Delany v Burgess

The High Court of Australia considered the dispute between Delany (the appellant) and Burgess (the respondent) concerning the interpretation and application of a restrictive covenant affecting land. The covenant, registered on the title of the appellant's property, prohibited the erection of any building other than a single private dwelling house. The appellant sought a declaration that a proposed subdivision of their land into two lots, each intended to accommodate a single dwelling, did not breach the covenant.

The central legal issue before the High Court was whether the registration of a plan of subdivision, which divided the appellant's land into two separate lots, constituted the erection of more than one dwelling house on the land, thereby breaching the restrictive covenant. The court was required to determine the proper construction of the covenant in light of the subdivision and the intended use of the divided parcels.

Gummow and Heydon JJ reasoned that the covenant operated by reference to the land as a whole, not to individual lots created by a subsequent subdivision. They held that the covenant prohibited the erection of more than one dwelling house on the *land* as it existed at the time the covenant was imposed. The act of subdividing the land did not, in itself, constitute the erection of a building. Therefore, the proposed subdivision, which would allow for the erection of a single dwelling on each of the two new lots, did not breach the covenant, as the covenant did not prevent the division of the land and the subsequent erection of a single dwelling on each resultant parcel, provided no more than one dwelling was erected on the original parcel of land.

The High Court allowed the appeal and made declarations that the proposed subdivision and the erection of a single dwelling on each of the two resultant lots would not breach the restrictive covenant.