Legislation: Integrated Planning Act 1997 (Qld), ss 1.3.5, 3.2.1, 3.2.1 (a), 3.2.1 (3), 3.2.1(7) and 3.2.1(8)

Land Title Act 1994 (Qld), s 167

Property Law Act 1974 (Qld), ss 53 and 53(2A)

Real Property Acts 1861 - 1963 (Qld), s 67

Cases: Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors [1980] HCA 1; (1980) 145 CLR 485, considered

Counsel: G Gibson QC and with him K Barlow for the applicant

Solicitors: Praeger Batt solicitors for the applicant

[1] This is an application by the first applicant ("Liberty Oil") which conducts a service station with an attached "workshop" and "convenience shop" on land owned by the second applicant ("Westway") at Braun Street, Deagon, Queensland. The area of that land is 2125m2.

[2] At the present time the gross floor area of the service station - workshop - convenience shop is 193m2.

[3] On 18 July 2001 Liberty Oil made a development approval application required under the provisions of the Integrated Planning Act 1997 ("The Act") for permission to vary the size and use of buildings currently on the land by extensive alteration involving removal of the "workshop" which currently occupies half the total area of the building and extending the "convenience shop" into the area formerly used as a "workshop".

[4] The second applicant ("Westway") has consented as owner of the land to the lodgment of the development application.

[5] The respondent ("Fanigun") is the owner of two parcels of land adjacent to the land owned by Westway. Those parcels of land are contiguous and share with the land owned by Westway a frontage to Braun Street but also have a frontage to Musgrave Street which joins Braun Street on its eastern side.

[6] Prior to the 1960s, the land currently owned by Westway and the land now owned by Fanigun to its north, was in the one ownership. In those days the Fanigun land was used as a caryard and the land owned by Westway was used as a garage. In the early 1960s however, the then owner of the Fanigun land sold the land and service station erected on it, which is currently owned by Westway, to Caltex Oil (Australia) Pty Limited ("Caltex").

[7] Prior to that sale access to the service station had been obtained by passing across a corner of the land currently owned by Fanigun to facilitate entry to the service station sold to Caltex. Because the land was then all in one ownership no steps had been taken to create an easement over the Fanigun land to give access to the land sold to Caltex Oil.

[8] However, upon sale of the service station land to Caltex, the owner of the land currently owned by Fanigun (Mrs Gollan) granted an easement to Caltex in common form. The easement was granted on 18 September 1963. The relevant part of the memorandum of grant of easement reads as follows -

"...to the registered proprietor and occupier for the time being of the dominant tenement or any part thereof and its tenants servants visitors and licensees in common with all others having a like right the following easement, namely, full and free right and privilege at all times hereafter by day or night with or without horses cattle or other animals carts carriages motor cars and other vehicles of any description laden or unladen for all purposes to go pass and repass along through and over...the servient tenement."

[9] The easement is triangular in shape extending for a distance of about three quarters of the Braun Street frontage of the Fanigun land from its boundary with the Westway land, towards its junction with Musgrave Street, and it extends an equal distance in a roughly north-easterly direction along that boundary.

[10] Clause 1 of the grant of easement provides -

"1. Neither the grantor nor the Grantee shall obstruct in any way the use of the servient tenement for the aforementioned purposes and shall not park or leave thereon any motor vehicle plant or machinery."

"4. The Grantee shall at its own expense supply and maintain a fence dividing the servient tenement from the remainder of the said [servient tenement]...such fence to provide for a gateway to provide access for the Grantor to the servient tenement."

[12] In my view, the effect of the grant of the easement was to give each of the owners of the Westway land and the Fanigun land common access to Braun Street over that part of the servient tenement contained within the easement.

[13] It is contended for the respondent that over the years access to the Fanigun land across the easement granted for the benefit of the Westway land has frequently been obstructed by motor vehicles driven by persons having business on the Westway land.

[14] Mr Moore, who has conducted mechanical work out of the building on the Westway land over the last three years, says that in that period of time it has been "common practice for people coming to the service station to park along the driveway into the service station at the front of Bill Gollan's caryard". He says that he has often seen Mr Gollan requesting people not to park there because it obstructs access to his caryard. Mr Moore says that delivery trucks bringing material to the service station as well as normal motor vehicles driven by persons going into the service station, park there obstructing access to the servient tenement. He says that each day some motor vehicle will obstruct access to the servient tenement across the easement. Indeed he says that his business as motor mechanic requires access between the service station erected on the Westway land and the boundary fence of the servient tenement to its north, and he has found over the last three years that he must continually request people not to park against the fence line between the Westway land and the Fanigun land because it deprives people of access to his workshop.

[15] Under s 3.2.1 of the Act an application for development approval of the sort made by Liberty Oil on 18 July 2001 must be made in an approved form under sub section (3). Under s 3.2.1 (7) the assessment manager may refuse to receive an application that is not a properly made application.

(a) must contain a mandatory requirements part including a requirement for -

(i) an accurate description of the land, the subject of the application; and

(ii) the written consent of the owner of the land to the making of the application..."

[17] In making its application for development approval to effect a change in the use of the service station site, Liberty Oil failed to obtain the consent of Fanigun as owner of the servient tenement to its easement as required under s 3.2.1(3)(a).

[18] The consent of Fanigun as owner of the servient tenement of the access easement owned by Liberty Oil over its land, was required because Liberty Oil would use the easement for the purpose of the proposed use of the altered service station building, which of course would necessarily involve the use not merely of the Westway land, but also that part of Fanigun land encumbered by the easement giving access to it Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors [1980] HCA 1; (1980) 145 CLR 485.

[19] Upon delivery of the development approval application by Liberty Oil, the assessment manager refused to receive it under s 3.2.1(7) of the Act on the basis that it was not a "properly made application".

[20] The assessment manager obviously has a discretion under s 3.2.1(8) to treat the application made without the consent of the owner of the Fanigun land as a properly made application. Undoubtedly that discretion would be exercised upon a proper evaluation of all relevant circumstances including the reasons advanced by Liberty Oil and by Fanigun for the absence of Fanigun's consent.

[21] In the present case, the assessment manager has not to date exercised the discretion given under s 3.2.1(8) in favour of Liberty Oil. Whether the reasons of either or both Liberty Oil and Fanigun advanced for the absence of Fanigun's consent have been placed before the assessment manager does not appear on the material.

[22] Declining to "receive" the application without the consent of Fanigun might be unsurprising having regard to the uncontradicted evidence as to the obstruction of access to the Fanigun land via the easement about which both Mr Gollan and apparently Mr Moore have complained over the years. It is clear on the material that the Fanigan interests have expressed concern at the likelihood of continued and perhaps increased frequency of obstruction to their access to Braun Street by persons parking motor vehicles across and on the easement when they come to visit a convenience store of significant size - approximately double that of the existing store.

[23] Plans for the proposed alteration suggest that in common with recent similar developments, the proposed redevelopment of most of the existing structure seems devoted primarily to provide a convenience store with its storage facilities attached. It contains an area of approximately 134.6m2. This may be contrasted with the "sales area" and small attached office where presumably persons will pay for goods purchased from the convenience store as well as for fuel sold at the petrol pumps which has an area of only approximately 21 m2.

[24] In addition there is an outdoor storage area between the northern end of the proposed building and the boundary of the Fanigun land of about 34m2. I infer that this area previously gave access to the mechanical workshop operated by Mr Moore, who complained of his inability to maintain unrestricted access to his workshop because of cars parked in front of that area which sometimes extended apparently right down onto the easement area. It may well be the situation depending upon the use made of the proposed outdoor storage area that vehicular access will be needed to it from time to time, which will tend to encourage persons attending the convenience store to park on the easement.

[25] In my view it is understandable in the circumstances, that the Fanigun interests are disinclined to do anything to facilitate the implementation of Liberty Oil's plan to make a material change in the use of the service station site which is likely to increase the obstruction of the easement area designed to provide common access, not merely to the Westway land but also indeed to the Fanigun land upon which a used caryard is conducted. "Material change" of premises is defined in s 1.3.5 of the Act to include "a material change in the intensity or scale of the use of the premises".

[26] While undoubtedly it is true that constant obstruction of access to the Fanigun land over the easement area may be restrained by legal action taken against Liberty Oil, it is perhaps understandable that the Fanigun interests would prefer not to do anything to facilitate a development on the Westway land increasing the intensity of its use which it believes in all probability, will exacerbate problems already suffered for many years in maintaining unobstructed access to its land.

[27] It is clear from the affidavit material which I will not analyse, that the Fanigun interests have indicated an unwillingness to consent to Liberty Oil's development application and have intimated that they would be prepared to sell their land altogether to Liberty Oil "for the right price". Liberty Oil however, has shown no interest in acquiring the Fanigun land but has elected to bring this application for a declaration that Fanigun has "impliedly consented to the lodgment by Liberty Oil of its development application with Brisbane City Council" - presumably for the purpose of presenting such declaration to Brisbane City Council. In the alternative, Liberty Oil seeks a mandatory injunction requiring Fanigun to consent to its application and execute such documents as may be necessary to communicate its consent to Brisbane City Council.

[28] In support of its application for a declaration Liberty Oil refers to s 67 of the Real Property Acts 1861 to 1963 in force at the time the easement was granted. That section provides inter alia -

"In every instrument creating or transferring any estate interest or charge for valuable consideration under the provisions of this Act there shall be implied the following convenants by the person creating or transferring such estate interest or charge that is to say

That he will at the cost of the person requiring the same do all such acts and execute all such instruments as in accordance with the provisions of this Act may be necessary to give effect to all convenants conditions and purposes expressly set forth or by this Act declared to be implied in any such instrument"

[29] Reference is made also to s 53 and particularly s 53(2A) of the Property Law Act 1974 and to s 167 of the Land Title Act 1994.

[30] In my view, those sections cannot be construed as implying in the easement granted in 1963 a consent by the grantor and her successor in title to the lodgment by Liberty Oil of its development application to Brisbane City Council on 18 July 2001. No authority was cited to support such a proposition and I reject it.

[31] With respect to the alternative relief sought by way of mandatory injunction, I am unpersuaded that there is any basis upon which such an order could properly be made. In particular I am unpersuaded that any legal obligation to consent to Liberty Oil's application can be spelt out of the statutory provisions to which I have referred.

[32] The legislative prescription requiring the written consent of the owner of land in respect of which a development approval is sought, in my view, obviously contemplates that in some circumstances an owner of land may not be prepared to consent to a development approval affecting its land. I am unpersuaded that it is a mere procedural formality to ensure that the owner of land with respect to which an application for development approval relates, becomes aware that such an application is being made and has no right to refuse consent to it being made.

[33] In the absence of an obligation based on some principle of law which was not canvassed upon this application, I am quite unpersuaded that Fanigun in the circumstances of this case, may be compelled against its wishes to consent to an application for development approval by Liberty Oil which it perceives will probably exacerbate problems with obstruction of its access over the easement from which it has suffered over the years.

[34] There seems to be no provision under the Integrated Planning Act 1997 under which Fanigun has a locus standi to object to or oppose or contest in any formal way the granting of the development approval sought by Liberty Oil. Whether approval will be granted or not will undoubtedly depend upon the evaluation of the application by the assessment manager.

[35] As I have indicated the assessment manager has a discretion under s 3.2.1(8) in effect to deem the application already made by Liberty Oil to have been properly made, even though it was made without the written consent of Fanigun. It is a matter for Fanigun to determine what steps it might take to avoid or at least to ameliorate any increased obstruction to its access via the easement resulting from the proposed redevelopment. It may be perhaps that the refusal of Fanigun to consent to Liberty Oil's application will lead to the imposition of some planning or development constraint which will lessen the likelihood of increased obstruction of Fanigun's access over the easement to Braun Street as a consequence of the material increase in intensity of use of its land proposed by Liberty Oil if development approval is obtained.

[36] If Fanigun simply consented to the application by Liberty Oil it might find it more difficult in the future to seek relief against Liberty Oil should the opening of a larger convenience store lead to an increase in the occasions of obstruction of its access to Braun Street via the easement.

[38] I order that the applicants pay to the respondent its costs of and incidental to the application to be taxed.