Section 173 Agreements

Section 173 Agreements are enforceable legal documents with penalties for breaches

Section 173 Agreements are enforceable by Council, and Council takes breaches to Section 173 Agreements very seriously. As such, landowners are obliged to comply with the provisions of a Section 173 Agreement affecting their land. If an unforeseen circumstance eventuates which requires your proposal to deviate from any requirement contained within your agreement, you are strongly encouraged to obtain advice from Council’s Planning Department to establish what legal avenues are available to you prior to proceeding. Contacting Council Planning Department before undertaking any deviations from the requirements of your agreement may avoid the issuing of a Planning Infringement Notice or further legal prosecution.

 

What is a Section 173 Agreement and why are they needed?

A Section 173 Agreement is a legal agreement made between Council and the landowner under Section 173 of the Planning and Environment Act 1987. In some cases, a third party, such as a referral authority (such as a water authority or fire authority), may also be involved in an agreement. This is generally applied to prevent unsuitable or undesirable planning outcomes where regular planning provisions are insufficient for requirements.

Once an agreement is signed by all relevant parties, it is lodged with the Land Titles Office and registered on the relevant title/s by a dealing number. This remains on the title regardless of changes to land ownership into the future and may only be removed with agreement by all parties via the End or Amend a Section 173 Agreement Process.

An agreement may provide for:

  • The prohibition, restriction or regulation of the use or development of the land
  • The conditions subject to which the land may be used or developed for specified purposes
  • Any matter intended to achieve or advance the objectives of planning in Victoria or the objectives of the Hepburn Shire Planning Scheme or an amendment to the Planning Scheme, for which notice has been given

A Section 173 Agreement may be used, for example

  • To protect native vegetation
  • To restrict development to within an approved building envelope
  • To prevent development in an approved building exclusion zone
  • To ensure development of land is undertaken in accordance with a planning permit
  • To secure off-site vegetation planting to compensate for approved removal of native vegetation
  • To prevent the further subdivision of land

There are two processes involved with Section 173 Agreements; Creation of and ending or amending a Section 173 Agreement. The third process relates to requesting a variation to a Section 173 Agreement or restrictive covenant on title.

Process for creating a Section 173 Agreement

Some Planning Permits will have a condition stipulated that a Section 173 Agreement will need to be entered into and lodged with Land Titles, to arrange for this a request should be submitted in writing to shire@hepburn.vic.gov.au stating the following:

  • Planning Permit number
  • Property Address
  • Property owner details
  • Title for property concerned

Once received the applicant has the following two options available:

  1. Council Lawyers draw up agreement and lodge with Land Titles, the associated fee is listed on the Forms, Fees and Checklists page of HSC website
  2. Your chosen Legal Representative draws up the agreement and this is reviewed by Council Lawyers, the associated fee charged is to cover full costs incurred – Please note that if this option is preferred Council Lawyers will need to lodge agreement with Land Titles

It is the applicant’s responsibility to sign and have witnessed the agreement and have relevant Authorities, including in some instances the Mortgagee, sign agreement and return to Council’s Planning Department for the Council’s delegate signature as a final step before Council Lawyers lodge the agreement with the Land Titles.

 

Registration of a Section 173 Agreement:

A S173 Agreement must be registered on the title to the land to which it applies. This ensures that all future landowners are aware of, and bound by, and must comply with the requirements of the S173 Agreement in full. It is the applicant’s responsibility to ensure that the Agreement is registered at the title’s office in a timely manner.

The applicant will be invoiced at the end of the process and once completed will be advised by Councils Lawyers of the dealing number associated with application.

Process for Amending or Ending a Section 173 Agreement

Some Section 173 Agreements afford landowners the opportunity to seek Council consent to vary some requirements contained within the agreement. This opportunity is generally provided for in the agreement by the use of the phrase ‘except with the prior written consent of Council’. An agreement may end after a specified event or time if outlined in the agreement. If the agreement does not specify a mechanism for the ending of the agreement, the owner or another interested party can lodge with Council a request to end the agreement. This application must address the matters identified in Section 178(B) of the Planning and Environment Act 1987.

A request can also be lodged by the owner, or another interested party to the land seeking a variation to a Section 173 Agreement and again this application must address the matters identified in Section 178(B) of the Planning and Environment Act 1987.

In both situations, Council recommends that advice is sought from a legal practitioner prior to lodging such an application, as in some situations a legal practitioner will be required to identify the parties affected by the Section 173 Agreement. As part of Council’s consideration of the application, other parties to the agreement will be notified of the application and will be afforded an opportunity to object to the proposal to end or vary the agreement.

 Click here to view form.

If you wish to create a variation to a Section 173 Agreement or restrictive covenant on title you will need to submit the Miscellaneous Planning Consent request form which can be found on the Forms, fees & checklists page. 

 

 

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