Australia: Development conditions requiring registered covenants – factors relating to reasonableness

Last Updated: 28 April 2016
Article by David Nicholls

The use of covenants as a development control mechanism is a relatively new phenomenon. Section 349 of the Sustainable Planning Act 2009 (SPA) precludes covenants from having legal effect when entered into in connection with a development application other than as a requirement of a condition of a development approval, or under an infrastructure agreement.

Sections 373A of the Land Act 1994 and section 97A of the Land Title Act 1994 impose restrictions on the scope of covenants that may be registered. Most relevantly to planning, the covenant must relate to the use of a lot or part of a lot or a building or proposed building, or be aimed directly at preserving a native animal or plant or a natural or physical feature of the lot that is of cultural or scientific significance. Revegetation is not within the scope of these sections.

Traditionally, covenants have been utilised on a voluntary basis to secure conservation of part of an overall development site by being proposed in a development application. Section 349 of the SPA speaks of a covenant that "is entered into in connection with a development application." That form of words is apt to cover a covenant proposed by an applicant, but it may be wide enough to apply to a covenant which is not proposed by an applicant but is nevertheless required by a condition imposed on a development approval.

There are now instances of covenants being imposed through conditions where the applicant has not offered the covenant and is unwilling to voluntarily accept it. Conditions usually require a covenant to be registered in accordance with standard covenant terms which the local government has registered in the Land Title Office. There are instances of conditions which require development to be located with a building envelope and require a covenant over the whole of the balance area precluding most forms of use, for example, constructing walking or riding trails, or keeping domestic animals. Covenants of that type immediately raise questions about the lawfulness of the condition under which they are sought to be imposed.

It should be noted that:

  • a covenant may be no wider than the condition under which it is required;
  • the condition itself, and therefore in practical terms the covenant, is subject to the reasonableness and relevance tests for the lawfulness of conditions contained in section 345 of the SPA;
  • the practical effect of the covenant is to place the condition on the title to the land in perpetuity, unless the local government later agrees to its removal or an application is successfully made to the Supreme Court to that end;
  • once registered the effect of the covenant is to neutralise, for all practical purposes, the statutory processes under the SPA that otherwise would allow for a condition to be changed in the future, because the process for removing a covenant requires either the local government's cooperation or an application to the Supreme Court of Queensland under section 181 of the Property Law Act 1974;
  • the power of the Planning and Environment Court to change a condition does not extend to the modification or removal of a covenant required under a condition. Only the Supreme Court has jurisdiction to do that;
  • covenants provide a method by which local governments are able to "future proof" the development of land against planning scheme changes that are beneficial to the land owner.

The permanent nature of covenants and the difficulties inherent in changing or removing them is relevant to the lawfulness of conditions that require covenants to be entered into.

There are at least three aspects to this:

  • is the underpinning condition, in its entirety, relevant or reasonably required?
  • are the terms of the covenant consistent with the terms of a condition that may otherwise be lawfully imposed?
  • is the additional step of registering the covenant over the title to the land necessary to achieve the lawful purposes of the condition?

The inherent nature of covenants connotes mutuality between the covenantor and the covenantee. The inflexibility of covenants once registered seems inconsistent with the changing and evolving nature of town planning, and the ability to make future development applications that will be assessed against contemporary planning instruments. Covenants imposed unilaterally through the imposition of conditions should therefore be approached with caution.

Recently the Planning and Environment Court considered a condition imposing an easement for overland flow over 90% of the area of a block of land that was zoned conservation. The Court had the following to say:

"[28] The proposed easement is remarkable for taking nearly the whole of the parcel and leaving an inadequate building area; it comes close to confiscation of the site. It is not shown that such a depredation is necessary; the better view is that it is not. Why should not a house of more conventional size be achieved by a cantilevered structure protruding above the easement area? The existence of an easement would probably preclude this – and even more, the activities of construction. There is no need for an easement to place additional difficulties in the way of future development."

Parsons v Redland City Council (2011) QPELR 691

Exactly the same logic might be applied for a condition requiring a covenant.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Nicholls
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.