Panton v The Owners of Survey Strata Plan 46838
[2013] WASC 35
PANTON -v- THE OWNERS OF SURVEY STRATA PLAN 46838 [2013] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 35 | |
| Case No: | CIV:1142/2012 | 19 JUNE & 19 OCTOBER 2012 | |
| Coram: | PRITCHARD J | 11/02/13 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Restrictive covenant modified in part | ||
| B | |||
| PDF Version |
| Parties: | STEVEN JEREMY PANTON ROSALINDA PANTON THE OWNERS OF SURVEY STRATA PLAN 46838 |
Catchwords: | Construction of restrictive covenant Whether proposed improvements to land prohibited by terms of restrictive covenant Exercise of the Court's discretion to modify restrictive covenant Transfer of Land Act 1983 (WA), s 129C(1) |
Legislation: | Transfer of Land Act 1983 (WA), s 129C(1) |
Case References: | Averono v Mbuzi [2005] QCA 295 Burns v Araghi [2006] NSWSC 687 Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9 Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd (t/as Viking Swimming Pools and Spas) (1998) 124 NTR 1 Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 141 ALR 687 Fraser v Di Paolo (2008) V ConvR 54-751 Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624 Greenwood v Burrows (1992) V ConvR 54-444 Heaton v Loblay (1960) SR (NSW) 332 Hilldon Pty Ltd v JY Building Material and Construction Pty Ltd [2007] QSC 301 Hillman v Dissanayake (2008) V ConvR 54-745 Hoy v Allerton (2002) Q ConvR 54-559 Kitching v Phillips (2011) 278 ALR 551 Kort Pty Ltd v Shaw [1983] WAR 113 Lolakis v Konitsas [2002] NSWSC 889 Miller v Evans [2010] WASC 127 Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 O'Brien v Shire of Rosedale (1968) 22 LGRA 262 Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) 23 WAR 1 Perth Construction Pty Ltd v Mount Lawley (1955) 57 WALR 41 Pihiga Pty Ltd v Roche (2011) 278 ALR 209 Prowse v Johnstone [2012] VSC 4 Re Callanan and Conveyancing Act [1970] 2 NSWR 127 Re Chamberlain and the Conveyancing Act (1969) 90 WN (Pt 1) (NSW) 585 Re Cook [1964] VR 808 Re Ghey and Galton's Application [1957] 2 QB 650 Re Henderson's Conveyance [1940] 1 Ch 835 Re Lewis [1959] NZLR 1040 Re Longo Investments Pty Ltd (2003) V ConvR 54-675 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Re Milbex Pty Ltd (2007) V ConvR 54-726 Re Parimax (SA) Pty Ltd [1956] SR (NSW) 130 Re Robinson [1972] VR 278 Rolls v Miller (1884) 27 Ch D 71 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Smith v Australian Real Estate and Investment Co Ltd [1964] WAR 163 Smyth v Brisbane City Council [2007] QSC 30 Stanhill Pty Ltd v Jackson (2005) 12 VR 224 Subiaco Municipal Council v Walmsley (1930) 32 WALR 49 Tujilo v Watts [2005] NSWSC 209 Tulk v Moxhay (1848) 41 ER 1143 Vrakas v Registrar of Titles [2008] VSC 281 Webster v Bradac (1993) 5 BPR 12,032 Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ROSALINDA PANTON
Plaintiffs
AND
THE OWNERS OF SURVEY STRATA PLAN 46838
Defendant
Catchwords:
Construction of restrictive covenant - Whether proposed improvements to land prohibited by terms of restrictive covenant - Exercise of the Court's discretion to modify restrictive covenant - Transfer of Land Act 1983 (WA), s 129C(1)
Legislation:
Transfer of Land Act 1983 (WA), s 129C(1)
Result:
Restrictive covenant modified in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr M L Bennett & Ms C L Donald
Defendant : Mr M N Solomon
Solicitors:
Plaintiffs : Bennett & Co
Defendant : Hardy Bowen
Case(s) referred to in judgment(s):
Averono v Mbuzi [2005] QCA 295
Burns v Araghi [2006] NSWSC 687
Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9
Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd (t/as Viking Swimming Pools and Spas) (1998) 124 NTR 1
Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281
Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 141 ALR 687
Fraser v Di Paolo (2008) V ConvR 54-751
Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624
Greenwood v Burrows (1992) V ConvR 54-444
Heaton v Loblay (1960) SR (NSW) 332
Hilldon Pty Ltd v JY Building Material and Construction Pty Ltd [2007] QSC 301
Hillman v Dissanayake (2008) V ConvR 54-745
Hoy v Allerton (2002) Q ConvR 54-559
Kitching v Phillips (2011) 278 ALR 551
Kort Pty Ltd v Shaw [1983] WAR 113
Lolakis v Konitsas [2002] NSWSC 889
Miller v Evans [2010] WASC 127
Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116
O'Brien v Shire of Rosedale (1968) 22 LGRA 262
(Page 3)
Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255
Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) 23 WAR 1
Perth Construction Pty Ltd v Mount Lawley (1955) 57 WALR 41
Pihiga Pty Ltd v Roche (2011) 278 ALR 209
Prowse v Johnstone [2012] VSC 4
Re Callanan and Conveyancing Act [1970] 2 NSWR 127
Re Chamberlain and the Conveyancing Act (1969) 90 WN (Pt 1) (NSW) 585
Re Cook [1964] VR 808
Re Ghey and Galton's Application [1957] 2 QB 650
Re Henderson's Conveyance [1940] 1 Ch 835
Re Lewis [1959] NZLR 1040
Re Longo Investments Pty Ltd (2003) V ConvR 54-675
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Re Milbex Pty Ltd (2007) V ConvR 54-726
Re Parimax (SA) Pty Ltd [1956] SR (NSW) 130
Re Robinson [1972] VR 278
Rolls v Miller (1884) 27 Ch D 71
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Smith v Australian Real Estate and Investment Co Ltd [1964] WAR 163
Smyth v Brisbane City Council [2007] QSC 30
Stanhill Pty Ltd v Jackson (2005) 12 VR 224
Subiaco Municipal Council v Walmsley (1930) 32 WALR 49
Tujilo v Watts [2005] NSWSC 209
Tulk v Moxhay (1848) 41 ER 1143
Vrakas v Registrar of Titles [2008] VSC 281
Webster v Bradac (1993) 5 BPR 12,032
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
(Page 4)
1 PRITCHARD J: Mr and Mrs Panton own a block of land at 13 Moreing Road in Attadale (the Panton land).1 The land next door, at 15 - 17 Moreing Road, has been subdivided into four lots which are contained in Survey Strata Plan 46838, and which are owned by Mr and Mrs Marchese and their children (the Marchese land).2
2 Mr and Mrs Panton are in the process of constructing a substantial home on the Panton land. However the Panton land is subject to a restrictive covenant (the Restrictive Covenant) which benefits the Marchese land. Mr and Mrs Panton wish to make a number of improvements (the proposed improvements) to the Panton land within the area of that land which is the subject of the Restrictive Covenant (the restricted land). The owners of the Marchese land (whom for convenience I will refer to solely as Mr and Mrs Marchese) object to their doing so. They say that the proposed improvements are prohibited by the terms of the Restrictive Covenant.
3 Mr and Mrs Panton contend that the proposed improvements do not offend the terms of the Restrictive Covenant. If that contention is not accepted, and the proposed improvements do offend the terms of the Restrictive Covenant, Mr and Mrs Panton seek an order pursuant to s 129C(1) of the Transfer of Land Act 1893 (WA) (the TLA) that the Restrictive Covenant be modified so as to permit the proposed improvements (the proposed modification).
4 Accordingly, the issues for determination are whether the proposed improvements are prohibited by the terms of the Restrictive Covenant and, if so, whether Mr and Mrs Panton have established a basis for the exercise of the Court's discretion to modify the Restrictive Covenant. In order to answer those questions, it is necessary first to consider the meaning of the Restrictive Covenant as it presently stands.
5 For the reasons set out below I have concluded that most of the proposed improvements are prohibited by the terms of the Restrictive Covenant, but that the Restrictive Covenant should be modified to permit some, but not all, of the proposed improvements which are presently prohibited to be carried out on the restricted land.
(Page 5)
6 In these reasons I deal with the following matters:
1. Factual background;
2. The terms of the Restrictive Covenant;
3. The proposed improvements and the orders sought by Mr and Mrs Panton;
4. The proper construction of the Restrictive Covenant;
5. Whether each of the proposed improvements is prohibited by the Restrictive Covenant;
6. Whether the proposed modification should be permitted pursuant to s 129C(1)(a) or s 129C(1)(c) of the TLA;
7. Conclusion and orders.
1. Factual background
7 The relevant facts were, largely, not in dispute. To the extent that there was any factual controversy at all, it was confined to the benefits which Mr and Mrs Marchese claim they enjoy as a result of the Restrictive Covenant, and the injury they say they would suffer if the Restrictive Covenant were modified.
8 The restricted land is in a rhomboid shape at the front of the Panton land facing Moreing Road. The restricted land is 342 square metres in area, leaving unaffected 632 square metres at the rear of the Panton land.
9 Moreing Road runs approximately south to north, between Canning Highway to the south and close to the Swan River foreshore to the north. Around the location of the Panton land and the Marchese land, Moreing Road has a fairly steep incline heading southward away from the river and towards Canning Highway. The Panton land is to the immediate north of Marchese land, closer to the river and further down the hill. Both from the Panton land and the Marchese land there is a view down the hill to the river and across to the Perth City skyline. In the case of the Marchese land, that view is by a line of sight which traverses the restricted land.
10 The existence of the Restrictive Covenant dates back to 1976. At that time the Panton land was described as Lot 236 and the Marchese land was described as Lots 237 and 238. All three lots were owned by the executors of the will of Bruce Learmonth Anderson.
(Page 6)
11 By a transfer dated 10 March 19763 (the transfer), Lot 236 was transferred by the executors of the will of Bruce Learmonth Anderson to William Maurice Barry and Olive Gertrude Barry. The Restrictive Covenant was contained in the transfer.
12 Lots 237 and 238 were sold (together) to other purchasers and in 2001 were sold again, to Mr and Mrs Marchese. Mr and Mrs Marchese were aware of the Restrictive Covenant when they purchased the Marchese land.
13 Following the purchase of Lots 237 and 238, Mr and Mrs Marchese amalgamated the Lots and subdivided them into four strata lots as depicted on Survey Strata Plan 46838. The Survey Strata plan indicates that the lots have the benefit of the Restrictive Covenant.4 Of the four subdivided lots, Lots 1 and 4 have frontage to Moreing Road, Lots 2 and 3 sit at the back of the block behind Lots 1 and 4 respectively, and Lots 3 and 4 directly abut the Panton land.
14 In 2010, Mr and Mrs Marchese completed the construction of a substantial home on Lot 4, in which they presently reside. Mr and Mrs Marchese designed their home to take advantage of the views across the Panton land and northward down to the river.
15 Mr and Mrs Panton became the registered proprietors of the Panton land in July 2010. They were aware of the Restrictive Covenant when they purchased the Panton land. Initially their offer to purchase the Panton land was subject to a condition that the Restrictive Covenant be modified to permit structures (subject to a height restriction) to be erected on the restricted land. Eventually, that condition was withdrawn and Mr and Mrs Panton proceeded with the purchase of the Panton land.
16 Mr and Mrs Panton, and their children, intend to live in the home they are constructing on the Panton land.
17 The home under construction on the Panton land is located wholly on that part of the Panton land which is not the subject of the Restrictive Covenant.
18 The present application seeks the modification of the Restrictive Covenant so that additional improvements may be made to the restricted land.
(Page 7)
2. The terms of the Restrictive Covenant
19 The Restrictive Covenant is set out in a rather lengthy passage of text on page 2 of the transfer. Annexed to the transfer (and referred to within the text of the Restrictive Covenant) is a plan of Lots 236, 237 and 238 as located on Moreing Road, which shows the area of Lot 236 which is the subject of the Restrictive Covenant as a hachured area (and which was hachured blue in the original annexure to the transfer). The annexure also includes some text which apparently purports to reflect the terms of the text of that part of the Restrictive Covenant which is set out within the transfer itself.
20 It was common ground that the Restrictive Covenant comprises both the text which is found within the transfer, and the annexure to the transfer. That is clearly correct. A copy of the relevant portions of each of those documents is reproduced in Annexure 1 to these reasons.
21 It is convenient, however, to set out below the key words of the Restrictive Covenant which were the subject of the present application.
22 The text of the Restrictive Covenant as set out within the transfer is relevantly as follows:
… William Maurice Barry and Olive Gertrude Barry and their successors in title will not erect any structure save a two metre high fence or grow trees or vegetation upon the said portion of Lot 236 as is hachured blue on the said plan annexed hereto of a height in excess of 27.18 metres above Australian Height Datum …
23 The annexure to the transfer also bears the following text:
Restrictions over Hatched (sic) Area
1. No structure with the exception of a 2 m high fence is to be erected on the land shown hatched (sic).
2. No trees or vegetation is to be allowed above RL 27.18 m AHD on the land shown hatched (sic).
Note: The above level is on Australian Height Datum and is related to a datum of RL 2.418 m for Lands and Surveys SSM Melville 20.
(Page 8)
3. The proposed improvements and the orders sought by Mr and Mrs Panton
The proposed improvements
25 The precise nature of the proposed improvements was developed and clarified during the course of the hearing. The nature of the proposed improvements was set out in a variety of documents in evidence, particularly some plans incorporating details of the location and dimensions of the proposed improvements (the Further Plans) and a Schedule of Materials and Mode of Construction for Improvements as set out in the Further Plans (the Schedule of Materials).5 Also in evidence were a three dimensional computer model, and still images, of the proposed improvements in situ,6 and copies of correspondence passing between the parties' solicitors which provided further information about the proposed improvements.7
26 For present purposes, the following summary will suffice to describe the nature of the proposed improvements:
(a) a driveway. It is proposed that the driveway will be situated roughly parallel with the northern boundary fence of the restricted area, from Moreing Road to the garage which is being constructed under the Pantons' home. It is proposed that there will be a garden bed between the northern edge of the driveway and the boundary fence on the northern side of the Panton land. The driveway is to be constructed from aggregate reinforced concrete paving.
(b) decking. It is proposed that the decking will be located between the house and the below ground pool. It is to be constructed from tiles laid on reinforced concrete paving.
(c) stairs. It is proposed that there will be several stairs located adjacent to the pool and a raised platform area on the southern side of the pool deck, and a substantial staircase from the driveway level (on the northern side of the pool) to the entry to the house. Only approximately the lower half of this staircase would fall within the restricted area. The stairs are to be constructed from tiles laid on reinforced concrete.
(Page 9)
- (d) planter boxes. This description appears intended to incorporate both planter boxes (which appear similar to retaining walls for raised garden beds, including those adjacent to the southern boundary fence) and a planter box located roughly in the centre of an area of lawn at the front of the block, in which it is proposed that a large decorative terracotta urn will be placed. The planter boxes will be constructed from bricks (some with stone facing), with a reinforced concrete cavity, built on concrete footings.
(e) mowing strips. These will be constructed of concrete kurbing.
(f) bin enclosure. The proposed bin enclosure is to be located between the driveway and the boundary fence on the northern side of the Panton land immediately adjacent to the garage. The walls of the bin enclosure are to be constructed from rendered and painted brickwork on concrete footings. Only part of the bin enclosure falls within the restricted area.
(g) below ground pool. The pool is to be located roughly halfway between the house and the front boundary of the restricted land, and between the driveway on the northern side and the planter boxes and boundary fence on the southern side of the Panton land. Although the pool is to be a below ground pool, on its eastern side the pool wall will extend well above ground level, as a result of the excavation of the adjacent land (which slopes downwards towards the front of the block) to permit an area of lawn (on what will be a lower terrace from the pool, at ground level next to the driveway). The pool is to be constructed from a reinforced concrete shell and tiles.
(h) fences and gates. It is proposed that there will be a front boundary fence and piers, constructed from rendered and painted brickwork on concrete footings, together with wrought iron panel inserts, and a wrought iron gate on a steel track mounted on a concrete base over the driveway. A mailbox will be incorporated into one of the concrete piers of the fence. There is also to be a frameless glass balustrade for the pool.
(i) fish ponds. The fish ponds are to be located on the north eastern corner of the pool, and situated between the pool and the driveway at ground level. The fish ponds are to be constructed from fibreglass lined concrete.
(Page 10)
- (j) underground water tank. There was no evidence in relation to the underground water tank or tanks, and these were not shown on the Further Plans or referred to in the Schedule of Materials. Counsel for Mr and Mrs Panton submitted that the tanks would be wholly located below the ground, apart from an entry point, and that the precise location of the tanks (or more specifically the entry point) depended on the outcome of the present application and the eventual location of any other proposed improvements on the restricted land.
The orders sought
27 The precise form of the relief sought by Mr and Mrs Panton was also the subject of clarification during the course of the hearing. In the Originating Summons Mr and Mrs Panton sought a modification of the Restrictive Covenant in two alternative ways (which were set out), and 'such further or other relief' as the Court considered just. They did not expressly seek a declaration under s 129C(3)(c) of the TLA. Counsel for Mr and Mrs Panton made clear during the hearing that a declaration as to the nature and extent of the restrictions imposed by the Restrictive Covenant was in fact sought, and could (alternatively to s 129C(3)(c) of the TLA) be granted in the exercise of the Court's inherent jurisdiction. Counsel for Mr and Mrs Marchese submitted that without an application for a declaration, such relief was not available.
28 In view of the conclusion I have reached about the construction of the Restrictive Covenant, and as to the modification of the Restrictive Covenant which should be made, a declaration as to the nature and extent of the restrictions imposed by the Restrictive Covenant appears to be unnecessary.
29 It is, however, necessary to consider, as a preliminary step in determining whether an order should be made modifying the Restrictive Covenant, whether the proposed improvements are in fact prohibited by the terms of the Restrictive Covenant. That requires a consideration of the meaning of the Restrictive Covenant.
30 The alternative case put by Mr and Mrs Panton was that if any of the proposed improvements are considered by the Court to be contrary to the terms of the Restrictive Covenant, the terms of the Restrictive Covenant should be modified to permit the proposed improvements to occur.
31 After the hearing concluded, counsel for Mr and Mrs Panton filed three alternative minutes of orders, setting out alternative ways of
(Page 11)- achieving the proposed modification so as to permit the proposed improvements, should such modification be necessary. The text of each of those alternative forms of orders is set out in Annexure 2 to these reasons.
4. The proper construction of the Restrictive Covenant
32 Clearly there would be no need to modify the terms of the Restrictive Covenant if the proposed improvements would not offend the Restrictive Covenant. Consequently, it is necessary to commence by determining the meaning of the Restrictive Covenant. It is also necessary to ascertain the object of the Restrictive Covenant because that may assist in determining the proper construction of the Restrictive Covenant and thus may assist in assessing whether the proposed improvements will offend the Restrictive Covenant.8 Ascertainment of the object of the Restrictive Covenant will also assist in assessing the benefit said to be derived from the Restrictive Covenant and the potential injury which may be suffered if it is modified.
33 In this section of my reasons I deal with the following matters:
(i) The proper approach to the construction of the Restrictive Covenant;
(ii) The ordinary meaning of the words used in the Restrictive Covenant;
(iii) Ambiguity in the meaning of the Restrictive Covenant;
(iv) The object of the Restrictive Covenant;
(v) Conclusion in relation to the meaning of the Restrictive Covenant.
(i) The proper approach to the construction of the Restrictive Covenant
34 It was common ground between the parties that as the Restrictive Covenant is an instrument registered under the Torrens system, the meaning of the Restrictive Covenant will, generally speaking, fall to be determined from the instrument itself, and not from extrinsic material which might establish facts or circumstances existing at the time of the creation of the Restrictive Covenant. That is because a third party who
(Page 12)inspects the Register cannot be expected to look further for such extrinsic material as would place the third party in the position of the grantee.9
35 There are some limited exceptions to this general rule, such as that evidence may be admissible to make sense of that which the Register identifies by the terms or expressions found therein, such as surveying terms and abbreviations.10 There is also some authority for the proposition that evidence of the physical characteristics of the land in question may be used in the construction of an instrument on the Register.11 However, even then, it may not be appropriate (having regard to the objectives of the Torrens system of registration) to have regard to those physical characteristics in construing the instrument if information as to those physical characteristics is not readily available to third parties (such as when there has, or may have, been a change in the characteristics of the land since the instrument was created).12 In this case, the parties did not seek to rely on any extrinsic material in relation to the construction of the Restrictive Covenant, other than in so far as it was agreed that the view from the Marchese land was towards the Swan River.13
36 In determining the meaning of the Restrictive Covenant, the starting point is to consider the meaning of the words used in the Restrictive Covenant. The words used should be given their ordinary or colloquial meaning, and should not be construed in any technical or legal sense.14 They should also be construed in their context and upon a reading of the whole instrument.15
37 The parties referred me to a number of cases where the meaning of the terms used in the Restrictive Covenant has been considered. Some caution is necessary when considering the construction given to words found in other instruments, because the construction adopted will often be influenced by the different context in which the words appear. None of the cases to which I was referred was directly applicable, but some of them were of assistance in so far as they confirmed the ordinary meaning
(Page 13)- of the words used in the Restrictive Covenant, in not entirely dissimilar contexts.
(ii) The ordinary meaning of the words used in the Restrictive Covenant
38 The key words used in the text of the Restrictive Covenant are that the owners of the servient tenement (presently Mr and Mrs Panton) are not to 'erect' any 'structure' 'upon' the restricted land.
39 The relevant dictionary meaning of the word 'upon' is 'on, in any of various senses',16 and 'on' means 'position above and in contact with a supporting surface'.17 I note that while the text of the Restrictive Covenant within the transfer refers to the erection of structures 'upon' the restricted land, the annexure to the transfer refers to the erection of structures 'on' the restricted land. This suggests that it was intended that the meaning of the word 'upon' was synonymous with the word 'on'.
40 The relevant dictionary meaning of the word 'erect' is to build, construct or raise.18 The word is broad enough to encompass both things which come into existence as a result of the combination of other things - so as to make (or build or construct) something new - and things which may be created or pre-fabricated elsewhere and installed (or raised) in a particular location.
41 The words 'upon' and 'on' cannot be construed, in my view, to encompass things which are wholly located under the restricted land. However, it is clearly possible for something to be erected 'upon' or 'on' the restricted land, although part (and perhaps even a substantial part) of that structure is located below the surface of the restricted land.19 It could hardly be disputed, for example, that a house would be erected upon or on land, notwithstanding that part of that house (such as its foundations, or a garage or cellar) may be constructed below ground. This construction is also supported by the express exception (from what is otherwise prohibited by the Restrictive Covenant) of a fence, given that it will frequently be the case that in the construction of a fence, part of the fence will be located below ground level.
42 Accordingly, in my view the Restrictive Covenant should be understood as encompassing both things which are erected wholly on the
(Page 14)- surface of the restricted land, and things which when erected are partly above and partly below the surface of the restricted land.
43 The relevant dictionary meaning of the word 'structure' is 'something built or constructed'; anything composed of parts arranged together in some way'.20 The immediate context within which the word 'structure' is used suggests that a broad meaning of 'structure' was intended. The erection of 'any' structure is prohibited. Further, the erection of a fence is expressly excepted when it would otherwise apparently have been within the prohibition, which suggests that it was not intended only that the erection of particular kinds of structures (such as a house or shed or other building) was prohibited.
44 Having regard to the broader context - namely that the words appear within an instrument containing a prohibition, breach of which can have serious consequences21 - the use of the words 'erect' and 'structure' should be understood as importing a requirement for some element of permanence, so that structures with a merely temporary or transient existence on the restricted land would not offend the Restrictive Covenant.22
45 For completeness, I should also note an additional issue which arose in relation to the construction of the Restrictive Covenant, in so far as it excepts the erection of 'a two metre high fence' from the prohibition on the erection of structures. Counsel for Mr and Mrs Marchese submitted that on its proper construction the Restrictive Covenant should be construed as permitting only one fence, because of the reference to a 'fence' in the singular rather than in the plural, and because it would be unlikely that a covenant concerned with the preservation of views (and, on his argument, perspective) would permit a multiplicity of fences.
46 Although in this case, Mr and Mrs Panton sought to erect only a glass pool fence and a boundary fence facing Moreing Road,23 in determining the meaning of the word 'fence' in the Restrictive Covenant, it
(Page 15)- is appropriate to consider the operation of the Restrictive Covenant in more general terms. I start by noting that the nature of the 'fence' which may be erected is not specified in the Restrictive Covenant, but clearly the word 'fence' may refer to a boundary fence or a fence of another kind (such as a pool fence). I note also that the plan which forms part of the Restrictive Covenant shows that the restricted land has three boundaries which abut the neighbouring properties and Moreing Road.
47 To fence the boundaries of the restricted land would ordinarily be understood to require three fences - one fence along each boundary - and that conclusion would be particularly compelling if different materials were used (for example if the fence facing Moreing Road were to be constructed from different materials from the fences abutting neighbourhood properties). If the reference in the Restrictive Covenant to a 'fence' is construed as permitting only the construction of a single fence, that would have the absurd result that the owners of the Panton land would be prohibited from erecting a fence on each boundary of the restricted land. In the circumstances, the only reasonable construction of the reference to 'a two metre high fence' is that it means a fence or fences of no more than two metres high.
(iii) Ambiguity in the meaning of the Restrictive Covenant
48 An additional question of construction in relation to the Restrictive Covenant concerns the operation of the height restriction in the Restrictive Covenant. In this respect, the Restrictive Covenant is ambiguous (at least in so far as the text set out within the transfer itself is concerned). In addition, the text set out within the transfer is not in identical terms to the text of the Restrictive Covenant set out in the annexure to the transfer.
49 The question is whether the reference in the text to the maximum height calculated as exceeding 27.18 above the Australian Height Datum (the height limitation) applies solely to any trees and vegetation grown on the restricted land, or whether it applies also to any structures erected on the restricted land.
50 On the one hand, the text of the Restrictive Covenant may be read as prohibiting the erection of structures (save for a two metre high fence), or the growth of trees or vegetation, if the structures, trees or vegetation exceed the maximum height limitation. Alternatively, the text may be read as prohibiting the erection of any structure regardless of its height (save for a two metre high fence) and the growth of trees or vegetation which exceed the maximum height limitation.
(Page 16)
51 This ambiguity is not reflected in the text of the annexure to the transfer, which apparently purports to repeat (although in a slightly different form) the terms of the Restrictive Covenant. The terms of the annexure to the transfer suggest that the maximum height restriction applies solely to the trees and vegetation grown on the land, and that no structure regardless of its height (apart from a fence or fences) may be erected on the restricted land.
52 That conclusion is also supported by the fact that the erection of a two metre high fence (or fences) is specifically excepted from the prohibition on the erection of structures. If the maximum limitation was intended to be applied to any structures erected on the restricted land, then it is difficult to envisage any reason why it would have been necessary to except the construction of a fence from that prohibition.
53 On the other hand, to construe the Restrictive Covenant as prohibiting the erection of any structure - regardless of its height - on the restricted land appears likely to lead to results which would border on the absurd. Two examples will suffice to illustrate the point. First, counsel for Mr and Mrs Marchese submitted that the effect of the Restrictive Covenant (construed in this way) is that a freestanding mailbox could not be erected on the restricted land, other than one which is purchased ready made and attached to a pole which is driven into the ground. (However, even a mail box of the latter kind, provided that it was fixed permanently into the ground would appear likely to constitute a structure erected in contravention of the Restrictive Covenant). Secondly, counsel for Mr and Mrs Marchese submitted that the owners of the Panton land could not construct a driveway on the restricted land. Structures such as a mailbox and a driveway are ordinary, and arguably essential, aspects of suburban residential living, and a construction of the Restrictive Covenant, the effect of which was to prohibit the erection of such structures, could not readily be adopted in the face of any reasonable alternative construction.
54 Some assistance in resolving these areas of ambiguity in the meaning of the Restrictive Covenant may be derived from ascertaining its object and I turn to consider that object now.
(iv) The object of the Restrictive Covenant
55 There was no dispute between the parties that an object of the Restrictive Covenant is to preserve the views from the Marchese land in the direction of the Swan River and the Perth City skyline. The issue in dispute was whether the Restrictive Covenant has an additional object, namely to preserve an amenity of open space and the absence of built
(Page 17)- form on the restricted land. As a starting proposition, there is no doubt that land may be affected or benefited by a restrictive covenant in intangible ways, such as the preservation of view, or the preservation of amenity or environment.24
57 The object of the Restrictive Covenant is far from clear. If the object of the Restrictive Covenant was solely to preserve the view from the Marchese land, then it is not apparent why the text in the annexure to the transfer prohibits the construction of any structure (irrespective of its height).
58 However, having carefully considered the arguments ably advanced by counsel for Mr and Mrs Marchese, I have nevertheless reached the conclusion that the object of the Restrictive Covenant is solely to preserve the views from the Marchese land towards the Swan River and the Perth City skyline, and not to preserve an additional amenity of open space and an absence of built form on the restricted land. I have reached this view for three reasons.
59 First, when regard is had to the totality of the Restrictive Covenant as it appears in the transfer and the annexure thereto, including both the text and the plan which comprise the Restrictive Covenant, it is fair to say that other than in so far as it prohibits the erection of any structure, the overriding focus of the Restrictive Covenant is directed to the preservation of the view from the Marchese land toward the Swan River and the Perth City skyline.
60 This is apparent from the express references to the height restriction both for any trees and vegetation which may be grown, and for the height
(Page 18)- restriction on the fence which may be erected, on the restricted land. The plan which is set out in the annexure to the transfer also supports the conclusion that the object of the Restrictive Covenant was solely the preservation of the view. That plan shows the location of the residence situated on the Marchese land at the time the Restrictive Covenant was created, and the location of the restricted land at the front of the Panton land facing Moreing Road. The only inference which can be drawn from the rhomboid shape of the restricted land, together with the topography of the Panton land and the Marchese land (specifically the higher position of the Marchese land, and the location of the Swan River further down the hill) is that the object of the Restrictive Covenant was the preservation of the view from the Marchese land towards the Swan River and the Perth City skyline.
61 Secondly, other than for the prohibition on the erection of structures, there is nothing in the Restrictive Covenant which provides any indication that it is concerned with the preservation of an amenity of open space or the absence of built form, on the restricted land. In so far as that amenity is said to have a visual element, there is, for example, no prohibition on the restricted land being used other than in a manner which promotes the visual amenity from the Marchese land, such as might be effected by a prohibition on the erection of structures other than those which would create a neat and ornamental garden.25 Further, given that a fence (or fences) may be erected, and trees and vegetation grown, on the restricted land, it is possible that some structures which might be erected on the restricted land proximately to such a fence or vegetation, would not be visible from the Marchese land. In view of that possibility, it is difficult to see why the Restrictive Covenant should be construed as preserving an amenity with a visual aspect, which derives from the absence of built form on the restricted land.
62 Thirdly, I am unable to accept the premises for counsel's submissions as to the nature of the additional amenity said to be preserved by the Restrictive Covenant. In so far as it was contended that the amenity derives from the absence of built form on the restricted land, the terms of the Restrictive Covenant do not entirely prohibit built form on the restricted land. The erection of a fence is expressly permitted, and a fence (or fences) could therefore be erected so as to bisect, or even to compartmentalise, the restricted land, in a manner wholly inconsistent with any visual amenity deriving from an absence of built form.
(Page 19)63 Similarly, in so far as it was contended that the additional amenity which is protected by the Restrictive Covenant has an aural element deriving from the absence of built form - in the sense that the absence of built form is more conducive to a quieter, more peaceful environment - that contention also cannot be accepted. Although it is possible that the absence of built form would result in a quieter environment, that is not the inevitable result, and the converse is equally possible. Land on which there are no structures can (absent other restrictions) be used for noisy outdoor activities. On the other hand, it may be possible to contain the volume of noise if it is generated inside a structure, such as a building, as opposed to noise which is generated in an open environment.
64 Having determined that the object of the Restrictive Covenant is solely to preserve the views from the Marchese land towards the Swan River and the Perth City skyline, I return to consider whether that object assists in resolving the ambiguity in the terms of the Restrictive Covenant.
(v) Conclusion in relation to the construction of the Restrictive Covenant
65 The object of the Restrictive Covenant, and the absurd results which may follow if the Restrictive Covenant is understood as prohibiting the construction of any structure on the restricted land, strongly support the conclusion that the height limitation was intended to apply to structures erected on the restricted land (so that the effect of the Restrictive Covenant would be to prohibit only the erection of structures in excess of that height limitation).
66 However, I have reached the conclusion that that construction cannot be adopted, for two reasons. First, such a construction of the Restrictive Covenant is entirely inconsistent with that part of the text of the Restrictive Covenant which is set out in the annexure to the transfer. To construe the Restrictive Covenant in this way would in effect require reading words into that part of the text so as to prohibit the erection of structures exceeding the height limitation, when the meaning of that text is otherwise quite clearly to the contrary. Secondly, in so far as the text of the Restrictive Covenant set out within the transfer is concerned, to construe that part of the text as prohibiting the erection of structures only if they exceed the height limitation would be somewhat at odds with the express exception from that prohibition for the erection of a two metre high fence, especially as it seems very unlikely that any such fence would exceed the height limitation, having regard to the present topography of the land.
(Page 20)67 I am unable to avoid the conclusion that when the terms of the Restrictive Covenant are read as a whole, the ordinary and natural meaning of the words used cannot, without considerable difficulty, properly be construed to prohibit only the erection of structures which would exceed the height limitation.
68 In summary, then, although the object of the Restrictive Covenant is to preserve the view from the Marchese land towards the Swan River and the Perth City skyline, the Restrictive Covenant by its terms prohibits the owner of the Panton land from building, constructing or installing any kind of structure which is of a permanent nature - in the sense of having more than a transient or temporary existence - upon the surface of the restricted land, including structures which are partly above and partly below the surface of that land, save for a two metre high fence, and also prohibits the owner from growing trees or vegetation of a height in excess of the height limitation. Accordingly, in so far as it prohibits the erection of any structure (regardless of its height) on the restricted land, the terms of the Restrictive Covenant prohibit more than is necessary to achieve that object.
69 I turn, then, to consider whether each of the proposed improvements is prohibited by the Restrictive Covenant.
5. Whether each of the proposed improvements is prohibited by the Restrictive Covenant
70 It was common ground that the proposed amendments will not affect the view from the Marchese land of the Swan River and the Perth City skyline.
71 The question, then, is whether each of the proposed improvements will constitute a structure which is built, constructed or installed upon the restricted land (even if partly above and partly below the surface of the restricted land), and which is of a permanent nature - in the sense that it will have more than a transient or temporary existence.
72 There was no dispute that the front boundary fence, including the gates, was expressly permitted by the terms of the Restrictive Covenant. Having regard to the view I have reached in relation to the word 'fence' in the Restrictive Covenant, the glass pool fence would not contravene the terms of the Restrictive Covenant either.
73 Counsel for Mr and Mrs Marchese also indicated that no objection was taken to the decorative urn which is to be located in the centre of one
(Page 21)
- of the planter boxes, on the basis that the urn was not being affixed to the land, but rather simply placed on top of the land.
74 According to the description given by counsel for Mr and Mrs Panton, it appears that the proposed underground water tanks will be wholly located below the ground, but that there will be an entry point to those tanks located above ground level. It may be that that entry point would constitute a structure erected on the land, having regard to the construction of the Restrictive Covenant which I have set out above. However, there was insufficient evidence before the Court about the nature, dimensions or location of that entry point to the water tanks to enable any determination to be made as to whether the tanks would contravene the Restrictive Covenant, and I express no final view on that matter.
75 All of the remaining proposed improvements would in my view quite clearly constitute structures erected on the land. Each of them would be of a permanent nature in that it is proposed that they would be fixed to the land in some way (for example by being set on a concrete foundation). Although the driveway and the mowing strips are intended to be at, or marginally above, ground level, nevertheless clearly they will be built on the land, in that the concrete will be poured onto the land.
76 Counsel for Mr and Mrs Panton submitted that the pool could not be said to be a structure 'erected upon' the land because land would be excavated in order to insert the pool shell into the ground, and to create the lower level of the lawn in front of the pool. Accordingly, he submitted that the pool would be a structure inserted into the ground. I am unable to accept that submission. In this case it is a sufficient answer to the submission to say that notwithstanding that most of the pool may be located under ground, clearly part of the pool (for example, the eastern side wall of the pool) would be erected upon the land.
77 Similarly, although it appears that a very large proportion of each of the fish ponds will be below the ground, it also appears that a small part of the concrete shell for each of the ponds will lie above the ground. Consequently in my view the fish ponds, too, can be said to be structures erected upon the ground.
78 I turn, then, to consider whether the Restrictive Covenant should be modified so as to permit the proposed improvements to be undertaken.
(Page 22)
6. Whether the proposed modification/s should be permitted pursuant to s 129(1)(a) or s 129C(1)(c) of the TLA
79 In this section of my reasons I deal with the following matters:
(i) the bases for the application for the proposed modification;
(ii) the meaning of 'substantial injury' in s 129C(1)(c);
(iii) whether the requirements of s 129C(1)(c) have been met in this case;
(iv) whether the requirements of s 129C(1)(a) have been met in this case; and
(v) whether the proposed modification should be permitted in the exercise of the Court's discretion.
(i) The bases for the application for the proposed modification
80 The application for the proposed modification of the Restrictive Covenant is brought pursuant to s 129C(1)(a) or alternatively s 129C(1)(c) of the TLA, which relevantly provide:
(1) … where land under this Act is subject to any restriction arising under covenant … as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited … by the … restriction, by order wholly or partially extinguish, discharge or modify the … restriction upon being satisfied -
(a) that by reason of any change in the user of any land to which the … benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the … continued existence [of the restriction] would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b) …
(c) that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the … benefit of the restriction.
81 Satisfaction of one of the criteria in s 129C(1) of the TLA gives the Court the power to exercise a discretion, but unless one or other of the criteria in s 129C(1) are established, the Court has no power to modify a restrictive covenant.26 Mr and Mrs Panton bear the onus of satisfying the Court that the statutory criteria for the exercise of the discretion to modify the Restrictive Covenant exist.27
82 However, even if an applicant establishes the criteria for the exercise of the discretion to modify a restrictive covenant, the Court nevertheless retains a residual discretion to reject the application.28
83 What is sought in this case is the modification of the Restrictive Covenant. The term 'modify' in this context has been construed to mean 'limit or restrain'29 and does not permit changing, amending or varying a covenant. So, for example, an equivalent power has been exercised to permit the construction of a building which would otherwise breach a restrictive covenant.30
84 It is convenient to first consider whether the proposed modification should be permitted pursuant to s 129C(1)(c) of the TLA.
(ii) The meaning of 'substantial injury' in s 129C(1)(c)
85 The Court's discretion to modify the Restrictive Covenant pursuant to s 129C(1)(c) of the TLA in this case will be enlivened only if the Court is satisfied that the proposed modification of the Restrictive Covenant will not 'substantially injure' the persons entitled to the benefit of the Restrictive Covenant, namely Mr and Mrs Marchese.
86 The 'injury' referred to in s 129C(1)(c) is an injury to the person entitled to the benefit of the covenant in relation to his or her ownership of, or interest in, the land benefited. The injury may be of a physical kind (such as subjection to noise or traffic), an economic kind (such as a diminution in the value of the dominant land) or of an intangible kind (such as the impairment of views, intrusion on privacy, unsightliness or an
(Page 24)- alteration to the character and ambience of the neighbourhood), although these examples are not intended to be exhaustive.31
87 The word 'substantial' in this context does not mean 'large' or 'considerable' but is used to convey the requirement that the injury is real and has present substance, and is not merely a theoretical injury.32 The distinction thus created is between cases involving what may be a genuinely felt, but nevertheless in the circumstances an insubstantial injury on the one hand, and cases where the injury may truly be described as substantial, on the other hand.33
88 To similar effect, in dealing with claims of injuries of an 'intangible' kind, it has been accepted that the subjective tastes, preferences or beliefs of particular individuals may give rise to injury in the relevant sense to those individuals 'within the limits of reasonableness'.34
89 Determining whether the proposed modification of a restrictive covenant 'will not substantially injure' the owner of the dominant tenement requires a comparison between the permitted and prohibited uses of the land under the covenant in its existing terms, and what the permissible uses would be if the covenant were amended as proposed.35 However, the focus is not on the different uses of the land per se, it is, rather, on the impact of those different uses on the benefits enjoyed by the owners of the dominant tenement, arising from their ownership of the land benefited by the restrictive covenant. That much is evident from the clear link in s 129C(1)(c) between the 'substantial injury' and the benefit derived from the existence of the restrictive covenant.
90 Accordingly, in undertaking the comparison to which I have referred, the focus of the inquiry will be on the benefits conferred by the covenant
(Page 25)- in its existing terms (and thus the use of the servient land in accordance with the covenant), and the benefits (if any) which will remain for the owner of the dominant tenement, if the modification of the covenant is permitted (and thus if different uses of the servient land are permitted). If the evidence establishes that there is any difference between the benefits in each case, which can constitute an injury, and if that injury is real and of present substance, and within the limits of unreasonableness, then the statutory criteria for the discretion under s 129C(1)(c) will not be enlivened.36
Intended benefits or actual benefits?
91 In order to identify the benefit intended to be conferred by a restrictive covenant, it will be necessary to have regard to the object of that covenant. Counsel for Mr and Mrs Panton submitted that in this case, the object of the Restrictive Covenant was the preservation of the view from the Marchese land and there was no dispute that that benefit would not be affected if the modification to the Restrictive Covenant were made. Counsel for Mr and Mrs Panton submitted that it was not appropriate to take into account benefits other than those which were intended to arise from the Restrictive Covenant, and that as a result, no injury could be said to arise as a result of the proposed modification of the Covenant.
92 It was Mr and Mrs Marchese's case that even if the object of the Restrictive Covenant was the preservation of the view from the Marchese land toward the Swan River and the Perth City skyline, nevertheless they derived ancillary benefits from the Restrictive Covenant. These were said to be the benefit of having no built form, and an area of open natural space, on the restricted land next door to the Marchese land, and this was also said to result in an environment less conducive to the creation of noise. In addition, it was submitted that Mr and Mrs Marchese also enjoyed the benefit of a more prominent appearance for their home and a more attractive streetscape as a result of the Restrictive Covenant.
93 I am unable to accept the submission by counsel for Mr and Mrs Panton that ancillary benefits derived from a restrictive covenant are irrelevant in assessing whether a substantial injury would result from the modification of a restrictive covenant. In making that submission, counsel for Mr and Mrs Panton relied on observations made by Helsham J in Re Callanan37in discussing the operation of a provision in the New
(Page 26)- South Wales legislation in relevantly identical terms to s 129C(1)(a) of the TLA.38However, the observations made by Helsham J were obiter and his Honour went on to observe that to focus on the benefit intended to be conferred by the covenant 'may not be a complete approach to any problem under this portion of the section, because practical benefits may perhaps not be confined to those intended to be conferred by the restrictions'.39 It was not necessary for his Honour to decide the point in order to resolve the issues before him in that case.
94 In any event, other authorities make clear that in assessing whether a proposed modification of a restrictive covenant would substantially injure the person entitled to the benefit of the restriction, it is appropriate to have regard to both the benefits intended to be conferred by the restrictive covenant and those actually (even if only incidentally) conferred by the covenant.40
95 Counsel for Mr and Mrs Panton also sought to derive support for his submission as to intended benefits from observations made by McHugh J in Gallagher v Rainbow41 (which were relied upon by Hasluck J in Oleander Nominees42) to the effect that a grant (of an easement in that case) would not be construed in a way that would enable the easement to be used in a manner that went beyond the use contemplated by the parties at the time of the grant. Those observations do not support the submission made by counsel for Mr and Mrs Panton. McHugh J was discussing the proper approach to the construction of an easement, and not the application of a provision in terms similar to s 129C(1)(c). In addition, the Full Court of the High Court in Westfield43considered that his Honour's approach to the construction of an easement in Gallagherwas too widely expressed. In any event, even if there is some basis for distinguishing between intended and actual benefits when assessing the impact of a modification of an easement,44 the authorities to which I have referred make clear that no such distinction arises in relation to a restrictive covenant.
96 I turn, then, to consider whether Mr and Mrs Panton have established that the proposed modification would not substantially injure Mr and
(Page 27)
- Mrs Marchese in so far as their enjoyment of the benefit of the Restrictive Covenant is concerned.
(iii) Whether the requirements of s 129C(1)(c) have been met in this case
The benefits enjoyed by Mr and Mrs Marchese as a result of the Restrictive Covenant
97 Mrs Marchese gave evidence that as a result of the Restrictive Covenant, she enjoys the benefit of living next to a natural open area. Her evidence was that although Lot 4 (on which her own home was constructed) did not have extensive natural open areas, she valued natural and open areas, as they provided her with tranquillity and a sense of calmness. In essence, the benefit Mrs Marchese claimed from the Restrictive Covenant in its present form had three elements to it: the visual element of overlooking an area which was not built up, a more tranquil environment, and a benefit deriving from the prominence and the appearance of her home as part of the streetscape.
98 There was evidence that the restricted area could be seen from at least parts of the Marchese land. Mrs Marchese said that she could look over the restricted area from her kitchen window, and from her bedroom window. Mrs Marchese said that the alfresco area at the rear of her home looked directly out over the restricted area, and that she enjoyed sitting in the alfresco area and entertaining family and friends there. While the evidence supported the conclusion that the restricted area can be seen from the alfresco area, the extent to which the alfresco area can really be said to overlook the restricted area was rather less than Mrs Marchese portrayed it. Nevertheless, I find that by virtue of the operation of the Restrictive Covenant in its present terms, Mrs Marchese enjoys a view from various parts of the Marchese land over an area on which there is no built form. I accept that Mrs Marchese enjoys this visual benefit as a result of the Restrictive Covenant in its present terms.
99 While Mrs Marchese's evidence was that open and natural areas create a more tranquil environment, to the extent that Mrs Marchese claimed this as a benefit of the Restrictive Covenant, I do not place much weight on that claim, for three reasons.
100 First, for some time, the Panton land has been a vacant block, and that (rather than the operation of the Restrictive Covenant itself) is no doubt the reason for the quieter environment which Mrs Marchese has enjoyed since she built her home on the Marchese land.
(Page 28)101 Secondly, the Marchese land is directly across the road from a large girls' school, and Mrs Marchese's evidence was that she had experienced little disruption from the activities at the school, that school buses parked further along Moreing Road, and that she rarely heard the girls playing or activities when the school was open. That aspect of the surrounding environment also seems to me to be likely to have accounted for the tranquil environment that Mrs Marchese has enjoyed at her home to date.
102 Thirdly, as I have already explained at paragraph [63] above, the use of the restricted land in ways which do not contravene the Restrictive Covenant may result in a noisy environment. The existence of the Restrictive Covenant thus does not necessarily or inevitably result in a more tranquil environment, although I accept that it may contribute in part to a more tranquil environment, depending on its particular use.
103 Accordingly, while I accept that Mrs Marchese presently enjoys the benefit of a more tranquil environment which to a limited extent may be attributable to the absence of built form on the restricted land, I do not place great weight on this claimed benefit.
104 Mrs Marchese noted that the benefit of living next to a natural open area made her home unique, in that most of the surrounding homes were large homes located close to each other, and that the effect of the Restrictive Covenant was to give her home a prominent position within the streetscape. These elements also added to her enjoyment of the Marchese land. I accept Mrs Marchese's evidence, and I find that she presently enjoys a benefit from the Restrictive Covenant, as a result of the prominence and pleasing streetscape of her home being located next to the restricted land (the streetscape benefit).
The impact of the proposed improvements on Mr and Mrs Marchese's enjoyment of the benefits of the Restrictive Covenant
105 Mr and Mrs Marchese's case was that as a result of the proposed modification, they would suffer a substantial injury arising from the loss or diminution of the intangible benefits to which Mrs Marchese referred in her evidence. Before turning to consider the impact of each of the proposed improvements on the benefits enjoyed by Mrs Marchese. I note for completeness that there was a brief reference in Mrs Marchese's evidence to whether she considered that there would be a diminution in the value of her land if the proposed modifications were permitted. However, there was no expert evidence as to whether any diminution in value might occur, Mrs Marchese was unqualified to give such evidence herself, she accepted that her view was simply an estimate, and this
(Page 29)
- evidence was not referred to by her counsel. Accordingly, I have disregarded it.
106 There was also some evidence of negotiations between the parties prior to the commencement of the proceeding, to resolve their dispute as to whether the proposed modifications might be made. Counsel for Mr and Mrs Marchese objected to the admission of this evidence on the basis that it constituted evidence of without prejudice communications,45 and on the basis that it was irrelevant. It is unnecessary to reach any conclusion as to whether all of this evidence comprised communications conducted on a without prejudice basis, as I am of the view that the evidence is irrelevant to determining whether the proposed modifications should be permitted pursuant to s 129C(1)(c) or (a) of the TLA. Whether a person who enjoys the benefit of a restrictive covenant might be willing to consent to an improvement, and in what circumstances, is of no assistance to a court in determining whether that improvement would otherwise contravene the covenant, or whether the statutory criteria for the modification of the covenant have been met.
107 The proposed improvements which were the subject of the proposed modification were not sought as a package, but rather were individually pursued. It is therefore necessary to consider separately the impact of each of the proposed improvements on the benefits enjoyed by Mr and Mrs Marchese as a result of the Restrictive Covenant. (As I have already explained, it is not necessary to consider the fences and gates, and not possible to make any determination in relation to the underground water tank.)
(a) The pool, the decking and the stairs comprising part of the decking
108 It is convenient to deal first with the pool, the decking and the stairs which comprised part of the decking, as in large part these were the focus of Mrs Marchese's evidence.
109 It is apparent from the three dimensional model of the proposed improvements which was in evidence that the proposed improvements would be able to be seen from the balconies at the front of Mrs Marchese's home, from the kitchen window and from the window of Mrs Marchese's bedroom. Mrs Marchese's evidence was that if the Restricted Covenant was modified as proposed her view from the alfresco area of her home would overlook the swimming pool and the pool deck, rather than a
(Page 30)
- natural open space (which she considered was a much more pleasant view) and her home would be located next to built form rather than natural open space.
110 Mrs Marchese also gave evidence that her enjoyment of the Marchese land would be diminished because 'there would be noise and other intrusions into [her] privacy … as a result of the swimming pool and the pool deck being located directly below our alfresco area and my kitchen window. This would not provide the same level of tranquillity that a natural open space would provide'.46
111 Finally, Mrs Marchese expressed the view that the addition of a pool and pool deck in the restricted land would render the streetscape of her home less attractive and less unique in the area.
112 The pool and decking would constitute structures of a considerable dimension, the effect of which (having regard to the Further Plans) would be to fill a considerable portion of the restricted area with built form. I accept Mrs Marchese's evidence that she would not regard a view over the pool and decking as being as attractive as a view over an open (and not built up) area. I also accept Mrs Marchese's evidence that at least from her perspective, the construction of the pool and the decking in the restricted area would result in a less attractive streetscape.
113 I place less weight on Mrs Marchese's evidence that the noise from the pool and decking will result in a less tranquil environment. Although I accept that the existence of a pool (and the noise associated with people swimming in the pool and congregating on the decking near the pool) could, at times, result in greater noise for neighbours in the vicinity, if the restricted area were left completely open it could also be used (entirely consistently with the terms of the Restrictive Covenant) for activities which generate noise.
114 Counsel for Mr and Mrs Panton sought to challenge or undermine some of Mrs Marchese's claims as to the visual impact of the pool and decking, and submitted that parts of the Marchese land (Lots 1 and 2) no longer have any view into the restricted area because of the construction of Mr and Mrs Marchese's home, and of Mr and Mrs Panton's home. In my view, even if that is so, it does not alter the fact that Mrs Marchese still enjoys the benefits claimed from parts of the Marchese land.
(Page 31)
115 I am satisfied that the impact on the view over the restricted land from the Marchese land, and to a much lesser extent the impact on the aural amenity for the Marchese land, of the construction within the restricted land of a pool, decking and stairs which form part of the decking, will give rise to an injury of the kind contemplated by s 129C(1)(c), and that that injury would be one of real and present substance.
116 In my view, Mr and Mrs Panton have not established that the proposed modification - in so far as it pertains to the pool, the decking and the stairs which form part of the decking - will not substantially injure Mr and Mrs Marchese's enjoyment of the benefit of the Restrictive Covenant.
(b) The bin enclosure
117 Other than for her general evidence as to the benefits she derived from living adjacent to an area of open and natural space rather than built up form, Mrs Marchese's evidence did not specifically address how the construction of a bin enclosure in the restricted area would detract from those benefits.
118 There is nothing in the evidence which suggests that the approved plans for Mr and Mrs Panton's home include the construction of a bin enclosure outside the restricted area, but within the view of the Marchese land.
119 In contrast, if the proposed modification were made, the proposed location of the bin enclosure would mean that it would be clearly be visible from parts of the Marchese land, including from the balconies of Mr and Mrs Marchese's home and from the kitchen and bedroom windows. According to the Further Plans and the Schedule of Materials, the bin enclosure will be a substantial structure constructed of bricks and render.
120 I accept that that would detract from the benefit of the view over an area without built form which is presently enjoyed by Mr and Mrs Marchese so as to constitute a substantial injury to their enjoyment of the benefit of the Restrictive Covenant.
121 In my view, Mr and Mrs Panton have not established that the proposed modification - in relation to the bin enclosure - will not substantially injure Mr and Mrs Marchese's enjoyment of the benefit of the Restrictive Covenant.
(Page 32)(c) The driveway
122 Other than for her general evidence as to the benefits she derived from living adjacent to an area of open and natural space rather than built up form, Mrs Marchese's evidence did not specifically address how the construction of a driveway in the restricted area would detract from those benefits.
123 Mr and Mrs Marchese conceded that Mr and Mrs Panton should be permitted to construct a driveway in the restricted area, and that concession was not qualified by the material from which the driveway was constructed. However, Mr and Mrs Marchese objected to the driveway design proposed by Mr and Mrs Panton.
124 As I understood the evidence and the submissions, Mr and Mrs Marchese's preference was that the driveway be situated as close to the northern boundary of the Panton land, and that it be as narrow as possible, within planning requirements. There were, ultimately, three things in dispute in so far as the design of the driveway was concerned. First, the parties disagreed as to whether the driveway should run in a straight line parallel with the northern boundary of the restricted area but directly in front of the garage doors (as the Pantons' proposed) or whether it should have a 'dogleg' bend in it so as to be situated as close as possible to the northern boundary before turning in to align with the garage doors. Secondly, the parties disagreed as to the width of the driveway. The evidence was that the design proposed in the Further Plans was sufficiently wide to encompass adequate space for a turning circle inside the garage, so as to comply with the planning requirement that cars enter Moreing Road from the driveway in a forward motion rather than in reverse, and so that the width of the driveway was balanced with the width of the garage door. In contrast, the design to which Mr and Mrs Marchese were prepared to concede represented the minimum permissible width for a driveway. Thirdly, the parties differed as to the distance which the driveway should be set in from the northern boundary fence. Mr and Mrs Panton proposed a further half a metre over and above the minimum half a metre planning requirement, so as to avoid the driveway partly covering a manhole on the verge (which would in turn require that the manhole be covered with a trafficable cover, which they considered would be aesthetically undesirable). The effect of this difference in view was that the parties were at odds by approximately half a metre.
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125 Counsel for Mr and Mrs Panton submitted that the concession in relation to the driveway could be taken into account in determining whether the proposed modification would result in a substantial injury to Mr and Mrs Marchese's enjoyment of the benefits of the Restrictive Covenant, because wherever the driveway was located it would disrupt the amenity of open and natural space. Counsel for Mr and Mrs Marchese submitted that his clients' concession was gratuitous and went no further than its terms, so that if Mr and Mrs Panton sought a driveway in a different form than that conceded, they bore the onus of establishing that no substantial injury would arise from the modification of the Restrictive Covenant to permit that to occur. He submitted that it was not appropriate to have regard to the concession in determining if a substantial injury would occur, as that would deter parties to litigation from making sensible concessions in the interests of resolving litigation.
126 In determining whether a substantial injury would arise from the construction of the driveway it is necessary to start by considering the benefit conferred by the Restrictive Covenant at present. It was accepted by counsel for Mr and Mrs Marchese that it would be open to Mr and Mrs Panton, without contravening the Restrictive Covenant, to construct a driveway on the restricted area, for example by compacting the earth, or laying gravel, or even by placing concrete slabs on top of the ground. Because it would not constitute the erection of a structure on the land, there would be no limit on the width or location of any such driveway. Accordingly, in so far as Mrs Marchese's evidence supported the conclusion that she derives a benefit from looking at open space, rather than built form, that benefit does not amount to the benefit of not overlooking a driveway, or not overlooking a driveway constructed from concrete pavers, or not overlooking a driveway of a particular width or location within the restricted area.
127 When one looks at the driveway which is illustrated in the Further Plans and the Schedule of Materials, it is apparent that the difference between what is presently permitted under the Restrictive Covenant, and what is sought as a result of the proposed modification, would be very minor indeed. The key difference would be that the proposed modification would permit a driveway which was erected or constructed on the ground in a permanent fashion by pouring aggregate and concrete. In so far as the visual benefit to Mr and Mrs Marchese is concerned, it is not apparent how there would be any visible difference between what is now permitted, and what would be permitted if the Restrictive Covenant were modified. If there was a visible difference, it would in my view, be insignificant. In my view, such a difference would not amount to an
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- injury which could be said to be a 'substantial injury', in the sense of an injury which is real and has present substance.
128 Consequently, I am satisfied that Mr and Mrs Panton have established that the proposed modification, in so far as it would permit the construction of the driveway set out in the Further Plans and the Schedule of Materials, would not substantially injure Mr and Mrs Marchese in their enjoyment of the benefit of the Restrictive Covenant.
129 In these circumstances, it is unnecessary for me to consider the relevance of the evidence as to the concession Mr and Mrs Marchese offered in relation to the driveway.
(d) Planter boxes, mowing strips and fishponds
130 In her evidence, Mrs Marchese indicated that she did not object to landscaped garden beds within the restricted area but that she objected to retaining walls being built around those garden beds. Mrs Marchese was not specifically asked why she objected to the construction of such retaining walls but I infer from her evidence that she was concerned about what her visual amenity over the restricted land might be if Mr and Mrs Panton were, without any limitation, able to construct retaining walls within the restricted land.
131 Nothing in the Restrictive Covenant restricts Mr and Mrs Panton from planting garden beds and lawn within the restricted land (other than that any trees or vegetation which are grown must be less than the height limitation). On the contrary, to place landscaped garden beds and lawn in the restricted land would be entirely consistent with the terms of the Restrictive Covenant, and would enhance the ancillary visual benefits of open natural space which Mrs Marchese enjoys as a result of the Restrictive Covenant.
132 I turn then to consider the impact of the proposed modifications, in so far as they would permit planter boxes and retaining walls to be used in the construction of those garden beds, and in so far as they would permit mowing strips around the edges of any lawn, and fish ponds as part of the landscaping of the garden.
133 Given the slope of the restricted land, some retention of the land used for garden beds would appear to be necessary. That could be done, as is proposed, by using bricks and stone capping (so as to erect a 'structure', as is proposed). I infer that the retention of the garden beds could be achieved in some other way without erecting a structure, for example by
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- the build up of the soil and the placement of supports (such as rocks) to retain the soil. I am unable to see how there would be anything more than minor differences in the visual amenity of either approach. There was no suggestion that the construction of planter boxes or retaining walls would have any bearing on the other benefits derived by Mr and Mrs Marchese from the Restrictive Covenant (namely the benefit of a more tranquil environment, or the streetscape benefit).
134 I accept that Mrs Marchese's genuinely felt preference is for garden beds which are not retained by retaining walls. However, in my view, the difference between what is presently permitted under the Restrictive Covenant, and what would be permitted were the proposed modification to be made, cannot be described as having a real and present substance.
135 In so far as the proposed modification would permit a planter box to be constructed in the centre of an area of lawn, I am not persuaded that there would be any difference in the visual amenity of a planter box which is constructed and concreted into the ground (and which would therefore constitute a structure), and one which is purchased ready made and simply placed on the ground (and which would be permitted under the Restrictive Covenant in its present terms). The same conclusion can be reached in relation to the fishponds which are proposed as part of the proposed modifications.
136 In so far as the proposed amendments include mowing strips, these comprise a small amount of concrete kerbing which will facilitate a neat appearance at the edges of the lawn. To the extent that there would be any difference in the visual amenity of the lawn either way, such a difference would be very minor indeed.
137 None of these proposed modifications would have any bearing on the other aspects of the benefit derived by Mr and Mrs Marchese from the Restrictive Covenant (namely the benefit of a more tranquil environment, or the streetscape benefit).
138 I find that the proposed modification to permit the planter boxes, fish ponds and mowing strips would not give rise to a substantial injury to Mr and Mrs Marchese in relation to their enjoyment of the benefits of the Restrictive Covenant, because any injury they might suffer as a result of the modification would not be real and of present substance. In the alternative, any such injury (given the minor impact on the visual and other benefits enjoyed by Mr and Mrs Marchese) would appear to me to fall outside the 'limits of unreasonableness' referred to in the authorities
(Page 36)- and so would not constitute an 'injury' for the purposes of s 129C(1)(c) of the TLA.
139 I am satisfied that Mr and Mrs Panton have established that the proposed modification, in so far as it would permit the construction of planter boxes, mowing strips, and fish ponds, in the manner set out in the Further Plans and Schedule of Materials would not substantially injure Mr and Mrs Marchese in their enjoyment of the benefit of the Restrictive Covenant.
(e) The stairs
140 It remains to consider the proposed modification in so far as it concerns the stairway leading to the entry to Mr and Mrs Panton's home.
141 Other than for her general evidence as to the benefits she derived from living adjacent to an area of open and natural space rather than built up form, Mrs Marchese's evidence did not specifically address how the modification of the Restrictive Covenant so as to permit the construction of this stairway would detract from those benefits.
142 I start by noting that the approved plans for the home being constructed by Mr and Mrs Panton show that a set of stairs leading to the entry to the home are to be constructed entirely within the restricted area. It is apparent that that set of stairs will be fully visible from the Marchese land, and in particular from the balconies of Mrs Marchese's home and from the kitchen and bedroom windows. Accordingly, Mrs Marchese's view over the Panton land and into the restricted area will take in the staircase.
143 If the proposed modification were permitted, the difference would be that the staircase would extend into the restricted land by a short distance. (There was no evidence as to the precise length of that part of the staircase which would extend into the restricted land, but it comprised a total of approximately eight stairs, with a total height of 13 courses.) To the extent that this would detract from the visual amenity of the absence of built form in the restricted land in circumstances where a staircase, without the modification, would still be visible from the Marchese land, I am not persuaded that such a minor detraction would constitute an injury which could properly be described as having a real and present significance.
144 Accordingly, I find that Mr and Mrs Panton have established that the proposed modification, in so far as it would permit the construction of a
(Page 37)- staircase leading to the entry to the Pantons' home, in accordance with the Further Plans and Schedule of Materials, would not substantially injure Mr and Mrs Marchese in their enjoyment of the benefit of the Restrictive Covenant.
145 In summary, then, Mr and Mrs Panton have established the criteria set out in s 129C(1)(c) exist, so as to enliven the Court's discretion to permit the proposed modification in so far as it pertains to the construction of the driveway, the planter boxes, mowing strips and fishponds, and the staircase leading to the entry to the Pantons' home.
(iv) Whether the requirements of s 129C(1)(a) have been met in this case
146 It remains to consider whether Mr and Mrs Panton have established that the criteria set out in s 129C(1)(a) exist, so as to enliven the Court's discretion to permit the proposed modification in so far as it pertains to the pool, the decking and the stairs which form part of the decking, and the bin enclosure. It is possible to deal with this basis for the application rather more briefly.
147 Among the criteria which must be satisfied to enliven the Court's discretion under s 129(1)(a) of the TLA, Mr and Mrs Panton must establish that the continued existence of the restrictive covenant would impede the 'reasonable user' of the land and would not secure practical benefits to other persons.
148 In order to establish that the reasonable user of the land would not be impeded, it is not sufficient to show that the proposed modification would constitute a reasonable use of the land. Instead, an applicant for a modification of a restrictive covenant must demonstrate that no reasonable use of the land is possible unless the covenant is modified.47 It is not the reasonable use of the land by the present owner which is in issue, but the reasonable use which can be made of the land in the hands of any owner.48 This will require, amongst other things, consideration of the situation occupied by the land, to the surrounding property, and to the purpose of the covenant itself.49
149 It is also necessary to show that the continued existence of the covenant in its present form would not secure 'practical benefits' to other
(Page 38)- persons (ordinarily, the persons with the benefit of the restrictive covenant). The inclusion of this criterion makes clear that the provision is not designed to facilitate the use of land in the best interests of the community but to ensure the preservation of property rights.50 Depriving the person entitled to the benefit of the restrictive covenant of the amenities he or she reasonably enjoys as a result of the covenant deprives that person of a practical benefit.51 The 'benefits' referred to encompass the tangible and intangible benefits to which I referred at [86] above in discussing the ascertainment of an 'injury' to benefits enjoyed as a result of a restrictive covenant.52
150 The criteria in s 129(1)(a) are to be assessed having regard to the present use of the land in question, and (for the reasons I have given in [90] above) to the benefits presently afforded by the restrictive covenant (rather than solely by reference to those intended when the restrictive covenant was placed on the land).
151 Mr and Mrs Panton have not established that the continued existence of the Restrictive Covenant (in so far as it would prohibit the construction within the restricted land of the pool, pool decking and the stairs forming part of the pool decking, and the bin enclosure) would impede 'the reasonable user' of the Panton land. Although I accept that below ground swimming pools are common amongst the homes in the area surrounding the Panton land, and that the installation of a swimming pool, decking and stairs would constitute one reasonable use of the Panton land, it is clearly not the only reasonable use of the Panton land which is possible.
152 The evidence established that the Panton land has been, and will be, amply used for a reasonable use, namely the construction of a large home. Even the restricted land itself may clearly be put to a variety of reasonable uses (quite apart from a swimming pool, decking and stairs) such as for garden beds and lawned areas, without contravening the present terms of the Restrictive Covenant. In addition, the restricted land is not the only place within the Panton land where a below ground pool might be constructed. There was evidence that within the existing design for the Pantons' home, there was sufficient room at the rear of the Panton land for the installation of a pool.
(Page 39)153 There was some evidence that the location of the pool and the decking within the restricted land would be desirable for other reasons, such as that it would be exposed to less shade, and that it would be easier to supervise children using the pool from inside the home if the pool were located within the restricted land. In addition, Mrs Panton's evidence was that she and her family 'would love … an opportunity to sit on the front alfresco near the pool and enjoy the view of the Swan River and Perth City in the summer months'.53 However, those considerations are entirely referable to the fact that the precise location of the home on the Panton land, and its design, were decisions made by Mr and Mrs Panton in the knowledge that the existence of the Restrictive Covenant meant that a pool and decking could not be constructed on the restricted land.
154 As for the bin enclosure, there was no evidence to establish that the continued existence of the Restrictive Covenant without modification to permit the erection of a bin enclosure would impede the reasonable user of the Panton land.
155 Mr and Mrs Panton have also not established that the continued existence of the Restrictive Covenant would not secure 'practical benefits' to other persons, such as Mr and Mrs Marchese. For the reasons I have given in paragraphs [103] – [104] above, the Restrictive Covenant gives rise to practical benefits to Mr and Mrs Marchese of the kind contemplated by s 129C(1)(a) of the TLA. Those practical benefits are not confined to the view from the Marchese land to the Swan River and the Perth City skyline, but extend to the visual amenity arising from the absence of built form in the restricted area, the streetscape benefit, and (to a lesser degree) the more tranquil environment that may arise as a result of the absence of built form on the restricted land.
156 In so far as the application relied upon s 129C(1)(a) of the TLA to permit the proposed modification so as to enable the erection of the pool, pool decking and the stairs forming part of the decking, and the bin enclosure, the application fails.
(v) Whether the proposed modification should be permitted in the exercise of the Court's discretion
157 Counsel for Mr and Mrs Marchese submitted that even if I was satisfied that the discretion to modify the Restrictive Covenant was enlivened, I should nevertheless exercise that discretion to refuse the proposed modification. The basis for that submission was that Mr and
(Page 40)
- Mrs Panton purchased the Panton land, and began the construction of their residence, in the knowledge of the operation of the Restrictive Covenant, and that they consciously assumed the risk of the consequences of not being able to modify the Restrictive Covenant. It was submitted that Mr and Mrs Panton now asked the Court to relieve them of the burden of those decisions.
158 There are numerous observations in the authorities to the effect that the exercise of the discretion to modify an easement or restrictive covenant under equivalent provisions to s 129C of the TLA should be approached with some caution, given that what is being sought by a modification of a restrictive covenant constitutes the diminution of a property right vested in the owner of the dominant tenement.54 And there have been occasions when a court has refused a modification even where an applicant has established the statutory criteria which enliven the court's discretion.55 While there can be no doubt that the exercise of the discretion should be approached cautiously, that caution does not warrant the discretion being so conservatively exercised as to render it nugatory.56 An approach of that kind would seem to me to be contrary to the intention of the Parliament in enacting s 129C of the TLA in the first place.
159 Although Mr and Mrs Panton purchased the Panton land with knowledge of the Restrictive Covenant, that fact is hardly unusual. Applications for modification of a restrictive covenant are commonly made by persons who have purchased land knowing of the existence of the covenant, and who later seek to use the land for some activity which is prohibited by the covenant.
160 It is also the case that Mr and Mrs Panton have commenced building a home on the Panton land without first making the present application. However, this is not a case involving applicants who have acted in contravention of a restrictive covenant and then sought its modification to avoid the consequences of that contravention. On the contrary, the evidence established that the home being constructed by Mr and Mrs Panton is located entirely outside the restricted land. Mr and Mrs Panton have therefore done nothing more nor less than what s 129C of the TLA permits them to do, which is to make an application to modify
(Page 41)
- the Restrictive Covenant so that the restricted land may be put to a different use than that which is presently permitted.
161 I am not persuaded that anything in the circumstances of this case warrants the exercise of the discretion under s 129C(1)(c) so as to refuse the application for the proposed modification.
Conclusion and Orders
162 In summary, I have reached the following conclusions. The construction of the fences and gates which form part of the proposed improvements would not contravene the terms of the Restrictive Covenant as it presently stands. Having regard to the evidence, it is not possible to make any finding in relation to the underground water tanks referred to as part of the proposed improvements. All of the remaining proposed improvements would constitute structures erected on the restricted land, and would therefore be contrary to the terms of the Restrictive Covenant.
163 Mr and Mrs Panton have established that the proposed modification - so as to permit the erection of a driveway, planter boxes, mowing strips, fishponds and a staircase leading to the entry to Mr and Mrs Panton's home, as set out in the Further Plans and the Schedule of Materials - would not substantially injure Mr and Mrs Marchese in their enjoyment of the benefits of the Restrictive Covenant. In the exercise of my discretion the Restrictive Covenant should be modified, pursuant to s 129C(1)(c) of the TLA, to permit those proposed improvements to be made. The application by Mr and Mrs Panton to modify the Restrictive Covenant should otherwise be dismissed.
164 To avoid any doubt as to what is permitted by the modification of the Restrictive Covenant, the appropriate course appears to be to order that the terms of the Restrictive Covenant be modified by including a list of permitted improvements, which are detailed in a copy of plans and specifications for their construction. However, the Further Plans and the Schedule of Materials which were in evidence refer to all of the proposed improvements. It will therefore be necessary to modify the terms of the Further Plans and the Schedule of Materials so that they pertain only to those improvements which are to be permitted by the proposed modification of the Restrictive Covenant.
165 I will hear from counsel as to the orders which should be made to reflect these reasons.
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Annexure 1 – Restrictive Covenant
(Page 43)
(Page 44)
(Page 45)
Annexure 2 - The form of the orders sought by Mr and Mrs Panton
Alternative A
Minute of Proposed Orders - Alternative A proposes that the Restrictive Covenant be amended by modifying the text set out within the transfer in the following way:
'… William Maurice Barry and Olive Gertrude Barry and their successors in title will not erect any structure
The Minute also proposes that the text within the annexure to the transfer be modified in the following way:
'Restrictions over Ha
1. No structure with the exception of a 2m high fence is to be erected in excess of a height of 2m on the land shown hatchured.
2. No trees or vegetation is to be allowed above RL 27.18m AHD on the land shown hatchured.
Note: The above level is on Australian Height Datum and is related to a datum of RL 2.418 m for Lands and Surveys SSM Melville 20.'
Minute of Proposed Orders - Alternative B proposes, in effect, that the text of the Restrictive Covenant as it appears in the transfer remain unchanged, but that an additional paragraph be added to that text in the following terms:
'By order made by her Honour Justice Pritchard … it is declared that, notwithstanding the terms of the [Restrictive Covenant] STEVEN JEREMY PANTON and ROSALINDA PANTON … on behalf of themselves and their successors in title as the owner or owners for the time being of that part of Lot 236 … as is hachured blue on the plan annexed hereto or any part or parts thereof be entitled to construct, maintain and keep in good repair the works
- depicted on the further plan annexed hereto and marked "Further Plan" (being a plan of the blue hachured area) namely:
(a) a driveway;
(b) decking;
(c) stairs;
(d) planter boxes;
(e) mowing strips;
(f) bin enclosure;
(g) below ground pool;
(h) fences and gates;
(i) fish ponds;
(j) underground water tank (Declared Works).'
- It is also proposed that the text set out in the annexure to the transfer be modified in the following manner:
'Restrictions over Ha
1. No structure with the exception of a 2m high fence and the Declared Works areis to be erected on the land shown hatchured.
2. No trees or vegetation is to be allowed above RL 27.18m AHD on the land shown hatchured.
Note: The above level is on Australian Height Datum and is related to a datum of RL 2.418 m for Lands and Surveys SSM Melville 20.'
Alternative C
Minute of Proposed Orders - Alternative C proposes, in effect, that the text of the Restrictive Covenant as it appears in the transfer remain
- unchanged, but that an additional paragraph be added to that text in the following terms:
'By order made by her Honour Justice Pritchard … it is declared that, notwithstanding the terms of the [Restrictive Covenant] STEVEN JEREMY PANTON and ROSALINDA PANTON … on behalf of themselves and their successors in title as the owner or owners for the time being of that part of Lot 236 … as is hachured blue on the plan annexed hereto or any part or parts of their of be entitled to construct, maintain and keep in good repair the works depicted on the further plan annexed hereto and marked "Further Plan" (being a plan of the blue hachured area) in accordance with the Schedule of Mode and Materials annexed hereto and marked "Schedule of Mode and Materials" namely:
(a) a driveway;
(b) decking;
(c) stairs;
(d) planter boxes;
(e) mowing strips;
(f) bin enclosure;
(g) below ground pool;
(h) fences and gates;
(i) fish ponds;
(j) underground water tank (Declared Works).'
It is also proposed that the text set out in the annexure to the transfer be modified in the following manner:
'Restrictions over Ha
1. No structure with the exception of a 2m high fence and the Declared Works areis to be erected on the land shown hatchured.
2. No trees or vegetation is to be allowed above RL 27.18m AHD on the land shown hatchured.
- Note: The above level is on Australian Height Datum and is related to a datum of RL 2.418 m for Lands and Surveys SSM Melville 20.'
- It is also proposed that there should be annexed a copy of the Further Plan which will depict the proposed improvements, and a Schedule of Materials and Mode of Construction57 which sets out the mode of construction, and the materials to be used, for each of the proposed improvements.
1 Historically Lot 236 and now Lot 801 on Deposited Plan 28111, being the whole of the land in Certificate of Title Volume 2575 Folio 698.
2 Historically Lots 237 and 238 and now Survey Strata Plan 46838 Lots 1 - 4, being the whole of the land in Certificates of Title Volume 2594 Folios 380 - 383.
3 Transfer number B131919.
4 The lots in the Survey Strata Plan retain the benefit of the Restrictive Covenant: see s 47 of the Property Law Act 1969 (WA).
5 The Further Plans and the Schedule of Materials formed Exhibit N, and were attachments AM6 and AM7 to the further affidavit of Allan James Nichol MacDonald sworn 2 August 2012.
6 Exhibit B and C and the further affidavit of Justin Peter Walford sworn 3 August 2012 and the attachments thereto.
7 See the attachments to affidavits sworn by Ms Rebecca Anne Somerford on 13 August 2012 and 14 September 2012.
8 See Rolls v Miller(1884) 27 Ch D 71, 84 (Cotton LJ).
9Westfield Management Ltd v Perpetual Trustee Co Ltd[2007] HCA 45; (2007) 233 CLR 528, 539 [37], [39] (the Court); Kitching v Phillips(2011) 278 ALR 551 [61] (Murphy JA, Pullin & Newnes JJA agreeing); see also Miller v Evans[2010] WASC 127 [15] (Hall J); Fermora Pty Ltd v Kelvedon Pty Ltd[2011] WASC 281 [32] (Edelman J).
10WestfieldManagement Ltd v Perpetual Trustee Co Ltd[2007] HCA 45; (2007) 233 CLR 528 [44]; FermoraPty Ltd v Kelvedon Pty Ltd[2011] WASC 281 [32] (Edelman J).
11Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 [16] (Handley JA).
12 See the observations of Fryberg J in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9 [48] - [49].
13 ts 19/10/2012, page 175.
14Prowse v Johnstone[2012] VSC 4 [52] (Cavanough J).
15Prowse v Johnstone [2012] VSC 4 [52] (Cavanough J).
16Macquarie Dictionary (Revised Third Edition, 2001).
17Macquarie Dictionary (Revised Third Edition, 2001).
18Macquarie Dictionary (Revised Third Edition, 2001).
19 cf Subiaco Municipal Council v Walmsley(1930) 32 WALR 49, 56 - 57 (Dwyer J) where a similar conclusion was reached in relation to the meaning of 'erect' albeit in a somewhat different context
20Macquarie Dictionary (Revised Third Edition, 2001).
21 See, generally, the discussion in AJ Bradbrook and SV MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (3rd ed, 2011) Chapter 18.
22 cf Subiaco Municipal Council v Walmsley(1930) 32 WALR 49, 56 - 57 (Dwyer J) in relation to the meaning of the word 'erect'. A similar construction was reached in relation to the word 'structure', albeit in the different context of the definition of 'building' in the Copyright Act 1968 (Cth), in Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd (t/as Viking Swimming Pools and Spas)(1998) 124 NTR 1, 6 (Mildren J); see also O'Brien v Shire of Rosedale(1968) 22 LGRA 262, 267 (Gillard J).
23 Counsel submitted that there are existing boundary fences on the neighbouring properties abutting the Panton land, however I have not taken this into account. It is arguably an impermissible extrinsic source, and in any event, there may come a time in the future when the boundary fences require replacement, and in that event it is appropriate to consider how the Restrictive Covenant would operate.
24Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd(1996) 141 ALR 687, 699 (French J, Einfeld J agreeing).
25 cf Tulk v Moxhay(1848) 41 ER 1143.
26Kort Pty Ltd v Shaw[1983] WAR 113, 114 (Burt CJ).
27Tujilo v Watts[2005] NSWSC 209 [36] (Campbell J).
28Kort Pty Ltd v Shaw[1983] WAR 113, 115 (Burt CJ), Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd(2000) 23 WAR 1 [100] (Hasluck J), Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025[2002] WASC 255 [44] (Hasluck J).
29Hoy v Allerton(2002) Q ConvR 54-559 [29] - [30] (Atkinson J).
30 See, for example, Re Lewis[1959] NZLR 1040.
31Oleander Nominees Pty Ltd and Ors v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 [49] (Hasluck J), Webster v Bradac(1993) 5 BPR 12,032, 12,035 (McLelland J), Mogensen v Portuland Developments Pty Ltd(1983) NSW ConvR 55-116, 56,856 (McLelland J).
32Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025[2002] WASC 255 [49] (Hasluck J), Re Mason and the Conveyancing Act(1960) 78 WN (NSW) 925, 928 (Jacobs J), Smyth v Brisbane City Council[2007] QSC 30 [29] (Fryberg J), Averono v Mbuzi [2005] QCA 295 [26] (Keane JA), Hoy v Allerton(2002) Q ConvR 54-559 [31] (Atkinson J), Hilldon Pty Ltd v JY Building Material and Construction Pty Ltd[2007] QSC 301 [14] (Hilldon J).
33Greenwood v Burrows(1992) V ConvR 54-444, 65,199 (Eames J).
34Webster v Bradac(1993) 5 BPR 12,032, 12,035 (McLelland J), Mogensen v Portuland Developments Pty Ltd(1983) NSW ConvR 55-116, 56,856 (McLelland J), Re Parimax (SA) Pty Ltd[1956] SR (NSW) 130, 133 (Myers J), Heaton v Loblay(1960) SR (NSW) 332, 336 (Myers J), Re Chamberlain and the Conveyancing Act(1969) 90 WN (Pt 1) (NSW) 585, 593 - 594.
35Heaton v Loblay(1960) 60 SR (NSW) 332, 335 (Myers J), Re Cook [1964] VR 808, 810 (Gillard J); Mogensen v Portuland Developments Pty Ltd(1983) NSW ConvR 55-116, 56,856 (McLelland J), Re Longo Investments Pty Ltd(2003) V ConvR 54-675 [18], Re Milbex Pty Ltd(2007) V ConvR 54-726 [13], Fraser v Di Paolo(2008) V ConvR 54-751, Vrakas v Registrar of Titles[2008] VSC 281 [35] (Kyrou J).
36Vrakas v Registrar of Titles[2008] VSC 281 [35] (Kyrou J), Re Cook[1964] VR 808, 810 - 811 (Gillard J), Fraser v Di Paolo (2008) V ConvR 54-751 [36] (Coughlan J).
37Re Callanan and Conveyancing Act [1970] 2 NSWR 127 (Helsham J).
38 Re Callanan and Conveyancing Act [1970] 2 NSWR 127, 132 (Helsham J).
39Re Callanan and Conveyancing Act [1970] 2 NSWR 127, 132 (Helsham J).
40Burns v Araghi [2006] NSWSC 687 [9] - [10] (Windeyer J), Re Cook[1964] VR 808, 810 - 811 (Gillard J).
41Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624, 640 (McHugh J).
42Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025[2002] WASC 255 [25].
43Westfield Management Ltd v Perpetual Trustee Co Ltd[2007] HCA 45; (2007) 233 CLR 528, 539 [39] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
44 See the discussion in Tujilo v Watts[2005] NSWSC 209 [39] - [40], [86] - [89] (Campbell J).
45 See the discussion of the protection afforded to without privilege communications in Pihiga Pty Ltd v Roche (2011) 278 ALR 209, 221 - 227.
46 Exhibit I [60(a)].
47Heaton v Loblay(1960) SR (NSW) 332, 335 (Myers J); Lolakis v Konitsas[2002] NSWSC 889 [50] (Campbell J), Vrakas v Registrar of Titles[2008] VSC 281 [29] (Kyrou J), Prowse v Johnstone[2012] VSC 4 [97] - [98] (Cavanagh J).
48Heaton v Loblay (1960) 60 SR (NSW) 332, 335 (Myers J).
49Re Ghey and Galton's Application [1957] 2 QB 650, 663 (Lord Evershed MR), Smith v Australian Real Estate and Investment Co Ltd[1964] WAR 163, 166 (Negus J).
50Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025[2002] WASC 255 [33] (Hasluck J); Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd(2000) 23 WAR 1 [102] (Hasluck J).
51Re Robinson[1972] VR 278, 283 (Adams J).
52 See also Kort Pty Ltd v Shaw [1983] WAR 113, 115 (Burt CJ).
53 Exhibit F [108].
54 See for example Averono v Mbuzi[2005] QCA 295 [19] (Keane JA); see also Smith v Australian Real Estate and Investment Co Ltd[1964] WAR 163, 167 (Negus J); Oleander Nominees Pty Ltd v Owners of Lakeside Village Strata Plan 14025[2002] WASC 255 [34] (Hasluck J), Re Henderson's Conveyance[1940] 1 Ch 835, 846 (Farwell J).
55 See, for example, Perth Construction Pty Ltd v Mount Lawley(1955) 57 WALR 41.
56 cf Stanhill Pty Ltd v Jackson(2005) 12 VR 224, Re Milbex Pty Ltd(2007) V ConvR 54-726, Hillman v Dissanayake(2008) V ConvR 54-745, Fraser v Di Paolo(2008) V ConvR 54-751.
57 Exhibit N.
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