Legal advice regarding Viridian submission · MCU18/0015

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

Advice (00009799)