Pike & Anor v Tighe & Ors

[2016] QPEC 30

PLANNING & ENVIRONMENT COURT OF

QUEENSLAND

CITATION: Pike & Anor v Tighe & Ors [2016] QPEC 30

PARTIES: JOSHUA JAMES PIKE and NATALIE PATRICIA PIKE

(Applicants)

-and-

KYM LOUISE TIGHE and MICHAEL JAMES TIGHE

(First Respondents)

-and-

TOWNSVILLE CITY COUNCIL

(Second Respondent)

FILE NO: Townsville 46/2015

DIVISION: Environment and Planning

PROCEEDING: Originating Application

ORIGINATING

COURT: Planning & Environment Court at Townsville

DELIVERED ON: 9 March, 2016

DELIVERED AT: Townsville

HEARING DATE: 20 November 2015

JUDGE: Durward SC DCJ

ORDERS:

1 Application granted

2 The first respondents have committed a development offence by not complying with the condition of the development approval with respect to the easement on the subdivided lot 2.

3 The parties are to provide a draft order giving effect to the

judgment.

4 I will hear the parties further on costs. The parties are to file

and serve written submissions on costs within 21 days.

CATCHWORDS: ENVIRONMENT & PLANNING – RECONFIGURATION OF A

LOT – SUBDIVISION – DEVELOPMENT APPROVAL

CONDITION - on-sale by developer of two lots to bona fide

purchasers for valuable consideration – where one of two lots

landlocked - where easement made for access to that benefited lot –

where development approval condition required an easement for

access, on-site manoeuvring and connection of services and utilities

to be provided – where owner of burdened lot purchased without

knowledge of the condition – where Local Authority approved the

development with the easement for access only – where owner of

benefited lot unable to construct a residence.

ENVIRONMENT & PLANNING – DEVELOPMENT APPROVAL CONDITION – PARTICULAR BENEFIT

INTENDED IN EASEMENT – whether a development offence has

been committed – whether condition that an easement granting access

and other benefits in respect of a subdivision lot be provided is

enforceable.

ENVIRONMENT & PLANNING – DEVELOPMENT

APPROVAL CONDITION – FUTURE BUYERS - where

subdivision into two lots completed and approved by Local Authority

– where both lots on-sold by developer - whether a development

approval condition runs with the land so as to bind future buyers in

context of reconfiguration of a lot – whether principle distinguishable

from the context of a minor change of use condition.

LAND LAW – INDEFEASIBILITY OF TITLE - SUBDIVISION

– EASEMENT – where registered titles issued for each lot with

easement for access only endorsed - where two lots in subdivision

on-sold by developer – where ‘purpose’ stated in easement document

is different and narrower than condition in development approval –

whether ‘purpose’ stated in registered easement document amounts

to an “omission from the document” or is a “misdescription in the

document” in terms of s185 (3) of Land Titles Act 1994.

PROPERTY – SALE & PURCHASE - OBLIGATION OF A

BUYER TO INQUIRE - whether a buyer has an obligation to go

behind the registered title to ascertain or confirm rights, interest and

title – principles relating to sale and purchase of land and prudent

enquiry.

LAND LAW – EASEMENTS – NATURE OF - where

developer/seller was both grantor and grantee…