Problem Question 2

Marcia owns 200 hectares of undeveloped land in rural New South Wales. Her next door neighbour and good friend Lei has a small urban block which has a single residence on it. Marcia has been offered a great deal of money if she sells her land to a hotel chain. They want to build a large country hotel, golf course and swimming pools. This will necessitate the clearing of much of the bushland adjoining Lei's lot and will lead to a loss of privacy and increase in noise and traffic. Lei asks Marcia to do her best to lessen the impact on his land. Marcia therefore includes the following restrictive covenant in the sale to the developer:

The covenantor, on behalf of themselves, their heirs and assigns covenants that they:

1) will not permit the land nor any part of it to be used for noisy parties and events

2) will not permit the clearing of the land within 100 metres of Lei's land,

3) will maintain trees to a height of at least 10 metres within the 100 metres bushland strip.

The covenant is expressed to be for the benefit of Lei's land, is noted on the Torrens title register as a restriction on use and otherwise complies with s 88(1),Conveyancing Act1919 (NSW). The sale to the hotel chain is completed and it becomes the registered proprietor. One year later Lei also sells his lot to Sandra as his peaceful existence is gone. As soon as Lei moves out the hotel clears the land right up to Sandra's boundary and has begun to promote the hotel as a great venue for music festivals which run day and night. Sandra wants to know if she can enforce the obligations in the restrictive covenant.

Use the IRAC format in your response and refer to relevant case law and the Real Property Act 1900 (NSW).