Manderson v Smith & Anor
[2021] VSC 878
•2 July 2021
IN THE SUPREME COURT OF VICTORIA
Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 03378
WARWICK ALEXANDER MANDERSON
Plaintiff
v
BENJAMIN GEORGE HARRISON SMITH
First Defendant
and
RACHAEL LOUISE SMITH
Second Defendant
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JUDGE:
Efthim AsJ
WHERE HELD:
Melbourne
DATE OF HEARING:
9 June 2021
DATE OF JUDGMENT:
2 July 2021
CASE MAY BE CITED AS:
Manderson v Smith & Anor
MEDIUM NEUTRAL CITATION:
[2021] VSC 878
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PLANNING AND ENVIRONMENT – Injunction – Breach of restrictive covenant – Whether boundary fence prohibited by restrictive covenant on title – Clare v Bedelis [2016] VSC 381 – Whether boundary fence is a ‘building’ – Manderson v Wright [2016] VSC 677 – de minimis breach of restrictive covenant.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr P R Best
Raven & Associates Lawyers
For the Defendants
Mr M D Townsend
Kings Lawyers
HIS HONOUR:
1 In this proceeding the plaintiff, Warwick Alexander Manderson, applies for a mandatory injunction compelling the defendants, Benjamin George Harrison Smith and Rachael Louise Smith, to remove at their cost a fence constructed on their land which the plaintiff asserts is in breach of a restrictive covenant. In the alternative, the plaintiff seeks damages but only in the event a mandatory injunction is not granted.
Background
2 The plaintiff is a registered proprietor of the land at 14-15 Warrenbeen Court, Barwon Heads. The defendants are the registered proprietors of the land at 10-11 Warrenbeen Court, Barwon Heads. The plaintiff and the defendants are situated in an estate known as the Warrenbeen Estate and it is defined by land shown in Plan of Subdivision 412071E. That estate was developed as a 14-lot estate pursuant to planning permit 1057/97 in two stages between 1997 to 2002.
3 The covenant was created upon the registration of the Plan of Subdivision on 20 September 1999 by operation of s 24 of the Subdivision Act 1988 (Vic) (‘the Covenant’). The Covenant applies to Lots 1 to 14 in the Warrenbeen Estate. It provides:
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;
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.
4 The Covenant prevents:
1. the erection of more than one dwelling on any lot in the Plan of Subdivision;
2. further subdivision of any lot in the Plan of Subdivision; and
3. development other than in accordance with the neighbourhood design plan approved pursuant to Planning Permit No. 1057/97.
5 Planning Permit 1057/97, issued on 19 January 1998 and amended on 10 August 1998 relevantly provides:
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;
15. The plan of subdivision shall include a restriction sheet to prohibit development of multi-dwellings on all lots, except those nominated and permitting no further subdivision unless otherwise approved by the Responsible Authority. The sites for multi-dwelling development will be nominated by the Responsible Authority prior to the certification of each stage of the subdivision;
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.
6 The relevant Neighbourhood Design Plan (a copy of which is annexure A to this judgment) dated 29 June 2000 sets out building envelopes for lots in the Plan of Subdivision in the context of House Siting policy. That policy provides that:
No buildings shall be erected other than in accord with this policy;
1. No building or part of a building shall be located in the area shown thus [hatched] and dimensions thus e.g. 6.
7 On 18 April 2020 the first defendant commenced construction of a front fence to his lot by digging potholes and erecting posts.
8 On 23 April 2020 the defendants made an application for a permit for the construction of the fence. Their application stated that the proposal did not breach the Covenant or building envelope. On 6 May 2020 the council granted a permit for the erection of the fence.
9 On 17 May 2020 the plaintiff reported the partial construction of the fence to the City of Greater Geelong by email. On 18 May 2020 the City of Greater Geelong informed the plaintiff that the planning permit had been issued for the fence and that the plaintiff was entitled to lodge a complaint.
10 On 22 May 2020 the City of Greater Geelong sent an email to the defendants. The council advised that the planning permit was granted in error. It suggested that no further work on the fence should continue at that time. The defendants were also encouraged to seek their own legal advice about the fence.
11 On 25 May 2020 the defendants, by email, informed the council that the fence was as good as built and all required materials had been purchased. They stated that they were seeking advice from a planning lawyer. That day the defendants obtained legal advice in respect of the Covenant, including the restriction applicable to the defendants’ land.
12 On 30 May 2020 the construction of the battens commenced, the plinth and gate were finished.
13 On 5 June 2020 the fence was completed. It had been personally constructed by the first defendant at a cost of $6,000.00. It was built part on the road, part on the fence line and encroached up to 6cm on to the hatched area.
The Plaintiff’s Evidence
14 The plaintiff, in support of his application, relies on an affidavit that he swore on 23 December 2020, a vegetation report prepared by Mark Trengove of Mark Trengove Ecological Services dated 18 December 2020, a town planning report prepared by Robert Milner of Kinetica dated December 2020 and a surveyor’s report of Geoffrey Robert Patterson of Cardno TGM dated 9 April 2021.
15 The plaintiff deposes that he and his wife purchased the property at 14-15 Warrenbeen Court, Barwon Heads in 2005. He and his wife were aware of the existence of the Covenant.
16 He and his wife were attracted to the property by the unique ambience of a contiguous Coastal Moonah Woodland area. At the time of the purchase, he regarded that the existence of the Covenant provided a high degree of certainty that the as-built status quo and, consequently, retention of the unique Coastal Moonah Woodland engendered benefits would be protected.
17 In 2015 his neighbour at Lot 6 removed a large area of trees and commenced building an extension. It came to his notice in January 2016 that her building works constituted a substantial breach of the Covenant and reported this to the City of Greater Geelong. After being informed by the City of Greater Geelong that it had no powers to act upon on the basis of the Covenant to enforce either against the vegetation removal or the building works, he engaged lawyers to represent him in dealing with a breach of the Covenant by the owner of Lot 6.
18 Supreme Court proceedings were taken seeking demolition of the offending building works. On 11 November 2016 Emerton J (as her Honour then was) issued rulings determining the validity and interpretation of the Covenant, particularly in relation to the Neighbourhood Design Plan.
19 Following a trial in November 2017, on 12 April 2018 John Dixon J issued a judgment that confirmed a breach of the Covenant by the defendant and ordered the demolition of her offending building.
20 Late in 2016 the owner of Lot 1 lodged a planning permit application for the building of a shed. Mr Manderson’s solicitor lodged an objection on Mr Manderson’s behalf. Mr Manderson then corresponded with the owners advising the basis on which he would be prepared to consent to a variation. The permit was subsequently granted and the shed was built.
21 On 16 May 2020 while driving towards his property, he noticed that construction of a fence along the front boundary of 10-11 Warrenbeen Court had commenced. He could see that vegetation had been removed from the road reserve area along the length works, evidenced by bare earth where previously there was more vegetation.
22 On 17 May 2020 he wrote to the City of Greater Geelong reporting his observations, noting the requirements to comply with the Covenant. On 18 May 2020 he was informed by the City of Greater Geelong that a planning permit had been issued for the defendant’s fence and was advised of his rights to lodge a complaint, which he did.
23 On 12 June 2020 the Director of Planning, Design and Development at the City of Greater Geelong emailed him, advising that the City of Greater Geelong had sought to cancel the permit issued but, because the fence had already been completed, they had withdrawn their VCAT application seeking cancellation of the permit. There was nothing further they could do.
24 In view of that advice Mr Manderson engaged lawyers who wrote to the defendants on his instructions. In response, he received a letter which advised that the whole purpose of the fence constructed by the defendants was to protect their children.
25 Mr Manderson states that, having observed that the vegetation along the fence line was sufficiently dense to severely inhibit any ability to enter the road reserve, and having discovered shortly prior to these proceedings commencing that the defendant already constructed, some time earlier, fencing that enclosed the rear yard of their property, he considers this claim to be spurious.
26 He further states that the defendants have thus far refused to remove the fence or make any application to remove the Covenant.
27 He asserts that he sought City of Greater Geelong to better educate and generally make Warrenbeen Court land owners more aware of the threatened Coastal Moonah Woodland environment that exists at Warrenbeen Court, the need to comply with the planning scheme controls (including the Environmental Significance Overlay) that exist and the owner’s obligations under the Covenant on titles.
28 In cross-examination Mr Manderson agreed that all properties in Warrenbeen Court have fences. He also agreed that he had a fence and a gate, and believes that the fence encroaches further than 6cm, and more like one to two metres, on to the hatched area on his lot (which is the area on which no buildings can be erected).
29 Mr Trengrove, a horticulturist, has a provided an expert report and it is in his view that the ongoing impacts of the fence are:
18. altered light regimes impact on the characteristics of vegetation (loss of species, increased weed growth, altered growth patterns);
19. impacts on regeneration of plant species by seed or propagules;
20. acts as a physical barrier between vegetation on roadside reserve and private property (fragmentation); and
21. unknown impacts on nan-vascular flora.
30 He states that the impacts on the fauna are as follows:
22. creates a barrier that bars, limits or modifies movement of fauna species (mammals, birds and insects);
23. bars, limits or modifies faunal ability to pollinate plant species; and
24. bars, limits or modifies faunal ability to distribute plant seed and/or propagules.
31 In his conclusion, he states:
The fence, if allowed to remain in its current state, will have an ongoing negative impact upon the ecology and health of the native vegetation and fauna of the site and have potential implications for the conservation of the larger Coastal Moonah Woodland area.
The clearance of native vegetation associated with building development on the site has significantly diminished the ecological quality of the site and diminishes the ecological quality of the overall contiguous Coastal Moonah Woodland that characterizes the Warrenbeen Court Estate.
32 Mr Milner, a town planner, has also provided a report. He was asked to assume that there had been a breach of the Covenant and was given a series of questions to respond to. He states that:
These three fences have a material impact upon the character and amenity of the street... They fundamentally change the visual appearance and relationship with the street. Rather than a soft edged vegetated bush enclosure of the street space, the fences introduce a hard-edged straight line, suburban style of property treatment and interface that to varying degree screens the Moonah vegetation that is the celebration of this court.
For the above reasons the fence and gate recently constructed at 10-11 Warrenbeen Court, contributes, alongside two other properties, to a diminished amenity, and is disrespectful of streetscape character of its context.
33 When cross-examined Mr Milner agreed that it was rare to see a Neighbourhood Design Plan with an obligation to build, or a prohibition of building, fences of any kind. He also is familiar with the fact that the area was a bushfire prone area and that, within 30 metres of a property, any kind of shrubbery can be cleared with the exception of trees. Within 10 metres of the property any kind of tree can be cleared.
34 Mr Patterson, a surveyor, provided a report which shows the location of the completed fence. Annexure B to this judgment contains a drawing of the defendant’s land, which was produced by Mr Patterson, showing that where the plaintiff’s fence has been built it is built in part on the road, in part on the boundary line and in part on the property.
The Defendants’ Evidence
35 The second defendant deposes that she purchased the defendants’ property at 10‑11 Warrenbeen Court, Barwon Heads, with her husband on 2 February 2010 with the intention that it would become a family home at which they would raise their children.
36 She has always understood the Covenant, together the with Neighbourhood Design Plan, to limit the construction of her house to a given area – the building envelope.
37 By reason of the fences on each and every property in Warrenbeen Court, including the plaintiff’s home, it is obvious that the Covenant was never intended to control the use or style of boundary fencing. Styles of fencing throughout Warrenbeen Court range from posts and wire to solid timber and some brush fencing. Some fences are nearly identical to the one that the plaintiff is objecting to in these proceedings.
38 She states that the primary reason for constructing a timber batten front fence was the safety and security of her two young children, currently aged five and seven. Essentially, the defendants wanted to keep their children inside their property to avoid the risk of them running onto the road and also to prevent vehicles entering into their property in an uncontrolled way. Significant native vegetation in their rear yard limits the space as a play area for them. The absence of any markers delineating the boundary of their property also meant that people and animals would routinely walk on to their land and towards the house, presumably thinking that their land was a park or part of the road reserve.
39 On 18 January 2020 the need for a sturdy front fence became even more apparent when an out of control vehicle left the road and drove into the vegetation at 32‑38 Warrenbeen Court, directly opposite their property. The defendants’ fence was therefore designed to provide a degree of protection for their family, built from materials that would weather over time.
40 The defendants’ application for a planning permit was assessed by the relevant council office and a planning permit along with the endorsed plan were emailed to the defendants on Wednesday, 6 May 2020. From 15 to 17 May 2020 construction of the fence resumed, including the placement of the remaining posts and railings. No neighbours raised concerns. Six neighbours made positive comments. Most work was completed by 17 May 2020.
41 On 21 May 2020, she received a call from the City of Greater Geelong stating that a neighbour had complained that the construction of the fence was at odds with the Covenant. The fence was completed by 5 June 2020. At no point were the defendants directed by the council to stop work on the construction of the fence.
42 While one wattle was removed to make way for the fence, no significant understorey was removed. Some understorey may have incurred minor damage in the process of constructing the fence; this appears to be self-rehabilitative. The defendants annually undertake planting on their property and since the completion of the fence, they have planted approximately 90 plants, trees and grasses across their property, including along the fence line, all of which are either Australian natives or Coastal Moonah Woodland species.
43 Since the fence has been in place, the understorey has significantly increased in volume and density and they have discovered multiple varieties of native vegetation regenerating in the area. In addition to the protection that the fence is providing to the vegetation allowing regeneration due to the absence of disturbance, they have regularly identified and removed by hand exotic weeds and garden species amongst the indigenous plants to provide growth.
Construing the Covenant - Consideration
44 In Stockfeld & Anor v Hendon & Ors, Hetyey AsJ referred to Prowse v Johnstone, and to the principles governing the construction of restrictive covenants. His Honour said (citations omitted):
In Prowse v Johnstone, Cavanough J undertook a comprehensive review of the principles governing the construction of restrictive covenants. His Honour’s exposition can be summarised as follows:
(a) the words of a restrictive covenant are to be given their ‘ordinary and everyday meaning’, to be interpreted in their ‘colloquial or ordinary sense, not in any technical or legal sense’;
(b) the words of a restrictive covenant must always be construed in their context and upon reading the whole of the instrument;
(c) great caution should be exercised in considering what, if any, use should be made of interpretations adopted in other cases in relation to distinct instruments. Small differences of language can be critical;
(d) the extent to which background material may be taken into account in construing a restrictive covenant affecting Torrens system land is more limited than for contracts generally. Reference to extrinsic material may be confined to the physical characteristics of the land, the recording of the covenant on the title and the plan of subdivision (although it may be appropriate to also refer to surveying terms and abbreviations appearing on the register). In other words, the rules of evidence assisting the construction of contracts inter partes, of the type referred to in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales do not apply.
45 In Clare v Bedelis, Derham AsJ, after a review of the authorities, set out the approach to be applied in the construction of a restrictive covenant. His Honour said (citations omitted):
A review of the authorities reveals the following principles of interpretation are applicable to restrictive covenants:
(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) 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.
46 The Covenant was interpreted in Manderson v Wright by Emerton J (as she then was). I am bound to follow that interpretation. Her Honour said:
The plaintiff submits that it is apparent from the wording of the restrictive covenant that three obligations arise under it: to protect existing vegetation, to minimise the clearance of vegetation and to preclude building within the hatched areas.
For her part, the defendant submits that there is no obligation in respect of vegetation pursuant to restriction No 2 or otherwise.
Condition 16 of the subdivision planning permit required the preparation of a neighbourhood design plan ‘including building envelopes to protect and minimise clearance of existing vegetation on the lots’. It is clear that the purpose of the neighbourhood design plan and its designation of a building envelope for each lot was to protect and minimise the clearance of vegetation. However, the neighbourhood design plan does not make any reference to vegetation. It simply describes building envelopes for each of the relevant lots. The neighbourhood design plan is to be read in conjunction with the plan of subdivision. However, the plan of subdivision does not make any reference to the protection of vegetation either.
I am well satisfied that the imposition of building envelopes in the neighbourhood design plan was intended to protect the native vegetation on the subject land. The Moonah woodland found on the subject land is protected under the Flora and Fauna Guarantee Act 1988 (Vic). The Trengrove report was commissioned because the Council recognised the significance of the native woodland on the site of the proposed subdivision and, no doubt, its obligation to protect it. The building envelopes were conceived and configured to limit the amount of native vegetation that would be removed as a result of the proposed subdivision of the land for residential purposes.
This desire to protect the native vegetation on the subject land was also reflected in condition 18 of the subdivision planning permit which, in substance, required the subdivision works to be carried out with minimal interference with or damage to existing vegetation.
Unfortunately, however, the neighbourhood design plan, while describing building envelopes for each of the lots, does nothing further ‘to protect and minimise clearance of existing vegetation on the lots’. It does not expressly provide for the protection of vegetation or the minimisation of its clearance. Indeed, the neighbourhood design plan makes no reference to vegetation at all.
I have considered whether the neighbourhood design plan contains an implied obligation to protect the native vegetation on the subject land. This involves interpreting the neighbourhood design plan in the context of the controls of which it forms a part to decide whether it is permissible to ‘read in’ words to this effect.
In my view, it is not permissible to ‘read in’ such words. It is not apparent that the drafter of the neighbourhood design plan overlooked by inadvertence, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of neighbourhood design plan was to be achieved. To the contrary, it is tolerably clear that the building envelope was the means chosen to address the mischief of native vegetation removal in the proposed Warrenbeen Court subdivision. The ambition to protect the native woodland as far as possible was translated into a control based on the imposition of a relatively small building envelope for each lot. In short, the building envelope was the mechanism chosen to protect the native Moonah woodland on the subject land. Neither the neighbourhood design plan nor the plan of subdivision contain any additional protective mechanisms and there is nothing in either that can be construed as imposing a direct prohibition on the removal of vegetation or a requirement to minimise its clearance.
The answer to this question is therefore ‘No’. However, this means that the building envelopes, as the only protective measure for the Moonah woodland, should be strictly enforced.
47 John Dixon J, in Manderson v Wright (No 2), determined what remedy the plaintiff was entitled to in the previous hearing before Emerton J. His Honour construed the Covenant. He stated:
The express terms of the restriction in the covenant is stated on the first page of the plan of subdivision:
…
Accordingly, the restriction on building created by the covenant on each lot described as ‘House Siting Policy’ is that building is only permitted in the non-hatched area, which was referred to as the building envelope. The covenant does not expressly identify any vegetation protection or vegetation clearing policy and to find such policies requires that words that are absent be read into the covenant, principally by reference to extraneous circumstances at the time of subdivision. I cannot see any legal basis for construing the covenant in that manner.
Turning to Emerton J’s ruling, the plaintiff submitted to her Honour that three obligations arose from the wording of the restrictive covenant: ‘to protect existing vegetation, to minimise the clearance of vegetation and to preclude building within the hatched areas.’
Her Honour concluded that imposing building envelopes in the NDP was ‘intended to protect the native vegetation on the subject land’ but the NDP failed to impose a direct prohibition on the removal of vegetation or a requirement to minimise its clearance:
…
It is clear that the Greater Geelong Planning Scheme neither prohibits interference with the CMW nor imposes any positive duty in respect of its conservation. By reason of the area of the lot, vegetation may be removed without a permit. Breach of the covenant cannot provide a basis for the plaintiff’s claim for the value of the removed vegetation or, alternatively, for its reinstatement. The final issue must also be determined adversely to the plaintiff. He is not entitled to orders directing reinstatement of the CMW, or directing in what way reinstatement should be achieved?
It is strictly unnecessary to consider the evidence of the witnesses Mr Mark Trengrove, Mr John Saunders, and Mr Brett Lane that went solely to this issue. My conclusion makes that evidence irrelevant. In case a different conclusion might elsewhere be reached, I will briefly express my findings about that evidence in due course.
48 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.
The evidence of Mr Trengrove, as in Manderson v Wright, is not relevant to the issue before me. Mr Milner was asked by the plaintiff to rely on a series of assumptions, including the purpose of the Covenant. I accept that his evidence appeared primarily concerned with a subjective assessment of the design of the front fence and its impact on the amenity of the area. It, too, is of no relevance to the exercise of construction of the Covenant. Mr Patterson did provide a diagram of the defendant’s land which showed the position of the fence on the land.
49 The plaintiff submits that the Neighbourhood Design Plan (when read with restriction 2) has the effect that any development of or building on a lot is restricted to the unhatched building envelope. The plaintiff says a fence is a building and by building a fence the plaintiff has breached the Covenant.
50 The plaintiff refers to Manderson v Wright, where Emerton J determined whether a ‘building’ included decking. Her Honour said:
Section 3 of the Planning and Environment Act relevantly defines ‘building’ as follows:
‘building’ includes—
(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;
In O’Brien v Shire of Rosedale, Gillard J identified three characteristics associated with the term ‘structure’:
First, the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value...
Secondly, the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure...
Thirdly, there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation...
I have had regard to the deck shown in the building plans that have been included in the court book. A relatively large deck is proposed adjoining the two new pavilions. The deck is to be accessed via sliding doors from the pool pavilion.
The proposed deck is to be constructed by bringing together a number of distinct and separate physical components which, when constructed or brought together, form the deck. It is to be constructed at a fixed site, and to have utility value. It is not clear whether and, if so, how, the deck is to be affixed to the house. However, even if it is not affixed to the house, it will rest freely on its own weight, and will therefore assume the character of a structure. The deck is also clearly intended to remain permanently on the site and to be integrated into the design of the development.
In my view, the proposed deck is a ‘structure’ of the relevant kind and is therefore a ‘building’ under the Planning and Environment Act.
51 The plaintiff submits that the broad definition of ‘building’, consisting in any building or structure or development of the lot within the designated building envelope, is consistent with the planning purpose stipulated in conditions 16 and 17 of Planning Permit No 1057/97. The plaintiff also submits that ‘building’ should also be broadly construed to give effect to the stated purpose of the Neighbourhood Design Plan (as determined by Emerton J), that is for the purpose of protecting Coastal Moonah (and other native) woodland and vegetation.
52 Emerton J accepted that the definition of ‘building’ in the Planning and Environment Act 1987 (Vic) applied to define ‘building’ in the Neighbourhood Design Plan. That definition has the effect that a fence is a building for the purposes of the Neighbourhood Design Plan.
53 The defendants submit that contrary to the principles referred to above in relation to the construction of the Covenant, the plaintiff has taken a literal reading of the word ‘building’ instead of endeavouring to construe the Covenant’s purpose. The defendants submit that the Covenant has been expressed to prevent:
25. the erection of more than one dwelling on any lot in a plan of subdivision;
26. further subdivision of any lot in the plan of subdivision; and
27. development other than in accordance with a Neighbourhood Design Plan approved pursuant to Planning Permit No 1057/97.
54 The defendants also submit that there is no suggestion that the Warrenbeen Estate is to be one in which there are to be no boundary or front fences.
55 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 Covenant, I note that condition 14 of the Plan of Subdivision 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 Covenant.
56 Here the defendants’ 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 Covenant. However I agree with the defendants 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.
57 The fence built on the plaintiff’s land, to me, is more problematic because it is built, according to the plaintiff, one to two metres inside the boundary line. That would be clearly in breach of the Covenant.
58 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 Covenant per se. I have not taken into account the fact that all of the lots are fenced in coming to this decision.
59 In my view a proper construction of the Covenant allows the construction of a fence on the boundary lines. Any incursion of the front fence into the hatched area is de minimis. The plaintiff’s application is dismissed.
ANNEXURE A
ANNEXURE B
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