NSW Title Restrictions Explained
Planning consent isn't the whole picture. The title to your NSW property may carry private restrictions — covenants, easements, 88B Instruments, 88E positive covenants — that can stop a project even when council would approve it. Always check the title before you start designing.
To check your title, order a current copy of the certificate of title, the registered plan of subdivision, and any associated 88B Instrument or dealings. NSW Land Registry Services (NSW LRS) is the official source. Your conveyancer or solicitor can also order title searches as part of a contract review.
Common NSW Title Restrictions
88B Instrument
An instrument under Section 88B of the Conveyancing Act 1919 used to create restrictions on use, easements and positive covenants when a plan of subdivision is registered. The 88B Instrument is recorded against every lot in the subdivision and runs with the land.
Examples of how this can affect a project
- •Restrictions on use — "only one dwelling may be erected on each lot"
- •Building envelope or maximum building height controls
- •Restrictions on materials, colours, finishes
- •Easements for drainage, sewerage, electricity, right of carriageway
- •Positive covenants requiring ongoing maintenance (e.g. on-site detention basin)
88E Covenant
A covenant created under Section 88E of the Conveyancing Act 1919 — typically positive covenants imposed in favour of a public authority such as council, a state agency or Sydney Water. Often imposed as a condition of development consent.
Examples of how this can affect a project
- •Maintenance of stormwater systems
- •Restrictions on dwelling occupancy (affordable housing covenants)
- •Restrictions on subdivision
- •Bushfire-related obligations (vegetation maintenance)
Restrictive Covenant (s88B / common-law)
Private restrictions that benefit one parcel of land at the expense of another, registered on title. Common-law covenants and modern s88B restrictions on use can both prohibit certain types of development even when council would otherwise approve it.
Examples of how this can affect a project
- •"No more than one dwelling on the lot"
- •"Materials must be brick or stone — no fibro"
- •"No commercial use"
- •Building envelope and setback restrictions in private estates
Easement
A right granted over part of one property in favour of another — typically for drainage, sewer, electricity, right of carriageway or right of footway. Easements appear on the title and on the registered plan.
Examples of how this can affect a project
- •Can prevent building over sewer or stormwater easements
- •May require easements to be maintained or kept clear
- •Right of way easements affect access and parking layout
Voluntary Planning Agreement (VPA)
An agreement under Section 7.4 of the EP&A Act between a developer and council (or the state) that delivers public benefits — works, dedications, monetary contributions — in connection with development consent. VPAs are typically registered on title via 88E or similar mechanisms.
Examples of how this can affect a project
- •Affordable housing dedication / contribution
- •Public open space dedication
- •Infrastructure (roads, footpaths, drainage) delivered as part of the development
- •Heritage interpretation works
Heritage Listing on Title
Heritage items on the State Heritage Register and some local heritage listings are noted on title via a Section 170 register or equivalent notation. The notation triggers heritage controls on top of LEP heritage provisions.
Examples of how this can affect a project
- •All works require heritage assessment
- •Permanent listing on the State Heritage Register has stronger controls
- •Works can require approval from the Heritage Council of NSW
How to remove or modify a restriction
Restrictions on title are not always permanent. Depending on the mechanism, they can sometimes be modified by:
- •Application to the Supreme Court under Section 89 of the Conveyancing Act 1919 (most restrictive covenants).
- •Agreement with the beneficiary (where the benefited party is identifiable and willing).
- •Council resolution (for covenants and 88E covenants in council's favour).
- •Surrender or release where parties agree, registered with NSW LRS.
These are slow, costly processes — get legal advice before relying on a path to removal.
Do a Title Check Before You Design
A title search reveals everything registered against the property. For NSW projects we recommend ordering through NSW LRS via your conveyancer or directly online.