The Tribunal directs that the permit must contain the following conditions:

1 Before the use and/or development starts, three copies of amended plans drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit.

The plans must be generally in accordance with the plans submitted with the application (Job No. 087-01 Ref No. B/1474, dated 30/05/2001) Sheet No. A-2 Proposed Floor and Site Plan, but modified to show:

(a) details of the driveway location, with dimensions;

(b) the finished surface of the driveway and external car parking spaces in dark coloured concrete, bitumen or pavers;

(c) the provision of a raised kerb around the parking spaces so as to prevent damage to fences and the provision of an approximately 1.5 metre landscaping strip between the three parking spaces and the side fence;

(g) a disabled persons' parking space and a disabled access ramp into the building to the satisfaction of the Responsible Authority.

2 The use and development as shown on the endorsed plan must not be altered without the written consent of the Responsible Authority.

3 Stormwater must not be discharged from the subject land other than by means of drainage to the legal point of discharge. The drainage system within the development must be designed and constructed to the requirements and satisfaction of the relevant Building Surveyor. A connection to Council maintained assets must not be constructed unless a Miscellaneous Works Permit is first obtained from the Responsible Authority.

4 The whole of the land, including landscaped and paved areas, must be graded and drained to the satisfaction of the Responsible Authority to minimise overland flows onto adjoining properties.

5 Before the use commences, the car park and access lanes as shown on the endorsed plan must be constructed with an all-weather seal coat (comprising dark coloured concrete, pavers, grass crete or bitumen), drained and line-marked to the satisfaction of the Responsible Authority.

6 Parking areas and access lanes must be kept available for these purposes at all times and must be maintained to the satisfaction of the Responsible Authority.

7 A sign (not exceeding 0.3 square metres in area) to the satisfaction of the Responsible Authority must be provided directing drivers to the car park and such sign must be located and maintained to the satisfaction of the Responsible Authority.

8 Staff vehicles must not be parked on nearby roads during the operating hours of the permitted use.

9 The loading and unloading of goods from vehicles must only be carried out on the subject land.

10 Prior to the commencement of the development, a landscaping plan prepared by a landscape architect or person of approved competence must be submitted to the Responsible Authority for approval. Such plan must be generally in accordance with the endorse plan and must show species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs, where appropriate, including:

* the provision of two canopy trees within the front setback;

* landscaping along the western boundary of the site, particularly adjacent to the proposed car parking.

11 Prior to the release of the endorsed plan, a $500 cash bond or bank guarantee must be lodged with the Responsible Authority to ensure the completion and maintenance of landscaped areas, and such bond or bank guarantee will only be refunded or discharged after a period of 13 weeks from the completion of all works provided the landscaped areas are being maintained to the satisfaction of the Responsible Authority.

12 Prior to the commencement of the permitted use or the occupation of the associated building, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

13 The number of practitioners who may attend the centre at any one time must not exceed one and in the event of a roster system being applied, such roster must ensure that no overlap of consultation periods occurs.

14 Except in the case of an emergency, the centre must only operate between the hours of:

15 Any infectious or potentially infectious wastes (as defined by the EPA) must be placed in yellow colour coded containers for infectious wastes and orange containers for potentially infectious wastes and must be disposed of in accordance with Environmental Protection Authority (EPA) requirements.

16 Any burglar alarm installed within the building must be a silent type.

17 All noise emanating from any mechanical plant (air conditioners etc) on the site must comply with the State Environment Protection Policy N-1.

18 An in-ground watering system must be installed in the main landscaped areas to the satisfaction of the Responsible Authority.

19 External lighting must be designed so as to ensure no loss of amenity to residents of adjoining properties to the satisfaction of the Responsible Authority.

20 No advertising sign may be erected or displayed without the permission of the Responsible Authority.

21 The rubbish bin storage area must be maintained in an orderly condition to the satisfaction of the Responsible Authority.

22 Buildings, paved areas, drainage and landscaping must be maintained to the satisfaction of the Responsible Authority.

23 This permit will expire if one of the following circumstances applies:

* The use and development is not commenced within two years of the issue date of this permit.

* The development is not completed within two years of the date of commencement.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

Ms Natasha Swan, Senior Planner, Manningham City Council.

Mr Rodney Omond-Smith, representing himself, in person.

Mr P Connor of Counsel, instructed by Moores Legal.

1 The proposal is in two parts. One application is for the removal of a Restrictive Covenant contained in Instrument of Transfer No. C564423.

2 The second part of the proposal is the development and use of the land for a Medical Centre, by the conversion of a private dwelling. The Medical Centre is proposed to be a single doctor practice operating between 9am to 8pm Monday to Friday and between 9am to 1pm on Saturdays, with one nurse and one receptionist/nurse.

3 In order to facilitate the use on the land it is proposed to convert the former dwelling's double garage to a reception room. The existing roller door will be removed and replaced with windows and a door entry into the reception.

4 Three car spaces are to be provided along the eastern boundary within the front setback, one car space adjacent to the western boundary in the south-western corner and one car space adjacent to the waiting room, adjacent to the western boundary. The plans do not show the detailed location of the proposed driveways. A small garden bed is to be provided within the front setback. The elevation shows the provision of a disabled access ramp from the waiting room door.

5 The covenant contained in transfer C564423 imposes the following restriction:

Not at any time to erect construct or build or cause to be erected constructed or built or allow to remain erected constructed or built on Lot 19 or any part thereof any building other than a private dwelling of brick with outbuildings.

6 Notice of Planning Application PL01/012523 for the use and development as a Medical Centre was carried out at the direction of the Tribunal on 2 September 2003, by the sending of Notices to the directly adjoining properties. No objections have been received. The council has indicated its support, on planning grounds, of the proposal, subject to some modification of the parking spaces.

7 Notice of Planning Application PL03/014473 for the removal of the Covenant was given to all beneficiaries of the Covenant. Six (6) objections were received, all from legal beneficiaries.

8 The grounds of beneficiary objection can be summarised as follows:

9 The proposed development and use of the Medical Centre, subject to some modification of the car parking arrangements, was considered suitable for the site under the Manningham Planning Scheme. However, Council considered that this development and use is contrary to the covenant on the land, and issued the following ground of refusal:

The proposal results in a breach the covenant contained in Transfer C564423 registered on the Certificate of Title for the land Vol 9428 Fol 797.

10 At a 29 August 2003 Directions Hearing Morris, J. outlined the two relevant issues which the determination of this application for review raises:

(a) whether the proposed medical centre is appropriate having regard to the planning merits.

(b) whether the terms of the restrictive covenant, as it presently stands, affect the use of an existing dwelling as a medical centre, as opposed to the erection of a building for a medical centre.

11 Mr Connor advised that if the covenant is breached, he is unable to contest s.60(5)(a) and (b) as their bar is excessively high, as expressed in McFarlane v City of Greater Dandenong [2002] VCAT 469. Rather, he is relying on the legal argument that the proposal to convert the existing dwelling to use as a medical centre, does not breach the covenant in the first place.

12 He stressed that his client's application is for a section 2 use and for the following works in association with a section 2 use:

(b) change door of garage to entry door and windows;

(d) internal changes because they are exempted under cl.62.02 provided they are an internal rearrangement with no increase in gross floor area.

(i) like Panayiotou_, the covenant deals with erection/construction of buildings and not `use';_

(ii) the covenant could have included words that showed it was concerned with `use' but it did not; and

(iii) the only purpose of the third part of the covenant is a `belt and braces' approach and its only purpose is to get a building built in breach of the covenant in the first place, removed.

14 Morris, J in Panayiotou v Moonee Valley CC [2003] VCAT 1279, considered whether use as a child care centre offended the following covenant:

No building shall at any time hereafter be erected on the land hereby transferred save one dwelling house with the usual and necessary outbuildings thereto and such dwelling house shall front McCracken Street.

This case turns upon the construction of the words in the covenant. It is established that in approaching such a task the object is to discover the intention of the parties as revealed by the language they have used in the document in question. (See, for example, Tonks v Tonks [2003] VSC 195 per Bongiorno J.)

The answer to the question must lie in the words used in the covenant. Turning to those words, it is apparent that the covenant is essentially concerned with the erection of buildings. The initial operative words in the covenant are that no building shall at any time hereafter be erected on the land. Those operative words are then qualified by a saving provision. The focus of the covenant is upon the erection of buildings; it is not upon the use of buildings.

In the first instance, namely the permission in relation to the use, to so hold would require one to infer into the words used in the covenant words such as 'and used as'. Reading the words in their plain and ordinary manner, they do not cover the use of buildings at all; but, rather, are directed at the erection of buildings.

Mr Finanzio submitted that if the covenant was intended to cover the use of buildings it could have said so. ... The absence of specific words in relation to use in this case, in my opinion, does negate any possibility of inferring that such words are to be embraced within the words actually used.

Essentially my conclusion is that the promise made in the covenant was a promise about how the area must be developed. It was not a promise about how the area would be subsequently used into the future.

I note that neither counsel was able to identify an authority which was precisely in point in relation to this matter. ... As Chief Justice Mann said in Marshall and Scotts Contract [1938] VicLawRp 22; [1938] VLR 98, small differences in words are of great importance and the decision often turns on them. It follows from that comment that it is dangerous to take a statement, such as that in Bradbrook and Neave, and apply it without carefully scrutinising the words of each covenant upon which the authors have based their premise.

16 The statement referred to by Morris, J. in Bradbrook and Neave Easements and Restrictive Covenants in Australia (2nd Edition) @ p. 367 para 15.10, reads:

Courts have often been prepared to infer restrictions on the use of buildings from restrictions on the type of building which can be erected. For example, a covenant prohibiting the building of anything other than a private residence is likely to be held to prevent its use for non-residential purposes, for otherwise the covenant would be ineffective. ...

See, for example, Bray v Fogarty (1870) 4 IR Eq 544 and the other cases discussed in Preston and Newsom, Restrictive Covenants Affecting Freehold Land (8th ed, 1991) pp 124-6.

17 In Bray v Fogarty, an Irish case, a lease contained a covenant that a house, to be built immediately adjoining the house in which the lessor lived, should be built fit for a private family, under a penalty of ten pounds yearly additional rent, unless the lessor should convert his house to any public use. The Vice-Chancellor held that the construction of the covenant extends to the keeping of the tenement intended to be built adjoining the lessor's house, as a private dwelling house, and is not confined to the building of it as such. He held that the covenant would be nugatory if, as soon as the tenement was erected by the lessee, he was at liberty to change its character into that of which he was prohibited from erecting it.

18 On the face of it, one could mount the same argument here. What, one may hypothetically ask, is the purpose of building a private dwelling, if there is no obligation to keep it as such, and one is otherwise able to convert its use to a non residential one? One could ask of Mr Connor's argument, why would they need the `braces' in the third part? If a [commercial] building, as opposed to a private dwelling, is built unlawfully, it remains unlawful under the covenant, therefore the court retains the powers to order its removal. One could ask why the third part can't also deal with a change of use by a landowner, that enables a beneficiary to obtain relief under the third part for a building that has not remained as a `private brick dwelling house'?

19 Clearly, there are valid and testing arguments on both sides. Precedent cases of covenants which expressly mention continuing use[1], not just development, do not assist me, as they specifically address land use, unlike the covenant with which I am concerned.

20 Similar to the situation in Panayiotou, the words of the covenant with which I am concerned commence with the built form restriction not at any time to erect construct or build, and make no reference whatsoever to use as a private dwelling, although unlike Panayiotou, the covenant requires the private dwelling to remain so erected. But closer examination of Bray v Fogarty than occurred in Bradbrook and Neave, shows that the latter was indeed concerned with use, as expressed in the actual words of the covenant itself which annuls the covenant if the lessor should convert his house to any public use.

21 Morris, J. in Panayiotou also referred to Tonks v Tonks [2003] VSC 195, per Bongiorno, J. which concerned the following covenant:

...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.

22 The argument was whether those words prevented the construction of more than one dwelling house on a [(as it happened) battleaxe] lot. Bongiorno, J. held that

The richness of the English language is such that even slight changes in the wording used or even in the order in which words are used have a significant effect on the meaning of phrases which, at first glance, appear similar. See re Marshalls & Scott's Contract [1938] VicLawRp 22; [1938] VLR 98 @ 100 per Mann CJ.

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...The covenant says nothing as to the number of dwelling houses which might be built.

23 Given my analysis that Bray v Fogarty does indeed address use, Morris, J's decision in Panayiotou that absence of words addressing use are critical and Bongiorno, J's decision in Tonks that a contrary intention could easily have been expressed but was not, it is my opinion that this covenant concerns "built form" as a private swelling but not land use as a private dwelling.

24 As to the planning merits, because no objections have been received from neighbours and because the council has indicated its support of the proposal, on planning grounds, subject to some modification of the parking spaces, I propose to direct the issue of a permit. Here follows my decision on council's desired modifications. The site is screened from outside view by a high brick fence, which will also screen the car spaces in the front setback from view. Council wanted to set back the three car spaces next to the fence (which abuts the neighbours driveway) for landscaping and kerbing to protect the side fence and to remove two of the remaining car spaces back into the garage which the doctor desired to convert to a reception.

25 I have acceded to council's first request, but the screening impact of the existing brick fence is such as to render the additional two spaces provided on site reasonable, rather than either:

(ii) relegating the fifth space onto Church Road where an additional patient can park instead

(iii) disallowing conversion of the garage to reception.

26 I have granted the applicant's review subject to conditions, as the use and limited works proposed do not breach the restrictive covenant.

[1] Shenstone v Hewson [No.3] [1929] NSWStRp 14; (1929) 29 SR (NSW) 377; Re Wilson and Conveyancing Acts 1919-1943 [1949] NSWStRp 22; (1949) 49 SR (NSW) 276.