The parties must advise me within thirty days of the date of this Interim Decision, whether Peter Hill has cut down the large treated pine poles approximately 4 metres high, to equate with the height of the structure.

Mr Stuart Stevens, Development Liaison Officer, Shire of Campaspe.

1. What possesses a man to erect a confronting structure between the edge of his property and his neighbour? Clearly, there is a history to this conduct. For the purposes of this decision, I will use the neutral word 'structure' to describe it.
2. Mr Peter Hill seeks a declaration that this structure is a fence. If it is a fence, it requires no planning permission, given its particular location.
3. There is no doubting the fact that the structure, even if it is a fence, is an eyesore to the neighbours in Lord Court.
4. Mr Hill has erected a 'structure' which varies in height between 1.8 metres to 2.5 metres, a half metre from his north eastern boundary with his neighbours at 1, 2 and 4 Lord Court. He comes to this Tribunal seeking a declaration that this structure is a 'fence' which he has an automatic right to construct without requiring planning permission.
5. The responsible authority disputes the heights submitted by Mr Hill. Although it agrees the height is 2.5 metres abutting 1 Lord Court, it submits the fence height is two metres abutting 2 and 4 Lord Court.
6. Council has issued an enforcement order seeking removal of the structure, and costs.

1. Although Peter Hill commenced this application by way of a section 149B declaration proceeding, all parties agreed to its amendment to a section 149A declaration application, as it relates to the interpretation of a planning scheme.
2. The parties agreed that I would decide the section 149A declaration application first, and that if I came to the decision that the structure is not a fence, I would give Mr Peter Hill a thirty-day opportunity to lodge a planning application for this structure. The accompanying enforcement application would be adjourned and joined with any review brought as a result of the fence planning application.

1. Peter Hill owns land abutting the Campaspe River, which backs onto the rear of lots fronting Lord Court, Echuca. The subject land is located on the north side of Anstruther Street, and access to his land is from Anstruther Street, which equally provides access to Lord Court. The site is located within a well-established residential area of Echuca.
2. Anstruther Street bounds the subject land to the south, Campaspe River to the west, a partially completed tennis court to the north and three residences to the east being 1, 2 and 4 Lord Court.
3. The total area of the subject land is 5775 square metres and is vacant apart from an existing small shed located near the northeastern boundary of the subject land. Other than this shed, which was previously part of a dwelling (now subdivided off), there are no other improvements on his block of land.

1. Along the southeastern, southwestern and western boundaries of the subject land, Mr Hill has erected post and wire fencing.
2. However his north eastern boundary comprises:
   1. post and wire fencing on that part of the north eastern boundary which abuts the Murphy's at 1 Lord Court, Fenwicks at 2 Lord Court and the Hallidays at 4 Lord Court; and
   2. within a half-metre of the property boundary, a corrugated zincalume structure with 200mm treated pine posts which structure is 1.8 metres high abutting the Fenwick and Halliday properties[1] and 2.5 metres high abutting Mr Murphy's dwelling at 1 Lord Court.
3. The responsible authority disputes the zincalume material, submitting it comprises a combination of zincalume, galvanised iron and colorbond. Photos show a combination of materials has been used.
4. Council's Compliance/Enforcement Officer submits:

... this structure comprises large treated pine poles approximately 4 metres high, and attached to the poles are sheets of iron, the sheets of iron forming a barrier 2.5 metres high. There are different types of roofing used, the sheets of iron used behind 1 Lord Court was (sic) new material, and all other roofing iron used was second hand[2].

1. The 200mm wide, treated pine posts are three to four metres high for the time being although Mr Hill says that he has not yet cut them down to the fence height. It is my opinion that if these posts were not cut down to the height of a fence, they could not be classified as 'fence posts'. They must be cut down to fence height to comprise a fence post. I say more about this later.
2. The structure lies within 0.5 metres of the northeastern boundary. Mr Hill explains that it could not be on the boundary because of neighbours' objections. Had he constructed the fence by hand, he could have brought it closer to the boundary. Since he used a bobcat to construct the fence, he needed a half-metre gap to drive the bobcat along the northeastern boundary and bore the holes for the fence posts.
3. There is a 300mm gap under the structure between the natural ground level and the bottom of the structure which Mr Hill submits was done to satisfy North Central Catchment Authority who advised him that:

... the fence shall have a clear opening of 300mm between the ground and the underside of the fence' so that floodwaters could escape to the river.

1. Mr Hill's land is zoned part Residential 1and part (the majority) Urban Floodway zone. A Land Subject to Inundation Overlay also affects the land.
2. The structure is only erected on that part of the subject land zoned Residential 1 and subject to the Land Subject to Inundation Overlay ('LSIO'). The structure is not erected over the land zoned Urban Floodway zone. If it were, planning permission would be required pursuant to clause 37.03-2 which requires a permit to construct a building or construct or carry out works, including a fence and roadworks, although not a post and wire and post and rail fencing.
3. The Residential 1 zone extends the full eastern boundary of the property and extends between 8.5 metres and 25 metres onto the subject land. The Urban Floodway zone applies to the remainder of the subject land.
4. A small proportion of the southeastern portion of the subject land at the rear of 1 Lord Court is within the Land Subject to Inundation Overlay.
5. At the hearing, I carried out a very detailed inspection of the zoning maps with the parties, to establish that the structure is only located within the Residential 1 zone and the LSIO.
6. The Campaspe Residential 1 zone is silent on buildings or works not associated with 'construction and extension of one dwelling on a lot or construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings'. It is also silent on buildings and works not associated with a section 2 use. It is equally silent about fences.
7. The responsible authority submits that the structure is a screen and characterises this screen as a use of the land. Mr Hill responds that he is not 'using the land' and has merely erected a fence along one boundary, that being the boundary with his neighbours to the rear.
8. Pursuant to clause 62.02-2 of the Campaspe Planning Scheme which deals with 'Uses, buildings, works, subdivisions and demolition not requiring a permit', the following buildings and works do not require a permit unless specifically required by the planning scheme[3]:

1. Pursuant to the Land Subject to Inundation Overlay clause 44.04-1, a permit is required to construct a building or to construct or carry out works, including a fence and roadworks. However, this does not apply if a schedule to this overlay specifically states that a permit is not required.
2. Pursuant to clause 1.0 of the schedule to the Land Subject to Inundation Overlay, a permit is not required to construct or carry out the following buildings or works:

A fence in a Residential, Business or Industrial zone.

1. The only issue for consideration is whether the structure is a fence, which can be erected as of right in this R1 zone and LSI Overlay or whether it is not a 'fence' and thus requires planning permission.

1. Some history behind this application can be gleaned from the decision of Deputy President Gibson in Hill v Campaspe Shire Council[4]. In clear and concise language, Deputy President Gibson informs us about an earlier application by Mr Hill for removal of a restrictive covenant preventing the construction of a dwelling on his Lot 2 PS329232U which was refused by then Deputy President Horsfall[5] because it could not achieve the impossibly high bar set by the Planning and Environment Act 1987, section 60(5).
2. Lot 2 PS329232U is Mr Hill's large lot of 5,775m² with two frontages, to Anstruthers Street and to the Campaspe River, which was part of a two-lot subdivision created in 1998. Lot 1 on this Plan of Subdivision, with an area of 969m² and a frontage to Lord Court (off Anstruthers Street) already enjoyed a single dwelling occupied by the Murphys.
3. Lots 1 and 2 PS329232U were originally Lot 1 PS209978Y, a 16 lot subdivision created 10 years earlier in 1988. That 16-lot subdivision was subject to a restrictive covenant only permitting one private dwelling to be constructed on the land. This means that even though Lot 1 has been further subdivided into two lots, the second of which is owned by Peter Hill, Mr Hill cannot erect a dwelling on his own lot because:
   1. the covenant only permits one private dwelling on the land in Lot 1 PS209978Y;
   2. there is already an existing private dwelling on part of Lot 1 PS209978Y, namely that portion which is now Lot 1 PS329232U;
   3. that restrictive covenant runs with the entirety of the land in Lot 1 PS209978Y and, since the subject land owned by Mr Hill, being Lot 2 PS329232U forms part of that original restricted lot, it is equally burdened by the covenant despite its having been subdivided off. It cannot, by virtue of the covenant, boast another dwelling without the permission of the beneficiaries of that restrictive covenant in order for it to satisfy the impossibly high hurdle set by the Planning and Environment Act 1987, section 60(5).
4. The source of Mr Hill's problems is the subdivision of the original Lot 1 PS209978Y containing the restrictive covenant into two lots, one holding the dwelling and the other dwelling-less, and only holding a shed.
5. It is a mystery to me how this subdivision was permitted to occur and whether Mr and Mrs Hill knew, at the time of their purchase, that the Lot 2 PS32932U was so burdened by the restrictive covenant that they could never build a dwelling upon it.
6. The expectations of the owners of the remaining part of the original Lot 1 PS209978Y ie 1 Lord Court, Echuca also remains a mystery to me; what did they or their predecessors expect would be the consequences of selling most of their yard fronting the Campaspe River?
7. The above two applications before then Deputy President Horsfall and Deputy President Gibson are not the only two historic attempts made by Mr Peter Hill to enable the construction of a dwelling on his lot. On 8 July 2005, then President Stuart Morris QC struck out P741/2005 and P1188/2005 by Mr Hill seeking declarations relating to the beneficiaries of the restrictive covenant.
8. On 28 September 2005, council advised Mr Hill it was reluctant to accept a fresh planning application, this time for variation rather than removal, of this restrictive covenant.
9. Shortly after 10 May 2006, council returned to Mr Hill his further application to vary this restrictive covenant because he had submitted no supporting information with his application form.
10. On 17 May 2006 Mr Hill lodged a fresh application for covenant variation, seeking:

To remove reference to the restriction imposed on the area of no greater than 40m² and the restriction as to the height of not greater than 3 metres and further in relation to the type of material used as to use of colours (in environmental toning)[6].

1. On 20 September 2006[7] Deputy President Gibson struck out Mr Hill's renewed applications for declarations that the Planning and Environment Act 1987 section 47(2) applies and no section 52 notice needs to be given to beneficiaries of the covenant.
2. It is this inability by the Hills to construct a dwelling in the backyard of the original Lot 1 PS209978Y at 1 Lord Court, Echuca which has led Mr Hill to erect this structure which he seeks a declaration is a fence between his lot and the neighbours in Lord Court, Echuca.
3. The neighbours characterise it accurately as:

... a vexatious attempt by the applicant to negatively impact upon our amenity and enjoyment of our outdoor living area, home and garden. It is clearly a fence to nowhere and around nothing[8].

1. On 6 November 2002, Mr Hill had applied for a planning permit for a fence set back approximately one metre from the rear boundaries of properties fronting 2 and 4 Lord Court, Echuca.
2. But on 5 June 2003 after gazettal of Amendment C14 to the Campaspe Planning Scheme[9] and the introduction of permit exemptions in the LSIO which included exemption for fencing in residential zones, council's planning officer Mr Andrew Cowin wrote to Mr Hill advising that a planning permit was not required for the fence.
3. There are separate issues concerning the need for a building permit for the fence but that is not a planning issue before me.

1. Is this structure a fence not requiring planning permission or a screen or other structure requiring planning permission?
2. The responsible authority referred me to City of Greater Geelong v Herd and Another[10] ('Herd'); Poohawk Pty Ltd v Glen Eira City Council[11], Yilmaz and Others v Melbourne City Council and Others[12].
3. Mr Hill referred me to Leibler v City of Moorabbin[13] ('Leibler') and Tsobanis v South Gippsland Shire Council[14] ('Tsobanis').
4. Leibler concerned a boom gate and Nathan, J. held:

... the notion of a fence, in the scheme revolves around the concept of a constructed barrier. It is not restricted to boundary or perimeter barriers, but includes internal sub-divisional constructions. No limit is recited as to what form or type of construction could constitute a fence. It could be of pharaohonic proportions, of granite and basalt or a tiny wicker arrangement of ti-tree splints. Whatever the nature of the works, no permit is required if it is a fence. Some fences may be built of stone at one end, brushwood in the middle and a loose strand of plastic tape between posts at the other. Nevertheless the whole aesthetic catastrophe would still constitute a fence.

In my view the scheme, examined as a whole, compels the word "fence" to be interpreted in a purposive manner. That is, it includes those constructions which purpose it is to regulate entry and exit from defined or enclosed areas. The word imports the notion of a constructed or built barrier of a type suitable for the purpose of regulating ingress and egress. Thus a high fence might be necessary to restrain lions or tigers, or a small fence to impede motor cars. The constructed barrier in both instances amounts to fences.

1. In Leibler characterisation of the fence and boom gate was as a 'barrier to entry'. However, in a residential context, the characteristics of fencing can be as a boundary demarcation, a barrier to entry and a screen for privacy reasons. If that were not so, post and rail fencing would be common place in residential areas. However, it is not. What is commonplace is not just boundary demarcation or a barrier to entry but also a screen, i.e. a barrier to the ability to look into or across a neighbour's property. Therefore, a fence can have a screening as well as a barrier function and still be a fence.
2. Tsobanis concerned a 3.7-metre high wood-framed fence made out of shade cloth and extending 36 metres in length. In Tsobanis, Deputy President Macnamara considered both Leibler and Herd but decided that the nature and dimensions of the structure before him still fell within the character of a fence:

The cases to which I have referred, in particular the dicta of Nathan J. in Leibler's case demonstrate that this structure does not cease to be a fence merely because it is comparatively tall, namely 3.7m nor because in many respects shadecloth stretched across a framework is a relatively flimsy barrier. It is a barrier nevertheless. It extends along most of the boundary between the two properties and marks that boundary. It will, when constructed, be apt to exclude people and animals. In my view that fact that it does not reach to the very rear of the property does not deprive it of the character of being a fence. Its deficiencies as a boundary marker and excluder are not as extensive as those identified by Batt J. in Herd's case and which led him to conclude that the structure he was considering was not a fence.

1. Herd concerned a self-standing structure of eight 250mm x 250mm sawn treated pine horizontal spaced planks bolted to mild steel tubular columns. The bottom of the lowest plank commencing about 3.6 metres above ground level, reaching to 5.6 metres above ground level. Its columns were independently supported by a reinforced concrete pad. It was not connected to an existing boundary fence, nor to a tennis court fence. A 3.6 metre high timber paling fence stood on the boundary 200mm away from this structure; and there was a question whether some part of this fence was also galvanised iron. Trellis atop this fence was considered irrelevant. There was also a separate cyclone wire tennis court fence, which did not constitute the boundary demarcation. The structure could not be considered an extension of the existing dividing fence.
2. Batt, J discussed the following characteristics of this structure and fencing generally:
   1. but for the pre-existing dividing fence, and possibly the tennis court fence, it would not by itself keep persons, animals or vehicles out - all of these would be free to pass from one property to the other;
   2. two essential functions of a fence are those of enclosing or barring, as well as location along or serving to define a boundary;
   3. the boundary it defines need not be that of a total property or parcel of land, but can be the boundary of a lesser unit, but it must be the boundary of something that has, or at any rate once had physical unity;
   4. a screen may be a fence and a fence may frequently serve as or be a screen or visual barrier;
   5. not every screen is a fence;
   6. not every barrier on a boundary is a fence (e.g. shed or garage built with a wall along a boundary);
   7. a fence may be of lattice or other open construction, a good example being the old post and rail fence on Australian country properties, which serve as a barrier or enclosure for cattle and boundary demarcation at ground level.
3. Batt, J held that the Herd fence has none of these essential features. Except at its relatively high air space, it was a barrier only to view and not to movement. As far as its defining function was concerned, it only divides air space at some point above ground level only. Its only function and purpose was to screen.
4. Herd can be easily distinguished from the case before me, because of its characterisation as an elevated sightscreen. The reason the structure in Herd was a sightscreen and not a 'fence also serving the function of screening' was because it was a stand-alone structure starting 3.6 metres above natural ground level. It excluded nothing from passing underneath and thus clearly performed a function and purpose other than a boundary demarcation and barrier to entry function. If one removed the Herd sightscreen, the original fence which acted as an entry barrier, remained.

1. The characteristics of and pertaining to this subject fence are:
   1. The existing post and rail fence serves as a boundary demarcation only, it cannot keep persons or animals out;
   2. This fence fulfils an entry barrier function as well as a boundary demarcation along one (rear) side of the property only, and if the post and wire fence behind it (which only acts as a boundary demarcation) was removed, it would still perform the same function;
   3. it does not only fulfil the function of boundary demarcation and a barrier to entry by humans or animals, but also fulfils the function of preventing views by rear neighbours across the land to the Campaspe River;
   4. it also serves a function of a privacy screen to whatever activity Mr Hill wishes to conduct in his shed or on his lot from view of his rear neighbours when they remain at home.
2. I suspect this fence is:
   1. an attempt to discomfort or unsettle a neighbour who has sold an automatic right to a view that he would have retained had he not sold his backyard;
   2. because of that neighbour's and other beneficiaries' refusal to permit the purchaser the opportunity to build a house constrained by a modest building envelope, and obtain some benefit from this otherwise sterile, subdivided lot.
3. Nevertheless, it is my opinion that irrespective of my assumption about Mr Hill's motives, a structure that varies in height between 1.8-2.5 metres still fulfils an entry barrier as well as privacy function and can be characterised as a fence. If this were not the case, innumerable numbers of landowners would need to obtain permits for fences and a planning nightmare would ensue.

1. It is a matter of fact and degree whether a structure is a fence[15] or serves another purpose[16].
2. It is my opinion that, applying Tsobanis, Leibler and Herd, a structure that varies in height between 1.8-2.5 metres can still be characterised as a fence, provided it serves the function(s) of a fence discussed above.
3. However, I note that the 'fence' posts are 4.0 metres in height and do not correlate with the fence height.
4. If Mr Hill, as he represented to me at the hearing, cuts down the height of these posts to the same height as the fence, I would be prepared to make a declaration under the Planning and Environment Act 1987, s.149A that the structure is a fence, which requires no planning permission.
5. I set out directions, including time limits, as to the fence posts, before I am prepared to make a final decision on this question.

[1] Responsible authority says 2 metres high

[2] Submission to VCAT in P370/2007; and P523/2007 prepared by Stuart Stevens, Development Liaison

[6] the same application also sought permission to raise the eastern side of the roof of the existing shed on

the subject land to facilitate fit out of a roller door.

[7] Hill v Campaspe Shire Council [2006] VCAT 2525

[8] Objection dated 10 December 2002 by Catherine Halliday of 4 Lord Court Echuca to the responsible

[10] (1997) 20 AATR 293, Batt J

[11] [2006] VCAT 2477, Martin M

[12] [2000] VCAT 872

[13] (1992) 8 AATR 188, Nathan J

[14] [2000] VCAT 842, Deputy President Macnamara