Aus 8 Pty Ltd v Brisbane City Council & Ors [2026] QPEC 19

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Aus 8 Pty Ltd v Brisbane City Council & Ors [2026] QPEC 19 PARTIES: AUS 8 PTY LTD (ACN 152 018 954) (Appellant) v BRISBANE CITY COUNCIL (First Respondent) v TRUSTEE FOR SALTER BROTHERS (GARDEN CITY) TRUST (Second Respondent) v SALTER BROTHERS ASSET MANAGEMENT PTY LTD (Third Respondent) FILE NO/S: 2665/25 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 18 May 2026 DELIVERED AT: Brisbane HEARING DATE: 13 April 2026 JUDGE: McDonnell DCJ ORDER: 1. The Originating Application is dismissed. 2. I will hear the parties as to costs. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – whether Applicant’s consent was required under s 51(2) of the Planning Act 2016 (Qld) for a development application made by the Second Respondent – whether the development application was properly made - whether the easement is ‘excluded premises’ for the purposes of s 51 of the Planning Act 2016 (Qld) - whether the decision-maker’s decision was affected by error - whether the decision-maker took into account irrelevant considerations when approving the development application – whether the decision-maker failed to reconsider their decision under s 52 -- 1 of 33 -- 2 of the Planning Act 2016 (Qld) - whether natural justice was afforded to the Applicant CASES: Australia Pacific LNG Pty Ltd & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124. Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446. Brisbane City Council v Leahy (2023) 15 QR 101. BVD17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 29. Currumbin Investments Pty Ltd v Body Corp Mitchell Parkwood CTS [2012] 2 Qd R 511. Disorganised Developments Pty Ltd & Ors v South Australia (2023) 280 CLR 515. Eames v Brisbane City Council (2010) 177 LGERA 327. Elias v Commissioner of Taxation (2002) 123 FCR 499. Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] 2 Qd R 366. Ferreyra & Ors v Brisbane City Council & Anor [2016] QPELR 334. Grinskis v Lahood [1971] NZLR 502. Kioa v West (1985) 159 CLR 550. LPDT v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs & Anor (2024) 280 CLR 321. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2017] QCA 202. Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173. Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2011] QPELR 390. Riverside Development Pty Ltd v Brisbane City Council and Ors [2022] QPEC 53. Twist v Randwick Municipal Council (1976) 136 CLR 106. Westfield Management Limited v Perpetual Trustee Co Ltd (2007) 233 CLR 528. LEGISLATION: Planning Act 2016 (Qld) ss 51, 52, -- 2 of 33 -- 3 Planning and Environment Court Act 2016 (Qld) s 11 Planning Regulation COUNSEL: M Batty KC and M Rodgers for the Appellant B Job KC and J Bowness for the First Respondent J Ware for the Second and Third Respondents SOLICITORS: Connor O’Meara Solicitors for the Appellant City Legal for the First Respondent Minter Ellison for the Second and Third Respondents Introduction [1] On 28 March 2025 the First Respondent approved the Second Respondent’s development application on land located at 18 McGregor Street and part of 2221 Logan Road, Upper Mt Gravatt, subject to conditions (‘Development Approval’). [2] The Applicant made a properly made submission to the development application and on 16 May 2025 commenced an appeal against the First Respondent’s approval. About four months later, on 18 September 2025, the Applicant commenced this Originating Application. [3] In these proceedings the Applicant challenges the validity of the Development Approval and seeks: “1. A declaration, pursuant to s 11(1)(a) of the Planning and Environment Court Act 2016, that the First Respondent’s decision to accept the development application made by the Second Respondent to the First Respondent on or about 22 April 2024 for a development permit for material change of use for a childcare centre, multiple dwellings and short-term accommodation (carpark) and a development permit for reconfiguring a lot (1 into 2 Lot subdivision) (“Development Application”) in respect of land located at 18 MacGregor Street and part of 2221 Logan Road, Upper Mount Gravatt in the State of Queensland and more particularly described as Lot 3, and part of Lot 4, on SP110535 (“Land”) was contrary to law because : (a) the Development Application was not supported by the written consent of the owner of Lot 4 of SP110535 as required by s 51(2) of the Planning Act 2016; and (b) the assessment manager failed to afford natural justice to the owner of Lot 4 on SP110535 in making its decision pursuant to s 51(5)(b) of the Planning Act 2016; 2. in addition and in the alternative to paragraph 1, a declaration that the assessment manager failed to apply the Planning Act 2016 to the Development Application as changed on or around -- 3 of 33 -- 4 13 October 2024 (“Changed Development Application”) by failing to: (a) make a decision requiring the consent of the owner of Lot 4 on SP110535 for the Changed Development Application as required by s 52(2) of the Planning Act 2016; (b) afford natural justice to the owner of Lot 4 on SP110525 in making a decision for the Changed Development Application as required by s 52(2) of the Planning Act 2016; and (c) reconsider its earlier decision to accept the Development Application pursuant to s 51(4)(b) of the Planning Act 2016. 3. a declaration pursuant to s 11(1)(a) of the Planning and Environment Court Act 2016 that the First Respondent was not entitled to assess and decide the Development Application; 4. an order pursuant to s 11(4) of the Planning and Environment Court Act 2016 that the decision notice given by the First Respondent dated 28 March 2025 in respect of the Development Application be set aside and is taken to have no effect; and 5. such further or other orders as the Court deems necessary.”1 [4] The First, Second and Third Respondents oppose the relief sought by the Applicant. Background [5] On or about 22 April 2024, the Second Respondent made a development application for a development permit for a material change of use for a childcare centre, multiple dwellings and short-term accommodation (carpark), and a development permit for reconfiguring a lot (1 into 2 lots) (‘Development Application’). [6] The land the subject of the Development Application is 18 MacGregor Street, Upper Mt Gravatt, more particularly described as Lot 3 on SP110535, which is owned by the Third Respondent (‘Third Respondent’s Land’) and 2221 Logan Road, Upper Mt Gravatt, more particularly described as Lot 4 on SP110535, which is owned by the Applicant (‘Applicant’s Land’) (together, ‘the Land’). The part of the Land proposed to be developed has a frontage to MacGregor Street and an area of approximately 5,800m². The Third Respondent’s land is currently improved by the Mercure Hotel comprising 120 units (‘Mercure Hotel’). The Applicant’s Land is burdened by Easement No. 703133654 in favour of the Third Respondent’s Land (‘Easement’). [7] The Easement serves as the vehicular ingress and egress for the Applicant’s Land. The Mercure Hotel gains access to the Land by the access wholly within the Third Respondent’s Land to the west (‘Western Access’) and the Easement. 1 The declarations sought refer to the provisions of the PA in effect when the Originating Application was commenced. At the time the Development Application was lodged and decided, the relevant provisions of the PA had different numbering, but were otherwise identical. -- 4 of 33 -- 5 [8] When the Development Application was lodged it was proposed that the childcare centre ingress and egress would be via the Western Access. Ingress for the hotel was proposed via the Western Access and egress via the Easement. Ingress and egress for the residential residents and residential/hotel visitors was proposed via the Easement.2 [9] The 16 April 2024 traffic impact assessment accompanied the Development Application to the First Respondent.3 The traffic impact assessment reported on transport modelling, trip generation anticipated by the development, an impact analysis and the proposed access arrangements. The additional traffic movements in and out of the site were “considered minimal and unlikely to have an impact on the existing access points.4 The traffic impact assessment considered the relevant planning scheme codes and concluded “The Proposed Development utilises existing vehicular accesses on Macgregor [sic] Street and are not expected to cause any negative effects on adjoining landowners or Council.”5 Thus, the impact of the development on the Applicant and the Easement were specifically considered and determined to be negligible. [10] An amended DA Form 1 was lodged with the First Respondent on 5 June 2024. This formally identified the Applicant’s Land as part of the land the subject of the Development Application.6 [11] The First Respondent issued the confirmation notice to the Applicant under cover of its letter dated 6 June 2024.7 An amended confirmation notice, amending the name of the Applicant, was issued under cover of the First Respondent’s letter dated 6 June 2024.8 The real property description of the land the subject of the Development Application was described as Lot 3 on SP110535 and Easement R on Lot 4 110535. [12] On or about 13 June 2024, the First Respondent issued an information request in respect of the Development Application. The Third Respondent responded to the information request on 3 October 2024.9 The response included a revised traffic impact assessment dated 12 September 202410 and revised plans, which changed the proposed access arrangements for the development. The only change to the proposed access arrangements from the proposal as lodged is that the childcare centre traffic uses the Easement, rather than the Western Access. 11 The traffic impact assessment reveals transport modelling impact analysis and intersection analysis (including queue lengths) were undertaken. The assessment again concluded the additional trip generation in and out of the site was “considered minimal and unlikely to have an impact on existing access points”12 and vehicular access arrangements utilising 2 Fig. 3.2: Proposed Site Accessibility, Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 220. 3 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 204. 4 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 235. 5 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 280. 6 Court Document 27, CEO Certificate dated 13 November 2025, Vol 6, p 1191. 7 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1217 – 1218. 8 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1220-1221. 9 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1239. 10 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, pp 1249-1404. 11 Fig 3.2: Proposed Site Accessibility, Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1267. 12 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1281. -- 5 of 33 -- 6 existing accesses were not expected to negatively impact on adjoining landowners or the First Respondent.13 [13] A revised traffic impact assessment report dated 15 October 2024 was provided to the First Respondent.14 It addresses issues of car parking, servicing, refuse, and responded to the State Assessment and Referral Agency advice notice. The access arrangements remain unchanged, and the report reached similar conclusions about the impact of the development on existing access points and adjoining landowners as the previous reports.15 [14] The Applicant made a properly made submission to the Development Application.16 On 28 March 2025 the First Respondent approved the Development Application, as changed, subject to conditions. The Second Respondent was advised of the decision by letter dated 28 March 2025. On 16 May 2025 the Applicant commenced an appeal against the First Respondent’s approval. [15] On or about 11 June 2025, the solicitors for the Applicant requested a statement of reasons pursuant to s 32 of the Judicial Review Act 1991 (Qld) in respect of the First Respondent’s “decision to accept [the Development Application the subject of the confirmation notice date 6 June 2024] as properly made” (pursuant to s 51 of the Planning Act 2016) (‘the Decision’).17 In particular, reasons were sought in respect of the following matters: 1. the reasons relied upon to satisfy the First Respondent that the written consent of the Applicant was not required for the Development Application; and 2. to the extent any view was formed that the use of the Applicant’s Land as proposed by the Development Application is “excluded premises” for the purposes of the PA, the reasons relied upon to form that view.18 No reasons were requested with respect to the change to the Development Application. [16] By letter dated 9 July 2025 the First Respondent provided its Statement of Reasons to the Applicant.19 [17] On 18 September 2025 the Applicant commenced this Originating Application. The Applicant has not explained the delay in commencing this Originating Application. 13 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1341. 14 Court Document 31, CEO Certificate dated 13 November 2025, Vol 10, p 1904. The 12 September 2024 report appears to have been provided to the First Respondent twice. 15 Court Document 31, CEO Certificate dated 13 November 2025, Vol 10, pp 1936 & 2Traf002. 16 Court Document 33, CEO Certificate dated 13 November 2025, Vol 12, p 2455. 17 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Vol 14, p 1845. 18 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Vol 14, pp 1845 – 1846. 19 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Vol 14, pp 1847 – 1849. -- 6 of 33 -- 7 What is the nature of the proceedings? [18] Declaratory proceedings in the Planning and Environment Court are analogous to judicial review proceedings. The same constraints apply. The focus must be on the legality of the decision and whether it was validly made, rather than its merits.20 [19] As observed by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection:21 “[23] It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff’s challenge to the validity of the Delegate’s decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not: “an appellate procedure enabling either a general review of the …decision…or a substitution of the…decision which the …court thinks should have been made.”” [20] In considering whether the alleged non-compliance or failure in the decision-making process is established, guidance is provided by BVD17 v Minister for Immigration and Border Protection & Anor.22 In that decision Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ observed:23 “As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.” (Footnotes omitted). [21] The onus is on the Applicant to establish it is entitled to the declarations sought. To the extent it seeks to do so by reference to inferences from the statement of reasons, that statement of reasons is to be read fairly and “not to be construed minutely and finely with an eye keenly attuned to the perception of error” nor “scrutinised upon 20 See Ferreyra & Ors v Brisbane City Council & Anor [2016] QPELR 334, 336, [5] citing Eschenko v Cummins & Ors [2000] QPELR 386 at 389, [20], Westfield Management Ltd v Brisbane City Council & Anori [2003] QPELR 520 at 531, [55] – [57]; Di Marco v Brisbane City Council & Ors [2006] QPELR 731; Wheldon v Logan City Council [2015] QPELR 640; Birkdale Flowers Pty Ltd (ACN 010950259) v Wilson Four Pty Ltd (ACN 144846417) [2016] QPELR 231. 21 (2015) 258 CLR 173, [23] – [24]. 22 (2019) 268 CLR 29. 23 (2019) 268 CLR 29, 45 [38]. -- 7 of 33 -- 8 over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”24 The objections to the evidence [22] The Applicant sought to rely upon material not before the decision-maker and contained in the affidavit of Michael John Connor sworn 9 April 2026 (Court Document 49-51), the affidavit of Stuart Andrew Holland sworn 18 September 2025 (Court Document 2) and the affidavit of Stuart Andrew Holland sworn 9 April 2026 (Court Document 48). I have had regard to the relevant legal principles as identified in Annexure B to the decision of Bond J in Australia Pacific LNG Pty Ltd & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124. I have dealt with the objections in Schedule A to these reasons for judgment. Was Aus 8’s consent required to make the Development Application? [23] The Applicant is the owner (as defined in the Planning Act 2016 (Qld) (the ‘PA’)) of the Applicant’s Land which forms part of the land the subject of the Development Application. The Amended DA Form 1, relied upon for the giving of the amended confirmation notice, identified the Applicant’s Land as part of the relevant premises.25 The Applicant has been the registered owner of the Applicant’s Land at all relevant times and since prior to the making of the Development Application.26 [24] The Applicant says that as owner of the Applicant’s Land its consent should have been obtained for the making of the Development Application. [25] The obligation to obtain the consent of the owner arises in s 51 of the PA, which at the date of the making of the Development Application provided: “51 Making development applications (1) A development application must be— (a) made in the approved form to the assessment manager; and (b) accompanied by— (i) the documents required under the form to be attached to, or given with, the application; and (ii) the required fee. (2) The application must be accompanied by the written consent of the owner of the premises to the application, to the extent— (a) the applicant is not the owner; and (b) the application is for— (i) a material change of use of premises or reconfiguring a lot; or 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 25 Court Document 27, CEO Certificate dated 13 November 2025, Vol 6, p 1191. 26 Court Document 22, CEO Certificate dated 13 November 2025, Vol 1, p 76. -- 8 of 33 -- 9 (ii) works on premises that are below high-watermark and are outside a canal; and (c) the premises are not excluded premises.” … (4) An assessment manager— (a) must accept an application that the assessment manager is satisfied complies with subsections (1) to (3); and (b) must not accept application unless the assessment manager is satisfied the application complies with subsections (2) and (3); and (c) may accept an application that does not comply with subsection (1)(a) or (b)(i); and (d) may accept an application that does not comply with subsection (1)(b)(ii) to the extent the required fee has been waived under section 109(b). (5) An application that complies with subsections (1) to (3) or that the assessment manager accepts under subsection (4)(c) or (d), is a properly made application.”27 [26] The phrase “excluded premises” in s 51(2)(c) is defined in Schedule 2 of the PA. The definition is, relevantly: “Excluded Premises means— (a) Generally— (i) Premises that are a servient tenement for an easement, if the development is consistent with the easement’s terms …” [27] Section 51(4) required the delegate to determine whether the Applicant’s Land was excluded premises as defined in the PA. [28] The Applicant advances two bases in relation to the owner’s consent issue. First, that the Development Application was not properly made pursuant to s51(5) of the PA because of the failure to obtain the consent of the Applicant. That ‘the determination of whether the Development Application is properly made is an objective determination’ pursuant to s51(5) of the PA. Further, that as the application is not properly made, the First Respondent is not entitled to exercise the power to assess and decide the Development Application. In the alternative, the Applicant says that the delegate erred in reaching the state of satisfaction under s51(4) of the PA having (1) misdirected herself as to the law, (2) failed to take into account relevant considerations, and (3) taken into account irrelevant considerations. 27 This is s 51 of the Planning Act 2016 applicable at the time the Development Application was treated as properly made. At the time of the Development Application was treated as properly made and decided the relevant PA had different numbering but were otherwise identical. The provisions in effect at the relevant time have been adopted in these reasons. -- 9 of 33 -- 10 [29] Turning first to whether the Development Application was a properly made application under s 51(5) of the PA. Was the Development Application properly made? [30] The Applicant submits that the Applicant’s Land is not “excluded premises” having regard to the proper construction of the terms of the Easement, the consequences of the development for the Easement land, and the lack of consistency between the Easement as properly construed and the development. Thus, the Applicant submits that because of the failure to obtain the Applicant’s consent, the Development Application was not a properly made application under s 51(5) of the PA. [31] Section 51(4)(a) and (b) of the PA require the assessment manager to be “satisfied” that, amongst other matters, owner’s consent has been provided, if required, before accepting a development application. Here, that included being satisfied that the development was consistent with the terms of the Easement. [32] Whether the Development Application is consistent with the Easement terms and so whether the Applicant’s Land is excluded premises requires consideration of the terms of the Easement and the development. [33] The development is informed by the Development Application. [34] It is uncontroversial that the Development Application relies upon the Easement for access for the development both before and after the change. The traffic assessment report provided in support of the Development Application before the change considers, amongst other things, the access proposed for the development via the Western Access and the Easement. It concludes that the impact of the additional traffic movements arising from the development in and out of the Land would be minimal and “unlikely to have an impact on the existing access points” and that the utilisation by the proposal of the vehicular accesses on MacGregor Street are not expected to cause any negative effects on adjoining landowners or the First Respondent. As a result of the change to the Development Application the vehicular traffic from the childcare centre will also use the Easement for access to and from the Dominant Tenement. While the volume of the traffic will increase, the use of the Easement for access purposes to and from the Dominant Tenement remains unchanged. The traffic assessment reports prepared following the change conclude that the additional traffic movements arising from the development in and out of the land are minimal, are unlikely to impact on the existing access points and that utilisation by the development of the vehicular accesses on MacGregor Street is not expected to cause any negative effects on adjoining landowners or the First Respondent. Principles relevant to construction of the Easement [35] The leading High Court authority regarding construction of easements registered under the Torrens system is Westfield Management Limited v Perpetual Trustee Co Ltd28 (‘Westfield’). In Westfield the Court observed at [5] that: “Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to 28 (2007) 233 CLR 528. -- 10 of 33 -- 11 provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question.” And further at [39]: “The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee.” [36] The Applicant urges that regard should be had to the 1998 development approval to construe the “normal use” in Clause 4.1(a) of the Easement Terms. In adopting this approach, the Applicant relies upon the reasons of Fryberg J in Currumbin Investments Pty Ltd v Body Corp Mitchell Parkwood CTS29 who considered that an important consideration in determining whether a document can be used to construe an easement is whether it was and remains publicly available to third parties without reasonable effort, expense or delay. However, the approach of Fryberg J was not adopted by the other members of the Court. While the High Court in Westfield did not limit the permissible extrinsic material, the development approval is not the type of extrinsic material envisaged in Westfield30 as relevant to the construction of the Easement. Rather, in construing the Easement it is necessary to have “regard to the instrument itself, and not to extrinsic evidence, to determine the intention of the parties”.31 The subjective intention of the parties is not relevant to the proper construction of an easement. [37] A liberal approach must be adopted to construing the terms of an Easement “on the basis that such a grant creates rights of indefinite duration that continue to exist in a changing environment”.32 [38] The terms of the Easement provide that: (a) the Servient Tenement is Easement R on Lot 4 on SP110535; (b) the Dominant Tenement is Lot 3 on SP110535; (c) the Purpose of the Easement is “Right of Way”; and (d) the Easement is to be construed without reference to the headings.33 [39] The terms of the Easement include the following definitions, which apply unless the contrary intention appears: “Authorised Users” includes: (a) the Grantee; 29 [2012] 2 Qd R 511, [53]. 30 Westfield [44]. 31 Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2017] QCA 202, [121]. 32 Fanigun Pty Ltd v Woolworths & Anor: Woolworths Ltd v Fanigun Pty Ltd and Anor [2006] 2 QdR 366 [85] citing Grinskis v Lahood [1971] NZLR 502, 509. 33 Court Document 22, Clause 1.2(b), CEO Certificate dated 13 November 2025, Vol 1, p 79. -- 11 of 33 -- 12 (b) the Grantee’s tenants, licensees and other lawful occupiers of the Dominant Tenement; and (c) visitors, customers, invitees, employees, workmen and agents of those persons specified in paragraphs (a) and (b). “Grantee” includes: (a) the successors in title and assigns of the Grantee; and (b) the registered owner for the time being of the Dominant Tenement or any land of which it may from time-to-time form part. “Grantor” includes: (c) the successors in title and assigns of the Grantor; and (d) the registered owner for the time being of the Servient Tenement or any land of which it may from time to time form part. [40] Clause 2.1 of the Easement terms provides: “The Grantor grants to the Grantee and the Authorised Users the full and free right and liberty for the Grantee and the Authorised Users to pass and repass by: (a) motor vehicles (including refuse removal vehicles); (b) bus; (c) foot; (d) motorbike or bicycle, over, along and upon the Servient Tenement for access purposes to and from the Dominant Tenement in common with the Grantor and all other persons from time to time lawfully using or enjoying the Servient Tenement.” [41] Clause 4 provides: “The Grantor and the Grantee shall: (a) keep the Servient Tenement free from all obstructions (except in connection with the normal use of the Servient Tenement); (b) not cause any hindrance or nuisance on the Servient Tenement; and (c) not do anything on the Servient Tenement which might obstruct access over the Servient Tenement in accordance with clause 2.1.” [42] The registered plan SP11053534 shows that the Easement, located within the Applicant’s Land along part of its boundary with the Third Respondent’s Land, facilitates access from the Third Respondent’s Land to MacGregor Street. That easement is the sole vehicular access for the Applicant’s Land to the road network. 34 Court Document 42, Affidavit of BN Shiel-Butera affirmed 4 February 2025, exhibit BSB-01, pp 1- 2. -- 12 of 33 -- 13 [43] In Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor35 Mullins JA (as the President then was) considered the words “go pass and repass” implied motion. Her Honour considered this construction was reinforced by Condition 1 of the Grant of Easement, which prohibited both the Grantor and the Grantee from obstructing “in any way the use of the servient tenement” for the purpose of the right of way. [44] I accept that “pass and repass” similarly implies motion. However, this must be construed in the context of the Easement terms which specifically address the issue of obstruction in a manner which distinguishes the terms of the Easement from that considered by the Court in Fanigun. Each provision of the Easement must be read together and construed with the others, so as to render, as far as possible, the provisions harmonious with each other. That is, the document must be construed as a whole. [45] Clause 4.1(a) of the terms of the Easement specifically acknowledges there may be obstruction of the Easement in connection with the normal use of the Easement. “Normal use” is not a defined term in the Easement and must be given its plain meaning consistent with the context in which it appears. The “authorised users” are broadly defined and are not tied to or limited to a particular use of the Dominant Tenement. “Normal use” in Clause 4.1(a) properly construed is a reference to the normal use of the Servient Tenement as envisaged under the terms of the Easement being to pass and repass for access purposes to and from the Dominant Tenement. [46] The location of the Easement means that those seeking to egress from the Third Respondent’s Land and enter MacGregor Street via the Servient Tenement must necessarily obey road rules and observe road safety. This may require that those vehicles wait on the Easement land before entering MacGregor Street. Depending upon the number of authorised users seeking to undertake the same manoeuvre at any one time this may result in queuing within the Easement. Given the terms of the Easement, including that it is for passing and repassing for access purposes to and from the Dominant Tenement, and the location of the Easement, any queuing is in connection with the normal use of the Easement. The traffic assessment before and after the change opine that the development on the Land is unlikely to have an impact on the existing access points or adjoining landowners. [47] For these reasons, I am satisfied that the development is consistent with Clause 4.1(a) of the Easement terms. [48] The Applicant submits that the development will cause a hindrance or nuisance on the Servient Tenement contrary to Clause 4.1(b) of the Easement terms. It says that the evidence establishes that the development will result in a “hindrance” and “nuisance” by causing significant queuing for periods of time over the Easement land and causing blockages at the undercroft access of the Applicant’s Land preventing vehicles from entering the Easement. [49] The words “hindrance” and “nuisance” are not defined terms in the Easement. They are to be given their plain meaning, consistent with the context in which they appear. The Macquarie Dictionary (Edition 8) provides that “hindrance” is “an impeding, 35 [2006] 2 Qd R 366 [76]. -- 13 of 33 -- 14 stopping or preventing”. “Nuisance” is defined as “something offensive or annoying to individuals or to the community, to the prejudice of their own legal rights.” [50] For the purposes of Clause 4.1(b), “hindrance or nuisance” must be construed having regard to the purpose of the Easement, that is to pass and repass for access to and from the Dominant Tenement. The Easement facilitates access to the public road system. Access to MacGregor Street necessarily requires authorised users to obey road rules and operate in a safe manner. This may require that vehicles wait before exiting the Land, which may result in queuing on the Servient Tenement in the event there is more than one vehicle seeking to undertake the same manoeuvre. Any such queuing is a consequence of the authorised users of the Easement obeying road rules and driving vehicles in a safe manner. [51] As the terms of the Easement contemplates obstruction, I am not persuaded that in the context of the clause “nuisance” and “hindrance” can be properly construed to mean that there should be no queuing. Some queuing cannot, without more, be elevated to the status of nuisance or hindrance. As the additional traffic movements, both before and after the change, are minimal and unlikely to have an impact on existing access points, and traffic arrangement are not expected to negatively impact on adjoining landowners, I am not persuaded that the development will cause in “hindrance” or “nuisance” on the Servient Tenement. [52] The Applicant contended that “nuisance” means an “interference with a public or private interest”36 and that “hinder” means to “interfere with for the purpose of delaying a person or thing”.37 I accept that the hindrance need not be permanent is evident from the use of the word “delaying” in the definition. My opinion does not change if these definitions are instead adopted, having regard to the evidence as to the impact of the additional traffic movements. [53] For these reasons, the development is consistent with Clause 4.1(b) of the Easement terms. [54] The Applicant contends the proposal is inconsistent with Clause 4.1(c) of the Easement terms because the proposal will obstruct access over the Easement. The Applicant says this obstruction to the Applicant’s undercroft access and the queuing of vehicles preventing the Applicant from accessing the Easement for periods of time is contrary to the terms of the Easement. [55] Clause 4.1(c) provides that the Grantor and the Grantee shall not do anything on the Servient Tenement which might obstruct access over the Servient Tenement in accordance with Clause 2.1. [56] The Third Respondent is not doing anything on the Servient Tenement. The proposal it to develop Lot 3. Access is proposed over the Easement and that access is consistent with the terms of the Easement and in accordance with Clause 2.1. Queuing may arise as a result of drivers wait for a safe opportunity to enter MacGregor Street. That is a consequence of the drivers obeying the road rules, not of anything the Third Respondent has done or proposes to do. Furthermore, the additional traffic movements arising from development are unlikely to have an impact on the existing 36 LexisNexis Concise Australia Legal Dictionary citing Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683. 37 LexisNexis Concise Australian Legal Dictionary. -- 14 of 33 -- 15 access points or adjoining landowners. For these reasons, I am satisfied that access over the Servient Tenement in accordance with Clause 2.1 will not be obstructed. [57] For these reasons, the development is consistent with to Clause 4.1(c). [58] The development proposes access to and from the Dominant Tenement over, along and upon the Servient Tenement. I am satisfied that the development, both before and after the change, is consistent with the terms of the Easement because the context of the Easement envisages observance of road rules which may result in queuing on the Easement. The additional traffic movements in and out of the Land arising from the development, both before and after the change, are unlikely to impact on the existing access points and are not expected to impact negatively on adjoining owners. For these reasons the development is consistent with Clause 2.1. [59] For these reasons I am satisfied that the development, both before and after the change, is consistent with the terms of the Easement. The Applicant’s Land is “excluded premises” under the PA. As such, the consent of the owner of the Applicant’s Land is not required and the Development Application was properly made. That the delegate’s decision is affected by error [60] The Applicant submits that the delegate erred in reaching satisfaction under s 51(4) of the PA because it says the Applicant’s Land is not “excluded premises”. Judge Williamson KC in Riverside Development Pty Ltd v Brisbane City Council & Ors38 observed that: “[186] The nature of the decision made by the delegate under Rule 26.1 of the DAR, as I have said, required him to be ‘satisfied’ about a stated matter. The bases for reviewing a decision of this kind are well established; they are constrained. As Gibbs J said in Buck v Bavone (1975-76) 135 CLR 110 at 118 to 119: ‘It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or 38 [2022] QPEC 53. -- 15 of 33 -- 16 taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.’” [61] The Applicant contends that the delegate: (1) misdirected herself as to the law, (2) failed to take into account relevant considerations, and (3) took into account irrelevant considerations. [62] As has been observed and accepted: “As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor….”39 [63] The delegate formed the view that the Development Application complied with s 51(2) of the PA because the Applicant’s Land was “excluded premises”. The delegate was satisfied, pursuant to s 51(4)(a) of the PA, that the Development Application complied with s 51(1) - (3) of the PA. [64] It is relevant to consider the Statement of Reasons. The Reasons are required to include: “(a) findings on material questions of fact; and (b) a reference to the evidence or other material on which the findings were based; as well as the reasons for the decision.”40 The delegate’s Statement of Reasons do this. The Decision relates to the Development Application the subject of the confirmation notice dated 6 June 2024. [65] After setting out the background, the delegate identifies the material considered: “9. In deciding the Development Application was properly made the following material was considered: (a) The Development Application submitted to Council on 18 April 2024: (i) Assessment Planning Report, Ethos Urban (ii) Attachment A: DA Form 1 and Landowners Consent (iii) Attachment B: Pre-Lodgement meeting Minutes (iv) Attachment C: Title Searches and Easement Dealings 39 Elias v Commissioner of Taxation (2002) 123 FCR 499at [57] per Healy J, cited with approval in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; 228 ALR 28; [2005] FCA 1707 at [525]. 40 Section 3, Definition of “Reasons”, Judicial Review Act 1991 (Qld), and s 34. -- 16 of 33 -- 17 (v) Attachment D: Proposed Subdivision Plan (vi) Attachment E: Architectural Plans and Design Report (vii) Attachment F: Landscape Concept Plan (viii) Attachment G: Traffic Impact Assessment (ix) Attachment H: Noise Impact Assessment (x) Attachment I: Civil Engineering Report and Stormwater Management Plan (xi) Attachment J: Economic Impact Assessment (xii) Attachment K: Waste Management Plan (xiii) Attachment L: Code Assessment (xiv) Attachment M: Centre Zone Building Height Analysis (b) Amended DA Form 1 submitted to Council on 5 June 2025 (c) Planning Act 2016 (Qld) (d) Planning Regulation 2017 (Qld) (e) Development Assessment Rules (f) Queensland Government Guide to Owner’s Consent”41 [66] The delegate then sets out the reasons for the Decision and the findings of fact as follows:42 “REASONS FOR DECISION 10. I formed the opinion that the written consent of the owner of the Neighbouring Land was not required for the Development Application, and that the use of the Neighbouring Land as proposed by the Development Application was “excluded premises” for the purposes of the Planning Act 2016, for the following reasons. 11. At the time of lodgement on 18 April 2024 the Development Application was accompanied by the mandatory information required by ‘DA Form 1 – Development Application details’ and included assessment planning report and the attachments to that report which provided details of the development the subject of the Development Application, including plans of the development. 12. The Town Planning Assessment report included, as ‘Attachment C’ an attachment which contained Title Searches and Easement Dealings’. 41 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, pp 1847 – 1848. 42 In the Statement of Reasons the delegate refers to the Applicant’s Land as the “Neighbouring Land”. -- 17 of 33 -- 18 13. The material supporting the Development Application and Council records established that the Subject Land was subject to easements including Easement No. 703133654 25/01/1999 at 15:19 ‘benefiting the land over Easement R on SP110535. 14. The ‘Amended DA Form 1’ lodged by the Applicant with Council on 5 June 2024 identified that the Development Application included an additional parcel of land, being the Neighbouring Land. 15. Upon receiving the Amended DA Form 1, and upon considering the issue, I concluded that the written consent of the owner of the Neighbouring Land was not required for the Development Application, on the basis that I considered the Neighbouring Land to be an ‘Excluded premises’ for the purposes of the Planning Act 2016 as: (a) the Neighbouring Land was burdened by ‘Easement R on SP110535’ (Easement R); (b) Easement R formed part of the land which was the subject of the Development Application; (c) I understood from reviewing the proposed plans, town planning assessment report and traffic impact assessment report that Easement R was to be used as part of the traffic arrangements for the development the subject of the Development Application; (d) I located Easement R (in Attachment C – Title Searches and Easement Dealings) and noted that: (i) the Easement Document described the Servient tenement as ‘Easement R in Lot 4 on SP110535’ (Lo 4 being the Neighbouring Land) and the Dominant Tenement as ‘Lot 3 on SP110535’ (being the Subject Land); and (ii) the identified Purpose of the easement was described as ‘Right of Way’; (iii) Part 2 of the Schedule to the Easement Document included clause 2.1 ‘Purpose – Access and Right of Way’ in the terms set out in that clause. (e) In a meeting between the the [sic] representatives of both the Applicant and Council on 5 June 2025, the Applicant represented to me that the consent of the owner of the Neighbouring Land was not required because the development the subject of the Development Application was consistent with the terms of the Easement Document; (f) I consulted the published Queensland Government Guide to ‘Owner’s Consent’ and the section entitled ‘When the premises includes an easement’; -- 18 of 33 -- 19 (g) the representations made on behalf of the Applicant were consistent with my consideration of the forms of the Easement Document because: (i) the identified purpose of Easement R was to grant right of way over the Servient tenement, being Lot 4 (the Neighbouring Land) in favour of the Dominant tenement, Lot 3 (the Subject Land) (ii) the Development Application proposed the use of Easement R for access to and from the Subject Land; and (iii) the terms of the Easement Document did not preclude any improvements being made to the Subject Land.”43 [67] In construing the Statement of Reasons, I rely upon the principles set out at paragraphs [20] and [21]: (a) The delegate misdirected herself as to the law. [68] The Applicant submits that the delegate misdirected herself as to law by failing to interpret the Easement, particularly the limits of the rights conferred by the Easement. It submits that the assessment undertaken by the delegate was limited to consideration of the consistency of the development with the purpose of the Easement. [69] The Development Application, which the delegate considered, revealed (even before the amended DA Form 1 was lodged): (a) the development history of Lot 3 and Lot 4 including the past uses;44 (b) that the Easement, a right of way easement, was being relied upon for access for the development;45 (c) the proposed access arrangements;46 (d) additional traffic movement in and out of the site as a result of the proposed development is “considered minimal and unlikely to have an impact on the existing access points”47 and access arrangements were not expected to cause negative effects on adjoining landowners.48 [70] The Amended DA Form 1 submitted on 5 June 2025 added Lot 4 as one of the lots for the location of the premises.49 It is readily apparent from the Development Application that the Easement was always land included in the Development Application. The Amended DA Form 1 formalised this. 43 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Vol 14, pp 1848 – 1849. 44 Court Document 22, CEO Certificate dated 13 November 2025, Vol. 1, p 20. 45 Court Document 22, CEO Certificate dated 13 November 2025, Vol 1, p 21. 46 Demonstrated by Fig. 3.2, Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 219. 47 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, Traffic Impact Assessment dated 16 April 2024, p 235. 48 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, pp 280, 282 & 283. 49 Court Document 27, CEO Certificate dated 13 November 2025, Vol 6, p 1191. -- 19 of 33 -- 20 [71] The Statement of Reasons demonstrates that the delegate informed herself of the applicable law by considering the PA, the Planning Regulation 2017 (Qld) and the Development Assessment Rules. The delegate correctly stated the test for determining whether the Easement was “excluded premises.’50 The development was considered by the delegate. Regard was had to the material set out in paragraph 9(a) of the Statement of Reasons including the assessment planning report, the traffic impact assessment, the amended DA Form 1, the matters outlined in paragraph 11 of the Statement of Reasons and the traffic arrangements. It is clear that the delegate understood that the Easement was to be used as part of the traffic arrangements for the development.51 Further, the Statement of Reasons reveal that the delegate: (a) considered Attachment C: Title Searches and Easement Dealings submitted with the Development Application. The attachment included a complete copy of the Easement, including its terms; (b) noted that “the identified Purpose of the Easement was described as ‘Right of Way’”. I take this to be a reference to Item 7 on page 1 of the Easement; (c) considered the terms of the Easement including the purpose of the Easement and that the “Development Application proposed the use of Easement R for access to and from the Subject Land.” This reflects the language in Clause 2.1 of the Easement; and (d) considered the limits of the grants of the Easement, noting specifically “the terms of the Easement Document did not preclude any improvements being made to the Subject Land.”52 [72] The delegate’s consideration was not limited to a consideration of the consistency of the development with the purpose of the Easement. A fair reading of the Statement of Reasons, in particular paragraphs 15(d) and 15(g), readily reveals that the delegate considered the Easement, which was before her in its entirety. The delegate could only have reached the conclusion that “the terms of the Easement Document did not preclude any improvements being made to the Subject Land” if regard was had to the whole of the terms of the Easement. Thus, I infer that the delegate had regard to the whole of the terms of the Easement and the development in making the Decision. [73] For these reasons I am not persuaded the delegate misdirected herself as to the law. (b) The delegate failed to take into account relevant considerations [74] The Applicant says: (a) the delegate failed to have regard to clause 4 of the Easement; (b) failed to have regard to the existing traffic conditions on the Easement; and (c) failed to consider existing traffic volumes for the Mercure Hotel within the easement and existing queuing (because there was not material before her about these matters). 50 Statement of Reasons, para 15(e), Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, p 1849. 51 Statement of Reasons, para 15(c), Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, p 1848. 52 Statement of Reasons, para 15(g)(iii), Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, p 1849. -- 20 of 33 -- 21 [75] The High Court has considered the circumstances in which there is a failure to take into account a relevant consideration in Minister for Aboriginal Affairs v Peko- Wallsend Ltd.53 Gibbs CJ stated: “The ground of failure to take into account a relevant consideration can only be made out if a decision -maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v MacKellar) (1981) ALR 363, at p 375; Creed NZ Inc. v Governor-General (1981) 1 NZLR 172, at pp 183, 196 – 197; Ashby v Minister for Immigration (1981) 1 NZLR 222, at pp 225, 230, 232 – 233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at p 228, that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider.’”54 [76] The decision-maker is bound to take into account those factors determined by “construction of the statute conferring the discretion.”55 If the factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the act.56 [77] The definition of “excluded premises” reveals that the relevant considerations are the terms of the Easement and the development. [78] The Applicant submits that the delegate failed to have regard to s 4 of the Easement and that this can be inferred from paragraph 15 of the Statement of Reasons. It says regard to Clause 4 would have caused the delegate to conclude that the development caused obstructions, hindrances and nuisances to the Easement and that the development was not consistent with the terms and so the Easement was not excluded premises. For the reasons set out in paragraphs [71] and [72] above, the terms of the Easement and the development were considered by the delegate. The delegate did not err by failing to have regard to Clause 4 of the Easement. [79] I do not accept that the delegate should have had regard to existing traffic conditions in the Easement, existing traffic volumes for the Mercure Hotel within the easement or existing queuing as relevant considerations. The Applicant did not establish why these are relevant considerations. Consideration of the present use of the Easement does not inform the construction of the Easement. Nor does it inform an understanding or a consideration of the development, and whether the development is consistent with the terms of the Easement. In any event the material considered by the delegate addresses the impact of the proposed development on the access arrangements. The traffic impact assessment dated 16 April 2024 concludes that the additional traffic movements in and out of the site were minimal and unlikely to impact existing access points. Consequently, the assessment considered an intersection analysis of the site access points to MacGregor Street not required.57 The 53 (1986) 162 CLR 24 (‘Peko-Wallsend’). 54 Peko-Wallsend, [15]. 55 Peko-Wallsend, [15(b)]. 56 Peko-Wallsend, [15(b)]. 57 Court Document 23, CEO Certificate dated 13 November 2025, Vol 2, p 235. -- 21 of 33 -- 22 delegate was entitled to have regard to and rely upon the material accompanying the Development Application. [80] For these reasons I am satisfied that the delegate did not err by failing to take into account relevant considerations. Thus, I am satisfied that the delegate did not err in concluding that the Applicant’s Land was excluded premises, nor in therefor being satisfied under s51(4) of the PA. (c) The delegate took into account irrelevant considerations [81] The Applicant submits that the delegate erred in relying on the representations of the proponent for the development as revealed in Clause 15(e) of the Statement of Reasons, (and denied the Applicant natural justice by failing to afford the Applicant the opportunity to be heard in relation to the decision of the delegate to find the Easement was excluded premises). [82] I am not persuaded that the delegate relied upon the representations of the proponent in making her decision. Reading the Statement of Reasons fairly, the delegate formed her own views. This is apparent from paragraph 15(g) where she observes “the representations made on behalf of the Applicant were consistent with my consideration of the terms of the Easement document because ….”58 [83] For these reasons, I am satisfied that the delegate did not err by taking into account irrelevant considerations. Failure to reconsider the decision under Section 52 [84] The Applicant submits that the First Respondent failed to reconsider its decision to accept the Development Application as required by s 52 of the PA. It says that ought to have occurred when the Development Application was changed on or around 3 October 2024. The Applicant urges that the obligation to reapply s 51(2) of the PA following a change arises by s 52 of the PA. [85] Section 52 provides: “52. Changing or withdrawing development applications (1) An applicant may change or withdraw a development application, before the application is decided, by a notice given to the assessment manager and, for a withdrawn application, any referral agency. (2) However – (a) if the change is, or includes, a change of applicant, the notice may be given by the person who proposes to become the applicant if the notice is accompanied by the consent of the current applicant; and (b) section 51(2) applies for making the change as though the change were an application if – 58 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Ex. JAB47, p 1849. -- 22 of 33 -- 23 (i) the applicant no longer owns the premises or the change is to include premises that the applicant does not own; and (ii) were the application to be remade with the change, section 51 (2) would apply to the application; and (c) the change may not include prohibited development. (3) If the change is a minor change, the change does not affect the development assessment process.” [86] The Applicant submits that a proper interpretation calls for a disjunctive reading of section 52(2)(b) of the PA such that only one of the matters in section 52(2)(b) of the PA need to be found for the application of section 51(2) to be triggered, i.e. that “and” should be read as “or”. [87] The remarks of Chesterman J in Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd,59 when considering an argument that “and” should be substituted for “or” in a planning scheme, are relevant: “[23] Mr Williamson, who appeared for the Council, and defended its Plan as valiantly as the circumstances permitted, opted for the second alternative. A building, he submitted, is only a dwelling unit if it is designed and used, or adapted and used, for the exclusive use of one household. Lord Salmon remarked in Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 at 523-4 that: ‘… I do not suppose that any two words in the English language have more often been used interchangeably than ‘and’ and ‘or’. However unfortunate or incorrect this practice may be, many examples of it are to be found in all manner of documents and statutes. There are many reported cases which turn upon whether, in its particular context, the word ‘or’ is to be read conjunctively or the word ‘and’ disjunctively. … There is certainly no doubt that generally it is assumed that ‘or’ is intended to be used disjunctively and the word ‘and’ conjunctively. Nevertheless, it is equally well settled that if so to construe those words leads to an unintelligible or absurd result, the courts will read the word ‘or’ conjunctively and ‘and’ disjunctively, as the case may be; or, to put it another way, substitute the one word for the other.” [24] Before it is permissible to make the substitution there must be something in the context which requires it. Mr Williamson could not identify any contextual impediment to giving the word ‘or’ its natural meaning, or contextual imperative for reading the word as meaning ‘and’.” 59 [2011] QPELR 390per Chesterman JA at [23]. -- 23 of 33 -- 24 [88] There is nothing in the context of section 52(2)(b) of the PA which requires “and” to be read as “or”. The Applicant relies upon the explanatory notes to the Planning Bill 2015 to support a conjunctive construction of the provision. As the provision is not ambiguous and the ordinary meaning of the provision does not lead to a result which is absurd or unreasonable, I am not persuaded that the circumstances are such that regard should be had to extrinsic materials.60 In any event I consider that the explanatory notes support a conjunctive construction of the provision, as does the context of the provision. Read disjunctively section 52(2)(b)(i) would have no work to do because section 52(2)(b)(ii) covers the field. In the circumstances, I am not persuaded that the words of the provision should be read other than as contained in the provision. [89] The changes made to the Development Application were in response to the information request and included: (a) A new basement level providing an additional 21 car parks’61 (b) Screening of the above ground podium car parking’62 (c) Provision of a 3.75 m verge width along MacGregor Road frontage;63 (d) Increased area of refuse rooms;64 (e) Removal of some car parking to provide generally continuous boundary landscaping;65 and (f) The ingress and egress were changed as set out in paragraph [12] above. [90] The traffic impact assessment dated 12 September 2024 which accompanied the information request response reveals that traffic volumes were assessed. The assessment observed that: (a) the additional traffic movement into and out of the site is considered “minimal and unlikely to have an impact on the existing access points”;66 and (b) that “the Proposed Development utilises existing vehicular traffic accesses on MacGregor Street and are not expected to cause any negative effects on adjoining landowners or Council”.67 [91] These conclusions are consistent with those contained in the 16 April 2024 traffic impact assessment lodged before the change. [92] The change to the Development Application did not trigger a requirement to obtain the consent of the Applicant. The Applicant submits that section 52(2)(b)(i) of the PA is triggered because the change involves the inclusion of the Easement for the childcare centre use. This submission is not supported by the construction of section 52(2)(b)(i) of the PA which triggers the re-application of s 51(2) of the PA if “the 60 Section 14B(1) Acts Interpretation Act 1954 (Qld). 61 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1239. 62 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1240. 63 Court Document 28, CEO Certificate dated 13 November 2025, p 1244. 64 Court Document 28, CEO Certificate dated 13 November 2025, p 1246. 65 Court Document 28, CEO Certificate dated 13 November 2025, p 1248. 66 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1281. 67 Court Document 28, CEO Certificate dated 13 November 2025, Vol 7, p 1341. -- 24 of 33 -- 25 change is to include premises that the applicant does not own”. While the introduction of traffic from the childcare centre use was new to the Easement, the change did not alter the land the subject of the Development Application. The Applicant’s Land always formed part of the land the subject of the Development Application. The change to the Development Application does not trigger s 52(2)(b)(i) of the PA. [93] It is apparent the First Respondent reconsidered the issue of owner’s consent as a result of the change to the Development Application. The Statement of Reasons does not reveal this because that was not the decision about which reasons were sought. However, the Notice About Decision Assessment Report reveals that the issue of owner’s consent was revisited when the change was made and before the Development Application was decided as the delegate observed: “based on the information provided to Council, the change was accepted and the application confirmed as being properly made.”68 Natural Justice [94] The Applicant submits that as consultation occurred with the proponent,69 and Easement R is part of the land the subject of the Development Application, the Applicant should similarly have been consulted. It says the First Respondent’s failure to consult with the Applicant denied the Applicant procedural fairness. The right or interest which it says is prejudiced is the right to say “no” to the Development Application and the Applicant’s proprietary interests by the attaching of the Development Application to the Applicant’s Land without its approval. Nothing in the PA or the Easement terms suggest consultation with the Applicant is required. [95] The doctrine of natural justice was explained by the High Court in Kioa v West (1985) 159 CLR 550where Mason J observed: “It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … the reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to ‘legitimate expectation’ makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. … The concept of ‘legitimate expectation’ extends to expectations which go beyond enforceable legal rights provided that they are reasonably based. … The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.” [References omitted]. 68 Court Document 32, CEO Certificate dated 13 November 2025, Vol 11, p 2124. 69 As revealed by the Statement of Reasons. -- 25 of 33 -- 26 [96] As observed in Disorganised Developments Pty Ltd & Ors v South Australia (2023) 280 CLR 515 at 32: “The existence of a duty to afford procedural fairness is a question of statutory interpretation.” (Footnotes omitted). [97] The content of the duty is governed by the nature of the affected interests and the statutory framework. As Flanagan JA observed in Brisbane City Council v Leahy:70 “[35] In circumstances where the legislative framework recognises that different classes of persons may be affected in different ways, and at least one of those classes is identifiable, the primary judge correctly held that the proper consideration is not whether the Local Law and Subordinate Local Law, by necessary implication, excludes the principles of natural justice, but rather, what the content of the duty to afford procedural fairness ought to be. As was explained by Mason J in Kioa v West: ‘The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the particular circumstances of the particular case?...A resolution of that question calls for an examination of the statutory provisions in the interests [which may be affected].’” (Footnotes omitted). [98] Having analysed the authorities, Flanagan JA continued: “In my view these decisions illustrate that the preferable approach in cases such as the present is to have regard to the nature of the interests which may be affected, viewed in light of the relevant legislation framework, in order to determine the output – that is, the nature and extent – of the obligation to afford procedural fairness.”71 [99] As the duty is a question of statutory interpretation and the content of any duty depends on the legislative framework, the question becomes what this particular statutory framework requires. [100] In construing the relevant statutory context, I have had regard to the whole of the statutory framework within which the decision is made, and in particular s 51 of the PA and the definition of “excluded premises” in the PA. The legislature specifically addresses the circumstances in which the owner of the servient tenement is “heard from” – consent is required in certain circumstances. The legislative regime does not suggest that there is a duty to “consult” with the Applicant in the circumstances. The effect of these provisions is that owner’s consent is not required if premises are “excluded premises”. [101] Taken cumulatively those provisions establish an intention to displace the common law presumption to afford procedural fairness in relation to the decision by the assessment manager under s 51(4) of the PA, by necessary implication. [102] The impugned decision requires the assessment manager to be satisfied about the requirement of owner’s consent being complied with. In the case of a servient tenement of an easement which is included in the development application, that involves satisfaction that the development is consistent with the easement’s terms. 70 (2023) 15 QR 101, [35]. 71 [47]. -- 26 of 33 -- 27 [103] The legislature has addressed itself to the question whether an opportunity should be afforded to the owner of excluded land to be heard and has decided the opportunity that should be afforded.72 Support for this is found in the prescriptive nature of the involvement of the public, owners and adjoining owners in the application assessment and decision-making phases of a development application process as found in the PA. [104] The statutory scheme does not give rise to a duty to consult with the Applicant. [105] As observed by Mullins J in Eames v Brisbane City Council73 in respect of an analogue provision of s 51(2)(c) of the PA: “It makes sense that the written consent of the owner of the servient tenement is dispensed with when the land to which the application relates has the benefit of the easement and the servient tenement is proposed to be used in accordance with the terms of the easement, as the owner of the servient tenement has effectively authorised any use of the servient tenement that is within the terms of the easement.” [106] Furthermore, once the assessment manager is satisfied that the Development Application complies with ss 51(1) – (3) of the PA they must accept the application. The assessment manager must determine, within 10 days of receiving the Development Application, whether it is a properly made application.74 If there was a duty to consult, s 51(2) of the PA would have no purpose. In circumstances where the proper construction of the terms of the Easement is a matter of law, the purpose and nature of the consultation with the owner is unclear; consultation would not advance the determination the assessment manager is required to make. [107] Further, there is a broad declaratory power in the Planning and Environment Court Act 2016. In the event the owner of “excluded premises” is dissatisfied with the decision, they may commence declaratory proceedings, as the Applicant has here. The scheme of the legislation does not, for these reasons and having regard to the limited time within which a decision can be made, give rise to a reasonable expectation of consultation. [108] I am not persuaded that the Applicant’s proprietary rights and interests as the owner of the Applicant’s Land subject to the terms of the Easement, are prejudiced by the First Respondent’s decision to accept or the decision to approve the Development Application. Any person using the Easement for a purpose associated with the Development Approval is still required to comply with the terms of the Easement. The right to use the Servient Tenement for the purposes of right of way exists independently of the development approval process. [109] For these reasons, I am satisfied that the natural justice otherwise owed to an owner of land the subject of a development application in circumstances where written consent to the Development Application is required where the applicant is not the owner of the land, is dispensed with in a case where the land is subject to a servient tenement and the development is consistent with the terms of the easement. This conclusion is supported by the Development Assessment Rules. They make detailed provision for the process the assessment manager is to undertake in making the decision to accept a development application. The process necessarily excludes the 72 Barwick J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 382. 73 (2010) 177 LGERA 327at 32. 74 Development Assessment Rules, Version 3.0. -- 27 of 33 -- 28 affording of natural justice given the 10 days afforded the assessment manager to determine if the application is properly made pursuant to the Development Assessment Rules. [110] In the circumstances natural justice in relation to the Council’s decision to accept a development application under s 51(5) of the PA is excluded. Materiality [111] Declaratory relief will be granted only where the non-compliance is material. In the event that natural justice is not excluded (contrary to the finding above) it is necessary to consider materiality, that is “whether the decision that was in fact made could, not would, ‘realistically’ have been different” had the Applicant been consulted.75 If the Applicant had been consulted about whether the Applicant’s Land was excluded premises, I am not persuaded that the decision could realistically have been different. The determination is not one that turns on the Applicant’s opinion or representations. Rather, it is for the delegate to determine whether the development is consistent with the terms of the Easement and so is excluded premises. [112] The Applicant’s purported “right to say no” to the Development Application is not a right recognised by the PA. It does not form part of the assessment manager’s decision-making. On that basis, even assuming a right to procedural fairness, the failure to consult the Applicant was not material to the decision. Conclusion [113] The Applicant is not entitled to the declarations it seeks. The Originating Application is dismissed. I will hear the parties as to costs. 75 LPDT v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs & Anor (2024) 280 CLR 321, [14]. -- 28 of 33 -- 29 SCHEDULE A OBJECTIONS TO EVIDENCE Objections to Applicant’s Material Affidavit of Stuart Holland, sworn 18 September 2025 – Court Document 2 Paragraph 11 [114] The Applicant does not oppose the objections. The paragraph is deleted. Paragraph 12 [115] This evidence comprises opinion evidence not before the decision-maker. It is inadmissible on that basis. Paragraph 13 [116] This evidence comprises opinion evidence not before the decision-maker. To the extent the Applicant relies upon it as evidence of facts that ought to have been known to the decision-maker, the evidence may be derived from material that was before the decision-maker. To the extent the evidence is relied upon by the Applicant to establish (when read with the subsequent paragraphs) that jurisdictional facts found by the decision-maker did not exist, it is opinion evidence that was not before the decision-maker. The evidence is inadmissible. Paragraphs 14 – 15 [117] This evidence comprises opinions not before the decision-maker. To the extent the Applicant relies upon the evidence to establish that (when read with subsequent paragraphs) jurisdictional facts found by the decision-maker did not exist, it is opinion evidence not before the decision-maker and is inadmissible. Paragraph 23 [118] The Applicant conceded this objection (T1-80, l45). Despite this, the Applicant said in its reply submissions dated 15 April 2025, following the hearing, that it opposed the objection saying the evidence was relied upon for the limited purpose of establishing Mr Holland’s understanding of the approval. This evidence comprises opinions not before the decision-maker. It is inadmissible on that basis. Paragraph 24 [119] The Applicant does not oppose the objection. The paragraph is deleted. Paragraph 25 [120] This comprises evidence not before the decision-maker and is inadmissible on that basis. Paragraph 28 -- 29 of 33 -- 30 [121] The Applicant relies upon this as evidence which establishes that jurisdictional facts found by the decision-maker did not exist and as evidence of the objective facts on the ground, which absent a misdirection as to the law, would have been taken into account by the delegate. The evidence is not a mandatory consideration for determining whether the development is consistent with the terms of the Easement. This evidence comprises opinions or material not before the decision-maker and is inadmissible. Paragraph 29 [122] The Applicant relies upon the evidence to establish that jurisdictional facts found by the decision-maker did not exist and says the evidence is evidence of the objective facts on the ground which absent a misdirection as to law would have been taken into account by the delegate. I found the delegate did not misdirect herself. This is opinion evidence not before the decision-maker and is inadmissible. Paragraph 32 [123] The predicted traffic volumes, with which Mr Holland says (subject to qualification) he generally agrees, were before the decision-maker. The decision-maker had regard to that traffic impact assessment containing the data.76 As I have found the delegate did not misdirect herself, this is not evidence of the objective facts on the ground which absent a misdirection as to the law would have been taken into account by the delegate. The evidence comprises opinions not before the decision-maker and is inadmissible. Paragraph 33 [124] This evidence comprises opinions not before the decision-maker. It is inadmissible. Paragraph 35 [125] The Applicant does not oppose this objection. The paragraph is deleted. Paragraphs 36 - 39 [126] This evidence comprises opinions not before the decision-maker. To the extent that the Applicant relies upon this as evidence which establishes that jurisdictional facts found by the decision-maker did not exist, queuing in the easement is not inconsistent with the terms of the Easement. As I have found the delegate did not misdirect herself, this is not evidence of the objective facts on the ground which absent a misdirection as to law would have been taken into account by the delegate. This evidence is inadmissible. Paragraph 40(c), (d), (e) and (i) [127] The evidence is relied upon to provide an explanation of technical concepts within the material which was before the delegate. This assistance is not required as this is a specialist court which regularly deals with evidence of this nature. Further the evidence includes opinions not before the decision-maker and seeks to agitate the merits of the proposal. The evidence is inadmissible. 76 Court Document 16, Affidavit of Jarrod Allen Boyle sworn 18 September 2025, Vol 14, p 1848. -- 30 of 33 -- 31 Paragraph 41 [128] The evidence does not provide an explanation of technical concepts within the material which was before the delegate. Rather, it is opinion evidence not before the decision-maker which impermissibly seeks to agitate the merits of the decision. To the extent the Applicant relies upon the evidence to establish that jurisdictional facts found by the decision-maker did not exist, for the reasons given above, queuing in the Easement is not inconsistent with the terms of the Easement. As I found the delegate did not misdirect herself, this is not evidence of the objective facts on the ground which absent a misdirection as to law would have been taken into account by the delegate. The evidence is not admissible. Paragraphs 42 – 46 [129] The Applicant does not oppose the objections. The paragraphs are deleted. Paragraphs 47 - 58 [130] These paragraphs are reliant upon the assessment undertaken in paragraphs 42 – 46 which are now conceded. The evidence comprises opinions not before the decision- maker. In the absence of the evidence contained in paragraphs 42 to 46, the opinions expressed in paragraphs 47 to 58 lack foundation. The evidence is inadmissible. Second Affidavit of Stuart Holland, sworn 9 April 2026 – Court Document 48 Paragraph 3 [131] The evidence comprises material not before the decision maker and is inadmissible. Paragraph 3 of Exhibit SAH-1 [132] The reports of Viney Traffic Engineering annexed to the affidavit and referred to in paragraph 3(d) are not the type of extrinsic material envisaged in Westfield as relevant to the construction of an easement. This is evidence not before the decision-maker. It is inadmissible. Paragraph 4 – 8 of Exhibit SAH-1 [133] The Applicant does not oppose this objection. The paragraphs are deleted. Paragraph 9 – 10 of Exhibit SAH-1 [134] The Applicant does not oppose this objection. The paragraphs are deleted. Paragraph 11 of Exhibit SAH-1 [135] This is opinion evidence that was not before the decision-maker. To the extent the Applicant relies upon the evidence to establish jurisdictional facts found by the decision-maker did not exist, for the reasons above, queuing in the Easement is not inconsistent with the terms of the Easement. To the extent that the evidence is relied upon by the Applicant as evidence of objective facts on the ground which absent a misdirection as to law would have been taken into account by the delegate, I have -- 31 of 33 -- 32 found the delegate did not misdirect herself as to the law. The evidence is inadmissible. Paragraphs 12 – 15 [136] The Applicant does not identify the technical concepts requiring explanation. An explanation of the traffic evidence before the decision-maker is not required. The traffic material before the decision-maker speaks for itself. This is a specialist court which routinely deals with traffic evidence of the kind before the decision-maker. The evidence is inadmissible. Paragraph 12 of Exhibit SAH-1 [137] The evidence is not an explanation of technical concepts within material which was before the delegate. To the extent the Applicant relies upon the evidence to establish jurisdictional facts found by the decision-maker did not exist, queuing in the Easement is not inconsistent with the terms of the Easement. To the extent that the evidence is relied upon by the Applicant as evidence of objective facts on the ground which absent a misdirection as to the law would have been taken into account by the delegate, I have found the delegate did not misdirect herself as to the law. The evidence is inadmissible. Paragraphs 13 and 14 of Exhibit SAH-1 [138] The evidence is not an explanation of technical concepts within material which was before the delegate. Rather, this is opinion evidence not before the decision-maker. To the extent the Applicant relies upon the evidence to establish jurisdictional facts found by the decision-maker did not exist, queuing in the Easement is not inconsistent with the terms of the Easement. The evidence is inadmissible. Paragraph 15 of Exhibit SAH-1 [139] This is opinion evidence not before the decision-maker. To the extent the Applicant relies upon the evidence to establish jurisdictional facts found by the decision-maker did not exist, queuing in the Easement is not inconsistent with the terms of the Easement. The evidence is inadmissible. Paragraph 19 (except (a)) of Exhibit SAH-1 [140] I have found that the delegate did not misdirect herself as to the law. For the reasons set out at paragraph [132] the reports of Viney Traffic Engineering are inadmissible. This is opinion evidence not before the decision-maker and is inadmissible. Paragraph 20 of Exhibit SAH-1 [141] I have found that the delegate did not misdirect herself as to the law. For the reasons set out at [132], the reports of Viney Traffic Engineering are inadmissible. This is opinion evidence not before the decision-maker and is inadmissible. Paragraph 24 of Exhibit SAH-1 [142] The Applicant does not oppose the objection. The paragraph is deleted. -- 32 of 33 -- 33 Affidavit of Michael Connor sworn 9 April 2025 – Court Documents – 49 – 51 [143] Objection is maintained to Mr Connor’s affidavit other than in respect of correspondence at pages 555 – 559 of the exhibit (being Exhibits MJC4 and MJC5), on the basis that it is not material to which regard may properly be had in construing the Easement and was provided late without proper explanation for the delay. [144] The Applicant opposes the objection only with respect to the First Respondent’s records at pages 44 – 114 (Decision Notice of the First Respondent approving the Mercure Hotel about 3 September 1998), page 354 (an approved plan from the building work and development permit – Building Certification (New Building) – new restaurant on which is now Lot 4) and pages 384 – 394 (the plans referred to in the decision notice contained at pages 44 – 114). [145] The decision notice contained at pages 44 – 144 would have been reasonably ascertainable by a third party at the time of the grant of the Easement, being available for inspection under s 5.7.4 of the Integrated Planning Act 1997. [146] The plans do not form part of the decision notice issued by the First Respondent and were not included in the Standard Planning and Development Certificate. Section 5.7.4 of the IPA requires, relevantly, that the decision notice given by the assessment manager must be kept open for inspection. While referred to in the decision notice for the Mercure Hotel approval, the approved plans (pages 384 - 394) did not form part of the decision notice and so were not required to be available for inspection. However, the approval package attached to the decision notice observes that: “Application forms, guidelines, documents and relevant information referred to in this approval package can be obtained from customer service officers located throughout Brisbane.”77 Thus, the plans at pages 354 and 384 – 394 would have been reasonably ascertainable by a third party at the time of the grant. This applies to the plan at page 354 as well as the plans at pages 384 – 394. [147] However, these documents are not the type of extrinsic material envisaged in Westfield as relevant to the construction of an easement. The documents are inadmissible. [148] In the circumstances is it not necessary to consider the issue of delay. 77 Court Document 49, Affidavit of Michael John Connor sworn 9 April 2025, pp 50, 65 & 91. -- 33 of 33 --