The case of Aus 8 Pty Ltd v Brisbane City Council & Ors [2026] QPEC 19 concerned an originating application to the Planning and Environment Court of Queensland (Court) seeking declarations in respect of a development application for development permits for a material change of use for a childcare centre, multiple dwellings and short-term accommodation (car park) and reconfiguring a lot (1 lot into 2 lots) approved by the Brisbane City Council (Council) in respect of land located at Upper Mt Gravatt and more particularly described as Lot 3 on SP110535 (Lot 3) Lot 4 on SP110535 (Lot 4). 

Lot 4, which is owned by an eligible submitter (Submitter) for the development application, is burdened by an access easement in favour of Lot 3. It is the part of Lot 4 that is burdened by the easement that is the subject of the development application (Lot 4 Easement). The proposed development includes an arrangement for childcare centre ingress and egress via the Lot 4 Easement, hotel ingress via Lot 3, hotel egress via the Lot 4 Easement and residential residents and hotel visitor ingress and egress via the Lot 4 Easement. 

The Submitter relevantly sought declarations with respect to the Council's acceptance of the development application as properly made in circumstances where its written consent as the owner of Lot 4 had not been obtained (at [3]). 

The Court, having been satisfied that the Lot 4 Easement is "excluded premises" under the Planning Act 2016 (Qld) (reprint dated 2 August 2024 to 28 November 2024) (Planning Act) and that there was no error in the decision of the Council to accept the development application as properly made, dismissed the originating application. 

The Court observed that declaratory proceedings are analogous to judicial review proceedings and "[t]he focus must be on the legality of the decision and whether it was validly made, rather than its merits" (at [18]). In such proceedings, the person bringing the proceedings must establish an entitlement to the declarations sought (at [21]).  

The Submitter relied on the statement of reasons from the delegate of the Council (Delegate's Reasons) relating to its decision to accept the development application as properly made to support its case. The Court held that the Delegate's Reasons are to be read fairly and are "not to be construed minutely and finely with an eye keenly attuned to the perception of error" nor are the Delegate's Reasons to be "scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (at [21] quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). 

The Council, as the assessment manager, is required to be satisfied that, amongst other things, owner's consent has been provided if it is required before the Council accepts a development application (see [31] and section 51(4)(a) and (b) of the Planning Act). 

Pursuant to section 51(2)(c) of the Planning Act, owner's consent is not required to the extent that premises are "excluded premises" which is defined in schedule 2 of the Planning Act to generally include "[p]remises that are a servient tenement for an easement, if the development is consistent with the easement’s terms."  

Thus, the Council's decision to accept a development application required a determination of whether the proposed development is consistent with the easement terms and therefore the Lot 4 Easement is "excluded premises" for which owner's consent is not required (at [32]).  

The Court confirmed the following principles relating to the construction of the terms of the Lot 4 Easement (see [35] to [37] and [44]): 

• A development approval is not the type of extrinsic material envisaged by the High Court in the case of Westfield Management Limited v Perpetual Trustee Co Ltd [2007] HCA 45 as being relevant to the construing an easement. 

• An easement is to be construed as a whole and the intention of the parties requires regard to be had to the instrument itself. 

• The subjective intention of the parties is not relevant to construing an easement. 

• In construing an easement, a liberal approach is to be adopted "on the basis that such a grant creates rights of indefinite duration that continue to exist in a changing environment". 

The Court considered the terms of the Lot 4 Easement and held that the easement is an easement for "authorised users", which is broadly defined and not limited to a particular use of Lot 3, to "pass and repass" for access purposes to and from Lot 3 and that the "normal use" contemplated by the terms of the Lot 4 Easement includes obeying road rules and observing road safety which may necessitate queuing within the Lot 4 Easement depending on how many authorised users access the Lot 4 Easement at any one time (at [46]).  

The Court rejected the submissions by the Submitter that the proposed development would be a nuisance and hinderance to Lot 4 because it would cause blockages at the undercroft access to Lot 4 preventing vehicles from entering the Lot 4 Easement for the reason that any blockage would be necessitated by an authorised user obeying road rules and observing road safety which is contemplated by the terms of the Lot 4 Easement. Further, the evidence before the Court was that additional traffic movements are minimal and unlikely to impact on existing access points of adjoining owners (at [51]). 

The Court was satisfied that the proposed development is consistent with the terms of the Lot 4 Easement such that the relevant limb of the definition of "excluded premises" is met and the Submitter's consent, as the owner of Lot 4, being the servient tenement, is not required and the Council was entitled to accept the development application as properly made (see [58] and [59]). 

The Court, having regard to the Delegate's Reasons and relevant principles in judicial review proceedings, was satisfied that the Council's delegate did not misdirect herself as to the law, did not fail to take into account relevant considerations and did not take into account irrelevant considerations and therefore there was no error on the part of the delegate in arriving at her decision to accept the development application (see [73], [80] and [83]). 

The Court rejected the submissions by the Submitter that a change to the development application before it was decided triggered the requirement for the Submitter's written consent, as the owner of Lot 4, to be obtained because the change did not alter the premises the subject of the development application (at [92]). The Lot 4 Easement had always been included in the development application.   

The Court rejected the submissions by the Submitter that as the owner of Lot 4 it was denied procedural fairness because it was not consulted and given the right to say "no" to the development application because the Planning Act nor the terms of the Lot 4 Easement lend support to consultation with the Submitter being required (see [94] and [100]).   

The Court held that the proper construction of the Planning Act "…establishes an intention to displace the common law presumption to afford procedural fairness in relation to the decision by the assessment manager under s 51(4) of the PA, by necessary implication" (at [101]). 

The Court was not persuaded that the proprietary rights and interests of the Submitter, as the owner of Lot 4, subject to the terms of the Lot 4 Easement are prejudiced by the Council's decision to accept the development application or to approve the development application (at [108]). 

The Court confirmed that where natural justice is not excluded it is necessary to determine whether the decision made "could" have been different had natural justice been afforded. In this case, if natural justice was required to be afforded the query would be whether, had the Submitter been consulted, the Council's decision to accept the development application could have been different (at [111]).   

Whilst it was not necessary for the Court to make a finding in this regard given its finding that natural justice is not required by the Planning Act in respect of the decision to accept the development application in this case, it stated in obiter that the decision to accept the development application does not turn on the Submitter's opinions or representations, it rather turns on whether the development is consistent with the terms of the easement and is therefore excluded premises (at [111]).  

Thus, even if the Submitter had a right to procedural fairness, the failure to consult the Submitter is not material to the decision to accept the development application and thus would not entitle the submitter to the declarations sought (at [112]). 

The Court held that the Submitter was not entitled to the declarations sought and dismissed the originating application.