Mr. Patrick Doyle, solicitor of the firm of Maddocks Solicitors, appeared for the Responsible Authority. He presented written and oral submissions.

Mr. Peter Stoops (accompanied by Ms. Georgie Druce), the Applicant, appeared in person. He presented written and oral submissions.

Mr. Denis Hildebrand, Mr. Paul Palmos and Mr. G. Lyell appeared in person although Mr. Lyell did not return after the luncheon adjournment and Mr. Hildebrand also left early. Mr. Palmos, as part of his presentation, tendered a written submission of Mr. Hildebrand.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Hearing of preliminary legal argument in relation to whether this proposal is barred by a restrictive covenant affecting the land and s.61(4) PE Act.

Residential 1 Zone and subject to a Design and Development Overlay, Schedule 6 (Frankston - Seaford Coastal Strip) under the Frankston Planning Scheme.

1 This case is essentially a repeat proceeding arising from a repeat permit application previously dealt with by the Responsible Authority and this Tribunal.

2 The original application to the Responsible Authority was permit application No. 02643 seeking planning permission for a building to contain four dwellings under one roof. The Responsible Authority determined to refuse to grant a permit. The Applicant then applied to this Tribunal under s.77 of the Planning and Environment Act 1987 (PE Act) for a review of the refusal of the Responsible Authority to grant a permit. That review case was Stoops v. Frankston CC, Harding and Others, Tribunal No. P3205/2002.

3 The case raised a legal question as to whether the proposal would breach a registered restrictive covenant affecting the land. Section 61(4) PE Act provides;

"(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant."

4 Nearly all of the land is subject to the restrictive covenant in Transfer of Land 1770776. That part of the land is lot 6 on Plan of Subdivision No. 12936. There is a small part of the land, not proposed to be built on, that is subject to an almost identically worded restrictive covenant, however, it is the one affecting lot 6 that is relevant. It reads:

".... 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 ...."

Although it is not material, the covenant affecting the small balance of land is in the same terms except that the expression "or dwelling house" appears after the word "messuage". The relevant covenant dates back to 29 April 1940.

5 No permit has been issued, or decision made to grant a permit, to allow the removal or variation of the covenant. In those circumstances, s.61(4) would legally require the Responsible Authority to refuse to grant the permit sought if the grant of the permit sought would allow something that would result in a breach of the restrictive covenant. To be specific, if the proposal was for more than one messuage then it would be in breach of the covenant and the Responsible Authority would be barred from granting the permit sought. On review, the Tribunal would also be similarly barred as the review is in the nature of a re-hearing where the Tribunal is called upon to reconsider the application, and determine it again as if it were the Responsible Authority exercising its powers and functions Bevilacqua v. Port Phillip CC [2002] 12 VPR 256 and 259-68.

6 The case was listed for a preliminary hearing before a member with legal qualifications (other than myself) to determine this preliminary point. The hearing occupied two days. Mr. Stoops was well represented at that hearing by Mr. Jeremy Gobbo QC, a senior barrister with extensive experience in this field instructed by Minter Ellison Lawyers, also experienced in the field. The Responsible Authority was represented by Ms. Adaline Lane, solicitor, and Mr. Patrick Doyle, solicitor of Maddocks Lawyers.

7 The member reserved the decision and subsequently gave written reasons and a ruling in a document dated 31 July 2003. The reasons are found in Stoops v. Frankston CC [2003] VCAT 965 (31 July 2003) reported at [2003] 15 VPR 42. The ruling was that the proposal would breach the restrictive covenant and so the decision of the Responsible Authority to refuse on that basis was effectively confirmed.

8 The proposal was for one large building under one roof on a sloping block to contain four substantial dwellings, two on the ground floor, and two on the first floor. To gain access to any of the dwellings it would be necessary to pass through an enclosed car park, and then through a doorway into a lobby. Each of the two ground floor dwellings would have its own front door opening onto this lobby. It also contained a door into a lift to the first floor and the foot of a stairway leading up to a common landing at first floor level. Each of the first floor dwellings would have its own front door opening onto this landing. It would not be possible to pass from inside one unit, into another, without going out through the front door of the first into the lobby and then seeking admittance at the front door of the other (whether on the same or the other floor). Although the permission or invitation of those in possession of the second unit would be necessary, it would not be necessary to go out of the building to gain access to the second dwelling if such permission or invitation was forthcoming.

9 It is obvious enough that if this arrangement amounted to only one messuage, there would be no contravention of the restrictive covenant. If, on the other hand, it amounted to four messuages, then there would be a breach of the covenant. The Tribunal ruled that this amounted to four, not one, messuages, that the proposal would breach the covenant and thus legally had to be refused in accordance with s.61(4) PE Act.

10 That determined the review. On the basis of that decision on the preliminary legal issue, there was no point in then going onto a merits hearing as to whether a permit should be granted.

11 If Mr. Stoops was dissatisfied with this decision of the Tribunal then, in my opinion, his appropriate remedy was to appeal to the Supreme Court pursuant to s.148 PE Act on the question of law involved. No such appeal was made.

12 The reasons in relation to the previous decision of the Tribunal set out the Applicant and the Responsible Authority's arguments in relation to the question involved. It obviously raises the question as to what is meant by the word messuage. Paragraphs 21 to 29 of the reasons set out a number of dictionary definitions of the word (both general and legal dictionaries) and referred to some cases on the matter. In short these definitions indicate that a messuage is a dwelling house together with any relevant curtilage or grounds including ancillary outbuildings, garden, orchard, recreational facilities and the like. The dictionaries referred to are: The Complete Oxford English Dictionary, 1933 Edition; The Shorter Oxford English Dictionary, 1944 Edition; The Macquarie Dictionary, 1991 Edition; Osborn's Concise Law Dictionary; Words and Phrases Legally Defined Volume 3, Butterworths, 3rd Edition 1989 and Butterworths Encyclopaedic Legal Dictionary. Various definitions as set out in the reasons, although I think my formulation above encapsulates the meaning. I have also been referred to Stroud's Legal Dictionary and have consulted Jowetts Dictionary of Law neither of which dissuades me from that view.

13 Paragraphs 32 - 39 of the reasons go on to consider case law in relation to the question, and to rely particularly on the decision of Rogers v. Hosegood [1900] 2 Ch. 388 at 393-4.

14 In Rogers v. Hosegood the relevant covenant provided:

"That no more than messuage or dwelling/house with such suitable outbuildings and stabling (if any) as 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 residents only."

15 The proposal in that case was for the construction of one building of more than one floor to contain 30 or 40 flats, eight on each floor, each to be self-contained and have its own front door although, the building as a whole is to have one front entrance.

16 The report sets out the decision of the Farwell J. who decided that such an arrangement was not one messuage or dwelling house but several and the judgement of the Court of Appeal which said, at page 403:

"Nor have we any hesitation in accepting the conclusion of Farwell J., that the buildings which the defendant proposes to erect will involve a breach of those covenants."

17 The reasons in Rogers v. Hosegood quote a longer passage from page 409 to similar effect. There is reference in the previous Tribunal case to some other cases said to support that view; and some differentiation between cases found to be helpful, of which there were few, and others less helpful of which I was informed there were quite a number, not all of them dealing with the word messuage, and not all of them dealing with this area of law. For example, reference was made to an Irish case said to relate to "competition law". I too was referred to it, and I too found it not to be relevant. The reasons given in a number of cases seem to contain complaints of being referred to cases found to be unhelpful or irrelevant.

18 I have said that the appropriate course for Mr. Stoops, if he considered that the Tribunal in the previous case had made an error of law, was to appeal to the Supreme Court. What he in fact did was to make a new application to the Responsible Authority for a permit for his project. It is common ground, and specifically conceded by Mr. Stoops, that there is only one arguably material difference between the plans in the first case and the plans in relation to his second application. Otherwise, the two sets of plans are identical, or any other variations are conceded, by Mr. Stoops, to be immaterial.

19 The difference, argued by Mr. Stoops to be a material difference, is the incorporation of a doorway between Unit 1 and Unit 2 on the ground floor through a common wall that separates those two units. This doorway through the wall is to be provided, according to the plans, with a lockable door on the Unit 1 side of the doorway, and a second lockable door on the Unit 2 side of the doorway. This arrangement would mean that, with the consent of the occupiers on either side of the doorway, the doors could be unlocked, or even left open, so that there could be direct access from Unit 1 to Unit 2, and vice versa, without the need to go out into the lobby area and to seek admittance at the front door of the other unit.

20 The arrangement is like that now commonly found in hotels, motels, serviced departments and other forms of temporary accommodation where a family retains two rooms or units with such inter-communication between them. The doors can be unlocked on either side to provide access. The parents might occupy one unit, and the children the other. When the rooms or units are let to strangers, the doors remain locked to deny such access.

21 The plans for the new proposal also include a similar doorway with two lockable doors to enable access between Units 3 and 4 on the first floor.

22 However, I consider it to be significant that no such inter-communication is possible between either of the ground floor units and either of the first floor units. To go from Unit 1 to Unit 3 or 4 it would still be necessary to go out of Unit 1 into the lobby, and then up the stairs or in the lift to the first floor landing, and then to seek admittance at the front door of Unit 3 or Unit 4.

23 I consider this addition to the plans to be an artificial and contrived arrangement which, while it might be convenient in relation to temporary accommodation like motel units, has no sensible rationale in relation to dwelling units of the size and type here proposed. It is a mere device that seeks to get around the previous decision of the Tribunal.

24 Mr. Stoops apparently got the idea of adopting this device from discussion that arose, in the course of argument, before the Tribunal hearing the previous case. It is not unusual, in legal argument before a court or tribunal, for various possibilities and variations of situations to be discussed with a view to testing and isolating the principles involved, and to facilitate the task of arriving at a correct decision of a legal point. Such a discussion ensued before the Tribunal at the previous hearing. Mr. Stoops produced a couple of pages of transcript from that previous hearing. There was discussion about the situation where two locked doors separate hotel rooms, and whether such an arrangement would make any difference here as to whether there was one messuage, or two. A solicitor (Ms. A. Lane) appearing for the Responsible Authority conceded that such an arrangement might change the situation, and might lead to a different result the one she was arguing for. I do not understand her to have conceded that this would necessarily be the case, and at most this was a passing example discussed in the course of argument. In fact, Mr. Doyle before me on behalf of the Responsible Authority tendered a couple more pages of transcript with a view to showing that Mr. Stoops had been too selective in the part of the record that he had selected, and that a fuller context shows that Ms. Lane, before the previous Tribunal, was not making the concession Mr. Stoops argued for.

25 I do not think any such concession was made, and even if it was, that would not bind the Responsible Authority, previous Tribunal, myself or the court to accept such a view.

26 Nevertheless, Mr. Stoop seized on this passage of discussion, modified his plans, and made a new application relying upon it. He relied upon the modification to the plan to submit that the building he proposes is one messuage containing facilities that could be used as one, two, three or four dwellings.

27 On being appraised of his line of argument, I put it to Mr. Stoops that this was really a repeat application and repeat review, and that, to test the legal point involved, he should have taken the matter on appeal from the first Tribunal decision. I suggested that by following the course he had adopted he was really appealing to me against the correctness of the decision made by the Tribunal at the previous hearing. In retrospect, it is a pity that this second case was not listed for hearing before the member who heard the first one.

28 It is quite inappropriate to attempt to appeal the same point from one member of the Tribunal to another. If the second Tribunal agrees with the first, then there has merely been a waste of time, money and trouble. If the second Tribunal disagreed with the first one, a difficult and embarrassing situation arises. The second Tribunal has no jurisdiction to override the first. If two differing rulings on the point given, which is to prevail? Does the party who won the first time, and lost the second, then have to appeal to the court? After all, in these circumstances the Supreme Court is needed to give an authoritative ruling, if the decision of the first Tribunal has to be overruled. Certainly, an Applicant cannot be permitted to go on making repeat applications, with alterations to plans that are not material, in the hope of eventually encountering a differently constituted Tribunal that will see the point his way.

29 When this was put to Mr. Stoops he insisted that this was not a repeat application and review, and not an appeal to me on the point determined by my colleague in the previous case. He said that the difference, constituted by the doorways and the doors, was material. Because it was material, that made all the difference between the two applications so that this was not a repeat, and not affectively an appeal from the previous decision. I, therefore, put it to Mr. Stoops that, if that was the basis he brought this new application and review, then the only point I need deal with is that which arises from the alleged material difference namely the inclusion of the doorway and doors. He agreed.

30 On that basis, I am satisfied that the allegedly material difference is, in fact, immaterial; and that this proposal is barred by the restrictive covenant and s.61(4) PE Act to the same extent as was true of the previous case. If the Tribunal was right in holding that the proposal there was for more than one messuage, and thus contrary to the restrictive covenant, then the same is true of this modified proposal.

31 I, in fact, have no quarrel with the decision of my colleague, but if the device of the inclusion of the doorways and doors made all the difference so as to make the ground floor units one messuage rather than two, that would still not solve Mr. Stoops problems. At most, if he were right, the two doorways would reduce the four messuages found in the previous case to two. There are no such doorways or doors or similar arrangements between the units on the two different floors. If 1 and 2 are one messuage, in accordance with Mr. Stoops argument, and 3 and 4 are similarly one messuage, he is still left with at least two of them and thus in contravention of a restrictive covenant that allows but one.

32 Thus it can be seen that, in reality, there is no material difference at all between the previous application and review, and this case.

33 On the basis that I am to decide the case on the basis of the difference created by the doorways and doors, that resolves this case because those items in the plan make no difference at all.

34 Perhaps I should make some further comments by the way. Apparently, a very large number of cases were referred to before the Tribunal at the previous hearing. Certainly, a large number of cases were referred to in the 36 page written submissions and the bulging arch file of decisions presented to me by Mr. Stoops. These cases came from a variety of courts and tribunals from various common law states and countries dealing with a wide variety of topics and areas of law, and in some cases relating to various statutes not applicable in Victoria. They are spread over a number of countries. They concern a variety of types of documents created for various purposes and in relation to various aspects of business or commerce or other human affairs. There are cases concerning contracts, leases, covenants and various forms of documents. It appears almost that wherever the word "messuage", or "house", or the phrase "dwelling house" or "private dwelling house" have been used, that it is sufficient for Mr. Stoops to regard it as relevant. He claims to have included extra cases to the ones referred to by Mr. Gobbo in the previous Tribunal case. The cases are spread over a considerable period of time. They were not presented in chronological order, and I had some difficulty in following through various switch-backs, diversions and by-plays, and what seemed to me to be inconsistencies. One difficulty is that such words and phrases have a variety of meanings in different contexts, and it is necessary where they are used, to work out what is meant by them in the particular context in question. Sometimes they have been used in what appears to be an amateurish way, perhaps in some instances by people who are unsure of their meanings. Where a court is called upon to make sense of such writing, it must do the best it can with what has been written. It does not mean that the court necessarily endorses for all purposes a definition or exception or extension implicit in a particular piece of writing that is called upon to construe in a particular case. However, Mr. Stoops appears willing to seize on a meaning given in one context and assume that meaning will hold good for all others.

35 Mr. Doyle commented that there are a very large number of cases referred to that were apparently inconsistent and impossible to reconcile. Mr. Stoops has a neat, but I consider unreliable, key to resolution of all these problems. He says that messuage, house and dwelling house can contain more than dwelling, and that if it is sought to impose a covenant restricting the land to one dwelling, it is necessary to use the expression "private dwelling house". He says that the addition of the word "private" to the phrase "dwelling house" has this necessary confining effect, and that the omission of that word, apparently in a wide variety of documents and contexts, will mean, and necessarily mean, that more than one dwelling is intended or can be achieved.

36 It may seem incongruous that the word "private" should be chosen to have that result. It seems incongruous or confusing, even improbable, that it must included in all contexts to have that result, and that this is the golden key to understanding the multitude of cases referred. I am unable to accept his ingenious device. I think it is necessary to interpret the word messuage, or other words and phrases, having regard to the contexts in which they appear, including purposes and nature of the documents in which they appear and taking account of the words amongst which they appear and the ordering of the words. All these things can affect the proper meaning in a particular case.

37 Mr. Stoops argued that the words in this, or any restrictive covenant, must be construed, as he put it, strictly against the covenantor. This apparently also meant strictly against the Responsible Authority and any objectors. He said that all doubts must be resolved in his favour.

38 I note that a restrictive covenant is actually, originally and ultimately, a provision in a private contract. I believe it should be interpreted in accordance with its plain words, where they are plain, and in accordance with the intention of the parties in making their bargain as it can be discerned from the words that they have used, and the nature and content of the document in which they used.

39 On Mr. Stoops interpretation of this restrictive covenant the one messuage allowed under the covenant could contain a multi-dwelling building of 4 or 40 or 400 dwellings. That this should be the intention of this covenant seems to me to be improbable. As I have said, I see no reason to quarrel with the view reached by my colleague in the previous case, that the covenant is intended to, and does, impose a limitation to a single dwelling house with its grounds (if any), and that this means a single dwelling. This appears to me to accord with the dictionary definitions (both legal and general), with the decision of my colleague, the cases there referred to in the previous Tribunal decision and the meaning of the particular covenant in its context.

40 In spite of his initial protestations to the contrary, when seeking to persuade me to entertain his lengthy submissions, Mr. Stoops, in the final page or so of his submissions, asked me, after all, to overrule the previous decision of the Tribunal. Ultimately then, he was, after all, attempting to mount a de facto appeal against the previous decision. I decline his invitation to be part of such a proceeding.

41 At the request of Mr. Doyle I have reserved the question of costs in relation to this case.