Consent Requirements for Easements and Restrictive Covenants

Landgate has received industry feedback concerning the complexities, time and cost issues related to consent requirements for the registration of easements and restrictive covenants, and their modification and removal. In response to this, Landgate, on behalf of the State Government, is seeking stakeholder feedback to further understand associated roadblocks and how they may be overcome. The aim of this consultation is to create a more efficient process to contribute to a responsive property development industry in Western Australia.

Under the current system, the legislative requirement to obtain written consent from parties with interests in easements and restrictive covenants of land can delay land developments transitioning to market, as well as increase the costs of those developments.

We invite you to review the Consent Requirements for Easements and Restrictive Covenants Consultation Paper and provide your feedback on the current process, and how it might be improved.

As with any potential legislative or practice changes, due consideration must be given to maintaining the balance between preserving the integrity of the Land Titles Register, protecting the guaranteed interests of holders of registered easements and restrictive covenants; while also meeting the overall objective to create more efficiencies in the land development process.

Now’s the time to have you say! We greatly appreciate the time and feedback that our industry stakeholders provide, and we will continue to keep you informed of any changes that arise as a result of this consultation process.

Consultation Period - 16 October 2025 to 27 November 2025

Consent Requirements for Easements and Restrictive Covenants

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Feedback form

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Consent Requirements for Easements and Restrictive Covenants

This feedback form will need to be completed in a single sitting, as your answers cannot be saved and resumed later. Alternatively, you can provide your feedback in writing to TLA.Amendments@landgate.wa.gov.au.

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Consultation questions

3.1. Clarity and Consistency of Requirements

1. Under the TLA, s.129A and s.129BA contain different consent requirements. In practice do these requirements need to stay separate and distinguished from one another?

2. Are there any foreseeable issues with forming one streamlined consent process to enable registration of the creation of all easements and restrictive covenants?

3. Are there any foreseeable issues with forming one streamlined consent process to enable the registration of the modification or removal of all easements and restrictive covenants?

4. Should easements and restrictive covenants be evaluated separately to establish their consent prerequisites?

3.2. Definitions and Terminology

5. Who should be considered to be ‘a person with a registered interest’ or ‘persons interested’? Should the definition be the same regardless of individual scenario?

6. How should the parties required to consent be defined? i.e. in legislation, in regulations, or other?

7. Should the ‘affected land’ be considered as a whole, or just the distinctive area where an encumbrance and land intersect? i.e. is land considered wholly affected once just a portion of the land is affected by an encumbrance?

3.3. Identification

8. Is there a less onerous approach that can be adopted to identify and locate who is required to consent?

9. To avoid the need for onerous people searches, should the onus be put back on the person from whom consent is required to ensure their details for service of notification are maintained appropriately?

3.4. Objection, Waiver and Time Periods

10. What is an appropriate timeframe to provide ‘a person with a registered interest’ or ‘an interested person’ to respond to a notice of creation, modification or removal?

11. Should there be an ability for the Commissioner of Titles, Registrar of Titles or other delegated authority to waive consent requirements, or use discretion when registering a plan or instrument?

12. Who should be responsible for hearing and making determination on an appeal or objection to the creation, modification or removal of easements and restrictive covenants?

4.1. Transfer of Land Act 1893

13. Should the consent of a caveator recorded on the Certificate of Title be required for the creation, modification or removal of an easement or restrictive covenant. If so, why?

14. Should requiring caveator consent be dependent on the type of caveat or circumstance?

4.2. Strata Titles Act 1985

15. Does s.35(1)(i) require further clarification as to the scope of amendments to scheme plans?

16. Should the STA requirement for consents for the creation or removal of easements and restrictive covenants only apply to short form easements and restrictive covenants created under s.33?

17. Should the STA contemplate the modification of an easement or restrictive covenant? If so, why and in what circumstances would it be used in place of removal?

4.2. Community Titles Act 2018

18. Does s.40 require further clarification as to the scope of amendments to scheme plans?

19. Should the CTA requirement for consents for the creation or removal of easements and restrictive covenants only apply to short form easements and restrictive covenants created under s.38?

20. Should the CTA contemplate the modification of an easement or restrictive covenant? If so, why and in what circumstances would it be used in place of removal?

21. Should the consent requirements of the STA be mirrored in the CTA or vice versa?

5.1. Option 1 – Status Quo

22. Are there any reasons that it is imperative that the status quo is retained?

22. Is the current model useable, fit for purpose and future-proof? Why, or why not?

5.2. Option 2 – Education

24. Would an education focussed solution alone be sufficient to resolve the majority of outstanding issues?

25. With the provision of clear intention and interpretation, is the legislation perceived to be fit for purpose or future-proof? Why, or why not?

5.3. Option 3 – Use of Singular Existing Model

26. Which of the models currently present in the TLA, STA or CTA for creation and then separately, modification and removal, is the most appropriate?

27. Is there one model currently used that is fit for purpose across the board?

5.4. Option 4 – Use of Singular New Model

28. What components of existing models would be required to be recreated under a new model?

29. Who are the parties recognised as being affected by the creation, modification and removal of easements and restrictive covenants that need to be contemplated for consent?

30. What should an objection process look like?

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