(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation."
25 In relation to par (a), the application was made only under the first limb, that the restriction ought be deemed obsolete. The meaning of "obsolete" was discussed in the Court of Appeal in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd supra. There is a recent collection of the relevant authorities by Campbell J in Lolakis v Konitsas supra. This is a perfectly ordinary English word. It was said by Jacobs J, when a Judge of this Court, in Re Mason (1960) 78 WN (NSW) 925 at 927, in the context of this section, to mean that "the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose." This seems to me to be both its ordinary meaning in the context and the meaning which, on authority, ought be adopted.
26 As to the application under par (c), if the covenant can be modified, but so that its original purpose may be met, a case for modification may be made out. If something can be done under the covenant, which would have as serious an effect on the property benefited as that which is sought to be restrained, then it may be that a case for modification is also made out. The test was stated by Jacobs J as follows in Re Mason supra at 928:
"… the applicant is entitled to approach the matter by taking, as it were, the worst that could be done under the restrictions imposed by the covenant and to compare that with the effect that the proposed block of home units would have…"
27 The injury referred to in par (c) may be financial, as by a diminution in the value of the property benefited, but an injury may also be constituted by a detriment to that property which cannot be measured in monetary terms. In Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116 at 56,856 McLelland J (as his Honour then was) said:
"In this context 'substantially' connotes injury which has substance in the sense of being real or appreciable ( Re Mason (1960) 78 WN (NSW) 925 at p 928). The kind of injury contemplated in the section is injury to the relevant person in relation to his ownership of (or interest in) the land benefited. The injury may be of an economic kind, eg, reduction in the value of the land benefited, or of a physical kind, eg, subjection to noise or traffic, or of an intangible kind, eg, impairment of views, intrusion upon privacy, unsightliness, or alteration to the character or ambience of the neighbourhood. These arbitrary categories, while serving to illustrate the ambit of the concept of injury for the purposes of the section, are neither mutually exclusive nor necessarily exhaustive, and what I have described as injuries of a physical or intangible kind could well also affect the value of the land in question. However it is clear that a person may be 'substantially injured' within the meaning of sec 89(1)(c) notwithstanding that the value of his land would be unaffected or even increased by the proposed modification (see Re Parimax SA Pty Ltd (1956) SR (NSW) 130 at p 133, Heaton v Loblay (1960) SR (NSW) 332 at pp 335 - 336, Re Cook (1964) VR 808 at p 810 and Re Robinson (1972) VR 278 at pp 283 - 284)."
28 In case of either par (a) or par (c), the onus is upon the applicant for modification to establish that a case for modification is made out. If the onus of showing a case is not made out, the application cannot succeed. Even if a case for modification is made out, the court retains a discretion to refuse the modification: Pieper v Edwards [1982] 1 NSWLR 336; and see generally Bradbrook and Neave [19.62] and [19.64].
ISSUE 1: WHETHER THE RESTRICTION CONTAINED IN THE COVENANT IS AMBIGUOUS AND THEREFORE UNENFORCEABLE
29 In the end, the submission appeared to be that the covenant is a height control covenant and, as the height of a storey is variable, the height to which building is limited is not clearly established. An alternative argument is that, on a sloping site, it is impossible to determine how many storeys in height a building is: see the US case of Hiner v Hoffman supra. However, in Kirby v Esplin supra, whilst Bryson J thought such a covenant "a curious and roundabout way" of protecting views, his Honour did not appear to regard the covenant as uncertain for either of these reasons. I take the same view. Whatever the motive, the limitation is to two storeys and the covenant operates according to its terms. The lack of definition of a particular height does not render it uncertain. The sloping nature of the site may make the determination of fact as to whether a building is more than two storeys in height a more difficult one (the judgment will have to be made in respect of a particular building), but it does not render it impossible. I bear in mind the Court's duty to endeavour to uphold the provision. I shall return to the issue of where the height is to be measured from in [30] below, but the covenant is not void for uncertainty and is enforceable.
ISSUE 2: WHETHER THE RESTRICTION THAT THE BUILDING SHALL NOT BE MORE THAN TWO STOREYS IN HEIGHT MEANS THAT THE BUILDING SHALL NOT BE MORE THAN TWO STOREYS IN HEIGHT ABOVE NATURAL GROUND LEVEL
30 In my view the restriction means that no part of the building shall rise from the ground in the vertical plane for a distance of more than two storeys, in the words of Glass JA cited above. The ground referred to is the ground where the building stands, whether it be at the highest or lowest point of the land. This was the meaning attributed to the similar restriction by Bryson J in Kirby v Esplin supra. See also the US authority of Clark v Wodehouse 669 P2d 170 (1983). In my view it is the meaning to be attributed to the restriction in the context of this case. The Ferellas have contended that the ground means the ground at the highest point of the property. They say that the expression is ambiguous and that the rule of construction that they have espoused, that in case of doubt the construction should be in favour of the burdened landowner, means that the restriction should be construed in this way. In my view, there is no ambiguity. The meaning that I have stated is clear. The meaning that the base point of measurement should be the highest point of the property is fanciful and not open on the ordinary meaning of the words in the context of the restriction, the nature of the properties the subject of the building scheme and the obvious purpose of the restriction to limit height to preserve views. There is no need to turn to the rule of last resort. If there were such a need, the applicable rule is not as propounded by the Ferellas, but as I have stated in [21] above. The application of that rule would, if there were an ambiguity, resolve the matter in favour of the meaning that I have stated.
ISSUE 3: WHETHER THE DEVELOPMENT IS IN BREACH OF THE COVENANT AS SO CONSTRUED
31 In view of my construction of the covenant and the nature of the development as stated in [12] above, in my view it is clear that the development is in breach of the covenant. The building is more than two storeys in height. It contains four storeys superimposed on each other. The portion of the building which contains four storeys rises from the ground at that point in the vertical plane for four storeys, or certainly for more than three storeys, which is undoubtedly more than two storeys. The construction of this development would be in breach of the covenant.
ISSUE 4: WHETHER THE COVENANT OUGHT BE MODIFIED PURSUANT TO s 89(1) OF THE CA.
32 As to their application under s 89(1)(a) of the CA, the Ferellas have relied strongly, in support of the proposition that the covenant is obsolete, on changes in the neighbourhood, which photographs and other evidence show have occurred since 1955. However, this, in general terms, is little to the point. It is clear that the view from the Otvosi property has suffered a substantial invasion by the construction of the building on the Symonds property. However, the evidence of the expert witnesses is agreed that there will be a considerably greater invasion of the view by the construction of the development. This is confirmed by the view on site. The long and short of the matter is that there are still very extensive views from the Otvosi property and that they may be substantially interfered with by a building which breaches the restrictive covenant over the Ferella land. In these circumstances, it appears to me quite impossible to say that the restriction ought be deemed obsolete or that it does not secure practical benefit to the persons entitled to the benefit of the restriction. In those circumstances, no ground for modification under par (a) is made out.
33 So far as par (c) is concerned, it is put that the proposed modification will not substantially injure the Otvosis. This is on the basis that the Ferellas could erect a building in the form of the development, but with the rooms that constitute the first and second storeys of the development deleted. This, they say, could be done by their seeking a variation of the development consent to permit them to erect a building with the same envelope, but with the first and second floors suppressed and replaced by either a void within the external walls which contain those storeys or the filling of the space behind those walls. Alternatively, the top two storeys in their present form could be suspended in the air supported upon piers or columns of the appropriate height. The height of those piers or columns would be the same as the height of the two suppressed storeys, so that the proposed building would be of the same height as the present undoubtedly four storey building.
34 There are a number of objections to this proposal. The first is that a case is not made out that the erection of such a building is possible: it is not established that the Council would give consent to such a building. It must be borne in mind that the development was permitted by the Council in a context where it was not accepted that the existence of the covenant had been established. Presumably, on an application now made, its existence could easily be established: its existence and effectiveness have been decided by this Court. But, quite apart from that, expert opinion differs as to whether consent would be given. Mr Neustein, called for the Ferellas, says that in his opinion it would be approved. Mr Ingham, called for the Otvosis, expressed the gravest doubts that it would be approved. In general terms I prefer the evidence of Mr Ingham to that of Mr Neustein where they conflict, because it was given in a more measured, professional and apparently impartial way. Even if I did not have this preference, and the opinions are simply regarded as the opinions of two knowledgeable experts, which cannot be chosen between, the Ferellas, bearing the onus, would not have made out that this form of development would be consented to. Even if the Council were prepared to consent to it, the question would arise, in respect of such a building, as to whether it exceeded two storeys in height and therefore breached the covenant. There would be a substantial case that it was a building that "contained" only two storeys. However, as I have already observed, the piers or other structure on which the two storeys would need to be supported would themselves be of the height of approximately two storeys of the proposed building. In my view the building would retain the characterisation of being about four storeys in height, which is the correct characterisation of the development. In other words, such a building might contain only two storeys, but would be more than two storeys in height.
35 No other concrete proposal was put forward as to a building that might be built which would be as bad as the development in the relevant regard: cf Kirby v Esplin supra, where there were a number of firm alternative plans. In these circumstances it has not been established that the worst that could be done in compliance with the covenant would be as bad as the development. No case is made out under paragraph (c) of s 89(1).
36 The covenant will therefore not be modified by the Court.
ISSUE 5: WHETHER DISCRETIONARY CONSIDERATIONS SHOULD PRECLUDE THE GRANTING OF INJUNCTIVE RELIEF
37 Nothing more need be said concerning the considerations put forward in submissions by the Ferellas going to the discretion to grant injunctive relief than that, whether taken separately or together, those considerations do not justify the refusal of relief.
CONCLUSION
38 The Otvosis are therefore entitled to an injunction restraining the construction of the development. I shall appoint a time for short minutes to be brought in to give effect to my decision. Any question as to costs may be raised at that time.