Levi v Spicer

[2001] NSWSC 924

Reported Decision: (2002) NSW ConvR 56-009

New South Wales

Supreme Court

CITATION:	Levi v Spicer [2001] NSWSC 924 revised - 26/10/2001
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2417 of 2000
HEARING DATE(S):	13/6/01, 26/7/01, 11/9/01
JUDGMENT DATE:	24 October 2001
PARTIES :	Michael John Levi and Veronica Anne Levi v Dorothy Spicer
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr M.A. Bradford for plaintiffs Mr M. Gorrick for defendant
SOLICITORS:	Marina Voncina Solicitor for plaintiffs Marsdens Solicitors for defendant
CATCHWORDS:	Real Property. Restrictive covenants. - Application for modification under s 89(1)(c) of the Conveyancing Act to permit a colourbond, rather than a brick and tile garage, to be constructed. - Modification refused.
LEGISLATION CITED:
CASES CITED:	Webster v Bradac (1993) 5 BPR 12,032 Re Parimax (SA) Pty Ltd 56 SR 130 Re Chamberlain and the Conveyancing Act (1969) 90 WN 585 Mogensen & Anor v Portuland Developments Pty Ltd (1983) NSW Con 55-116 Pieper v Edwards (1982) 1 NSWLR 336 at 340
DECISION:	Paragraph 33

- 1 -

1 MASTER: This is an application pursuant to section 89(1)(c) of the Conveyancing Act for the modification of a covenant which affects the plaintiff’s’ land. That land is at Silverdale in the lower Blue Mountains. The terms of the covenant in question so far as they are relevant to the matters before the Court are as follows:-

“1. That no more than one main building shall be erected or permitted to remain on any lot burdened.

2. That no main building shall be erected or used on any lot burdened hereby otherwise than as a single private dwelling house provided that this restriction shall not prevent the use of part of any such building by a Medical Practitioner or Dentist or Solicitor in the practice of his profession, and provided such professional use is approved by Wollondilly Shire Council.

3. No building shall be erected on the land hereby burdened with a roof other than tiles or with external walls or with walls of materials other than brick, stone, concrete glass, aluminium or timber or any combination of the same, provided that timber shall not be used in external walls except as infill panels in conjunction with any one or more of the other materials referred to and aluminium shall not be used except as frames for windows or doors and the proportion of materials other than brick was used and referred to the total external wall area shall not exceed 35% thereof PROVIDED THAT nothing in this covenant contained shall preclude or prohibit a building having the inner framework of its external walls constructed of timber or other materials with an external brick face or veneer.

4. No garage or outbuilding shall be erected or permitted to remain on the land burdened except until after or concurrently with the erection of any such main building.

5. No building shall be erected on the land burdened having a roof of corrugated iron, corrugated tin or fibro cement with the exception of a free standing garden shed or lawn locker. PROVIDED HOWEVER such free standing garden shed or lawn locker shall be constructed of materials other than fibro and located at the rear of the main building.

6. No main building erected or permitted to remain on the land burdened shall have a minimum living area including any attached garage or carport under the main roof of less than one hundred and twenty (120) square metres.

13. No building shall be erected closer to the street alignment of Ridgehaven Road than (18) eighteen metres.

14. No pig shall be brought onto, kept or allowed to remain on any lot and no piggery, commercial poultry sheds, commercial dog kennels, knackery or abattoirs shall be erected or conducted on any lot.

15. No advertisements, signs or hoardings of any description shall be erected on the land hereby transferred.

16. No noisy, noxious or harmful use shall be carried on or permitted to be carried on on any lot and without limiting the generality, no lot shall be used by motor bikes, mini bikes or persons using fire-arms explosives or bows and arrows.”

2   As I have mentioned the land is in the Silverdale area and has been described in the evidence as a semi-rural area. The particular sub-division with which I am concerned is part of an area which was owned by the defendant and her late husband. It was originally a rural area and over the years they sub-divided various parts of the areas which they had which were east of Scotcheys Creek. The course of sub-divisions extended Ridgehaven Road, Silverdale and involved the construction of new roads being Greenhaven Place, Ritchie Road, Langmead Road, and Spicer Road. The general layout of the roads appears in street directories and Exhibit A before me. As the land was in separate sub-divisions covenants in varying forms were extracted from the purchasers. They were not all in the same form as the covenant I have mentioned above but all dealt with the nature of materials to be used in the buildings on the lots.

3   It is this aspect of the covenant that causes the present application. The plaintiffs live at and own 51 Ridgehaven Road upon which they have erected a dwelling house which complies with the terms of the covenant. The dwelling house also has incorporated into it a garage on the left hand side of the house when one faces the house from the street. Under the covenant the plaintiffs are allowed to have a separate free-standing garage and they desire to erect such a garage to the rear of the house on the right hand side of their block of land when one faces the house from the street. At present there is access down the right hand side across their lawn and landscaped area through a swinging gate. Access would be available on the left hand side of their house but only with some difficulty.

4   The clear purpose of the garage is not to use it to house cars but to accommodate a hobby of Mr Levi’s. He is interested in model railways and he needs a large double garage in which to house his own personal collection of trains. Under the covenant the garage is required to be of brick construction with a roof of tiles. Mr Levi desires to build it in a colourbond material which is prohibited by the covenant. The object of this is to save on the expense of constructing the garage of bricks and tiles. It can be seen from clause 5 that corrugated iron is prohibited except for what is described as “free standing garden shed or lawn locker”. The building which Mr Levi wishes to erect does not fit within this description.

5   The subdivision with which I am concerned is that contained in Deposited Plan 733700 which contains fifteen lots. Each lot is burdened with the covenant to which I have referred and the benefit is for every other lot in the subdivision. The persons with power to release, vary or modify the restrictions are John Henry Spicer and Dorothy Margaret Spicer, or the survivor of them or the executor of the survivor of them. It is for this reason that Mrs Spicer is joined as a defendant in the proceedings as she refused to consent to the modification of the covenant to permit the plaintiffs’ proposal.

6   Lots 1 to 15 in the plan which have the benefit of the covenant and are burdened by it are on the left hand side of Ridgehaven Road when travelling east and north on that road. The subdivision starts slightly before the bend in the road where Ridgehaven Road changes from proceedings in an easterly direction to a northern direction. Lots 1 to 14 in the deposited plan are also shown on Exhibit B which identifies the street numbers. It also identifies a number of contraventions and also the location of those persons who support or object to the proposal. On Exhibit B one should note that the supporters marked as S4 and S13 are in fact transposed and the correct numbers for each of those should be S13 and S4. On the right of Ridgehaven Road and generally in the area opposite the plaintiffs’ house there are a number of other houses erected on a subdivision done by the Spicers. The covenant is not in identical terms but does prohibit colourbond structures.

7 The application has been made under section 89(1)(c) which requires the court to be satisfied that the modification will not substantially injure the persons entitled to the benefit of the convenant.

8   In Webster v Bradac (1993) 5 BPR 12,032 at 12,035 His Honour McLelland CJ has said the following when discussing the injury referred to:-

“The kind of injury contemplated in para (c) is injury to the relevant person in relation to his ownership of (or interest in) the land benefited. The injury may be of an economic kind, for example, reduction in the value of the land benefited, or of a physical kind, for example, subjection to noise or traffic, or of an intangible kind, for example, impairment of views, intrusion upon privacy, unsightliness, or alteration to the character or ambience of the neighbourhood. These arbitrary categories, whilst serving to illustrate the ambit of the concept of injury for the purposes of the paragraph, are neither mutually exclusive nor necessarily exhaustive, and what I have described as injuries of a physical or intangible kind could well also affect the value of the land in question. However, it is clear that a person may be “substantially injured” within the meaning of para (c) notwithstanding that the value of his land would be unaffected or even increased by the proposed modification. It is also clear, particularly in the case of injuries of what I have called an intangible kind, that the subjective tastes, preference or beliefs of particular individuals may, within limits of reasonableness, give rise to injury in the relevant sense to those individuals. If, however, particular persons do not after due notice assert any claim to injury to them on purely subjective grounds of this kind, then it may be open to the court to infer that there is no injury of that kind to those persons, although the absence of objection does not remove from applicants for relief under s 89(1) the onus of establishing their case.”

9   This case has been substantially presented on the basis that the injury is one of an intangible kind, namely, the look and aesthetics of the proposal of the plaintiffs. The defendant also suggests in submissions that the actual activities which will be carried on may be productive of noise and thus there may be some invasion of their privacy.

10   One matter that occupied some time during the hearing of this case was the existence of other breaches of the covenant in the subdivision with which I am concerned and as well as other subdivisions nearby which were created by the Spicers or other developers who purchased from them. In the subdivision with which I am concerned there are breaches in numbers 37, 39 and 49 Ridgehaven Road. Outside the subdivision the only important breaches which impact on the visual appreciation of the area of the subdivision are those in lots 92 and 94 Ridgehaven Road almost opposite the Levi’s property 51 Ridgehaven Road. A question will arise as to whether those breaches should be taken into account in my consideration of the matter.

11   The parties in this matter agreed that the evidence of objectors should be given by way of statements. The objectors have not been called to give evidence.

12   The Courts have on numerous occasions regarded as particularly important the views of those for whom the covenant has a benefit. In Re Callanan and the Conveyancing Act Mr Justice Helsham in dealing with a residential subdivision had this to say:-

"If what I have said were not sufficient I add to it the fact that 19 out of the 27 most closely affected owners having the benefit of the restrictions regard them as affording a current advantage and wish to preserve them - a fact which might not carry the same weight where there had been a more widespread change in the user of the land benefited or a change in the character of the neighbourhood. But that is not the case here; and I regard the residence of so many of those who are entitled to what they claim to be advantages stemming from the maintenance of the restrictions as an important consideration in determination of the matter of whether the restrictions should be deemed obsolete. I find that they should not be so deemed."

13   In Re Parimax (SA) Pty Ltd 56 SR 130 His Honour Mr Justice Myers emphasised the actual benefit perceived by objectors as follows:-

"An impression seems to have got abroad that when an application is made to modify a restriction one considers the benefit of the person entitled to it wholly from a material point of view; that all one has to do is to say: 'Will he be any worse off financially; will his land be less readily saleable, or will it be depreciated in value?' Well, for my part I consider that the benefit which a person gets from a restriction cannot necessarily be measured only by material consideration. There are many of us who derive enjoyment from our surroundings, even though they do not add anything to the value of our homes. Indeed, there are many people who object, because it would be unpleasant to them, to alterations in their neighbourhood, even though it might actually increase the value of their properties.
A person who as the benefit of a covenant not to erect flats is, in my view, entitled to say: 'I do not like flats near me, and that will diminish my enjoyment of my own home', and he if he believed and is sincere, and that is reasonable, I consider that that in itself is a sufficient reason for refusing to allow a modification of the restriction, even though the erection of the flats would not result in any material loss whatever, and in this case I would, if necessary, have proceeded on the same footing. I consider that the respondent is entitled to say: 'I have bought a property entitled to the benefit of the restriction. That restriction will ensure that this space will always remain vacant' - that is to say, vacant above the street level - and whether it causes any material loss to the respondent or not, if the respondent says: 'That in itself confers on me something which enables me to enjoy my home some more', however little more it may be, that would be sufficient to enable me to say that the restriction should not be modified."

14   Similar views have been expressed by Mr Justice Helsham in Re Chamberlain and the Conveyancing Act (1969) 90 WN 585 at p 593. He referred to one of the owner's evidence in the following terms:-

"The owner of the latter is a Mrs Charny, who has lived in one of the flats in the building of which she is now the owner, for fifteen years, and who became the registered proprietor just before the application in this case was launched. She has given evidence of the practical benefits which she claims, as a person entitled to the benefit of the restrictions imposed by the covenant, are secured to her whilst those restrictions continue in existence, including privacy, absence of noise, absence of high buildings, and the absence of traffic. She says that she bought with knowledge of the covenant and desirous of retaining the advantages which she believes flow from it. I do not think that I should be too critical of her claims if they are genuine, as I believe they are, and provided they are not unreasonable. The proposed high-rise development as contrasted with development permitted by the covenant (to which I shall refer shortly) could result in deprivation to a greater or less extent of some or all of the advantages which she claims are practical benefits secured to her by the restrictions; probably the degree of deprivation, if any, would not be known until the building is erected. Providing the advantages which she claims to exist could be said to be practical benefits, and I think they could, I do not believe that I would be justified in preferring any conclusions of my own formed from a view of the area and the plans and the evidence for the somewhat subjective views which a person entitled to the benefit of the restrictions genuinely holds as to those advantages, providing those views are not unreasonable. The fact that I may have formed contrary views as to the degree to which the proposed development might interfere with privacy, noise, traffic and so on, which must involve subjective evaluations, does not entitle me to substitute my views for those of a person who has for fifteen years enjoyed those aspects and who is entitled to retain them so far as the restrictions permit. In this respect I believe that my views are not dissonant with some expressed by Myers J in Re Parimax (SA) Pty Ltd. (2)."

15   In the present case, of course, there was no cross examination of the objectors to test their views except for an objector, Mr Glynn, who also gave some real estate evidence to which I will return later.

16   In Mogensen & Anor v Portuland Developments Pty Ltd (1983) NSW Con 55-116 His Honour Mr Justice McLelland considered the admissibility of such statements. At page 56,857 he said the following:-

“The owners of lot 255 have not given evidence but there is in evidence a written statement of objection signed by them. There is also evidence of some oral statements alleged to have been made by one of them. I admitted this evidence on the basis that what an owner had said was capable of constituting evidence of his state of mind (see Wigmore on Evidence 3rd ed vol 6 para 1714, 1715, 1725; Nash v Commr for Railways (1963) SR (NSW) 357 at p 360; Lloyd v Powell Duffryn Steam Coal Co (1914) AC 733 at pp 751-752; Hughes v National Trustees Executors & Agency Co (1978-1979) 143 CLR 134 at p 152) which in relation to questions of injury depending upon subjective considerations might be relevant. I do not however regard this evidence as having any substantial weight. There is no evidence of the views of the owners of lot 258.”

17   Before turning to the views of those persons who either objected to or supported the proposal it is necessary to note the nature of the development as it appears from the substantial photographic evidence in this case supplemented by the view which I had with the parties and their advisers.

18   It is immediately apparent that the streetscape of the subdivision is one which has a neat and tidy appearance with all the homes complying with the appropriate setback and being built of the appropriate materials. Each lot is about one acre in size and so there is substantial room behind each of the houses in the subdivision. What is immediately apparent when one looks at the area behind the houses is that there is clearly noticeable the various colourbond structures which fall within the description of a garden shed. Accordingly views of the rear of the lots are of a different quality from the views which appear on the streetscape either in the front of the houses or travelling down Ridgehaven Road. The covenant itself acknowledges this difference by providing that such garden sheds must be located at the rear of the main building. An important consideration in the case is that the plaintiffs proposed garage will be clearly visible from the street although it is situated to the rear of their house. This is because of the gap between the houses on 51 and 53 Ridgehaven Road and the fact that the screening trees which are presently there are deciduous.

19   I now turn to the relevant persons who objected to the proposal and who have the benefit of the covenant. Mr Steven Blain, one of the owners of 53 Ridgehaven Road which adjoins the plaintiffs’ house to the north would be intimately affected because, apart from some screening trees, he would be able to see from his back yard the proposed garage. In his objection after reference to Mr Levi’s affidavit and the particular colourbond structures which he had identified as breaches outside the immediate area he referred to the fact that what was important to him was the appearance of his immediate neighbours’ residences. He bought in the particular estate in order to get away from the structures such as the ones to which he referred. Paragraph 7 of his statement in these terms.

“I think the covenants are a good idea because I think that buildings in brick and tile look better and last longer than buildings not made with these materials. I also think that having the covenants on the land and ensuring that people build out of higher standard of materials gives the residents a sense of pride and enjoyment in their land.”

20   Mr Blain opposed the removing of the covenants. I would have thought that his opposition was because of the look of the building. There is nothing to suggest that he might have considered any noise which might emanate from the building.

21   The plaintiffs’ other neighbour, Mr Chapman, made a statement. He was not the owner of 49 Ridgehaven Road but the property was owned by his wife. Paragraphs 4, 5 and 6 of his statement were in these terms:-

“One of the main factors which influenced me when the land was purchased was the fact that I knew that I would be living in an area where there was no large colourbond structures. As a builder by trade I have dealt with all kinds of building materials and I have a strong dislike of the appearance of metal structures. I am also aware that structures of brick and tile tend to block more sound than those made of colourbond.
I take a lot of pride in the appearance of my home and the area generally. I have won the Wollondilly Garden Competition on two occasions previously and I have recently been approached by representatives of the television show ‘Bourkes Backyard’ which is a show about gardens, for my garden to be featured on an episode of that show. I believe that should the covenant be allowed to be broken by my next door neighbour the appearance of the area, and thus my own hose, would suffer greatly.
It is for these reasons that I object very strongly to the covenant being altered.”

22   There were tendered some photographs of the property 49 Ridgehaven Road. These showed that there were breaches of the covenant by the Chapmans. First they had erected a structure at the back of their house which appears to be a pergola which has a large colourbond roof and it certainly would not fit the description of a garden shed. In addition, in the front yard there appears to be a structure which has a small roof over part of the garden which also is of colourbond. However, it is not noticeable because of extensive vegetation in their front yard which makes it difficult for it to be seen. Both of these structures are clear breaches of the covenant using metal material which accordingly makes Mr Chapman’s protestations somewhat hollow. Accordingly, I will attach little weight to his objection.

23   The defendant’s daughter in law lives at 33 Ridgehaven Road, and she gave evidence, supported by photographs, which demonstrated that the proposed garage would be clearly visible from the roadway. There are also statements from people who objected at 68, 80, 65, 124 and 138 Ridgehaven Road. All of these homes were outside the relevant subdivision but the last three were in areas where persons would have to drive through Ridgehaven Road to get to their home. The others, numbers 68 and 80 live on the other side to the subdivision. Assuming for the moment that these people have standing to object, these objectors spoke variously of consistency and the attractiveness of the development having regard to the covenant.

24   One of them was Mr Glynn who lives in 68 Ridgehaven Road. He had originally himself tried to have a colourbond structure but was refused consent by the Spicers. He has worked as a real estate agent in the area and has sold properties in the particular subdivision. He gave evidence that the covenant made the properties easier to sell and that it enhanced the attractiveness of the estate. He was concerned that the use of colourbond which does not insulate against noise could have an adverse noise impact if there was any noisy activity carried on in the garage. His evidence is in a particular special situation in that although he does not have the benefit of the covenant he does have his real estate experience to back up his views.

25   There was support for the plaintiffs from the owners of 43 Ridgehaven Road. However, they gave no reasons for their support. Other areas of support came from residents of 102 and 28 Ridgehaven Road, 4 and 13 Langmead Road and also 9 Ritchie Road. This last property was one which backs on to the plaintiffs’ property and has the benefit of the covenant. They relied upon the fact that colourbond products have improved and they did not think there would be any significant impact. Importantly, in respect of 9 Ritchie Road, it should be noted that the view with which these people are concerned is the back yard view where there are clearly a number of colourbond structures posing as garden sheds. There was also support from 7 Ritchie Road and that support was in somewhat guarded terms. It suffers from the same problem as that of 9 Ritchie Road. The properties at 4 and 13 Langmead Road can see the subject area. The supporters from 13 Langmead Road noted there were many colourbond structures in Ridgehaven Road which could easily be seen from the road. They clearly concentrated on the appearance of the streetscape. The supporters in 102 and 120 Ridgehaven Road did not give reasons for their support. It is apparent that only one of these supporters has given relevant evidence of the fact that colourbond structures can be seen from the streetscape at Ridgehaven Road.

26   I turn to the question of the breaches of the covenant. The plaintiff suggested that all breaches which occurred within the general area may be relevant. In Pieper v Edwards (1982) 1 NSWLR 336 at 340 His Honour Hutley JA discussed the factors concerned when exercising the discretion. At page 340 he said the following:

“What are the factors which should be considered in exercising the discretion? It would appear that Mason J considered that the fact that the owner of the dominant tenement took on the faith of the register is such a factor, though this cannot be conclusive, for, as Walsh J, pointed out (at p 286):

“The provision clearly contemplates that orders will be made which affect rights which were vested in the registered proprietor, according to the state of the register, at and after the time when he acquired his title to the dominant tenement.”

In Ridley v Taylor [1965] 1 WLR 611, at p 623; [1965] 2 All ER 51, at p 59,Court of Appeal, Russell LJ said:

“I do not think that the personality of the applicant or his past behaviour is relevant to the exercise of the discretion. I refer again to the fact that tomorrow an assign may make the same application. I think that the decision (including the exercise of discretion) must be related to the property and its history as such.”

Where the owner of land which is under the Real Property Act, 1900, could have, but has not, taken steps to have a covenant burdening his land extinguished, this fact, in my opinion, is part of the history of the land. Nor do I see any basis for not having regard to the conduct of the owners of both dominant and servient tenements in deciding to exercise the discretion. No argument was addressed to the court as to how the discretion was to be exercised, that is, whether having established jurisdiction, it was the responsibility of the owner of the servient tenement to show that discretion should be exercised in his favour or whether the owner of the dominant tenement should show that the jurisdiction should not be exercised. The burden may not always be on one side or the other. Where the acts of abandonment relied on are those of the dominant owner, the burden of showing that the order should not be made could be reasonably laid on him. Where, as here, the acts relied on are of a predecessor in title of the applicant, of which the respondent had no notice, the burden could well be thrown on the applicant.”

27   Relying on this authority it was put that I should take all these breaches into account because of the fact that the defendant has not in any way sought to restrain these breaches. Unless she retained ownership of any of the lots in DP733700 (which is not apparent on the evidence) she would not have the benefit of the covenant and I would have thought that she may have some difficulty in taking proceedings to enforce the covenant. She would only have a power to release, vary or modify the covenant.

28   As I have mentioned there were efforts to bring in breaches in other parts of the Ridgehaven Road which were outside the subdivision area and even outside the area of the general Silverdale Estate as developed by the defendant. All of these, to my mind, are irrelevant except the numbers 92 and 94 Ridgehaven Road. The reason that they are irrelevant is that the area of this subdivision, particularly that part of Ridgehaven Road, near where the plaintiffs’ live can be regarded as a separate discreet area for the purpose of considering the general amenity and ambience of the area. It is, I think, necessary to take into account the existence of colourbond structures which are clearly evident on 92 and 94 Ridgehaven Road because they must affect the ambience of the area. On 37 and 39 Ridgehaven Road, which are before the corner of Ridgehaven Road, there are clear breaches. At 37 there are two garden sheds and there is also some awning structure over a boat that is stored at the side of the house. At 39 Ridgehaven Road there appear to be two garden sheds. They are clearly visible from the road. The other breach of substance is that which occurs on 49 Ridgehaven Road. The one at the rear is noticeable and not unattractive but in any event concerns the view of the back of the blocks. It is not visible from the street. The breach that occurs in the front yard is hardly noticeable as it is substantially obscured by greenery.

29   There was some expert evidence given first by Mr Glynn to whom I have referred and also by Mr Heal a registered valuer. Mr Heal gave evidence that the proposal would have no effect on the value of adjoining buildings and that if the covenant was strictly applied it may have a detrimental affect on the saleability of the properties within the estate. Cross-examination demonstrated that his first view was based substantially on the fact that the structure was shielded from the street by appropriate planting. It is apparent from the evidence that this is not the case in wintertime and may not be in the future if a purchaser wished to have a useable vehicle access to the structure. Mr Heal’s second proposition was, in the way he amplified it, dependant upon his first proposition. In these circumstances, I do not accept his second proposition.

30   It would seem, therefore, there is no evidence which would suggest that there would be any economic impact on the surrounding properties if the covenant is not modified. There were submissions that the activities proposed by the plaintiffs would be noisy. It was suggested that there would be the use of power tools and that meetings of railway club members may be held there. There was evidence that colourbond sheds do not insulate against noise in contrast to brick structures. I think the chance of such noise is minimal and in any event as clause 16 of the covenant prohibits the making of undue noise the neighbours are sufficiently protected.

31   The views of the objectors untested by cross-examination are admissible but most of them have little substance. The only one of note is that of Mr Blain who adjoins the plaintiffs’ property on the northern side. It seems to me there is a substantial difference between the appearance of the property from the rear and from the street. There will be some degradation of the view at the back as far as the Blain’s are concerned because there will be an addition to the amount of the colourbond in the back yard area. It would only be screened part of the time as the screening appears to be from deciduous trees. However, if this were the only matter I think it would not be sufficient to refuse the application. A more important part of the covenant is the protection of the streetscape view of the subdivision at the front of the properties. The proposed construction would in my view be clearly visible for a substantial part of the year and would interfere with the present look. I am mindful that at 92 and 94 there are large colourbond structures at the rear of those properties which are also visible but there is no reason why what is left of the general attractive outlook should be destroyed. Accordingly, I think the application should be refused as the proposed modification will substantially injure the persons entitled to the benefit of the covenant.

32   There were also raised some discretionary grounds for refusing the application by the defendant. The first was the fact that the application for approval by the council was for a garage and that the council was not told the true purpose. I would think that this is irrelevant because I accept Mr Levi’s evidence that he honestly thought that all he had to do was make an application for a garage as he was buying a prefabricated garage for that purpose. The other suggested ground was that the objectors themselves did not know that the true purpose was for storage of model trains. This may be so but the defendant knew that and I think having regard to the fact that the plaintiffs openly approached the defendant for her consent in a full and frank way means that there are no discretionary reasons why I should refuse the application.

33   I dismiss the plaintiff’s summons with costs.

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Last Modified: 10/26/2001