PlanningAlerts

5 Comments

Create an account or sign in to have your say by adding your own comment.

1. Dear Planners,
   As you are aware, 555 is burdened by a Council covenant that restricts the building to no more than one storey and the benefiting lots of this coveneant do not want to see it lifted.
   The 555 covenant prohibits the building of more than one storey. The reality of this specific case is that the 555 covenant has, in fact, been functioning for decades to protect a valuable water view corridor for at least the following benefiting lot owners:
   · 98 Regatta Road, Canada Bay
   · 100 Regatta Road, Canada Bay
   · 102A Regatta Road, Canada Bay
   · 102B Regatta Road, Canada Bay
   · 104 Regatta Road, Canada Bay
   · 106 Regatta Road, Canada Bay
   · 108 Regatta Road, Canada Bay
   The positon of the above benefiting lot owners is that Council holds the 555 covenant, as aproperty right, on trust for those surrounding land owners who are beneficiaries of that property right.
   The 555 covenant prohibits the building of more than one storey. The reality of this specific
   case is that the 555 covenant has, in fact, been functioning for decades to protect a valuable
   water view corridor for at least the following benefiting lot owners:
   · 98 Regatta Road, Canada Bay
   · 100 Regatta Road, Canada Bay
   · 102A Regatta Road, Canada Bay
   · 102B Regatta Road, Canada Bay
   · 104 Regatta Road, Canada Bay
   · 106 Regatta Road, Canada Bay
   · 108 Regatta Road, Canada Bay
   The positon of the above benefiting lot owners is that Council holds the 555 covenant, as a property right, on trust for those surrounding land owners who are beneficiaries of that property right favour the burdened lot owner and vary the covenant.

   Although the covenant also burdens other lots in the subdivision, the 555 covenant is
   exceptional because it uniquely protects a shared water view corridor, unlike other lots. A small number of other lots in the subdivision have built a second storey contrary to the restrictive covenant, but those buildings have not adversely impacted the view or property values of other benefiting lots, or at least nowhere to the same extent as the proposal to build two or three storeys on the 555 property. Also, to our knowledge the relevant benefiting lot owners may have consented in some cases.
   The benefiting lot owners submit that in the absence of a consent or other reasons
   recognised in equity for varying a covenant, there is a legitimate expectation Council would enforce the 555 covenant.
   Over the last few years, the benefiting lot owners have repeatedly petitioned Council to
   enforce 555 covenant as earlier DAs have been assessed by Council. By varying the 555 covenant to permit the building of more than one storey, the benefiting lot owners would suffer substantial damage to the amenity and financial value of their properties. Such damage to a large number of properties is disproportionate and unjust, compared to the financial enrichment that stands to be gained by the corporate owner of the 555 property and who already has a wholly uninterrupted water view, and who has had notice of the covenant. If Council elects to vary the covenant in favour of the 555 corporate owner instead of the numerous citizens who in many cases have invested their life savings into their property, then those citizens’ life savings will be suddenly depreciated by large amounts given the significance attached to water views in Sydney property valuations.

   The benefiting lot owners have continued to hold a reasonable expectation that Council, as trustee of the 555 covenant, could be relied upon to enforce the covenant. In reliance of this reasonable expectation, the benefiting lot owners have made major decisions such as purchasing their benefiting lot in the first place, or electing to stay and invest their money and livelihood in their benefiting lot. It would be unfair and unconscionable for Council to actively vary the covenant and allow the construction of more than one storey at the 555 property, given the significant degree of detriment that will be suffered by each of the benefiting lot owners.

   As a matter of conscience, Council should not vary the 555 to allow the buildings having more than one storey. A decision by Council to vary the covenant will eventually result in extinguishment of property rights without any statutory authority, and Council should always be reluctant to do so in accordance with long-standing principles against government resumption of property without just compensation.

   The question of an ‘engineering covenant’
   Previous correspondence with Council indicates that Council believes the 555 covenant
   should be given a singular purposive construction, namely that that it is ‘an engineering
   covenant’. We submit that such an approach is improper and will explain why.The 555 covenant provides six separately listed restrictions, roughly being:
   (a) single storey dwelling,
   (b) brick exterior or similar if approved,
   (c) tiles or other if approved,
   (d) reinforcedconcrete raft foundations using approved design, (e) no paling fences; height of any other kind of fence must be approved, and (f) fence to be approved if no expense to Vendor.

   Council previously reported for DA2014/0175 that it believes, at least insofar as the 555
   covenant concerns a single storey dwelling restriction, that it is: ‘due to the land being
   reclaimed from the foreshore, given the construction method specified in the terms of the Covenant. Although not stated in particularly clear language, it seems that Council is saying that since the 555 covenant includes construction method restrictions, and because the 555 covenant was created for properties on reclaimed land, then that must automatically mean the single storey restriction is no longer relevant.
   Council should understand that the covenant was created in 1968 for a new subdivision that happened to be directly adjacent a newly established golf course along its entire length, and almost directly adjacent to Kings Bay along its entire width. So within this context, and also taking into account the restrictions around fence height and type, there is every reason to suppose a purpose of the 555 covenant would be to protect views and amenity.

   Moreover, if the 555 covenant was solely an ‘engineering covenant’, then Council is
   effectively saying that the benefit to be enjoyed by benefiting lot owners, is solely in the
   protection against their neighbours building unstable foundations. This would seem to be more of a benefit to the burdened lot owner than the benefiting lot owner. A covenant is something that, by virtue of burdening one lot owner, benefits another lot owner. It is really hard to see why a covenant, taken as a whole, would serve the interests of the burdened lot owner more than the interests of the benefiting lot owners. The conclusion is that Council cannot be correct when it asserts the 555 covenant is solely an ‘engineering covenant’.
   In any event, Council should be aware of recent judicial authority that instructs ‘a reluctance to look beyond the fact of the register when construing the scope of a registered interest’ such as a restrictive covenant.8 Council’s behaviour is further problematic because it cannot provide any real substantiating evidence about what those intentions may have been.

   We turn to another aspect of the Council’s assessment of the 555 covenant where Council states:
   ‘there are now many examples of two storey dwellings in close proximity to the site and also three and four storey residential flat buildings further up the hill along the western side of Regatta Road.

   Given the Council’s current planning controls which allow for two-storey development within the designated R2 Low Density Residential zone, the historical covenant in the current planning context is considered to be overly restrictive and inequitable’.
   The fact there may be a small number of two storey dwellings in the same subdivision has already been discussed. The fact that there are two storey dwellings and residential flat buildings outside the subdivision is not relevant because the 555 covenant continues to add value to the benefiting lot owners.11 There is no implied release due to a change in the neighbourhood, and Council should refer to the principles of equity when exercising its discretion in this area. Council has at its disposal far greater legal resources than we have, and is expected to deliver legally sound and fair decisions based on their duties of due care and diligence.

   Conclusion
   While we recognise that Council has the power to vary the 555 covenant, we expect Council will exercise its discretion with propriety, transparency and accountability. If not, then Council should anticipate the possibility of further action being taken.
   In the context of the present, and any future DA that becomes potentially approvable under planning legislation, we submit Council is obliged to enforce the restrictive covenant under the general law including principles of equity, and having regard to its duty as trustee of a property right. We also submit the covenant for DA 87/2014 has not been validly varied or suspended.

   Alternatively, if the building design for the present or any future DA becomes potentially
   approvable under planning legislation, then Council must not withhold relevant legal and
   factual information from voting Councillors, nor should Council fail to correct any
   misconceived views held by any individual Councillor. Otherwise, Council exposes itself to accusations of improperly influencing the outcome of the proceedings. In summary, the relevant legal and factual information includes:
   (a) Chehab is not authority for Council to prefer modifying or releasing the covenant
   in favour of the burdened lot owner,
   (b) Council’s planning assessment is not to be conflated with Council’s discretion to
   modify or release the covenant,
   (c) Clause 1.9A of the LEP does not apply,
   (d) the entire covenant does not automatically collapse because of a unsubstantiated
   presumption about geotechnical engineering improvements since 1968,
   (e) the covenant is a recorded property right that has in fact been protecting a view
   for decades for the benefit of various neighbouring lot owners,
   (f) Council is holding the covenant as a property right on trust for at least seven
   benefiting lot owners, and those beneficiaries have been and are hereby repeating
   that Council should enforce the covenant at least insofar as the one storey
   restriction is concerned, and
   (g) Council is obliged to consider the fact that in equity, reduction of property values
   may be relevant for whether the Council decides to enforce or vary the covenant.
   
   We trust that for the above reasons, no DAs for more than a single storey development should be approved for 555 Lyons Rd West. The whole neighbourhood is united on this issue.

2. Hi Stella,
   Thanks for the well-written comments regarding 555 Lyons Rd West new applications.
   We are one of the owners of the affecting address as mentioned. I found out the house has put on market again and the auction will take place on 24th Nov 2018.

   Herewith the selling advertisement but says a "DA approved for 2 story house"?
   https://www.realestate.com.au/property-house-nsw-canada+bay-127889490
   https://www.domain.com.au/555-lyons-rd-west-canada-bay-nsw-2046-2014254150

   According to the council search, the house does not seems to have a valid and approved DA for Demolition of existing structures and construction of a new part 2/part 3 storey dwelling.
   Refer to council search: https://eservices.canadabay.nsw.gov.au/eProperty/P1/eTrack/eTrackPropertyDetails.aspx?r=P1.WEBGUEST&f=%24P1.ETR.PRPDET.VIW&PropertyNo=7337

   FYI, the new Planning certificates 10.7 (2) & (5) Certificate explanation:
   http://www.canadabay.nsw.gov.au/s149-planning-certificates.html

   We have the same view and vote as you have mentioned-above. No DAs for more than a single storey development should be approved for 555 Lyons Rd West. The whole neighbourhood is united on this issue.

   Regards

3. Hi Luk,
   You are absolutely correct, there is no approval for demolition of the existing property, but there is an existing DA for a second storey addition. It comes with a number of limitations eg the builder has to ensure that the loosely compacted soil under the existing property can support a second floor addition as well as a number of other criteria.

   I believe it is a tough call. I was told that was a property close by that started to put on a second storey but the house started to sink, so they had to demolish, put in around 70 support pylons and start again, in addition to all the shoring required so the neighbour's land does not destabilise- this is extrememly expensive.

   To date, the neighbours have successfully fought the last DA to demolish and we will keep fighting to maintain this unique view corridor that we all share. As detailed above, the property is burdened by a covenant for a one storey building and it is not right that the benfiting lots (ie the surrounding neibourhood) lose this unique view corridor.The owner purchased the proprty with the knowledge of the covenant's existance.

   The council got it right the second time in not approving the demolishion and a DA for more than one storey.

   Thanks for your comments

   Stella

4. 555 Lyons Road West house has sold, currently has a New Construction Certificate CC2019/0164 on 26/07/2019. For this CC there is no alert from planningalerts.org.au or council.
   The property is a single dwelling. I wonder what's the meaning of First Floor Addition and would there be any impact on their neighbour?

   ------ DA Tracker Info as below:
   Private Issued Construction Certificate - Alterations to Ground Floor & First Floor Addition
   Status: Completed
   Lodged: 15/03/2019
   Estimated Cost of Work: $ 200,000
   Officer: Michelle Webb
   Notification End Date:
   Determined: 26/07/2019
   Completed by Delegated Authority

5. Hey just curious how long this area can remain a construction zone? The building itself is built big enough without the isore danger of a construction zone/ scaffolding.
   The work on the sight seems to have stopped for over a week and a bit now and as an ajoing property I have some concerns to how long this will remain Ike this? Regards

Have your say on this application

Your comment and details will be sent to City of Canada Bay. They may consider your submission when they decide whether to approve this application. Your name and comment will be posted publicly above.

Create an account or sign in to make a comment