In brief

The case of Scherbakov v Brisbane City Council [2020] QPEC 29 concerned an application by Scherbakov (Applicant) seeking declarations from the Planning and Environment Court (Court) in relation to a development application for a development permit for a material change of use for a new dwelling house in the traditional building character overlay (Development Application) over land located at 49 Daisy Street, the Grange, more properly described as lot 168 on RP19915 (Subject Land). 

The Applicant relevantly sought the following declarations:

  1. that the subject premises, for the purpose of the Development Application, excludes an area of land identified as easement A;

  2. that the Development Application was properly made under the Planning Act 2016 (Planning Act).

The Brisbane City Council (Council) opposed the declarations sought by the Applicant. 

After considering the nature of land title and easements, the Court held that easement A did constitute part of the subject premises for the purpose of the Development Application and dismissed the application to the Court. 

Layout of Subject Land

The Subject Land was formed when the Subject Land and the neighbouring land, more properly described as lot 167 on RP19915 (Neighbouring Land), were subdivided in or around the mid 1940s. A large dwelling has been constructed which spans the Subject Land and Neighbouring Land. 

Easement A was registered in 2016 to secure and protect the dwelling and only covers the part of the Subject Land which the large dwelling encroaches upon. The Subject Land is the servient tenement and the Neighbouring Land the dominant tenement. 

The Development Application seeks to establish a new dwelling on the Subject Land such that the part of the large dwelling encroaching on the Subject Land and the whole of the new dwelling will be situated on the Subject Land.

Easement constitutes part of the premises of the Development Application

The Applicant argued that:

  1. the proposed use is not a dual occupancy within the definition of the relevant planning scheme;

  2. the Applicant had provided all the necessary material, including the consent of the relevant owners of the premises;

  3. on a proper construction of the Planning Act, the premises the subject of the Development Application is limited to the Subject Land excluding easement A; and/or

  4. the premise should exclude consideration of the encroachment, which is properly a use of the Neighbouring Land and not the Subject Land. 

The Court considered that there is no definition of "premises" in the relevant planning scheme, but that the term is relevantly defined in schedule 2 of the Planning Act to be:

"land, whether or not a building or other structure is on the land."

"Land" is relevantly defined in schedule 2 of the Planning Act as:

"an estate in, on, over or under land;"

The Applicant held the Subject Land in fee simple, being a type of estate in land. The estate in fee simple was relevantly encumbered by easement A. 

The Court determined that the fact that the estate in fee simple is encumbered by easement A does not, subject to the terms and conditions of easement A, detract from the fact that the subject premises is the relevant land, being the entirety of the Subject Land including easement A (at [16]).

Further arguments were considered by the Court

The Court went on to consider the further arguments of the Applicant and Council, however, the Court was not required to draw any final conclusions in relation to the further arguments.

When properly characterised, was the Development Application for a "dual occupancy"?

Firstly, the Court considered whether there would be a sharing of common property, which is a requirement in the definition of "dual occupancy" in the relevant planning scheme. Specifically, the Court considered whether the easement itself constituted common property of the Applicant and owner of the Neighbouring Land. 

The Court determined that it would be difficult to see how it could be reasonably said that easement A was shared as common property. 

Was the consent of the owners of the dominant tenement required?

Secondly, the Court considered whether the consent of the owners of the dominant tenement was required when submitting the Development Application. Consent is not required where a premises is excluded premises, which includes premises that are a servient tenement for an easement if the development is consistent with the easement's terms (see section 51(2)(c) and schedule 2 of the Planning Act). 

The terms of easement A relevantly included ensuring that the easement be quietly held and enjoyed by the grantee without interruption or disturbance by the grantor. Further, the grantor is to refrain from using the servient tenement in a manner likely to obstruct or unreasonably hinder the use of the servient tenement. 

Although the Court was not required to come to a final decision, the Court considered that the proposed new dwelling would be consistent with the easement's terms as it would not impact on the purpose of the easement, relevantly, to permit the large dwelling house to remain on the Subject Land for its lifetime. 

Was the part of the large dwelling encroaching on the Subject Land properly described as a self-contained residence?

Thirdly, the Court's attention was brought to an argument that as only part of the large dwelling house is situated on the Subject Land, the large dwelling may not satisfy the definition of self-contained residence for the purpose of defining a dwelling house. As no evidence was put before the Court, the Court could not make a final determination on this matter. 

Conclusion

After determining that the easement formed part of the subject premises for the Development Application for the purpose of the Planning Act, the Court dismissed the application and therefore did not make the declarations sought by the Applicant.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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