Eames v Brisbane City Council & Anor [2010] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION: Eames v Brisbane City Council & Anor [2010] QCA 326

PARTIES: ANN-MARIE EAMES (appellant/applicant) v BRISBANE CITY COUNCIL (respondent/first respondent) PROMOSEVEN PTY LTD (co-respondent/second respondent)

FILE NO/S: Appeal No 3674 of 2010 / P & E Appeal No 1688 of 2009

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 23 November 2010

DELIVERED AT: Brisbane

HEARING DATE: 18 August 2010

JUDGES: Holmes and Muir JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for leave to appeal is refused.The applicant must pay the first and second respondents’ costs of the application to be assessed.

CATCHWORDS: Environment and planning – Environmental planning – Development control –Applications – Form and contents of application – Validity of application generally – where appellant appealed to Planning and Environment Court (P & E Court) against first respondent’s approval of second respondent’s development application – where appellant raised jurisdictional issue that was decided against the appellant in a preliminary decision of P & E Court – where appellant seeks leave to appeal against decision – where development application applies to the second respondent’s land and land over which there is an access easement in favour of the second respondent’s land – where appellant claims development application not properly made because written consent of owner of servient tenement not obtained as required by s 3.2.1 Integrated Planning Act 1997 (Qld) (the Act) – whether s 3.2.1(12) of the Act applies – whether development application properly made / Integrated Planning Act 1997 (Qld) (repealed), s 1.3.2, s 1.3.4, s 1.3.5, s 3.2.1 / Sustainable Planning Act 2009 (Qld), s 263 / Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326; [2009] QCA 310, considered / Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Limited [1991] 1 Qd R 125, cited / Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45, cited

COUNSEL: S P Fynes-Clinton for the applicant / T N Trotter for the first respondent / R Litster SC, with B G Cronin, for the second respondent

SOLICITORS: DLA Phillips Fox for the applicant / Brisbane City Legal Practice for the first respondent / Courtice Neilsen Lawyers for the second respondent

HOLMES JA: I agree with the reasons of Mullins J and with the orders she proposes.

MUIR JA: I agree with the reasons of Mullins J and with the orders she proposes.

MULLINS J: In August 2008 the second respondent made a development application to the Brisbane City Council in respect of the land situated at 525A Coronation Drive, Toowong, and described as Lot 24 on SP114135 (Lot 24) and Easement B on SP139833. By a negotiated decision notice made by the Council’s delegate on 22 April 2009, the development application was approved, subject to conditions (the decision). By notice of appeal filed on 18 June 2009 in the Planning and Environment Court, the applicant appealed against the decision on a number of grounds. Relevantly, one of the grounds alleged that the decision was invalid and contrary to law as the application was not properly made, because the written consent of the owner of Lot 40 on SP139832 (Lot 40) was not obtained and included as part of the development application. The learned primary judge dealt with that ground of appeal as a jurisdictional issue that was able to be determined at a preliminary stage. The primary judge determined that issue in favour of the second respondent: Eames v Brisbane City Council & Anor [2010] QPEC 14 (the reasons). The applicant seeks leave to appeal against that determination.

Relevant background

The second respondent proposes to redevelop Lot 24 by demolishing an aged two-storey flat building containing four units and erecting a new nine storey building containing nine units. Lot 24 is situated on Coronation Drive, but has no vehicle access to Coronation Drive. The sole means of vehicle access to and from Lot 24 is from Land Street via Easement B which is a volumetric area above Lot 40 that was created in conjunction with a development known as Regatta Riverside and provides access for Lot 24 to Land Street. The lower boundary of Easement B is approximately at ground level and the upper boundary is about five metres above ground level. The owner of Lot 40 is the body corporate for the Regatta Riverside development. Lot 40 also provides access for the Regatta Riverside development to and from Land Street. The applicant is the owner of land that adjoins Lot 24 which also has the benefit of access to and from Land Street via Easement B.

The access easement over Easement B in favour of Lot 24 is registered under dealing number 706459100. Clause 2.1 of the easement provides:

“The Grantor gives the Grantee and its visitors the right to use the Easement for pedestrian and vehicle access to and from the Benefited Land. The Easement can be used at any time with any type of vehicle that will not damage the Easement.”

Under clause 2.2 of this easement, the grantor must not allow Easement B to be blocked, except for reasonable repair and maintenance needs. Under clause 3.2 of this easement, the grantee must not in any way obstruct Easement B and must not leave any rubbish on Easement B.

The owner of Lot 40 also granted an easement in gross over Easement B to the Council for right of way that was registered under dealing number 706459186. The full terms of the grant are set out in clause 1 of that easement:

“The Grantor hereby grants to the Grantee the full and free right and liberty from time to time and at all times hereafter by day or by night as often as the occasion shall require with or without surveyors, engineers, servants, agents, licensees, contractors, subcontractors, workmen and others authorised by the Grantee together with all vehicles, equipment, machinery, tools, and materials considered necessary by the Grantee for all lawful purposes connected with the business, functions and duties of the Grantee as a Local Authority or as a water supply or sewerage authority (in common with the Grantor and all others having or to whom the Grantor shall hereafter give the like right) to pass and repass along, over, upon and across the land described in Item (2) hereof (which land is hereinafter called ‘the servient tenement’) and the Grantor hereby agrees at the cost and expense of the Grantor, but without prejudice to the right of the Grantor to require a contribution from others to whom the Grantor may grant an easement of right of way over the whole or any part of the servient tenement, to keep the servient tenement open and in a trafficable condition to the satisfaction of the Grantee for the passage of vehicles as aforesaid.”

Section 3.2.1 of the Integrated Planning Act 1997 (the Act) (reprint 9C) sets out the requirements for an application for development approval. Under s 3.2.1(10)(a)(i) of the Act, but subject to s 3.2.1(12), the application must contain the written consent of the owner of any land to which the application applies. It is common ground that Lot 40 is land to which the second respondent’s application applies. Section 3.2.1(12) of the Act provides:

“(12) To the extent the land, the subject of the application, has the benefit of an easement and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required.”

If the consent of the owner of Lot 40 were required to the second respondent’s application, the omission of that consent is not a matter of non-compliance with the Act that can be waived or excused by the court under s 4.1.5A of the Act: Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326 at [64]-[65] (Barro). In respect of the matters expressly dealt with by s 3.2.1(10) of the Act, an application that is not a properly made application under s 3.2.1(7) may not pass beyond the application stage: Barro at [32].

The evidence before the primary judge focused on the issue of rubbish collection by the Council from Lot 24. It was not in dispute that the Council’s contractor uses a truck to drive onto Lot 40 and collect the rubbish from the bins for Lot 24 (and the applicant’s property) by stopping the truck on Lot 40 adjacent to the property from which the bins are being collected. The Council and the second respondent have proceeded on the basis that the same method of rubbish collection using Easement B will continue to apply to Lot 24 after the proposed development is undertaken.

Condition 33 of the Council’s approval conditions for the second respondent’s development approval (omitting the guidelines that were inserted in condition 33) provides:

“Refuse & Recycle Bins – On Site Collection

Enter into an agreement with a private waste collection contractor or BCC Waste Services to provide a bin collection service to the development for all residential uses. Note: The available access easement is volumetric to 5.0 metres in height and therefore the refuse vehicle must not “swing” the bin to outside 5.0 metres in height when removing refuse from this site.

33(a) Indemnify Council

The applicant/owner must indemnify Council and its agents in respect of any damage to the pavement and other driving surfaces.

33(b) Notify Future Occupants

The applicant/owner shall notify future owners/body corporate that the development has been approved on the basis that an indemnity is provided for refuse collection vehicles to enter the property.”

The reasons

The primary judge framed the issue for determination as whether the material change of use that was the subject of the development application (which was a material change in the intensity or scale of use of Lot 24 as a multi-unit dwelling) was inconsistent with the terms of Easement B.

The primary judge noted that the increase in intensity or scale from four dwellings to nine dwellings may result in the generation of more refuse, but that will be dealt with by on-site compaction of the refuse on Lot 24, resulting in fewer wheelie bins for collection from Lot 24 if the development went ahead than are presently collected.

After comparing the existing arrangements for rubbish collection using Easement B and those likely to occur if the development were undertaken, the primary judge made the following finding of fact:

“A closer reading of the material, however, establishes that the activity of rubbish vehicles entering upon the land, the subject of the easement, and stopping on that easement to collect rubbish is something which presently happens and which is not a function of the material change in scale or intensity of the multi-unit dwelling use, which is the subject of this application.”

The primary judge explained why it was not necessary to deal with the applicant’s argument that the rubbish trucks stopping on Lot 40 was inconsistent with the terms of Easement B:

“The point of any inconsistency that has been alleged is related to the rubbish trucks having to stop on the easement. That point of inconsistency, if it be a point of inconsistency, and if it be an aspect of the use, is not something which is generated by the material change in intensity or scale of the use. The increase in the intensity or scale of the use will simply result in garbage bins continuing to be kept on Lot 24, albeit in lesser numbers, and available for collection, as they have always been available for collection, by the refuse contractor. The refuse contractor will still, as it has always done, drive onto the easement for the purposes of collecting those bins. There is nothing about the increase in scale or intensity of the use which introduces a new or different point of conflict in this regard.”

The applicant’s submissions

The primary judge’s reasons raise an issue of law about the proper interpretation of the term “development” as it is used in s 3.2.1(12) of the Act which has continuing relevance because s 3.2.1(12) has been re-enacted as s 263(2)(a) in the Sustainable Planning Act 2009.

The term “development” is relevantly defined in s 1.3.2(e) of the Act as “making a material change of use of premises.” Reference must be made to the definitions set out in s 1.3.5 of the Act for the terms used in the definition of “development.” The development that is referred to in s 3.2.1(12) of the Act is the end product of the development proposal of the second respondent which is the nine new three bedroom dwelling units and not the difference in use between the existing four units (that will be demolished) and the proposed new building. Although the definition of “material change of use” in s 1.3.5(1) of the Act relevantly means “a material change in the intensity or scale of the use of the premises”, that is for the purpose of determining at the threshold whether the proposal is characterised as a development for the purpose of the application of the regulatory regime under the Act. Once the proposal is characterised as development, s 1.3.5 has done its work. What chapter 3 of the Act then regulates is the actual activity intended to be carried out under the development application which in this case is the construction of a new multi-unit residential building. The primary judge erred in law by elevating the role of s 1.3.5 beyond its proper function and holding that the use of Lots 24 and 40 which would follow as a consequence of the development was, for the purposes of s 3.2.1(12), something less than, and artificially detached from, the actual use which will follow if that development is carried out.

By virtue of s 1.3.4 of the Act, development arising from making a material change of use of land which is carried out in accordance with the Act will result in a new lawful use of the land which is a natural and ordinary consequence of making the material change of use of the premises. It follows that development is inconsistent with the terms of an easement for the purpose of s 3.2.1(12) of the Act when the use of the servient tenement as a consequence of carrying out the approved development is not authorised under the terms of the easement.

The residential use of Lot 24 that will be the result of the second respondent’s proposed development extends to the rubbish collection for Lot 24 which is a natural and ordinary consequence of residential use of a multi-storey apartment building.

The scope of rights granted by a registered easement does not extend further than those rights granted by reference to the plain meaning of the words used in the easement itself: Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528 at [18] and [24]. There is no right granted by the terms of Easement B to the owner of Lot 24 or its successors that would allow the rubbish collection truck to stand in Easement B while collecting the contents of the bins for Lot 24.

The easement in gross does not assist the second respondent as the rights granted to the Council are for access only, even though the rights are granted to enable the Council to carry out all lawful purposes connected with its business, functions and duties as a Local Authority or as a water supply or sewerage authority.

The Council’s submissions

To the extent that collection of rubbish could be considered part of the material change of use, there will be no change in that activity that could give rise to any inconsistency with the terms of the easement.

In any case, the occasional stopping of rubbish trucks on Easement B to collect rubbish bins is not an activity that should be characterised as part of the development. As the purpose of s 3.2.1 of the Act is primarily to allow an assessment manager to determine whether there has been a properly made application, the application of s 3.2.1(12) must be considered in the circumstances that the assessment manager receives a development application and has to decide whether the consent of the owner of the servient tenement is required. Any inconsistency therefore must be readily discernible by a comparison between the terms of the easement and the proposed development and not extend to events directly or indirectly associated with the development that might possibly give rise to a breach of the terms of the easement in the future. This approach finds support in Moore v Kwiksnax Mobile Industrial and General Caterers Pty Limited, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Limited [1991] 1 Qd R 125, 129.

The terms of the easement in gross are sufficiently wide to allow the occasional, brief stopping of a rubbish truck which is what is required to allow the Council to carry out its business, functions and duties as a Local Authority which is the purpose for which the easement in gross was granted.

Even if there were an error in the primary judge’s construction of s 3.2.1(12) of the Act, there is limited utility in a decision by this court confined to the particular facts of this case and no substantial injustice would result, if leave to appeal were refused. If the court did find there was an error of law and that the development application was not properly made, the same arrangements that have been in place for collecting rubbish from Lot 24 would continue.

The second respondent’s submissions

The approach of the primary judge to the interpretation of “making of a material change of use of premises” in the definition of “development” in s 1.3.2 of the Act is correct. The primary judge’s decision turned on findings of fact from which there is no appeal.

The second respondent’s development application was supported by a town planning proposal report that dealt with waste management in terms of how refuse would be managed on Lot 24. The proposal was for “Screened & mechanically ventilated refuse waste room and compactor system in basement – supplementary” and reference was made to the Code requirement that waste management be “On site and screened from view”. The transport impact assessment that accompanied the development application dealt with alternative proposals for refuse – one using compactus bins and the other using wheelie bins. That assessment was for the purpose of dealing with possible traffic implications of service and refuse vehicles. The second respondent was required to and did show the Council that refuse collection could be done, but it was not part of the second respondent’s development application that refuse collection had to be done only in the way that it was being carried out when the application was lodged. What happens external to Lot 24 in terms of the collection of refuse from Lot 24 is a matter for the Council and was not a function of the development application.

The terms of condition 33 of the Council’s approval conditions were the result of negotiations with the Council and contemplate a continuation of the existing method by which the Council services Lot 24, Lot 40 and the applicant’s lot for refuse collection, but the terms of condition 33 are not confined to that existing method.

The existing weekly refuse collection that makes use of Easement B is not presently the subject of complaint by either the applicant or the owner of Lot 40. The applicant does not argue that the existing refuse collection is unlawful and has not sought to enjoin that activity. No substantial injustice would result if leave were refused.

Was there a properly made application to the Council?

Under s 3.2.1(3) of the Act a development application must contain or be supported by the written consent of the owner of the land to the making of the application for a material change of use of premises. It is a fundamental requirement that the failure of an application to contain such written consent of the owner of any land to which the application applies cannot be waived or excused by the assessment manager under s 3.2.1(9). That strict requirement is then moderated to some degree by the express terms of s 3.2.1(12) of the Act in relation to the consent of the owner of the servient tenement which benefits the land which is the subject of the application.

Subsection (12) of s 3.2.1 was inserted by the Integrated Planning and Other Legislation Amendment Act 2003. The Explanatory Note for the relevant Bill stated:

“Subsection (12) provides an owner’s consent is not required in respect of land subject to an easement, where the owner is the owner of the servient tenement, and the development is not inconsistent with the terms of the easement. For example, the owner of land subject to an access easement need not give owner’s consent in respect of a development application including the easement if the land subject to the easement is proposed to give access consistent with the terms of the easement.”

It makes sense that the written consent of the owner of the servient tenement is dispensed with when the land to which the application relates has the benefit of the easement and the servient tenement is proposed to be used in accordance with the terms of the easement, as the owner of the servient tenement has effectively authorised any use of the servient tenement that is within the terms of the easement.

This matter is complicated as the consideration of whether there was a properly made application is taking place after the Council has approved the development application and when the conditions on which that approval was given are known. It is difficult to see why the outcome of negotiations between the second respondent and the Council and the resultant conditions should affect the determination of whether there was a properly made application in the first place, unless those conditions clarify or change the true nature of the development application. The issue raised by the applicant about the omission of a written consent from the owner of Lot 40 has to be considered primarily in the context of the application that was made to the Council, rather than focusing on the conditions of the Council’s approval of the application. Any issue about the lawfulness of conditions in the development approval would in the normal course be dealt with in the appeal against the decision granting the development approval.

The importance of the nature of the application is illustrated by the decision in Barro. The development application in Barro was for a permit for a material change of use to extend Barro's quarrying activities. The land that was the subject of the development application was bisected by a road as defined in the Act and Barro proposed to locate plant and equipment used in its quarrying activities on that road. The road was a State resource for the purpose of the Act the application was therefore required to comply with s 3.2.1(5) by the provision of evidence of the entitlement to that State resource or the support of the Chief Executive of the relevant department to the application. Barro’s application did not comply with s 3.2.1(5). Compliance with s 3.2.1(5) could not be waived under s 3.2.1(9) because of the terms of s 3.2.1(10)(a)(ii) of the Act. Despite the lack of compliance with s 3.2.1(5), the Council gave Barro an acknowledgment notice, proceeded to assess the application and refused it. It was held that because Barro’s application did not contain the evidence required by s 3.2.1(5) of the Act, it was not, and had never been, a properly made application within the meaning of s 3.2.1(7) of the Act: Barro at [25].

Unlike the development application in Barro which disclosed proposed activities that triggered the mandatory requirements of s 3.2.1(5) of the Act, the second respondent’s development application disclosed the terms of Easement B and did not expressly propose any activities on Easement B other than use of Easement B for all vehicle access to and from Lot 24 and for pedestrian access (in addition to the pedestrian access via Coronation Drive) which fell prima facie within the terms of the grant under the registered easement.

As the second respondent submitted, its development application was for the purpose of constructing a new multi-unit storey building for residential use on Lot 24 using the access available via Easement B. Removal of the rubbish generated by the residential use of that new building is an aspect of its use that is properly the concern of the Council and appropriate subject matter for the conditions of the development approval. Although both the Council and the second respondent have proceeded on the basis that rubbish collection from Lot 24 will continue in the same manner that currently applies, that was not the only method of collection that was available at the time the application was made. If the stopping of rubbish trucks on Easement B was not within the terms of that easement (without deciding that issue), the terms of that easement allow for the wheelie bins from Lot 24 to be wheeled to Land Street for collection. In fact, condition 33 is in terms that are sufficiently general to accommodate that as the method of collection.

When the issue of whether there is a properly made application has to be determined as of when it was made, the second respondent always intended to observe the terms of Easement B in connection with the development, and the development is able to proceed consistent with that expressed intention, the second respondent’s development application was a properly made application within the meaning of s 3.2.1(7) of the Act. Nothing that is in condition 33 has changed the nature of the second respondent’s application.

Other issues raised by the application for leave to appeal

In view of the conclusion that I have reached based on the terms of the development application that it was a properly made application, it is not necessary to deal with the arguments advanced by the applicant on the construction of the word “development” in s 3.2.1(12) or whether the existing means by which the Council collects refuse from Lots 24 and 40 and the applicant’s land does not fall within the terms of Easement B or the easement in gross.

I observe, however, that the purpose served by s 3.2.1(12) of the Act assists in its interpretation which tends to support the applicant’s approach to the construction of the term “development”. One would usually expect the actual use intended to be made of a servient tenement by the owner of the land that has the benefit of the easement as the use that must be considered for determining whether there is any inconsistency with the terms of the easement.

Orders

Although I have approached the preliminary question in a different way to the primary judge, I reach the same conclusion and there is no issue of law of sufficient general application that gives utility to an appeal from the decision on the preliminary question. I would therefore make the following orders:

Application for leave to appeal is refused.

The applicant must pay the first and second respondents’ costs of the application to be assessed.