Victorian Consolidated Legislation

Property Law Act 1958 - SECT 84

Power for Court to modify etc. restrictive covenants affecting land

84. Power for Court to modify etc. restrictive covenants affecting land



(1) The Court shall have power from time to time on the application of any
person interested in any land affected by any restriction arising under
covenant or otherwise as to the user thereof or the building thereon by order
wholly or partially to discharge or modify any such restriction (subject or
not to the payment by the applicant of compensation to any person suffering
loss in consequence of the order) upon being satisfied-

   (a)  that by reason of changes in the character of the property or the
        neighbourhood or other circumstances of the case which the Court deems
        material the restriction ought to be deemed obsolete or that the
        continued existence thereof would impede the reasonable user of the
        land without securing practical benefits to other persons or (as the
        case may be) would unless modified so impede such user; or

   (b)  that the persons of full age and capacity for the time being or from
        time to time entitled to the benefit of the restriction whether in
        respect of estates in fee-simple or any lesser estates or interests in
        the property to which the benefit of the restriction is annexed have
        agreed either expressly or by implication by their acts or omissions
        to the same being discharged or modified; or

   (c)  that the proposed discharge or modification will not substantially
        injure the persons entitled to the benefit of the restriction:

Provided that no compensation shall be payable in respect of the discharge or
modification of a restriction by reason of any advantage thereby accruing to
the owner of the land affected by the restriction unless the person entitled
to the benefit of the restriction also suffers loss in consequence of the
discharge or modification nor shall any compensation be payable in excess of
such loss; but this provision shall not affect any right to compensation where
the person claiming the compensation proves that by reason of the imposition
of the restriction the amount of consideration paid for the acquisition of the
land was reduced.

(2) The Court shall have power on the application of any person interested-

   (a)  to declare whether or not in any particular case any land is affected
        by a restriction imposed by any instrument; or

   (b)  to declare what upon the true construction of any instrument
        purporting to impose a restriction is the nature and extent of the
        restriction thereby imposed and whether the same is enforceable and if
        so by whom.

(3) The Court may before making any order under this section direct such
inquiries (if any) to be made of any local authority or such notices (if any)
whether by way of advertisement or otherwise to be given to such of the
persons who appear to be entitled to the benefit of the restriction intended
to be discharged, modified or dealt with as, having regard to any inquiries,
notices or other proceedings previously made given or taken the Court thinks
fit.

(4) Any order made under this section shall be binding on all persons whether
ascertained or of full age or capacity or not then entitled or thereafter
capable of becoming entitled to the benefit of any restriction which is
thereby discharged, modified or dealt with and whether such persons are
parties to the proceedings or have been served with notice or not.

(5) An order may be made under this section notwithstanding that any
instrument which is alleged to impose the restriction intended to be
discharged, modified or dealt with has not been produced to the Court, and the
Court may act on any evidence of such instrument as it thinks fit.

(6) This section shall apply to restrictions whether subsisting on the
thirty-first day of December One thousand nine hundred and eighteen, or
imposed thereafter and whether the land affected thereby is registered or not,
and in the case of registered land the registrar shall if the restriction has
been noted on the register give effect on the register to the order when
made24.