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[2015] QSC 179
General information, not legal advice.
Supreme Court of Queensland
2015-07-29
Applegarth J
Original judgment source is linked above.
[1] The applicant, Lambert Property Group ("LPG"), owns vacant land at 108 Lambert Street, Kangaroo Point. Its land (Lot 1) is suitable for development.
[2] Castlebar Cove is a residential apartment development which borders Lot 1. It is situated at 39 Castlebar Street, Kangaroo Point, and comprises two, 12 storey towers, each with 19 units. Its residential towers sit above a podium level. Castlebar Cove's residents share a foyer, a waiting area and other facilities including a swimming pool and a gymnasium. They also share a common basement car park which abuts the southern boundary of Lot 1. The car park is accessible only by internal lifts and through a secure gate access at the front entrance. Access to the car park requires a security fob.
[3] Vehicular and pedestrian access to the land comprising the Castlebar Cove Community Title Scheme land is via Castlebar Street. It is a narrow, steep street which runs downhill off Lambert Street. There is also pedestrian access from Lambert Street to Castlebar Cove.
[4] LPG has no access rights over the Castlebar Cove land, let alone through Castlebar Cove's secure car park. It applies for a statutory right of user under s 180 of the Property Law Act 1974 ("PLA") over the common property of the Castlebar Cove's Community Title Scheme, in terms of an easement document which the body corporate resolved to grant for the benefit of Lot 1 at an extraordinary general meeting held on 4 August 2008.
[5] In August 2008 the body corporate of Castlebar Cove was under the effective control of its developer, Sincere Properties (Kangaroo Point) Pty Ltd, which also owned Lot 1. At the time, Sincere had plans to develop another stage of Castlebar Cove on what was described as the Stage 3 land, which comprised Lot 1. It had lodged a development application for a high rise on Lot 1. At an extraordinary general meeting of the body corporate on 4 August 2008, Sincere irregularly procured, through the use of Powers of Attorney which it held, a resolution which approved entry into a form of easement. The easement, if granted for a consideration of $1, would have enabled the construction and development of Stage 3 of Castlebar Cove. But despite the passing of the resolution, the easement was never granted. No easement was signed and registered, and the proposal to develop Stage 3 of Castlebar Cove fell away.
[6] Having obtained in November 2010 a development approval for the construction of a high rise apartment block on Lot 1, Sincere sold Lot 1 to LPG. LPG does not intend to facilitate the further development of the Castlebar Cove scheme. Instead it has plans to develop Lot 1 as a stand-alone development.
[7] Although LPG has no legal rights by virtue of the 4 August 2008 resolution, it asks the Court to grant it an easement over the common property of Castlebar Cove on the terms of the August 2008 resolution. It would thereby acquire valuable access rights and inconvenience the residents whose common property the respondent controls by paying a consideration of $1.
[8] Unsurprisingly in those circumstances, the respondent resists LPG's application to grant an easement on the terms of the 2008 easement document.
[9] The application is opposed on the grounds that LPG has failed to establish that access to Lot 1 via the Castlebar Cove car park is reasonably necessary for the effective use of Lot 1. It contests LPG's position that the construction of an opening in the concrete wall of Castlebar Cove's car park and the granting of an easement of indefinite duration is "reasonably necessary" for the effective use of Lot 1 as an apartment complex.
[10] The authorities on the meaning of "reasonably necessary" in the context of s 180(1) of the PLA establish the following principles:
"(a) One should not interfere readily with the proprietary rights of an owner of land.
(b) The requirement of 'reasonably necessary' does not mean absolute necessity.
(c) What is 'reasonably necessary' is determined objectively.
(d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree.
(e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.
(f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user.
(g) Regard must be had to the implications or consequences on the other land of imposing a right of user."[1]
[11] The respondent identifies an alternative means of access by which vehicles might access Lot 1 via an existing driveway off Lambert Street. The current development approval requires this driveway to be improved and to be used as a means of access for cars and trucks to park on the ground level of Lot 1.
[12] Subject to a legal question to which I will return, the town planning experts called by both LPG and the respondent do not identify any planning impediment to changing the access into the development so that all traffic goes via the Lambert Street driveway, rather than having some traffic go through Castlebar Cove's secure car park to Lot 1's proposed basement car park.
[13] The respondent also contests that LPG has satisfied s 180(3). It requires the Court to be satisfied that:
"(a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and
(b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and
(c) ... the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable ..."
[14] The respondent submits that the easement proposed by LPG is completely lacking in detail about the regulation of access and that LPG's case is so lacking in detail in terms of evidence that it is impossible to reach any conclusion about the monetary compensation which would adequately recompense for loss or disadvantage.
[15] The respondent also submits that its refusal to agree to accept the imposition of an easement in terms of the August 2008 document, which would require it to accept $1 in return for granting the easement, could hardly be described as being unreasonable in all the circumstances. The $1 sum is said to be "woefully inadequate and unreasonable in all of the circumstances".
[16] LPG, on the other hand, points to the fact that the respondent in 2008 resolved to grant an easement for a consideration of $1 and had thereby valued its own recompense. It submits that the respondent's refusal to accept the imposition of an easement on the terms of the August 2008 document is unreasonable:
(a) given the absence of any satisfactory explanation for the respondent's change of position;
(b) the fact that the basement was designed and constructed to accommodate the access referred to in the condition of the development approval; and
(c) the development approval applies to the land which was subject to the 2007 development application, which includes the common property on Castlebar Cove.
[17] The respondent replies that there has been a significant change in circumstances since the respondent, which was then controlled by Sincere, resolved to grant an easement for $1 to facilitate the future development of the scheme. That nominal sum was predicated on owners of the new building being part of Castlebar Cove and thereby making contributions to the respondent. There is no prospect of that now occurring, but if the easement is granted it will burden the respondent (and thereby the owners of apartments in Castlebar Cove) with obligations in relation to the easement.
[18] The substantial issues may be summarised as follows:
- Is it reasonably necessary in the interests of the effective use in a reasonable manner of Lot 1 to have access via the Castlebar Cove car park in the manner proposed?
The centrality of the 2008 document to the applicant's case
[20] LPG hangs its hat on the 4 August 2008 resolution, whilst conceding that it enjoys no legal rights as a result of that resolution. It seeks an easement to be granted to it on the same terms as the sparse terms of the 2008 document, which contains no details about practical aspects to regulate the use of the easement and matters which would be a potential source of conflict between parties who sought to make use of the easement and residents of Castlebar Cove. The 2008 document does not address practical matters such as the speed at which vehicles may travel, security arrangements, how any door or firewall between the two properties would be operated, how rules about security and speed would be enforced, the movement of refuse from Lot 1 along the easement and its storage on Castlebar Cove prior to collection, the roles of on-site managers and the cost of their services in managing access and maintaining security. Many of these and other matters would have been regulated by by-laws if Lot 1 had become part of the scheme land and the common property of Lot 1 had become part of the common property of an expanded Castlebar Cove development.
[21] LPG's application to the Court does not seek the imposition of an easement on commercial terms that would require the owner of Lot 1 to pay a consideration of more than $1, and which contains detailed terms regulating the use of the easement and conditions which serve to preserve, as far as possible, the security of the Castlebar Cove car park. LPG's approach is that it should acquire the easement according to the terms of the 2008 document, which requires it to pay $1, and that compensation is something to be worked out pursuant to s 180(4)(a) by the Court doing its best to assess a just amount by way of compensation or consideration for an easement of an indefinite duration.
[22] Because LPG rests its case, particularly in terms of s 180(3) considerations, upon the resolution passed on 4 August 2008, it is necessary to give an account of certain historical matters, including the circumstances under which the resolution came to be passed.
[23] Sincere owned a number of adjoining lots close to the river at Kangaroo Point. It proposed the development of its land in stages. Stage 1 involved the construction of two towers and other improvements which became what is now Castlebar Cove. Stage 2 was to be a volumetric subdivision of part of the common property of the scheme so as to provide, among other things, additional lots for visitor parking on the ground level of Castlebar Cove. It has occurred.
[24] Stage 3 was to be on Lot 1, and was intended to create up to 10 additional lots being residential apartments, together with common property including a swimming pool, health club and gymnasium and other recreational areas. Stage 3 was not developed, and now never will be.
[25] Lot 1 is situated at 108 Lambert Street, and is bounded to the south-east by the scheme land for Castlebar Cove Community Title Scheme 37148. Before the establishment of that scheme in late 2007, Sincere applied to the Brisbane City Council to develop Lot 1 for use as seven multi-unit dwellings. Its development application was lodged on
22 February 2007. Sincere owned the Castlebar Cove land at the time, as well as Lot 1. The application was made in respect of several parcels of land that it owned, situated at 108 and 110 Lambert Street and 39, 41 and 44 Castlebar Street. Some of those lots later became the Castlebar Cove scheme land.
[26] The development application was amended from time to time but, in its final form, provided for seven units (with five bedrooms each) over eight storeys, together with a basement car park. Residents of the new building would access the basement car park through the car park entrance to Castlebar Cove and drive through an opening which was to be made in the adjoining basement wall in Castlebar Cove. Other vehicles, including visitors' cars and removalist trucks, were to access the new building by the existing driveway to Lambert Street.
[27] Stage 1 of Castlebar Cove was completed in 2007. The common property and lots forming the scheme were created by registration of a survey plan on 13 July 2007. The Castlebar Cove scheme was established on 2 October 2007. The community management statement establishing the scheme explained that the development of Stage 1 on the Stage 1 land had been carried out. The "Scheme land" as described in the community management statement consisted of the community property and the lots on Stage 1. It did not include Lot 1. Instead, the statement explained that the land for Stage 3 (Lot 1) would not form part of the scheme "until registration of the building format plans creating the Lots and common property" in that stage. The community management statement for the Castlebar Cove CTS Scheme 37148 also stated: "The Original Owner may elect to not proceed with any one or more stages of the proposed development".
[30] At the time the common property and lots forming the Castlebar Cove scheme were created by registration in July 2007, and at the time the scheme was established on
2 October 2007, Sincere exercised control over the newly-created body corporate. It owned many lots and had been granted powers of attorney over lots which it no longer owned. On 4 August 2008 an extraordinary general meeting of the body corporate was held. It seems that the meeting was attended by three officeholders of the body corporate, the building manager, a representative of the manager of the scheme and a solicitor. The meeting resolved without dissent that a Form 9 Easement which had been tabled be approved and entered into by the body corporate and signed by one committee member and the chairman. Another resolution, which was also passed without dissent, approved amendments to remove certain clauses from the document and to insert a new clause 7. The meeting also resolved that after a survey plan of the easement was obtained the body corporate would execute the plan of easement.
[31] Mr O'Reilly, who was secretary of the body corporate at the time, has given evidence that the copy of the minutes in evidence is accurate. The minutes record that the new clause 7 was inserted into the document after Mr O'Reilly expressed his concerns about the encumbering easement over the common property of the scheme land. The minutes record that the meeting was advised that "the requirement for the easement was requested by the Brisbane City Council as a condition of the Development Permit for stages 2 and 3". That matter provides an important context in which to consider the handwritten, new clause 7.3. It provides:
"The parties agree that if this Easement is no longer required in order to facilitate the further development of the Scheme (stages 2, 3 and any other land to form part of the Scheme as contemplated in the CMS), and this Easement is not required in order to provide access to those further parts of the development, then this Easement, subject to obtaining the consent of the Brisbane City Council, will be extinguished to the extent it is no longer required. The parties agree to sign any instruments or documents required to give effect to such surrender and registration of the instrument of surrender at the Queensland Land Registry."
[32] For present purposes, it is sufficient to observe that the minutes of the 4 August 2008 meeting and the terms of clause 7.3 suggest that the easement was approved on the basis that the body corporate's approval was necessary to meet a condition imposed by the Brisbane City Council for the development of Stages 2 and 3, and that if the easement was granted but was no longer required to facilitate the further development of the scheme, then it would be extinguished.
[33] The easement which the body corporate approved entry into on 4 August 2008 was never granted. It seems that in September 2008 surveyors were instructed to prepare a plan of easement, but no plan of easement is in evidence. No form of easement was executed by or on behalf of the body corporate and, as a result, no easement was in fact granted or registered. LPG does not contend that the 4 August 2008 resolution confers any legal rights upon it as the present owner of what was the proposed dominant tenement.
[34] There is no evidence that after September 2008 Sincere took any steps to progress the granting of an easement so as to carry into effect the 4 August 2008 resolution. This may be because of doubts about its validity.
[35] The respondent submits that the 4 August 2008 resolution was defective because of Sincere's improper use of powers of attorney. Briefly stated, the use or misuse by developers of a power of attorney of the kind Sincere purported to exercise on 4 August 2008 had been addressed by legislation. Section 219 of the Body Corporate Community Management Act 1997 (Qld), as it stood in 2008, limited the powers of a developer to use such a power of attorney. The respondent submits that the powers which Sincere purported to exercise on 4 August 2008 were not properly exercised, and LPG does not submit to the contrary.
[36] Many current residents of Castlebar Cove purchased their apartments after 4 August 2008. No mention was made of any easement or right of user over Castlebar Cove of the kind contemplated by the 4 August 2008 resolution. No proposal for an easement or right of user was disclosed in any disclosure documents to those purchasers.
[37] The development application that was made by Sincere to the Brisbane City Council on 22 February 2007 to enable Sincere to develop Lot 1 as Stage 3 of Castlebar Cove had a protracted history. The application was approved, subject to conditions by the Council. Proceedings were commenced in the Planning and Environment Court and eventually on 19 November 2010 a changed development application was approved, subject to numerous conditions, by the Planning and Environment Court. An understanding of those conditions requires further reference to the configuration of Lot 1 and the easements which allow access to it and to neighbouring lots which are also a battle-axe shape.
[38] Lot 1 is a battle-axe shaped allotment, with the handle of the axe linking the major part of the lot to Lambert Street. The boundary forming the handle of the axe adjoins the northern boundary of Castlebar Cove. Members of the Daly family own three lots adjoining Lot 1. The Daly lots are also a battle-axe shape. Each has a townhouse situated on it.
[39] Lot 1 has the benefit of an easement over what might be described as the handle of the axe of the Daly lots. As a result, by a combination of its own land and the easement, Lot 1 has an existing access way 6.8 metres wide to Lambert Street. Similarly, by a combination of the handle of the axe that forms part of the Daly lots, combined with an easement granted over the Lot 1 handle, the Daly lots also enjoy right of access to Lambert Street.
[40] In other words, Lot 1 and the Daly lots each have rights of access to Lambert Street by a shared driveway. Road access, pursuant to ownership rights and existing easement rights, is a significant aspect for the development of Lot 1 and, for that matter, the future development of the Daly lots. Each reciprocal easement does not limit the intensity of use of it.
[41] So far as Lot 1 is concerned, the development approval with its conditions that was granted on 19 November 2010 attached to the land the subject of the development application to which the approval relates, and binds the owner, the owner's successor in title and any occupier of the land even if the land is later reconfigured.[4]
[42] The approval granted on 19 November 2010 relates to a seven unit development on Lot 1. Condition 5 requires the material change of use to be carried out generally in accordance with the approved drawings and documents. Those approved drawings and documents include drawings depicting the Lambert Street driveway. In particular, a ground floor car park access plan contains a notation: "ENTRY DRIVEWAY (EXISTING EASEMENT ACCESS) FROM LAMBERT STREET TO 108 LAMBERT STREET VISITOR PARKING". Drawings of a lower basement floor plan include the notation: "."
In short, the approved drawings and documents contemplate vehicular access to the developed Lot 1 through two means of access:
(a) the existing driveway for above-ground access, including visitor parking and the loading and unloading of trucks; and
(b) access via Castlebar Street and the common property of Castlebar Cove, including the entry ramp to its basement and then through the Castlebar Cove basement car park and through what is currently a concrete wall to the proposed Lot 1 basement car park.
[43] Condition 14 requires the surface of the existing Lambert Street driveway to be treated and finished to match the existing driveway and for the construction of external car parking surfaces. Incidentally, the work required for conditions relating to the existing driveway were thought by LPG's expert architect to involve work on the top part of the driveway and otherwise improving the driveway to make it more attractive as well as wider.
[44] Condition 28 deals with access, grades, manoeuvring and other matters and requires the construction and delineation or signing of areas that would permit the manoeuvring on Lot 1 of a SRV (which would include a removalist van or a refuse truck) and for the loading and unloading of the vehicles. Another condition requires an appropriate area for the storage and collection of refuse, including recyclables, in a position which is accessible to service vehicles on the site. Another condition requires parking on the site for 16 (including two visitor) cars and for the loading and unloading of vehicles within the site.
[45] Condition 27 concerns easements and refers to, among other things, "Easements (through the basement of existing development" as shown on certain approved plans which were received on 24 August 2010 "for access purposes" over certain lots that constitute Castlebar Cove in favour of Lot 1.
[46] Having regard to the history of the proposed development of Stages 1, 2 and 3 of the land owned by Sincere, the terms of the 4 August 2008 minutes and the evidence in general concerning the timing and process by which development approval was sought and eventually granted, it is reasonably apparent that the Council's approval of the original development application proceeded on the basis that the owner of the relevant lots, Sincere, proposed to develop Stage 3 of Castlebar Cove, and the Council granted a development approval on the basis that an easement through the basement car park of Stage 1 was required for the development of Stage 3 on Lot 1. Given the history of the matter, it would not also be surprising if the eventual approval that was granted by the Planning and Environment Court was based upon a similar assumption. However, counsel for LPG is correct to submit that the terms of the approval did not require, as a condition, that the new development on Lot 1 form part of an expanded Castlebar Cove development, whether described as Stage 3 or otherwise.
[50] Having obtained the development approval for Lot 1 in November 2010, Sincere did not proceed with its development, either as Stage 3 of Castlebar Cove or as a stand-alone development. Instead, soon after obtaining the development approval it sold Lot 1 to LPG.
[51] Sincere published an information memorandum to prospective purchasers in late 2010 and early 2011 which stated, among other things, that the development approval required the development to be "amalgamated into the Castlebar Cove Community Title Scheme". The information memorandum suggested that the benefits of amalgamation were that it would allow residents of the proposed development to access their basement parking via the secured basement of the Castlebar Cove residents' building. It incorrectly asserted that an access easement in favour of the 108 Lambert Street property had been granted by the respondent to facilitate the approved development of Lot 1. It also stated that amalgamation would allow residents of the proposed development to use the common facilities located within the Castlebar Cove residences, including a swimming pool, spa and an undercover visitor car park.
[52] LPG does not assert that it was misled by Sincere by these representations, and if it was, then its remedy would lie elsewhere.
[53] The sale to LPG seemingly was not made conditional upon a registered easement being granted over the common property of Castlebar Cove in favour of Lot 1. Any search by LPG in the course of its purchase of Lot 1 would have revealed that as owner of Lot 1 it would enjoy rights of access over its own land and the easement off Lambert Street. Any search would not have revealed a registered easement over the common property of Castlebar Cove in favour of Lot 1. The transfer of title to Lot 1 was registered on 4 February 2011.
[54] In October 2012, LPG sought a "pre-request" response from the Council in relation to proposed changes to the development on Lot 1. That request concerned increasing the number of units from seven to seventeen.
[55] By letter dated 14 May 2013, LPG, by Cardno HRP, requested the local authority to change the development approval by:
- (a) increasing the number of units to 16;
- (b) adding a level (i.e. to 9 nine levels);
- (c) increasing the footprint of the basement level;
whilst still having vehicular access through Castlebar Cove's basement.
[56] On 31 July 2013, the local authority gave notice that it was unable to consider the request due to a resident objecting to the proposed changes.
[57] On 11 October 2013 LPG applied to the Planning and Environment Court for declarations and other relief. During the proceedings, LPG:
- (a) represented that it intended to construct a building in accordance with the "pre-request" application or an alternative multi-unit dwelling by obtaining a "new development approval";
- (b) subsequently represented that it intended to construct a building in accordance with revised plans;
- (c) submitted plans indicating further changes to the development, including:
adding a further level (i.e. to 10 levels);
increasing the number of units to 10; and
increasing the number of bedrooms to 98 (i.e. accommodation for 200 people with an unknown number of car parks).
[58] LPG's proceedings in the Planning and Environment Court were dismissed for want of prosecution on 20 February 2015.
[59] The recent history of LPG's attempts to gain approval for a larger-scale development than currently approved is relevant to the application to this Court to grant an easement in terms of the 2008 document. The proposed easement contained in that document grants "an easement for a right of access, egress and regress (by pedestrian or Vehicles) for any and all purposes" over the common property of Castlebar Cove CTS 37148 in favour of Lot 1.
[60] The document does not limit the intensity of use, in terms of traffic and pedestrian numbers or the hours of day or night during which persons may exercise the right of access to the common property of Castlebar Cove, particularly by gaining entry to its secure underground car park. Clause 3 of the proposed easement obliges the body corporate for Castlebar Cove to not prevent or restrict "the Grantee or the Grantee's Associates in the exercise of the rights granted by this Easement". Those Associates include licensees and invitees who might be on Lot 1. Clause 3 goes on to oblige the body corporate to not obstruct access to the common property on Castlebar Cove to the Grantee and the Grantee's Associates and to ensure that any roadway or path is maintained and kept in good and trafficable condition. Whilst the Grantee must make good any damage caused to the body corporate's land and any improvement or structure on it, and cause as little inconvenience as practicable to the body corporate for Castlebar Cove and/or users of its land, the proposed easement gives extensive rights to the Grantee.
[61] The 2008 document, which contains the terms of the easement which the applicant applies to have imposed for the benefit of Lot 1, is remarkably lacking in detail about the regulation of vehicular and pedestrian access. It does not even make provision for the costs of construction (the original clause 6 having been struck out of the document) or indemnify the body corporate in respect of loss and damage which is suffered as a result of the construction work. Instead, clause 8.1 provides that each party indemnifies the other against any loss which occurs as a result of the other party's failure to strictly observe or perform the provisions of the easement.
[62] If granted in the terms sought, the easement would not limit use of the easement to the number of units currently approved for the development of Lot 1. However, counsel for LPG at the start of the case indicated that it would be prepared to accept a limitation to use of Lot 1 for no more than seven units and no more than 14 car parking spaces.
[67] A very substantial body of affidavit evidence is before the Court and many of the respondents were not required for cross-examination. LPG's accountant, Mr Latif, exhibited numerous documents to his affidavit as a matter of convenience, notwithstanding that he did not have personal knowledge of the truth of their contents. I treat his affidavit as a convenient repository of information.
[68] The chairperson of the body corporate committee of the respondent, Mr Walton, also swore an affidavit which exhibited numerous documents and which described the scheme land, the applicant's land, the Daly lots and relevant easements. Mr Walton, and a number of other residents, swore affidavits about the circumstances under which they came to acquire their lots in Castlebar Cove, and that there was no disclosure to them from the seller (Sincere) or its agent in relation to the proposed easement.
[69] Various residents gave evidence about their concern in relation to the granting of an easement. This included the inconvenience to them from noise and dust during the construction period, an ongoing loss of privacy and noise from additional traffic if the easement is granted. The residents value highly their privacy and the security offered by present access arrangements through their secured basement car park. They expressed concern about the presence of strangers on the Castlebar Cove site.
[70] Although not specifically addressed in the proposed easement, LPG's case is that the easement will allow persons on Lot 1 to move rubbish bins from the Lot 1 basement car park through the Castlebar Cove underground car park, up the ramp and to leave them for collection on Castlebar Cove's common property. This is said to be consistent with the development approval conditions which require an appropriate area for the storage and collection of refuse in a position which is accessible to service vehicle "on the site". The site referred to in the condition is said by LPG to extend to the Castlebar Cove land. Leaving aside the meaning of "the site" in that condition, the proposed easement does not clearly confer a right to store refuse bins on Castlebar Cove after they have been transported through the basement and left on the ground of the Castlebar Cove common property. If LPG wished the easement to extend to a right to store refuse on Castlebar Cove's land then this matter would need to be clearly stated in any easement and not left to become a matter of dispute between neighbouring body corporates, their managers and residents. This is only one matter which is not adequately addressed in the proposed easement document.
Alternative access to allow the proposed development without access through Castlebar Cove
[75] LPG sought changes to the development approval under revised drawings prepared by its architect, Mr Thompson, on the basis that the development of Lot 1 would be integrated with Castlebar Cove, with shared facilities. Mr Thompson was under the misapprehension that this was LPG's intention, when clearly it is not. This is not a criticism of Mr Thompson. It is simply to say that he proceeded on the basis that Lot 1 would form part of an integrated Castlebar Cove, and that the opinions that he expressed in his evidence were given on that false assumption. LPG has no such intention and the Castlebar Cove scheme no longer contemplates a Stage 3 expansion or any development on Lot 1.
[76] LPG does not suggest that it has sought and been refused Council permission to modify Condition 27 so as to remove the easement via the Castlebar Cove car park, and to have vehicular access by the Lambert Street driveway. As noted, Conditions 14 and 28 require that driveway to be modified and to be used for vehicles, including those of visitors and removalist trucks. No proposal has been put by LPG to Council to develop Lot 1 without access through Castlebar Cove. Instead, LPG relies on the development approval that was granted to Sincere at a time when it appears that Sincere intended, or at least told others that it intended, that Lot 1 be an expansion of Castlebar Cove.
[77] The respondent's architect, Mr Peabody, who was called as an expert witness, advanced an alternative proposal which would allow for the approved building to be constructed on Lot 1 without access via Castlebar Cove, including provisions for refuse collection to occur within that site. Mr Peabody's proposal offers the same amenity in a slightly different configuration, whilst allowing the development to be self-contained. It provides for access by the Lambert Street driveway and includes some landscaping and the removal of vegetation in the form of weeds. According to Mr Peabody, whose evidence I accept, the alternative development provides similar amenity. In some respects the amenity is improved, in others, it is slightly reduced, but overall they are comparable.
[78] Mr Thompson expressed a preference for the approved development, but, as noted, any implied criticism of Mr Peabody's alternative was based upon the false assumption that the approved development was to form part of Castlebar Cove.
"(a) ensure safe and functional access and parking to and from Lambert Street that accommodates all necessary vehicle types;
(b) do not fundamentally change the outcomes provided for in the development approval - it is not a substantially different development;
(d) are generally complaint [sic] with the planning scheme provisions and, as such, if a development application was lodged for this type of development, Brisbane City Council would likely approve it;
(e) demonstrate that there is no overriding necessity for any access easement through the basement of Castlebar Cove."
[83] It is acknowledged that the proposed changes in access arrangements would not be considered "generally in accordance with" the existing approval. They would require an application. The evidence did not reveal any significant issue concerning compliance with any relevant planning scheme which would operate as an impediment to approval being granted for the alternative design layout proposed by Mr Peabody and Mr Beard.
[84] LPG's town planning expert, Mr Reynolds, gave evidence that a right of user through the basement wall of Castlebar Cove "will be necessary if functional access cannot be provided [along the existing driveway on traffic engineering grounds] or procedurally a new development application [changing all access to the driveway] cannot be properly made" and, impliedly, thereafter approved. Mr Reynolds accepted, from a planning perspective, that redirecting all traffic via the driveway from Lambert Street does not "fundamentally change the development outcomes" for anyone other than the co-users of the existing driveway (being the Dalys) and the users of Lot 1.
[85] Both the existing development approval and any application to change access in accordance with the alternative proposed by Mr Peabody and Mr Beard will require the existing driveway to be improved for the benefit of all users, including the Dalys. There would be an issue concerning the intensification of use of the driveway brought about by all traffic in and out of the development using the Lambert Street driveway and, according to Mr Reynolds, this will result in a loss of amenity for adjoining premises and the users of the proposed development at 108 Lambert Street. That said, the grant of an easement through Castlebar Cove will also result in a loss of amenity for residents of adjoining premises.
[86] Subject to a legal issue about whether the Dalys' consent to an application to change access would be required, the evidence of the expert town planning witnesses is that both the proposed development with its approved access arrangement and a development with the modified access arrangements proposed by Mr Peabody and Mr Beard comply with relevant planning scheme provisions.
[87] The legal issue identified in the evidence of the planning experts is whether the consent of the Dalys would be required in order to make an application for a change in the approval or a new development application. Section 369 of the Sustainable Planning Act 2009 (Qld) governs the procedure if a person wants to make a permissible change to a development approval. Section 371 provides that if the person making the request is not the owner of the land to which the development approval attaches, the request must be accompanied by the owner's consent unless certain conditions are satisfied. Under s 371(c) the owner's consent is not required if it would not be required under s 263(1) if a development application were made for the requested change. Other exceptions exist including where the responsible entity is satisfied that, having regard to the nature of the proposed change, the owner has unreasonably withheld consent, and the requested change does not materially affect the owner's land. Insofar as s 371(c) directs attention to s 263(1), the consent required under s 263(1) for the making of an application for a material change of use of premises does not apply to the extent the land subject to the application has the benefit of an easement and the development is "not inconsistent with the terms of the easement".[5]
[88] LPG identifies the risk that an application of the kind identified by the town planning experts may require the consent of the Dalys to change access arrangements and that their consent will be refused. The town planning experts, quite rightly, did not seek to venture an opinion on what is essentially a legal issue. Moreover, LPG does not seek a ruling by me on the legal question of whether the Dalys' consent would be required or not. It rests its case on the fact that there is said to be a risk that their consent will be required to an application to modify access arrangements. The identified issue is whether the development "is not inconsistent with" the terms of the easement. The Dalys might argue that the modification involves an intensification of use which was not contemplated by the terms of the easement. An intensification of use may be relevant to their amenity, but the relevant issue is whether the proposal is inconsistent with the terms of the easement. In that regard, the easement does not limit access to a certain number of vehicles.
Is it reasonably necessary in the interests of the effective use of Lot 1 in a reasonable manner for it to have access via the Castlebar Cove car park in the manner proposed?
[97] This is the principal issue in the case. The respondent submits that LPG has not satisfied the test of reasonable necessity which, according to authority, means more than mere desirability or preferability over the alternative means.[6] The respondent contends that LPG has not proven its case because the means of access proposed by it, namely an easement through a secure basement car park, in the manner proposed, is not "reasonably necessary" in circumstances where the alternative proposed by the respondent will allow the effective use of Lot 1 for the kind of development proposed by LPG. In addition, the respondent submits that even if LPG's proposal was thought to be more desirable than the alternative proposed by it, s 180(1) is not concerned with the most preferable or desirable means of access. An order under s 180 interferes with proprietary rights and the greater the burden of the imposition that is sought, the stronger the case needs to be to justify a finding of reasonable necessity.[7] In that regard, for the right of user to be reasonably necessary for a development, the development with the right of user must be at least substantially preferable to development without the right of user.[8]
[98] LPG's case is that it has a development approval which is current and that the use of Lot 1 in accordance with the approval is an effective use in a reasonable manner of its land. The approved development contemplates access through the basement of Castlebar Cove, being land to which the development approval applies, and no other access is approved. LPG's written submissions criticised the respondent's approach as being to "hypothesise an alternative development with alternative access" which was said to be "uncertain and speculative". That written submission was not pressed in the light of the expert evidence. Instead, the alternative proposed by the respondent was said to have its own problems, including the legal risk that consent would be required for the necessary application to vary access arrangements. I found that risk not to be a significant one.
[99] The principles discussed by Douglas J in Lang Parade make alternative means relevant. An applicant for an order under s 180 need not demonstrate that there is no alternative way to access the land. It does, however, need to meet the statutory requirement of "reasonably necessary" in the context of alternative means of access.
[110] The Court must be satisfied that it is consistent with the public interest that Lot 1 should be used in the manner proposed before an order of the kind referred to in s 180(1) shall be made. LPG submits that it is consistent with the public interest that land be developed in accordance with a development approval for the land. That proposition may be accepted at a level of generality.[10] However, that general principle requires consideration of the terms of the development approval, which specifically include a requirement to obtain an easement. Framed differently, it might be said to be in the public interest for the land to be developed if the relevant easement could be obtained and the other conditions of the approval satisfied.
[111] The words "in the manner proposed" in s 180(3)(a) direct attention to the applicant's particular proposal.[11] The particular proposal is for access to Lot 1's basement car park by a to-be-constructed hole in an existing wall pursuant to an easement which is lacking in detail concerning the regulation of access. The means of access proposed reduces the security and privacy of residents of Castlebar Cove. Leaving to one side the lack of adequate consideration or compensation (being matters best addressed in the context of s 180(3)(b) and (c)), and focusing upon other aspects of LPG's particular proposal, I am not satisfied that it is in the public interest that Lot 1 be used in the manner proposed in circumstances in which the proposal is for an easement which is lacking in detail so as to regulate relations and avoid conflicts between different owners and body corporates of different schemes. The position may have been otherwise if the easement had been a temporary one, pending the establishment of a new scheme on Lot 1 and the absorption of Lot 1 into a scheme which would regulate access and provide for the enforcement of rules.
[112] I turn to the question of adequate compensation for loss or disadvantage which the owners of the common property may suffer from the imposition of the proposed easement. Mr Latif's affidavit states that LPG is prepared to carry out at its expense any survey work and the preparation of a plan or plans in registrable form. It says nothing about other costs associated with the construction of the easement, or any payment to compensate the respondent for the cost of maintaining, at all hours of the day and night, access through its basement, whilst attempting to maintain the security of its own car park.
[128] LPG has not established that it is reasonably necessary in the interests of the effective use in a reasonable manner of Lot 1 to have access by the Castlebar Cove car park in the manner proposed by it. The respondent's alternative proposal allows the effective use of Lot 1 for the development which LPG currently proposes, namely a seven unit development with 14 basement car parks, through the use of an existing driveway over which Lot 1 enjoys legal rights.
[129] I am not satisfied that it is consistent with the public interest that the proprietary rights of owners of the common property of Castlebar Cove should be interfered with in those circumstances. This is notwithstanding the fact that Castlebar Cove's basement was designed and constructed to accommodate the creation of a gap in the wall to facilitate the expansion of the Castlebar Cove scheme and that the current development approval extends to the respondent's land and envisages the grant of an easement through its basement car park. The effective use in a reasonable manner of Lot 1 in the manner proposed, namely the development of the currently-proposed high-rise, is allowed by the alternative proposed by the respondent. LPG has not shown otherwise or that there is a significant risk that the alternative proposal will not be approved if submitted to the Council.
[130] The existence of that reasonable alternative means of access and the degree of interference with property rights and privacy associated with the easement proposed by LPG means that the easement proposed by LPG is not reasonably necessary. In addition, I am not satisfied that it is consistent with the public interest that Lot 1 should be used in the manner proposed by LPG. In any event, there is insufficient evidence concerning details of the practical arrangements proposed by LPG for the indefinite duration of the easement for me to be satisfied that any loss or disadvantage which may be suffered from the imposition of the easement can be adequately compensated in money.
[131] Most importantly, the application should be refused on s 180(3) grounds because LPG has not satisfied me that the respondent's refusal to agree to the imposition of an easement in terms of the 2008 document is in all the circumstances unreasonable. The proposed easement contains no provisions for adequate consideration on account of the obligations imposed upon Castlebar Cove by the proposed easement or any mechanism for the respondent to be compensated for the costs associated with meeting the obligation to provide access in the manner proposed for an indefinite period. The respondent is correct to submit that the $1 sum provided by way of compensation is woefully inadequate and unreasonable in all the circumstances.
[1] Lang Parade Pty Ltd v Peluso [2005] QSC 112; [2006] 1 Qd R 42 at 47-48 [23] ("Lang Parade") (internal citations omitted).
[2] Property Law Act 1974 (Qld), s 180(4)(a).
[3] Property Law Act 1974 (Qld), s 180(4)(b).
[4] Integrated Planning Act 1997 (Qld), ss 3.5.11(6) and 3.5.28 (being the Act which was in force when the development application was made) and the Sustainable Planning Act 2009 (Qld) ss 244 and 245 (which is currently in force).
[5] Sustainable Planning Act 2009 (Qld), s 263(2)(a).
[11] Re Seaforth Land Sales Pty Ltd v Land (No 2) [1977] Qd R 317 at 320-321, followed in Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 at [15].
Lambert Property Group Pty Ltd
Body Corporate for Castlebar Cove [2015] QSC 179
(a) use of Lot 1 in the manner proposed is consistent with the public interest;
(b) the owners of the Castlebar Cove land can be adequately recompensed in money for any loss or disadvantage which they may suffer from the imposition of the easement over their common property; and
(c) the respondent's refusal to accept the imposition of an easement on the terms contained in the 2008 document is "in all the circumstances unreasonable"?
[19] If LPG satisfies the Court that an order for a statutory right of user in terms of the 2008 document should be made because the s 180(3) factors are satisfied, then it will be necessary to consider a provision for payment by way of compensation or consideration as in the circumstances appears to be just,[2] and such other terms and conditions as may be just.[3]
[28] The statement made clear that Lot 1 did not then form part of the scheme. Lot 1 (the Stage 3 land) was described as being intended to be subdivided in order to give effect to Stage 3 of the development. Registration of the building format plan for Stage 3 and a new community management statement for that stage of the development was intended to occur. The community management statement for the existing Castlebar Cove scheme recorded: "the Stage 3 Land, as then subdivided, will then form part of the Scheme". (emphasis added)
[29] Another part of the scheme document set out by-laws for the future development of Stages 2 and 3. Another schedule to the document contained the details for future development of the scheme, including establishing common property, utility infrastructure and utility services and connections.
[47] To the extent that the Planning and Environment Court, and before it the Brisbane City Council, granted approval in the expectation that Lot 1 would form part of a larger scheme, it might have assumed that the proposed easement would be negotiated between the owners of the relevant lots so as to facilitate construction of, and access to, the new basement car park on Lot 1 and that, at a later date, after Stage 3 was developed and a scheme established in respect of it, access rights would be governed by by-laws and the body corporate of the combined scheme. To the extent the approving authorities may have contemplated a different course, with the development of Lot 1 as a discrete development which was not intended to form part of an expanded Castlebar Cove scheme, the authorities might be taken to have assumed that it fell to a party seeking to satisfy the development conditions to obtain the required easement, either through negotiation with the owners of the proposed servient tenement or by the grant by a court of an easement under s 180 of the PLA.
[48] In any case, it is not suggested by LPG that Brisbane City Council or the Planning and Environment Court obliged the current owners of the common property at Castlebar Cove to grant an easement, let alone to grant an easement in accordance with the August 2008 document.
[49] In the circumstances which currently prevail, the development approval is subject to numerous conditions including a condition that an easement be obtained. The development approval should not be interpreted as amounting to a statement that the forms of access originally proposed by Sincere are the only, let alone the best, means of access to Lot 1. Expressed differently, the approval is a statement to the effect that you can develop Lot 1 according to the plans and drawings and conditions contained in the approval if you are able to obtain an easement through Castlebar Cove, including its secured underground car park. If the parties whose property rights and interests were to be adversely affected by an easement were not prepared to grant the required easement by agreement, after negotiating suitable terms and a suitable price, then the approved development would depend upon an easement being granted by the Court.
[63] The respondent and the residents whose properties and interests are affected by the proposed easement remain concerned about the consequence of granting vehicular and pedestrian access through its presently-secured basement car park by the creation of a hole in an existing wall. Once granted, there would be scope under s 180(4)(d) of the PLA for the owner of Lot 1 (not necessarily LPG) in the future to apply to modify the easement if "some material change in the circumstances has taken place since the order imposing the statutory right of user was made".
[64] LPG says that it intends to commence construction of the basement of the building on Lot 1 within the next six months, having obtained an extension of the currency period of the development approval to 19 November 2015. Its building contract (if any) for the basement or any other part of the proposed building is not in evidence, and the respondent raises a question about the financial capacity of LPG to undertake the development, despite it having unencumbered title to Lot 1. In any case, there is nothing to stop LPG from selling the property once it has obtained the grant of an easement pursuant to s 180. LPG might sell Lot 1 to a developer which, as LPG has done, seeks to increase the scale of development on Lot 1 and gain approval to do so. For example, if LPG, or more probably, a buyer from it, wished to increase the scale of development in order to make the project financially viable or more profitable, and obtained development approval to do so, it might make an application under s 180(4)(d) to modify the easement to reflect the modified development approval. It might argue, as LPG has done in this proceeding, that such an easement is reasonably necessary in the interests of effective use in a reasonable manner of Lot 1 by carrying out the approved development of the land.
[65] This may be characterised as a kind of floodgates argument in the light of LPG's offer to limit the easement to the currently-approved development of seven units and 14 underground car spaces. I am concerned with the presently-proposed easement in the light of the current development approval, not a possible future application to modify the easement in the light of a different scale of development. That said, when one is being asked to make an order which interferes with the proprietary rights of an owner of land and considering the implications or consequences of doing so, it is appropriate to have regard to the potential for a future modification of the easement which would then be a permanent feature of the land through the creation of an underground gap between basement car parks. If, for example, a future owner of Lot 1 was to reasonably conclude that the present scale of approved development did not make the project financially viable and that the effective use of Lot 1 required a taller tower or more units on each floor, and if the Council approved such a modified development, then that owner of Lot 1 would have grounds to apply for a modification of the easement which had been granted.
[66] Given the recent history of LPG's attempts to modify the approved development, the respondent's concern about the future and the consequences of granting an easement are not without justification. My focus, however, remains upon the current proposal and LPG's offer to limit any easement to the size and scale of the currently-approved development.
[71] If granted in the terms sought, the easement would require Castlebar Cove to facilitate access by residents, licensees and invitees of the Grantee and its successors. Castlebar Cove would be required to not prevent or restrict access and this would require it, through its manager, to maintain access for residents of a neighbouring property and others who they invited into their basement car park area. It would require the issue of security fobs to allow access to Castlebar Cove's secure basement car park, but not its lifts, and to address issues when those fobs did not work or were lost. Because the cost of establishing and managing those arrangements for an indefinite term were not estimated, it is impossible to guess at their cost on an annual basis. This might have implications in connection with s 180(3)(b). The present issue, however, is that the proposed easement requires Castlebar Cove to bear the cost of maintaining a right of access for members of an unrelated scheme.
[72] The proposed easement does not descend to any detail about the management of traffic movement or its speed or matters which might be addressed through by-laws and other mechanisms were Lot 1 to be absorbed into a common scheme.
[73] Specifics have not been addressed about how any doorway or firewall between the two properties would be operated, either through sensor pads or magic eyes, and whether such a barrier would be closed at all times of the day or night.
[74] In summary, the terms of the easement document which LPG's application asks the Court to impose on Lot 1 are remarkably deficient in detail, and LPG's evidence has not considered important details about matters that are not addressed by its terms. Its general approach was that these matters "can be sorted out in determining appropriate compensation". But the devil is in the detail. The present application proposes that the respondent be paid $1 as consideration for the granting of an easement of indefinite duration, which imposes substantial obligations upon the respondent and which is lacking in detail about practical arrangements to manage access rights and their cost.
[79] The land in the general vicinity, including Castlebar Street outside Castlebar Cove, is characterised by steep roads and driveways. Two traffic engineers gave evidence. The substance of their evidence is that neither the approved development nor the alternative was ideal and that each required a relaxation of the desirable standards in the Transport, Access, Parking and Servicing Code. The development approval for Lot 1 required significant relaxations on both the width and gradient of the Lambert Street driveway. The implementation of the existing development approval would require some modification of the Lambert Street driveway close to Lambert Street. The respondent's traffic engineering expert, Mr Beard, has proposed a remodelled driveway which is said to be safer (in grade and width) than the design that was approved by Council on the basis of performance-based outcomes. The regrading does not impede the Daly lots.
[80] The rerouting of all access through Lambert Street would require minor modifications which appear achievable within existing gradients and which can be achieved without major cost or engineering difficulty. Mr Beard's evidence is that a re-design of the driveway is feasible and would contain desirable changes and that improvements to the approved design are possible.
[81] There is no significant conflict between the evidence of Mr Beard and Mr Gallagher with respect to access through Lambert Street. I accept Mr Beard's evidence, which was not the subject of any real challenge, that Lambert Street will, after development, have "marginally better" access and that the driveway to Lambert Street is "capable of being improved to the point where it would, in fact, be superior to the Castlebar Street access".
[82] Town planning experts gave evidence. Needless to say, there are no provisions in the Brisbane City Plan 2000 or the Brisbane City Plan 2014 that mandate access through an adjoining property. The planning scheme requires safe and functional vehicular access and parking to service a development of this scale. According to Mr Priddle, the town planning expert called by the respondent, the changes proposed by Mr Peabody and Mr Beard:
[89] The evidence, in particular Mr Walton's evidence, and the submissions refer to the reciprocal nature of the easements which constitute the Lambert Street driveway. The reciprocal easements are not limited in terms of the number of vehicles which may use them. Both the Dalys and the owner of Lot 1 have the benefit of their own land and a reciprocal easement for the purpose of future development of their land. If, for example, the Dalys wished to demolish the existing townhouses and build a high-rise, there seemingly would be nothing to prevent the occupiers of the new building from using the easement, provided planning permission was granted to the new development. Depending upon the intensity of the development, there may be town planning and traffic engineering issues. However, if they were resolved, there would be nothing preventing use of the easement. On this scenario, the Dalys could lodge a development application in respect of the easement land without LPG's consent because the proposed development would be "not inconsistent with" the terms of the easement, which is unlimited in terms of intensity of use. The same may be said of the mutual or reciprocal easement which benefits Lot 1.
[90] The proposed development, with all traffic access by the Lambert Street driveway, does not appear to be inconsistent with the terms of the easement.
[91] I recognise that there may be arguments to the contrary. However, neither easement is limited in terms of use, for example, to access low-rise dwelling houses. The terms of each would seem to permit the easement to be used for access to a high-rise development. The proposed development on the scale currently approved for seven units and 14 car spaces for residents would not appear to be inconsistent with the terms of the easement. On this basis, there would not seem to be a significant risk that the Dalys' consent would be required to make the necessary application for approval of the alternative access arrangement proposed by Mr Peabody and Mr Beard. It would then be a matter for the Council to consider the application. The evidence before me does not identify any significant town planning issue to approval being granted for the alternative access arrangement.
[92] Finally, I turn to the expert evidence in relation to engineering matters, which was given by structural engineers, Mr Neil and Mr Ainsworth. The structural engineering drawings for Castlebar Cove identified an opening of about eight metres, requiring the removal of two existing piers in the Castlebar Cove basement wall. However, the approved drawings for Lot 1 identified an opening of about 10.5 metres, requiring three piers to be removed. A more recent drawing made further modifications to revert to an opening of about eight metres.
[93] It is unnecessary to address the detail of the evidence of the structural engineers. Certain risks were identified associated with undertaking the work in question, but it appears that the work is feasible through the adoption of proper practices to use props when removing the structural support for the wall. The likely period of construction is eight weeks. Mr Ainsworth's evidence identifies a risk of leakage through a seal and problems with successfully waterproofing the proposed interface between the adjoining basements. He says that the risk should not be underestimated and that seals of this type have a poor track record and require frequent repair.
[94] LPG responds to the respondent's submission that the work carries not immaterial risks in circumstances in which LPG has not undertaken to adopt a "best practice" model. I accept LPG's responsive submissions that the risks identified by the structural engineers are manageable and capable of being reduced to an acceptable level. This might be done by the imposition of appropriate conditions in the terms of the easement itself to supplement whatever requirements are imposed by relevant standards and building approvals.
[95] The risk of seals failing should not be disregarded and the costs of any loss caused by that and their repair might also be addressed by a suitably-worded indemnity to be given by the owner of Lot 1 and by making the owner of Lot 1 legally responsible for the costs of inspection, maintenance and repair of the seals and the rectification of any damage. I should mention that none of these matters have been addressed in the easement that is proposed or in submissions. This is a further illustration of the fact that LPG's application is in terms of the 2008 document rather than a document which contains appropriate commercial and other terms.
[96] Whilst s 180(4)(b) contemplates that an order under s 180 will include "such other terms and conditions as may be just", the Court only turns to those matters if satisfied that an order of the kind referred to in s 180(1) should be made. In order to be satisfied that such an order should be made, the Court must be satisfied of the matters contained in
s 180(3). The lack of detail in the terms of the easement proposed by LPG is a matter to which I will return in considering s 180(3) issues, including the issue of adequate compensation and whether the respondent's refusal to agree to the imposition of an easement in terms of the 2008 document was unreasonable in all the circumstances.
[100] Importantly, both the approved development and the alternative require work to be undertaken on the Lambert Street driveway. The owner of Lot 1 has a legal right of access by virtue of ownership and an existing easement to Lambert Street.
[101] The first principle identified by Douglas J in Lang Parade is that one should not interfere readily with the proprietary rights of an owner of land.[9] That principle and the other principles identified by his Honour have been followed in later cases. LPG's proposal involves an interference with proprietary rights. The respondent's alternative does not.
[102] Subject to the legal issue which I have addressed concerning consent of an owner to the making of an application to amend the access route to Lot 1's basement car park, there is no significant town planning impediment to approval of such an application so that vehicles travel along the existing Lambert Street driveway in accordance with existing rights of access. Although the existing approval does not require, in terms, widening and re-grading of the Lambert Street driveway, certain of those conditions which deal with access via the Lambert Street driveway will require improvements to that driveway. Implementation of the current development approval would, in practical terms, necessitate landscaping and other work to enhance the appearance and practical performance of the Lambert Street driveway.
[103] LPG has not established that Lot 1 cannot be developed with the kind of seven unit, 14 car space arrangement which it says it intends to construct, without access via the basement car park of Castlebar Cove.
[104] The alternative proposed by the respondent appears to be an effective use of Lot 1 to develop it, and to make effective use of the lot in a reasonable manner.
[105] Based upon the expert and other evidence, I regard the respondent's alternative as a preferable method for the proposed development than the approved means of access. The approved means of access may have been preferable if Lot 1 was to form part of a common scheme, but it is not.
[106] The fact that the previous owner of Lot 1 obtained the approval of the Planning and Environment Court to a modified application, which originated in an application which was made at a time when Lot 1 was intended to be developed and incorporated into Castlebar Cove, should be taken into account. It is evidence that the Planning and Environment Court concluded that, if the required easement was provided and other conditions were satisfied, the development might proceed. However, that approval should not be equated with an opinion that the approved development is preferable to other forms of development, including the alternative but essentially similar form of development proposed by the respondent. LPG has not sought the Council's response to such an amended form of development. The town planning evidence, particularly the evidence of Mr Priddle, and the other evidence, suggests that the proposed development, with the modifications to access proposed in the respondent's alternative, is an effective use of Lot 1, and that the Council would be unlikely to reject such a proposed development on town planning or other grounds.
[107] The fact that the approved development may constitute an effective use of Lot 1 (considered in isolation) is not sufficient to meet the statutory test of reasonable necessity. A viable alternative means of access has been identified in the respondent's proposal, being an alternative which avoids interference with the proprietary rights of the owners of land at Castlebar Cove and personal inconvenience to them. That alternative will allow the use of Lot 1 to construct essentially the same building which LPG has approval to build. In the circumstances, I am not satisfied it is reasonably necessary in the interests of the effective use in a reasonable manner of Lot 1 to have access via the Castlebar Cove car park in the manner proposed.
[108] I am not even satisfied that development of Lot 1 with the proposed right of user is more desirable or preferable to its development in accordance with the alternative proposed by the respondent, or some similar alternative which would allow access by the Lambert Street driveway to Lot 1's basement car park to allow up to 14 cars to be parked there. If, as LPG would have it, the comings and goings of residents from the basement car park would cause minimal inconvenience to the residents of Castlebar Cove, given the relatively low intensity of such vehicular traffic each day, then the passage of the same amount of traffic along the existing driveway would not be thought to impose unacceptable inconvenience to residents in the vicinity of the existing driveway. I am not satisfied that LPG's proposal is more desirable than the respondent's alternative, having regard to relative loss of amenity, the extent of interference with proprietary rights and other relevant factors.
[109] Even if I had been satisfied that LPG's proposal was more desirable or preferable to the alternative proposed by the respondent, I would not have concluded that it was substantially preferable to it. I conclude that development of Lot 1 with the proposed right of user is not substantially preferable to development without the right of user.
[113] Rather than address practical aspects of the day-to-day operation of the easement, and their cost and inconvenience, LPG tended to treat these matters as something to be worked out in the future in the course of determining appropriate compensation. It also tended to suggest in its submissions that there was no real risk to the privacy and security of owners of Castlebar Cove and that their security would be preserved by issuing fobs to residents of the Lot 1 development, so that security would remain essentially the same. If a plan along these lines was adopted it would come at a cost and there also would be a cost in managing the allocation and replacement of fobs.
[114] LPG's proposal seemingly is to allow for refuse bins to be transported through, and stored on, the common property of Castlebar Cove. But there was no detail about how and when the transit of rubbish would be arranged, by whom and at whose cost.
[115] The lack of appropriate detail about the practical operation of the proposed access, including the operation of any firewall and at whose cost it would be operated and maintained, makes it hard to assess the financial cost to the respondent in meeting the obligations which the 2008 easement document would impose upon it.
[116] The concerns of residents about a reduction in their security and the presence of strangers on the Castlebar Cove site are not unfounded. It is hard to assess in financial terms adequate compensation for the actual and perceived loss of privacy and reduction in security among people who presently feel secure when entering and leaving their cars in the secure basement car park. I suspect that it would be possible to adequately compensate them for any justifiable concerns.
[117] It also might be possible to compensate the respondent for direct financial consequences of operating this novel means of access, which is distinctly different from a common easement in the suburbs or countryside associated with a battle-axe shape block of land or an easement where persons can have a common key to a padlock on a common gate. It might be possible, in theory, to fashion a term by which the costs to the respondent on an annual basis could be worked out. However, the lack of detail concerning the role which the respondent's manager would play, and how the time and resources required to maintain access for the benefit of Lot 1 would be worked out, would be something of a practical challenge. I am not satisfied that those costs can be worked out in a way that would allow them to be adequately assessed and compensated.
[118] Whatever the loss or disadvantage which will be suffered from the imposition of the easement may be in respect of an easement which is for an indefinite duration, and unlimited in terms of the hour of the day or night at which the respondent would be required to provide access, adequate compensation for that loss and disadvantage would vastly exceed $1.
[119] This brings me to the principal reason to refuse the application on s 180(3) grounds. As previously mentioned, LPG has no basis to demand the grant of an easement in terms of the 2008 document in return for the payment of a consideration of $1, being the consideration stated in that document.
[120] In these proceedings LPG did not propose the imposition of an obligation of user in the form of an easement according to commercial terms. It sought the imposition of an easement on the terms of the 2008 document. It did not advance a proposal to the respondent for the grant of an easement (whether on the sparse terms of the 2008 document or one which described respective obligations and arrangements in more detail) with the compensation or consideration to be agreed or, failing agreement, to be fixed by the Court in accordance with s 180(4)(a). Its proposal was to pay $1 in order to interfere with existing property rights and to impose an obligation on the respondent which conferred substantial benefits upon Lot 1, and therefore enhanced its value.
[121] This is not simply a case in which LPG did not offer to pay a reasonable consideration or reasonable compensation at the time the proceedings were commenced. It maintained the position at the hearing of the matter that the power under s 180 should be exercised in its favour in terms of an easement which provided only for a consideration of $1.
[122] The fact that the respondent's basement was designed to accommodate the removal of the wall in question and the development approval applies to the respondent's basement did not make it unreasonable for the respondent to refuse to agree to the imposition of an easement in terms of the 2008 document.
[123] LPG submits that the respondent's refusal to agree to accept the imposition of a statutory right of user in terms of the easement which the AGM resolved to grant on 4 August 2008 is unreasonable given, among other things, that no satisfactory explanation was given for the respondent's change of position. However, there is a satisfactory explanation for the respondent's refusal to agree to the imposition of an easement in terms of a resolution which:
(a) was passed through the improper use of powers of attorney;
(b) was not disclosed to individuals who later acquired apartments in Castlebar Cove; and
(c) neither Sincere nor anyone else took steps to progress through the granting and registration of an easement.
[124] In any case, the August 2008 resolution was passed in circumstances in which Sincere then intended to progress Stage 3 as part of a larger Castlebar Cove development. The easement expressly provided that it would be extinguished if the development of Stages 2 and 3 did not proceed. Stage 3 will not proceed and that is a good reason alone for the respondent's change of position.
[125] The easement which LPG seeks to have imposed on the owners of Castlebar Cove is one which imposes significant obligations upon one body corporate for the benefit of the owner of an adjoining property which has no intention of developing its property to form part of an amalgamated scheme.
[126] If LPG or a successor in title develops Lot 1 in accordance with the development approval and establishes a new scheme to govern it, the respondent would be maintaining a right of access for members of an unrelated scheme, who were not required to make any financial contribution to the benefits they enjoyed. It was not unreasonable of the respondent to refuse to accept the imposition of the obligations contained in the 2008 document in circumstances in which the only consideration provided for was $1.
[127] The respondent's refusal to agree to accept the imposition of an easement in return for the payment of $1 was not unreasonable in all the circumstances. In the circumstances, LPG has failed to satisfy the matter stated in s 180(3)(c).
[132] LPG has failed to establish the conditions for the making of an order under s 180 of the PLA over the common property of Castlebar Cove CTS 37148 in terms of the easement document which was adopted on 4 August 2008. Because it has failed to establish the conditions for the making of an order under s 180, the occasion to include in any such order terms and conditions that are just, does not arise. If it had, there was insufficient evidence about the detail of the practical arrangements to allow such terms and conditions to be drafted and LPG did not advance the kind of terms and conditions which one would expect in an easement which regulated the conduct of such an unusual easement. Whilst the terms of the 2008 document may have been appropriate for a temporary easement pending the establishment of a scheme on Lot 1 as part of Stage 3 of Castlebar Cove, they are not the kind of commercial and comprehensive terms which would be expected to govern relations between the owners and residents of entirely different developments. In the circumstances, it is unnecessary to attempt to work out the comprehensive terms and conditions which would be required to be imposed under s 180(4) if an order had been made.
[133] The application will be refused.
[134] There is no reason why costs should not follow the event. The orders will be: