SUPREME COURT OF QUEENSLAND
CITATION:
Tighe & Anor v Pike & Ors [2016] QCA 353
PARTIES:
KYM LOUISE TIGHE
(applicant)
MICHAEL JAMES TIGHE
(applicant)
v
JOSHUA JAMES PIKE
(first respondent)
NATALIE PATRICIA PIKE
(first respondent)
TOWNSVILLE CITY COUNCIL
(second respondent)FILE NO/S:
Appeal No 3330 of 2016
P & E No 46 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Sustainable Planning Act
ORIGINATING COURT:
Planning and Environment Court at Townsville – [2016] QPEC 30
DELIVERED ON:
23 December 2016
DELIVERED AT:
Brisbane
HEARING DATE:
29 July 2016
JUDGES:
Fraser and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The orders made in the Planning and Environment Court are set aside.
4. The originating application in that court is dismissed.
5. The first respondents are to pay the applicants’ costs of the application for leave to appeal and the appeal and the applicants’ costs in the Planning and Environment Court.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – CONDITIONS – where the second respondent issued a decision notice under the Integrated Planning Act 1997 (Qld) approving an application for reconfiguration of the original lot into two lots – where condition 2 of the approval conditions required creation of an easement for access, on-site manoeuvring and connection of services for the benefited lot, lot 2, over the burdened lot, lot 1 – where the registered proprietors of the original lot did not include grant of an easement for “on-site manoeuvring” or “connection of services and utilities” – where the second respondent nevertheless endorsed the survey plan – where the titles for lot 1 and lot 2 were created upon registration of the survey plan with this easement registered on the titles – where the applicants subsequently became the registered proprietors of lot 1 and the first respondents subsequently became the registered proprietors of lot 2 – where the first respondents applied in the Planning and Environment Court for a declaration that condition 2 of the development permit had been contravened and an enforcement order directing the applicants to comply with condition 2 – where the Planning and Environment Court granted the application – where it was submitted by the applicant that the primary judge erred in finding the Court had jurisdiction to make the enforcement order by reason of the commission of a development offence where there was no such offence – whether s 245, in combination with s 580(1), of the Sustainable Planning Act 2009 (Qld) operated to make condition 2 continue to have effect by attaching condition 2 to lot 1 after the reconfiguration of the lot had been completed and the approval had been spent – whether condition 2 imposed any obligation upon the applicants even though they were not parties to the reconfiguration of the original lot…
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- AGLC
- Tighe v Pike [2016] QCA 353
- Case
- [2016] QCA 353
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether section 245, in combination with section 580(1) of the Sustainable Planning Act 2009 (Qld), continued to enforce condition 2 of the development permit after the reconfiguration and approval had been completed. It was questioned whether condition 2 imposed any obligation on the applicants who were not parties to the reconfiguration approval and whether their failure to comply constituted a development offence. Additionally, the court had to determine if the indefeasibility of title was applicable, considering the omission of the easement in the original grant.
The court held that section 245, in combination with section 580(1), did not continue to enforce condition 2 after the reconfiguration and approval had been completed, and therefore, the condition did not impose any obligation on the applicants. Furthermore, the court found that no development offence existed that could support the making of an enforcement order. The court also clarified that a development approval which 'runs with the land' does not constitute an exception to indefeasibility of title. Consequently, the application for leave to appeal was granted, the appeal was allowed, and the orders made by the Planning and Environment Court were set aside. The originating application in that court was dismissed, and the first respondents were ordered to pay the applicants’ costs.
The final orders of the court were to grant the application for leave to appeal, allow the appeal, set aside the orders made in the Planning and Environment Court, dismiss the originating application in that court, and order the first respondents to pay the applicants’ costs of the application for leave to appeal, the appeal, and the applicants’ costs in the Planning and Environment Court.
Orders
Orders of the court
1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The orders made in the Planning and Environment Court are set aside.
4. The originating application in that court is dismissed.
5. The first respondents are to pay the applicants’ costs of the application for leave to appeal and the appeal and the applicants’ costs in the Planning and Environment Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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