Understanding Positive Covenants, Restrictions on Use, and Delimitation Plans in Australian Property Law

Australian property law contains a number of important legal instruments that affect how land can be used, developed, and maintained. Among the most significant are Positive Covenant & Restriction notices, and the Delimitation Plan — a formal surveying document used to resolve boundary ambiguity.

Understanding these instruments is essential for property owners, developers, and conveyancers navigating the complexities of NSW land law.

What Is a Positive Covenant?

A Positive Covenant is a legal obligation attached to a parcel of land that requires the owner to actively do something — rather than simply refrain from an activity.

In NSW, Positive Covenant & Restriction instruments are registered on title under Section 88E of the Conveyancing Act 1919. A Positive Covenant & Restriction notice runs with the land, meaning it is binding on all future owners, not just the party who originally agreed to it.

Common Examples of a Positive Covenant & Restriction

A Positive Covenant & Restriction on title can cover a wide range of obligations, including:

•  Maintaining a drainage easement or stormwater infrastructure on the property.

•  Upkeeping a shared driveway or access road.

•  Keeping fire safety systems in working order in strata or community title developments.

•  Preserving certain trees or vegetation on the land.

•  Maintaining a boundary fence to a specified standard.

What Is a Restriction on Use?

A Restriction on Use (also called a Restrictive Covenant) prohibits a property owner from performing specific acts on their land — the "negative" counterpart to a Positive Covenant & Restriction.

Examples include restrictions on building height, subdivision, commercial use, or construction of certain building types. These restrictions are commonly imposed by developers to protect the amenity of an estate.

How Positive Covenants & Restrictions Are Created

A Positive Covenant & Restriction is typically created through:

1.  A formal Section 88B instrument lodged with a new deposited plan (subdivision).

2.  A standalone Section 88E instrument registered on an existing title.

3.  Council conditions of consent requiring the covenant as part of a development approval.

4.  Agreement between adjoining landowners, formalised and registered with NSW Land Registry Services.

What Is a Delimitation Plan?

A Delimitation Plan is a registered survey plan produced specifically to resolve uncertainty or ambiguity about the location of a property boundary.

A Delimitation Plan is used when the position of a boundary cannot be clearly determined from existing title documents, deposited plans, or previous survey records. Rather than creating new boundaries, a Delimitation Plan defines and confirms the position of an existing one.

When Is a Delimitation Plan Required?

A Delimitation Plan may be required in circumstances such as:

•  Long-standing boundary disputes between neighbouring landowners.

•  Inconsistent or conflicting survey records that create uncertainty.

•  Boundaries in older subdivisions that predate modern GPS-based survey methods.

•  Cases where boundary pegs have been removed or disturbed over time.

•  Preparation for development where a legally certain boundary is critical.

How a Delimitation Plan Is Prepared

Preparing a Delimitation Plan involves a rigorous process:

1.  Comprehensive research into historical title documents, deposited plans, and survey field notes.

2.  Field survey to locate all available survey marks in the vicinity.

3.  Mathematical computation to determine the most probable boundary position.

4.  Preparation of a formal survey plan lodged with NSW Land Registry Services.

5.  Registration of the Delimitation Plan, which then becomes the authoritative reference for that boundary.

Why These Instruments Matter for Property Owners

Whether you are dealing with a Positive Covenant & Restriction on your title or a disputed boundary requiring a Delimitation Plan, these instruments have direct practical consequences.

Failing to comply with a Positive Covenant & Restriction can result in legal action. Similarly, proceeding with development without resolving a boundary ambiguity can lead to expensive rectification works or council enforcement.

How Geo Point Surveyors Can Assist

Geo Point Surveyors has the expertise to advise on the implications of a Positive Covenant & Restriction on your title and to prepare or review Delimitation Plans for boundary resolution in NSW.

We work alongside solicitors, conveyancers, and local councils to ensure all survey documents are accurate, legally compliant, and registered correctly.

Contact Geo Point Surveyors to discuss your Positive Covenant & Restriction questions or to commission a Delimitation Plan for your property.