In an interesting development (pun intended!) the High Court has found that the conditions of a development approval run with a reconfigured lot pursuant to section 245 of the Sustainable Planning Act 2009 (Act) such that subsequent owners of a reconfigured lot in a development are required to comply with the conditions of the development approval over the original parcel of land.
In this case, Townsville City Council approved an application by the then owners of land to reconfigure a parcel of land into two lots. Development approval was granted subject to a condition that an easement be registered over lot 1 in favour of lot 2 to allow access, maneuvering and connection of services and utilities. The easement registered by the then owners of the land did not comply with the condition. Notwithstanding, Council approved the survey plan to give effect to the reconfiguration and the titles to the two new lots were created.
Lots 1 and 2 were subsequently sold. The new owners of lot 2 (the Pikes) entered into lengthy correspondence with the owners of lot 1 (the Tighes) in which the Pikes sought compliance with the easement condition. Having no success, the owners of lot 2 lodged an application in the Planning and Environment Court, contending that the conditions of the development approval ran with lot 1 and so bound the new owners of lot 1 to provide the easement in the terms set out in the development approval. The Planning and Environment Court found that pursuant to section 245 of the Act, the conditions of the development approval ran with lot 1.
The owners of lot 1 then lodged an appeal with the Queensland Court of Appeal which overturned the Planning and Environment Court’s decision finding that section 245 only binds the person permitted by the development approval to carry out the subdivision of the original lot.
The High Court unanimously disagreed with the Court of Appeal, holding that the owner of lot 1 was required to comply with the easement condition and they said:
- The Court of Appeal erred in regarding section 245(1)(b) of the Act as being applicable only to successors in title of the original un-subdivided lot.
- No other provision of the Act provides that the conditions of a development approval terminate once development authorised by that approval has been carried out.
- The terms of the easement condition in the development approval expressly applied to the land in each of the new lots. Specifically “no violence is done to the language of condition 2 by applying it to the land owned by the current proprietors of lot 1 and lot 2. Indeed, that is the natural and ordinary reading of the language in which condition 2 is expressed.”
- Section 245 and the easement condition together obliged the owners of lot 1 to provide the easement rights contemplated by the development approval. The owners of lot 1 failed to provide the easement and so contravened section 580 of the Act.
- 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 development condition. Rather, an offence will be committed where a reasonable time to comply with the condition has elapsed or where there is a refusal to comply with the condition.
The High Court awarded costs to the owners of lot 2 for the High Court proceedings and the proceedings in the Court of Appeal and Planning and Environment Court.
The decision in this case has brought clarity to the application of section 245 of the Act and serves as a cautionary tale for purchasers to ensure they carry out appropriate due diligence in relation to the satisfaction by the developer (or subsequent owner) of any relevant conditions of the development approval over the land from which the lot was derived.
Harsh? Maybe, but the High Court says not where the new owner has had the opportunity to comply with the relevant condition and refuses. It is failure to comply and not non compliance which gives rise to a development offence which may lead to the making of an enforcement order under section 604(1)(a) of the Sustainable Planning Act 2009.
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