Pike v Tighe [2018] HCA 9

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ

JOSHUA JAMES PIKE & ANOR APPELLANTS

AND

KYM LOUISE TIGHE & ORS RESPONDENTS

Pike v Tighe [2018] HCA 9 14 March 2018 B33/2017

ORDER

1. Appeal allowed.

2. Set aside orders 2 to 5 of the orders made by the Court of Appeal of the Supreme Court of Queensland on 23 December 2016 and, in their place, order that:

(a) the appeal be dismissed; and

(b) the matter be remitted to the primary judge for the making of final orders.

3. The first respondents pay the appellants' costs of this proceeding and the proceedings in the courts below.

On appeal from the Supreme Court of Queensland

Representation

D R Gore QC with J G Lyons for the appellants (instructed by Wilson/ryan/grose Lawyers)

D A Savage QC with A L Raeburn for the first respondents (instructed by Connolly Suthers Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pike v Tighe

Town planning – Conditions on development – Where development approval permitted reconfiguration of lot into two lots – Where development approval subject to conditions – Where conditions included requirement to provide easement to allow access, on-site manoeuvring and connection of services and utilities – Where easement executed by registered proprietors of original lot did not comply with condition – Where Council approved survey plan to give effect to reconfiguration – Where titles for new lots created – Whether successor in title obliged to provide easement complying with condition.

Town planning – Enforcement orders – Where Planning and Environment Court of Queensland may make enforcement order if satisfied that development offence "has been committed" – Where development offence to "contravene" development approval – Whether successor in title committed development offence by failing to provide easement complying with condition.