Section 173 Agreements

This advice is intended to assist landowners who own properties that have a Section 173 Agreement registered on the certificate of title.

What is a Section 173 Agreement?

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, may also be involved in an agreement.

A Section 173 Agreement is generally required by Council in a planning permit for subdivision of the land where a condition on a planning permit, or Planning Scheme controls are not adequate for particular requirements.

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 Nillumbik 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

Always know your obligations and responsibilities under your Section 173 Agreement

Over 3,000 properties within the Shire of Nillumbik have a Section 173 Agreement registered on title. It is therefore important that landowners (and their representatives) know whether or not a Section 173 Agreement affects their property, and if so, they understand their obligations under the agreement. Independent legal advice may need to be sought to gain a full understanding of the Section 173 Agreement.

Some (but not all) Agreements allow variations to requirements subject to Council consent

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’.  Independent legal advice may need to be obtained to confirm that this opportunity applies to the Section 173 Agreement affecting your land. If your Agreement provides this opportunity, landowners have the ability to lodge an application for consent, termed by Council as a ‘miscellaneous consent’.  An application form for miscellaneous consent is attached to this advice sheet.

A request for miscellaneous consent to vary or remove an obligation under an agreement will be considered by Council on its planning merits. Please note that because consent can be granted to vary or waive the requirement, this does not imply that consent should or will be granted.

It is important to note that not all Section 173 Agreements afford the landowners this entitlement.

Check your Agreement before you commence development or remove vegetation

Due to the complexity of some Section 173 Agreements, if you are contemplating developing your land and/or removing vegetation and/or carrying out an action that may be in contravention of your Section 173 Agreement, it is imperative that you discuss your proposal with officers of Council’s Planning Unit before commencing such work. Please note that substantial penalties apply for breaches to Section 173 Agreements (as is the case with breaches to planning permits and the Nillumbik Planning Scheme).

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 Services to establish what legal avenues are available to you prior to proceeding. Contacting Council Planning Services before undertaking any deviations from the requirements of your agreement may avoid the issuing of a Planning Infringement Notice.

Ending or varying a Section 173 Agreement

An agreement can end after a specified event or time period 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.

Disclaimer

This advice is to be used as a general guide only. Council has made all reasonable effort to ensure the information provided in this series is true and accurate. However, it is recommended that readers seek professional advice before acting or making decisions on the basis of this information. For any questions or clarification, please contact Council’s Planning Services on 9433 3343.