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High Court Resolves Uncertainty Regarding Enforceability of Development Conditions Against Successors in Title

By William McKenzie

23rd May 2018

Our firm was retained by the successful party in a recent High Court Appeal in Canberra. The High Court’s decision settled far more than just a dispute between neighbours, providing some welcome certainty to what has previously been an unsettled area of the law in Queensland. While the decision will be of academic interest to most planning lawyers, it also has important practical consequences for property developers, local governments and purchasers of property.

Factual Background

Pike v Tighe [2018] HCA 9 effectively concerned a dispute between neighbours (the Pikes and Tighes) about an entitlement to an easement; however, the genesis of the facts giving rise to the dispute involved neither party.

The facts are best outlined in the High Court’s judgment summary:[1]

The Townsville City Council (“the Council”) approved an application by the then registered proprietors of land for development by way of reconfiguration of an existing lot into two lots. The approval was subject to certain conditions, including a condition (“condition 2”) that required that an easement be provided over lot 1 for the benefit of lot 2. The schedule to the approval provided that, unless explicitly stated elsewhere in the approval, all conditions had to be satisfied prior to the Council signing the survey plan. The registered proprietors of the original lot executed an easement in terms which did not reflect condition 2. Despite this omission, the Council approved the relevant survey plan to give effect to the reconfiguration. The registered proprietors later executed a second easement that was relevantly identical to the first easement. Subsequently, the titles for lots 1 and 2 were created and the second easement was registered in relation to each title. The first respondents, the Tighes, were later registered as the owners of lot 1 and the appellants, the Pikes, were registered as the owners of lot 2.

Litigation History

The Pikes commenced proceedings in the Planning & Environment Court, seeking an order that the Tighes register an easement with respect to services, so that the terms of the original development approval would be complied with (in particular, condition 2). In support of their argument, the Pikes relied on a section of the Sustainable Planning Act 2009, which effectively provided that the conditions of a development approval run with the land and binds successors in title. The Pikes successfully contended that, as condition 2 had never been complied with, it ran with the land and bound the Tighes as successors in title even though they were not the party who originally carried out the development.[2]

On appeal, the Queensland Court of Appeal overturned the judgment of the Planning & Environment court, effectively concluding that the conditions of the development approval were ‘spent’ upon registration of the survey plan giving effect to the subdivision and were therefore unenforceable against successors in title.[3]

The High Court’s Decision

The Pikes were subsequently granted leave to appeal the Court of Appeal’s decision to the High Court and the High Court, in a 5-0 decision, confirmed the original decision of the Planning & Environment Court in holding that the Tighes were bound by the conditions of the original development approval and could be compelled to provide an easement for services in favour of the land owned by the Pikes. Central to the Court’s reasoning was the fact that:

  • The Court of Appeal drew an artificial distinction between reconfiguration of a lot and other forms of development (e.g. operational works) in circumstances where such a distinction is not contemplated by the legislation;
  • The Court of Appeal’s narrow interpretation of the legislation unduly restricted the scope for protection of the public interest in the efficient and effective use of land; and
  • Any concerns that a wide interpretation of the legislation would precipitate unjust outcomes were unfounded as the Court still retained a discretion as to whether to make an enforcement order and could elect not to do so even where it was established that a development offence had been committed.

The judgment has obvious consequences for all purchasers of property, particularly for those purchasing vacant land. In addition, the decision will also be of interest to property developers and local governments looking to prosecute development offences.

If you would like to know more about the decision, or about any other town planning issues, please do not hesitate to contact Dan Morton or William McKenzie.

[1] See

[2] Pike v Tighe [2016] QPEC 30.

[3] Tighe v Pike (2016) 225 LGERA 121.

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