How Do Restrictive Covenants Affect Property Development Plans?

The development of property goes beyond planning, approvals, and construction. There could be a restrictive covenant on the land that places private restrictions on the way the land may be used and/or developed. In Perth, the restrictions may relate to the design, subdivision, use, density, and viability of the proposed development. The restrictions could also mean that there would be more legal requirements prior to development. Due to the fact that the laws surrounding covenants and planning are different for each state/territory in Australia, it is important to have a proper title check.

This blog explains how restrictive covenants affect development plans, approvals, project costs, and possible legal options with the help of property lawyers in Perth.

What Is a Restrictive Covenant?

A restrictive covenant is a type of restriction placed on the use or development of land. Typically, the benefit of the restriction is for other land or, in some instances, a public authority. In Western Australia, restrictive covenants can be placed against land by registered documents and certain scheme plans.

The restriction will typically relate to what the owner cannot do with the property. Therefore, restrictive covenants and property matters can work together with planning laws and can still apply to future owners if the covenant is to “run with the land.” When considering the development of a proposed project, it is important to know what kinds of restrictions can be found on title. These are some examples of common restrictions:

• Number of dwellings that can be constructed on the land
• Restrictions on subdividing or developing the land
• Height of building or building envelope
• Materials of the building or external appearance of the building
• Restrictions on use of the land

How Can Covenants Affect Development Plans?

Covenants can affect development plans through legally restricting how land is to be used and developed. In cases where planning law allows development, covenants may affect designs, development capacity, cost, and may even require legal permission or amendment. Some examples of how this may impact the development include the following:

• Subdivision: The covenant may restrict additional subdivision such that there would be fewer plots than expected.
• Number of Housing Units: The covenant may restrict the development to just one housing unit although the planning regulations accommodate more.
• Design of Buildings: Restrictions on materials, height, setback and building envelopes would necessitate redesign.
• Feasibility of Development: Fewer or smaller dwellings may have an economic impact on a project.
• Timing of Development: The resolution of a covenant issue may add steps to the process of developing a project.

If you experience any of these challenges, consulting restrictive covenants lawyers is a feasible option to get clarity on what to do next.

How Can a Restrictive Covenant Be Removed or Changed?

It is sometimes possible for removal or variations to occur, but this depends on the legal nature of the covenant. The route available to remove restrictive covenants in Perth could be an agreement or a statutory procedure. The following procedures will enable you to determine the pathway available:

• Review the Title: The title should be found along with the covenant and any other pertinent documentation.
• Read the Entire Covenant: Every part of the covenant must be examined, including the wording, area covered, beneficiary, period of time and provisions.
• Test the Proposed Development: Determine whether the design conflicts with the covenant.
• Identify Interested Parties: The beneficiaries must either give consent or be notified.
• Seek Professional Advice: WA Property Lawyers and planners can advise you on your pathway.

Landgate confirms that the modification or removal through agreement requires the proper consent of interested parties in the burdened land. Professional land development legal advice in Perth may help you determine whether agreement, modification, or another legal pathway is available.

Why Should Developers Check Covenants Early?

For developers, it is crucial to identify the presence of any covenants on the land from the outset in order to prevent any redesigns, injunctions, and delays. Identifying any covenants early on will ensure that the desired density and uses fit within the existing title covenants. It also helps developers understand how restrictive covenants and land law in Perth may influence the proposed use or development of the property. This is especially critical when the development involves higher density or subdivision.

Final Thoughts

Restrictive covenants have the potential to significantly impact property development due to their nature as legal restrictions that work in conjunction with statutory planning controls. They can impact the way that a property can be subdivided, the number of dwellings, the design, the height of the building, the construction materials used, or how the land is used. If a problem arises because of a covenant, then you can consult a property damage lawyer to determine which course of action is the most feasible for you.