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LIBERALS MOVE TO STRENGTHEN COVENANT PROTECTIONS

News Release - Wednesday, 25 October 2000

The State Opposition will seek to amend a proposed law currently before Parliament so as to provide greater protection for the rights of home owners and residents against developers who seek to override or remove single dwelling or other restrictive covenants.

Amongst other things, the amendments will protect residents in cases such as one decided by the Supreme Court in August last year, where a Council sought to remove a restrictive covenant using a planning scheme amendment, and the Court held that there was no obligation on the Council to take into account the impact this would have on neighbours protected by the covenant. [Zeltoff v. Stonnington City Council [1999] VSC 270]

"The Liberal Party in its election policy last year promised to provide stronger legal protection for covenants," the Shadow Minister for Planning, Robert Clark, said today. "The Bill the Labor Government has introduced into Parliament does not go as far as the protections we put forward, and creates new anomalies.

"The Government's legislation is likely to lead to increased pressure on Councils and the Minister for Planning from developers to remove covenants using planning scheme amendments, for which the Bill proposes only limited protections.

"This problem is made worse because the legislation also contains provisions which allow developers to make an application for a planning permit which breaches a covenant at the same time as they seek a planning scheme amendment to remove the covenant, creating the risk that this will become the easiest way for developers to try to overturn covenants.

"The Opposition will move an amendment to ensure that the rights of owners and occupiers of neighbouring properties protected by the covenant are properly considered in deciding proposed planning scheme amendments.

"The amendment will specify that a Council or the Minister can only recommend or approve a planning scheme amendment which removes or varies a covenant if satisfied that the overriding public interest requires the removal or variation after taking into account any detriment which may be suffered by an owner or occupier of land which has the benefit of the covenant."

Other amendments to be moved by the Opposition will:

• require that in all cases owners and occupiers of property having the benefit of a restrictive covenant are given individual notice where a planning scheme amendment or planning permit is being sought which affects that covenant

• require that the applicant for a planning permit must provide to the Council information which identifies which properties have the benefit of the covenant. This will help ensure that all owners and occupiers of such properties can be notified, and their interests considered by the Council when deciding whether to grant a planning permit which removes or varies the covenant.

"These amendments will mean that all owners and occupiers of properties which have the benefit of a restrictive covenant will in future be notified when anything is proposed which puts their rights and the enjoyment of their covenant at risk, and will also require that the impact of any removal of these rights be properly considered by planning authorities," Mr Clark said.

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