Removing easements and restrictive covenants: evolving consent requirements and practical pathways

Easements and restrictive covenants are common features on land titles, particularly in large-scale subdivisions and estate developments. While they often serve an important purpose at the time of creation, they can become outdated or commercially restrictive as projects evolve.

For land developers and landowners in WA, removing these encumbrances is not always straightforward and can create practical challenges. Landgate (WA’s Land Information Authority) recently published a Consultation Paper on the consent requirements for the creation, modification and removal of restrictive covenants. The Minister for Lands, together with Landgate is in the process of considering legislative reform to provide a simplified approach to obtaining consents.

The Changing Consent Landscape

Traditionally, the removal or variation of easements and restrictive covenants required the consent of parties with the benefit of those interests. However, in some circumstances it can be difficult to identify all the parties required to consent and a person may be legislatively required to consent even if that person has no practical vested interest or benefit. 

This results from there being inconsistent legislative requirements for consents contained within the five separate pieces of legislation in WA that deals with easements and restrictive covenants, being: 

• Transfer of Land Act 1893 (TLA);

• Strata Titles Act 1985;

• Community Titles Act 2018;

• Planning and Development Act 2005; and 

• Land Administration Act 1997.

In practice, obtaining consent can cause a significant administrative burden and the Registrar of Titles has no statutory basis to waive the requirements for consent. For example, where a restrictive covenant benefits multiple lots within an estate, each registered proprietor and each person with an interest in each lot (e.g. mortgagee and caveators) may need to provide written consent. This can quickly become unworkable in mature developments.

The Consultation Paper highlights this tension, recognising that while consent requirements protect the rights of benefiting parties, they can also frustrate legitimate attempts to update titles where an encumbrance no longer serves a useful purpose.

Why Consent Can be Difficult to Obtain

From a developer’s perspective, there are several common challenges:

• Volume of beneficiaries: Covenants created at subdivision stage often benefit dozens of lots, requiring widespread engagement with individual owners.
• Lack of commercial incentive: Lot owners may have little motivation to engage or provide consent.
• Administrative complexity: Mortgagee consent and formal execution requirements can add further delay.

These issues mean that, in some cases, obtaining unanimous consent is not just difficult, but practically impossible.

An Alternative Pathway: Supreme Court Relief

Where consent cannot be obtained, section 129C of the TLA provides an important alternative mechanism.

This provision allows the Supreme Court to extinguish, discharge or modify an easement or restrictive covenant without requiring unanimous consent, provided certain criteria are met.

Broadly, the Supreme Court may grant relief where:

• The encumbrance is obsolete or unreasonable
  For example, where changes in the character of the land or surrounding area mean the easement or covenant no longer serves a meaningful purpose
• The benefit has effectively been abandoned or waived
  This may be inferred from the conduct of benefiting parties
• There is no substantial injury to benefiting parties
  The Court must be satisfied that removing or modifying the interest will not materially prejudice those entitled to its benefit

If one or more of these grounds is established, the Court has discretion to order full removal or partial modification and may impose conditions such as compensation.

Practical Considerations for Developers and Land Owners

While section 129C of the TLA provides a valuable pathway, it is not without cost or complexity. Developers and landowners should be aware that:

• Proceedings must be commenced in the Supreme Court.
• Evidence is required to demonstrate that the statutory criteria are met.
• Notice may need to be given to benefiting parties and local government, including by advertisement.
• Timing and costs will be involved.

That said, in circumstances where consent is impractical to obtain, this pathway may be the only viable option to unlock development potential or finalise land dealings.

Looking Ahead

There is recognition that the current consent framework requires reform, and Landgate’s Consultation Paper is a meaningful step in that direction. The approach to consent requirements underscores the importance of early due diligence when dealing with easements and restrictive covenants. Taking a strategic approach to title constraints is critical to avoiding delays and preserving project value. 

Jackson McDonald will continue to monitor developments in this area and provide updates as the law reform process progresses.

For specific legal advice, please contact Bianca McGoldrick, Partner Real Estate or Matthew Reid, Partner Dispute Resolution.

Thanks and credit to David Chen, Graduate who helped draft this article.