Tighe v Pike

The case of Tighe v Pike involved a dispute concerning the approval of a reconfiguration of a lot into two lots, with specific conditions attached to the development permit. The second respondent approved the reconfiguration under the Integrated Planning Act 1997 (Qld), imposing a condition that required the creation of an easement for access, on-site manoeuvring, and connection of services for the benefited lot. However, the registered proprietors of the original lot did not include the easement in their grant, despite the second respondent endorsing the survey plan. The titles for the new lots were created upon registration of the survey plan with the easement registered on the titles. The subsequent registered proprietors of the lots, the first respondents, applied to the Planning and Environment Court for a declaration that the condition had been contravened and an enforcement order. The Court granted the application, leading to an appeal against the decision.

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.