Development Approval Conditions attach to the Land
In 2014, the High Court of Australia decided the case of Pike v Tighe  HCA 9. It was determined that the conditions of a Development Approval remain binding on the land, and the land subsequently issuing from it, after the development has been completed. This decision effects both developers and purchasers and both should be aware of its implications.
The facts of Pike v Tighe  HCA 9
The Townsville City Council issued a Development Approval for an existing property to be subdivided in to two lots. As is usual for a Development Approval, it was issued with certain conditions – one of which was that an access easement was registered in favour of Lot 2, over part of the land on Lot 1, so that Lot 2 could be accessed.
Under the condition, the easement was to allow pedestrian and vehicle access, on-site manoeuvring and connection of services and utilities for benefited Lot 2 over burdened Lot 1. The easement did not cover on-site manoeuvring and connection of services, but was subsequently signed off on by the Council and registered with the Department of Natural Resources, Mines and Energy.
The case history and decision
In case history can be summarised as follows:
- both lots were subsequently sold by the Developer;
- the owner of Lot 2 sought an order from the Planning and Environment Court for the owner of Lot 1 to comply with the terms of the Development Approval;
- the Planning and Environment Court granted this order, however this was appealed by the Lot 1 owner to the Queensland Court of Appeal;
- the Queensland Court of Appeal determined that the conditions of the approval had been met once the plan was registered, and allowed the appeal overturning the Planning and Environment Court order; and
- the owner of Lot 2 subsequently appealed to the High Court.
The High Court determined that the conditions of the Development Approval remained binding on both owners. To summarise:
- the Sustainable Planning Act (now the Planning Act) ensures that the conditions of Development Approvals can be enforced against subsequent owners of the subdivided land;
- those conditions do not terminate once the development has been completed;
- there are offences for non-compliance with the conditions of a development approval, however a new owner would not be considered guilty of such an offence as soon as they became the owner; and
- if an offence of non-compliance is committed, the Planning and Environment Court has a discretionary power to make an enforcement order, meaning each situation would be examined and decided on its merits.
What this means for all involved
Caveat emptor applies to all purchasers of land – buyers should beware and investigate fully whether the terms of a Development Approval that applies to the land have been complied with.
Developers should be aware of the circumstances under which the conditions of a Development Approval can be changed under the Planning Act and go through the proper channels should they wish to changing any terms or requirements of the Development Approval.