What is a restrictive covenant?
Covenants are designed to limit the use or development of a piece of land (burdened land), for the benefit or protection of other land (benefited land).
These restrictions are customised to the needs of the area and can include things like:
- Limiting development to only one house on a lot
- Control the type of building materials used for new buildings and fences
- Prohibit the use of the land for quarrying operation
When a covenant is recorded on a property's certificate of title it is known as a registered restrictive covenant.
Council is not responsible for enforcing restrictive covenants. This is done by those owners of land who benefit from the covenant, usually though the Supreme Court.
Examples of restrictive covenants can include:
- Building covenants imposed by developers to make sure the owners of lots complete building works within a certain time frame and following specific building requirements (eg: building height, colours, materials and setbacks).
- Covenants on how many dwellings can be built on each lot.
- Covenant to protect neighbourhood character or guide the long term development.
How do I find out if a restrictive covenant is on my property?
To determine whether your property is affected by a restrictive covenant, contact Landata.vic.gov.au. This is recorded on the certificate of title for the land.
What if my property has a restrictive covenant?
If your property is affected by a restrictive covenant and you apply for a planning permit that breaches the covenant, Council (the responsible authority) will not approve the application.
There are 3 ways you can apply 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 to remove or vary the restrictive covenant.
Applying for a planning permit to remove or vary a restrictive covenant
When assessing an application to remove or vary a restrictive covenant, Council must consider 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 benefiting land. A sign is placed on the land and a notice is published in a newspaper circulated in the area.
Please note: If an application to remove or vary the restrictive covenant receives a valid objection from any of the landowners who benefit or are equally burdened by the restrictive covenant, the application may not be approved by the Responsible Authority.