Vidakovic & another v Brisbane City Council & another

[6] s.3.2.1 of the Integrated Planning Act 1997 (Qld) (IPA) deals with an application for development and provides (relevantly) at (12):

"To the extent the land, the subject of the application, has the benefit of an easement and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required"

[7] Central to the dispute before me is the contention of the applicants, that as a matter of law they have an easement over Lot 12, and therefore the consent of the second respondent to the development was not required. It has always been the position of the Council and the second respondent that the applicants do not have the benefit of an easement over Lot 12 and that consent was therefore required.

[8] The second respondent has not consented and the applicant's apply (inter alia) for declaratory relief pursuant to s.4.1.21 of the IPA for declarations and orders that the applicants' development application (absent the consent of the second respondent) is a properly made application.

[9] Alternatively, the applicants seek (inter alia) declarations that the second respondent has contravened conditions 1 and 3 of the development permit for the material change of use of Lots 11 and 12, and seeks enforcement orders.

[10] It can be accepted that at the time of the granting of the original development permit to develop lots 11 and 12 in 2002, there was probably an intention to grant an easement in favour of Lot 10 over Lot 12, but that by the time the relevant condition (Condition 15) was finalised in 2005 (as a result of changes made pursuant to s.3.5.33 of IPA), that had changed. The MCU application to develop Lots 11 and 12 was code assessable, so the present applicants had no submitter rights and were not parties to the formulation of the relevant condition. Mr. Hinson's written submission (filed 14 April 2009) contains a helpful summary of the process leading up to the final form of condition 15. I adopt his summary (at 5 - 12) of the outline which refers to the affidavit of the applicant's solicitors Mr. Nicholas Purcell (NP) and the 465 page exhibit to the affidavit contained in three volumes:

"[5] On 19 December 2002 the Council gave a development permit for a material change of use for centre activities for Lot 11 and Lot 12: originating application paragraph 4; Purcell paragraph 10 and Exhibit NP1 pp.465-476.

[6] Condition 1 of the development permit (Exhibit NP1 p.468) is as follows:-

"Carry out the approved development generally in accordance with the approved drawings and/ or documents."

[7] One of the approved drawings (Exhibit NP1 p.467) is Drawing 20206 DA 01/A dated 4.7.02, which is reproduced at Ex NP1 p.477.

(d) on Lot 12 there is an area described as follows:-

(e) on Lot 11 there is an area described as follows:

[9] Condition 15 of the development permit (Ex NP1 p.472) provided as follows:-

(a) Easement for access purposes over Lot 12 on RP193049 (245 Given Terrace) in favour of the subject land and over subject land in favour of Lot 10 on RP19572 (237 Given Terrace)."

[10] Condition 3 of the development permit (Ex NP1 p.468) provided:-

"Maintain the approved development (including landscaping, parking, driveways and other external spaces) in accordance with the approved drawings and/ or documents and any relevant Council engineering or other approval required by the conditions."

[11] Condition 15 was changed under s.3.5.33 of IPA on 23.3.05 and again on 9.9.05. Conditions 1 and 3 remained unchanged, Drawing 20206 DA 01/A remained unchanged. After 9.9.05 condition 15 read as follows:-

"(a) Grant an easement for access purposes over Lot 12 on RP193049 (245 Given Terrace) in favour of Lot 11 on RP19572 (241 Given Terrace);

(b) Secure to the satisfaction of the Council the future grant of an easement for access purposes over Lot 11 on RP19572 (241 Given Terrace) in favour of Lot 10 on RP19572 (237 Given Terrace). The easement over Lot 11 on RP19572 (241 Given Terrace) in favour of Lot 10 on RP19572 (237 Given Terrace) is to be constructed at existing levels."

[12] On 23.11.05 Easement 709158745 was registered over Lot 12 in favour of Lot 11: see Ex NP1 pp.170-177. On 30.11.06 Easement 710144923 was registered over Lot 11 in favour of Lot 10: see Ex NP1 pp.263-269, and Ex NP1 pp.254-255 for SP179051.

[11] Mr. Hinson's submission in relation to the primary relief sought in his client's application is that on a proper construction of the registered easement, his clients are included in the description of "grantee" and "invitee" as defined in the easement over Lot 12 by virtue of their rights pursuant to the easement over Lot 11 in favour of Lot 10. He submits (at 15 of his written outline):

"[15] Under and for the purposes of Easement 70158745, (the easement over Lot 12):-

(a) the applicants and others defined as the grantee in Easement 710144923 (the easement over Lot 11) are:

(iii) expressly authorised by the grantee to use the easement on Lot 11 for pedestrian and vehicle access to and from Lot 10;

(b) the use of the easement on Lot 11 by the persons described in paragraph (a) is a use of Lot 11 within the meaning of clause 2.3(a);

(c) such persons are entitled, under clause 2.1 to have to, pass and repass over or across the easement on Lot 12 with or without vehicles".

[12] The Council and second respondent's response is that as a matter of law, the applicant's land does not have the benefit of an easement over Lot 12.

[13] At first blush, Mr. Hinson's oral submission in support of his written outline seemed to seek to derive support for his argument in support of the primary relief, by reference to the notes on the approved drawings referred to earlier. He accepted however, that in interpreting a registered easement, extrinsic evidence should not be used because this would run contrary to a central purpose of the Torrens system, which is to enable a person searching the register to identify the precise nature of the easement without having to know about circumstances and negotiations between parties leading up to registration: per the High Court in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 at 539 para [39].

[14] I have been favoured by extensive written and oral submissions by all counsel involved (Mr. Gore QC and Mr. Job for the Council Mr. Kelly SC and Ms. Kefford for the second respondent, and Mr. Hinson SC), and they have set out the relevant terms of the registered easements. There is no suggestion that in the easement in favour of Lot 11 over Lot 12, Lot 10 is stated as the land to be benefited (s.82 Land Title Act 1994 (Qld) (LTA)); or that the applicants have signed as the beneficiaries of that easement (s.83 of LTA), or that particulars of Lot 10 as beneficiary appear in the register (s.83A of LTA).

[15] Rather Mr. Hinson's argument is that "the land" (s.3.2.1(12)) "the subject of the application" in this case is "Lot 10, the easement on Lot 11 and the easement on Lot 12". He argues that s.3.2.1(12) is "not to be read as requiring Lot 10 specifically to have the benefit of an easement over Lot 12. It begins with the words "to the extent". Thus it applies to dispense with the need for the consent of the owner of Lot 11 to the extent the land, the subject of the application (Lot 10), has the benefit of an easement over Lot 11. It also applies, to dispense with the need for the consent of the owner of Lot 12, to the extent land subject of the application (the easement of Lot 11) has the benefit of an easement over Lot 12".

[16] I do not accept his submission.

[17] The definitions of "grantee" and "invitee" in the registered Easement over Lot 12 in favour of Lot 11 do not refer at all to Lot 10 as the benefited land, or to the applicants as the "grantee". The purpose of the easement is as "right of way access". The definition clauses in the Easement itself, particularly those of "grantee" and "invitee" and other terms, such as 2.3; make it clear that there must be a connection between the need of persons to gain access to the common property and the owner of the common property of Lot 11. I agree with Mr. Gore and Mr. Job that it is unlikely, in the absence of clear words, that the owner of the common property of Lot 11, as grantee, would take on obligations and/ or potential liability for the conduct of persons who have no connection with Lot 11 but need to access Lot 10. The easement makes no provision for, nor does it refer indirectly to, persons having a need to access "through" or "across" the common property of Lot 11 to access Lot 10.

[18] I also agree with the submission of Mr. Gore and Mr. Job and Ms. Kefford that to construe s.3.2.1(12) in the way contended for by Mr. Hinson ignores the commonality of language in s.3.2.1(12) and applicable provisions of the LTA such as s.82(2)(b). These are statutes in pari materia, and it is presumed that the legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection: Lennon v Gidson & Howes Ltd. (1919) AC. 709, 711 - 712, referred to in R v Caldwell & Kinross Ex Parte Makin [1987] 2 Qd. R. 437 at 439, per Connolly J.

[19] Mr. Hinson's submission also tends to undermine the importance of the principle of indefeasibility referred to in the Westfield Management case. The principle underpins the Torrens system incorporated in the LTA: see s.184(1). I am satisfied that in referring to land that "has the benefit of an easement" in s.3.2.1(12) of IPA, it is intended to refer only to land identified as the dominant tenement in the easement, and specified as the land to be benefited for the purposes of the requirements of the LTA. i.e. only Lot 11 and not Lot 10 in relation to the easement over Lot 12.

[20] In his oral submission, Mr. Hinson referred me to s.188(1)(a) of the LTA, being one of the exceptions to the principle of indefeasibility, arguing that in some way an equity has arisen from the actions of the second respondent, presumably in the time leading up to the registration of the easements over Lots 12 and 11. He made it clear that he was not presenting some new argument, rather his submission on the point was based on an acceptance of his argument about the proper construction of the development permit.

[21] Finally, in relation to the easement issue, Mr. Hinson relies on a decision of Megarry V-C in Nickerson v Barraclough [1980] Ch 325.

[22] Mr. Hinson's argument, based on Nickerson v Barraclough, is set out in his written submission:

"[24] But in any event Lot 10 has the benefit of an easement over Lot 12 because Lot 10 may be accessed from Lot 12 under terms of the easement on Lot 12 for the reasons summarised in paragraph 15. The easement on Lot 11 is itself a right of way to and from Lot 10. Use of the easement on Lot 12 by persons to access Lot 11 in connection with the use of Lot 11 as a right of way to Lot 10 is authorised by the easement over Lot 12.

[25] In Nickerson v Barraclough [1980] Ch 325 at 336 Megarry V-C said:-

"... take as an example a case where Plot A consists of a footpath some 3 feet wide and 100 yards long, running from land near a public highway up to Plot B. If there is an express grant of a right of way to Plot A over land which lies between Plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of Plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to Plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means to access to Plot A. for the purposes for which Plot A is used, namely, as a means of access to Plot B. In the result, the way can be used a means of access to Plot B via Plot A, notwithstanding Harris v Flower. If Plot A is not used as an actual means of access to Plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply."

(c) Lot 12 is the land near a public highway, lying between Plot A (Lot 11) and the highway (Great George Street).

[27] Substituting Lots 10, 11 and 12 for the land described in the judgement what Megarry V-C said is:

"take as an example the easement on Lot 11 consists of a footpath some 3 feet wide and 100 yards long running from Lot 12 up to Lot 10. If there is an express grant of a right of way to the easement on Lot 11 over Lot 12, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of the easement on Lot 11 at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to Lot 10, then I would have thought that the grant would be construed as a means of access to the easement on Lot 11 for the purposes for which the easement on Lot 11 is used, namely, as a means of access to Lot 10. In the result the way (on Lot 12) can be used as a means of access to Lot 10 via the easement on Lot 11, notwithstanding Harris v Flower. If easement on Lot 11 is not used as an actual means of access to Lot 10 but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply."

[28] Here, the easement on Lot 12 was registered before the easement on Lot 11, but it was always intended that there be an easement on Lot 11 giving access to Lot 10, and that the easement on Lot 12 give access to both Lot 11 and Lot 10: see Drawing 20206 DA 01/A which has never been changed and which continues to bind the second respondent."

[23] That case was concerned with the question whether landlocked land had an easement of necessity, and with the effect of s.62 of the Law of Property Act 1925 (UK) which relevantly provided:

"(1) A conveyance of land shall... by virtue of this Act operate to convey, with the land, all... advantages whatever, appertaining or reputed to appertain to the land, or any point thereof, or, at the time of conveyance... enjoyed with... the land or any part thereof..."

[24] Ms. Nickerson purchased the land in 1973. It was landlocked but was connected to a public highway by a lane over a small bridge on land belonging to the defendants. The land and laneway and bridge had once been part of the one parcel however this changed, and the plaintiffs claim focussed on a 1922 conveyance and sought to establish a right to use the defendants' laneway as access to the public highway by way of necessity for limited purposes and/ or by application to s.62.

[25] At first instance, Megarry V-C distinguished Harris v Flower (1904) 74 LJ Ch 127 which is described in Gale on Easements (17th edt. (2002) [9 -27]) as establishing "the general rule ... that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant"; by holding, by virtue of the application of s.62, that the 1922 conveyance created a right of way over the land to the bridge but for limited purposes.

[26] The decision of Sir Robert Megarry was reversed on appeal to the Court of Appeal: Nickerson v Barraclough and ors [1981] 1 Ch. 426, however his reasoning in the passage relied upon by Mr. Hinson was unaffected.

[27] Even the brief description of the complex factual scenario under consideration in Nickerson v Barraclough is enough to show that the case was dealing with a completely different situation, and Sir Robert Megarry's analysis has to be seen in light of the specific section of the Law of Property Act 1925 (UK) under consideration.

[28] As was made clear in the Court of Appeal, s.62 of the Law of Property Act 1925 (UK) dealt with a situation very different to that of the present, dealing with a conveyance of land and an issue as to whether, insofar as easement issues are concerned, land retained by the grantor is a servient tenement - giving access to a public road - and land conveyed to the plaintiff is the dominant tenement. Here Lot 10 is not landlocked, and Lot 12 is not retained land arising out of any conveyance of Lot 10.

[29] Mr. Hinson's argument essentially is that the second respondent has contravened conditions 1 and 3 by carrying out and maintaining the development contrary to "the approved drawing and/ or documents", in that the endorsement on Drawing 20206 DA 101/A dated 04.07.02 has not been complied with.

[30] The difficulty with that argument is that it runs completely contrary to the requirements of Condition 15, a condition specifically relating to the granting of easements, which condition has been fully complied with by the second respondent.

[31] It appears that the developer at the time of the issue of the permit in 2002 certainly took the view that Condition 15 did require him to provide an access easement over Lot 12 in favour of Lot 10, as the condition was challenged by application to this Court after Council refused to change it pursuant to s.3.5.33 of IPA. The appeal was apparently resolved by negotiation, and on 23.03.05 Judge A. Wilson S.C. allowed the appeal and Condition 15 was altered. The history of the changes to Condition 15 is summarised in the written submission of Mr. Kelly SC and Ms. Kefford at 46-50:

[46] On 23 March 2005, pursuant to a Judgment made by his Honour Judge Wilson S.C., the appeal was allowed and the application was approved to an amended Condition 16 which stated:

(a) Easement for access purposes over Lot 12 on RP 193049 (245 Given Terrace) in favour of Lot 11 on RP 19572 (241 Given Terrace) and over Lot 11 RP 19572 (241 Given Terrace) in favour of Lot 10 on RP 19572 (237 Given Terrace). The easement over Lot 11 on RP 19572 (241 Given Terrace) in favour of Lot 10 on RP 19572 (237 Given Terrace) is to be at constructed existing levels."

[47] The Guideline for Condition 15 relevantly stated:

"... The owner of 237 Given Terrace will of course be responsible for all costs associated with any worked required to ground levels to allow access to the easement over 241 Given Terrace. ..."

[48] On 6 September 2006 the then owner of Lot 11, with the consent of the owner of Lot 12, applied to the Planning and Environment Court for an order pursuant to section 3.5.33 of IPA that condition 15 of the Development Permit be changed. The change was sought on the basis that the registered owner of Lot 10 had declined to accept the grant of an easement over Lot 11.

[49] On 9 September 2005, pursuant to a Judgment made by consent by his Honour Judge Robin Q.C., Condition 15 was further amended and now states:

"(a) grant an easement for access purposes over Lot 12 on RP 193049 (245 Given Terrace in favour of Lot 11 on RP 19572 (241 Given Terrace);

(b) Secure to the satisfaction of the Council the future grant of an easement for access purposes over Lot 11 on RP 19572 (241 Given Terrace) in favour of Lot 10 on RP 19572 (237 Given Terrace). The easement over Lot 11 on RP 19572 (241 Given Terrace) in favour of Lot 10 on RP 19572 (237 Given Terrace) is to be at constructed existing levels."

[50]The Guideline with respect to Condition 15 was also amended and now states:

"To secure the satisfaction of Council for Condition 15(b), the owner of Lot 11 on RP 19572 (241 Given Terrace) shall enter into a deed with the Council and in terms of satisfactory to the Council agreeing to grant to owner of Lot 10 on RP 19572 (237 Given Terrace) if ever requested an easement for access purposes and to secure a similar agreement from the body corporate should a community title scheme be established for Lot 11 on RP 195272 (241 Given Terrace). The owner of 237 Given Terrace will of course be responsible for all costs associated with any works required to ground levels to allow access to the easement over 241 Given Terrace. ..."

[32] It is well established that if a development permit is ambiguous it should be construed in the way that places the least burden on the landowner: per Connolly J (with whom the Chief Justice and Matthews J agreed) in Matijesevic v. Logan City Council 1 Qd. R. 599 at 605; (1983) 51 L.G.R.A 51 at 57. In my view, even if there were ambiguity (which I do not think there is), the clear and unequivocal terms of Condition 15 would obviate the need for the second respondent to do something (contrary to Condition 15) on the basis of some endorsements on a drawing forming part of the approved drawings in which the reference is to a "proposed access easement" only. The approach I have adopted accords with well established principles applicable to the construction of conditions in a planning approval: see, for example, Serenity Lakes Noosa v Noosa Shire Council [2007] QPEC 5; [2007] Q.P.E.L.R. 334 per Wilson S.C., DCJ at 335, [6(b) and (c)].

[33] It follows that, in the absence of the consent of the second respondent, the development application is not properly made. The application for alternative relief also fails and the application is dismissed,

[34] The second respondent submitted that there are other parties directly affected by the relief sought by the applicants, for example the owner of the common property of Lot 11, who should have been joined in the originating application. Council supported this submission, however all parties agreed to proceed with the hearing of the application on the merits, and for this preliminary procedural point to be reserved. I think there is merit in the second respondent's submission, given the potential impact on registered proprietors associated with Lot 11, however it is unnecessary to reach a final conclusion in light of my decision to dismiss the application