Maroondah City Council and its residents have won a landmark decision in the Victorian Supreme Court effectively preventing overdevelopment on land within a suburban street.
The decision, handed down by Mr Justice McDonald in June, means that a restrictive covenant placed on the land was not able to be changed or dismissed to allow the building of more than four units on the land in Bonnie View Road, Croydon.
Maroondah Council had previously rejected an application by Pivotel, formerly Remington Homes, to build ten units on the land due to the existence of the restrictive covenant. A permit was issued for four units.
Pivotel appealed to the Victorian Civil and Administrative Appeals Tribunal that granted the ten unit permit, regarding the covenant as irrelevant to the hearing. Pivotel separately applied to the Supreme Court to have the restrictive covenant removed.
Maroondah Council and the residents of Bonnie View Road decided to challenge the application in a collaborative effort.
The cost prohibitive nature of taking civil and planning issues to court was alleviated with Council offering to share the costs of the case.
Restrictive covenants are private restrictions usually created as a result of a legal agreement between a seller and buyer of land.
Restrictions may include a maximum number of dwellings or storeys for buildings or a certain type of boundary fence.
In its application to the Supreme Court, Pivotel was required to show the covenant was obsolete and that the continued existence of the covenant would impede reasonable use of the land.
The Court found that the covenant had not become obsolete, because the original purpose for imposing the restriction could still be served.
Justice McDonald ordered Pivotel to pay the costs of the objectors &endash; the Council and the residents involved. Maroondah’s Mayor, Councillor Peter Gurr is delighted with the result.
“It is not just about administering planning processes, but about Local Government playing an important role in empowering residents to avoid inappropriate development in their own backyards,” he said.
“We have a very active community with people who are concerned with the amenity and character of their local area.
“It is a tribute to the residents and the Council officers that they have taken a stand and won.”
Chief Executive Officer, Michael Marasco, said Council worked hard to ensure that the covenant remained in place and that the character and amenity of the land and the street were enhanced.
“Ten dwellings on that one site was overdevelopment to say the least,” he said.
“Maintaining the covenant means that the nearby residents, and their properties, are protected from this type of overdevelopment.
“Developers need to be aware that Councils are prepared, when necessary, to take them on and not take it for granted that they will go unchallenged.”
