Restrictive Covenants, Clause 1.9A and the Fourth Step of Tenacity: Wenli Wang and Dash — and a Note on Disapplication
Brett Daintry, Director, Daintry Associates Pty Ltd
Clause 1.9A of the Standard Instrument Local Environmental Plan is routinely described as "setting aside" restrictive covenants, and the description has bred a habit of treating a disapplied covenant as though it had ceased to exist for planning purposes. That habit is wrong. In Wenli Wang v North Sydney Council [2018] NSWLEC 122, Robson J held at [22] that a covenant caught by clause 1.9A is no jurisdictional bar, but took it into account at [73] and [74] as evidence that appropriate view sharing in the locality was achieved by development in accordance with the status quo. In Dash v Council of the Municipality of Woollahra [2026] NSWLEC 1458, Miller AC applied that reasoning at [57] to a covenant which had defined a surveyed view corridor across the subject site, and refused consent. This paper examines both decisions, locates the covenant's evidentiary work at the fourth step of Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140, and proposes that "pro tanto disapplication" replace "setting aside" as the correct description of what clause 1.9A does.
Disclosure: the author gave expert town planning evidence for the second respondent in Dash v Council of the Municipality of Woollahra [2026] NSWLEC 1458, and is the practitioner after whom the "Daintry line" referred to at [48] of that decision was named. This paper is offered as analysis of the reasoning of the Court and not as a defence of the position advanced at hearing. Readers should form their own view of the decision from the published judgment.
Clause 1.9A of the Standard Instrument Local Environmental Plan is a short provision of considerable practical reach. Under the heading "Suspension of covenants, agreements and instruments", subclause (1) provides:
For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
The clause takes its authority from section 3.16 of the Environmental Planning and Assessment Act 1979 (NSW), formerly section 28, which permits an environmental planning instrument to provide that a "regulatory instrument" shall not apply to development carried out in accordance with the instrument or a consent, and which requires the Governor's prior approval before such a provision has effect. Both provisions were set out by Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 (Wang) at [16] and [17].
The received account of clause 1.9A in day-to-day assessment practice is short and, so far as it goes, correct: a private covenant cannot defeat a development application, and a consent authority may not refuse consent on the footing that the proposal would breach one. His Honour put the point directly in Wang at [22], holding that "it is clear that the covenant cannot represent a jurisdictional bar to consent being granted to the DA".
The difficulty lies in what practitioners have tended to infer from that proposition — that a covenant caught by clause 1.9A is irrelevant to the assessment, and that the assessing officer may put the dealing aside unread. That inference does not follow from the text of the clause, and it does not survive Wang. It has now been tested again, and rejected again, in Dash v Council of the Municipality of Woollahra [2026] NSWLEC 1458 (Dash), a view sharing appeal at Bellevue Hill in which a covenant defining a building exclusion area across the subject site was held at [57] to be a legitimate — though not determinative — input into the merit assessment.
This paper sets out the operation of clause 1.9A on its own terms, examines the treatment of the covenant in Wang and in Dash, identifies the fourth step of Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) as the analytical location at which a disapplied covenant does its work, and advances a terminological correction: clause 1.9A effects a pro tanto disapplication, not an extinguishment, a setting aside, or a suspension.
Three features of the operative words repay attention.
First, the clause is purposive and conditional. It disapplies the instrument "[f]or the purpose of enabling development … to be carried out in accordance with this Plan or with a consent granted under the Act". Absent development carried out in accordance with the plan or a consent, there is nothing for the clause to operate upon.
Secondly, the disapplication is expressly partial. The instrument "does not apply to the extent necessary to serve that purpose". The clause does not say that the instrument ceases to exist, ceases to bind, or ceases to be enforceable. It says that it does not apply, and only so far as necessary. Section 3.16(2) of the Environmental Planning and Assessment Act 1979 (NSW), extracted in Wang at [17], is to the same effect, permitting an environmental planning instrument to provide that, "to the extent necessary to serve that purpose", a specified regulatory instrument shall not apply.
Thirdly, the clause carries express carve-outs. Subclause (2) preserves covenants imposed by or at the requirement of the council, and a schedule of statutory instruments and agreements; subclause (3) provides that the clause does not affect the rights or interests of any public authority under any registered instrument. The version of clause 1.9A(2) reproduced in Wang at [16] refers to several Acts since repealed or replaced, and practitioners should work from the current text of the clause as it appears in the relevant local environmental plan rather than from the version quoted in the 2018 judgment.
The purpose of the enabling provision has been described in strong terms. In Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 (Coshott), Meagher JA said that the self-evident purpose of section 28 and its equivalents was "to nullify and remove all obstacles to the planning principles decided on by the Council or the Minister", a passage reproduced by Robson J in Wang at [19]. In Challister Limited v Blacktown City Council (1992) 76 LGRA 10 (Challister), Talbot J observed that the section removes any bar to the development being carried out but "has no effect on whether development consent should be granted", a passage reproduced in Wang at [18].
That last sentence is the one the profession has under-read. The removal of an obstacle to carrying out development is not the same thing as the removal of a fact from the assessment. Talbot J's distinction between the operation of the covenant and the question whether consent should be granted is precisely the distinction on which Wang and Dash turn.
(The passages from Challister, Coshott, Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248, Donald Crone & Associates Pty Ltd v Bathurst City Council [1988] NSWLEC 73, G H Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 and Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431 discussed in this section and the next are cited as they are reproduced and summarised in Wang at [18]–[20] and [25]–[31]. They have not been independently retrieved for this paper, and practitioners intending to rely upon them should obtain the reports.)
Wang concerned an appeal against the refusal of a development application for the substantial redevelopment of a battle-axe block of 664.6 square metres at Waverton: Wang at [2]. The site was burdened by a restrictive covenant dated 23 April 1954 limiting buildings to no more than two storeys, together with a further restriction on the height of buildings, structures and plants near the turning circle in Waverton Avenue. The covenant benefited five lots, including lot 14, known as 17 Waverton Avenue, which was the property most adversely affected by the proposal: Wang at [3].
His Honour began from the position that, but for clause 1.9A, the covenant would have been fatal. At [15] he recorded that it was agreed the proposal did not comply with the covenant, and that "[i]f there were no statutory instrument setting it aside, the covenant would be a jurisdictional bar to the Court upholding the appeal". Clause 1.9A removed that bar: Wang at [22].
The Council nonetheless submitted that the covenant was a mandatory consideration by force of section 39(4) of the Land and Environment Court Act 1979 (NSW), which requires the Court in disposing of an appeal to have regard to any relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest: Wang at [22]. It was agreed that the covenant answered the description of an instrument made under a relevant Act — the Conveyancing Act 1919 (NSW) — so that the real dispute was as to weight: Wang at [23].
His Honour reviewed the authorities on the weight to be given to an instrument disapplied by a clause of this kind at [24]–[31], noting the competing submissions: the applicant urged the approach of Bignold J in Wainwright and contended for little or no weight (Wang at [30]), while the Council submitted, relying on Pain J in Chehab at [38], that weight is a question of fact for the decision-maker and that, unlike Donald Crone, the covenant here could operate sensibly alongside the planning scheme (Wang at [31]).
The conclusion at [32] is the pivot of the decision:
Having considered the evidence, the detailed submissions and the relevant case law, I find that it is clear that if I am otherwise satisfied that the appeal should be upheld, the covenant does not preclude the Court from granting consent to the proposed development. However, I accept that the existence of the covenant is a matter which I may take into account and the fact that the existing development in the locality of the site is consistent with the terms of the covenant is a matter favourable to Council's case.
Two observations should be made. The first is that the covenant was admitted not as a control but as evidence — evidence of the character of development in the locality and of the expectations against which that character had been established. The second is a tension that the judgment does not resolve. Section 39(4) is expressed in mandatory terms ("shall have regard to"), and it was on that provision that the Council founded its submission at [22]; yet at [32] his Honour framed the matter permissively, as one he "may take into account". The point was not argued as a discrete question of law and the decision does not settle it. Practitioners should not assume that the permissive formulation in Wang at [32] displaces the mandatory language of section 39(4).
The covenant re-emerged at the end of the reasons. At [73] Robson J recorded that, although he did not give it determinative weight, he took the covenant into account, because the emphasis the planning regime placed on view sharing made it appropriate "to take some note of the fact that development in accordance with the terms of the covenant was understood to allow for appropriate view sharing at the time the lots involved in this appeal were first subdivided in 1952". At [74] he stated the conclusion:
Although I do not elevate the covenant as a consideration which would displace what is provided by the planning regime, I do consider that the covenant is one factor indicative of the fact that appropriate view sharing in the locality of the site is achieved by development generally in accordance with the status quo.
Wang also contains a construction holding of independent importance. Objective (b) of the height standard in clause 4.3(1) of the North Sydney Local Environmental Plan 2013 was "to promote the retention and, if appropriate, sharing of existing views", and the Council's town planner relied upon it, particularly the word "retention": Wang at [37]. His Honour identified the difficulty at [38] — the objectives relate to the setting of a development standard with which the proposal complied — and held at [39]:
Although the maximum set by a development standard is not a right, a development is taken to comply with the objectives of a standard where compliance with the standard is achieved. This is made clear by the chapeau of cl 4.3(1) which provides that what follows are the "objectives of this clause" as opposed to the objectives of the development.
At [40] he identified the corollary: the objectives of the standard acquire work where an applicant seeks to contravene the standard by a request under clause 4.6, in which case the consent authority must be satisfied that the objectives of the clause are met notwithstanding the breach. No such request was needed in Wang, the proposal being within the 8.5 metre limit. His Honour concluded at [41] that the objectives were of limited assistance and that it was unnecessary to decide whether the retention objective was achieved.
Dash was an appeal under section 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against the deemed refusal of a development application for the demolition of three dwellings and associated structures and the construction of a multi-storey dwelling house, tennis court, landscaping and site works on a consolidated 3,333 square metre holding at 85D Victoria Road and 23 and 23B Drumalbyn Road, Bellevue Hill: Dash at [1] and [10]. The owner of the adjoining property at 85 Victoria Road was joined as second respondent on 12 December 2025: Dash at [3]. The appeal was dismissed and consent refused: Dash at [71]–[72].
The proposal was for a dwelling of 1,591 square metres with a maximum height of 11.98 metres and a floor space ratio of 0.477:1, with side setbacks of approximately 2.2 metres to the south-east and, at the second floor level, approximately 13 metres to the north-west: Dash at [18].
The site is a steep north-facing harbour-view holding falling approximately 24.14 metres between its Victoria Road and Drumalbyn Road frontages: Dash at [12]. At [14], under the heading "The site and its context", the Court recorded that 85 Victoria Road "is oriented at an angle on the block to take advantage of existing views to the Harbour to the north across 85D Victoria Road in the general location of the existing pool and tennis court", that its main living areas are on the ground floor, and that "[a] restrictive covenant exists which seeks to limit development in this area of the subject site however has no effect by virtue of cl 1.9A of WLEP".
That last sentence, read in isolation, states the orthodoxy. What the Court did with the covenant thereafter did not.
The instrument itself is a memorandum of transfer under the Real Property Act 1900 (NSW), registered as dealing R352155, which reserved a right of carriageway and by which the transferee covenanted with the transferor, relevantly, that no building or any part of any building would be erected on the burdened lots westerly of an imaginary line fixed by two surveyed points; that no building other than a private dwelling house would be erected on those lots; and that no part of any such building erected on one of them would extend beyond a height of 79.705 metres above mean sea level. The benefited land was a separate lot in the same deposited plan, and the power to release, vary or modify was reserved to its owner for the time being. [The transfer, the deposited plan number, the surveyed dimensions and the reduced level are taken from a scanned imaged copy of dealing R352155 and require confirmation against a clean copy obtained from NSW Land Registry Services. The judgment does not identify the dealing by number, and the identification of R352155 as the instrument referred to at [14] and [55]–[57] should be confirmed.]
The significance of the instrument, for present purposes, is its shape. It did not merely cap height. It drew a line across the servient land and excluded building from one side of it — which is to say, it created a view corridor and fixed it by survey.
The Court's findings on view impact were emphatic. At [50] the Court accepted the agreement of the experts that the existing views from the ground floor living areas of 85 Victoria Road were highly valued harbour views, and accepted the evidence that the impact upon them would be "variously severe – devastating to devastating". At [53] the Court noted that the primary living spaces were on the ground floor and that, in accordance with Tenacity, the impact on those views was more significant than an impact on views from bedrooms or service areas; the Court accepted that the impact on the upper levels was acceptable but held that, considering the impact across the whole of the property "as Tenacity invites me to do", the overall impact was unreasonable.
At [55] the Court found that the proposal did not provide for the adequate sharing of views and that it amounted to "a monopolisation of views", the proposed dwelling achieving harbour views over three full levels while the upper level's north-western extent detrimentally affected "the adjoining neighbour whose dwelling has been specifically oriented to align with an existing view corridor to which a restrictive covenant applies".
The Court then set out at [56] the passage from Wang at [74] extracted above, and continued at [57]:
Consistent with Robson J's decision, I do not give the restrictive covenant in this case determinative weight however consider that it is appropriate to take some note of the fact that development in accordance with the covenant was understood to allow for appropriate view sharing at the time of the lot subdivision. This is presumably why 85 Victoria Road was designed and built to orient its living spaces to the view corridor provided for by the covenant.
The reasoning is a faithful application of Wang, but it is also an extension of it. In Wang at [32] and [74], the covenant was evidence of the general character of development in the locality — a two-storey neighbourhood that had in fact been built to a two-storey covenant. In Dash at [57], the covenant was evidence of something more particular: that the affected dwelling had been designed and constructed in reliance upon the corridor the covenant created. The covenant did not merely describe the status quo; it explained the orientation of the very building whose amenity was in issue. That is a materially stronger evidentiary use, and it is the principal contribution Dash makes to this line of authority.
The four-step assessment in Tenacity at [25]–[29] was extracted in full in Dash at [33] and in Wang at [42]. The first three steps look outward, to the views affected, the parts of the property from which they are obtained, and the extent of the impact. Only the fourth step looks at the proposal itself. At [29] Senior Commissioner Roseth said:
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours.
It is submitted that the fourth step is where a disapplied covenant properly enters the assessment, and that it is the only step at which it can sensibly do so. The first three steps are concerned with the quality, source and extent of the view loss; the covenant tells the assessor nothing about those matters. The fourth step is concerned with the reasonableness of the proposal in its setting, and the settled expectation recorded by a covenant is directly probative of that setting. The structure of both judgments confirms the placement: in Wang the covenant is dealt with at [73]–[74], immediately after the fourth-step reasoning at [70]–[72]; in Dash it is dealt with at [56]–[57], between the monopolisation finding at [55] and the more skilful design finding at [58].
Both decisions identify traps at the fourth step.
The circularity trap. In Wang at [71], Robson J accepted that there was force in the Council's submission that the applicant "has taken a circular approach to the fourth step of Tenacity which presupposes a right to the level of amenity achieved by the proposed development", and held that although a redevelopment along the lines of the alternative plan in evidence would not provide the same amenity as the proposal, "it would provide a very high level of amenity and enjoy impressive views". The fourth step asks whether a more skilful design could deliver the same development potential and amenity; it does not treat the amenity of the proposal as designed as the benchmark by which alternatives are to be judged.
Dash adopted the point expressly at [58], the Court accepting that a more skilful design, in line with step four of Tenacity, "could readily provide the applicant with the same development potential and a very high level of amenity whilst at the same time reducing the impact on the views of neighbours", declining to accept that the amenity of the dwelling would be reduced by an alternative design because the quality of the available views would not be equivalent, and finding that the site, given its large site area, slope and orientation, presented a range of opportunities to design a building with equivalent amenity. [At [58] the Court renders the phrase from Wang at [71] as "a very high level of amenity and the enjoyment of impressive views" and describes it as "sufficient to satisfy the fourth step of Tenacity". With respect, the words in Wang at [71] are "it would provide a very high level of amenity and enjoy impressive views", and the paragraph is directed to rejecting a circular approach to the fourth step rather than to stating a sufficiency test. The difference is not material to the outcome in Dash, but the passage should be quoted from Wang rather than from Dash.]
The compliant-scheme trap. The applicant in Dash argued that the proposal, which set the second floor back 13 metres from the north-western boundary where the control required only 1.5 metres, was demonstrably superior to a scheme complying with the DCP envelope controls and therefore delivered adequate view sharing: Dash at [6] and [45]. The Court rejected the argument at [54], holding that it did not accept "that as the proposal is an improvement over a compliant scheme, that is one that complies with the building envelope established by the DCP envelope controls, it necessarily provides for adequate view sharing", and that "what is required here is a qualitative assessment of whether the proposal provides for the adequate sharing of views. This is not contained to comparison with a compliant scheme."
The same trap was addressed in Wang at [65], where the DCP provided that the Council would generally not refuse an application on view loss grounds where the development strictly complied with the building envelope controls. His Honour held that the statement was subject to the objectives beneath it, including the objective of encouraging view sharing as a means of ensuring equitable access to views. At [64] he had already observed that the maxima provided for in development standards "are not rights to develop to those levels". The practical lesson is clear: envelope compliance is a factor going to reasonableness under the fourth step, not a safe harbour that forecloses it.
The interaction with clause 4.6. The proposal in Dash exceeded the 9.5 metre height standard in clause 4.3 of the Woollahra Local Environmental Plan 2014, reaching 11.98 metres when measured from existing ground level as excavated: Dash at [26] and [60]. A clause 4.6 request was advanced on the first of the ways identified in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 — that the objectives of the standard are achieved notwithstanding non-compliance — and engaged in particular objective (d) of clause 4.3, directed to minimising the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion: Dash at [26] and [62]. [The Court's own cross-reference at [62] refers the reader to [25] for the objectives of clause 4.3; in the judgment as published those objectives appear at [26].]
The Court found at [63] that the request did not demonstrate that compliance was unnecessary or unreasonable, and that objective (d) was not achieved; at [64] that sufficient environmental planning grounds were not established, the Court expressly rejecting view sharing and more skilful design as grounds in light of its earlier findings; and at [67] that, pursuant to clause 4.6(3), the development was inconsistent with objective (d) and sufficient environmental planning grounds did not exist, so that "development consent must not be granted". The Court recorded at [68] that, notwithstanding the clause 4.6 precondition was not met, its primary finding on view sharing warranted refusal on that ground alone.
This is the corollary Robson J identified in Wang at [40] in action. Where a proposal complies with the standard, its objectives are taken to be achieved and add nothing: Wang at [39] and [41]. Where it does not, the objectives become the operative test, and a view-sharing objective embedded within a height standard converts the Tenacity analysis into a jurisdictional obstacle under clause 4.6(3)(a).
A discrete construction argument in Dash deserves separate notice. At [51], senior counsel for the applicant submitted that "view sharing" necessarily requires the loss or giving up of some view, and is not the "protection" or "retention" of existing views as the DCP requires for public views. The submission drew support from the drafting: as the Court recorded at [29], objective O10 of the precinct provisions requires that development facilitate view sharing to adjoining and adjacent private properties, while objective O9 requires the protection of important views from the public spaces of the precinct, including view corridors between buildings.
The Court did not accept the submission, holding at [51] that "the concept of view sharing does not necessarily imply loss" and relying upon the Macquarie Dictionary definition of "share" as including "to use, participate in, enjoy, etc., jointly".
The correlative submission — that a design confined to the alignment identified in evidence would preserve all existing ground floor views and would therefore not amount to view sharing at all — was not determined. At [52] the Court declined to assess an alignment that was not before it, and confined itself to finding that the alignment which was before it did not provide for the reasonable sharing of views, having regard to the emphasis placed on view sharing in the DCP and to the assessment of environmental impacts under section 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW).
The construction adopted at [51] is orthodox and, it is submitted, correct. To read "sharing" as requiring loss would convert a provision directed to equitable outcomes into a licence to appropriate, and would make the degree of view taken irrelevant so long as some view remained. It is consistent with Wang at [66], where section 1.3.6 of the DCP taken as a whole was held to indicate that, whilst development is to be facilitated in accordance with the controls, view "sharing" is an important objective to be taken into account. It is also consistent with the local drafting: the Bellevue Hill North precinct desired future character recorded in Dash at [28] requires that development on sloping sites "step down the site to maintain views", and that development "retain views of the harbour from public spaces and provide for view sharing from private properties"; control C5 in section B3.5.3, recorded at [32], requires development to be sited and designed to enable a sharing of views with surrounding properties, particularly from the habitable rooms.
Two terminological corrections are advanced, one general and one specific to the framing of this issue in practice.
First, clause 1.9A does not "set aside", "extinguish", "void" or "suspend" a covenant, and nor does it deprive it of "effect". It disapplies it pro tanto. The received vocabulary is entrenched — the marginal heading to the clause itself says "Suspension", Wang uses "set aside" at [15] and [24], and Dash at [14] states that the covenant "has no effect by virtue of cl 1.9A of WLEP" — and no criticism is intended of the usage. With respect, however, each of the received terms misdescribes the operation of the clause in a way that has practical consequences. The point is illustrated by Dash itself: the covenant said at [14] to have "no effect" was, at [55] and [57], given evidentiary effect on the central issue in the case.
The clause does not extinguish. The covenant remains registered, remains an interest in land, and remains enforceable between the parties bound by it in every respect other than to the extent necessary to enable the consented development to be carried out. It does not suspend, in the ordinary sense of a temporal interruption: nothing in the clause fixes a period, and the covenant is not restored at the end of one. Nor does it "set aside" in the sense in which a court sets aside an instrument, which imports invalidation.
What the clause does is disapply the instrument to a measured extent, defined by reference to a particular development. The term "pro tanto disapplication" states that operation exactly: the instrument does not apply, but only so far and for so long as the disapplication is necessary to enable the development to be carried out in accordance with the plan or the consent. It follows, and practitioners should note, that if the consent lapses or is not acted upon, there is no development for the clause to enable and the covenant applies according to its terms; that the covenant continues to bind in respect of anything the consent does not authorise; and — the point of this paper — that the covenant survives as a fact, as an instrument answering the description in section 39(4) of the Land and Environment Court Act 1979 (NSW) as agreed in Wang at [23], and as evidence available in the merit assessment.
Adopting the corrected term makes the second proposition intuitive rather than surprising. An extinguished covenant would have nothing to say about the reasonableness of a proposal. A covenant disapplied pro tanto plainly does.
*Secondly, the instrument that did the work in Dash was a restrictive covenant, not an easement, and the distinction should not be elided. The transfer that created the covenants in Dash* also reserved a right of carriageway, a right of way was among the matters raised in the 82 submissions received by way of objection recorded at [36], and it is easy in practice to describe the whole dealing loosely as "the easement". The characterisation matters, for two reasons.
The first is textual. Clause 1.9A(1) operates upon "any agreement, covenant or other similar instrument that restricts the carrying out of that development" (emphasis added). A restrictive covenant is the paradigm case: its whole function is to restrict user of the burdened land. A right of carriageway is a positive easement conferring a right of user over the servient tenement; it does not in terms restrict the carrying out of development, although it may as a practical matter preclude building over the easement site. Whether such an easement falls within "other similar instrument" for the purposes of clause 1.9A was not in issue in Wang, was not decided in Dash, and should not be assumed. The observation of Meagher JA in Coshott, as reproduced in Wang at [19], that the words "by or under whatever authority made" mean no more than "howsoever created" goes to how an instrument came into existence, not to whether an easement answers the statutory description.
The second reason is remedial. A development consent does not of itself confer any private right to interfere with an easement, and the beneficiary's remedies lie in the equitable and possessory jurisdiction of the Supreme Court rather than in the planning system. Where a proposal cannot be built without interfering with an easement, the applicant's route is an application under section 88K or section 89 of the Conveyancing Act 1919 (NSW), not reliance upon clause 1.9A. Advising a client that clause 1.9A has "dealt with" an easement is, on the present state of the authorities, an unsafe position.
The following sequence is offered for the assessment of a development application affected by a registered covenant or similar instrument.
Step 1 — What is the instrument, and is it within clause 1.9A at all? Obtain the registered dealing, not the title notation. Characterise the interest: restrictive covenant, positive covenant, restriction as to user, easement, or agreement. Clause 1.9A(1) reaches instruments that restrict the carrying out of development; the position of easements is untested. Check the carve-outs in clause 1.9A(2) and (3) — a covenant imposed by or at the requirement of the council, or an interest of a public authority under a registered instrument, is outside the clause.
Step 2 — To what extent is disapplication necessary? The disapplication extends only so far as is necessary to enable the development to be carried out. Identify the specific covenant terms with which the proposal is inconsistent, and the specific respects in which it is inconsistent. Do not treat the whole instrument as disapplied.
Step 3 — Is the instrument evidence of anything? Read the covenant for what it reveals about the expectations under which the locality was developed: building lines, exclusion areas, height limits by reduced level, and the orientation of the benefited land. Where the covenant defines a corridor and the benefited dwelling has been built to it, the evidentiary value is at its highest: Dash at [57].
Step 4 — Where does that evidence enter the assessment? For a consent authority determining an application, through section 4.15(1)(b) and (e) of the Environmental Planning and Assessment Act 1979 (NSW), as part of the factual matrix bearing on impact and the public interest. For the Court on a Class 1 appeal, additionally through section 39(4) of the Land and Environment Court Act 1979 (NSW): Wang at [22]–[23]. In a view case, the analytical location is the fourth step of Tenacity: Wang at [70]–[74]; Dash at [55]–[58].
Step 5 — Test the fourth step for circularity and for the compliant-scheme fallacy. Ask whether a more skilful design could deliver the same development potential and amenity — not the amenity of the proposal as designed: Wang at [71]; Dash at [58]. Do not accept a comparison with a hypothetical complying envelope as a substitute for a qualitative assessment of whether views are in fact shared: Dash at [54]; Wang at [64]–[65].
Step 6 — Assess the impact across the whole of the property. An acceptable impact on upper-level bedrooms does not answer a severe impact on ground floor living areas; the assessment is of the property as a whole, and impacts on principal living areas carry greater weight: Dash at [53], applying Tenacity at [28] and Kamenev v Woollahra Municipal Council (No 2) [2018] NSWLEC 1228 at [27-29].
Step 7 — Check the interaction with any development standard contravention. Where a clause 4.6 request is advanced, the objectives of the contravened standard become an operative test: Wang at [40]. If the standard carries a view or amenity objective, an adverse finding at the fourth step of Tenacity will ordinarily defeat the request under clause 4.6(3)(a), with the result that consent must not be granted: Dash at [63] and [67].
Step 8 — State the weight, and state its limits. The covenant is not determinative and must not be treated as a control. It is one factor: Wang at [74]; Dash at [57]. Reasons that elevate it beyond that are exposed on appeal; reasons that ignore it altogether are equally exposed.
Three limits should be stated plainly.
Dash is a decision of an Acting Commissioner in the Court's Class 1 merits jurisdiction. It does not bind, and it does not stand on the footing of Wang, which is a decision of a Judge of the Court. Its authority is persuasive and lies in the quality of its reasoning and in its faithful application of Wang at [74]. As Tobias JA observed in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [96], reproduced in Wang at [67], consistency in the application of planning principles is a desirable objective, but it does not follow that a consistent application of those principles results in the same outcome, which depends upon the particular facts of each case as well as upon the evidence called by the parties.
The Court in Dash was careful to say, at [7] and again at [69], that its primary finding was made "on the basis of the particular circumstances of the case". The covenant was one input among several. It sat alongside expert evidence of severe to devastating impact on principal living areas accepted at [50], the desired future character direction that development on sloping sites step down the site to maintain views recorded at [28], objective O10 directed to facilitating view sharing to adjoining and adjacent private properties recorded at [29], and objective O3 and control C5 recorded at [32]. It would be a misreading of Dash to treat the presence of a covenant as, of itself, a reason for refusal.
Finally, and notwithstanding that the transfer in question also reserved a right of carriageway, Dash determines nothing about the operation of clause 1.9A upon easements. The judgment addresses the instrument only as "a restrictive covenant": Dash at [14], [55] and [57]. That question remains open.
The tension is easily stated. Clause 1.9A of the Standard Instrument Local Environmental Plan exists to prevent private instruments from obstructing development authorised under the planning system, and it does that work effectively: a covenant is no jurisdictional bar (Wang at [22]). But the clause disapplies an instrument only to the extent necessary to enable the development, and it does nothing at all to the instrument's status as a record of the expectations under which a locality was subdivided and built.
Wang established at [32] and [73]–[74] that a covenant disapplied by clause 1.9A remains available as evidence of the settled view-sharing expectation in a locality, without being elevated to a consideration that displaces the planning regime. Dash applied that reasoning at [57] to a covenant which had defined a surveyed view corridor, and to a neighbouring dwelling which had been oriented to it, and treated the covenant as explaining why the affected amenity existed in the form it did. In both, the covenant did its work at the fourth step of Tenacity, on the reasonableness of the proposal — not at the first three steps, and not as a control.
The practical upshot for practitioners is threefold. Obtain and read the dealing, whatever the title notation or the assessment report says about clause 1.9A. Deploy it, if at all, on reasonableness, and say so expressly in the reasons. And abandon the language of extinguishment: the covenant has been disapplied pro tanto, it has not gone away, and an assessment that proceeds as though it had is incomplete.
About the author
Brett Daintry is Director of Daintry Associates Pty Ltd, a planning consultancy based in New South Wales. He is an experienced NSW planning and building surveying practitioner with expertise in Land and Environment Court jurisprudence, Standard Instrument LEP provisions, view sharing assessment and clause 4.6 exception requests.
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