National Trust of Australia (New South Wales) v Amour

The National Trust of Australia (New South Wales) appealed to the New South Wales Court of Appeal against a decision of the Land and Environment Court concerning the interpretation of a conservation covenant registered on title. The dispute centred on whether the respondents, the owners of the land subject to the covenant, were entitled to undertake certain development works without the consent of the National Trust, as stipulated by the covenant.

The primary legal issue before the Court of Appeal was the proper construction of clause 3(a) of the conservation covenant. This clause prohibited the owners from making any alterations or additions to the land or buildings thereon without the prior written consent of the National Trust. The respondents argued that the works they proposed, which involved the demolition of a shed and the construction of a new dwelling, did not constitute "alterations or additions" in the context of the covenant's purpose, which was to preserve the heritage significance of the land.

The Court of Appeal, in allowing the appeal, held that the ordinary and natural meaning of "alterations or additions" encompassed the demolition of existing structures and the erection of new ones. The Court reasoned that the purpose of the covenant was to protect the heritage values of the land, and this purpose was not confined to preventing minor changes but extended to preserving the overall character and fabric of the property. The Court found that the proposed works would fundamentally alter the land and its existing structures, thereby falling within the prohibition of the covenant. The Court concluded that the respondents were required to obtain the National Trust's consent before undertaking the proposed demolition and construction.