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For the Applicant for Review: Mr Jeremy Gobbo QC, instructed by Minter Ellison, Lawyers.

For the Responsible Authority: Ms Adeline Lane, and Mr Patrick Doyle (on 14 April 2003), solicitors of Maddocks Lawyers

For the Respondents/Objectors: The following Objectors appeared in person:

1. This was a preliminary hearing to consider a question of law arising from an application under section 77 of the Planning and Environment Act 1987 to review a decision by the City of Frankston to refuse a permit (in Application No. 02643) for the land at 2 Fenton Crescent, Frankston to be developed for the purpose of a messuage containing four residential units.

2. It is proposed to erect a large building on the subject land, comprising four dwellings. Two of these are at ground floor level, and two at first floor level. A single front door opens onto a small entry lobby, which provides the means of access to each of the dwellings. To get to that small entry lobby, one needs to walk through a car park, which is contained within the building. There is no direct means of access between the four dwellings, other than by way of the lobby on each level.

3. The development is unusual in that one needs to walk through an enclosed car park before one accesses the entry door and lobby to the four units. As the land slopes down towards the rear, and as there are extensive views of the bay from the rear, it has been decided to construct the building with the car park at the front, so the dwellings get the views. The layout adopted also has a lot to do with the word `messuage' which is pivotal to the consideration of this case. The features of this layout include:

(b) a common central passageway [lobby], off which the entrances to the individual units are positioned;

(c) shared areas of communal open space in addition to private open space;

(d) a common staircase and elevator leading to an upper floor;

(e) dividing walls between the units which cannot be easily divided vertically;

(g) a shared area for carparking, with a single vehicular entrance and exit, and a shared single pedestrian exit from the carpark into the communal part of the building.

4. Mr Gobbo conceded that one could subdivide the building into four separate titles plus common property owned by a body corporate.

5. It is clear that the building is to be used by four different household groups sharing an undercover carpark, BBQ area and garden plot.

6. The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Frankston Planning Scheme, Clause 32.01-4. Within this zone no permit is required to use land for the purpose of a dwelling. However, pursuant to Clause 32.01-4, a permit is required in this zone to construct two or more dwellings on a lot .

7. The subject land is also affected by a Design and Development Overlay: Schedule 6 (Frankston-Seaford Coastal Strip). A permit is required for buildings and works pursuant to Clause 43.02-2 of the overlay controls.

QUESTION OF LAW TO BE DETERMINED IN THIS PRELIMINARY HEARING

8. Section 61(4) of the Planning and Environment Act 1987 prevents a responsible authority granting a permit for anything which would result in a breach of a registered restrictive covenant. There is an exception to this rule, also contained in s.61(4), but the exception is not relevant to the present circumstances.

9. This hearing has been listed as a preliminary hearing to consider whether the proposal breeches the restrictive covenant affecting the subject land. The subject land is affected by more than one registered restrictive covenant, however only one is relevant for the purpose of this decision.

10. The restrictive covenant registered in transfer number 1770776 (`the covenant') affects the majority (but not all) of the subject land, more particularly being that part described as Lot 6 on Plan of Subdivision 12936. The covenant was executed on 29 April 1940. It provides in relation to this part of the subject land:

... that no gravel or sand shall be dug out of the said land hereby transferred except for the purpose of excavating for foundations nor shall such land be used as a road or street nor shall the said land be used for any purpose other than residential purposes and that not more than one messuage shall be erected on the said land ...

11. At this point it is relevant to note that a subsequent transfer of land out of this estate amended the wording of the covenant to include the words "or dwelling house" which extra words are missing from our subject covenant. The amended covenant in subsequent transfers reads:

And that the said land hereby transferred shall not be used for any purpose other than for residential purposes and that no more than one messuage or dwelling house with suitable outhouses shall at any time be erected on the said lot hereby transferred and ...

12. Mr Gobbo QC submitted from the dictionary definitions that `messuage' can be understood as either land containing house and appurtenances within a curtilage or merely a building itself (structure). He added that messuage is not limited to residential premises, for which he relied upon an Irish competition law case.

13. He said messuage is a very broad word, connoting a building, and not limited to the number of households in that building. He said messuage is a building, different to a house, different to a dwelling house, which, in turn, is different to a dwelling, but that even if it is a house or a dwelling house, it can accommodate more that one single domestic household group therein. For this proposition he relied upon the more recent case law in Natraine; and Longo, although neither of those cases used the word messuage in their covenant.

14. He said that it is only the use of the word dwelling which is the `single household' concept, i.e. the purpose of the use concept. He argued that dwelling house refers to the structure, not the use.

15. Mr Gobbo QC distinguished the cases he analysed on whether their covenants restrained use or development (form of structure).

16. Mr Gobbo's fundamental argument was that a careful consideration of the covenant in this instance, indicates that whilst the form of the building to be erected on the land was to be limited to a single structure, its use could be for more than one residence or dwelling - the only limitation being that all of the use or uses of the structure be for residential purposes.

17. Another of Mr Gobbo's fundamental arguments was that the covenant should be strictly construed. He said the evidence suggests that the term `messuage' was used deliberately, as it would equally have been open for the covenant to refer instead, or in addition, to the term `dwelling house' (as did the next transfer out of the parent title), or to use some other term such as `dwelling' or some other term in common use at the time, if it were intended that the structure should not house more than one domestic household group. His submission effectively equates one messuage with one building.

18. I agree that the way the covenant is worded, there is a distinction between the use of the land, which is clearly limited to residential use (but not necessarily to a single residential use or single household domestic use), and the construction on the land, which is limited to one messuage. The burning question is whether the word messuage is limited to a single household structure or can be understood as a multiple household structure (four flats housed within one building).

THE ARGUMENTS BY THE RESPONSIBLE AUTHORITY AND THE OBJECTORS

19. Ms Lane submitted that all the cases relied upon by Mr Gobbo QC, where the covenant uses the word `house', `building', `dwelling house' or `dwelling' are not on point. The only useful precedent to be relied upon is one that uses the word messuage, eg Rogers v Hosegood [1900] 2 Ch. 388 @ 393,4.

20. Ms Lane also submitted that the Irish conception of the word, relied upon by Mr Gobbo QC, is equally unhelpful, and that local examples of use of the word should be relied upon, such as the High Court in the Royal Sydney Golf Club case, which is closer to our local understanding.

21. In considering the ordinary meaning of words, it is customary for courts and tribunals to have regard to dictionary definitions. Here follows a list of the definitions provided by both parties as well as researched by the Tribunal.

22. The Complete Oxford English Dictionary, 1933 edition, contains the following definition:

Originally, the portion of land intended to be occupied, or actually occupied, as a site for a dwelling house and its appurtenances. In modern legal language a dwelling house with its outbuildings and curtilage and the adjacent land assigned to its use.

23. The Shorter Oxford English Dictionary (1944 edition) indicates that the word `messuage' was probably derived from Norman French, being a corruption of the word `menage', which means a household, or a group of people living together as a unit. The definition reads as follows:

Orig., the portion of land intended as a site for a dwelling-house and its appurtenances. In mod. Legal use, a dwelling-house with its outbuildings and curtilage and the adjacent land assigned to its use ...

24. The Macquarie Dictionary (1991 Edition) suggests the same Norman French etymology, and a substantially similar definition:

Law. a dwelling house with its adjacent buildings and the lands appropriated to the use of the household.

25. The following definitions of `messuage' are taken from Butterworths Encyclopaedic Legal Dictionary:

1. Property comprising a dwelling house with all curtilages, outbuildings and land used for the purposes required by the household such as gardens, orchards, ornamental and vegetable gardens.

2. A house, or similar structure, together with as much land as is necessary for the convenient and comfortable enjoyment of the house: Draper v South Australian Railways Cmr [1901-3] SALR 150. Often used in combination with `tenement' (as in `messuage or tenement'), the combined words comprehend both the house itself and the surrounding garden or yard belonging to or occupied along with the house: Thomas v Bergin [1986] 2 Qd R 478 at 480.

26. In Osborne's Legal Dictionary it is described as "a house, including gardens, courtyard, orchard and outbuildings".

27. In Words and Phrases Legally Defined Volume 3, Butterworths, 3rd edn, 1989:

It appears to me that the term message denotes all that is occupied together at one and the same time, and no more. `Kerslake v White (1819) 2 Stark 508 at 509, per Abbott CJ.

We think, that although the word messuage may, there is no necessity that it must, import more than the word dwelling-house; with which word it is frequently put in apposition and used synonymously. The ordinary language of conveyances is sufficient proof of this, in which "all that messuage or dwelling-house" occurs as a constant description....... If the word messuage is referred to in the old book called Termes de la Ley, it will be found that "a house and a messuage differ, in that a house cannot be intended other than the matter of building; but a messuage shall be said , all the mansion place, and the curtilage shall be taken as parcel of the messuage" showing only that it is more comprehensive where there is any thing besides the building. Fenn v Grafton [1836] EngR 593; (1836) 2 Bing NC 617 at 618, 619, per Tindal CJ.

Australia In conveyancing the expression "messuage" means not only the house itself but the outbuildings, courtyard, garden and adjacent land used and occupied with it. `Royal Sydney Golf Club v Federal Comr of Taxation [1955] HCA 13; (1955) 91 CLR 610 at 625, per cur.

28. Although the Permit Applicant pointed out the changes to the Victorian planning scheme definitions of dwelling, flat, residential building, apartment house and boarding house, which I had traced through in VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885 @13 - 19, I have not relied on that analysis because this case relies upon the word messuage and it is dangerous to apply different words with their specific statutory definitions to words used in non-statutory parlance.

29. The strong impression I have reached as a result of dictionary definitions, is that messuage relates to a single household unit occupying a house, its appurtenances (such as swimming pool, outhouses, sheds, etc) and its surrounding garden and yard. This impression is supported by the High Court of Australia in Royal Sydney Golf Club v Federal Commissioner of Taxation [1955] HCA 13; (1955) 91 CLR 610.

30. Many cases were referred to me, most of which did not incorporate the word messuage in their covenant_._ The cases which I have found persuasive as being more on point, are:

(i) those cases which use the word messuage rather than just house, dwelling house, building, dwelling;

(ii) those cases which use the word messuage as a structure; and

(iii) local or English case law, as opposed to Irish competition case law;

(iv) those cases which use the prefix one instead of the prefix 'a' before the word messuage or house.

31. One such case is Rogers v Hosegood [1900] 2 Ch. 388 @ 393,4 where the purchaser covenanted:

That no more than one messuage or dwelling-house with such suitable outhouses and stabling (if any) as it might be thought fit to erect in connection therewith, should at any one time be erected or be standing on the Thorney House plot and that such messuage should be adapted for and used as and for a private residence only.

32. It was proposed to erect a building containing between thirty to forty flats (eight per floor) with one front entrance, and a common corridor, stairs and lift, into which the flats opened. It was not proposed that any flat should open directly into the street.

33. Farwell, J. of the lower court, which was upheld on appeal, asked:

Is the building proposed to be erected one messuage or dwelling-house or several?

In my opinion, a flat such as is proposed is not one messuage or dwelling-house, but several........In my opinion, a large building which is to be used as thirty or forty separate residential flats does not answer the description of a messuage to be used as and for a private residence.

34. The Court of Appeal also opined at page 409 that:

the building proposed is certainly not one messuage or dwelling-house only adapted for and used as a private residence neither does it seem to us to constitute several separate dwelling-houses 'adapted for and used as private residences only' within the meaning of the covenant. We think that residential flats, involving the use of a public entrance and staircase, do not answer the description of private residences contemplated by the words quoted. The covenant must, we think, be construed in an ordinary or popular, and not in a legal and technical sense; and we do not think that residential flats, though for many purposes separate dwelling-houses, come within the popular description of the class of buildings which it was intended to permit.

35. If one applies the dictionary definitions that existed at the time of the transfer in 1940, with their strong inference of a 'house and garden plot' occupied by a single household, and adds to that the habendum of Rogers v Hosegood, the irresistible conclusion is that the proposal breaches the covenant in this case.

36. Kimber v Admans [1900] 1 Ch. 412 @ 413 supports my opinion, because Cozens-Hardy, J. considered that a number of flats in one building may also be for certain purposes regarded as a number of separate messuages_._ Kimber's covenant used the different word house instead of messuage and therefore came to an opposite conclusion to Rogers v Hosegood as regards the construction of flats**,** but supported Hosegood's ruling on the word messuage.

37. Ingberg v Bayside CC [2000] VCAT 2407, a decision of Bruce DP 30 November 2000, is also instructive in that there it was automatically considered necessary to vary a similar restrictive covenant to allow two residences instead of one, for which a planning permit had already been obtained. Ingberg's covenant read:

...and that no more than one messuage or dwelling house with suitable outhouses shall at any time be erected or standing on the said land hereby transferred.

38. Longo Investments Pty Ltd [2003] VSC 37 per Osborn, J., although not considering the word messuage, supports the opinion to which I have arrived, because it dealt with whether a hostel for aged residential group care contravened a restrictive covenant permitting one main dwelling house. Osborn, J. held that the form of the building, used as one large aged care household instead of a number of separate households, did not contravene the covenant.

39. I am of the opinion that the proposal will offend the restrictive covenant.

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