Pike v Tighe

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether a local council can enforce planning conditions that were agreed by a previous land owner when the land was subdivided. Section 245 of the Sustainable Planning Act 2009 (Qld) provides that

(1) A development approval (a) attaches to the land the subject of the application to which the approval relates; and (b) binds the owner, the owner’s successors in title and any occupier of the land.

(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured

In 2009, the Townsville City Council approved a subdivision on the condition that the then-owner register an easement to allow pedestrian, vehicle and utilities access to the back-lot, which the owner never did. That decision was made under the Integrated Planning Act 1997 (Qld), s 3.5.28 of which is substantially reproduced in s 245. When the subdivision was registered and both lots later sold, the Queensland Planning and Environment Court granted the new back-lot owner an ‘enforcement order’ to prevent the new front-lot owner from committing a ‘development offence’ by not registering the utilities easement. The QCA unanimously quashed the order on the basis that the Council’s subdivision conditions did not attach to the land following the subdivision.

The High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) unanimously allowed the appeal, holding that s 245 obliges a successor to title after a reconfiguartion to comply with the condition of the approval of that recondition even if it was not satisfied by the original owner, and that QPEC may make an enforcement order requiring the successor to fulfil that condition.

After reviewing the facts (at [3]ff), the statutory provisions (at [8]ff), and the decisions of the lower courts (at [15]ff), and the submissions of the parties (at [28]ff), the Court ruled that the appellants’ second submission — that even if the respondents were not a party to the development approval, that does not preclude an enforcement order from being made against them —

must be accepted (at [33]). The QCA erred in its reading of s 245 (at [35]):

Section 245(1) is not expressed to operate in relation to the carrying out of an approved development; it expressly gives the conditions of a development approval the character of personal obligations capable of enduring in their effect beyond the completion of the development which the development approval authorised. These obligations expressly attach to “the land the subject of the application to which the approval relates”. The natural and ordinary meaning of this language is that it attaches to all the land the subject of the application for development approval. The owners of the land in lots 1 and 2 are the successors in title to the owners of the land in the original lot.

The QCA failed to observe the distinction that s 245 draws between the ‘land’ subject to development and the ‘lots’ into which it may be reconfigured: the land to which approval ‘attaches’ is all the land that is the subject of the application, and ‘land’ is more broadly defined than ‘lot’ (at [36], [37]). In holding that s 245(1)(b) applied only to successors in title of the unsubdivided original lot, the QCA glossed the text in a way that deprived s 245 of any operation in reconfiguration developments where the resulting lots have been sold by the original owner: ‘Under the Act, development includes reconfiguration whereby new lots are derived from an original lot relating to the same land. To read s 245 as confined in this way is to treat development by way of reconfiguration differently from other forms of development without any evident reason for doing so.’ (at [38]). Nor is there any reason to minimise the effect of development conditions ‘imposed in the public interest’ by an interpretation that goes against the natural and ordinary meaning of s 245. As applied to the reconfiguration conditions in this matter, the Court noted that they expressly applied to the land ‘in each of the new lots. No violence is done to the language of condition 2 by applying it to the land owned by the current proprietors of lot 1 and lot 2. Indeed, that is the natural and ordinary reading of the language in which condition 2 is expressed.’ (at [41], emphasis in original).

Turning to QPEC’s powers to make an enforcement order, the Court noted that the respondents contravened s 580 of the Act by failing to provide the easement rights required by condition 2 (at [43]). For the purposes of s 580, ‘contravening’ includes a failure to comply with development conditions, which in turn gives rise to a ‘development offence’ that may lead to QPEC making an enforcement order under s 604 (at [44]). Here, the appellants took approximately three years to file an application with QPEC, but during this time they had sought to convince the respondents to comply with condition 2, which the respondents refused to do: that refusal constituted the ‘contravention’ of the approval and the development offence, giving rise to QPEC’s power to make an enforcement order (at [45]).

The Court ordered that the appeal be allowed, the main orders of the QCA be set aside, and remitted the matter to the primary judge for making final orders (at [48]).

High Court Judgment [2018] HCA 9 14 March 2018
Result Appeal allowed
High Court Documents Pike v Tighe
Full Court Hearing [2017] HCATrans 252 8 December 2017
Special Leave Hearing [2017] HCATrans 127 16 June 2017
Appeal from QCA [2016] QCA 353 23 December 2016
Trial Judgment, QPEC
[2016] QPEC 30 9 March 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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