Western Australian Current Acts Western Australian Current Acts (1) This section
applies to land which is —
(a)
Crown land; or
(b)
alienated land that is the subject of an agreement relating to the use of the
alienated land and that is entered into between —
(i)
the Minister; and
(ii)
the person who is the holder of the freehold in the
alienated land,
before the alienated
land was transferred by the Minister in fee simple to that holder.
(2) In this section
—
agreement land means alienated land referred to in
subsection (1)(b);
registered , in relation to —
(a)
Crown land, means registered under Part IIIB of the TLA; or
(b)
agreement land, means registered under the TLA otherwise than under Part IIIB
of the TLA,
and registrable has a corresponding meaning.
(3) Subject to
subsection (5), a covenant described in subsection (4) in favour of the
Minister as covenantee —
(a) may
be registered —
(i)
if that covenant relates to Crown land, by order against
the relevant certificate of Crown land title or qualified certificate of Crown
land title; or
(ii)
if that covenant relates to agreement land, by instrument
against the relevant certificate of title,
subject to that
covenant; and
(b) runs
with that Crown land or agreement land, as the case requires; and
(c) is
enforceable against the covenantor and the covenantor’s successors in
title even if that covenant is not annexed to land in which the Minister has
an estate or interest.
(4) A covenant
registrable under subsection (3) may be a positive covenant or restrictive
covenant and may, without limiting the generality of this subsection, include
one or more of the following —
(a)
provision in respect of the use of land subject to that covenant, the use of a
building on or to be erected on that land or the payment of the purchase price
of that land;
(b) the
requirement that land —
(i)
is to be built on in accordance with that covenant; or
(ii)
is not to be built on except in accordance with that
covenant; or
(iii)
is not to be built on;
(c) the
requirement that land —
(i)
is not to be subdivided except in accordance with that
covenant; or
(ii)
is not to be subdivided;
(d) the
requirement that parcels of that land designated in that covenant and
registered under one or more titles are not to be sold or otherwise
transferred separately;
(e)
provision in respect of the conditions subject to which the fee simple of, or
an interest in, Crown land is to be transferred, granted or entered into.
(5) The Minister must,
before a positive covenant referred to in subsection (4) is registered in
respect of —
(a)
Crown land the subject of an interest, status order or caveat, obtain the
consent of the holder of the interest, of the management body or other person
affected by the status order or of the caveator; or
(b)
agreement land, obtain the consent of the holder of the freehold in the
agreement land,
to that registration.
(6) A covenant
described in subsection (7) —
(a) may
impose an obligation on the covenantor to be performed to the satisfaction of
—
(i)
the Minister, a State instrumentality or a local
government; or
(ii)
such other person as is prescribed,
as covenantee; and
(b) may
be registered —
(i)
if that covenant relates to Crown land, by order against
the relevant certificate of Crown land title or qualified certificate of Crown
land title; or
(ii)
if that covenant relates to agreement land, by instrument
against the relevant certificate of title,
subject to that
covenant; and
(c) runs
with that Crown land or agreement land, as the case requires; and
(d) is
enforceable against the covenantor and the covenantor’s successors in
title even if that covenant is not annexed to land in which the covenantee has
an estate or interest.
(7) A covenant
registrable under subsection (6) may be a positive covenant or restrictive
covenant and may include one or more of the following —
(a) any
provision or requirement referred to in subsection (4)(a), (b), (c), (d) or
(e);
(b) the
requirement that land or a specified amenity in relation to it be protected,
preserved, conserved, maintained, enhanced, restored or kept in its natural or
existing state in accordance with, and to the extent provided in, that
covenant.
(8) For the purposes
of subsection (7) —
amenity includes natural, historical, heritage,
cultural, scientific, architectural, environmental, wildlife or plant life
value relating to the land that is subject to the relevant covenant.
(9) A covenant
registered under this section —
(a)
indemnifies the covenantee against any matter agreed to by the covenantor and
covenantee and provides for the due performance of the obligations under that
covenant by the holders of interests, or the holder of the freehold, in the
relevant land; and
(b)
constitutes a charge on the relevant land.
(10) Section 110 of
the TLA does not apply to a charge referred to in subsection (9)(b).
(11) If an order or
other instrument contains a covenant registrable under this section, that
covenant, while registered, is binding on the covenantor and the
covenantor’s successors in title.
(12) A person who
enters into a covenant under this section is not liable for a breach of the
covenant which occurs after that person ceases to hold —
(a) an
interest in the relevant Crown land; or
(b) the
freehold in the relevant agreement land,
as the case requires.
(13) A covenant
referred to in subsection (9) may be —
(a)
modified by agreement between the covenantor or the covenantor’s
successor in title and the covenantee; or
(b)
discharged by the covenantee.
(14) In relation to
Crown land, the Minister may be the covenantor of a covenant registered under
subsection (3) or (6).
(15) If a covenant is
registered under subsection (3) or (6) against Crown land by an instrument
against the relevant certificate of Crown land title or qualified certificate
of Crown land title, the covenant is by operation of this subsection
transferred to, and applies to, the fee simple when the Crown land is
transferred in fee simple in all respects as if the fee simple had been
referred to in the covenant.
[Section 15 amended: No. 59 of 2000 s. 7; No. 4 of
2023 s. 92.]