Australia: Developers beware! Planning and environment court takes strict view of building work approval consent requirements

A recent decision of the Queensland Planning and Environment Court provides a warning to developers about the need to obtain consent from easement and covenant holders for some building development approvals.

In some circumstances, Queensland's planning law requires developers to obtain third party consents to proposed development.

For example, most developers will be aware of the requirement in section 51 of the Planning Act 2016 (Qld) (Planning Act) to obtain land owner's consent prior to making a development application for a material change of use or reconfiguring a lot.

Less widely known however, is the separate requirement in section 65 of the Building Act 1975 (Qld) (Building Act) which applies (with limited exceptions) to any development application for building work, if the land is subject to a statutory covenant held by the State or a local government, or an easement. If this applies, the assessment manager for the application 'must not approve' it unless the easement/covenant holder 'has consented to the building work'.

In the recent Queensland Planning and Environment Court (Court) case of ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52, an adjoining landowner (Appellant) successfully appealed a decision to approve a development application for building work, on the basis of a failure to comply with this requirement. The Court's decision, and the strict approach taken, highlights the need for developers to ensure that they are aware of, and comply with, the Building Act's consent requirement.

THE FACTS OF THE CASE

The case concerned a development application for a preliminary approval for building work, being a proposed partial demolition of the heritage-listed Embassy Hotel in the Brisbane CBD.

The land was subject to various easements in favour of adjoining landowners, including the Appellant, and an electricity provider. The developer did not, at any time, obtain the easement holders' consent to the proposed work.

Despite this, the Council approved the development application.

The Appellant, an adjoining landowner, appealed the Council's approval to the Court on various grounds, mainly relating to alleged inconsistency with the planning scheme's heritage provisions.

However, the Appellant also argued (as a legal technicality separate from those merits issues) that the Court was required to refuse the development application (and allow the appeal) because of the developer's failure to obtain the easement holders' consent.

Broadly, the developer raised two grounds to argue that the application should be approved, despite this failure:

Ground 1 – that, legally, the Court was not the 'assessment manager' for the purposes of section 65 of the Building Act, and so was not subject to the consent requirement; and

Ground 2 – that even if the consent requirement applied, the Court should exercise its discretion to excuse the developer's failure to obtain the consents, because (in summary) the easements no longer had any utility, the proposed works were not inconsistent with the easements and the consent requirement should only be applied to give protection 'as far as reasonable'.

THE DECISION

The Court allowed the appeal and refused the development application, because of the developer's failure to obtain consent from the easement holders.

In so doing, the Court commented that it would have approved the development application on the merits. However, the developer's failure to obtain the easement holders' consents was fatal, and the developer's grounds were not sufficient to overcome this.

Importantly, the Court was not persuaded by either of the grounds raised by the developer.

Ground 1 – Assessment manager issue

The Court accepted the developer's argument that, legally, the Court was not strictly the 'assessment manager'.

However, after carefully reviewing the relevant legislative provisions, the Court considered the intent of the legislation was that the Court generally be bound by the same requirements as originally applied to the Council. Given this, the Court held that it was subject to section 65 of the Building Act, despite the developer's technical argument.

Ground 2 – Excusal power

Unlike the Council, the Court has a discretion to excuse certain failures to comply with legislation. However, in this case, the Court considered that it would not be appropriate to exercise that discretion.

The Court characterised the consent requirement as a statutory right of the easement holders, that 'should not lightly' be interfered with (at [207]), and did not consider that its protection only went 'as far as reasonable', as argued by the developer.

The Court contrasted section 65 of the Building Act, which imposes an 'absolute' requirement to obtain consent, with section 263 of the former Sustainable Planning Act 2009 (Qld), which only required consent where (for a development application for a material change of use or reconfiguration of a lot) a development was inconsistent with the terms of an easement benefiting the subject land.

To explain this more stringent approach, the Court noted that building work, compared to other types of development, is inherently more likely to adversely affect the interests of an easement holder. For example, while a change in use may have some impacts on an easement (eg by causing increased traffic), building work poses a greater risk of interference, due to the physical nature of the works.

In refusing to exercise its discretion, the Court was also influenced by the fact that, since commencing the appeal, the developer had not obtained consent from the other easement holders or given them notice of its intention to seek to have the Court exercise its discretion.

WHAT ARE THE IMPLICATIONS OF THE DECISION?

The case does not change the legal position, as the language of section 65 of the Building Act is clear.

However, the case provides a reminder of an important, and sometimes overlooked, requirement for development applications for building work. The outcome suggests that if consent is not obtained, it may be difficult to satisfy the Court to excuse the noncompliance.

Particular care is needed because it is fairly common for land to be subject to easements which might, ordinarily, not be considered to be relevant to building work. For example, if building work is proposed on one part of a site, and another part of the site is subject to a drainage easement, there will usually be no risk of the work impacting on the easement.

However, the relatively strict approach taken in this case shows that it is not safe for a developer to merely assume that because the easement will not be affected by the work, that consent is not required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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