For Dimitra Costa, Alexi Costa, Ektor Costa and Nathan Brennan

Mr Alexi Costa appeared in person for himself and for his mother, Dimitra Costa.

Mr Nick Sissons, solicitor, of the firm of Russell Kennedy, solicitors appeared for the responsible authority.

Mr Jeremy Goldman, solicitor of the firm of Kliger Partners, solicitors, appeared for Hamayan Learning Institute.

The submissions in documentary form have been retained on the file of the Tribunal.

Application under s 82 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to grant a permit.

Application under s 80 of the Planning and Environment Act 1987 for review of conditions in a notice of decision to grant a permit.

Use of land as a place of worship, construction of buildings and works for that purpose, reduction of carparking requirements and removal of a restrictive covenant noted on the title to the land as an encumbrance the terms of which appear in Transfer of Land 0603989.

Residential 1 Zone under the Glen Eira Planning Scheme.

Permission is required under Clause 32.01 which contains the provisions in relation to the Residential 1 Zone for permission to use the land as a place of worship and to construct buildings and works for that purpose.

Permission under Clause 52.06 for a reduction of car parking.

Permission under Clause 52.02 to proceed under s 23 of the Subdivision Act 1988 to remove a restrictive covenant.

Lot 84B on Plan of Subdivision No 2901 being the land in Certificate of Title Volume 3365 Folio 930.

Rectangular allotment on the north-east corner of the intersection of Inkerman Road with Kooyong Road.

1. My task in this case is a limited one. I have been called upon to make a ruling as to whether there is land having the benefit of a particular restrictive covenant.
2. This question arises in the context of two cases before the Tribunal concerning a single piece of land. There has been a mediation conducted by the Tribunal in relation to these two cases. I am told that the issues have been resolved, save for this ruling that I am asked to give.
3. By way of context I think it is helpful to note some circumstances.
4. Both cases relate to a residential allotment located on the north-east corner of the intersection of Inkerman Road with Kooyong Road. It is 638 Inkerman Road, Caulfield North. It is Lot 84B on Plan of Subdivision No 2901 which is the land in Certificate of Title Volume 3365 Folio 930.
5. The proposal is to use the land as a place of worship and to construct some buildings and works. These works would be additions to the existing dwelling house that is upon the land. Permission is also be required for a reduction of on site car parking that would otherwise be required. Permission is also sought pursuant to clause 52.02 of the Glen Eira Planning Scheme to proceed under s 23 of the Subdivision Act 1988 to remove a restrictive covenant.
6. There is a notation on the relevant Certificate of Title recording the restrictive covenant as an encumbrance on the title. The terms of the covenant are not recited on the title. The reference is, in fact, to a Transfer of Land No 0603989. That transfer of land records the covenant. It is dated 6 September 1909.
7. However, the covenant originally arises from a contract of sale of the land. The covenant is one of the things agreed to between the vendor and the purchaser of the land.
8. Some such covenants are said to be "personal" meaning that they do not "run with the land". A personal covenant is enforceable by one party to the contract for the sale of the land as against another. However, the law recognises, in some circumstances a covenant that will continue beyond the interest of the original purchaser and the original seller of the land.
9. A restrictive covenant has to be negative in that it burdens one piece of land in the interest of or for the benefit of another piece of land. The land with the burden is referred to, by lawyers, as the "subservient tenement", whereas the land with the benefit of the land is referred to, in lawyer jargon, as the "dominant tenement".
10. It is possible to arrange things so that the burden does not stop with the purchaser who entered the contract, but "runs with the land", in other words the burden continues with the land though there might be a succession of owners of the land. Similarly, successive owners of land with the benefit of the covenant can succeed to the benefit after the original contracting party has died or ceased to exist or just disposed of the land.
11. The allotment of land was created by the subdivision in 1909. I have a note to the effect that there were 57 lots in the subdivision. It appears from documents tendered that there were over 100 lots in the whole subdivision, although sometimes a subdivision will proceed in stages or batches of lots. Nothing really turns on the number for present purposes.
12. After the subdivision lots created by it were sold individually over a number of succeeding years. A copy of the "parent title" was tendered. It shows the respective transfers as to part as the allotments were sold off and transferred to new purchasers. Lot 84B was somewhere around the middle of this process.
13. Mr Alexi Costa has an interest in one of the other lots and his mother owns a third one. I understand that one of the Costa lots was sold out of the parent title before the current review site[1] and the other Costa lot was sold after the sale and transfer out of the review site.
14. I will need to refer, in due course, to the terms of the covenant recorded in the transfer of land that relates to the review site. I note that Mr Costa agrees that the wording of that covenant was, at least in some respects, defective.
15. Some of the other lots sold out of the parent title also had restrictive covenants and some of them did not. Of those that did, some of them bear the defects noted by Mr Costa and some are in what he concedes are in the proper form if the burden and benefit of the covenants are to run to successors in title.
16. In relation to the question before me Mr Sissons, who appeared on behalf of the responsible authority, maintains that the covenant, or at least the relevant part of it, was personal only, does not run with the land, does not burden the land now and does not benefit any other land. In particular, in its terms, it does not identify other land to have the benefit of the covenant. Identification of the land with the benefit is essential for the covenant to have legal force beyond the original contracting parties.
17. Mr Goldman, the solicitor appearing on behalf of the permit applicant institute, takes a similar view.
18. Mr Costa, on behalf of himself and his mother, seeks to persuade me that there is land with the benefit of the covenant, notwithstanding what he concedes to be unfortunate and defective wording therein.
19. The original vendor of the land was "The Land Mortgage Bank of Victoria Limited" (the bank). The transfer recites that it was the proprietor of an estate in fee simple of the land, subject to the encumbrances notified in the transfer. The transfer was to be in consideration of the payment of the purchase price and the purchaser was Nicholas John Jenkin. The land thereby transferred is the review site. After the land is identified in copperplate handwriting on the transfer it goes on, in another hand, to say.

Subject to a provision that no building other than a dwelling house shall be erected upon the said land, and the plans and specifications of any such dwelling house shall be first submitted to and approved by The Land Mortgage Bank of Victoria Limited its successors and assigns, and that the said Nicholas John Jenkin his transferees and assigns shall not remove or allow to be removed or cause to be removed except for the purpose of erecting a building on the said land any of the sand on the said property nor make or cause or allow to be made any excavation on the said property for the purpose of removing sand therefrom except for the purpose aforesaid.

1. I am called upon to interpret this covenant. I have been referred to some authorities in relation to the interpretation of such covenants and I have, for convenience, looked up some passages in Planning and Environment Victoria, a loose-leaf work on planning law and practice published by the law publishers LexisNexis Butterworths and which I am a co-author. I have looked at [2.50.50], [9560.80] and [9565.25] therein.
2. I note that a careful view is normally taken in relation to the interpretation of covenants. Ordinary language is to be preferred to legal technicalities and the warning is given that slight changes in wording or the order in which words or phrases appear can significantly effect the meaning of a covenant. Interpretation is to be in terms of the intention of the parties at the time of entering the contract as revealed by the language used in the contract and thus the language used in the covenant see, for example, Tonks v Tonks[2].
3. I note the warning of Gibbs, J (as he then was) in the High Court decision of Australian Broadcasting Commission v Australasian Performing Rights Association Ltd[3]. In that case His Honour was a dissenter but his discussion in interpreting contracts at page 109 is useful. He said:

It is trite law but the primary duty of the court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render all of them harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust.

1. Where there is ambiguity there might be some scope for avoiding such a result although there are certainly cases that indicate that an ambiguous provision should be construed against the party that imposed it.
2. In Murray v Kingston CC[4] at [24] - [25] the Tribunal, citing several authorities, including Tonks case, drew several conclusions including:

. the meaning of the covenant is determined by its language and context of the actual document;

. it must be interpreted strictly and literally because it now affects parties who were not contracting parties to the original document;

. extrinsic evidence is not relevant to the interpretation of the document;

1. I understand that Mr Costa recognises that most of the authorities are to this effect although he wishes me to use extrinsic documents and to draw inferences to make up what he recognises as the defects in the wording of the covenant. Authority for such an approach is not strong and, in so far as extrinsic materials are concerned, I understand it to be limited to extrinsic materials that might be referred to in the contract or the covenant. I note that in relation to inferences, he cites comments by a member of this Tribunal in the case of Arifoglou v Stonnington CC[5]. I note that what he relies on what is no more than a comment by the way that was not a proposition relied upon by the Tribunal in that case. Even if it had been a decision of the Supreme Court this notion would have been a non-binding obiter dictum[6] and not ratio decidendi, that is to say, a proposition that was essential to the decision made by the court and which creates an authoritative precedent binding on inferior courts and Tribunals.
2. In any event I am not clear on there being any extrinsic documents that would aid Mr Costa. I would not infer that there was intention in the covenant to benefit other lots in the subdivision or which were successively transferred out of the parent title. Neither of those documents say that. Some lots were transferred out with different covenants and some were so transferred with no covenant of this sort at all. An administrative notation of the Titles Office on the front or back of the Transfer document is neither here nor there. They are endorsed there but, it must be presumed, not by the parties to the contract and after the contract was entered. These endorsements cannot relate to the covenant or its interpretation and they cannot be relied upon as indicative of the intention of the parties to the contract when they entered it.
3. I am not ready to draw the doubtful inferences and make the doubtful guesses that Mr Costa invites me to make.
4. In my interpretation this covenant contains several separate and distinct covenants which should not be confused with one another.
5. The first one is simply that no building other than a dwelling house is to be erected on the land. This, in the first place, is a promise made by the purchaser to the vendor. It obviously relates to the land being sold but makes no mention of any other land or the owners of any other land. I think the representatives of the responsible authority and the permit applicant are correct in saying that this is merely a personal covenant.
6. In any event this is a covenant about what can be built on the land, not the use to which the land can be put. A building constructed as a dwelling house might be used for some other purpose unless the covenant specifically says otherwise. A well drawn covenant, intending such a restriction, should restrain both building and use, and not only initial building and use but continuing, if that is what is intended.
7. The second constraint relates to the style of a building that can be constructed. Even if it be a dwelling house there is no unlimited right to build just any dwelling house. The second promise is that the plans and specifications of any dwelling house must first be submitted to the bank for approval. This approval can be given by the bank itself or its successors or assigns.
8. It is common ground that the bank has long since ceased to exist and that no successors or assigns of the bank are able to be identified. That would appear to mean that it is impossible to now submit plans and specifications or to obtain approval. I doubt that this means that no new dwelling house can be constructed. The provision in relation to successors and assigns applies to the bank, and not the purchaser or the land. It does not appear to bind successors of the initial purchaser.
9. The third covenant does purport to bind not only Mr Jenkin, the first purchaser, but also his transferees and assigns. However, the third promise only relates to the removal of sand and the making of excavations. It is not a complete prohibition on the removal of sand or making of excavations. Such things can be done for the purpose of erecting a building, but not for the purpose of winning sand or for other purposes.
10. Nowhere do any of the covenants specify land to have the benefit of the covenant.
11. It is common ground between the parties in this case that there is no so-called "building scheme" imposing a covenant on every lot in the subdivision for the benefit of every other lot. The concession that there is no such scheme is clearly correct.
12. Mr Costa would have me infer that the burden of each of the covenants attaches to the land and runs with the land and that the benefit attaches to all the other lots in the subdivision or the parent title, or at least all of them that had not been transferred out at the time the subject lot was transferred. He is really submitting the second of those propositions.
13. The covenant or covenants (regarding the promises as being plural) do not say this. They do not identify land to have the benefit, either individually by specific naming or by the application of such a formula.
14. I do not think that the existence of the parent title with some lots remaining in it at the time this one was transferred out is sufficient to found such an inference. The case for such an inference is greatly weakened by the circumstance that some transfers of some of those lots have no covenant at all whilst others have covenants that identify land to have the benefit of it and a third category, including the one relevant here, does not identify land with the benefit of the covenant.
15. It is really the first covenant that is relevant in this case. It is that one which, if anything does, that would obstruct the use of the land as a place of worship. My conclusion is that there is no identified or identifiable land having the benefit of that covenant.

[2] (2003) 11 VR 124; [2003] VSC 195

[3] [1973] HCA 36; [1973] 129 CLR 99

[4] [2007] VCAT 195

[5] [2003] VCAT 1461

[6] A saying by the way is not binding authority