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Removing or varying a Covenants or Restriction on title

What is a restrictive covenant?

A restrictive covenant is a private written agreement between landowners to restrict the use or development of land for the benefit of other land.

They are commonly applied when a developer subdivides land for sale and wishes to apply some restrictions on the use and development of the lots to benefit or protect other land. Some examples of covenants include the requirement that:

  • No more than one dwelling be constructed on the land.
  • No quarrying on the land.
  • Any dwelling on the land must be constructed from brick.

If your proposed development breaches a covenant, Council is prohibited from issuing a planning permit.

You will need to seek your own independent legal advice to explore varying or removing the covenant.

How do I get a copy of a covenant?

Council does not maintain a registry or record of covenants.

The existence of a restrictive covenant is recorded on the Certificate of Title for the land.

To determine whether your property is affected by a restrictive covenant, please visit Landata and select ‘Titles & property certificates’ and request an electronic copy to be emailed to you.

If you have any trouble navigating the website or obtaining a covenant please e-mail or call 9102 0402.

Can you help me interpret my covenant?

Covenants can be difficult to understand due to the legal terminology used and various case law.

You are therefore advised to engage your own independent legal advice to interpret a covenant.

Even covenants which appear similar may use slightly different words, resulting in different restrictions on the use or development of the land.

Each covenant should be individually interpreted, meaning a Lawyer can be helpful.

How do I remove or vary a covenant?

The most common methods of removing or varying a covenant includes:

  1. Applying for a variation or removal via a planning permit lodged with Bass Coast Shire Council;
  2. Lodging an application through the Supreme Court;

An application through Council will involve advertising to all beneficiaries and an advertisement in the newspaper to ensure that there are no valid objections in the community.

Generally, if a neighbour objects to the issuing of a planning permit to vary or remove a covenant, Council will likely have to refuse your application.

What are the fees for associated with lodging an application to vary or remove a covenant?

Refer to Class 21 of the fee schedule on Council’s website for the applicable fee.

Please be advised, the cost of engaging a Lawyer/Solicitor or a Planning Consultant is likely to be significantly higher and should also be considered.

What do I need to submit to lodge a planning permit application?

Refer to Council’s Checklist on Covenant Removal for more information.

Can't find what you're looking for and would like advice?

For more information or to discuss your planning application, contact our Statutory Planning team by: