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Removing Easements and Covenants in Victoria: What Every Landowner Should Know

Easements and restrictive covenants are common land title restrictions in Victoria, and they can significantly affect how a property is used, developed, or sold. For many landowners, these restrictions become a major obstacle when planning extensions, subdivisions, or redevelopment.

If you are considering removing or modifying an easement or restrictive covenant in Victoria, it’s important to understand what is legally possible, the processes involved, and the risks of proceeding without proper approvals.

This guide explains easement removal and covenant variation in Victoria, the available legal pathways, and key considerations every landowner should be aware of before taking action.

What Is an Easement and How Does It Affect Your Property?

An easement is a legal right that allows another party to use part of your land for a specific purpose. Common examples include:

  • Rights of way
  • Drainage and sewerage easements
  • Utility infrastructure easements

Easements are recorded on the Certificate of Title and generally restrict how the affected portion of land can be built on or altered. While some easements are critical for infrastructure or access, others may be outdated or no longer required.

How to Remove or Modify an Easement in Victoria

Removing an easement in Victoria is not automatic and depends on the type of easement, who benefits from it, and whether it still serves a legitimate purpose. The most common legal pathways are outlined below.

1. Mutual Agreement (Express Release)

The most straightforward way to remove an easement is by obtaining the written consent of all parties who benefit from the easement, such as neighbouring landowners or service authorities.

Once an agreement is reached:

  • A formal release is prepared
  • The documentation is lodged with Land Use Victoria
  • The Certificate of Title is updated

This method is only possible where all benefiting parties agree.

2. Unity of Estates (Merger)

If the same person becomes the owner of both:

  • The land that benefits from the easement (dominant land), and
  • The land burdened by the easement (servient land)

the easement is generally extinguished under common law, as it no longer serves a legal purpose. This typically occurs through land consolidation or acquisition.

3. Abandonment (Limited and Rare)

In limited circumstances, an easement may be extinguished if there is clear evidence that the benefiting party has intentionally abandoned their rights.

Importantly:

  • Non-use alone is not sufficient, even over a long period
  • Strong evidence is required to show an intention to permanently abandon the easement
  • Each case is assessed on its specific facts

Because abandonment is difficult to prove, it is one of the least reliable methods of easement removal in Victoria.

4. Supreme Court Order

If agreement cannot be reached, a landowner may apply to the Supreme Court of Victoria for an order to remove or modify an easement.

The Court may consider factors such as:

  • Whether the easement is obsolete
  • Whether it unreasonably restricts the land
  • Whether its removal would cause material detriment to others

This option is typically used as a last resort due to cost and complexity.

5. Easement Removal Through Subdivision or Statutory Processes

Easements can sometimes be created, varied, or removed as part of a Plan of Subdivision under the Subdivision Act 1988 (Vic).

This process:

  • Requires council certification
  • Often involves referral authority consent
  • Must be supported by appropriate planning or technical justification

Council discretion alone is not sufficient — statutory and authority requirements must still be met.

What Is a Restrictive Covenant?

A restrictive covenant is a legal restriction placed on land that limits how it can be used or developed. Common examples include:

  • Limiting the number of dwellings
  • Restricting building materials or heights
  • Preventing certain uses or developments

Restrictive covenants are binding on current and future owners and are typically more complex to remove than easements.

How to Remove or Vary a Restrictive Covenant in Victoria

1. Planning Permit to Remove or Vary a Covenant

In Victoria, landowners may apply to their local council for a planning permit to vary or remove a restrictive covenant. The assessment process depends on when the covenant was created.

Covenants created before 25 June 1991

  • A permit can only be granted if all beneficiaries consent or
  • Council is satisfied no beneficiary will suffer material detriment

Covenants created on or after 25 June 1991

  • Council may grant a permit if it is satisfied no beneficiary will suffer material detriment

All affected landowners must be notified, and objections may be lodged.

2. VCAT Appeals

If a planning permit application is refused or objected to, the matter may be reviewed by the Victorian Civil and Administrative Tribunal (VCAT).

VCAT assesses:

  • Planning impacts
  • Whether beneficiaries suffer material detriment

Whether removal or variation is justified

3. Supreme Court Order

A landowner may also apply directly to the Supreme Court of Victoria to remove or vary a restrictive covenant.

This pathway is commonly used where:

  • The covenant is outdated due to changes in the area
  • The restriction no longer provides a practical benefit

Planning approval alone is insufficient

4. Planning Scheme Amendment (Limited Use)

For large-scale or strategic changes, a planning scheme amendment may be pursued. This is a lengthy process and is usually reserved for major developments rather than individual properties.

Key Considerations Before Removing Easements or Covenants

Review Your Certificate of Title

Always confirm:

  • The type of restriction
  • Who benefits from it
  • Whether multiple beneficiaries are involved

Seek Professional Advice Early

Easement and covenant removal involves planning law, property law, and statutory processes. Early advice can prevent costly errors and unrealistic expectations.

Never Build Without Approval

Building over an easement or in breach of a covenant without proper consent can result in:

  • Enforcement action
  • Mandatory demolition
  • Significant financial loss

Expect Objections

Benefiting parties have legal rights and may object. This can lead to delays or tribunal proceedings.

Check for Hidden Services

Using Dial Before You Dig can help identify utility infrastructure that may not be obvious from the title alone.

Final Thoughts on Easement and Covenant Removal in Victoria

Removing or modifying easements and restrictive covenants in Victoria is possible, but it is rarely simple. Each site requires careful legal and planning assessment, and outcomes depend on title details, beneficiary rights, and statutory controls.

Disclaimer: This article provides general information only. Easement and covenant outcomes depend on site-specific legal and planning circumstances. Professional advice should be obtained before proceeding.

Need Advice on Easement or Covenant Removal?

Every property is different, and incorrect assumptions about title restrictions can lead to costly delays or failed development proposals.

At Prime Land Consultants, we assist landowners with:

  • Easement and covenant feasibility advice
  • Planning permit applications for covenant variation or removal
  • Subdivision strategies involving easement modification
  • Coordination with councils, surveyors, and legal advisors

We provide clear, practical guidance so you understand what is achievable before committing time and money.

Contact Prime Land Consultants today to discuss your property and get expert advice on removing easements or restrictive covenants in Victoria.

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