Robin QC DCJ
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 15.
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 unreasonable.
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 damages.
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 development conditions.
- The fact that lot 15 was remote from the land being subdivided did not vitiate a condition of reconfiguration for its dedication as park.
- The balance of convenience favoured the making of the enforcement order.
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