Council Experts got Covenant protection wrong.

This is a great example that come in last week, shows that you cannot sit back and expect the council or their experts to “Protect you.” Not only were they considering removing the protective covenant, but the expert report they relied on which told them it was OK went against the public proof that was given to them….

 

We’ve had a MAJOR WIN in relation to the removal of covenant request at 42 Walker Street.

 [Fri 8/06/2012 10:19 AM ]  A quick summary:

Council said that the reason we were not notified by mail is that we (the rest in the subdivision) were not beneficiaries. They said that we can be burdened by a covenant yet not beneficiaries to it. Council had based this on a report they received from a ‘covenant expert’ in support of the application that showed that the only beneficiaries were 666 Doncaster Road, the local street (Manningham City Council) and road aligning (VicRoads) so we were up against time to get to the bottom of it because the chances of those three objecting were slim and if no beneficiaries object (even if there were a stack of other objections) there’s a good chance it would have been removed (and before you know it there would be an application for a three storey apartment block which is what we all feared).

My husband, rang a covenant lawyer on Tuesday and was able to supply title searches and the original contract of sale (thanks to Warren Welsh). The lawyer said that it didn’t look right and to request a copy of the advice that Council had received from the covenant expert. We received it from Council and rang the expert. Turns out (as we thought,) that upon further investigation the entire subdivision are beneficiaries!! He collected their new report from them on Wednesday afternoon and we took it up to Council yesterday. You can read up from bottom to see what transpired.

The mistake seems to have been made because there are two transfers on that particular block of land but the transfers have different dates. The earlier date is the one that applies and the expert seems to have used the later date.

So the applicant now has the option of reapplying and all beneficiaries will be notified (in which case they can expect a stack of objections and an automatic rejection) or they can withdraw their application.

Had we not investigated this for ourselves, it could have gotten very messy indeed. And I think this goes to show what happens when Council relies on ‘outside’ expert advice!

 One for the little guys!!

Adele

For more details about the role of restrictive covenants – see our previous article,  Restrictive Covenant could save your neighborhood,   or see below for more correspondence on this topic.

++++++++++++++++ Prior correspondence +++++++++++++

6 June 2012

Natasha Swann
Manager Statutory Planning
699 Doncaster Road
Doncaster
VIC 3108

Dear Natasha

Address:                     42 Walker Street, Doncaster, VIC 3108
Application No:         PL12/022791
Proposal:                    Removal of Restrictive Covenants contained in Instrument of Transfer No. B416105 and B771605
 
We refer to our objection to the removal of the above covenant and to your letter dated 4 June.

After consulting with a lawyer specialising in covenants, we requested a copy of the report by {name of expert} referred to in your letter, which was emailed to us yesterday.

We telephoned {name of expert} l and spoke with {name of expert} to question their report and your interpretation of it. After further investigation they have amended their report to more clearly show the beneficiaries and we picked this up from their city office this afternoon. The beneficiaries are now shown to be the entire subdivision of around 90 properties. We will deliver {name of expert} report to the Council offices tomorrow in person.

We request that you readvertise this application for a removal of the restrictive covenant and, in accordance with Section 51(1)(cb) of the Planning and Environment Act 1987, that you contact by letter all beneficiaries identified in this new report. We understand that even one objection from the beneficiaries would constitute an immediate rejection of the application.

Regards

Adele  [Other Names suppressed]
++++++++++++++++ Response to the above  letter /  correspondence +++++++++++++

From: Sarah.Neill@manningham.vic.gov.au
Sent: Friday, 8 June 2012 10:02 AM
To: Adele
Subject: Re: Application PL12/022791: 42 Walker Street, Doncaster

Dear Adele,
Thank you for your email.  I have also received the hard copies of the information.
I have contacted the applicant and advised him that should they wish to proceed with the application then they will need to amend the application and notify all of the beneficiaries as detailed in your letter.  A stated in your letter and email,  this would result in a refusal being issued under Section 60(5) of the Planning and Environment Act 1987.
The second option would be for the application to be withdrawn.
I will keep you informed.
Regards

Sarah Neill

++++++++++++++++ Prior correspondence +++++++++++++

 

Glen Towers Single Dwelling Covenant

[To Manningham council Officers] Natasha, Sarah,

Could you please liaise with council solicitor’s as to status of the application you are currently processing for the removal of a restrictive covenant at 42 Walker Street, Doncaster.

During my term as councillor 2005-2008 I spent considerable time and effort in attending rallies, reassuring the beneficiaries council would not initiate or assist in any action that would cause their removal, even to the extent of distributing a statement from the Chief Executive Officer and legal advice from Council’s solicitor, to this effect.

Since the notice board at 42 Walker Street was erected I have received calls from several of the beneficiaries, many of whom are questioning my role in the previous undertaking.

If a mistake has been made it would be appreciated if a letter be sent to all the beneficiaries explaining the misunderstanding and to reaffirm council’s previous undertaking.

RAIDID would also like to see a similar assurances provided for the beneficiaries of the single dwelling covenant in the area east of Thiele Street who would all have similar concerns.

Yours Truly,

Warren Welsh

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