If you own property in Victoria, a Section 173 Agreement places restrictions on what you can do with your land.
One of the great joys of owning a property is that you have control over what happens to it. Whether you want to renovate your kitchen, put a swimming pool in the backyard or simply hammer a nail into the wall so you can hang a picture, you have the freedom to do so.
But that doesn’t mean you can do anything you want with your property. There are restrictions on how you can develop it, the activities you can conduct on the land and a range of other issues, and it’s important to be aware of these before you purchase a property.
In Victoria, restrictions applying to a property are detailed under what is known as a Section 173 Agreement. Let’s take a closer look at how these agreements work and how they could affect you.
What is a Section 173 Agreement?
A Section 173 Agreement is an agreement between a Victorian local council and a landowner. This type of contract places a range of restrictions on how you can use the land you own and it is registered on the title to the land.
Section 173 Agreements get their name from the portion of the Planning and Environment Act 1987 on which they are based. Their basic purpose is to lay down guidelines concerning the development of a neighbourhood and to help satisfy planning objectives, but they can also be used to ensure that landowners satisfy any conditions outlined in development or subdivision permits they obtain from their local council.
Who enters into a Section 173 Agreement?
In the vast majority of cases, Section 173 Agreements are made between a local council and a landowner, or between a council and a person who it is anticipated will become the owner of the land.
However, there may also be additional parties who are bound by the terms of an agreement. For example, a planning authority or a developer interested in using the land may also be included in the contract.
It’s also important to point out that a Section 173 Agreement can be registered over the title to the land in question. This means that not only are current landowners and occupiers bound by the agreement, but future landowners and occupiers as well. For example, an agreement may prohibit the development of a particular parcel of land for residential purposes now and for a specific time period into the future.
When is a Section 173 Agreement required?
Section 173 Agreements are used to impose restrictions on how land can be used in a wide variety of circumstances, including:
- To protect native vegetation
- To allow subdivision of the land before the completion of the development of the land
- To prevent further subdivision
- To provide for the ongoing monitoring and reporting of activity undertaken on the land
- To provide for the maintenance of a particular facility on the land
- To provide for the creation and maintenance of infrastructure
- To provide for staged developments
- To coordinate development with adjoining landowners
- To set out an agreement for monetary contributions for the construction of a road
The conditions in an agreement bind all current and future landowners and occupiers until a specified event occurs or a specified time period finishes.
How can I get a Section 173 Agreement drawn up?
A Section 173 Agreement is an important legal document, so it’s vital to obtain independent legal advice before having a contract drawn up.
An agreement can be prepared by solicitors acting on behalf of you or your local council. The contract must be prepared to the satisfaction of all parties entering the agreement, so if your solicitor draws up the agreement it will then need to be approved by the council’s solicitors. You will need to cover the legal costs incurred in the preparation of the document.
Any Section 173 Agreement must be approved and signed by the council at a council meeting. Once this has occurred the agreement can then be registered on the title to the land. Applications to register the agreement can be made with Land Victoria and this will usually be done by your solicitor. A Dealing Number will be provided as confirmation that the Section 173 Agreement has been registered.
What if I want to change an agreement?
If you want to make any changes to a Section 173 Agreement, all parties will need to approve the changes as it is a binding contract. So if you’re not satisfied with the existing terms of an agreement, you’ll need to make an application to the council. The exact process for dealing with proposed changes to an agreement varies from one council to the next, so contact your local council for more information.
If you can’t agree to new terms with your council, the next course of action is to apply to VCAT (Victorian Civil and Administrative Tribunal) for an amendment. Any disputes relating to the terms and conditions of an agreement may also be referred to VCAT for assessment.
Finally, remember that if you fail to comply with the terms of an agreement, you may be subject to a hefty fine and potentially prosecution in the Magistrates’ Court. The council may also apply for an enforcement order to prevent you breaking the terms of the agreement.