Varying a restrictive covenant
This information is intended to provide general guidance to landowners affected by a restriction on the Certificate of Title limiting the number of residential dwellings which may be constructed on the land.
What is a restrictive covenant?
A restrictive covenant is an agreement between two parties, which 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.
Restrictive covenants and the City’s District Planning Scheme No. 2 (DPS2)
Although restrictive covenants provide a private means of controlling the use of land, in certain circumstances, their existence can result in a conflict between the provision of the restrictive covenant and the provisions of a local authority’s town planning scheme.
For example, a restrictive covenant may limit the use of a residential lot to a single dwelling whereas the town planning scheme for the area may permit the erection of two or more dwellings on that lot.
The City of Joondalup’s District Planning Scheme contains provisions which allow a restrictive covenant limiting the number of dwellings on the land, to be extinguished or varied.
District Planning Scheme No. 2 incorporates the following clauses:
- 4.17 Restrictive covenants
- 4.17.1 Subject to clause 4.17.2, a restrictive covenant affecting any land in the Scheme area by which, or the effect of which is that, the number of residential dwellings which may be constructed on the land is limited or restricted to less than that permitted by the Scheme, is hereby extinguished or varied to the extent that it is inconsistent with the provisions of the Residential Design Codes which apply under the scheme.
- 4.17.2 Where clause 4.17.1 operates to extinguish or vary a restrictive covenant Council will not grant planning approval to the development of the land which would, but for the operation of clause 4.17.1, have been prohibited unless the application has been dealt with as an ‘A’ use and has complied with all of the advertising requirements of clause 6.7.
Clauses 4.17.1 & 4.17.2 of DPS2 relate only to density and can be applied where there is an inconsistency with the R-Codes over the land. For example in areas coded R20, land greater than 900m2 has the potential to be developed with two grouped dwellings. A restrictive covenant, however may limit the number of dwellings, which may be constructed on the land to one, thereby resulting in an inconsistency with the R-Codes. In such cases, the new provisions operate immediately to extinguish or vary any restrictive covenant, which limits the number of residential dwellings to a number less than the R-Codes. Landowners can request a letter from the City addressed to Landgate to this effect.
Prior to preparing the letter, the City must be satisfied there is indeed an inconsistency between the restrictive covenant and the R-Code applying to the land.
How to apply to get the restrictive covenant limiting development to one residence on a lot varied or extinguished
The landowner is required to make an application to the City in writing requesting confirmation that there is an inconsistency between the restrictive covenant and the R-Code applying to the land. The landowner is required to submit the following:
- application fee for written planning advice of $69.00 inclusive of GST
- copy of the latest certificate of title
- copy of restrictive covenant documentation. The registration number can be found on the Certificate Title and
- confirmation of the land size. If the land size is not shown on the Certificate Title, a copy of the diagram, deposited plan or plan of survey is required.
The City assesses this information to confirm whether there is an inconsistency between the restrictive covenant and the R-Code applying to the land. In the case of an inconsistency, the City issues a letter addressed to the Registrar of Titles (Landgate) to this effect.
Once the City’s letter is 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.
Further information
- On Landgate’s process, please contact the Registrar of Titles directly on 9273 7044.
- Contact the City on 9400 4371
Updated 1 July 2011
