Planning and Environment (Restrictive Covenants) Act 2000

i Planning and Environment (Restrictive Covenants) Act 2000 Act No. 100/2000 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 1 3. Principal Act 2 4. Definitions 2 5. Notice to owners of land benefited by restrictive covenant 2 6. Information on registered restrictive covenants to be included in applications for permits 3 7. Notice of application affecting registered restrictive covenant 3 8. Objections to applications for permits—person affected 5 9. Decision on application for a permit 5 10. Conditions on permit 5 11. Amendments to permits 6 12. Review of permit for development of land burdened by a registered restrictive covenant 7 13. Application for permit when amendment to planning scheme requested 7 14. Notice of amendment application and permit 8 15. Decision by Minister under section 96I 9 16. Transitional provisions 10 214. Transitional provisions 10 ═══════════════ ENDNOTES 11 -- 1 of 12 -- 1 Planning and Environment (Restrictive Covenants) Act 2000 † [Assented to 12 December 2000] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Planning and Environment Act 1987 in relation to restrictive covenants. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. Victoria No. 100 of 2000 -- 2 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 2 3. Principal Act In this Act, the Planning and Environment Act 1987 is called the Principal Act. 4. Definitions In section 3(1) of the Principal Act insert— ' "registered restrictive covenant" means a restriction within the meaning of the Subdivision Act 1988;'. 5. Notice to owners of land benefited by restrictive covenant (1) After section 19(1)(c) of the Principal Act insert— "(ca) to owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a registered restrictive covenant, if the amendment provides for the removal or variation of the covenant; and". (2) After section 19(2) of the Principal Act insert— "(2A) A planning authority must cause notice of an amendment providing for the removal or variation of a registered restrictive covenant to be given by placing a sign on the land which is the subject of the amendment.". (3) In section 19(3) of the Principal Act for "sub- section (1) and (2)" substitute "sub-sections (1), (2) and (2A)". s. 3 No. 45/1987. Reprint No. 6 as at 12 August 1999. -- 3 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 3 6. Information on registered restrictive covenants to be included in applications for permits After section 47(1)(c) of the Principal Act insert— "; and (d) if the land is burdened by a registered restrictive covenant, be accompanied by a copy of the covenant; and (e) if the application is for a permit to allow the removal or variation of a registered restrictive covenant or if anything authorised by the permit would result in a breach of a registered restrictive covenant, be accompanied by— (i) information clearly identifying each allotment or lot benefited by the registered restrictive covenant; and (ii) any other information that is required by the regulations.". 7. Notice of application affecting registered restrictive covenant (1) After section 52(1)(c) of the Principal Act insert— "(ca) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a registered restrictive covenant, if anything authorised by the permit would result in a breach of the covenant; and (cb) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a s. 6 -- 4 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 4 registered restrictive covenant, if the application is to remove or vary the covenant.". (2) After section 52(1) of the Principal Act insert— "(1AA) If an application is made for a permit to remove or vary a registered restrictive covenant or for a permit which would authorise anything which would result in a breach of a registered restrictive covenant, then unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of the application in a prescribed form— (a) by placing a sign on the land which is the subject of the application; and (b) by publishing a notice in a newspaper generally circulating in the area in which that land is situated.". (3) In section 52(1A) of the Principal Act for "sub- section (1)" substitute "sub-sections (1) and (1AA)". (4) In section 52(2B)(a) of the Principal Act, for "and (c)" substitute ", (c) (ca) and (cb) and sub- section (1AA)". (5) In section 52(4) of the Principal Act, after "sub- section (1)" insert "except paragraphs (ca) and (cb)". (6) After section 53(1) of the Principal Act insert— "(1A) The responsible authority may require the applicant to give the notice under section 52(1AA). (1B) A requirement of the responsible authority to the applicant under sub-section (1) must be given in writing.". s. 7 -- 5 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 5 (7) In section 53(4) of the Principal Act after "section 52(1)" insert "or 52(1AA)". (8) In section 59 of the Principal Act— (a) in sub-section (1)(a) after "section 52(1)" insert "or 52(1AA)"; (b) in sub-sections (2)(b) and (3)(b) for "section 52(1)" substitute "sections 52(1) and 52(1AA)". 8. Objections to applications for permits—person affected After section 57(1) of the Principal Act insert— "(1A) If the permit would allow the removal or variation of a registered restrictive covenant or if anything authorised by the permit would result in a breach of a registered restrictive covenant, an owner or occupier of any land benefited by the covenant is deemed to be a person affected by the grant of the permit.". 9. Decision on application for a permit After section 61(3) of the Principal Act insert— "(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.". 10. Conditions on permit (1) After section 62(1)(a) of the Principal Act insert— "(aa) if the grant of the permit would authorise anything which would result in a breach of a s. 8 -- 6 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 6 registered restrictive covenant, include a condition that the permit is not to come into effect until the covenant is removed or varied; and". (2) In section 62(1)(b) of the Principal Act, after "paragraph (a)" insert "or (aa)". 11. Amendments to permits (1) In section 62 of the Principal Act, for sub-section (3) substitute— "(3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if— (a) the amendment is consistent with— (i) the planning scheme currently applying to the land; and (ii) the permit; and (b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.". (2) At the end of section 73 of the Principal Act, insert— "(2) The responsible authority must not amend the permit if the amendment of the permit would authorise anything which would result in a breach of a registered restrictive covenant.". (3) At the end of section 80 of the Principal Act, insert— "(2) This section does not apply to a condition included in a permit under section 62(1)(aa).". s. 11 -- 7 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 7 12. Review of permit for development of land burdened by a registered restrictive covenant In section 91 of the Principal Act, after sub- section (3) insert— "(3A) The Tribunal must not direct a responsible authority to amend a permit if the amendment would authorise anything which would result in a breach of a registered restrictive covenant.". 13. Application for permit when amendment to planning scheme requested (1) For section 96A(1) of the Principal Act substitute— "(1) A person who requests a planning authority to prepare an amendment to a planning scheme may also apply to the planning authority for— (a) a permit for any purpose for which the planning scheme as amended by the proposed amendment would require a permit to be obtained; or (b) if the amendment provides for the removal or variation of a registered restrictive covenant, a permit for a use or development which would, if the restrictive covenant were not removed or varied, result in a breach of that registered restrictive covenant.". (2) In section 96A(4) of the Principal Act, after paragraph (b) insert— "; and s. 12 -- 8 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 8 (c) if the land is burdened by a registered restrictive covenant, be accompanied by a copy of the covenant; and (d) if the application is for a permit to allow the removal or variation of a registered restrictive covenant or if the grant of the permit would authorise anything which would result in a breach of a registered restrictive covenant, be accompanied by— (i) information clearly identifying each allotment or lot benefited by the registered restrictive covenant; and (ii) any other information that is required by the regulations.". 14. Notice of amendment application and permit (1) In section 96C(1) of the Principal Act, after paragraph (f) insert— "; and (g) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a registered restrictive covenant, if— (i) the amendment or the permit would allow the removal or variation or the covenant; or (ii) anything authorised by the permit would result in a breach of the covenant.". (2) In section 96C of the Principal Act, after sub- section (2) insert— "(2A) A planning authority must cause notice of an amendment providing for the removal or variation of a registered restrictive covenant s. 14 -- 9 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 9 to be given by placing a sign on the land which is the subject of the amendment. (2B) A sign under sub-section (2A) must state the place where a copy of the proposed permit under this Division may be inspected.". (3) In section 96C(3) of the Principal Act for "sub- section (1) and (2)" substitute "sub-sections (1), (2) and (2A)". (4) After section 96C(8) of the Principal Act insert— "(8A) The planning authority must make a copy of the proposed permit under this Division available at its office during office hours for any person to inspect free of charge until the amendment to which the proposed permit applies is approved or lapses.". (5) In section 96M(4)(a) of the Principal Act for "section 96C(1)" substitute "section 96C". 15. Decision by Minister under section 96I In section 96I of the Principal Act, after sub- section (1) insert— "(1A) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the Minister must refuse to grant the permit unless— (a) the amendment to which the permit applies provides for the variation or removal of the covenant; or (b) a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant. (1B) If the grant of the permit would authorise anything which would result in a breach of a registered restrictive covenant, the permit must be granted subject to a condition that s. 15 -- 10 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 10 the permit is not to come into effect until the covenant is removed or varied.". 16. Transitional provisions After section 213 of the Principal Act insert— '214. Transitional provisions (1) This Act as amended by the Planning and Environment (Restrictive Covenants) Act 2000 applies to— (a) an application for a permit that was made but not determined by the responsible authority or planning authority or Minister before the commencement day; and (b) a request or an application for an amendment to a permit that was made but not determined by the responsible authority or the Tribunal before the commencement day; and (c) an application for review relating to a permit application that was made to the Tribunal but not determined before the commencement day; and (d) an application for review made to the Tribunal on or after the commencement day in respect of a determination made before the commencement day by a responsible authority or planning authority or Minister in respect of a permit application. (2) In this section "commencement day" means the date of commencement of the Planning and Environment (Restrictive Covenants) Act 2000.'. ═══════════════ s. 16 -- 11 of 12 -- Act No. 100/2000 Planning and Environment (Restrictive Covenants) Act 2000 11 ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 June 2000 Legislative Council: 3 October 2000 The long title for the Bill for this Act was "to amend the Planning and Environment Act 1987 in relation to restrictive covenants and for other purposes." Endnotes -- 12 of 12 --