Public positive covenants

A public positive covenant is created under either s.88D or s.88E Conveyancing Act 1919 and imposes obligations on the new owner of the land burdened (the servient tenement), in favour of a prescribed authority. These obligations include:

  • carrying out specified development on or with respect to the land, or
  • the provision of services on or to the land or other land in its vicinity, or
  • the maintenance, repair and/or insurance of any structure or work on the land.

It may also impose any term or condition with respect to the performance (or failure to perform) of any such obligation.

Section 88D provides that a prescribed authority may, by an 'Order' under the Conveyancing Act, impose a public positive covenant on any prescribed land vested in it. Reference to the 'Order' must be specifically referred to in the terms of the covenant.

Section 88E provides that a prescribed authority may impose a public positive covenant on any land not vested in the authority, whether or not the public positive covenant is annexed to other land.

A Prescribed Authority may be:

  • the Crown, or
  • a public or local authority constituted by an Act, or
  • a corporation prescribed for the purpose of a section of the Conveyancing Act 1919.

Examples of public positive covenants include:

  • to construct all buildings only within a specific site shown on the face of the plan
  • to construct and maintain a storm water retention basin system
  • to maintain a building and its foundations, to ensure the safe working of a railway passing beneath it
  • to erect a habitable dwelling upon the land within a certain period of time.

Creation

A public positive covenant may be created by:

Requirements

The instrument creating the public positive covenant must:

  • specify the prescribed authority in which the servient tenement vests (s.88D) and the prescribed authority that is imposing the public positive covenant as the dominant tenement. The covenant is enforceable whether or not the benefit is annexed to other land
  • clearly set out the terms and conditions of the positive covenant.

Title references for the land affected and benefited (where applicable) must be identified.

Only a prescribed authority may hold the dominant right (in the same manner as an easement in gross). No notification regarding the dominant tenement is entered on the Certificate of Title or in the Register.  

Note  A Section 88B Instrument cannot be used to create a public positive covenant over an existing easement.

Powers of the prescribed authority

The prescribed authority having the benefit of the covenant has certain powers of entry and is able to carry out the obligations imposed by the covenant and may recover expenses if the servient owner fails to meet those obligations see s.88F(2) Conveyancing Act 1919.

Variation and release

A release of public positive covenant must be executed by the relevant prescribed authority entitled to enforce the public positive covenant see s.88D(12), s.88E(7) or s.89(8) Conveyancing Act 1919. For Torrens title land a Release or Extinguish a Positive Covenant form 13PRE (PDF 569 KB) must be used.

A variation of public positive covenant must be executed by the relevant prescribed authority entitled to enforce the public positive covenant and must bear written consent of each person against whom the covenant is enforceable see s.88D(13), s.88E(7) or s.89(8) Conveyancing Act 1919. For Torrens title land a Variation or Modification of a Positive Covenant form 13PVM (PDF 539 KB)  must be used.

A public positive covenant may also be released or varied by Court Order. For Torrens title land a Variation or Modification of Positive Covenant form 13PVM (PDF 539 KB) pursuant to s.89(8) Conveyancing Act 1919 must be used.

A deed registered in the General Register of Deeds is used in all cases for Old System land.

Note  There is no provision in the Conveyancing Act 1919 for a public positive covenant to be varied or released in a section 88B instrument.