6 - LEGAL ADVICE ABOUT COVENANT - Christopher Hughes QC Advice

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