By Russell Cocks, Solicitor
First published in the Law Institute Journal
Property lawyers of a certain vintage have been much influenced by two ‘parks’ and may, from time to time and no doubt due to their vintage, get those parks confused.
The first in time and perhaps in memory is Ellenborough Park, a park in London that is the subject of the case cited as Re Ellenborough Park [1956] Ch 131, which concerned the proprietary nature of easements. The second is MacArthur Park, a park in Los Angeles and the subject of the song of the same name written by Jimmy Webb and recorded by Richard Harris in 1968. Both Re Ellenborough Park and MacArthur Park have also been the subject of review and revisits from time to time, with the law following the traditional path of developing a line of authority and the song suffering from the desire of others to impress their own style on an icon, the disco version released by Donna Summer in 1977 being perhaps the worst example of the latter.
Exploring the concept of confusion a little further, lawyers of all vintages often confuse the legal principles associated with easements with those of their closely related legal ‘cousin’, covenants. Re Ellenborough Park explored the proprietary nature of easements, confirming that a correctly established easement is indeed a proprietary right, as opposed to a mere personal or contractual right. Covenants are likewise recognised as proprietary rights and thus enforceable against ‘all of the world’, as opposed to mere contractual rights that are only enforceable against contracting parties.
Interest in covenants in recent years has principally arisen in a negative way – how to get rid of them. Covenants are essentially private town planning instruments and the nature of modern society has been to transfer the role of town planning from the private to the public domain. Hence there is a tension between the private proprietary rights created by the recognition of the proprietary nature of covenants and the ambitions of town planners who seek to create a modern, integrated metropolis utilising existing infrastructure.
This tension leads to mini-battles on street corners between pro-development forces and their opposition, who are intent on preserving the essentially anti-development nature of private covenants.
Greenwood v Burrows (1992) V ConvR 54-444 is generally regarded as the starting point for any analysis of the extent of proprietary protection for covenants in Victoria. That case concerned an application for removal or variation of a covenant pursuant to s 84 Property Law Act 1958 (Vic.) and it is fair to say the case adopted a pro-covenant standpoint and established a high threshold for any applicant seeking removal or variation. This view prevailed until Stanhill P/L v Jackson [2005] VSC 169, when Morris J. signalled a change in attitude. This new approach adopted a pro-planning policy, with recognition that individual proprietary rights might need to be subject to the greater good that was to be achieved by the implementation of an overarching planning policy. However the joy of the pro-planners was short lived as Fraser & Ors v Di Paolo & Anor [2008] VSC 117 and Vrakas v Registrar of Titles [2008] VSC 281 returned to the hardline proprietary rights approach and rejected removal or variation applications.
However, the worm may have turned again, or at least popped its head above the ground. Koller v Rice [2011] VSC 346 is a judgment of Dixon J. that permits the variation of a ‘single dwelling’ covenant to allow for a second dwelling. Single dwelling covenants are probably the most common covenant that is the subject of these applications to remove or vary, as that covenant strikes at the fundamental public planning aspiration of developments that seek to utilise existing infrastructure. By definition, if one dwelling already exists on the land such as to bring into play the operation of the covenant, then the land has the benefit of infrastructure and ought to be further developed.
Dixon J., whilst recognising the proprietary nature of the covenant, also noted:
The State Planning Policy framework encourages development within the existing urban fabric to take full advantage of transport facilities, infrastructure and community facilities.
After an analysis of the recent cases and an adoption of the principles set out in Vrakas (which had refused the application), Dixon J. concluded that this was a suitable case to allow for a dual occupancy development on a site that had been intended to be limited to a single dwelling, notwithstanding the objection of an adjoining neighbour.
Two facts of this case can be seen to strongly favour the variation:
- the proposal was a simple increase from one dwelling to two;
- it was a corner block and thus lent itself to separate entry for the second dwelling.
Whether the case signals a revival for the pro-planners or simply another false dawn remains to be seen.
Tip Box
Whilst written for Victoria this article has interest and relevance for practitioners in all states.