6 - LEGAL ADVICE ABOUT COVENANT - Christopher Hughes QC Advice

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.