A warm welcome to Martoo Consulting’s latest planning and development newsletter. Topics for discussion include:
- Focus on Easements 1: When a Development Application is Required
- Focus on Easements 2: Providing Required Benefits while using Dimensions to Limit Burden
- Avoiding Conflicts of Interest: for Local Government Councillors
- Other Development News
- Recent Approvals
- Surveying News
As always, we encourage any feedback about the articles.
Focus on Easements 1 | When a Development Approval is Required
A development approval is not required if an easement is proposed for purposes other than access such as for support of buildings, party (or shared) walls, drainage/sewerage reticulation, water supply, electricity or encroachment even if the easement document will provide rights to the benefiting landowner to access the easement for installation, maintenance and the like.
It is also necessary to establish if the proposed easement is being registered to provide access to a road and if that road is constructed. Proposed access easements that do not provide access to a road, whether that be directly or in connection with another abutting easement, do not require a development approval. Finally it is necessary to establish if the proposed easement will provide access to a constructed road. Each local government must prepare and keep updated a map of every road in its local government area and make the map and register available to the pubic under the Local Government Act. The road register must identify a category and length for every road and if the road is formed, gravelled pavement or sealed pavement, the length and width of the formed, gravelled pavement or sealed pavement part. There is no legislated definition for a ‘constructed road’ and as such local governments need not rely on their road register to determine if a particular road is constructed under the Planning Act 2016. It should be noted that is sufficient for the State Land Registry to require approval by the planning body concerned if the road concerned has been dedicated.
It pays to seek expert advice when proposing to register an easement to establish if development approvals are required and the processes involved in seeking any required approval.
Focus on Easements 2 | Providing required benefits while using dimensions to limit burden
Easements are typically created in standard format whereby the easement is defined two dimensionally at ground level and consequently unlimited in both height and depth. There may be instances where a standard format easement that is unlimited in height or depth will unnecessary burden the land over which the easement is registered at a depth or height beyond which the intended benefit is required. For example, the registration of an easement for sewerage purposes and its associated easement document may restrict the construction of part of a building well above the sewer and any required access. It is possible to register an easement that is standard in format but restricted in height and/or depth and thereby allow the construction above or below that easement without the need to seek consent of the benefiting landowner. Alternatively an easement can be volumetric format and thereby defined by three dimensional co-ordinate geometry and fully defined by bounding surfaces (e.g. a cube). The dimension easement will allow constructions outside the identified dimensions.
Although easements can be registered on title for a number of purposes including for – access, support of buildings, party (or shared) walls, drainage/sewerage reticulation, water supply, electricity and encroachment purposes, easement cannot be registered specifically for environmental protection or protection of view purposes. There has been volumetric easement registered
There are sometimes opportunities for an easement to be registered to protect the rights adjoining land. For example volumetric easements for light or air purposes can help ensure that development on land retain access to essential light and/or air when the burden lot is subsequently developed.
It is recommended that when an easement is to be registered that the matter be discussed with an experienced consultant so that the easement is created to provide the required benefits for the intended purpose/s but does not create unintended burdens.
Avoiding Conflicts of Interest | For Local Government Councillors
As a result, certain individual local governments in Queensland have recently reviewed their own protocols associated with a range of planning and development processes. These processes can extend from pre-application meetings between developers and/or their consultants with Council, to Council’s assessment of development applications and any related negotiations or appeals to the court, as well as Council’s review of its planning scheme.
A Councillor who attempts to inappropriately influence a decision normally made by member of Council’s staff under delegated authority is liable to a “misconduct offence” and certain misconduct offences now trigger automatic referral to the Crime and Corruption Commission.
These protocols tend to offer procedural direction for Councillors so as to avoid Councillors acquiring a conflict of interest with respect to a particular planning and development related matter. Such a conflict may, for example, be as a result of a Councillor publicly expressing an opinion on a development application before having the benefit of a report and recommendation from the appropriate Council officer. Such a conflict may also result from a Councillor raising an expectation by a developer that a favourable outcome should be expected from Council. Similarly a conflict of interest may be created when a Councillor indicates to a submitter objecting against a development application that Council will not approve that development application.
In the situation whereby the planning and development matter is referred to Council meeting for a resolution, then the Councillor should declare a conflict and not take part in the discussion or vote on the matter at that Council meeting. Councillors who fail to declare such a conflict could be liable for a maximum penalty of 100 penalty units (currently $13000) or one year’s imprisonment. For any Councillor who reasonably believes or suspects another Councillor has a conflict on a matter, and who doesn’t advise the Council chairperson of such a conflict, then that Councillor is also now automatically considered to have committed a “misconduct offence”.
It has always been the case that the chance of an acceptable outcome when dealing with a local government on planning and development matters increases if the documents submitted to that local government are well-researched and competently prepared. Such an approach remains applicable.
OTHER DEVELOPMENT NEWS
Controversial Coolum Service Station Redevelopment to Go Ahead
Gympie Regional Council Continues Investment in Rainbow Beach Foreshore
New Parking Regulations for Noosa
Former Tewantin Tafe Site
Noosa Council have been deliberating the potential uses and costs to ratepayers should Council decide to purchase the former Tewantin TAFE site from the State Government following a due diligence report investigating the future of the property should Council decide to purchase the property from the State Government.
Martoo Consulting have recently facilitated the following approved development:
- Multiple dwellings in Rainbow Beach
- Extractive industry in Kandanga
- 24 hour gymnasium in Gympie
- Numerous duplexes in Gympie
- Numerous boundary realignments in Gympie and Imbil
- Numerous 2 lot residential subdivisions in Gympie
- 22 lot rural residential subdivision in Widgee Crossing South
- 21 lot rural residential subdivision in Nahrunda
- 5 lot rural residential subdivision in Pie Creek
- Installation of a pipeline under road in Anderleigh
- Numerous changes to existing approvals
- Material Change of Use – Multiple Housing Type 3 – (Retirement & Special Needs)
- Preliminary Building Works Assessable Against the Planning Scheme – Alterations and Additions to an Existing House in the Coastal Protections Area in Sunshine Beach
- Material Change of Use of Premises – Multiple Housing Type 4 Conventional – 37 units in Noosa Heads
- Material Change of Use of Premises (Home Based Business Type 3 Significant Scale – Steel Fabrication) in Cootharaba
- Material Change of Use – Duplex Dwelling in Sunshine Beach
- Material Change of Use of Premises – Retail Business Type 2 – Shop & Entertainment & Dining Business Type 1 – Food & Beverages in Tewantin
- Material Change of Use – Multiple Housing Type 4 – Conventional (15 Units) in Cooroy
We also have been providing professional advice in response to a range of planning and development matters:
- Potential development options for a site
- Due diligence advice to consider before purchasing a site of proposing to develop a site
- Existing use entitlements that are likely to already exist over a site
- Assistance in complying with existing development approval
- Advice in dealing with use or future development matters in a Community Titles Scheme
- Responding to those notices for government agencies relating to the use and development of land
- Titling options for a proposed development
For the Gympie region, we recommend Kim McCarthy of Kim McCarthy Surveys Pty Ltd who can be contacted on (07) 5482 6144.