The removal of restrictive covenants is a matter approached with reasonable caution. In the recent case of Tran v Brimbank CC [2011] VCAT 1560, the Tribunal has considered the question of permitting the removal of a restrictive covenant in a suburban subdivision. In the present case the land was encumbered by a restrictive covenant that prevented the erection of a second dwelling on the land.
In allowing the removal of the restriction the Tribunal took into account matters including the following
- the only objectors to the removal (who benefited from the covenant) lived a considerable distance away from the subject land;
- other recent decisions of the Tribunal which had allowed the removal of covenants;
- another local property had previously had a similar restrictive covenant removed without objection;
- the objection to the removal was vexatious in all the circumstances of this case.
