Evans v Gold Coast City Council & Anor [2004] QPEC 19 (2004) QPELR 588

1 PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Evans v Gold Coast City Council & Anor [2004] QPEC 019 PARTIES: DAVID EDWARD EVANS and VERONICA PHYLLIS EVANS Appellants and GOLD COAST CITY COUNCIL Respondent and TOM TATE and WARWICK BANNISTER TATE Co-Respondents FILE NO: 82/2004 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 2 June 2004 DELIVERED AT: Southport HEARING DATE: 5 April 2004 JUDGE: Rackemann DCJ ORDER: Appeal allowed on the limited ground that the application was not properly made CATCHWORDS: DEVELOPMENT APPLICATION – failure to obtain written consent of owner of access easement – discretion and excuse not exercised. Integrated Planning Act 1997 Integrated Planning And Other Legislation Amendment Act 2003 -- 1 of 9 -- 2 Cases considered: Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 Howard Street Developments Pty Ltd v Maroochy Shire Council [2002] QPELR 423 Liberty Oil Pty Ltd & Westway Systems Pty Ltd v Fanigun Pty Ltd [2001] QSC 446 Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 125 LGERA 256 COUNSEL: Mr S Ure for the appellants Mr J D Houston for the respondent Mr B G Cronin for the co-respondents SOLICITORS: Phillips Fox for the appellants McDonald Balanda for the respondent Gall Standfield & Smith for the co-respondents [1] The appellants appeal against the decision of the respondent to approve an application by the co-respondents for a development permit for the making of a material change of use for the purposes of an extension to an existing hotel situated at 3120 Gold Coast Highway, Surfers Paradise. The notice of appeal includes the following grounds which were set down for determination at a preliminary stage: “5. The decision to approve the application was erroneous, unreasonable and unlawful, particularly having regard to the following: (a) the application does not contain an accurate description of the land the subject of the application in breach of s 3.2 .1(3)(a)(i) of the Integrated Planning Act 1997; (b) the written consent of the appellants was not obtained to the making of the application in breach of s 3.2.1(3)(a)(ii) of the Integrated Planning Act 1997. …” [2] By application, returnable on the same day, the co-respondents sought orders that the appeal proceed notwithstanding that certain IDAS requirements had not been complied with together with such further or other order as the Court may consider appropriate, notwithstanding that the appellants consent to the application was not obtained. -- 2 of 9 -- 3 [3] The development application, the subject of the appeal was made on 13 March 2002 and relates to an existing hotel at Surfers Paradise known as the Brew Pub, which is constructed on Lot 1 on RP 89862. That land has no vehicular access from the Gold Coast Highway. Vehicle access to the land is to Alison Street via easements burdening the appellants’ land. The easements date back to 1958. [4] The rear of the hotel land has been developed with car parking spaces which in part, intrude onto an easement burdening the hotel land, giving Lot 2 on RP 89862 the right of access to enable vehicles to manoeuvre onto the hotel land1. [5] The documents accompanying the application made it reasonably clear that access to the rear of the site would be from Alison Street via the easements burdening the appellants’ land, however those easements were not described in the Form 1 application document nor in the public notice of the application. The written consent of the appellants, as owners of the land burdened by the easements, was not obtained and no public notice was posted on the Alison Street frontage of the access. [6] The co-respondents submitted that the application, construed as a whole, including the supporting information, did include the land, the subject of the access easement to Alison Street. There may be some force in that submission however, in any event, I would be prepared to make an order pursuant to s 4.1.5A in that regard should it be necessary. The co-respondents also submitted that the non-compliance with the public notification provisions ought by reason of failing to post a notice on the frontage to Alison Street, ought be excused pursuant to s 4.1.5A having regard to the circumstances including the public notification which was given otherwise. I am satisfied that would be the appropriate course in the circumstances. 1 The consent of the owner of a dominant tenement is not required – see Howard Street Developments Pty Ltd v Maroochy Shire Council (2002) QPELR 423 -- 3 of 9 -- 4 [7] The more substantial dispute agitated before me was as to whether an order should be made, pursuant to s 4.1.5A, to permit the appeal to proceed, notwithstanding the absence of the written consent of the appellants as owners of the land burdened with the access easements to Alison Street. [8] It was common ground that, absent the appellants’ written consent, the application was not a properly made application within the meaning of s 3.2.1(6) of IPA by reason of it failing to contain the written consent of the owner of the land to the making of the application. That being so, s 3.2.1(9) has the effect that it is not an application which could have been taken to have been properly made pursuant to s 3.2.1(8). That is not however, necessarily fatal. As was pointed out in Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 125 LGERA 256, the Court’s excusory powers (then contained in s 4.1.53 but now contained, in no more restrictive terms, in s 4.1.5A) are not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1. Each of the parties accepted that the Court has a discretion in the present circumstances. The argument centred on how that discretion ought be exercised. The respondent indicated that it would abide the decision of the Court, having regard to the respective arguments of the appellants and the co-respondents. [9] There was no suggestion that, in this case, the proposal the subject of the application would, of itself, be inconsistent with the terms of the easement. That is a relevant factor. Indeed, provisions of the Integrated Planning and Other Legislation Amendment Act 2003 which have not yet come into effect, would relieve an applicant of the requirement to obtain the written consent of the owner of the servient tenement where the development is not inconsistent with the terms of the easement. While there is a sound basis for the proposed amendments, they are not yet law and I do not consider that it would be appropriate, at this stage, in the exercise of the discretion, to regard the lack of inconsistency between the development and the terms of the easement as necessarily being determinative. It is one of the relevant considerations. -- 4 of 9 -- 5 [10] The appellants’ complaint that their written consent had not been obtained was raised in the submission of their town planning consultants on 11 October 2002. [11] The issue was put to the co-respondents in a letter from the Council dated 11 November 2002. It was responded to by letter dated 3 February 2003 from the co-respondents’ town planning consultant in the following terms: “Further to correspondence received from the Gold Coast City Council dated 11 November 2002, we are instructed to request that Council proceed with the determination of the subject application in its current form.” [12] The report and recommendation to Council supporting an approval of the application contained the following treatment of the issue: “Officers comment This issue was raised with the applicant, as obtaining the correct owner’s consent rests with the applicant. The applicant has investigated the matter and believes that owner’s consent is not required as it is only an easement. The applicant has requested the application proceed to determination.” [13] That discussion of the issue, which seems to proceed upon a misconception with respect to the requirement for consent, is of no real assistance. [14] The basis for the appellants’ opposition to the proposal is summarised in the submission lodged on their behalf by their town planning consultants dated 11 October 2002 and in affidavit material filed for the purposes of this hearing. [15] The appellants’ land has, for many years, been leased for commercial purposes, usually to restaurant operators. At present their land contains six separate tenancies, with a predominance of restaurants. In 2000 a successful development application was made for a hotel on the subject land. The appellants claim that since the hotel has operated, their tenants have experienced continuous problems with cars associated with the Brew Pub parking either in the easement or on their tenants’ property, thereby interfering with the ability of their tenants or their contractors to access the tenancies. Problems also arise by reason of the ‘parking in’ of cars lawfully parked on the -- 5 of 9 -- 6 tenants’ land. Their complaints, in this regard, are supported in the affidavit evidence of a number of tenants. The appellants are concerned that the expansion of the use would likely lead to an exacerbation of these difficulties during the construction and operational phases. They would be unwilling to give their consent to the application. Their traffic engineering consultant, Mr Camilleri, is also of the view that increased staffing levels and service requirements associated with the proposed development will increase the tendency for staff and visitors of the hotel to park their cars in the rear easement, causing an exacerbation of existing problems associated with illegal parking within the easement. [16] While the extent of the existing difficulties and the likely exacerbation (if any) might be the subject of more detailed examination were the appeal to proceed to hearing, I accept that the appellants’ concerns are genuinely held. They appear, on the material, to have an evidentiary basis. [17] The concerns expressed in this case, are similar in character to those expressed by the owners of the servient tenement in Liberty Oil Pty Ltd & Westway Systems Pty Ltd v Fanigun Pty Ltd [2001] QSC 446 which concerned an application for relief in the Supreme Court, including a mandatory injunction forcing the servient tenement to consent to a development application. The owner of the dominant tenement proposed a change to a service station site so as to develop a convenience shop in lieu of an existing workshop area. The owner of the servient tenement contended that, over the years, access to its land across the easement had frequently been obstructed by motor vehicles driven by persons having access to the service station site. After noting the local authority’s discretion to deal with an application, notwithstanding the absence of written consent, Ambrose J said at para 22: “Declining to ‘receive’ the application without the consent of Fanigun might be unsurprising having regard to the uncontradicted evidence as to the obstruction of access to the Fanigun land via the easement about which both Mr Gollan and apparently Mr Moore have complained over the years. It is clear on the material that the Fanigun interests have expressed concern at the likelihood of continued and perhaps increased frequency of obstruction to their access to Braun Street by persons parking motor vehicles across and on the easement when they come to visit a convenience store of significant size – approximately double that of the existing store.” -- 6 of 9 -- 7 And at paras 25-26: “25. In my view it is understandable in the circumstances, that the Fanigun interests are disinclined to do anything to facilitate the implementation of Liberty Oil’s plan to make a material change in the use of the service station site which is likely increase the obstruction of the easement area designed to provide common access, not merely to the Westway land but also indeed to the Fanigun land upon which a used car yard is conducted. ‘Material change’ of premises is defined in s 1.3.5 of the Act to include ‘a material change in the intensity or scale of the use of the premises’. 26. While undoubtedly it is true that constant obstruction of access to the Fanigun land over the easement area may be restrained by legal action taken by Liberty Oil, it is perhaps understandable that the Fanigun interest would prefer not to do anything to facilitate a development on the Westway land increasing the intensity of its use which it believes in all probability, will exacerbate problems already suffered for many years in maintaining unobstructed access to its land.” [18] As to the legislative intent for requiring the owner’s consent, Ambrose J said at para 32: “The legislative prescription requiring the written consent of the owner of land in respect of which a development approval is sought, in my view, obviously contemplates that in some circumstances an owner of land may not be prepared to consent to a development approval affecting its land. I am unpersuaded that it is a mere procedural formality to ensure that the owner of land with respect to which an application for development approval relates, becomes aware that such an application is being made and has no right to refuse consent to it being made.” [19] While the substance of the concerns could be a matter of evidence in an appeal hearing, that is the case with the complaint of any submitter to a development application. The Integrated Planning Act puts the owner of land, the subject of the application, including (for the time being at least) the owner of the servient tenement of an access easement which forms part of the land the subject of the application, in a different position. There is a requirement to obtain their written consent to the making of the application and, by inference, a right to refuse that consent. [20] The circumstances of this case are very different from those which applied in the case of Greatlife Pty Ltd v Brisbane City Council (2001) QPELR 42 to which I was referred. That case concerned an application for a declaration that a certain development approval was invalid. The approval related to the -- 7 of 9 -- 8 construction of an industrial development on land (lot 7) included in the General Industry Zone. Lot 7 and the adjoining Lot 8 had been created by subdivision. That subdivision also created an easement running along the common boundary which contemplated that the future industrial development on each site would have a shared access point. The easement had been created because of traffic and other town planning considerations by the BCC in an attempt to control access points along the road. Subsequent to the approval of development on Lot 7 and the expenditure of over $1m towards the development, the owner of Lot 8, who had been guilty of relevant delay in bringing the proceedings and whose complaints the Court described as “tenuous”, sought to have the development approval declared invalid because its written consent had not been obtained. It is not surprising that, in such circumstances, the Court declined to grant the declaratory relief. [21] The circumstances in this case are quite different. The material shows that although the appellants were never approached, in the first instance, for their written consent, they promptly raised that issue, and the substance of their complaints, in a written submission to Council on 11 October 2002. They have been prompt in the notification of the issue in the appeal proceedings and in having the matter determined at an early stage. Their complaints could not be regarded as “tenuous”. Their concerns are genuine, have an evidentiary basis and relate to the effects which the proposed development might have, in practice, on the free exercise of their rights as owners of the servient tenement. [22] While unlawful interference might be the subject of consideration in a merits hearing, or the subject of other legal proceedings to restrain unlawful conduct, the Act creates a requirement to obtain the appellants’ consent and it is understandable they would prefer to withhold that consent so as to obviate the prospect of increasing the intensity of the use of the subject land, which they believe would likely exacerbate problems which have already suffered in maintaining unobstructed access to their land. -- 8 of 9 -- 9 [23] In the circumstances, I am not prepared to exercise my discretion under s 4.1.5A. I allow the appeal on the limited ground that the application was not properly made. - - - - - -- 9 of 9 --