On a new estate in Western Australia, a house can be shaped by restrictive covenants registered against the lot’s title, and by the Residential Design Codes, which local governments apply and which a local development plan can change for a particular area. A covenant is a matter of land title, recorded through Landgate; the design codes are planning rules, answered by the local government.
General information, not legal advice. Landgate says its own guides are not legal advice either; a lawyer can advise on a particular covenant, and the local government on a particular house design.
Two kinds of rule, side by side
| Restrictive covenant | Residential Design Codes and a local development plan | |
|---|---|---|
| What it is | A restriction on the use of a lot, created by a document registered under the Transfer of Land Act 1893. | Planning and design requirements for housing across Western Australia; a local development plan can amend, replace or add to some of them for a defined area. |
| Where it shows | As an encumbrance on the title of the lot it burdens. | In the local planning framework the local government applies, alongside schemes, local planning policies and structure plans. |
| Who answers questions | Landgate publishes how covenants are created and removed; a lawyer can explain one in particular. | The local government where the house will be built. |
| How it ends or changes | By expiry, agreement, a court order or a town planning scheme, as described below. | The codes are under review, which the WA Government says is looking at ways to make them simpler and more modern. |
How an estate covenant is set up
Landgate describes these covenants as normally used when broad acres are subdivided and the developer wants to set a standard for the houses built or for how the land is used. As each lot is sold, the buyer promises the seller to keep to the restrictions written into the transfer, and the promise is made for the benefit of the lots the seller has not yet sold. A memorandum of the covenant then goes onto the title of the lot sold as an encumbrance.
Landgate sets limits on what it will register. In general a restrictive covenant has to be intended to run with the land, and it cannot include personal promises made to someone like the original developer or the local government.
Covenants drawn on the plan of subdivision
A covenant can also be noted on the plan when the subdivision is created, under section 136D of the Transfer of Land Act. Its full terms sit in a separate instrument lodged with the plan, and the lot becomes bound when the new titles are created and registered. Both the burdened title and the benefited title are endorsed.
How a covenant ends
Landgate’s guides describe four ways a covenant stops binding a lot.
It reaches its expiry date
A covenant written for a set term has no further effect once that term ends, and no discharge needs to be lodged. Since 13 May 1996, expiry dates have not been endorsed on titles, so a title can still show a covenant that has already run out. Landgate says it is for conveyancers to get a copy of a covenant and check where it stands, and that a covenant shown on a title which has in fact expired should be ignored. At a sale, the settlement agent or lawyer can ask for it to come off the title with a one-line letter.
Everyone with an interest agrees
With the written consent of everyone who has an interest in the burdened land, the Commissioner may direct that the covenant be changed or removed.
A court orders it
Landgate notes that estate covenants usually need a court order before they can be removed. A covenant that allows only one house on a lot, and benefits more than ten lots, has an extra hurdle: before the Supreme Court will hear the application, written consent is needed for 51 per cent of the benefited lots inside a set circle around the lot, from each lot’s registered owners and also its first-ranking mortgagee or chargee. The circle starts at a radius of 250 metres and can grow to at most 270 metres, and a licensed surveyor must draw it.
A planning scheme removes it
When a local government amends its town planning scheme, it can release land from a restrictive covenant by a council resolution that is then published in the Government Gazette; the owner then applies to have it taken off the title.
The design codes, and an estate’s own plan
The Residential Design Codes set planning and design requirements for residential development across the state, and the WA Government says they are administered and applied by local government. Volume 1 covers every single house.
The codes can be changed locally. A local development plan is one of the instruments in the local planning framework that may amend, replace or add to provisions of the codes, along with schemes, local planning policies and precinct structure plans. Volume 1 describes these plans as a way to guide and coordinate development within a defined area, and says they should not be used only to change a deemed-to-comply provision. Some provisions can be changed by a local development plan without the approval of the Western Australian Planning Commission; any other deemed-to-comply provision needs it.
Many details in Volume 1 point to these plans. Its building height limits, for example, use a default category unless a scheme, local planning policy, structure plan or local development plan calls for a different one. Whether a local development plan applies to a particular lot, and what it changes, is a question for the local government.
Where an estate has design rules of its own
Landgate’s guide gives the reason developers use covenants: to set a standard for the houses built on a subdivision. Where a developer also has other estate documents, how far they bind a buyer depends on what those documents say, and a lawyer can read them alongside the contract for the land. The building contract that follows is the next stage: home building contracts in WA.