The recent case of ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52 highlights the importance of obtaining consent from any party who benefits from a registered easement or statutory covenant over land the subject of a development application when seeking approval for building work, in accordance with section 65 of the Building Act.
The Court decided its discretionary powers to excuse non-compliance with the a statutory provision did not extend so far as to overcome a strict statutory prohibition in section 65 of the Building Act. Where development involves building work there is an absolute limitation on the approval of the application if the grantee of a registered easement has not given consent to the building work. As a consequence, if the grantee of an easement refuses to provide consent, the building work application must not be approved. An affected applicant will need to consider whether they should make an application to the Court to modify or extinguish the easement over the property.
If you require any further advice in relation to this matter or a similar matter, please contact one of our building and construction or commercial lawyers – Doug McKinstry Construction Law or Sarah Lally – Commercial Law – 07 40461111