Legal advice regarding Viridian submission · MCU18/0015

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2, identified on DA Form 1 the location of the premises as being 27
Attunga Heights, Noosa Heads and Lot 27 on RP89506 (“Lot 27");

3. was accompanied by a land owner's consent from David Neate, the
registered owner of Lot 27.

Subsequently, in the response to information request, the Development
Application was changed to reduce the overall number of lots (by the
deletion of one of the house lots) and to reduce the number of detached
dwellings from 3 to 2.

Access to proposed Lots 1 and 2 will be provided from Attunga Heights
whilst access to proposed lot 3 will be achieved through an easement which
benefits Lot 27, through the adjoining Viridian development.

The Viridian Submission

The Viridian Submission alleges that the Development Application is not
properly made because:

“It is a requirement that the premises that are completely or partly
included in the proposed development must be identified and in this
case the development application form 1 does not correctly identify
all of the land which is the subject of the development because it
does not include the scheme /and.

Once the land is correctly identified, owner consent is required to be
obtained. The only consent that has been given is the consent from
Mr Neate.

Whilst we recognise that consent is not required in circumstances
where a party has the benefit of an easement it is clear that this
development is inconsistent with the terms of easements M, L & P
benefitting Mr Neate as the owner of lot 27 on RP 89506.”

The reference to easements M, L and P is a reference to the fact that Lot
27 has the benefit of easements over some parts of the land owned by
Viridian.

Easement L

Easement L benefits Lot 27 (and therefore Lot 27 is the dominant tenement)
and provides:

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“th.

“The Grantor grants to the Grantee the full right and liberty of way
and passage of motor vehicles at all times by day or by night, along,
over and across the Servient Tenement at the Grantee’s will or
pleasure for the purpose of entering and exiting the Dominant
Tenement in accordance with the provisions hereof and to hold the
rights and liberties granted to the Grantee as appurtenant to the
Dominant Tenement provided the said grant of way and passage shall
be in common with the use of the Servient Tenement by the Grantor
and in common with all other persons from time to time lawfully
using the Servient Tenement for the same, or similar purposes."

The benefit and effect of this easement is agreed to be postponed,
and the Grantee agrees that it shall have no right to exercise any of
the rights referred to in this easement, until a development approval
is granted, and the development _is completed, for the Dominant
Tenement.

 

 

For the purposes of this clause and this easement the following
words have the following meanings:

e “development approval” means such an approval or approvals
including a ministerial approval and conditions of approval by
the Sunshine Coast Regional Council in final format enabling
the Grantee to immediately and lawfully proceed with the
construction of improvements as approved, including in
accordance with conditions of approval on the Dominant
Tenement;

e improvements being completed in accordance with the
requirements of the Sunshine Coast Regional Council and a
Certificate of Classification issuing in relation to use if required
or applicable;

e “completed” shall mean practical completion of construction
(including completion of construction of a_ stage of
development, if a staged development is approved and
constructed in stages, if applicable) in accordance with term
as is usually used, and in the case of any uncertainty, as
evidenced by the issue of a Certificate of Classification, for
such improvements by the Sunshine Coast Regional Council,
if required or applicable, and otherwise as reasonably
determined by the Grantor’s Architect;

e in the case of any uncertainty the issue of a Certificate of
Classification following Development Approval shall be taken
to be the date upon which the Grantee may use and enjoy the
rights and benefits conferred by this easement, if a Certificate

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of Classification is required or applicable, and otherwise, as
reasonably determined by the Grantor’s Architect.”

[underlining added]

Easements M and P

Easements M and P benefit Lot 27 and they relate principally to refuse
arrangements, providing the ability for the owner of Lot 27 to construct
and use a garbage bin storage area on the Viridian land and ancillary rights.

The following terms of note arise from Easements M and P:

"9,

"g.

Subject to the provisions hereof and in particular without limitation
to the provisions for clause 7 hereof, the Grantor hereby grants to
the Grantee the non-exclusive right to construct upon and use such
part of parts of the Servient Tenement as are set aside for the
purpose of the storage and use of garbage bins including all rights
reasonably ancillary to the use (including reasonably necessary
pedestrian but not vehicular access) subject to the following terms
conditions and restrictions provided that no individual Grantee have
the right to utilise any more of the Servient Tenement than any other
grantee.

The Grantee may construct upon the Servient Tenement at its own
expense in all respects, an appropriate slab or sealed surface, fencing
to surround, and the planting of appropriate screening, garden and/or
shrub areas, such are to be completely enclosed and effectively
screen for present and future use, in a manner to be approved by the
Grantor. Before any construction is commenced, the Grantee must
submit to the Grantor for its approval full details of the proposed
enclosure design, construction, and = materials, screening
landscaping, and the like, and must obtain the consent of the Grantor
in that regard before proceeding or exercising and any rights
hereunder (such consent not to be unreasonably withheld or
delayed); such design and construction material landscaping and the
like to be in accordance with all relevant Local Authority
requirements.”

The benefit and effect of this easement is agreed to be postponed,
and the Grantee agrees that it shall have no right to exercise any of
the rights referred to in this easement, until a development approval
is granted, and the development is completed, for the Dominant
Tenement.

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For the purposes of this clause and this easement the following
words have the following meanings:

e “development approval” means such an approval or approvals
including a ministerial approval and conditions of approval by
the Sunshine Coast Regional Council in final format enabling
the Grantee to immediately and lawfully proceed with the
construction of improvements as approved, including in
accordance with conditions of approval on the Dominant
Tenement;

e improvements being completed in accordance with the
requirements of the Sunshine Coast Regional Council and a
Certificate of Classification issuing in relation to use if required
or applicable;

e “completed” shall mean practical completion of construction
(including completion of construction of a _ stage of
development, if a staged development is approved and
constructed in stages, if applicable) in accordance with the
term as is usually used, and in the case of any uncertainty, as
evidenced by the issue of a Certificate of Classification, for
such improvements by the Sunshine Coast Regional Council,
if required or applicable, and otherwise as reasonably
determined by the Grantor’s Architect;

e in the case of any uncertainty the issue of a Certificate of
Classification following Development Approval shall be taken
to be the date upon which the Grantee may use and enjoy the
rights and benefits conferred by this easement, if a Certificate
of Classification is required or applicable, and otherwise, as
reasonably determined by the Grantor’s Architect.”

[underlining added]
Identification of the Development Application land
In our view, the Development Application ought to have identified the parts
of the Viridian land that constitute the easement that will be relied upon for
access (Easement L).
In some cases, it may be arguable that an easement that provides for access
is not required to be identified in a development application, where for

example, the access does not constitute a material change of use.

However, given Lot 27 is undeveloped and it is not currently exercising
rights under the easements, the proposed use arguably constitutes the start

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of anew use. Accordingly, Easement L ought to be identified as land which
is subject to the Development Application.

Easements M and P grant rights for the owner of Lot 27 to use parts of the
Viridian land to store and use garbage bins and for bins to be collected. We
understand that Easements M and P are intended to be relied upon for the
purposes of the use of proposed Lot 3. Accordingly, Easements M and P
should also be identified as land the subject of the Development
Application.

The change to the Development Application that we have recommended
could be regarded as a change in response to a matter raised in a
submission. Accordingly, pursuant to section 26 of the DA Rules, the
assessment process does not stop.

When is consent required in respect of an easement?

The Viridian Submission proceeds on an assumption that merely because
easement land is identified as being land the subject of the development
application, that the consent of the owner of the servient tenement is
required. That assumption is incorrect.

Section 51(2) of the Planning Act 2076 (“PA”) identifies the circumstances
in which a development application must be accompanied by the written

consent of the owner of premises. That section provides:

“(2) The application must be accompanied by the written consent of the
owner of the premises to the application, to the extent —

(a) the applicant is not the owner; and
(b) the application is for —

(i) | a material change of use of premises or reconfiguring a
lot; or

(ii) works on premises that are below high-water mark and
are outside a canal; and

(c) the premises are not excluded premises.”
[underlining added]

The consent of the owner of the “premises to the application" is required
unless the premises are excluded premises.

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“Excluded premises" is defined' as, inter alia, “premises that are a servient
tenement for an easement, if the development is consistent with the
easement’s terms".

Accordingly, section 51(2) of the PA is only engaged (and the consent of
the owner of the servient tenement is required) if the premises are not
“excluded premises".

Is the consent of Viridian required?
No.

Easements L, M and P grant rights for the owner of Lot 27 to use the
Viridian land for access and refuse storage and collection purposes, subject
to the requirements of the easements. The easements do not constrain the
type of development on Lot 27 that may use the easements, other than
restrictions on vehicle types, hours of use and the like.

Further, in circumstances where, if the Development Application is
approved, proposed Lot 3 will be used for the purposes of a single dwelling
house, it is difficult to understand why the use of proposed Lot 3 would be
inconsistent with the terms of Easements L, M and P.

Accordingly, our view is that Easements L, M and P are “excluded
premises" for the purposes of section 51(2) of the PA and in those
circumstances, the consent of Viridian is not required.

The Viridian Submission also goes on to note:

“Whilst we recognise that consent is not required in circumstances
where a party has the benefit of an easement it is clear that this
development is inconsistent with the terms of easements M, L & P
benefitting Mr Neate as the owner of lot 27 on RP 89506.

/t is clearly stated in the easement covenants that the benefit and
effect of the easements are agreed to be postponed and the
dominant tenement owner has no right to exercise the rights of
access until a development approval is obtained and the approved
development is complete.”

With respect, we think the Viridian Submission proceeds on a
misunderstanding of the true effect of clause 11 of Easement L and clause

8 of Easements M and P.

' Planning Act 2016, Schedule 2

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Clause 11 in Easement L and clause 8 in Easements M and P merely
postpone the time when the relevant rights can be exercised to a time after
a development approval is granted. That is a different and separate
consideration to a question about whether the development is consistent
with the easement terms.

Firstly, it is not suggested that the proposed use is inconsistent with
Easements L, M and P and clearly such a suggestion could not be properly
made out.

Secondly, the postponing of the exercise of the rights in the easements is
equally not inconsistent with the development because the use of the
easements cannot occur until a development approval is given.
Accordingly, there is no inconsistency between the proposed use of
proposed Lot 3 (if the Development Application is approved) and the terms
of Easements L, M and P.

Yours faithfully
CONNOR O’MEARA

WO. 0

“Liability limited by a scheme approved under professional standards legislation”

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