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Pearson v Richardson

Pearson v Richardson

Case [2012] TASSC 71 24 October 2012

Restrictive Covenants

Extinguishment or Modification of Covenants

Statutory Interpretation

Planning & Development Law

Property Law

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[2012] TASSC 71

COURT: SUPREME COURT OF TASMANIA

CITATION: Pearson v Richardson [2012] TASSC 71

PARTIES:  PEARSON, Andrew Martin
  PEARSON, Louise Jane
  v
  RICHARDSON, Tony Leigh
  LUTWYCHE, Leanne Maree
  THE RECORDER of TITLES

FILE NO:  799/2011
DELIVERED ON:  24 October 2012
DELIVERED AT:  Hobart
HEARING DATE:  21 March 2012
JUDGMENT OF:  Porter J

CATCHWORDS:

Real Property – Restrictive covenants – Proceedings to discharge, extinguish or modify restriction or easement – Statutory removal and interpretation – Tasmania – Extinguishment or modification where restrictive covenant would impede a user of land in accordance with a planning scheme – Whether "in accordance with a planning scheme" means with the bare terms of a scheme or extends to approvals and permits given or granted under it – Provision not confined to general types of user but extends to specific characteristics of the particular user.

Conveyancing and Law of Property Act 1884 (Tas), s84C(1)(b).
Aust Dig Real Property [1521]

Real Property – Restrictive covenants – Proceedings to discharge, extinguish or modify restriction or easement – Restriction obsolete or reasonable user of land impeded – Covenant restricting subdivision or development of servient land into more than four lots and restricting buildings to one single dwelling or stratum flat per lot – Approval for 10 lot subdivision – Changes in character of neighbourhood by way of other dense subdivisional development – Restrictive covenant capable of fulfilling its original objects at least in part – Restrictive covenant not obsolete.

Conveyancing and Law of Property Act 1884 (Tas), s84C(1)(a).
Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; Vrakas v Registrar of Titles [2008] VSC 281, applied.
Aust Dig Real Property [1521]

Real Property – Restrictive covenants – Proceedings to discharge, extinguish or modify restriction or easement – Extinguishment or modification permitted where it would not injure the persons entitled to the benefit of the restrictive covenant – Covenant restricting subdivision or development of servient land into more than four lots and restricting buildings to one single dwelling or stratum flat per lot – Approval for 10 lot subdivision – Changes in character of neighbourhood by way of other dense subdivisional development – Dominant lands provide a buffer of undeveloped land between servient lands and existing subdivision – Not established that the extinguishment will not injure the persons entitled to the benefit of it.

Conveyancing and Law of Property Act 1884 (Tas), s84C(1)(e)
Vrakas v Registrar of Titles [2008] VSC 281; Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743, applied.
Aust Dig Real Property [1521]

REPRESENTATION:

Counsel:
             Appellants:  P L Jackson
             Respondents:  D J Barclay
             Recorder of Titles  No appearance
Solicitors:
             Appellants:  Darrell Grey
             Respondents:  Page Seager
             Recorder of Titles  Director of Public Prosecutions

Judgment Number: [2012] TASSC 71
Number of paragraphs: 109

Serial No 71/2012
File No 799/2011

ANDREW MARTIN PEARSON and LOUISE JANE PEARSON
v TONY LEIGH RICHARDSON, LEANNE MAREE LUTWYCHE
and THE RECORDER of TITLES

REASONS FOR JUDGMENT PORTER J

24 October 2012

Introduction

This is an appeal from a decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearson v Richardson

Details

AGLC: Pearson v Richardson [2012] TASSC 71
Case: [2012] TASSC 71
Decision Date: 24 October 2012

CaseChat Overview and Summary

The case of Pearson v Richardson involved a dispute over the interpretation and potential extinguishment of a restrictive covenant affecting a property in Tasmania. The appellant, Pearson, sought to discharge or modify a covenant which restricted the use of his land. The respondent, Richardson, argued that the covenant should remain in place as it was consistent with the local planning scheme. The matter was heard in the Supreme Court of Tasmania, which had to determine the scope of the statutory provision that allowed for the removal or modification of restrictive covenants that impeded the user of land in accordance with a planning scheme.

The primary legal issue before the court was the interpretation of the phrase "in accordance with a planning scheme" as used in the relevant statutory provision. Specifically, the court needed to decide whether this phrase was limited to the general terms of the planning scheme, or if it also encompassed approvals and permits issued under the scheme. The court was also required to consider whether the provision applied only to general types of land use or if it extended to specific characteristics of the particular user of the land.

The court held that the phrase "in accordance with a planning scheme" was not limited to the bare terms of the planning scheme itself but also included the approvals and permits issued under it. This interpretation was necessary to give effect to the purpose of the statutory provision, which was to facilitate the reasonable use of land. The court found that the provision extended to specific characteristics of the land use, meaning that even if a general type of land use was permitted under the planning scheme, additional restrictions could still apply if they were necessary to protect the interests of neighbouring properties. The court concluded that the restrictive covenant in question did not impede the user of the land in accordance with the planning scheme and thus could not be discharged or modified.

As a result of the court's reasoning and findings, the appeal was dismissed, and the restrictive covenant remained in place. The court's decision emphasised the importance of considering both the general terms of a planning scheme and any specific approvals or permits issued under it when determining whether a restrictive covenant could be discharged or modified. The ruling also highlighted that the statutory provision applied not only to general types of land use but also to specific characteristics of the particular user of the land.

Orders