RESIDENTS of an Eastgrove residential estate are discovering that a covenant governing the development of their area is almost worthless in law.
Yet, objectors to a dual occupancy proposal in the Tall Timber Estate are weighing up their legal options following a council meeting.
They’re upset that a neighbouring landowner at 2 Red Gum Place wants to establish a strata subdivision and build two houses on the 1172 square metre block.
One house, fronting the street, would occupy a 455 square metre block and the second dwelling at the rear would be set over 437 squares.
Residents argued the plan would destroy the estate’s spacious amenity and conflicted with a developer’s covenant which residents signed when the subdivision was established by Foberon Pty Ltd in 2005.
The section 88B instrument, issued with the property title, dictates that no more than one dwelling can be built on the site.
“(It’s) there for a reason,” one opponent, Crystal Parlett told councillors during open forum at last Tuesday’s council meeting.
“We all agreed to this when we purchased our blocks and it was a big deciding factor.
“Everyone else has abided by it and if this goes ahead, it will set a precedent. What’s good for one is good for all.”
Miss Parlett did not believe it was fair that residents had to pay the legal bill to enforce a condition on which Council signed off.
But as planning director Chris Stewart explained, Council only signed off on the Section 88B to allow the state government’s Land and Property Information department to establish the land title.
Under council planning laws, the covenant is suspended where it conflicts with zone objectives.
“Accordingly, the restriction cannot be used as a basis on which to refuse the application,” a planning report stated.
“However it should be noted the landowners who have benefited from the covenant have the option of pursuing their legal options independently of the planning process.”
Planners recommended conditional approval for the second house and strata subdivision.
However councillors deferred the matter following addresses from neighbouring residents Nigel Vaughn, Peter Churchill and Miss Parlett at the meeting and written submissions from six people.
All speakers said they received late notice of the council meeting and the opportunity to speak about their concerns.
Cr Andrew Banfield moved deferral to the March 5 meeting, backed by Deputy Mayor Bob Kirk.
“I just think with this complex issue of covenants that residents haven’t had enough time to get proper legal advice so I’m moving an extension to the submission period to allow them to come back to us in March,” he said.
Cr Margaret O’Neill agreed the estate was a “prestige area” and should be kept that way. Cr Alf Walker argued it was important that voices be heard.
However Cr Robin Saville voted against, saying while he had sympathy with residents, the deferral would only give “false hope.”
“On the one hand you have the residents and on the other, the law and I think in this case the law will win.”
Mr Vaughn had earlier voiced frustration that people had little legal recourse when planning laws overrode covenants.
“My question is if Council doesn’t enforce them, where do we as residents go? If it’s the (NSW) Land and Environment Court, it’s absurd that we should have to spend our money to enforce it,” he said.
Miss Parlett also told the meeting she was never advised by any party, including the developer, Council, her solicitor or the real estate agent that planning laws outweighed the covenant.
Council general manager and former chief planner Chris Berry described developers’ covenants as a “problematic area.”
While they reflected a vision for the area, quite often buyers were not informed of the planning considerations. He conceded it was “very confusing for people.”
Mr Berry said residents generally pursued protection of private interests in court.
While this was common in Sydney, it was less so in country areas.
Architect Tim Lee, acting for the applicant, stressed in his submission that both the Goulburn LEP and the Goulburn Mulwaree development control plan 2009 took precedence over the covenant and the development was permissible.
Cr Carol James declared an interest in the item as her business partner’s partner lodged the DA and her real estate agency would likely manage the property.
She left the room during open forum presentations and debate on the item.