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ATTCH 5 - IR Response - Covenants (Anderssen Lawyers) (1)
Attached to the e-mail RAL17/0501 IR Response (email 5).
Our Ref: DBE:313767
Contact: Dale Ellerman
Direct Phone: 07 3234 3103
Direct Email: [email protected]
Direct Fax: 07 3211 8014
16 November 2017
Mr P R U Cumming
Urban Systems Pty Ltd
6/7 Avebury St
WEST END QLD 4101
By email: [email protected]
Dear Peter
Kenlynn Developments Pty Ltd - development application RFI response
We refer to item 12 of the request for information dated 7 September 2017.
Council's letter provides:
"Council has concerns with the administration and ongoing maintenance of the covenant areas and the access
easement.
Information Required
12. Provide draft covenant and easement documents that clearly define the administration and ongoing
maintenance responsibilities of the relevant areas."
In relation to the covenant we have reviewed the draft Vegetation Management Plan for the operational
phase of the development prepared by Cardno which is to form a part of the response. That VMP provides
for the management of the site into defined areas during the post-construction phase of the project.
Notably, in this phase, the VMP identifies obligations that are to be imposed upon individual lot owners only
after a significant level of restoration work has taken place during the constructions phase / creation of the
six subdivided lots.
It is our understanding (based on advice from our client's ecologist Mr Delaney) that by the time the lots are
created that the Environmental Covenant (Habitat protection) Area and Covenant (Bushfire Risk and
Stormwater Management) Area shown on the VMP will require little, if any, active management. Individual
lot owners can therefore be required to comply with Council's standard from of covenant in the orthodox
way (titles office reference for the form of covenant is 715597513).
We therefore do not currently understand why it is asserted that the administration and ongoing
maintenance of the covenant areas will be problematic. If the nature of the concern is more clearly
articulated we would be happy to amend the covenant to deal with anything that might arise.
In relation to the easement for access purposes, again the situation appears to us to be orthodox from a legal
perspective. We attach a draft form of easement document which we have prepared. The basis for the
easement is that:
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2. All lots will be burdened by / have the benefit of reciprocal access easements over the common driveway such that the driveway may be accessed by all lot owners / their contractors / invitees etc; All lot owners will be required to share in the cost of maintaining the easement in accordance with the proportions set out in clause 7 of the draft. The easement to be registered over proposed lot 714 will be the subject of an additional covenant to permit the parking of cars within the visitor parking spaces identified on page 4 of the Sheehy and Partners letter dated 8 November 2017 which forms part of this response. If there is some more specific concern which the council requires us to deal with in relation the drafting of the easement please advise. Regards Anderssen Lawyers Pty Ltd
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QUEENSLAND TITLES REGISTRY EASEMENT FORM 9 Version 4
Land Title Act 1994 and Land Act 1994 Duty Imprint Page 1 of 8
Dealing Number
OFFICE USE ONLY
Privacy Statement
Collection of information from this form is authorised by legislation and is
used to maintain publicly searchable records. For more information see
the Department’s website.
1. Grantor Lodger (Name, address, E-mail & phone number) Lodger
Code
2. Description of Easement/Lot on Plan Title Reference
Servient Tenement (burdened land)
See Enlarged Panel
#Dominant Tenement (benefited land)
See Enlarged Panel
# not applicable if easement in gross
3. Interest being burdened #4. Interest being benefited
FEE SIMPLE FEE SIMPLE
# not applicable if easement in gross
5. Grantee Given names Surname/Company name and number (include tenancy if more than one)
6. Consideration 7. Purpose of easement
$1.00 ACCESS
8. Grant/Execution
The Grantor for the above consideration grants to the Grantee the easement over the servient tenement for the purpose stated in item
7 and the Grantor and Grantee covenant with each other in terms of:- *the attached schedule; *the attached schedule and document
no. ; *document no.
* delete if not applicable
Witnessing officer must be aware of his/her obligations under section 162 of the Land Title Act 1994
..............................................................................signature
..............................................................................full name
…………………………………………. ....................qualification / / ...................................................................
Witnessing Officer Execution Date Grantor’s Signature
(Witnessing officer must be in accordance with Schedule 1
of Land Title Act 1994 eg Legal Practitioner, JP, C Dec)
..............................................................................signature
..............................................................................full name
…………………………………………. ....................qualification / / ...................................................................
Witnessing Officer Execution Date Grantee’s Signature
(Witnessing officer must be in accordance with Schedule 1
of Land Title Act 1994 eg Legal Practitioner, JP, C Dec)
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Title Reference [Title Reference]
2. Description of Easement/Lot on Plan Title Reference
Servient Tenement (burdened land)
#Dominant Tenement (benefited land)
# not applicable if easement in gross
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Title Reference [Title Reference]
1. GRANT OF EASEMENT
1.1 The grantor grants to the grantee full right and liberty for the grantee, its successors in title and the
owners and occupiers and the grantee's authorised users for the time being of the benefited land (in
common with the grantor and the grantees authorised users) at all times to pass and repass along the
burdened land for the purpose.
1.2 The rights granted under this easement are not exclusive to the Grantee.
2. PURPOSE
2.1 The grantee shall use the burdened land for the purpose of:
(a) access purposes connected with the use and enjoyment of the benefited land with or without vehicles;
(b) use the burdened land for construction and maintenance of services including installation of equipment
on and under the surface of the burdened land; and
(c) use the burdened land for installation of a mail box for each of the benefited land.
3. GRANTEE'S RIGHTS
3.1 The grantee may:
(a) use the burdened land at all times by day or night but always only in connection with the grantee's use
of the benefited land;
(b) carry out repairs to the burdened land where the grantor fails to comply with its obligations under
clause 7.1 and recover the cost from the grantor as a liquidated debt; and
(c) use parts of the land of the grantor adjoining the burdened land as may be reasonably necessary in the
exercise of its rights under clause 3.1(b);
(d) full and free right and liberty at all times hereafter to enter upon the easement for the purposes of
removing any obstruction to the access granted over the easement, however, in doing so, shall not
without the Grantor's prior written consent, cause any damage to property of the Grantor or the
Grantor's Authorised Users.
4. GRANTOR'S RIGHTS
4.1 The grantor's rights to the burdened land for purposes not inconsistent with the grantee's rights are preserved.
Where the grantor carries out any works upon the burdened land either in exercise of its right under this clause
or performance of its obligations under clause 7.1, the grantor may temporarily restrict the grantee's rights over
the burdened land but must:
(a) give adequate prior written notice of such restriction to the grantee; and
(b) take all steps reasonably practicable to ensure that the disruption to the grantee's use, occupation and
enjoyment of the benefited land is minimised.
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5. CONSTRUCTION
5.1 The grantor may:
(a) construct a concrete, bitumen or other sealed private roadway on the burdened land; or
(b) for the purpose of constructing buildings adjacent to the burdened land run services through the
burdened land, underpin, pour footings, piers and other supports on or through the burdened land,
and do any other thing on the burdened land provided it is not materially inconsistent with the grantee's rights
under this easement.
6. CONSENT
6.1 The grantee will, if required at the cost of the grantor, consent to any construction within the burdened land
which is not inconsistent with the grantee's rights under this easement.
7. MAINTENANCE OF EASEMENT
7.1 The grantor must keep the surface of the burdened land in good condition and repair suitable for the passage of
vehicles, having regard to the purposes for which the benefited land is used, expect to the extent that the
grantee is obliged to effect repairs under this easement.
7.2 The costs of reasonable maintenance and repair of the easement surface shall be paid in the following
percentage;
Lot Description Portion
716 12.5%
715 12.5%
714 17.5%
713 17.5%
712 20%
711 20%
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7.3 The grantee must at its cost repair the surface of or any structure on or adjacent to the burdened land which is
damaged by the negligence or default of the grantee or any person accessing the easement and for whom the
grantee is responsible.
7.4 The grantee must at its cos maintain and keep in good repair all services and equipment of the grantee on the
burdened land.
8. OBLIGATIONS
8.1 Grantor's Obligations
The grantor must;
(a) The Grantor shall not at any time without the express written permission of the Grantee erect any
buildings or structures of a permanent nature upon the easement or any part thereof or otherwise
permit the easement or any part thereof to be used in such a way as to obstruct or interfere with the
access and associated rights granted hereunder over the easement or interfere with the Grantee's
exercise of its rights granted by this easement.
(b) The Grantor must not act, or permit the Grantor’s Authorised Users to act, in any manner that impedes
access over the easement or otherwise interferes with the Grantee’s exercise of its rights granted by this
easement.
(c) Clause 7.1(d) does not prevent the Grantor and the Grantor’s Authorised Users from temporarily placing
plant, equipment or other movable items, of any nature, on the easement from time to time as
reasonably required for purposes determined by the Grantor in its own absolute discretion.
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9. INSURANCE
The grantor will effect and keep current a public risk liability insurance policy for an amount which the Grantor
considers appropriate to its public liability risk but in any event, for an amount not less than $20,000,000 per
claim or such higher limits as agreed with the grantee from time to time. The Grantor will provide the Grantee
with a Certificate of Currency for the public liability policy as required by the Grantee.
10. RISK
10.1 The exercise of the Grantee's powers, rights and liberties herein and the use of the easement and entry
upon the Land shall be at the risk of the Grantee except to the extent of the Grantor's or Grantor's
Authorised Users negligent or willful acts or omissions.
10.2 The Grantee indemnifies the Grantor and the Grantors Authorised Users against all actions, suits,
proceedings, claims, demands, costs, losses, damages and expenses arising out of or in respect of any
act or omission of the Grantee and the Grantee's Authorised Users in the use or attempted use of the
easement by the Grantee and the Grantee's Authorised Users, except where such actions, suits,
proceedings, claims, demands, costs, losses, damages or expenses arise as a result of any negligent act
or omissions, an illegal act or a breach of a condition of the easement by the Grantor or the Grantors
Authorised Users from any such actions, suits, proceedings, claims, demands, costs, losses, damages and
expenses which but for the provisions hereof might be brought against or made upon them.
11. PASSING OF OBLIGATIONS
The burden and benefit of the covenants and obligations in this easement pass with the burdened land and
benefited land respectively so that:
(a) any person who becomes the owner of the burdened land or the benefited land must observe the
covenants in the easement; and
(b) any obligation to observe this easement only applies whilst that person is the registered owner of either
the burdened land or the benefited land.
12. GENERAL
12.1 Notice
A document, notice, consent or approval:
(a) must be in writing; and
(b) may be left at or posted to the address or sent to the facsimile number of the party in Queensland last
known to the other party.
12.2 A notice, consent or approval may be executed by that party's solicitor or by a duly authorised officer of that
party where the party is a corporation.
12.3 A notice, consent or approval is taken to be given:
(a) on the day of delivery (if left at the address of the party in Queensland last known to the other party);
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(b) on the third business day after posting (if sent by post); and
(c) by 4.00pm on the business day a facsimile is sent (if the facsimile is sent prior to 4:00pm according to
the transmission report of the sender), but otherwise on the next business day, unless the sender is
aware that the transmission is impaired.
12.4 Governing Law
This easement is governed by the laws of Queensland.
12.5 Variation
A variation of the easement will only take effect if it be in writing and is executed by both parties.
12.6 Joint Liability
If a party consists of more than one person, the liability of those persons under the easement shall be on a joint
and several basis.
13. DICTIONARY
13.1 In the easement, unless inconsistent with the subject or context:
(a) "benefited land" means the land described in item 2 as the Dominant Tenement;
(b) "burdened land" means the land described in item 2 as the Servient Tenement;
(c) "equipment" means all pipes, drains, conduits, manholes, wires and other related equipment required
for services;
(d) "grantee" means the party specified in item 5 together with that party's personal representatives or
successors and assigns;
(e) “Grantee’s Authorised Users” means the Grantee’s employees, agents, contractors, invitees and other
persons authorised by the Grantee;
(f) "grantor" means the party specified in item 1 together with the party's personal representatives or
successors and assigns;
(g) “Grantor’s Authorised Users” means the Grantor’s employees, agents, contractors, invitees and other
persons authorised by the Grantor to enter upon, occupy or use the Servient Tenement.
(h) "item" means those items numbered 1 to 8 in the Form 9 easement;
(i) "maximum size" means maximum capacity according to the design and construction of the road built on
the burdened land from time to time;
(j) "purpose" means the purpose in clause 2 of this easement;
(k) "services" means the underground passage of water, sewerage, stormwater, electricity,
communications, data, utility services, rain water and other lawful drainage discharge;
(l) "vehicles" means any vehicle for the carriage of goods or persons and automobile machinery or plant
which does not exceed the maximum size.
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