Anyone can apply for a planning permit to remove or 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.
Make the application to the responsible authority (see below). You must include a copy of the restrictive covenant and information clearly identifying each lot benefited by the restrictive covenant (refer to section 47(1) of the Act).
You should discuss your proposed application with the responsible authority before you finalise and submit it. They can provide advice about the kinds of supporting information you need to submit with the application.
The planning scheme will set out who is the responsible authority. Usually, the local council is the responsible authority, but sometimes it will be the Minister for Planning or some other person or authority.
Refer to the schedule to clause 72.01 of your planning scheme to identify the responsible authority.
Notice of an application
Notice of an application to remove or vary a restrictive covenant must be:
- given to all owners and occupiers of land who benefit from the restrictive covenant (subject to some conditions set out in section 47(2) of the Act)
- placed on the site subject to the application, and
- published in the local newspaper.
People can object to your application. More weight is given to objections from owners of land benefited by the covenant.
Special requirements for granting a permit
A responsible authority must consider certain matters under the Planning and Environment Act 1987 in considering whether it should issue a planning permit to vary or remove a restrictive covenant. The matters that must be considered are set out in sections 60(2) and (5) of the Act.
Section 60(2) applies to restrictive covenants created on or after 25 June 1991: a planning permit can’t be granted to remove or vary a registered restrictive covenant unless the responsible authority is satisfied that any benefiting landowner will be unlikely to suffer material detriment, including financial loss or loss of amenity.
Section 60(5) applies to restrictive covenants created before 25 June 1991: a planning permit can’t be granted to remove or vary a restrictive covenant if a benefiting owner has objected, or if there is any chance that a benefiting owner may suffer detriment of any kind (even if that benefiting owner did not object). This test is very stringent and it may be difficult to prove that there would be no detriment.
If the responsible authority refuses to grant your planning permit, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.
If the responsible authority decides to grant a permit, and a person has objected to the proposal, the objector can apply to VCAT for a review of the decision.
The rules in the Act for regular permit applications also apply to applications to remove or vary a restrictive covenant.
This means that:
- the responsible authority must consider what detriment would be caused to a benefiting landowner by the removal or variation, and
- the limitations on the granting of a permit set out in section 61(4) of the Act apply to an application for removal or variation.
Page last updated: 28/06/22