When you have a contract between the Council and a landowner, make sure your interests are protected.

Rose Lawyers on 5 July 2016

People often believe that 'my home is my castle', and that they can do whatever they want with their property. However, this usually is not the case.

Owning a piece of land typically comes with restrictions on what you can and cannot do with it, from what kind of developments you can build to the activities undertaken therein. Some of these restrictions are found in a Section 173 Agreement.

Here is an introduction to what a Section 173 Agreement is and what restriction they can place on your property.

What is a Section 173 Agreement?

A Section 173

A Section 173 places restrictions on how you can use the land.

A Section 173 Agreement is a Contract between the Council and a landowner that places restrictions on how you can use the land.

These agreements are named after Section 173 of the Planning and Environment Act 1987.

Section 173 Agreements tend to guide the character and development of a neighbourhood. They are also intended to ensure compliance with conditions contained in permits granted by the Council and are often used in subdivision matters.

The agreements are usually made between the Council and a landowner. However, this is not always the case, as sometimes a third party may be involved.

Generally speaking, however, when people obtain a permit they may also be required to enter into a Section 173 Agreement that provides continuous restrictions or ongoing requirements on the use or development of the land.

Section 173 Agreements tend to guide the character and development of a neighbourhood.

Common restriction of a Section 173 Agreement

Section 173 restrictions

Section 173 Agreements require you to adhere to specific building and landscaping restrictions.

A Section 173 Agreement must be entered into if and when required by the Council. The agreement binds you and all subsequent landowners until it ends after a specified event or time period outlined in the agreement.

It may require you to adhere to specific building requirements and restrictions that are meant to maintain the style or character of the area.

This can also include requirements for landscaping and the retaining, maintenance and prohibition of certain trees or plants.

Some common restriction included in a Section 173 Agreements include:

  • Preventing further subdivision of the land.
  • Continual monitoring or reporting on the activity undertaken on the land.
  • Making monetary contributions for road construction.

Section 173 disputes

Section 173 disputes

Both Landowners and the Council must agree to any changes made to a Section 173.

Since the Section 173 Agreement is a contract between the Council and a Landowner, all parties must consent for any changes to be made to it.

This means that if you do not agree with the terms of the agreement, you will need to make an application to the Council. Different Councils may have different processes for making amendments to Section 173 Agreements.

If you cannot come to an agreement with the Council on amending the agreement, you can seek a review of the decision, usually done through VCAT.

If you don't agree with a Section 173, you will need to make an application to the Council.

Section 173 legal advice

Section 173 advice

If you want to negotiate the terms of a Section 173, a lawyer can help.

Depending on how your local Council operates, they may or may not provide a template for a Section 173 Agreement.

If they do not provide a template, having a Lawyer can help you get it right the first time which will reduce cost and stress involved in the process.

A lawyer will be able to help with drafting and negotiating the terms of the agreement, as well as in the review process with VCAT where applicable.

If you are working from the Council's template agreement, it helps to have your lawyer review this as well since every property matter will be different.

Get expert advice from Rose Lawyers

Rose Lawyer and Conveyancers are experts in all types of property matters. Whether you need a Section 173 Agreement because of a subdivision or you want to amend the agreement for a property you have purchased, Rose Lawyers can help you out.

We have helped have helped a large number of clients navigate complex legal situations in over 35 years of practising.

For help with your Section 173 Agreement or any other property matter, call Rose Lawyers on 03 9878 5222.