Varying a restrictive covenant

Varying or Extinguishing a Restrictive Covenant on a Certificate of Title

This fact sheet provides general guidance to landowners affected by a restriction on their land’s Certificate of Title limiting the number of residential dwellings which may be constructed on that land.

What is a Restrictive Covenant

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.

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 planning scheme. For example, a restrictive covenant may limit the use of a residential lot to a single dwelling whereas the planning scheme 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 that limits the number of dwellings on the land to be extinguished or varied.

District Planning Scheme No. 2 (DPS2) 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 and 4.17.2 of DPS2 relate only to density and can be applied where there is an inconsistency with the R-Code of the land. For example, in areas coded R20, land greater than 900 m2 has the potential to be developed with two grouped dwellings. A restrictive covenant, however, may limit the number of dwellings that may be constructed on the land to one, thereby resulting in an inconsistency with the R-Codes.

In such cases, Clause 4.17.1 operates immediately to extinguish or vary any restrictive covenant that limits the number of residential dwellings to a number less than the R-Code allows Landowners can request a letter from the City addressed to Landgate to this effect.
Prior to the City preparing the letter to Landgate, the City must be satisfied that there is indeed an inconsistency between the restrictive covenant and the R-Code applying to the land.

Applying for a Variation or Extinguishment of a Restrictive Covenant

In the case of a restrictive covenant that limits development on a lot to one residence only, the landowner is required to make an application to the City in writing. The application must request confirmation that an inconsistency exists between the restrictive covenant and the R-Code applying to the land. The landowner is required to submit the following with the written application.

• application fee for written planning advice
• copy of the latest Certificate of Title for the land in question
• copy of restrictive covenant documentation (the registration number can be found on the Certificate of Title)
• confirmation of the land size.   If the land size is not shown on the Certificate of Title a copy of the diagram, deposited plan or plan of survey is required.  This may be obtained by contacting Landgate

The City will assess this information to confirm whether or not there is an inconsistency between the restrictive covenant and the R-Code applying 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.

For further information on Landgate’s process, please contact the Registrar of Titles, Landgate on 9273 7044, fax 9273 7666 or visit the Landgate website.

For further information please contact the City on 9400 4371.

Last reviewed April 2012