In brief - Councils' power to ignore a private covenant may be good news for property developers in New South Wales

The Act

Planning legislation has for some time allowed for development to be conducted which may not necessarily comply with private covenants and restrictions on use. 

Section 3.16 (2) of the Environmental Planning and Assessment Act 1979 (Act) provides the following:

For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

A regulatory instrument means any Act (other than the Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

The Restriction

An example of a recently overridden instrument was a restriction on use contained in a section 88B Instrument setting a minimum residential build size for various sized blocks of land. 

The restriction provided for a minimum build of 160 square metres, but the owner entered into an agreement for a proposed house size of 158 square metres. 

The Consent

The builder procured a Complying Development Certificate (CDC) for the proposed smaller sized house. A CDC is a "consent granted under this Act" for the purposes of 3.16 (2).

The relevant environmental planning instrument for the site, State Environment Planning Policy (Sydney Region Growth Centres) 2006 Liverpool Growth Centres Precinct Plan, specified -

For the purpose of enabling development on land in any zone to be carried out in accordance with this Precinct Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

Accordingly, the restriction on use did not apply.

The Principle

This is a timely reminder that, through planning legislation, many consent authorities wish to maintain ultimate control over development concerns without being hamstrung by private covenants. 

These policies vary from council to council and precinct to precinct so careful consideration should be given to the applicable environmental planning instrument applying to the site.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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