Re Polixronis Super Pty Ltd - [2017] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 3698

POLIXRONIS SUPER PTY LTD (ACN 167 051 210)

Plaintiff

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	11 September 2017
DATE OF REVISED REASONS:	21 September 2017
CASE MAY BE CITED AS:	Re Polixronis Super Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 551

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RESTRICTIVE COVENANT – Restriction to shop and one dwelling – Small local shopping strip - Modification sought to shop and three dwellings – Whether restriction to one dwelling obsolete – Whether any substantial injury would be occasioned to benefited land by the modification – No objection from any benefited person – Restriction to one dwelling in conjunction with a shop held to be obsolete within second limb of s 84(1)(a) given change in retail behaviour – No significant precedential effect – Likely increased height a planning matter - Section 84(1)(c) also satisfied - Property Law Act 1958 s 84(1)(a) and (c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Laidlaw	Mark M Morgan Barristers and Solicitors

HER HONOUR:

Introduction

The plaintiff is the owner of land at 12 Carson St, Reservoir (‘the subject land’). The subject land is burdened by a restrictive covenant, which currently permits a shop but prohibits more than one dwelling on the subject land. The plaintiff seeks that the covenant be modified to permit up to three dwellings and a shop. The plaintiff principally asserts that, in accordance with s 84(1)(a) of the Property Law Act 1958, the restriction, in so far as it limits a dwelling to one only, is obsolete. It is difficult to discharge the burden of establishing that a restriction is obsolete. Nevertheless, for the reasons which I gave ex tempore and now elaborate, I consider that the plaintiff in this unusual case has discharged that burden. If I am wrong in that conclusion, I consider that in any event the plaintiff has shown pursuant to s 84(1)(c) of that Act that there will be no substantial injury to any benefited land by the proposed modification.

Facts

The covenant was created in 1945 on transfer of the subject land as part of Lot 959 of Plan of Subdivision 8481. At that time, the covenant prevented the erection of any shop and certain other named commercial and industrial activities, and permitted only a single dwelling on the Lot. The covenant was modified by order of this Court in 1958 to permit a shop but no more than one dwelling to be erected on the land. The subject land is Lot 2 on Plan of Subdivision 53439, which it appears subdivided Lot 959 into four lots. Each of those lots is burdened by the same covenant.

The subject land is currently vacant. It is located in a small pocket of land zoned Commercial, within a broader area of residential land. The other lots within this small commercial pocket contain shops or…

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 Polixronis Super Pty Ltd

Details

AGLC: Re Polixronis Super Pty Ltd [2017] VSC 551
Case: [2017] VSC 551
Decision Date: 11 September 2017

CaseChat Overview and Summary

In the matter of Re Polixronis Super Pty Ltd, the court was tasked with considering the modification of restrictive covenants on a property situated on a small local shopping strip. The covenants in question restricted the land to being used as a shop and one dwelling. The property owner sought to modify these restrictions to allow for a shop and three dwellings. The primary dispute centred on whether the restriction limiting the land to one dwelling was obsolete and whether any substantial injury would be caused to the benefited land by the proposed modification.

The court was required to determine if the restriction to one dwelling was obsolete, considering the second limb of section 84(1)(a) of the Property Law Act 1958. Additionally, it had to assess if the modification would cause substantial injury to the benefited land as per section 84(1)(c) of the same Act. The court also needed to consider whether any objections had been raised by the benefited parties.

In its reasoning, the court found that the restriction to one dwelling was obsolete due to changes in retail behaviour, thus satisfying the second limb of section 84(1)(a). The court held that the restriction had little precedential effect and that the proposed modification would not cause substantial injury to the benefited land. The court further determined that the likely increased height of the proposed development was more appropriately a matter for planning authorities rather than an issue to be decided under the Property Law Act. As no objections were raised by any of the benefited parties, the court concluded that the restrictions were obsolete and did not foresee any substantial injury to the benefited land. Consequently, the court allowed the modification of the restrictive covenants.

Orders