In a previous edition of Planning Tip Bits we discussed the removal of restrictive covenants and highlighted the provisions of Section 47(2) of the Planning and Environment Act. Section 47(2) essentially allows applicants to avoid the need for notifying affected parties when applying for the removal or variation of a restrictive covenant if the land has been used or developed for more than 2 years before the date of the application in a manner which would have been lawful but for the existence of the restriction.
Late last year a BDAV member contacted our office and sought assistance to remove such a covenant. The covenant essentially required that any building constructed incorporate a slate or tiled roof. The member had overlooked the restriction and lodged an application for a dual occupancy that included a portion of flat clip-lock roofing. As a result of the proposed roofing material being in breach of the covenant Council notified the applicant that it could not issue a permit for the proposal and requested the applicant alter the proposal to include a slate or tiled roof or apply to amend the restrictive covenant.
As a result of preliminary discussions regarding the opportunity to utilise Section 47(2) to avoid advertising, Council sought legal advice and determined that the provisions of Section 47(2) could not be utilized. This was despite the presence of a flat roof garage which had existed on the subject site for more than 2 years (in breach of the covenant).
Council’s legal advice determined that although the covenant had been breached for longer than 2 years, S.47(2) could not be utilised on the basis that the removal of the covenant would result in the site being further developed (in this case as a dual occupancy) which would cause additional detriment to the beneficiaries of the covenant beyond that endured by the existing breach.
In this instance, the permit applicant chose not to obtain a detailed response to the legal advice or challenge Council’s position at a Directions Day Hearing. After a frustrating 3 month delay, the applicant resolved to amend the application to include a tiled roof.
Interestingly, Clause 1 has successfully utilised the provisions of Section 47(2) in similar circumstances on other projects (albeit in other municipalities).
The following principals are highlighted by this misadventure:
- Check your titles before commencing a design response and understand the implications of any restrictive covenant;
- In a case like this consideration should be given to dealing with a covenant variation prior to submitting a proposal to further develop the site;
- Different municipalities may take difference approaches to the utilisation of Section 47(2) to avoid advertising
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Last updated 200608