Jun 30
2012

Regarding Voluntary Options to avoid subdivision

BE Net spoke with the City Planning Department this week regarding the options for land owners to put a voluntary option on land they are selling or subdividing to stop any further subdivision. Here is the convo:

BE Net: is it okay for a landowner/homeowner to put a voluntary 173 on their own land before they sell? Is is something you would block as being against RES 1, or is it a simple way for people to support large blocks in their area?

Council Officer: A section 173 agreement and a restriction on a plan of subdivision are two mechanisms open to Council to place restrictions on planning permits. In this instance (Stockade St Subdivision) the restriction on the plan of subdivision is considered a more appropriate outcome given Council requirements to include additional restrictions (protection of vegetation), and therefore it is considered more appropriate to have one document which outlines the restrictions placed on the allotments, rather that a multitude of agreements on titles.

In relation to section 173 agreements being voluntarily, the entering into of such an agreement must be entered into voluntarily pursuant to the provisions of the Planning & Environment Act.

BE Net: How would one go about putting a voluntary Section 173 on their own property? For example if I wanted to put one on my property before I sold (if I was ever thinking about that).

Council Officer: In the case of selling a property and wanting to place a restriction on the title, the most efficient way to undertake this is to create a restrictive covenant on the title. Should the purchaser ever want to vary the restrictive covenant, there are certain obligations under the provisions of the Planning & Environment Act 1987 which Council must follow, this includes notice of the application as well as additional grounds of objection which are not offered in standard planning applications (such as perceived detriment).

Generally, Council only enters into a Section 173 Agreement when there is a requirement to do so under the planning scheme or if it is a condition on a planning permit.

BE Net: how do I go about creating a restrictive covenant on the title?

Council Officer: You will need to seek legal advice on that one Erin, as this is not a Council process that we follow.

So we’ve left out all the niceities, thanks and hows the weather… the upshot is we need legal advice, so we will try to get an answer from another place… any ideas?

Please note this post has been changed to remove the specific officers name to respect the privacy of council officers. The conversation happened through email and thus can be quoted, however the Council has requested that BE Net respect that council officers work as representatives of the council and are not providing legal advice and should not be named when giving planning advice. BE Net concurs with this and meant no offense using the officers name, we actually thought it was great advice and wanted to share it without getting it too muddled by trying to create a summary of our own. In future council officers will only be named when they are named on public documents. BE Net apologises unreservedly if any offense has been taken, as none was intended.

One comment

  1. ingrid says:

    In Geelong a council Planning Panel has allowed a multi lot sub division of a large residential property currently with one dwelling. The original owners had to sign an agreement (S173?) which meant they could never sub-divide, as did all the neighbours on similarly large lots.
    The back yards all open onto a popular linear parkland which runs alongside Waurn Ponds Creek. Friends of Waurn Ponds Creek do re-veg work there amongst the huge remnant river red gums, improving the waterway for a rare fish. All the properties along the creek have a wire fence and bushy back yards. The proposed multi lots are designed to have the properties facing the park. This will dramatically change the neighbourhood character. To give you a context, this is in a fully developed suburb where nearby streets are high density single story houses.

    There were 100 objections to the PPApplication last month. Council organised a consultation meeting before a Planning Panel and gave the objectors only 3 minutes to speak. The objectors sat in a room shared with people who were there for other PPA objections.
    Council responded that the decision has been made to sub- divide as the area is close to amenities etc. and that is in line with current council practices to have higher density housing.
    The panel then moved on to the other dozen or so PPA objections.
    The 100 objectors are planning their next move.

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