Court of Appeal

Tighe & Anor v Pike & Ors [2016] QCA 353 (16/3330) Fraser and Morrison and Philippides JJA 23 December 2016

Full-text: QCA16-353.pdf

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 approved by the development approval – whether the applicants committed a development offence by failing to comply with condition 2 – whether a development offence existed that could support the making of an enforcement order

REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – OMITTED OR MISDESCRIBED EASEMENT – where the applicants contended that the primary judge erred in deciding the application on the basis that the first respondents had no indefeasible title to the land sufficient to deny the applicants’ claim where it was further submitted that the primary judge erred in finding that a development approval which ‘runs with the land’ is an exception to indefeasibility of title – whether any question of indefeasibility arose in this case

Summary Notes

Application for Leave Sustainable Planning Act – 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 approved by the development approval – whether the applicants committed a development offence by failing to comply with condition 2 – whether a development offence existed that could support the making of an enforcement order – where any application of s 245 of the Sustainable Planning Act to attach the development approval to lot 1 and make it, including its conditions, binding upon the applicants did not change that meaning of condition 2 – where since the applicants were not parties to the reconfiguration of the original lot approved by the development approval, condition 2 did not impose any obligation upon the applicants – where it follows that they could not have committed an offence against s 580(1) of the Sustainable Planning Act by not providing the registered easement described in condition 2. Application granted. Appeal allowed. Orders made in the Planning and Environment Court set aside. Originating application in that court is dismissed. 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.