For a restrictive covenant to be legally valid, the following elements are required:

(a) the covenant must be negative;
(b) the burden of the covenant must be intended to run with the land; and
(c) the covenant must be given for the benefit of land, not simply for the benefit of the covenantee, and the covenant must touch and concern that land.

This last requirement was discussed by the Supreme Court in Re: Ferraro [2021] VSC 166.

In this case, Matthews AsJ was prepared to declare the covenant unenforceable without requiring the Plaintiff to advertise the application for declaration, because the covenant failed to satisfactorily identify the benefitted land:

47 The plaintiff submits, and I accept, that the wording of the Lot 106 Covenant appears to suggest that the parties intended to benefit those persons taking title from Kate Lynch, James Byrne and Harold Paul Dennehy, namely their ‘transferees’. The Lot 106 Covenant provides that the covenantor, Thomas Francis Brennan, ‘hereby covenants with the said Kate Lynch, James Byrne and Harold Paul Dennehy and their transferees’ (emphasis added).
48 The plaintiff submits that even with an express acknowledgement that a covenant was intended to benefit the transferees of the original covenantees, the third element of a valid restrictive covenant remains unmet where it is unclear who the relevant transferees of the original covenantees are and, therefore, which land is to benefit from the covenant.

The Court in Re: Ferraro endorsed the view that caution should be exercised in relying on extrinsic materials to construe a restrictive covenant, consistent with the High Court’s reasoning in Westfield Management Limited v Perpetual Trustee Co Limited (2007) 233 CLR 528.