Section 28 - a seminar for the uninitiated and a refresher for others

Transcription

1 Section 28 - a seminar for the uninitiated and a refresher for others Archie Smith March 2009 LEVEL 16, 55 HUNTER STREET, SYDNEY NSW 2000 GPO BOX 475, SYDNEY NSW 2001 DX 605 SYDNEY P F AFFILIATED FIRMS PRACTISING SEPARATELY IN SYDNEY MELBOURNE BRISBANE ADELAIDE

2 Environmental Planning and Assessment Act 1979 Section 28

3 Relevance of section 28 Purchaser - acquiring land with the benefit of a covenant Financier - property with benefit of a covenant or development consent Developer - land affected by covenants or development consent Drafting - title restrictions

4 28 Suspension of laws etc by environmental planning instruments (1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. (2) 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. (3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision. (4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister. (5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.

5 Importance of Section 28 Enables (in certain circumstances) development in accordance with an Environmental Planning Instrument or development consent despite Regulatory Instrument Regulatory Instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made Applies if, Governor approves of Environmental Planning Instrument before it is made Declaration in the Environmental Planning Instrument as to Governor s approval prima facie evidence of approval.

6 Application of Section Enables development under Environmental Planning Instruments An enabling provision - section has no effect on its own Applicable Environmental Planning Instrument needs to be considered LEP common applicable Environmental Planning Instrument but no standard provisions

7 Regulatory Instruments Section 28 extends to: Agreements and covenants includes public and private covenants Acts regulations, by-laws, ordinances, proclamations (statutory/ legislative) Instruments of whatever kind Section 28 potentially very broad application or effect

8 General Principles Check Environmental Planning Instrument terms Regulatory Instrument terms May overcome impediment placed on development Enables developments satisfying criteria in planning legislation despite regulatory instrument constraints Promotes wider public interest over private planning arrangements Interpretation - specified in that Environmental Planning Instrument reasonable construction consistent with effective operation

9 Decisions from The Courts

10 Crone v Council of the City of Bathurst Approval for retail shopping centre Restrictive covenant - not to use lot for other than car parking and footway access, prohibition against erection of office or building except an office for car park attendants use Council LEP any agreement, covenant, or instrument imposing restrictions.. shall not apply to the development Particular regulatory instrument need not be identified Helpful from a general principle point of view Crone v Council of the City of Bathurst NSWLEC unreported /88 & 40184/88

11 Challister v Blacktown City Council Development application for service station Restrictive Covenant prohibiting access from specific road LEP covenant, agreement, instrument imposing restrictions does not apply Nothing to affect rights or interests of Council under any registered instrument Governor approves sub-clause (1) Significance of Governor s approval acknowledged Challister v Blacktown City Council (1992) 76 LGRA 10

12 Ludwig v Coshott Adjoining property owners Restrictive covenant - any main building erected on land to be 55ft distant from front boundary Woollahra LEP any agreement, covenant or instrument imposing restrictions.shall not apply Meaning of specified - should be given reasonable construction consistent with effective operation to achieve the stated purpose Woollahra Council LEP now amended Ludwig v Coshott Court of Appeal unreported 13 February /94

13 Marjen v Coles Lease as a Regulatory Instrument Restrictive covenant in lease - no alterations to the centre shall reduce the area or significantly alter the location or configuration of the car parking Council LEP any agreement, covenant, or instrument imposing restrictions shall not apply to development Lease covenant imposed restrictions on development - does not apply to the extent necessary to enable the development Marjen v Coles NSWLEC unreported 40179/95

14 Doyle v Phillips Development consent for single dwelling Restrictive covenant no building to erected on land unless.approved in writing by the transferor LEP for the purposes of enabling development within zone 2 any covenant prohibiting or imposing restriction on the erection or use of a building for certain purposes or on the use of land.shall not apply to the development Planning schemes that abolish a citizen s interest must be construed fairly strictly and not construed to extend operation further than words clearly require LEP referring to zone 2 did not apply to erection of a single dwelling Doyle v Phillips Supreme Court unreported 1 June /97

15 Cracknell & Lonergan v Council of City of Sydney Pool to be constructed encroached on right of way Council LEP - in relation to development any agreement, covenant or instrument imposing restrictions to the extent necessary for that purpose shall not apply Is right of carriageway a covenant, agreement or instrument imposing restrictions on the carrying out of development? Distinction between an easement or right of way which creates positive rights and a covenant which is by its nature negative Right of way at best it imposes duty on servient owner to observe dominant owner s rights No application where the agreement or instrument confers positive rights of ownership Specific LEP should be confined to negative restrictions Cracknell & Lonergan -v- Council of City of Sydney [2007] NSWLEC 392

16 Pro-vision Developments v Ku-ring-gai Council Right of way created by instrument SEPP No.5 for the purpose of enabling development.any agreement or covenant imposing restrictions.to the extent necessary to serve that purpose SEPP No. 5 did not extend to right of way as easement does not fall within the words agreement or covenant Analyse planning instrument to check regulatory instrument that is being overridden Pro-vision Developments v Ku-ring-gai Council [2003] NSWLEC 226

17 Natva Developments v McDonald Bros Lot 42 has the benefit of a right of carriageway burdening lot 41 First development consent (lot 41) - strata subdivision required 2 car spaces to be located on the right of carriageway reliance placed on the LEP Second development consent - access over the right of carriageway and consequently the 2 car spaces Which development consent prevails? Second development consent was not in itself the source of the newly created access right, it removed restriction created by the first development consent and restored lot 42 s right under general law to use the right of carriageway Natva Developments v McDonald Bros [2004] NSWSC777

18 Lennard v Jessica Estates Pty Ltd Section 88B instrument provided not more than 1 dwelling to be constructed on a lot and no building of a semi detached or duplex type building without the consent of Jessica Estates LEP 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 Supreme Court and Court of Appeal held section 88B instrument was a prohibition pursuant to the LEP even though it was conditional on consent of Jessica Estates On appeal land use extended to the erection of buildings Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121

19 Doe v Cogente Ten lots in a deposited plan had the benefit of a right of carriageway over the eleventh lot Court displaced private rights First decision relating to rights under an easement Raises possibility of claim for damages by dominant tenement for disturbance of right of way Doe -v- Cogente NSWLEC unreported /97

20 Conclusions Section 28 is of importance to land owners, developers, and financiers Regulatory Instrument may be overridden by an Environmental Planning Instrument (e.g. an LEP) Section 28 can apply to regulations, covenants, by laws, agreements, covenants, instruments Environmental Planning Instrument and Regulatory Instruments provisions need to be carefully considered Override may only be temporary

21 LEVEL 16, 55 HUNTER STREET, SYDNEY NSW 2000 GPO BOX 475, SYDNEY NSW 2001 DX 605 SYDNEY P F AFFILIATED FIRMS PRACTISING SEPARATELY IN SYDNEY MELBOURNE BRISBANE ADELAIDE