//
[2012] QLC 46
General information, not legal advice.
Land Court of Queensland
2012-09-10
Original judgment source is linked above.
LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 0214
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373
Mr G Gibson QC and Mr D Stevenson, instructed by Hillhouse Burrough McKeown, Solicitors for the applicant.
Mr ANS Skoien, instructed by Legal Services, Moreton Bay Regional Council, for the respondent
[1] Pursuant to the Acquisition of Land Act 1967 (the Act), the respondent compulsorily acquired approximately 418 m² of land on the southern side of Dohles Rocks Road, Murrumba Downs, where it intersects with Ogg Road. At the time, the land was owned by Janleon Pty Ltd (Janleon) and Beaches of 1770 Pty Ltd (Beaches) as tenants in common.
[2] The land taken was once part of Lot 1 on Survey Plan (SP) 184746 which was used for the Castle Hill Shopping Court, a local shopping centre occupied by a number of tenants, including the applicants. The applicant Mekpine Pty Ltd (Mekpine) was the lessee of the grocery store trading as Castle Hill IGA and the applicant Zacsam Pty Ltd (Zacsam) was the lessee of the pizza shop known as Eagle Boys Pizza.
[3] The land was acquired for road purposes and roadworks took place during the period May 2010 to June 2011.
[4] Compensation is being sought, in these proceedings, not by the landowners but by the tenants of the IGA and Eagle Boys shops. In both cases, heard together for economy, the parties have asked the Court to determine the answer to the preliminary point: -
"whether, at the date of resumption, the applicant had an estate or interest in the resumed land pursuant to the Acquisition of Land Act 1967."
Shortly put, if the answer is "no" this will have the effect of concluding the proceedings without the expenditure of resources exploring the quantum of compensation.
[5] The companies Janleon and Beaches have owned the land upon which the shopping centre is built since 1998. It was then described as 264 Dohles Rocks Road, being Lot 6 on RP 809722. There was then an adjoining residential property on the corner of Dohles Rocks Road and Ogg Road. This residence was Lot 1 on RP 847798. Initially, the shopping centre, while facing Dohles Rocks Road, had the benefit that Lot 6 ran behind Lot 1 and this provided access onto Ogg Road. In 2004, Janleon and Beaches purchased Lot 1 and applied for a development approval, which was granted, for a material change of use of these two allotments for a food delivery service, take-away food store and shop. The approval was conditional upon, relevantly, the amalgamation of the two lots. On 27 September 2007, SP 184746 was registered, cancelling the two earlier plans and amalgamating the land into one lot, Lot 1 on SP 184746. Construction of the extension of the shopping centre then took place and was completed around March 2008.
[6] Around 15 January 2008, Janleon and Beaches received a Notice of Intention to Resume some of the land alongside the road and on 14 November 2008 the local authority, the respondent, acquired 418 m² of the land for road purposes.[1] The land taken became Lot 11 on SP 215604. The balance of the land, 9,733 m² became Lot 1 on SP 215604 as that Plan cancelled Lot 1 on SP 184746. The acquisition enabled the completion of roadworks which widened Dohles Rocks Road and facilitated the provision of a lane for left hand turns into Ogg Road. The roadworks were completed in about June 2011. The companies Janleon and Beaches brought proceedings in this Court for compensation under the Act. The proceedings were discontinued when a settlement was reached.
[7] On 1 March 1999 Mekpine entered into a 10 year lease with Janleon and Beaches. Since 27 September 2007 that lease has been registered over Lot 1 on SP 184746. When that lease expired in 2009, the same parties entered into a further lease pursuant to the option in the principal lease.
[8] On 17 March 2008 Zacsam entered into a 10 year lease with Janleon and Beaches. The lease was registered on 19 March 2008.
[9] In their amended Originating Applications filed at the hearing both applicants made the following claim:
[10] The claim of an interest in the resumed land is essential to the claims made as s.12(5) of the Act relevantly provides that:
"(5) On and from the date of the publication of the gazette resumption notice the land thereby taken shall be vested or become unallocated State land ... and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act ... ."
[11] The word "land" is defined, for the purposes of the Act, in the following way:-
"land means land, or any estate or interest in land, that is held in fee simple, including fee simple in trust under the Land Act 1994, but does not include a freeholding lease under that Act."
The expression "estate or interest in land" is not defined in the Act but s.36 of the Acts Interpretation Act 1954 provides that:-
estate includes easement, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity.
interest, in relation to land, or other property, means -
(a) a legal or equitable estate in the land or other property; or
(b) a right, power or privilege over, or in relation to, the land or other property."
[12] In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads,[2] the Court of Appeal considered these statutory provisions. The issue in that appeal was whether the appellant was entitled to compensation under the Act in respect of land resumed by the respondent and over which the appellant had car parking rights for its medical centre business.[3] The learned President of the Court of Appeal noted the definition of "interest, in relation to land" in s.36 of the Acts Interpretation Act 1954 and s.4 of that Act which provides:-
"The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act."
The President agreed with Chesterman J, who together with the President constituted the majority of the Court of Appeal, that the appellant's rights for car parking arose from a licence which gave the appellant a contractual right over the resumed land.[4] Although the appellant did not have an "interest in land" as that phrase had been interpreted at common law and in some statutory contexts, in construing this Act the Court needed to be cognizant of Gaudron J's observations in Marshall v Director-General, Department of Transport[5] which were as follows:
"The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute."
The learned President did not find any indication that the legislature did not intend the definition of "interest" in s.36 of the Acts Interpretation Act 1954 to apply in s.12(5).[6]
[13] Holmes JA, dissenting, was of the view that what the applicants had were personal rights, which were property and which existed in relation to land but which were not proprietary rights in the land which were required in order to ground a claim for compensation under the Act.[7] Her Honour agreed with the Land Appeal Court that the applicant had failed to establish a right of a proprietary nature[8] and therefore had no right to compensation under the Act.
[14] His Honour Chesterman J found it "significant"[9] that the definitions section of the Act, s.2, does not contain a definition of "interest" in land and was of the view that the drafting of the Act would have taken place with knowledge of the provisions of s.36 of the Acts Interpretation Act 1954. He was of the view that the definition in s.36 should be applied with the result that every person with a right over or in relation to the land is entitled to claim compensation upon its resumption.[10] His Honour found that there was no inconsistency or statutory indication, as contemplated by s.4 of the Acts Interpretation Act 1954, that the definition in s.36 should not apply.
[15] In his analysis of the facts of the appeal before him, Chesterman J noted the following:[11]
"[29] The lease ... to the appellant was of 'part of the ground floor of the building erected on [Lot 49 RP 118683] as hatched in red on the attached sketch'. Obviously enough the demised premises do not include the car parking space which is adjacent to, but separate from, the building erected on Lot 49.
[30] Clauses 42 and 43 of the conditions of the lease state:
"42 The lessor grants to the lessee exclusive rights to use the area marked as 'doctor parking' on the plan annexed hereto for parking of the vehicles of the lessee or its permitted invitees.
43 The lessor grants to the lessee in common with the lessee and its invitees of the area marked 'D' on the said plan the right to permit its patients and the patients of any person associated with the lessee the right to park its his her or their vehicles upon the land marked 'patient parking'."
[31] On 13 October 2000 the respondent, by proclamation published in the Queensland Government Gazette, resumed an area of 167 m² from part of the land for the purpose of widening Bundall Road.
[32] The resumption did not affect the building from which the appellant conducts the medical practice but it did take part of the car park so that now there is only space for five cars. The two spaces reserved for "long-term medical practitioner parking" disappeared."
"[77] I conclude that the appellant had a right or power over or in relation to the land taken by the respondent. In my opinion such a right or power is an interest in the resumed land for the purposes of s 12(5). That is so because the definition of "interest" found in the Acts Interpretation Act is the applicable one, the statutory context and subject matter not indicating or requiring otherwise."
"Part of the ground floor of the building erected on the land as hatched in black on the plan in the schedule hereto."
The plan in the schedule shows the let area of 445 m²[15].
[17] The lease contains the following provisions and definitions:-
"Land" means the lot described in Item 2 of the Form 7 in this Lease;[16]
Item 2 of the form 7 identifies the lot as Lot 6 on RP 809722.[17]
"Common areas" means those areas of the Building or the Land which have not been leased or licensed by the Lessor;[18]
6.8 Use of Common Areas - The Lessee and the Lessee's Employees may use the Common Areas but must obey all reasonable directions and rules given by the Lessor relating to their use. The Lessee must not obstruct the Common Areas or Car Park.[19]
"Lessee's Employees" means each of the Lessee's employees, contractors, agents, customers, sub-lessees, licensees or others (with or without invitation) who may be on the Premises, the Building or the Land;[20]
"Building" means the building of which the Premises forms part;[21]
"Premises" means the premises described in item 3 of the Reference Schedule and includes the Lessor's Property in the Premises;[22]
It is not necessary to consider the definition of "Lessor's Property".
Item 3 of the Reference Schedule is in the following terms:
Premises: Shop 1 at Castle Hill Shopping Court, Corner Dohles Rocks Road and Ogg Road, Murrumba Downs, Queensland, 4503.
[18] From this it may be concluded that the lessee's customers or "others" who may be on the land may use the common areas of Lot 6 on RP 809722.[23] The area which was resumed was never within the boundaries of this allotment. At the time the lease was entered into the land subsequently resumed was then part of Lot 1 on RP 847798, an adjoining residential allotment.[24] That land was incorporated into the overall shopping-centre parcel when SP 184746 was registered on 27 September 2007. That plan cancelled Lot 1 on RP 847798 and Lot 6 on RP 809722.
[19] The lease agreement also contains the following provisions:-
"6.13 Car Parking - The Lessee must not park or permit the Lessee's Employees to park motor vehicles in the Car Parking Area other than in areas set aside by the Lessor for staff parking. If required by the Lessor, the Lessee will give the Lessor a list of particulars of motor vehicles used by the Lessee or the Lessee's Employees. The Lessee must pay the Lessor, upon demand, an amount of one hundred dollars ($100.00) for each daily usage by each motor vehicle of the Lessee or the Lessee's Employees which is parked in areas of the Car Parking Area not set aside for staff parking, that amount being by way of liquidated damages for breach.
6.14 Parking Charges - The Lessor will not impose parking charges for the use of or entrance to the Car Parking Area except if it is required by law to do so or if it becomes necessary to prevent the use of the Car Parking Area by persons other than bona fide customers of Lessees of the Building. The Lessee's customers, in common with the customers of other Lessees, while doing business in the Building, may use the Car Parking Area subject to the Lessor's right under this sub-clause to impose parking charges.[25]
1.2 "Car parking area" means that part of the Land sealed, marked and set aside for the prime purpose of the parking of cars;[26]
(ii) may be used, controlled, managed, altered, closed or dealt with as the Lessor from time to time sees fit;
(b) this Lease does not give the Lessee by implication or otherwise any rights to the Common Areas or what is done or not done within them other than as specifically provided in this Lease; and
(c) signage within the Common Areas will be controlled by the Lessor.[27]
16.4 Dealing With The Land - The Lessor may subdivide the Land or grant easements or other rights over it or register a Community Title Scheme for the Land. The Lessee must at the Lessor's expense sign any consent or document needed by the Lessor so the Lessor can carry out its rights under this clause without interference with the Lessee's other rights under this Lease.[28]
(a) contains the entire agreement and understanding between the parties on everything connected with the subject matter of this Lease;
(b) supersedes any prior agreement or understanding on anything connected with that subject matter; and
(c) is not signed by the Lessee because of any promise by the Lessor including (but only by way of example) any promise of exclusive trading rights.[29]
[20] From reading the entire lease, the document which the parties thereto have chosen to enter and have not amended, the following can be regarded as clear beyond a peradventure:-
(a) The lease contains the entire agreement.[30]
(b) Dealings with the land were those contemplated by clause 16.4, which do not include the dealing involving the creation of SP 184746 which was registered to cancel Lot 1 on RP 847798 and Lot 6 on RP 809722.
(c) "Common areas" and "Car Parking Area" are separately defined and separately treated under the lease. This is so even though as a matter of construction of the lease I am satisfied that a "car parking area" may be a sub-set of and within the meaning of "common areas". Use of common areas is regulated by clause 6.8 of the lease and use of car parking areas by clauses 6.13 and 6.14. Clause 6.14 specifically provides, by its last sentence, that the lessee's customers may use the car parking area. The definition of "Car Parking Area" in clause 1.2 and the provisions to which I have just referred have the result that the customers of the lessee may use the car parking area for the purpose of parking cars. Other common areas will have other uses not extending to parking cars upon them. The lease does not deal at all with the land that was, at the time the lease was entered into, Lot 1 on RP 847798, which was subsequently incorporated into the entire shopping centre site which became Lot 1 on SP 184746. As set out in [6] above, SP 215604 cancelled Lot 1 on SP 184746 and created Lot 11, which was resumed, and Lot 1, which was retained.
[21] Assuming that, contrary to the terms of the lease document, the lease should be interpreted as if the "Land" (which is defined in clause 1.2 as meaning "the Lot described in Item 2 of the Form 7 in this lease;"[31] which is Lot 6 on RP 809722) is Lot 1 on SP 184746, I note the following:-
(a) The aerial photos[32] show that the land which was resumed, which was added to Lot 6 when the residential property was bought in 2004, is not "Car Parking Area" as defined in the lease. It is grassed and a concrete footpath runs within its length.
(b) The resumed land would be part of the "Common Areas" if the lease were able to be held to apply to Lot 1 on SP 184746; which I am unable to accept, in view of the specific provisions of the lease itself.
(c) The lease terms to which I have referred, allow car parking only within the area defined as "Car Parking Area" in clause 1.2 to mean "that part of the Land sealed, marked and set aside for the prime purpose of the parking of cars";
(d) In view of (a) and (c) above, the area resumed was not an area which the lease allowed to be used for car parking so therefore it did not give the lessee any contractual rights over it as "Car Parking Area" as distinct from being one of the "Common Areas".
6.8 Use of Common Areas - The Lessee and the Lessee's Employees may use the Common Areas but must obey all reasonable directions and rules given by the Lessor relating to their use. The Lessee must not obstruct the Common Areas or Car Park.
This provision provides further support for the conclusion that car parking areas are treated separately to common areas in the lease.
[23] The lease conferred contractual rights on the lessee in relation to the Common Areas and the Car Parking Area as defined in the lease. In regard to the land which was resumed, the lease, by its terms, did not ever apply to it, so could not confer any rights in regards to it. If I am wrong about that and the lease applies to SP 184746 then, as has been seen, the lease could only have conferred upon the lessee rights which are referable to that area as one of the "Common Areas" and not as a ""Car Parking Area".
[24] The lease bears what appears to be a Land Registry dealing number 705357977 dated 25 January 2002.[33] Mr Crowley's affidavit explains that the lot, on which formerly stood a house and shed, was acquired in 2004. In 2006 an application was made on behalf of the land owners to extend the shopping centre with a take-away food store, which became the Eagle Boys Pizza shop. It required use of part of the old house site. Development approval for a material change of use was given and a condition of the approval was that the two allotments be amalgamated. This occurred and SP 184746 was the result.[34] This plan was registered on 27 September 2007 and bears Land Registry dealing number 711039151. On that plan under the heading "Existing Lease Allocations" are a number of leases, including 705357977, the lease to Mekpine.[35]
[25] The lease being notated on dealing 711039151 was not accompanied by any activity between the lessor and lessee to vary the description of the land from Lot 6 on RP 809722 (which was cancelled by SP 184746) to Lot 1 on SP 184746. It is worth considering for a moment how this could have been achieved.
Section 67 of the Land Title Act 1994 provides that:
term of a registered lease includes a period of possession under the lease because of -
(a) the exercise of an option to renew in the lease; or
(b) a registered instrument of amendment extending the term of the lease.
(2) A registered lease may be amended by registering an instrument of amendment of the lease.
(3) However, the instrument of amendment must not -
(4) The procedure for amendment specified in this section is in addition to other rights that are not inconsistent with this Act."
This indicates that the lease could have been amended to reflect its place within "Land" being Lot 1 on SP 184746. This, of course, did not occur so I must conclude that the "Common Areas" over which the lessee gained contractual rights pursuant to the lease remain those within what was once Lot 6 on RP 809722 and only that, not the extended "Common Areas" within Lot 1 on SP 184746.
[26] I have found that the land resumed was not part of the car parking or common areas of the lease, as the lease is limited to the area that was within Lot 6 on RP 809722. Although the lease was registered over the expanded land, Lot 1 on SP 184746, the lease was not amended in any way and still refers only to the area that was formerly Lot 6 on RP 809722. If, contrary to what I have found, the unilateral act of the lessor in, for its own purposes and pursuant to a development application of its own, lodging SP 184746 should be taken to, without involvement of the lessee, amend the lease as if the Land was Lot 1 on SP 184746 then the area resumed would be part of the "Common Areas" but not "Car Parking Area". I note that if it was accepted that the lessor could, without the involvement of the lessee, vary the content of "Land" as defined in the lease, to increase the area, as occurred here, it would seem that the reciprocal would also be true and the lessor could reduce that area instead, which could adversely affect the lessee's rights under its registered lease. Indeed, there could also be cases where increasing the area of the "Land", or changing its shape, could also be said to adversely affect the lessee. These considerations militate against acceptance of the notion that lodging SP 184746 has in effect amended the lease as if it referred to Lot 1 on that Plan.
The effect of the Retail Shop Leases Act 1994
[27] It was not in dispute that the shopping centre was a "retail shopping centre" as defined in s.8 of the Retail Shop Leases Act 1994 (RSLA). That Act contains an extended definition of "common areas" in the following terms:
(1) Common areas of a retail shopping centre are areas in or adjacent to the centre that are used, or intended for use -
(b) in common by the lessees of premises in the centre in relation to the conduct of businesses in premises in the centre.
(f) information, entertainment, community and leisure facilities.
(3) However, common areas do not include leased areas."
If, under this Act, a duty is imposed or an entitlement is conferred on a lessor or lessee under a retail shop lease, the duty or entitlement is taken to be included in the lease.
A provision of a retail shop lease is void if it purports to exclude the application of a provision of this Act that applies to the lease.
If a provision of this Act is inconsistent with a provision of a retail shop lease, the provision of this Act prevails and the provision of the lease is void to the extent of the inconsistency."
The definition of common areas in s.6 of the RSLA is inconsistent with the definition in the Lease in that the Lease defines it as "those areas of the Building or the Land which have not been leased or licensed by the Lessor" whereas the RSLA refers to areas in or adjacent to the centre that are used or are intended for use by the public, and so on. Section 19 protects the application of the RSLA's definition from being excluded and the entitlement to the benefit of the extended definition is, by s.18, taken to be included in the Lease. This has effectively done what the lessor alone could not do and has had the effect of amending the Lease in accordance with the definition in s.6.
[28] Section 8 of the RSLA provides this definition:
(1) A retail shopping centre is a cluster of premises having all of the following attributes -
(a) 5 or more of the premises are used wholly or predominantly for carrying on retail businesses;
(i) are owned by the 1 person; or
(ii) have the 1 lessor or head lessor, or, if the premises were leased, would have the 1 lessor or head lessor; or
(iii) comprise lots within a single community titles scheme;
(B) if the premises are owned by the 1 person - the buildings are separated by common areas or other areas owned by the owner or a road; or
(C) if the premises are not owned by the 1 person - the buildings are separated by common areas or a road;
(d) the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court or shopping arcade.
community titles scheme means a community titles scheme under the Body Corporate and Community Management Act 1997."
While it was not in dispute that there was a "retail shopping centre" in this case, the respondent directed attention to its extent.
[29] The respondent referred to Special Condition S2 in the Development Permit which allowed for extending the shopping centre for what became the Eagle Boys Pizza tenancy. Standard Condition 5 required the land to be amalgamated into one parcel, that was what became Lot 1 on SP 184746 and Special Condition S2 stated:
There is a land requirement from the subject site that may be dedicated by the Developer as road for the future construction of Dohles Rocks Road as indicated on the attached Council Sketch Plan No. D 04/16 SK21 dated 17 October 2006. This requirement should be excluded from the proposed development and kept clear of permanent structures or improvements associated with the development. "[36]
That sketch shows the land which was subsequently resumed delineated with a dotted line and described as "approximate land requirement".
[30] The land which was subsequently resumed was required to be excluded from the proposed development and kept clear of permanent structures or improvements associated with that development. In view of this, some things set out in s.6(2) of the RSLA could not be put there, sealed parking areas, for instance. The sub-section only refers to types of common areas in a way that includes the items stated, leaving scope within sub-section 1 for other sorts of common areas that may fit within the meaning of sub-section 1. It does not appear that there is any conflict or inconsistency between the definition of "Car Parking Area" in the lease and "parking areas" in s.6(2)(c) so I do not find that s.6(2)(c) of the RSLA affects the definition of "Car Parking Area" in the lease.
[31] The affidavit of Raymond Lionel Kingston, the sole director of Mekpine, sworn on 17 April 2012, describes the use of the resumed land.[37] Customers, especially those with larger vehicles, would park on that area and walk into the shopping centre. Some parked on the opposite side of Dohles Rocks Road and walked across the resumed land into the shopping centre.[38] Mr Jeffrey Leonard Senior, the property caretaker of the shopping centre, provided an affidavit sworn on 4 July 2012. Mr Senior confirms that cars and trucks would park on this land so that people could attend the shopping centre.[39] I do find that the area subsequently resumed was an area in the centre or, if it is necessary to so find, adjacent to the centre, that was used by the public in relation to the conduct of business in premises in the centre. It is therefore a "Common Area". While not able to be lawfully used for parking it could be lawfully used by potential customers for such activity as walking into the shopping centre.
[32] The 2009 aerial photo[40] shows the resumed area and, between it and Dohles Rocks Road, a concrete footpath. The location of the footpath is such that it would be necessary to cross over it in order to get on to the resumed land or off it back on to the road. The respondent points to a Road Rule[41] making it an offence to drive on such a path unless, for instance, it is to enter or leave a road-related area or adjacent land and there is not a part of the path marked for vehicles to use. The very next section makes similar rules for nature strips. In view of the findings which I have made about the common areas here not being useable for parking it is not necessary to finally determine the implications of these Road Rules. As parking would not be permitted on the resumed land under the lease, accessing it this way is not relevant. The relevant access to the shopping centre is across this land, something most likely, and legally, carried out on foot.
The effect of LGM Enterprises Pty Ltd v Brisbane City Council (LGM)[42]
[33] In LGM the Land Appeal Court considered a case where the Brisbane City Council had resumed 36 m² from the corner frontage of a small shopping centre at the corner of Appleby and Rode Roads, Stafford Heights. The appellant had a tenancy and operated a video store. People started taking shortcuts from the footpath into the centre through the shrubs in the garden between the car parking area and the footpath. The centre owner placed some pavers at the points being used so as to facilitate access and protect the garden beds. A number of these access points were located within the area resumed. The issue before the Land Appeal Court was whether the appellant, as a tenant, had an interest in the resumed land sufficient to entitle it to compensation under the Act.
[34] The Land Appeal Court concluded that the walkways were part of the common areas of the shopping centre[43] and that LGM had a right or privilege in respect of the land resumed,[44] it therefore allowed the appeal.
[35] For the reasons I have given, in relation to Mekpine, the preliminary question should be answered "Yes".
[36] The lease to Zacsam Pty Ltd commenced on 17 March 2008 for a term of 10 years with an option to renew it for a further 5 year period.[45] This is the lease for Eagle Boys Pizza. The land is defined[46] in the lease as Lot 1 on SP 184746. The resumed area was part of "the Land" as so defined. By clause 2.1(5) of the interpretation provisions of the lease it is provided that:
(5) "the Car Park" means those parts of the Complex from time to time allocated by the Landlord to the parking of cars and includes the driveways to and from those parts.
The resumed land was not "allocated by the Landlord to the parking of cars" so was not "the car park" for the purposes of the Zacsam lease.
(6) "the Common Areas" means all those parts of the Complex, not demised or intended to be demised to any tenant, which may from time to time be set aside by the Landlord or be available for use by the tenants of the Complex their servants agents licensees and invitees including, for example, the malls walkways passageways circulation areas staircases escalators ramps and lifts service roads loading bays forecourts and toilets.
(7) "the Complex" means the Land and all other parcels of land adjacent or near the Land acquired or leased by the Landlord and incorporated into and used principally for the purpose of an office complex, shopping centre and car park together with the Building and the fixtures fittings and plant and the other structures facilities and improvements erected or to be erected on those other parcels (excluding any buildings or structures the Landlord in its absolute discretion determines will not form part of the Complex) including, for example, the Car Park and the Common Areas.
The definition of "the Complex" takes in "the Land" so "the Common Areas" means all those parts of "the Land" available for use by the invitees of the tenants, including those of Zacsam.
The land resumed was part of "the Common Areas" which, as the evidence already considered shows, was in fact used or able to be used by invitees of the tenant Zacsam.[47]
[37] It appears that in the case of the Zacsam lease the meaning of common areas in the lease is coterminous with the result which would occur if the definition in s.6 of the RSLA was to apply. Should it be necessary to have recourse to the RSLA, I would find that the resumed land was a common area as it was in the centre and used by the public in relation to the conduct of businesses in premises in the centre. The use being to walk across it to access the businesses. There does not appear to be any inconsistency between the lease and the RSLA such that s.20 of the RSLA would apply to force a conclusion in favour of the definition of common areas in the RSLA, but if there were, the results would be the same, the resumed land is a common area.
[38] The decision of the Land Appeal Court in LGM makes inevitable a finding by this Court that the rights in respect of access over the resumed land are an interest in land within the meaning of s.12(5) of the Act.[48]
[39] For the reasons I have given, in relation to Zacsam, the preliminary question should be answered "Yes".
[1] Government Gazette 14 November 2008. No. 72, page 1329.
[3] [2007] 2 Qd R 373 at 377, L.45.
[4] [2007] 2 Qd R 373 at [10].
[5] [2001] HCA 37; (2001) 205 CLR 603, 623.
[6] [2007] 2 Qd R 373, 379 L.35.
[7] [2007] 2 Qd R 373, 382 [25].
[9] [2007] 2 Qd R 373, 387 [51].
[10] [2007] 2 Qd R 373, 387 [52].
[11] [2007] 2 Qd R 373, 383.
[12] [2007[ 2 Qd R 373, 392.
[13] Application Book, Tab 8. Affidavit of LC Crowley, a director of Janleon Pty Ltd, sworn 17 April 2012, Exhibit LAC - 9, pages 58-60.
[25] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC - 9, pages 70 - 71.
[31] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC-9, page 61.
[33] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC-9, page 58.
[34] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, paragraphs 8 to 15.
[35] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC-4, page 41.
[36] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC-3, page 32.
[37] Application Book. Tab 10, paragraphs 30, 31.
[38] Application Book. Tab 10, paragraph 31.
[41] Section 288 Transport Operations (Road Use Management - Road Rules) Regulation 1999. Now replaced, in identical terms, by the 2009 Regulations. The relevant section still bears the same section number.
[45] Application Book, Tab 8, Affidavit of LC Crowley sworn 17 April 2012, Exhibit LAC-18, pages 114, 116 "Item 10 - option" and 137.
[46] Ibid page 118 definition of "the Land".
[47] Application Book, Tab 10. Affidavit of Raymond Lionel Kingston sworn 17 April 2012, paragraph 30.
[48] LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 0214, [29].
Mekpine Pty Ltd & Anor
Moreton Bay Regional Council [2012] QLC 46
(2001) 205 CLR 603