Written in pencil or in ink: Private covenants and their legacies for housing and planning in Victoria

Through Australia's history, private developers have introduced restrictive covenants to property titles. Typical private covenants stipulate building materials, limit dwelling numbers, and prohibit particular land uses or the sale of alcohol. Covenants, like zoning, have tended to "put the single-family, owner-occupied home at the pinnacle of uses to be protected", and have functioned as security for homeowners (Fischel 2004). This paper explores the power of private arrangements - from the past, and from more recent developments - in influencing contemporary housing and planning outcomes. We analyse 75 sampled Victorian planning tribunal cases substantially concerned with private covenants over 2013-2016. Legislative changes to Victorian planning legislation have meant - through a combination of legislative creep and apparent drafting errors - restrictive covenants now explicitly take precedent in permit assessments. We examine patterns in what covenants restrict; the hearing types and issues raised; and outcomes. We profile spatial patterns in the ages of covenants arising in planning disputes. Showing idiosyncrasies where decisions are determined by whether covenants are (literally) written in pencil or in ink, we argue covenants sometimes have enduring 'ink' legacies, compared to the transient 'pencil' of strategic policy. This is despite the covenants frequently being either directly contrary to current planning policy; or simply being nonsensical and outdated. We argue covenants illustrate the varied genealogy of planning: Booth's (2005) characterisation of planning as originating in private rights and morphing into public interest. This interlinked history is relevant to conflict over density and to the rebound of private zoning in response to urban consolidation.