Purchasers beware – development approvals for existing development may bite

WHO SHOULD READ THIS

• Proposed purchasers of land, planners advising purchasers, and local governments.

THINGS YOU NEED TO KNOW

• Purchasers of land could be held liable for a development offence for doing nothing.
• Conditions of a development approval do not terminate when development is completed.

WHAT YOU NEED TO DO

• Purchasers should undertake due diligence in relation to planning approvals to determine whether there may be any compliance concerns.

In a recent case (Pike & Anor v Tighe & Ors [2016] QPEC 30), His Honour Judge Durward SC DCJ decided that a purchaser of land, by doing nothing, has committed a development offence. This is because the development approval, which required an easement be provided to allow both access and connection of services/utilities, was not complied with. The previous owner had registered an easement only for access over the land.

Background

In an earlier case, Montrose Creek Pty Ltd v BCC; Manningtree (Qld) Pty Ltd v BCC [2012] QPEC 65 (Montrose Creek case), the Court considered whether a development offence had been committed as a consequence of the failure of the applicants in that case to pay the relevant infrastructure contributions as set out in the development approval. It was held that a development approval, including conditions, attached to the land, and that the obligation to pay the infrastructure charges attaches to the land and binds the owner and any successor in title.

Pike & Anor v Tighe & Ors [2016] QPEC 30

This case follows from the decision in the Montrose Creek case. It involves an application for a declaration and enforcement orders pursuant to the Sustainable Planning Act 2009 (Qld) (SPA).

The applicant, who is the 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. Without the ability to connect services and utilities, the applicant was not in a position to construct and service a dwelling house on the land.

The first respondent, the current owner of the land burdened by the easement, argued that the application should be dismissed because:

• there was no evidence that the applicant had relied on the development approval condition in purchasing the land
• it was a subsequent purchaser of the land burdened by the easement, and
• the council had sealed the survey plan allowing the titles to be created.

Property -v- Planning

Section 245(1) of the SPA provides that a development approval attaches to the land and binds the owner, the owner’s successors in title and any occupier of the land. However, once development has been completed, purchasers will often rely on the freehold register to determine the extent of rights and interests in relation to land.

Without further considering whether there has been compliance with existing development approvals, purchasers may be at risk of committing a development offence.

Decision in Pike & Anor v Tighe & Ors [2016] QPEC 30

The effect of the decision in Pike & Anor v Tighe & Ors [2016] QPEC 30 is 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 SPA and the Land Title Act 1994 (Qld), 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.

Key lessons

Before purchasing property, purchasers should be mindful of the requirement to comply with existing development approvals. Conditions do not terminate once the development has been completed, they continue.

Due diligence should include consideration of conditions of existing approvals to determine whether there may be any ongoing compliance concerns.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.