Moved by Councillor Thalis, seconded by the Chair
(the Lord Mayor) –
It is resolved that:
(A)
Council note the Low Rise
Housing Diversity Code came into effect on 1 July 2020;
(B)
Council note the Lord Mayor raised the issue in
relation to Rosebery in a meeting with the Minister for Planning and Public
Spaces on 21 July 2020 and made the following points:
(i)
the majority of submissions from the community
consultation opposed the introduction of the Code, citing concerns that it
would impact on the special character of the area and breaches a covenant
imposed by the original land owners of the Rosebery Estate;
(ii)
the City’s established local planning framework
is the best mechanism to deliver housing diversity, provide certainty and
protect local character;
(iii) the
City has consistently done its part in delivering on state government housing
targets and objectives for housing diversity; and
(iv) the
Council’s strong preference is to list the Rosebery Special Character Area
identified in Sydney Local Environmental Plan 2012, as land excluded from the
Code; and
(C)
to support the City’s request to list the
Rosebery Special Character Area identified in the Sydney Local Environmental
Plan 2012, as land excluded from the Code, the Chief Executive Officer be
requested to forward a copy of the legal advice obtained by Rosebery residents
to the Department of Planning Industry and Environment, which states:
(i)
Clause 1.20(1) of the Code’s SEPP provides that
the development able to be carried out in accordance with the Codes SEPP in
effect overrides a covenant restricting the carrying out of that development.
However, sub-clause (2)(c) states that the subclause (1) does not apply “to a
covenant imposed by an owner or former owner of the land concerned, other than
a covenant that has been required by a council to be imposed”’;
(ii)
accordingly, clause 1.20(1) of the Codes SEPP
cannot be relied upon to overcome the operation and effect of the Covenant (if
it is a valid restrictive covenant);
(iii) the
Covenant restricts the carrying out of development on the Land and its
operation and effect is not suspended by a complying developer certificate
(CDC) issued under the Codes SEPP (including under the Low
Rise Housing Diversity Code); and
(iv) if
a CDC is issued under the Codes SEPP that permits the carrying out of
development contrary to the terms of the Covenant, the CDC could not be relied
upon to provide protection form a breach of the Covenant (and the legal
ramifications that could flow from that breach).
The motion, as varied by consent, was carried
unanimously.
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