MC Property Investments P/L v Sunshine Coast Regional Council

[2010] QPEC 145

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

MC Property Investments P/L v Sunshine Coast Regional Council & Ors [2010] QPEC 145

PARTIES:

MC PROPERTY INVESTMENTS PTY LTD (ACN 076 608 243)
(Appellant)

And

SUNSHINE COAST REGIONAL COUNCIL
(Respondent)

And

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-respondent by election)

And

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MAANAGEMENT
(Co-respondent by election)

FILE NO/S:

D 143 of 2009

DIVISION:

Planning and Environment Court

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Planning and Environment Court of Queensland at Maroochydore

DELIVERED ON:

23.12.10

DELIVERED AT:

Maroochydore

HEARING DATE:

16.12.10

JUDGE:

Robertson DCJ

ORDER:

I will hear the parties as to the appropriate orders

CATCHWORDS:

PLANNING AND ENVIRONMENT APPLICATION, whether development application for material change of use “a properly made application” where substantial access ramps to the development are proposed to be constructed on land the subject of a right of way easement to the site, whether owner of servient tenement’s consent to development application is required, whether development is “not inconsistent with the terms of the easement”, whether changes to the plans the subject of a deemed refusal are minor changes.

COUNSEL:

Mr A Skoien for the appellant

Mr D.R. Gore SC with Mr J Lyons for the respondent

Mr E Morzone instructed by Crown Law for the DTMR

SOLICITORS:

Watson & Quinn Lawyers for the appellant

Sunshine Coast Regional Council Legal Services for the respondent

1. At a directions hearing in relation to this appeal conducted before myself on 10 December 2010 a number of preliminary issues were raised and directions were given proceeding to a determination of the preliminary points at 2 pm on Thursday, 16 December 2010.

1. The subject site is situated at 7172 Bruce Highway, Forest Glen and comprises an area of 10.8784 hectares.  The appellant lodged a development application for a material change of use of the site with Council for construction of a large storage facility over two levels, and above the storage facility an industrial building on a podium level with part of that area being at a mezzanine level.  On 22 May 2009 the appellant lodged an appeal against Council’s deemed refusal of the application and the appeal has been on foot ever since.  As Mr Skoien for the appellant observed at the review on 10 December, the appeal has had more reviews than Ben Hur consequent upon the first directions hearing before myself on 24 July 2009 which included a detailed timetable culminating in a hearing in December 2009.  Those dates were abandoned and the plans the subject of the deemed refusal have changed and the changes are detailed in two affidavits of the appellant’s expert town planner Mr Allan Holliday filed respectively on 13 and 15 December 2010.

1. The first preliminary issue is whether or not these changes constitute a “minor change” within the meaning of s 4.1.52(2)(b) of the Integrated Planning Act 1997 (Qld) (the IPA) as varied by s 350 of the Sustainable Planning Act 2009 (Qld) (the SPA). 

1. This issue can be determined expeditiously. I have considered the changes as set out in Mr Holliday’s affidavits and I have taken into account the attitude of the respondents which is not to argue against a declaration that the proposed changes are minor in the sense in which that term is used in the legislation. I am satisfied on the basis of the evidence of Mr Holliday that none of the changes to the proposal identified by him give rise to “substantially different development” and otherwise constitute a minor change in terms of s 350 of the SPA.

1. The other preliminary issue is far more contentious.  At a late stage the Council has raised the issue whether the development application was a “properly made application” within the meaning of s 3.2.1(7) of the IPA, because it did not have with it the written consent of BP Australia Limited being the owner of adjoining land to which the application “applied”.  BP’s land is described as Lot 1 on RP211637.  It is common ground that access to the site is by way of a registered easement in favour of the appellant’s land over BP’s land.  Part of the new building structure involves ramps for vehicular movement to the separately nominated levels (ground 1^st floor).  The edge of the podium for the industrial level of the building is shown in the plans to extend into the easement area as part of a ramp system, which proposes (from left to right):

(a)        a one way ramp (up) to the podium;

(b)        a centrally located two way ramp to the ground level of the storage facility;

(c)        a one way ramp (down) from the podium.

1. The appellant’s consultant traffic engineer advised in a report dated 5 June 2008 which accompanied the appellant’s response to Council’s request for information:

“… the overall structure width of the combined ramps is estimated to be in the vicinity of 16.5 metres.  A structure of this size (or slightly larger) can be accommodated within the existing easement which is 17.5 metres wide.”

1. The structure is shown in elevation form on the south elevation on the plan by Element Design DA -06 Issue B dated 11 October 2010 where the boundary separating the BP site and the appellant’s site is shown. 

1. It can be seen in both elevation and plan form that the ramp structure occupies a substantial area of BP’s land. 

1. BP’s land was included in the description of the relevant land in the development application as was required.  BP’s consent was not provided on the basis that Mr Holliday, in his letter dated 12 February 2008 which accompanied the application, referred to the easement and relied on s 3.2.1(12) of the IPA as justification for the absence of BP’s consent on the basis that “the development is not inconsistent with the easement”. 

1. The language of s 3.2.1(12) requires that the particular use of the servient tenement proposed by the application be authorised by the easement: Eames v BCC [2010] QCA 326 at [32].

1. A copy of the registered easement is exhibited to the affidavit of Council’s solicitor Mr Graeme Phillips filed on 15 December 2010 and conveniently Mr Skoien tendered a copy in the proceedings on 16 December which was marked Exhibit 3.  The purpose of the easement is identified in Item 11 as “Right of Way” and Item 12, “In terms of the schedule attached”.  The schedule contains two clauses:

“1.        Full and free right and liberty for the grantees and their and    each of their successors in title the owners and occupiers for   the time being of the dominant tenement and his or their   respective servants and licensees (in common with the   grantor and all others having a like right) at all times   hereafter by day or night at their will and pleasure with or   without carriages motor cars motor trucks or other vehicles              of any description whatsoever for all lawful purposes    connected with the use and enjoyment of the dominant   tenement for whatsoever purposes the dominant tenement   may from time to time be used and enjoyed to enter leave go                  pass repass along through over and across the servient   tenement.

2.Full and free right and liberty at all times and from time to time to have lay construct and thereafter forever use and maintain repair disconnect and reconnect water drainage sewerage and gas pipes and electricity and telephone wires for the more beneficial use and enjoyment of the dominant tenement under (or is the case of electricity and telephone wires under or over) the surface of the servient tenement in order that any necessary wires pipes and drains and sewers may be connected from the dominant tenement with the sewer main or other pipeline or wires beyond the servient tenement and for that purpose to have full and free access to the servient tenement for the grantees and their and each of their servants agents workman and others at all reasonable times.” 

1. It is common ground that the proposed ramp is part of the development and forms part of the material change of use applied for in the development application which was one of the points in issue in Eames v BCC and Anor (supra).

1. Mr Skoien on behalf of the appellant highlights the wide nature of the grant; namely “for all lawful purposes connected with the use and enjoyment of the dominant tenement for whatsoever purposes the dominant tenement may from time to time be used and enjoyed to enter leave go pass re-pass along through or over and across the serving tenement”. 

1. His submission is that the easement is an all purposes easement and that the construction of the ramps within the easement for the purposes of access to the development is permitted by the grant.  Alternatively he submits that the construction of the ramps is contemplated as part of the ancillary rights which are necessary for the enjoyment of the rights expressly granted to the dominant tenement by the grant of easement. 

1. In his written outline he does not refer to clause 2 which, as Mr Gore and Mr Lyons submit, does provide an express right to construct but limited to “water drainage sewerage and gas pipes and electricity and telephone wires”.  Clause 1 does not provide any express right of construction for any right of way purpose.  Mr Skoien described clause 2 in oral submissions as more akin to a form of utilities easement and he submitted that it should not be read as derogating from the rights granted to the dominant tenement in clause 1.

Is the easement for all purposes?

1. A number of the authorities relied upon by the parties are from New South Wales where the statutory scheme is quite different.  However a number of the cases are useful for statements of general principle relating to construing the terms of grants of easement, and as contrast with the terms in this grant.  Mr Skoien relied upon Sertari Pty Limited v Niramba Developments Pty Ltd [2007] NSWCA 324 in support of his argument relating to ancillary rights. The owner of the dominant tenement had applied for permission to construct 236 units with underground parking for 351 cars on his land. The owner of the servient tenement refused to give its consent which was required because the development on the dominant tenement could constitute an intensification of the use of the servient tenement. The terms of the easement in that case (relevantly) were:

“(a)       full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and lessees, employees, customers, patrons, invitees and licensees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to or from the said dominant tenement or any part thereof.”

1. The easement in that case was clearly an all purposes easement, and the Court of Appeal held that the owner of the servient tenements appeal should be dismissed on the grounds that the increased use by the dominant owner would not unreasonably interfere with the reasonable use of the servient tenement by the servient owner.

1. It is well established that “the scope of rights granted by a registered easement does not extend further than those rights granted by reference to the plain meaning of the words used in the easement itself”: per Mullins J (with whom Holmes and Muir JJA agreed) in Eames v Brisbane City Council & Anor (supra at [20]; relying upon Westfield Management Limited v Perpetual Trustee Company Limited [2007] 233 CLR 528 at [18] and [24].

1. There is certainly no express right to construct any structure in the easement in clause 1, and clause 2 does provide a limited right to construct for the purposes of providing utilities and services to the dominant tenement.  I am not persuaded that the terms of clause 1 are as wide as Mr Skoien submits or as wide as the terms of easement considered by the New South Wales Court of Appeal in Sertari.  I agree with Mr Gore that the scope of the right of way is “Full and free right and liberty for (the appellant) … to enter leave go pass re-pass along through over and across the servient tenement”; and that right is qualified by the words “for all lawful purposes connected with the use and enjoyment of the dominant tenement for what sort of a purpose as the dominant tenement may from time to time be used and enjoyed …”. 

Ancillary rights

1. It can be accepted that a grant of right of way such as this is accompanied by a grant of ancillary rights which are necessary for the enjoyment of the rights expressly granted: Westfield Management Limited v Perpetual Trustee Company Limited (supra) at [23].  Sertari was such a case.  This would include a right to construct improvements on a servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement.  In Lawrence v Griffiths [1987] 47 SASR 455, it was common ground that the right of way was “impassable for normal vehicular traffic” and thus the grantee of the right of way had the right to enter and construct over it a suitably formed road.

1. In this case there can be no doubt that there is already a suitably formed concrete driveway constructed upon the servient tenement which provides access to the site.  In my opinion an ancillary right to construct a ramp of this scale albeit to provide access to the proposed development should not be implied in the face of the express words of the grant.  I agree with Mr Gore and Mr Lyons that the ramps are not needed for access from the Bruce Highway off ramp across BP’s land to the site.  The ramps are needed because the appellant proposes a  multi level building which has as part of its design the external ramps over BP’s land which would impose a burden upon the owner of the servient tenement not intended by the original grant of easement.  The only case which marginally resembled the factual circumstances here is another New South Wales case, a single judge decision of the Supreme Court of New South Wales, Robmet Investments Pty Ltd v Don Chen Pty Limited & Anor [1997] 8 BPR 97,649 at page 15,465, where it was held that using the air space above an easement area for building work was outside the terms of a right of way easement similar to the present. I agree with Mr Gore and Mr Lyons that the ancillary right to construct a road referred to in cases such as Lawrence v Griffiths and Butler v Muddle [1995] 6 BPR 97532 at page 13,987, even if exercised here has already been exercised and exhausted.

1. It follows that in my opinion the construction of the ramps is inconsistent with the terms of the easement.

1. Mr Skoien reasonably asked that if I came to that conclusion I would make no final orders to enable his client to consider its position. 

1. I will hear the parties on the appropriate orders.