A. This application for review is granted. A permit is granted for a swimming pool with associated decking and pool fencing in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

Before commencement of the development works allowed by this permit plans of the proposed works must be submitted to and approved by the responsible authority. Such plans must be drawn to scale with dimensions and three copies must be provided. When approved such plans will be endorsed as evidence of their approval and there upon they will be the endorsed plans in relation to this permit.

The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.

Pollution and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways during the construction of development works. (Conditions required by Melbourne Water).

This permit will expire if:

i

The development does not start within two (2) years from the date of this permit; or

ii

The development is not completed within four (4) years of the date of this permit.

The responsible authority may extend the times referred to if a request is made in writing before this permit expires or within three (3) months after the expiry date.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr David Brennan, academic lawyer, appeared for the applicants, Kerralie Shaw and Andrew Korbel. He presented written and oral submissions.

Mr Tim Power, solicitor of the firm of Freehills, Solicitors, appeared with Mr Mark Stanojevic, town planner for the responsible authority. He presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal

Application under Section 77 of the Planning & Environment Act 1987 (PE Act) for a review of a decision of the responsible authority to grant a permit.

Residential 1 zone and subject to a special building overlay and a development contributions overlay under the Glen Eira Planning Scheme.

"It is considered that the grant of a permit would result in a breach of the restrictive covenant registered to the property. Therefore, the application must be refused pursuant to Section 61(4) of the Planning & Environment Act 1987."

"The ground of application for review is that the grant of a permit would not authorise anything which would result in a breach of a registered restrictive covenant."

The applicants have sought planning permission for the construction of an in-ground swimming pool with associated deck and fence in the backyard of the house presently being constructed for them on the review site. A previous house has been demolished to make way for the new one.

Although the proposed swimming pool is an in-ground one, the upper lip of the pool will be 600mm above natural ground level and the level of the deck will be 700mm above ground level.

This land is in a Residential 1 zone, but there is no requirement, so far as the Residential 1 zone provisions are concerned, for planning permission for the proposed swimming pool and ancillary works. The need for a permit arises because the site is also subject to a special building overlay provided for in Clause 44.05 of the Planning Scheme. Clause 44.05-1 provides that a permit is required to construct the building or to construct or carry out works including a fence and road works, but subject to a number of specified exceptions.

One of these exceptions is that the requirement for permission does not apply:

To an in-ground swimming pool and associated security fencing, where the perimeter edging of the pool is constructed at natural ground levels and excavated material is removed from the flow path.

Because the perimeter edging of the pool and the associated deck will be 600mm and 700mm respectively above natural ground level, the exception does not apply. Thus a permit is required.

However, it is common ground between the parties that there is no reason based on the planning merits of the proposal why a permit should not be granted. The purposes of the special building overlay are set out in Clause 44.05, and they relate to questions of flooding. The site has a fall from its street frontage on its western side to the east with a cross fall from south to north. The proposed pool and associated works are to be located in the north eastern segment of the land in a position where they are protected, from a flood point of view, by the new house itself. This house wraps around the western and southern sides of the pool and is thus uphill of the pool on each aspect. Furthermore, the house is being built on slab footings. It forms a protective wall preventing overland flood flows from reaching to proposed pool.

It is common ground, between the parties that, so far as any question of planning permits is concerned, a permit should be granted.

The hitch in this case arises in a somewhat unusual way, and has nothing really to do with flood considerations that give rise to the application of the special building overlay to the land. The land happens to be subject to a restrictive covenant imposed in 1926. Although the terms of the restrictive covenant do not relate to flooding, Section 61(4) of the PE Act nevertheless prohibits the grant of a permit if it would authorise something that would breach the covenant.

A permit is needed under the overlay provisions, which relate to flooding. A permit is sought to authorise the pool, deck and fence. If the pool, deck and fence are prohibited by the restrictive covenant, then the permit under the overlay cannot be granted, even though the restrictive covenant does not relate for the purpose of the overlay, namely flooding considerations.

It is probable, in the circumstances, that if application had been made for a modification to the restrictive covenant, to make it clear that the swimming pool, deck and fence were being allowed, that the application would have succeeded. However, one cannot be certain of that. In any event, no such second application is before me.

The real issue in this case then is to determine whether the proposed works are contrary to the restrictive covenant.

In the course of the hearing there was argument presented on both sides in relation to this issue, together with reference to various decided cases. Having heard the parties, I considered the issue and gave an oral decision with oral reasons. In doing so I indicated that some of the submissions that had been made to me were not, in my opinion, relevant. Having given oral reasons, I will content myself here with a summary, without attempting a verbatim recapitulation of what I said in the hearing. I note that the parties had the opportunity to make notes of what I said at the time, and that my reasons were recorded. In this summary, I propose to disregard the submissions that I considered to be irrelevant.

The relevant restrictive covenant appears in Transfer of Land No. 1249252 and is in the following terms:

... will not excavate carry away or remove or permit to be excavated carried away or removed from the land hereby transferred any earth clay stone gravel or sand except for the purpose of excavating for the foundations of any buildings to be erected thereon or use or permit or allow the said land to be used for the manufacture of winning of bricks tiles or pottery ware.

The second aspect of the covenant deals with the manufacture or winning of bricks, tiles or potteryware. There is no question, in this case, of there being any excavation for such a purpose or use of the land for such a purpose. Consequently, there is no question of allowing something that would contravene that aspect of the covenant.

If there is a problem, then it is a problem that arises in relation to the first part of the restrictive covenant in relation to the excavation and removing of any earth, clay, stone, gravel or sand.

Obviously enough, it would be necessary to dig a hole to accommodate the proposed in-ground swimming pool. This involves the excavation of whatever soil, sand, rock or similar material that, at present, occupies the place where the pool is to be located.

The wording of the covenant provides an exception in relation to the foundations of a building. If the swimming pool is a building, then the exception would apply and there would be no difficulty about granting the permit because there would be no permission granted for something that would contravene the restrictive covenant.

However, in the case of Isles v Glen Eira CC [2003] VCAT 2039, there was considerable debate about the meaning of "building" in the context of a restrictive covenant in quite similar terms to the one in this present case. That was also a case involving a proposal for an in-ground swimming pool.

"Building" has to be read in the context of the restrictive covenant in which it appears, and thus, according to its ordinary English meaning in that context, rather than in terms of statutory definitions (such as in the PE Act) which extend the meaning beyond its ordinary English meaning. It was held in Isles' case that an in-ground swimming pool is not a "building" in terms of the restrictive covenant in that case. I do not find it necessary to determine whether this proposed swimming pool is a "building" within the meaning of the covenant in this case.

It was common ground between the parties that the terms of the covenant must be read and interpreted in an ordinary English "non-technical" sense, having regard to the context in which the covenant appears, with the object of discovering the intention of the parties as revealed by the language used by the parties in the document concerned. The restrictive covenant has its origin as a condition in a contract for the sale of land. The question is: was the intention between the parties, as expressed by the words used in their contract (presumably from 1925) only that the possibility of extractive industries such as the winning of sand, clay, rock, soil, etc. should be prohibited, or did it intend to extend to prevent any excavation, even if ancillary to residential use like a domestic swimming pool.

The argument for a narrow literal view is supported, to some extent, by the existence of the exception in favour of the foundations of "any building". The argument then is that, if the excavation is for the purposes of some item, even the foundations of some structure, which is not a "building" within the meaning of the restrictive covenant, then such excavation is outside the exception and would be contrary to the covenant. If the exception was intended to extend to the foundations of works or structures other than "buildings" it could and should have said so expressly.

I do not accept that this suggested approach is the correct approach in this case. I think the exception is included to make it perfectly clear that excavations of foundations for buildings are not intended to be included, but I do not think that it was the intention of the parties to exclude excavations for other items ancillary to the purpose of the buildings. I think the purpose was to prohibit the extracting and removing of sand, soil, stone, clay and the like for purposes of using those materials for manufacturing or for commercial or other purposes beyond the site. If there was to be an excavation for a backyard lily pond, or to remove some soil not suitable for a garden to replace it with mountain top soil, or to lay a drain or establish a rotary clothes hoist in association with a residential use of the land, I do not think that it is intended that any of those sorts of activities should be excluded by the restrictive covenant. I note, by the way, that this allotment, having regard to its size, dimensions and location, is a suitable one for a residential use.

It was noted, in the submissions made to me in relation to various decisions of the Tribunal, that the Isles' case took the narrow, literal view that I disapproved of above in my decision in Foodies Pty Ltd v Booroondarra CC [2004] VCAT 1628. It is true, of course, that each case has to be determined on its own circumstances, and each restrictive covenant has to be considered separately. The wordings of covenants do vary, and they are not always as well expressed as they might be. I nevertheless think that it is true to say that Isles' case stands apart from a number of subsequent decisions of the Tribunal, referred to in argument in this case, that have sought to interpret restrictive covenants of this general type on the basis of the intention of parties to the contract (as expressed by the words used) where the conclusion has not been to exclude excavations for ancillary purposes related to allowable or intended uses of land eg. in-ground swimming pools.

For the reasons given at the hearing, I concluded that the proposed in-ground swimming pool, with its associated excavation, is not contrary to the applicable restrictive covenant and that therefore, section 61(4) PE Act does not prohibit the grant of the permit sought.

There being no other reason for refusing the permit, it clearly should be granted.

The parties agree with the brief set of draft conditions proposed by the responsible authority.

_________________

RUSSELL BYARD

SENIOR MEMBER