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As the Spanish flu pandemic raged and soldiers returned home from World War I, a plot of land in Burke Road, Camberwell, was sold off under strict conditions.
More than a century later, that covenant is at the centre of a legal fight over plans to develop the $4.5 million property in a residential part of Camberwell into a childcare centre for 78 kids.
Restrictions on 508-510 Burke Road since 1919 include that it cannot be used for quarrying, corrugated iron roofs are not permitted, and the owner must not “allow to be erected ... any building other than a private dwelling”.
That last point is at the heart of a VCAT challenge brought by neighbours against the City of Boroondara after the council approved plans for the privately owned site to be turned into a childcare centre, amid a looming shortfall of placements in the area.
Last sold in 2021, the site is within the prized Sunnyside Estate, which contains about 200 homes. The house on it cannot be demolished as its exterior is heritage-protected.
Changes approved by the council include reconfiguring the inside of the building, and installing a double car-stacker and new playground equipment.
Couple Gillian Simonson and Geoff Walker have lived nearby for 40 years and are among neighbours involved in the legal action, which they are vowing to take all the way to the Supreme Court if needed.
Simonson said residents knowingly “paid the price” of buying into the area partly on the basis it would remain residential due to the covenant that affects every home in the estate.
Walker said he was focused on protecting local amenity and fighting to stop a precedent being set for a commercial operation in the pocket, which is about a kilometre from Camberwell Junction.
“If you’re operating a commercial business out of a carcass of a house, you can do the same thing down here,” Walker said, gesturing down a side street. “You could turn it into a hairdresser, a plumber shop or whatever, and that’s what we’re trying to prevent.”
Neighbour Peter Aitken said the covenant prevented any owners from developing their land into apartment blocks, and that he would like to see the property restored as a family home.
He is worried about an increase in traffic along that stretch of Burke Road due to an influx of 70 additional cars at pick-up and drop-off, saying the road already becomes blocked when a tram stops.
“It’s going to be chaotic, I think, at best,” he said.
“We’re not against childcare centres. What we’re against is a childcare centre being built on a block of land where the title specifically precludes that happening.”
The property is about halfway between Camberwell Junction and Toorak Road, and there are four childcare centres within one kilometre. There were 0.67 childcare spots available for every child in Camberwell in 2024, according to a Victoria University study into childcare deserts.
A shortage of 174 spots is forecast for the suburb by 2036, according to Victorian government figures released by Boroondara council. This does not account for any changes in demand due to building enabled through the state’s activity centre plans, which permit developments up to 12 storeys further up Burke Road.
The land in question is in the outer catchment of an activity centre zone which allows construction up to four storeys, although the legal battle is unrelated to these plans.
Before granting approval in February, Boroondara council received more than 100 objections to the proposal to turn the property into a childcare centre.
At a public meeting, Boroondara chief executive Phillip Storer said the council was advised the proposal did not breach the covenant as it did not include plans to construct a new building.
“There is nothing in this application which proposes the erection of a building and that is the reason the legal advice is saying there is no breach of the covenant,” he said in February.
Boroondara Mayor Wes Gault said it was important essential services like childcare had extra capacity to grow as the population of the municipality increased.
“While we acknowledge there is a VCAT process under way, we believe a new childcare centre near the Camberwell activity centre will be an important part of ensuring Boroondara’s growth is delivered in a sustainable way,” Gault said.
Professor Joe Hurley, of RMIT University’s Centre for Urban Research, said authorities usually gave the green light to develop childcare facilities in residential areas, and it was not uncommon for locals to raise concerns about traffic or parking difficulties.
“This is not some kind of pioneer effort to bring childcare centres into residential areas; this is pretty common across the city,” he said.
Hurley said it was unusual to see historical covenants enforced, but he had seen them raised in liquor licensing cases if land was initially meant to be within a dry zone.
The owner of the Burke Road property, Dallas Sather, is not involved in the legal action.
He said the proposal for the site was about adapting, reusing and restoring the heritage building to provide an essential long-term service which local families increasingly needed.
The plans were five years in the making and a number of concepts were explored as “the planning framework evolved”, including once heritage protections were placed on the property.
“Finding a viable long-term future for a heritage building of this scale isn’t straightforward,” he said. “We believe the current proposal strikes the right balance by retaining and restoring an important heritage building while providing an essential community service for local families.”
Access to the childcare centre would be off a side street, and the Department of Transport and Planning has raised no objection to the plans.
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