WHO SHOULD READ THIS
- Local governments
THINGS YOU NEED TO KNOW
- Local governments cannot rely on conditions of a development approval for reconfiguration of a lot to impose a requirement for ongoing compliance.
WHAT YOU NEED TO DO
- Local governments need to carefully consider and ‘work around’ the gap in the ability to regulate compliance with any ongoing requirements for reconfiguration of a lot.
On 20 June 2016, we issued a focus alert about the decision of the Planning and Environment Court in Pike & Anor v Tighe & Ors1. In that case His Honour Judge Durward SC DCJ decided that a purchaser of land, by doing nothing, had committed a development offence on the basis that the previous owner had registered an easement only for access over the land but the development approval for reconfiguration of a lot required an easement be provided to allow both access and connection of services/utilities.
The Court of Appeal has recently overturned that decision2.
Background - the Planning and Environment Court decision
The current owner of the land with the benefit of the easement argued that the easement that had been registered did not comply with the development approval and that, because development approvals run with the land, indefeasibility of title was not a bar to the court enforcing the condition of the approval.
The current owner of the land burdened by the easement argued that the application should be dismissed, because (amongst other things) it was a subsequent purchaser of the land and the council had sealed the survey plan allowing the titles to be created.
The Court decided that:
- development approvals run with the land and subsist, so that when an approval has not been complied with, the current owner of the land benefited by the approval has committed a development offence
- there is no inconsistency between section 245 of SPA and the principle of indefeasibility of title in the Torrens system, certainly insofar as Queensland is concerned in the context of the provisions of the Sustainable Planning Act 2009 (Qld) (SPA) and the Land Title Act 1994 (Qld) (LTA), and
- subsequent purchasers are not able to rely on the concept of indefeasibility of title or an existing registered interest, such as an easement, as the basis to convince the Court not to exercise its discretion to make declarations or enforcement orders in relation to non-compliance with a condition of a development approval.
Grounds of appeal
The current owner of the land burdened by the easement appealed the decision on three grounds, as follows:
Ground 1 – the Court erred in deciding the matter on a basis neither put nor argued for by either party, namely that indefeasibility of title was not sufficient to deny the claim for the imposition of an easement for services.
Ground 2 – the Court erred in finding that the Court had jurisdiction to make the order by reason of the commission of an offence when there was no such offence and no proper basis to find as a fact that there was.
Ground 3 – the Court erred in finding that a development approval which ‘runs with the land’ is an exception to the indefeasibility of title afforded by the LTA such as to the current owner of the burdened land to recognise an unregistered interest in land and take unidentifiable steps to register such an interest.
The Appeal decision
The Court of Appeal granted leave to appeal on the basis that there was no challenge to ground 1 of the appeal, and that the appeal raises an important question about the effect upon purchasers of subdivided lots of certain kinds of conditions of approvals for reconfiguration of a lot.
In allowing the appeal, the Court of Appeal decided that:
- no question of indefeasibility arose in this case;
- the real issue was whether there was any basis for finding that the current owners of the land burdened by the easement had committed the alleged development offence;
- the primary judge erred in deciding that the current owners of the land burdened by the easement committed a development offence against section 580(1) of SPA by failing to grant and cause to be registered an additional easement for services/utilities;
- the language of the development permit makes it plain that the obligation to create an easement was an obligation to register the easement in conjunction with the survey plan. The language is not that of a continuing and freestanding obligation severed from the simultaneous creation of the approved reconfiguration;
- section 605(1) of the SPA must be understood in the context of both section 601(1)(a) and section 604(1), which contemplate only orders to remedy or restrain the commission or future commission of an offence;
- the Planning and Environment Court lacked power to make a restraining order against the current owners of the land burdened by the easement on the basis that someone else had committed a development offence; and
- only if the current owners of the land burdened by the easement had completed the reconfiguration (i.e. rather than purchasing land after the reconfiguration had already occurred), would the owners have been amenable to an enforcement order on the grounds that the person had committed an offence against section 580(1) of SPA.
The Court of Appeal’s decision clarifies that purchasers of reconfigured land can rely solely on the freehold register to determine the extent of rights and interests in relation to that land. However, the situation for local government has now become more complicated. Although a development permit for reconfiguration of a lot runs with the land, ongoing compliance with conditions may not be required after the survey plan is registered, because the approval will have been ‘spent’ on registration of the survey plan, unless the condition is expressed as being an ongoing obligation. For example, had the condition been expressed as an obligation to 'register and maintain at all times an easement', that may have produced a different result.
In addition to assessing compliance with conditions before sealing survey plans, local governments will need to carefully consider and ‘work around’ the gap in their ability to regulate compliance with any ongoing requirements, such as requirements to maintain a retaining wall of a certain height on the boundary between the two reconfigured properties.
Any condition that requires ongoing compliance will need to be clearly identified as such in a development approval for reconfiguration of a lot, as well as being replicated as a condition of any associated operational works approval in an effort to remove doubt. This will not guarantee an ongoing compliance requirement, but may be the only option for local governments if a development approval for a material change of use is not required. Due to the restrictions on the types of covenants that can be registered on freehold title pursuant to section 97A of the LTA, instruments of covenant are of limited use in this context.