Covenant Removal

Author: January 18, 2021

Restrictions

A previous post talked about restrictions placed on block by covenants

So you have found the perfect block. . . but it has a covenant restricting the amount of buildings to 50% and your dream plan will occupy more?

Removal of covenants can be tricky and it may be best to talk with a lawyer experienced in planning matters.

Typical process.

  1. Have a walk around the area to see if any other blocks have been changed which may be a precedent you can use.
  2. Be realistic about how much you want to change the restriction If the restriction is 50% then 60% development may be achievable. More than that and you are likely to get objections.
  3. Talk with the immediate neighbours to see if they feel your proposals are reasonable, as they are the most likely to have objections. They are more likely to object if they feel their amenity is lost. ( for example their sunny backyard is shaded by a large double storey building occupying most of the lot)
  4. Put in a planning permit to the council to change the covenant which will involve a fee. Make sure you put in as much detail as possible including any precedents in the area where other lots have been developed without any detriment to the area.
  5. The council will mail out to everyone that may be affected or who also has the same restriction on their title. Typically all the estate can be considered “beneficiaries” of the covenant as they either all have the covenant or benefit from it in some way.
  6. Wait a month to see if anyone objects. If anyone does object (inside that 28 day period), they have to put that in writing and advise why they object. The objection has to show why the “amenity” of their property (value, enjoyment and aesthetics) would be harmed by lifting the covenant.
  7. The town planners will consider whether your proposal really affects the neighborhood, and if they would normally approve the development. If there have been any objections, these will be considered to see if there is any merit. Objecting just for the sake of it (vexatious objection) is not acceptable.
  8. If you don’t get any success with Council then you can try court proceedings . . . but that could be a big bill.

Good luck!

 

For more posts about what you can build see Restrictions