Interim enforcement order to prevent sale by mortgagee
exercising power of sale –separate title required to be
dedicated as park under a condition of a development approval
– risk that purchaser would take land free of the condition
– Council offers undertaking as to damages – balance of
convenience favours making order – ss. 245, 603 and 604
Sustainable Planning Act 2009 – ss. 3.5.28 and 3.7.2
Integrated Planning Act 1997
Facts: The Council applied to the Court for an
enforcement order pursuant to section 604 of the Sustainable
Planning Act 2009 (SPA) to effectively
restrain the Respondents from disposing of or dealing with a parcel
of land. A development approval had previously been granted by the
Council for a reconfiguration, which included a condition that
"The land shown as park on the plan of subdivision shall be
dedicated to the Crown as park at the applicant's
expense". The relevant parcel of land was remote from the
developer's multi-staged subdivision and was described as lot
The reconfiguration had partially proceeded, with a number of
lots being made available for auction by the mortgagee in
possession. The advertisement of the auction included lot 15, which
prompted the Council to commence this proceeding.
The mortgagee in possession argued that it could deal with its
security (including lot 15) disregarding the entitlements the
Council may have had under the condition of approval, and that a
purchaser would be subject to the principles of caveat emptor. It
submitted that if only a modest number of the approved lots were
reproduced, the condition for dedication might be considered
The Council provided an undertaking as to damages under section
603(2) of the SPA, so that if it failed in its proceeding the
mortgagee in possession would be protected in respect of any
Decision: The Court held that:
The Council, representing the public interest, had a well
grounded fear that if lot 15 was sold, that may be an end to
prospects of its becoming park for the enjoyment of the public. It
was appropriate to have the status and fate of lot 15 clarified
before any sale.
There was a risk that a purchaser of lot 15 would hold it free
of any obligation to dedicate it to the Council, even if the
balance of the development were to go ahead on the basis that the
new owner of lot 15 had not implemented any development proposal.
The effect of section 245 of the SPA and section 3.5.28 of the
Integrated Planning Act 1997 was that conditions only bind
an owner or occupier who carries out development under the
approval. Indefeasibility of titles under the Torrens System was
likely to protect a purchaser from having to comply with some
The fact that lot 15 was remote from the land being subdivided
did not vitiate a condition of reconfiguration for its dedication
The balance of convenience favoured the making of the
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