Mr Chris Mason of South Gippsland Shire Council represented the Responsible Authority.

Mr Paul Patikkis represented the applicant for review.

Mr Russell Duckworth, objector, appeared in person.

1. On 30 July 1999 Mr Tsobanis lodged application for Planning Permit No. 99309 with the South Gippsland Shire Council as Responsible Authority under the Woorayl Planning Scheme, seeking permission to erect a wood frame and cloth structure at 24 Landscape Drive, Venus Bay. The wood frame had already been erected without any permit. The structure is approximately 3.7m high running approximately 36m along the property boundary. The poles have been concreted into the ground to a depth of approximately 600mm. The completed frame would be covered with shadecloth down to ground level.

2. Mr Tsobanis gives as his residential address 22 Cooraminta Street, Brunswick, so presumably his residence at Landscape Drive, Venus Bay is a holiday house. He says the structure is required to provide shelter for a number of immature citrus trees which he has planted near the southern boundary of his house. Landscape Drive runs approximately north-south. Mr Tsobanis' house is on the eastern side and his block slopes moderately to the east with his house at the top of the slope and at the rear of the block. To the south and next door is another holiday house owned by Mr and Mrs Duckworth. The half completed structure lies along the boundary between the Tsobanis' property and the Duckworth property. The building block to the north on Landscape Drive is vacant.

3. When the permit application was lodged the site was governed by the Woorayl Planning Scheme and was part of a Residential A Zone in a Coastal Policy Area. Clause 71-1.2 of the Woorayl Planning Scheme required a permit to be obtained to develop land. "Development" is defined in the Planning and Environment Act 1987 as including "the construction or exterior alteration or exterior decoration of a building; and the demolition or removal of a building or work; and the placing or relocation of a building or works on land". The same Act defines "building" to include "a structure in part of a building or a structure; and fences, wall, outbuildings, service installations and other appurtenances of the building". It was on this basis that the Council took the view that a permit was required for the erection of the structure.

4. Council received objections from a Mrs Macleod of 15 Landscape Drive, Venus Bay (that is on a property on the other side of Landscape Drive some distance to the south of No. 24) and from Mr and Mrs Duckworth, Mr Tsobanis' next door neighbours to the south. Mrs Macleod in a letter to the Planning Officer dated 15 August 1999 said that the structure "was very ugly and an eyesore". Mr and Mrs Duckworth in their objection dated 17 August 1999 said that the structure was detrimental to the "amenity and general ambience of the area"; was inconsistent with planning policies for the area; interrupted the view from the Duckworth's and was unnecessary because existing vegetation on the Duckworth property provided ample protection to the young trees.

5. On 27 August 1999 the Council issued a determination refusing to grant a permit on the following grounds:

"1. The development will detract from the visual quality of the landscape.

2. The development is not consistent with the objectives of the Shire of Woorayl Coastal Landscape Study.

3. The development is not consistent with Council' Municipal Strategic Statement and Policy."

6. On 28 October 1999 an application for review of the determination refusing to grant a permit was lodged with this Tribunal. The application was not in the appropriate form and a revised form of application was lodged on 28 November.

7. The hearing of the application for review was fixed on 5 April 2000. On 9 March 2000 Mr Chris Mason, one of Council's Planning Officers wrote a letter to the Registrar of the Tribunal noting the hearing date and continuing:

"Council understands that under the applicable provisions of the South Gippsland Planning Scheme, which was gazetted on 16th December 1999, the proposal does not require planning approval.

Under the provisions of Section 26(2) of the Planning and Environment (Planning Scheme) Act 1996:

* If Council decided an application for a town planning permit under the Principal Act (Woorayl Planning Scheme) in respect of land to which the new South Gippsland Planning Scheme applies;

* And an appeal has been lodged but not determined before the commencement date of the new Scheme;

* The new planning scheme as in force at the date of the determination by the Tribunal applies to the hearing and determination of the appeal.

In accordance with the above, I advise that Council's understanding is that the Tribunal may dismiss the appeal on the grounds that the development does not require planning approval under the South Gippsland Planning Scheme.

I therefore advise that Council formally requests a Directions Hearing in relation to this matter, in order to address these issues prior to the Appeal."

8. As it turned out the time was too short to appoint a directions hearing. The issue as to whether the structure required planning approval at all was the subject of submissions on the hearing before me.

9. In light of the terms of Mr Mason's letter of 9 March 2000, one would have expected that Council's submissions would be that no planning approval was required for the structure. The site is within a Township Zone and an Environment Significance Overlay 3 Area (Coastal Areas) under the South Gippsland Planning Scheme. Clause 62.02 provides:

"Any requirement in this Scheme relating to the construction of a building or the construction or carrying out of works does not apply to:

10. Mr Mason noted that there is no definition of fence to be found in the Planning Scheme or in the Planning and Environment Act 1987 whose definitions are applicable to the Scheme. Mr Mason referred to a definition of "fence" in the Macquarie Dictionary to the following affect:

"An enclosure or barrier, usually of wire or wood, as around or along a field, garden, etc."

"Council does not consider that the wood and shadecloth structure constitutes a fence as defined above, if the structure is greater in size and visual bulk than what generally constitutes a garden fence."

12. Mr Mason then proceeded to refer me to a number of strategy and policy documents relevant to the exercise of discretions under the South Gippsland Planning Scheme which he said supported a refusal of the permit application.

13. Mr Duckworth appeared in person. He enlarged upon the terms of his written objection lodged with the Council. He said that he had initially given approval to the construction of the structure but upon the understanding that its easternmost 6m (that is the 6m of the structure closest to his house and furthest up the slope) would not be constructed. Omission of this part would have left him with a view of Landscape Drive. Completion of the structure with the attachment of shadecloth would deprive him of that direct view. He said he parked his car in the part of Landscape Drive which would be obscured. Mr Duckworth illustrated his arguments with numerous photographs of the site and his own property. He said the photographs showed that the citrus trees were not entirely immature and had reached the stage of bearing fruit. In any event he said that citrus trees were unsuited to the soil in the area and the salty winds. He complained that if the structure were permitted to be completed and permitted to remain, he would see nothing but shadecloth from his front door.

14. Mrs Macleod was unable because of old age to attend the hearing but Mr Duckworth tabled a written statement of grounds complaining of "the unsightliness of this very high fence, which detracts from the visual quality of the landscape". She continued:

"1. The proposed attachment of shade cloth will only exacerbate this eyesore.

2. The citrus trees in question look very healthy and no longer immature.

3 The trees alongside the neighbour's property are much higher than the fence in question, providing a very substantial wind-break.

4. If a fence of this size were to be erected alongside my property I would not be very pleased."

15. Mr Tsobanis appeared in person but he brought Mr Paul Patikkis who is his prospective son-in-law to act as spokesman. Mr Patikkis said that Mr Tsobanis would be agreeable to some form of compromise which would entail lowering the structure to 1.8m. Whilst there was no direct response from the applicant to the suggestion that the easternmost 6m of the structure be omitted so as to meet Mr Duckworth's concerns, it is reasonable to infer that the lack of a direct response was equivalent to a refusal.

16. Mr Tsobanis and Mr Patikkis made no particular submission as to whether the structure was or was not a fence.

17. No party referred me to any authority on what might constitute a "fence" with the exception of Mr Mason's reference to the Macquarie Dictionary definition. Council's line on the "fence" question is difficult to follow to say the least. Mr Mason's letter of 9 March is a clear indication that Council regarded the structure as a "fence". I was therefore astounded to hear Mr Mason submit the opposite at the hearing. In City of Greater Geelong v Herd (1997) 18 AATR 96 the Administrative Appeals Tribunal (J.F. Buckley and T.L. Bryant) considered the status of a structure which was constituted by "erecting poles in excess of 5m in height approximately 200mm from the south side boundary of the site extending to approximately 23m from the south-east corner of the site". The learned members concluded:

"that the structure erected at 35 Virginia Street, Newtown is a fence rather than a screen, works or building." (1997) 18 AATR 96, 100

18. As a result of this conclusion it followed that the structure was exempt from permit requirement as a result of an amendment to the relevant planning scheme.

19. The matter was brought on appeal to the Supreme Court. See City of Greater Geelong v Herd (1997) 20 AATR 293. The Court (Batt J. as he then was) concluded that the proposed structure was not a fence and therefore was illegal, not being within the exemption from planning controls provided for a fence. His Honour remarked, speaking of the meaning of the word "fence":

"The Oxford English Dictionary 2nd edn. confirms my understanding of the essence of the word. The definition reads, "An enclosure or barrier (e.g. a hedge, wall, railing, palisade, etc.) along the boundary of a field, park, yard or any place which it is desired to defend from intruders." The Tribunal itself quoted from the definition in The Macquarie Dictionary, 2nd rev. ed., as follows: "An enclosure or barrier, usually of wire or wood, as around or along a field, garden etc". To my mind, the two essential features are the function of enclosing or barring and location along or serving to define a boundary. Cf. Kontikis v Schreiner (1989) 16 N.S.W.L.R. 706, which, I acknowledge, was concerned with the definition in the dividing fences legislation of New South Wales. Lest I be misunderstood I hasten to say that the boundary need not be that of a total property or parcel of land, but can be the boundary of some lesser unit. However, it must be, in my view, the boundary of something that has or at any rate once had physical unity. Thus one can have within a domestic property a fence along the boundary of a vegetable patch, a tennis court, a swimming pool or a chicken coop, to take a few examples." (1997) 20 AATR 293, 318-9

20. His Honour concluded that the structure he was considering did not meet the criteria to be properly described as a fence. He observed:

"The subject structure was not joined to or supported by either of [the existing fences] those fences. It is thus a misnomer or misrepresentation of its character to describe it as an extension of the existing dividing fence. The structure did not serve to surround or enclose the first and second respondents' property. Nor would it by itself keep persons or animals out of or in the subject property: but for the pre-existing dividing fence and, perhaps, the tennis court fence, persons and animals and indeed some vehicles were free to pass from one property to the other."

21. In Leibler v The City of Moorabbin (1992) 8 AATR 188, Nathan J. in the Supreme Court had to consider a similar issue. What was in dispute there was a boom gate erected by the Leiblers. If it was to be regarded as a "fence" it was an item of exempt works under the Moorabbin Planning Scheme. His Honour concluded that the boom gate was in the circumstances to be regarded as a fence. In considering what was entailed in the notion of a fence he observed:

"... the notion of a fence, in the Scheme resolves around the concept of a constructed barrier. It is not restricted to boundary or perimeter barriers, but includes internal sub-divisional constructions. No limit is recited as to what form or type of construction could constitute a fence. It could be of pharaonic proportions, of granite and basalt or a tiny wicker arrangements of ti-tree splints. Whatever the nature of the works, no permit is required if it is a fence. Some fences may be built of stone at one end, brush wood in the middle and a loose strand of plastic tape between the post at the other. Nevertheless the whole aesthetic catastrophe would still constitute a fence. Dictionary meanings confirm the above and define "gate" in terms of being a moveable fence." (1992) 8 AATR 188, 191

22. I have been provided with a wealth of photographic material. It demonstrates that the structure in so far as it has already been erected is on the southern boundary of Mr Tsobanis' property and divides it from Mr Duckworth's property. The cases to which I have referred, in particular the dicta of Nathan J. in Leibler's case demonstrate that this structure does not cease to be a fence merely because it is comparatively tall, namely 3.7m nor because in many respects shadecloth stretched across a framework is a relatively flimsy barrier. It is a barrier nevertheless. It extends along most of the boundary between the two properties and marks that boundary. It will, when constructed, be apt to exclude people and animals. In my view that fact that it does not reach to the very rear of the property does not deprive it of the character of being a fence. Its deficiencies as a boundary marker and excluder are not as extensive as those identified by Batt J. in Herd's case and which led him to conclude that the structure he was considering was not a fence.

23. The conclusion that these proposed works constitute a fence means that they require no planning approval under the present Scheme. Council's reference to Section 26 of the Planning and Environment (Planning Schemes) Act 1996 correctly states the effect of the provision, that is that this proceeding must be adjudicated in accordance with the new Scheme and not the old.

24. In the circumstances whatever sympathy I may have for the concerns of Mrs Macloed and Mr Duckworth, I have no discretion to intervene at all.

25. The proper order is that since there is no requirement for the grant of a permit for this proposed development none should be granted.