A restrictive covenant is a private treaty or written agreement between landowners that limits the way land can be used and developed.

It is most commonly applied when an owner subdivides land for sale and wishes to apply restrictions on the use and development of the lots, for example:

  • 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

State and local Governments do not create or enforce restrictive covenants. This is done by owners of the land who benefit from the covenant, usually through the Supreme Court.

The planning system is only involved if there’s an application to remove or vary a covenant.

Find out if a restrictive covenant affects your property

To determine whether your property is affected by a restrictive covenant, contact Land Use Victoria. The existence of a restrictive covenant is recorded on the Certificate of Title for the land.

Contact Land Use Victoria (Land Titles Office) to:

  • get a copy of a covenant
  • register a covenant
  • lodge a change to a covenant
  • find out the beneficiaries of a covenant
  • make a process enquiry for removing a covenant from title (once one of the three processes listed below for removing or varying a covenant is finalised).

Where can I get advice on a specific covenant?

You should seek independent legal advice from a solicitor or property law professional experienced in these matters. If you do not know of one the Law Institute of Victoria has a find a lawyer service.

How can I vary or remove a restrictive covenant?

There are three ways to remove a covenant from title. They are:

  • apply to the Supreme Court of Victoria
  • apply for a planning permit to remove or vary the restrictive covenant, or
  • request to amend the planning scheme

Different considerations apply to the planning process depending on when the restrictive covenant was applied. Contact your local council for advice about the planning options for removing a covenant.

More information about each option is provided below.

The Supreme Court website would have details on the process: A Guide to Practitioners - Applications for the Modification or Discharge of Restrictive Covenants | The Supreme Court of Victoria.

Section 84 of the Transfer of Land 1958 sets out the tests for considering the amendment or removal of a restrictive covenant at the Supreme Court.

The Supreme Court has information on its website that can assist. Visit the Supreme Court website

Anyone can apply for a planning permit to remove or vary a registered restrictive covenant. The application must be:

  • signed by the owner of the land, or
  • accompanied by a declaration that you’ve notified the owner about the application.

Make the application to the responsible authority (see below). You must include a copy of the restrictive covenant and information clearly identifying each lot benefited by the restrictive covenant (refer to section 47(1) of the Act).

You should discuss your proposed application with the responsible authority before you finalise and submit it. They can provide advice about the kinds of supporting information you need to submit with the application.

Responsible authority

The planning scheme will set out who is the responsible authority. Usually, the local council is the responsible authority, but sometimes it will be the Minister for Planning or some other person or authority.

Refer to the schedule to clause 72.01 of your planning scheme to identify the responsible authority.

Notice of an application

Notice of an application to remove or vary a restrictive covenant must be:

  • given to all owners and occupiers of land who benefit from the restrictive covenant (subject to some conditions set out in section 47(2) of the Act)
  • placed on the site subject to the application, and
  • published in the local newspaper.

People can object to your application. More weight is given to objections from owners of land benefited by the covenant.

Special requirements for granting a permit

A responsible authority must consider certain matters under the Planning and Environment Act 1987 in considering whether it should issue a planning permit to vary or remove a restrictive covenant. The matters that must be considered are set out in sections 60(2) and (5) of the Act.

Section 60(2) applies to restrictive covenants created on or after 25 June 1991: a planning permit can’t be granted to remove or vary a registered restrictive covenant unless the responsible authority is satisfied that any benefiting landowner will be unlikely to suffer material detriment, including financial loss or loss of amenity.

Section 60(5) applies to restrictive covenants created before 25 June 1991: a planning permit can’t be granted to remove or vary a restrictive covenant if a benefiting owner has objected, or if there is any chance that a benefiting owner may suffer detriment of any kind (even if that benefiting owner did not object). This test is very stringent and it may be difficult to prove that there would be no detriment.

Review

If the responsible authority refuses to grant your planning permit, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.

If the responsible authority decides to grant a permit, and a person has objected to the proposal, the objector can apply to VCAT for a review of the decision.

Application assessment

The rules in the Act for regular permit applications also apply to applications to remove or vary a restrictive covenant.
This means that:

  • the responsible authority must consider what detriment would be caused to a benefiting landowner by the removal or variation, and
  • the limitations on the granting of a permit set out in section 61(4) of the Act apply to an application for removal or variation.

You’ll need to request an amendment to the schedule to Clause 52.02 of the planning scheme.

Anybody can request a planning scheme amendment, but the amendment must be prepared by a planning authority (usually the council) with the approval of the Minister for Planning. The planning authority is not obliged to prepare an amendment even if requested to and there is no appeal right. This applies to any planning scheme amendment request.

The planning authority must give notice to all owners and occupiers of land benefited by the restrictive covenant, and it must consider all submissions. If the planning authority doesn’t agree to a change that has been requested, the submission will be referred to an independent planning panel.

Planning scheme amendments usually affect a large area and require a range of strategic matters to be considered. This method isn’t usually used to remove covenants on individual lots at the request of the owner, unless other changes to the planning scheme (such as a rezoning of the land) are also proposed.

Covenants are complex

Covenants can be hard to understand as they often use legal words and unfamiliar jargon.

Even covenants that look similar might use slightly different words, resulting in different restrictions on the use or development of the land. As an example, a covenant may only allow a dwelling while another only allows one dwelling.  They may look like they provide for the same thing but they do not.  Each covenant needs to be individually interpreted.

What does burdened land or benefited land mean?

For the purposes of a restrictive covenant, land that is burden by the covenant means that the restrictions specified in the covenant apply to them and benefited land means that the land gets the benefit of the covenant.  Owners of land benefited by the covenant are the only people able to enforce the covenant.

Covenants can vary

Sometimes only one lot is burdened and one lot benefits (see Overview for definition); other times many lots are burdened and many lots benefit.

In new housing estates it‘s common for the subdivider to place a restriction on each lot in the estate so that all or many of the lot owners benefit from the covenant and can enforce it on each other.

Identifying the benefiting land can take time

A registered restrictive covenant is recorded on the title of the burdened land but is not recorded on the title of benefiting land.

If the benefited land has been subdivided and re-subdivided, you might need to search the original plan of the subdivision and earlier titles to identify the benefited owners.

Selling burdened land

Registered restrictive covenants run with the land: when the burdened land is sold, the new owner(s) are bound by the covenant.

Section 32C of the Sale of Land Act 1962 requires details of restrictive covenants to be included in a section 32 statement.

Lapse date

Some restrictive covenants have a lapse date, or a date when they end.

Most don’t. That means the restrictions apply to the land even if it’s sold multiple times; the covenant will remain on title until it is removed.

Enforcement

The landowners who benefit from a restrictive covenant are the only people who are able to enforce a restrictive covenant.

Neither councils nor the government is responsible for the enforcement of covenants.

Special rules for planning applications where a covenant applies

If you’re applying for a planning permit but the land is subject to a restrictive covenant, special rules apply.

You won’t be granted a planning permit for something that would result in a breach of a registered restrictive covenant unless a planning permit is also granted to remove or vary the covenant (Section 61(4) of the Act).

For example: a planning permit to erect a three-metre-high fence can’t be issued if there’s a covenant restricting fences on the property to two metres in height. A planning permit for a three-metre-high fence can only be granted if:

  • the covenant is removed or varied first to allow a three-metre-high fence, or
  • an application to remove or vary the covenant is submitted (and granted) at the same time as the planning permit.

Section 61(4) is designed to:

  • stop planning permits being granted for use or development in isolation from the need to remove or vary the covenant
  • avoid the need for affected landowners to respond to separate applications
  • stop projects proceeding in breach of a covenant in the mistaken belief that a planning permit for the use or development authorised the breach.

There is no point making an application for a planning permit to do something that would result in a breach of a registered restrictive covenant as a responsible authority is barred from issuing a planning permit in such a case unless a permit has been issued or other permission given to remove or vary the covenant. If there is any doubt or disagreement about whether a proposal would breach a covenant, you should seek independent legal advice.

Other agreements

An agreement made under section 173 of the Planning and Environment Act 1987 usually as part of a planning permit process, which may be registered on title and restricts the way land is used or developed, is not a registered restrictive covenant. The above information doesn’t apply to these agreements.  Division 2 of Part 8 of the Planning and Environment Act 1987 provides the process for section 173 agreements.

For information about section 173 agreements refer to Chapter 8 of Using Victoria's Planning System. These agreements are a statutory instrument which can be enforced by the responsible authority (usually the council), or through Victorian Civil and Administrative Tribunal (VCAT).


More information

Page last updated: 28/06/22