Lot Owners Agreements Overview

The Sands Estate was developed under a 173 Agreement between the Surf Coast Shire Council (the responsible authority) and The Sands developer which defined the terms, conditions and restrictions that would allow The Sands development to proceed.

The Sands lot owners are party to many parts of this 173 Agreement (some parts of the 173 Agreement are only relevant to the development phase of The Sands Estate and do not apply to the lot owners) as they are the defined successors to the developer in this agreement. This agreement is also registered on each of The Sands lot owners’ titles.

The 173 Agreement also required the development of two further agreements, the ‘Environmental Management Plan’ (EMP) and the ‘Building and Environmental Management Plan’ (BEMP) both of which further define legal liabilities and responsibilities of The Sands lot owners.

The major Sands lot owners’ responsibilities outlined in these agreements are:

• The requirement for planting of native and indigenous plants in the front and rear of their properties;
• The requirement for the removal of any designated Surf Coast Shire Council weeds from the lot owners’ property;
• The allowed colours and materials that can be used on any of the external surfaces of Sands lot owner’s buildings;
• Allowed fence types and the requirement for double sided fences in some defined areas;
• The Surf Coast Shire Council is now responsible for planning approvals but they have adopted the planning requirements outlined in the BEMP;
• Restrictions to be placed on pets to protect the native wild life;
• Protecting the Karaaf Saltmarsh with particular reference to the management of both the quality and volume of the stormwater entering the Karaaf;

What is a section 173 agreement?

‘The responsible authority can negotiate an agreement with an owner of land to set out conditions or restrictions on the use or development of the land, or to achieve other planning objectives in relation to the land.

These agreements are commonly known as section 173 agreements. The power to enter into the agreement arises under section 173 of the Planning and Environment Act 1987 (the Act).

Like other agreements, a section 173 agreement is a legal contract. However, the benefit of a section 173 agreement is that it can be recorded on the title to the land so that the owner’s obligations under the agreement bind future owners and occupiers of the land. A section 173 agreement can also be enforced in the same way as a permit condition or planning scheme.

The purpose of an agreement is to make it easier to achieve planning objectives for an area or particular parcel of land than is possible when relying on other statutory mechanisms’.

The ‘Sands 173 Agreement’ required the development of an ‘Environmental Management Plan (EMP)’ for The Sands Estate with a particular focus on protecting the Karaaf Saltmarsh.  The EMP places further responsibilities on all Sands lot owners.

Finally, the ‘Sands 173 Agreement’ requires the development of a ‘Building and Environmental Management Plan’ which defines the architectural standards required for all buildings in The Sands Estate and it highlights the obligations of all lot owners under the Environmental Management Plan.

The focus of the lot owners’ responsibilities in this agreement is on protecting and enhancing the flora and fauna of The Sands and all the areas that surround it, particularly the Karaaf Saltmarsh.

Lot Owners Responsibilities Outlined in The Sands 173 Agreement

The key sections relevant to The Sands lot owners are:

• Section 1.9 – identifies and confirms that each lot owner is bound by all the relevant sections of this agreement;
• Section 8 – Develop an Environmental Management Plan for the Sands and have it approved and signed by the Surf Coast Shire Council;
• Section 12 – The establishment of an Environmental Management Trust to manage that part of the Karaaf which was seeded to it by the developer and to monitor and enforce compliance with the Environmental Management Plan. Currently not implemented;
• Section 13 – This section is now managed and enforced by the Surf Coast shire Council;
• Section 13.1 – Requirements for all fences in The Sands Estate;
• Section 13.2.1 – Requirements for all external wall colours on buildings in The Sands Estate;
• Section 13.2.2 – Roofing requirements;
• Section 13.2.3 – Roof plumbing (downpipes and gutters) requirements;
• Section 13.2.4 – White polycarbonate roof lights not permitted;
• Section 14 – Environmental Management Plan reporting;
• Section 15 – Native Vegetation requirements for Sands lot owners and the prohibition of designated environmental weeds;

Sands Lot Owners ‘Environmental Management Plan’ (EMP) Obligations (Ecology Australia 2001) 

• Element 1 (page 72) – Raise public awareness of the importance of the Council Conservation Zones;
• Element 2 (page 81) – The Karaaf Saltmarsh Complex management and restricting domestic pets;
• Element 4 (page 93) – No Surf Coast Shire Council designated weeds to be planted in The Sands Estate;
• Element 5 (page 98) – Water quality management procedures;
• Element 6 (page 108) – Hydrology, drainage and the constructed wetlands;
• Element 9 (page 128) – Only native and predominately indigenous plants in planting and landscaping their properties front and rear areas;
• Element 10 (page 129) – Cats required to be securely confined in the owner’s premises between sunset and sunrise and all pets are excluded from the Moonah Wirilda Shrubland conservation zones.

Sands Lot Owners ‘Building and Environmental Management Plan’ – September 2010 (BEMP) Obligations 

The planning responsibilities were transferred to the Surf Coast Shire Council (SCSC) in May 2019 but the BEMP requirements with regard to building design have been retained by the SCSC. The BEMP continues to exist and to define responsibilities of The Sands lot owners with regard to planting, landscaping, external colours and construction materials.

• Section 4 – roof, wall materials and colour palette;
• Section 5 – Fencing;
• Section 6 – Landscape including a full approved plant species list;
• Appendix 1 – EMP Obligations;
• Appendix 2 – Indigenous Plant list;
• Appendix 3 – Designated Weeds List;
• Practice Note – Section 5 – double sided fencing requirement;
• Practice Note – Section 8 – additions to the colour palette.