Altitude Corporation Pty Ltd v Isaac Regional Council

[2011] QPEC 66

[2011] QPEC 66

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 6 of 2009

ALTITUDE CORPORATION PTY LTD              Appellant

and

ISAAC REGIONAL COUNCIL  Respondent

P & E APPEAL No 2225 of 2009

ALTITUDE CORPORATION PTY LTD              Appellant

and

ISAAC REGIONAL COUNCIL  Respondent

P & E APPEAL NO 1119 of 2010

ALTITUDE CORPORATION PTY LTD              Appellant

and

ISAAC REGIONAL COUNCIL  Respondent

BRISBANE

..DATE 05/05/2011

ORDER

CATCHWORDS
Property Law Act 1974 s 181
Building Act 1975 s 65

Developer appeals succeeded, with approvals subject to withdrawal or notification of existing registered covenants requiring buffering from powerlines – proceeding adjourned to ascertain attitudes of covenantee and others affected.
 

HIS HONOUR:  The court adjourns Appeals 6 and 2225 of 2009 and Appeal 1119 of 2010 to the 9th of June 2011 for further mention.  By that date, some clarification may have been obtained of the circumstances that the appellant has to contend with.

Judge Jones on the 18th of November 2010 indicated the Court's view that reconfiguration applications to produce a 28 lot subdivision ought to be approved.  The making of orders was to be subject to overcoming difficulties standing in the way of approvals which were considered to arise by virtue of covenants that had been required by the Council in 2006 when a 143 lot subdivision was approved on the application of a prior owner.

The land is located close to high voltage powerlines.  The Council had taken the view that a buffer ought to be required to ensure that no residential development occurred in close proximity to the powerlines.  There's also an aspect of vegetation on that easement.

The appellant represented by Mr Nicholas today had been hopeful that by negotiation it could do something about the covenants which have to be relaxed in some way, if not removed, to allow the new development to go ahead. It's not clear whether this is a situation covered by section 65 of the Building Act 1975 or simply an analogous situation.

It's the Council which, in terms of the covenants, would be entitled to relax or waive them, something which Mr Quirk indicates it's disinclined to do: cf Parsons v Redland City Council [2011] QPEC 62, [23]. The view has been taken that an adjoining landowner may derive advantages from them and be entitled to be heard if there's to be any change.

Mr Nicholas foreshadows an application to the Supreme Court under section 181 of the Property Law Act 1974, presumably on the basis that the covenants impede some reasonable use of its land. By the next date the Supreme Court proceedings may have been got under way and the attitudes of those entitled to take a position in those proceedings may be known.

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