The High Court confirms the continuity of development conditions
Since the enactment of the Local Government (Planning and Environment) Act 1990 (repealed), which provided for conditions of development approvals to attach to land and bind successors in title, the commonly understood position in Queensland was as described by Atkinson J in Alberton Investments Pty Ltd v Brisbane City Council; sub nom Hymix Industries Pty Ltd v Alberton Investments Pty Ltd  QPELR 116 at :
The keystone of the law and practice of town planning is that when consent is given to use land for a certain development, whether by a local government authority or by the Planning and Environment Court, the consent attaches to the land and not to the particular operator or developer. Conditions run with the land, as does the approval to which they are attached.
Although the Sustainable Planning Act 2009 (repealed) (SPA) made similar provision for development conditions, the Court of Appeal cast some doubt over this position in 2016. The High Court of Australia in Pike v Tighe (2018) 229 LGERA 303, on appeal from the Court of Appeal decision, recently confirmed the accepted position.
Section 245 of the SPA
Section 245(1) of the SPA provided that a development approval attached to the land the subject of the application to which the approval related and bound the owner, the owner’s successors in title and any occupier of the land.
Section 245(2) provided that, to remove any doubt, section 245(1) applied even if later development, including reconfiguring a lot, was approved for the land or the land was reconfigured.
In May 2009, the Townsville City Council issued a decision notice under the Integrated Planning Act 1997 (repealed) approving an application by the then-registered owners of land for the reconfiguration of one lot into two lots. The development approval was subject to conditions, including a condition requiring the provision of an access and utilities easement over lot 1 for the benefit of lot 2. All conditions had to be satisfied prior to the Council signing the survey plan.
On commencement of the SPA on 18 December 2009, the approval was continued as an approval under the SPA.
In November 2010, the registered proprietors of the original lot granted themselves an easement which was for access purposes, but not for utilities. The Council approved the survey plan reconfiguring the lot into two titles. Lot 1 and Lot 2 were created and the easement was registered in relation to each title.
In January 2011, the Tighes were registered as the owners of Lot 1. In January 2012, the Pikes were registered as the owners of Lot 2. The Pikes claimed that they were unable to construct and provide utility services to a dwelling house on their land, which had been the purpose for which they purchased Lot 2. The Tighes were unwilling to provide an easement for anything more than access, which was the stated purpose of the registered easement.
Planning and Environment Court
On 13 February 2015, the Pikes filed an application in the Planning and Environment Court seeking a declaration that the condition in the development approval requiring the provision on the easement had been contravened and an enforcement order directing the Tighes to comply with that condition. The Pikes contended that the conditions of the development approval ran with the land under s 245 of SPA, and so bound the Tighes, even though the reconfiguration of the original lot had been completed and an easement registered before the Tighes had acquired Lot 1.
The Tighes argued that their title to Lot 1 was free of any obligation under s 245 of the SPA, and that if a development offence had been committed by reason of the failure on the part of the original registered proprietors of the original parcel of land to comply with the condition of the development approval requiring the provision of the easement, that failure had nothing to do with them.
The Planning and Environment Court granted the Pikes’ application, and found that s 245 of the SPA had the effect that the conditions stipulated in the development approval ran with the land and that the Tighes had committed a development offence that warranted the making of an enforcement order.
Court of Appeal
The Court of Appeal allowed the Tighes’ appeal from the Planning and Environment Court, finding that:
- because the Tighes were not parties to the reconfiguration of the original parcel of land, the conditions of the development approval imposed no obligation on them;
- the obligation to provide an easement was not ‘a continuing and freestanding obligation’, but an obligation to register the easement on the reconfiguration of the land into lots 1 and 2;
- section 245(1) of the SPA did not impose obligations in relation to the use of the land after the development approval had been ‘spent’ by the completion of the development that it permitted; and
- the reference to ‘the land’ in section 245 of the SPA is a reference to the original lot only. The conditions of the development approval for the reconfiguration of the original lot only bound the owner of, and any successors in title to, that original lot, and not lots created out of the original lot.
Decision of the High Court
The High Court upheld the Pikes’ appeal and overturned the decision of the Court of Appeal, finding that:
- section 245(1) of the SPA is not expressed to operate in relation to the carrying out of an approved development, and expressly gives the conditions of a development approval the character of a personal obligation 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’, and 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 Court of Appeal erred in regarding section 245(1) of the SPA as applicable only to the successors in title of the unsubdivided original lot;
- to read section 245(1) in that way is to deprive the provision of any operation in respect of development by way of reconfiguration of a lot once the lots so produced have been sold by the owner of the original lot, which would be treating development by way of reconfiguration differently from other forms of development without any evident reason for doing so;
- section 245(2) expressly contemplates that section 245(1) may operate in respect of land comprising any lot derived from the subdivision of a larger lot; and
- given that a development approval is generally regarded as a consent to the world at large in relation to the land which is its subject, section 245 serves the readily intelligible purpose of ensuring that the terms of any development approval regulating the use and occupation of land may be enforced against successors in title to the land.
The Planning Act 2016 – where to from here?
The SPA was repealed and replaced by the Planning Act 2016, which commenced operation on 3 July 2017. Section 73 of the Planning Act is in similar terms to section 245 of the SPA. Section 73 provides that, while a development approval is in effect, the approval attaches to the premises, even if a later development is approved for the premises or the premises are reconfigured, and binds the owner, the owner’s successors in title and any occupier of the premises.
The Explanatory Notes to the Planning Bill 2015 indicate that the change in the language from the ‘land’ in section 245 of the SPA to ‘premises’ in section 73 of the Planning Act is not intended to infer any change in the intent or scope of section 73, but merely reflects a standardisation in the use of the term ‘premises’ in the Planning Act. Time will tell whether the courts interpret section 73 in the same way as section 245 of the SPA was interpreted.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 1 March 2019
Author: Special Counsel Glenn Wilshier