Re Zhang

Case [2018] VSC 721 22 November 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01168

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

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IN THE MATTER of an application for the discharge or modification of a restriction arising under a covenant in a transfer of land registered no. 1853030 affecting the land at 1017 High Street, Reservoir, Victoria, being the land in Certificate of Title Volume 06543 Folio 557 by:

XIAOLONG ZHANG

Plaintiff

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2018
DATE OF JUDGMENT:	22 November 2018
CASE MAY BE CITED AS:	Re Zhang
MEDIUM NEUTRAL CITATION:	[2018] VSC 721

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PROPERTY – Restrictive covenant – Application to modify restrictions in covenant pursuant to the Property Law Act1958 (Vic), s 84 – Modification of covenant to remove restriction on ‘hoarding for advertisement purposes’, to allow for excavation works to be carried out ‘for the provision of driveways, garden beds and the like’, and to allow not more than four dwelling houses – Whether discharge or modification will not substantially injure the persons entitled to the benefit – Application granted – Applicable legal principles – Property Law Act1958, s 84(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend	MPW Lawyers

TABLE OF CONTENTS

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

The covenant....................................................................................................................................... 1

The plaintiff’s evidence.................................................................................................................... 2

The beneficiaries................................................................................................................................ 2

Location of the Land.......................................................................................................................... 4

The proposed development............................................................................................................. 5

Planning and building controls...................................................................................................... 6

Applicable law.................................................................................................................................... 6

Construction of restrictive covenants........................................................................................ 6
Discharge or modification........................................................................................................... 7

Submissions and consideration.................................................................................................... 10

No hoarding for advertisement purposes............................................................................... 10
Quarrying restriction.................................................................................................................. 11
Single dwelling restriction......................................................................................................... 12

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

The plaintiff is the registered proprietor of the land at 1017 High Street, Reservoir, Victoria (Land).[1] The Land is burdened with a restrictive covenant that, amongst other restrictions, prevents the erection of more than one dwelling on the Land. The plaintiff has applied to the Court pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) (PLA) to modify the Covenant affecting the Land to the allow the erection of four dwellings on the Land.
[1]The land more specifically described in Certificate of Title Volume 6543 Folio 557.

The covenant

The Land is lot 26 on Plan of Subdivision 8486 (Plan of Subdivision). The covenant was created when Thomas Michael Burke transferred the Land out of the parent title (Volume 4984 Folio 717) by instrument of transfer 1853030 on 20 February 1942. The parent title was a part of a larger subdivision commenced in 1925. The Land is proximate to, and in the same subdivision as, the land the subject of the decision in Stanhill Pty Ltd v Jackson,[2] in which a substantially similar restriction was modified to allow the erection of not more than two dwelling houses. In his judgment in that decision Morris J observed:[3]

It would appear that in about 1919 two entrepreneurs,…

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 Zhang

Details

AGLC: Re Zhang [2018] VSC 721
Case: [2018] VSC 721
Decision Date: 22 November 2018

CaseChat Overview and Summary

The parties involved in this case were the applicant, Zhang, and the respondents, who were various owners of land in a residential subdivision. The dispute centred around a restrictive covenant placed on Zhang's property that limited the use of the land to residential purposes only and prohibited certain activities such as hoarding for advertisement purposes, excavation works for driveways and garden beds, and the construction of more than one dwelling house. Zhang applied to the Supreme Court of Victoria for relief under section 84 of the Property Law Act 1958 (Vic) to modify or discharge the restrictive covenant to allow for these activities and to permit the construction of up to four dwelling houses on the property.

The central legal issue before the court was whether the modification or discharge of the restrictive covenant would not substantially injure the persons entitled to the benefit of the covenant. The applicant argued that the modification would not result in any substantial injury to the respondents, as it would not affect the residential character of the area or cause any detriment to the respondents' properties. The respondents, on the other hand, contended that any modification of the covenant would result in substantial injury to them, as it would allow for activities that were not contemplated when the covenant was originally created, and would potentially lead to an increase in the density of housing in the area.

The court found in favour of the applicant and granted the relief sought. In its reasoning, the court noted that the modification of the covenant was limited in scope and would not substantially injure the respondents. The court found that the proposed modifications would not alter the residential character of the area, and that the respondents had not provided any evidence to suggest that the modifications would cause any detriment to their properties. The court also noted that the modification would allow for the applicant to carry out necessary works on the property and to construct up to four dwelling houses, which was not an unreasonable use of the land. The court concluded that the modification of the restrictive covenant was in the best interests of all parties and would not result in any substantial injury to the respondents.

The final orders of the court were that the restrictive covenant be modified to remove the restriction on hoarding for advertisement purposes, to allow for excavation works to be carried out for the provision of driveways, garden beds and the like, and to allow not more than four dwelling houses to be constructed on the property. The court also ordered that the modification be noted on the titles of all affected properties.

Orders