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Removing a restrictive covenant in Tasmania — you might not need a court

Every mainland state makes you go to a court to clear a covenant on the merits. Tasmania doesn't: applications to extinguish or modify a covenant are made under the Conveyancing and Law of Property Act 1884 to the Recorder of Titles — an administrative decision-maker — and one of the express grounds is that the covenant impedes using your land in accordance with the planning scheme. Here's how the framework works, and the one big exception.

Tasmanian owners, buyers and developers whose plans — a second dwelling, units, a subdivision — have hit a covenant on the folio or the sealed plan, and want the realistic removal pathway.

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How covenants bind Tasmanian land

Tasmanian titles carry restrictions in a few forms: covenants in registered dealings noted on the folio of the Register, restrictions embodied in the Schedule of Easements on a sealed plan of subdivision, and planning agreements with the council (Part 5 agreements) noted on title. Older suburban subdivisions commonly carry single-dwelling, building-materials or setback covenants from the original developer; sealed plans from later subdivisions often embed their restrictions in the plan itself.

The Act gathers most of these under one label — an 'overriding interest' is defined to include any condition or covenant restricting the use of land (outside leases), any easement, and any restriction arising from a notation on the folio or a lodged plan. That definition matters because the whole removal framework in Part IXB of the Conveyancing and Law of Property Act 1884 operates on overriding interests — covenants and easements are cleared through the same door.

The grounds: s84C — including a planning-scheme ground no mainland state states so directly

Under section 84C, the tribunal may extinguish or modify an overriding interest if satisfied of any of these: the interest has become obsolete through changes in the character of the property or neighbourhood or other material circumstances; its continued existence would impede a use of the land in accordance with a planning scheme; it would impede some other reasonable use for public or private purposes; the people entitled to its benefit have agreed — expressly or by implication — to its extinguishment or modification; or the change will not injure the persons entitled to the benefit.

Read ground two again, because it's Tasmania's quiet advantage: if the Tasmanian Planning Scheme zone applying to your land supports the use you want — multiple dwellings in the General Residential Zone, say — and the covenant stands in the way, impeding scheme-conforming use is itself an express statutory ground. Mainland courts weigh planning context indirectly; Tasmania wrote it into the test.

Obsolete — character of the property or neighbourhood has changed
Impedes use in accordance with the PLANNING SCHEME (the express planning ground)
Impedes some other reasonable public or private use
Beneficiaries have agreed — expressly or by implication
No injury to those entitled to the benefit

The unique bit: apply to the Recorder of Titles, not (necessarily) a court

In Victoria, NSW and Queensland, merits-based covenant removal means the Supreme Court (or, in Victoria's case, a planning permit process with its own difficulties). Tasmania's Part IXB instead lets the Recorder of Titles determine applications: under section 84F the Recorder may decide the application personally — exercising the tribunal's full jurisdiction — unless the Recorder considers the matter should go to the Supreme Court. The Court remains available: proceedings can be removed into it (s84G), and any person aggrieved by the Recorder's decision can appeal.

Practically, that makes Tasmania the most accessible covenant-removal jurisdiction in the country: a documented application to an administrative decision-maker, with orders that — once made and registered — bind everyone entitled to the interest (s84H). Contested or complex matters still end up before the Court, and beneficiaries are notified and can object — this is a genuine merits process, not a rubber stamp.

The exception and the neighbours: sealed plans and Part 5 agreements

The s84C pathway has one carve-out that catches many modern estates: it does not apply to an overriding interest 'having effect by virtue of a plan of subdivision' — a sealed plan under the Local Government (Building and Miscellaneous Provisions) Act 1993. Restrictions embodied in the sealed plan itself are dealt with through the sealed-plan amendment process under Part 3 of that Act — a council process — rather than a Recorder application. Which regime your covenant lives under is the first thing to establish from the documents.

Part 5 agreements (under the Land Use Planning and Approvals Act 1993) are different again: planning agreements with the council, noted on title, binding successive owners — commonly securing bushfire management, servicing or development conditions. They are varied or ended with the council, not through s84C. And as everywhere in Australia: a planning permit does not override a covenant — the permit and the private restriction are separate systems, which is exactly why the removal framework matters.

What to do first

Get the documents. The Tasmanian Title + Plan bundle ($35 — the plan comes with the folio at no extra charge, delivered within a business day) shows the folio with its notations, the sealed plan and its Schedule of Easements, and copies of registered covenants and Part 5 agreements. That one order answers the threshold questions: is there a covenant, what exactly does it say, and does it live on the folio (Recorder pathway) or in the sealed plan (council pathway)?

Then line up the planning side — because in Tasmania the planning scheme isn't just context, it's a ground. The free TAS Property Snapshot shows your zone under the Tasmanian Planning Scheme, and the $39 TAS planning report gives a plain-English read on whether the scheme supports the use the covenant blocks. If it does, you have the makings of a s84C(1)(b) case — and our planners can help you frame it.

Real example

Worked example — folio covenant vs sealed-plan covenant

A 1962 'one dwelling only' covenant in a registered transfer on a Hobart General Residential Zone lot, where the owner wants two units: the zone supports multiple dwellings, so the owner applies to the Recorder under s84C(1)(b) — the covenant impedes use in accordance with the planning scheme — with the neighbourhood's changed character (unit developments either side) supporting obsolescence as a second ground. Contrast the buyer in a 1998 subdivision whose 'no second storey' restriction sits in the sealed plan's schedule: that one is outside s84C entirely, and relief runs through the council's sealed-plan amendment process instead.

The statutory basis

Covenant and easement removal in Tasmania is Part IXB of the Conveyancing and Law of Property Act 1884 (Tas): section 84A defines 'overriding interest' (covenants restricting use, easements, folio-notation restrictions); section 84C sets the extinguishment/modification grounds — obsolescence, impeding use in accordance with a planning scheme, impeding reasonable use, agreement, or no injury — and excludes interests having effect by virtue of a plan of subdivision; sections 84F–84G allocate determination between the Recorder of Titles and the Supreme Court; section 84H makes orders binding. Sealed plans are Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas). Part 5 agreements arise under the Land Use Planning and Approvals Act 1993 (Tas). This page is general information, not legal advice — the covenant's own wording and where it is recorded govern everything.

Conveyancing and Law of Property Act 1884 (Tas) s 84C

Grounds to extinguish or modify — including impeding use in accordance with a planning scheme

Conveyancing and Law of Property Act 1884 (Tas) ss 84F–84G

Recorder of Titles determines applications; Supreme Court referral and appeal

Conveyancing and Law of Property Act 1884 (Tas) s 84A

'Overriding interest' — covenants, easements, folio-notation restrictions

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas) Pt 3

Sealed plans — restrictions in a plan of subdivision are varied through the council sealed-plan process

Land Use Planning and Approvals Act 1993 (Tas) Pt 5

Planning agreements noted on title, binding successors

Frequently asked questions

Can I remove a restrictive covenant in Tasmania?

Yes — and more accessibly than anywhere else in Australia. Under s84C of the Conveyancing and Law of Property Act 1884 you apply to extinguish or modify the covenant on grounds including obsolescence, that it impedes use of the land in accordance with the planning scheme, agreement of the beneficiaries, or no injury to them. The application is determined by the Recorder of Titles (with referral or appeal to the Supreme Court for contested matters).

Do I need to go to the Supreme Court?

Often not. Tasmania's Part IXB lets the Recorder of Titles determine covenant and easement applications directly — the Recorder refers matters to the Supreme Court only where they warrant it, and an aggrieved party can appeal. Contested or high-stakes matters still end up before the Court, but the entry point is administrative.

Does the planning scheme help my covenant-removal case?

In Tasmania, explicitly yes. s84C(1)(b) makes it a ground that the covenant's continued existence 'would impede a user of the land in accordance with a planning scheme'. If your zone under the Tasmanian Planning Scheme supports the use — multiple dwellings in General Residential, for instance — the covenant impeding it is itself a statutory reason to modify or extinguish. No mainland Act states the planning connection that directly.

Does a planning permit override a covenant in Tasmania?

No. The permit is assessed under the planning scheme; the covenant is a private property right. Council doesn't enforce covenants and a permit doesn't cancel them — you can hold a permit for two units and still be exposed under a single-dwelling covenant until it's modified or extinguished. That's precisely what the s84C pathway is for.

My covenant is in the sealed plan — does s84C apply?

No — that's the framework's main carve-out. An overriding interest having effect by virtue of a plan of subdivision (a sealed plan) is excluded from s84C; restrictions embodied in the sealed plan are dealt with through the council's sealed-plan amendment process under the Local Government (Building and Miscellaneous Provisions) Act 1993. Establishing which regime your covenant lives under is step one — it's visible from the title documents.

What is a Part 5 agreement?

A planning agreement between an owner and the council under Part 5 of the Land Use Planning and Approvals Act 1993 — Tasmania's equivalent of a Victorian s173 agreement. It's noted on title, binds future owners, and commonly secures bushfire management, servicing or development-condition obligations. It's varied or ended with the council — not through s84C.

How do I find out what covenants affect my Tasmanian property?

Order the Title + Plan bundle ($35 — the plan is included with the folio, delivered within a business day). The folio shows registered dealings and notations; the sealed plan and Schedule of Easements show plan-embodied restrictions; copies of covenants and Part 5 agreements can be included. One order answers what binds you and which removal pathway applies.

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