Demish Pty Ltd & Anor v Kaskabas & Ors [2001] QPEC 23

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Demish Pty Ltd & Anor v. Kaskabas and Ors [2001] QPE 023 PARTIES: DEMISH PTY LTD (ACN 006 251 583) AND 7-ELEVEN STORES PTY LTD (ABN 005 299 427) Applicants and EFSTRATIOS KASKABAS AND DIANA ANN KASKABAS First Respondents and BRISBANE CITY COUNCIL Second Respondent FILE NO/S: 5204 of 2000 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: DELIVERED ON: 3 May, 2001 DELIVERED AT: Brisbane HEARING DATE: 22 & 23 February, 2001 JUDGE: Judge Quirk ORDER: CATCHWORDS: Integrated Planning Act; Fitzgerald v. Masters 1956 95 CLR 420 at 426– 7); Warringah Shire Council v. Sedevcic 1987 10 NSWLR 335; Ecovale v. Brisbane City Council & Anor 1999 QPELR 189; Mirvale Pty Ltd v. Brisbane City Council & Anor (unreported 20 October 2000 Judge Robin Q.C.; COUNSEL: SOLICITORS: Mr. A Skoien for the Applicants Mr J.Haydon for the First Respondents Mr E. Morzone for the Second Respondent Lowes & Co for the Applicants Deacons for the First Respondents Brisbane City Legal Practice for the Second Respondent -- 1 of 11 -- 2 [1] This matter involves a claim for declaratory and consequential relief in respect of obligations that, it is said, arose out of development approval that has been given in respect of adjoining land. [2] The applicant, Demish, is the proprietor of Lot 12 on SP 128627 (Lot 12). The second applicant is the lessee of that land. Land adjoining to the south is Lot 13 on SP 131966 (Lot 13), which is owned by the first respondents. [3] Both allotments have frontage to Orange Grove Road. The applicants’ land has been developed as a combined service station and shop. The respondents’ land has been developed as a shopping centre. [4] The relevant history of applications and approvals began in October 1994 when, in respect of Lot 13, an application was made to re-zone the land from the Residential A zone to the Business Zone and for conditions of development for proposed shops. [5] An affidavit of Milena Mog, a senior town planner with the respondent council, explained that she led the assessment team which processed the application. She made it clear that the council saw integration of the site with adjoining land (for the purposes of access to Orange Grove Road) as a fundamental requirement for future development of this particular area. -- 2 of 11 -- 3 [6] Negotiations resulted in the submission, in June of 1995, of an amended layout plan showing integration points as required. The council’s traffic engineer was prepared to accept the amended proposal subject to a number of requirements including the need for access easements to “allow for integrated vehicular and pedestrian access with adjacent sites to the north and south”. [7] The application was conditionally approved in October 1995. Condition J of the re- zoning approval and condition (a) of the “Conditions of Development” (which were in identical terms) provided:- “Provide easements for vehicular and pedestrian access in favour of adjoining Lot 115 of registered plan No. 50910 and adjoining Lot 106 on registered plan 75158 from Orange Grove Road through the site to the “integration points” depicted on plan No. 3517/94A at such time in the future as those allotments develop for commercial purposes.” [8] The condition as drafted involves the first appearance of an element of confusion which carried on throughout the history of the matter. It is important to note that the land identified as Lot 115 on RP 50910 was misdescribed. The plan that was specifically referred to in the condition makes it plain that the integration which the condition was intended to promote was with our Lot 12 which, at the time of this approval, was properly described at Lot 2 on RP 50910. [9] How this happened is not entirely clear although it is suggested by Milena Mog that at the time a BLIMAP may have been mis-read. What is not in dispute, however, is that a mistake occurred. A application for modification of these conditions (to facilitate the re-location of buildings further away from the regulation line) was made in April 1996. The letter from the council accompanying the application acknowledged the need for integration with adjoining development. -- 3 of 11 -- 4 [10] The application for modification was conditionally approved in January 1997. Condition (b) maintained the requirement for “integrated easements” but the mis- description of Lot 12 continued. At that point it had become Lot 12 on RP 883650. [11] In February 1997 an appeal to this court was lodged against the imposition of conditions upon this approval. The notice of the appeal was drawn personally by the first respondents and it seems that they were, in the main, concerned with expenses to which they would be put in granting the easements. [12] The appeal was resolved and a consent order was made by His Honour Judge Skoien on 9 July 1997. Condition (b) of the conditions of development which formed part of the order provided:- “Provide easements for vehicular and pedestrian access in favour of adjoining Lot 115 on RP 50910 and adjoining Lot 116 on RP 79158 from Orange Grove Road through the site to the “integration points” depicted on Plan No. 9609-PBAA dated April 1997 and received on 7 May 1997 at such time in the future as those allotments develop for commercial purposes”. As can be seen Lot 12 was once more misdescribed. [13] As to Lot 12 itself, in February 1996 the owners (who then also owned land immediately to the north) applied for approval for its inclusion in the Business zone and consent for the use of the parcel for the purposes of a retail warehouse and shopping centre. [14] Following an appeal, approval for that development was in the form of a consent order made on 5 March 1998. Re-zoning condition (e) and “conditions of development” (b) (in identical terms) provided:- -- 4 of 11 -- 5 “Transfer to council free of costs and compensation an access and maneuvering easement in favour of adjoining Lot 13 on RP 886350 as shown on plan of layout No. 617-1G to the satisfaction of the Manager, Department of Development and Planning.” [15] This time Lot 13 was described correctly although it has since become Lot 13 on SP 131966. However it is now accepted by all concerned that, for the purposes of achieving the desired access integration, the easement should have been granted in favour not of the council, but in favour of Lot 13 itself. I am informed that an easement over Lot 12 has already been granted to the council for drainage maintenance purposes in respect of an area to the rear. [16] Subsequently, in respect of Lot 12, a development application for a “retail warehouse, shop and service station” was made. This application was code assessable and was granted in November 1999. These facilities have been constructed and are now in place. [17] However, no “reciprocal easements” as indicated by the respective approvals have been granted although ramping from Lot 12 to the boundary of Lot 13 to allow vehicular and pedestrian access across the common boundary has been constructed. A physical barrier has been put in place by the first respondents at the boundary to prevent movement across it. [18] The end result is that the point of access that was intended to allow right turns into and out of this area in the Business zone (including Lots 12 and 13) is now located at the frontage of Lot 13 and is inaccessible to the lots to the north which are left confined to left-turn entry and exit only. No integration as was intended by the planning authority has been achieved. -- 5 of 11 -- 6 [19] The relief sought by the applicants before me is set out in the originating application (filed 22 December 2000). In the course of argument I was referred to a good deal of compelling authority for the proposition that in cases where, in the preparation of a document, a mistake is made which has led to a result manifestly inconsistent with the intention of the parties concerned, “Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency” (Fitzgerald v. Masters 1956 95 CLR 420 at 426– 7). [20] The application of that principle to contracts and other instruments that concern only the parties directly involved is undoubted. The present situation is somewhat different. Town planning (and re-zoning) applications have consequences wider than those which affect only the interests of the parties who were concerned with the land at the time when the application was made. The approvals in question in this matter are “continuing approvals” within the meaning of division 6 of chapter 6 of Integrated Planning Act. The approvals which, in this case, take the form of court judgments, are matters of public record and, in my view, should correctly state what was clearly intended by all concerned at the time when the order was made. [21] In this case both the other of His Honour Judge Skoien and that of myself are, in my opinion, amenable to correction under the “slip rule” which is now found in rule 388 of the Uniform Civil Procedure Rules which is picked up by rule 3(2) of the Planing and Environment Court Rules. [22] From my part I would order that, in appeal No. 1124 of 1997, the order made by me on 5 March 1998 by correcting paragraphs I(e) (page2) and II(b) (page 8) to read: -- 6 of 11 -- 7 “Granting free of costs and compensation an easement in favour of adjoining Lot 13 on RP 883650 as shown on plan of layout No. 617- 1G to the satisfaction of the Manager, Department of Development and Planning”. [23] His Honour Judge Skoien should be approached to make an appropriate correction to his order in Appeal No. 682 of 1997 to have paragraphs (b) (page 2) properly describe Lot 12 and what is not Lot 13 on SP 128627. [24] Consequential relief was sought by the applicants. The court’s power to grant such relief is found in s.4.2.22 of the Integrated Planning Act and any relief so granted must be based on a declaration made under s.4.1.21. [25] For practical purposes what the applicants seek to achieve is that an easement such that will allow the access integration of Lots 13 and 12 be granted over Lot 13 and that any physical barriers preventing such access be removed. [26] A good deal of planning and traffic engineering evidence was led by the parties to this matter. It would seem to me that it is beyond question that, as a matter of law, the relevant orders (once suitably corrected) should be complied with. [27] There is of course the matter of the courts’ discretion whether declaratory and consequential relief should be given in cases of this kind. (Warringah Shire Council v. Sedevcic 1987 10 NSWLR 335). It is in this context I would consider the “merit evidence” called. [28] Much was said in respect of the merits and demerits (in planning and traffic engineering terms) of the provision of access to and from Lot 12 over Lot 13. -- 7 of 11 -- 8 Evidence that Lot 13 would be considerably more valuable if it enjoyed sole use to the right-turn in and out point of access to Orange Grove Road was, in my view, quite beside the point. The only matters that emerged from this evidence and require discussion were, in my view: 1. The fact that the development of Lot 12 intended at the time of its re-zoning has altered. 2. The adverse effects of heavy vehicle (namely petrol tankers and other large trucks) movement over Lot 13. [29] It is true that the service station development was not contemplated at the time of the initial inclusion of the land in the business zone. However, it was quite open to the applicant, Demish, to make the code assessable application that it did. This was considered and approved according to law and it was not suggested otherwise. [30] I should however in this context mention a matter raised by the first respondents regarding the lack of inclusion in the code assessable application of reference to the intended use of an easement over Lot 13. Comparable situations arose in Ecovale v. Brisbane City Council & Anor 1999 QPELR 189 and Mirvale Pty Ltd v. Brisbane City Council & Anor (unreported 20 October 2000 Judge Robin Q.C.) but it must be remembered that this was a matter in respect of which public notification was not required. Furthermore, any suggestion that the application was not a “properly made application” would have been overcome by s.3.21(8) of the Integrated Planning Act. -- 8 of 11 -- 9 [31] Fundamentally, as was pointed out by Milena Mog, the matter of integrated access was a very important consideration to the planning authority irrespective of the type of commercial development that might occur. I am satisfied on the evidence that the desirability of such integration has not been diminished by the service station development that has occurred. [32] There was some concerns expressed about heavy vehicle intrusion from Lot 12 onto Lot 13. Having regard to existing driveway configuration, it would appear that the likelihood of this occurring is not high. In any event the applicants have indicated a preparedness to install a height restriction bar at the allotment boundary to prevent this. I should also point out that the Applicant Demish has indicated a readiness to grant the easement over its land in favour of Lot 13 which has been under consideration. [33] After considering the evidence I am satisfied that a proper exercise of discretion calls for a declaration and consequential orders that are required to ensure that access integration intended by the planning authority is achieved. [34] There is one final complication in a matter that is already sufficiently complicated as a result of careless drafting. The point at which the driveways on the respective allotments meet does not correspond to the point shown in the plans existing at the time of the respective re-zonings. [35] For whatever reason the point identified in those plans has been obstructed by buildings now standing on the allotments. It would be pointless to insist on strict adherence to the court orders and, bearing in mind that the matter of fundamental -- 9 of 11 -- 10 importance is access integration, I would, in the exercise of my discretion, be prepared to accept integration in the manner now physically possible. [36] In the circumstances I am prepared to deal with the matter as follows. Upon correction of the court orders as referred to in these reasons for judgment, there will be a declaration that: Both the applicants and the first respondents should grant (in favour of Lots 13 and 12 respectively) the easements to allow integrated access to Orange Grove Road to and from those allotments as generally contemplated by the relevant court orders. There will be further orders that; 1. It will be taken by the Court (in the exercise of its discretion) to be sufficient compliance with the declaration made if the integration is achieved (and easements are granted accordingly) by means of access ways which meet at a place where the driveways physically constructed upon the allotments presently meet at their common boundary. 2. That the first respondent remove any physical barrier presently \restricting vehicular and pedestrian access across the common boundary and carry out any works required (as a consequence of that removal) to allow safe and convenient access by vehicles and pedestrians across that boundary. [37] The undertaking by the applicants to provide a height restriction barrier at the common boundary is noted. All parties are to have liberty to apply. -- 10 of 11 -- 11 -- 11 of 11 --