Restrictive Covenant

Have you ever heard of a restrictive covenant?
I’m sure you have — we’ve probably written about them before. If we haven’t, or if you haven’t read about them (tut tut) let’s quickly define them.

A restrictive covenant is a private treaty or written agreement between land owners that limits the way land can be used and developed. The planning system is only involved if there is an application to remove or vary a covenant, councils and government don’t create or enforce them { www.planning.vic.gov.au }.

More or less these agreements make sure that there are restrictions or guidelines over how land can be developed or used. The main type of restrictive covenant is a “neighbourhood” covenant. This is put in place to protect the “character” of a neighbourhood or to set out a general direction of how they would like the community to be developed. It is also important to state that these covenants are not tied to the people entered into the covenant they are tied to the land itself. So if one of these restrictive covenants is limiting you and the way you might want to develop your property, you might be wondering — can you remove them?

Yes, yes you can. You can also vary them as well to fit your requirements, and there are three main ways to do so.

1. Applying to the Supreme Court;
2. Making an application to amending the planning scheme; or
3. Applying for a planning permit.

As the name suggests, applying to the Supreme Court is a heavily legal process. If you wish to follow that process we recommend you immediately contact us here at Wollerman Shacklock to get some professional legal advice before going ahead. If you were to pick option two, you’d best strap yourself in for a long ride. You will need the help of professionals and multiple documents to justify removing or changing the covenant. This is usually the process for large lots of a land, not individual lots. That leaves the planning permit process. Via this process you can apply to either remove or vary the covenant. You apply by lodging a planning application form, a copy of your title and covenant and pay a fee to the local council.

Once the process has begun, there is an opportunity for others to object. If any objections are received this increases the likelihood that your application will be refused. Because the covenant is for more than one person, the council will consider any objections as evidence that there will be a downside to removing or trying the covenant. If it is removed you can then apply to the Victorian Civil and Administrate Tribunal to vary or remove the covenant and the objectors can state their case.

If you would like any help varying or removing a restrictive covenant contact us at Wollerman Shacklock via admin@wslegal.com.au or give us a call on 9707 1155.

Sources: changeofplan.com.au | planning.vic.gov.au