That the use and development of 96 Albert Ruttle Drive, Inverloch for a single dwelling will not contravene the obligations in the Section 173 Agreement dated 11 November 1996, being Instrument No U792700N registered on Certificate of Title Volume 11955 Folio 095.

1. To determine whether it is appropriate to make the declaration, the Tribunal must consider the form and content of the Section 173 Agreement dated 11 November 1996, being Instrument No U792700N registered on Certificate of Title Volume 11955 Folio 095 ('the Agreement').
2. Section 149A(2) of the PE Act provides that:

(2) The Tribunal may determine the matter and may do one or both of the following -

(a) make any declaration that it considers appropriate;

(b) direct a specified body to take, or refrain from taking, action specified by the Tribunal.

1. The applicant invited me to make a declaration other than that sought if I considered that the declaration being sought was too broad. For example, it was suggested that the location of a dwelling could be specified, or the extent of use or development more narrowly defined. The other parties submitted that the Tribunal should refuse the application and decline to make a declaration.

1. Section 149A(4) of the PE Act provides that the Tribunal's power under this section is exercisable only by a presidential member of the Tribunal or a member of the Tribunal who is an Australian lawyer. I am an Australian lawyer.
2. Having considered all the submissions of the parties and the form and content of the Agreement, I have determined not to make a declaration with respect to the Agreement. Prior to providing my reasons for this decision, I set out the relevant background information and the principles of interpretation applied. My reasons follow.

The Agreement is registered on the title to the Land. The Land is covered with vegetation and a water body, and devoid of any built form, as seen in the aerial image of the land below.[2]

1. The Land is also known as lot 28 on Plan of Subdivision 344899X ('the plan of subdivision'), the plan having been certified on 24 April 1996 and registered on 22 October 1997. The Agreement was registered on the title to the Land on 27 May 1997. Lot 28 on the plan of subdivision is shown below.[3]

The initial recitals of the Agreement are reproduced below.

The owner of the Land at that time was also the owner of all the land in the proposed 30 lot subdivision. Below is a copy of the overall development plan ('ODP') attached to the agreement as well as an aerial image of the entirety of the land contained in the ODP, as it appears on 8 January 2023.[4]

1. It is clear that the land in the plan of subdivision has not been developed precisely in accordance with the ODP, with notable differences including that no reserve appears to have been constructed at the western end of stage 1, between lot 12 and 13, and that the layout of the lots above the Land differs from the layout shown within stage 2 on the ODP.
2. I also note that, within the ODP there is a lot referred to as lot 28, whereas the location of the Land is marked with the word 'Reserve' and does not include a lot number. Where lot numbers are referred to in this decision, they are the lot numbers within the plan of subdivision.

The council submits that the land shown as 'Reserve' on the eastern side of the subdivision in the ODP encompasses the area above and below the thick black line, as well as to the west of that line, despite that fact that the area to the south of the thick black line is consistent with the shape of the Land and is the only area burdened by the Agreement. It is noticeable, however, that the areas to the north and north-east of the Land have not been developed with any dwellings and appear to include water bodies. That area is now a single odd shaped lot and is known as lot 29 of plan of subdivision 524032 and also 26 John Flagg Rise, as seen in the planning property report mapping, below.

1. The shape of this lot, including the portion to the west of John Flagg Rise, is consistent with the area in the ODP that, according to the council submission, constitutes the remaining area of the Reserve outside of the Land. However, there is no section 173 agreement burdening that lot, and the application before the Tribunal is limited to a consideration of the Agreement, which is registered only on the certificate of title to the Land (lot 28).

1. This recital makes it clear that the Agreement intends to deal with the 'Wetlands' which are part of lot 28 only. The difficulty is that, although within the ODP the word 'Reserve' is shown on the Land, there is no reference in the ODP to 'Wetlands' in connection with the Land or within the ODP at all.
2. The general provisions of the Agreement confirm that it is intended to be an agreement under section 173 of the PE Act. While I was not provided with the wording of the PE Act at the time of the preparation of the Agreement, there was no suggestion that the legislation was significantly different from its current form, which provides that 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. This is an agreement between the owner of the Land and the council.

Section 174 of the Act, in its current form, provides:

1. The 'covenants' to this Agreement are found in clause 4. Clause 4.1 concerns payment of expenses while the remaining clauses deal with the Land itself. They are included below.

1. As previously noted, the ODP and plan of subdivision are both attached to the Agreement.

The Supreme Court decision of Quigley J in TPSC Pty Ltd v Kingston City Council [2018] VSC 313 ('TPSC') sets out the principles of construction of a contract, by reference to the High Court decision of Mount Bruce Mining Pty Ltd v Wright Prospecting (2015) 256 CLR, including the following:

In TPSC, Justice Quigley then set out the additional considerations that apply to the construction of an agreement entered pursuant to section 173 of the PE Act:[5]

1. Relevantly, it is essential to look first at the text of the agreement to ascertain, objectively, the rights and liabilities of a party under that agreement. When considering a contract, the way in which a 'reasonable businessperson' would understand the contract is fundamental, and, as set out above, the way in which this viewpoint is obtained is through consideration of the language used in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured.
2. Where this is applied to a section 173 agreement, the statutory framework forms part of that context and informs the construction of the agreement. Importantly, this is a recognition of the hybrid form of such an agreement, being an agreement that is entered into to achieve both private objectives of one party and public planning outcomes of the other.
3. The parties also referred to the Tribunal decision of Mullum Pty Ltd v Manningham CC [2019] VCAT 1578, where the Tribunal referenced the submissions of the applicants in that case, concerning construction of a section 173 agreement, as follows:

79 In support of its case, the Applicants say that:

1. being an agreement made under section 173 of the Act, following the approach of the Supreme Court of Victoria in _TPSC Pty Ltd v Kingston CC_14, the Agreement is a form of contract;
2. as a contract, it is appropriate to follow the principles of construction of a contract that require, among other things:
   1. objective determination of the rights and liabilities of parties to a contract, by reference to the contract's text, context (the entire text as well as any contract, document or statutory provision referred therein) and purpose;15 and
   2. an interpretation that avoids absurdity or inconsistency, which might mean that words have to be supplied, omitted or corrected in an instrument where it is necessary to do so in order to avoid such absurdity or inconsistency;16

1. being an agreement made under section 173 of the Act, the Agreement can be described as a "hybrid instrument",17 in that it also functions as a planning control and, as such, the principles of statutory interpretation can be called upon. With respect to correcting the drafting of a legislative instrument, the Applicants referred me to instances where a court or the Tribunal has overlooked what it regarded as a drafting error and instead read in place of the erroneous wording what the court or Tribunal regarded to be the correct wording.18

14 [2018] VSC 313.

1. With reference to the principles of construction set out by the High Court of Australia in Mount Bruce Mining Pty Ltd v Wright [2015] HCA 37; (2015) 256 CLR 104, 116-17 [46]-[52].
2. In this regard, the Applicants referred me to the High Court of Australia decision in Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 at 426-7 and then cited several applications of the approach.

17 Per Justice Morris (as he then was) in Solid Investments at [43].

1. 18 See, for instance, Capital Airport Group Pty Ltd v Director-General of the Department of Planning [2010] NSWLEC 5, PBJ Blackburn Road Pty Ltd v Yarra Valley Water [2018] VCAT 1530.15
2. A section 173 agreement is always an agreement between a responsible authority and an owner of land 'in the area covered by a planning scheme for which it is a responsible authority'.[6] Section 174(1) provides that an agreement must be under seal and must bind the owner to the covenants specified in the agreement.

Section 174 of the PE Act describes the matters that may be included in a section 173 agreement, as follows:

1. It is with these considerations in mind that I turn to a review of the wording of the Agreement and whether the use and development of a single dwelling on the Land will contravene the provisions of the Agreement.

Would the use and development of a dwelling on the Land contravene the obligations in the Agreement?

1. The starting point for consideration of the Agreement is Sections A to F ('the Recitals') [7], which provide explanation and context. They explain that the owner at the time of the Agreement was the owner of all of the land in the ODP and the plan of subdivision and had already undertaken stage 1 of the subdivision. The Recitals explain that the land within the subdivision was able to be developed as a result of a planning scheme amendment that rezoned the land in the ODP to rural residential zoning. Finally, the Recitals explain that the council and owner have agreed that the wetlands area shown on the ODP, which are part of lot 28, shall be 'developed, maintained, conserved and protected' by the owner of lot 28, and that the Agreement is made pursuant to section 173 of the PE Act.
2. From this explanation, it may be expected that the operative provisions of the Agreement will concern the development, maintenance, conservation and protection of the wetlands area within lot 28, by the owner of lot 28.
3. Difficulty arises due to the unclear descriptions and definitions of both Wetlands and Reserve, which will be explained further. However, no application has been made to the Tribunal for a declaration that the Agreement is meaningless or that the reserve or wetlands cannot be identified. Nor is this an application to amend or end the Agreement. The parties all proceeded on the basis that the terms in the Agreement do have meaning, that the Agreement is ongoing, and that its requirements can be fulfilled. The Tribunal is being asked to make a declaration about the use and development of a dwelling in the context of an ongoing and meaningful Agreement.
4. Therefore, to determine whether to make the declaration sought, I must ascertain the nature and extent of the covenants to which the owner is bound.

1. The applicant made the following submissions with respect to clause 4.2 of the Agreement:
   1. Clause 4.2 required the development of the Wetlands to occur prior to subdivision in accordance with a plan approved by the Council. There is no dispute that the Wetlands sought by this clause have been constructed and delivered.
   2. Further, given that the Wetlands are substantially contained on what is now Lot 29 on the Plan of Subdivision (which is not burdened by the Agreement and to which the Agreement does not in terms apply), there can be no argument that the use and development of a Dwelling on Lot 28 would be incompatible with the clause 4.2.
2. There was some discussion about this submission, following questions by the Tribunal as to whether or not it was agreed between the parties that the Wetlands are substantially contained on lot 29. Ultimately, the council agreed that the Wetlands referred to in the Agreement are contained within both lot 29 and lot 28. It appears that this position has historically been agreed between the parties (noting that the Agreement does not apply to lot 29 and no section 173 agreement has been registered on the certificate of title to that lot).
3. Setting aside the question of how the Wetlands, as defined, can be identified, clause 4.2 stands alone. It states that, prior to the statement of compliance for the plan of subdivision and the transfer of any lot, the owner shall landscape and develop the Wetlands to the satisfaction of the council and in accordance with a program approved by the council.
4. Given that the subdivision has been carried out and lots transferred, it must be assumed that the Wetlands referred to in the Agreement were landscaped and developed to the satisfaction of the council. Although the extent and definition of the Wetlands remains unclear and there is no evidence of its development in accordance with a program approved by the council, it was a matter for the council to ensure this occurred prior to issuing a statement of compliance for the plan of subdivision and allowing the transfer of the lots within the plan. A statement of compliance for the plan was issued on 20 October 1997.
5. For the purpose of this application, I must accept that the landscaping and development of the Wetlands referred to in the Agreement occurred prior to October 1997.

1. I therefore now turn to the covenants, or obligations, contained in clause 4.3. Clause 4.3 introduces the obligations by stating that 'The Owner for the time being of lot 28 on the Plan of the Subdivision shall'. This clarifies that the owner of the land burdened by the Agreement is responsible for the obligations that follow, whoever that may be at the relevant time. This also makes it clear that the obligations are ongoing as there is no end date provided.
2. Clause 4.3(a) requires the owner to 'allow and enable access to the Reserve surrounding the Wetlands ('the Reserve') between the hours of 9.00am to 8.00pm daily by owners and occupiers of all lots on the ODP'.
3. It is odd that, in contrast to the definition of Wetlands, the Reserve is not defined by its location within the ODP but by its proximity to the Wetlands, despite the location of the 'Reserve' being clearly identified on the ODP.
4. The remaining provisions within clause 4.3 refer to either or both the Reserve and Wetlands.
5. As identified earlier, the Agreement must be construed by reference to its entire context, including the ODP and plan of subdivision which are both attached to the Agreement. An interpretation that avoids absurdity or inconsistency is also appropriate.
6. Therefore, having regard to:
   1. the Wetlands being described as being partly located on lot 28 (Recital E);
   2. the Reserve being described as surrounding the wetlands (clause 4.3(a);
   3. the word 'Reserve' included on the ODP on the Land the subject of the Agreement;
   4. lot 28 on the plan of subdivision being consistent with the area on the ODP shown as Reserve (below the black line);
   5. the operative provisions of the Agreement concerning the maintenance of both the Reserve and the Wetlands;
   6. the obligations within clause 4.3 using either or both of the terms in reference to the general area; and
   7. the application of the Agreement to the Land (lot 28) only;

it follows that the Reserve and the Wetlands, for the purpose of the Agreement, cover the entirety of the Land, even though there is not a clear delineation of where each sits within the Land. However, if one was to review the Agreement and then physically inspect the Land, it would be sensible to infer that the body of water comprises the Wetlands, with the remainder of the Land constituting the Reserve.

1. Having established the Wetlands, as per clause 4.2, the owner of the Land must then maintain the Land as set out in clause 4.3, including to enable access to owners of all the lots in the ODP between 9.00am and 8.00pm daily; maintain the Land to protect and conserve native vegetation, minimise fire risk and keep it clean and tidy and free from litter; keep it free from stock or domestic animals; provide public notice at the access point to the Land setting out certain rules pertaining to use; protect the waters of the Wetlands against pollution; and ensure the Land is covered by a public risk insurance policy.
2. All parties accept that these provisions apply to the Land. The question is then whether use and development of a dwelling would contravene the obligations in the Agreement.

Consideration of the proposed use and development

1. This application for declaration does not relate to use and development that is permitted, or for which a permit is required, under the Bass Coast Planning Scheme ('Scheme'). There is a separate question as to whether, regardless of the terms of the Agreement, a planning permit would be required for use and development of a dwelling under the Scheme, and whether it would be granted. While I understand there to be some disagreement between the parties on this issue, this is not a matter before the Tribunal in this proceeding.
2. In terms of whether the use and development of a dwelling on the Land would contravene the Agreement, the applicant submits, in summary, that:[8]
   1. there is no express prohibition within the Agreement against the use or development of the Land for a dwelling.
   2. the Agreement should not be construed as conferring a right of access to every inch of the Reserve as such an interpretation is inconsistent with the terms of the Agreement construed as a whole and would have absurd consequences.
   3. construing the Agreement as not prohibiting the construction of a dwelling is consistent with planning controls and decisions of the Tribunal dealing with the use of public spaces for private purposes.
   4. to the limited extent extrinsic circumstances can be taken into account in construing the Agreement, those circumstances support this view.
3. It is not disputed that the Agreement does not expressly prohibit the use or development of the Land for a dwelling. It also does not expressly prohibit the use of the Land for a Supermarket, a Hospital or a Store, as those terms are defined in the Scheme.
4. It would be rare, if not impossible, for a document such as this to expressly consider and to expressly prohibit, or permit, a range of uses or development not associated with the purpose and content of the document.
5. It is the terms of the Agreement and the obligations within it that enable those burdened or benefited by it to understand the intent of the Agreement, construed as a whole.
6. I consider the intent of the Agreement to be clear, as explained through the Recitals and the operative provisions, as well as the ODP and plan of subdivision attached, without the need to have regard to extrinsic circumstances. It is clearly explained in the Recitals that the Agreement was prepared within the context of the owner of the entirety of the land in the plan of subdivision being able to subdivide and develop that large parcel of land. In doing so, the owner agreed with the council that it would keep lot 28 as a reserve and wetlands area which it would 'develop, maintain, conserve and protect' in an ongoing capacity.
7. Of course, it is not a reserve in the way in which that term is understood in a planning context, which generally requires it to be set aside on a plan of subdivision and vested in council for the council to manage in perpetuity.
8. The obligations clarify that the reserve and wetlands are to be maintained as a reserve and wetlands, by protecting the waters from pollution, conserving native vegetation, keeping the area clean and tidy and ensuring that it remains accessible to all residents of land within the ODP for their quiet enjoyment during the daytime. This last element is established through the requirement for access between 9.00am and 8.00pm and the signage which clarifies that the Land is closed to traffic, that alcohol is prohibited and that only one dog may accompany visitors and must remain on a leash.
9. All of this, when the Agreement is read as a whole, suggests to the reasonable person that the land within lot 28 of the subdivision, part of which is identified within the ODP as a Reserve, is to be maintained in perpetuity by the owner of lot 28 as a nature reserve and wetland area to be preserved for the benefit of the other lot owners within the ODP.
10. The applicant is correct in noting that the Agreement does not prohibit development, and that there may be instances where the obligation to maintain the Land may require the establishment of fencing to keep out domestic animals or to facilitate the establishment of new trees or grasses. It may require the construction of a shed in which to keep tools to assist with maintenance or placement of garbage bins to control litter. In that way, some development of the Land may be required, and residents may not have a 'right to access every inch' of the Land at all times. This manner of use and development is consistent with the obligations within and purpose of the Agreement, as identified earlier.
11. Use and development of a dwelling on the Land, however, is inconsistent with the terms of the Agreement when construed as a whole and would have absurd consequences.
12. While use and development of a dwelling is not expressly prohibited by the Agreement, it is clear that the Agreement has been prepared to provide one lot within the ODP that was not intended to be used and developed for dwellings. The Recitals explain that this Agreement came into being as a result of the large parcel of land being permitted to be subdivided and sold for the purpose of construction and use of dwellings. The Agreement ensures that a single lot would be retained and maintained as a wetland and reserve for the continued passive recreation of the residents within the subdivision and to provide a safe habitat and nesting area for birds, flora and fauna, while all of the other lots would be developed and used for housing. It would be absurd to construe this otherwise.
13. The applicant submitted that the use and development of a dwelling on a small portion of the Land would not interfere with the access and enjoyment of the reserve. I disagree. This is an undisturbed parcel of land that has been set aside, since the creation of the Wetlands and the entry into the Agreement, as a reserve for the use and enjoyment of the residents within the ODP.
14. Construction of a dwelling would not only remove their ability to access a portion of the reserve, however large or small, but would also change the nature of the reserve from a wholly 'public' area to something different, noting that public, in this context, means available to residents within the ODP. Not only would they not be permitted within the dwelling itself, fencing may be established to provide the dwelling with a private garden area. A person walking their dog within the reserve would not be able to enter this area and would likely avoid a larger area around it. While the Agreement does not specifically prohibit use and development of a dwelling, it also does not provide permission for any of the Land to be removed from public access or provide that any of the Land should be used or developed for anything other than maintenance and conservation of the reserve and wetlands.
15. While this is not an express statement, it can be clearly inferred from a reading of the Agreement in its totality, as approached through the eyes of a 'reasonable person'.
16. This is the case when read as a contractual document, and becomes even clearer when considered through the lens of a section 173 agreement as a hybrid document. If such an agreement has been entered into between the council and the owner of land, it will inevitably be an agreement restricting or regulating the use or development of land, including conditions subject to which the land may be used or developed and may cover matters intended to achieve or advance the objectives of planning in Victoria, the planning scheme or any amendment to the planning scheme.
17. It is clear from the terms of the Agreement that the subdivision was facilitated by an amendment to the Scheme and that this Agreement was prepared to facilitate the ongoing maintenance and conservation of the reserve and wetlands on lot 28, while the remainder of the lots were developed for housing.
18. If the words themselves were not sufficient for a reasonable person to determine that the terms of the Agreement would not allow the use and development of the Land for a private dwelling, the understanding that this is a section 173 agreement entered into between the council and an owner to facilitate a planning outcome, rather than a purely financial contractual arrangement between two independent parties, adds weight to the conclusion that the intent of the Agreement precludes the use and development of a dwelling.
19. The fact that the Agreement also states that the council shall have no responsibility for the development or maintenance of the Reserve does not diminish the purpose of the Agreement or the intention that it be maintained in perpetuity by the owner of the Land, it simply acknowledges that the council did not intend to be involved in the ongoing maintenance and confirmed that it would continue to be the responsibility of the owner.
20. It is also relevant that clause 4(g) provides that the owner continue to develop, maintain, conserve and protect the reserve and wetlands 'to the satisfaction of the council', in order to provide a safe habitat and nesting area for birds, flora and fauna. This adds an extra level of control on the way in which the Land is developed, maintained, conserved and protected by requiring it to be done to the satisfaction of the council. This provides an opportunity for council to intervene if it considers that the way the Land is being managed is inconsistent with the purpose of the Agreement and is not being carried out in such a way that will continue to provide a safe habitat and nesting area for birds, flora and fauna.
21. For these reasons alone, I find that the use and development of a dwelling on the Land would contravene the Agreement.
22. It is necessary, however, to also respond to two other matters raised by the applicant. The first is the matter of consistency with planning controls and decisions of the Tribunal dealing with the use of public spaces for private purposes and the second is the invitation to make an alternative declaration.

Consistency with planning controls and decisions of the Tribunal dealing with the use of public spaces for private purposes

1. The applicant made submissions comparing the proposed use and development of a dwelling with planning permit applications for private use and development on public land. For example, it referred to the Tribunal decision of Wertheimer v Bayside CC (No. 2) [2019] VCAT 1689, where the Tribunal ordered that a permit be granted on land on the foreshore of Brighton Beach, which is identified as a 'place of public resort of recreation' for a life saving club, function space and café. The Tribunal, in that decision, stated as follows: [9]

The café and BLSC are not open at all times but this does not mean that the uses are inconsistent with the Vesting Act. It simply means that very small parts of the review site cannot be used by the public at certain times. It does not prevent the review site in its totality from being used for public recreation and as a place of public resort.

1. In Food and Desire Pty Ltd v Port Phillip City Council [2004] VCAT 2448, the Tribunal considered an application for review of the council's decision to refuse to grant a permit for a café, restaurant and function centre within Albert Park, for several reasons, including that the proposed use is inconsistent with the purpose of the Public Park and Recreation Zone, in which the land was situated. The Tribunal made the following relevant comments in this regard:
   1. On this issue it is relevant to refer to the purpose of the Public Park and Recreation Zone. We note that in addition to the implementation of planning policy, the purpose of the zone is clearly directed towards the provision, protection and enhancement of areas for public recreation and open space. However, it is also clear, the zone purpose contemplates that there will be some circumstances where the inclusion of commercial uses within public parkland and recreation areas will be appropriate.

1. We do not think that, in principle, there was significant dispute that it is appropriate that some commercial facilities be provided within a park that is geared towards meeting local, regional and state needs. For example, there was no opposition to the kiosk, albeit that it is a commercial venture.
2. With respect to the function centre, parties submitted that the use would be of a private nature which does not meet the needs of the community and the public purpose of Albert Park. The Tribunal did not agree with these submissions and determined that the proposed use and development was acceptable in the context of Albert Park in totality and the applicable planning controls.
3. The applicant submitted that the construction and use of a dwelling on an area equating to 3 per cent of the Land would not prevent the remainder of the Land from being available for public use and would not be inconsistent with the use of the Land for a reserve. The applicant submitted that a decision in this application, which concerns private land, should not be more stringent than Tribunal decisions concerning private use of public land.
4. These cases can be distinguished from the current situation in several ways. The most fundamental, however, is that the Land is not public land but is land owned privately that is subject to a section 173 agreement with private obligations. The nature of a section 173 agreement is that it binds the owner to covenants contained in the agreement and it may provide for the prohibition, restriction or regulation of the use or development of the land, or conditions subject to which the land may be used or developed.[10]
5. It is in this context that the Agreement must be assessed, not in the context of an application to use public land in accordance with the planning scheme.
6. A section 173 agreement, by its nature, can impose private restrictions that are more stringent, or different, than restrictions imposed by the relevant planning scheme. The matters to be considered in an application to vary or remove a section 173 agreement also do not call into consideration planning principles but require consideration of the purpose of the agreement, the purpose of the amendment, and whether it would disadvantage any person, among other matters.[11] These considerations do not have regard to whether the terms of the agreement are suitable from a planning perspective but look to the content and nature of the agreement. Planning decisions about the acceptability of private use of public land, therefore, are not relevant to this application.

Specifics of use and development - an alternative declaration

At the conclusion of the hearing, consistent with material tabled prior to the hearing, the applicant also requested the Tribunal to consider whether it was prepared to make an alternative declaration, specifying that the dwelling to be constructed must be constructed in a specific location (as shown in a proposed plan of subdivision filed by the applicant, below, noting that this includes a subdivision that is not proposed by this application) with an identified building envelope. The applicant confirmed that the area of the building envelope would comprise 3 per cent of the area of the Land.

1. Given that a decision has already been made, I do not need to provide further reasons why I would not make a declaration to allow a dwelling in the location sought, or any other location. However, I do note that this request served to further highlight the intrinsic difficulties with the application and the practical implications of a decision in favour of the applicant's interpretation of the Agreement. Issues that were discussed towards the conclusion of the hearing included the following:
   1. Development of the Land would involve removal of native vegetation otherwise sought to be protected by the Agreement. Information as to the quantity and type of that vegetation is necessary to inform a decision as to location of a dwelling, as are planning considerations which include native vegetation controls within the Scheme and the fact that the Land is in a Bushfire Prone Area where defendable space would be required around a dwelling.
   2. The possibility of the dwelling being used for holiday rentals, parties or other uses that would likely be inconsistent with, and may contravene, the Agreement, including ongoing vegetation removal or extension of the dwelling. Although the applicant submitted that if the dwelling was used in a manner inconsistent with the Agreement, the council could take enforcement action, a declaration that use and development of a dwelling would not contravene the Agreement would limit the ability of the council to take action with respect to matters connected to use and development of a dwelling.
2. While the applicant submitted that the Agreement's obligation to protect, maintain and conserve would be retained regardless, and that the Tribunal could frame a declaration in any terms it chooses, including requiring 'reasonable' use of the dwelling, the submissions around this matter serve to highlight the fundamental inconsistency of use and development of a dwelling with the covenants of the Agreement.
3. It is not possible to allow a private dwelling on the Land while also maintaining and conserving the Land as a reserve and wetlands as required by the Agreement. The applicant submitted that the use and development of a part of the Land for the purpose of a dwelling would make it easier to comply with the obligations within the Agreement by essentially having a manager on site to undertake the regular maintenance required and assist in detecting and responding to the presence of stock or domestic animals and monitoring the wetlands for pollution.[12]
4. However, the applicant is not seeking to create a small caretaker's hut on the Land because it has found that this is necessary to comply with the obligations in the Agreement. It is seeking to establish a private dwelling on the Land. An attempt to create a set of rules within which a dwelling could be used and developed, aside from being fraught, is not appropriately framed within a declaration proceeding. It also raises the question of who could enforce the use on those terms and how it could be enforced.
5. For those reasons, I have determined not to make any alternative declaration in this proceeding.

1. For the reasons given above, the application for declaration is refused.

[1] The submissions 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] From www.nearmap.com.au, taken on 8 January 2023.

[3] On 3 April 2018 a restrictive covenant was also registered on the title to the Land. Among the restrictions included in the covenant is a limitation on development to a single dwelling on the lot. This covenant also applies to all other lots within plans of subdivision 344899X and 524032Q.

[4] From www.nearmap.com.au. The Land is identified by a blue marker.

[5] I have not included the footnotes referenced in this citation.

[7] I note that these sections are not described as 'Recitals' within the Agreement and there is no specific explanation as to their purpose. However, it is clear that these sections, which I refer to as 'Recitals' comprises a summary and explanation of the background to and purpose for the Agreement. I agree with the submissions of the Applicant, that the Recitals ought to be viewed as an aid to construction of the operative provisions of the Agreement. Sections A to F are headed 'Whereas:' with the substantive provisions included under the heading 'Now this agreement witnesseth as follows:'.

[8] Paraphrasing the applicant's written submissions, at [4].

[12] Within the applicant's written submissions at [22].