2 I declare that the Hobsons Bay City Council is not entitled to resist the application for permit for two dwellings on the land at 10 Parkside Crescent, Seaholme on the ground that the proposed development is prohibited pursuant to the covenant in transfer 2559923.

(given orally at the hearing and subsequently revised)

1 The applicant for review seeks a permit to construct a dual occupancy at 10 Parkside Crescent, Seaholme (the subject land). A permit is required pursuant to the Hobsons Bay Planning Scheme for this development. The applicant applied for such a permit and the council refused to grant the permit on the following grounds:

1 The proposed two-dwelling development is prohibited, pursuant to the Restrictive Covenant which affects the subject land.

2 The development is inconsistent with the State and Local Planning Policy Frameworks including Council's Municipal Strategic Statement.

3 The proposal does not achieve a satisfactory level of compliance with the objectives, standards and decision guidelines of Clause 55 of the Hobsons Bay Planning Scheme relating to neighbourhood character.

2 The permit applicant seeks to have a preliminary determination of whether the first ground of refusal can be supported. In effect it seeks a declaration that the restrictive covenant referred to in that ground does not bind the owner of the subject land and, accordingly, the ground is hopeless.

3 In 1945 Ethel Jean Kerr owned a substantial body of land in the Seaholme area. This land is described in certificate of title volume 6836, folio 089. Parts of that land were transferred out of that title between 7 March 1947 and 15 September 1952, at which time the title was cancelled. Some of those transfers were to Seaholme Housing Estates Pty Limited which would appear to have been a developer. Indeed the last transfer before the title was cancelled was to Seaholme Housing Estates Pty Limited and this was the transfer of the land which was then described in certificate of title volume 8069, folio 937.

4 On 25 April 1953 Seaholme Housing Estates Pty Limited transferred part of the land in certificate of title volume 8069, folio 937 to British Migrants Welfare Building Association Pty Limited. This transfer was then reflected in certificate of title volume 8069, folio 971. The transfer from Seaholme Housing Estates Pty Limited to British Migrants Welfare Building Association Pty Limited identified the land to be transferred as:

All that piece of land delineated and coloured red on the map in the fold hereof being part of Crown Allotments C and C2, Section 9, Parish of Truganina, County of Bourke, being part of the land more particularly described in Certificate of Title Volume 6836 Folio 089 together with a right of carriageway over Seaholme Avenue and Parkside Crescent.

and it the said British Migrants Welfare Building Association Pty Ltd DOTH HEREBY for itself its successors and transferees registered proprietor or proprietors for the time being of the land hereby transferred and every and any part or parts thereof COVENANT with the said Seaholme Housing Estates Pty Limited its successors and transferees registered proprietor or proprietors for the time being of the land remaining untransferred in the said Certificate of Title and every and any part or parts thereof that it the said British Migrants Welfare Building Association Pty Limited its successors and transferees registered proprietor or proprietors for the time being of the said land hereby transferred and every and any part or parts thereof will not erect make or construct or cause or permit or suffer to be erected made or constructed upon the said land or any part or parts thereof any building outbuilding or other improvement or commence or cause or permit or suffer to be commenced the erection or making or construction thereof unless and until both the design thereof and the position or location thereof upon the said land and the nature thereof or the proposed use thereof have all been approved in writing by the Vendor or by its agent duly authorised in writing by in that behalf ...

6 The language used in the covenant is tortuous, to state the obvious, but as yet that does not appear to be a ground to declare that a covenant is ineffective or unenforceable. Rather the point is that the land said to be benefited by the covenant is not sufficiently described, or is not described with sufficient exactitude, to make the instrument a covenant which binds the successors in title of British Migrants Welfare Building Association Pty Limited.

7 The applicant in this case is a successor in title of British Migrants Welfare Building Association Pty Limited. The subject land is derived from the title of the British Migrants Welfare Building Association Pty Limited and is one of a number of suburban lots that have been created from that land. It is apparent that the covenant is a covenant with Seaholme Housing Estates Pty Ltd and, to that extent, is a personal covenant which would be enforceable in contract by that company. However searches demonstrate that that company no longer exists and there would appear to be no person seeking to exercise any power that may be enjoyed by that company as a matter of personal property.

8 So the question for me is whether the identification of the successors and transferees (and registered proprietor or proprietors)

for the time being of the land remaining untransferred in the said certificate of title and every and any part or parts thereof

is sufficiently certain to identify land the owners of which are benefited by the covenant.

9 Ms Tooher submitted, and I accept, that a recording of the covenant in the Land Titles register does not give the covenant any greater operation than it has under the dealing creating it. As she put it the covenant stands or falls by its own inherent efficacy. This proposition was based upon section 88(3) of the Transfer of Land Act 1958.

10 In Fitt v Luxury Developments Pty Ltd [2000] VSC 258 at paragraph 151 and following, Gillard J set forth the requirements that must be satisfied in order that land be burdened by a restrictive covenant. One of these requirements is that the covenant must be made for the protection of land retained by the covenantee. Whether or not a covenant is in fact annexed to particular land is a question of the construction of the language in the instrument of transfer. As Gillard J observed in Fitt, it is not essential that the land to which the covenant is annexed should be expressly identified in the words of the covenant. But it is necessary that the words used in the covenant are sufficient, taking into account surrounding circumstances, to precisely identify the land that is benefited.

11 In the present case the transferor has sought to identify the land to be benefited by reference to land remaining untransferred in a particular certificate of title. That method of identification purports to be a precise method. It follows, as Ms Tooher submitted, that there is less scope in such circumstances to use surrounding circumstances to identify the benefited land. The problem is that, at the time the transfer was made on 25 April 1953, certificate of title volume 6836, folio 089 was no longer in existence, it having been cancelled on 15 September 1952. Thus at that time there was no land remaining untransferred in that certificate of title. Hence notwithstanding the exactitude with which the draftsman of the covenant sought to achieve, in fact all he has achieved is a nonsense.

12 It may be that in such circumstances it would have been open for some person, at some stage in the past, to seek rectification of the transfer so as to express it in the language which was truly intended. Even if that is the case, that time has passed. The result is that we are left with a promise in the transfer which is personal to British Migrants Welfare Building Association Pty Limited, but does not bind any successor in title. In particular it does not bind the applicant for review in this case.

13 Ms Tooher advanced a second argument that a person such as the applicant would not be bound because they would not have been given proper notice of the covenant, even if it was a valid covenant. Having regard to my finding on the first issue, it is unnecessary to deal with this argument. I merely note in passing that if there is any doubt as to whether the conclusion I have reached on the first argument is correct, that doubt would not exist if I was to rely upon Ms Tooher's second argument. This is because the threshold for the second argument to succeed is lower than for the first argument.