Cole v Lacey

In *Cole v Lacey*, Taylor J of the Supreme Court of Tasmania considered a dispute concerning the interpretation of a restrictive covenant affecting land. The plaintiff, Mr. Cole, sought to build a dwelling on his property, which was subject to a covenant registered on the title. The defendant, Ms. Lacey, who owned adjoining land also burdened by the covenant, objected to the proposed development. The covenant stipulated that no more than one dwelling house could be erected on the land.

The central legal issue before the court was whether the plaintiff's proposed development, which involved constructing a dwelling that would be subdivided into two separate units, each with its own entrance, kitchen, and bathroom facilities, constituted a breach of the restrictive covenant. Specifically, the court had to determine if the proposed dwelling, despite being a single structural building, could be considered "more than one dwelling house" in contravention of the covenant's terms.

Taylor J reasoned that the ordinary meaning of "dwelling house" referred to a building designed for habitation by a single family or household. His Honour considered the physical characteristics of the proposed building and its intended use. The court found that the proposed construction, while physically a single structure, was intended to be occupied by two separate households, each with independent living facilities. This, the court held, amounted to the erection of more than one dwelling house, thereby breaching the restrictive covenant. The court applied the principle that restrictive covenants are to be construed according to their plain and ordinary meaning, and that their purpose is to protect the amenity of neighbouring properties.

Consequently, Taylor J granted an injunction restraining the plaintiff from proceeding with the construction of the dwelling as proposed, finding that it would constitute a breach of the registered restrictive covenant.