It is considered the issues raised in this declaration application are focussed on legal interpretation of covenant wording and transfer of land history, rather than land use planning issues.

Council does not have the resources to explore the legal issues raised in this application.

If the Tribunal considers the declaration should proceed to a hearing, it is requested that the Responsible Authority not be a party.

7 I have considered the applications for declarations and the supporting material provided by Mr Hill, together with the previous decisions of the Tribunal and the submission by the responsible authority, and have concluded that the Tribunal has no jurisdiction to make the declarations sought either under section 149A or section 149B of the Planning and Environment Act and that these applications should be struck out as misconceived for the following reasons.

8 The matters about which Mr Hill seeks a declaration do not relate to any matter which may be the subject of an application to the Tribunal under the Planning and Environment Act or to anything done by a responsible authority under the Act, which are the mattes about which a declaration may be sought under section 149B. The Tribunal does not have jurisdiction to review its own decisions or the correctness of facts or propositions relied upon by the Tribunal in previous decisions. The Tribunal's decision in P1821/2002 was not appealed by the applicant to the Supreme Court, nor was the decision in P1024/2004. There have been no other planning permit applications concerning the subject land or for removal of variation of the covenant.

9 Section 149A provides as follows:

149A. Application by specified person for declaration

(1) A specified person may apply to the Tribunal for the determination of a matter if -

(a) the matter relates to the interpretation of the planning scheme or a permit in relation to land or a particular use or development of land;

(b) the matter relates to whether section 6(3) applies to a particular use or development of land; or

(c) the matter relates to a provision of a planning scheme or amendment permitting the continuation of a use lawfully existing before the coming into operation of the planning scheme or amendment, or permitting the use of buildings or works for a purpose for which they were lawfully erected or carried out before the coming into operation of the planning scheme or amendment.

10 The declarations sought by Mr Hill do not fall within any of the categories of matters set out in section 149A. The declarations seek the Tribunal to concur with a finding made by the Tribunal in another case relating to whether a certain person has the benefit of a covenant. This is not a matter that relates to the interpretation of the planning scheme or a permit or a particular use or development of land. Section 6(3) of the Act relates to existing use rights and the declaration does not relate to existing use rights so subsections (b) and (c) of section 149A(1) are not relevant either. There is therefore no jurisdiction to make a declaration under section 149A.

11 A declaration is an order that declares the nature of the rights and obligations of the parties in respect of the dispute in question. The basic requirements for the exercise of the power to make a declaration include:[2]

•

There must be a dispute in existence.

•

The jurisdiction is not available if the issue is purely theoretical.

•

The issue must not only be in existence but must be attached to facts. The dispute must be real, not hypothetical. The dispute must be of practical importance.

•

The making of a declaration must be of practical use.

12 From the information provided to me no real dispute has been disclosed. It appears the issue is purely theoretical. Even if there is some (undisclosed) dispute between Mr Hill and Mr Murphy, it is not attached to any facts within the jurisdiction of the Tribunal. It does not appear that the making of a declaration would be of any practical use as no rationale behind such a declaration has been stated. The Council does not wish to be a party to the proceedings and there has been no statement of grounds lodged by Mr Murphy or any other person. Therefore the basic requirements for the exercise of the power to make a declaration, even if the Tribunal had jurisdiction to do so, are not present and the Tribunal would decline to make a declaration in such circumstances.

13 As Mr Hill was advised by Deputy President Horsfall in P1821/2002, the concerns that he has about the validity of the covenant affecting his land and whether it has been extinguished are not matters within the jurisdiction of the Tribunal but can be dealt with only in proceedings before the Supreme Court.

14 Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may make an order summarily dismissing or striking out a proceeding that in its opinion is frivolous, vexatious, misconceived or lacking in substance. Such an order may be made on the application of a party or on the Tribunal's own initiative.

15 In my opinion these applications for declarations are misconceived and lacking in substance. I propose to list them for a directions hearing to give Mr Hill an opportunity to show cause why they should not be struck out for the reasons outlined above.

[1] See Hill v Campaspe SC [2002] VCAT 1541 para 14.

[2] See Re Moira SC and Demaio 1998/79921