton’s opinion

  1. Mr Easton says that the minimum lot size requirement of 4,000m2 was based on prevailing planning provisions in 1988, which was when the area was first subdivided, and which could not be varied by Council or VCAT.  He says that the main purpose of this size requirement in the planning provisions was for providing low-density residential development on lots which can treat and retain all wastewater without reticulated sewerage.[28]

    [28]Easton Report, [12.1].

  1. In light of the above, Mr Easton says that even without the Covenant limiting the number of dwellings to one per lot, additional dwellings were not possible.[29]

    [29]Easton Report, [12.2].

  1. Mr Easton says that the planning scheme was amended in November 2019 to allow lots of 2,000m2 subject to permit and where the land was connected to reticulated sewerage.  He notes that unlike other areas within the City of Casey with a similar zoning, the panel report stated that the Subject Land’s area had no identified remnant vegetation, and had limited identified biodiversity value.  Mr Easton says this was clear from his inspection as the area was not heavily landscaped with native vegetation.[30]

    [30]Easton Report, [12.3] – [12.5].

  1. Mr Easton says that the wider neighbourhood has been subject to several applications to allow the subdivision of lots into 2000m2 sized lots as discussed above in paragraph 44.[31]

    [31]Easton Report, [12.6].

  1. In summarising the character of the neighbourhood, Mr Easton says that:[32]

    [32]Easton Report, [12.7] – [12.9].

(a)   the style and size of the dwellings varied from relatively modest single storey dwellings to large imposing 2 and 3 storey dwellings which are at least 185m2 as required by the covenants;

(b)  properties have one to two driveways and several properties have multiple cars and other vehicles onsite; and

(c)   there are battle-axe lots where the dwellings are not visible from the street frontage and landscaped driveway entrances.[33]

[33]See paragraphs 42(h) and 42(j) above of these reasons.

  1. Mr Easton opines that under the Plaintiff’s proposal, the second dwelling is unlikely to be visible from the street frontage and thus there will be no significant change at the street frontage.[34] 

    [34]Easton Report, [12.10], [12.13].

  1. Mr Easton opines that the proposal is unlikely to create any significant increases in traffic movements in the area considering the closure of the business on the Subject Land.[35]

    [35]Easton Report, [12.11] and [12.13].

  1. Moreover, Mr Easton opines that there will not necessarily be an increase in density of population in the area since occupancy rate per dwelling has reduced markedly. He says this is one of the main reasons that there is now greater demand for additional dwellings to maintain existing population levels within this area.  He opines that therefore there will be no reduction in the “quality of life” for Beneficiaries of the Covenant as the neighbourhood retains a low density environment and noise level from activities will not increase.[36]

    [36]Easton Report, [12.13]

  1. Mr Easton opines that the restriction on building materials present in the Covenant was to encourage the type of dwelling being constructed in 1988 and that where alternate materials had been used in the neighbourhood, they did not detract from the overall character of the neighbourhood.  He says that using rendered materials is aligned with current building practices and the modification to the Covenant in respect of building materials will not negatively impact on the Beneficiaries.[37]

    [37]Easton Report, [12.12] and [12.13].

Mr Easton’s conclusion

  1. Mr Easton concludes that the proposed modification of the Covenant in respect of an additional dwelling and the use of rendered finishes will not substantially injure the persons entitled to the benefit of it.

Ms Forrester’s evidence

  1. In her first affidavit, the Plaintiff deposes that:

(a)   if the application is approved, her intention is to retain the existing dwelling and subdivide the Subject Land into two similarly sized lots, so that a second dwelling can be constructed on the part that is presently largely undeveloped.  Her intention is that the new dwelling will be of smaller scale and that she will live there with her husband;[38]

(b)  she previously made an application to the local Council to vary the Covenant to allow for a second dwelling on the Subject Land, which was refused due to objections being made;[39] and

(c)   on becoming more familiar, as a consequence of preparing for this application, with the restrictions contained in the Covenant, she realised that ‘the garage and carport that were constructed as part of [her] home, are not strictly in accordance with the covenant, which appears to permit one garage or carport.’  She says that it was never her intention to breach the Covenant.[40]

[38]First Forrester Affidavit, [3].

[39]First Forrester Affidavit, [5].

[40]First Forrester Affidavit, [6].

  1. In her second affidavit, the Plaintiff deposes that:

(a)   if her proposal is approved, it is her intention to retain the existing dwelling for her eldest son and construct a second dwelling, which would be of a smaller scale, and may live there with her husband;[41]

(b)  since purchasing the Subject Land 30 years ago, her needs have changed and she has difficulty in keeping up with the maintenance of the property.[42]  She deposes that it is not economically feasible for her to sell her current property to purchase another property in the area; and 

(c)   the second dwelling would not change the streetscape and it would barely be visible as it would be built behind the current dwelling on the Subject Land.[43]  She deposes that there are currently two driveways on the Subject Land, one of which would be redirected to the second dwelling.[44]

[41]Second Forrester Affidavit, [2], [6].

[42]Second Forrester Affidavit, [4], [5].

[43]Second Forrester Affidavit, [10], [11].

[44]Second Forrester Affidavit, [11].

Mr Watson’s evidence

  1. The First Watson Affidavit contains the title analysis that is confirmed in the Easton Report and exhibits the primary documents.  There is no need for me to set that out here, as it has been summarised above.

  1. Mr Watson’s evidence regarding notice to the Beneficiaries and communications with the Objectors has been described above.

  1. In the Second Watson Affidavit, amongst other matters Mr Watson deals with the building materials aspect of the Covenant.  He deposes that:

(a)   the relief sought in the Originating Motion does not seek to make any modification to materials by which an outbuilding may be constructed on the Subject Land under the Covenant;[45]

[45]Second Watson Affidavit, [6].  I will address the accuracy of this later in these reasons.

(b)  since the hearing on 9 February 2023, the Plaintiff has further drawn his attention to the fact that an outbuilding erected on the Subject Land at least 25 years ago (‘Shed’) may not comply with the terms of the Covenant.[46]  Mr Watson exhibits a photograph of the Shed and to my eye it is constructed of metal;[47]

[46]Second Watson Affidavit, [7].

[47]Exhibit MPW-3, p.5 to the Second Watson Affidavit.

(c)   the Plaintiff told him that she only became aware of this as part of becoming more familiar with the terms of the Covenant in preparing for the hearings;[48]  

[48]Second Watson Affidavit, [9].

(d)  the Plaintiff has provided photographs of two sheds in close proximity to the Subject Land, apparently also constructed mostly of metal, at 25-26 Lombard Court and 49-51 Fontaine Terrace.[49]  Mr Watson exhibits photographs of these sheds;

(e) he obtained satellite images which indicate a number of similar structures within the subject subdivision at four addresses,[50] and he exhibits those images; and

(f)    if the Covenant is modified in respect of building materials, the Plaintiff has instructed him that her intention is to remove the existing Shed and replace it with a ‘more aesthetically pleasing, purpose designed shed’ in a similar design to the one at 49-51 Fontaine Terrace.[51]

[49]Second Watson Affidavit, [9].

[50]Second Watson Affidavit, [10].  These are 5-6, 20 and 11-12 Lombard Court and 50-52 Fontaine Terrace.

[51]Second Watson Affidavit, [11].

Applicable principles

  1. As noted above, this application is made under s 84(1)(c) of the PLA. That section relevantly provides that the Court has the power, on application of any person interested in any land affected by any restriction under a covenant, to order (wholly or partially) to discharge or modify any such restriction, upon being satisfied that ’the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction’.

  1. Whether the modification of the covenant would ‘cause substantial injury’ is a question of fact requiring consideration of the purpose of the covenant and benefits originally and presently conferred by the covenant, against the impact of the proposed modification upon those benefits.[52]  As Gillard J put it in Re Cook,[53] in respect of the assessment of ‘substantial injury’ under s 84(1)(c):

Such injury can only be properly assessed by a comparison between the benefits intended to be conferred and actually conferred by the covenant initially on the persons entitled thereto and the resultant benefits, if any, remaining to such persons after the covenant has been modified.  If from the evidence it appears that the difference between the two will not be substantial, then the applicant will have established a case for the exercise of the Court’s discretion under paragraph (c).  In order to make this comparison it is proposed to consider what benefits the covenant over the subject land may have conferred upon the persons entitled thereto, and then to assess whether the modification of such covenant would or would not substantially diminish the benefit so discovered.[54]

[52]Re Alexandra [1980] VR 55, 60 (Menhennitt J); Vrakas v Registrar of Titles [2008] VSC 281, [35] (Kyrou J) (‘Vrakas’); Suhr v Michelmore [2013] VSC 284, [41] (Pagone J) (‘Suhr’).

[53][1964] VR 808 (‘Re Cook’).

[54]Re Cook, 810-1.

  1. The injury must be ‘real’, in the sense that it is not unsubstantial or fanciful, in order to be ‘substantial’.[55]  A wide variety of matters including noise, privacy, accessibility of properties and other matters of amenity may be considered in appropriate cases.[56]  As is suggested in the passage cited above from Re Cook, it is necessary to show that the ‘substantial injury’ is properly related to the benefits afforded by the covenants, in the sense that the ‘substantial injury’ derives from the proposed modification.[57] 

    [55]Re Stani (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Barber and Nelson JJ, 7 December 1976) [10] (‘Re Stani’); Vrakas, [36].

    [56]See generally Re Robinson [1972] VR 278, 283 (Adam J).

    [57]Re Cook, 810.

  1. Further, the Court may consider the ‘precedential’ effect of a proposed modification leading to similar applications within the estate or neighbourhood, resulting in a more widespread detrimental change.[58]

    [58]Re Stani, 9–10; Vrakas [32].

  1. In Randell v Uhl,[59] Derham AsJ described the guiding principles to assessing whether a beneficiary of the covenant would likely suffer substantial injury from its modification in the following way:[60]

    [59][2019] VSC 668 (‘Randell v Uhl’).

    [60]Randell v Uhl, [85] (citations omitted). For a similar summary of the principles in respect of s 84(1)(c) of the PLA, see Vrakas, [34]-[46].

(a)a substantial injury must be a detriment to the benefitted land that is real and not fanciful. The requirement that the injury must be substantial is intended ‘to preclude vexatious opposition cases where there is no genuineness or sincerity or bona fide opposition on any reasonable grounds’. That does not mean, however, that s 84(1)(c) of the PLA is restricted to dealing with vexatious or frivolous objections. Although the restriction of s 84(1)(c) of the PLA to ‘substantial’ injury would enable the weeding out of vexatious objections to the modification or removal of a covenant, the dichotomy in the section is not between vexatious and non-vexatious claims but is between cases involving some genuinely felt but insubstantial injury, on the one hand, and cases where the injury may truly be described as substantial, on the other; 

(b)the substantial injury relates to practical benefits, being any real benefits to the person entitled to the benefit of the covenant.  It is not sufficient for a plaintiff to merely prove that there will be no appreciable decrease in the value of the property that has the benefit of the covenant;

(c)substantial injury may arise from the order for modification of the covenant being ‘used to support further applications resulting in further encroachment and in the long run the object sought when the covenant was imposed [being] completely defeated’.  This consideration is referred to as the ‘precedent value’; and

(d)whether there will be substantial injury is to be assessed by comparing:

(i)the benefits initially intended to be conferred and actually conferred by the covenant; and

(ii)the benefits, if any, which would remain after the covenant has been discharged or modified;

(e)if the evidence establishes that the difference between the two will not be substantial, the plaintiff has established a case for the exercise of the Court’s discretion under s 84(1)(c) of the PLA;

(f)it is relevant to consider evidence of statutory planning provisions to the extent they show what realistically will be the result of the removal or modification of the covenant because ‘it would be artificial and wrong to pay no heed at all to the reality of the situation’;

(g)in considering whether the plaintiff has satisfied the Court that there will not be substantial injury:

(i)town planning principles and considerations are not relevant; 

(ii)the absence of objectors to the discharge or modification of a covenant will not necessarily satisfy the onus of proof; and

(iii)each case must be decided on its own facts, and each covenant should be construed on its own terms and having regard to the particular context in which it was created;

(h)if the plaintiff satisfies the Court that there will be no substantial injury to the relevant persons, the Court has a residual discretion to refuse the application.  The Court in exercising its discretion, may consider town planning principles and the precedent value.

The Objectors’ submissions

  1. The Objectors each made submissions at the hearings on 9 February 2023 and 2 March 2023.  As the submissions overlap, it is convenient to deal with them by issue to avoid repetition.  Although none of them elected to be joined to the proceeding as defendants, and none adduced any evidence or went on affidavit as to their reasons for objecting, I consider it appropriate that I note their objections and take them into account.

Not in character with the neighbourhood and precedential impact

  1. The Objectors submit the Covenant protects the semi-rural lifestyle and they are concerned that the removal or amendment of the Covenant will lead to overdevelopment of the estate.  Ms King also submits that the proposal is not in character with the neighbourhood as the properties are all single dwellings on at least one acre blocks and her rights to live in a peaceful, tranquil area should be taken into consideration.

Traffic impacts

  1. The Objectors submit that the infrastructure of the area is built upon the basis of one acre blocks of land which generate a small amount of traffic, thus the roads are very narrow and there is no footpath.  Mr Busatta and Ms Chambers submit that this poses a danger to pedestrians.  Ms King submits that if the front house is sold and six people move in, it would have great impact on the traffic for the area.

Neighbours who are not beneficiaries

  1. Ms Chambers submits that it was unfair that not all affected neighbours were notified and given the opportunity to voice their concerns.

Plaintiff’s submissions

  1. The Plaintiff makes the following submissions in contending that her application to modify the Covenant satisfies the ‘no substantial injury’ to beneficiaries test required by s 84(1)(c) of the PLA.

  1. The Plaintiff submits that the Covenant only restricts the minimum size of the one allowed dwelling to 185m2, the building materials which can be used, and the use of a house removed from another site and erected on the Subject Land.  She submits that this may demonstrate that the Covenant did not intend to preserve the open space on larger lots or restrict dwelling height or bulk.[61]

    [61]Written Submissions, [28] and [29].

  1. The Plaintiff submits that therefore the impact of the Proposal may be no greater than a dwelling that can already be constructed upon the Subject Land.  She points to 66 Fontaine Terrace and 101 Fontaine Terrance as examples which are described above at paragraphs 42(p) and 42(i) respectively.  The Plaintiff also submits, relying on the Easton Report,[62] that onsite garaging of trucks and heavy machinery is permitted.[63]

    [62]See paragraph 38 above.

    [63]Written Submissions, [30]–[38].

  1. The Plaintiff says the visual impacts of the Proposal will be limited,[64] citing the Easton Report in support and the Second Forrester Affidavit.[65]

    [64]Written Submissions, [39], [40], and [67]–[71].

    [65]See paragraphs 50 and 56(c) above.

  1. The Plaintiff submits that the Proposal will fit into the neighbourhood’s low-density character as Casey City Council amended the planning scheme in November 2019 to allow lots of 2000m2 if the land is connected to reticulated sewerage.[66]  She submits further that the Subject Land was originally allocated two street numbers, 23 and 24 Lombard Court, potentially in contemplation of the land being connected to reticulated sewerage and later being subdivided.[67]

    [66]Written Submissions, [41] and [42].

    [67]Written Submissions, [43],[52].

  1. The Plaintiff says that battle axe allotments are common in the neighbourhood, relying on the Easton Report and the examples of 62 and 64 Fontaine Terrace and 74 and 76 Fontaine Terrace.[68]  She also submits that this Court had previously varied covenants in the neighbourhood,[69] discussed above at paragraphs 44(a) and 44(b), where the proposal effectively created a battle axe lot.

    [68]See paragraphs 42(h) and  42(j) above.                 

    [69]Written Submissions, [44]–[51].

  1. The Plaintiff submits the Easton Report supports the contention that the Plaintiff’s proposal will not have direct amenity impacts on such large lots as it will not increase noise and disturbance to Beneficiaries.[70]

    [70]Written Submissions, [53]. See paragraph 52 above.

  1. The Plaintiff submits that her proposal is not likely to increase traffic movements perceptibly as the newly subdivided lots will have more than adequate room for vehicles, relying on the Easton Report.[71]  She says further that any traffic impacts which the second dwelling may cause will not  be noticeable to any of the Objectors’ lots as the Subject land is located at the beginning of a cul-de-sac while the Objectors’ lots are located at the end of the cul-de-sac.[72]  The Plaintiff says therefore any traffic intended for the Subject Land will not pass the Objectors’ lots which are approximately 180m away.[73]

    [71]Written Submissions, [60] and [61]. See paragraph 51 above.

    [72]Written Submissions, [62] and [63].

    [73]Written Submissions, [64] and [65].

  1. The Plaintiff submits that this Court has often held that a single dwelling covenant does not control parking and traffic and relies on Re EAPE Holdings Pty Ltd.[74]  She submits that this is consistent with the findings of Derham AsJ in Re Zhang.[75]  The Plaintiff also points to Re Jonson where Ierodiaconou AsJ found that the variation of a single dwelling covenant to allow six dwellings would not create sufficient traffic congestion to amount to substantial injury.[76]

    [74][2019] VSC 242, [46] (Lansdowne AsJ). Written Submissions, [57].

    [75][2018] VSC 721, [28]. Written Submissions, [58].

    [76][2016] VSC 721, [41]. Written Submissions, [59].

  1. The Plaintiff says in response to the Objector’s submission at paragraph 67 above that there is not a sufficient nexus between the alleged injury with the proposal, particularly in absence of expert evidence.[77]

    [77]Written Submissions, [72] and [73].

  1. The Plaintiff says that the Court has recently ordered variations to identical or substantially similar covenants in the same neighbourhood as discussed above in paragraphs 44(a) and 44(b).[78]  As at the day of the Written Submissions, the Plaintiff also says that the Court has ordered variations to the substantially similar covenant of 93-95 Fontaine Terrace discussed above at paragraph 42(m).

    [78]Written Submissions, [74] – [81].

  1. The Plaintiff says that many of the dwellings currently constructed in the neighbourhood have rendered finishes and relies on the Easton Report for the contention that its use has not detracted from the overall character of the neighbourhood.[79]

    [79]Written Submissions, [54] – [56]. See paragraph Error! Reference source not found. above.

  1. The Plaintiff did not make any submissions in respect of the issue regarding her having both a garage and a carport.

  1. The Plaintiff submits that while the outbuilding erected on the Subject Land some 25 years ago is not compliant with the Covenant’s restriction regarding materials, there is no substantial injury to the Beneficiaries considering the long standing record of non-compliance with this discrete element of the Covenant and the established character of metal sheds in the area.  However, the Plaintiff says she will abandon this element of the application if I have any reservations about the content of the notice to Beneficiaries in this regard.[80]

    [80]Written Submissions, [85] – [87].

Consideration

  1. To grant the application, I must be satisfied that the proposed modification will not cause substantial injury to the Beneficiaries of the Covenant and that there is no reason for the Court not to exercise its discretion to grant the application.

  1. At the hearing on 2 March 2023, the Plaintiff’s counsel invited the Court to conduct a view of the Subject Land and the neighbourhood.  There was no objection to me doing so unaccompanied by the Plaintiff or any of the Objectors.  On 5 April 2023 at around 10:30am, I conducted the view.  My observations are as follows:

(a)   turning into Lombard Court from Fontaine Terrace, the road slopes down from the Subject land towards the land of the Beneficiaries in Lombard Court.  Meaning, the Beneficiaries’ land on Lots 18, 19, 20, 22, 23, 24, 25, and 26 (which include the Objectors’ land) are at a lower elevation than the Subject Land;

(b)  regarding Lots 28 and 29 on Fontaine Terrace, the view of the Subject Land is obstructed, as Lot 27 (the lot directly opposite the Subject Land) lies between them;

(c)   my impression of the neighbourhood is of large blocks of land containing a wide range of housing types.  Some of the houses are quite grand, being large mansions of two to three levels; and others are more modest but nonetheless quite sizeable; 

(d)  there are some open paddocks on some edges of the estate which although not close to the Subject Land and the Beneficiaries’ land are within view from them.  There are also more densely built estates of much smaller blocks within view;

(e)   some blocks had houses towards the front of the block, whereas others were either roughly in the middle and a few were set towards the back.  There was no uniformity in the set-back from the streets; and

(f)    the description of the neighbourhood in the Easton Report is consistent with my observations during the view.

Modification to allow two dwellings

  1. I am satisfied that permitting the modification of the Covenant so as to allow two dwellings as proposed by the Plaintiff will not substantially injure the persons entitled to the benefit of the Covenant. My reasons for arriving at this conclusion are set out below.

Neighbours who are not beneficiaries

  1. While I dealt with this issue during the hearing on 9 February 2023, it is convenient to first address Ms Chambers’ submission that not all affected neighbours were notified and given the opportunity to voice their concerns. As the Easton Report correctly states, only the lots transferred after the Covenant was created have the benefit of the Covenant. I accept Mr Easton’s analysis of the beneficiaries of the Covenant, discussed above,[81] and reject Ms Chambers’ submission. I did not construe Ms Chambers’ submission as being that the beneficiaries had not been correctly identified and notified. Rather, I took it to be that not all of the neighbours had received notice of the application. This reflects a common misconception in applications under s 84(1) of the PLA where lay people sometimes assume, incorrectly, that the persons entitled to object are the same as those who may do so in planning applications to the local council. Only beneficiaries of the covenant are entitled to be notified and be heard on applications of the type presently before the Court. That is what has occurred in this instance.

    [81]See paragraphs [14] and [30] – [33] above.

Not in character with the neighbourhood

  1. I accept Mr Easton’s description of the Covenant[82] and his characterisation of the neighbourhood.[83] 

    [82]See paragraph 34 above.

    [83]See paragraphs 42 – 44 and 49 above.

  1. The Proposal will therefore fit into the neighbourhood’s low density character, in particular because battle-axe allotments are common in the area and the subdivided land will not be without reticulated sewerage.  While the Objectors’ regarded the purpose of the Covenant as protecting the semi-rural lifestyle and preventing the overdevelopment of the estate, I am unable to accept that this is the purpose of the Covenant.  One acre blocks do not seem to me to constitute a semi-rural lifestyle but I do accept that such a lot provides for low-density housing development.  I also do not accept Ms King’s submission that all the properties in the neighbourhood are single dwellings on one acre sized blocks, although most are, as demonstrated by the examples provided in the Easton Report.

  1. In particular the fact that the second lot will be behind the existing dwelling on the Subject Land and not visible from the street means that the low-density character of the neighbourhood will be maintained.  Further, the two subdivided lots will still be of a substantial size.

Amenities impact and traffic impact

  1. I do not consider the amenity impacts from the proposal to be significant and I accept Mr Easton’s opinion and the Plaintiff’s submissions in this regard.  First, the Covenant does not restrict dwelling height or bulk and open space of the lots.  I accept the Plaintiff’s submission that the impact of her proposal may be no greater than the dwelling capable of being constructed upon the Subject Land with the Covenant in its present form.

  1. Second, the visual impacts will be very limited as it is unlikely to be visible from the street frontage and the new driveway to the second dwelling would be visually similar to the current driveways on the Subject Land (one of which is to be re-purposed for the rear lot).  Further, when viewing the Subject Land and the immediate neighbourhood, I noticed that the road slopes down from the Subject Land towards the Beneficiaries’ land on Lombard Court such that the natural environment also provides some protection of amenity in that regard. 

  1. Similarly, as there is no benefitting land that immediately abuts the Subject Land, there will be little, if any, visual impact on the rear dwelling on the view from the Beneficiaries’ Land.  Further, the view of the Subject Land is obstructed from the Beneficiaries’ land on Fontaine Terrace, especially considering the fact that Lot 27 (the lot directly opposite the Subject Land, which is not a beneficiary) lies between them.

  1. I accept Ms King’s submission that her rights to live in a peaceful, tranquil area should be taken into consideration insofar as the  amenity impact must not be significant.  I have done so, but I consider that the impact is not significant as I agree with Mr Easton’s opinion and the Plaintiff’s submission that the proposal will not increase noise and disturbance to Beneficiaries. 

  1. Turning now to the issue of substantial injury regarding traffic, the assessment is a) whether the Covenant initially intended to confer and actually conferred benefits relating to traffic and b) the benefits if any which would remain after the Covenant had been discharged or modified.[84]  The Covenant does not contain any restrictions regarding to traffic.  As the Plaintiff correctly submits, a single dwelling covenant does not control parking and traffic.  Therefore, the Covenant did not intend to and did not actually confer benefits regarding traffic.  Even if it did, I find it difficult to see how a variation of a single dwelling covenant to allow two dwellings would create sufficient traffic congestion to amount to substantial injury, particularly so when the proposed lots are 2000m2 each and the business involving heavy machinery will cease.  It is not as if traffic to the subdivided Subject Land will even need to pass the Objectors’ lots, as they are further along the cul de sac.  It is the Objectors who need to pass by the Subject Land when travelling to their own properties.  In this instance, therefore, an increase in traffic to the Subject Land (even if there is such an increase) is unlikely to have any impact, let alone substantial impact, on the Objectors.  Ms King’s comment that if the front house is sold and six people move in such that the traffic will increase is not something that is prevented by the Covenant.  That is something which could occur regardless of whether the application is granted and a second house built.

    [84]Randell v Uhl, [85(d)].

  1. I accept the Plaintiff’s submissions and Mr Easton’s opinion regarding traffic impacts.

  1. Consistent with what the authorities say about the manner in which town planning considerations can be used in applications of this type, in coming to the view that the Plaintiff’s proposal would not cause substantial injury, I have not had regard to the evidence regarding town planning considerations and restrictions (such as the amended the planning scheme in November 2019 to allow lots of 2,000m2 if the land is connected to reticulated sewerage).  This is because town planning principles and considerations are not relevant when considering whether the Plaintiff has satisfied the Court that there will not be substantial injury to beneficiaries.[85]

    [85]Vrakas, [41]; Randell v Uhl, [85(g)]. 

  1. However, town planning principles and considerations may be relevant to the exercise of the Court’s discretion,[86] to the extent they show what realistically will be the result of the modification of the Covenant because ‘it would be artificial and wrong to pay no heed at all to the reality of the situation’.[87]  This is because in considering what a possible worst-case scenario may be, one needs to look at the realistic worst-case scenario, which clearly involves consideration of town planning matters since something not permitted by those controls would not be part of a realistic worst-case scenario.  In this instance, town planning considerations mean that the minimum lot size of each of the two lots if the modification is approved is 2000m2, such that the realistic worse case is two dwellings on two large blocks.

    [86]Vrakas, [46].

    [87]Prowse v Johnstone [2012] VSC 4, [104] (Cavanough J), cited in Randell v Uhl, [85(f)].

  1. Thus, having formed the view that the Plaintiff has satisfied the requirements of s 84(1)(c) of the PLA, the town planning considerations identified by Mr Easton as to the likely impact of the proposal are relevant to the exercise of my discretion as to whether to allow the modification of the Covenant or not. In my view, they clearly weigh in favour of the exercise of the Court’s discretion to allow the modification. I am unable to accept the Plaintiff’s submission that the Subject Land being allocated two street numbers, like many of the lots in the neighbourhood, means that subdivision into two lots was part of the original intention. There is no evidence as to that, and in any event street numbering is, as I understand it, part of the planning process of the local council and says nothing about the intention of those entering into the Covenant. That is the relevant intention, not that of the City of Casey when allocating street numbers.

  1. I should state for the record that I do not consider the Plaintiff’s evidence of her reasons for seeking to subdivide the Subject Land into two lots and construct an additional dwelling, as sympathetic as those reasons may be, to be relevant to my assessment of whether the proposed modification would cause substantial injury to the Beneficiaries.

Precedential Effect

  1. There is no precedential effect in granting the modification.  As the Plaintiff submits, battle axe allotments are common in the neighbourhood and this Court has ordered variations to similar covenants in three other matters.  In any event, each application is assessed on its own merits.

Modification in respect of garage/carport

  1. As the First Forrester Affidavit states, it appears that the current garage and carport on the Subject Land may not be compliant with the Covenant.  Currently, the Covenant permits one multi or single garage or carport and does not appear to permit both (emphasis added). 

  1. The modification proposed to the Covenant in the Originating Motion would permit a garage and a carport (emphasis added).

  1. Mr Easton does not address this proposed modification.

  1. As I apprehend it, the current garage and carport have been present on the Subject Land for some considerable time, likely being built at the time the house was constructed. 

  1. The current garage and carport have likely been non-compliant for some time, there is no evidence of complaint about it by any Beneficiary, and the proposed modification to deal with it was not referred to in any of the Objectors’ submissions.  Further, Mr Easton refers to a number of properties in the neighbourhood containing several vehicles on them (including a bus), and from my observations when I conducted the view, there were several properties where several vehicles could be housed or stored.  For all of these reasons, I do not consider that granting this proposed modification will cause substantial injury to any of the Beneficiaries.  I do not consider that expert evidence in this regard is required for me to come to this view.  Nor do I consider it necessary for there to have been specific submissions on this issue from the Plaintiff for me to reach a decision.  It was part of the application and it is appropriate that I consider and determine it.

  1. Accordingly, this modification is granted.

Modification in respect of building materials

  1. I accept Mr Easton’s evidence and opinion regarding the use of rendered materials in the neighbourhood.[88] 

    [88]See paragraph 53 above.

  1. I do not consider there to be any substantial injury to Beneficiaries if the building materials restriction is modified so as to permit the use of concrete or concrete blocks with a rendered finish.  Such finishes with modern day construction methods appear to the eye as very similar to brick or brick veneer with a rendered finish.  None of the Objectors addressed this aspect of the application and so I assume that they do not object to it.

  1. Permitting the modification of the building materials restriction, as set out in the Originating Motion, would permit dwellings and outbuildings to be constructed of brick or brick veneer, concrete or concrete blocks with a rendered finish. 

  1. That modification does not, as I apprehend it, deal with the problem identified by the Plaintiff in respect of the current outbuildings, since the evidence in the Second Watson Affidavit is that the existing Shed on the Subject Land is constructed of metal.  Therefore, it does not comply with the Covenant.

  1. This means that any proposed modification of the Covenant so as to remedy this non-compliance is not contained in the Originating Motion.[89]  It also means that Beneficiaries have not been given notice of an application made by the Plaintiff in her Written Submissions to modify the Covenant in this respect as well.  Objectors who read the Plaintiff’s Written Submissions or attended the hearing on 2 March 2023 would have notice of such a modification, as it was raised by the Plaintiff then. 

    [89]In this regard, Mr Watson’s evidence that the Originating Motion did not deal with building materials for outbuildings is not accurate.  Rather, it maintained the manner in which building materials is presently dealt with in the Covenant, in that the restriction in that regard applies to both dwellings and outbuildings.  The import of Mr Watson’s evidence is accurate, however, in that the proposed modification in respect of the use of metal for outbuildings is not contained in the Originating Motion.

  1. The current Shed has been present on the Subject Land for at least 25 years, there is no evidence of any complaint about this by any Beneficiary, and the Second Watson Affidavit establishes that there are metal sheds on at least six other properties in the subdivision.  For these reasons, I do not consider that allowing modification of the Covenant so as to permit outbuildings being constructed of metal will cause substantial injury to any Beneficiaries.  However, I think the use of metal should be confined to outbuildings.  In the circumstances, it is unsurprising that Mr Easton does not address this proposed modification.  However, I do not consider it necessary for there to be expert evidence in this regard for me to come to this view.

  1. That being the case, I do not consider it necessary to require the Plaintiff to give notice of this proposed modification to Beneficiaries.

Conclusion

  1. Accordingly, for the reasons set out above, the application to modify the Covenant, so as to permit up to two dwellings, to permit a garage and a carport, and in respect of building materials, will be granted.

  1. The Plaintiff should prepare a draft order to give effect to these reasons and submit it to my Chambers.  If the modification in paragraph (b) of the Covenant regarding building materials (as contained in the Originating Motion) does not sufficiently address the issue of the non-compliant Shed given the Plaintiff’s proposal and the Plaintiff wants it to, then the proposed draft order should include further wording if sought by the Plaintiff.  If necessary, I will deal with that aspect on the papers however if I consider it necessary to do so I will schedule the proceeding for a hearing so as to make final orders.


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Randell v Uhl [2019] VSC 668
Re EAPE (Holdings) Pty Ltd [2019] VSC 242
Re Zhang [2018] VSC 721