The Supreme Court of Victoria has just approved one of the most ambitious modifications to date in a contested case, approving a four unit development on a parcel of land of 978sqm.
The decision of MacLurkin v Searle focused on the precedential effect of a modification application largely by reason of the fact that the closest beneficiaries did not object to it.
The Court held that the modification to the single dwelling and building materials covenant would not occasion substantial injury to beneficiaries in the terms meant by s84(1)(c) of the Property Law Act 1958by reason of the subject land’s relative disconnection to the hinterland of the residential estate.
This is good news for applicants for modification, however, it seems the applicant will be limited to building a design generally in accordance with the plans tendered at the hearing:
82 It is true that in the First Easton Report the plans were just a sketch. But in the Second Easton Report the plans are much more detailed and, although plainly reduced from a larger size to an A4 size to fit the report, there did appear to be measurements and the like that would enable there to be some precision so that one could provide for the development to be substantially in accordance with those plans. The fact that they may not have been through the planning approvals process of the Responsible Authority may have the result that the plaintiff is not permitted to build substantially in accordance with those plans, but that is the plaintiff’s problem.
Once again, this highlights the importance of putting forward a design in a modification application that one can be confident will be approved by the Council or VCAT in the subsequent planning approval process.
*Matthew Townsend has an online blog, Restrictive Covenants in Victoria, in which he discusses cases and news about restrictive covenants in Victoria.