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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LISTVCAT REFERENCE NO. P1911/2016

PERMIT APPLICATION NO. TPA/45378

CATCHWORDSSection 77 of the Planning and Environment Act 1987; Monash Planning Scheme, General Residential

Zone; two side-by-side double storey dwellings; design response to neighbourhood character.

APPLICANT Jun Liu

RESPONSIBLE AUTHORITY Monash City Council

SUBJECT LAND 30 Margate Crescent, Glen Waverley

WHERE HELD Melbourne

BEFORE Christina Fong, Member

HEARING TYPE Hearing

DATE OF HEARING 10 April 2017

DATE OF ORDER 17 May 2017

CITATION Liu v Monash CC [2017] VCAT 694

ORDER1 In application P1911/2016 the decision of the responsible authority is set

aside.

2 In planning permit application TPA/45378 a permit is granted and directed to be issued for the land at 30 Margate Crescent, Glen Waverley in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

Development of two double storey dwellings.

Christina FongMember

APPEARANCES

For applicant Simon Skinner, town planner, Planning Sense, Town Planning Consultants. He called Robert Thomson, landscape architect, to give evidence.

For responsible authority David De Giovanni, consultant planner.

INFORMATION

Description of proposal As amended, still two double storey side-by-side dwellings. Each dwelling provides four bedrooms, one of which is on the ground floor, and a single width garage with a tandem car space.One of the features of the amended design is to relocate the double width driveway serving the two single garages from the centre to two single width crossover and driveway on the sides of the land.

Nature of proceeding Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Planning scheme Monash Planning Scheme

Zone and overlays General Residential 2 Zone (GRZ2), and no overlay.

Permit requirements Clause 32.08-6 for construction of two or more dwellings.

Relevant scheme policies and provisions

Clauses 9, 11, 15, 16, 18, 21.01, 21.02, 2.03, 21.04, 21.08, 22.01, 22.01, 22.05, 52.06, 55 and 65.

VCAT Reference No. P1911/2016 of 19

Land description The land is on the north of side of Margate Crescent, a street that is off Cambridge Drive which runs off Blackburn Road, Glen Waverley. It is regular in shape, with a frontage of 19.6 metres, a depth of 33 metres, and an area of 653 square metres. It is occupied by a single storey brick veneer house. Adjoining the land are also single storey single dwellings.The pattern of development in Margate Crescent is single dwellings and mostly single storeys.

Tribunal inspection 6 May 2017, not accompanied by the parties.


REASONS1

WHAT IS THIS PROCEEDING ABOUT?1 The permit applicant seeks to develop the land for two double storey side-

by-side dwellings on the land. Council has refused the application, and on the grounds of neighbourhood character in the areas of building mass and bulk, having two crossovers, and adverse amenity impact of adjoining properties.

WHAT ARE THE KEY ISSUES?2 The key issue of this review is the design response to the neighbourhood

character of the area, particularly in the areas building massing and bulk, the two crossovers, and lack of landscaping.

3 As for adverse amenity impact on adjoining dwellings, the proposal meets all the clause 55 standards for amenity impact. Council’s submission made no reference to adverse amenity impact on adjoining dwellings.

LEGAL RULING 4 During the merits hearing, it was brought to the Tribunal’s attention that the

land is subject to a restrictive covenant (C700052), which may be interpreted as restricting development to one dwelling.

5 With the consent of the parties, the Tribunal by order dated 10 April 2017 instructed:

Mr. Skinner to file by the end of business day 18 April 2017 his understanding of the covenant and any previous Tribunal ruling that allows more than one dwelling on the land without breaching the covenant;

The Tribunal to refer the matter to a legal member for an interpretation and confirm whether the proposal is in breach of this covenant; and

The Tribunal to proceed to determine the review based on this ruling and the submissions and evidence heard on the day of the hearing.

6 The further submission by Mr. Skinner has been received by the Tribunal on 18 April 2017. This information, with a copy of title and covenant has been referred to Ms. Michelle Blackburn, a legal member of the Tribunal. Her interpretation confirmed that the proposal is not prohibited.

7 Her ruling is attached to this order.

1 The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.


DESIGN RESPONSE TO NEIGHBOURHOOD CHARACTER IN THE AREAS OF BUILDING MASSING AND BULK, TWO CROSSOVERS, AND LANDSCAPING.8 The land is in the GRZ2 of the planning scheme. The purpose of this zone

is to:To implement the State Planning Policy Framework and Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

To encourage development to respect the neighbourhood character of the area.

To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.

…

9 The schedule to the zone contains several variations to clause 55 standards: front setback at a minimum of 7.6 metres, an area of 75 square metres of private open space with one part at the side or rear with a minimum area of 35 squares and minimum dimension of 5 metres and conveniently accessed from a living room, and front fence within 3 metres of the front boundary to be no more than 1.2 metres.

10 Council advised that it has currently an amendment C125 on foot. This amendment proposes to rezone the land to a General Residential 3 Zone (GRZ3), which is to have the following provisions:

Front setback of 7.6 metres

Garage/carport to be set at least 1 metre from the front façade

Site coverage of 50%

Permeability 30% 1 Canopy tree plus 1 canopy tree per 5 metres of its width

5 metre rear setback

75sq m private open space including 35 square metres to have a width of 5 metres

Front fence no higher than 1.2 metres.

11 This amendment went before the panel in late 2016. Amongst its recommendations, one is to combine the proposed General Residential Zone 3 (GRZ) and GRZ4 zones.

12 In the meantime, the Minister for Planning has overhauled the residential zones, bringing in modifications to the purpose of these residential zones and introduced the concept of garden areas in the General Residential and Neighbourhood Residential Zones. This amendment VC110 came into effect on 27 March 2017. This amendment also specified that permit application lodged before approval date is subject to the transitional


provision of exempting the application of the garden area and maximum height introduced by the amendment.

13 As far as Amendment C125 is concerned, the current controls and provisions of the GRZ2 zone are not too different from the proposed GRZ3 in the area of front setback and increased private open space. The main differences are the site coverage reduced from the default 60% to 50%, permeability from the default 20% to 30%, the number of canopy trees expected, and a rear setback of 5 metres. This amendment currently has no real impact on the proposal.

14 In terms of character policy, clause 21.03 highlights the garden character of Monash. Council seeks to protect this character.

15 In clause 22.01 (Residential development and character policy), the land is Residential Character Type C. the current character of this type is:

The dominant architectural framework is the double-fronted consistently setback, single storey brick veneer 1950’s/1960’s dwellings with some weatherboards dispersed throughout the area. Within this framework are some two-storey houses constructed throughout the area. Within the framework re some two-storey hones constructed mainly of darker red and brown brick. These larger houses are concentrated in the higher, and more topographically diverse, neighbourhoods. They tend to be more visually dominant from the street than the more modest older houses, but still have substantial front gardens.

16 The desired future character for this character type is:The neighbourhood character of this area will develop within a pleasant leafy framework of well-planted front gardens and large canopy trees.

Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. However, in neighbourhoods that currently have a large proportion of two storey houses, the architecture will gradually become more dominant, although it will always be buffered from the street by a well planted front garden that will ensure the soft leafy nature of the street will be perpetuated.

Setbacks will be generous and consistent within individual streets.

…

The built form will be visually unified by well-planted front gardens that contain large trees and shrubs and street tree planting.

…

The soft quality of streets derived from the nature strips will be protected by ensuring that each lot frontage has only one single crossover. Landscape elements such as remnant indigenous vegetation


and the large old coniferous wind-rows will be retained until horticulturally unstable.

(Underlining my emphasis.)

17 This policy also provides guidelines to designing buildings, when a permit is triggered.

18 For vehicle crossings and location of garages, car ports and car spaces, it is policy to:

discourage parking and access ways that have a significant impact on or cause fragmentation of the streetscape;

minimise the number of crossovers to maintain kerbside parking and green space in the front setback and the nature strip;

discourage hardening of streetscape by additional crossovers;

…

Garages, carports and visitor spaces designed so that they do not dominate or visually disrupt the streetscape.

19 With regard to built form and scale, it is policy to:

Respect the height and scale of existing dwellings

Building spacing and setbacks off side boundaries to maintain the spacing and rhythm of existing dwellings

Similar building materials

High degree of articulation

Respect roof heights and pitches of adjoining development

…

Same or similar built form and style in streets that are unified in architect or built form

Articulated and graduated elevations to avoid “box-like” design

Higher degrees of articulation where double storey development in streets where the predominant built form is single storey

…

20 Against such a policy framework, council’s criticisms of the design are the two crossovers in the development, the size of the two storey component which it considers as dominant and excessive, the garages not adequately setback from the front façade, the front setback not meeting standard B6 (the protrusion of the ‘fins’ forward of the allowable encroachment in the standard), and inadequate landscaping.

21 With regard to the proposed two crossovers, council submitted that the preferred character for the area is clearly for one crossover per lot, and that


this position is supported by number of Tribunal decisions. It also argued that the proposed two crossovers is not consistent with the existing character of the area, as:

With the exception of No. 49 Margate Crescent, all lots have only one crossover in the 50 properties in Margate Crescent, and No. 49 Margate Crescent is on a wider lot;

The angled driveway also means a wider crossover, totally 8 metres of the frontage;

The central garden will be framed by crossovers and driveways and garage doors;

Tougher with the pronounced two storey forms of the dwellings, the two crossovers/driveway would result in hard surfaces and built form, representing a dominant element;

The site is not so strategically positioned that would justify a departure from policy.

22 With regard to built form and scale, council argued that development in Margate Crescent is low scale and single storey in character, consisting mostly of single storey single dwellings. Against this character, council submitted that the proposed two storey component as presented to the Margate Crescent streetscape is excessive and dominant, due to:

The first floor footprint taking up 14.7 metres (74%) of the 19.66 metres frontage;

The first floor footprint sitting well forward of the dwelling lines of adjoining dwellings;

The built form being dominant when viewed at oblique angles.

23 With regard to setback from Margate Crescent, council conceded that the area that protrudes forward of standard B6 is the ‘fins’ adjoining the entry porches, which exceed the 3.6 metres height allowed in the standard.

24 As for landscaping, council submitted that the extent of landscaping is limited by the presence of the two crossovers, and landscaping of the site is constrained by the easement at the rear.

25 On the other hand, Mr Skinner’s submission is that a medium density housing will inevitably result in some form of neighbourhood character change, and that it is a matter whether the change is sensitively and respectfully managed based on context and character.

26 With regard to council’s criticism of the two crossovers, his submission is that:

They occupy 30.5% of the site frontage, oriented directly towards Margate Crescent to maximise integration and surveillance; the associated 3 metre width is the smallest amount of paving in the street


setback which allows for safe and convenient low speed vehicle movement;

The frontage of the land 19.66 metres can preserve a large front garden space between crossovers and driveways;

Single width garages and narrow driveway pavements;

Generous landscaping on both sides of driveways;

Substantial setback of garage 2 off the boundary with background canopy tree planting along the eastern boundary;

The existing crossover currently forms a double crossover with No. 32 Margate Crescent with a complete absence of any planting along the eastern interface.

27 In terms of the layout of the dwellings, he submitted that the built form in the proposal is centrally located and essentially in line with buildings adjoining the land. To him, this design is more sensitive to the open backyards of adjoining dwellings.

28 He submitted that the attached duplex arrangement is respectful of the character of the area, because:

On the boundary constructed is limited to one side boundary (Garage 1), and is set back from the other side boundary (Garage 2 setback from the boundary creating a view corridor and maintaining the spacing/rhythm of existing dwellings);

Variable and receding side setbacks;

Widened courtyards on both side boundaries for building articulation and landscape planting;

5 metre wide ‘green corridor’ space across the rear boundary to provide separation, transition/landscape screening from surrounding rear yards;

First floor facades articulated;

Rear first floor facades of Dwellings 1 and 2 designed with 7.5 metres setbacks from rear boundary;

Both adjoining dwellings have interface with only one dwelling.

29 My inspection of the site confirms the current single storey single dwelling development pattern in Margate Crescent. They display a consistent building spacing and rhythm typical of single dwelling development. A side-by-side configuration is not characteristic. This inspection also reveals that two crossovers and two driveways is not a common feature in Margate Crescent. The exception is the two single storey attached dwellings at No. 49 Margate Crescent, which council described as having a wider frontage.


30 A side-by-side configuration, when two storey in scale, can present a boundary to boundary construction and at a scale higher than nearby dwellings if in a single storey area. Such a configuration, if constructed boundary to boundary, will not be observing the building spacing and building rhythm of an area such as the immediate area of the site.

31 However, a side-by-side configuration has their benefits: usually having a deeper setback from the rear which interfaces with the open backyards of surrounding dwellings, and interface with one dwelling for these properties instead of two or more if it is a development of multiple dwellings in a tandem arrangement.

32 Another benefit, as far as this site is concerned, is the attributes of this site: its dimensions, its orientation and features of adjoining dwellings.

33 The site at 19.66 metres is wider than the typical suburban frontage of around 15 to 16 metres. A wider frontage means the width of the frontage taken up by crossovers is less. The site has a north-south orientation. This enables north facing secluded private open space and north facing living rooms for both dwellings. Such northern orientation for secluded private open space and living rooms are unlikely if the dwellings are in a tandem arrangement.

34 A feature of crossovers of the adjoining lots is that they are located on the sides of the review site. That is, the two crossovers proposed in the development are to be merged with these two crossovers. The result is one of reduction in the amount of nature strip, but not fragmenting it.

35 Given the attributes of the site, a side-by-side configuration is an appropriate design response provided the design maintains the building spacing and rhythm of the area. In this instance, the trade-off of increasing the extent of crossover recommended in character policy is worthwhile, given the locational attributes of the site, the improvement to internal amenity of the dwellings, and the reduced impact on adjoining dwellings.

36 The proposal is to construct to one side boundary (garage of Unit 1, and setback 1.5 metres from the other (eastern boundary). The amount of hard paved area is the two crossovers and driveways. There is no separate pedestrian walkways for the dwelling. There is hence still a reasonable amount of land for landscaping between the two driveways, both sides of the driveway, and the setback area on the eastern boundary.

37 A review of the proposed landscaping design by Mr. Thomson shows the planting of two 10x8 metre canopy trees, pencil pines and dwarf boxes along the driveway on the western boundary, two magnolias and Hebes along the eastern driveway. The 1.465 metre side setback of Dwelling 2 from the boundary also enables the appreciation of the Maple tree to be planted in the courtyard of Dwelling 2 when viewed from the street.


38 I am not adverse to a development that manages to maintain the building rhythm spacing of the area and placed in a garden setting for a site in the Character Type C area.

39 One of council’s concerns is the extent of the first floor and the protrusion of the ‘fin’ which cannot meet the allowable encroachment in standard B6.

40 The two dwellings are not small dwellings, providing four bedrooms plus a ground floor gallery and a first floor media room (4.7 x 4.25 metres internal dimensions scaled). The floor area of the dwellings are 225 square metres (Dwelling 1) and 235 square metres (Dwelling 2) respectively, not including garage, all contained in a lot that is 653 square metres.

41 In terms of the extent of built form into the rear of land, the proposal does not face the open backyards of adjoining dwellings. The extent of the first floor on the west side is the driveway and carport of No. 28 Margate Crescent, and the driveway and garage of No. 32 Margate Crescent on the east side. The development is setback 5.2 metres from the rear boundary for the ground floor and 7.745 metres for the first floor. The secluded private open space of the dwelling at the rear (No. 6 Magnolia Court) faces the secluded private open space of Dwelling 1 and the backyard of No. 28 Margate Crescent.

42 However, there is justification to council’s criticism of the size and breadth of the first floors when viewed from the street. Whilst the first floors are setback from the ground floor walls for most of the elevations, the proposed media rooms are not. They ‘bulge’ out and gives the impression of a wide first floor, adding to an already wide building. My requirement will be setting these media rooms further into the building so that they are recessed at least 500mm inward from Bedroom 3 of the respective dwellings. This would still enable an internal dimension of 3.5 metres (measured from the stairs) x 4.75 metres, which would reduce the dominance of the overall building mass.

43 In all, I am satisfied that the design of the development, subject to further modifications, is an acceptable response to the neighbourhood character of the area and the context of the site.

44 These modifications are in the area of reducing the size of the first floors, the decorated fins next to the entry porch either deleted or reduced in height to meet standard B6, centre fence between the two dwellings in the front setback area no more than 900mm and constructed of pickets or materials that are at least 50% transparent to reduce the perception of division of building, and most of the conditions contained in council’s ‘without prejudice conditions.


CONCLUSION45 For the reasons given above, the decision of the responsible authority is set

aside. A permit is granted subject to conditions set out in the appendix of this order.

Christina FongMember


APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO TPA/45378

LAND 30 Margate Crescent, Glen Waverley

WHAT THE PERMIT ALLOWSIn accordance with the endorsed plans:

Development of two double storey dwellings.

CONDITIONS1 Before the development starts, three copies of amended plans generally in

accordance with the plans prepared by Archimedium Australia Pty Ltd, dated November 2015, Revision B and substituted at the VCAT hearing on 10 April 2017, but modified to show:

a) The decorative fins on the front elevation reduced in height or size to meet standard B6.

b) The first floor media rooms of the dwellings further setback from side boundaries so that they are at least 500 millimetres inward of the adjoining Bedroom 3 of the dwellings;

c) Any dividing fence between the two dwelling in the front setback area to be no higher than 900 millimetres and constructed of semi-transparent materials such as pickets or materials showing at least a 50% transparency.

d) An access path (minimum width 1.8 metres) to the rear to allow for drainage maintenance requests.

When approved the plans will be endorsed and will then form part of the permit.

2 The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

3 A landscape plan prepared by a Landscape Architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must be generally in accordance with the landscape plan by habitat Issue VCAT and dated March 2017, showing the proposed landscape treatment of the site including:


the location of all existing trees and other vegetation to be retained on site.

provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development. The planting provision is to include tall trees that when grown will positively contribute to the upper level tree canopy of the area.

planting to soften the appearance of hard surface areas such as driveways and other paved areas.

a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material (semi-mature plant species are to be provided).

the location and details of all fencing. the extent of any cut, fill, embankments or retaining walls

associated with the landscape treatment of the site. details of all proposed hard surface materials including pathways,

patio or decked areas. coloured concrete, paving or the like is to be utilised in the

driveways.

When approved the plan will be endorsed and will then form part of the permit.

4 Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

5 The eastern unit 2 vehicle crossing is to be fully reconstructed. The reconstructed crossing is to remain as a double crossing with number 32.

6 Approval of each proposed crossing, and a permit for installation or modification of any vehicle crossing is required from Council’s Engineering Department.

7 The proposed crossings are to be constructed in accordance with the City of Monash standards.

8 All new crossings must be a minimum of 3.0 metres in width.

9 The proposed unit 1 vehicle crossing is to be a single crossing.

10 Provide a corner splay or area at least 50% clear of visual obstructions (or with a height of less than 1.2 metres) which may include adjacent landscaping areas with a height of less than 0.9 metres, extending at least 2.0 metres long x 2.5 metres deep (within the property boundary) both sides


of each vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road.

11 The walls facing the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the responsible authority.

12 The driveway and parking area is to be constructed to the satisfaction of the responsible authority.

13 All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either:

1. A trench grate (150 millimetres minimum internal width) located within the property; and/or

2. Shaping of the driveway so that water is collected in a grated pit on the property; and/or

3. Another Council approved equivalent.

14 Stormwater discharge is to be detained on site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required from Council prior to works commencing.

15 The nominated point of stormwater connection for the site is to the south east corner of the property where the entire site’s stormwater drainage must be collected and free drained via a pipe a new junction pit to be constructed to Council’s standards in the nature strip in front of the subject site and a new 225 millimetres Council drain to be constructed to the existing council pit located in front of 28 Margate Crescent to council standards.

16 Any new drainage work within the road reserve requires the approval of the City of Monash’s Engineering Division prior to the works commencing. A refundable security deposit of $2,500 is to be paid prior to the drainage works commencing.

17 An access path (minimum width 1.8 metres) to the rear easement is to be provided to allow for drainage maintenance requests.

18 Once the development has started it must be continued, completed and then be maintained to the satisfaction of the responsible authority.

19 The permit for development will expire in accordance with section 68 of the Planning and Environment Act 1987, if one of the following circumstances applies:

The development is not started before two (2) years from the date of issue.

The development is not completed before four (4) years from the date of issue.


In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of the permit expiry date, where the development allowed by the permit has not yet started; or within twelve (12) months of the permit expiry date, where the development has lawfully started before the permit expires.

– End of conditions –


APPENDIX B

OPINION ON QUESTION OF LAW

NOMINATION OF MEMBER1 Michelle Blackburn is nominated pursuant to Clause 66(1)(b) of Schedule 1

of the Victorian Civil and Administrative Tribunal Act 1998, as the member who is a legal practitioner to provide an opinion on a question of law arising in the proceeding.

QUESTION OF LAW2 The question of law to be decided is:

Does the requirement in restrictive covenant C700052 prohibit the construction of more than one dwelling on the review site?

REASONS3 The review site Volume 08460, Folio 334 is affected by a restrictive

covenant created by a registered transfer of land dated 1 February 1967 (Instrument C700052).

4 The burden of the restrictive covenant attaches to the land transferred by Instrument C700052, being lots 126, 127, 138 and 139 of plan of subdivision no. 62118. This burdened land, includes the site, which is Lot 138 of PS62118.

5 Instrument C700052 provides that the benefit of the covenant attaches to land which formed part of plan of subdivision no 62118 and which was not transferred by Instrument C700052.

6 The restriction imposed by Instrument C700052 provides that the land owner:

shall not at any time erect construct or build or cause to be erected constructed or built on any one of the said lots hereby transferred or any part thereof any building other than a dwelling-house of brick or brick veneer excepting any necessary outhouses and garages

7 The applicant seeks a planning permit to construct two dwellings constructed of brick veneer or brick on the site.

8 The key question to be considered in determining whether the proposed development would breach the restrictive covenant, is whether the restrictive covenant is properly interpreted as a “single dwelling” covenant which prevents the construction of more than one dwelling on the Subject Land.

9 The meaning of similarly worded restrictive covenants have been previously considered by the Supreme Court and by this Tribunal on


numerous occasions. In those cases, the words “a dwelling” have been consistently found to not limit the number of dwellings, but rather to limit the type of building to be constructed on the relevant land.

10 As submitted by the applicant, such an interpretation is consistent with the decision of the Supreme Court in Tonks v Tonks [2003] VSC 195. In that case, the Court, in considering the meaning of a covenant which prevented the construction of “any building other than a dwelling house”, said:

If the parties to the original covenant had wished to restrict the number of dwelling houses built on each of these lots they could have done so very simply and definitively by replacing the word “a” in the covenant with the word “one”, or by making some similar simple amendment. The true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house. Provided that any building constructed can be properly described as a dwelling house there would be no breach of the covenant. The covenant says nothing, in my opinion, as to the number of dwelling houses which might be built. To import a restriction as to the number of houses which might be built on lot 3 into the covenant would extend its effect beyond the words used by the parties without any warrant for doing so.

11 The covenant in this case is similar to the covenant considered by the Court in Tonks v Tonks. It is also similar to a covenant considered more recently by the Supreme Court in Re Hammond [2015] VSC 608 which prevented construction of “a private dwelling house of stone or brick”.

12 In discussing passage extracted above from Tonks v Tonks, the Court in Re Hammond said:

The difficulty in this construction exercise, as in many, is to not beg the question. To say the true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house still leaves, I would say, the question whether a dwelling means one dwelling. Tonks says, as do the applicants here, that that the covenant is concerned with type of building and not how many.

13 The Court in Re Hammond then went on to consider the particular meaning of the covenant before it. In doing so it, together with other recent cases,2 provides a reminder that in matters of interpretation, each case turns on the particular language of the covenant in question and its context, and that it is important to not simply adopt the interpretation of previous decisions on the meaning of other covenants but to consider the particular wording and context of the covenant in question.

14 The principles to be applied in interpreting restrictive covenants are set out in detail in Clare & Ors v Bedelis [2016] VSC 381, and require regard to be given to their context, the whole of the instrument and with words to be

2 Clare & Ors v Bedelis [2016] VSC 381;


given the meaning that a reasonable reader would attribute to them. However, the extent to which circumstances surrounding the covenant can be considered is limited by the fact that the covenant is an instrument recorded on the register kept by the Registrar of Titles.3

15 In this case, the wording and context of the restrictive covenant is similar but not identical to those covenants considered in Tonks v Tonks and Re Hammond.

16 In my view, the differences between previously considered covenants and the wording of registered restrictive covenant C700052 only supports a conclusion that covenant C700052 is not to be read to limit the number of dwellings. Restrictive covenant C70052 refers to “any building other than a dwelling-house” and also to “outhouses and garages”. While it may not be unusual for a single dwelling to have more than one outhouse, it would be unusual for a single dwelling to have multiple garages. This means that the reference in the covenant to “a dwelling-house” makes more sense as a reference to building type than as a reference to the number of dwellings.

17 In my view, the reasonable reader would construe covenant C700052 as preventing buildings being constructed on the land other than dwelling houses built of brick or brick veneer, with the exception of sheds, garages and other outhouse buildings. These outhouses and garages are able to be constructed even though they are not dwellings and even if they are not constructed of brick or brick veneer.

18 Accordingly, the construction of more than one dwelling on the site is not prevented by the restrictive covenant, subject to those dwellings conforming to the requirements of the restrictive covenant relating to construction of brick or brick veneer.

OPINION19 I am of the opinion that the question of law set out above should be decided

as follows:

The requirement in restrictive covenant C700052 does not prohibit the construction of more than one dwelling on the review site.

Michelle Blackburn Member

3 Claire 7 Ors v Bedelis [2016] VSC 381 applying Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45


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