Frexall Pty Ltd v Brisbane City Council

[2005] QPEC 93

[2005] QPEC 093

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 3311 of 2005

FREXALL PTY LTD	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 09/09/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.33 - application for change in a condition fixed by Court order - order required developer to grant an access easement in favour of adjoining owners (to facilitate Council's desire for improved access arrangements in the relevant locality generally) - owners declined to accept the proffered easement - condition changed to require that the easement be granted if requested.

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  It has the effect of changing a condition included in an order of the Court.  The circumstances are unusual.  The relevant development is a mixed commercial one and it was considered appropriate to require the developer to grant easements with a view to improving access arrangements in the locality in the long term. 

The owners of one of the dominant tenements have apparently declined to accept the easement in their favour. 

It is difficult to understand why anyone would do that since, so far as the Court or the parties are aware, there are no disadvantages of a financial or any kind in being the beneficiary of an access easement, which may well be a very useful thing.  It has been stated from the Bar table that those owners are elderly and have had previous issues with the applicant; that may provide the explanation. 

Their attitude created a glitch for the parties to overcome, which they have done by reformulating the conditions originally set by the Court to cover the matter by a requirement that the applicant provide security to the Council's satisfaction that, if asked to create the problematic easement at some time in the future, it will do so. 

That is a sensible resolution to the matter. The Court is persuaded that, bearing in mind public interests and like considerations which it ought to bear in mind in applications like the present under section 3.5 - 33 of the Integrated Planning Act, the condition ought to be changed.

The order is as per draft.

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