The obligation of a subsequent owner of land to comply with conditions of a development approval (“DA”) was considered by the Queensland Court of Appeal in Tighe & Anor v Pike & Ors  QCA 353 (judgment delivered 23 December 2016).
The parties were each of the subsequent owners of lots 1 and 2 that had been created from a single lot and the Council that issued the DA and sealed the plan of reconfiguration.
Lot 2 was landlocked and behind lot 1; the only means of access and providing services to lot 2 was via lot 1. Condition 2 of the DA required an easement over lot 1 and in favour of lot 2 allowing pedestrian and vehicle access, on-site manoeuvring and connection of services and utilities (“the Prescribed Easement”) to be registered in conjunction with the survey plan. An easement was prepared however it provided for “access” only. Council endorsed the survey plan despite the easement not including on-site maneuvering or connection of services and utilities and lots 1 and 2 were created upon registration of the survey plan and the easement in 2010.
Lots 1 and 2 were later sold to the parties. The new owners of lot 1 were unwilling to provide the Prescribed Easement. The new owners of lot 2 obtained a declaration by the Planning and Environment Court (“P&E Court”) that the new owners of lot 1 had committed a development offence by not complying with Condition 2 of the DA; i.e. not granting the Prescribed Easement. The new owners of lot 1 appealed to the Court of Appeal.
The Court of Appeal allowed the appeal and set aside the P&E Court’s decision. In summary:
- The Court of Appeal noted that the P&E Court could only make an order requiring the new owners of lot 1 to grant the Prescribed Easement if they were committing the development offence. The new owners of lot 1could not be ordered to grant the Prescribed Easement if it was only the original owner of the land that committed an offence by not registering the Prescribed Easement and complying with Condition 2.
- Condition 2 was to register the Prescribed Easement in conjunction with the Survey Plan and only as a condition of the simultaneous reconfiguration of the land into lots 1 and 2. Condition 2 was not a continuing and freestanding obligation.
- The new owners of lot 1 were not parties to the DA and Condition 2 did not impose any obligations upon them. Therefore, they had not committed an offence by not granting the Prescribed Easement.
The Court of Appeal also considered the issue of indefeasibility of title because it was considered by, though not argued before, the P&E Court. The Court of Appeal noted that at best the new owners of lot 2 had a personal right to apply for an enforcement order for the grant of the Prescribed Easement. If the P&E Court had the power to make an enforcement order against the new owners of lot 1 on the basis that they had committed a development offence, that order created new rights superimposed upon the existing rights of the parties and as such, indefeasibility of title was irrelevant (per Fraser JA in ).
It is possible for conditions of a DA to continue in force and effect subsequent owners of land; particularly where the development has not yet been carried out. Once the development is complete, it will depend on whether the condition is a continuing and freestanding obligation with which a subsequent owner must comply.
What now for the owners of lot 2? Perhaps they will apply for a statutory right of user under section 180 of the Property Law Act 1974.
Article by Les Power, Accredited Specialist (Commercial Litigation), Legal Practice Director, Wilson Lawyers
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