Parsons v Redland Shire Council (No 2)

[2011] QPEC 141

[2011] QPEC 141

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3391 of 2009

MALCOLM LIONEL PARSONS	Appellant
and
REDLAND CITY COUNCIL	Respondent

BRISBANE

..DATE 18/11/2011

ORDER

CATCHWORDS

Developer appeal against Council's condition requiring an extensive drainage easement - less extensive easement adjudged appropriate - too late for appellant to be permitted to argue now that there should be no easement - new owner of site uncooperative in allowing access to site for surveyors to document revised easement - final orders made as sought by Council, reserving leave for new owner to come in for a limited period
HIS HONOUR:  The court formally makes an order resolving this appeal as follows:

“The conditions of the development approval granted by the respondent's decision notice dated 24 June 2009 the subject of this appeal are changed to accord with Exhibit 38, a copy of which has been initialled and placed on the file.  Otherwise the appeal is dismissed.

Liberty to apply on or before the 5th of December 2011 to the parties and to the new owner of the subject land.”

This appeal was determined some time ago when reasons were published to the parties, but the making of formal orders was deferred. See [2011] QPEC 62. The time has come from the point of view of management of the Court's list when it should be finalised by the making of an order.

When the matter was called on this afternoon the appellant, Mr Parsons, placed material before the court which has been marked Exhibit 37, which he says supports his contention that the Council ought not to have any drainage easement over the subject property on Macleay Island as a condition of its approval of a material change of use to permit construction of a modest one bedroom residence on the site.

The condition required by the Council took the whole of the site except for the building envelope on Coondooroopa Drive for the easement.  The court's determination, intended to be favourable to Mr Parsons, was that the evidence regarding overland flows did not require an easement of anything like those proportions since there was higher land towards Moreton Bay.

While marking Exhibit 37 and placing it on the file, at least until the appeal period expires, I've explained to Mr Parsons that this court has made its decision regarding what easement is appropriate and it's now beyond the jurisdiction and powers of the court to revisit that issue.

On the Council's side there is some disquiet which Ms Cresser, the legal representative this afternoon, couldn't explain and may not fully understand herself, attributable to the inability of the Council's surveyor to gain access to the site, access presumably being contemplated in respect of getting the easement boundaries established. 

The intention of the court's order was that there'd be no difficulty in identifying the boundary of the new easement which was to extend towards the Bay to a line indicated on Mr Collins’ drawing from a line drawn some four metres from and at right angles to the boundaries of the building envelope, as I've described it.

A sketch plan forming part of Exhibit 38 more or less gives effect to the court's intention. I suppose there is a grey area. There were kinks in the boundary in respect of which the drafter has simply projected straight lines parallel to the boundary segments rather than marking rounded corners, which may more accurately reflect the 4 metres principle set out in the published reasons at [29]. I doubt much turns on the difference, but I'd indicate satisfaction with the method which I take to have been adopted, which would be more favourable to Mr Parsons, by a tiny, tiny amount.

Exhibit 38 in condition 6 by referring to the drawing mentioned indicates the court's view in respect of the appropriate easement.  Condition 18 has been changed in accordance with the views expressed in the court's reasons, so that it does not purport to for ever confine the owner of the land to a one bedroom dwelling house unless the owner is implementing this approval.

In similar vein condition 31 has been changed to preclude building works below the 2.4 metre AHD contour or below the 100 year ARI flood level "under this approval".  Without the addition it seemed to me there was a risk of the condition inappropriately constraining potential development on the site.

The conditions, including the easement one, only come into effect if in the future some person desires to implement the approval.  That may or may not come about.  If it does come about, there will be prospects of changing the approval constituted by the court’s order If that can be shown to be appropriate.

Mr Parsons informs the court that a mortgagee has taken possession of the property and sold it; there's now a new owner, with whom Ms Cresser is in contact.  It's the new owner rather than Mr Parsons, who in this respect is out of the picture, who has frustrated the Council's attempts to get access to the land for its surveyor.

I was inclined at one point during the discussion to adjourn this matter to a date next month when final orders might be made on the basis of an intimation being giving to Mr Parsons and the new owner that unless appropriate cooperation with the Council's requirements in respect of getting the potential easement documented was forthcoming the easement condition proposed by the Council would not be changed by the court.

After considering the difficulties there might be about the easement I'm not any longer of the view that those processes are appropriate.  It's possible to conclude the matter today by making orders as I have, reserving liberty to apply as I have done.

Ms Cresser communicates with the new owner by post to an address at Brisbane.  If she gets a letter out today it should be received by the new owner next Monday and 14 days has been allowed for applying to the court to have the order changed.  It may be that in appropriate circumstances the time so allowed can be enlarged, but it's a satisfaction to be able to

get the matter resolved this afternoon, apparently without requiring any further appearance.

-----