Quite often, land developers place restrictive covenants on land. For example the restrictive covenant be that: the land shall only be used for residential purposes, the buildings must be of a certain size or of a certain material or type of construction or design.
Are these restrictive covenants enforceable? The answer is sometimes yes and sometimes no.
Let’s take another example. If you purchase land in a subdivision which contains a restrictive covenant that permits the erection of a single residential building only, can you legally erect a multiple occupancy dwelling such as a duplex or triplex?
Despite what most people think, if the Local Government zoning laws permit multiple occupancies and a Development Consent to build multiple occupancies is granted by the Local Council, then the Council’s Development Consent overrides the restrictive covenant on the land. Therefore the restrictive covenant is ineffective and you can build a multiple occupancy dwelling on the land.
This is because of the provisions of Section 28 of the Environmental Planning and Assessment Act 1979 which clause is mirrored in Clause 1.9a of the Tamworth Local Environmental Plan, provides that to enable any development that has been approved by the Local Council, any covenant or other restriction on use of the land, shall not apply.
The aim of the legislation is to permit any development that is permitted by the zoning laws to be carried out irrespective of private covenants.
Section 28 however only affects a restrictive covenant to the extent that the covenant conflicts with a planning instrument or a consent.
Accordingly, Section 28 will not affect a restrictive covenant where the covenant does not conflict with an environmental planning instrument or development consent. For example in a restrictive covenant in relation to design of a structure, the type of fencing, the type of lawns etc, will remain valid and enforceable.
Land Law is complex.
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