Project 91 - Restrictive covenants

Project No. 91

Commenced: 1995
Completed: 1997

At the time of the reference, there was a perception that local governments did not have adequate power to control the development or use of land. There was also some concern over conflicts arising between restrictive covenants and town planning schemes. Ministers of the relevant government portfolios requested that the Attorney General submit the reference to the Commission for its consideration and advice.

Terms of Reference

In 1995, the Commission was asked to review the circumstances, if any, in which restrictive covenants should be used to restrict or regulate the subdivision, development or use of land or to preserve the amenity and aspect of land and, in particular, to consider:

1. who can, or should, be a party to a restrictive covenant; 
2. (b) whether local authorities should have power beyond that of a private landowner to enter into restrictive covenants with owners of land in their area to regulate or restrict the development or use of the land or to preserve the amenity and aspect of the land; 
3. whether there should be any time limit on when a restrictive covenant should be valid;  
4. the means of enforcing restrictive covenants; and
5. who should have standing to, or be empowered to, enforce a restrictive covenant to which they are not a part. 
   In addition, the Commission was asked to consider whether local authorities have adequate power to regulate land in their area for the purpose of restricting or regulating the development or use of land or preserving the amenity and aspect of the land, whether permanently or for a specified period of time.

Outcomes

The Attorney General received the final report and released it on 11 July 1997 for further public comment with submissions to be made before the end of November 1997. No action was taken prior to the receipt of these submissions and implementation of the recommendations was still under consideration in April 1998. To date, no action has been taken to implement any of the Commission’s recommendations.

Last updated: 31-Jan-2017

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