a) The basis upon which costs are sought.

b) The amount and details of the costs claimed, including any itemised bills with invoices where relevant.

c) The basis on which the costs are calculated (for example, whether on a standard or indemnity basis and whether on the County Court or Supreme Court scale. Note that under Rule 1.07 of the Victorian Civil and Administrative Rules 2018 (Vic), the default scale of costs is now a standard basis on the County Court Scale).

d) The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Act 1998 (Vic).

e) A copy of any document relied upon in the costs application or supporting submissions.

If you make an application for costs in this proceeding, you will be required to pay an application fee. For more information, see the VCAT website.

Response from other parties to application for costs

1. By 4:00pm on 25 September 2024, any party who wishes to oppose or otherwise respond to an application for costs made under this order must give to the Tribunal and the parties:

(a) A submission which explain the party's position in respect of the application for costs, including any basis on the application for costs is opposed; and

(b) A copy of any documents relied on in the submission.

1. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' on 24 October 2024. No attendance is required.

Peter O'Farrell and Tom Ellicott of Counsel instructed by Frenkel Partners.

The applicant called evidence from the following persons:

• Greg Du Chateau, building surveyor.
• Damien Scott King, King Independent Property Advisors Pty Ltd.

Barnaby Chessell and Jane Sharp of Counsel instructed by Norton Rose Fulbright.

Application under section 114(1) of the Planning and Environment Act 1987 (Vic) seeking an enforcement order for contravention of an agreement under section 173.

Between Foxhina Pty Ltd and the Minister for Planning dated 22 August 1989 and registered on CT Volume 9525 Folio 363 on 26 September 1989.

10 October 2023 accompanied by representatives of the parties.

1. The applicant is the registered owner of land situated at 7-19 Alfred Place, Melbourne, Victoria ('Alfred Place Land').
2. The first respondent and second respondents are the registered owners of land situation at 120 Collins Street, 112 Russell Street, and 129-161 Little Collins Street, Melbourne, Victoria ('120 Collins Street Land').
3. The 120 Collins Street Land is improved by a 50 level office tower building ('120 Collins Street Tower').
4. Registered on the certificate of title of the 120 Collins Street Land is an agreement made under s.173 of the Planning and Environment Act 1987 (Vic) ('P&E Act') between Foxhina Pty Ltd (the then owner of the 120 Collins Street Land) and the Minister for Planning (the 'Agreement').
5. The third respondent is the asset manager of the 120 Collins Street Tower.
6. The Alfred Street Land and the 120 Collins Street Land share a common boundary.
7. The applicant has commenced this proceeding under s.114(1) of the P&E Act seeking enforcement orders against the respondent parties for failure to comply with certain requirements of the 'Agreement'.
8. The applicant also seeks a declaration under s.124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') that certain steps referred to in the Agreement have been enlivened.[2]
9. The Tribunal joined the responsible authority as a party to this proceeding on 3 March 2023.

1. In 1984, a planning permit was issued by the Minister of Planning for the development of the 120 Collins Street Land for an office and retail tower.
2. The 120 Collins Street Tower was identified as an exempt proposal under Amendment 34 to the City of Melbourne (Central City) Interim Development Order 1982 (20 May 1986). [3]
3. On 22 August 1989, the Agreement was registered on the certificate of title of the 120 Collins Street Land. The relevant parts of the Agreement are considered below.
4. The 120 Collins Street Tower was completed sometime in the early 1990s.
5. The 120 Collins Street Tower has been constructed with windows facing the common boundary with the Alfred Place Land.

1. The Alfred Place Land is improved by an existing low rise building and is affected by heritage controls imposed under the Melbourne Planning Scheme (HO574 Professional Chambers, 110-118 Collins Street, Melbourne (partial) and HO504 Collins East Precinct (partial)).
2. Relevantly, on 27 December 2019 Town Planning Permit No. TP-2017-798 (the '2019 Planning Permit') was issued which allows for the partial demolition of the existing building and the construction of a multi-storey building above, with a waiver of the bicycle parking requirements associated with an office in accordance with the endorsed plans.[4]
3. Condition 23 of the 2019 Planning Permit imposes time limits as follows:

This permit will expire if one of the following circumstances applies:

(a) The development is not stated within three years of the date of this permit.

(b) The development is not completed within five years of the date of this permit.

The Responsible Authority may extend the permit if a request is made in writing before the permit expires, or within six months afterwards.

The Responsible Authority may extend the time for completion of the development if a request is made in writing within 12 months after the permit expires and the development started lawfully before the permit expired.

1. No party in the proceeding contended that the planning permit had expired. I therefore proceeded on the basis that the planning permit has not expired.
2. The following building permits have been issued for the Alfred Place Land:
   1. Building Permit No. 837847494940 - Stage 1: Internal Investigative demolition works only issued on 6 July 2021 ('Stage 1 Building Permit');[5]
   2. Building Permit No. 1118388074818 - Stage 2: Demolition works (non-structural roof only) issued on 27 October 2021 ('Stage 2 Building Permit');[6]
   3. Building Permit No.1931481538907 - Stage 3: Tower Foundation Construction only issued on 10 November 2022 ('Stage 3 Building Permit').[7] The Stage 3 Building Permit was extended on 10 October 2023.[8] The building work approved under the Stage 3 Building Permit must commence by 10 November 2024.
   4. Building Permit No.3789534463119 - Stage 4: Demolition works (non-structural roof only) issued on 10 October 2023.[9] The building work approved under the Stage 4 Building Permit must commence by 11 October 2024.
3. There is no evidence before the Tribunal as to the location of the investigative demolition works approved under the Stage 1 Building Permit. There is also no evidence as to the extent of the investigative demolition works undertaken pursuant to the Stage 1 Building Permit.[10]
4. The applicant conceded that the Stage 2 Building Permit has lapsed.[11]

1. The Agreement is a short one containing only five recitals and five operative provisions. There is no separate definition clause within the Agreement.
2. The five recitals are as follows:

1. The Owner is the registered proprietor or is entitled to be the registered proprietor of land known as 108-120 Collins Street, 112 Russell Street and 129-161 Little Collins Street, Melbourne being that piece of land as described in Certificate of Title Volume 9525 Folio 363 ("the Subject Land").
2. The Subject Land is within the area of the Melbourne Planning Scheme Central City Development Area and formerly in the area of the City of Melbourne (Central City) Interim Development Order 1982 for which the Minister for Planning and Environment is the Responsible Authority.

1. The Responsible Authority included Proposal 24 in Division 6 of the Ordinance on 21 May 1986 to construct a multistorey office development on the Subject Land subject to certain conditions and endorsed plans.

1. The endorsed plans show windows to the adjoining property boundaries ("the works").
2. It is considered by the Responsible Authority that for the better protection of the adjoining land to the east and any building now or hereafter erected thereon that further conditions be imposed upon the development which shall be embodied as convenants (sic) by the Owner, its successors and assigns, in an agreement between the Responsible Authority and the Owner.

1. There are two operative provisions of the Agreement that are relevant to the issues in this proceeding: clause 4 and clause 5. These clauses are as follows:

4. The Owner hereby COVENANTS that it shall:

(a) As part of the works install appropriate fire protection of any windows on the eastern external walls which are located within three metres of a fire source feature on the adjoining property, such protection shall if so required include drench sprinklers.

(b) Maintain such fire protection of windows at its own expense unless or until the windows are removed in accordance with Clause 5.

5. In the event that:-

(a) As part of the works the Owner installs or constructs windows to the eastern adjoining property boundary; and

(b) At some future date an application for the demolition or part demolition of the existing building on the eastern adjoining property is granted and building approval is given for the construction of a new building or extensions to the existing building on the adjoining eastern property

• - the Owner undertakes to the Responsible Authority and HEREBY FURTHER COVENANTS that it shall take the following steps as soon as it is reasonably practicable with respect to any windows which will be within three metres of a fire source on the adjoining property namely -
  1. remove all existing glass panes and aluminium frames;
  2. install block work to openings left by removal of panes and frames as above;
  3. reinstate internal finishes affected by the removal of the panes and frames;
  4. finish exposed external installed block work to blend with the external finishes; and
  5. or such other steps as may be agreed with the Responsible Authority prior to the removal of the windows.

1. The applicant alleges that the respondent parties have, by their conduct, breached clause 5 of the Agreement.
2. The applicant submitted that there is very little in dispute between the parties in terms of relevant facts. Of major dispute is the meaning of the Agreement, particularly clause 5.
3. The applicant submitted that -
   1. there is agreement between the parties that the purpose of the Agreement is to provide fire protection to the existing building on the Alfred Place land;
   2. as between Council and the applicant, there is agreement that another purpose of the Agreement is to provide equitable development rights to the Alfred Place Land because without the Agreement the planning aspirations for the Alfred Place Land would be stultified.
4. As to the interpretation of clause 4 of the Agreement, the applicant submitted that:
   1. clause 4(a) creates an interim obligation on the owner of the 120 Collins Street Land to install appropriate fire protection to any windows within three metres of the common boundary with the Alfred Place Land (the 'common boundary'). This is because the common boundary is a 'fire source feature';
   2. clause 4(b) then creates an obligation to maintain the fire protection (described in clause 4(a)) to the windows described in clause 4(a) until those same windows (being the windows identified in clause 4(a)) are removed in accordance with the requirements of clause 5.
5. As to the interpretation of clause 5, the applicant submitted that -
   1. the 120 Collins Street Tower has been constructed with windows facing the common boundary;
   2. upon the construction of windows in the 120 Collins Tower along the common boundary, the precondition described in clause 5(a) was satisfied;
   3. the issue of the 2019 Planning Permit in respect to the Alfred Place Land satisfies the event described in clause 5(b) as 'an application for the demolition or part demolition of the existing building on the eastern adjoining property';
   4. the Stage 1, Stage 2 and Stage 4 Building Permits also satisfies the event described in clause 5(b) as 'an application for the demolition or part demolition of the existing building on the eastern adjoining property';
   5. the Stage 3 Building Permit satisfies the event described in clause 5(b) as a building approval for the construction of a new building or extensions to the existing building on the eastern adjoining land;
   6. as all events described in subclauses 5(a) and 5(b) have been satisfied, the further covenant set out in clause 5(b) is operative and the respondents must now undertake the actions set out in subclause 5(b) (i)-(iii).
   7. subclause 5(b)(iv) provides for additional steps that may be required to be undertaken at the direction of the responsible authority. Subclause 5(b)(iv) does not provide an alternative to the actions set out in subclause 5(b)(i)-(iii).
   8. the windows the subject of the further covenant contained in clause 5(b) are all windows within three metres of the common boundary.
6. Relying on the principles of interpretation of s.173 agreements set out in TPSC Pty Ltd v Kingston City Council [2018] VSC 313[12] ('TPSC'), the applicant submitted that the reference to 'fire source feature' is a 'term of art' and has the same meaning given to that phrase in Regulation 16.6(1) of the Victorian Building Regulation 1983 (Vic) ('VBR 1989') as at 22 August 1989 and set out below:[13]

1. Acknowledging that the VBR 1989 does not define the phrase 'fire source', the applicant submitted that the phrase 'fire source' as it appears in the further covenant found in clause 5(b) should be interpreted to have the same meaning as 'fire source feature' in the VBR 1989.
2. The applicant submitted that -
   1. the phrase 'building approval' as it appears in clause 5(b) should be interpreted as interchangeable with 'building permit' and its meaning contained in s.20 of the Building Act 1993 (Vic). I note that all parties agree on this approach to the interpretation of 'building approval in clause 5(b) of the Agreement;
   2. the reference to 'for the construction of a new building' in clause 5(b) should be interpreted to read 'for the construction of a new building or part of a new building' because as of 22 August 1989 s.5 of the _Building Contro_l Act 1981 (Vic) and s.3 of the P&E Act defined 'building' to include a part of a building.[14]
3. The applicant relied on the evidence of Mr Du Chateau, Building Surveyor, to assist in identifying the location of the 'fire source feature' and 'fire source' relative to the 120 Collins Street Land and the Alfred Place Land.
4. The evidence of Mr Scott-King, Director of King Independent Property Advisers (who advised the applicant in relation to the acquisition of the Alfred Place Land), was relied upon by the applicant regarding, amongst other things, the concerns held by the applicant arising from the alleged failure of the respondents to comply with the requirements of clause 5 of the Agreement.
5. For reasons that will become apparent later, it is not necessary for me to set out in detail the evidence of either Mr Du Chateau or Mr Scott-King.

1. Council submitted that the Stage 3 Building Permit required the respondents to comply with the further covenant contained in clause 5(b) of the Agreement.
2. Council submitted that clause 5 contained the following elements and all these elements had in fact been satisfied -
   1. at some future date;
   2. an application for the demolition or part demolition of the existing building;
   3. on the eastern adjoining land;
   4. is granted (being the Planning Permit); and
   5. building approval is given for the construction of a new building (being the Stage 3 Building Permit) or extensions to the existing building on the adjoining property.
3. Because the Stage 3 Building Permit authorises the construction of part of a new building on the Alfred Place Land, this authorised building work must be seen as work that relates to the 'build' of the new building. Council submitted that to conclude otherwise would be at odds with the objectives of the Building Act 1993 (Vic) and the principles set out in TPSC.
4. As to how the further covenant should be complied with, Council submitted that was a matter to be resolved as between the parties because clause 5(b)(v) provided the parties with an opportunity to adopt requirements different to those set out in subclauses 5(b)(i)-(v). Council submitted that whatever works are undertaken to comply with the further covenant must comply with the requirements of the Building Act 1993 (Vic).

1. The respondents rejected the approach of both the applicant and Council to the construction of clause 4 and 5 of the Agreement.
2. The respondents submitted that while the terms and phrases 'building approval' and 'fire source feature' may be defined in previous or current iterations of the Building Act or the P&E Act, the overarching task of the Tribunal is to determine the meaning of clauses 4 and 5 having regard to the purpose, context and text of the Agreement.
3. The respondents submitted that the purpose of -
   1. clause 4 of the Agreement was to contain measures to address the condition of the Alfred Place Land that existed at the time that the Agreement was executed; and
   2. clause 5 of the Agreement was to provide for measures that to be implemented upon the redevelopment of the Alfred Place Land.
4. In this context, the respondents submitted that -
   1. The operation clause 5 requires three matters to be satisfied -
      1. Windows must have been constructed on the 120 Collins Street Land along its common boundary with the Alfred Place Land;
      2. An application must have been made for the demolition of the existing building on the Alfred Place Land;
      3. 'building approval' must have been given for the construction of a new building or extensions to the existing building on the Alfred Place Land;
   2. Windows have been constructed on the eastern external wall of the 120 Collins Street Tower and the requirements of clause 4 have been complied with;
   3. The Planning Permit does satisfy the requirement in clause 5(b) for an application for the partial demolition of the existing building on the Alfred Place Land having been granted some time after the execution of the Agreement;
   4. None of the building permits obtained by the applicant (including the Stage 4 Building Permit) amount to a 'building approval' 'given for the construction of a new building or extensions to the existing building' on the Alfred Place Land;
   5. The work authorised under the Stage 3 Building Permit does not introduce a fire source within 3 metres of an existing window on the 120 Collins Street Land.
   6. All the matters required to be satisfied to enliven the obligation to comply with the further covenant contained in clause 5(b) have not been satisfied because a building approval has not been given for the construction of a new building or extensions to the existing building on the Alfred Place Land;
   7. Even if the obligations in the further covenant in clause 5(b) were enlivened by one or more of the building permits obtained by the applicant to date, the Tribunal should not grant the relief sought because the building works approved under those permits represent a relatively minor component of the overall building work required to construct a new building (as approved under the 2019 Planning Permit) on the Alfred Place Land.
5. As to the language of the Agreement, the respondents submitted that -
   1. The windows the subject of the protection measures in clause 4 are not the same windows that are the subject of the requirements of the further covenant set out in clause 5(b)(i)-(v);
   2. Accepting that the reference to 'fire source feature' in clause 4(a) includes the common boundary, the reference to 'fire source' in the chapeau to the further covenant should not be read to have the same meaning as 'fire source feature';
   3. In context, the reference to the 'construction of a new building' in clause 5(b) should not be read to include construction of part of a new building.
6. The respondents submitted that the construction of the Agreement as contended by them does not offend the principles of construction set out in TPSC.

1. I am satisfied that the Agreement was made under s.173 of the P&E Act because instrument P446749D evidences this fact.
2. In short, I do not accept the applicant's or Council's approach to the interpretation of clause 4 and that part of clause 5 that sets out the preconditions to the enlivenment of the further covenant contained in clause 5.
3. All parties agree that TPSC sets out the principles of interpretation applicable to agreements made under s.173 of the P&E Act. As is often the way, it is how the parties apply those principles to the facts of this matter that produces the divergence in outcome.
4. The respondents' written submissions succinctly describe the exercise undertaken by Quigley J in TPSC as identifying 'both the legal principles of construction application to private contracts (as set out in Mount Bruce Mining Pty Ltd v Wright (2015) 256 CLR 104 ('Mount Bruce Mining') and the statutory framework for s.173 agreements, as being relevant to the task.[15]
5. The applicant helpfully reproduced paragraphs [51]-[55] of the reasons in TPSC as an annexure to its written submission. It is worthwhile to reproduce those paragraphs here.
   1. The principles of construction of a contract according to legal principles are conveniently set out in the High Court decision of Mount Bruce Mining Pty Ltd v Wright:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

Each of these events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties are operating, what is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties...intended to produce a commercial result". Put another way, a commercial contact should be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience".

These observations are not intended to state any departure for the law as set out in Codelfa Construction Pty Ltd v State Rail Authority (NSW) and Electricity Generation Corporation v Woodside Energy Ltd. We agree with the observations of Kiefel ad Keane JJ with respect to Western Export Services Inc v Jireh International Pty Ltd.

1. The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context including the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract, and purpose.
2. In construing the s 173 Agreement, the fact that the agreement was based in, and arose from, the power to enter into such agreements pursuant to ss 173 and 174 of the PE Act is an important consideration. The statutory framework for s 173 agreements forms part of the context in which the agreements are made and informs its construction as well as potentially dictating its operation. A s 173 agreement plays an important role as one of a number of instruments available for achieving the objectives of planning in Victoria. The planning objectives of the PE Act are sought to be achieved by a s 173 agreement, like planning permits under a scheme and the scheme itself.
3. The s 173 Agreement is not one which can be properly said to be one which is entirely of a private commercial intent and benefit. The s 173 Agreement is an agreement which arose from the provisions of the PE Act, within the framework of an amendment to the Kingston Planning Scheme, and the expectations of the Council that certain planning outcomes would be achieved. The s 173 Agreement was for the mutual benefit of the parties.
4. Consequently, an interpretation which does not bear in mind the enduring planning considerations embedded in the s 173 Agreement for the provision of traffic infrastructure, shared access arrangements and shared car parking considerations would not be consistent with the construction principles.
5. As observed by the Court in TPSC, the power to enter into agreements under s.173 and s.174 of the P&E Act is an important consideration and the statutory framework for s.173 agreements forms part of the context in which such agreements are made and inform construction of its contents and potentially dictates its operation. The relevant statutory framework is set out below.

1. Division 2 of Part 9 of the P&E Act comprehensively sets out the statutory framework for the making, amending and ending agreements made under s.173 of the P&E Act. On the facts of this matter, ss.173 and 174 are most relevant.
2. As of the date of the Agreement, s.173 provided:

Responsible authority may enter into agreements

(1) A responsible authority may enter into an agreement with an owner of land in the area covered by a planning scheme for which it is a responsible authority.

(2) A responsible authority may enter into an agreement on its own behalf or jointly with any other person or body.

(3) A responsible authority may enter into an agreement under subsection (1) with a person in anticipation of that person becoming the owner of the land.

(4) The responsible authority cannot apply to have the agreement referred to in sub-section (3) registered under section 181 until the person becomes the owner of the land but the agreement is binding on the parties.

(5) In this Division a reference to an owner in relation to Crown land includes an occupier of that land.

Form and contents of agreement

(1) An agreement must be under seal and must bind the owner to the covenants specified in the agreement.

(2) An agreement may provide for any one or more of the following matters -

(a) the prohibition, restriction or regulation of the use or development of the land;

(b) the conditions subject to which the land may be used or developed for specified purposes;

(c) any matter intended to achieve or advance -

(i) the objectives of planning in Victoria; or

(ii) the objectives of the planning scheme or any amendment to the planning scheme of which notice has been given under section 19;

(d) any matter incidental to any one or more of the objectives.

1. The public purpose of a s.173 agreement is evident from the text of both s.173 and s.174. This is why the Court in TPSC observed that a s.173 agreement is 'not one which can be properly said to be one which is entirely of a private commercial intent and benefit.'

1. On the facts of this matter, the applicant is not a party to the Agreement. Therefore, the 'rights and liabilities of parties under a contract' spoken of by the High Court in Wright do not extend to the applicant. That being said, I accept that the applicant has standing under s.114 of the P&E Act to bring this application.
2. Further, the third respondent is not a party to the Agreement or a successor in title of the 120 Collins Street Land.

1. Given that s.173(2) provided that a responsible authority may enter into an agreement jointly with another person, it is reasonable to conclude that the decision not to include the then owner of the Alfred Place Land (and its successors and assigns) as a party to the Agreement at the time of its execution was a deliberate one on the part of the Minister. This is relevant to identification of the purpose of the Agreement.
2. I do not accept the applicant's submission that the purpose of the Agreement was 'to enable the interim development of 120 Collins Street land, with the benefit of constructing windows along its boundary to the Alfred Place land, but acknowledging the legitimate planning aspirations for the then and any subsequent owners of the Alfred Place Land.'[16]
3. The purpose of the Agreement is unambiguously set out in recital E of the Agreement as follows -

It is considered by the Responsible Authority that for the better protection of the adjoining land to the east and any building now or hereafter erected thereon that further conditions be imposed upon the development which shall be embodied as covenants by the Owner, its successors and assigns, in an agreement between the Responsible Authority and the Owner.

1. Nothing in recital E speaks of or acknowledges, either directly or indirectly, the 'legitimate planning aspirations' of the then or future owners of the Alfred Place Land. The purpose of the Agreement was unambiguously to ensure the better protection of the adjoining land to the east, being the Alfred Place Land, any building on that land at the time of the execution of the Agreement, and any building erected on the Alfred Place Land after the execution of the Agreement.
2. This expression of the purpose of the Agreement reflects the public nature of the matters that a s.173 agreement may provide for under s.174 of the P&E Act.

Interpretation of the operative clauses of the Agreement

1. The above stated purpose of the Agreement informs the content of the operative clauses and their interpretation.
2. The better protection of the adjoining land to the east and the building on that land at the time Agreement was entered into is achieved through the operation of clause 4.
3. Clause 4 has two parts. The applicant does not allege any contravention by the respondents of any part of clause 4, however because the applicant submitted that clause 5 is to be interpreted by reference to the requirements of and words used in clause 4, I will now interpret the meaning of clause 4.
4. Clause 4(a) requires that as part of the 'works', the owner covenants to install appropriate fire protection of any windows on the eastern external walls which are located within three metres of a fire source feature on the adjoining property. This covenant has effect upon the installation of the windows shown on the endorsed plan for the 120 Collins Street Tower referred to at recital C.
5. The term 'works' used in clause 4(a) should sensibly be interpreted as the windows to the adjoining property boundaries as provided for in recital D. Therefore the 'works' referred to in clause 4(a) are all windows shown on the endorsed plans that have an interface to an adjoining property boundary but the requirement to install appropriate fire protection (including where required drench sprinklers) only arises for those windows shown on the endorsed plans that are shown on the eastern external walls and which are located within three metres of a 'fire source feature' on the Alfred Place Land.
6. I accept the submissions of all parties that what is meant by 'fire source feature' is a technical term or a 'term of art' because it is a phrase that does not have an ordinary or common meaning. In the context of providing for better fire protection for the Alfred Place Land and the existing building on that land, I am satisfied that it is appropriate to have regard to the technical meaning of the phrase 'fire source feature' and for this purpose regard should be given to the meaning of 'fire source feature' as it appeared in Regulation 16.6(1) of the VBR 1989 as of 22 August 1989.
7. Applying the meaning of 'fire source feature' as contained in Regulation 16.6 of the VBR 1989 at the relevant time leads to the construction that what clause 4(a) required is that when constructing the 120 Collins Tower, the owner of the 120 Collins Land when installing the windows shown on the endorsed plans was required to install appropriate fire protection (which may have included drenched sprinklers if required) to any of the windows on the eastern external walls located within three metres of the rear boundary of the Alfred Place Land.
8. As I have noted there is no allegation made by the applicant that the requirement contained in clause 4(a) has not been complied with by the owner of the 120 Collins Street Land at the time of construction of the 120 Collins Street Tower.
9. Clause 4(b) requires maintenance of the fire protection required to be installed to the windows on the eastern external walls located within three metres of the rear boundary of the Alfred Place Land 'unless or until the windows are removed in accordance with Clause 5'.
10. The applicant submitted that the Clause 4(b) defines the windows to which clause 5 applies. I do not agree. As stated above, the purpose of clause 4 overall is to further the purpose of the Agreement to provide better fire protection for the existing building on the Alfred Place Land at the time of the Agreement. In that context, clause 4(b) requires maintenance of the better fire protection required to be installed under clause 4(a) until such time any of the windows the subject of clause 4(a) are removed as a result of the operation of clause 5.
11. The specific purpose of clause 5 is to impose a further covenant on the owner of the 120 Collins Street Land should certain future events occur. These events are described in clauses 5(a) and (b).
12. The first event is that as part of the installation of windows shown on the endorsed plans to adjoining property boundaries, windows to the adjoining property boundary with the Alfred Place Land have been installed in the 120 Collins Tower. There is no disagreement between the parties that windows have been installed in the 120 Collins Street Tower that face the adjoining property boundary with the Alfred Place Land. The event described in clause 5(a) has therefore occurred.
13. It is not enough that the event in clause 5(a) has occurred because the requirements of clauses 5(a) and 5(b) are cumulative because of the use of the word 'and' at the end of clause 5(a).
14. Clause 5(b) in turn requires certain things to occur before the further covenant contained in the later part of clause 5 is triggered. More than one event is required to occur under clause 5(b) before its requirements can be said to be satisfied.
15. The first event is that at some future date an application for demolition or part demolition of the existing building on the eastern adjoining boundary is granted. Sensibly interpreted on the facts of this matter, that event is the grant of a permit or permission that allows the demolition of all or part of the existing building on the Alfred Place Land.
16. On the facts of this matter, the 2019 Planning Permit satisfies this requirement because it is a permit that allows the partial demolition of the existing building as shown on endorsed plans AD100, AD101, AD102, AD103 and AD104.[17]
17. Clause 5(b) requires a second event to occur before all of its requirements can be found to be satisfied and that is the existence of a 'building approval for the construction of a new building or extensions to the existing building' on the Alfred Place Land.
18. There is agreement between the parties that the term 'building approval' should be interpreted to include 'building permit'. I agree. Recourse to technical terminology is not required. The ordinary meaning of 'building approval' extends to include a 'building permit'.
19. The more contentious issue is what is meant by the phrase 'the construction of a new building or extensions to the existing building'. The applicant and Council submitted that I should have recourse to the meaning of 'building' under the Building Act and the P&E Act and that would result in the second requirement of clause 5(b) being satisfied by the issue of a building permit for part of a new building on the Alfred Place Land. Using this approach, the Stage 3 Building Permit would satisfy the second requirement of clause 5(b). I reject this approach.
20. Although the second requirement of clause 5(b) is cumulative to the first requirement of that clause, its meaning should be derived in the context of the whole of that clause. There is a clear distinction in clause 5(b) between the two events that need to occur. First, approval needs to be obtained for the demolition or partial demolition of the existing building on the Alfred Place Land. Next, approval needs to be obtained for the construction of a new building or extensions to the existing building. In the context of the whole of clause 5(b), the second requirement of clause 5(b) requires approval for actual construction either for a new building in replacement of the existing building or for extensions to the existing building.
21. Further, permissions for the demolition of part or all the existing building do not satisfy the requirement for a building approval for the construction of a new building or for extensions to the existing building because such permissions do not approve the construction of any new building or approve any extensions to the existing building. Therefore, the Stage 1, 2 and 4 Building Permits do not approve the construction of a new building or extensions to the existing building and do not satisfy the second requirement of clause 5(b).
22. I find that the Stage 3 Building Permit for the construction of part of the footings required for the development allowed under the 2019 Planning Permit is not a 'building approval for the construction of a new building or extensions to the existing building' on the Alfred Place Land.
23. I do not accept that reading the Agreement as a whole, it is appropriate to interpret 'the construction of a new building' to mean 'the construction of a new building or part of a new building'. First, if that were the intended meaning the additional words 'or part of a new building' could have easily been inserted or alternatively the word 'building' could have been defined accordingly. Second, the entire phrase 'building approval for the construction of a new building or extensions to the existing building' should be read as whole and not deconstructed because it is clear that the reference to 'extensions to the existing building' provides for the situation where a building approval for part of a building is obtained. That is, either a building approval for the construction of an entire new building is obtained where there is there is in existence approval for the demolition of the whole of the existing building or a building approval for part of a building that amounts to an extension or extensions to the existing building is obtained where there is in existence approval for partial demolition of the existing building.
24. As the construction of partial footings required for the extension of the existing building as shown in the 2019 Planning Permit do not of themselves amount to the construction of a new building or extensions to the existing building, the Stage 3 Building Permit does not satisfy the second requirement in clause 5(b).
25. As all of the requirements of clause 5(b) have not been satisfied, all the necessary events for the triggering of the further covenant set out in clause 5 have not yet occurred.
26. As a result, the first and second respondents as the current owners of the 120 Collins Street Land have not contravened the Agreement. Further, because the first and second respondents have not contravened the Agreement there can be no finding that the third respondent acting as agent for the first and second respondents has contravened the Agreement.
27. As I have found that the further covenant in clause 5 has not been triggered, it is not necessary for me to construe the meaning of that further covenant or consider in detail the evidence of Mr Du Chateau and Mr Zita relied upon by the parties for this purpose.
28. Similarly, it is not necessary for me to set out in detail the evidence of Mr Scott-King because his evidence was not relevant to the construction of the Agreement that I was required to undertake.

1. I find that there has been no contravention of the Agreement and dismiss the application for enforcement orders. There is therefore no need to consider any discretionary matters that may be relevant to the grant of the enforcement orders sought or any evidence of the parties relied upon for that purpose. The application for an enforcement order is dismissed.
2. As there is no contravention of the Agreement, there is no basis for the grant of declaratory relief sought by the applicant. The application for a declaration under s.124(1) of the VCAT Act is dismissed.

[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.

[2] See paragraph 89 of the applicant's written submission for the relief sought by the applicant.

[3] See Tribunal Book (TB) at p.164 (Proposal 24).

[4] See TB19-57 for a copy of the planning permit and endorsed plans.

[7] See TB194-204 for Stage 3 Building Permit and endorsed plans.

[8] See email correspondence from applicant to Tribunal of 11 October 2023.

[10] In this regard, I note the concession made by Mr O'Farrell in his closing oral submission on 11 October 2023.

[15] See paragraph 34 of the respondents' written submission.

[16] See paragraph 32 of the applicants' written submissions.

[17] See TB20 for what the 2019 Planning Permit allows and TB26-30 for the relevant plans endorsed on 16 December 2024.