The clause your conveyancer probably skimmed
Section 88B of the Conveyancing Act 1919 is the mechanism that lets a developer or council attach private restrictions to a Torrens title at the moment of subdivision. Building envelopes, height limits, materials palettes, fence types, driveway locations, even the colour of the roof tiles. Once registered against the title, those restrictions run with the land — they bind every future owner whether they read them or not.
Most conveyancers note the existence of an 88B in the contract review and move on. Most owners assume that if the council allows it, they can build it. Both assumptions are wrong on a duplex site about a third of the time in greenfield Western Sydney releases.
Where 88Bs come from and what they typically restrict
Two main sources:
Developer-imposed 88Bs appear on greenfield estate releases. The developer wants the estate to look a certain way for the next 10–25 years. They restrict: minimum dwelling size, single-storey only zones, building materials (e.g. minimum brick percentage), front fence height and material, garage configuration, second dwelling permissibility, dual occupancy permissibility, retaining wall height, side fence type, even landscape composition. The intent is property value protection through visual consistency.
Council-imposed 88Bs appear less commonly but more aggressively. They restrict: drainage easement zones, asset protection zones around bushfire interfaces, building lines protecting view corridors, foreshore building lines, archaeological exclusion zones. Council 88Bs are usually planning instrument-backed and very hard to vary.
A single duplex lot in a 2015–2024 release in Camden, Liverpool, Penrith, The Hills or Blacktown LGA can carry an 88B with all of: dual occupancy prohibition, granny flat prohibition, minimum primary dwelling size 220m², single-storey only zone, garage facing rear lane only, brick minimum 70% facade, front fence prohibited. Read the 88B before you offer.
How to read an 88B in five minutes
Pull the title search ($14 at NSW LRS). Look at the second part of the document — the 'restrictions, easements and covenants' page. Each entry is numbered and references the deposited plan number (e.g. DP1234567).
For each entry: identify (a) the type — restriction, easement, covenant — (b) the burdened land (which lots are bound by it), (c) the benefiting party (who can enforce it), and (d) the specific terms. The terms appear in the registered DP. You can pull the full DP via NSW LRS or LRS Online for $14.
The deposited plan annexure is where the actual wording lives. It will be 5–40 pages of legal text. Read all of it. The single most important question is: 'Does any clause prohibit, restrict or condition the construction of more than one dwelling on this lot, or any building beyond the primary dwelling envelope?' If yes, you cannot build a duplex on that lot regardless of council zoning, no matter what your builder, real estate agent or council planner says. Council planning permits are not a release of private 88B restrictions.
Releasing or varying an 88B — when it's possible, when it isn't
Two pathways to remove or modify an 88B:
Section 88B variation under the Conveyancing Act. Requires the consent of every party who benefits from the restriction. On a developer-imposed 88B, that is typically the developer and, depending on drafting, all other owners in the estate whose property values were intended to be protected by the restriction. In practice — undoable. Try getting 350 owners in an Oran Park estate to consent in writing to your duplex.
Supreme Court application under section 89 of the Conveyancing Act. The court may modify or extinguish a covenant if it's obsolete, no longer of substantial benefit, contrary to public interest, or causes hardship. The application costs $25,000–$80,000 in legal fees, takes 9–18 months, and most applications fail because the court protects the original commercial bargain. Worth attempting only if the 88B is decades old and the surrounding context has changed beyond recognition.
The practical advice: read the 88B before you offer. Walk away from sites where the duplex prohibition is structural. Don't gamble on Supreme Court relief.
The pre-offer 88B checklist
Before you sign a duplex feasibility contract or submit an offer:
1. Pull the title search. Note every section 88B reference. 2. Pull the deposited plan annexure for each 88B. Read every clause. 3. Ask the conveyancer to specifically certify whether dual occupancy is permitted on the title. Get it in writing. 4. Cross-reference with council planning controls — both have to allow the build, not just one. 5. Check the GA register for any registered building envelope or design control easement. These are sneaky and often missed. 6. If the 88B references a 'design control panel' or 'estate architectural advisor', factor in the design review fees ($3,000–$15,000) and the timeline (2–4 months) before any DA or CDC is even submittable.
For a free pre-purchase title and 88B walk on a duplex site you're considering, call 0476 300 300 or visit /advisory/development-feasibility. We've turned away a lot of duplex pursuits at the title-read stage and saved owners six-figure sums in lost deposits and dead feasibility work.
