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…
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.