Caveat emptor is a Latin term that means “let the buyer beware. This is a maxim (principle) which means that the purchaser of goods must take care to ensure that they are free from defects of quality, fitness, or title. Not all legal rights and obligations of the parties appear in the contract.
A Section 173 Agreement places restriction on what you can do with your land.
A Section 173 Agreement is a Contract between the Council and a landowner that places restrictions on how you can use the land.
These agreements are named after Section 173 of the Planning and Environment Act 1987.
Refer to: http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/paea1987254/s173.html
The responsible authority can negotiate an agreement with an owner of land to set out conditions or restrictions on the use or development of the land, or to achieve other planning objectives in relation to the land.
The benefit of an agreement is that it can be registered over the title to the land so that the owner’s obligations under the agreement bind future owners and occupiers of the land.
Like other agreements, a section 173 agreement is a legal contract. An agreement is enforced in the same way as a permit condition or planning scheme. It can also be seen as a disadvantage by future potential owners, thereby affecting the sale value of the land.
The Victorian Civil and Administrative Tribunal (VCAT) has only limited jurisdiction to resolve disputes where matters require the consent or satisfaction of the responsible authority.
The purpose of an agreement is to make it easier to achieve planning objectives for an area or particular parcel of land than is possible when relying on other statutory mechanisms.
Enforcement of s 173 agreements
Section 173 Agreements (‘S173’) are complex and often inappropriately sought or challenged.
Where an owner of land or any other person fails to comply with a section 173 agreement, a responsible authority may prosecute or seek an enforcement order to prevent contravention of the agreement. The proceedings in each case are the same as those which would apply to a breach of a planning permit condition.
What if I want to change s 173 agreements?
If you want to make any changes to a Section 173 Agreement, all parties will need to approve the changes as it is a binding contract. So if you’re not satisfied with the existing terms of an agreement, you’ll need to make an application to the council. The exact process for dealing with proposed changes to an agreement varies from one council to the next, so contact your local council for more information.
If you can’t agree to new terms with your council, the next course of action is to apply to VCAT (Victorian Civil and Administrative Tribunal) for an amendment. Any disputes relating to the terms and conditions of an agreement may also be referred to VCAT for assessment.
Cancellation or alteration of a recording of an agreement
If an agreement is cancelled or amended, the responsible authority must, using the prescribed form, tell the Registrar of Titles to cancel or amend the record of the agreement.
VCAT decision on reviews
VCAT may direct the responsible authority to amend or end the agreement, or it may determine that the agreement should not end or be amended. The responsible authority must comply with the direction without delay.
This article was collated by;
Dinesh Weerakkody LLB; PDLP
Barrister & Solicitor (An Australian Legal Practitioner)
An Australian Migration Agent (0742843)
Former Lecturer │ Unit Convenor │ Swinburne University Law School
President – LawHelp Australia
Treasurer – Eastern Suburbs Law Association (ESLA) of LIV
Law Institute Migration Law Committee- Member