Re Jensen - [2012] VSC 638

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 05066

IN THE MATTER of the Property Law Act 1958¸ section 84

IN THE MATTER of a restrictive covenant contained in instrument of transfer No. C706812 registered in the Land Titles Office in the register book and imposed upon the land more particularly described in certificate of title volume 9725 folio 572

IN THE MATTER of an application for the discharge or modification of the restrictive covenant by:

TONY PETER JENSEN and CLARE EVETT JENSEN

Plaintiffs

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2012
DATE OF JUDGMENT:	21 December 2012
CASE MAY BE CITED AS:	Re Jensen
MEDIUM NEUTRAL CITATION:	[2012] VSC 638

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REAL PROPERTY ― Restrictive covenant ― Prohibition of more than one dwelling ― Same covenant covering larger area of land subdivision ― Absence of any dual occupancy or multi unit development in subdivision ― No change in character of neighbourhood since inception of covenant ― Enlargement of applicants’ land since covenant given ― Desire to construct additional dwelling ― Whether restriction obsolete or an impediment to reasonable user ― Whether discharge or modification will not substantially injure covenantees ― Application refused ― Property Law Act 1958, s 84

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Appearances	Counsel	Solicitors
For the Plaintiffs	Ms L Harrison	Aughtersons Solicitors

HIS HONOUR:

Tony Peter Jensen and Clare Evett Jensen are the registered proprietors of land at 7 Enfield Drive in Bayswater. They became owners in 2002. It is a residential area, and their land has on it a single storey brick veneer dwelling with a tiled roof. A single car port is attached to the side of their house. There are some small outbuildings in the rear yard. The land area originally was not, but now is, of an “L” shape and is about 886 square metres. This approximates the “quarter acre block” that was so symbolic in the past of suburban Australian residential development to satisfy the aspiration of home ownership.

The Jensens have had drafted for them some sketch designs for a proposed dual occupancy on their land. The plans show a new double garage for the existing dwelling, and a new two storey dwelling with garage at the rear of the site. There is proposed to be a single driveway for both dwellings. It is said that as viewed from the street frontage, the existence of a second dwelling at the rear will be shielded by the existing dwelling. An application for a planning permit for a two lot subdivision will be required from the City of Knox.

But the Jensens face a substantial hurdle, and it is not from land owners in the immediate vicinity. The title is encumbered “as to part” by a registered covenant No. C706812. Most of the land (I shall explain later “most”) was originally Lot 41 on Plan of Subdivision LP71907, which created 65 conventional residential lots. The covenant was created in a first transfer…

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 Jensen

Details

AGLC: Re Jensen [2012] VSC 638
Case: [2012] VSC 638
Decision Date: 21 December 2012

CaseChat Overview and Summary

The matter of Re Jensen was heard by the Supreme Court of Victoria. The case involved a dispute regarding a restrictive covenant affecting a parcel of land within a subdivision. The applicants sought to discharge or modify the covenant, which prohibited the construction of more than one dwelling on the land. The covenant was originally applied to a larger area of the land subdivision, and there has been no dual occupancy or multi-unit development in the neighbourhood since the inception of the covenant. The applicants wished to build an additional dwelling on their land, which had been enlarged since the covenant was given.

The primary legal issue before the court was whether the restrictive covenant had become obsolete or if it now constituted an impediment to the reasonable use of the land. The court also needed to determine if discharging or modifying the covenant would not substantially injure the covenantees, as required by section 84 of the Property Law Act 1958.

In delivering the judgment, the court held that the covenant was not obsolete, as there had been no change in the character of the neighbourhood since its inception. The court also found that discharging or modifying the covenant would substantially injure the covenantees, as it would allow for a greater density of dwellings in the subdivision. Consequently, the court refused the application to discharge or modify the restrictive covenant. The applicants were denied permission to construct an additional dwelling on their land, and the covenant remained in effect.

Orders