Eames v Brisbane City Council & Anor [2010] QPEC 14 (2010) QPELR 504

1-1 PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Eames v Brisbane City Council & Anor [2010] QPEC 14 PARTIES: ANNE-MAREE EAMES (Appellant) v BRISBANE CITY COUNCIL (Respondent) And PROMOSEVEN PTY LTD (Co-Respondent) FILE NO/S: No 1688 of 2009 ORIGINATING COURT: Brisbane DELIVERED ON: 25 February 2010 DELIVERED AT: Brisbane JUDGE: Rackemann DCJ ORDER: Preliminary point determined in favour of the Co-Respondent CATCHWORDS: Whether application properly made – land included volumetric lot for access – no owners consent for that lot – whether owners consent was required – whether development inconsistent with the terms of an easement – nature of “development” applied for. COUNSEL: Mr Fynes-Clinton for the Appellant Mr Trotter for the Respondent Mr Litster SC and Mr Cronin for the Co-Respondent -- 1 of 11 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This submitter appeal is against the respondent's approval of a development application by the co-respondent in respect of a multi-unit development at Coronation Drive, Toowong. The appellant has raised a jurisdictional point for determination at a preliminary stage. The development application was for a development permit for a material change of use, and for preliminary approvals for building work and operational work. The proposal is to replace an existing two-storey multi-unit dwelling (of four dwellings) with a new nine-storey building containing nine three-bedroom dwellings. The land which was identified as being the subject of the development application is lot 24 on SP 114135 (lot 24)- upon which the new building is proposed to be developed- and a volumetric area above lot 40 on SP 139833 (lot 40) in respect of which there are easements. That volumetric lot was created in conjunction with a development known as "Regatta Riverside". It provides the sole means of vehicle access to the site from Land Street. There is no vehicle access to or from Coronation Drive. The appellant contends that the development application was not a properly made application within the meaning of section 3.2.1(7) of the Integrated Planning Act (IPA), and could not have been taken to be a properly made application under section 3.2.1(9), because it did not contain the written consent of the owner of what I will refer to as lot 40 (see section 3.2.1(10)). The point is not taken by the owner from whom it is said that consent ought to have been obtained. The owner is the body corporate for the Regatta Riverside development. Lot 40 also provides access to that development to and from Land Street. The appellant is not the owner of lot 40; she is the owner of adjoining land which has the benefit of its own easement over lot 40. She, nevertheless, takes the jurisdictional point, somewhat opportunistically, although I do not say improperly. The deficiency in the application (if there be one) is, it was accepted, not curable under section 4.1.5A of the IPA. It was common ground that the new broader excusal power under section 820 of the Sustainable Planning Act (SPA) is not available in this appeal, which is not of a kind referred to in section 819(4) or (6) of SPA. -- 2 of 11 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 The respondent and the co-respondent accept that lot 40 was properly part of the land to which the application applied. They contend that the owner's consent was not required by reason of section 3.2.1(12) of IPA which provides as follows: "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." Reliance was placed on two easements. One is an easement granted in favour of the proprietor of lot 24, as the dominant tenement which provided the following access rights: "2.1 Access Rights: The grantor gives the grantee and its visitors the right to use the easement for pedestrian and vehicle access to and from the benefited land. The easement can be used at any time with any type of vehicle that will not damage the easement." The easement was also subject to provisions which required the grantor not to allow the easement to be blocked, save for certain exceptions, and which required the grantee not to obstruct the easement. Reliance was also placed on an easement in gross granted in favour of the Brisbane City Council which provides, in part, as follows: "The grantor hereby grants to the grantee the full and free right and liberty from time to time, and at all times hereafter, by day or by night, as often as the occasion shall require, with or without surveyors, engineers, servants, agents, licensees, contractors, subcontractors, workmen and others authorised by the grantee, together with all vehicles, equipment, machinery, tools and materials considered necessary by the grantee for all lawful purposes connected with the business, functions and duties of the grantee as a local authority or as a water supply or sewerage authority (in common with the grantor and all others having or to whom the grantor shall hereafter give the like right) to pass and repass along, over, upon and across the land described in item 2 hereof..." -- 3 of 11 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 The physical development constituted by the proposed new building is confined to lot 24. There is to be no physical structure within lot 40. Lot 40 was, nevertheless, included in the land the subject of the application, because it provides the sole access for those who would carry on the proposed more intensive residential use of lot 24.The respondent and co-respondent submit that the use of lot 40 for access is not inconsistent with either easement. It was submitted, on behalf of the appellant, that the development entails the use of lot 40 for more than just access, as provided for under the easements. In particular, it was submitted that, in order to collect rubbish bins from the development, rubbish removal trucks will drive onto lot 40 and stop adjacent to lot 24. Workers will then recover the bins from lot 24 and bring them to the truck for emptying, before returning the bins to lot 24 and the truck moving on. This is, of course, a conventional way for refuse to be collected. Refuse from the existing use of lot 24, and also from the appellant's property, is collected by vehicles which use lot 40. The appellant asserts, however, that this is inconsistent with any right under the easement which benefits the subject land. In particular, it was submitted that: (i) The easement in gross is irrelevant, since there is no dominant tenement and so lot 24 is not land which "has the benefit of an easement" for the purposes of section 3.2.1(12) of the IPA; (ii) the terms of the easement in favour of lot 24 granted a right of "access to and from the benefited land" while the easement in gross granted a right to “pass and repass along, over, upon and across the land," but neither granted a right to stop and conduct the operation of loading and unloading, and such a right could not be inferred on a literal approach to the words in the grant (see S.S. & M. Ceramics Pty Ltd v. Kin [1996] 2 Qd R 540 at 542, and Fanigun Pty Ltd v. Woolworths Limited [2006] 2 Qd R 366; see also Gale on Easements (18th Edition) page 389); (iii) while there are cases in which such a right has been inferred where, having regard to evidence of circumstances which existed at the time of the grant, it was necessary to do so in order that the grantee enjoy the rights conferred by the grant: -- 4 of 11 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 (A) such an approach is now not permissible in the context of Torrens Systems following the decision of the High Court in Westfield v. Perpetual Trustee [2007] HCA 45; and (B) there is nothing which would lead to an implication in these easements, in any event; (iv) similarly, it is impermissible to interpret the grant by reference to the town planning purpose for which it may have been granted (as the co-respondent would have the Court do) since to do so impermissibly conflates the extent of the right conferred with the purpose for which the right may be exercised. Those submissions are not without apparent force. However, ultimately, it is unnecessary for me to express a concluded view on that debate, for the reasons which follow. Section 3.2.1(12) of the IPA focuses attention on inconsistency or otherwise between the “development” and the terms of the easement which the land, the subject of the application, has the benefit of. If it is accepted that the only relevant easement is that in respect of which lot 24 is the dominant tenement, and that the right conferred by the easement is to gain access to and from lot 24, but not to stop outside of it for the purposes of retrieving and emptying rubbish bins into a truck, then the next question is whether that gives rise to an inconsistency between the terms of the easement and the “development.” That, in turn, calls for identification of the scope of the relevant development. When this matter first came on for hearing, the argument tended to focus on whether refuse collection is part of the use of land for the purposes of a multi-unit dwelling. The appellant argued that an ordinary component of residential use is waste generation and that dealing with, and disposing of, that refuse is an inherent part of that use. Reference was made to the extended definition of use in schedule 10 of the IPA which includes: "any use, incidental to or necessary, associated with the use of the premises." -- 5 of 11 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 It may be noted that the extended definition does not refer to any and every activity which might, in some way, be associated with a use. It refers only to an incidental “use.” Not every activity on land, even one which is carried out repetitively, will constitute a use, incidental or otherwise (see Moore v. Kwiksnax Mobile, Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile, Industrial and General Caterers Pty Ltd [1991] 1 Qd R 125). It was submitted on behalf of the respondent and the co-respondent that, while the collection of rubbish into bins on lot 24 may be part of the multi dwelling use, the way in which the garbage truck operator chooses to go about collecting those bins is not. It was submitted that the operator of the garbage truck is not conducting a use of land for the purposes of a multi-unit dwelling. Similarly, a postman, courier, milkman (if such a person now exists), or a newsagent delivering the newspaper in the morning, is not to be regarded as part of the conduct of the use pursuant to the authority of the development permit. It was submitted by Mr Trotter, on behalf of the respondent, that it is not the assessment manager's function to "consider all possible permeations and combinations of future events in broad, direct or indirect association with the proposed use, that may, arguably, give rise to some breach of the easement agreement." Those submissions are not without apparent force. However, it is only necessary to express a concluded view about that if a more fundamental issue is determined adversely to the co-respondent. That is because the argument which was the focus of the initial hearing, proceeds on the wrong assumption, that the relevant inconsistency is one between a new or ongoing use of the land for the purposes of multi-unit dwelling and the terms of the easement. The statutory provision refers to the “development". In the context of the IPA, that is a reference to the development which is the subject of the application. The expression "development" is defined in the IPA by reference to section 1.3.2 which provides that: "1.3.2 Meaning of Development: Development is any of the following – (a) carrying out building work; -- 6 of 11 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 (b) carrying out plumbing or drainage work; (c) carrying out operational work; (d) reconfiguring a lot; (e) making a material change of use of premises." The subject application was for building work, operational work (preliminary approvals) and making a material change of use of premises (development permit). It is only the last of those which is relevant for present purposes. The focus is then on the material change of use, and whether that change is inconsistent with the terms of the easement. The making of a material change of use is, in turn, defined in section 1.3.5 of the IPA which, relevantly, provides: "Material Change of Use of Premises, means – (a) generally – (i) the start of a new use of the premises; (ii) the re-establishment on the premises of a use that has been abandoned; (iii)a material change in the intensity of the use of the premises." It was not contended that (ii) was relevant. The appellant's initial submissions proceeded on the assumption that what was sought in the application was the start of a new use of premises. The application documents, however, make reference to the existing multi-unit dwelling on the site, and describe the then current use by reference to that development. On its face, the application was not for the start of a new use, but was for a material change in the intensity or scale of the use. So much was conceded by counsel for the appellant when the matter was listed for further hearing. The question, therefore, is not whether there might be some inconsistency between the terms of the easement and the past or, indeed, the ongoing use of premises as a multi-unit dwelling; but whether there is an inconsistency between the terms of the easement and the material change represented by the proposal to increase the intensity or scale of that use, being the relevant development in this case. -- 7 of 11 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 The increase in intensity or scale, from four dwellings to nine, may result in the generation of more refuse, but that is to be dealt with by on-site compaction on lot 24. In a report by one of the co- respondent’s consultants, it was said: “Refuse vehicles currently service the site via the existing easement, as part of a service to adjoining properties as well. The subject site currently has far more wheelie bins than the proposed development will have (due to a proposed compactor system) and, a such, does not require any different refuse servicing to what currently exists." Accordingly, there will be no change to the frequency of services required (see Love T1-32). Bins will continue to be available for collection from Lot 24, as currently is the case. It is just that, with the change and by reason of the compaction system, there will be, if anything, a reduction in the number of bins to be collected. In short, the use of Lot 40 by garbage collection vehicles may have a connection with the past use or the ongoing use of the premises for multi-unit dwellings, but is not a consequence of the proposal to increase the scale or intensity of the use, which is the relevant development, the subject of the application. When these matters were drawn to the attention of the parties (upon the matter being re-listed), counsel for the appellant asserted that, nevertheless, the proposal would or may result in some change to the arrangements for the collection of refuse. He referred, in particular, to an intention to remove certain bollards in the easement to better allow easier truck access and also referred to various vehicle- swept paths which assume that that will happen. A closer reading of the material, however, establishes that the activity of rubbish vehicles entering upon the land, the subject of the easement, and stopping on that easement to collect rubbish is something which presently happens and which is not a function of the material change in scale or intensity of the multi-unit dwelling use, which is the subject of this application. Senior counsel for the co-respondent drew the Court's attention to the following aspects of the material. A report from one of the co-respondent’s consultants did refer to the need to remove the bollard and card reader to allow refuse truck access, but that was in the context of addressing a council policy which referred to access by a 10 metre domestic refuse vehicle. That is not the vehicle that has -- 8 of 11 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 been used in the past, nor is it the vehicle which is intended to be used now. The evidence shows that it is proposed to have an 8.5 metre vehicle. In the course of the application assessment, the council wrote a letter, dated the 18th of December 2008, which asserted that the card reader and bollard impeded truck access from using a portion of the driveway and also asserted that wheelie bin trucks do not enter the easement or the driveways. That was responded to by the co-respondent's town planning consultant in an email which said, amongst other things, that: "The waste collection vehicle already uses the easement to service the Regatta development. My understanding is that the easement provides the same rights of access to the Promoseven land. Am I misunderstanding your intent for item 2?" That was responded to by the author of the earlier council letter, by an email in which he admitted that the earlier letter was on the basis of "misguided information" and that, having had the opportunity to "determine the exact process that is presently used," he could now say that a "specialised truck" does enter the easement driveway by reversing to service the existing properties. He went on to say, "This method will be carried on...once the project is complete." Insofar as removal of the bollard/card reader, he commented that that would "certainly make accessing the driveway so much easier and will make it more available to other types of trucks," but a fair reading of the email demonstrates that the rubbish collection process already involves using the easement, already involves stopping on the easement and that, notwithstanding the increase in intensity or scale of the use, the same method will be carried on once the project is complete. That is consistent with a letter from the co-respondent's solicitors to the council of the 19th of December 2008 and is also consistent with the evidence of Mr Love, who was called on the hearing of the application and cross-examined. In his evidence, Mr Love confirmed that the relevant truck is the 8.5 metre truck (T1-39) and not the larger truck that would have required removal of the bollards. He also confirmed that rubbish removal trucks currently stop in the easement to collect rubbish bins associated with the use (T1-33). -- 9 of 11 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 Mr Fynes-Clinton, on behalf of the appellant, ultimately submitted that the evidence was not entirely clear and that some change to the arrangements of rubbish collection may occur in the future. However, what the Court is ultimately concerned with is whether the change in intensity or scale of the use is inconsistent with the terms of the easement. The point of any inconsistency that has been alleged is related to the rubbish trucks having to stop on the easement. That point of inconsistency, if it be a point of inconsistency, and if it be an aspect of the use, is not something which is generated by the material change in intensity or scale of the use. The increase in the intensity or scale of the use will simply result in garbage bins continuing to be kept on Lot 24, albeit in lesser numbers, and available for collection, as they have always been available for collection, by the refuse contractor. The refuse contractor will still, as it has always done, drive onto the easement for the purposes of collecting those bins. There is nothing about the increase in scale or intensity of the use which introduces a new or different point of conflict in this regard. It was submitted by Mr Fynes-Clinton, that the Court ought not ignore his client's allegation that the method of collecting refuse infringes the easement rights and that the Court should not lend itself to what would, in effect, be an entrenchment of those rights, nor should people be allowed to make an application without regard for those rights. This, however, goes back to the nature of a development application under the IPA. Under the IPA, what is applied for is certain types of development. It is not the continuing use of the land which is the subject of this application. This application is concerned with the material change of that use. The relevant provision of the IPA is concerned with requiring the consent of the owner to the land, the subject of that change. In this case, that land includes Lot 40, but the Act does not require written consent of the owner to the extent that Lot 24 has the benefit of an easement and the development is not inconsistent with the terms of the easement. The material change of use in this case will extend to Lot 40 because the increase in the scale or intensity of the use will result in greater use of the easement for people accessing the intensified residential use, but that is perfectly consistent with the terms of the easement and the contrary has not been asserted. The material change of use of Lot 40, however, does not include a material change in respect of the refuse collection. As I have already noted, the point of any alleged inconsistency is in relation to the way in which the -- 10 of 11 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 service contractor goes about collecting the bins which are available for collection and, in particular, whether the service operator stops on the easement in order to effect that. That is simply not something which arises by reason of the change. It is not an incident of the change, and therefore is not an inconsistency which could be said to arise by reason of the development with which the Court is concerned in this case. That does not mean that the Court is in any way lending itself to an entrenchment of an illegality. The parties to the easement are, of course, free to enforce the rights and obligations under the easement. However, what the assessment manager, and on appeal, the Court is being asked to consider and approve is the change and it is the incident of the change which is the focus of consideration. For those reasons, I am satisfied that there is no inconsistency between the relevant development and the terms of the easement and, accordingly, I determine the jurisdictional point in favour of the co- respondent. ... HIS HONOUR: I will adjourn the matter for review to the 11th of March. -- 11 of 11 --