The application for review is disallowed. The decision of the Responsible Authority dated 22 October 2002 is affirmed.

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For the Applicant for Review: Mr E Stokans, Russell Kennedy, Solicitors

For the Responsible Authority: Mr T Power, Freehills, Solicitors

1. This is an application for review of the decision of the Responsible Authority, dated 22 October 2002, to refuse a permit for "construction buildings and works (swimming pool) to the existing dwelling in a heritage area" at 16 Bethell Street, Ormond. The ground of refusal is that it is considered the proposal will breach the registered restrictive covenant that applies to the land.

2. It was not disputed that the Heritage Overlay under the Glen Eira Planning Scheme applies to the subject land and pursuant to Clause 43.01 a planning permit is required to construct a building or construct or carry out works. "Building " is defined in Section 3 of the Planning and Environment Act 1987 (PE Act) to include a structure and part of a building or a structure, and "works" includes any change to the natural or existing condition or topography of the land including the removal ... of topsoil. It is said an in ground swimming pool falls within these definitions and a permit is therefore required under the Heritage Overlay in relation to the in ground swimming pool proposed on the land.

3. Section 61(4) Planning and Environment Act 1987 (PE Act) provides that a Responsible Authority must refuse to grant a permit if the grant would authorise anything that would result in a breach of a registered restrictive covenant unless a permit has been issued or a decision made to allow the removal or variation of the covenant. In relation to the present matter there has been no permit issued or decision made to allow the removal or variation of the covenant.

4. The subject site, Lot 30 on Plan of Subdivision 9435 being part of Dendy's Crown Special Survey, Parish of Moorabbin, County of Bourke is more particularly described in Certificate of Title Volume 5065 Folio 1012897. The title is encumbered with a restrictive covenant contained in instrument of transfer no. 1241232 dated 2 November 1925.

No quarrying operations shall be carried on on the said land hereby transferred nor shall any marl sand stone or gravel be dug or removed or allowed to be dug or removed from the said lot hereby transferred or any portion thereof except in the way of excavating for the foundation or any buildings to be erected or placed thereon or for use in such building unless the said Frederick Thompson Evan Stewart Robert Bethell Walter George Hiscock and William Whidycombe Bevan consent thereto in writing and further that no building or buildings shall now or at any time hereafter be erected on the said land hereby transferred at a cost of less than Seven hundred pounds without each consent in writing of aforesaid...

6. The Responsible Authority contends that excavation would be required to be carried out to enable the construction of the in ground swimming pool and this would contravene the restrictive covenant as it would amount to the digging or removal of "marl sand stone or gravel" without the written consent of the persons named in the covenant.

7. The Responsible Authority further contended, the applicant could not rely upon the exception provided in the covenant as the word "building" should be given its ordinary meaning and not the meaning defined either in the PE Act or the Building Act as relied upon by Mr Lorenzini.

8. Mr Power referred to the New South Wales Supreme Court decision in Hilderbrandt v Stephen [1964] NSWR 740 in which Justice Jacobs stated, in determining whether the erection of a tennis court fence would breach a restrictive covenant, not to erect a "building":

I have to look at the context and at the surrounding circumstances, in order to determine whether a tennis court fence of this nature is a building. Now, when I look at the context, I find an intention to give the word "building" a wide meaning ...[but] I find, in the context, an indication that a fence was not intended to be included in the word "building"...

I think that in its ordinary meaning, it at least involves the concept of a structure with a roof and a support for that roof.

To me the ordinary concept is, as I have said, a structure of which the main feature is probably the existence of some form of roof. I do not think that a bridge is ordinarily described as a building, nor a built-up road, despite the use in that context of the past tense of the verb "to build". I do not think that a telegraph post or a wireless aerial would ordinarily be described as a building, nor do I think that a fence would ordinarily be so described.

9. Justice Jacobs in reaching this conclusion referred to Moir v Williams [1892] 1QB 264: "What is a 'building' is generally a question of degree and circumstance and its ordinary meaning is a block of brick or stone work, covered by a roof".

10. Mr Power further referred to the Federal Court decision of Thiele v Commonwealth of Australia [1990] FCA 123; (1990) 95 ALR 172, 180 where Justice Hill considered whether a swimming pool was a building in the ordinary sense of the word and after referring to Hilderbrandt concluded :

But to define a building as a permanent structure does not help one to distinguish between a structure on the one hand and a building.

It may well be easier to recognise a building than define what it is. But no matter how one defines a building it would not be an ordinary usage of language to refer to a swimming pool as "a building". The reasoning relied upon by the tribunal in concluding that a swimming pool was a building, namely that it was constructed by a person referred to as a "pool builder", cannot be accepted.

11. Mr Power rejected giving a broad meaning to "building" in the covenant. The wording of the covenant he submitted, is not ambiguous, it firstly prohibits quarrying and secondly digging up and removal of marl sand stone or gravel except in particular circumstances.

12. Mr Stokans agreed that as a general rule a covenant will be construed in the light of all the surrounding circumstances, and terms used within a covenant are usually interpreted in their ordinary and not technical sense. He submitted however, that where doubt arises as to the meaning of particular words, the covenant should be construed against the covenantor in favour of the covenantee. The interpretation of the covenant that promotes the intent or purposes of the covenant is preferred over an interpretation that leads to an absurd result.

13. Mr Stokans sought to rely upon Section 35(a) of the Interpretation of Legislation Act 1984 (IL Act) which provides:

In the interpretation of a provision of an Act or subordinate instrument -

a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;

14. Mr Stokans referred to the recent decision of Senior Member Byard in Trethowan & Anor v Mornington Peninsula Shire council, Chisholm and Ors (2002) VCAT 1377 (26 November 2002) in which he relied upon Section 35(a) IL Act. This was however in the context of the interpretation of a provision of a planning scheme being a piece of subordinate legislation.

15. Mr Stokans also submitted the Tribunal should use the 'purposive approach', to the interpretation of the wording of the covenant, referring to Williams J in Mulchay v Blue Mountains City Council LEGRA 302, that is, a consideration of the purpose or intent of the covenant to be ascertained from the meaning of the words used. In this respect he submitted the intent of the existing covenant is to preserve the residential amenity of the area by ensuring that the land is not degraded by quarrying or the removal of soil.

16. I am not sure that the 'purposive approach' which was used in Mulchay to interpret wording in light of a piece of legislation, is the correct approach in relation to the interpretation of a covenant. There could be a number of reasons as to why a covenant was imposed in the form it was imposed, reading into the covenant and interpreting the covenant in the light of the meaning of words used in a current planning context is not necessarily what the imposition of the covenant seeks to achieve.

17. The Tribunal does not disagree, residential amenity will be preserved because quarrying could not be carried out on the land and the construction of an in ground swimming pool will contribute to the amenity of the residents of the property, but these are not matters for which the Tribunal is required to take into account in considering the ordinary meaning of words used in a covenant. Nor can the Tribunal ascribe to a covenant entered into in 1925 current trends in 2003 that a swimming pool is part of everyday residential living. A swimming pool may well be considered in the present day context to form part of a dwelling or be ancillary to the use of land for a dwelling: Frank Petroulis v Moreland City Council (P602/2002, 11 July 2002). I am however unable to conclude that by merely being ancillary to the use of a dwelling that results in an in ground swimming pool being a building.

18. If one is to look at the context of the covenant and the intention of the covenant from its wording, that is taking a literal approach, what is proposed does not amount to quarrying, that is an operation primarily for the purpose of obtaining material - Bishop v Shire of Upper Yarra [1926] ArgusLawRp 2; (1926) VLR 93. Excavation, digging and removal of marl sand stone or gravel is only for the purpose of installing the in ground swimming pool. To place the swimming pool in the ground it will be necessary to dig and to remove soil to a reasonable depth. The prohibition is on the digging and removal of 'marl sand stone or gravel'. No soil analysis was provided but it appeared to be common ground that soil in the area of the subject site would consist if one was to dig below the level of top soil of marl, being a soil or earth deposit consisting of clay, sand, stone or gravel.

19. The covenant appears therefore to prohibit digging and removal not of top soil but of soil found below the level of top soil that would be exposed if excavation of the depth required for an in ground swimming pool occurred. To allow the installation of an in ground swimming pool without breaching the covenant it is necessary to reach the conclusion that an in ground swimming pool is a building and that the excavation required to be carried out is for the foundation of the in ground swimming pool. Mr Lorenzini submitted 'foundation' in building terms means, the soil that a footing sits on and the 'footing' is the piece of structure that sits immediately above the foundation. If it could be concluded that an in ground swimming pool can be described as a 'building' then it would be placed on the foundation which would then provide support.

20. Mr Stokans referred to a number of decision in relation to what constituted a 'structure' or 'building' but these were all in the context of the application of particular legislation which contained definitions. Mr Lorenzini also indicated the Building Code of Australia defined a "Class 10b building as a non habitable building or structure being a fence, mast, antenna, retaining or free standing wall, swimming pool or the like". It also defines a 'swimming pool' as " any excavation or structure containing water and used principally for swimming, wading, paddling or the like including any bathing or wading pool or spa". I consider in this context it makes it clear that whilst considered as a building for the purposes of the Building Act the references describe it as a structure. Buildings are structures but not all structures are buildings.

21. It is not necessary in considering the ordinary meaning of the word 'building' to resort to legal definitions contained in legislation and in particular to the definition found in the Building Act 1993. This does not assist in considering the ordinary meaning of the word 'building'. Definitions within Acts are usually specifically related to the purpose of the Act and for the purpose of the Building Act it may be appropriate to give 'building' a wider meaning than would be found in ordinary terminology, but in considering the wording of a covenant the ordinary meaning is to be considered and not a wider or specific meaning applicable in the context of a particular Act.

22. It appears from the consideration of a number of cases that a building is a structure, of reasonable size, with some permanency (Stevens v Gourley [1859] EngR 931; (1859) 7 CBNS 99). In some circumstances a hoarding has been held to be a building due to its size suggesting permanency (Nussey v Provincial Bill Posting Co & Eddison [1909] 1 CH 734) or a subway (Schweder v Worthing Gas Light & Coke Co [1912] 1CH 83). However I consider the ordinary concept is as stated by Jacobs J in _Hilderbrand_t, as a structure with a roof.

23. In the context of the present covenant the wording of the exception states: "excavating for the foundation or any buildings to be erected or placed thereon...". The use of the word "or" in this context may be a typographical error, one could ask excavating for the foundation of what? - any building. It may not be a typographical error, this however would lead to the conclusion that suggests the exception applies in three circumstances, that is digging or removal for excavating for the foundation, or excavating for any buildings to be erected upon the land or excavating for any buildings to be placed on the land.

24. I consider that reaching a conclusion that the covenant contains three exceptions leads to an absurd result. The reference to foundation is to "the foundation" , not to "any" foundation or foundations. If read in the context of the covenant in terms of being the foundation of any buildings to be erected or placed on the land this leads to an interpretation that appears to underlie the purpose of the covenant, that is to prevent quarrying or the digging or removal of marl sand stone or gravel from the land.

25. I am unable to conclude that a building given its ordinary meaning includes a swimming pool, a swimming pool is a structure but not a building, as such it cannot be concluded that the excavation, digging and removal of marl sand stone or gravel required to be carried out to allow the proposal falls within the exemptions contained within the covenant.

26. The Responsible Authority indicated that it had no concern over the planning merits of the proposal and the only issue in dispute is the interpretation of the restrictive covenant. I agree with the Responsible Authority that the proposal will result in a breach of the registered restrictive covenant that applies to the land. The decision of the Responsible Authority dated 22 October 2002 is affirmed, the application for review is disallowed.

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