1. My review of the text and context of the Covenants leads me to the following conclusions.
2. There is no ambiguity in the text of the Covenants.
3. There is no express restriction on the use of the subject land exclusively for residential use.
4. This is so because none of the Covenants contain any words of limitation, prohibition or restriction that leads to the conclusion that the only permissible use of the relevant lots making up the subject land is for residential use only.
5. The limitation on the number of dwelling houses on each lot is a limitation as to number and does not either expressly or impliedly limit use of the lots to a particular purpose. Something more than a limitation in number would be required to achieve a restriction in use.
6. The restriction that 'any such house' is to have a roof of tile or slate or any other approved material only applies to where the form of building to be erected is a dwelling house.
7. It is not a proper approach to characterise all covenants that contain a 'one dwelling house' restriction or 'a single dwelling house' restriction as having a single common purpose. To draw this conclusion as a matter of course is to elevate the single dwelling house restriction as defining the purpose of a covenant irrespective of the words used in the covenant and any other restrictions that may be contained in the covenant.
8. When considered in the context of the whole of the terms of each Covenant, there is no warrant or justification to imply words of limitation that would restrict the use of each lot making up the subject land to a residential use only.
9. This is because on an objective reading of the Covenants the drafters of the Covenants have clearly identified those uses that are not to be carried out 'on the said land' specifically being fellmongery, butchery, poultry farming or other offensive operations or manufactures. Those uses specifically prohibited from being carried out do not include any of the proposed uses involved in the proposal.
10. It is of some significance that the specified restriction as to uses is imposed on the use of the 'said land' and not on the built form to be erected on the land. This indicates that the drafters of the Covenants considered the restriction on the use of the relevant land to be separate from any restriction on built form.
11. The reference to 'other offensive operations' is to be interpreted as being limited to those uses or operations of a similar nature to 'fellmongery, butchery and poultry farming'. The commercial mixed use proposed for the subject land is not an offensive operation or manufacture as there are no manufacturing processes that are intended as part of the proposal and none of the proposed uses can objectively be considered to be offensive.
12. Interpretation of the actual words used in the Covenants does not involve speculation as to the intention of the drafters. Similarly, limitations on the underlying purpose of a covenant assumes that the purpose or object of the covenant is discoverable from the words of the covenant used in the context of the whole of the covenant.
13. It is not for the Tribunal to construct its own idea about what is a desirable purpose, imply it into the words used in the Covenant and to then characterise it as the purpose of the Covenants.
14. It is not for this Tribunal to now consider that a desirable purpose of the Covenants was not only to restrict the specified uses referred to in the Covenants but all other possible uses other than residential uses carried out in single dwelling houses where the unambiguous words used in the Covenants do not so require.
15. The likely purposes of the Covenants were twofold:
    1. To ensure that certain specified uses were not carried out on each lot; and
    2. To ensure any development of each lot for housing was restricted to one dwelling house that had a slate or tiled roof (or otherwise approved material) and met the minimum cost of building stipulated.
16. In both Prowse and Grant, the nature of the proceedings before the Supreme Court was an application under s 84(1) of the Property Law Act 1958 (Vic) to modify a restrictive covenant. In both cases, before considering whether the requested modification would not substantially injure the persons entitled to the benefit of the restriction, the Supreme Court embarked on the exercise of construing the relevant covenant before it.
17. As noted above, the relevant covenant in Grant was essentially in the same terms as the Covenants under consideration here. In Prowse, the restrictive covenant was expressed in the following terms:[8]

AND the said William Durham Leslie doth hereby for himself his executors and administrators covenant with the said Jane Langmore and Arthur Charles Langmore Registered Proprietor for the time being of the untransferred part of the land in the said Certificate of Title their executors and administrators or transferees will not at any time or times hereafter quarry on the said land or cart or carry away any stone or gravel soil or sand therefrom or make any excavations therein except such as may be necessary for laying the foundation of any building on the said land AND FURTHER that he or they will note erect more than one house on each of the said Lots and that any house so erected shall be of stone or brick and stone with roof of slates or tiles on the main portion thereof at a cost of not less than six hundred pounds each exclusive of stables and outbuildings and that such building shall not be used for any trade or business AND FURTHER that the said William Durham Leslie will not subdivide either of the said Lots into smaller allotments nor reduce the frontage thereof to a smaller frontage than appears on the said Plan of Subdivision AND the said William Durham Leslie hereby requests that the above covenants may appear as an encumbrance on the Certificate of Title to be issued in respect the land hereby transferred and run with the land.

1. It is immediately apparent to me that the restrictions in the relevant covenant in Prowse are different to those under consideration here. Amongst other differences, the Prowse covenant specifically excludes the use of any dwelling house erected for any trade or business. There is no such restriction in the Covenants. The Covenants prohibit the use of the 'said land', that is the land comprising each relevant lot, from certain specified uses. The differences between the Prowse covenant and the Covenants underpins the common position of the each of the parties at the hearing that the Tribunal is not bound by the decision in Prowse when determining whether the proposal would result in a breach of the Covenants. My task is not to construe the Prowse covenant (that has already been done by Cavanagh J) but to construe the Covenants and I have done so and given my reasons for my determination.
2. Finally, I reject the submission on behalf of SaveEastIvanhoe Inc. that the Supreme Court's decision in Roy Morgan is relevant to my determination.
3. Roy Morgan involved consideration of an application under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) against the decision of another division of the Tribunal in respect to the validity of a claim by the Commissioner of State Revenue that Roy Morgan was liable to the Commissioner under the Pay-Roll Tax Act 1971 (Vic) in respect of persons engaged by Roy Morgan as 'interviewers'.
4. Before the Tribunal's determination the subject of the leave application, an unreported decision of the Court of Appeal involving the same parties had been given in which Roy Morgan was unsuccessful in its challenge that it was not liable to the Commissioner under the Pay-Roll Tax Act 1971 (Vic) for persons engaged by it as 'interviewers'.
5. The Supreme Court in Roy Morgan found that apart from involving different periods of time, the two proceedings (the one before the Court of Appeal and the one before the Tribunal) bear 'on the surface if not upon proper analysis, every indication of being relevantly indistinguishable'. [9] In this context, the following statements were made by the Supreme Court in Roy Morgan:
   1. ... The law is simple. The decision of the Court of Appeal is not one that (to adopt the Tribunal's words) "it would seem, cannot be ignored". It is one by which the Tribunal is absolutely bound. Indeed, it is necessary to recognise that it is not only the decision that binds; it is both the decision and the reasoning behind the decision...
6. The proposition by SaveEastIvanhoe Inc. founded in the above statement is that while the Tribunal may not be bound by the decision in Prowse, it is bound by the reasoning used by the Supreme Court to come to its determination. In circumstances where, unlike in Roy Morgan, it cannot be said that the terms of the Prowse covenant and the Covenants are 'relevantly indistinguisable', that proposition simply is wrong and I reject it.
7. In conclusion, the grant of a permit for the use and development proposed in the permit application would not result in a breach of the Covenants.

[1] See notice of refusal to grant a planning permit dated 15 July 2024.

[2] See Design 2u for and on behalf of Y&P Harel Pty Ltd v Glen Eira SC (Correction) [2010] VCAT 1865.

[5] At [49], [52], [54] and [64].

[6] Bradbrook and Neave's Easements and Restrictive Covenants, AJ Bradbrook and SV MacCallum, 3rd ED, [15.4].

[7] Ferella v Otvosi [2005] NSWSC 962 at [17]; Re Marshall and Scott's Contract [1938] VicLawRp 22; [1938] VLR 98 at 100 where Mann CJ observed small differences in language can be of great importance and that the decision often turns on them; Prowse v Johnston & Ors [2012] VSC 4 at [54].