What is a Restrictive Covenant?

A restrictive covenant is a private legal agreement between landowners or landowners and purchasers that limits the way or how land can be used or developed. In Victoria, Restrictive Covenants are commonly used to protect neighbourhood character and guide how properties are to be built over time. Unlike planning laws, restrictive covenants are not created or enforced by councils or government authorities. However, the planning system may become involved if a landowner applies to remove or vary a restrictive covenant.

How Do Restrictive Covenants Work?

Restrictive covenants place conditions on land use, typically expressed in negative terms such as “the registered proprietor will not…”. These obligations are attached to the land itself, meaning they continue to apply even when the property is sold to a new owner.

Importantly, restrictive covenants operate independently of the planning scheme. This means that even if a development is permitted under local planning controls, it may still be restricted by an existing covenant.

Common Examples of Restrictive Covenants

Restrictive covenants can vary widely, but common examples include:

• Limiting development to a single dwelling on a lot

• Controlling building materials used for houses or fences

• Prohibiting the use of land for business or commercial purposes

Many of these are “neighbourhood covenants,” which are designed to maintain a consistent look, feel, or standard within a particular area.

Do Restrictive Covenants Override Planning Schemes?

Yes, in many cases they do. Even if a planning scheme allows a certain type of development, a restrictive covenant may still prevent it.

This is why it is essential to check for any covenants on a property before planning construction, subdivision, or changes in land use.

Can a Restrictive Covenant Be Removed or Varied?

Yes, it is possible to remove or vary a restrictive covenant in Victoria, but the process can be complex. Each covenant must be carefully interpreted, as even small differences in wording can significantly affect what is allowed.

Applications to remove or vary a covenant may involve legal and planning considerations, and often require demonstrating that the change will not negatively impact other affected landowners.

Why Legal Advice Is Important

Restrictive covenants can be difficult to interpret, and misunderstandings can lead to costly mistakes or disputes. Because each covenant is unique, professional advice is often essential when dealing with property development or land use restrictions.

Need Help with a Restrictive Covenant?

If you need assistance removing or varying a restrictive covenant in Victoria, it’s important to get the right legal advice early.

Contact our team today on (03)9707 1155 or email admin@wslegal.com.au to discuss your situation.

Frequently Asked Questions

What is a restrictive covenant?
A restrictive covenant is a legal agreement that limits how land can be used or developed.

Who enforces restrictive covenants in Victoria?
They are typically enforced by other landowners who benefit from the covenant, not by councils.

Can I ignore a restrictive covenant?
No. Breaching a covenant can lead to legal action and potential financial consequences.