The Supreme Court of Victoria has dismissed an application to amend a restrictive covenant imposing a single dwelling condition in Grant & Anor v Preece [2012] VSC 55. The Plaintiff wished two build 2 dwellings.
The case involves a property in Ivanhoe East. In reasons for judgment dismissing the application Associate Justice Daly notes that the plaintiff in such an application under section 84(1) of the Property Law Act has the difficult task of proving a negative. After considering previous authorities the Court distills the following tests
(a) identification of the relevant “neighbourhood” for the purpose of determining whether changes to that neighbourhood have rendered the single dwelling restriction imposed by the covenant obsolete;
(b) having defined the neighbourhood, whether changes in the character of the neighbourhood have resulted in the prohibition of multiple dwelling development unenforceable or otherwise of no value, particularly in the context of the property having a wider than usual frontage;
(c) if the single dwelling covenant could not be held to be obsolete, whether the restriction imposed by the covenant impedes the reasonable use of the land without securing practical benefits to other persons;
(d) alternatively, whether modification of the covenant to allow the construction of two dwellings would substantially injure any person entitled to the benefit of the covenant; and
(e) if Mr and Mrs Grant establish an entitlement to relief under either s.84(1)(a) or 84(1) of the Act, whether there are any matters relevant to the Court’s discretion as to whether to make an order in the form sought.
