PARTIES: �����

CITATION: Imboden Reilly Property Trust v Development Consent Authority

NTLMT 99-2006-P (20622025)



PARTIES: IMBODEN REILLY PROPERTY TRUST



v



DEVELOPMENT CONSENT AUTHORITY



TITLE OF COURT LANDS PLANNING AND MINING

TRIBUNAL



JURISDICTION: LANDS PLANNING AND MINING

TRIBUNAL ACT



FILE NO(s): LMT-99-2006-P (20622025)



DELIVERED ON: 21 July 2008



DELIVERED AT: DARWIN



HEARING DATE(s): N/A



DECISION OF: Dr John Lowndes, Chairperson



CATCHWORDS:



PLANNING ACT – NATURE OF AN APPEAL – APPLICABLE PLANNING LAW -

SPECIAL CIRCUMSTANCES DISCRETION – EFFECT OF ILLEGALLY

COMMENCED USE OR DEVELOPMENT ON APPROVAL



Lands Planning and Mining Tribunal Act NT ss 11, 14, 15, 16

Planning Act NT ss 9, 51, 52, 109, 128, 129, 130

Interpretation Act ss 4, 7, 12

NT Planning Scheme Clauses 2.2, 2.3, 5.21, 6.1, 6.5.1, 7.3, 7.10.3



Parker v Minister for Planning and Lands NT LMT 101 followed

Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 applied

Drake v Minister for Immigration and Ethnic Affa irs (1979) 24 ALR 577 applied

Allesch v Maunz (2000) 203 CLR 172 applied

Turnbull v NSW Medical Board [1976] 2 NSWLR 28 applied

Esber v Commonwealth of Australia (1992) 174 CLR 430 considered

Miller & City of Stirling [2007] WASAT 247 considered

Van Egmond v City of Knox, Bassett (1985) 3 PABR 249 applied

Melbourne CC & Misale v Melbourne CC [2005] VCAT 2681 applied

Jurkic v Manningham CC [2005] VCAT 1162 applied

Pearce & Geddes Statutory Interpretation 6 t h ed

Forbes Justice in Tribunals 2 nd ed

Australasian Council of Tribunals Practice Manual



REPRESENTATION:



Counsel:

Appellant: N/A

Respondent: N/A



Solicitors:

Appellant: Susan Porter

Respondent: Caroline Bicheno



Judgment category classification: B

Judgment ID number: LMT 99

Number of paragraphs: 246

CONTENTS PAGE



Background to the Appeal 2



The Nature of the Appeal 5



Statutory Provisions and Planning Scheme Governing the Appeal 33



The Meaning of the Words “Contrary To” in Section 52(1)(a) and 39

(b) of the Planning Act



The Application of Clause 2.5(3) of the Planning Scheme to the 40

Proposed Development



The Material that was before the Primary Decision Maker 43



Material Provided to the Tribunal 44



The Proposed Development 44



The Effect of an Illegally Commenced Development or use on the 46

Approval of a Development Application



The Determination of the Appeal 48









1

IN THE LANDS PLANNING AND MINING TRIBUNAL

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA



No. LMT-99-2006-P (20622025)





BETWEEN:



IMBODEN REILLY PROPERTY

TRUST

Appellant



AND:



DEVELOPMENT CONSENT

AUTHORITY

Respondent



DECISION



(Delivered 21 July 2008)



Dr John Lowndes, Chairperson



BACKGROUND TO THE APPEAL



On 4 August 2006 the Development Consent Authority, the respondent in these

proceedings, refused to consent to a proposed development by the

appellant of land described as Section 05628 Hundred of Bagot 107 Boulter

Road, Berrimah, for the purpose of a nursery with detached dwel ling for

caretaker‟s residence and dependant relative unit in three stages.



The reasons for that determination are set out in the Notice of Refusal NR

06/0022 dated 4 August 2008. The proposed development was rejected on

the following grounds:



(1) The proposed development is contrary to planning scheme

provisions referred to in s 9(1)(a) of the Planning Act and by reason

of s 52(1) (a) of the Act the Development Consent Authority is

prohibited from consenting to the developme nt;









2

(1.1) The proposed development is considered to be contrary to various

statements of policy for the CP (Community Purposes) Zone, namely

the accommodation of primarily community services and facilities

publicly or privately owned or operated, including fac ilities for civic or

government administration and the development of residential

accommodation only in association with and ancillary to the primary

use of the land;



(1.2) The proposed development is a purely commercial activity with a

significant residential component; and the proposed development is not

within the contemplation of the relevant zoning, there being no

reference to commercial development in either the objective or the

policy for the CP Zone;



(1.3) Although a nursery is within the contemplation of the CP Zone by virtue

of it being described as a consent use, the use of the land as a nursery

should only occur if it is owned or operated by an organisation which

provides a community service in accordance with the objective of the

Zone;



(1.4) Although a “detached dwelling” is also within the contemplation of the

CP Zone, policy dictates that such a dwelling should only be provided

as an ancillary development. The present detached dwelling which is in

situ is clearly not ancillary to the operation of a nursery wh ich has not

yet been established. The residential component of the development

which occupies approximately 30% of the total area of the site and

approximately 20% more of the site than the nursery which is to be

developed in Stage 1 of the development can not be considered to be

ancillary to the proposed nursery;



(2) The proposed development is contrary to a planning scheme

provision referred to in s 9(1)(b) of the Planning Act and by reason

of s 52(1) (b) of the Act the Development Consent Authority must

consent to the development;



(2.1) The proposed development is contrary to clause 17.8 (Floor Area

Limitation for Dependant Relative Units) of the Darwin Town Plan

1990 (as amended) for the following reasons:



 Clause 17.8 requires that a dependant relative unit not exceed a

floor area of 50m2, the objective of which is to ensure that a

dependant relative unit remains ancillary to the detached

dwelling on the subject land. The proposed dependant relative

unit has a floor area of 60m2;



 By definition a dependant relative unit should be ancillary to and

constructed within the curtilage of the detached dwelling on the

subject land and used to provide accommodation to a dependant

relative of a resident of the detached dwelling. The proposal to

provide residential accommodation which exceeds the floor area





3

limitation is sought on the basis that the dependant‟s relative‟s

husband will need a separate bedroom to allow him re gular

sleep. The wife is the dependant relative of the husband who will

reside in the dependant relative unit with her. The proposal is

considered to be inconsistent with the concept of a dependant

relative unit as the husband will not be residing in the d etached

dwelling;



 A departure from the floor area limitation is not supported as it is

contrary to the objective of ensuring the ongoing ancillary nature

of the dependant relative unit and, if the variation were permitted,

it would facilitate the use of the dependant relative unit as a

second detached dwelling.



(3) Taking into account the provisions of s 51(p) of the Planning Act the

proposed development is considered likely to negatively impact on the

public interest as it would formalise the estab lishment of a purely

commercial and residential development on land which is set aside by

virtue of its CP zoning for the provision of community services and

facilities. In coming to that conclusion the Authority relied on advice

from the Department of Planning and Infrastructure to the effect that

there is a shortage of available CP zoned land and therefore the use

of the land for a non community purpose is considered likely to further

impinge on the availability of such land for genuine community service

and facility providers both now and in the future.



(4) Taking into account the provisions of s 51(b) of the Planning Act the

proposed development is inconsistent with the Draft Northern Territory

Planning Scheme, which proposes to zone the subject land CP

(Community Purposes) and to make a single dwelling and dependant

unit prohibited uses. Furthermore, proposed clause 7.10.3 of the Draft

Scheme, which deals with caretaker‟s residences, imposes a 50m2

floor area limitation and restricts the number of caretak er‟s residences

to one per site. The purpose of clause 7.10.3 is to ensure that a

caretaker‟s residence is not the primary use of the land and that the

caretaker‟s residential use does not prejudice the use of the site or

adjoining land in accordance with its zoning;



(4.1) Although not the prevailing Planning Scheme, the Draft Scheme

reinforces the view that the proposed residential component of the

proposed development is inconsistent with established policies

concerning the development of land which is zoned to provide for

community services and facilities.



By way of Notice of Appeal dated 24 August 2006 the appellant appealed the

decision of the Development Consent Authority. The grounds of the appeal

are set out in a letter from the appellant to the Registr ar of the Lands

Planning and Mining Tribunal dated 28 August 2006.





4

The Tribunal received submissions from the appellant and the respondent

comprising the following:



 The appellant‟s submissions dated 27 November 2006;



 The respondent‟s submissions (Appeal report) dated the same date;



 The respondent‟s further submissions (Appeal report) undated but

received 7 December 2006;



 Further submissions from the appellant dated 17 October 2007 in

response to further information to the Tribunal provided by the

respondent.



As a consequence of the Northern Territory Planning Scheme coming into effect

on 1 February 2007 the Tribunal invited further submissions from the

parties in relation to the effect of that scheme on the appeal and related

aspects of the appeal, including the nature of the appeal. The following

submissions were received by the Tribunal:



 The appellant‟s submissions dated 28 March 2008;



 The submissions of the respondent dated 11 April 2008;



 The appellant‟s submissions in reply dated 6 May 2008;



 Further submissions of the appellant dated 22 May 2008;



 Further submissions of the respondent dated 22 May 2008.



As the nature of the present appeal is critical to the disposition of the appeal

that issue needs to be dealt with at the outset.



THE NATURE OF THE APPEAL



The underlying preliminary issue in these proceedings relates to the nature of

the appeal and whether the determination appealed from is to be reviewed

by the Tribunal in light of the law as it stood at the time the determination

was made or as the law presently stands, that is, as at the date of the

hearing of the appeal.









5

The Tribunal received extensive submissions from both the appellant and the

respondent in relation to the nature of the present appeal. The appellant

submitted that an appeal to the Tribunal is “more in the nature of an appeal

in the strict sense, with some features of a re -hearing (ie the ability to

receive evidence in a very limited way) such that the law to be applied by

the Tribunal is the law as it stands at the time of its d etermination”. 1 The

respondent submitted that an appeal to the Tribunal is, consistent with the

reasoning and conclusions in Parker v Minister for Planning and Lands

(LMT -101-2006-P (2062451)), in the nature of a re-hearing with the result

that the applicable law is that which is current as at the time the appeal is

heard and determined by the Tribunal.



Although the issue has previously been dealt with and determined by the

Tribunal in Parker v Minister for Planning and Lands (supra), it is

necessary in view of the extensive submissions made by the parties to

revisit the issue and deal comprehensively with those submissions,

notwithstanding the tendency these days for reasons for decision in

planning appeals to be succinct.



It is a matter of statutory interpretation as to how the present appeal is to be

characterised:



It was pointed out in Brisden [No 2] that “the nature of [an] appeal must

ultimately depend upon the terms of the statute conferring the right of

[appeal]”. The statute in question may confer l imited or large powers on

an appellate body; it may confer powers that are unique on the tribunal

concerned or powers that are common to other appellate bodies. There

is, thus, no definitive classification of appeals, merely descriptive phrases

by which an appeal to one body may sometimes be conveniently

distinguished from an appeal to another. 2









1

See [A18] of the appellant’s written submissions dated 28 March 2008. On its face the submission suggests that the

appeal is to be governed by the law as it stands at the date of the Tribunal’s determination when, in fact, the appellants

meant to say that it is to be governed by the law as it stood at the time the Development Consent Authority made its

determination.

2

See Coal & Allied Operations Co Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at

202 per Gleeson CJ, Gaudron ad Hayne JJ.





6

In a similar vein, in Coal & Allied Operations Co Pty Ltd v Australian Industrial

Relations Commission (2000) 203 CLR 194 at 223 Kirby J said:



In every case where the issue is that of the duty and function of an

appellate court or tribunal, the only safe starting point is a careful

examination of the language and context of the statutory provisions

affording the appellate right, together with a consideration of th e powers

enjoyed by, and the duties imposed on, the body to which the appeal lies.





In Turnbull v NSW Medical Board [1976] 2 NSWLR 28 at 285 Street CJ stated:



In determining the character and scope of appeal…it is necessary to take

into account, in particular, three matters. The first is the nature of the

function discharged by the board, and hence the nature of the decision

from which the appeal lies; the second is the form of expression used by

the legislature in its description of the appeal and of the p owers of the

court on the appeal; and the third is the particular field of considerations

and powers open to the board in the discharge by it of its function.



Accordingly, one must begin with the relevant legislation which creates the right

of an appeal to the Tribunal and which is relevant to the conduct of the

appeal.



The present appeal was instituted pursuant to s 111(1) of the Planning Act,

which deals with appeals against a refusal to issue a development permit

and provides as follows:



A person who made a development application under section 46 may

appeal to the Appeals Tribunal against a determination of the consent

authority under section 53 (c) refusing to consent to the development

proposed in the application.



Section 109 of the Planning Act provides for the application of various

provisions of the Lands Planning and Mining Act to the Appeals Tribunal:



The provisions of the Lands Planning and Mining Tribunal Act , other than –



(a) sections 14(2) and (4A), 17(1)(d)(ii) and (2) and Divisions 2 and

3 of Part 3; and



(b) sections 36, 37 and 38,



apply in relation to the Appeals Tribunal in relation to an appeal under

this Part.









7

The effect of s 109 is that ss 14(1), 14(3), 14(4), 14(5), 14(6), 15 and 16 of the

Lands Planning and Mining Tribunal Act apply in relation to the Appeals

Tribunal in relation to an appeal under Part 9 of the Planning Act.



Section 14(1) of the Lands Planning and Mining Tribunal Act provides that the

Tribunal is not bound by the rules of evidence, but may inform it self of a

matter relevant to a proceeding in the manner it thinks fit. Section 14(3)

enables the Tribunal to take evidence on oath or affirmation and, for that

purpose, the presiding member (a) may require a person appearing before

the Tribunal to take an oath or affirmation and (b) may administer an oath

or affirmation to a person appearing before the Tribunal. In accordance

with s14(4) the presiding member may require a person appearing before

the Tribunal (a) to answer a question relevant to the proceedi ng or (b) to

produce a document relevant to the proceeding. Section 14(5) provides that

subject to subsection (6) a person must not refuse or fail to comply with a

requirement under subsection (3)(a) or (4). 3 Section 14(6) provides that a

witness appearing before the Tribunal has the same protection and

immunity as a witness in a proceeding before the Supreme Court.



Section 15(1) of the Act provides that a presiding member may order a person

(a) to attend before the Tribunal or (b) to produce the documents specified

in the order that are in the person‟s possession or control. Subsection (2)

provides that a person must, in the absence of reasonable excuse, comply

with an order under subsection (1). 4



In accordance with s 16(1) the Tribunal may engage consultan ts with

appropriate expertise to assist it in relation to proceedings. Subsection (2)

provides that subject to the terms of engagement and any rules made

under s 20 of the Act a consultant may assist the Tribunal by appearing in

a proceeding.









3

The prescribed maximum penalty is $2,500 or 6 months imprisonment.

4

The prescribed maximum penalty is $1,000 or imprisonment for 6 months.





8

There is an apparent contradiction between those provisions of the Lands

Planning and Mining Tribunal Act referred to above and s 129(1) of the

Planning Act which provides as follows:



Subject to subsection (2), the Appeals Tribunal is to determine an appeal

in the absence of the parties and having regard only to –



(a) the information before the consent authority or the service

authority, as the case may be, at the time it made the

determination to which the appeal relates;



(b) in the case of an appeal, other than an appea l under section

113 or 115 – the matters specified in section 51; and



(c) Submissions made to it under section 128.



However, by applying various provisions of the Lands Planning and Mining

Tribunal Act to an appeal to the Tribunal, s109 of the Planning Act purports

to achieve the following effect, as described by Pearce and Geddes in

Statutory Interpretation in Australia (5 th ed) at [7.26]:



The effect of such a provision is, in effect, to mould the two Acts into one

– to require the incorporated Act notionally to be written in the

incorporating Act. Accordingly, each of the provisions of the two Acts

must be construed as if they were included in the one Act – unless there

is such a manifest discrepancy that it can be seen that the later of the two

Acts impliedly repealed part of the earlier. 5



Pearce and Geddes go on to say at [7.31]:



It can be expected that when two pieces of legislation are notionally

amalgamated, there may be difficulties in fitting all of the provisions

together. The courts will try to read the Acts in such a way that effect can

be given to all sections, but this may not be possible and resort must then

be had to the [aids to statutory interpretation].





In my opinion, s 129(1) of the Planning Act can be read harmoniously with the

various sections of the Lands Planning and Mining Tribunal Act which are

purported to be incorporated into the Planning Act by s 109 of that Act.

That becomes immediately apparent when one has regard to ss 129 (2),

(3), (4) and (6) of the Planning Act.





5

This discrepancy was highlighted in submissions made by Mr Farquhar in relation to an appeal bearing proceeding

no LA20 of 2005(20508828).





9

Section 129 (2) of the Planning Act reads as follows:



The Appeals Tribunal may, if it thinks fit, require –



(a) a person who is a party ;



(b) a person who made a submission under section 49 or gave

evidence or information under section 50; or



(c) any other person,



to appear before it and answer questions put to him or her by the Appeals

Tribunal.



The requirements of s 129 (3) are as follows:



The Appeals Tribunal may only permit a person, including a party, to

appear and give evidence before it under subsection (2) –



(a) if each party to the appeal is notified by the Registrar of the

date and time and place at which the evidence is to be given;

and



(b) if the evidence is given –



(i) in the presence of all the parties to the appeal; or



(ii) in the presence of less than all the parties if any of

the other parties, having been invited to attend at a

date, time and place specified under paragraph (a),

has not appeared.



Section 129 (4) provides that a party is not permitted to cross -examine a person

or party giving evidence under subsection (2) in relation to an appeal.



Section 129 (6), which substantially mirrors s 16(1) of the Lands Planning and

Mining Tribunal Act, permits the Tribunal to engage one or more

consultants with expertise in planning or development to assist it to

determine an appeal.



There is no inconsistency between the provisions of ss14, 15 and 16 of the

Lands Planning and Mining Tribunal Act and s 129(2), (3) (4) and (6) of the

Planning Act.





In my opinion, the combined effect of the relevant provisions of the Planning Act

and the Lands Planning and Mining Tribunal Act is as follows:



10

(1) the Tribunal must assess the information in the Development Consent

Authority file at the time the decision under appeal was made: see s

129(1) Planning Act;



(2) the parties to an appeal to the Tribunal are limited to making written

submissions on material or evidence that was before the Authority

when it made its decision: see s 128(4) Planning Act ;



(3) the Tribunal may inform itself as it thinks appr opriate, including

seeking expert consultants to assist it to have regard to the matters

specified in s 51: see s 14(1) and s 16 (1) Lands Planning and Mining

Tribunal Act read in conjunction with s 129(1)(b) Planning Act;



(4) if the Tribunal wishes a person to appear before it and give evidence

by way of answering questions put by the Tribunal, then such

questions and answers must be given in the presence of the parties:

see s 129(2) and (3) Planning Act ;



(5) if the Tribunal does not require a person to attend before it, the

Tribunal is to determine the appeal in the absence of the parties: see s

129(1) Planning Act. 6



I agree with the respondent‟s submission that whilst the Tribunal is primarily

obliged to proceed on the basis of the material that was before t he primary

decision-maker, it has specific powers to receive further evidence and to

inform itself as it sees fit. 7



By reason of s 14(1) of the Lands Planning and Mining Tribunal Act the Tribunal

may inform itself of a matter relevant to a proceeding in th e manner it

thinks fit. An appeal to the Tribunal is of course a proceeding within the

meaning of s 14(1). All of the matters referred to in s 51 of the Planning

Act are relevant, or at least potentially relevant, to an appeal to the

Tribunal. Accordingly, pursuant to s 14(1) of the Lands Planning and Mining

Tribunal Act the Tribunal may inform itself as it thinks fit in relation



to any matter referred to in s 51 of the Planning Act. 8 There is no

restriction on how the Tribunal may inform itself of the m atters referred to





6

This analysis broadly corresponds with the conclusions set forth in the submissions made by Mr Farquhar in

proceedings no LA20 of 2005 (20508828).

7

See [1.6] of the respondent’s written submissions dated 11 April 2008.

8

See the submissions made by Mr Farquhar referred at n 5 above, where he submitted , in relation to the combined

effect of s 14(21) of the Lands Planning and Mining Act and s 129 of the Planning Act, as follows:

(a) Section 129(1)(b) requires the Tribunal to have regard to the matters specified in s 51…

(b) There is no restriction on how the Tribunal may inform itself of the matters in s 51.





11

in s 51. 9 The only requirement is that the Tribunal inform itself in the

manner it considers fit. 10



Section 14(1) of the Lands Planning and Mining Tribunal Act has the effect of

rendering the Tribunal more than “a passive recipient of evi dence” 11. That

provision empowers the Tribunal to “adopt an active, investigative role”. 12

As Forbes puts it, the Tribunal may make its own inquiries and act on its

own knowledge, subject to the requirement that the parties must be advised

of information that the Tribunal acquires for itself, and be given a fair

opportunity to respond to it. 13 It is also the case that, in exercising its

investigative function, the Tribunal must not become “so involved that bias

is apprehended”. 14



It is clear from those provisions of the Lands Planning and Mining Tribunal Act

that apply to Part 9 of the Planning Act, when read in conjunction with ss

129 (2), (3), (4) and (6) of the Planning Act, that the Tribunal, in carrying

out its appellate function, is invested with what can only be described as

inquisitorial powers, 15 which it can exercise at its discretion. Those powers,

consistent with their inquisitorial nature, relate to the gathering and

processing of information relevant to an appeal to the Tribunal.



The appellant made the following submissions, the effect of which was to dilute

the inquisitorial powers of the Tribunal:







(c) The Tribunal has the option of using s 14(1) and s16(1) of the Lands Planning and Mining Tribunal Act [and now s 129

(6) of the Planning Act as amended] to obtain evidence or information about any matter specified in s 51in the manner it

thinks appropriate, without being required to use its powers under s 129(2).

9

It is noteworthy that the Tribunal is not precluded from receiving further evidence or material unless it was not in

existence at the time of the decision under appeal or, if in existence, was not able to be made available, or readily

available, to the primary decision –maker. The Tribunal is not subject to any such fetters on its information gathering

powers.

10

However, the information so obtained must be relevant: see Forbes Justice in Tribunals 2nd edition at [12.53] –

[12.54].

11

To use the words of Forbes n 10 at [12.27].

12

Again to borrow the words of Forbes, n 10 at [12.27].

13

Forbes n 10 at [12.27] and [12.28].

14

Forbes n 10 at [ 12.29].

15

See for example, Papak and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 518 (4

June 2003) where Miss S A Forgie (Deputy President), in referring to the relevant tribunal in that case, made the

following observation:

The Tribunal continues to retain its essential characteristics as an inquisitorial tribunal not limited by the rules of evidence

and able to inform itself as it sees fit. Its enquiries are limited only by its need to observe the rules of procedural fairness and

to be guided by the principles in Briginshaw v Briginshaw as to how satisfaction is to be achieved.





12

Notwithstanding that section 109 makes section 14(1) of the Lands

Planning and Mining Tribunal Act applicable to an appeal under Part 9 of

the Planning Act such that the Tribunal is not bound by the rules of

evidence but may inform itself of a matter relevant to a proceeding in the

manner it thinks appropriate, according to the principles of statutory

interpretation, 16 a specific provision in a statute overr ides a general.

Section 129(1) of the Planning Act read with s 128(4) specifically states

that the information the Tribunal is to have regard to is that material

before the Consent Authority when it made the determination to which the

appeal relates, and therefore section 14(1) should be read in light of that

specific provision and the Tribunal may only inform itself of matters

relevant to its primary function in a consideration of an appeal. 17



As a matter of statutory interpretation, this submission must be rejected. The

generalia specialibus rule – the maxim referred by the appellant in its

submissions – only applies in certain circumstances; and those

circumstances are absent in the case at hand.



According to the maxim, where there is conflict between gene ral and specific

provisions the specific provisions prevail. 18 As pointed out by Pearce and

19

Geddes, “where possible, all words in an Act should be given effect” and

“the generalia specialibus approach should only be called in aid where

there are two inconsistent provisions which cannot be reconciled as a

matter of ordinary interpretation” or “where contrariety is manifest”: Purcell

v Electricity Commissioner of New South Wales (1985) 60 ALR 652 at 657;

Reseck v FCT (1975) 133 CLR 45 at 53; Gunner v Minister for Immigration

and Ethnic Affairs(1997) 50 ALD 507.



In my opinion, s 14(1) of the Lands Planning and Mining Tribunal Act and ss

129(1) and 128(4) of the Planning Act were intended to be read together

and are consistent with each other. It should be not ed that the legislature,

with some deliberation and selectivity, decided to introduce certain

provisions of the Lands Planning and Mining Tribunal Act into the Planning

Act through the statutory vehicle of s 109 of the latter Act, with the intent

that those provisions were to apply in relation to the Appeals Tribunal when





See also Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200 (10 March

2005).

16

Pearce and Geddes Statutory Interpretation in Australia 5th ed at [7.19].

17

See [A11] of the appellant’s written submissions dated 28 March 2008.

18

Pearce and Geddes n 16 at [4.30].

19

Pearce and Geddes n 16 at [2.22] and [4.30].





13

hearing appeals under Part 9 of the Planning Act. That degree of

deliberation and selectivity evinces a legislative intent for the various

provisions to work in harmony.



In my opinion, the purpose of ss 129(1) and 128(2) was to contain the material

that the parties could seek to rely on at the hearing of an appeal. Those

provisions were designed to prevent the parties from arguing the

development application afresh and relying upon whatever material they

chose to bring to the attention of the Tribunal, as if the appeal were in the

nature of a re-hearing de novo. However, at the same time the legislature

saw fit to confer upon the Tribunal a wide discretion to obtain and act on

further material that it considered relevant and rationally probative.



I fail to see how the submission that “the Tribunal may only inform itself of

matters relevant to its primary function in a consideration of an appeal”

really advances the appellant‟s analysis of th e nature of the present

appeal. It goes without saying that the Tribunal can only inform itself of

matters relevant to the appeal.



The appellant submitted that ss 129(2) and (4) of the Planning Act did not

provide the Tribunal with “a full right to receive fresh evidence as is

contemplated by a re-hearing”. 20 However, neither of those provisions

prevent the Tribunal from receiving fresh evidence relevant to the appeal,

which is something that is precluded by an appeal stricto sensu.

Furthermore, the specific powers conferred upon the Tribunal by s 129(2)

of the Planning Act in no way limit the separate power of the Tribunal to

inform itself as it sees fit. Even if s 129(2) limits the right to receive fresh

evidence, that is not inconsistent with an appeal b y way of re-hearing: see



Ricardo Homes Pty and John Ricardo v NT Building Practitioners Board

[2007] NTMC 011 at [8].









20

See [A12] of the appellant’s submissions dated 28 March 2008.





14

The appellant also submitted that “the ability of the Tribunal to engage

consultants is not a manner by which the Tribunal may receive f resh

21

evidence”. The appellant went on to submit:



Sections 16(1) of the Lands Planning and Mining Act and s 129(6) of the

Planning Act state that the Tribunal may engage consultants with

appropriate expertise in planning or development to assist it to det ermine

the appeal. The plain and ordinary reading of this section is that the

engagement of the consultants is to assist in the determination (not to

provide evidence) by providing technical assistance to the Tribunal with

respect to the interpretation of the matters which it must consider under s

129(1) of the Planning Act. The fact that a consultant may appear in a

proceeding under s 16(2) of the Lands Planning and Mining Tribunal Act

does not expand the ability of the Tribunal to take new evidence as s uch

appearance is also only for the consultant to assist the Tribunal in its

determination. In addition, in accordance with s 129(2) of the Planning

Act while appearing the consultant can only answer questions put by the

Tribunal. 22



In my opinion, this submission cannot be sustained. The role of such

consultants is not confined to the interpretation of the matters which are to

required to be considered by s 129(1) of the Act. To so confine their role is

to place too narrow a construction on the relevant prov isions. The word

“assist” is a word of wide import. It is broader enough to encompass the

provision of evidence explaining, enhancing or adding to the evidence or

information that was before the primary decision maker with respect to the

matters specified in s 51 of the Planning Act. This broader construction of

the role of experts is reinforced by the general power of the Tribunal to

inform itself as it sees fit.



Turning to the powers of the Tribunal upon determining an appeal, s 130(4) of

the Planning Act provides as follows:



The Appeals Tribunal must, in writing, determine an appeal against a

determination of a consent authority by taking one of the following actions -



(a) confirming the determination of the consent authority;



(b) in respect of an appeal under section 114 or 117 only –

revoking the determination set out in the notice served

under section 53A or 53B, substituting the determination of

the Appeals Tribunal and ordering the consent authority to



21

See [A13] of the appellant’s submissions dated 28 March 2008.

22

See [A13] of the appellant’s written submissions dated 28 March 2008.





15

issue a development permit subject to any conditions the

Appeals Tribunal thinks fit;



(c) ordering the consent authority to issue or vary a

development permit subject to any conditions the Appeals

Tribunal thinks fit.



The appellant made the following submission in relation to the powers of the

Tribunal:



The powers of the Tribunal are not wide. That is, it is not able to make

“orders as it thinks fit” and is only able to, in an appeal under section 111

(as this is), confirm the determination of the Consent Authority or order it

to issue or vary a development permit subject to any conditions it thinks

fit. As such, its powers are limited to giving a decision which should have

been given at the first instance. 23



While it is acknowledged that the powers of the Tribunal are limited, it is not

correct to say that the Tribunal is confined to making a decision which the

Development Consent Authority ought to have made in the first instance. 24

As conceded by the appellant, the Tribunal may order the consent authority

to issue or vary a development permit subject to any conditions it considers

appropriate.



That the powers of the Tribunal are not as restricted as the appellant would

have them is revealed by its own subsequent submission:



With respect to paragraph 1.10 of the respondent‟s submissions, the

limited range of options for the Tribunal to take upon determination of an

appeal does essentially confine it to making the decision which the

Development Consent Authority ought to have made, either by confirming

it if the Tribunal is of the view that it is correct, or by substituting its own

determination, or varying the Tribunal‟s. 25



Although the present appeal does not fall within the purview of s 130(4) (b) of

the Act, the power thereby conferred on the Tribunal in relation to a



specific class of appeal cannot be ignored when looking at the appellate

function of the Tribunal as a whole.









23

See [A16] of the appellant’s written submissions dated 28 March 2008.

24

See [1.10] of the respondent’s written submissions dated 11 April 2008.

25

See [A5] of the respondent’s written submissions dated 6 May 2008.





16

Section 130 (6) of the Act, which was introduced into the Planning Act by the

Planning Amendment Act 2005, provides:



To avoid doubt, a determination of an appeal by the Appeals Tr ibunal is a

review of the determination of the consent authority or service authority

on its merits.



Section 130)(6) is a declaratory or clarifying provision intended to put beyond

question the character and scope of an appeal to the Tribunal: see Fraser

and Secretary, Department of Family and Community Services [2003] AATA

265 (3 March 2003); Bennell and Secretary, Department Of Education

Employment and Workplace Relations [2008] AATA 211 (6 March 2008).



What then is the nature of the review process contem plated by s 130(6)?



As observed by French J in Tucker for Narnoobininya Family Group v Aboriginal

and Torres Strait Islander Commission [2004] FCA 134 at [45] (24 February

2004) the ordinary legal meaning of the word “review” is ambulatory:



Taken in isolation, it does not define the mechanisms for examination or

revision that may be applied. These can range from rehearing on the

merits with new evidence to an examination of a questioned decision on

limited grounds or error of law or process based on the mat erials

considered by the primary decision-maker. The latter class of review is

more readily applicable to judicial rather than to administrative action. But

as the High Court said in Brandy v Human Rights and Equal Opportunity

Commission (1995) 183 CLR 245 at 261, the word “review” has “no

settled pre-determined meaning; it takes its meaning from the context in

which it appears”. It encompasses judicial review on errors of law, excess

of power and breach of the rules of natural justice. It also encompasses

administrative reconsideration in light of changed circumstances –

Bannister v See (1982) 42 ALR 78 at 81 (Toohey J). As was said in

Kainhofer v DPP (No 2) (1996) 70 FCR 184 (at 194):



The word “review” is not a word of limitation; it is a word of great wid th.

The word may have different meanings depending upon its context.



The word “review” is juxtaposed with the phrase “on its merits” in s 130(6), that

is to say, in exercising its appellate function the Tribunal reviews the

determination of the primary decision-maker on its merits. What does the

phrase “on its merits” mean, when read in conjunction with the word

“review”?









17

In relation to s 130(6), the respondent submitted as follows: 26



The form of the amending provision is a commonly employed form for

identifying the role of a review tribunal. The words indicate that the

Tribunal is to examine the “merits of the matter in dispute rather than the

lawfulness of the decision under review”. 27



As explained in the COAT Practice Manual for Tribunals at [1.6] “merits r eview

is a form of statutory appeal” and “the fullest type of merits review is by

way of re-hearing de novo, in which the tribunal rehears the matter afresh,

is not confined to the evidence or other material that was before the

primary decision maker and may consider new submissions and

arguments”, with the parties usually presenting their evidence and

submissions again to the tribunal. In a “merits review” the tribunal is

“reviewing the decision and not the primary decision –maker‟s reasons”. 28

The appellate tribunal does not have “to find some legal flaw or factual

error in the primary decision in order to overturn it: it is enough that the

tribunal concludes that another decision is preferable”. 29 It is these

characteristics that immediately distinguish a m erits review from an appeal

in the strict sense which is concerned merely with a judicial review of the

original decision.



Although the contents of the Manual are directed at a “merits review” or a

review on the merits (the two terms being interchangeable ) in the nature of

a re-hearing de novo, the observations contained therein imply that a

“merits review” might assume a lesser form, such as an appeal in the form

of a rehearing, where an appellate body may receive further evidence, and

consider that evidence along with the evidence available at first instance in

determining the appeal.



However, in my opinion, it is not necessary to have recourse to the technical

meaning of “review on the merits”, that has evolved in the area of

administrative review, in order to arrive at the true meaning of s 130(6). To



26

See [1.9] of the respondent’s written submissions dated 11 April 2008.

27

In making that submission the respondent relied upon the observations made at [1.6] of the Practice Manual for

Tribunals, COAT: Council of Australasian Tribunals.

28

COAT Practice Manual for Tribunals at [1.6].

29

COAT Practice Manual for Tribunals at [1.6].





18

review a decision on the merits, or its merits, is to examine the original

decision in terms of its intrinsic quality, and to consider the substantial or

intrinsic rightness or wrongness of that decision in light of the facts and the

applicable law, without regard to legal technicalities.



The appellant made the following submission in relation to s 130(6) of the

Planning Act:



Section 130(6) of the Planning Act provides confirmation that the function

of the Tribunal is to determine whether the decision under appeal was

erroneous or not as it states that “a determination of an appeal by the

Appeals Tribunal is a review of the determination of the C onsent Authority

on its merits”. If it was the intention of the legislature for an appeal to be

by way of rehearing, which may otherwise be considered to be a “merits

review”, section 130(6) would have stated that “a determination of an

appeal by the Appeals Tribunal is a review of the application on the

merits. 30



I am unable to accept this submission. Section 130(6) in no way suggests that

the Tribunal is charged with the task of finding error in the determination of

the consent authority based on the material that was before it. Quite to the

contrary the Tribunal is charged with the task of reviewing the original

decision on its merits. There is no need for s 130(6) to provide that “a

determination of an appeal by the Appeals Tribunal is a review of the

application on the merits”. A review of the determination of the p rimary

decision maker on its merits implicitly entails a reconsideration of the

merits of the application.



Section 130 (7) of the Planning Act, which provides as follows, must not be

overlooked:



Also, the Appeals Tribunal may take action under subsection (4)(b) or (c)

only if satisfied –



(a) the consent authority manifestly failed to take into account a

matter referred to in section 51; or



(b) the determination of the consent authority would result in a

planning outcome manifestly contrary to a provision of a pla nning

scheme.







30

See [A14 ] of the appellant’s written submissions dated 28 March 2008.





19

Neither the appellant nor the respondent directly addressed s 130(7). However,

the following submission was made on behalf of the appellant:



The fact that the Tribunal is required to take into account matters

specified in Section 51 of the Planning Act 31 is consistent with the

Tribunal ascertaining whether the decision under appeal was or was not

erroneous on the evidence and on the law as it stood when the original

decision was given. The matters set out in Section 51 are matters that the

Development Consent Authority must have taken into account on an

application before it, and Section 129(2) therefore reinforces the fact that

it is the law at the time of the decision of the Development Consent

Authority that is to apply.



Neither ss 129(1)(b) and s 130(2) nor s 130(7) of the Act are inconsistent with a

review on the merits ( as contemplated by s 130(6)).



Section 129(1)(b) and s 130(2) do no more than establish a set of guidelines to

be followed by the Tribunal in performing its appellate fu nction. Those two

provisions structure and confine the appellate process by stipulating what

are relevant considerations for the purpose of determining an appeal to the

Tribunal.



Section 130(7) immediately follows the declaratory provisions of subsection (6).

Both provisions are capable of being read together with the following effect.



At first glance, s 130(7) (a) might suggest that the Tribunal is required to

identify some legal error on the part of the consent authority when it made

its decision, that is a manifest failure to take into account one or more of

the statutory considerations prescribed by s 51 of the Act. However, that is

a simplistic view of the function of the subsection as it overlooks its role in

the overall statutory scheme governing appeals to the Tribunal.



It is a fundamental principle of statutory interpretation that a piece of legislation

must be read as a whole. Section 130(7) (a) must be read in



light of those facultative provisions of the Lands Planning and Mining Act

and the Planning Act which permit the Tribunal to hear and receive further

evidence in relation to the appeal. If the Tribunal hears and receives further

evidence, that new material may significantly alter the factual landscape









20

that existed at the time the consent authority made its determination and

upon which it exercised its discretion. That fresh material or evidence may

relate to a matter referred to in s 51 of the Act which was not required to be

considered on the material that was put before the Consent Autho rity; or

such new evidence or material may give greater emphasis to a

consideration referred to s 51 than was previously the case. In light of that

further evidence the consent authority may be found by the Tribunal to

have manifestly failed to take into a ccount a matter referred to in s 51 of

the Act.



Consistent with the approach taken in Drake v Minister for Immigration and

Ethnic Affairs (1979) 24 ALR 577, the question for the determination of the

Tribunal is not whether the consent authority manifestly failed to take into

account a matter referred to in s 51 of the Act on the material before it, but

whether it manifestly failed to take into account a relevant matter, in light of

the material or evidence before the Tribunal. Where additional evidence is

heard or received by the Tribunal, then it must not only review the material

that was before the consent authority, but also consider the new material.

Of course, if no further evidence is heard or received by the Tribunal, then

the question for the determination of the Tribunal will reduce to whether the

consent authority manifestly failed to take in account a relevant matter on

the basis of the material before it. 32



Section 130(7)(b) is in somewhat different terms to subsection (7)(a). It is not

directed at any failure on the part of the primary decision maker. Rather it

is concerned with the conformity of the original decision with particular

planning provisions. The focus is squarely on the original decision.



Like s 130(7)(a), subsection (7)(b) must be rea d in light of the overall statutory

scheme. The Tribunal is required to consider, in light of any fresh evidence

or material, whether the determination of the consent authority is such as









31

Section 129(1)(b) and s 130(2) of the Planning Act.

32

See Coal & Allied Operations v Australian Industrial Relations Commission &Ors (supra) where the nature of an

appeal by way of rehearing was discussed: see below at pp 30-31.





21

to result in a planning outcome that is manifestly contrary to a pro vision of

a planning scheme.



The overall effect of s 130(7) is that the Tribunal may take action under

subsection 4(b) or (c) only if it is satisfied, on all the evidence or material

before it, that the consent authority manifestly failed to take into acc ount a

matter referred to in s 51 or the determination of the consent authority

would result in a planning outcome manifestly contrary to a provision of a

planning scheme.



This construction of s 130(7) of the Planning Act is entirely consistent with the

analysis of an appeal in the form of a re-hearing undertaken by Gaudron,

McHugh, Gummow and Hayne JJ in Allesch v Maunz (2000) 203 CLR 172

at 180:



…the critical difference between an appeal by way of re -hearing and a

hearing de novo is that, in the former c ase, the powers of the appellate

court are exercisable only where the appellant can demonstrate that,

having regard to all the evidence now before the appellate court, the

order that is the subject of the appeal is the result of some legal, factual

or discretionary error, whereas, in the latter case, those powers may be

exercised regardless of error.



The appellant made lengthy submissions as to the nature of the present appeal

and relied upon a number of authorities in support of its contention that the

appeal to the Tribunal is more in the nature of an appeal stricto sensu

rather than by way of a re-hearing. 33 The respondent replied to those

submissions. 34



It was submitted on behalf of the appellant that the language and context of the

various statutory provisions that govern an appeal to the Tribunal, together

with the three matters described by Street CJ in Turnbull v NSW Medical

Board (supra) in determining the character and scope of an appeal, 35

pointed to the present appeal being an appeal in the strict s ense.







33

See [A1] – [A18] of the appellant’s written submissions dated 28 March 2008 and [A1] – [A14] of the appellant’s

written submissions dated 6 May 2008.

34

See [1.1] – [1.19] of the respondent’s written submissions dated 11 April 2008

35

See p 7 above.





22

The appellant referred to two specific authorities – Duralla Pty Ltd v Plant

(1984) 54 ALR 29 and Enterprise Gold Mines and NL and Mineral Horizons

NL No 2 (1988) 52 NTR 23 - as examples of the need to look closely at the

provisions of legislation granting a right of appeal in order to determine the

character and scope of the appeal.



In Enterprise Gold Mines and NL and Mineral Horizons NL No 2 supra at 28

Kearney J determined that an appeal under s 159 of the Mining Act and

Part V1 of the Local Courts Act:



… is designed to provide redress for an erroneous decision of the

warden‟s court which involves substantial injustice. It does not involve a

hearing de novo of the issues before the warden‟s court. The evidence on

appeal is the evidence before the warden‟s court unless the court

exercises its power under s 59(3) to receive further evidence. Subject to

that, the appeal is by way of argument upon the evidence before the

warden‟s court. It may be treated as an appeal in the strict sense as

referred to in Ponnamma v Arumogam (supra), and as described by Glass

JA in Turnbull‟s case supra, in that it is directed to the correction of

errors in the decision of the warden‟s court and the law to be applied is

the law as it stood when the wardens‟ court gave its decision, though it is

not an appeal in the strict sense in that the Supreme Court is not

necessarily confined to “ the materials which that [ie warden‟s] court had

before it. 36



The respondent submitted as follows:



That judgment, however, turned on the word ing of s 159 of the Mining

Act, which provided that an appeal from the decision of the Warden‟s

Court to the Supreme Court is of the same type as an appeal from a

decision of the Local Court to the Supreme Court.



An appeal from the Local to the Supreme Cou rt is a strict sense appeal –

it may only be made from an error of law (s 19 of the Local Court Act). 37



In the appellant‟s submissions in reply to the respondent‟s submissions dated

11 April 2008 the following submission was made:



The appellant referred to the judgment of Kearney J in Enterprise Gold

Mines NL v Mineral Horizons NL 2 (supra) not in the manner indicated by

the respondent in paragraphs 1.16 and 1.17 of the respondent‟s

submissions (ie that the decision is specific authority that an appeal to

the Tribunal is an appeal in the strict sense and not by way of a re -

hearing), but as an example that to determine the character and scope of



36

See [A8(iii)] of the appellant’s written submissions dated 28 March 2008.

37

See [1.16] and [1.17] of the respondent’s submissions dated 11 April 2008.





23

an appeal, the provisions of the legislation granting the right to appeal

must be considered in determining same.



The appellant is not submitting that an appeal to the Tribunal is limited to

a question of law as the respondent appears to be suggesting in

paragraphs 1.18 and 1.19 of the respondent‟s submissions. To the

contrary, the appellant submits that it is an appeal in the strict sense.

There is a difference between an appeal on a question of law only and an

appeal in the strict sense, and the appellant refers to paragraph 4 in Part

A of the appellant‟s submissions. 38



With a view to determining the issue arising out o f the competing submissions, it

is helpful to set out the basis upon which Kearney J decided that an appeal

pursuant to s 159 of the Mining Act and Part VI of the Local Court Act is in

the nature of an appeal stricto sensu.



His Honour began by referring to the decision in Duralla Pty Ltd v Plant supra at

41, where Smithers J held that the appeal in that case retained “its

essential nature as an appeal stricto sensu, notwithstanding that remedies

available on such an appeal were extended”.



Kearney J also made reference to the judgment of Northrop J in the same case,

where his Honour said at 53:



There is a power conferred upon the court to admit further evidence.

There is a wide range of orders that the court may make on an appeal.

There is the power to draw inferences of fact. These powers suggest that

the nature of the appeal is by way of rehearing. ..in all the circumstances

the appeal was not in the nature of a rehearing, though the court had

wide powers to ensure that injustice is not suffered and for that purpose

may admit further evidence in the hearing of an appeal.



Kearney J proceeded to discuss the effect of the decision in Greater Adelaide

Land Development Co v Hamilton [1930] SASR 114:



Greater Adelaide Land Development Co v Hamilton … is the leading

authority in South Australia for the proposition that the appeal

corresponding to the appeal under Pt V of the Local Courts Act is

“correctional” in its nature…The word “correctional” is ambivalent; what

requires to be ascertained is the width of the corre ctive power – see the

analysis by Glass J in Turnbull’s case, supra. However, it appears that

the court meant that the appeal under Part VI is directed to the correction

of errors in the court below rather than to a new determination of the

rights and liabilities of the parties, as in a rehearing. Yet the appeal under

Part VI cannot be an appeal as in Dignan’s case, supra, because of the



38

See [12] and [13] of the appellants submissions in reply dated 6 May 2008.





24

power under s 59(3) to receive further evidence; that is recognised by the

court in Greater Adelaide Land Development Co v Hamilton, supra, in its

caveat (at 118) that there is no right to a rehearing “save in so far as the

taking of fresh evidence may amount to a rehearing”.



To attempt to characterise the appeal under Part VI as if appeals are

either appeals stricto sensu or rehearings on the basis that these terms

retain all the fixed connotations they had, does not seem to be

particularly helpful; as Mason J said in Builders Licensing Board v

Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 622:

“…elucidating the legislative intent…is not greatly illuminated by the

Delphic utterance that the appeal is by way of rehearing.” I consider that

Duralla Pty Ltd v Plant supra and Freeman v Rainbow supra provide

guidance which should be followed.



It is clear from the tenor of Kearney J‟s judgment that his Honour relied heavily

upon the decision in Duralla Pty Ltd v Plant (supra) and the guidance

provided by that case for determining the character and scope of an

appeal. However, as pointed out by the respondent, 39 Duralla Pty Ltd v

Plant was overruled by the High Court in Western Australia v Ward (supra).



Although the appellant concedes that the decision was overruled by the High

Court Western Australia v Ward (supra), it submitted that, having regard to

other relevant authorities, the present appeal is best characterised as an

appeal in the strict sense. 40 This is, in effect, a reiteration of the appellant‟s

submission that the nature of the present appeal is a matter of statutory

interpretation.



Before to proceeding to decide the nature of the present appeal, there is one

further matter that needs to be considered.



The parties were invited to make submissions in relation to the effect, if any, of

the decision in Esber v Commonwealth Of Australia (1992) 174 CLR 430

and s 12 of the Interpretation Act (NT) on the nature of the present appeal

and its disposition. 41 Both the appellant and the respondent submitted that

neither were relevant to the present appeal for different reasons.









39

See [1.14] of the respondent’s submissions dated 11 April 2008.

40

See [A10] of he appellant’s written submissions dated 6 May 2008.

41

See the appellant’s submissions dated 22 May 2008 and the submissions of the respondent of the same date.





25

The appellant submitted that s 12 of the Interpretation Act (NT) – in particular

42

s12(c) – has no application in the present case on the basis that the

Northern Territory Planning Scheme is not an “Act” within the meaning of s

17 of the Interpretation Act (NT). 43 The appellant also submitted that Esber

v Commonwealth of Australia (supra) has no application in relation the

present appeal as the High Court case involved the repeal of an Act and

the present appeal does not involve the repeal of a statute. Further, the

appellant pointed out that in Esber v Commonwealth of Australia (supra)

the High Court was considering transitional provisions in the

Commonwealth Employees Rehabilitation and Compensation Act 1988

(Cth) and no such provisions arise for consideration in the present case.



The respondent submitted that neither the provisions of s 12 of the

Interpretation Act (NT) nor the principles enunciated in Esber v

Commonwealth of Australia (supra) applied to the present appeal because

the appellant was not deprived of a “right”, within the contemplation of s12

of the Act, by reason of the introduction of the Northern Territory Planning

Scheme, which effectively repealed the earlier planning scheme. The

respondent submitted that “in planning law it is generally accepted that a

person does not have a „right‟ to a permit (ie a planning permit), only a

right to apply for same”. 44 It was submitted by the respondent that prior to

the introduction of the Northern Territory Planning Scheme the appellant

did not have a vested right to have the present review determined

irrespective of the repeal of the planning scheme: by instituting its appeal

before the amendment to the planning scheme, the appellant did not

acquire a right or a privilege to have the review determined in accordance

with the planning scheme as it existed at the time the appeal was









42

That subsection provides that the repeal of an Act or part of an Act does not affect a right, privilege, obligation or

liability acquired, accrued or incurred under an Act or the part of an Act so repealed, or an investigation, legal

proceeding or remedy in respect of that right, privilege, obligation or liability.

43

“Act” is defined to mean “ an Act passed by the Legislative Assembly and assented to under the Northern Territory

(Self-Government) Act 1978 (Cth), and includes (a) a Territory Ordinance; and (b) an Ordinance or Act of South

Australia in its application to the Territory; and (c) a part of an Act.

44

See [10] of the respondent’s submissions dated 22 May 2008.





26

instituted. 45 Further, the respondent pointed out that the Northern Territory

Planning Scheme did not have the effect of repealing an enactment which

conferred a right on the part of the appellant to seek a review by the

Tribunal in circumstances akin to those considered by the Tribunal in

Western Planning Commission v CPP Pty Ltd [2006] WASAT 379, where

the principles in Esber v Commonwealth of Australia (supra) were invoked

and applied.



In my opinion, the submission made by the a ppellant oversimplifies, and

ultimately misrepresents, the true position. It overlooks the provisions of

s 4 of the Interpretation Act (NT) which reads as follows:



This Act applies, so far as it is applicable –



(b) to and in respect of statutory instruments made under laws to

which this Act applies, and to and in respect of the

interpretation, application and effect of such instruments, as if

those instruments were Acts; and



(c) without limiting its general application –



(i) to and in respect of references to statutory instruments as if

they were references to Acts; and



(ii) to and in respect of references to Acts as if they were

references to such instruments.



“Statutory instrument” is defined in s 17 of the Interpretation Act (NT) as

meaning “an instrument of a legislative or administrative character”.



The effect of s 4 is that the provisions of s 12 apply to statutory instruments as

defined. Therefore, the general rule about preservation of rights and

liabilities applies to statutory instruments because those instruments are

treated as “Acts”. 46



The Darwin Town Plan 1990, which applied to the subject land at the time of the

Development Consent Authority‟s decision to refuse consent to the





45

In support of that contention the respondent relied upon the principles derived from Robertson v City of Nunawading

[1973] VR 819; Ungar v City o Malvern [1079] VR 259; Director of Public Works v Ho Po Sang [1961] AC 901;

Miller and City of Stirling [2007] WASAT 247.

46

See Pearce and Geddes n 16 at [6.16]. See also Pearce and Argument Delegated Legislation in Australia 3rd ed at

[25.16] and [30.7].





27

proposed development, was a planning instrument made under the

Planning Act (NT) as it then existed. It was a statutory instrument within

the meaning of s 17 of the Interpretation Act (NT). Similarly, the Northern

Territory Planning Scheme, which came into effect on 1 Februa ry 2007, is a

planning instrument created by s 7 of the Planning Act (NT), and therefore

a statutory instrument. It must follow that s 12 of the Interpretation Act

applies to both planning schemes.



I agree with the submissions made by the respondent. The a ppellant did not

have an accrued right, pursuant to s 12 of the Interpretation Act (NT), to

have its appeal determined by reference to the earlier repealed planning

scheme. It is clear that the repeal of the earlier planning scheme and

introduction of the Northern Territory Planning Scheme did not repeal an

enactment that conferred upon the appellant a right to seek a review of the

Development Consent Authority‟s determination. The appellant‟s right to

seek a review was in no way affected by the changes in the planning

scheme. Those changes did no more than alter the application of the law to

the appellant‟s development application.



In its submissions the respondent made reference to Miller and City of Stirling

[2007] WASAT 247 at [35] – [42], and in particular to the following extract

from the decision of Mr D R Parry (Senior Member): 47



It is well established in Australian planning law that a development or

subdivision application is to be determined on the basis of the law as it

stands at the time of the determination, whether by an original decision -

maker or on review/appeal by a court or a tribunal such as SAT. The New

South Wales Court of Appeal (Giles JA with whom Scheller and Santow

JJA agreed) stated the law in The Dubler Group Pty Ltd v The Minister for

Infrastructure, Planning and Natural Resources (2004) 137 LGERA

178…at[20], as follows:



The power to amend an environmental planning instrument by a

subsequent environmental planning instrument is undoubted,

see s 74 of the [Environmental Planning and Assessment Act

1979 (NSW ) (EP7A Act). A development application [which

includes, in New South W ales, a subdivision application; see

EP&A Act s 4(1)] is determined on the law as it stands at the

time of the application, including when it is determined on

appeal to the Land and Environment Court, which exercises



47

See [2.16] of the respondent’s written submissions dated 11 April 2008 and [17]- [21] of its written submissions

dated 22 May 2008.





28

equivalent jurisdiction to SAT in planning review/appeal

proceedings: Sofi v Wollondilly Shire Council [1975] 2 NSW LR

614…Nalor Pty Ltd v Bankstown City Council [1980] 2 NSW LR

630..



At [21] and [22] the New South Wales Court of Appeal referred to the

Victorian decisions of Robertson v City of Nunawading [1973] VR 819…

and Ungar v City of Malvern [1979) VR 259 which demonstrate that the

law stated by the New South Wales of Appeal also applies in Victo ria. In

the latter case, the Full Court of the Supreme Court of Victoria held at

265 as follows:



In the present case the institution of the appeal by the appellant

gave him no more than a hope or expectation that his appeal

would succeed and that he would be granted a permit. But, as

the Appeals Tribunal had a discretion as to whether or not it

would grant a permit, the question was open and unresolved. No

right or privilege had been acquired by the appellant nor had any

right or privilege accrued to him. T he investigation by the

Appeals Tribunal was not in respect of some right of the

appellant but was to decide whether some right should or should

not be given. Hence, as the appellant had no right or privilege

when the law was changed to make it illegal to grant a permit for

a commercial vehicle park for 33 Peverill Street, the Appeals

Tribunal was bound to refuse to give such a permit to the

appellant.



Similarly, the Queensland Planning and Environment Court held, in a

case in which a planning scheme was amended in an attempt to preclude

the proposed development after the appeal to the Court was commenced,

as follows:



If the planning scheme is relevant to the determination of this

appeal, it must be considered in its amended form. In the

absence of express legislative provision to the contrary, an

appeal of this kind must be decided having regard to the law in

force of the time of its determination. It could not be suggested

that the amendments to the planning scheme were such as to

cause 20 ( c) of the Interpretation Act [which is expressed in

similar terms to s 37(1) ( c) of the W A Act ]to apply…

48

Beaudesert Shire Council v Smith [1998] QPELR 368 at 370.



The principle stated in the New South W ales, Victorian and

Queensland decisions has also been assumed t o be correct by

the Full Court of the Supreme Court of W estern Australia in

Carcione Nominees Pty Ltd & Anor v Western Australian

Planning Commission & Ors (2005) 30 W AR 97.



However, when considering the general principle that emerges from the above

cases, it is important, as pointed out by the appellant, 49 to have regard to

the particular legislative provisions governing the decision or determination





48

Both those sections dealt with the preservation of rights and privileges in much the same terms as s12 of the

Interpretation Act (NT).

49

See [A8] of the appellant’s submissions dated 6 May 2008.





29

at the appellate or review stage. In most of the cases referred to the appeal

was stipulated to be by way of re-hearing or hearing de novo, in which case

it was clear that the appellate or review body was bound to apply the law

as it stood at the date of its determination, subject to any qualification

imposed by the general rule as to the preservation of accrue d rights and

privileges. It follows that the terms of the governing legislation must always

be examined to determine the nature of the appeal and the law to be

applied at the time the appeal is decided.



After embarking upon a process of statutory construct ion and considering the

relevant authorities, and applying them to the statutory regime which

governs appeals to the Tribunal, I have reached the same conclusion that I

reached in Parker v Minister for Planning and Lands (supra), that is to say,

the present appeal is in the nature of a re -hearing.



In Coal and Allied Operations Pty Ltd v AIRC (2000) CLR 194 at [12]-[14]

Gleeson CJ, Gaudron and Hayne JJ drew the following distinction between

an appeal stricto sensu and an appeal in the nature of a re -hearing, as well

as highlighting the essential difference between a re -hearing and a re-

hearing de novo:



[12] It is common and often convenient to describe an appeal to a court

or tribunal whose function is simply to determine whether the decision in

question was right or wrong on the evidence and the law as it stood when

that decision was given as an appeal in the strict sense… In the case of

an appeal in the strict sense, an appellate court or tribunal cannot receive

further evidence and its powers are limited t o setting aside the decision

under appeal and, if it be appropriate, to substituting the decision that

should have been made at the first instance.



[13] If an appellate tribunal can receive further evidence and its powers

are not restricted to making the decision that should have been made at

the first instance, the appeal is usually and conveniently described as an

appeal by way of rehearing. Although further evidence may be admitted

on an appeal of that kind, the appeal is usually conducted by reference to

the evidence given at first instance and is to be contrasted with an appeal

by way of hearing de novo. In the case of a hearing de novo, the matter is

heard afresh and a decision is given on the evidence presented at that

hearing.



[14] Ordinarily, if there has been no further evidence admitted and there

has been no relevant change in the law, a court or tribunal entertaining

an appeal by way of rehearing can exercise its appellate powers only if





30

satisfied that there was an error on the part of the prim ary decision-

maker. That is because statutory provisions conferring appellate powers,

even in the case of an appeal by way of rehearing, are construed on the

basis that, unless there is something to indicate otherwise, the power is

to be exercised for the correction of error. However, the conferral of a

right of appeal by way of a hearing de novo is construed as a proceeding

in which the appellate body is required to exercise its powers whether or

not there was error at first instance. 50



In Allesch v Maunz (2000) 203 CLR 172 at 180 Gaudron, McHugh, Gummow

and Hayne JJ distinguished an appeal in the nature of a re -hearing from an

appeal by way of hearing de novo:



…the critical difference between an appeal by way of re -hearing and a

hearing de novo is that, in the former case, the powers of the appellate

court are exercisable only where the appellant can demonstrate that,

having regard to all the evidence now before the appellate court, the

order that is the subject of the appeal is the result of some legal, fac tual

or discretionary error, whereas, in the latter case, those powers may be

exercised regardless of error. At least that is so unless, in the case of an

appeal by way of re-hearing, there is some statutory provision which

indicates that the powers may be exercised whether or not there was

error at first instance.



In Ex parte Currie re Dempsey [1968] 70 SR (NSW) 1 at [18]:



An appeal by way of rehearing usually involves a duty to give a decision

appropriate in fact and in law as at the date of the hearing o f the appeal.



Various commentators have explained the nature of an appeal by way of re -

hearing.



For example, Forbes describes an appeal in the nature of a rehearing in the

following terms:



…a court of appeal examines the work of a tribunal below to see wh ether

some different decision on the merits should have been made, either

according to the law at the time of the trial or according to a more liberal

dispensation, at the time of the appeal. Sometimes fresh evidence is

received. 51



In a similar vein, Cairns says:



In an appeal by way of rehearing the appellate court determines the legal

rights and obligations of the parties as at the date of the rehearing. The





50

See also Wilson v Lowery (1993) 4 NTLR 79.

51

Forbes n 10 at [2.3].





31

court is free to consider new circumstances and admit free evidence. It

reviews the evidence before the trial judge and reaches its own

conclusions. The court is not restricted to whe ther the trial judge was

wrong on the evidence presented at the trial. A rehearing is a new

determination of the rights and liabilities of the parties rather than the

correction of errors in the determination of the court below (CJD v VAJ

197 CLR 172 at 201-202; Allesch v Maunz (2000) 203 CLR 172 at 180) –

the rehearing is conducted on the basis of the law as at the date of the

rehearing: Vic Stevedoring at 109. 52



The following primary features of an appeal to the Tribunal support the proper

characterisation of the present appeal as being an appeal by way of re -

hearing:



 The Tribunal can receive further evidence or material;



 The appeal involves a review of the determination of the primary

decision maker on its merits;



 The Tribunal is not confined to making a decision that should have

been made in the first instance.



There is an additional factor that points to an appeal to the Appeals Tribunal

being in the nature of a re-hearing. Section 51(b) of the Planning Act

requires a consent authority, in considering a development application, to

take into account any proposed amendments to a planning scheme. That

provision, in effect, requires the primary decision maker to take into

account any proposed changes to planning law which are required to be

announced and exhibited. That is entirely consistent with the Tribunal

deciding an appeal by way of a rehearing and by reference to the law as it

stands at the time the appeal is heard. In deed, if the Tribunal were to do

otherwise it would contravene the provisions of ss 130(2) and (3) of the

Planning Act.



As the present appeal is in the nature of a rehearing the Tribunal is obliged to

determine the appeal in accordance with planning law as it exists at the

time the appeal is heard and determined. 53









52

Cairns Australian Criminal Procedure 5th edition, p 543.

53

See also Western Australia v Ward (2002) 213 CLR 1 at [70].





32

It is worth noting that under the Planning Act it is largely immaterial whether an

appeal to the Tribunal is an appeal stricto sensu or by way of re -hearing.

Even on an appeal in the strict sense, the Tribunal must, like the consent

authority, take into account any proposed amendments to the planning

scheme. The proposed Draft Planning Scheme which was taken into

account by the consent authority in considering the present development

application is substantially in the same terms as the Northern Territory

Planning Scheme which now constitutes the present law.



STATUTORY PROVISIONS AND PLANNING SCHEME GOVERNING THE

APPEAL



The present appeal is governed by a number of provisions in the Planning Act.



A consent authority must, in considering a development application, take in

account, the various matters specified in s 51 of the Planning Act, which

include any relevant planning scheme or proposed amendments to such a

planning scheme, any interim development order, any relevant environment

protection order, any submissions made under s 49 of the Act, any matter

directed by the Minister to be considered, the results of any public

environmental report or impact statement, the merits of the proposed

development, the capability of the land to support the proposed

development and the effect of the development on the land and other land,

the availability of public facilities or open space in the area in which the

land is situated, the public utilities or infrastructure provided in the area in

which the land is situated, the potential impact on the existing and future

amenity of the area in which the land is situated, the public interest, any

potential impact on natural, social, cultural or heritage values, any

beneficial uses, standards criteria or objectives declared under the Water

Act and other matters the consent authority thinks fit.



Section 52(1) of the Act reads as follows:



The Development Consent Authority must not consent to a proposed

development under section 53 if –



(a) in its opinion, the proposed development is contrary to a

planning scheme provision referred to in section 9(1)(a); or





33

(b) the proposed development is contrary to a planning scheme

provision referred to in section 9(1)(b) or an interim

development control order.



Section 9(1) provides:



A planning scheme may include any of the following:



(a) provisions that include statements of policy in respect of the

use or development of the land;



(b) provisions that permit, prohibit, restrict or impose conditions

on a use or development of land…



Section 130(2) states:



In determining an appeal, except an appeal under section 113 or 115, the

Appeals Tribunal must take into account the matters specified in section

51.



Section 130(3) provides:



The Appeals Tribunal must not determine an appeal to permit a proposed

development if –



(a) in its opinion, the development would be contrary to a

provision of an applicable planning scheme referred to in

section 9(1)(a); or



(b) the development would be contrary to a provision of an

applicable planning scheme referred to in section 9(1)(b).



The provisions of s 130(7) of the Act, previously referred to, provide that the

Tribunal may only issue or vary a development permit subject to any

conditions it thinks fit if it is satisfied that (a) the consent authority

manifestly failed to take into account a matter referred to in section 51 or

(b) the determination of the consent authority would result in a planning

outcome manifestly contrary to a provision of a planning scheme.



Given that the present appeal is in the nature of a re -hearing, it is to be

determined by having regard to the provisions of the Northern Territory

Planning Scheme, which came into effect on the 1 February 2007.



Clause 2.2 of the Scheme provides as follows:







34

1. Land within a zone may be used or developed only in accordance

with the Act and this Scheme.



2. A use or development of land within a zone is permitted without

consent if the use or development:



(a) is shown on the relevant zoning table as permitted; and



(b) complies with all the provisions of this Scheme relating to

that use or development in the zone.



3. A use or development of land within a zone requires consent if any of the

following apply in relation to the use or the development:



(a) it is shown on the relevant zoning table as discretionary;



(b) subject to sub-clause 4, it is not shown on the relevant

zoning table;



(c) it does not comply with all the provisions of this Scheme

relating to that use or development within the zone; or



(d) a provision of this Scheme expressly requires consent.



4. Subject to clause 2.3, a use or development of land within a zone is

prohibited if the use or development is:



(a) in zones SD, MD, MR or HR and is not shown on the

relevant zoning table; or



(b) shown on the relevant zoning table as prohibited.



The subject land is zoned CP (Community Purposes).



Clause 5.21 of the Scheme, which deals with Zone CP, reads as follows:



1. The primary purpose of zone CP is to provide for community

services and facilities, whether publicly or privately owned or

operated, including facilities for civic and government

administration.



2. Design is expected to incorporate landscaping that will enhance the

visual appearance of the development. The development of

residential accommodation is to only be in association with and

ancillary to the primary use of the land.



The relevant zoning table for zone CP appears in Part 3 of the Scheme at page

3-43.



The table designates a “caretaker‟s residence” to be a permitted use. A

caretaker‟s residence is defined as meaning:





35

A dwelling which is ancillary to the lawful use of the land on which it is

erected and which is used by the caretaker of the land. 54



The zoning table specifies that a caretaker‟s residence is subject to the

provisions of clauses 6.1, 6.5.1, 7.3 and 7.10.3. As a permitted use i t must

comply with all of those requirements.



Clause 6.1, which deals with height control, provides:



1. The purpose of this clause is to ensure that the height of buildings in

a zone is consistent with the development provided for by that zone.



2. This clause does not apply within zones CB or DV or TC or, subject

to clause 7.1, zone C.



3. The height of any point of a building is to be measured from ground

level vertically below that point and includes the height of a mound

specifically provided or made to elevate the building.



4. Unless expressly provided by this scheme, the height of any part of

a building is not to exceed 8.5m above the ground, unless it is:



(a) a flag pole, aerial or antenna; or



(b) for the housing of equipment relating to the operation of a

lift.



Clause 6.5.1, which relates to vehicle parking requirements, reads:



1. The purpose of this clause is to ensure that sufficient off -street car

parking, constructed to a standard and conveniently located, is provided

to service the proposed use of a site.



2. Subject to clause 6.5.2, if a use or development specified in column 1 of

the table to this clause is proposed, the number of car parking spaces

(rounded up to the next whole number) required for that use or

development is to be calculated in accordance with the formula specified

opposite in column 2 or, if the use or development is within zone CB in

Darwin, column 3.



3. If a proposed use or development which is not listed in the table to this

clause requires consent, the number of car parking spaces required for

that use or development is to be determined by the consent authority.



4. A car parking area is to be designed in accordance with clause 6.5.3.



According to the accompanying table, the minimum number of car parking

spaces required is 1.





54

See Clause 3 of the Scheme.





36

Clause 7.3 is concerned with building setbacks and applies to caretakers‟

residences.



Clause 7.10.3 has particular application to a caretaker‟s residence. Subclause

(1) provides:



The purpose of this clause is to ensure that:



(a) a caretaker‟s residence is not the primary use of the land;

and



(b) the caretaker‟s residential use does not prejudice the use of

the site or adjoining land in accordance with its zoning.



Subclause (2) goes on to provide:



A building or part of a building may be used, constructed or modified

for use as a caretaker‟s residence where:



(a) the floor area of the caretaker‟s residence does not or will

not exceed 50m2; and



(b) there is or will be only one caretaker‟s residence on the site.



Subclause (3) provides for some relaxation of the requirements of the

preceding subclause:



The consent authority may approve an application for a caretaker‟s

residence that is not in accordance with subclause 2 only if it is satisfied

the proposed caretaker‟s residence is appropriate to the site having

regard to the potential impact of the caretaker‟s residence on adjoining

and nearby property.









According to the CP zoning table, a “dependant unit” is a prohibited use within

the zone. A dependant unit is defined as meaning:



A dwelling ancillary to and constructed on the same site as a single

dwelling for the purpose of providing accommodation for a dependant of a

resident of the single dwelling. 55



A “single dwelling” is also a prohibited use. Clause 3 of the Scheme defines a

single dwelling as “a building containing one dwelling only”.





55

See Clause 3 of the Scheme.





37

The CP zoning table also prohibits “multiple dwellings” within the zone. Multiple

dwellings are defined as meaning:



… a building or group of buildings on a site which individually or

collectively contain more than one dwelling (including serviced

apartments) but does not include a dependant unit. 56



“Plant nursery” is shown on the relevant zoning table as a discretionary use. It

therefore requires the consent of the consent authority.



“Plant nursery” is defined in Clause 3 of th e Scheme in the following terms:



premises principally used for the growing and/or display of plants for sale,

whether or not seeds, equipment, soil, sand, rocks, railway sleepers or

other associated products are displayed or sold, but does not include the

use of the land for agriculture or horticulture.



A number of clauses apply to this discretionary use: 6.1, 6.5.1 and 10.2.



Clauses 6.1 and 6.5.1 have already been noted in relation to caretakers‟

residences.



For a plant nursery the minimum number of car spaces required is described as

follows:



2 for every 200m2 of net floor area plus 1 for every 250ms used as

outdoor nursery.



Clause 10.2 relates to the clearing of native vegetation.



Clause 2.5 of the Northern Territory Planning Scheme , which relates to the

exercise of discretion by the consent authority, provides as follows:



1. In considering an application for consent for a proposed use or

development, the consent authority must consider the proposed use or

development in its entirety except in relation to :



(a) an application to alter or vary a development permit

pursuant to sections 43A, 46 or 57 of the Act; or



(b) access to a main road



2. Parts 4 and 5 set out the standards that apply to the

development of land, subject to sub-clauses (3) and (4).



56

See Clause 3 of the Scheme.





38

3. The consent authority may consent to the development of

land that does not meet the standards set out in Parts 4 and

5 only if it is satisfied that special circumstances justify the

giving of consent.



4. When consenting to a development of land, the consent

authority may impose a condition requiring a higher

standard of development than is set out in a provision of

Parts 4 or 5 if it considers it necessary to do so.



THE MEANING OF THE WORDS “CONTRARY TO” IN SECTION 52(1)(a)

AND (b) OF THE PLANNING ACT



As pointed out by the appellant, the phrase “contrary to some provision of the

interim development order”, as appearing in a proviso to s 17(1) of the

Town and Country Planning Act 1961, was considered by Beach J in

Castellano v City of Port Melbourne (1983) 57 LGRA 231. 57 There his

Honour found at [233] that the word “contrary” meant “opposite”,

“dissimilar”, “opposed”, “conflicting” or “contradictory”.



I consider that his Honour‟s interpretation of the words “contrary to” has equal

application to s 52(1)(a) and (b) of the Planning Act.



Without having had its attention previously drawn to Castellano v City of Port

Melbourne (supra), the Tribunal has previously placed a similar

interpretation on the words “contrary to”, as used in s52(1)(a) and (b) of the

Planning Act :



As submitted by the respondent the words “contrary to” import a state of

affairs – namely that of “being in opposition or contrast to”. Such a state

of affairs implies that something is opposed, in character or purpose, to

something else. Alternatively, it implies something having qualities

noticeably different from the qualities of something else. Therefore, in

order for a proposed development to be contrary to a planning scheme

provision it must be opposed to, in terms of character or purpose, to that

provision; or must be in contrast to that provision - that is qualitatively

different to that which is contemplated by the provision.



The issue to be determined by the Tribunal is whether the proposed

subdivision is contrary, in either of the two senses discussed above, to

the applicable provisions. 58







57

See [D3) of the appellant’s written submissions dated 28 March 2008.

58

See Parker v Minister for Planning and Lands LMT 101-2006-P- (20624251) at [169] – [170].





39

THE APPLICATION OF CLAUSE 2.5(3) OF THE PLANN ING SCHEME TO

THE PROPOSED DEVELOPMENT



An issue arises as to whether the discretion conferred by Clause 2.5(3) of the

Scheme applies to the present proposed development, w hich is the subject

of the appeal.



The respondent pointed out that the appellant‟s application and supporting

documentation refer to “developing a plant nursery over several years, a

detached dwelling/caretaker‟s house and dependant relative unit”. 59 The

application proposed the development be in three stages with the dwellings

in stage one together with some elements of the nursery. 60 It was noted by

the respondent that “none of the elements of the nursery appear to have

been either commenced or completed”. 61



The respondent submitted that “the appellant‟s application for multiple dwellings

and/or a single dwelling with a dependant unit are prohibited uses or

developments of the land”. 62



According to the respondent, “the structure of the NTPS is such that where a

use is permissible either with or without consent, that use or development

must conform to the standards (if any) specified in Parts 4 and 5”. 63 The

respondent proceeded to make the following submissions:



In the respondent‟s submission clause 2.5(3) delib erately does not refer

to Part 3 for the very reason that where the Scheme prohibits a use or

development it is prohibited absolutely.



Were this not the case there would be little purpose served by zoning

land and no reason for the Act to provide the Minis ter with power to grant

an Exceptional Development Permit which can only be applied for where

a use or development is prohibited by the Scheme. 64



In the respondent‟s submission clause 2.5(3) gives a discretion to a

consent authority only in circumstances where it has the power to

determine an application for a use that is permissible under Parts 1 and

3. That general discretion afforded a consent authority cannot be



59

See [2.2] of the respondent’s written submissions dated 11 April 2008.

60

See [2.3] of the respondent’s written submissions dated 11 April 2008.

61

See [2.3] of the respondent’s written submissions dated 11 April 2008.

62

See [2.4] of the respondent’s written submissions dated 11 April 2008.

63

See [2.7] of the respondent’s written submissions dated 11 April 2008.

64

Presumably this is a reference to s 38 of the Planning Act.





40

construed so as to override the specific provision within clause 2.2 and

the relevant zoning table. 65



In answer to those submissions, the appellant submitted that the reference to

“detached dwelling” in the application should be considered a reference to

“caretaker‟s residence”. 66



The appellant gave the following explanation as to the proposed stag ed

development:



The appellant‟s application to the Development Consent

Authority…proposed the development of the nursery to be in three

stages, and indeed it is correct that none of the elements of the nursery

have been commenced or completed. This is due to the fact that once

the appellant became aware of the requirement to apply for a

development permit with respect to development on the land (which

occurred after relocation of the caretaker‟s residence), the appellant

appropriately did not commence the development prior to obtaining the

development permit with respect to the proposed development of the

nursery. 67



Although the appellant conceded that under the Northern Territory Planning

Scheme single dwellings, multiple dwellings and dependant units are

prohibited uses within the Community Purposes zone, it was submitted on

its behalf that a caretaker‟s residence is “a permitted use as is home

occupation” and that “the appellant‟s application [was] for a nursery, a

caretaker‟s residence (which in practical, but not planning terms, is a

detached dwelling), and for a dependant relative unit”. 68



After conceding that a dependant relative unit requires, by reference to the

definition thereof, a “detached dwelling”, the appellant indicated that, in the

event that the Tribunal is minded to apply the provisions of the Northern

Territory Planning Scheme in determining this appeal, it is prepared to

“forgo its application for a dependant relative unit, and seek only approval









65

See [2.10] – [2.12] of the respondent’s written submissions dated 11 April 2008.

66

See [B1] of the appellant’s written submissions dated 6 May 2008.

67

See [B2] of the appellant’s written submissions dated 6 May 2008.

68

See [B3] of the appellant’s written submissions dated 6 May 2008.





41

for its development of the nursery and care taker‟s residence as ancillary

thereto”. 69



The appellant appears to be conceding the respondent‟s submission that the

discretion conferred by Clause 2.5(3) does not apply where a particular use

or development is prohibited.



The Tribunal agrees with the respondent‟s submission and the underlying

reasoning. Clause 2.2 of the Northern Territory Planning Scheme draws a

tripartite distinction between permitted uses, discretionary uses and

prohibited uses. A use or development is permitted if it is shown on the

relevant zoning table as permitted and complies with all the provisions of

the Scheme relating to that use or development. A use or development is

permitted without consent, inter alia, if it is shown on the relevant zoning

table as discretionary or it does not comply with all the provisions of the

Scheme relating to that use or development. In relation to both types of use

or development there is reference to compliance with provisions of the

Scheme. However, in the case of a prohibited use or development there is

no question of the use or development complying with provisions of the

Scheme. The use or development is simply and unconditionally prohibited.

It is clearly contemplated by Clauses 2.2 and 2.5(2) and (3) that the

consent authority may consent to a permitted or discretionary use or

development that fails to comply all of the provisions of the Scheme (that is

the criterion or standards set out in Parts 4 and 5 of the Scheme) if it is

satisfied that special circumstances justify the giving of consent . It is also

clearly contemplated that a prohibited use or development cannot be

consented to by invoking the discretion created by Clause 2.5(3).

Accordingly, the “special circumstances” discretion only applies to

proposed developments which relate to use s or developments that are not

prohibited.



THE MATERIAL THAT WAS BEFORE THE PRIMARY DECISION MAKER





69

See [B4] of the appellant’s written submissions dated 6 May 2008. As to whether it is possible for the appellant to

now withdraw part of the development application see below pp 47-48.





42

The following material was before and considered by the Development Consent

Authority:



 Application for Development Permit pursuant to s 46 of the Planning

Act dated 17 April 2006 ;



 Letter from Power Water to Development Assessment Services,

Development Consent Authority dated 17 May 2006;



 Facsimile from Power Water to George Maly dated 16 May 2006;



 Letter from Darwin City Council to Development Assessment Services,

Department of Planning and Infrastructure dated 19 May 2006;



 Letter from the Department of Planning and Infrastructure to Chairman

of the Development Consent Authority dated 26 May 2006;



 Letter from Department of Natural Resources, Environment and the

Arts dated 1 June 2006;



 Letter from the EPA to the Chairman of the Development Consent

Authority dated 7 June 2006;



 Letter from Sharyn Inness Consultancies Pty to Development Consent

Authority dated 19 June 2006;



 Technical Assessment of the proposed development by Department of

Planning and Infrastructure undated;



 Agenda for Darwin Development Consent Authority meeting to be held

on 5 July 2006;



 Addendum to agenda for Darwin Development Consent Authority

meeting to be held on 5 July 2006;



 Minutes of Darwin Development Consent Authority meeting held on 5

July 2006.



MATERIAL PROVIDED TO THE TRIBUNAL



The material that was before the Development Consent Authority was provided

to the Tribunal, which I have marked Exhibit 1. The Tribunal also recei ved

the Development Consent Authority‟s Notice of Refusal dated 4 August

2006, which has been marked Exhibit 2.









43

Following the Notice of Appeal, the Tribunal requested further information from

the Development Consent Authority. That information, which I hav e marked

Exhibit 3, is set out in a letter from the Chairman of the Development

Consent Authority to the Chairperson of the Lands Planning and Mining

Tribunal dated 6 December 2006. That correspondence attached a letter

from the Department of Planning and Infrastructure dated 6 December

2006, detailing the history of actions taken by the Department under the

Building Act with respect to the existence of unapproved building works on

the subject land.



THE PROPOSED DEVELOPMENT



The details of the proposed development are set out in a letter from Sharyn

Innes Consultancies Pty Ltd to the Development Consent Authority dated

26 April 2006.



It is proposed that the development will be staged as follows:



Stage 1



 540 square metres of shaded and unshaded plant growi ng area;



 9x3 office/retail outlet;



 9x3 store and potting area;



 12x9 fenced pot and retail display area;



 customer and staff parking;



 detached dwelling (caretaker‟s residence);



 dependant relative unit.



Stage 2



 further development of unshaded plant gr owing area;



 propagation and potting shed;



 additional parking.



Stage 3





44

 additional plant growing area, shaded and unshaded;



 additional parking for customers.



The development application submitted to the Development Consent Authority

related only to Stage 1 of the proposed development, it being the intention

of the applicants to proceed with the second and third stages as the

business grows.



The application referred to the subject land as having a total area of 5970m2. It

is envisaged that by the time the development has been completed,

approximately 4,000m2 of the site will be utilised for the nursery,

propagation, display, sales area, walk ways, access road and customer and

staff parking. The initial stage allows for the development of 540m2 of

covered and uncovered plant sales, storage space and associated

infrastructure to allow the business to operate.



The letter from Sharyn Innes Consultancies Pty Ltd also deals with other

aspects of the proposed development, including the proposed detached

dwelling, dependant relative unit, allotment details and parking and

relevant planning considerations in accordance with s 51 of the Planning

Act.



The proposed development has an unusual feature in that the subject site has

already been developed with a detached dwelling (the proposed caretaker‟s

residence) and a demountable structure (the proposed dependant relative

unit).



A Building Notice issued under Part 10, provision 2 of the Building Act was

served on the owner of the land. That notice required the owner to:



 cease occupancy immediately of the unauthorised work;



 obtain the required building permit in relation to the unauthorised

building work;



 do all that is required to comply with the building permit and obtain

the required occupancy permits for the buildin gs; or





45

 remove the unauthorised building works.



Subsequently, and following upon the decision of the Development Consent

Authority refusing consent to the proposed development, a Building Order

was served on the owner requiring, in accordance with ss 112 and 113 of

the Building Act, occupancy to cease immediately and the unauthorised

building works to be demolished or removed.



Further action under the Building Act was postponed pending resolution of the

present appeal.



The Tribunal has been provided with a copy of a letter dated 2 May 2008 from

Project Building Certifiers Pty Ltd (marked Exhibit 4) which states that if the

present appeal is allowed and a development permit is issued for the

caretaker‟s residence it would then be in a position to grant a bu ilding

permit in accordance with the NT Building Act and Regulations. 70



THE EFFECT OF AN ILLEGALLY COMMENCED DEVELOPMENT OR

USE ON THE APPROVAL OF A DEVELOPMENT APPLICATION



Can the Tribunal or the Development Consent Authority give consent to a

development in circumstances where there is an unauthorised dwelling or

construction on the land or an unauthorised use of the land?



Both the appellant and respondent made submissions in relation to this aspect

of the appeal.



The appellant submitted that “the presence of an unauthorised structure or

unauthorised use of a structure on land does not disentitle the

Development Consent Authority and/or the Tribunal from granting consent

to such structure or use where the structure or use applied for complies

71

with the relevant planning scheme”.







70

In this instance Project Building Certifiers Pty Ltd is the entity responsible for issuing, or refusing to issue, a building

permit in relation to the subject site, that function no longer being performed by the Building Branch of the Department

of Lands.

71

See [C1] of the appellant’s written submissions dated 28 March 2008. The appellant relied upon a number of

authorities in support of that proposition: Holland v Bankstown Municipal Council (1956) 2 LGRA 143; Kerslake v





46

The respondent drew the Tribunal‟s attention to a line of authority in Victoria to

the effect that “an applicant, who has illegally commenced a use or

development of land, should not be placed at a disadvantage when hi s

proposal is being considered: the proposal should be considered on its

merits and on the assumption that the unlawful use or development has not

commenced”. 72



I accept the Victorian line of authority as being equally applicable to illegal uses

or development under Northern Territory planning law. The proposed

development should be considered on its merits and as if the unauthorised

building work had not been carried out. This approach has two

consequences. The first is that, while the appellant is not disadvantaged by

having illegally developed the site, it is not rewarded for the unlawful

development or use of the land. 73 Secondly, the existing illegal

development or use can be “utilised to better understand, and assess, the

impact it would have if it was permitted”. 74









THE DETERMINATION OF THE APPEAL



A preliminary issue arises as to whether the appellant can have its appeal

determined on the basis that it abandon or forgo part of its development

application, namely the dependant relative unit.



The difficulty with the appellant‟s proposed course of action is that when the

Development Consent Authority considered the proposed use or









Ryde Municipal Council (1970) 19 LGRA 318; Russell v Brisbane City Council (1975) 31 LGRA 337; Russell v State

Planning Commission & Anor (1984) 53 LGRA 403; Woltersdorf v City of St Kilda (1979) 15 VPA 366; Tyler v

Melbourne and Metropolitan Board of Works (1969) VPA 65; Kouflidis & Jenquin Pty Ltd v Corporation of the City of

Salisbury (1982) 29 SASR 321; Windsor Homes(Promotions) Pty Ltd v Warringah Shire Council(1970) 19 LGRA 223;

Gigg v Waverly Municipal Council(1961) 6 LGRA 307; Alderdice v Shamus Pty Ltd &Anor (1980) 41 LGRA 403; Bor

& Anor v Sydney City Council (1957) 3 LGRA 1; Thomas v Melbourne &Metropolitan Board of Work {1971] VPA 17;

Smethurst v The State Planning Authority and the Council of the City of Tea Tree Gully[1972] S.A.P.R. 1.

72

See [3.7] of the respondent’s written submissions dated 11 April 2008. The authorities relied upon by the respondent

are Van Egmond v City of Knox, Bassett (1985) 3 PABR 249; Melbourne CC & Misale v Melbourne CC [2005] VCAT

2681; Knox CC v Tulcany Pty Ltd (2204) VSC 375; Jurkic v Manningham CC [2005] VCAT 1162.

73

See Jurkic v Manningham City Council (supra) at [11].





47

development it considered that proposed use or development in its entirety.

Indeed, the consent authority was required by s 51(b) of the Planning Act

to take into account any proposed amendments to the then current planning

scheme. At the time the consent authority considered the development

application there was a proposal to establish a new all embracing planning

scheme – the Northern Territory Planning Scheme. Clause 2.5(1) provided

that “in considering an application for consent for a proposed use or

development, the consent authority must consider the proposed use or

development in its entirety”, except in certain exceptions which do no t

apply in the present case. Proposed Clause 2.5(1) is in identical terms to

Clause 2.5(1) of the current Northern Territory Planning Scheme.



Furthermore, the Tribunal is obliged by s 130(2) of the Planning Act to take into

account the matters specified in s 51 of the Act. By reason of s 51(a) the

Tribunal must take into account any planning scheme that applies to the

subject land. Consequently, the Tribunal must, inter alia, take into account

the provisions of Clause 2.5(1) of the Northern Territory Planning Scheme.

The Tribunal must consider the development application, to which the

present appeal relates, in its entirety.



Finally, but not least, s 130(3) of the Planning Act requires the Tribunal to

determine an appeal in light of the proposed development considered by

the consent authority, and directs the Tribunal not to determine an appeal

to permit a proposed development if the development would be contrary to

a provision of an applicable planning scheme referred to in s 9(1)(a) of the

Act, or would be contrary to a provision of an applicable planning scheme

referred to in s 9(1)(b) of the Act. Section 130(3) implicitly requires the

Tribunal to determine the appeal on the basis of the entire development

application that was considered by the Development Consent Authority. It

is not possible for the Tribunal to consider only part of the proposed

development, that is, the proposed caretaker‟s residence and the plant

nursery.



74

See Jurkic v Manningham City Council (supra) at [11]. See also Knox City Council v Tulcany Pty Ltd (supra) at [13b]

where Osborn J made the observation that “unlawful commencement of a use (or construction of a development) may

enable a better appreciation of its impact on its context than plans or other descriptions of a proposal ever could”.





48

It is, however, arguable that the Tribunal would have the power to issue a

development permit subject to the removal of the dependant unit: see s

130(4) (c) of the Planning Act. That, of course, would depend upon the

Tribunal being satisfied that it was appropriate to give consent to the

balance of the proposed development. However, that seems to be a

different issue to the Tribunal considering something less than the

development application considered by the consent authority.



As the Tribunal did not receive submissions in relation to this issue I do not

propose to express a concluded view. In any event, it is not an issue that

needs to be resolved for the purposes of the present appeal.



As noted earlier, the appellant has applied for permission to develop:



(a) a plant nursery over several years;



(b) a detached dwelling/caretaker‟s residence ; and



(c) a dependant relative unit.



The Tribunal considers the proposed development to be contrary to a provision

or provisions of an applicable planning scheme referred to in s9(1)(a) of

the Planning Act, as well as a provision or provisions of an applicab le

planning scheme referred to in s 9(1)(b) of the Act, the applicable planning

scheme being the Northern Territory Planning Scheme.



The Tribunal agrees with the respondent‟s submission that “the appellant seeks

to develop and use the land in a manner tha t is qualitatively different to the

uses or developments contemplated by the NTPS in a Community Purpose

zone”. 75 In other words, the proposed development is contrary to provisions

of the Northern Territory Planning Scheme both in terms of statements of

policy in respect of the use or development of the subject land and

prohibitions or restrictions on the use or development of the land.



The proposed dependant relative unit is a prohibited use in the Community

Purpose zone. As noted earlier, the “special circ umstances” discretion





75

See [4.1] of the respondent’s written submissions dated 11 April 2008.





49

conferred by Clause 2.5(3) of the Scheme does not apply to prohibited

uses. Therefore, there is an absolute prohibition on dependant relative

units in the Community Purpose zone. Accordingly, the proposed

development is contrary to the Northern Territory Planning Scheme .



The respondent submitted that “the proposed development of a plant nursery is

not a community service or facility and therefore does not meet the

objectives of the community purposes zone and is thus contrary to the

NTPS”. 76



In making that submission the respondent relied upon the following observations

made in Alfred Hospital v City of Melbourne and Ors (1986) 27 APA 3:



Need in a town planning sense refers to community need, connoting the

idea that the wellbeing of a community or some part of it can be better

and more conveniently served by the provision of the proposed facility.

Need in the town planning sense is a relevant consideration in

determination of a planning appeal but is not an essential requirement.

Such a “need” for a commercial enterprise supplying goods in a

competitive market is to be distinguished from the “need” to be

considered in relation to a public facility.

In relation to a public facility community need is both an important and

relevant consideration.

In that context community need is the need for society, through its

government agencies, to provide for and supply public needs and

services which are inadequately catered for by the private sector. 77



The appellant took issue with the respondent‟s submissions relating to the

relationship between the provisions of community services and facil ities (as

referred to in Clause 5.21 of the Scheme) and the concept of “community

need”, claiming those submissions to be misconstrued:



There is no reference in the Northern Territory‟s Planning Scheme

Community Purposes zone to any “need“ for community services and

facilities. The application for such a test as referred to in the case of

Alfred Hospital v City of Melbourne & Anor (1986) 27 APA 3 is not

applicable to the Northern Territory Planning Scheme and/or its

interpretation of the “provision for community services and facilities”

within the Community Purposes zone, and ought to disregarded. What is

to be considered is whether or not a nursery is a community service and

facility… 78





76

See [4.4] of the respondent’s written submissions dated 11 April 2008.

77

See [2.19] of the respondent’s written submissions dated 11 April 2008.

78

See [B7] of the appellant’s written submissions dated 6 May 2008.





50

The appellant asserted that the proposed plant nursery had a community

purpose and therefore the discretion to allow that use (in accordance with

the relevant zoning table) should be exercised. It was submitted by the

appellant that the use of the land as a plant nursery would “provide a

service to the community by assisting the community to act responsibly

with respect to greening the environment, replacing carbon dioxides

produced and reducing the community‟s carbon foot print in this time of

environmental degradation and concern”. 79



The appellant went on to submit that even if the proposed plant nursery did not

“provide such a service to the community (which the appellant does not

accept) the zone is not solely to provide for community services and

facilities, but primarily, and as such, a privately owned nursery would still

not be contrary to the objects of the Northern Territory Planning Scheme”. 80



While I accept that the discussion of “community need” in Alfred Hospital v City

of Melbourne and Ors (supra) does not directly address what is

contemplated by the provision of community services and facilities, it offers

some guidance as to the nature of such services and facilities. The

provision of community services and facilities entails the provision by

individuals or organisation of services or facilities that benefit the

community – that is the public - or its institutions. They are services or

facilities that operate or enure for the good of the community or the general

public by satisfying some social need. A number of community services



and facilities readily come to mind : child care centres, community centres,

educational establishments and places of worship. All these satisfy some

community or social need and contribute to the well being of a community.



The Tribunal is of the opinion that the claimed community purpose to be served

by the proposed plant nursery is without substance and indeed spurious.

First, it is not the type of community purpose contemplated by the CP





79

See [B 20 (c)] and [F2] of the appellant’s written submissions dated 28 March 2008. The appellant also relied upon

that argument as satisfying “special circumstances” within the meaning of Clause 2.5(3) of the Scheme. That aspect is

discussed below at pp 62 and 65.

80

See [F3] of the respondent’s written submissions dated 28 March 2008.





51

zoning. The postulated community purpose is far too abstract and remote

from what the Scheme had in mind when establishing the CP zone.

Secondly, the appellant‟s claim is predicated upon there being a need, or

significant need, in the Darwin region to act in relation to the greening of

the environment, replacing carbon dioxides produced and reducing the

community‟s carbon foot print. There is no evidence of such a need.

Thirdly, it has not been demonstrated how the approval of the proposed

plant nursery would make any contribution, in real terms, to the

improvement of the environment.



The proposed nursery is primarily a commercial activity 81 rather than a

community service or facility and therefore is of little value to the

community. 82 The proposed use is a use which is not contemplated by the

CP zone. There is no mention of commercial development in either th e

objective or policy for the CP zone. 83 Like the consent authority, the

Tribunal considers the purely commercial nature of the development to be

in stark contrast with the CP zoning of the land , and approval of the

proposed development would go beyond a proper exercise of the

discretionary powers of the consent authority, having regard to the intent

and policy of the CP Zone. 84



The proposed plant nursery, if approved, would formalise the establishment of

commercial uses on land which is set aside by virtue of its CP zoning for

the provision of community services and facilities. 85



The Department of Planning and Infrastructure has advised that there is a

shortage of available CP land in Darwin 86 and the approval of a primarily

commercial use would frustrate the objectives of the zone. 87 The Tribunal



81

See the letter dated 26 April 2006 from Sharyn Innes Consultancies Pty Ltd to Kirrily Chambers Senior Planner DCA

in support of the development application.

82

See Agenda Report for the Darwin Consent Authority meeting held on 5 July 2006.

83

This observation is made in the Notice of Refusal and the s 128(2) Appeal Report of the respondent dated 27

November 2006.

84

See the Notice of Refusal and the s 128(2) Appeal Report of the respondent dated 27 November 2006.

85

See the Notice of Refusal and the s 128(2) Appeal Report dated 27 November 2006.

86

See the letter from the Department of Planning and Infrastructure to John Pinney, Chairman of the DCA dated 26

May 2006. Although the appellant challenges the assertion that there is a shortage of such land, I am prepared to accept

and act upon the departmental opinion. There is no cogent evidence to the contrary.

87

See the Agenda Report for the Darwin Consent Authority meeting held on 5 July 2006.





52

also considers that the use of the land for a non community purpose is

considered likely to further impinge on the availability of such land for

genuine community service and facility providers both now and into the

future. 88



The Tribunal also considers that there is an appreciable risk that if the proposed

development were approved, then the commercial use of the land could

raise the value of the land in the locality, thereby compromising a range of

current and future uses that provide services with marginal commercial

viability. 89



Section 51(g) of the Planning Act requires the merits of the proposed

development be considered. The appellant claims that the merits of the

development include the provision of an attractive gr een environment;

improved consumer choice by the addition of another nursery outlet; the

shade cloth structures will add to the streetscape; the detached dwelling

provides security for the property and the adjacent child care centre and

the dependant unit can be relocated when the need arises. 90 The Tribunal

agrees with the view taken by the Development Consent Authority that the

claimed merits are without substance. 91









The Tribunal rejects the appellant‟s submission that even if the proposed

development does not provide a community service or facility (either in the

manner suggested or otherwise) the development would still not be

contrary to the objects of the CP zoning because the provision of

community services and facilities is not the only purpose of the zoning.

Clause 5.21.1 of the Northern Territory Planning Scheme makes it clear

that with respect to the CP zone the provision of community services and

facilities is a matter of first importance, thereby rendering it a primary

purpose of the CP zoning. Clause 5.21.2 infers that a secondary purpose of





88

See the Notice of Refusal and the s 128(2) Appeal Report of the respondent dated 27 November 2006.

89

See the Agenda Report for the Darwin Consent Authority meeting held on 5 July 2006.

90

See the s 128(3) Appeal Report of the respondent dated 7 December 2006.

91

See the s 128(3) Appeal Report of the respondent dated 7 December 2006.





53

the zoning is to provide for residential accommodation subject to certain

restrictions. 92 No other purpose of the CP zone can be extracted from the

Scheme. The appellant has not identified any other secondary purpose or

purposes behind the CP zoning. In order for the appellant to succeed in its

submission it would have to show that the proposed development does not

conflict with the further objects of the CP zone as set out in Clause 5.21.2.

That aspect is dealt with next.



Although a caretaker‟s residence is a permitted use within the CP zone, it must

comply with all the provisions of the Scheme relating to that use or

development in the zone. A caretaker‟s residence must meet the standards

prescribed by Clauses 6.1, 6.5.1, 7.3 and 7.10.3.



The respondent made the following submission in relation to the proposed

caretaker‟s residence:



…the caretaker‟s residence occupies approximately 30 percent of the site

and approximately 20 percent more of the site than the pr oposed nursery.

The caretaker‟s residence is some 320 square metres in size (6 times the

maximum specified in clause 7.10.3 of the NTPS)



It is submitted that the size and domination of the caretaker‟s residence

on the site is not indicative of its being an cillary to the proposed nursery.

Its size so far exceeds the maximum specified in the NTPS that it must be

also considered to be contrary to clause 7.10.3. 93



The respondent also relied upon the following observation made by the

Victorian Administrative Appeals Tribunal in Hobbs and Ors v Bacchus

Marsh and Anor 34 APA 61:



In considering whether an ancillary use has grown too far, comparative

scale, degree of intensity and the continued existence of a close

association between the principal and ancillary uses will all be very

relevant issues. 94



The appellant made the following submission concerning the caretaker‟s

residence:







92

The words “to be in association with and ancillary to the primary use of the land”, as appear in Clause 5.21(2),

implies that residential accommodation is a secondary subordinate purpose or use to which the land might be put.

93

See the respondent’s written submissions dated 11 April 2008 at [4.9] – [4.10].

94

See [4.11] of the respondent’s written submissions dated 11 April 2008.





54

…the caretaker‟s residence is, whilst large, still ancillary to the intended

primary use, and the appellant is by the application, attempti ng to make

the use of the land in that regard lawful. The size of the caretaker‟s

residence when considered against the total area of the land and the

proposed development .. is not evidence of the caretaker‟s residence

being the primary use of the land and is evidence that the caretaker‟s

residence will be ancillary to the primary use of the land as a nursery. 95



With respect to the size of the caretaker‟s residence relative to the subject site,

the appellant submitted:



The land is 5790m2 of which about 4000 will be used for the nursery,

office, outlet and parking. That area was already cleared before the

appellant acquired the land and as such is ready for immediate

development of the nursery. 96



The appellant subsequently submitted as follows:



The respondent states in paragraph 4.9 of the respondent‟s submissions

that the caretaker‟s residence occupies approximately 30% of the site and

approximately 20% more of the site than the proposed nursery, where the

caretaker‟s residence is some 320 square metres in siz e. The total area

of the land is 5970 square metres (and in this regard we note the error in

paragraph (j) of Part F of the appellant‟s submissions) and as such, a

residence of some 320 square metres is approximately 5.4% of the site.

The nursery, which is proposed to occupy approximately 4000 square

metres of the site equates to approximately 67% of the site and, as such,

the caretaker‟s residence cannot be said to dominate the site and is, as

previously submitted, ancillary to the primary purpose of a nur sery. 97









It is clear that the proposed caretaker‟s residence does not comply with the

requirements set out in Clause 7.10.3.



The floor area of the caretaker‟s residence far exceeds the prescribed maximum

floor area of 50m2: see Clause 7.10.3(2)(a). The oversized caretaker‟s

residence also conflicts with the purpose or objective of Clause 7.10.3(1),

which is to ensure that a caretaker‟s residence is not the primary use of the

land and the caretaker‟s residential use does not prejudice the use of the

site or adjoining land in accordance with its zoning.







95

See [F4] of the appellant’s written submissions dated 28 March 2008.

96

See [F12(j)] of the appellant’s written submissions dated 28 March 2008.

97

See [D5] of the appellant’s written submissions dated 6 May 2008.





55

Despite the submissions made on behalf of the appellant, the proposed

caretaker‟s residence cannot be properly considered to be ancillary to the

proposed use of the land as a plant nursery, and is therefore i n direct

conflict with one of the purposes of CP zoning, namely that development of

residential accommodation is only to be in association with and ancillary to

the primary use of the land. In the opinion of the Tribunal, the residential

use of the land in the form of the caretaker‟s residence prejudices the use

of the site or adjoining land in accordance with the CP zoning.



“Caretaker‟s residence” is defined as meaning “a dwelling which is ancillary to

the lawful use of the land on which it is erected and which is used by the

caretaker of the land”. The effect of this definition is that the caretaker‟s

residence must not only be ancillary to the primary purpose of the land but

to a lawful primary purpose, that is, a purpose which accords with the

objects and intent of the CP zoning. The threshold for approving the

caretaker‟s residence has not been met in that the proposed primary use is

inconsistent with the purpose of the CP zoning.



A further difficulty with the appellant‟s submissions in relation to the

proportionate relationship of the proposed residential use to the proposed

use of the land as a nursery is that those submissions are predicated on

stages 2 and 3 of the development proceeding. In considering the

appellant‟s development application, the Development Consent Authority

was understandably cautious, bearing in mind that the development

application only pertains to stage 1 of the proposed development; and it is

by no means certain that stages 2 and 3 of the development will proceed,

as the completion of those two further stages depends upon variables such

as the rate of growth of the nursery business. The Tribunal is equally

cautious.



The concerns of the Development Consent Authority are sprinkled throughout

the respondent‟s Appeal Report dated 27 November 2006:



The detached dwelling is currently sited and occupied on the land and is

clearly not ancillary to the operation of a nursery which is not yet

established. The dominance of the residential component of the







56

development which occupies approximately 30% of the overall site area

and approximately 20% more of the site than the nursery to be developed

in Stage 1, cannot be considered to be ancillary to the proposed

nursery. 98



………………………………………………………………………………….



The block ratios outlined in the appellant ‟s submission do not address the

concerns of the Authority in relation to the inconsistency of the proposed

use with CP zone purposes nor the inappropriateness of the predominant

residential component. It is noted that if only Stage 1 of the development

were to proceed, based on the appellant‟s figures, the residential

component would comprise 45% of the development extent.



……………………………………………………………………………………



The residential component cannot be considered as “ancillary” as it

occupies 1/3 of the site area and is a primary use of the land and there is

no clear nexus to its scale and the need for a caretaker to ensure

appropriate operation of a nursery.



If stages 2 and 3 do not proceed the area of land to be utilised for the

proposed nursery would be disproportionately small (approximately

495m2) compared to that set aside for residential use (approximately

1728m2). 99 The establishment of Stage 1 only would not satisfy the

definition of the caretaker‟s residence as being an ancillary use and

development.









A similar view is expressed in the respondent‟s Appeal report dated 7 December

2006:



…the residential component of the development especially compared with

balance of the land area in stage 1 available for nursery activities cannot

reasonably be described as being an “ancillary” use.



Whether or not a particular use is ancillary to a primary use is a matter of fact

and degree, and the appellant‟s submissions are to be evaluated according

to that methodology.







98

It is worth noting that in its letter to the Lands Planning and Mining Tribunal dated 28 August 2006 the appellant

agreed, in general terms, on the percentage of the total area occupied by the residential component of stage 1 of the

development. See also the appellant’s letter to the Tribunal dated 27 November 2006.

99

See also the Agenda Report for the Development Consent Authority meeting held on 5 July 2006:

The staging of the development of the primary use of the land is not considered appropriate as the nursery component of

Stage 1 (540m2 out of total area of 5970m2) is considered too small as the primary use of the land compared to that taken up

by the “ancillary” residential component (approximately 1782m2) which is also proposed to be developed in Stage 1.





57

In arguing that the residential component of the proposed development is

ancillary to the primary use of the land the appellants rely heavily, if not

exclusively, upon the projected development of the nursery beyond its

presently short term disproportionately small size and the eventual removal

of the dependant relative unit from the site with a view to reducing the

residential component of the development.



The inherent difficulty with the appellant‟s argument is that the development

application lodged with the Development Consent Authority only relates to

stage 1 of a three stage development. Having received an application in

those terms, the consent authority – and now the Tribunal – is being asked

to take on trust that stages 2 and 3 of the proposed development will in fact

proceed. However, the expansion of the nursery appears to be linked to the

growth of the nursery business. What if the business does not grow to the

expectations of the appellant? Will the development still proceed to the

next two stages? It is by no means certain that the nursery will be fu lly

developed as proposed by the appellants. The problem is that the

appellant is not necessarily committed to proceeding with stages 2 and 3 of

the proposed development.



When one reads the letter dated 28 August 2006 from the appellant to the

Lands Planning and Mining Tribunal – in particular the penultimate and

final paragraphs of page 1 of that correspondence – one is left with the

impression that the proposed nursery was an afterthought in an attempt to

bring the residential development and use of the land into line with the

previous planning scheme. 100



The appellant‟s indication of its intention to ultimately remove the pr oposed

dependant relative unit from the site does not assist the appellant at all.

The simple fact is that a dependant unit is a proh ibited use within the CP

zone and to allow such a building to remain on the site - albeit on a short

term basis - would be contrary to the Northern Territory Planning Scheme,

in particular the CP zoning.



100

See the respondent’s Appeal report dated 7 December 2006, where it is considered that the use as a nursery was

applied for as a convenience to legitimise the establishment of the detached dwelling.





58

However, even if the dependant relative unit were removed from the site this

very moment the Tribunal would still consider the caretaker‟s residence not

to be an ancillary use, as contemplated by the CP zoning.



The fact that the proposed caretaker‟s residence cannot properly be considered

to be an ancillary use, in light of the development application, is not the

only problem with the residential component of the proposed development.

There is a more fundamental problem. The proposed caretaker‟s residence

“goes well beyond the type of accommodation generally associated with

accommodation for caretakers”. 101 It is a large imposing residence which

betrays its claim to be a caretaker‟s residence. It is without question a

dwelling outside the contemplation of the CP zone and the Northern

Territory Planning Scheme.



The appellant submitted that notwithstanding non compliance with the

provisions of Clause 7.10. 3(2) (a) the caretaker‟s residence could still be

approved in accordance with Clause 7.10.3(3) of the Scheme, that is to

say, it could be approved on the basis that it is appropriate to the site

having regard to potential impact of the residence on adjoining and nearby

property.



The appellant submitted that “the Tribunal can be satisfied that the caretaker‟s

residence is appropriate to the site as the amenity of the adjoining

properties (comprising offices (CSIRO, Parkes and Wildlife and Summer

Linguistics), a child care centre and many other residences) will not be

affected by one residence”. 102



As to the potential impact of the proposed development on the existin g and

future amenity of the area in which the land is situated, 103 the appellant

submitted as follows:



The land is closely surrounded by the CSIRO research facility, the Police

Station, the Summer Institute of Linguistics, which in the main are not

residential (although the Summer Institute of Linguistics has a substantial





101

See the Agenda report for the Development Consent Authority meeting held on 5 July 2006.

102

See [F6] of the appellant’s written submissions dated 28 March 2008.

103

See s 51(n) of the Planning Act.





59

residential component), and as such the nursery will have minimal impact

on the amenity of the area, and in fact, will enhance it with its green

aspect. Next door to the land is a child care centre and whilst there may

be some concern as to the use of chemicals, the proposed plant area is

at the western boundary between the longest distance from the childcare

centre) and the usage of such chemicals will be minimal. Indeed, any

usage will be done late in the day when the children are not at the centre

to allow for maximum effect of such chemicals, thus reducing the need for

excess usage. 104



The Tribunal is not satisfied that the proposed caretaker‟s residence is

appropriate to the site having regard to the potential impact of the

residence on adjoining and nearby property.



By dint of its sheer size, the proposed caretaker‟s residence would be

inappropriate to the site which is within the CP zone. As acknowledged by

the appellant, there is limited residential development within the vicini ty of

the proposed development. The proposed development, if approved, would

formalise the establishment of private residential uses on land zoned CP. 105

That would not only be inconsistent with the purpose or obje ctive of the CP

zoning but may well create a bad, or at least undesirable, precedent. If

consent were to be given to the proposed development, owners or

developers of other land in the vicinity of the subject site or within the CP

zone might have an expectation that they will have the same development

rights.



Planning authorities need to proceed with caution: 106



Planning authorities must also bear in mind that the granting of a

particular application may make it more difficult for them as a matter of

practical politics to refuse other similar applications, and it could certainly

engender such applications. Planning permission has in fact repeatedly

been refused because of the risk of constituting a precedent…



As Else –Mitchell J has pointed out:



The grant of development consent for a building which is out of

character with existing development will give rise to pressures

and generate a demand for further consents to similar

development, often to a point where the responsible authority is







104

See [F12(n)] of the appellant’s written submissions dated 28 March 2008.

105

See the respondent’s Appeal Report dated 27 November 2006.

106

D.J Gifford and K.H Gifford Town Planning Law and Practice at [58-128].





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powerless to call a halt to the erosion of the amenity of the

107

neighbourhood until it has been entirely destroyed.



The primary concern is that if the proposed development were approved, it may

create a precedent which may increase the risk of progressively

undermining the planning purposes or objectives of the CP zone.



But even if the proposed caretaker‟s residence were considered to be

appropriate to the site (which is not accepted), then that would not ensure

approval of the proposed development. The purely commercial natur e of

the proposed development – that is the nursery – is considered to be in

such stark contrast with the purpose of the CP zoning as to warrant

consent to the proposed development being refused. There is also the

matter of the dependant unit, which is a p rohibited use within the CP zone.



It is not strictly necessary to consider whether there are “special circumstances”

justifying consent to the proposed development as the Tribunal has

concluded that the “special circumstances” discretion does not extend to

development applications which include a prohibited use or development.

However, in the event that the Tribunal has erred in reaching that

conclusion and it is, in fact, open to the consent authority to give consent,

in accordance with Clause 2.5(3) of the Scheme, to the proposed

development, notwithstanding that it includes a dependant unit, it is

necessary to consider whether that discretion should have been exercised

in favour of the appellant.



It is also necessary to consider the “special circumstances ” discretion in the

event that the Tribunal has erred in not permitting the appellant to abandon

that part of the development application that relates to the dependant

relative unit or in the event that it was open to the Tribunal to issue a

development permit on being satisfied that there were “special

circumstances” justifying consent to the nursery and the caretaker‟s

residence, but conditional upon the dependant unit being removed from the

site forthwith.





107

Austin Construction Co (Aust) Pty Ltd v North Sydney MC (1967) 14 LGRA 154 at 162-3.





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It was decided in Parker v Minister for Planning and Lands (supra) at [172]-

[180] that although there is no actual onus on an appellant to establish

“special circumstances” within the meaning of Clause 2.5(3), in practical

terms, if an applicant or appellant wishes either the consent authority or

Tribunal to consider exercising its discretion pursuant to that clause, then it

should draw the consent authority‟s or the Tribunal‟s attention to what he,

she or it contends constitutes “special circumstances”.



The appellant sought to rely upon the following, collectively and individually, as

constituting “special circumstances” justifying the giving of consent to the

proposed development:



 The change in the planning law between the date of the

determination of the consent authority and the determination of the

appeal; 108



 Due to the change in planning law, the inability of the appellant to

rely upon prior determinations of the Development Consent

Authority under the repealed planning scheme as constituting

precedent; 109



 The development of the subject land as a nurs ery should be

encouraged because “in the current national and international

concern with respect to the degradation of the environment and

potential ramifications thereof, the development of a nursery is a

community service and facility that assists the c ommunity (and

developers) to act responsibly with respect to greening the

environment, replacing carbon dioxides produced and reducing the

community‟s carbon foot print; 110

 The caretaker‟s residence currently situated on the subject land is a

building of historical significance, being one of Darwin‟s oldest

buildings (Commonwealth circa 1950); and therefore the size of the

structure should be considered in light of the historical significance

of the building and not by reference to numbers alone; 111



 In the event the proposed development is not approved, significant

hardship will be caused to the applicant/appellant in that it will be

forced to demolish or relocate the caretaker‟s residence at great

cost and with possible “dire ramifications to the appellant wit h its

financiers who hold a mortgage over the subject land; 112



108

See [B20 (a)] of the appellant’s written submissions dated 28 March 2008.

109

See [20B (b)] of the appellant’s written submissions dated 28 March 2008.

110

See [20B (c)] of the appellant’s written submissions dated 28 March 2008.

111

See [20B (d)] of the appellant’s written submissions dated 28 March 2008.

112

See [20B (e)] of the appellant’s written submissions dated 28 March 2008.





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Whether any of the above circumstances relied upon by the appellant amount to

“special circumstances” depends upon the meaning to be accorded to

“special circumstances” within the context of Cla use 2.5(3) of the Scheme.



As pointed out by the Tribunal in Parker v Minister for Planning and Lands

(supra) at [177], it is neither necessary nor desirable to define “special

circumstances”. What constitutes “special circumstances” is very much

context dependant, and it is at the discretion of the decision maker to

determine what constitutes “special circumstances‟ in a particular case.

However, the relevant authorities discussed in Parker v Minister for

Planning and Lands (supra) indicate that in order for circumstances to

amount to “special circumstances”, those circumstances would have to go

beyond the ordinary run of cases and be unusual or uncommon. 113



The appellant submitted that “such special circumstances are not limited to

those surrounding the proposed development and/or requirements of the

legislative planning scheme (currently the Northern Territory Planning

Scheme) and may include events which render something unfair or

inappropriate”. 114



In my opinion, Clause 2.5(3) contemplates that “special circ umstances” must be

intrinsically related to the proposed development. It must go to the merits

of the proposed development. That is borne out by the wording of Clause

2.5(3). The tenor of the clause is that is where the proposed development

of land does not conform to the standards set out in Parts 4 or 5 of the

Scheme the consent authority may still give consent to the proposed

development provided it is satisfied that there are “special circumstances”

justifying the giving of such consent. In other words, there must be “special

circumstances” justifying the approval of the proposed development,

notwithstanding its failure to meet the prescribed planning standards.









113

See Parker v Minister for Planning and Lands (supra) at [177].

114

See [B19] of the appellant’s written submissions dated 28 March 2008. In support of its submission the appellant

relied upon R v Cathy Deland &Ors ex parte Billy Jabarnadi Willie(1996) 6 NTR 72





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I do not consider that the change in the law amounts to “special circumstances”

within the context of Clause 2.5(3) of the Northern Territory Planning

Scheme. Although a significant occurrence , and one which mandates the

Tribunal to hear and determine the present appeal in accordance with the

recent changes in planning law in the Northern Territor y, it is a

circumstance that is extraneous to the proposed development of the land

and which does not relate to the merits of that proposed development. The

changes in the law merely affect the criteria by which the development

application is to be assessed.



The “special circumstances” discretion conferred by Clause 2.5(3) is in fact a

product of the recent significant changes to planning law in the Northern

Territory. As to what circumstances amount to “special circumstances”

must be considered within the context of Clause 2.5(3) and the Northern

Territory Planning Scheme. It is not legitimate to use the change in the law

as itself constituting “special circumstances” within the context of Clause

2.5(3) and the overall planning scheme.



Furthermore, there is nothing really unusual about the change in the law. The

change in the law was being proposed when the Development Consent

Authority considered the appellant‟s development application. Indeed, the

consent authority was obliged to take into account the p roposed

amendments to the planning scheme and took into account the Draft

Northern Territory Planning Scheme , which came into effect as the

Northern Territory Planning Scheme on 1 February 2007.



Similarly, the appellant‟s contention that “special circumsta nces” have been

engendered by it having been deprived of the benefit of the precedent

argument by the changes in the law must be rejected.



The role of precedent in planning law was discussed in Parker v Minister for

Planning and Lands (supra) at [213] – [218]. It is clear from the discussion

in that case of the various authorities that precedent is a relevant









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consideration in planning matters, but is in no way binding upon a decision

maker. Each application has to be considered on its own merits. 115



Having said that, the fact that the appellant cannot now draw upon precedents

established under the repealed planning scheme because of the

introduction of the Northern Territory Planning Scheme (with respect to

which there is little, if no, precedent) is a direct consequence of the change

in the law. Again, the appellant can hardly complain because the primary

decision maker was obliged to take into account the proposed new planning

scheme, for which there were absolutely no precedents.



In my view, there is nothing unfair about the circumstances leading to the

changes in the law that would justify those circumstances being treated

“special circumstances” within the context of Clause 2.5(3) of the Scheme.



The appellant‟s argument that the contribution to be made by the nursery to the

“greening” of the environment, the replacement of carbon dioxides and the

reduction of the “community‟s carbon imprint” gives rise to “special

circumstances” justifying the giving of consent to the proposed

development is not compelling: it is both fanciful and spurious.



I do not consider the historical significance of the proposed caretaker‟s

residence to constitute “special circumstances” within the meaning of

Clause 2.5(3) of the Scheme. Putting to one side the heritage of the



building, 116 the simple fact is that the building was brought onto the subject

land without due authorisation and is an illegal structure.



If the Tribunal were to treat the presence of a historically significant building on

the site as amounting to “special circumstances” justifying consent, then it

would inevitably be taking into account the commencement of an unlawful







115

D.J Gifford and K.H Gifford n 106 at [58-128].

116

In its written submissions dated 11 April 2008 at [2.21] – [2.23] the respondent points out the following:

The appellant has not previously relied on the dwelling’s alleged historical significance and has not either previously or

currently provided any evidence to support this assertion.

The appellant has not provided any evidence that the building has been restored, renovated or otherwise conducted works that

go towards preservation of any alleged heritage value nor that the building bears any resemblance to its original architecture.





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use or development on the land, when in fact the proper approach is to

proceed on the basis that such unlawful use or development has not been

carried out. In my opinion, if the circumstances relied upon the appellant

were to be accepted by the Tribunal as “special circumstances”, then the

appellant would, in effect, be rewarded for unlawfully bringing the building

onto the subject site. Furthermore, if those circumstances were treated as

“special circumstances”, then, in the words of the respondent, “that would

be an incentive to potential applicants to act unlawfully and would

undermine the entire planning process”. 117



Furthermore, if the Tribunal were to find “special circumstances” justifying

consent on the basis contended for by the appellant, the Tribunal would be

issuing a development permit which retrospectively validated an unlawful

use or development – a power that the Tribunal does not posses s.



With respect to the argument that economic hardship to the appellant

constitutes “special circumstances in this case, the respondent made the

following submission:



The alleged hardship is one that has been brought about by the

appellant‟s own actions. In other words, the appellant seeks to establish a

“special” position for applicants who use or develop land either knowingly

(as in his case) or ignorantly, without approval, thereby putting

themselves in a position where they jeopardise their economic int erest in

the use or development, for the very reason that the use or development

may not be subsequently sanctioned.



Such a finding would be an incentive to applicants generally to use or

develop land without first obtaining approval and then seek to make

applications departing from zoning standards. 118



Although I am unable to find that the appellant acted knowingly and willingly in

breach of the law, the fact is that the appellant has been the author of its

own predicament.









Any alleged significance of the building was arguably attached to the building while it remained in situ and the removal from

its original site has deprived it of its significance. If the building has architectural significance independent of its site then its

removal from its current site will not impact upon that significance.

117

See [3.9] of the respondent’s written submissions dated 11 April 2008.

118

See [2.24] – [2.26] of the respondent’s written submissions dated 11 April 2008.





66

The appellant acknowledges that the building works were commenced before

planning permission was sought. The appellant claims that that was the

result of “a misunderstanding between the proponent and the certifier who

issued the initial permit relating to the building”. 119 However, that

misunderstanding has not been explained to the satisfaction of either the

consent authority or the Tribunal.



The letter dated 28 August 2006 from the appellant to the Registrar of the Lands

Planning and Mining Tribunal is particularly telling. Part of that le tter reads

as follows:



…we were requested to put in a submission to cover the future

development of the land by the certifier and staff of the Planning branch.

This was as a result of moving a detached dwelling on to the site, I was

told, at that time, that the remainder of the land had to be developed in

keeping with the Planning Scheme. Initial discussions centred around a

unit development, which was inappropriate for the site and recognised as

such. There are 27 permitted uses that are allowed without co nsent and

11 uses for this land that require consent.



Given one owner‟s passion for orchards and her success at the local

markets, and the other owner‟s background and networks with the

building trade, they decided to apply for the development of the remai ning

site as a nursery – a consented use with “caretaker‟s/owners dwelling”

being ancillary but necessary component of the development.



The contents of that letter set the general tone for what can only be described

as a “planning disaster”. In my view, th e circumstances surrounding the

bringing of the caretaker‟s residence onto the site without building or

planning permission establish at least a high degree of negligence on the

part of the appellant – if not recklessness. The circumstances do not

demonstrate the actions of an ordinary prudent landowner. It is fair to say

that the appellant has brought about any hardship that it is likely to suffer if

approval is not given to the proposed development.



Although personal hardship can be a relevant factor in p lanning cases, 120 it is

important to consider its genesis. In the present case, I do not consider the

potential hardship to the appellant to constitute “special circumstances”,

given the circumstances engendering that hardship.





119

See the letter dated 19 June 2006 from Sharyn Innes Consultancies Pty Ltd to George Maley Town Planner.



67

Finally, assuming that the discretion extends to prohibited uses, the appellant

has not identified any “special circumstances” justifying the giving of

consent to the dependant unit.



The Tribunal finds that there are no “special circumstances” justifying the giving

of consent to the proposed development constituted by either the nursery,

the caretaker‟s residence and the dependant unit or the nursery plus the

caretaker‟s residence only.



Accordingly, the Tribunal is not satisfied that the Development Consent

Authority manifestly failed to take into account a matter referred to in s 51

of the Planning Act or the determination of the consent authority resulted in

a planning outcome manifestly contrary to a provision of a planning

scheme. To the contrary, the Tribunal is satisfied that if th e proposed

development were to be permitted it would be contrary to a provision of an

applicable planning scheme referred to in ss 9(1)(a) and (b) of the Planning

Act.



The appeal is dismissed, and the Tribunal confirms the determination of the

Development Consent Authority.



By way of postscript, the Tribunal would have reached the same conclusion had

the appeal proceeded as an appeal in the strict sense, bearing in mind that

the proposed amendments to the planning scheme, which were required to

be taken into account by the consent authority, have substantially found

their way into the Northern Territory Planning Scheme which became law

on 1 February 2007.



I will hear the parties in relation to any ancillary matters .



Dated this 21 day of July 2008







………………………………….





120

See for example, Russell v State Planning Commission &Anor (1984) 53 LGRA 403 per Matherson J at 408 -409.





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Dr John Allan Lowndes



Chairperson of the Lands Planning and Mining Tribunal









69