Varying or removing a restrictive covenant

A restrictive covenant is a private written agreement between landowners to restrict the use or development of land for the benefit of other land. They are commonly applied when a developer subdivides land for sale and wishes to apply some restrictions on the use and development of the lots to benefit or protect other land. Some examples of covenants include the requirement that: 

• No more than one dwelling be constructed on the land. 
• No quarrying on the land. 
• Any dwelling on the land must be constructed from brick
• A front fence must not exceed 1.0 metres. 

If your proposed development breaches a covenant, Council is prohibited from issuing a planning permit. You will need to seek your own independent legal advice to explore varying or removing the covenant.

Council does not maintain a registry or record of covenants. 

The existence of a restrictive covenant is recorded on the Certificate of Title for the land. To determine whether your property is affected by a restrictive covenant, please visit Landata and select ‘Titles & property certificates’ and request an electronic copy of your property’s Title. There is a fee associated with this request. If you have any trouble navigating the website or obtaining a covenant please e-mail Landata.enquiries@victorianlrs.com.au or call 9102 0402.

Covenants can be difficult to understand due to the legal terminology used and various case law. You are therefore advised to engage your own independent legal advice to interpret a covenant. 

Even covenants which appear similar may use slightly different words, resulting in different restrictions on the use or development of the land. Each covenant should be individually interpreted, meaning a Lawyer or conveyancer can be helpful.

The most common methods of removing or varying a covenant are: 

• Applying for a variation or removal via a planning permit lodged with Frankston City Council.
• Lodging an application through the Supreme Court.

An application through Council will involve advertising to all beneficiaries of the covenant and an advertisement in the newspaper to ensure that there are no valid objections in the community. Generally, if a beneficiary objects to the issuing of a planning permit to vary or remove a covenant, Council will likely have to refuse your application. 

It is strongly advised you engage the services of a planning professional or conveyancer to submit and manage your application with Council.

View the planning services fee schedule for more information.