Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2022
  4. Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 - [2022] QPEC 26

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962[2022] QPEC 26

Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962[2022] QPEC 26

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 & Anor [2022] QPEC 26

PARTIES:

LAZAROS KARAGIANIS, ANGELA KARAGIANIS, STANLEY KARAGIANIS & ANASTASIA KARAGIANIS

(Applicant)

v

BODY CORPORATE FOR NORTHPOINT CARSELDINE COMMUNITY TITLE SCHEME 50962

(First Respondent)

BRISBANE CITY COUNCIL

(Second Respondent)

FILE NO:

7/21

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for enforcement orders

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

11 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 13 May 2022

JUDGE:

McDonnell DCJ

ORDER:

The Originating Application is dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where applicant seeks declarations and enforcement orders about conditions of a development approval – where applicant contends conditions have been contravened – where respondent contends conditions have been satisfied – whether a development offence has been committed under s 164 of the Planning Act 2016 – whether enforcement orders should be granted.

LEGISLATION:

Land Sales Act 1984 ss 10, 11

Land Title Act 1994 s 83

Planning Act 2016 ss 73, 164, 180, 181, 286

Planning and Environment Court Act 2016 s 11

Sustainable Planning Act 2009

CASES:

Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318

Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424

Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPELR 221

Dickson Properties Pty Ltd v Brisbane City Council & Ors [2019] QPEC 48

House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440

Hubertus Scheutzenverein Liverpool Rifle Club v Commonwealth of Australia (1994) 85 LGERA 37 

Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53

Parramatta City Council v Shell Company Australia [1972] 2 NSWLR 632

Pike v Tighe (2018) 262 CLR 648

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] Qd R 13

R v Commonwealth Court of Conciliation and Arbitration; ex-parte Ozone Theatres (Australia) Ltd (1949) 78 CLR 389

Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

COUNSEL:

S Hedge for the first respondent

R Yuen for the second respondent

SOLICITORS:

Applicant, self-represented.

Thynne & Macartney for the first respondent. 

City Legal – Brisbane City Council for the second respondent.

Introduction

  1. [1]
    On 19 April 2016 Brisbane City Council (Council) approved a development application for a material change of use for multiple dwelling (20 units) subject to conditions, on land including 1547 Gympie Road, Carseldine (the Development Approval).[1]  The applicant is not a party to these proceedings.  The Development Approval included Conditions 21 and 23 relating to the grant or offer of easements in favour of, among others, Lot 1 on RP 95222.
  2. [2]
    Mr Karagianis and the co-owners are the registered owners (the Owners) of Lot 1 on RP 95222, situated at 1545 Gympie Road, Carseldine (the Karagianis Land).[2]
  3. [3]
    The Northpoint Carseldine Community Title Scheme 50962 came into existence on or about 3 January 2018.[3]  The Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 (Northpoint) is the body corporate for the Community Title Scheme 50962 on land located at 1547 Gympie Road, Carseldine.  Northpoint has been, and continues to be, the owner of the common property from 3 January 2018.[4] 
  4. [4]
    Mr Karagianis filed a Further Amended Originating Application[5] seeking declarations under the Planning and Environment Court Act 2016 (Qld) (PECA) and enforcement orders under the Planning Act 2016 (Qld) (PA) in relation to compliance with and enforcement of Conditions 21 and 23 of the Development Approval. 
  5. [5]
    Mr Karagianis does not seek consequential orders pursuant to s 11(4) PECA. 
  6. [6]
    Section 164 of the PA makes it an offence to contravene a development approval.
  7. [7]
    The court’s powers to make enforcement orders are contained in ss 180 and 181 of the PA.  The making of an enforcement order is discretionary.  The discretion may be exercised only if the court is satisfied that a development offence has been committed or will be committed unless the order is made.  Declarations under s 11 PECA are not required to be made before the Court can exercise the discretion to make enforcement orders.
  8. [8]
    Mr Karagianis bears the onus in the proceedings.
  9. [9]
    Guidelines which inform the exercise of the court’s discretion in relation to the making of an enforcement order are helpfully set out in Warringah Shire Council v Sedevcic.[6] 
  10. [10]
    The declarations sought do not state who is alleged to have contravened the Development Approval.  However, the parties, and the Court, proceeded on the basis that Mr Karagianis was alleging that Northpoint had committed a development offence at some point after it came into existence on or about 3 January 2018.
  11. [11]
    On the first day of the hearing, I made orders removing three of the applicants as parties to the proceedings as they failed to attend the hearing.

The Conditions

  1. [12]
    Condition 21 provides:
  1. “21.
    Grant Easements

Grant the following easement(s):

  1. (i)
    Easements for underground drainage, overland flow and access purposes as may be required, in favour of Brisbane City Council.
  2. (ii)
    Easement for the purpose of access, construction and maintenance of utility services and/or storm water drainage over lot(s) L1 RP. 28985 in favour of lot L.1 RP. 95222 PAR NUNDAH.

Timing:   Prior to commencement of use (MCU) or as part of the registration of the plan of sub-division notated by Council (ROL).  And then to be maintained:

21(a) Submit Plan of Subdivision and Documentation (Non-Council Easement)

Submit for the approval of Development Assessment a plan of subdivision showing the easement and the necessary easement documentation to demonstrate compliance with the requirements of this condition.

Note: Easements not in favour of the Brisbane City Council must have the necessary documentation prepared by the applicant’s private solicitors.

Timing:  As part of the submission of the request for compliance assessment pursuant to Schedule 19 of the Sustainable Planning Regulation 2009 for Council’s notation on the plan of subdivision necessary to comply with this condition (MCU) or to give effect to this approval (ROL).

21(b) Submit Plan of subdivision and Documentation (Council Easement)

Submit for the approval of Development Assessment, a plan of subdivision showing the easement and a request for Council to prepare the necessary easement documentation to demonstrate compliance with the requirements of this condition.

Note— Easements in favour of the Brisbane City Council mut have the necessary easement documentation prepared by the Brisbane City Council, free of cost to Council.

Timing: Prior to submission of the request for compliance assessment pursuant to Schedule 19 of the Sustainable Planning Regulation 2009 for Council’s notation on the plan of subdivision necessary to comply with this condition (MCU) or to give effect to this approval (ROL).

21(c) Lodge Notated Plan and Documentation

Lodge the plan of subdivision notated by Council pursuant to Schedule 19 of the Sustainable Planning Regulation 2009 and the necessary documentation with the Registrar of Titles for the relevant Queensland State Government Authority.

Timing: Prior to commencement of use (MCU) or as part of the registration of the plan of subdivision notated by Council (ROL).

21(d) Submit Evidence of Registration

Submit to Development Assessment, evidence of the registration of the necessary easement documentation. 

Timing:  Within one month of the registration of the easement documentation.”

  1. [13]
    Conditioned 23 provides:

“23 Offer Access Easements

Offer to grant easement(s), burdening the subject land currently described as L1 RP. 28985, to the owner at the time of land currently described as L.1 RP. 95222 PAR NUNDAH for the purpose of two-way vehicle access (including vehicles for servicing and refuse collection) through the subject land, to benefit the land currently described as L.1 RP. 95222 PAR NUNDAH, with access to Stay Place. 

The offer to grant easement(s) must be capable of immediate acceptance.  However, the rights conferred by the easement(s) may commence at a later date provided that date does not exceed the date of commencement of the use on the subject land.

Unless accepted earlier, the offer must stand for a period of 5 years from the commencement of the use on the subject land.

Timing:  Prior to site work commencing

23(a) Submit Evidence of Offer Acceptance

If the offer to grant easement(s) is (are) accepted by the owner at the time of land currently described as L.1 RP. 95222 PAR NUNDAH, submit to Development Assessment evidence of the acceptance of the offer to grant easement(s).

Timing:  Within one month of acceptance of the offer to grant easement(s).

23(b) Submit Plan of Subdivision and Documentation

If the offer to grant easement(s) is (are) accepted by the owner at the time of land currently described as L.1 RP. 95222 PAR NUNDAH, submit to Development Assessment a plan of subdivision showing the easement(s) for Council’s notation (as part of the submission of a request for compliance assessment pursuant to Schedule 19 of the Sustainable Planning Regulation 2009), and the necessary easement documentation to demonstrate compliance with the requirements of this condition.

Timing: Within 3 months of acceptance of the offer to grant easement(s) unless prior to expiration of this period, Council provides written agreement to a longer period.

23(c) Lodge Notated Plan and Documentation

Lodge the plan of subdivision notated by Council pursuant to Schedule 19 of the Sustainable Planning Regulation 2009 and the necessary easement documentation with the Registrar of Titles for the relevant Queensland State Government Authority.

Timing:  Within one month of Council’s notation on the plan of subdivision.

23(d) Submit Evidence of Registration

Submit to Development Assessment, evidence of the registration of the necessary easement documentation.

Timing:  Within one month of the registration of the easement documentation.

23(e) Submit Evidence of Offer

If the offer to grant easement(s) is not accepted within a period of two years from the commencement of the use on the subject land, submit to Development Assessment written evidence of actions undertaken to make the offer to grant easement(s).

Timing:  For a period of up to two years from commencement of use.”

Status of the Development Approval

  1. [14]
    The Development Approval was given under the Sustainable Planning Act 2009 (SPA).  SPA was repealed and replaced by the PA on 3 July 2017.  The Development Approval was in effect when the SPA was repealed.  Pursuant to s 286 of the PA:
    1. (a)
      the Development Approval continues to have effect according to its terms and conditions; and
    2. (b)
      the PA applies to the Development Approval as if it had been made under the PA.
  2. [15]
    The Development Approval attaches to the land even if the land is reconfigured, and binds the owner, successors in title and any occupier of the land.[7]  Accordingly, the Development Approval binds Northpoint, despite the reconfiguration of the land by registration of a building format plan.[8] 
  3. [16]
    It is not in dispute that the conditions of the Development Approval, including Conditions 21 and 23, are enforceable under the PA. 

Construing a development approval

  1. [17]
    Mr Karagianis urged that it was necessary to consider both his submission to the Council in relation to the application and the Council’s intention for imposing Conditions 21 and 23 to determine the proceedings.  I do not accept this for the reasons that follow.
  2. [18]
    Relevant principles which apply when construing a development approval are:
    1. (a)
      In construing a development approval, the search is not for what the Council may have intended or the applicant understood; each approval must speak according to its written terms, construed in context but having regard to its enduring function;[9]
    2. (b)
      A development approval is to be construed having regard primarily to its terms, together with other material such as approved plans, where they are incorporated expressly or by necessary implication;[10] 
    3. (c)
      The process of construction is to be aided only by evidence admissible in relation to construction and which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council.[11]
  3. [19]
    The rationale behind these principles was explained by Rackemann DCJ in Brisville Pty Ltd v Brisbane City Council at [7]:

“The development approval is a public document, which constitutes the decision of the local authority, expressed in a formal manner and is required to operate in accordance with its terms.  It is not personal to the Applicant.  It runs with the land and may be relied upon by many persons dealing with the grantee (or others exercising the rights conferred by it).  A breach of its terms may, under the Integrated Planning Act 1997 (Qld), result in proceedings not only at the instance of the local authority, but by any person”.

  1. [20]
    Accordingly, regard is not to be had to the Council’s intentions or submissions made about the application.  The Development Approval is to be construed having regard primarily to it terms, with reference to other material incorporated expressly or by necessary implication. 

Issues

  1. [21]
    The Council and Northpoint agreed on a list of issues.[12]  Mr Karagianis did not agree with that list of issues and provided his own.[13]  Mr Karagianis’ Issues 1, 2, 3, 4 and 7 align with Issues 4(a), 4(b) and 5 of Exhibit 1.
  2. [22]
    Mr Karagianis’ Issue 5 is:

“Does the offer of easement of 21 June 2016 attach to the servient tenement and bind the First Respondent by operation of s 73 of the Planning Act 2016?” 

  1. [23]
    Mr Karagianis said the effect of s 73 of the PA and Pike v Tighe[14] is that Northpoint is bound by the offer of the grant of an easement by a previous owner. 
  2. [24]
    Section 73 of the PA provides that development approvals attach to premises and bind successors in title.  It is not in dispute that s 73 of the PA applies to this Development Approval, nor that Northpoint is bound by the Development Approval. 
  3. [25]
    However, an offer of a grant of easement is not a development approval.  Section 73 does not have the effect of attaching the offer of a grant of easement of 21 June 2016 to the servient tenement and binding Northpoint.  Nor do I accept that Pike v Tighe supports the contention that an offer of a grant of an easement pursuant to a condition of a development approval binds a successor in title.  Accordingly, in relation to Mr Karagianis’ Issue 5, I find that the offer of easement of 21 June 2016 does not attach to the servient tenement and bind Northpoint by virtue of s 73 of the PA.
  4. [26]
    Mr Karagianis’ Issues 6 and 8 provide:

“Issue 6  Has the First Respondent contravened sections 73 and 164 of the Planning Act 2016 by failing to grant an easement on the terms offered by the previous owner on 21 June 2016?” 

“Issue 8 Has the First Respondent contravened sections 73 and 164 of the Planning Act by failing to make an offer of a Grant of easement as required by Condition 21 of the Development Conditions.”

  1. [27]
    Contravention of s 164 of the PA is raised by the Further Amended Originating Application.  Contravention of s 73 of the PA is not. 
  2. [28]
    Mr Karagianis’ Issues 6 and 8 are misconceived by the reference to s 73 of the PA.  It is s 73 that causes Northpoint to be bound by the Development Approval, including the conditions of approval, but s 73 cannot be contravened by Northpoint.  Accordingly, in respect of Issues 6 and 8 I find that Northpoint has not contravened s 73 of the PA by:
  1. failing to grant an easement on the terms offered by the previous owner on 21 June 2016; or
  2. failing to make an offer of grant of easement as required by Condition 21 of the development conditions.
  1. [29]
    Otherwise, Mr Karagianis’ Issue 6 broadly aligns with Issue 6 of Exhibit 1 and Mr Karagianis’ Issue 8 aligns with Issue 2 of Exhibit 1.
  2. [30]
    Mr Karagianis’ Issues 9 and 10 provide:

“Issue 9  Has the Second Respondent erred in sealing the plan when it concluded Condition 23 of the DA conditions had been met by the original owner? 

Issue 10  Has the Second Respondent erred in sealing the plan in the absence of any evidence that Condition 21 has been satisfied by the original owner?”

  1. [31]
    That there has been an error by the Council is not raised by the relief sought or the declarations sought in the Further Amended Originating Application.  Accordingly, Mr Karagianis’ Issues 9 and 10 are not issues in dispute in the proceedings and have not been dealt with in these reasons.
  2. [32]
    I proceed on the basis of the issues contained in Exhibit 1. 

Condition 21

  1. [33]
    Mr Karagianis alleged there has been a failure to comply with Condition 21 in that the easement required by Condition 21(ii) in favour of Lot 1 on RP 95222 has not been granted within the timeframe required by the condition, or at all.  He said that this failure is a development offence under s 164 of the PA.  
  2. [34]
    The issues required to be addressed in relation to Condition 21 are:
    1. (a)
      Was Condition 21(ii) of the Development Approval complied with by letters from Thynne + Macartney to Wilson Ryan Grose dated 24 June 2021 and 11 August 2021?
    2. (b)
      Has Northpoint committed a development offence pursuant to s 164 of the PA by contravening Condition 21 of the Development Approval?
    3. (c)
      Should the court exercise its discretion to make an enforcement order in the terms sought in paragraph 3 of the Further Amended Originating Application?[15]
  3. [35]
    Condition 21(ii) of the Development Approval:
    1. (a)
      requires the granting of an easement “for the purpose of access, construction and maintenance of utility services and/or storm water drainage over lot(s) L1-RP.28985 in favour of lot L1-RP 95222 PAR NUNDAH” and
    2. (b)
      specifies the timing for granting the easement to be “prior to commencement of use (MCU) or as part of the registration of plan of sub-division notated by Council (ROL).  And then to be maintained”.
  4. [36]
    Relevantly, Condition 21(ii) specifies the permitted purpose of the easement and identifies the benefitted and burdened land but does not otherwise stipulate the terms of the proposed easement.
  5. [37]
    It is not in dispute that the easement specified in Condition 21(ii) has not been granted and that the time specified for the granting of the easement has passed. 

Construing Condition 21

  1. [38]
    Northpoint submitted that Condition 21 should be construed as creating an obligation to “offer an easement” to the Owners, for the purposes specified in the condition.  This is because, it said:
    1. (a)
      Northpoint can do no more than offer an easement on terms compliant with Condition 21(ii) in order to comply, unless and until the Owners sign the easement documents; and
    2. (b)
      Northpoint cannot take the steps required by Condition 21(a), (c) and (d) of the Development Approval in relation to the easement required by Condition 21(ii) unless and until the Owners accept the easement terms pursuant to s 83(1)(b) Land Title Act 1994 (Qld).
  2. [39]
    Mr Karagianis acknowledged the practical difficulty of a condition of a development approval requiring the grant of an easement in favour of an adjoining owner was that the grantor can only offer to grant an easement.[16]
  3. [40]
    An easement can only be created by registering an instrument of easement.[17]  An instrument of easement may only be registered if, relevantly, it is signed by the owners of both the burdened land and the benefitted land.[18]  Thus, the owner of the land subject to the approval cannot “grant” an easement.
  4. [41]
    The practical effect of s 83 of the Land Title Act 1994 (Qld) is that Northpoint can do no more to comply with Condition 21(ii) than offer an easement benefitting the specified land for the purposes of and on the terms required by the condition.  To give meaning and effect to Condition 21, I accept it is appropriate to adopt the interpretation for which Northpoint contends, and proceed on that basis. 

Does the 24 June 2021 Condition 21 Offer comply with Condition 21?

  1. [42]
    By letter dated 24 June 2021 (24 June 2021 Condition 21 Offer) Northpoint’s solicitors wrote to Mr Karagianis’ solicitors enclosing an easement and survey plan for the purposes of Condition 21.[19]  The offered easement was:
    1. (a)
      on easement A SP 283750 (Northpoint’s Land);[20] 
    2. (b)
      for the benefit of the Karagianis’ land;[21] and
    3. (c)
      for the “permitted purpose” of “access to, and the construction and maintenance of, utility services and/or storm water drainage, on, over, through or under the Servient Tenement in favour of the Dominant Tenement”.[22]
  2. [43]
    The survey plan showed the location of the easement offered. 
  3. [44]
    The 24 June 2021 Condition 21 Offer included a request to arrange for the easement instrument to be executed by the Owners so that Northpoint could take the necessary steps to facilitate the granting of the easement.[23]
  4. [45]
    The easement offered benefitted and burdened the land required and was for the requisite permitted purposes.   
  5. [46]
    Accepting as I do that, properly construed, Condition 21 requires Northpoint to offer an easement in favour of Lot 1 on RP95222 for the permitted purpose specified, I am satisfied that Northpoint’s 24 June 2021 Condition 21 Offer, is an offer for the purposes of and in compliance with Condition 21(ii).   
  6. [47]
    In the circumstances, I find that there has been compliance with Condition 21(ii) by the 24 June 2021 Condition 21 Offer.

Does the 11 August 2021 Offer comply with Condition 21?

  1. [48]
    In the event that I am wrong, and Condition 21(ii) has not been complied with by the 24 June 2021 Condition 21 Offer, I also consider whether the 11 August 2021 offer complies with Condition 21. 
  2. [49]
    On the material, it is apparent that after the 24 June 2021 Condition 21 Offer was made, negotiations regarding the terms of the easement continued between the parties.   These negotiations culminated in a letter from the Northpoint’s solicitors to the Owners’ solicitors dated 11 August 2021.[24] The letter responded to amendments to the proposed easement sought by the Owners.  
  3. [50]
    The instrument of easement attached to that letter benefits the Karagianis Land and burdens part of Northpoint’s Land.  The permitted purpose of the easement is “access to, and the construction and maintenance of, utility services and/or storm water drainage on, over, through or under the Servient Tenement in favour of the Dominant Tenement”.[25]  It is in a form, upon track changes being accepted, that is capable of complying with Condition 21(ii).  
  4. [51]
    While no easement plan was attached to the letter the easement plan was unchanged from that provided previously.  This offer does not comply with the timing requirements in Condition 21(ii).  I accept that the easement offered burdened and benefitted the requisite land and was for the permitted purpose required by Condition 21.
  5. [52]
    If the 24 June 2021 Condition 21 offer does not comply with Condition 21(ii), then I am satisfied that the 11 August 2021 is an offer of an easement which complies with Condition 21(ii). 
  6. [53]
    Accordingly, I find that there has been compliance with Condition 21(ii) by the 11 August 2021 offer.

Condition 23

  1. [54]
    Mr Karagianis alleged that an offer to grant an easement benefitting Lot 1 on RP 95222 has been made and accepted but that steps required by Condition 23(a) to (d) have not been undertaken within the timeframe required by the condition, or at all.  Further, he says that this failure is a development offence. 
  2. [55]
    In the alternative, Mr Karagianis alleged that no offer compliant with Condition 23 has been made and that this non-compliance is a development offence under s 164 of the PA.
  3. [56]
    The issues for determination in relation to Condition 23 are:
    1. (a)
      Was Condition 23 of the Development Approval complied with by:
      1. the 21 June 2016 letter from “Lawlab”, the solicitors for Keystone Urban Developments Carseldine Pty Ltd to the Owners; or
      2. the 14 November 2018 letter from the Body Corporate Alliance Pty Ltd on behalf of Northpoint to the Owners; or
      3. the 24 June 2021 letter from Thynne and Macartney to Wilson Ryan Grose?
    2. (b)
      If the 21 June 2016 letter was an “offer to grant easement(s)”, was it accepted by the Owners before it lapsed?  If so, when?
    3. (c)
      Has Northpoint committed a development offence pursuant to s 164 of the Planning Act 2016 (Qld) by contravening Condition 23 of the Development Approval?
    4. (d)
      Should the court exercise its discretion to make an enforcement order in the terms sought in paragraph 4 of the Further Amended Originating Application?[26]
  4. [57]
    Condition 23 required:
    1. (a)
      an “offer to grant easement(s)” be made to the owners of Lot 1 on RP 95222 “for the purpose of two-way vehicle access (including vehicles for servicing and refuse collection) through the subject land …. with access to Stay Place”;
    2. (b)
      that the offer be made “prior to site work commencing”;
    3. (c)
      that the offer be capable of immediate acceptance; and
    4. (d)
      that it stand for a period of five years from the commencement of the use on the subject land unless accepted earlier.
  5. [58]
    Condition 23 specifies the permitted purpose of the easement and identifies the benefitted and burdened land, but does not otherwise stipulate the terms of the proposed easement.
  6. [59]
    Northpoint and the Council contended that there are three letters the court should consider in determining whether Condition 23 has been complied with.  They are the 21 June 2016 letter,[27] the 14 November 2018 letter[28] and the 24 June 2021 letter[29] (the 24 June 2021 letter Condition 23 letter).  Council and Northpoint submit that compliance with Condition 23 is evidenced by the 14 November 2018 letter or the 24 June 2021 Condition 23. 
  7. [60]
    Mr Karagianis contended that if the 21 June 2016 offer was not an offer compliant with Condition 23 there has been no offer compliant with that condition. He said that in addition to these three letters there is a fourth dated 16 February 2018,[30] which must be considered.
  8. [61]
    Northpoint submitted that the word “offer” in Condition 23 should be read to indicate an offer capable, if accepted, of forming a contract. 
  9. [62]
    I am satisfied that “offer” should be given its ordinary, everyday meaning.  The Macquarie Dictionary 8th Edition 2020 defines “offer” as “to present for acceptance or rejection”.

Does the 21 June 2016 letter comply with Condition 23?

  1. [63]
    Lawlab, on behalf of Keystone Urban Development Carseldine Pty Ltd as trustee, wrote to the Owners on 21 June 2016.  The letter stated, relevantly:

“…our client hereby offers to grant you an easement over part of the Property benefitting your land for the purpose of two-way vehicle access (including vehicles for servicing and refuse collection) to Stay Place.

We enclose the Easement document and the draft Easement Plan for your reference.  Please note that the Easement Plan is in draft form only and subject to a final survey.

You can accept the offer of the Easement immediately by all registered owners signing and returning the enclosed Easement document to our office…

The Easement rights will only commence once the easement document has been signed by all parties and work on the Property has commenced.  This offer stands for a period of 5 years from the date work on the Property has commenced.”[31]

  1. [64]
    Mr Karagianis said this was an “offer to grant easement” in satisfaction of Condition 23 which was accepted as it was:
    1. (a)
      for the permitted purpose;
    2. (b)
      capable of immediate acceptance;
    3. (c)
      accepted within the time that it was open, and that therefore he said it does not matter that the offer was open for a shorter period than required by Condition 23;
    4. (d)
      made prior to siteworks commencing. 
  2. [65]
    Mr Karagianis urged that while the offer was not capable of immediate registration because it attached a draft plan of survey, it was capable of immediate acceptance. 
  3. [66]
    Mr Karagianis said that the draft survey plan was sufficient for immediate acceptance for the present purposes because a draft plan is acceptable for the sale of proposed land under the Land Sales Act 1984 (Qld).  Whilst conceding that the Land Sales Act applies to “sales” not easements, he submitted that the Land Sales Act:

“disproves any argument that an offer of the creation of an interest in real property, whether by way of sale or by way of Grant of an Easement, cannot be made prior to registration of a final registered plan.”[32]

  1. [67]
    Northpoint and the Council said that this was not an offer of an easement which satisfies Condition 23 because:
    1. (a)
      it is not capable of immediate acceptance because it does not, objectively, evidence an intention to be immediately bound by the terms in the attached easement document.  Rather, the letter states on its face that it is subject to a final survey;
    2. (b)
      its terms are not certain, because the survey plan was subject to a final survey; and
    3. (c)
      it was not open for acceptance for a period of five years from the commencement of the use on the subject land.
  2. [68]
    Northpoint accepted that it is possible for two parties to agree that a draft plan will be used in a contract and then obtain a plan to register the interest.  However, it said the parties here did not so agree. 
  3. [69]
    I do not accept that the offer complies with Condition 23 for three reasons. 
  4. [70]
    First, the offer is not capable of immediate acceptance as the easement plan is stated to be subject to a final survey.  The Land Sales Act, to the extent it says a draft plan of survey is sufficient for use as a “disclosure plan” required to be given by a proposed seller to a proposed buyer,[33] is not relevant to the offer of a grant of easement.
  5. [71]
    It is clear on the material, that the parties did not agree to rely on a draft plan.  This is evident from the words “please note that the Easement Plan is in draft form only and subject to a final survey”[34] in the offer and by the Owner’s insistence upon receiving a final survey plan, discussed below at paragraphs [79] to [81].
  6. [72]
    Second, the terms of the offer lack certainty because the land to be burdened has no meaning without reference to a final survey plan.  As the survey plan is subject to final survey the area of the proposed easement is not specified.  The easement area is an essential and fundamental term of an easement.  The absence of a final easement area was a real impediment to the acceptance of the offer.[35]  This is an essential term not established by the 21 June 2016 letter.  I am satisfied that as the offer is subject to final survey the area of the easement is not established and the terms of the offer are not certain.
  7. [73]
    Third, the offer was not open for the period of time required by the condition.  The offer was required to stand for a period of five years from the commencement of use on the subject land.  It was contended by Mr Karagianis, and accepted by Northpoint, that the commencement of the use could not have lawfully occurred before 3 January 2018.[36]  Thus, the terms were not compliant with requirements of Condition 23 because the offer was open for five years from the date work commenced on the property, being a shorter period.
  8. [74]
    I do not accept Mr Karagianis’ submission that it does not matter that the offer was open for a shorter time than stipulated by Condition 23, because it was accepted earlier.  In any event, I find below that the offer has not been accepted.
  9. [75]
    For these reasons, I find that the 21 June 2016 letter is not an offer which satisfies Condition 23. 

Has there been acceptance of the 21 June 2016 offer?

  1. [76]
    In the event that I am wrong, and the 21 June 2016 letter was an offer of easement for the purposes of Condition 23, I turn to consider whether there has been acceptance of the 21 June 2016 offer.
  2. [77]
    Mr Karagianis contends that the Owners accepted this offer:
    1. (a)
      between 13 November 2017 and 3 February 2018 by way of email correspondence between Mr Karagianis, as agent for the Owners, and the solicitors for Keystone;[37]
    2. (b)
      on or about 25 September 2019 by way of letter from the solicitors for the Owners at that time, O'Sullivans Lawfirm, to the Strata Manager for the body corporate;[38] or
    3. (c)
      on or about 22 July 2020 by way of a letter from the solicitors for the Owners at that time, O'Sullivans Lawfirm, to the solicitors for the body corporate at that time, Mathews Hunt Legal.[39] 
  3. [78]
    In considering whether the Owners accepted this offer by either of the letters of 25 September 2019 or 22 July 2020. It is necessary to also determine whether the 21 June 2016 offer remained open for acceptance on those dates.

Was the 21 June 2016 offer accepted by the 13 November 2017 to 3 February 2018 email correspondence?

  1. [79]
    Relevantly, Mr Karagianis wrote on 13 November 2017 “We are keen to finalise this matter but cannot proceed without a final plan which will accompany the REGISTRATION OF THE EASEMENT AT THE TITLES OFFICE”.[40] 
  2. [80]
    Correspondence between the parties relating to the timing of the provision of the survey plan ensued. 
  3. [81]
    Finally, on 3 February 2018 Mr Karagianis wrote and stated, amongst other things:

“I wish to remind you that to this day, we have not been offered full documentation in a form that we could reasonably accept…

we are keen to finalise this matter but can not proceed without a final plan...

how can you assert that you have offered us the subject easement when in fact you have made us a ‘hollow offer’ or Iconic offer, because it was not complete in a form that could be registered at the Titles Office…The final survey drawing is an integral part of the easement as it defines what is being granted.  Our acceptance of the easement is, as any reasonable person would expect, subject to the final documentation in a form that will be registered at the Titles Office and that includes the final drawing of the subject easement.”[41]

  1. [82]
    Mr Karagianis contends that by these emails the Owners were accepting the 21 June 2016 offer.
  2. [83]
    While this communication indicates a desire to resolve the matter of the easement I do not accept that, by these emails the Owners accept the 21 June 2016 offer.  Accordingly, I find that by this email communication the Owners did not accept the 21 June 2016 offer. 

Is the 21 June 2016 offer still open for acceptance?

  1. [84]
    Mr Karagianis relied upon Dickson Properties Pty Ltd v Brisbane City Council & Ors[42] as authority for the proposition that the offer of an easement which was required to be open for acceptance in the future was enforceable under the PA.  Dickson was a planning appeal, not enforcement proceedings, and dealt with the enforceability of a condition that required the making of an offer to grant an easement.  It does not address the point contended for by Mr Karagianis.   
  2. [85]
    Northpoint contended that the 21 June 2016 offer lapsed when Keystone Urban Developments Carseldine Pty Ltd as trustee ceased its ownership of the land on or about 3 January 2018, when Northpoint came into existence.  Once Keystone ceased ownership of the land, it could not execute the instrument of easement, and so could not perform its obligations under the 21 June 2016 offer.  Northpoint submits that ownership of the servient tenement is a fundamental term such that the 21 June 2016 offer lapsed when the developer ceased ownership. 
  3. [86]
    Thus, Northpoint submits the only rational conclusion is that the offer has lapsed, preventing any later acceptance of the 21 June 2016 offer. 
  4. [87]
    Without making a determination on this issue, I proceed on the basis that, for the purpose of giving consideration to whether the later communications comprise acceptance of this offer, to the extent that the 21 June 2016 letter was an offer made in compliance with Condition 23, it remained open for acceptance after the change in ownership.
  5. [88]
    Ultimately, on the basis of my findings in paragraphs [92] and [98] that the 21 June 2016 offer was not accepted by the later letters, it is not necessary for me to determine this issue.

Was the 21 June 2016 offer accepted by the 25 September 2019 letter?

  1. [89]
    Mr Karagianis relied upon a letter from O'Sullivans Lawfirm to Northpoint’s agent dated 25 September 2019[43] as indicating acceptance of the offer by the Owners.
  2. [90]
    The 25 September 2019 letter is a response to a letter of 14 November 2018 by Northpoint, discussed below.  O'Sullivans Lawfirm for the Owners acknowledged that the 21 June 2016 offer was not capable of immediate acceptance as it was not in registrable form as the easement plan was only in draft.  The solicitors went on to say:

“our clients are prepared to accept the original offer of a grant of easement in terms of that original grant including the schedule terms coupled with the final and registrable easement plan as contained in your most recent offer.”[44]

  1. [91]
    That the Owners indicate in this letter that they will accept part of the 21 June 2016 offer and part of the 14 November 2018 offer contradicts Mr Karagianis’ assertion that this letter conveys acceptance of the 21 June 2016 offer. 
  2. [92]
    In the circumstances, if the 21 June 2016 offer remained open for acceptance, I do not accept that the letter of 25 September 2019 comprises acceptance of that offer. 

Does the 22 July 2020 letter comprise acceptance of the 21 June 2016 offer?

  1. [93]
    Mr Karagianis asserts that by the 22 July 2020 letter[45] the Owners accepted the 21 June 2016 offer. 
  2. [94]
    By the 22 July 2020 letter, the solicitors for the Owners returned an easement executed by the Owners purporting to accept the 21 June 2016 offer.  The covering letter suggests that the signed easement was that attached to the 21 June 2016 offer.  However, the easement signed and returned was that provided on 16 February 2018, which excluded business or commercial use of the easement, contrary to the requirements of Condition 23.[46]  Mr Karagianis said that this easement document was executed on his understanding that the terms and conditions were the same as contained in the 21 June 2016 letter. [47]
  3. [95]
    Somewhat inconsistently with his contention that the 22 July 2020 letter comprises acceptance of the 21 June 2016 offer, Mr Karagianis told the court that the Owners withdrew their “acceptance” and indicated that they wanted the 2016 offer to be reinstated.[48]  There was no evidence of this apparent withdrawal before the court.  I proceed on the basis that this purported acceptance was not withdrawn. 
  4. [96]
    Northpoint submits that the letter of 22 July 2020 was not an acceptance of the 21 June 2016 offer as it was on different terms from that offer, and determined objectively, the Owner’s misunderstanding of what they communicated is irrelevant.
  5. [97]
    Considered objectively, I do not accept that by the 22 July 2020 letter the Owners accepted the 21 June 2016 offer, because the signed easement document was not that included in the 21 June 2016 offer.
  6. [98]
    Accordingly, I find that the Owners did not accept the 21 June 2016 offer by the 22 July 2020 letter, if it remained open for acceptance at that date.
  7. [99]
    Mr Karagianis said that the Owners went to great lengths to accept the 2016 offer.  That is not consistent with the evidence.
  8. [100]
    Having made the findings in paragraphs [83], [92] and [98], even if the 21 June 2016 offer had not lapsed and it bound Northpoint, which I have not determined, I am satisfied that there has been no acceptance by the Owners of the 21 June 2016 offer.

Is the 16 February 2018 letter an offer pursuant to Condition 23?

  1. [101]
    Mr Karagianis maintains that there is a fourth item of correspondence which must be considered for the purposes of the Condition 23 issues, being the email dated 16 February 2018.[49] 
  2. [102]
    This email attached a plan and a draft easement.  The covering email does not state or imply that the correspondence comprised an offer pursuant to Condition 23.  Nor does it state that any offer remained open for any period of time.  This correspondence appears to be part of a continued negotiation. 
  3. [103]
    The easement attached to this correspondence specifically excluded access for any business or commercial purpose, which I consider to be contrary to the permitted purpose of the easement required by Condition 23.  It was this easement document that was signed and returned by the Owners under cover of the 22 July 2020 letter, referred to above at paragraph [94].
  4. [104]
    As the terms of the proposed easement are contrary to Condition 23 and the letter does not state that any offer remained open for acceptance as required by Condition 23, I do not accept that the email of 16 February 2018 comprised an offer to grant an easement compliant with Condition 23.

Does the 14 November 2018 letter comply with Condition 23?

  1. [105]
    The 14 November 2018 letter from the Body Corporate Alliance Pty Ltd on behalf of Northpoint to the Owners:
    1. (a)
      offered to grant the Owners an easement over part of the common property benefitting the Karagianis’ Land and for the purposes of accessing Stay Place (with or without vehicles) and obtaining services and refuse collection;[50]
    2. (b)
      included an instrument of easement, in registrable form, and an easement plan depicting the easement area, Easement A, facilitating access to Stay Place;[51] and
    3. (c)
      stated that the offer stood for a period of five years from the date the body corporate formally resolved to grant the offer, being 7 November 2018.
  2. [106]
    Northpoint said that this is the first offer that is compliant with the terms of Condition 23. 
  3. [107]
    Mr Karagianis said that he was not satisfied with some of the terms of this offer including that:-
    1. (a)
      the consideration was $73,803.65 (Item 6);
    2. (b)
      it required the registration numbers of cars to be provided in advance.[52] 
  4. [108]
    These terms are not inconsistent with the offer required to be made pursuant to Condition 23 and are not otherwise relevant to determining whether the offer is compliant with Condition 23.
  5. [109]
    The offer, in terms of time, was more generous than required by Condition 23.  I am satisfied that the offer is capable of immediate acceptance and otherwise satisfies the requirements of Condition 23.
  6. [110]
    Accordingly, I find that the 14 November 2018 letter was an offer to grant an easement in compliance with Condition 23.

Does the 24 June 2021 Condition 23 letter comply with Condition 23?

  1. [111]
    By the 24 June 2021 Condition 23 letter[53] Northpoint:
    1. (a)
      offered to grant an easement over part of the common property benefitting the Owner’s land for the purpose of “two-way Vehicle access (including Vehicles for servicing and refuse collection) through the Servient Tenement in favour of the Dominant Tenement, with access to Stay Place, Carseldine”;[54]
    2. (b)
      provided an instrument of easement in registrable form and an easement plan clearly depicting the easement area, easement A, facilitating access to Stay Place by the Owner’s land;[55] and
    3. (c)
      expressly stated that the offer “stands open for acceptance for a period of five years from the commencement of the use on the Land”.[56]
  2. [112]
    I am satisfied that the offer is capable of immediate acceptance, and otherwise satisfies the requirements of Condition 23.
  3. [113]
    Accordingly, I find that Northpoint complied with Condition 23 by the 24 June 2021 Condition 23 letter. 

Has Northpoint committed a development offence pursuant to s 164 of the PA by the contravention of Condition 21 or Condition 23?

  1. [114]
    Mr Karagianis’ submissions in relation to Condition 21 were limited.  He said that compliance with Condition 21 was something that he thought the parties could agree once the main issues in relation to Condition 23 were resolved.[57]
  2. [115]
    Mr Karagianis said that while there may have been ‘essential compliance’ or attempted compliance with respect to Condition 21, he did not consider that all non-compliances had been remedied.[58]    It is not clear what Mr Karagianis meant by this. 
  3. [116]
    It is common ground that Conditions 21 and 23 of the development approval were not complied with when Northpoint came into existence.[59]
  4. [117]
    Northpoint[60] and the Council[61] made admissions of fact as follows:
    1. (a)
      in the ordinary course of the Brisbane City Council’s operations, a planning approval like the material change of use approval for multiple dwellings on 1547 Gympie Road, Carseldine, would be publicly available on the Brisbane City Council’s website;
    2. (b)
      there is no legal impediment or requirement of special position for a member of the public to access an approval that is available on the Brisbane City Council’s website; and
    3. (c)
      Miss Sibenaler obtained the information in DJS-02 to her affidavit dated 5 July 2021 (Court Doc #13) from the Brisbane City Council’s website.
  5. [118]
    Mr Karagianis drew attention to the conduct of Northpoint in the exercise of the court’s discretion.  He said that the admissions confirm that information regarding the Development Approval was freely available on the Brisbane City Council website prior to settlement of the purchase contracts and that a search of the title would have revealed that the Condition 21(ii) and Condition 23 easements had not been registered.  He maintains that this would have caused a purchaser to be put on enquiry.
  6. [119]
    Northpoint’s obligation to comply with the Development Approval began when it came into existence.  There was no evidence before me about how or when Northpoint ascertained the conditions had not been satisfied.
  7. [120]
    Pike v Tighe acknowledges that:

“a successor in title could not be said to have failed to comply with a condition of a development approval where he or she has had no opportunity to comply with it. It is ‘failure to comply rather than bare non-compliance, which may give rise to a development offence the commission of which may lead to the making of an enforcement order…”[62]

  1. [121]
    Northpoint said that by the 24 June 2021 Condition 21 Offer it complied with the requirement to offer the grant of an easement, and that absent agreement by the Owners to the offer of easement it has done all it can to comply with Condition 21.
  2. [122]
    The evidence is that Owners have not accepted the 24 June 2021 Condition 21 Offer or the 11 August 2021 offer of easement.[63]  Mr Karagianis does not submit that either offer has been accepted by the Owners.
  3. [123]
    To the extent there has been non-compliance by Northpoint in relation to Condition 21, it started from 3 January 2018, being the date Northpoint came into existence.  However, it is not a bare non-compliance with which the court is concerned.  Northpoint must have an opportunity to comply.  I am satisfied that Northpoint was not dilatory in addressing any non-compliance. Further, I am satisfied that any non-compliance with Condition 21 has now been remedied to the extent possible by Northpoint by the 24 June 2021 Condition 21 Offer and the 11 August 2021 offer. 
  4. [124]
    I accept that absent acceptance of the terms of the offer of the easement by the Owners, Northpoint can take no further steps in compliance with Condition 21. 
  5. [125]
    Mr Karagianis does not dispute that offers to grant easements in purported compliance with Condition 23 have been made.  However, he is not satisfied with the terms of those offers.  Mr Karagianis’ position is that the offers are not compliant with Condition 23, as it is not the case that “any offer will do”.  The precise terms of the easement are not specified by the condition; this was a matter that was left to the parties to the easement.  The Owners may prefer the easements to be granted on other terms but that is not a matter that can be addressed in the current proceedings.
  6. [126]
    The 14 November 2018 Offer and 24 June 2021 Condition 23 Offer were not made prior to site work commencing, as required by Condition 23.  However, as Northpoint was not the owner at that time, it was not able to make an offer prior to site work commencing. 
  7. [127]
    To the extent there has been a non-compliance by Northpoint in relation to Condition 23, it started from 3 January 2018, being the date Northpoint came into existence.  As discussed above, some time is allowed to address any non-compliance.  I am satisfied that Northpoint was not dilatory in addressing any non-compliance.  I am satisfied that any non-compliance with Condition 23 has now been remedied to the extent possible by Northpoint, by the 14 November 2018 letter and the 24 June 2021 Condition 23 letter.
  8. [128]
    The obligation to take the steps required by Condition 23(a) – (d) arise only if the offer to grant the easement is accepted.

Should the declarations sought be made?

  1. [129]
    On the basis of my findings, the declarations sought have no utility because:
    1. (a)
      To the extent there has been any non-compliance with Condition 21(ii) of the Development Approval it has now been remedied;
    2. (b)
      To the extent there has been any non-compliance with Condition 23 of the Development Approval it has now been remedied;
    3. (c)
      Mr Karagianis has not sought consequential orders pursuant to s 11(4) of the PECA; and
    4. (d)
      The exercise of the power to make an enforcement order is not contingent upon the making of a declaration about the commission, or the likely commission, of a development offence pursuant to s 11 of the PECA.[64]
  2. [130]
    In the circumstances, I decline to make the declarations sought. 

Should the enforcement orders be made?

  1. [131]
    Mr Karagianis seeks enforcement orders pursuant to s 180 and 181 of the PA requiring that Northpoint:
    1. (a)
      Comply with Condition 21 by taking steps required by Condition 21(a), (c) and (d);
    2. (b)
      Comply with Condition 23 by:

“(a) submitting to the Second Respondent within one month of the order of the Court:

  1. (i)
    evidence of the Applicants’ acceptance of the offer to grant an easement contained in the letter from Lawlab to the Applicants dated 21 June 2016;
  2. (ii)
    a plan of subdivision showing the easement that is consistent with the offer contained in the letter from Lawlab to the Applicants dated 21  June 2016; and
  3. (iii)
    the necessary easement documentation consistent with the offer contained in the letter from Lawlab to the Applicants dated 21 June 2016 to demonstrate compliance with the requirements of the condition.”; and
  1. (c)
    taking steps required by Condition 23(c) and (d).
  1. [132]
    The making of enforcement orders is a serious matter and requires me to be satisfied the orders are required.  The discretionary power is a wide one.  Guidelines for the exercise of the discretion were set out in Warringah Shire Council v Sedevcic,[65] and have been approved by the Queensland Court of Appeal.[66]  I have had regard to the matters relevant to the exercise of my discretion.[67]  For the reasons set out below I am not satisfied that enforcement orders are required.
  2. [133]
    I have found that Northpoint has offered an easement compliant with Condition 21(ii).  While Mr Karagianis may prefer easements on different terms to those offered, Condition 21 leaves the precise terms of the easement to be agreed between the parties.
  3. [134]
    To the extent there has been any non-compliance with Condition 21, which I have not found, in the exercise of my discretion, I decline to grant the enforcement orders sought in respect of Condition 21 because:
    1. (a)
      to the extent that there was any non-compliance with Condition 21(ii), that non-compliance has now been remedied;
    2. (b)
      Northpoint’s ability to comply with Condition 21(a), (c) and (d) of the Development Approval so far as they relate to the Condition 21(ii) easement is contingent upon the execution of the easement instruments by the Owners.  Northpoint cannot comply with an enforcement order if made, unless and until the Owners agree to the terms of the easement offered.  That is, Northpoint’s ability to comply is contingent upon actions by a third party, which is beyond Northpoint’s control;
    3. (c)
      the easement has been offered and not accepted;
    4. (d)
      there is no utility in making such an order; and
    5. (e)
      there is no public interest in making an enforcement order in the circumstances.
  4. [135]
    In view of my findings in paragraphs [110] and [113], I am satisfied that Northpoint has made offers compliant with Condition 23 and that any non-compliance with Condition 23 has now been remedied.
  5. [136]
    Mr Karagianis has indicated that he is not satisfied with the terms of the easements offered.  But the offer of an easement on particular terms is not imposed by the condition.  The offers made, I have found, satisfy Condition 23.
  6. [137]
    To the extent there has been any non-compliance with Condition 23, which I have not found, in the exercise of my discretion, I decline to make the enforcement order sought in relation to Condition 23 because:
    1. (a)
      to the extent there was any non-compliance with Condition 23 that non-compliance has now been remedied;
    2. (b)
      since coming into existence Northpoint as successor in title, has taken reasonable steps to comply with Condition 23 by the offers of 14 November 2018 and the 24  June 2021 Condition 23 offer;
    3. (c)
      the easement has been offered and not accepted;
    4. (d)
      there is no utility in making the order;
    5. (e)
      the Karagianis land is not landlocked.  It currently has access to Gympie Road and the Department of Transport and Main Roads has granted an approval for Mr Karagianis’ proposed development to have access from Gympie Road; [68]
    6. (f)
      the orders sought by paragraphs 4(b), (c) and (d) of the Further Amended Originating Application are broadly consistent with the terms of Condition 23(c) – (d).  The obligations under Conditions 23(c) and (d) arise only if the offer of a grant of easement under Condition 23 is accepted;
    7. (g)
      the relief sought extends into matters relating to the terms of an offer of grant of easement which are outside the terms of the condition and are beyond the court’s power; and
    8. (h)
      there is no public interest in making an enforcement order in the circumstances.
  7. [138]
    If I am wrong and the 21 June 2016 letter constituted a valid offer under Condition 23 and it was validly accepted before it lapsed, then in the exercise of my discretion I do not make the enforcement orders sought in respect of Condition 23 because:
    1. (a)
      the enforcement order sought seeks an easement on particular terms, which goes further than the provisions of the condition sought to be enforced and is beyond the power of the court granted by s 180(2) and 180(5) of the PA as it does not just require that Northpoint refrain from committing a development offence or remedy a development offence;
    2. (b)
      there is a more convenient and satisfactory remedy available, being action against the developer for any loss suffered;[69]
    3. (c)
      the easement is not required because the development by Mr Karagianis does not rely upon the easement; in response to the Council indicating it would not support use of the access easement by Mr Karagianis’ proposed development[70] the application was amended so as not to use the easement;[71] and
    4. (d)
      there is no proof of loss or prejudice on the part of Mr Karagianis. 

Orders

  1. [139]
    The Originating Application is dismissed. 

Footnotes

[1] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 7 – 55. 

[2] Court Document No. 11, Affidavit of D Morton sworn 17 March 2021, p 6.

[3] Court Document No. 24, Further Amended Originating Application, p 3; admitted by the First Respondent in Court Document No. 26 Statement of Facts, Matters and Contentions, p 1.

[4] Ibid.

[5] Court Document No. 24.

[6] (1987) 10 NSWLR 335, 339 – 341.

[7] PA s 73.

[8] See Pike v Tighe (2018) 262 CLR 648, [38] – [40].  In Pike v Tighe, s 245 of the SPA was considered by the High Court of Australia which is on materially the same terms as s 73 of the PA.

[9] Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637, [7] citing, amongst others, House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334.

[10] Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637, [8] citing Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 and Hubertus Scheutzenverein Liverpool Rifle Club v Commonwealth of Australia (1994) 85 LGERA 37.  The principle of necessary implication was considered by the Queensland Court of Appeal in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] Qd R 13, [79] – [87].

[11] Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637, [8] citing Parramatta City Council v Shell Company Australia [1972] 2 NSWLR 632, 637.

[12] Exhibit 1.

[13] Exhibit 2.

[14] (2018) 262 CLR 648.

[15] Exhibit 1.

[16] T2-66, ll 35 – 40.

[17] Land Title Act 1994 (Qld) s 82(1).

[18] Land Title Act 1994 (Qld) s 83(1)(b). 

[19] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 14, pp 237-257.

[20] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 14, p 240.

[21] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 14, p 240.

[22] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 14, p 242.

[23] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, p 239.

[24] Court Document No. 33, Affidavit of D Sibenaler sworn 19 April 2022, pp 2-14.

[25] Court Document No. 33, Affidavit of D Sibenaler sworn 19 April 2022, pp 5, 7 (Definition of Permitted Purpose), 8 (Clause 2(a)).

[26] Exhibit 1.

[27] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, p 45.

[28] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, p 65.

[29] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 215 – 218.

[30] Court Document No. 31, Affidavit of L Karagianis sworn 4 April 2022, p 525.

[31] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 3, p 45.

[32] Exhibit 9, Applicant’s Final Submission, p 6.

[33] Land Sales Act 1984 (Qld) ss 10, 11.

[34] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 3, p 45.

[35] See for example, Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424, 457.

[36] Court Document No. 24, Further Amended Originating Application, [18] and Northpoint’s submission.

[37] Court Document No. 31, Affidavit of L Karagianis, sworn 4 April 2022, p 433 – 441.

[38] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 6, p 74 – 75.

[39] Court Document No. 24, Further Amended Originating Application, [20].

[40] Court Document No. 31, Affidavit of L Karagianis sworn 4 April 2022, p 441.

[41] Court Document No. 31, Affidavit of L Karagianis sworn 4 April 2022, pp 433 – 434.

[42] [2019] QPEC 48.

[43] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 6, pp 74 – 75.

[44] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 6, p 75, [2].

[45] Court Document No. 31, Affidavit of L Karagianis sworn 4 April 2022, p 546.

[46] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 8, p 87.

[47] Court Document No. 30, Affidavit of L Karagianis, sworn 4 April 2022, [36].

[48] T1-80, l 30.

[49] Court Document No. 31, Affidavit of L Karagianis sworn 4 April 2022, pp 525 – 537.

[50] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 66, 70 (Clause 2.1).

[51] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 66, 73.

[52] Mr Karagianis was mistaken in this respect.  This requirement is not contained in the 14 November 2018 offer.  It is a requirement of the 24 June 2021 Condition 23 letter (see Court Document No. 13, Affidavit of D. Sibenaler sworn 5 July 2021, p 223, Clause 3(n)) and 24 June 2021 Condition 21 letter (see Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, p 244, Clause 3(n)).

[53] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, Document 14, p 215.

[54] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 219, 221 (Definition of “Permitted Purpose” and 222, Clause 2(a)).

[55] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, pp 219, 229 – 236.

[56] Court Document No. 13, Affidavit of D Sibenaler sworn 5 July 2021, p 217.

[57] T1-21, ll 30 – 31.

[58] T2-82, ll 22 – 24.

[59] T1-36, ll 25 – 30; T1-38, ll 5 – 10.

[60] T2-26, l 33.

[61] T2-26, ll 41 – 42.

[62] (2018) 262 CLR 648, 659 – 660.

[63] Court Document No. 41, Affidavit of D Sibenaler sworn 11 May 2022.

[64] Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPELR 221, [72].

[65] Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 339 – 341.

[66] Mudie v Gainriver (2002) 2 Qd R 53, 58 – 59.

[67] Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 339 – 341.

[68] Exhibit 3, CEO Certificate, pp 565 – 575.

[69] R v Commonwealth Court of Conciliation and Arbitration; ex-parte Ozone Theatres (Australia) Ltd (1949) 78 CLR 389, 400.

[70] Exhibit 3, CEO Certificate, p 287.

[71] Exhibit 3, CEO Certificate, p 307.

Close

Editorial Notes

  • Published Case Name:

    Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 & Anor

  • Shortened Case Name:

    Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962

  • MNC:

    [2022] QPEC 26

  • Court:

    QPEC

  • Judge(s):

    McDonnell DCJ

  • Date:

    11 Aug 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aqua Blue Noosa Pty Ltd v Noosa Shire Council (2005) QPELR 318
2 citations
Jump To
Cite 1 - (2005) QPELR 318
Cite 2 - (2005) QPELR 318
Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424
2 citations
Jump To
Cite 1 - (1954) 92 CLR 424
Cite 2 - (1954) 92 CLR 424
Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637
4 citations
Jump To
Cite 1 - [2007] QPELR 637
Cite 2 - [2007] QPELR 637
Cite 3 - [2007] QPELR 637
Cite 4 - [2007] QPELR 637
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPELR 221
2 citations
Jump To
Cite 1 - [2018] QPELR 221
Cite 2 - [2018] QPELR 221
Dickson Properties Pty Ltd v Brisbane City Council [2019] QPEC 48
2 citations
Jump To
Cite 1 - [2019] QPEC 48
Cite 2 - [2019] QPEC 48
Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] Qd R 13
2 citations
Jump To
Cite 1 - [2017] Qd R 13
Cite 2 - [2017] Qd R 13
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
2 citations
Jump To
Cite 1 - (2000) 106 LGERA 440
Cite 2 - (2000) 106 LGERA 440
Hubertus Scheutzenverein Liverpool Rifle Club v Commonwealth of Australia (1994) 85 LGERA 37
2 citations
Jump To
Cite 1 - (1994) 85 LGERA 37
Cite 2 - (1994) 85 LGERA 37
Mudie v Gainriver P/L[2002] 2 Qd R 53; [2001] QCA 382
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 53
Cite 2 - [2002] 2 Qd R 53
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
2 citations
Jump To
Cite 1 - (1972) 2 NSWLR 632
Cite 2 - (1972) 2 NSWLR 632
Pike v Tighe (2018) 262 CLR 648
4 citations
Jump To
Cite 1 - (2018) 262 CLR 648
Cite 2 - (2018) 262 CLR 648
Cite 3 - (2018) 262 CLR 648
Cite 4 - (2018) 262 CLR 648
R v Commonwealth Court of Conciliation and Arbitration ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
2 citations
Jump To
Cite 1 - (1949) 78 CLR 389
Cite 2 - (1949) 78 CLR 389
Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334
2 citations
Jump To
Cite 1 - [2007] QPELR 334
Cite 2 - [2007] QPELR 334
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
4 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335
Cite 3 - (1987) 10 NSW LR 335
Cite 4 - (1987) 10 NSW LR 335

Cases Citing

Case NameFull CitationFrequency
Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 (No 2) [2024] QPEC 202 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.