NSW Property Development: A Faster Way to Release Certain Covenants Under Section 88B
NSW property developers can now deal with certain covenants and restrictions more efficiently when registering a plan. From 3 August 2026, amendments to section 88B of the Conveyancing Act 1919 (NSW) expanded the interests that may be released through a section 88B instrument.
The change will not remove every covenant affecting land. However, for eligible interests, it can avoid the need to prepare and lodge a separate dealing, helping streamline the documentation for a subdivision or other development.
What is a section 88B instrument?
A section 88B instrument commonly accompanies a plan lodged for registration. It records interests that are to be created or released when the plan is registered, such as easements, restrictions on the use of land and certain positive covenants.
These interests can affect how land may be developed, accessed or maintained. Identifying them early is important because they may require the consent of a council, utility provider or another party and can affect both project design and registration timing.
What changed on 3 August 2026?
The Conveyancing and Real Property Amendment Act 2025 amended the legislation in stages. The section 88B changes commenced on 3 August 2026.
According to the NSW Office of the Registrar General, a section 88B instrument may now release:
a public positive covenant created by a prescribed authority under section 88D of the Conveyancing Act;
a positive covenant for maintenance or repair under section 88BA; and
a restriction on the use of land imposed by a prescribed authority under section 88D or section 88E.
Before the change, releases of these interests generally required a separate land dealing. They can now be dealt with as part of the plan-registration process, allowing the relevant authority to address the release alongside its other approvals.
What the reform does not do
The expanded process is targeted. It does not allow a section 88B instrument to release every private restriction on the use of land. The Office of the Registrar General expressly distinguishes restrictions imposed by a prescribed authority from private restrictions.
Nor does the reform mean that an eligible interest disappears automatically. The interest must be correctly identified, the necessary consent and execution requirements must be satisfied, and the approved form and current lodgment requirements must be followed.
Why it matters for a development
Titles often contain easements, restrictions and positive covenants accumulated over time. Some remain important; others may no longer fit the proposed development or the authority’s current requirements.
The new process may reduce duplicate documents, registration steps and associated delay where an eligible interest is being released as part of a plan. But the benefit depends on early investigation. A late discovery can still interrupt approvals, financing, presales or settlement arrangements.
before lodging a plan
Developers and landowners should:
obtain a current title search and copies of all relevant instruments;
ask the surveyor and solicitor to identify which interests must remain, be created, varied or released;
confirm whether the beneficiary is a prescribed authority and whether the interest falls within the expanded section 88B process;
obtain the authority’s requirements and consent early; and
use the updated section 88B form and current NSW Land Registry Services guidance.
Coordinating the legal and surveying work at the beginning of a project is usually more effective than trying to cure a registration issue at the end.
Sources
Conveyancing Act 1919 (NSW), section 88B.
This article provides general information only and is not legal advice. Legal requirements depend on the title, instrument, plan and circumstances of each project.
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