A restrictive covenant is a private agreement between land owners that restricts the way land can be used and developed.
If you apply for a Planning Permit or amendment that breaches a restrictive covenant on your property, we will not approve your application.
Restrictive covenants are common when an owner subdivides land and wants to restrict its use. For example:
- only allowing one property to be built on the land
- specifying what materials can be used to build a property
- not allowing the land to be used as a quarry.
We are not responsible for applying restrictive covenants. This is done by land owners who benefit from the covenant, usually through the Supreme Court.
To find out if your property is affected by a restrictive covenant, get the Certificate of Title from the Landata website.
How to remove or amend a restrictive covenant
There are 3 ways to remove or amend a restrictive covenant:
- apply for a Planning Permit with us
- request to amend the Boroondara Planning Scheme
- apply to the Supreme Court of Victoria.
We recommend you get legal advice to find out which, if any, of these approaches are suitable.
Find out about amending the Boroondara Planning Scheme.
Use a Planning Permit
You can remove or amend a restrictive covenant through a Planning Permit.
You need to provide a copy of:
- the original parent title and the transfer dates of each lot from this title
- the plan of subdivision
- the title and instrument of transfer that applies to the covenant
- all current titles and lots that benefit from the covenant (less than 3 months old)
- a written statement about the reason for removing or amending the covenant, and if it will have a negative impact on the surrounding area.
Examples of negative impact include:
- removing a covenant that only allows one property to be built on the land would change the character of the area
- changing a covenant that only allows tiles to be used as roof material would change the appearance of the area.
You must also provide a letter from a property law professional, such as a solicitor. The letter must:
- confirm the covenant exists
- indicate the land and land owners that benefit from the covenant.
Visit our Planning Permit applications page.
Notice of the permit application must be given to all owners and occupiers of the benefitting land. A sign must be placed on the land and a notice published in the local newspaper or equivalent.
How we assess your application
When we assess your Planning Permit application, we consider how it will impact the land owners who benefit from the covenant (benefitting land owners).
If the restrictive covenant was created after 25 June 1991, we will grant the permit if the benefitting land owner is unlikely to suffer:
- financial loss, loss of amenity (for example loss of facilities or quality of life) or loss from changing the character of the neighbourhood.
- any other material detriment.
Material detriment is when the use or enjoyment of land is negatively affected.
If the restrictive covenant was created before 25 June 1991, we will grant the permit if:
- the benefitting land owner is unlikely to suffer detriment of any kind, including perceived detriment
- any objections made by the benefitting land owner are unreasonable or not valid.
We generally will not grant the permit if the benefitting owner either:
- makes a valid objection
- may suffer material detriment.
Our Single Dwelling Covenant Policy helps us decide whether to remove a single dwelling restrictive covenant.
Download Single Dwelling Covenant Policy
More information
For more information contact us at [email protected] or on (03) 9278 4888.