Restrictive Covenants
A restrictive covenant is a private agreement between land owners which may restrict the way land may be used and developed. A covenant is not administered or enforced by the government or a municipal council.
The Planning and Environment Act 1987 as amended by the Planning and Environment (Restrictive Covenants) Act 2000,sets special requirements about the way that an application for a planning permit or planning permit amendment that authorises anything which would result in the breach of a registered restrictive covenant must be considered.
If land is burdened by a registered restrictive covenant, an applicant for any permit must provide a copy of the covenant (and details of land benefited by the covenant, if required) at the time of making the application.
Additionally, if a proposed permit would allow anything that would breach a registered restrictive covenant, or if the application is to remove or vary a registered restrictive covenant, councils must ensure that notice is given to owners and occupiers of land benefited by the covenant. This would be in addition to the notice to be given as part of the development application. See Giannakis v Glen Eira CC [2002] VCAT 348 (2 May 2002).
If a responsible authority receives an application to vary a registered restrictive covenant, any consideration of the application must be on the basis that there will be no detriment caused by the decision to a benefiting owner even if that benefiting owner did not object. The test provided under section 60(5) of the Act is very stringent and it could be difficult to prove that there would be no detriment. See McFarlene v Greater Dandenong CC & Ors [2002] VCAT 469 (26 June 2002).
An agreement made under section 173 of the Act which is registered on title and therefore becomes a covenant on the land, is not "a restriction within the meaning of the Subdivision Act 1988" and therefore does not come under the definition of "registered restrictive covenant". Therefore the provisions of the Planning and Environment Act applying to registered restrictive covenants are not relevant. See Ur v Wellington SC [2001] VCAT 2453 (23 November 2001) and Van Der Heyden v Mansfield SC [2003] VCAT 102 (22 January 2003).
How can a covenant be removed or varied?
A covenant can be removed or varied:
- If authorised by a permit under the Planning and Environment Act 1987
- If authorised by a provision of a planning scheme or an amendment to a planning scheme under the Planning and Environment Act 1987
Any person proposing to seek variation or removal of a covenant under any of these procedures should obtain their own expert legal advice about options and procedures appropriate to the particular circumstances of the case, before making any commitments or starting any procedures. Likely costs, which may be substantial, should be taken into account before any action is started. Likely costs, which may be substantial, should be taken into account before any action is started.
Who to contact
For more information contact:
The Legislation Team
Phone (03) 9637 9619
Fax (03) 9637 9498
Further information
Advice to Councils (PDF - 25 KB) Advice to applicants and beneficiaries (PDF - 17 KB)Please note: Document(s) on this page are presented in PDF format. If you do not have the Adobe Reader, you can download a copy free from the Adobe web site.