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Describe how the land is used and developed now.
You need to describe, in general terms, the way the land is used now, including the activities, buildings, structures and works that exist (e.g. single dwelling, 24 dwellings in a three-storey building, medical centre with three practitioners and 8 car parking spaces, vacant building, vacant land, grazing land, bush block).
Covenant Declaration information is known as an encumbrance and can be found on the full copy of title.
It is important you attach a current copy of the title for each individual parcel of land forming the subject site.
'Current' title information accurately provides all relevant and up-to-date information. Your councils may require that title information must have been searched within a specified time frame. Contact your council for advice on their specific requirements.
Copies of title documents can be obtained from LANDATA
An "encumbrance" is a formal obligation on the land, with the most common type being a 'mortgage'.
Other common examples of encumbrances include:
A restrictive covenant is a written agreement between owners of land restricting the use or development of the land for the benefit of others, (e.g. a limit of one dwelling or limits on types of building materials to be used).
A Section 173 agreement is a contract between an owner of the land and the council which sets out limitations on the use or development of the land.
An easement gives rights to other parties to use the land or provide for services or access on, under or above the surface of the land.
A building envelope defines the development boundaries for the land. Aside from mortgages, the above encumbrances can potentially limit or even prevent certain types of proposals.
Encumbrances are identified on the title (register search statement) under the header "encumbrances, caveats and notices". The actual details of an encumbrance are usually provided in a separate document (instrument) associated with the title. Sometimes encumbrances are also marked on the title diagram or plan, such as easements or building envelopes.
Title information confirms the location and dimensions of the land specified in the planning application and any obligations affecting what can be done on or with the land.
As well as describing the land, a full copy of the title will include a diagram or plan of the land and will identify any encumbrances, caveats and notices.
The title information accompanying your application must include a "register search statement" and the title diagram, which together make up the title. In addition, any relevant associated title documents, known as "instruments", must also be provided to make up a full copy of the title.
Check the title to see if any of the types of encumbrances, such as a restrictive covenant, section 173 agreement, easement or building envelope, are listed. If so, you must submit a copy of the document (instrument) describing that encumbrance. Details of mortgages do not need to be provided with planning applications.
Some titles have not yet been converted by Land Services Victoria into an electronic format. In these earlier types of titles, the diagram and encumbrances are often detailed on the actual title, rather than in separate plans or instruments.
A "caveat" is a record of a claim from a party to an interest in the land. Caveats are not normally relevant to planning applications as they typically relate to a purchaser, mortgagee or charge claim, but can sometimes include claims to a covenant or easement on the land. These types of caveats may affect your proposal.
Other less common types of obligations may also be specified on title in the form of 'notices'. These may have an effect on your proposal, such as a notice that the building on the land is listed on the Heritage Register.
Encumbrances may affect or limit your proposal or prevent it from proceeding. Section 61(4) of the Planning and Environment Act 1987 for example, prevents a council from granting a permit if it would result in a breach of a registered restrictive covenant. If the proposal contravenes any encumbrance, contact the council for advice on how to proceed.
You may be able to modify your proposal to respond to the issue. If not, separate procedures exist to change or remove the various types of encumbrances from the title. The procedures are generally quite involved and if the encumbrance relates to more than the subject property, the process will include notice to the affected party.
You should seek advice from an appropriately qualified person, such as a solicitor, if you need to interpret the effect of an encumbrance or if you seek to amend or remove an encumbrance.
Selecting the option, "Yes", from the options under the heading Title Information - Encumbrances on title triggers a mandatory action to "Add Covenant Document". When adding the document "Copy of Title" you have the option to check "Covenant is included with Copy of Title". If you check this option the mandatory action to "Add Covenant Document" is removed from your actions list.
If you require further information, see User Guide 1 - Creating an application in SPEAR.
