_Smyth v Brisbane City Council_

Supreme Court of Queensland|2007-02-28|Before: Fryberg J

[2] The present application is to modify the easement by reducing the area which the easement covers. It is brought under s 181(1) of the Property Law Act 1974, which relevantly provides:

"(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied--

(a) ...; or

(b) that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either--

(i) does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or

(ii) is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification; or

(c) ...; or

(d) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction.[2]

(2) In determining whether a case is one falling within subsection (1)(a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance."

In considering whether the easement secures any benefits of substantial utility or advantage to the Council and whether its modification would substantially injure the Council it is necessary to have regard not only to the terms of the easement but also to the function which it fulfils and the circumstances in which it was granted.

[3] Brisbane has evolved around its rivers and creeks.[3] Much of Brisbane's growth has occurred on flood plains over many years of development. The major flood of 1974 was followed by extensive flood mitigation works. These included the widening of the tidal channel in Norman Creek between Logan Road and the Brisbane River. Another response to that flood has been the creation over time of defined waterway corridors. These are areas along the river, the creeks and creek tributaries which protect and enhance the water flow, water quality and biodiversity. Development in a corridor is controlled.[4] Such corridors were defined around Norman Creek and its tributaries. The easement presently under consideration permits overland water flows to drain into a non-perennial tributary of Norman Creek.

[4] The tributary in question originates in the ridge of relatively high land which extends west from Mt Gravatt. It flows north beside the southeast freeway/busway. It passes by the northwest boundary of Mr Smyth's land before it joins the main branch of the creek some 200-300 m north of that land. That land occupies some of the lowest parts of the sub-catchment in which it lies. In its natural state, stormwater run-off flowed across it into the tributary, and in time of flood, water would spread toward or even across it, depending on the size of the flood. I would infer that it probably flooded in 1974. Whether that be so, the tributary has since that time become the centre of a waterway corridor. The evidence does not disclose when the boundaries of the corridor were defined, but it must have been some time between 1987 (the year of the flood which provided the data used to fix the boundaries[5]) and 1994. In the vicinity of Oatland Crescent the boundary was defined by a flood regulation line, which is defined in the City Plan as a line "used by Council to indicate flood plain areas reserved for flood water storage and flow, where development may be restricted."[6] That line was intended to approximate the contour which would be reached in the locality by a flood having an average return interval of 100 years (Q100).

[5] In setting that benchmark the Council followed a standard which is in widespread use throughout Queensland, if not Australia. In Dovemont Pty Ltd v Noosa Shire Council, McLauchlan DCJ said:

"[T]he Q100 flood level is a generally accepted engineering standard in relation to the construction of residences (the requirement usually being that the first habitable floor of the residents should be at least 300 mm above the flood level) ... ." [7]

The standard is referred to in numerous reported cases decided in the Planning and Environment Court.[8] In his evidence Mr Blakey, a principal program officer in the water resources branch of the Council, described it as a reasonable level of immunity. It is the level identified by the Lord Mayor's task force report on suburban flooding as that above which development should be constructed.[9] However identifying the contour which will be reached by the Q100 flood is not a simple process. It requires among other things careful field measurements of rainfall and flood levels during major flood events. Sometimes available data will have a low level of reliability. In such cases it would have been natural for the Council to add a margin for error in fixing the level of the boundary of the waterway corridor. That is what happened for Norman Creek and its tributaries. Data from the 1987 flood suggested that the Q100 flood would reach a level of

19.4 AHD. However the boundary was fixed at approximately 20.5 AHD; the data from the flood was regarded as "of dubious quality". [10]

[6] In 1994 what is now Mr Smyth's land was part of a larger allotment, Lot 1 on RP 141177. In that year Mr and Mrs Smyth and another man purchased the lot with the intention of subdividing it into residential blocks. At that time the flood regulation line ran across the allotment. About 80 per cent of the allotment was below the line. In the form ultimately approved by Council and registered in 1997, the subdivision split the allotment in three. One block (Lot 70) comprised most of the land above the line. Another (Lot 71, the land with which this application is concerned) was almost all below the line.[11] That meant that Mr Smyth would not have been permitted to build a house on Lot 71. To overcome that problem, in about May 1995 the Council moved the line. It did so by drawing a rectangular peninsular extending toward the tributary, large enough to accommodate Mr Smyth's proposed dwelling above it. No hydraulic study report was required for that redrawing. Presumably the new line was justified by the large margin for error used in setting the flood regulation line. The importation of fill produced a level at the house building platform of approximately 20.2 AHD.[12] A condition of the Council's approval required the grant of "a drainage easement below the flood regulation line for overland flow purposes". That condition was complied with, producing the easement presently under consideration. Another condition fixed the floor level of the proposed lots by reference to the Q100 flood.

[7] Even by 1995 there had been extensive human interference with natural water flows in the vicinity. The most significant change was brought about by the construction of the southeast freeway immediately adjacent and parallel to the western bank of the Norman Creek tributary. At a point just south of Marshall Road, some 200 m south of Mr Smyth's land, the tributary was taken under the freeway, allowed to run north on the western side of the freeway for about 300m and then returned to the east of the freeway via four box culverts which discharged some 50 m north of the land. That drained stormwater from all of the catchment south of Marshall Road and limited the catchment potentially draining across the land to the area north of Marshall Road: 14 residential allotments in the block between Marshall Road and Oatland Crescent (which are parallel to each other) and about 31/2 allotments on the north side of Oatland Crescent ("the local catchment"). Stormwater from the local catchment flowed to and along an overland flow path centred upon an open drain running northward from just north of Marshall Road to a location slightly north of Mr Smyth's land. The path abutted the south-western and north-western boundaries of Mr Smyth's land (apart from the driveway).[13] In times of heavy rain, water could and did flow outside the open drain and over a significant part of the easement; how much was used in any particular storm depended upon the intensity of the rain.

[8] Four events occurred after 1995 which are relevant to the need for the easement. First, in 1999-2000 the southeast busway was constructed. It passes between the southeast freeway and Oatland Crescent. As part of the busway project[14] the area of the local catchment was reduced by 10 per cent and the overland flow path was supplemented by a pipe running from a low point in Oatland Crescent to the same location as the path. That pipe has an estimated capacity of 0.43 m3/s, equivalent approximately to the ARI two year peak flow. In other words the pipe can only cope with the run-off from a storm with an average return interval of only two years. If any heavier storm occurs there is run-off on the overland flow path.

[9] The second event was a major storm in 2001 which provided fresh data from which to assess flood levels in the vicinity of the land. During that storm the current Q100 level (19.4 AHD) was exceeded in places. Council officers therefore decided to use the highest recorded level during the storm (20.2 AHD) plus 0.7 m as the Q100 design level pending completion of a proper Waterway Management Plan. That decision was subsequently undermined when a review of the 2001 rainfall figures showed that the rainfall in that year had an ARI exceeding 200; in other words the flood in that year exceeded a Q200 flood. Nonetheless the storm provided data for the formulation of a Water Management Plan.

[10] Third was the approval by the Council of developments at 29 and 27 Oatland Crescent,[15] both of which were empty paddocks in 1995. The land at the former address immediately abuts Mr Smyth's land on its eastern boundary and comprises 8,498 m2. Approval was sought for a development of for 22 townhouses on 7 February 2001. Perhaps not surprisingly, Mr Smyth supported the development. Forty-one residents of Oatland Crescent objected to it on the ground (among others) that six of the townhouses were to be built in a flood zone, which I take to mean below the flood regulation line. It was the case that the buildings were below that line, but they were above the 19.35 AHD level. The Council approved the application on 29 November 2001. It proceeded on the basis that the historic level of the Q100 flood was 19.35 AHD (where it got that information is unclear). It permitted filling between that level and the flood regulation line. A condition required run-off from the roof and developed surface areas (including run-off from adjacent areas) to be piped to a lawful point of discharge; presumably the condition was complied with in the development. Although about one third of the site lay below the 19.35 AHD level, no easement was required over it.

[11] On 6 December 2001 an application was made to the Council for approval of additional multiunit dwellings, ultimately fixed at 12, on a site at

27 Oatland Crescent which already contained one dwelling. The site had an area of about 5,800 m2. There were a number of submissions objecting to the proposal on the ground (among others) that it involved construction below the flood regulation line. The application was nonetheless approved on 31 July 2002. No works were permitted below the 20.0 AHD level, but otherwise works were permitted below the flood regulation line. A condition required the grant of a drainage easement in favour of the Council over that part of the land which was affected by a Q100 flood. That easement was granted; but it is unclear what level was selected for the boundary of the easement.

[12] Finally, at some time before 27 January 2005, hydraulic modelling for the purpose of the Norman Creek Waterway Management Plan was completed. Presumably this took into account data gathered during the 2001 flood. That modelling demonstrated a level of 19.25 AHD as the level of the Q100 flood.

[13] Mr Smyth relied on all four paragraphs of s 181 of the Act, but the application can be resolved by reference only to paras (b) and (d). He seeks to reduce the area covered by the easement to that which would be reached by the Q100 flood. Paragraph (b) requires consideration of the question whether the easement secures to the Council any practical benefit of substantial utility or advantage to it. Paragraph (d) requires consideration of whether the proposed modification would substantially injure the Council. It is convenient to consider whether the easement benefits the Council and whether its modification in the manner stated would injure the Council concurrently.

[14] Mr Blakey deposed that the easement was required to protect the overland flow capacity of Mr Smyth's land. He identified three types of overland flow:

"5(a) Local sheet flow during rain events which results from rainfall on the property and adjacent properties that are higher in elevation than 45 Oatland Crescent.

(b) Overland flow when the capacity of the adjacent stormwater drainage inlet, pipe and open channel are exceeded. This causes stormwater to flow over land, including across 45 Oatland Crescent.

(c) Flow over land from Norman Creek when it is in flood. The land within the easement at 45 Oatland Crescent will be inundated with water during major flooding of Norman Creek.

6. The easement ensures that the capacity for the land to hold these flows is retained."

[15] Mr Blakey also identified collateral benefits the easement gave the Council:

"7. The overland flow easement helps to protect the Norman Creek floodplain from cumulative impact from development. Cumulative impact occurs when developments increase impervious areas, which increases stormwater runoff, and when fill is placed in the floodplain. Each development by itself may make a minor impact that is within the tolerances of modelling; however cumulatively there is a flooding impact on properties located in or near waterways.

8. For every cubic metre of fill placed in the floodplain, a cubic metre of water is displaced, i.e. the level of flood waters rises on upstream, downstream or adjacent properties. Allowing any fill to be placed in the easement at 45 Oatland Crescent will contribute to cumulative impact from flooding."

[16] Mr Blakey did not explain precisely how protection of the overland flow capacity of the property benefited the Council. However Mr Walker, who appeared on behalf of Mr Smyth, took no point about this. The case has been conducted on the assumption that the Council is the person entitled to any benefit secured by the easement. I shall proceed on that basis. In any event it is by no means clear that the practical benefits referred to in para (b) of s 181 and the absence of injury required under para (d) must affect the beneficiary under the easement personally where the easement is an easement in gross or a public utility easement.

[17] Local sheet flow during rain events may be dealt with shortly. Mr Blakey agreed that the flow in this category would be relatively small. He described it as "like overland flow from any other property owner from - adjoining the house that you have your own house on". It would be derived from rain falling on undeveloped parts of Mr Smyth's land and on the undeveloped parts of the lots on either side of the driveway at 43 and 47 Oatland Crescent (Lots 70 and 49). It would not include any of the developed parts of those allotments because stormwater from them is piped to Oatland Crescent or, in the case of Mr Smyth's land, to the drain to the west of the property. Doubtless any future development on Mr Smyth's land would be similarly piped. It would not include any flow from 29 Oatland Crescent. That property is largely covered by townhouses, roads and hard standing; stormwater from these areas is piped to a lawful point of discharge to the north. Moreover any water from residual areas would tend to flow away from Mr Smyth's land, as what little slope there is runs downward from that land to 29 Oatland Crescent. Mr Blakey accepted that this flow could be dealt with by engineering conditions imposed in the course of an application for subdivision. It follows in my judgment that in respect of this category of flow, the easement secures no practical benefit of substantial utility or advantage to the Council and its modification would not injure the Council.

[18] Overland flow resulting from the over-topping of the pipe and open drain between Mr Smyth's land and the busway is a little more problematic. For reasons which were not explained, the Council's requirement in respect of the capacity for this flow is limited to that needed to cater for a Q50 event. The evidence shows that the precise modification of the easement sought by Mr Smyth would not leave sufficient land covered by the easement to cater for that event. That is because, to ensure that a subdivision would not cause an increase in the flood levels at the upstream boundary during such an event, with possible prejudice to the position of properties upstream along this flow, it would be necessary to ensure that existing ground surface levels along the south-western boundary were maintained and to excavate a 2.5 m wide strip inside the property at that level. The Council accepted that these works would satisfactorily address this category of flow. Maintenance of the easement over that strip would reinforce the Council's ability to enforce any subdivision conditions. The majority of that boundary lies above the Q100 flood line. In my judgment, any modification of the easement which excluded all land above that line (i.e. which included that strip) would substantially injure the Council. Maintenance of the easement over that strip secures a practical benefit of substantial utility to it. On the other hand modification of the easement to exclude so much of the land as lies above the flood line and outside that strip would not substantially injure the Council in relation to flows in this category and maintenance of the easement over such land would not secure any practical benefit of substantial utility to the Council in relation to such flows.

[19] As regards flows from Norman Creek while it is in flood, three questions potentially arise. The first is whether use of the easement area for such flows is within the rights conferred by the easement. The second is whether this matters. The third is whether in any case the whole of the easement area is of practical benefit and whether modification of it would substantially injure the Council.

[20] The starting point must be the terms of the easement, which

"1. ... grants and transfers to the Grantee the full and free right and liberty at all times and from time to time to the uninterrupted flow of rain water and drainage of all kinds inclusive of stormwater run off flowing in concentration either intermittently or occasionally (all of which is hereinafter called "stormwater drainage") over and along the surface of the land described in Item (2) hereof (which land is hereinafter called "the servient tenement") without

(1) any obstruction, interruption, impeding, hampering or interference, diversion, scouring, change or alteration in or to the flow or escape of stormwater drainage or its or their natural outlet (if any) or

(2) any ponding of waters caused by or consequent upon

(a) any use to which the servient tenement may be put or

(b) the erection, raising, making, placing or suffering to stand or to remain of any building, fence, wall, structure (whether of the class just mentioned or not) paving or vegetation (except grass which is kept properly mown at all times) or thing whatsoever upon the servient tenement or

(c) any alteration in level or gradient of the servient tenement or any change to the surface of the servient tenement ...

(iii) The Grantor shall not erect any buildings, fences, walls, structures (whether of the class just mentioned or not) or pavings (hereinafter called "obstructions") nor permit nor suffer to grow or remain any vegetation (other than grass which is kept properly mown at all times) on the servient tenement nor ... on the land of the Grantor immediately adjacent to the servient tenement ...."

[21] The Council submitted that flows in this category were comprehended by the word "drainage" in the Deed of Grant. That is a word which has several meanings. In a stormwater context, it could possibly refer to the act or process of draining; to a system of drains; or to the thing which is drained off. In my judgment it bears the third of those meanings in the present context because the right which is granted by the deed is one to the uninterrupted flow of rainwater and drainage. Drainage must therefore be something capable of flowing, in the same sense as does rainwater. That view is confirmed by the inclusion in the term of stormwater run off. In this sense, I doubt that flood waters overflowing the banks of a water course and flowing on to Mr Smyth's land fall within the term. They are flowing onto the land rather than away from it. It is worth noting that the Lord Mayor's task force spoke of creek flooding and overland flow as separate things.[16] On the other hand water flowing onto the land from land upstream during time of flood could vis-à-vis the upstream land be described as drainage; but it seems unlikely that the draftsman would have included rights in relation to such water without including rights in relation to water originating in the water course. No authority was cited to me on this point, which apparently came to light only during oral submissions. The question must always depend upon the wording of the particular instrument, but it is not unlikely that numerous instruments in this form may exist. Without having had the benefit of fully prepared argument, I shall express no concluded opinion on this point.

[22] Mr Walker handed me a copy of s 89 of the Land Title Act 1994. He submitted that the easement is a public utility easement entitled to registration under s 89(2) of that Act. Unsurprisingly, the Council did not dispute that proposition. I shall proceed on the assumption that it is correct, but I note in passing the requirement that the easement be for drainage. It is arguable that in the context of s 89, "drainage" refers to a system of drains. If that is right, this easement might not be registrable. It is a question to which the Council might wish to give some attention.

[23] As to the second question, I doubt if the easement could be said to "secure" any practical benefit of substantial utility to the Council in respect of flows not covered by the rights conferred by it;[17] any such benefit would be coincidental or collateral. Whether the loss of a substantial collateral benefit can constitute a substantial injury for the purposes of para (d) is a more difficult question. Neither of these matters was addressed by counsel in their submissions; the submission for the Council was that overland flows of flood waters were covered by the easement. Again I need not decide them.

[24] I turn to the third question. The Council has accepted the level reached by the Q100 flood as its benchmark for excluding development near watercourses.[18] It permits development above that level.[19] In the present case it permitted development right down to that level at 29 Oatland Crescent and development almost down to that level at 27 Oatland Crescent. In both cases the development was below the flood regulation line or in other words, inside the waterway corridor. However the Council does not suggest that any of the environmental aims of that corridor is furthered by the easement in this particular locality. I infer that the easement was taken in respect of land above what was then thought to be the Q100 flood line only because of doubts about the data used to determine that line. Since that was done, new hydraulic modelling of Norman Creek has been completed for the Council as part of the Norman Creek Waterway Management Plan. Although it is not yet fully completed, that modelling produced a flood level for the Q100 flood of 19.25 AHD. This led that one Andrew Blake, hydraulic engineer with the Council's technical specialist team, to conclude in January 2005 that the existing easement was not required. It is true that other Council officers had earlier expressed different views, but none of them articulated a rational ground for those views. I am satisfied that Mr Blake's conclusion was correct. In my judgment to the extent that the easement covers land above the level of the Q100 flood it does not secure any practical benefit of substantial utility or advantage to the Council, and its modification by excluding land above that level would not substantially injure the Council, in respect of flows of flood water.

[25] Finally there is the question of the cumulative impact of permitting development between the flood level and the existing flood regulation line. This was a question addressed by the Lord Mayor's task force, but there is no evidence that its conclusion on this question has been adopted by the Council. The taskforce reported:

"The approval process needs to consider the impact of site 'cut and fill' operations on creek and local (overland flow) flood behaviour and risk when assessing proposed building on land prone to flooding. For example, the location and extent of proposed site 'filling' must have due regard to the 'cumulative impact' of the proposed development. The works must not adversely impact on flooding or drainage of properties that are upstream, downstream or adjacent to the subject site.

Further, consideration should be given to the question of whether it is appropriate to 'balance' local cut and fill volumes (i.e. no loss of floodplain storage). The impact of cut and fill operations on both regional and local 'hydraulic conveyance' (i.e. the ability of the floodplain to convey floodwaters) may need to be quantitatively assessed via flood models.

Council should review the treatment of 'cumulative impacts' when assessing development applications. Currently, Council assesses (correctly) the impact of future development on a cumulative basis when undertaking flood studies. It is essential that changes to the development application process under Integrated Planning Act (IPA) 1997 do not allow developers to propose developments on flood-prone land that were not originally intended and that impacts are treated on a cumulative basis in accordance with the tenets of best practice flood risk management. Flood-based land use zoning and controls are fundamental flood risk management measures and the statutory land use planning process needs to incorporate them in an effective and transparent manner. It is noted that the adoption of appropriately named and conditioned hydraulic 'zones' (categories) for flood-prone land will assist in managing the cumulative impact problem."

The report defined flood prone land as land subject to inundation by the largest flood that could conceivably occur at a particular location.

[26] Mr Blakey deposed to the possible impacts on the Norman Creek flood plain (using that term to describe the total area around Norman Creek subject to inundation by the largest flood that could conceivably occur in the catchment). The first was the increase in stormwater run-off resulting from the creation of impervious areas in new developments. There is however no evidence of the potential for new developments within the catchment (or more accurately, so much of it as lies within the flood plain) of the creek. It must be remembered that this is already a highly developed area of Brisbane. The amount of new development capable of causing an increase in existing impervious areas must be limited. There is simply no evidence that this catchment is capable of generating a significant cumulative increase in stormwater run-off over the flood plain. It is also difficult to see why, if this were a significant consideration, it should be limited (as Mr Blakey suggested) to development proposed for the flood plain rather than extended to all development in the catchment. Such considerations may explain why there is no evidence that it has been adopted by the Council.

[27] The second possible impact to which Mr Blakey referred was the effect of placement of additional fill in the flood plain. It is true that for every cubic metre of fill added to the flood plain above the level of the Q100 flood, a cubic metre of water would be displaced during a flood of sufficient height to cover that fill. By definition this can occur only on extremely rare occasions - so rare that the risk is trivial. There is no evidence of the average return interval of the flood which would be needed to cover the fill which Mr Smyth proposes to place on his land, but it must be a long period. In any event, if the Council thought the issue mattered, the impact could be negated by requiring the fill to be obtained from elsewhere in the same catchment as a condition of subdivisional approval. There is no evidence that the Council has ever imposed such a condition. It did not do so on either of the townhouse developments in Oatland Crescent.

[28] I am therefore satisfied that even if one takes hypothetical cumulative impacts into account, to the extent that the easement covers land above the level of the Q100 flood, it does not secure any practical benefit of substantial utility or advantage to the Council in relation to those impacts and its modification by excluding land above that level would not substantially injure the Council in relation to them.

[29] Section 181(1)(d) of the Act uses the words "substantially injure". The partiesagreed that these words refer to an injury which is more than trivial or theoretical; but do not imply the need for an injury which is large or considerable.[20] The onus is on the applicant to prove that the proposed modification will not cause such an injury. The applicant has failed to do this in relation to his current proposal. The position would be otherwise were he to propose a modification which would leave a 2.5 m strip along the south-western boundary covered by the easement. I shall enquire as to the existence of such a proposal after delivering these reasons for judgment.

[30] In relation to para (b) the Council submitted that it was necessary to consider not only whether the easement secured any practical benefits, but also whether its continued existence would impede some reasonable user of the land. It submitted that "or", where thirdly appearing in the paragraph, meant "and". It has been so held in several cases decided at first instance in Queensland[21] and none of the submissions made to me satisfies me that those decisions are plainly wrong. I should follow them. The Council submitted that "reasonable user" was to be judged from the viewpoint of the person entitled to the benefit of the easement;[22] and that if the land were suitable for several different uses and the easement did not impede one or more of those uses, reasonable user of the land was not impeded.[23] The cases cited in support of those propositions were decided under different legislation; in particular legislation which did not, as I read the cases, include the word "some". The words and structure of s 181(1)(b) do not readily admit of such an interpretation and no Queensland authority supports it. I reject the submission. From Mr Smyth's viewpoint, use of the land for a dwelling following subdivision is a reasonable use which the continued existence of the easement would impede.[24]

[31] The Council conceded that if any of the subparagraphs of s 181(1) was satisfied relief should be granted; there were no discretionary considerations against doing so.

[32] I shall hear the parties on the questions of whether the applicant wishes to modify his proposal and whether that should be regarded at this stage; if he does, what conditions if any should be imposed and what form of order should be made; and costs.

[1] The land is coloured yellow on the copy survey plan attached as Annexure A.

[2] Mr Smyth also relied upon paragraphs (a) and (c), but it will not be necessary to refer to them.

[3] This history has been taken from Appendix C to the Report of the Lord Mayor's Task Force on Suburban Flooding, August 2005, which was exhibited in evidence..

[4] The task force report recognized that some development had taken place by permission within waterway corridors, but that recommended that further development and filling be prohibited. There is no evidence that this recommendation has been implemented.

[6] I was not referred to any particular legal provision in the Plan or elsewhere using the term or making provision about waterway corridors. Despite the terms of the definition the Council apparently also uses the corridors for environmental protection purposes.

[7] Unreported, Planning and Environment Court 276/1995, cited in the task force report (see note [4]) at p 61.

[8] Charles Howard Pty Ltd v Redland Shire Council [2006] QPEC 95; _Mackay Conservation Group Inc v Mackay City Counci_l [2005] QPEC 94; Collin Park Pty Ltd v Redland Shire Council [2004] QPEC 27; Cornerstone Properties Ltd v Caloundra City Council [2003] QPEC 42; Daikyo (North Queensland) Pty Ltd v Cairns City Council [2003] QPEC 22; Allaries v Brisbane City Council [2002] QPEC 46.

[11] See Annexure A. I was told from the bar table that Mr Smyth still owns Lot 70; but nothing turns on that fact.

[13] Strictly speaking, it abutted a 300 mm wide strip of land running beside the north-western and south-western boundaries of Mr Smyth's land. It seems that the strip was dedicated to the Council at the time of the subdivision in the mid-1990s.

[14] Exhibit B to the affidavit of J McArthur, para 1.

[15] 29 and 27 Oatland Crescent are the lots marked 43 and 42 respectively in the plan, Annexure A.

[16] Report of the Lord Mayor's Task Force on Suburban FloodingReport of the Lord Mayor's Task Force on Suburban Flooding, August 2005, p i., August 2005, p i.

[17] See Ex parte Proprietors of Averil Court Building Units Plan No 2001 [1983] Qd R 66 at p 69. I doubt the correctness of the contrary view expressed by Ambrose J in Eucalypt Group Pty Ltd v Robin [[2003] 2 Qd R 488 at p 508; [2003] QSC 63 at para [112] ff.

[19] The pattern of approval is particularly relevant: s 181(2).

[20] See Averono v Mbuzi [2005] QCA 295 at [26] and the cases there cited.

[21] Ex parte Melvin [1980] Qd R 391; Ex parte Proprietors of Averil Court Building Units Plan No 2001 [1983] Qd R 66; Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488; [2003] QSC 63; Ex parte Wenck [2004] QSC 15.

[22] Relying on Re Henderson's conveyance [1940] Ch 835 and Heaton v Loblay [1960] SR (NSW) 332.

[23] Relying on Re Miscamble's application [1966] VicRp 81; [1966] VR 596. A different interpretation has been adopted in Western Australia and the ACT: see Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325.

At a glance

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Judgment (66 paragraphs)

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Legislation Cited (2)

Cases Cited (1)