Why do I need a Positive Covenant and Restriction before Council will give me my Occupation Certificate?
The registration of a positive covenant and restriction for an onsite detention system (or similar) (OSD) is often one of the final hurdles before an Occupation Certificate can be issued in respect of a new build.
These are sometimes referred to as “Section 88E requirements”. Essentially, they create both the right in favour of the Council for the OSD to be installed and remain on the land, and also govern the restrictions on how that affected part of the land can be used. They create a permanent interest in the land in favour of the Council.
What is a Positive Covenant and a Restriction?
A positive covenant is a legal obligation imposed on the owner of a property to do something, rather than refrain from doing something (which would be a negative or restrictive covenant). Common examples include the obligation to:
- Maintain a shared driveway or retaining wall
- Contribute to the cost of communal infrastructure
- Preserve landscaping or environmental features
- Provide access to services or amenities for adjoining properties
These covenants are frequently used by developers or local councils to ensure long-term compliance with development conditions and infrastructure maintenance.
A restriction does exactly what it says. It restricts the owner of a property from doing something on its own land.
Why are they needed for Onsite Detention Systems (and similar infrastructure)?
Where onsite infrastructure for stormwater detention etc is required as part of a Development Consent, Councils require a permanent interest to be created in the land to enable the infrastructure to be installed, utilised and maintained (the Positive Covenant). Council also requires the permanent legal right to prevent the owner from interfering with the infrastructure (the Restriction).
How Penmans Can Help
Every week the Penmans property team help new and existing clients with this final hurdle in the development process. We understand that by the time you get to this stage you just want it done!
We understand this, which is why we are the law firm of choice for surveyors and builders all over NSW to assist with getting this requirement met smoothly for their clients.
It does not matter where in NSW your property is, we can help, and we will do so for a fixed fee.
Next steps
Download our fixed fee package on Positive Covenants and Restrictions.
Complete our contact form and a member of our property team will be in touch with you shortly.