Development consent from Councils may have conditions attached that restrict the user of the title of land, in order to limit potential future development on that land. The recent decision in D’Alterio v Newcastle City Council [2017] by the Land and Environment Court serves as a reminder that restrictions to user will be closely observed, but may not necessarily be an impediment to development on the land.

In the case of D’Alterio v Newcastle City Council [2017], the plaintiff appealed Newcastle City Council’s denial of planning permission for a two-storey residential development plan. The site was to be built on land constrained by a registered covenant operating under Section 88b of the Conveyancing Act 1919. In effect, the registered covenant prohibited construction exceeding one storey.

The Land and Environment Court found that the purpose of the covenant was to protect the views of a local heritage item and certain private properties. After close examination of the evidence, the Court decided that the development would not adversely impact the views of the heritage site, and that the loss of views from private properties was irrelevant to the covenant. Consequently, the Court chose to allow the appeal from the developer.

The importance of the case is that although restrictions to title are generally narrowly construed, the Land and Environment Court will consider the purpose of the restriction when applying it, and may choose to vary it in favour of the development at hand.

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