Restrictions On Use – Dual Occupancies

Donald Crone & Associates Pty Limited v Bathurst City Council (Unreported, Land and Environment Court), Cripps J held that: “The existence of the covenant and the agreement is, in my opinion, a matter which can be taken into account by the determining authority pursuant to … the Environmental Planning and Assessment Act in the course of its determination whether or not development consent should be granted. However, once development consent has been granted, the agreement and the covenant cannot apply to that for which development consent was granted.”

So contrary to popular belief there are circumstances in which a Council would properly attach weight to a private restriction on use, because the situation is the inverse of the situation in the case of Wainwright v Canterbury Municipal Council.  In that case the Land and Environment Court held the Consent Authority would attach no weight to a restrictive covenant preventing dual occupancy development in a 600 lot development which had been imposed some 60 years before the case was heard.  So, it was quite appropriate that the Consent Authority in that case should all but ignore an out of date restriction effectively frustrating a modern planning decision that was clearly apposite in the context of a 600 lot massive development.   One example of that is where a development is contemporary and intimate, so that it would be wholly inappropriate for Council to ignore the restriction.  In fact, the age of the development and hence the restriction and the nature and character of the development may demand that Council would attach considerable weight to the restriction as any expression of the views of owners in the neighborhood.