Mr Martyn Thompson, town planner, of Payton Waite Pty Ltd

1 The purpose of this directions hearing was to obtain a legal ruling on the meaning of "double fronted" as it appears in the covenant on the title to the subject land and whether the plans of the proposed dwellings, which are the subject of this application for review, contravene the covenant.

2 The relevant details of the covenant that affects the subject land are "that she or they will not erect or place on the said land any building or structure other than private dwelling houses each such house shall be double fronted and constructed of weatherboard brick stone concrete or similar materials."

3 The plans submitted with the planning permit application are for three dwellings. The front two dwellings are double storey and the rear dwelling is single storey. The façade of the dwelling fronting the street has two primary architectural features at grounds floor level. There is a pair of windows below a gable in an articulated façade resembling a bay window. The front door is centrally located in the second section of the front façade beneath a verandah and is set back from the part of the façade containing the windows. The upper level is setback from the front of the dwelling and again is articulated into two main sections. Visible at the rear of the dwelling is the garage wall attached to the dwelling, which forms a third plane. The facades of the other two dwellings are also articulated with more than one plane.

4 It was submitted by Mr Doyle on behalf of the responsible authority that "double fronted" means having not more than two fronts. The front dwelling has three substantial planes visible from the street and hence cannot be described as "double fronted". He referred to the Oxford English Dictionary[1], which in the definition of "double" includes "double fronted (of house) with principle windows on either side of front door". He acknowledged that "double fronted" is an expression often used but not often defined. However, it is a readily recognised style of dwelling and no real estate agent would describe these units as being double fronted.

5 Mr Thompson on behalf of the applicant relied upon a legal opinion provided by lawyers, Home Wilkinson Lowry, which submitted as follows:

In ascertaining what the covenant restricts it is necessary to look at both the words of the covenant and the purpose of the covenant.

In interpreting covenants the Court aims "to discover the intention of the parties as revealed by the language they used in the document in question against the background of the facts which existed at the time" (Bongiorno J in Tonks - v - Tonks 2003 VSC 195). His Honour in that case also referred to the case of Marshall and Scotts contract (1938) VLR At 89 as follows "the words shall be given their meaning in common vernacular and not regarded as terms of art to be given some special meaning".

The covenant was incorporated in the instrument of transfer in 1914.

In our opinion what was contemplated at that time was a restriction that would prevent constructing on the lots in the historic plan of subdivision, single dwelling or simple cottage type houses. The wording of the covenant requiring "each such house shall be double fronted" was designed to have the purpose of ensuring that no simple cottages of the type now described as Edwardian cottages or workman's (sometimes called miner's cottages) were constructed and that something more "substantial" or sophisticated be constructed.

Although we can only find two judicial references to the phrase "double fronted" it clearly implies a requirement that any structure on the property have more than one front. Having regard to the common usage of language at the time it would appear that double fronted was intended to mean more than one front rather than literally two fronts. In our opinion it contemplated nothing more and nothing less than the requirement that the front of the dwelling have more than one facet or front. Although in the era in question "double fronted" most commonly revealed itself in the form of a structure where the door was in the middle of the structure and had windows either side we do not believe the restriction should be construed so literally in 2005 having regard to similar contemporary building designs where the placement of the door is asymmetric but the facade is multilayered/multifaceted. In our view the proposed development complies with the purpose and intent of the restrictive covenant.

6 Whilst this appears to be a simple issue, it is not quite so straight forward as it seems on its face. Each of the dwellings are designed with more than one front or facet but none of them fit within the Oxford Dictionary definition of a house with principle windows on either side of the front door. The dwellings are examples of contemporary multi-faceted town houses with the component elements of the buildings well articulated to avoid any appearance of undue bulk. The question is whether the covenant precludes such a design and requires that any dwelling conform to a design strictly limited to two, and to no more than two, facets to the front facades.

7 I have formed the view that the covenant does not preclude the type of dwelling design proposed in this case. I adopt the approach taken by the Supreme Court in Tonks & Anor v Tonks & Ors [2003] VSC 195 where Justice Bongiorno said:

"The task of construction commences with a determination of the purpose for which the covenant was inserted in the original contract."[2]

8 At the time when the covenant was placed on the title in 1914 modest dwellings usually fell within two categories. They were either small single fronted cottages of one room in width with the front door located on one side of the front façade of the house or there were the more upmarket type of houses two rooms wide usually divided by a central passage leading from a centrally located front door.

9 If one reads the covenant as a whole, rather than simply focussing on the words "double fronted", the impression is gained that the purpose of the covenant is to ensure that a "better" or more substantial class of dwelling shall be constructed than is represented by a "down market" (in today's parlance), basic, single fronted dwelling.

10 The dwellings on the plans in this application are all of greater than one room in width and they all have multi-faceted front facades. Within the context of the local area it is not a down market proposal. I regard the design as fulfilling the purpose for which the covenant was originally made, which was to ensure that the private dwellings constructed would be of good quality and more than one room wide. I do not believe that this purpose would necessarily be served by restricting the design of any dwelling to be constructed on the subject land to a replica of a 1914 "double fronted" house.

11 I therefore conclude that the proposed dwellings do not contravene the covenant attached to the title of the subject land.

[1] The Concise Oxford Dictionary of Current English, 7th Edition, page 287

[2] [2003] VSC 195 at para 15