Legal advice regarding Viridian submission · MCU18/0015

“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

Advice (00009799)