A recent decision of the Planning and Environment Court (P&E Court) has confirmed that local governments and private certifiers are prohibited from approving building work applications unless consent has been obtained from each registered holder of an easement over the property. The decision in ISPT Pty Ltd v Brisbane City Council & Conias Corporation Pty Ltd  QPEC 52 is significant for any person who owns, or wishes to develop, land which is burdened by an easement.
HopgoodGanim Lawyers acted for the successful appellant, ISPT Pty Ltd (ISPT), in the proceedings.
Conias Corporation Pty Ltd was the owner of the Embassy Hotel on the corner of Edward and Elizabeth Streets in the Brisbane CBD. They applied for and obtained an approval from the Brisbane City Council (Council) to carry out building works, which included partial demolition and restoration works to the hotel. The development application was impact assessable and ISPT made a submission.
The land was burdened by a number of easements, one of which benefited ISPT (for access purposes). ISPT appealed to the P&E Court against the Council's decision to approve the building work application. One of the grounds of appeal was that Conias did not obtain the consent of ISPT under s65 of the Building Act 1975 (Building Act), as well as other registered easement holders, to the proposed building works.
The Building Act
The relevant parts of s65 of the Building Act are expressed in the following terms:
"Land subject to registered easement or statutory covenant
(1) This section applies if a building development application is for land subject to:
(a) a registered easement;
(2) The assessment manager must not approve the application unless each registered holder of the easement or covenant has consented to the building work.
Pursuant to this provision, if a building development application is for land subject to a registered easement, the assessment manager must not approve the application unless each registered holder of the easement has consented to the building work. A "building development application" is defined as an application for development approval under the Planning Act 2016 (i.e. the former Sustainable Planning Act 2009) to the extent it is for building work. An "assessment manager" can mean a local government, or a private certifier.
The P&E Court allowed ISPT's appeal and refused the building work application because consent had not been obtained under s65 of the Building Act from each of the registered easement holders.
It was held that the legislative intention of s65 was to prohibit an assessment manager from approving a building development application without the consent of the registered easement holders. It is a prohibition on the power to approve such an application, and reflects a collateral or incidental benefit of an easement (namely the right to decide whether to consent to the building work) which exists alongside other rights afforded by the grant of an easement, such as an unimpeded right of way.
The P&E Court's excusatory power was not available to overcome the failure to obtain consent under the Building Act. That excusatory power is used to overcome non-compliance with provisions of the planning legislation. However, it could not be used in these circumstances because s65 did not concern a non-compliance, but rather was a strict statutory prohibition on the power to approve the development application.
The failure to obtain consent under s65 led to a mandatory refusal of the building work application.
The decision in respect of s65 of the Building Act is significant. Where development involves building work, there is an absolute limitation on approval of the application if a registered easement holder has not given consent to the building work. If the grantee of an easement refuses to provide consent, the assessment manager must not approve the building work application. That is the end of the matter, insofar as the Building Act is concerned. An affected applicant will need to consider whether it ought to separately apply to the Supreme Court to modify or extinguish the easement over the property.
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