Development Applications for Building Work & Registered Easements/Covenants

25 October 2017

 

A recent decision of Her Honour Judge Kefford DCJ in the matter of ISPT Pty Ltd v Brisbane City Council & Anor highlights the importance of obtaining consent from any party who benefits from a registered easement / statutory covenant over land the subject of a development application when seeking approval for building work.

This decision would have been different if the application was only for an MCU / ROL as the land is ‘excluded premises’ (i.e. the subject land is a servient tenement for an easement however the development is consistent with the terms of the easement).

While Conias Corporation Pty Ltd (the developer in this case) would have otherwise succeeded in having the submitter appeal dismissed on the merits, ISPT’s technical legal point with respect to the easement issue resulted in the appeal being allowed and the development application being refused.  Relevantly, the Court decided its discretionary powers to excuse non-compliance with a statutory provision did not extend so far as to overcome a strict statutory prohibition.

What do you need to do?

Be very careful with any development applications for building work in respect of land subject to a registered easement or registered statutory covenant to ensure consent to the building work from the registered holder of the easement / covenant is first obtained and accompanies the development application.  

If you would like more advice, please contact our experienced Planning and Environment Law team.

Matthew Shannon, Partner: (07) 3307 4506 or mshannon@shandtaylor.com.au

Fraser Hardman, Special Counsel: (07) 3307 4512 or fhardman@shandtaylor.com.au

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