Re Izadi and ors null - [2019] VSC 137

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 02665

IN THE MATTER of an application under s 84 of the Property Law Act 1958 (Vic)
- and -
IN THE MATTER of an application for the modification of a restriction arising under a covenant in a transfer of land registered no. E432033 affecting the land at 204 Hawthorn Road, Vermont South in Victoria, being the land in certificate of title volume 08937 folio 234 by:

ROOZBEH IZADI, ARMITA CHALABI, ALAN ORANGI and ELLY ORANGI

Plaintiffs

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2019
DATE OF JUDGMENT:	6 March 2019
CASE MAY BE CITED AS:	Re Izadi and ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 137

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REAL PROPERTY ― Restrictive covenant ― Covenant not to erect ‘any building other than a private dwelling house’ ― Additional covenant requiring use of brick and stone and concrete as construction materials ― Existing grant of planning permit for three dwellings ― Construction of three dwellings as permitted ― Partial nonconformity with materials covenant ― Court application to modify materials covenant ― No substantial injury in a subsequent modification of covenant ― Utility of declaratory relief as ancillary remedy ― Property Law Act 1958 (Vic) s 84(1)(c), 84(2)(a)

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr M Townsend	MPW Lawyers
No appearance by any affected party

HIS HONOUR:

The plaintiffs are the registered proprietors as tenants in common of the land at 204 Hawthorn Road in Vermont South. Their land is burdened by a restrictive covenant which originated in a transfer of land E432033 dated 11 April 1972. The relevant part of the covenant states that the transferee (now the plaintiffs as successors in title) –

… will not erect or cause to be erected ... any building other than a private dwelling house with the usual outbuildings and that no such building shall be constructed of materials other than brick brick veneer stone or concrete …

For the purposes of this proceeding, professional title searchers were retained to ascertain the beneficiaries to be identified according to Lots on the relevant subdivision. There are 21 beneficiaries none of whom are located in Hawthorn Road, but are in the area behind the plaintiffs’ land.[1] In the section of Hawthorn Road closest to the plaintiffs’ land the Lots on both side of the street are also burdened by the same covenant.
[1]See exhibit MPW-5 to the affidavit of M P Watson sworn 22 January 2019.

The plaintiffs were registered as owners on 30 November 2017. Before they bought the land, the previous owner Anand Dwivedi applied to the Whitehorse City Council for a planning permit to build three double storey dwellings, and, to vary the building materials covenant to allow the use of ‘concrete sheeting’. Under s 60(5) of the Planning and Environment Act 1987 the responsible authority must not grant a permit which allows the variation of a restriction ‘unless…

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 Izadi and ors null

Details

AGLC: Re Izadi [2019] VSC 137
Case: [2019] VSC 137
Decision Date: 6 March 2019

CaseChat Overview and Summary

The case of Re Izadi and ors null arose in the Supreme Court of Victoria. The dispute involved the interpretation and potential modification of a restrictive covenant on a piece of real property. The covenant stipulated that no building other than a private dwelling house could be erected, and additionally required that any such buildings be constructed using brick, stone, and concrete. Despite an existing planning permit for the construction of three dwellings, the respondents argued that the covenant was partially non-compliant due to the use of materials other than the specified ones. Consequently, an application was made to the court to modify the covenant.

The primary legal issues before the court were whether the existing planning permit could be reconciled with the covenant, and if the covenant could be modified to accommodate the construction materials used. The court had to determine if modifying the covenant would result in substantial injury to the original purpose of the covenant and whether the utility of the declaratory relief as an ancillary remedy could be considered. The respondents argued that the partial nonconformity with the covenant did not substantially injure the covenant's original purpose and that the declaratory relief would serve a useful purpose in clarifying the rights and obligations of the parties.

The court held that the existing planning permit could be reconciled with the covenant as the primary objective of restricting the property to private dwelling houses was being met. Although there was a partial nonconformity in the construction materials, the court found that it did not substantially injure the original purpose of the covenant. Consequently, the court granted the application to modify the materials covenant. The declaratory relief was also considered a useful ancillary remedy to clarify the rights and obligations of the parties. This decision was made under the Property Law Act 1958 (Vic) sections 84(1)(c) and 84(2)(a).

The final orders of the court included a declaration that the covenant would be modified to allow for the construction materials used, while maintaining the restriction to private dwelling houses. The court's decision provided clarity on the permissible modifications to the covenant and affirmed the validity of the existing planning permit.

Orders