In brief - Councils' power to ignore a private covenant may be good news for property developers in New South Wales
Planning legislation has for some time allowed for development to be conducted which may not necessarily comply with private covenants and restrictions on use.
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.
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 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 -
Accordingly, the restriction on use did not apply.
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.
|Bob Miljevic||Brianna Clark|
|Colin Biggers & Paisley|
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