Legal advice regarding Viridian submission · MCU18/0015

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.

Advice (00009799)