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Easement court decision

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 [2017] QPEC 52 is significant for any person who owns, or wishes to develop, land which is burdened by an easement.

The decision is significant and may have implications for members. The P&E Court holds excusatory powers which is used to overcome non-compliance with provisions of the planning legislation. However, it could not be used in these circumstances because s65 of the Building Act did not concern a non-compliance, but rather was a strict statutory prohibition on the power to approve the development application.

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. 

UDIA Queensland has been advocating to the State Government over the past twelve months to address some of the complexities associated with the provision of infrastructure to lots and easements. These issues are likely to become more prevalent as increasing densification of urban areas occurs. The Institute will continue to work with government on these issues.