Development Approval – enforcement orders

23 March 2018

In Pike v Tighe [2018] HCA 9 (14 March 2018) the High Court held that the Development Approval condition attaches to the land and binds the owner, the owner’s successors in title and any occupier of the land.

The matter concerned the subdivision of land in Townsville, which when completed, comprised of lots 1 and 2. The survey plan and the easement were registered on 8 December 2010.

The registered titles issued for each lot with the easement were endorsed as “access” and did not describe any other purposes.

The Tighes purchased lot 1 from the developers on 11 January 2011. The Pikes purchased lot 2 from the developers on 11 January 2012.

In or about 18 June 2012, Mr Pike advised Mr Tighe that he wanted to build a road within the Easement area.

A dispute followed and the requirement in the Development Approval came to light.

Condition 2 of the Development Permit required “An Easement(s) to allow a pedestrian and vehicle access, on-site manoeuvring and connection of services and utilities for benefited lot (2) overburdened lot (1) must be provided. The easement(s) must be registered in accordance with the Land Title Act 1994, in conjunction with the Survey Plan.”

By letter dated 31 October 2014, Mr Pike’s solicitor wrote to the Tighes’ solicitor and said that the conditions of development run with the land and that the Tighes are required to provide and register a services easement in favour of the Pikes.

By letter in return, the Tighes’ solicitor wrote “Your clients contention that the conditions of development ‘run with the land’ may be based on provisions in the Sustainable Planning Act 2009. It seems to us that the provisions of the SPA compete with the doctrine of indefeasibility of title protected by the Land Titles Act 1994. … It is our client’s position that the planning legislation will not, in the present circumstances, be interpreted as overriding rights protected by the provisions of the Land Titles Act.”

They were wrong. At first instance in the Planning & Environment Court of Queensland, Durward SC DCJ. found against the Tighes and ordered that they had committed a development offence by not complying with the condition of the development approval with respect to the easement on the subdivided lot 2.

On appeal in the QCA, the orders made in the Planning & Environment Court were set aside and the originating application dismissed. The main reason for this was the Court of Appeal’s conclusion that section 245 of the SPA did not apply in the present case, because the Tighes were not parties to the reconfiguration of the original lot approved by the development approval and, also because the obligation in condition 2 only had to be complied with at the time of the registration of the survey plan.

The High Court set aside the orders made by the Court of Appeal of the Supreme Court of Queensland, found in favour of the Pikes, and remitted the matter to the primary judge (Durward SC DCJ) for the making of final orders. The Court held that the terms of condition 2 of the approval of the reconfiguration expressly applied to the land in each of the new lots. In the reasons for the decision Kiefel CJ, Bell, Keane, Gordan and Edelman JJ observed: “Contrary to the Tighes’ submission, the effect of the Act is not that a person is guilty of an offence at the moment he or she purchases land which does not comply with a condition. Rather, an offence will be committed when a reasonable time to comply with the condition has elapsed or if there is a peremptory refusal to comply with the condition.”

The order made by the High Court included that the Tighes pay the Pikes costs of the High Court proceeding and the proceedings in the courts below. It is in this context that we note the contract price for the Tighes’ lot 1 was $425,000.00.

Our review of the disclosed correspondence between the parties indicates to us that a resolution was close in December 2012, but for the Tighes’ proposal that the easement be reduced to 5 metres wide.Mr Tighe’s evidence in the P&E Court was to the effect that he found a survey peg on Lot 1 in February 2012 when mowing the lawn and it was then that he learnt that the width of the easement was 10 metres. We are not implying any criticism. It is the discretion of the Court to make enforcement orders.

In short, the High Court held that Tighes were obliged to provide the easement rights that the development approval required. If the obliged party fails to provide those rights, it creates a development offence against the Planning Act 2016, which may lead to an enforcement order under section 181 of the Act.