Two recent decisions in the Supreme Court reinforce the point that when seeking a declaration, it must be based on real rather than hypothetical circumstances.

These decisions also reiterate that:

  1. when interpreting restrictive covenants, these should be accorded their ordinary meaning; and  
  2. while Planning Panels are required to consider social and economic effects pursuant to Section 12(2)(c) of the Planning and Environment Act, they have the discretion to give weight to the factors they consider relevant.

1. Blue Concept Pty Ltd v Christine Farnan & Ors [2015] VSC 125

This is a case in which Gadens successfully represented the Defendants, and the Court found against on all declarations sought by the Plaintiff. The take home principles derived from this case are:

  1. In giving covenants their ordinary meaning, unless the covenant expressly creates personal obligations, it otherwise runs with the land;  
  2. If a covenant uses the words "with the exception of", this aspect (in context) will replace rather than supplement the restriction which comes before that phrase; and  
  3. It is important to have development plans prepared if seeking a declaration from the Court on what would otherwise be hypothetical circumstances. It was found that, without any development plans showing the appearance, design and possible effects on the area of a proposed apartment building, the Court cannot declare whether such a building should be allowed, and in this case, whether it constituted an 'other building'.

2. Dustday Investments Pty Ltd v Minister for Planning [2015] VSC 101

In this case, Dustday Investments sought a declaration from the Court that a Panel's recommendation for a planning scheme amendment resulting in a Heritage Overlay was affected by legal error, and invalid and unlawful. The application was ultimately dismissed. The key principles derived from this are case are:

  1. The weight to be given by the Panel to heritage considerations as against other considerations under Section 12(2)(c) of the Planning and Environment Act, including social and economic effects, is a matter for the Panel to determine. It is not for the Court to revisit the merits of the Panel’s deliberations; and  
  2. In considering social and economic effects, it was open to the Panel to only give weight to the dilapidated state of Dustday's building where demolition was an inevitable outcome i.e. in circumstances where the case for demolition was irrefutable and the community-wide costs and benefits of the demolition versus conservation outcomes were clearly identified. However, this consideration is to be based on the evidence before the Panel, which for this case was found not to be persuasive, as it lacked specific analysis and development plans.