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Need your development to proceed?

Mark Evans from Whiteacre Legal has put a fantastic article on setting aside covenants to allow development to proceed.

Below is an excerpt of is article. Follow the link below for a full read. There’s lots of great articles on property law to check out as well. 

Restrictive covenants can be set aside to allow development to proceed. This power is found in cl 1.9A of most LEPs and in clause 1.20 of the Codes SEPP. The NSW Land and Environment Court has similar powers under the NSW Land and Environment Court Act 1979. This article considers when private covenants may be set aside to permit development to proceed and provides examples of cases in which this power has been exercised.

Section 3.16 of the EPA Act

 
Local Environmental Plans (LEPs) and State Environmental Planning Policies (SEPPs) are species of delegated legislation.
 
Accordingly, then must be an empowering provision in legislation somewhere.
 
That provision, granting authority to create provisions which suspend the operation of covenants, is contained within s 3.16 of the Environmental Planning and Assessment Act 1979 (EPA Act). Its effect is now well understood.
 
As Talbot J said in Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 at 124:
 
“The opportunity to make such a provision in an environmental planning instrument is intended to achieve a result whereby development which satisfies the criteria laid down by the planning legislation may proceed notwithstanding any constraint imposed by other regulatory instruments. The Parliament recognised the significance of the extent of this power by subjecting its exercise to the approval of the Governor and in some cases to the concurrences of the relevant Minister.”
 
This understanding of what is now s 3.16 of the EPA Act was endorsed by the Court of Appeal in Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 and has been followed in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 (overturned on a different basis in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27) and Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248.