Levi & Anor v Spicer

CITATION : Levi & Anor v Spicer [2003] NSWSC 183 HEARING DATE(S) : 19 March, 2003 JUDGMENT DATE : 20 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Appeal dismissed.

CATCHWORDS : REAL PROPERTY - RESTRICTIVE COVENANT - MODIFICATION - Appeal from Master's decision dismissing application to modify restrictive covenant - breaches of covenant on other lots in subdivision relied on - Master decides that proposed structure would diminish remaining attractiveness of streetscape in subdivision - importance of streetscape as distinct consideration - whether diminution of attractiveness in streetscape would be substantial injury to persons having benefit of covenant. - HELD: No error of fact or principle shown in Master's judgment. LEGISLATION CITED : Conveyancing Act 1919 (NSW) - s.89(1)(c) - Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 CASES CITED : - House v The King (1936) 55 CLR 499 - Webster v Bradac (1993) 5 BPR 12,032 Michael John Levi - First named Plaintiff/Appellant PARTIES : Veronica Anne Levi - Second named Plaintiff/Appellant Dorothy Margaret Spicer - Defendant/Respondent FILE NUMBER(S) : SC 3132/02 COUNSEL : M.A. Bradford - Plaintiffs/Appellants M.J. Gorrick - Defendant/Respondent SOLICITORS : Marina Voncina - Plaintiffs/Appellants Marsdens Law Group - Defendant/Respondent

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT 2417/00 FILE NUMBER(S) : LOWER COURT Master Macready JUDICIAL OFFICER :

1 This is an appeal from a judgment of Master Macready refusing the Appellants' application under s.89(1)(c) of the Conveyancing Act 1919 (NSW) for the modification of a restrictive covenant affecting their land. 2 The Appellants, Mr and Mrs Levi, are the owners of a residential property known as 51 Ridgehaven Road, Silverdale. The area known as Silverdale has been developed for residential purposes fairly recently. A substantial tract of land was purchased in 1954 by the Respondent (Mrs Spicer) and her late husband. Over a number of years thereafter Mr and Mrs Spicer procured several subdivisions of the land and sold off the lots in those subdivisions. 3 Silverdale is now described in the evidence as: "A village situated in a semi-rural environment on the south-west outskirts of metropolitan Sydney, being approximately twenty-five kilometres south of Penrith railway station and shopping centre, and sixty-six kilometres south-west of the Sydney GPO … surrounding development comprises relatively modern substantial single and two-storey brick veneer dwellings situated on 4,000m2 (one acre) allotments." 4 The particular subdivision with which this case is concerned is that contained in DP 733700, a subdivision of fifteen lots comprising fourteen residential lots varying in area from about 4,000m2 to about 4,300m2, and one large lot of almost 18 hectares. 5 Mr and Mrs Levi's property, No.51 Ridgehaven Road, is Lot 5 in that subdivision. 6 The restrictive covenants in question were created by the registration of a s.88B Instrument; the lots burdened and benefited are Lots 1 to 4 and 6 to 14 in the deposited plan. The persons named in the s.88B Instrument as empowered to release, vary or modify the covenants are Mr and Mrs Spicer or the survivor of them. Mr Spicer died in 1993. 7 The relevant covenants are in the following terms: "3. No building shall be erected on the land hereby burdened with a roof other than tiles or with external walls or with walls of materials other than brick, stone, concrete glass, aluminium or timber or any combination of the same, provided that timber shall not be used in external walls except as infill panels in conjunction with any one or more of the other materials referred to and aluminium shall not be used except as frames for windows or doors and the proportion of materials other than brick was used and referred to the total external wall area shall not exceed 35% thereof PROVIDED THAT nothing in this covenant contained shall preclude or prohibit a building having the inner framework of its external walls constructed of timber or other materials with an external brick face or veneer.

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

5. No building shall be erected on the land burdened having a roof of corrugated iron, corrugated tin or fibro cement with the exception of a free standing garden shed or lawn locker. PROVIDED HOWEVER such free standing garden shed or lawn locker shall be constructed of materials other than fibro and located at the rear of the main building." 8 On 17 May 2000 the Plaintiffs filed a Summons in which Mrs Spicer alone was named as Defendant. The Summons sought an order that the restrictive covenants be modified so as to permit the construction on Mr and Mrs Levi's land of a substantial structure to be built using colorbond. The structure is a garage 7.250m in width and 11.750m in length. Mr Levi wishes to use that building to house his model train collection. 9 Notices under s.89(4) of the Conveyancing Act were given to a large number of residents in what has been called the Silverdale Estate, including the other owners of the lots in DP 733700. There were a number of objectors and some of them provided evidence by way of unsworn statements. However, no objectors sought to be separately represented at the hearing. The Master's decision

10 As I have noted, the Master dismissed the Summons. It is of significance to record that in coming to his decision the Master had the benefit of a view of the subject area. Mr Bradford, who appears for Mr and Mrs Levi, does not contend that the Master erred in his findings as to the primary facts or that he erred in his recitation of the relevant principles of law. The Master erred, says Mr Bradford, in the way in which he applied the principles to the facts as found. 11 The Master commenced his analysis of the issues by referring to the requirement of s.89(1)(c) that if the Court is to modify a restrictive covenant it must be satisfied that the modification "will not substantially injure the persons entitled" to the benefit of the covenant. He identified the kind of injury contemplated in paragraph (c) by reference to the decision of McLelland CJ in Eq in Webster v Bradac (1993) 5 BPR 12,032 at 12,035: "The kind of injury contemplated in para(c) is injury to the relevant person in relation to his ownership of (or interest in) the land benefited. The injury may be of an economic kind, 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, whilst serving to illustrate the ambit of the concept of injury for the purposes of the paragraph, are neither mutually exclusive nor necessarily exhaustive, and what I have described as injuries of a physical or intangible kind could well also affect the value of the land in question. However, it is clear that a person may be "substantially injured" within the meaning of para(c) notwithstanding that the value of his land would be unaffected or even increased by the proposed modification. It is also clear, particularly in the case of injuries of what I have called an intangible kind, that the subjective tastes, preferences or beliefs of particular individuals may, within limits of reasonableness, give rise to injury in the relevant sense to those individuals. If, however, particular persons do not after due notice assert any claim to injury to them on purely subjective grounds of this kind, then it may be open to the Court to infer that there is no injury of that kind to those persons, although the absence of objection does not remove from applicants for relief under s89(1) the onus of establishing their case." 12 The Master noted that in this case the relevant "injury" was said to be of an intangible kind, namely, the "look and aesthetics of the proposal of the plaintiffs" . He noted that there were existing breaches of the relevant covenants on lots within the subdivision, namely, structures built using colorbond on Nos. 37, 39 and 49 Ridgehaven Road, and that there were colorbond structures on properties outside the subdivision, particularly those on Nos. 92 and 94 Ridgehaven Road, which are almost opposite Mr and Mrs Levi's property. 13 At paragraph 18 of his Judgment, the Master said: "It is immediately apparent that the streetscape of the subdivision is one which has a neat and tidy appearance with all the homes complying with the appropriate setback and being built of the appropriate materials. Each lot is about one acre in size and so there is substantial room behind each of the houses in the subdivision. What is immediately apparent when one looks at the area behind the houses is that there is clearly noticeable the various colourbond structures which fall within the description of a garden shed. Accordingly views of the rear of the lots are of a different quality from the views which appear on the streetscape either in the front of the houses or travelling down Ridgehaven Road. The covenant itself acknowledges this difference by providing that such garden sheds must be located at the rear of the main building . An important consideration in the case is that the plaintiffs proposed garage will be clearly visible from the street although it is situated to the rear of their house. This is because of the gap between the houses on 51 and 53 Ridgehaven Road and the fact that the screening trees which are presently there are deciduous." [Emphasis added] 14 The Master then examined the grounds for objection of the objectors, the most relevant of whom was Mr Blain, an owner of No. 53 Ridgehaven Road, which is within the relevant subdivision and which adjoins the property of Mr and Mrs Levi. Mr Blain stated that what was important to him was the appearance of his immediate neighbours' residences and he referred to his belief that requiring a higher standard of building materials "gives residents a sense of pride and enjoyment in their land" . 15 The Master referred to the objection of Mr Chapman, whose wife is the owner of No. 49 Ridgehaven Road, a property also within the relevant subdivision. Mr Chapman's objection was founded on aesthetic considerations but the Master largely discounted his evidence because Mr and Mrs Chapman had erected in their back garden a pergola with a colorbond roof and in the front garden a structure with "a small roof over part of the garden, which is also of colourbond" . 16 The Master referred to breaches of the covenant on the lots within the relevant subdivision and continued: "… it was put that I should take all these breaches into account because of the fact that the defendant has not in any way sought to restrain these breaches. Unless she retained ownership of any of the lots in DP733700 (which is not apparent on the evidence) she would not have the benefit of the covenant and I would have thought that she may have some difficulty in taking proceedings to enforce the covenant. She would only have a power to release, vary or modify the covenant.

As I have mentioned there were efforts to bring in breaches in other parts of the Ridgehaven Road which were outside the subdivision area and even outside the area of the general Silverdale Estate as developed by the defendant. All of these, to my mind, are irrelevant except the numbers 92 and 94 Ridgehaven Road. The reason that they are irrelevant is that the area of this subdivision, particularly that part of Ridgehaven Road, near where the plaintiffs' live can be regarded as a separate discrete area for the purpose of considering the general amenity and ambience of the area . It is, I think, necessary to take into account the existence of colourbond structures which are clearly evident on 92 and 94 Ridgehaven Road because they must affect the ambience of the area. On 37 and 39 Ridgehaven Road, which are before the corner of Ridgehaven Road, there are clear breaches. At 37 there are two garden sheds and there is also some awning structure over a boat that is stored at the side of the house. At 39 Ridgehaven Road there appear to be two garden sheds. They are clearly visible from the road. The other breach of substance is that which occurs on 49 Ridgehaven Road. The one at the rear is noticeable and not unattractive but in any event concerns the view of the back of the blocks. It is not visible from the street. The breach that occurs in the front yard is hardly noticeable as it is substantially obscured by greenery." [Emphasis added] 17 The critical passage in the Master's judgment, at paragraph 31, is as follows: "The views of the objectors untested by cross-examination are admissible but most of them have little substance. The only one of note is that of Mr Blain who adjoins the plaintiffs' property on the northern side. It seems to me there is a substantial difference between the appearance of the property from the rear and from the street. There will be some degradation of the view at the back as far as the Blains are concerned because there will be an addition to the amount of the colourbond in the back yard area. It would only be screened part of the time as the screening appears to be from deciduous trees. However, if this were the only matter I think it would not be sufficient to refuse the application. A more important part of the covenant is the protection of the streetscape view of the subdivision at the front of the properties. The proposed construction would in my view be clearly visible for a substantial part of the year and would interfere with the present look . I am mindful that at 92 and 94 there are large colourbond structures at the rear of those properties which are also visible but there is no reason why what is left of the general attractive outlook should be destroyed . Accordingly, I think the application should be refused as the proposed modification will substantially injure the persons entitled to the benefit of the covenant." [Emphasis added] The grounds of appeal

18 The Notice of Appeal sets out thirteen grounds of appeal but Mr Bradford, in his submissions, has distilled them under four headings, namely:

• the Master erred in that he did not properly assess the effect of the evidence that there were many colorbond structures on the properties fronting Ridgehaven Road, in close proximity to the property of Mr and Mrs Levi, and "failed to evaluate the impact which the existing use of colourbond has on the general amenity and ambience in the estate" ;

• the Master erred in not taking into account the whole of the area known as the "Silverdale Estate" and not just one indistinguishable portion of it;

• the Master erred in not properly assessing the effect of the evidence as to the impact which the proposed garage of Mr and Mrs Levi would probably have on the streetscape in Ridgehaven Road;

• the Master did not properly discount the evidence of Mr Blain. Applicable principles

19 The parties are in agreement that the principles upon which the appeal is to be determined are as set out in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409. The appeal is not a re-trial; the normal principles as to review by an appellate court of findings of fact and exercises of discretion are applicable. As I have noted, there is no material challenge by Mr and Mrs Levi to any finding of primary fact made by the Master; the challenge is really as to the conclusions which the Master drew from the facts which he found. 20 In so far as any discretionary judgment is called into play, the manner in which the judgment is reviewed by an appellate tribunal is set out in the well known passage in House v The King (1936) 55 CLR 499, at 504: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." Conclusion

21 I am of the view that no error of principle has been shown in the conclusions at which the Master arrived, and that none of the grounds of appeal has been made out. My reasons are as follows. 22 It is quite clear from paragraphs 18 and 31 of the Master's judgment that he founded his decision on what he held would be the impact of the proposed colorbond structure on the "streetscape" of the subdivision in close proximity to Mr and Mrs Levi's property, and that he did not take into account its impact on the landscape at the rear of the lots in the subdivision. 23 In my opinion, the Master was quite entitled to take this approach for the reasons which he gave. As he said, there can be a substantial difference between the appearance of a property from the street and its appearance from the rear. Many people take particular pride in their front gardens and in the streetscape around their houses and would not want to see placed there utilitarian structures such as sheds and garages which they would happily place in their backyards. Injurious affectation to the appearance of the streetscape in which one's house is seen can, in my view, quite legitimately be regarded as within the categories of "injury" referred by McLelland CJ in Eq in Webster v Bradac . 24 Accordingly, in my view, the Master made no error in not taking into account those colorbond structures on neighbouring lots which impacted only upon the rear views of the lots concerned and not upon the streetscape in which Mr and Mrs Levi's property is set. 25 Second, the Master made no error in failing to have regard to the whole of the "Silverdale Estate", i.e. the residential lots in DP 733700 and other subdivisions in the area. It is true that there are many residential blocks fronting Ridgehaven Road but, as appears from the plan of subdivision and from other evidence, Ridgehaven Road is a long road and a pronounced bend in it occurs between Nos. 37 and 39 and number 51. The colorbond structures on Nos. 37 and 39 were recognised by the Master as breaches of the restrictive covenant and were said to be clearly visible from Ridgehaven Road. But the Master obviously was of the view that those breaches were of no relevance because Nos. 37 and 39 were located "before the corner of Ridgehaven Road" and because "that part of Ridgehaven Road near where the Plaintiffs live can be regarded as a separate discrete area for the purpose of considering the general amenity and ambience of the area" . Nothing in the evidence demonstrates that the Master was not entitled to come to this conclusion. 26 Some reference was made by Mr Bradford in his submissions to a colorbond structure on 128 Ridgehaven Road, but there was no satisfactory evidence as to how far distant that property was from Mr and Mrs Levi's property, No. 51, and its immediate vicinity. I note also that the evidence discloses that there is another bend in Ridgehaven Road between No. 51 and the properties adjoining it and No. 128 Ridgehaven Road. 27 As to the colorbond structures on No. 49 Ridgehaven Road, which adjoins Mr and Mrs Levi's property, the Master noted that one of them was at the rear and the one at the front was a "small roof over part of the garden" . The Master obviously formed the conclusion that these structures did not so materially alter the streetscape around Mr and Mrs Levi's home that there would be no additional "injury" if their colorbond structure were permitted. That is a matter of impression, founded upon a view of the site which the Master had, with which an appellate court cannot lightly interfere by substituting its own conclusions without the benefit of a view. An appellate court in reviewing the decision of a lower court founded upon evidence which includes a view does not routinely conduct a view of the site itself just as it does not hear and see the witnesses give their evidence again. The appellate process accepts that the trial court which sees and hears the witnesses and conducts a view is much better able to arrive at the truth than is a court which is confined to the perusal of transcript and the contemplation of documents, even photographs. The appellate court interferes only when it is glaringly obvious that the lower court has made a factual error, notwithstanding the advantages which it had in assessing the evidence. In the present case, it is not glaringly obvious that the Master has made any error in his assessment of the impact of the colorbond structures erected on No. 49 Ridgehaven Road. 28 Third, the Master did not fail to take into account the colorbond structures on Nos. 92 and 94 Ridgehaven Road. He recognised that they were large structures and were visible from the road, but he said that "there is no reason why what is left of the general attractive outlook should be destroyed" . Clearly, the Master was of the view that notwithstanding the visibility of these structures, the streetscape in the immediate vicinity still retained substantial attractiveness and that the attractiveness would be diminished by the erection of the proposed structure on Mr and Mrs Levi's property. Again, that is a matter of impression which cannot be interfered with on appeal unless it is glaringly obvious that it cannot be justified. That has not been demonstrated, in my opinion. 29 Finally, it is clear that the Master considered that a substantial injury to a person entitled to the benefit of the restrictive covenant had been shown, for the purposes of s.89(1)(c). Mr Blain's objection was not just to the appearance of Mr and Mrs Levi's property from the rear; it was a general objection to the use of colorbond material in so far as it affected the appearance of his immediate neighbours' residences. The Master found that the colorbond structure on Mr and Mrs Levi's land would be visible from the street. There is no dispute that this finding was open to the Master on the evidence. It follows that it was open to the Master to conclude that Mr Blain's interest in preserving the appearance of Mr and Mrs Levi's residence as seen from the street would be substantially injured if the covenant were modified in the manner they seek. The Master was, therefore, justified in refusing to grant the modification to the covenant sought by Mr and Mrs Levi. 30 For these reasons, I conclude that no error has been shown in the Master's judgment. The appeal is dismissed. - oOo -

Last Modified: 03/21/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.