What To Consider When Removing A Covenant
Restrictive covenants “run with the land”. This means the effects of the covenant are related to the land itself – not to the owner of that land, and thus it binds subsequent owners. The covenants impose a broad range of restrictions as to the use of land, the most significant being a single dwelling restriction, the size and value of the dwelling, and whether it can be used for residential or other purposes.
Since the Planning and Environment Act 1987 was amended to prohibit planning permits that would result in the breach of a restrictive covenant, the number of applications to modify or remove restrictive covenants has increased exponentially. So, if there is a covenant on your land title, you must vary or remove it before your planning permit proposal can be considered.
If you are looking to remove a restrictive covenant on your property or would like to learn more about removing one in case you happen to purchase land with a covenant, here are a few things you need to consider before discharging a restrictive covenant.
The Language Of A Covenant
Removing a restrictive covenant from your land title may not be as straightforward as you think. Covenants are often described using legal words and unfamiliar jargon, making it difficult for laymen to understand and interpret them accurately.
Although a sentence might look similar in a covenant, the use of slightly different words will result in different restrictions on the use or development of the land. For example, “a dwelling” and “one dwelling” may seem like they mean the same thing, but they do not.
If wrongly interpreted, your planning permit approval can be rejected. Hence, it is best to engage an experienced land surveyor in Melbourne to ensure you get professional assistance in identifying and interpreting the restrictive covenant on your land title accurately.
What Is Burdened Land Vs Benefitting Land?
There are two ways restrictive covenants affect land:
- Burdened land – The land over which the covenant’s restrictions are imposed.
- Benefitting land – The property gets the benefit of the covenant.
Sometimes only one lot on your land is burdened, and the other benefits; other times, many lots are burdened, and vice versa. It is common for a subdivider to restrict each lot in a new housing estate to ensure all the lot owners benefit from the covenant and can enforce it on each other.
Hence, it is recommended that you discuss with your land surveyor the possibility of a burdened or benefitting land and what you should do about it before considering removing the covenant entirely.
Identifying The Benefiting Land Can Take Time
Owners of the land that benefit from the allotments specified in the covenant are the only people able to enforce the covenant. Identifying a benefitting land can take time – you must carefully consider the wording used in the original document. And as mentioned, the wording and language used to describe a covenant can be complex and confusing.
On top of that, a registered restrictive covenant is recorded on the title of the burdened land but is not recorded on the land title of benefiting land. So, 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.
This process can be heavily time-consuming. So, it is best to consider your project’s schedule and speak with your land surveyor on the best way to move forward – to identify the benefiting land or remove the covenant entirely.
Using A Planning Permit To Remove A Restrictive Covenant
Removing or varying a restrictive covenant by applying for a planning permit is not an easy process. You will be required to fill out a form and submit supporting documentation, including a recent copy of your land title and covenant and a fee to your local council.
As the purpose of a covenant is to control or restrict something for the neighbour’s benefit, your request will then be advertised to notify your neighbours and other interested parties. This will typically include letters sent to the parties affected by your application, a sign erected on the site, and a public notice published in the local newspaper. If any objections are received, your application may be refused.
In addition, the council will consider if there will be a detriment of any kind, including financial loss or loss of amenity, with the removal or variation of the covenant depending on its age. The burden of demonstrating no detriment is high, and this test will be more stringent than the usual planning applications.
Even if no objections are received, the council can still decide that the potential for detriment still exists and therefore refuse it – many covenant removal applications do not get approved for this reason. Hence, it is imperative that you seek assistance from an experienced land surveyor on which method is best to remove or vary a covenant based on your situation.
Engage Expert Assistance
Once again, planning legislation is complex and can be a labyrinth to unravel. It is best to check with experienced professionals familiar with the law and local council guidelines regarding your land title and covenants. They can guide you on the right steps to remove it effectively and efficiently. The right land surveyors will also offer VCAT representation services to help you appeal your refused application at the Victorian Civil and Administrative Tribunal (VCAT) to assist you in receiving a favourable outcome.