Kalglen Pty Ltd v Brisbane City Council & Ors; Stratcliff Pty Ltd v Brisbane City Council & Anor
[2009] QPEC 32
•7 May 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kalglen Pty Ltd v Brisbane City Council & Ors; Stratcliff Pty Ltd v Brisbane City Council & Anor [2009] QPEC 32
PARTIES:
2954 of 2008
KALGLEN PTY LTD ACN 010 760 540
Applicant
V
BRISBANE CITY COUNCIL
Respondent
And
AUSTRALIAN POSTAL CORPORATION
Co-respondent
2955 of 2008
KALGLEN PTY LTD ACN 010 760 540
Applicant
V
BRISBANE CITY COUNCIL
Respondent
And
STRATCLIFF PTY LTD ACN 066 527 271
Co-Respondent
3573 of 2008
STRATCLIFF PTY LTD ACN 066 527 271
Applicant
V
BRISBANE CITY COUNCIL
First Respondent
And
KALGLEN PTY LTD ACN 010 760 540
Second Respondent
FILE NO/S:
2954/2008, 2955/2008, and 3573/2008
DIVISION:
Original jurisdiction
PROCEEDING:
Originating Applications
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
6 and 7 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
12 February 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 In 2954 of 2008 the application is dismissed
2 In 2955 of 2008 the application is dismissed
3 Within 14 business days the second respondent Kalglen Pty Ltd in its own right and as trustee do all things necessary to comply with conditions 1, 2(ix), 3(a)(ii) and 4(a) of the approval for Business Premises and Shop (Extension) granted by the first respondent to the second respondent on 2 December 1997
4 Applications for costs in all three matters are reserved for further consideration
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application was made, requiring easements over neighbouring property but that property was not included in development application – where council conditions required reciprocal rights to easements between neighbours – where conditions for easements not complied with by applicant – whether an enforcement order requiring a non-compliant party to comply with the condition of development to grant an easement should be made
Integrated Planning Act 1997 s 3.2.1, s 3.2.12, s 3.5.33, 4.3.25, s 6.1.23
Local Government (Planning and Environment) Act 1990Cases considered:
NRMCA (Queensland) Ltd v Andrew (1993) 2 Qd R 706
Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250COUNSEL:
M Hinson SC for Kalglen Pty Ltd
T Trotter for Brisbane City Council
M D Ambrose for Australian Postal Corporation
R S Litster SC and J Lyons for Stratcliff Pty LtdSOLICITORS:
Robert Milne for Kalglen Pty Ltd
Brisbane City Legal Practice for Brisbane City Council
Clarke Kann Solicitors for Australian Postal Corporation
Redmond Van De Graff for Stratcliff Pty Ltd
Kalglen Pty Ltd, Stratcliff Pty Ltd and the Australian Postal Corporation (APC) own adjoining properties at Oxford Street Bulimba, between Riddell and Pine Streets, with interconnecting parking areas at the rear which, in theory (and partly in practice) are accessed by a system of complementary easements. It happens, however, that some formalities associated with the easements have never been implemented; at least one of them has been blocked off; and, Kalglen now wishes to redevelop its land in a way which has brought these matters to the fore.
These three applications have legal threads tracing back to development approvals granted in 1997 and 1998, each of which contained a condition that the grantee provide an access easement over its land for the benefit of the other two. In 2006 Kalglen applied to redevelop its land in a way which would, however, deny Stratcliff and APC access through any part of its land, although it still wishes to have rights of passage over theirs. Kalglen’s application was not approved by Council and is the subject of separate appeal proceedings in this Court[1].
[1]910 of 2007.
Kalglen is the owner (as trustee) of land at 8 Riddell Street, Bulimba[2] and, also, the adjoining property at 204 Oxford Street, Bulimba[3]. Stratcliff owns the land immediately to the west on Oxford Street, at 196-200[4]. APC owns the next parcel to the west, at 190 Oxford Street[5].
[2]Lot 5 on RP 52889.
[3]Lot 2 on RP 902739.
[4]Lots 3 and 4 on RP 52889.
[5]Lot 2 on RP 69339.
Stratcliff obtained a development approval from Council for a shopping centre on its land on 21 January 1997. Kalglen obtained a development approval, also from Council, for business premises and a shop on 2 December 1997. APC obtained a development approval granted by this court for a shopping centre on 13 March 1998. Each approval was granted under the legislation preceding the Integrated Planning Act 1997 (IPA) but is a ‘continuing approval’ for the purposes of that Act[6].
[6]Each approval was granted under s 4.1 of the Local Government (Planning and Environment) Act 1990; and continues pursuant to s 6.1.23 of IPA.
Importantly, each approval was subject to conditions. Stratcliff’s approval contained a condition which required ‘…reciprocal access easement rights to be granted in favour of’’ the APC and Kalglen parcels. Kalglen’s approval, next in time, contains particular conditions requiring provision of a vehicular aisle in the north western corner of the site in a way which meant it operated in conjunction with an ‘existing aisle’ on the Stratcliff land, and with the APC land, so as to ‘…enable physical interconnection between these three on-site car parking facilities’ (condition 2(ix)). Condition 3(a)(ii) of the Kalglen approval also required the ‘…granting of easements for pedestrian and vehicular access’ over Kalglen’s land at 8 Riddell Street, in favour of the APC land and the Stratcliff land. APC’s approval, last in time, contained a condition requiring that it grant an easement for access purposes over its land in favour of the Stratcliff and Kalglen properties.
On its face, as plans presented during the case confirm, what Council plainly intended to achieve by imposing these overlapping conditions upon each owner was that all three sites share parking facilities and, for that purpose, associated interconnecting easements.
None of these easements have been formalised in the sense that necessary documents have been executed and registered but, the evidence establishes, Stratcliff and APC have each in practical terms granted and allowed access over their land in accordance with them. Kalglen, however, has not. Sometime before the year 2003 it constructed bollards preventing vehicular access across its land – or, of course, from its land onto that of APC, and Stratcliff.
That last circumstance aside things remained quiescent until, in October 2006, Kalglen lodged a development application with Council for a material change of use for centre activities including a medical centre and multi unit dwellings on both Lots 2 and 5 of its land.
That application on its face depends on the Stratcliff land and the APC land for vehicular access to a proposed basement car park but, it appears, failed to record either of those parcels as land which was properly included in, and the subject of, the application. (Because the various easements have never been perfected, Kalglen may not have the benefit of IPA s 3.2.12, under which it might have avoided the need to obtain the consent of the adjoining owners because they were ‘servient’ tenements to Kalglen’s rights under the easements over their land.)
There are, it will already be appreciated, some surprising aspects to Kalglen’s conduct. Unlike APC and Stratcliff it has not, in practical terms, actually provided the access plainly envisaged by the easement Council imposed by undisputed conditions in 1997 and, indeed, actively impeded access to and across its land. The bollards creating the impediment remain in place in circumstances where, in 2003, Council issued both a show cause notice and an enforcement notice directed to non compliance with the conditions of approval, and required Kalglen to remove the bollards and lodge a copy of a plan of survey. It did not do so.
It now seeks to cancel that easement but has not, apparently, taken any step under IPA s 3.5.33, which provides that a party wishing to change or cancel a condition must first apply by written notice to the entity which imposed it – here, the Council.
No vehicular connection to Riddell Street is offered through the basement car park in Kalglen’s proposed new development for the benefit of the APC and Stratcliff parcels; yet Kalglen has made attempts to extract agreements from APC and Stratcliff that those parties do not wish to exercise easement rights over its land in circumstances where it appears to have been less than frank about its intents and purposes including, in particular, its continuing desire to maintain easement rights over theirs – while neglecting to obtain their approval as, in the circumstances, s 3.2.1 probably requires.
In Kalglen’s action against Stratcliff it seeks order that Stratcliff comply with condition 6 of its approval and formally grant an easement; and, in pleadings the parties exchanged, also seeks an order that the conditions attached to its own approval should be cancelled.
Condition 6 of Stratcliff’s approval requires that it grant ‘reciprocal access easement rights’ in favour of the APC land and Lot 5 of the Kalglen land, if and when easements are granted in favour of the Stratcliff land for access over either or both of Kalglen’s Lots 2 and 5. Stratcliff’s approval was, of course, given in January 1997 at a time when the location of any future access over either or both of the Kalglen parcels had not been conditioned (and neither was there any obligation for either of those lots to be developed in a particular way). When that occurred – i.e., when it became apparent what complementary conditions should attach to the Kalglen approval later in 1997 – reciprocal access over its Lot 5 only was required.
In accordance with the ordinary meaning of the word ‘reciprocal’ (which connotes something in the nature of a return made for something given, and a degree of exchange or mutuality[7]) it is plain that condition 6 of the Stratcliff approval does not operate so as to require that an easement be granted over the Stratcliff land in favour of Lot 2 of the Kalglen land when, as happened, development on that land precluded any traverse of it. Nor, more pertinently, does the condition require that Stratcliff grant an easement over its land in favour of Lot 5 of the Kalglen land unless and until the Stratcliff land receives a grant of access over Kalglen’s Lot 5.
[7]Oxford English Dictionary.
Because Kalglen has not granted an easement over its Lot 5, the time for Stratcliff to grant ‘reciprocal’ access easement rights has never arisen.
Jurisdiction to make orders of the kind Kalglen seeks derives from IPA s 4.3.25. It is, however, a discretionary remedy exercised by weighing up all the relevant factors including the rights and interests of the parties and matters touching their conduct, hardship and inconvenience[8]. Even if a different conclusion had been reached about the meaning and effect of the condition attached to Stratcliff’s approval, there are compelling reasons for exercising the discretion against Kalglen.
[8]Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250 at 261 (cited by the Queensland Court of Appeal in NRMCA (Queensland) Ltd v Andrew (1993) 2 Qd R 706, at 712.
It has sought to utilise these proceedings to compel Stratcliff to give access over its land, but to provide nothing in return. Kalglen’s land has two street frontages and it is highly improbable that it could ever persuade a court to impose an easement of necessity for its benefit over the Stratcliff land. It certainly appears that Kalglen is attempting, here, to obtain relief which would never otherwise be available to it; and doing so in the troubling circumstances outlined earlier.
Against that, the evidence shows that Stratcliff’s conduct has, save for the actual perfection of the easement, been appropriate and reasonable throughout. In 1997 it caused a plan to be prepared showing an easement which would satisfy condition 6 of its approval and submitted easement documents and undertook to lodge them within 14 days. It remains prepared to grant the easements Council required.
An added difficulty for Kalglen is that neither Stratcliff (nor APC) have an unrestricted right to give up benefits, or shuck off obligations, associated with the interlocking easements when they were all lawfully imposed through Council conditions and surrender or cancellation of them requires a successful application, to the Council, under s 3.5.33.
Kalglen’s assertion that, in March 2008, Stratcliff agreed to give up its right to access through the Kalglen land suffers from this apparent impediment. In any event Stratcliff’s purported agreement was provided, the evidence shows, in circumstances where it was not informed that Kalglen still sought, in its new development application, an easement over the Stratcliff land. The transaction tends to exacerbate the impression that, throughout these events, Kalglen’s conduct has been less than creditable.
Kalglen’s claim against Stratcliff must fail. Stratcliff has never been granted an easement over Kalglen’s lot 5, so no occasion has arisen in which Stratcliff must, in accordance with condition 6 of its approval, ‘reciprocate’ by granting an easement over its land. In any event, there are discretionary factors arising from Kalglen’s conduct which strongly militate against the relief it seeks.
Much the same may be said about Kalglen’s application against APC. While never formally granting an easement, APC has constructed its premises and car park in such a way that there is an actual thoroughfare for the passage of motor vehicles which could be used by Kalglen. Again, the various conditions should have lead to access from the APC land across the Kalglen land through to Riddell Street (if Kalglen had not erected bollard to prevent that); but an element of Kalglen’s new development application will be to permanently block that access, yet leave an easement across APC land which benefits Kalglen.
Kalglen has, again, attempted to obtain a concession from APC that it no longer requires access over the Kalglen land. A proper reading of the exchange of correspondence reveals, however, nothing more than an indication from APC that it would prefer not to have an easement burdening its land and if Kalglen did not require that right of access, APC would not insist upon reciprocal rights. Once more it says little to Kalglen’s credit that the letter to APC seeking that it relinquish its easement rights over the Kalglen land was written after the lodging of the latter’s new development application.
APC’s failure is, like Stratcliff’s, purely technical and without any adverse consequence in practical terms. Against that, Kalglen has acted for some years in a way inconsistent with its obligations to provide vehicular access from the APC land across its land to Riddell Street. There are again, therefore, compelling reasons why Kalglen ought not have the discretionary relief it seeks against APC.
Council’s position in all this is, unsurprisingly, relatively straight forward. It imposed conditions for town planning and traffic purposes which have never been challenged, nor the subject of any application for alteration, or cancellation. Consistently with this, one of Council’s primary grounds of opposition to Kalglen’s latest development proposal is that it effectively obstructs the access arrangements which the various original conditions attempted to put in place. It contends that Kalglen and APC ought now be required to grant their respective easements, an event which would trigger Stratcliff’s obligation to reciprocate.
Kalglen, alert to the difficulties it faced because no application had been made by it under s 3.5.33 (and the fact that its new development application failed to include the APC and Stratcliff land when access is sought over them) argued that because circumstances surrounding the various easements and the conditions which gave rise to them have changed, any enforcement orders should be stayed until the hearing and determination of Kalglen’s new appeal – a stay to be accompanied, perhaps, by further orders that any party wishing to apply under s 3.5.33 should do so without delay. The only relevant changed circumstance is, however, Kalglen’s application to undertake a redevelopment which would further impede its ability to satisfy the conditions Council imposed upon its land in 1997.
Kalglen’s conduct of and in these proceedings precludes any tenderness about the position in which it finds itself. The relief Kalglen seeks in both 2954 of 2008 against APC, and 2955 of 2008 against Stratcliff is refused.
Stratcliff has, however, established the jurisdictional basis for an enforcement order on its behalf against Kalglen under s 4.3.25. Kalglen has impeded access over its land to which both the APC and Stratcliff parcels are entitled, in circumstances where its own conduct is in plain breach of the conditions of its approval. Stratcliff should, then, have the benefit of an order requiring Kalglen to comply with the relevant conditions of its development approval. I will hear further submissions about the terms of appropriate orders.
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