1.9A Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this 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.
(2) This clause does not apply—
(a) to a covenant imposed by the Council or that the Council requires to be imposed, or
(b) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or
(c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or
(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or
(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or
(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or
(g) to any planning agreement within the meaning of Subdivision 2 of Division 7.1 of the Act, or
(h) to any land vested in the Lake Illawarra Authority under the Lake Illawarra Authority Act 1987.
(3) This clause does not affect the rights or interests of any public authority under any registered instrument.
1.20 Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Policy, 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.
(2) This clause does not apply—
(a) to a covenant imposed by a council, or that a council requires to be imposed, requiring compliance with a development standard that is—
(i) consistent with the development standards specified for the development concerned under this Policy, or
(ii) not dealt with by the development standards specified for the development concerned under this Policy, or
(b) to a covenant that is specifically required by another environmental planning instrument, or
(c) to a covenant imposed by an owner or former owner of the land concerned, other than a covenant that has been required by a council to be imposed, or
(d) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or
(e) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or
(f) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or
(g) to any property vegetation plan approved under the Native Vegetation Act 2003, or
(h) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or
(i) to any planning agreement within the meaning of Division 7.1 of the Act.
“(1) If any agreement, covenant or similar instrument prohibits a land use allowed by this plan, then it shall not apply to that land use (to the extent necessary to allow that land use).”
(a) subclause (2), which provided that “nothing in subclause (1) shall affect the rights or interests of the council under any registered instrument”; and
(b) clause (3), which provided that “pursuant to section 28 of the Act, before themaking of this plan, the Governor approved of subclause (1).”
Section 28 was enacted for the purpose of enabling development to be carried out. To that end an environmental planning instrument may include the type of provision of which cl 26 is an example. In order to serve the purpose of enabling development to be carried out a regulatory instrument such as a restriction or covenant shall not apply to development which is carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Environmental Planning and Assessment Act.
Section 28(2) removes any bar to the development being carried out. It has no effect on whether development consent should be granted. The terms of the restrictive covenant are not a bar to the grant of a development consent. If a development consent is granted to permit a use which is in conflict with the terms of the restrictive covenant it does not follow that the development consent will be invalid. Neither does it follow that the developer must make application to the Supreme Court to have the covenant released varied or modified if the person having the power to release vary or modify the covenant refuses to co-operate.
In any case, there is no logical reason why the rights or interests of the Council should be placed in a special position in circumstances where the Council is the consent authority. Although it was not argued and has not played any part in my reasoning it is conceivable that subcl (2) is an attempt to prevent a developer from acting on a development consent granted by this Court of Appeal. If that be so, then, it could be repugnant to s 39(5) of the Land and Environment Court Act 1979 (NSW). It is not necessary to determine that in these proceedings.
The self-evident purpose of s 28 of the Act and cl 32 of LEP27 is to nullify and remove all obstacles to the planning principles decided on by the Council or the Minister. In this context s 28 of the Act is stating, in effect, "an environmental planning instrument may state what documents should be disregarded", and cl 32 of LEP27 is stating that one type of document to be disregarded is a document creating a restrictive covenant. As to the argument about the words "by or under whatever authority made", I am of the view that, although chosen without conspicuous felicity, they mean no more than "howsoever created".
(i) Does cl27(2) of the Drummoyne Local Environmental Plan (LEP) prevent the suspension of registered instruments where development permissible under an Environmental Planning Instrument is in conflict with the rights or interests of a public authority under a registered instrument? Or in other words does cl27(2) of the LEP preserve the enforceability of the covenant? [Yes]
(ii) Does s39(2) of the Land and Environment Court Act 1979 (the Court Act) permit the Court to release, vary or modify the instrument where the enforceability of the instrument is expressly preserved by an Environmental Planning Instrument? [Yes]
(iii) If the answer to question (ii) is "yes", whether the Court must still have regard to the instrument, as an instrument created under the Conveyancing Act 1919, pursuant to s39(4) of the Court Act? [Yes]
(iv) In the alternative, whether the Court must have regard to the instrument pursuant to s79C of the Environmental Planning and Assessment Act 1979 (the EP & A Act), being a matter for consideration in the determination of a development application as it is a matter arising from a provision of an Environmental Planning Instrument? [Yes]
(v) If the answer to question (iii) or (iv) is "yes", whether the Court must, in ascribing the weight to be attached to the instrument, give it "proper genuine and realistic consideration" or "significant weight"? [This is a question of fact for the tribunal of fact to decide - not a question of law].
Not more than one main building shall be erected on the Lot burdened and such building shall be a single storey dwelling only.
The parties agreed that the effect of cl27(2) of the LEP preserves the enforceability by the Council of the restriction as to user and I see no reason to differ from that view. Accordingly, the first question is answered in the affirmative.
In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
It is not a question of the Land and Environment Court usurping the role or jurisdiction of the Supreme Court under s89 of the Conveyancing Act. The power of the Council which falls to the Court under s39(2) is to agree, as an incident to the building application, to release the restriction of user and not the jurisdiction of the Supreme Court to entertain an application for an order to modify or extinguish a restriction on user.
I see no need to call in aid s33 of the Interpretation Act but it is obvious that the object or purpose of s39 will be met if the Court can exercise the Council's power to release the restriction as an incident to the power to grant or refuse the building application. Similarly, I see no need to rely upon the wide wording in s22 of the Land and Environment Court Act.
I consider, as the Applicant has argued, the law is clear in the cases I have been referred to that, pursuant to s39(2) of the Court Act, the Court has all the functions and discretions of the Council in respect of the matter which is the subject of the appeal. This includes the discretion to release, vary or modify the restriction as to user, the enforceability of which is preserved (in relation to the Council) by cl27(2) of the LEP.
All the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval.
… The circumstance that it is not legally "necessary" for a resolution to be varied or modified does not, of itself, deny the power. In my opinion, the power exists provided there is a relevant nexus between the matter the subject of the appeal and the discretion or function proposed to be exercised.
8 Suspension of certain covenants etc
(1) For the purpose of enabling development to be carried out in accordance with this Policy or in accordance with a consent granted under the Act, any agreement or covenant imposing restrictions on any such development, to the extent necessary to serve that purpose, does not apply to the development.
The rights of way in the present case are set out in an instrument registered under s 88B of the Conveyancing Act. The instrument states that the person empowered to release, vary or modify the easement is the Council of the Municipality of Ku-Ring-Gai. The powers of the Court under s 39(2) thus include the discretion to release, vary or modify the easement in the course of determining the development appeal, if the circumstances warrant (Willoughby Municipal Council v Huxley Homes Pty Ltd, NSWLEC, Stein J, 16 November 1989, unreported, McDougall v Warringah Shire Council (1993) 80 LGERA 151, Chehab v Canada Bay City Council [2002] NSWLEC 220 per Pain J).
I am satisfied that that includes consideration of a variation to the easement which formed part of what was sought by the staged application. Accordingly the Court, on appeal, has the same discretion as the Council to determine whether to grant a variation to the easement as it relates to the "subject of the appeal".
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Level 13, 111 Elizabeth Street, Sydney NSW 2000
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