Storey v North Sydney Municipal Council [1970] HCA 44

Storey v North Sydney Municipal Council [1970] HCA 44

The proposed twenty-one year lease would confer exclusive possession of part of the covenant land on the Boy Scouts' Association and exclude the public generally. Even construing the covenant as permitting use for public health, recreation, enjoyment or other like public purposes, that exclusive use by members of a particular association was not use by the public generally as of right and would breach the restrictive covenant.

Jurisdiction
Australia
Procedural Posture
Appeal Concerning Restrictive Covenant and Injunctions Restraining Lease of Land / High Court Appeal From the Supreme Court of New South Wales Court of Appeal
Outcome
Appeal allowed.
Legal Topics
['restrictive Covenant' 'public Reserve' 'public Recreation and Enjoyment' 'exclusive Possession Under Lease' 'injunction']
['property Law' 'local Government Law'] ['restrictive Covenant' 'public Reserve' 'public Recreation and Enjoyment' 'exclusive Possession Under Lease' 'injunction']

Case Brief

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Procedural Posture

Appeal Concerning Restrictive Covenant and Injunctions Restraining Lease of Land / High Court Appeal From the Supreme Court of New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether the restrictive covenant permitted use of the land only as a public park or also for public health, recreation, enjoyment or other public purposes of a like nature.' "Whether granting a twenty-one year lease of part of the land to the Boy Scouts' Association for a scout hall and scouting purposes would breach the restrictive covenant." "Whether land leased exclusively to the Boy Scouts' Association would be used for public recreation, enjoyment or other public purpose within the meaning of the covenant."]

Ratio Decidendi

The proposed twenty-one year lease would confer exclusive possession of part of the covenant land on the Boy Scouts' Association and exclude the public generally. Even construing the covenant as permitting use for public health, recreation, enjoyment or other like public purposes, that exclusive use by members of a particular association was not use by the public generally as of right and would breach the restrictive covenant.

Court Disposition

Appeal allowed.

Orders

  • ["Respondent council to pay the appellant's costs of this appeal." 'Order of the Supreme Court of New South Wales set aside.' 'In lieu thereof order that the appeal to that Court be dismissed.' 'Respondent council to pay the costs of the appellant in that appeal.' 'The injunctions granted by McLelland C.J. in Eq....