A Single Dwelling Restrictive Covenant – could save your neighbourhood.

When land is first subdivided for residential purposes, the owner can put an ongoing condition on the sale of the land that each site can only have one dwelling.

this is known as a ” single dwelling restrictive covenant.” This condition applies to every subsequent owner of the land, and I am told can only be removed by one of two methods:

1. ALL land owners covered by that particular covenant agree to remove it at the same time. ( That could meen5, 10 , 20 neighbours ALL have to want it, if one says no, then no-one can remove it.)

2. The supreme court has to rule on the topic and find reason that it should be removed. This would be the way a developer would have to go to change one block when the neighbours want to remain in a single dwelling covenant.

And that is what happened with Matt Preston recently as covered in the Herald Sun Jan 16th Pg5 and Today Tonight . A developer wanted to build 3 stories next door to him, they went to the supreme court, and the judge agreed to keep the single dwelling restrictive covenant, to amongst other things, protect back yard privacy…

Today Tonight – Chef’s court challenge
Food critic and Masterchef judge Matt Preston has won a major court battle to stop a multimillion dollar housing development in his neighbourhood.

When a major housing development threatens to rear its ugly head in your street, the general feeling is ‘not in my backyard’.

But while those are empty words for most of us, when you’re outspoken food critic and TV chef Matt Preston, you turn those words into action.

Now he’s won a Supreme Court challenge forbidding high density homes from going in next door, and he’s not the first celebrity to fight for a cause close to home.

 

Herald Sun Select : Jan 16th pg 5

TV CHEF’S COURT BATTLE

Privacy win for TV foodie

The Master Chef Australia judge said the landmark Supreme Court ruling was a win for every Aussie who values ‘‘being able to have barbecues with their family’’ in the sanctuary of their own back garden.

Preston was among 30 objectors who opposed the three-storey development because it allowed people to peer into neighbouring properties.

While the popular TV star joked that he had grown ‘‘accustomed to being watched,’’ he felt everyone’s back yard should be off-limits.

‘‘They say an Englishman’s house is his castle, well I think Aussies feel the same way about their back yards,’’ he said.

‘‘We Aussies love our back yards. It is where we barbecue and play cricket with our kids, regardless of which suburb you live in.

‘‘This judgment shows the value that is placed on all our back yards.’’

Using a historical quirk relating to the land in question, Preston and his fellow objectors were able to have the 18 apartments rejected by the Supreme Court before the development went through the local planning process.

Under conditions of a 1901 land split, the Langmore family required that no more than one house be built on each of the blocks, to preserve the amenity of the area and to keep urban density low.

Supreme Court judge Anthony Cavanough ruled the covenant was still in place and agreed the flats would invade Preston’s privacy, singling the food critic out in his ruling.

‘‘I accept that it would diminish the quality of the Prestons’ family life through decreased enjoyment of their private outdoor living area and the rear rooms of their home,’’ he said in his judgment.

‘‘All the families who opposed this are very relieved,’’ Preston said.

‘‘The great irony of all this is I’m used to being watched. But I don’t think it matters what suburb you live in. Everyone loves their home and the street they live in and want to see it remain just the same.’’

Preston’s neighbours also argued the development would provide a bird’s-eye view into their houses and gardens.

Justice Cavanough supported the argument that the project would destroy the area’s character, overburden the land and create an eyesore at the cost of a historically significant Edwardian home.

Malvern resident Ken Davis said the ruling would have enormous ramifications for residents and developers.

‘‘In the past, many developers have just ignored these historic conditions and there are probably dozens, if not hundreds of others just like it across Melbourne,’’ he said.

 

5 Responses to “A Single Dwelling Restrictive Covenant – could save your neighbourhood.”

  1. Warren says:

    Separation of powers?
    Many of these dodgy decisions would be overturned at the Supreme Court but they survive unchallenged only because the costs are prohibitive.

    There are more than 100 DD08 zoned properties in areas east of Thiele Street and south from Hepburn road Doncaster that are encumbered with single dwelling covenants. There could well be more, since they were common in the new subdivisions sold in the area during the land boom of the late 60s and early 70s. It is significant that the judge in his summary, besides his reference to the legal status of the restrictive covenant, had termed the development an “eye sore and an invasion of privacy” and it “compromised family life”.

    Warren

  2. Bob Pitts says:

    Les

    A restrictive covenant prevents one property from being used in a particular way for the benefit of other specified land. Those referred to by Warren east of Thiele Street could prevent development, if a single dwelling covenant was registered on the title of the proposed development site, and it was expressed to be for benefit of usually nearby land. This might be of value if the flats near Curlew and Thiele were to go to Council, though I think it is now Council’s job to make sure that there is no potential breach of covenant involved.

    I would be surprised if focus on this paid dividends, though it is not hard to check, and should be done early on in reviewing proposed development plans.

    Bob

  3. jim says:

    Manningham Council has shown in the past that it will remove single dwelling covenants using a third method, planning scheme amendments. Amendment C72 removed single dwelling covenants from a number of properties in Hepburn Rd. This process is failsafe for the Council especially if backed by sympathetic State Govt or planning bureaucrats. Racketeering pun aside, I think a lot of money can provide protection.

  4. Damon says:

    I am dealing with a client in Glen Waverley who wants to split their block of land so they can provide an opportunity to help their daughter to own her own home whereby she can also care for her aging parents. Not being able to remove the covenant will mean that the daughter will have to move 22 km’s away to a new estate. Her parents will have to continue to repair an old house which is too large for them. They will also more than likely have to move into care accommodation years before they might had the daughter been able to care for them before and after she went to work.
    It seems that this restrictive covenant does nothing for young or old people wanting to stay in the area they grew up in , including the ideals we are meant to be fostering about clean and grean living. Without increasing densities we will never reach our green targets or lifestyle.

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