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National Environment and Planning Agency

The Town & Country Planning Authority (TCPA) and RESTRICTIVE COVENANTS

Presented By Morjorn Wallock /Leonard Francis /Deborah Lee Shung November 2017 Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

What is the Role of the TCPA in the Modification/Discharge of Restrictive Covenants?

• The legal role of the TCPA is to provide comments to the Supreme Court as per Sections 3(1) and (2) of the Restrictive Covenant (Discharge and Modification) Act (RCA) Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Restrictive Covenants Act Section 3(1) of the RCA allows for 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 Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Effect of the Notice • The notice that is required to be given to the TCPA allows the Authority to voice its objection on planning covenants in the benefit of public interest.

• Although the Court does not make specific ‘enquiries’, written comments from the TCPA are provided to the Court with regard to the technical planning aspects of the modification of the restrictive covenant.

National Environment and Planning Agency

The Effect of Planning Permission on the Modification/Discharge of Restrictive Covenants • Graham v Easington District Council [2008] EWCA Civ 1503 has made a distinction between applications for modification of restrictive covenants and the granting of planning permission Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Graham v Easington District Council 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.

Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Types of Modifications to Restrictive Covenants • There are three main classes of breaches that are brought to the TCPA for comments: distance use subdivision

Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Distance Modification • Existing distance breaches are the most common form of breach for which the Court seeks comments from the TCPA – 70% • An overwhelming percentage are without approvals at the time of application for modification and/or discharge Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Distance Modification continued Major ‘hot-spots’: • Portmore, St. Catherine; • Longville, Clarendon; and the • Older housing schemes in Kingston and St. Andrew.

Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Distance Modification continued (Page 8 – 9)

• If the TCPA were to use the general planning guidelines, the TCPA would object to the majority of the distance breach application Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Distance Modification continued The following standard setback requirements will be considered when assessing applications for the modification of covenants with respect to distance breaches: i. 1.5 metres per floor to rear and side boundaries ii.6.1 metres to road boundaries and iii.3.05 metres to any drainage feature.

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National Environment and Planning Agency

Distance Modification continued • Notwithstanding, a(i) above, breaches of less than 50% of the covenanted distance to rear or side boundaries will be considered de minimis. • Notwithstanding, a(ii) above, breaches of less than 30% of the covenanted distance to the road boundary(ies) will be considered de minimis. • If the distance breach is not within the technical guidelines, the TCPA will refer the application to the LPA. Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Use Modification • This is the second most common request – accounts for about 20% • TCPA consults the Development Order for a determination if the area is zoned for a particular use.

• no breach = no objection • Breach = Applicant submit the change of use approvals Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Subdivision Modification • Accounts for about 10% • Good News – Often there is an approval before the application, however, there has been some incidents regarding ‘add-ons’ which violates Section 5(4) of the Local Improvement Act

Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

Subdivision Modification continued • One Major concern for the subdivision modification is the specificity of the subdivision to be reflected in the proposed wording • Solution – Propose wording or inform Applicant of guideline for wording

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National Environment and Planning Agency

Authority Decision regarding Use and Subdivision Modification without Prior Approval • Applicant to submit Enquiry to the Agency which uses the Existing and Emerging Development Order as a guide to determine whether or not the Authority will object.

Managing and protecting Jamaica's land, wood and water

National Environment and Planning Agency

The End

National Environment and Planning Agency