ROL Conditions Run with the Land

High Court confirms that ROL approval conditions are enforceable against subsequent owners of reconfigured land

The recent High Court decision in Pike & Anor v Tighe & Ors has confirmed that conditions of a development approval for reconfiguring a lot run with the land and are binding even after new lots have been created and on-sold. 

For local governments this establishes that there are circumstances where enforcement action can be taken against a subsequent owner of land to enforce compliance with conditions of a ROL approval imposed over the land prior to it being reconfigured.

Background

Townsville City Council ("the Council") issued a 1 into 2 lot ROL approval subject to conditions.

Condition 2 of the approval required that an easement over lot 1 for the benefit of lot 2 be granted and registered in conjunction with the survey plan.

While an easement was granted prior to the Council's approval of the survey plan and created when the plan was registered it only allowed access, not on-site manoeuvring and connection of utilities and services also required by condition 2.

Lots 1 and 2 were subsequently purchased by the Tighes and the Pikes respectively.

In the years that followed the Pikes, who claimed that they were unable to construct their house without the right to connect services and utilities to lot 2, unsuccessfully tried to convince the Tighes to provide the necessary easement.  

Planning & Environment Court ("PEC") Proceeding

The Pikes applied to the PEC for a declaration that condition 2 of the ROL approval had been contravened and an enforcement order directing the Tighes to provide the easement as required. 

The Tighes disputed that they had contravened the condition, arguing that because compliance with the condition was required in conjunction with registration, any contravention could only have occurred at that time.  Further, when it approved the survey plan, the Council must have satisfied itself that the conditions of the approval had been complied with. 

In allowing the application the PEC held that, pursuant to section 245 of the Sustainable Planning Act 2009, all of the easement requirements in condition 2 ran with the land and the Tighes had committed a development offence against section 580 by contravening those requirements.

Court of Appeal ("COA") proceeding

The Tighes appealed the PEC's decision to the COA who ordered that the appeal be allowed and set aside the orders made by the PEC.

Regarding the construction of section 245 the COA was of the view that, while the development approval concerned the reconfiguration of the original lot into 2 lots, the land the subject of the application for that approval was the original lot and the effect of section 245 is that the approval binds an owner or successor in title of that original lot until the reconfiguration is completed.  The obligation pursuant to condition 2 was to register an easement in conjunction with the survey plan and this obligation was 'spent' on registration of the survey plan and creation of the new lots.  Therefore condition 2 imposed no obligation on the Tighes as they were not parties to the reconfiguration of the original lot and could not have committed a development offence by contravening the ROL approval. 

High Court of Australia ("HCA") proceeding

The HCA unanimously allowed an appeal by the Pikes against the COA's decision. 

The HCA accepted that the operation of section 245 continued notwithstanding the completion of a reconfiguration and that approval of a survey plan by a Council, absent the fulfilment of approval conditions, did not result in the expiration of the conditions.  Instead section 245 gives the conditions of a development approval the character of personal obligations capable of continuing beyond the completion of the approved development.  These personal obligations attach to all the land the subject of the application to which the approval relates and bind the successors in title like the Pikes and Tighes.

The HCA found that the Tighes had been given ample opportunity to provide the requisite easement and their failure to do so contravened the development approval and constituted a development offence.  It noted that the Tighes could not be said to have failed to comply with condition 2 unless they had first been given an opportunity to do so. 

Local government takeaways

Where survey plans are approved and lots are on-sold enforcement action may still be available against a current owner. 

However, an offence will not automatically be committed by a new purchaser when they take possession of land burdened by conditions of approval.  That purchaser must be given a reasonable opportunity to comply with conditions before they can be said to have committed a development offence by contravening an approval. 

Further, it will always be in the Court's discretion to exercise its powers to make declarations and enforcement orders having regard to the particular circumstances of a matter. 

The decision highlights the importance of ensuring all conditions of a ROL approval are fulfilled, or that their completion is appropriately secured, prior to Council approving a survey plan. 

For more information on this decision, or to discuss possible enforcement action, contact our Planning Team on (07) 3243 0000.