Developers, whether they be professionals or mum and dad investors looking to develop a single block, may come up against a restrictive covenant which limits what can be done with land which is in all other respects ripe for a multi-dwelling development.



Restrictive covenants on land titles are used to control land use and development.  Among the most common covenants are 'single dwelling' covenants that prohibit the building of more than one dwelling on a parcel of land.



Restrictive covenants 'run with the land', therefore when the burdened land is sold, the new owners are bound by the covenant.



The land owners who benefit from a restrictive covenant are responsible for enforcing it, not local councils.



According to the Victoria Government's planning department, 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.



KR Peters Director Peter Nicolls says covenants can be tricky and expensive to remove.



He says there are three possible ways to remove a covenant.



"The first way is by agreement with the owners who benefit from the covenant.  To pursue this method the developer would need to do research by checking old titles to see who benefits," Mr Nicolls explained.



"The second way is by order of the Supreme Court. Identifying when the covenant was imposed on the land and looking at previous cases in the surrounding area will enable you to gauge how the court would order the removal of the covenant."



While the Supreme Court does hear many covenant applications, many developers find the method prohibitively expensive.



The third way, explained Mr Nicolls, is by the council granting a planning permit to remove the covenant as part of the development planning process.



Anyone can apply for a planning permit to remove to 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.



"If there are similar developments in the street this sets a precedent for multiple dwellings on a lot. Looking at the planning certificate will indicate if there are other unit developments that have taken place nearby," Mr Nicolls explained.



Mr Nicolls advises discussing the proposed application with the responsible authority before submitting it. Planning officers can provide advice about the kinds of supporting documents and information needed for the best chance of a successful outcome.



For further information and advice on covenants you can contact Peter Nicolls on 0418 311 048.