13 August 2026 - Restrictive Covenants, Clause 1.9A and the Fourth Step of Tenacity: Wenli Wang and Dash — and a Note on Disapplication

Abstract

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.

Read the paper:  Restrictive Covenants, Clause 1.9A and the Fourth Step of Tenacity: Wenli Wang and Dash — and a Note on Disapplication 

12 August 2026 - Remedying Unauthorised Building, Development and Use in New South Wales: Ireland, Buyozo and Goldcoral Reconciled — A Consolidated Procedure

Abstract

Some practitioners and councils continue to mishandle unauthorised building work by directing owners toward applications the law does not permit. A development consent or modified development consent can never retrospectively authorise development already carried out: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177. The only statutory mechanism addressed to the works as executed "WAE" is the building information certificate under Division 6.7 of the Environmental Planning and Assessment Act 1979 (NSW), assessed by reference to the "notional development application" test in Ireland v Cessnock City Council (No 2) (1999) 110 LGERA 311. Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 has now clarified that development consent may nonetheless be granted for prospective works that amend, upgrade or replace unlawful works, and for the future use of the building as remediated. This paper consolidates the authorities into a procedure — certificate for the existing fabric, consent for prospective remedial works, consent for future use — and reconciles Ireland with Goldcoral as complementary, not competing, doctrines. A closing section (Section 9) addresses how this framework will operate once the Building (Approvals and Practitioners) Act 2026 (NSW) — which replaces construction certificates with building approvals and occupation certificates with completion approvals, while retaining the building information certificate — is proclaimed. The paper also draws attention to a legislative reversal that appears to have gone unremarked in the commentary published to date: the new Act’s post-commencement authorisation reintroduces, in a controlled form, the post-commencement certification that former section 109F(1A) was enacted to prohibit when Parliament reversed Marvan Properties in 2006 (Section 9.3). The material provided represents a summary of the regulatory landscape as understood at the time of publication.

Read the paper:  Remedying Unauthorised Building, Development and Use in New South Wales: Ireland, Buyozo and Goldcoral Reconciled — A Consolidated Procedure

11 August 2026 - One Lot, Two Regimes: Low and Mid-Rise Housing Uplift on Partly Hazard-Affected Land

Abstract

Chapter 6 of State Environmental Planning Policy (Housing) 2021 confers substantial non-discretionary height and floor space ratio standards on land within a low and mid-rise housing area, but section 164 withholds that benefit from bush fire prone land among a range of other limits. Where a lot is affected in part only, a question of construction arises that is of direct consequence to design: does the exclusion operate on the physical area mapped, or does it disqualify the whole lot? This paper submits that the exclusion attaches to the mapped physical area, because "land" in the Environmental Planning and Assessment Act 1979 (NSW) denotes a topographical entity rather than a title — North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470, 481 — and because the Housing SEPP uses "lot" where a lot is intended. The consequence is a bifurcated site: one building governed by two quantitative regimes, with Chapter 4 and the Apartment Design Guide applying across the whole, and a Chapter 2 affordable housing bonus available over part.

Read the paper: 11 August 2026 - One Lot, Two Regimes: Low and Mid-Rise Housing Uplift on Partly Hazard-Affected Land

11 August 2026 - The Conservation Incentive in Clause 5.10(10) of the Standard Instrument LEP

Abstract

Clause 5.10(10) of the Standard Instrument — Principal Local Environmental Plan is a compulsory provision that permits a consent authority to grant consent to development that would otherwise be prohibited, where the development concerns a heritage item and the conservation of that item is facilitated by the grant of consent. The provision is a powerful one: it displaces the zoning prohibition. Its power is matched by its rigour. The clause opens with a threshold requirement — that the proposal be “development for any purpose” of the item or of the land on which it is erected — and then imposes five preconditions, each of which must be satisfied before the discretion to grant consent is enlivened. This paper examines the operation of the clause through the five principal decisions of the Land and Environment Court to have considered it: David Fox v North Sydney Council [2016] NSWLEC 1366, George v City of Parramatta Council [2017] NSWLEC 1366, Fox v North Sydney Council [2020] NSWLEC 1056, Williams v Shellharbour City Council [2020] NSWLEC 3, and PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722. PDS Engineering is the first decision in which the clause succeeded, and the only one to have granted consent; it applies the same tests as the earlier refusals and is consistent with the sole binding authority on the clause, Williams. The paper reduces the authorities to a sequential decision pathway for practitioners assessing or advancing an application under the clause, and identifies an unresolved tension in the case law as to how demanding the word “facilitated” truly is..

Read the paper: The Conservation Incentive in Clause 5.10(10) of the Standard Instrument LEP

Disclaimer

The information, opinions and commentary published on this website are provided for general information and discussion purposes only. They represent the professional opinions of Brett Daintry, based on his qualifications, professional experience and understanding of the law, planning framework and regulatory practice as at the date of publication. The content does not constitute legal advice, planning law advice, or any other form of professional legal opinion, and must not be relied upon as a substitute for obtaining advice that is specific to your individual circumstances. Planning, environmental, building and local government matters are highly fact-specific and frequently involve complex statutory interpretation, changing legislation, regulations, environmental planning instruments, policies and judicial decisions. The application of the law will depend upon the particular facts and circumstances of each case.

Before acting, refraining from acting, or making any decision based on the material published on this website, you should obtain independent legal advice from a suitably qualified legal practitioner. Where the issue concerns Local Government, Planning and Environmental Law in New South Wales, it is strongly recommended that you seek advice from a solicitor who is accredited by the Law Society of New South Wales as a Specialist in Local Government and Planning Law.  While every effort is made to ensure that information published on this website is accurate at the time of publication, no representation or warranty is made regarding its completeness, accuracy, currency or suitability for any particular purpose. Legislative amendments, policy changes and subsequent court decisions may affect the accuracy or continuing relevance of published material. To the fullest extent permitted by law, Daintry Associates Pty Ltd and Brett Daintry disclaim all liability for any loss, damage, cost or expense arising directly or indirectly from any person’s use of, or reliance upon, the information or opinions published on this website.   I welcome any observations if anyone disagrees with my opinions please email me.