Lampard v Bayside CC [2005] VCAT 234

Lampard v Bayside CC [2005] VCAT 234 - VCAT 2005 case summary — Zoe

[29]

23 These cases all refer to the interpretation of natural ground level where this expression is used in statutes and planning schemes. In the present case we are interpreting an agreement between parties. In this context what is important is what the intention of the parties was when they used this expression.

24 The natural contours of the subject land have been altered by successive developments over many years. At the time of the subdivision, when the plan annexed to the original agreement and the survey feature and level plan dated 26 April 2001 were prepared, the site varied in level all over it due to prior development. A large part of the site had been excavated to accommodate a former tennis court. This was surrounded by retaining walls with higher ground and garden areas surrounding it. To the north was a large palm tree and an in ground swimming pool, again surrounded by retaining walls.

25 This was a highly modified site with varying ground levels. In the context of setting a benchmark from which to measure a height restriction for future development, we consider that it is unlikely that one or more of the existing levels of the site immediately prior to development of the dwelling would have been selected as representing the "natural ground level". The level at Seacombe Grove is much more likely to represent what the parties meant by natural ground level than the various altered levels existing across the subject site.

26 In the circumstances of this case we consider that there is an ambiguity in the terms of clause 6(b) about what is deemed to be natural ground level. To resolve this ambiguity, we need to ascertain and give effect to the intention of the parties at the time when they entered the agreement. We find from the documentary evidence before us that at the time when the parties entered the original agreement they understood natural ground level to refer to the ground level at the frontage of the lot at Seacombe Grove. Based on the inclusion of clause 6(c) in the new agreement we find that this is also the intention of the parties in respect of the new agreement. This new agreement was entered into after the completion of the new house on the allotment and with full knowledge of the dispute which is now the subject of this application for declaration. By the inclusion of clause 6(c) in the new agreement the parties have expressly sought to clarify their understanding of the meaning of the agreement and confirm that the dwelling as constructed in accordance with the plans referred to in clause 6(c) satisfies the other covenants in the agreement.

[33]

31 In the present case, we consider that if the intent of the parties was that the building not exceed 8 metres in height, the restriction would have been expressed in these terms. There is no point in referring to a wall height when in most cases the external wall height will be less than the overall building height, which must also include the height of the roof. Therefore, although the correspondence to Mr Lampard senior prior to the Council's consideration of the permit application for subdivision referred to "maximum building height" and "the height of the dwelling", by the time that the notice of decision was issued, the appeal was heard and determined by the Administrative Appeals Tribunal and the section 173 agreement was entered, it was clearly the intention of the parties that the 8 metre height referred to "walls" not the height of the building.

32 We do not consider that the findings of the Tribunal in Banyule City Council v Zumpano should lead us to a different conclusion. The provision in Zumpano's case that the Tribunal was called upon to interpret and apply was found in a schedule to the Significant Landscape Overlay which provided that a planning permit is not required for a dwelling unless the height of any part of a wall is more than 8 metres above the natural surface level of the ground directly below it, or any part of the building is more than 12 metres above the natural surface level of the ground directly below it.

33 Zumpano was a case where the original plans of the dwelling showed walls all in excess of 8 metres on a third level. Subsequently, non-compliance with the planning scheme was identified and the plans were changed. The rooms on the third level remained, but instead of external walls visible from the outside the external skin on these walls was deleted and the roof was extended over the walls and the external windows, which now appeared through the roofing material, in the form of a "mansard" roof.

34 The Tribunal found that these walls, that is the stud walls within the "mansard" roof, were walls within the meaning of the overlay. The Tribunal said:

[35]

35 The applicant sought to argue that we should similarly find that the walls of the roof terrace, which are set back from the external perimeter of the building and contained within the overall roofline but which are nevertheless externally visible, are walls to which the restriction applies.

36 We disagree. In Zumpano's case the mansard roof was a sham and represented nothing more than a slightly sloping external wall to the dwelling. In the present case, we are not dealing with a mansard roof but a conventional pitched roof within the profile of which the roof terrace is inset. We do not consider that the rear wall of the roof terrace can be counted as a wall for the purpose of interpreting the agreement. It does not increase the height of the building or alter its profile. Although the Tribunal in Zumpano's case found that the stud wall concealed by the mansard roof was a wall for the purpose of interpreting the schedule to the overlay even though it was not externally visible, the Tribunal looked to the purpose of the height thresholds in the overlay schedule in reaching its conclusions. It found that the purpose of the height thresholds was to determine if a planning permit is required because of the potential for buildings of a certain height above natural surface level to compromise the purpose of the significant landscape schedule. It found the height triggers were intended to capture proposals which should be subjected to a comprehensive planning assessment against the purposes of the Significant Landscape Overlay and the decision guidelines which seek to conserve and enhance the character of the significant landscape that the overlay applies to. The sham nature of the mansard roof meant that it was therefore not appropriate to measure the height of the wall between the ground and the under side of the eaves of the mansard roof for the purpose of deciding whether or not exemption from the planning requirement applied.

37 We note that the Tribunal in Zumpano's case was dealing with the effective height of the external walls of the building in question whether those "walls" were described as walls or roof. We consider that in the present case we must likewise consider what the external walls of the building are. The meaning of the word "wall" must be given its ordinary meaning within the context in which it is used. In the context of the agreement there is a maximum height applicable to any wall but the context inherently recognises that the overall height of the building will be greater. We therefore find that in the section 173 agreement the word "wall" means an external perimeter wall above which there will be a roof profile. We find that the west and south walls of the roof terrace are therefore not to be construed as "a wall" for the purpose of interpreting and applying clause 6(b) of the agreement because they are not perimeter walls.

38 For similar reasons we conclude that the walls of the lift shaft should not be considered in the application of clause 6(b) either. We consider that the lift shaft is akin to a chimney or other appurtenance and would not normally be construed as a wall in the context of interpreting a restriction on wall height as distinct from building height.

[38]

44 First, we are not prepared to make a declaration regarding any breach of clause 6(f) of the agreement regarding the club house building based on the principal of de minimus non curat lex[1]. If ever there was a breach of this clause, events have overtaken it and rendered it futile. Absolutely no purpose would be served in making a declaration regarding it. In light of the circumstances we find it surprising that the clause was retained in the new agreement, which was only entered in September 2004 after the plan of subdivision which amended the boundary between Lot 1 and Lot 2 was registered.

45 With respect to clause 6(b), even though we have found there is no breach of this clause, we would have declined to make a declaration in any event. We do not consider that any purpose would have been served by making the declaration sought. The applicant is not a party to the section 173 agreement. The two parties to the agreement, the Council and the respondent, are both satisfied with the dwelling that has been constructed and do not consider that it breaches the agreement or the intent of the agreement. If the purpose of the declaration is a precursor to an enforcement order application by the applicant, it is difficult to see why such an application was not made in the first place. It is open to any person to apply to the Tribunal for an enforcement order if a use or development of land contravenes an agreement under section 173. However the declaration process may have been used because it is not likely that an application for enforcement order would have been successful. Construction of the dwelling commenced in April 2002. The external walls and roofing was substantially completed in December 2002. There has therefore been a significant delay in bringing proceedings. It is not as though the applicant was unaware of the facts. We acknowledge that the applicant raised concerns about the dwelling with the Council. But by delaying bringing action the applicant has forfeited whatever rights he may have had to relief. Mr Wren, on behalf of the respondent, referred us to the equitable defence of laches, which is described in a leading text on equity in the following terms:

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Judgment (45 paragraphs)

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Cases Cited (1)

Lampard v Bayside CC [2005] VCAT 234 (15 February 2005)