Manderson v Smith

[2021] VSCA 359

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Planning and Environment
2. › Restrictive covenants
3. › Construction of covenant
4. › Neighbourhood design plan
5. › Building envelopes
6. › Whether boundary fence constitutes 'building' prohibited by covenant
7. › Whether ordinary meaning or statutory definition applies
1. Real Property
2. › Restrictive covenants
3. › Construction
4. › Principles of interpretation
5. › Ordinary and everyday meaning
6. › Reasonable reader test
7. › Surrounding circumstances available under Torrens system
8. › Codelfa principles inapplicable to covenants and easements
1. Real Property
2. › Restrictive covenants
3. › Breach
4. › De minimis
5. › Whether minor encroachment into restricted area constitutes actionable breach
1. Equity
2. › Injunctions
3. › Mandatory injunction
4. › Clean hands
5. › Whether applicant's own breach of restrictive covenant precludes relief

Quick Take

A standard boundary fence built substantially along and for the purposes of defining the boundary line does not breach a restrictive covenant that prohibits 'buildings' in designated areas outside a building envelope, because 'building' in its ordinary meaning refers to a substantial structure with a roof and walls. The statutory definition of 'building' in the Planning and Environment Act 1987 (Vic) should not be imported into the construction of restrictive covenants. Minor encroachments of a boundary fence into a restricted area (here, 6 cm) may be treated as de minimis.