Town Planning (N.S.W.)—Building regulation—Approval to erection of building—Approval void if work not substantially commenced within twelve months of date of approval—Substantial commencement—Whether construction of slab a substantial part of work—Standing of adjoining owner to seek declaration that approval void and injunction—Laches—Local Government Act 1919 (N.S.W.),s. 315.
Decision
May 26. THE COURT delivered the following written judgment: - This is an appeal by special leave from the decision of the Court of Appeal of the Supreme Court of New South Wales (Hope and Mahoney JJ.A., Samuels J.A. dissenting) upholding the decision given against the appellant by Kearney J. at first instance. The central question in the case is whether an approval in respect of a building work has become void for want of "substantial commencement" within the meaning of that term in s. 315 of the Local Government Act 1919 (N.S.W.), as amended ("the Act"). (at p292)
2. Since January 1980, the first respondent ("Pinglen") has been the owner of land at 1A Lavender Crescent, Lavender Bay. In April 1980 the third respondent, a builder, took possession of the site under a contract to erect six town houses. Approval for this building work had been given, in accordance with the provisions of Div. 4 of Pt XI of the Act, on 25 March 1976 by the second respondent the North Sydney Municipal Council ("the council"). Neither the second nor third respondents have taken an active part in the appeal. (at p292)
3. The appellant is the owner of a home unit in a block of flats adjoining the site in question. She claims that the proposed development, if it proceeds, will adversely affect the view of the harbour which hitherto she has enjoyed from her unit. In May 1980 she issued a summons seeking the following relief:
"1. A declaration that the development consent and building approval granted by the Secondnamed Defendant to Macfield (N.S.W.) Pty. Limited and dated 25 March 1976 in respect of development of No. 1A Lavender Crescent, Lavender Bay has lapsed and is void. 2. An order that the first and thirdnamed defendants be restrained from constructing a residential flat building on the land . . . without a valid consent from the secondnamed Defendant. 3. . . . 4. Such other order as the Court may think just and equitable."
Macfield (N.S.W.) Pty. Ltd. ("Macfield") was the owner of the land in question at all material times in 1976 and 1977. Later on it sold the land to another company Wodine Pty. Ltd. which in turn sold it to Pinglen. An interim development order made subsequently to the grant of building approval would now preclude consent being given to the proposed development, a consideration which emphasizes the importance of the present issue to the principal parties. Should that issue be resolved in favour of the appellant, then it will…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Day v Pinglen Pty Ltd [1981] HCA 23
Case
[1981] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Day v Pinglen Pty Ltd*. The dispute concerned the interpretation of a restrictive covenant contained within a deed of conveyance, which purported to restrict the use of certain land to residential purposes only. The appellant, Mr Day, sought to develop the land for commercial purposes, while the respondent, Pinglen Pty Ltd, sought to enforce the restrictive covenant.
The central legal issue before the High Court was whether the restrictive covenant was valid and enforceable. Specifically, the court had to determine if the covenant, as drafted, sufficiently identified the dominant tenement (the land intended to benefit from the restriction) and whether it was sufficiently clear in its terms to be legally effective. The court also considered whether the covenant ran with the land or was merely a personal covenant between the original parties.
The High Court, by majority, held that the restrictive covenant was void for uncertainty. The court reasoned that the deed did not clearly define the dominant tenement, meaning it was impossible to ascertain which land was intended to benefit from the restriction. Without a clearly identified dominant tenement, the covenant could not be considered a proprietary interest that would bind subsequent purchasers of the servient tenement. The court applied the principle that restrictive covenants must be precise in their wording and clearly delineate the benefited and burdened land to be enforceable.
Consequently, the High Court allowed the appeal and set aside the orders of the lower court. The restrictive covenant was declared invalid and unenforceable, permitting the appellant to proceed with his intended commercial development of the land.