The title of a NSW property can restrict development in ways the LEP never mentions, through easements, restrictions on the use of land and positive covenants recorded in a Section 88B instrument or on the folio itself. A restriction limiting the lot to a single dwelling can stop a duplex that the zoning permits, an easement to drain water can sit exactly where the second dwelling wants to go, and a positive covenant can oblige you to maintain a detention tank or an asset protection zone forever. Reading the title search, the deposited plan and the 88B instrument before exchange is the cheapest check in development due diligence and the one most often skipped.
Key takeaways
- A Section 88B instrument under the Conveyancing Act 1919 is created when a plan is registered and lists the easements, restrictions and positive covenants affecting each new lot.
- Restrictions on use in growth area estates commonly limit lots to one dwelling, fix building envelopes or control materials, and they bind regardless of the zoning.
- Clause 1.9A of a Standard Instrument LEP can suspend some private restrictions for development permitted under the LEP, but not those benefiting a public authority.
- Easements are shown on the deposited plan; a dwelling cannot normally be built over one without the consent of the benefited party.
- Restrictions can be released or varied by the benefited party or by court order under the Conveyancing Act, but neither is quick or guaranteed.
What a title search actually shows
A current title search from NSW Land Registry Services has two schedules. The first identifies the registered owner. The second lists the interests affecting the land: mortgages, caveats, leases, and the items that matter to a developer, which are easements, restrictions on use, positive covenants and any reference to a Section 88B instrument by plan number. The search tells you these exist. It does not tell you what they say. For that you need the deposited plan, which draws the easements, and the 88B instrument, which sets out the terms of every easement, restriction and covenant created with that plan.
The 88B instrument, item by item
Section 88B of the Conveyancing Act 1919 lets a subdivider create easements, restrictions and positive covenants by registering an instrument with the plan of subdivision. In a modern estate in Oran Park, Gregory Hills, Marsden Park or Box Hill the instrument can run to thirty pages. Each item names the type, the lots burdened, the lots or authority benefited, and the terms.
| Item type | What it commonly does | Who usually holds the benefit |
|---|---|---|
| Easement to drain water | Allows a pipe across the lot; no building over it without consent | Uphill lots, sometimes the council |
| Easement for services or electricity | Reserves a strip for a substation, cable or main | Endeavour Energy, Ausgrid, Sydney Water or the council |
| Right of carriageway | Shared driveway access over a battle-axe handle | The rear lot |
| Restriction on use of land | One dwelling only, building envelope, materials, fencing, no further subdivision | The developer of the estate, the council, or every other lot |
| Positive covenant | Obliges the owner to maintain on-site detention, an asset protection zone or a flood evacuation plan | The council or a public authority |
Restrictions on use: the item that stops duplexes
The restriction we see most often reads, in effect, “no more than one dwelling shall be erected on the lot”. Estate developers in the South West and North West Growth Areas used it widely to protect the character of a release while the estate was selling. It binds the land regardless of the fact that Camden LEP 2010 or Blacktown LEP 2015 permits dual occupancies in the zone. Other common restrictions fix a building envelope, require a particular roof pitch or wall material, or prohibit subdivision below the original lot size.
Three questions decide if the restriction is a problem. Who holds the benefit? If the estate developer holds it, a release may already exist or may be given on request. If the council holds it, the council must agree. If every other lot holds it, every owner in the group has to release it, which is rarely practical. Does the instrument have a sunset? Some restrictions expire after a set period. And does clause 1.9A of the LEP suspend it?
Clause 1.9A: when the LEP overrides the covenant
Clause 1.9A (Suspension of covenants, agreements and instruments) in the Standard Instrument LEP states that, for the purpose of enabling development permitted under the LEP to be carried out, an agreement, covenant or similar instrument that restricts that development does not apply to the extent necessary to serve that purpose. In plain terms, a private covenant between lot owners that says “one dwelling only” can be suspended so that a council can consent to a dual occupancy the LEP permits.
The clause has important exceptions. It does not apply to covenants or instruments in favour of, or for the benefit of, a public authority, which includes the council. It does not apply to certain agreements the Act protects. And the suspension works for the purpose of the development consent; it does not remove the restriction from the title, and a benefited neighbour may still have a private remedy. Whether clause 1.9A reaches a particular instrument is a legal question, and we ask a property lawyer to confirm it before a client relies on it. Councils such as Camden and Liverpool often ask for that advice with the DA.
Easements: where the pipe is and what you can build near it
An easement to drain water or for services reserves a strip of land, usually 1 to 3 metres wide, and the benefited party can enter to maintain the pipe. Building over it without consent is a breach, and most councils will not consent to a dwelling over a drainage easement at all. Sydney Water sewer mains are protected by easements or by the building over or adjacent to assets rules, and electricity easements around substations carry clearance rules set by the network operator.
An easement is a no-build zone until proven otherwise, so we plot every easement on the survey before the concept layout is drawn. On battle-axe lots, the right of carriageway also fixes the driveway width, and a 3 metre carriageway will not meet a 3.5 metre DCP handle requirement by moving a fence.
Positive covenants and Section 88E
A positive covenant obliges the owner to do something, rather than to refrain. Councils impose them under Section 88E of the Conveyancing Act 1919 as a condition of consent, most commonly requiring the owner to maintain an on-site detention system, keep an asset protection zone clear of vegetation, or maintain a flood-compatible design. They pass with the land, and a buyer inherits the obligation.
Removing or varying a restriction
- Release by the benefited party. The estate developer or the council signs a release, which is registered against the title. This is the quickest route where the benefited party agrees.
- Variation under Section 88B. Where the instrument names an authority empowered to release, vary or modify the item, that authority can do so by a registered instrument.
- Court order under Section 89. The Supreme Court can modify or extinguish a restriction that is obsolete or impedes the reasonable use of the land without practical benefit to anyone. This takes months and costs real money.
- Creation of an easement under Section 88K. Where a drainage easement over a neighbour is reasonably necessary and the neighbour refuses, the court can impose one with compensation.
None of these belongs in a feasibility as a certainty. If the yield depends on lifting a restriction, treat the release as a condition of purchase or price the risk of not getting it.
Frequently asked questions
What is a Section 88B instrument?
It is the document registered with a plan of subdivision under Section 88B of the Conveyancing Act 1919 that creates the easements, restrictions on use and positive covenants affecting the new lots. It states which lots are burdened, which lots or authorities are benefited, and who can release or vary each item.
Can a single dwelling restriction stop me building a duplex?
Yes. A restriction on use limiting the lot to one dwelling binds the land even where the LEP permits a dual occupancy. Clause 1.9A of the LEP may suspend a private restriction for the purpose of a consent, but it does not apply to restrictions benefiting the council, so get legal advice before relying on it.
Can I build over a drainage easement in NSW?
Not without the written consent of the benefited party and, in practice, the council. Most councils refuse habitable structures over drainage easements. Light structures such as paving or a pergola are sometimes accepted with conditions. Plot the easement on the survey before any layout is drawn.
URBA reads the title, the deposited plan and the 88B instrument on every site we assess and tells you which items affect the yield and how they can be dealt with. See our development due diligence report service and our subdivision planning page, or request a fee proposal for a site in Camden or anywhere across NSW.