Restrictive%20covenant

The Role of the Town & Country Planning Authority/National Environment & Planning Agency in the modification/discharge of restrictive covenants Introduction If you are undertaking any kind of development in Jamaica and/or intend to change the use of land as set out in the Development Orders prepared pursuant to Part II of the Town & Country Planning Act or as designated by the restrictive covenants on your registered certificate of title it is very likely that you will be required to consult with: 

The National Environment & Planning Agency (NEPA);



The Natural Resources Conservation Authority (NRCA);

 

The Land Development Utilization Commission ( LDUC); and The Town & Country Planning Authority (TCPA).

This paper seeks to offer an assessment of the restrictive covenant modification and discharge process from the Town & Country Planning Authority’s perspective.

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Institutional Arrangements Before we delve into the focus area of this paper, it is important to contextualize the institutional arrangements among key statutory bodies. NEPA is an executive agency in the Ministry of Economic Growth & Job Creation established under the Executive Agencies Act. NEPA therefore provides technical and administrative support to three statutory bodies: The Natural Resources Conservation Authority (NRCA): The NRCA was established under the Natural Resources Conservation Authority Act (NRCAA). The main functions of the NRCA are set out in s.4 (1) of the Act: (a)

(b) (c) (d)

(e)

To take such steps as are necessary for the effective management of the physical environment of Jamaica so as to ensure the conservation, protection and proper use of its natural resources; To promote public awareness of the ecological systems of Jamaica and their importance to the social and economic life of the Island; To manage such national parks, marine parks, protected areas and public recreational facilities as may be prescribed; To advise the Minister on matters of general policy relating to the management, development, and conservation and care of the environment; and To perform such other functions pertaining to the natural resources of Jamaica as may be assigned to it by the Minister or by or under this Act or any other enactment.

The Act provides for a system of permits and licences alongside enforcement and monitoring. Combined they provide a management framework for the conservation and protection of Jamaica’s the natural resources.

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Land Development & Utilization Commission (LDUC) The Commission is established under the Land Development and Utilization Act (LDUA). Pursuant to section on 20 persons having an interest in agricultural land are not allowed to sell, lease, let, transfer, or assign any part without the written approval of the Commission.

The Town & Country Planning Authority (TCPA) This is a statutory body established under the Town & Country Planning Act (The TCP Act). The TCP Act makes provision for the orderly and progressive development of land, cities, towns and other areas whether urban or rural, to preserve

and

improve

the

amenities.

This

is

operationalized

through

Development Orders prepared pursuant to section 5 (1) of the TCP Act for each parish or local planning areas.

The Act defines “development� as: The carrying out of building, engineering, mining or other operation in, on, over or under land, or making of may material change in the use of any building or other land Sections 3(1)(2) of the the Restrictive Covenant (Discharge and Modification) Act (RCA), allows the TCPA to provide comments on applications before the Supreme Court of Jamaica for

discharge or modification of restrictive

covenants.

RESTRICTIVE COVENANTS Restrictive

covenants

result

from

the

contractual

agreement

between

landowners of adjoining properties. These covenants are preserved and therefore continue to exist unless modified or discharged by a Judge subject to the RCA.

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To secure a modification or discharge of a restrictive covenant an application has to be made before the Supreme Court of Jamaica by way of fixed date claim form, supported by affidavit. Prior to the date for the first hearing, copies of the Fixed Date Claim Form and affidavit must be served on the relevant authorities to include the TCPA. Section 3 (1) of the Restrictive Covenants (Discharge and Modification) Act sets out four grounds on which an application can be advanced: a. By reason of changes in the character of the property, neighbourhood or other circumstances which the Judge may deem material, the restriction ought to be deemed obsolete. b. The continued existence of the restriction or its continued existence without modification would impede the reasonable user of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of the covenant or its existence without modification. c. Persons of full age for the time being entitled to the benefit of it have agreed expressly or by implication by their acts or omissions to the discharge and/or modification of the covenant. d. The proposed discharge or modification will not injure the persons entitled to the benefit of the restrictions.

The recent Court of Appeal decision of Ministry of Housing v. Lancelot Neville Raynor et al1 examines section (3)(1) of the RCA in detail. The Appellant wanted to build six (6) townhouses in a residential area where erection of residential dwellings is limited to the construction of one private dwelling house.

The Respondents are the registered proprietors of the adjoining premises which benefits from the following restrictive covenants:

1

Supreme Court Civil Appeal No. 86/2013

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“ 1. There shall be no sub-division of the said land.

2. No building of any kind other than one private dwelling house with appropriate out-buildings (of the nature of servants’ quarters, garages of a garden tool room) appurtenant thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling house and out-buildings shall in the aggregate not be less than Three Thousand Five Hundred Pounds.

Without limiting the foregoing no duplex or other multiple building or flats or any kind designed to or capable to being let separately shall be erected on the said land.

3. No building shall be erected on the said land nearer than forty feet to any road boundary nor twenty feet to any other boundary of the said land. No buildings (whether attached to the main building or separate) shall be erected on the said land nearer to any road boundary than the dwelling house to be erected thereon.

9. No fence hedge or other construction of any kind, tree or plant of a height of more than four feet six inches above road level shall be permitted within fifteen feet of any road intersection and the Road Authority shall have the right to enter upon the said land and remove cut or trim any fence erection hedge tree or plant which may be placed or grown upon the said land in contravention of this restrictive covenant without liability for any loss of damage thence arising and the registered proprietor shall pay the road Authority the cost incurred.”

The Respondents objected to the development because they wanted to protect the character of the neighborhood. They also contended that the proposed development would injure the use and enjoyment of their property.

The Appellants sought to have the following modifications: “ 1. There shall be no sub-division of the said land save and except with the approval of the relevant authority.

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2. No building of any kind other than private dwelling houses townhouses and/or apartments with appropriate out-buildings (of the nature of servants quarters, garages or a garden tool room) appurtenant thereto and to be occupied therewith shall be erected on the said land SAVE AND EXCEPT for the erection of a guardhouse and garbage disposal receptacle which shall not be deemed a breach of the covenant and the value of such private dwelling houses, townhouses and/or apartments and outbuildings shall in the aggregate not be less than Three Thousand Five Hundred Pounds.

3. Any dwelling structure or structures to be erected on the said land shall be erected at a distance of not less than Twelve point One metres from the centre line of the roadway. Provided however the erection of a Guardhouse and Garbage disposal receptacle, steps, party walls and eaves shall not be deemed to be a breach of the covenant.

9. No fence hedge or other construction of any kind, tree or plant or a height of more than eight feet six inches above road level shall be permitted within fifteen feet of any road intersection and the road Authority shall have the right to enter upon the said land the right to enter upon the said land and remove cut or trim any fence erection hedge tree or plant which may be placed or grown upon the said land in contravention of this restrictive covenant without liability for any loss or damage thence arising and the registered proprietor shall pay to the Road authority the cost incurred.”

The appeal did not succeed because the Appellant did not provide evidence to satisfy the requirements of s. 3(1) of the RCA. At paragraph 44 of the decision, Brooks held that: “Although Ms. Davidson is of the view that the Act needs to be amended to reflect the realities resulting in changes in society since 1960, when the Act was passed, its provision must still be observed by applicants…”

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The Apellants deposed that the requisite approvals had already been obtained from the National Works Agency, the National Environment and Planning Agency and the National Water Commission for the development. This brings to the fore the distinction between the restrictive covenants and planning permission. Restrictive covenants provides a private law regime between neighbours, Planning Permission speaks to the approval with or without conditions for the carrying out of activities set out in s.5 (2) of the Town and Country Planning Act: ‌ building, engineering, mining or other operations in, on , over or under land, or the making of any material change in the use of any building or other land.

Although both regimes coincide, they have separate and distinct constituent parts. It is important to note that one does not influence or negate the effect of the other. In Graham v Easington District Council [2008] EWCA Civ 1503, the Court addressed the distinction between applications for modification of restrictive covenants and the granting of planning permission. The facts in Graham were that the Appellant had sought and received planning permission for a residential development for 30 houses. When the Appellant brought the application to modify the covenant, the Tribunal did not grant the modification.

The Court of Appeal in England reasoned that although planning permission had been given, this fact in itself does not carry the Appellant to success. The Court held that where planning permission is granted for a development which would be in breach of the planning covenant, it is “merely a circumstance which the [Tribunal] can and should take into account�, and hence the grant of planning permission does not necessarily render the compulsory modification of the planning covenant.

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The Role of the Town and Country Planning Authority (the ‘TCPA’) Section 3(1) of the RCA allows the TCPA to bring an application before the Court to wholly or partially discharge or modify a Restrictive Covenant.

Section 3(2) directs the Judge, before making an order, to make enquires of and to direct notices to the TCPA. The notice that is required to be given to the TCPA allows the Authority to indicate any objections on planning covenants in the benefit of public interest. The TCPA therefore provides written comments to the Court with regard to the technical planning aspects of the modification or discharge of the restrictive covenant being sought.

This role is consistent with position that has been taken by the Court, as outlined in Cefn Betingau Farm Rasbridge [2012] UKUT 246 LC, in which the Court of Appeal in England held that the TCPA and the Local Planning Authorities (‘LPA’) are the custodians of the benefit of planning covenants for the public interest.

It is convenient (and worthwhile) to advise here that ‘planning’ is a discrete discipline better known as Physical Planning. The Canadian Institute of Planners defines this area of study as “… the scientific, aesthetic and orderly disposition of land, resources, facilities and services with a view to securing the physical, economic and social efficiency, health and well-being of urban and rural communities.”2 The TCPA relies on its technical officers, qualified Planners, to provide guidance on the effect of proposed modifications and/or discharge.

The role of Planners is inclusive of, but not limited to:

2



Collecting and analysing data for use in the preparation of plans, policies and strategies;



Collecting data and preparing base maps to make decisions;



Analysis and interpretation of survey data which is employed in the execution of the TCPA’s mandate;

https://www.cip-icu.ca/Careers-in-Planning/About-Planning

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

Assist in designing data collection, procedures and survey questionnaire instruments;



information/data/feedback for inclusion in the development of policies, plans, strategies.

WHEN DOES THE NEED FOR MODIFICATION OR DISCHARGE ARISE AND WHY? Generally, the development of property triggers the need for modification and or discharge of a restrictive covenant. The application must be made whether or not planning permission granted by the TCPA.

BREACHES Three Frequent Applications Restrictive Covenant: 1.

2.

3.

for

Modification

and

Discharge

of

Distance ; Change of land use; Subdivision of land.

The TCPA generally offers no objection where the modification and/or discharge conform to either, but not exclusively, of the following: -

Confirmed Development Orders; Provisional and Draft Development Orders; The Development and Investment Manual; or TCPA’s Development Strategies for specific areas in the island.

All are deemed material consideration and provide a framework within which the TCPA reviews modification and/or discharge of restrictive covenants.

Distance Breaches The TCPA is not the authority for building approvals; this resides with the local planning authorities (Municipal Corporations). The Municipal Corporations often subsumes building approvals and the planning approvals in one approval document.

For distance breaches therefore, the TCPA would often comment that the applicant should submit the building approval in support of the application.

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The TCPA may also requests that the applicant submit the building approval for distance breaches, because if the TCPA were to apply the planning guidelines, the TCPA would have to object to most applications presented and, therefore, require the opinion of the LPA as to whether the modification of the distance breach would be considered acceptable in the circumstances. In fact, oftentimes the distance that is allowed by the covenant is less than what would be required under general planning guidelines.

It is noted that there are certain areas in Jamaica that have an overwhelming number of applications for modification of covenants for distance breaches being brought before the Court. These areas are: 1. Port more, St. Catherine; 2. Longville, Clarendon; and the 3. Older housing schemes in Kingston and St. Andrew.

Currently, the TCPA will offer no objections to a distance breach in instances where the breach is de minimis, for example:

-

Where the distance to a road boundary is less than 30% of the original distance;

-

Where the breach to any other types of boundary is less than or equal 50% of the original distance.

The TCPA will also support modification/discharge in the following cases:

-

1.5 metres per floor to rear and side boundaries;

-

6.1 metres to road boundaries and;

-

3.05 metres to any drainage feature.

The requests for modification and/or discharge are oftentimes for buildings that are built hard on boundaries. Buildings that are not constructed in conformity with the applicable building and planning standards may lead to several risks which include:

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inability of emergency vehicles to access site spread of fire, improper disposal of storm water runoff and surface drainage and decreased ventilation.

Use Breaches The review of applications to modify and or/discharge covenants for use breaches is

assessed by consulting the Development Order to determine

whether or not the area is zoned for a particular use. If the application accords with the Development Order, the TCPA will offer no objection to the application.

However, if the change of use is not in conformity with the Development Order, the TCPA requests that the Applicant submits a change of use application (Planning Permission) for consideration of the Authority.

If the area does not fall within a Confirmed, Draft or Provisional Development Order Area, then the Municipal Corporation has jurisdiction and the TCPA would instruct the applicant to submit the comments of the local planning authority.

In a majority of the cases, the TCPA will adopt the following approach:

-

No objection for any application requesting modification of a use covenant that is in keeping with a confirmed Development Order (due consideration will also be given to any provisional or emerging orders which represents the TCPA’s development strategy for the area);

-

For areas with no specific zoning in the Confirmed, Provisional or Draft Development Orders (white areas) the application will be brought to the attention of the TCPA for consideration;

-

If the land is not within the purview of a Development Order, the covenant should be brought the attention of the LPA for consideration.

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Subdivision Breaches Section 14 of the Local Improvement Act (LIA) stipulates that subdivision applications are to be submitted to the Chief Technical Officer (whose reference is deemed to include the Government Town Planner) for advice and assistance.

The Government Town Planner is an ex officio member of the Town and Country Planning Authority (TCP Act Section 3(2)). In order for the TCPA to provide comments to the Court on covenants relating to subdivision, applications must be submitted to the GTP for a thorough review of the application for modification to be assessed. Therefore, where there has been no previous subdivision approval granted, the TCPA

would indicate to the Court

that the applicant requires subdivision approvals.

If the development is more than 9 lots an Environmental Permit is required and this information would also be shared it with the Court. Pursuant to section 11 (1A) where an environmental permit is required , planning permission will not be granted until the environmental permit is secured of the TCP Act of the NRCA.

CONCLUSION

The operationalization of the planning and restrictive regimes will continue to lead to increased conflicts between the private covenants prohibiting certain types of use or development and planning permissions which have determined such use or development acceptable in planning terms.

In Ministry of Housing v. Lancelot Neville Raynor et al, the Appellants called for the “modern realities� to be reflected in the RCA. Such modern realities could include the en bloc modification of restrictive covenants based on the Development Orders and through an application by the Town and Country Planning Authority.

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However, until the legislation is amended the process which presently obtains, inclusive of the symbiotic relationship between the Court and the TCPA via the Agency as well as the Local Planning Authorities will continue to guide, in part, Jamaica’s ongoing development.

Information, standards and guidelines as enumerated in the Development and Investment Manual do however in part acknowledge, at least the reason the, the Ministry of Housing was moved to recommend the amendment of the Act, as well as seek to provide mitigation, as far as possible, to the challenges which inform the process.

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