Proposal to extend private hospital onto lot affected by
The case is a simple one involving land in Killara in the
municipality of Kuring-gai.
It was affected by a covenant prohibiting the land being used as
a hospital or for medical purposes.
The relevant local environmental plan (LEP194) purported to
contain a provision in accordance with section 28 of the EPAA which
would have allowed a permissible development to take place
notwithstanding any covenant to the contrary.
The appellant operated a private hospital on the adjoining lot
and proposed to extend that hospital onto the lot the subject of
Restrictive covenant an important proprietary right
The High Court read section 28 of the EPAA in a restricted way
as it represented a serious erosion of "property rights"
One of the requirements of section 28 of the EPAA was that the
approval of the governor should be given and this procedure was not
adopted in the correct way with respect to LEP194.
As the approval was not given by the governor, the High Court
held that the respondent was to be restrained from using the lot in
question for any hospital or ancillary medical purposes contrary to
The High Court held that the procedures in section 28,
particularly sections 28(2) and (3), provided protection of persons
having the benefit of a restrictive covenant which was a valuable
and important proprietary right, and therefore strict compliance
with the sections was required.
Importance of following correct procedures under Section 28 of
Section 28 of the EPAA is an important provision which allows
parties to ignore the effect of covenants, restrictions and the
like which would otherwise preclude a permissible development
However, before a party relies on this section, it must go
through and forensically assess each of the requirements of section
28 and the actions taken in accordance with each of those sections
to ensure that the correct procedures have been completely followed
if a party intents to rely upon it.
If this is not done, then as occurred in this particular case, a
party with an interest in the restrictive instrument may be able to
thwart an otherwise permissible development.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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