Why a covenant, an easement or an 88B instrument can stop a CDC

Three documents, one question

A title search shows who owns the land and what is registered against it. An 88B instrument is the document created at subdivision that sets out the easements and restrictions burdening each lot. A covenant is a restriction on how the land may be used or built on, given in favour of somebody else.

Between them they answer a single question: is there anything registered against this land that stops you doing what you want to do on it? Planning standards cannot override the answer.

What turns up in practice

A restriction on the number of dwellings that may be erected on the lot. A restriction on building materials, roof pitch or external finishes, imposed by the original developer. A restriction on the part of the lot that may be built on, which can be more limiting than any setback in the planning standards.

An easement for drainage, sewerage, electricity or access running across exactly the strip of land where the granny flat or the pool was going to go. Easements are not negotiable by design — you build around them or not at all.

A right of way benefiting a neighbour. A positive covenant requiring something to be maintained. Each of these is ordinary, and each can decide a project.

Why we ask at the start, not the end

A title search takes a day and costs very little. A full set of architectural, structural and stormwater drawings takes weeks and costs a great deal more. Checking the cheap document first is not caution, it is arithmetic.

A half day spent on the title is better than a redesign after the plans are drawn — and it is the difference between finding out now and finding out after the client has paid.

If something is registered against your title

It does not automatically end the project. Sometimes the design can be moved. Sometimes the work can be done under a development application instead, because council can consider on merit what a certifier cannot consider at all. Sometimes a restriction can be dealt with, though that is a legal question rather than a certification one.

What it does end is the assumption that the fast pathway is available. Knowing that early is worth a great deal — and it is the first thing we tell you.