The 100-year-old planning law that stopped this family building a home for their son

Sydney Morning Herald

09-06-2025

When the Venkatesh Kumar family's application was debated at a meeting of the Cardinia Shire Council last week, councillors took less than 10 minutes to reject it unanimously. Councillors who spoke argued the covenant was an asset that protected the area from overdevelopment and excessive traffic.
Councillor Trudi Paton said changing the covenant to allow for a second dwelling on the property 'would cause harm both to the aesthetic character of the neighbourhood and to the property values of adjoining owners'.
She noted that while the application received just three objections, which would not normally meet the threshold for refusal, the covenant gave those objections more weight.
'I drove around the neighbourhood, I looked at this particular property, I saw all of the cream Colorbond fences that clearly marked that this was a special area,' Paton said.
'There was a unity to the style of dwellings and the spaces between them. So clearly most of the people who have bought into this area have bought it for the aesthetic and the benefits that it provides.'
A council officers' report noted objections were made on the basis that lifting the covenant would affect neighbourhood character, increase demand for on-street parking, lower property values, and involve the removal of habitat in the family's mostly treeless backyard.
Venkatesh Kumar Govinda Raju said he knew his home had a covenant when he bought it, but did not believe it was inviolable, given two other properties in the same estate have previously been subdivided and developed into multiple units.
He fears that his apprentice son and the son's partner will be priced out of Pakenham in their search for a home.
'There is a crisis in Melbourne, so I don't understand why the council is not giving me permission,' he said.
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The council's general manager of community and planning services, Debbie Tyson, said numerous properties within the shire were subject to restrictive covenants, sometimes imposed through the planning process but often by developers and landowners under the Transfer of Land Act 1958.
Tyson said the two properties in the estate that have been subdivided were not subject to the covenant.
Planning reforms legislated in November 2023 to make it easier to build small second dwellings, or backyard 'granny flats' by removing the need for a planning permit did not include restrictive covenants.
'State and local governments do not create or enforce restrictive covenants. This is done by owners of the land who benefit from the covenant,' a government guide for home owners who want to build a small second dwelling states.
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An Allan government spokesperson said the state's Planning and Environment Act – which sets the rules for housing development – was being rewritten this year to make it easier to build more homes, but did not address whether the reforms would seek to overturn Melbourne's many restrictive covenants.
'We know we need to make it easier to get more homes built across the state – that's exactly why we're completely rewriting the planning act, so good homes aren't blocked by red tape,' the spokesperson said.
'We're also reviewing how we can make it easier, faster and cheaper for Victorians to divide their blocks and build more homes.'
Townsend said it would be 'very easy' for the government to change the laws and make it easier for home owners to remove covenants when they modify the planning and environment act.
Venkatesh Kumar said he was considering appealing the council's refusal through the Supreme Court.
'It's going to be expensive, but not as expensive as, you know, buying land for $440,000,' he said. 'I've already spent $15,000 for the council to get the covenant removed. It didn't succeed, but I am a guy with hopes, I will be moving forward to my goal.'