A Restrictive Covenant is an agreement between two parties that restricts the use or enjoyment of land (often referred to as the ‘burdened land’) owned by one of those parties, for the benefit of another party. A Restrictive Covenant is noted on a Certificate of Title for the land.
Although Restrictive Covenants provide a private means of controlling the use of land, in certain circumstances their existence can result in a conflict with the provisions of a local authority’s planning Scheme. For example, a Restrictive Covenant may limit the use of a residential lot to a single dwelling whereas the Local Planning Scheme and the Residential Design Codes may permit the development of two or more dwellings on that lot.
Clause 4.4 of Town Planning Scheme No. 6 (TPS 6) allows the City to grant planning approval for residential development that is inconsistent with a Restrictive Covenant that limits the number of dwellings on the land. Prior to granting such approval, the City is required to advertise the proposal for public comment.
Where landowners wish to apply to Landgate to have a Restrictive Covenant removed from their Certificate of Title, the City can provide a letter confirming an inconsistency between the Restrictive Covenant and the development potential allowed by TPS 6 and the Residential Design Codes.
In requesting such a letter, the landowner is to submit the following:
- A written application, requesting confirmation that an inconsistency exists between the restrictive covenant and the Residential Design Code that applies to the land.
- The application fee for written planning advice.
- A copy of the latest Certificate of Title for the subject land.
- A copy of Restrictive Covenant document (the registration number can be found on the Certificate of Title).
The City will assess this information to confirm whether or not there is an inconsistency between the restrictive covenant and the Residential Design Code applicable to the land. In the case of an inconsistency, the City will issue a letter addressed to the Registrar of Titles (Landgate) to this effect.
Once the City’s letter has been issued, the landowner must then apply to the Registrar of Titles to remove the Restrictive Covenant. The Registrar of Titles will require a copy of the City’s letter.