Councillor Bernadene Voss followed up Lloyd Bunting’s concerns that covenant holders’ rights could be at risk if Council amended the Planning Scheme for Waterfront Place Port Melbourne. Councillor Voss has passed on the following assurance from Council:
“6(2)(g) (Planning and Environment Act) allows a planning scheme (through an amendment) to direct the creation, removal or modification to a covenant.
However, Council has chosen not use this this provision and the amendment
about to be exhibited will not impact on the covenant.“
Council website statement on covenants
As of today the City of Port Melbourne website [Link] carries the following statement on covenants burdening Waterfront Place Port Melbourne:
What is the covenant?
“The covenant is a private legal agreement between registered landowners to restrict the use or development of land for the benefit of other land that is part of the covenant. Covenants operate separately to controls contained in planning schemes.
Restrictive covenants affect the privately owned land at 1-7 Waterfront Place. Mirvac placed restrictive covenants over the lots at 1-7 Waterfront Place as part of the Beacon Cove Estate development.
The covenants burdening 1-7 Waterfront Place state that development of the site may only occur “in accordance with the plans and specifications prepared by Henry Pollack and Associates Architects Pty Ltd lodged within the City of Port Phillip”. The Henry Pollack and Associates Architects’ plans (the Pollack plans) are the original building plans that were used for the current buildings on the site.
Under the covenant Mirvac, as the arbiter of the covenant, is the only party that may approve a development or use which differs from the covenant.”
Application to remove or vary the covenants
“Council was given notice on 16 April that VCAT has received an Application for Review under S79 of the Planning and Environment Act 1987 in relation to the covenant application (No. 1078/2012). This is an appeal against failure to decide the application within 60 statutory days. No date has been set for the hearing.
At the Statutory Planning Committee Meeting on 16 April Council resolved to advise VCAT that, had it made a decision within the statutory timeframe, it would have issued a Notice of Refusal on the following grounds:
1. The application does not satisfy the tests for the variation of a restriction as set out at Section 60(2) of the Planning and Environment Act 1987, as Council cannot be satisfied that an owner of land benefited by the restriction will not suffer any financial loss, loss of amenity or loss arising from a change to the character of the neighbourhood or any other material detriment as a consequence of the removal or variation of the restrictions as proposed.
2. The application for the removal or variation of the covenants in the manner proposed is premature until appropriate planning provisions for the future of this site are determined by the City of Port Phillip and approved by the Minister.
Council will engage appropriate legal representation for the hearing.”