6 - LEGAL ADVICE ABOUT COVENANT - Christopher Hughes QC Advice

Page 2

Michael Williamson Page 2 21 May 2015
Barrister-at-Law

 

The query raised by the Council with respect to the proposed covenant is in the following
terms:

“You have previously indicated that the odour issues for the properties currently
owned by the applicant may be addressed by a covenant. I would appreciate further

advice on how a covenant is intended to work in this scenario.”

To assist in responding to the Council’s query we provide the following for your
consideration.

The covenant contemplated is one which would attach to land that is not the subject of the
development application before the Council, but will function as a buffer in respect of odour
to surrounding sensitive land uses. The purpose of the covenant is to ensure that such a buffer
will remain in place for the life of the poultry farm and will not be compromised by existing
and future land uses inconsistent with that purpose. The land to which the convenant would
attach must be owned and controlled by your client or a related entity.

Section s. 97A of the Land Title Act 1994, contemplates that a covenant by registration may
be appropriate in specific circumstances. The relevant circumstance here emerges from
s.97A, in particular the following sub-sections:

“97A Covenant by registration

(1) A lot may be made the subject of a covenant by the registration of an
instrument of covenant under this division.

(2) An instrument of covenant may be registered under this division only if the
covenantee under the instrument is the State or another entity representing the

State, or a local government.

(2A) An instrument of covenant may be registered even if the covenantor under the
instrument is the same entity as the covenantee.

(3) The covenant must -
(a) _ relate to the use of —
fi the lot or part of the lot; or

(ii) a building, or building proposed to be built, on the lot; or

(4) The covenant -
(a) may be a positive covenant or a negative covenant; and

(b) is binding on the covenantor and the covenantor’s successors in title.

Page 3

Michael Williamson Page3 21 May 2015
Barrister-at-Law

 

(7) For subsection (3)(a), the covenant relates to the use of the lot, a part of the
lot, a building on the lot or a building proposed to be built on the lot, only if it
provides for -

(a) a purpose for which the lot, the part or the building must be used; or

Examples of covenants for paragraph (a) -

* that a building on the lot must be used for educational purposes
* that the lot must be used for noise attenuation purposes

...” (our emphasis added)

Section 97A of the Land Title Act 1994 makes is clear that a covenant may be registered in
relation to the use of a lot, or part thereof. It is also clear from one of the examples given in
sub-section (7), that a covenant registered in relation to the use of land may be for attenuation
purposes, or in other words, as an impact mitigation measure.

The proposed covenant would need to identify for each relevant lot or part thereof which is to

function as an odour buffer and be preserved for that purpose during the life of the poultry

farm. This may require an odour expert to identify, with particularity, what steps are required
preserve land as a buffer. By way of examples, the covenant may address the following:

(a) the land which functions as a buffer must not be developed with a sensitive receptor,
such as new dwelling;

(b) the land ought not to be developed for purposes associated with the poultry farm,
where those purposes are likely to emit odour, or for other purposes likely to have an
impact on the amenity of nearby receptors in terms of, at the very least, odour, but
probably also other amenity impacts such as noise, lighting and visual amenity
impacts;

(c) the land may however be suitable for other pursuits such as non-intensive animal
husbandry.

These types of controls would need to be specified in the covenant.

In addition to the covenant, the Council may also wish to consider imposing a condition of
approval which requires your client to provide evidence that the covenants have been
registered on the titles of the buffer allotments before commencing the use.

Naturally if you have any queries concerning the above please do not hesitate to contact us.

Yours sincerely

 
   

~~) IQ LoL SS

MICHAEL WILLIAMSON