Victorian Civil and Administrative Tribunal|2014-09-11

The application seeks a permit to construct a single building containing four dwellings with basement car parking for eight vehicles at No 1307 Toorak Road, Camberwell. The application was refused by the responsible authority on planning grounds. It was not contended by the responsible authority that the proposed development would breach the covenant other than in relation to the construction of the fence to which the covenant refers.
However, it was argued by Mr Caldwell, who appeared as solicitor for one of the objectors, Bruce Wilkinson, that on its proper construction the covenant prohibits the construction of any building other than a single residence. Mr Caldwell submitted that this conclusion follows from the decision of Supreme Court in Natraine Nominees Pty Ltd v Charles Corsie Patton and Robert Hodges Estate Agency Pty Ltd[11].

The principles governing the construction of a restrictive covenant are not in doubt. As with any document of a contractual nature the task is to ascertain the intention of the parties. That intention is to be identified from the words used in the covenant given their meaning in common vernacular use (Re Marshall and Scott's Contract (1938) VR 89, and

... (the registered proprietor for the time being) will not erect or cause or permit to be erected on the land hereby transferred or any part thereof any building other than a dwelling house...

... If the parties to the original covenant had wished to restrict the number of dwelling houses built on each of these lots they could have done so very simply and definitively by replacing the word "a" in the covenant with the word "one", or by making some similar simple amendment. The true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house. Provided that any building constructed can be properly described as a dwelling house there would be no breach of the covenant. The covenant says nothing, in my opinion, as to the number of dwelling houses which might be built. To import a restriction as to the number of houses which might be built on lot 3 into the covenant would extend its effect beyond the words used by the parties without any warrant for doing so.

In Natraine, supra the covenant under consideration provided that:

... no building may be erected ... except a brick building to be used exclusively as a residence or dwelling house only or outbuilding ... in connection with such brick building.

The Court held that the covenant permitted the erection of a single residence only. However, the language of the covenant in Natraine is quite different from the language of both the covenant in this case and the covenant in Tonks. The Court in Tonks held that Natraine could be distinguished, and I am of the opinion that the same distinction can be made in this case. I consider that in this case the covenant permits the construction of more than one building provided that each building is used as a residence, or an outbuilding.
In any event the decision in Natraine supports what is proposed in the present case, which is a single building containing four dwellings. In Natraine the Court carefully analysed a number of authorities relating to the construction of restrictive covenants expressed in similar terms. Smith J concluded (at paras 21 and 22):

[21] It seems to me that the critical point that emerges from these authorities is that the words "dwelling house" in their colloquial and ordinary meaning can include a building in which there is more than one residential unit depending upon the layout and structure of the building. ...

[22] I am unable to point to anything in the restrictive covenant itself which would suggest that the words "dwelling house" should be read down from what appears to have been accepted for many years to be the ordinary meaning of the words. On the contrary, as counsel for the defendants has pointed out, to construe "dwelling house" so as to confine it to a single residence would render the reference to "a residence" superfluous. I also note that the covenant does not qualify the words "dwelling house" with words such as "one", "single" or "private".

So whether the proposed development is viewed as four separate residences, or alternatively as a single building containing four dwellings, the conclusion is the same, namely, what is proposed by the application is not prohibited by the covenant.
In relation to the matter of fencing I say only that the requirements of the covenant must be observed.

[1] I have considered the written and oral submissions of all the parties and all the exhibits tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[2] The application was referred to VicRoads. The authority did not object, subject to the inclusion of five permit conditions that are not contested by the applicant.

[5] Amendment C190 was gazetted on 19 June 2014.

[6] It does not include properties to the east along Outlook Drive that are within Precinct 135 but now in a General Residential Zone, Schedule 1. It coincides with Precinct 65, which was identified in a more recent character study that is not yet incorporated or referenced in the planning scheme.

[7] It varies clause 32.09-4 by requiring a permit for the construction or extension of one dwelling (and a front fence) on a lot less than 500m2. I understand that the Council had recommended this pocket of land be subject to Schedule 1 to the NRZ. However, Schedule 3 to the NRZ was applied to all areas that had been recommended for inclusion in Schedules 1 and 2 to the NRZ.

[8] KVR Pty Ltd & Anor v Boroondara CC [2011] VCAT 1917 at [34].

[9] The existing crossing is to be slightly modified and extended 1m to the east.

[10] There is no longer an issue of fencing along Toorak Road being contrary to the covenant.

2bscene Design Pty Ltd v Boroondara CC [2014] VCAT 1138 (11 September 2014)

2bscene Design Pty Ltd v Boroondara CC [2014] VCAT 1138

At a glance

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Judgment (19 paragraphs)

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Cases Cited (1)

2bscene Design Pty Ltd v Boroondara CC [2014] VCAT 1138 (11 September 2014)