1. The land is burdened by a restrictive covenant created by Instrument of Transfer 704278 on 20 December 1912. The covenant relevantly provides that the registered proprietor of the land for the time being:

... will not erect or place on the said land any building or structure other than a private dwelling house, such house to be double fronted and constructed of weatherboard, brick, stone, concrete or similar material.

1. The applicant/objectors opposed the proposal on grounds inter alia that it would be in breach of the covenant. They contend, first, that the covenant prevents the construction of more than one dwelling on the land, and secondly, that Dwellings 3, 4, 5 and 6, which face the laneway, are not double fronted.
2. Section 61(4) Planning and Environment Act 1987 prohibits the grant of a permit that would authorise anything that would result in the breach of a restrictive covenant unless a permit has been granted to vary or remove the covenant.

1. The presiding member, who is not legally qualified, referred three questions of law or mixed fact and law to a legally qualified member of the Tribunal and, as mentioned, I have been appointed to determine those questions.
2. The questions of law or mixed fact and law are as follows:
   1. Does the restrictive covenant prevent the construction of six dwellings on the subject land?
   2. Can the proposed dwellings 3, 4, 5 and 6 be properly described as double fronted dwellings for the purpose of the restrictive covenant?
   3. If not, would the grant of a permit for the proposed development authorise a breach of the registered restrictive covenant which applies to the land?
3. The presiding member gave leave to the parties to file and serve written submissions in relation to these questions, and each party has taken the opportunity to do so. The permit applicant requested that the matter be set down for a further hearing before a final determination of the above questions. A further hearing was held on 8 August 2016.

1. I have considered the written submissions filed by the parties and the further submissions made orally on 8 August 2016.
2. My conclusions are as follows.
   • (a) The restrictive covenant does not prevent the construction of more than one dwelling on the subject land.
   • (b) The covenant does prohibit the construction of a dwelling on the subject land unless it can be described as "double fronted" within the ordinary and everyday meaning of that expression. This is a question of fact.

1. The guiding principle to be applied in construing a restrictive covenant is to ascertain the intention of the parties when the covenant was created according to the ordinary and everyday meaning of the words they used (Prowse v Johnstone (2012) VSC 4).

1. In my view the covenant must be construed as allowing more than one dwelling on the land. It is fair to say that the applicant/objectors did not argue strongly to the contrary.
2. First, the ordinary and everyday meaning of the indefinite article "a" is consistent with either one dwelling or more than one dwelling. However, if it was the intention of the parties to restrict development to one dwelling they would and could easily have said so by substituting "one" for "a". This is a strong reason to construe the covenant as allowing more than one dwelling.
3. Secondly, this construction is supported by ample authority. Similar wording was considered by the Supreme Court in Tonks v Tonks[8], and by this Tribunal in Samson v Moorabool SC[9] and the other cases referred to in that decision and more recently in Muir v Bayside CC[10]. In each case the covenant was construed as permitting more than one dwelling.

1. There is no doubt that dwellings 3, 4, 5 and 6 are separate dwellings intended for occupation by separate households rather than a single building divided into four occupancies. It follows that each dwelling must satisfy the requirements of the covenant. It must be "double fronted".
2. This raises the question of what is meant by double fronted. The ordinary and everyday meaning of a word or phrase is a question of fact. In Franceschini v MMBW and The James McGrath Foundation in Victoria[11] the Supreme Court (Tadgell J) said (at p280):

A determination of the meaning to be given to ordinary non-technical English words (which, in my opinion, those in the definition of "institutional home" in the Ordinance are) involves a matter of fact and not a question of law. That this is so was recently emphasized by the House of Lords in the case of Cozens v Brutus[12].

1. Referring further to Cozens v Brutus His Honour said:

In my judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do so do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.

1. The expression double fronted is an architectural expression. However, it is frequently used in common parlance and so is not an arcane term requiring explanation by an architectural expert. It is defined by the Shorter Oxford Dictionary as:

Having two fronts or faces; (of a house) having the principal windows either side of the front door.

1. It is referred to in James Curl's Dictionary of Architecture and Landscape Architecture as:

House with a centre door, its front symmetrical about an axis through the door (eg houses in Pembridge Square, North Kensington, London).

1. I am satisfied that these definitions accurately describe the ordinary and everyday meaning of the expression "double fronted".
2. The applicant/objectors placed reliance upon the decision of the Tribunal in Taha v Moreland CC[13]. In that case the Tribunal considered a covenant expressed in similar terms prohibiting the construction of any building other than a dwelling house, such house to be double fronted. The Tribunal said that reading the covenant as a whole the impression was gained that the purpose of the covenant was to ensure that a better and more substantial class of dwelling than a basic single fronted house would be built.,
3. The Tribunal concluded that the proposal before it fulfilled the purpose of the covenant by ensuring the dwelling will be of good quality and more than one room wide. The decision seems to proceed on the basis that the test is whether the purpose of the covenant is served, not whether the proposal answered the wording of the covenant. This logic could be extended to allow a two storey dwelling which will provide a house of better quality notwithstanding that it does not have principal windows on either side of the front door. In my view this approach reads into the covenant words that are not there.

1. For these reasons I answer the questions of law and mixed fact and law as follows:
   1. Does the restrictive covenant prevent the construction of six dwellings on the subject land?

1. Can proposed dwellings 3, 4, 5 and 6 be properly described as double-fronted dwellings for the purpose of the restrictive covenant?

This is a question of fact. Unless these dwellings can properly described as double fronted they would be in breach of the covenant.

1. If not, would the grant of a permit for the proposed development authorise a breach of the registered restrictive covenant which applies to the land?

If the dwellings are not double fronted the grant of a permit would authorise a breach of the registered restrictive covenant contrary to section 61 of the Planning and Environment Act 1987.

1. The permit applicant submitted three alternative designs which it suggested would not breach the restrictive covenant. These alternatives, options A, B and C, was circulated to the other parties well before the hearing on 8 August 2016. They have had ample opportunity to consider and make submissions in relation to these alternatives.
2. Member Bilston-McGillen has on the basis of my determination of the questions of law found the following facts:
   • (a) The proposal the subject of the application for permit is prohibited by the restrictive covenant because Dwellings 3, 4, 5 and 6 are not double fronted.
   • (b) Option A presented by the permit applicant would be prohibited by the restrictive covenant because not all the dwellings would be double fronted.
   • (c) Options B and C presented by the permit applicant would not be in breach of the covenant.
3. Mr Finanzio QC, who appeared for the permit applicant, foreshadowed that his client would seek to amend the application by substituting plans based on option B for the application plans. These plans will be served on the other parties and filed with the Tribunal.
4. Mr Bilsten-McGillen will then proceed to a determination of the planning merits of the amended proposal. The merits of the application have already been fully debated before the Tribunal and Ms Bilsten-McGillen sees no need for a further hearing. If any party seeks a further hearing they should notify the Tribunal conscious of the Tribunal's power to award costs under the Victorian Civil and Administrative Tribunal Act 1998.

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

[2] The proposed development was amended by reducing the number of dwellings to five two-storey dwellings.

[3] Further details of the restrictive covenant created by Instrument of Transfer 704278 on 20 December 2012 are contained in Appendix A.

[4] Findlay v Moreland CC [2015] VCAT 1210.

[5] Knights v City of Greater Geelong [2004] VCAT 263.

[6] Lamaro v Hume CC & Anor (includes Summary)(Red Dot) [2013] VCAT 957.

[7] Whilst development is set off the northern boundary, because the right-of-way has essentially been widened, it will appear that development is to the boundary line.

[8] (2003) VSC 195

[9] [2012] VCAT 1435

[10] [2015] VCAT 1930

[11] (1980) 1 PABR 276

[12] [1972] UKHL 6; (1973) A.C. 854

[13] [2005] VCAT 1125