Can I remove s.77A and s.77B restrictions?
What are s.77A and s.77B restrictions?
When certain perpetual Crown leases were converted to freehold title it was a requirement that notations were placed on title to restrict or maintain certain activities to protect and conserve the natural environment. The restrictions or covenants were placed on title under Sections 77A and 77B of the Crown Lands Act 1989 at the time of conversion as agreed to by the title holders, at a concessional price.
What if I want to remove s.77A and s.77B restrictions?
You can apply to remove these restrictions.
Crown Lands is required by legislation to assess s.77A and s.77B restrictions in slightly different ways. For this reason, a separate application is required to remove each restriction type.
All applications must be assessed by the department against legislated conditions. There is no guarantee that restrictions can be removed.
The following information is provided as guidance to help landowners understand if restrictions can be removed before deciding whether to submit an application and pay the fee, as the fee is not refundable.
The Proximity Zone
When assessing an application to remove a s.77A or s.77B restriction, the department must consider whether the land is within the "Proximity Zone".
Proximity Zone land is land which is within 100m of:
- land dedicated or reserved under the National Parks and Wildlife Act 1974 (NPW Act), or
- of a wilderness area or an area identified as wilderness under the Wilderness Act 1987.
Locations adjacent to National Parks and Wildlife Service (NPWS) managed land or wilderness area are particularly important for maintaining connectivity across the landscape and conserving biodiversity.
If any part of the land with restrictions falls within the Proximity Zone, the entirety of the land is assessed as being within the Proximity Zone.
To determine if you are in the Proximity Zone, visit the SEED Portal, “Launch Seed Map” then enter the property address in the search bar. Add the ‘National Parks and Wildlife Service (NPWS) Estate’ layer, ‘NSW Declared Wilderness’ layer and ‘Identified Wilderness’ layer from the catalogue and turn them on. Zoom in and out to determine where the layers are in relation to the property. You should now be able to determine if you are within the Proximity Zone.
State Significant Development or Public Benefits
Additional assessment criteria apply if the removal of restriction is part of a State Significant Development or will result in public benefit.
What is the public benefit?
The removal of the restriction will result in an outcome which provides benefit for the wider community, not just the landowner. Examples may include public infrastructure such as rural fire service facilities, community halls, sporting facilities or public roads.
Can a s.77A restriction on my property be removed?
For s.77A restrictions on use, whether your land is within the Proximity Zone will determine the outcome of your application:
What is within the Proximity Zone?
| Any part of the property which has restrictions upon it is within the Proximity Zone | Entirety of property which has the restrictions on it is not within the Proximity Zone |
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Can a s.77B restriction on my property be removed?
For s.77B restrictions on subdivision, there are two considerations which will impact the ability to remove the restriction:
What is within the Proximity Zone and/or has the title ever been subject of s.77A restrictions?
If any part of the property which has restrictions upon it is within the Proximity Zone and/or s.77A restrictions on title have ever been applied to the land. | Entirety or property which has the restrictions on it is not within the Proximity zone and none of the property was ever subject to s.77A restrictions on title |
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Process to remove restrictions
Step 1
Once your s.77A application has been received, you will be invoiced a non-refundable fee.
Step 2
An assessment will occur to determine if any part of the land is within the Proximity Zone*
An additional assessment for s.77B applications is performed to confirm if s.77A restrictions on title have ever been applied to the land**
*If land is within the Proximity Zone, the s.77A restriction cannot be removed.
**If land is within the Proximity Zone, and/or s.77A restrictions on title have ever been applied to the land, the s.77B restriction/s cannot be removed
Step 3
s.77A - If the land is not within the Proximity Zone, we will support your request by signing your land dealing to remove the restriction off the land title.
s.77B – If the land is not within the Proximity Zone, and/or s.77A restrictions on title have never been applied to the land, we will support your request by signing your land dealing to remove the restriction off the land title.
The only applications that may be considered if the above criteria are not met are those involving State Significant Development and/or demonstrated public benefit.
Step 4
Your Solicitor or Conveyancer will need to prepare the dealing on your behalf and lodge your dealing via the PEXA portal.