Scherbakov v Brisbane City Council

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Scherbakov v Brisbane City Council [2020] QPEC 29

PARTIES:

DMITRY SCHERBAKOV AND JULIJA SCHERBAKOV

(Applicants)

V

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

719/20

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 May 2020 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2020

JUDGE:

RS Jones DCJ

ORDER:

1.   The application is dismissed.

2.   I will hear further from the parties if necessary as to any consequential orders.

CATCHWORDS:

PLANNING LAW – EASEMENT – definition of “premises” – application for declaration that the subject premises excludes the land identified as easement A – application for declaration that development application was properly sought

LEGISLATION:

Acts Interpretation Act 1954 (Qld)

Building Units and Group Titles Act 1980 (Qld)

Planning Act 2016 (Qld)

Planning and Environment Court Act2016 (Qld)

CASES:

Gallagher v Rainbow & Ors (1944) 179 CLR 624

Northern Territory in City Developments Pty Ltd & Anor v The Registrar-General of the Northern Territory & Ors [2001] NTCA 7

Pro-Vision Developments Pty Ltd v Ku-Ring0Gai Municipal Council [2003] NSWLEC

Re Ellenborough Park (1956) 1 Ch 130

COUNSEL:

MJ McDermott for the applicants

M Batty for the respondent

SOLICITORS:

Nicholson’s Lawyers for the applicants

City Legal for the respondents

1. This proceeding is concerned with an application for declarations that, first, the subject premises, for the purposes of the application, excludes an area of land identified as easement A on plan SP28867, easement number 717434222, and a declaration that the development application was one properly made under the Planning Act 2016 (Qld) (‘Planning Act’).

1. It is uncontroversial that the Court has the power to make the declarations sought, should the evidence warrant, pursuant to sections 240 of the Planning Act and section 11 of the Planning and Environment Court Act2016 (Qld).

1. By way of some background, the applicants are the registered proprietors of land situated at 49 Daisy Street, The Grange, more properly described as Lot 168 on registered plan 19915.  The subdivision of land involving the creation of Lot 167 and 168 was registered in or about 1985. However, some time prior to that, in or around the mid-1940s, a large dwelling had been constructed which now spans both of those lots.  The subject easement was created to secure and protect that part of the dwelling encroaching onto the subject land. 

1. The subject easement was registered on or about 8 August 2016.  Pursuant to that easement, the dominant tenement is defined to mean the land described as the benefited land in Item 2 of form 9, the easement document.  The servient tenement is defined to mean the land described as the servient tenement, the burdened land, in item 2 of form 9 of that easement document. 

1. The grantee is described, among other things, to include the successors in title and assigns of the grantee.  The grantor is defined to include the successors in title and assigns of the grantor, being the…