Manderson v Smith
[2021] VSCA 359
•17 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0086
| WARWICK ALEXANDER MANDERSON | Applicant |
| v | |
| BENJAMIN GEORGE HARRISON SMITH | First Respondent |
| and | |
| RACHAEL LOUISE SMITH | Second Respondent |
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| JUDGES: | BEACH and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 December 2021 |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 359 |
| JUDGMENT APPEALED FROM: | Manderson v Smith (Unreported, Supreme Court of Victoria, Efthim AsJ, 2 July 2021) |
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PLANNING AND ENVIRONMENT – Application for extension of time to seek leave to appeal – Order dismissing application for grant of mandatory injunction requiring removal of fence – Whether boundary fence prohibited by restrictive covenant registered on title – Whether associate judge erred in finding de minimis incursion of boundary fence into lot – No real prospects of establishing error – Unnecessary to determine whether applicant also had ‘unclean hands’ – Extension of time refused – Manderson v Wright [2016] VSC 677, discussed – Clare v Bedelis [2016] VSC 381, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P R Best | Raven & Associates Lawyers |
| For the Respondent | Mr M D Townsend | Kings Lawyers |
BEACH JA
KENNEDY JA:
The applicant and the respondents are owners of property in a 14-lot estate known as the Warrenbeen Estate (‘the Estate’). The applicant is a registered proprietor of lot 5 (the land at 14–15 Warrenbeen Court, Barwon Heads), while the respondents are the registered proprietors of lot 3 (the land at 10–11 Warrenbeen Court, Barwon Heads).
A restriction is recorded on each of the titles to properties in the Estate which prohibits owners from developing the land, other than in accordance with an approved neighbourhood design plan (‘Restriction 2’). The relevant neighbourhood design plan (‘the NDP’) consists of a drawing showing lots with hatched and non-hatched areas. There is accompanying text, entitled ‘House siting policy’, which includes a prohibition against the location of buildings in the hatched areas, thereby designating a ‘building envelope’ in respect of each lot (in the non-hatched areas).
Notwithstanding that there is a boundary fence located on the front of the applicant’s property, he claims that the construction of the respondents’ front fence breaches Restriction 2. He thereby sought a mandatory injunction to compel the respondents to remove their front boundary fence.
An associate judge dismissed the applicant’s claim.[1] He found that Restriction 2, properly construed, allows the construction of a fence on the boundary lines, and to the extent that the fence crossed into the hatched area, it was de minimis.
[1]Manderson v Smith (Unreported, Supreme Court of Victoria, Efthim AsJ, 2 July 2021) (‘Reasons’).
The applicant applies for an extension of time in which to seek leave to appeal the associate judge’s decision. For reasons that follow, we consider that the associate judge was correct to dismiss the claim; that the application lacks merit; and that the application for extension of time should be refused.
Background
Genesis of Restriction 2
On 19 January 1998 planning permit number 1057/97 (‘the Permit’) was issued,[2] which allowed a 14 lot subdivision at ‘Sheepwash Road, Barwon Heads’. The Permit included the following conditions:
14.The subdivider shall contribute to Council the full cost of a standard fence at the approved ruling rate at the time of payment for the construction of fences abutting the Council Reserves.
…
16.A neighbourhood design plan including building envelopes to protect and minimise clearance of existing vegetation on the lots shall be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. Development on these lots shall be in accordance with the neighbourhood design plan.
17.The plan of subdivision shall include a restriction sheet to limit any building or development on lots to accord with the approved neighbourhood design plan and building envelopes.
18.All existing vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
[2]It was later amended on 10 August 1999.
In August 1999, on instructions from the Council of Greater Geelong (‘the Council’), Mark Trengove prepared an indigenous vegetation survey for the ‘Warrenbeen Woodlands, Sheepwash Road’ (‘the Trengove report’), recording native vegetation on lots 1-4 and 5-11 of the Estate. The Trengove report recorded that the site was dominated by Moonah woodland, and that coastal Moonah woodlands were a protected community under the Flora and Fauna Guarantee Act 1988. The Trengove report was ‘designed to locate the areas of highest botanical significance’ so that the locations for building envelopes could be determined, in relation to the Estate.[3]
[3]Mandersonv Wright [2016] VSC 677, [6(c)] (Emerton J).
On 20 September 1999, Plan of Subdivision 412071E was registered (‘the Plan of Subdivision’). Along with the 14 lots, the Plan of Subdivision stipulates ‘Reserve No. 1’ (adjoining lots 9 and 10) and ‘Reserve No. 2’ (adjoining lots 6 and 7) which are marked as ‘for municipal purposes’ (‘the Council Reserves’).
Pursuant to condition 17 of the Permit, two restrictions were stipulated in the Plan of Subdivision (‘the Restrictions’):
1.The owners of lots 1 to 14 (all inclusive) shall not allow the erection of more than one dwelling on any single lot or further subdivision of any lot [(‘Restriction 1’)].
2.The owners of lots 1 to 14 (all inclusive) shall not develop the land other than in accordance with an approved neighbourhood design plan pursuant to planning permit no. 1057/97 [(‘Restriction 2’)].
On 3 July 2000, the relevant ‘approved neighbourhood design plan’ (for lots 1 to 4, and 12 to 14) (ie the NDP), referred to in Restriction 2 above, was certified by the Council as the ‘endorsed plan referred to in Permit No. 1057/97’ (ie the Permit). The NDP shows lot boundaries, unhatched areas (the building envelopes), and hatched areas for each lot. It stipulates:
NOTE
1. This plan is not to scale.
2. This plan is to be read in conjunction with PS412071E [ie the Plan of Subdivision].
HOUSE SITING POLICY
No building shall be erected other than in accord with this policy.
1. No building nor part of a building shall be located in the area shown thus [hatched] and dimensioned thus eg 6.
Construction of fences
As the applicant agreed, all properties in the Estate have fences. He also agreed that he has a fence and a gate located at the front of his property, and accepts that this fence encroaches some one to two metres on to the hatched area of his lot.[4]
[4]Reasons [28].
On 18 April 2020, the respondents commenced construction of a front fence to their lot 3 by removing vegetation in the area of the boundary, digging post holes, and erecting posts. On 19 April 2020, the respondents became aware that a planning permit may be required for the construction of the fence and ceased works. On 23 April 2020, they then made a VicSmart application for a permit for the construction of the fence, which permit was granted on 6 May 2020.
On 16 May 2020 the applicant first noticed the partial construction of the fence. Between 17 May 2020 and 5 June 2020 various email communications were exchanged between the applicant and the Council, and between the Council and the respondents. However, the Council did not at any time direct the respondents to cease the construction of the fence.[5]
[5]On 5 June 2020 the Council subsequently made an application to VCAT for an injunction restraining the completion of the fence and an order cancelling the permit for the fence. However, the Council withdrew the application on 9 June 2020 after being informed that the fence had been completed.
The respondents’ fence was completed at approximately 1.00pm on 5 June 2020. It was wholly constructed by the first respondent at an approximate cost of $6,000.
On 15 June 2020, the applicant’s solicitors requested the removal of the fence, and, subsequently, on 20 August 2020, filed a writ and statement of claim. Among other things, the applicant alleged that the fence was a ‘building’ located outside the building envelope which contravened Restriction 2, and sought a mandatory injunction for removal of the fence.
The respondents filed a defence dated 21 September 2020. The respondents denied a contravention of Restriction 2 and alleged that ‘even if the Fence Constructions are within the hatched or “no building” area, which is not admitted, [Restriction 2] was not intended to control or prevent the construction of fencing and therefore the Fence Constructions are not a breach of [Restriction 2]’. They also alleged that the construction of the fence did not result in anything more than a de minimis removal of existing vegetation; alleged that the construction of the fence has the effect of protecting existing vegetation; and denied that they are under an obligation to remove the fence.
The application was heard on 9 June 2021.
By orders made 2 July 2021 the associate judge dismissed the claim. By orders made 24 August 2021, his Honour also awarded the respondents costs from 20 September 2020 on an indemnity basis (having considered a series of Calderbank offers made by the respondents to the applicant).
Judge’s Reasons
The applicant relied on his own affidavit, a (recent) vegetation report prepared by Mark Trengove, a town planning report prepared by Rob Milner, as well as a surveyor’s report of Geoffrey Patterson. The respondents called no expert evidence, but relied on an affidavit of the second respondent.
His Honour found that the evidence of Mr Trengove and Mr Milner was not relevant to the exercise of construction.[6] However, Mr Patterson’s report contains a drawing which shows the location of the respondents’ completed fence on the land. This drawing shows that the fence was built in part on the road, in part on the boundary line, and in part on the respondents’ property. His Honour annexed a copy of this drawing at Annexure B to his reasons which, more particularly, shows that part of the fence on the property was located 6 cm inside the boundary line.
[6]Reasons [48].
His Honour identified the principles governing the construction of restrictive covenants,[7] and also made reference to Manderson v Wright, another case brought by the applicant for contravention of the Restrictions by reason of another lot owner’s construction of structures outside the building envelope. The hearing of that case took place in stages wherein Emerton J (as her Honour then was) dealt with a number of preliminary issues,[8] and John Dixon J determined what remedy the plaintiff was entitled to.[9]
[7]Ibid [44]–[45].
[8]Manderson v Wright [2016] VSC 677.
[9]Manderson v Wright (No 2) [2018] VSC 162.
The associate judge stated:
Their Honours both concluded that the building envelopes in the Neighbourhood Design Plan were intended to protect the native vegetation on the subject land. They also made it clear that vegetation on the lots may be removed without a permit.[10]
[10]Reasons [48].
His Honour also noted that, in Manderson v Wright, Emerton J accepted that the definition of ‘building’ in the Planning and Environment Act 1987 applied to define ‘building’ in the applicable neighbourhood development plan. That definition expressly includes ‘fences’.[11]
[11]Ibid [52]; see Planning and Environment Act 1987 s 3.
His Honour concluded:
I am bound to follow the decision of Emerton J and agree that for the purpose of the Neighbourhood Design Plan a fence is a building. However, when construing the [Restrictions], I note that condition 14 of the [Permit] provides that the subdivider shall contribute to council to the full cost of the standard fence at the approved ruling rate at the time of payment for the construction of fence abutting council reserves. This would imply an intention that a fence could be built on the boundary line. This would be distinct to a fence being built on the hatched areas. The latter would be in breach of the [Restrictions].
Here the [respondents’] fence was not erected entirely on the boundary line. A small part of it is erected outside Lot 3 and at best the fence encroaches the hatched area by approximately 6cm. The fence does breach the [Restrictions]. However I agree with the [respondents] that any incursion by the front fence into the hatched area is de minimis. If I ordered that the fence be removed, then there is a possibility that vegetation would need to be removed or damaged. It could do more harm than leaving the fence where it is.
The fence built on the [applicant’s] land, to me, is more problematic because it is built, according to the [applicant], one to two metres inside the boundary line. That would be clearly in breach of the [Restrictions].
I note that all the properties have fences and, in my view, as long as those fences are on the boundary line, there is no breach of the [Restrictions] per se. I have not taken into account the fact that all of the lots are fenced in coming to this decision.
In my view a proper construction of the [Restrictions] allows the construction of a fence on the boundary lines. Any incursion of the front fence into the hatched area is de minimis. The [applicant’s] application is dismissed.[12]
[12]Reasons [55]–[59].
Proposed grounds of appeal
The applicant raises the following three proposed grounds of appeal:
1.The [associate judge] erred in determining that the restrictions and the NDP allowed (or more accurately did not prohibit) the construction of the Respondents’ front fence on the boundary line of Lot 3 as stipulated on [the Plan of Subdivision] and the NDP [Reasons at [55], [56], [58], [59]] in that:
(a)his Honour erroneously determined that condition 14 of the [Permit] requiring a contribution to the fencing of Council reserves implied that the Restrictions and the NDP did not prohibit the construction of a fence on the boundary line of a lot on [the Plan of Subdivision] and the NDP in that it was not open to his Honour to rely on a condition in the Permit to construe the Restrictions and the NDP, the [Council Reserves] are not subject to the Restrictions and the NDP and no evidence was before the Court as to the circumstances of the making of the condition or the circumstances of the [Council Reserves];
(b)his Honour erred in construing the NDP in drawing a distinction between the hatched area stipulated on lot 3 on the NDP and the boundary line of lot 3.
2.The [associate judge] erred in determining that the Respondents’ contravention of Restriction 2 and the NDP by the construction of the Respondents’ front fence was de minimis [Reasons at [56], [59]] in that:
(a)his Honour erroneously determined that the Respondent’s front fence was erected substantially on the boundary line and only encroached into the hatched area on the NDP by approximately 6 centimetres;
(b)his Honour ought to have determined that in order to give effect to the purpose of the Restrictions and the NDP to protect endangered native vegetation the restrictions and the NDP were to be strictly enforced and in the circumstances the construction of the fence in the hatched area in the NDP (including partly on the boundary line) was not de minimis.
3.The [associate judge] erred in finding that if the Court ordered the removal of the fence ‘there is a possibility that vegetation would need to be removed or damaged. It could do more harm than leaving the fence where it is’ [Reasons at [56]].
Legal framework
As the associate judge noted, in Clare v Bedelis, Derham AsJ set out the approach to be applied in the construction of a restrictive covenant as follows:
(a)subject to the qualifications mentioned below, the ordinary principles of interpretation of written documents apply. The object of interpretation is to discover the intention of the parties as revealed by the language of the document in question;
(b) the words of a restrictive covenant:
(i) should generally be given their ordinary and everyday meaning and not be interpreted using a technical or legal approach. Evidence may be admitted, however, as to the meaning of technical engineering, building or surveying terms and abbreviations;
(ii) must always be construed in their context, upon a reading of the whole of the instrument, and having regard to the purpose or object of the restriction;
(c)importantly, the words of a restrictive covenant should be given the meaning that a reasonable reader would attribute to them. The reasonable reader may have knowledge of such of the surrounding circumstances as are available. These circumstances may be limited to the most obvious circumstances having regard to the operation of the Torrens system and the fact that the covenant is recorded in the register kept by the Registrar of Titles. As the High Court held in Westfield:
The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee ...
(d)the words of the covenant should be construed not in the abstract but by reference to the location and the physical characteristics of the properties which are affected by it, and having regard to the plan of subdivision and, depending on the evidence, possibly having regard to corresponding covenants affecting other lots in the estate;
(e)because the meaning of particular words depend upon their context (including the purpose or object of the restriction in a covenant) cases that consider similar words provide no more than persuasive authority as to the meaning of words in a different document. Further, the decisions upon an expression in one instrument are of very dubious utility in relation to another;
(f)the rules of evidence assisting the construction of contracts inter partes, of the nature explained by Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales, do not apply to the construction of easements and covenants;
(g)if the meaning remains in doubt after other rules of interpretation have been applied, as a last resort or ‘very late resort’, the covenant should be construed contra proferentem, that is, against the covenantor;
(h)whether a covenant has been breached or not is a question of fact to be determined according to the facts of the case and in the light of the actual language in which the restrictive covenant is framed; and
(i)generally speaking, the proper construction of an instrument intended to have legal effect is a question of law, not fact. On the other hand, the meaning of a particular word or expression in such an instrument may be a question of fact, particularly where the Court has already determined as a matter of construction that the word or expression is used in its ordinary and natural meaning.[13]
[13][2016] VSC 381, [31] (Derham AsJ) (citations omitted).
The decision of Manderson v Wright concerned lot 6 of the Estate, and considered an equivalent neighbourhood development plan for the western half of the Estate, and a prohibition which was in identical terms to the prohibition in the NDP in this case. The applicant (as plaintiff) had sought an injunction requiring another neighbour to remove buildings and development on their land, and also to reinstate the land with native Moonah trees and indigenous vegetation. The neighbour’s development also included proposed decking, which was not yet built.
As indicated already, Emerton J dealt with a number of preliminary issues, as separate questions. Her findings include the following:
(a) that, as a general rule, a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles issued;[14]
(b) that the Permit generally (with particular reference to conditions 16 to 18) was spent;[15]
(c) that Restriction 2 has ongoing legal effect, and that building on lot 6 may not occur in the hatched areas marked in the neighbourhood design plan.[16]
[14]Manderson v Wright [2016] VSC 677, [25].
[15]Ibid [28]–[29].
[16]Ibid [40]–[41].
Emerton J was also satisfied that the imposition of building envelopes in the neighbourhood design plan was intended to protect the native vegetation on the subject land.[17] However, there was nothing in either the neighbourhood design plan or the Plan of Subdivision that could be construed as imposing a direct prohibition on the removal of vegetation or a requirement to minimise its clearance.[18] Rather, the building envelopes were the only means chosen to address the mischief of native vegetation removal, which means they should be strictly enforced.[19]
[17]Ibid [46].
[18]Ibid [50].
[19]Ibid [51].
Emerton J also considered that the proposed decking in question was a ‘structure’, or ‘appurtenance’, and was therefore a ‘building’ by reference to the definition of a ‘building’ contained in the Planning and Environment Act 1987.[20]
[20]Ibid [53], [57]–[58].
John Dixon J then finally determined the proceeding, finding that the applicant was entitled to the relief sought by mandatory injunction for demolition of the building structures on lot 6.[21]
[21]Manderson v Wright (No 2) [2018] VSC 162, [6], [247].
Extension of Time
The applicant filed his application for leave to appeal five days outside the 28 day filing period. He claims that the failure to meet the time limit was due to an error of counsel.
For reasons that follow, we have determined that the proposed grounds of appeal have no real prospects of success, and that the application for leave would be bound to fail. In such circumstances it would be futile to grant the application for an extension, which application will be refused.
Proposed ground 1
Applicant’s submissions
The critical issue raised by proposed ground 1 is whether the associate judge erred in finding that there is no breach of Restriction 2 if fences are built on the boundary line.
In relation to proposed ground 1(a),[22] the applicant submits that it was not open to the Court to construe Restriction 2 by reference to a condition in the Permit which was not on the register, and which predated the formulation and registration of the Restrictions. The Permit, although referred to in Restriction 2, is only referred to for the purpose of identifying the NDP to be approved pursuant to conditions 16 and 17 of the Permit.
[22]See above, [25]. The applicant split proposed ground 1 into two sub-grounds.
In any event, condition 14 of the Permit is irrelevant given it only refers to fences abutting the Council Reserves. However, the Council expressly excluded the Council Reserves from the Restrictions and the neighbourhood development plans.[23] The exclusion is also consistent with conditions 16 and 17 in the Permit, which mandated the preparation of neighbourhood development plans, and the inclusion of restrictions, only with respect to ‘the lots’. The respondents also did not lead any evidence as to why condition 14 was inserted into the Permit, or the circumstances of the Council Reserves at the time of the granting of the Permit. Condition 14, when read with conditions 10 to 13 of the Permit, support the implication that the Council Reserves were either clear of endangered flora, or were to be cleared to allow for the landscaping required by conditions 11 to 13 and the use of the entire area to and including the boundary as a reserve.
[23]The Council Reserves do not appear on the NDP, but can be seen on the equivalent neighbourhood development plan for the western half of the Estate. This was the plan considered in Manderson v Wright.
In relation to proposed ground 1(b), it was not reasonably open for the associate judge to draw a distinction between the boundary line of a lot and the hatched area on a lot as stipulated in the NDP. The boundary lines are outside the designated unhatched building envelope, and are subject to the prohibition in the NDP. The NDP does not state that the boundaries of a lot are part of the building envelope and the NDP stipulates that it is not drawn to scale. The hand-drawn hatched lines are drawn across the side boundaries of all lots on the NDP. The NDP does not draw a distinction between the boundary line and the hatched area on the NDP, and it is trite that a boundary line demarcating the property is part of the property. If there is any doubt as to whether the boundary lines are part of the hatched area, the Court should have strictly construed the NDP to give effect to the purpose of Restriction 2 and the NDP to protect native vegetation in the area outside the designated building envelope.
In oral submissions, counsel submitted that any intrusion into the hatched area constitutes a breach given the protective purpose of Restriction 2. Thus, any building on or inside the boundary constitutes a contravention. Given that the building envelope was the only protective mechanism available to address the mischief of native vegetation removal, the restriction should be strictly construed.
Analysis
Consistent with the above principles, the proper inquiry is whether a reasonable reader would understand Restriction 2 to prohibit the construction of a fence along the boundary line.
There may be some merit in the suggestion that the associate judge’s reference to the (spent) Permit was inappropriate given a third party inspecting the Register cannot be expected to locate and consider the conditions of the Permit to establish what is meant by the registered Restrictions.[24] However, it is unnecessary to consider whether the associate judge made an error in referring to the Permit. We are satisfied that his Honour was correct in finding that Restriction 2 does not prohibit the construction of a boundary fence for the following reasons (which exclude reference to the Permit, including condition 14).
[24]Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528, 539 [39] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2007] HCA 45.
First, the ordinary and everyday meaning of the language used in the Restrictions and the NDP suggests that a boundary fence is not intended to be prohibited.
Restriction 2 prohibits the ‘develop[ment]’ of the land ‘other than in accordance with’ the NDP. Even presuming that the construction of a boundary fence constitutes a development of the land, the fence is only ‘other than in accordance with’ the NDP if it properly constitutes a ‘building’, or ‘part of a building’ the subject of the prohibition in the NDP.
The Macquarie Dictionary definition of a ’building’ is as follows:
1.a substantial structure with a roof and walls, as a shed, house, department store, etc.
2. the act, business, or art of constructing houses, etc.[25]
There is nothing in this definition which suggests that a ‘building’ should extend to a boundary fence. In this respect, we would respectfully disagree with Emerton J that it was appropriate to have recourse to the definition contained in the Planning and Environment Act 1987.[26]The matter does not appear to have been the subject of contested submission. In any event, we do not consider that any such recourse is necessary or appropriate. Although the Permit is to be interpreted pursuant to the definitions in that Act, the Permit is spent. It would also be unnecessary to include the words, ‘or part of a building’ if that definition applied, because the statutory definition already includes ‘and part of a building’. Rather, consistent with the principles already summarised, the words should not be interpreted using a technical or legal approach.
[25]Macquarie Dictionary (online at 9 December 2021) ‘building’.
[26]In the Planning and Environment Act 1987 s 3, ‘building’ is defined to include: (a) a structure and part of a building or a structure; and (b) fences, walls, out-buildings, service installations and other appurtenances of a building; and (c) a boat or a pontoon which is permanently moored or fixed to land.
The ordinary words ‘in the area’ also suggest that the prohibition in the NDP is directed to a building located within the lot, rather than a fence built substantially along the boundary line, as the respondents suggest.
Secondly, the prohibition relied upon appears in a particular context that focuses attention on ‘houses’ or ‘dwellings’, and not fences. Thus, Restriction 1 prohibits the erection of more than one ‘dwelling’. The prohibition in the NDP (the subject of Restriction 2) also appears under the heading, ‘House siting policy’. Contrary to a suggestion of the applicant that this heading relates to Restriction 1, the concept of house ‘siting’ is clearly directed towards the prohibition in the NDP against ‘locat[ing]’ buildings in the hatched areas. This context underscores that the prohibition in the NDP is primarily directed towards the placement of a house or other substantial structure used for human occupation or shelter. It has nothing to do with the placement of a fence which seeks only to demarcate the boundaries of the land.
Thirdly, the placement of a boundary fence would not undermine the purpose of the NDP. As enunciated by Emerton J, this purpose is directed to protecting and minimising the clearance of vegetation by way of (relatively small) ‘building’ envelopes. The mechanism chosen is again directed at buildings or structures intended for personal occupation or shelter. It is not directed at a boundary fence which is intended to enclose the land (as it is).
Finally, the lots in the Estate border the roads, other lots, land outside the Estate, and the Council Reserves. The prohibition in the NDP also appears in a ‘neighbourhood design plan’ clearly intended to operate in a rural setting where people are to reside together as a functioning community. This would include people with small children living near roadways, as well as those with animals. A reasonable reader of the Restrictions would expect an express statement if it was really intended that an owner could not construct a fence so as to demarcate property boundaries and enclose land. Even the applicant’s own planning witness could not name a subdivision in which all fencing was precluded. There is no such indication in the NDP, which shows all of the boundary lines as continuous. To the contrary, there is actually a continuous, bold, dog-legged line between lots 13 and 14, which suggests that a fence along this path would be both necessary and appropriate (to define the lot boundaries).
We therefore consider that a standard fence built substantially along, and for the purposes of defining, the boundary line does not breach the prohibition in the NDP, and is not thereby ‘other than in accordance with’ the NDP.
The associate judge therefore made no error in finding that the construction of a boundary fence does not breach Restriction 2, with the result that proposed ground 1 is without merit.
Proposed grounds 2 and 3
Applicant’s submissions
In relation to proposed ground 2(a),[27] the applicant highlights that the associate judge relied on Sheet 1 of a survey plan put into evidence by the applicant to determine that the front fence was substantially on the boundary line, and only encroached into the lot by 6 cm. Sheet 1 delineates the front fence by a hatched line against a solid line being the surveyed boundary.
[27]See above, [25]. The applicant split proposed ground 2 into two sub-grounds.
The applicant submits that the front fence is not substantially ‘on’ the boundary line. The boundary line does not have an ascertainable depth and at best it is the notional width of a laser line, or a piece of string, used to determine the location of the boundary line. Any structure built ‘on’ the boundary line will encroach into the property by the depth of the structure. In particular, the fence posts were behind the line and within the property.
The applicant contends that his Honour erred by finding as a fact that ‘at best the fence encroaches the hatched area by approximately 6 cm’. All of the 40.34 m of the fence was wholly or partly within the front boundary line of the lot by at least the depth of the battens and the posts. The 6 cm notation on Sheet 1 is measured between the front of the fence and the boundary line midway in a greater deviation and therefore does not include the depth of the battens and posts and the greater deviation. In effect the fence was erected with the face abutting or within 6 cm or greater from the boundary and with the structure sited wholly on the property.
In oral submissions counsel contended that the associate judge should have inferred that the fence encroached in an amount that was greater than 6 cm, having regard to the fact that Mr Patterson’s drawings included symbols for posts, and that the photographs showed the existence of posts.
In relation to proposed ground 2(b), the applicant submits that coastal Moonah woodland is a protected species pursuant to the Flora and Fauna Guarantee Act 1988. Pursuant to s 4B of that Act, councils are required in exercising their functions to take into account the objective of the Act to, among other things, protect endangered species. The Council did so by a scheme of management consisting of the Restrictions and the NDP limiting building on a lot to a designated building envelope (citing Manderson v Wright).
An encroachment of 6 cm may in the circumstances be significant and not held to be trifling or de minimis (citing Break Fast Investments Pty Ltdv PCH Melbourne Pty Ltd[28]). The encroachment in this case was greater than 6 cm.
[28](2007) 20 VR 311, 314 [12], [14] (Dodds-Streeton JA); [2007] VSCA 311.
The applicant submits that the contravention was not de minimis because (as Emerton J had determined) any building must be confined to the designated building envelope, which (as the only protective measure for the coastal Moonah woodland), should be strictly enforced. The applicant’s experts also gave evidence that the fence had a significant impact on flora and fauna and the amenity of the development.
A finding that a building on the lot outside of the designated building envelope is a de minimis breach defeats the purpose and intent of the Restrictions and the NDP. Any building on the hatched area of a lot on the NDP (including along the boundary line) may defeat the purpose of the Restrictions and the NDP by removing vegetation. The respondents did in fact clear vegetation for the construction of the fence including a protected native golden wattle. A finding of de minimis will create an unstipulated exception to the Restrictions and reduce both the burden and the benefit of the Restrictions and may encourage further contraventions of the Restrictions and the NDP.
As to proposed ground 3, the second respondent gave evidence that the respondents had carried out planting on lot 3, but the planting along the newly constructed fence appears to have been minimal. There was otherwise no evidence or submission before the Court to the effect that the fence could not be removed without damage to the vegetation or that removal of vegetation was a ground for refusing to order the removal of the fence.
Analysis
Proposed grounds 2 and 3 are to be determined in the light of our finding, above, that there is no breach of Restriction 2 where a fence is built substantially along, and for the purposes of defining, the boundary line. Given that the applicant accepts that the associate judge determined ‘in effect’ that the fence was erected substantially on the boundary line, it also follows that he was correct to dismiss the application. It is not appropriate to limit the width of a boundary fence to a ‘piece of string’. Provided that the fence encroaches onto the land no further than is necessary to give effect to the boundary lines there is no breach of Restriction 2.
The evidence of the surveyor, Mr Patterson, (led by the applicant) was also to the effect that there was an encroachment of approximately 6 cm. The applicant did not seek to elicit any further evidence to suggest that this did not take into account posts and/or was otherwise incorrect. Counsel also accepted that the applicant did not ‘directly’ suggest to the associate judge that posts should be taken into account.
It was thereby open for the associate judge to find that a small part of the fence encroached the hatched area by approximately 6 cm, consistent with the evidence of Mr Patterson. Any such incursion may also be described as de minimis, in this context (as the associate judge found). Even if some (unidentified) amount is factored in for posts, this does not detract from the true characterisation of the fence as a boundary fence. Counsel also properly accepted that you cannot really build a fence just on the boundary line.
Given that there was in fact no breach, it was unnecessary for the associate judge to also consider the possible effects of fence removal. However, the applicant has also not demonstrated that his Honour erred in averting to the ‘possibility’ that vegetation would need to be removed or damaged in the process of such removal. Such an inference was open having regard to the photographs adduced into evidence, particularly those taken by the second respondent, which show the growth of vegetation close to the fence line.
Proposed grounds 2 and 3 are also unsustainable.
Whether application also without merit by reason of applicant’s ‘unclean hands’
The respondents submit that, although it was not pleaded, it was also open for the associate judge to take into account the applicant’s own conduct in determining whether to grant the injunction. In particular, they cited the ‘unclean hands’ maxim, and highlighted that the applicant’s own fence breached Restriction 2.
The applicant submits that the absence of ‘clean hands’ was not raised before the associate judge, and should not be considered now.[29] He also submits that, if the respondents are correct, no-one could bring an application to prohibit removal of vegetation given that all properties in the Estate have fences. In oral submissions, counsel contended that the applicant would have led further evidence if the matter had been raised. That evidence would have been to the effect that the applicant bought the house with the front fence already there, and that the applicant would not want to remove the fence given that vegetation has grown up around it.
[29]Citing Glass v Chief Examiner (2015) 50 VR 577, 597–8 [78] (Santamaria, Ferguson and McLeish JJA); [2015] VSCA 127. See also Whisprun Pty Ltd v Dixon [2003] HCA 48, [51] (Gleeson CJ, McHugh and Gummow JJ).
As the Court said in Black Uhlans Inc v New South Wales Crime Commission:
That someone who comes to equity must have clean hands is an equitable maxim …
The unclean hands maxim requires the court to look at the conduct of the litigant who seeks the assistance of equity, rather than the conduct of the defendant. Further, it is conduct which the litigant who seeks the assistance of equity has engaged in in the past which is required to be looked at. In this way it differs from the maxim that he who seeks equity must do equity, which looks at the conduct which a litigant who seeks the assistance of equity undertakes to engage in in the future.
Some examples of the circumstances in which the maxim has been the basis on which a case has been decided illustrate the breadth of application of the maxim. … Where the plaintiff and the defendant are both bound by restrictive covenants arising under a common building scheme, and the plaintiff is in serious breach of the covenant, unclean hands provides a basis on which the plaintiff cannot obtain an injunction to require the defendant to observe the restrictive covenant: Goddard v Midland Railway Co (1891) 8 TLR 126.[30]
[30]Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060, [158]–[160] (Campbell J).
Although the issue of ‘unclean hands’ was not directly raised, there was evidence that the applicant had a front fence located on his property. In fact, the associate judge expressly found that the fence built on the applicant’s land was more problematic than that built by the respondents because it was built one to two metres inside the boundary line, and therefore ‘clearly’ in breach of Restriction 2.[31]
[31]Reasons [57].
If then (contrary to the above findings), the respondents’ conduct constituted a breach, the applicant’s own fence would also appear to constitute a ‘serious breach’ of Restriction 2 regardless of whether he was responsible for the actual construction of the fence. This may have provided an additional basis for dismissing the applicant’s claim.
However, it is unnecessary to consider this issue further. For reasons given already, the associate judge was correct in dismissing the claim on the basis that the respondents have not breached Restriction 2.
Conclusion
The application for leave to appeal is without merit. It would therefore be futile to grant the applicant an extension of time to file the application for leave to appeal. Accordingly, the application for an extension of time will be refused.[32]
[32]See Beling v Victorian Legal Services Commissioner [2021] VSCA 256, [47] (Kaye and Niall JJA).
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