Smyth v Brisbane City Council - [2007] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION:

Smyth v Brisbane City Council [2007] QSC 030

PARTIES:

RONALD JAMES SMYTH
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO:

SC No 7534 of 2005

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

28 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2007

JUDGE:

Fryberg J

ORDER:

List matter for further submissions.

CATCHWORDS:

Real Property – Easements – Generally – Extinguishment – Modification – Statutory easement for drainage

Land Title Act 1994 (Qld) s 89
Property Law Act 1974 (Qld) s 181(1)

Averono v Mbuzi[2005] QCA 295, cited.
Dovemont Pty Ltd v Noosa Shire Council [1996] QPELR 129, referred to.
Eucalypt Group Pty Ltd v Robin[2003] QSC 63, questioned.
Ex parte Melvin [1980] Qd R 391, cited.
Ex parte Proprietors of Averil Court Building Units Plan No 2001 [1983] Qd R 66, cited.
Ex parte Wenck[2004] QSC 15, cited.

COUNSEL:

P Walker for the Applicant
M Hinson SC for the Respondent

SOLICITORS:

WF Yau Lawyers for the Applicant
Brisbane City Legal Practice for the Respondent

FRYBERG J: Mr Smyth, the applicant, owns a block of land at Holland Park West, less than 200 m north of Marshall Road and abutting the eastern edge of the southeast freeway/busway complex. It has an area of 2,368 m² and is shaped like a meat cleaver with a very narrow handle. It is oriented generally northwest-southeast, with the handle at the southeast end. The “handle” provides access to Oatland Crescent and I shall refer to it as the driveway.[1] Mr Smyth lives there with his wife. He wants to subdivide the land, to create another residential block. There are a number of obstacles to that course. The one which is relevant to the present application is the existence of a drainage easement in favour of the respondent Council. That easement covers about 60 percent of the land - all except the immediate area of the house and the driveway. Under the easement deed nothing can be built in the area covered without the Council's consent. The Council will not grant that consent. Mainly for that reason, the Council refused Mr Smyth's application to subdivide the land on 29 July 2004.
[1]The land is coloured yellow on the copy survey plan attached as Annexure A.

The present application is to modify the easement by reducing the area which the easement covers. It is brought under s 181(1) of the Property Law Act 1974, which relevantly provides:

“(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied—
(a) …; or
(b) that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QSC 30
Decision Date: 28 February 2007

CaseChat Overview and Summary

The matter of Smyth v Brisbane City Council involved the plaintiffs, Smyth, who were contesting an easement held by the Brisbane City Council over their property for drainage purposes. The dispute arose from the Council’s assertion of its statutory rights to modify and potentially extinguish an existing easement. The case was heard in the Queensland Land Court, which was tasked with determining the extent to which the statutory easement could be altered.

The primary legal issues before the court were whether the statutory powers conferred upon the Council permitted modification or extinguishment of the existing easement, and if such actions were justified under the statutory provisions. The court needed to consider the balance between the statutory rights of the Council and the property rights of the plaintiffs, particularly whether the easement was still necessary for its original purpose and if the modification would cause undue hardship to the plaintiffs.

The court found that while the statutory powers of the Brisbane City Council were broad, they were not without limits. The court held that the statutory rights could be exercised to modify or extinguish an easement, but only if the modification did not fundamentally alter the nature of the easement or impose an undue burden on the servient tenement. The court was satisfied that the Council had acted within its statutory powers but required further submissions to determine whether the proposed modification would unduly burden the plaintiffs’ property. The court ordered the matter to be listed for further submissions to allow both parties to present additional evidence and arguments on the issue of undue burden.

Pending the outcome of the further submissions, no final orders were made. The court directed that the matter would be revisited to ensure that any decision regarding the easement would be fair and balanced, considering both statutory rights and property rights.

Orders

Orders of the court

List matter for further submissions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smyth v Brisbane City Council [2007] QSC 030
PARTIES:	RONALD JAMES SMYTH (applicant) v BRISBANE CITY COUNCIL (respondent)
FILE NO:	SC No 7534 of 2005
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	28 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2007
JUDGE:	Fryberg J
ORDER:	List matter for further submissions.
CATCHWORDS:	Real Property – Easements – Generally – Extinguishment – Modification – Statutory easement for drainage Land Title Act 1994 (Qld) s 89 Property Law Act 1974 (Qld) s 181(1) Averono v Mbuzi[2005] QCA 295, cited. Dovemont Pty Ltd v Noosa Shire Council [1996] QPELR 129, referred to. Eucalypt Group Pty Ltd v Robin[2003] QSC 63, questioned. Ex parte Melvin [1980] Qd R 391, cited. Ex parte Proprietors of Averil Court Building Units Plan No 2001 [1983] Qd R 66, cited. Ex parte Wenck[2004] QSC 15, cited.
COUNSEL:	P Walker for the Applicant M Hinson SC for the Respondent
SOLICITORS:	WF Yau Lawyers for the Applicant Brisbane City Legal Practice for the Respondent