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You’ve finally found it: a place in Footscray with a backyard big enough for the extension you’ve been sketching between inspections. The tram is close, the coffee is sorted, and you can picture a light filled kitchen opening to a deck.
Then your conveyancer reads the title and says, ‘There’s a restrictive covenant.’
It’s a common Melbourne moment. Covenants sit quietly in the paperwork until they collide with a second dwelling, a new townhouse, a taller fence, or a second storey. They can feel like a surprise rulebook written for a suburb that has changed.
The good news is that covenants are not always a dead end. Some can be varied. Some can be removed. The trick is working out what yours says, who can enforce it, and which Victorian pathway suits your situation.
What a restrictive covenant is (and why planning rules aren’t the whole story)
A restrictive covenant is a private restriction recorded on title. It limits how the land can be used or developed, and it ‘runs with the land’, meaning it binds future owners too.
That’s what makes it different from planning controls. Planning rules come from the planning scheme and are applied by council. A covenant comes from a private arrangement, often created when an estate was first subdivided.
In Melbourne, we still see covenants from the 1920s through to the 1970s on blocks in the inner north and inner east, as well as newer ones in modern estates. The wording varies, but the themes are familiar:
‘One dwelling only’ restrictions that block dual occupancy, townhouses and backyard units.
Building material rules, like face brick requirements.
Limits on outbuildings, fences or where a garage can sit.
Restrictions aimed at protecting a particular ‘neighbourhood character’.
A key point: councils and the State do not enforce restrictive covenants. The people who can enforce them are the owners of the land that benefits from the covenant. If your proposal breaches the covenant, a beneficiary can take action, including seeking an injunction to stop works.
Spotting a covenant before you commit
In Victoria, restrictive covenants should be disclosed in the vendor statement, often called the Section 32, and they should also appear on the title search. Even so, buyers miss them, especially when they’re moving fast.
They slip through when:
the covenant is referenced on title, but the actual wording sits in an older document that needs to be pulled and read;
the covenant looks harmless until you compare it with what you want to build;
you’re buying at auction and your focus is on finance and building inspections.
If you’re buying, it’s worth having the contract and Section 32 reviewed before you bid or sign. At auctions in suburbs like Brunswick, Northcote or Yarraville, you rarely get a cooling off period, so due diligence needs to happen up front.
‘Can I still build?’ Start with the exact words
Two covenants can look similar and behave very differently. One might refer to ‘a dwelling’ (which can be tricky to interpret). Another might be explicit: ‘not more than one dwelling’.
Treat the covenant like instructions. Read the words. Match them to your plan.
Here are everyday Melbourne scenarios where covenants matter:
you want a second dwelling behind an existing home in Preston;
you’re replacing a house with two townhouses in Glen Waverley;
you’re adding a second storey in a quiet pocket of Camberwell;
you’re in a newer estate and you want a taller fence or a different façade material.
If the proposal would breach the covenant, you usually need to deal with the covenant first. A planning permit for buildings and works does not, by itself, give you permission to ignore a registered covenant. In plenty of situations the covenant issue is dealt with alongside your planning permit, or through a dedicated application to vary or remove the covenant.
Three formal ways to vary or remove a covenant in Victoria
There isn’t one universal ‘covenant removal form’. In Victoria, the main options sit within the planning system and the Supreme Court, with a third option that is used far less often.
Apply for a planning permit to vary or remove the covenant
Many covenant changes are handled through council (or another responsible authority) under the planning scheme.
This process is more involved than a standard permit application because notice must be given to people who benefit from the covenant. That commonly includes written notice, a sign on site, and a newspaper notice. Beneficiaries can object, and those objections carry weight.
The test the council applies depends on when the covenant was created:
Created on or after 25 June 1991: the council must be satisfied that beneficiaries are unlikely to suffer material detriment (for example, financial loss or loss of amenity).
Created before 25 June 1991: the hurdle is far higher. If a benefiting owner objects, council is generally prevented from granting the permit. Even without an objection, the council must be satisfied there is no chance of detriment of any kind, which is a strict standard.
That date split matters. If you’re dealing with an older ‘one dwelling only’ covenant, it’s worth getting advice early on whether the planning permit route is realistic, or whether you’re heading towards a Court application.
Apply to the Supreme Court of Victoria
The Supreme Court can modify or discharge restrictive covenants. This is often the path for older covenants, or where the planning route is blocked by objections.
Court applications are formal and evidence heavy. They commonly involve:
identifying the benefiting land and the current owners who may enforce the covenant;
serving notices properly and, in many matters, publishing notices;
evidence from planning and valuation experts about likely impacts on benefiting properties;
legal submissions addressing the statutory grounds the Court must consider.
The Court may look at issues such as whether the covenant has become obsolete, whether it unreasonably prevents a reasonable use of the land, and whether changing it would substantially injure the people who benefit from it. Each case turns on its facts, including the exact covenant wording, what the street looks like today, and the likely impact on nearby owners.
Court proceedings can be challenging, especially if there is active opposition. Still, for the right property and proposal, the Court route can make a development possible that would never get past the older planning test.
Request a planning scheme amendment
A planning scheme amendment can also be used to deal with covenants, usually by changing the schedule that sets out how covenants are managed in an area.
This is rarely the best tool for a single lot. Amendments are strategic, can take a long time, and involve a planning authority and the Minister for Planning. They tend to come up when there’s a broader rezoning or a larger set of properties affected, rather than a one off extension.
Where neighbour agreement fits
Many owners hope there’s a simple handshake solution: if the neighbours who benefit agree, can the covenant just disappear?
Sometimes, but it needs paperwork and the right people. A covenant can benefit multiple lots, not just the house next door. In older subdivisions, the benefiting land might include many properties, and tracking down every current owner can be the hardest part of the job.
If all beneficiaries agree, a property lawyer can document consent and help arrange for the change to be recorded on title through the proper process. Even when full consent is not possible, early conversations and written support from key beneficiaries can still help, whether you’re going through council or the Court.
A realistic path for Melbourne buyers and owners
Covenant matters go best when you tackle them in the right order. A common mistake is spending heavily on design and planning reports, only to discover that the covenant is the real gatekeeper.
A sensible sequence often looks like this:
get a current title search and the covenant document, then read the exact wording;
work out which land benefits from the covenant (often by tracing the original subdivision plan);
test your proposal against the covenant and consider whether a design tweak avoids a breach;
speak with a town planner and your conveyancer or property lawyer early, so you understand which pathway is open and where objections are most likely;
if neighbour reaction will matter, start respectful conversations early, supported by drawings and shadow diagrams.
Picture a buyer in the inner north who wants two townhouses on a corner block. The planning scheme may support the density. The street might already have multi unit development. Yet a single dwelling covenant can still block the plan unless it’s varied or removed. When you know that early, you can decide whether to redesign, negotiate, or walk away before you’ve poured time and money into a plan that cannot proceed.
Costs and timeframes: the honest answer
It’s normal to want a neat answer on cost and timing. The reality is that covenant work ranges from relatively contained to seriously involved.
A planning permit application that draws little or no opposition can be manageable, especially for a minor change to an outdated building rule. Once there are objections, or once the matter moves into Court, costs can climb quickly and timeframes can stretch.
As a general guide:
council processes often take months, because of notice, objections and the usual permit steps;
Court applications commonly take many months and can run longer if the matter is contested or if beneficiary searches are complex.
There are also items people forget to budget for, like title searches, expert reports, survey work, and the steps required to record the final outcome on title. If you’re buying with a tight build schedule, covenant timing needs to be part of the plan.
Traps we see in Melbourne property deals
A few patterns come up again and again:
Bidding at auction without a covenant plan. The contract may be unconditional once the hammer falls. If the covenant blocks your renovation or a second dwelling, you may be stuck with a property that can’t do what you hoped.
Assuming a planning permit solves everything. A permit for buildings and works is not permission to breach a covenant. The covenant piece needs its own attention.
Paying for full architectural drawings too early. Get the covenant checked and the likely pathway confirmed before you spend big on drawings that might need to be reworked.
Ignoring who benefits. A covenant might be enforced by several owners across a subdivision, not just the nearest neighbour.
Treating neighbour support as a given. People can be friendly at the fence and still object once formal notices arrive.
Buying or building with a covenant? We can help you get clarity early
Covenants are one of those things that can turn a dream property into a stressful one, fast. A careful read of the Section 32 and title documents often tells you what you need to know before you sink money into plans.
If you’re buying in Melbourne or elsewhere in Victoria and you want clarity about a restrictive covenant, contact Pearson Chambers Conveyancing for a complimentary Section 32 contract review. Email contact@pearsonchambers.com.au.
This information is general in nature and is not legal advice. For guidance suited to your property and your plans, speak with our team.