Pike v Tighe

Case [2018] HCA 9

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, GORDON AND EDELMAN JJ

JOSHUA JAMES PIKE & ANOR  APPELLANTS

AND

KYM LOUISE TIGHE & ORS   RESPONDENTS

Pike v Tighe

[2018] HCA 9

14 March 2018

B33/2017

ORDER

1.Appeal allowed.

2.Set aside orders 2 to 5 of the orders made by the Court of Appeal of the Supreme Court of Queensland on 23 December 2016 and, in their place, order that:

(a)the appeal be dismissed; and

(b)the matter be remitted to the primary judge for the making of final orders.

3.The first respondents pay the appellants' costs of this proceeding and the proceedings in the courts below.

On appeal from the Supreme Court of Queensland

Representation

D R Gore QC with J G Lyons for the appellants (instructed by Wilson/ryan/grose Lawyers)

D A Savage QC with A L Raeburn for the first respondents (instructed by Connolly Suthers Lawyers)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pike v Tighe

Town planning – Conditions on development – Where development approval permitted reconfiguration of lot into two lots – Where development approval subject to conditions – Where conditions included requirement to provide easement to allow access, on-site manoeuvring and connection of services and utilities – Where easement executed by registered proprietors of original lot did not comply with condition – Where Council approved survey plan to give effect to reconfiguration – Where titles for new lots created – Whether successor in title obliged to provide easement complying with condition.

Town planning – Enforcement orders – Where Planning and Environment Court of Queensland may make enforcement order if satisfied that development offence "has been committed" – Where development offence to "contravene" development approval – Whether successor in title committed development offence by failing to provide easement complying with condition.

Words and phrases – "binds the owner, the owner's successors in title and any occupier of the land", "contravene", "development", "development approval", "development offence", "enforcement order", "fail to comply with", "land", "lot", "the land the subject of the application to which the approval relates".

Acts Interpretation Act 1954 (Q), s 36(1), Sched 1.
Sustainable Planning Act 2009 (Q), ss 7, 10(1), 244(a), 245, 580, 601(1)(a), 604(1)(a), 605(1)(e), Sched 3.

  1. KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ. The first question in this appeal is whether s 245 of the Sustainable Planning Act 2009 (Q) ("the Act") obliges a successor in title to ownership of a parcel of land created by the reconfiguration of a larger parcel to comply with a condition of the approval for the reconfiguration that should have been, but was not, satisfied by the original owner prior to completion of the reconfiguration. If that question is answered in the affirmative, the further question arises as to whether the Planning and Environment Court of Queensland may make an "enforcement order" under ss 601, 604 and 605 of the…

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Pike v Tighe [2018] HCA 9
Case
[2018] HCA 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute over an easement required as a condition of development approval. The original proprietors of a parcel of land obtained approval from the Townsville City Council to reconfigure the lot into two. A condition of this approval stipulated the provision of an easement to allow access, on-site manoeuvring, and connection of services and utilities for the benefited lot over the burdened lot. The subsequent registered proprietors of the two new lots, the appellants (Pikes) and the respondents (Tighes), were involved in litigation regarding the compliance of the executed easement with this condition.

The central legal issues before the High Court were whether a successor in title to the original registered proprietors was obliged to provide an easement that complied with the condition of the development approval, and whether such a successor in title had committed a development offence by failing to provide a compliant easement. The Court was required to interpret provisions of the Integrated Planning Act 1997 (Q) and its successor legislation concerning the attachment of development approvals to land and the binding nature of such approvals on successors in title, as well as the definition and commission of a development offence.

The High Court reasoned that a development approval, including its conditions, attaches to the land and binds successors in title, irrespective of subsequent development approvals. The Court held that the executed easement did not comply with the specific requirements of condition 2, particularly concerning on-site manoeuvring and connection of services and utilities. The Court clarified that a development offence is not committed merely by purchasing land that does not comply with a condition, but rather arises when a reasonable time to comply has passed or there is a refusal to comply.

Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal of the Supreme Court of Queensland. The matter was remitted to the primary judge for the making of final orders, and the respondents were ordered to pay the appellants' costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 2 to 5 of the orders made by the Court of Appeal of the Supreme Court of Queensland on 23 December 2016 and, in their place, order that:

(a) the appeal be dismissed; and

(b) the matter be remitted to the primary judge for the making of final orders.

3. The first respondents pay the appellants' costs of this proceeding and the proceedings in the courts below.

Background

Background to the litigation

Both questions should be answered in the affirmative for the reasons that follow.Facts On 29 May 2009, the Townsville City Council ("the Council") issued a decision notice under the Integrated Planning Act 1997 (Q) ("the IPA") (the predecessor to the Act), approving an application by the then registered proprietors of land for development by way of the reconfiguration of the existing lot into two lots. The approval was subject to certain conditions. Relevantly, condition 2 was in the following terms[1]:"Access and Utilities EasementAn easement(s) to allow pedestrian and vehicle access, on-site maneuvering [sic] and connection of services and utilities for benefited lot (2) over burdened 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."[1]Tighe v Pike (2016) 225 LGERA 121 at 123 [1]. The schedule to the development approval provided that, "[u]nless explicitly stated elsewhere in this permit", all conditions had to be satisfied prior to the Council signing the survey plan[2].[2]Tighe v Pike (2016) 225 LGERA 121 at 123 [2]. In November 2009, the registered proprietors of the original lot executed an easement in terms which did not reflect condition 2. In particular, no mention was made in the executed easement of on‑site manoeuvring and connection of services and utilities. Despite this omission, the Council approved the relevant survey plan to give effect to the reconfiguration[3]. [3]Tighe v Pike (2016) 225 LGERA 121 at 123 [3]. In November 2010, the registered proprietors of the original lot executed a second easement that was relevantly identical to the first easement. Subsequently, the titles for lots 1 and 2 were created and the November 2010 easement was registered in relation to each title. The title for lot 1 was endorsed to describe the registered easement as burdening the land in that lot to the benefit of lot 2, and the title for lot 2 was endorsed to describe the easement benefitting the land in that lot[4].[4]Tighe v Pike (2016) 225 LGERA 121 at 123‑124 [3]. On 18 January 2011, the first respondents, the Tighes, were registered as the owners of lot 1. On 11 January 2012, the appellants, the Pikes, were registered as the owners of lot 2[5].[5]Tighe v Pike (2016) 225 LGERA 121 at 124 [3].The Act Section 245 of the Act, which substantially reproduced s 3.5.28 of the IPA, provides:"Development approval attaches to land(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." The term "development" is defined in s 7 of the Act to include reconfiguring a lot. Section 10(1) of the Act defines "reconfiguring a lot" as including "creating lots by subdividing another lot". Section 10(1) also provides that the term "lot" in the Act means a "lot" under the Land Title Act 1994 (Q).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ
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.Conclusion and orders The appeal to this Court should be allowed. Orders 2 to 5 of the Court of Appeal of the Supreme Court of Queensland made on 23 December 2016 should be set aside. In their place, the appeal to the Court of Appeal should be dismissed, and the matter should be remitted to the primary judge for the making of final orders. The first respondents must pay the appellants' costs of this proceeding and the proceedings in the courts below.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ

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