A restrictive covenant is a private agreement between land owners that restricts the way land may be used and developed.
A restrictive covenant is most commonly applied when an owner subdivides land for sale and wishes to apply some restrictions on the use and the development of the lots, for example:
- prohibiting the use of the land for a quarrying operation
- restricting construction on the land to one dwelling
- stipulating materials from which a dwelling on the land must be constructed.
Council is not responsible for enforcing restrictive covenants. This is done by those owners of land who benefit from the covenant, usually through the Supreme Court.
Find out if a restrictive covenant affects your property
To determine whether your property is affected by a restrictive covenant, contact the Land Titles Office at the Department of Environment, Land, Water and Planning. The existence of a restrictive covenant is recorded on the Certificate of Title for the land.
Impact of restrictive covenants on planning
If your property is affected by a restrictive covenant and you apply for a Planning Permit or amendment that breaches the covenant, Council (the responsibly authority) will not approve the application.
There are 3 ways to remove or vary a restrictive covenant:
- apply to the Supreme Court of Victoria
- request to amend the planning scheme, or
- apply for a Planning Permit relating to the covenant.
You should obtain legal advice to determine whether any of the methods for removing the covenant are appropriate.
Applying for a permit to remove or vary a restrictive covenant
If you have been advised to apply for a permit to remove a restrictive covenant, you must provide a letter from a suitably qualified professional in the field of property law (such as a solicitor). The letter must confirm the existence of the covenant and indicates which other land and landowners have the benefit of the covenant.
You must also supply:
- A copy of the original Parent Title from which all the land in the subdivision was created and the dates of transfer of each lot from this title.
- A copy of the original Plan of Subdivision.
- A copy of the Title and Instrument of Transfer in which the covenant was created for the subject site.
- Copies of all current titles and lots which benefit from the covenant. These title searches must be less than 3 months' old.
- A written statement outlining the reason for the removal or variation of the covenant and whether the removal or variation is likely to have a detrimental impact on the surrounding area.
Notifying the beneficiaries of the restrictive covenant
When assessing an application to remove or vary a restrictive covenant, Council considers how the proposal impacts the owners of land who benefit from the covenant.
Council must give notice of the application to the owners and occupiers of the benefitting land. A sign is placed on the land and a notice is published in a newspaper circulated in the area.
Determining the results of the application
Where applicable, Council refers to the Single Dwelling Covenant Policy (PDF, 364 KB) to help determine whether to remove a restrictive covenant.
If the restrictive covenant was created after 25 June 1991, Council will only grant the permit if:
- the owner of benefitting land is unlikely to suffer financial loss, loss of amenity or loss arising from change to the character of the neighbourhood
- the owner of the benefitting land is unlikely to suffer any other material detriment.
If the restrictive covenant was created before 25 June 1991, Council will only grant the permit if:
- the owner of benefitting land is unlikely to suffer detriment of any kind (including perceived detriment), and
- any objections made by the benefitting owner are vexatious or in bad faith.
However, if a benefitting owner makes a bona fide objection to the granting of the permit or may suffer detriment, Council generally will not grant the permit.
For more information or help, contact our Statutory Planning team on 9278 4888 or email Statutory Planning.