Implications of covenant

Discussion in 'Development' started by jyeung80, 5th May, 2018.

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  1. jyeung80

    jyeung80 Well-Known Member

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    Was reviewing an S32 for a potential property purchase and saw that it has a restrictive covenant from 1928: "... that no sand or earth is to be removed from the land hereby transferred..."

    What does this actually mean in practice? Can I subdivide / redevelop the block as long as I don't remove any sand or earth from the property? What if there's dirt on the tradies' shoes? If I go there and take home a handful of dirt, am I in breach of the covenant?

    I realise in some cases councils can override, vary or remove covenants but I'd have to apply for a planning permit (not an issue given I'm planning to redevelop anyway). If, however, someone objects because he/she really, REALLY likes the dirt where it is, can councils ignore the objection and grant the permit anyway? Or do I have to take it to the supreme court?
     
  2. Propertunity

    Propertunity Well-Known Member

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    It means you cannot turn the land into a quarry.
     
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  3. Joynz

    Joynz Well-Known Member

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    In addition to the quarry interpretation, might it also mean that any excavated soil for a build has to be retained on site?
     
  4. jyeung80

    jyeung80 Well-Known Member

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    Well there goes my plans! Who would know for sure what the implications are of this? A property lawyer?
     
  5. housechopper2

    housechopper2 Well-Known Member

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    Yep. Also (whilst unlikely) council might stop you putting a pool in - double check with them if that is your intention.
     
  6. lixas4

    lixas4 Well-Known Member

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    Keep reading the covenant, you will probably find it states that it allows excavation for building purposes. The old ones are hard to read, full of legalise. If you cant find that statement pm me or attach it here and i can have a look (im a land surveyor and read one every month or so).
     
    Last edited: 5th May, 2018
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  7. Ben John1

    Ben John1 Well-Known Member

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    I am in similar situation (covenant restricting development), who can remove an old covenant, how hard is it going to be, and time wise?

    Who do I need to speak, a building surveyor or a lawyer? Thx
     
  8. jyeung80

    jyeung80 Well-Known Member

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    Speak to a property lawyer. I've spoken to an experienced town planner, one of the council's planners, my solicitor and a land surveyor and none of them believe the covenant will restrict development. However, they've all said I should speak to a property lawyer if I want something definitive. The property lawyer I've spoken to has also said the same thing but is doing further some investigations just to be sure so he can put it in writing. Should have an answer this week or next. He or she will also be able to advise you on how to vary or remove the covenant if necessary.
     
  9. melbournian

    melbournian Well-Known Member

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    @jyeung80 you are going to need a specialist lawyer who deals with covenants - most would just say too hard basket - (some covenants would have expired) . this was the advice that was given - for a single covenant removal

    Covenant Change?
     
  10. Candlebark

    Candlebark Well-Known Member

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    This sounds like a very common covenant. They usually include words along the lines of 'no removal of sand, gravel etc ......except for the foundations of a dwelling'. Dwelling has a fairly broad definition that can be taken to include driveway, garage in this context. Even in-ground pools will generally be covered by the term dwelling.

    Covenants are very a very powerful legal document, so always take care if you find one on the title. Especially if it says 'no more than one dwelling'. I had a recent covenant on a suburban block that prevented farming of pigs or use for a pottery.
     
  11. housechopper2

    housechopper2 Well-Known Member

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    per other comments , not all covenants are the same so it's important you seek specific advice. E.g. A single dwelling covenant in a council area with no precedents for overturning is a whole other ball game compared to 'no quarrying'.
     
  12. jyeung80

    jyeung80 Well-Known Member

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    Thanks all for your responses. I have a property lawyer looking into it for me.

    The covenant is definitely not a single dwelling covenant. It is worded unusually though because most covenants that restrict mining or quarrying usually explicitly say so. This one simply says "no sand or earth is to be removed from the land". Everyone I've spoken to has said it's an unusual covenant and they've not seen one that's so open ended. Anyway, will wait and see what happens.
     
  13. Tufan Chakir

    Tufan Chakir Well-Known Member

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    I suspect you are overthinking it
    It's a common covenant to prevent soil being removed as a "business enterprise" which was the sort of thing that happened historically. Removal can be achieved through the planning permit process
     
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