Amending or Ending a Section 173

A Section 173 Agreement is a legal contract made between Council and another party or parties under Section 173 of the Planning and Environment Act 1987.

A landowner is normally the other party to the Agreement, while in some cases a third party, such as a referral authority, may also be involved.

An agreement provides for continuous restrictions or on-going requirements on the use or development of the land.

Section 177 and Section 178 of the Planning and Environment Act 1987 set out circumstances in which agreements may be ended or amended.

One such method is by obtaining the written consent and agreement of all parties to the agreement. However, this can take time and may be impossible to achieve if there is opposition to the proposal or many parties are involved.

In these cases, you can apply to Council to amend or end a Section 173 Agreement and have it removed from the land title. The process for applying to amend or end an agreement is explained in the relevant question below.

Depending on the complexity of the Agreement, the amending / ending proposal will be dealt with by Council officers, and may be referred to Council’s solicitors if required.

A statutory fee applies to an application to consider a proposal to amend or end a Section 173 agreement.

Please consult the following website for information on the fees relevant to your proposal - Planning and Subdivision Fees - See table 4 - Regulation 16.

If Council’s solicitors are required to be consulted, you will be responsible for covering any such costs additional to the application fee - you will be provided with an estimate of costs prior to any review being undertaken.

1. An Amending / Ending Section 173 Agreement Application Form is submitted to Council along with the required supporting documentation and a statutory fee.
   
2. The application is considered by Council officers who conduct referrals as required.
   
3. The applicant and owner are notified by Council officers as to whether Council agrees ‘in principle’ to the proposal.
   
4. If Council decides that it does not agree 'in principle' to a proposal to amend or end an agreement, the matter will not proceed, and the agreement will remain in place unchanged.
   
   The applicant does not have the ability to apply to the Tribunal to review this decision.
   
5. If Council does agree ‘in principle’ to a proposal to amend or end an agreement, the proposal must be advertised to all parties to the agreement and any other persons to whom Council considers the decision to amend or end the agreement may cause material detriment.
   
6. This advertising process will commence within 21 days of Council giving notice to the applicant that it agrees ‘in principle’ to the proposal and lasts for a period of at least 14 days.
   
7. Advertising may include placing a sign on the land concerned, publishing a notice in newspapers generally circulating the area, giving notice personally or by post, or any other way considered appropriate.
   
8. If an objection or submission is lodged during the advertising period, Council will give notice of its decision on the application to both the applicant and each other person that made an objection or submission.
   
   If no objection or submission is lodged, Council will give notice of its decision to the applicant only.
   
9. Council’s decision on the application may be any of the following:
   1. amend or end the agreement in accordance with the proposal;
   2. to amend or end the agreement in a manner that is not substantially different to the proposal;
   3. to amend or end the agreement in a manner that is substantially different to the proposal (will require notice of the revised proposal as if it were a new proposal); or
   4. to refuse to end or amend the agreement
10. If Council decides to amend or end an agreement, it will not proceed to implement any changes until:
    1. At least 21 days after the giving of notice of its decision to amend or end an agreement: or
    2. Where an application for review has been made within the 21 days, until the matter has been determined by the Tribunal.
11. It is the applicant’s responsibility to take the required documentation to the Land Titles Office for registration and to ensure that the agreement is registered in a timely manner.
    
    Any change or ending of a Section 173 Agreement must be registered on the title to the land to which it applies, in accordance with the requirements of the Planning and Environment Act 1987.
    
    This ensures that all future land owners are aware of, and bound by, the requirements of the Section 173 Agreement.
    
    Any costs associated with the registration of the agreement are entirely the responsibility of the applicant.
    
12. Once the Section 173 has been registered at the Land Titles Office, the applicant is required to send Council a copy of the Land Use Victoria Lodgement Report confirming the registration.

For more information or to discuss your planning application, contact our Planning team on 1300 BCOAST (226 278) or (03) 5671 2211