CITATION:Earl James & Associates v Development Consent Authority NT LMT 66

PARTIES:EARL JAMES & ASSOCIATES

ABN 30 112 988 625

v

development consent authority

TITLE OF COURTLANDS AND MINING TRIBUNAL

JURISDICTION:LANDS AND MINING TRIBUNAL ACT

FILE NO(s):LMT-66-2003-P (20305397)

DELIVERED ON:20 June 2003

DELIVERED AT:DARWIN

HEARING DATE(s):Not applicable

DECISION OF:D LOADMAN, CHAIRPERSON

CATCHWORDS:

NON-CONFORMING USE – BLOCK OF FLATS CONSTRUCTED PRIOR TO PROMULGATION OF PLANNING ACT – WHETHER THE TRIBUNAL HAS JURISDICTION TO MAKE DECLARATORY FINDINGS - WHETHER STRATA TITLE APPLICATION CONSTITUTES ‘DEVELOPMENT’ – WHETHER THERE IS A NEED OR ENTITLEMENT TO OBTAIN A DEVELOPMENT PERMIT IN RESPECT OF A PARKING LAYOUT NONCONFORMING IN RELATION TO DESIGN, CONFIGURATION AND NUMBER

Lands and Mining Tribunal Act NT

Planning Act NT

REPRESENTATION:

Appellant:June D’Rozario & Associates

Respondent:self

Judgment ID number:NT LMT 66

Number of paragraphs:51

IN THE lands and mining tribunal

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. LMT-66 - 2003-P (20305397)

BETWEEN:

EARL JAMES & ASSOCIATES

ABN 30 112 988 625

Appellant

AND:

DEVELOPMENT CONSENT AUTHORITY

Respondent

DECISION

(Delivered 20 June 2003)

Mr David LOADMAN, CHAIRPERSON

HISTORY

  1. On 24 January 2003 the appellants applied to the Development Consent Authority for a permit for the existing development on Lot 1853 Town of Nightcliff. The details of the application for the development permit are as follows:

“Description of Development/Proposal: To confirm the existing use of the site in order to facilitate unit titling
Variations Sought: Waiver of the number of car parking places”.

  1. On 12 March 2003 the Development Consent Authority issued a Notice of Refusal (“the Refusal”) for the reasons set out in a Statement of Reasons. Those Reasons are set out hereunder:-

“1. Development consent is not granted as the existing 10 flats in two storeys were constructed in 1968 when development consent was not required and the flats may continue to be used without consent in accordance with Part 4 of the Planning Act 1999.

2. The application does not comply with clause 21.1 (Parking requirements) of Darwin Town Plan 1990 (as amended) for the provision of 10 car parking bays on-site instead of 20, which is inconsistent with the objective of the clause to provide sufficient off-street parking to service the eon site development.

3. The application does not comply with clause 21.5 (Parking Layout) of the Darwin Town Plan 1990 (as amended) for a car parking layout that does not provide minimal driveway widths for vehicle manouevring or allow vehicles to exit the site in a forward gear and does not provide 3 metre setback from the street, which is inconsistent with the objective of the clause to ensure that a parking area is constructed to a standard and so located as will facilitate its convenient use”.

  1. On 9 April 2003 the appellants lodged a Notice of Appeal at the Lands and Mining Tribunal pursuant to section 111 of the Planning Act. The text of the Notice of Appeal is set out hereunder:

NOTICE OF APPEAL

RELEVANT BACKGROUND

  1. The Appellant applied to the Development Consent Authority for a permit for the existing development on Lot 1853 Town of Nightcliff.
  2. Lot 1853 is zoned R3 under the Darwin Town Plan. A 2-storey building containing 10 dwelling units was constructed on the site in 1968, before the promulgation of planning legislation requiring consent, and development provisions.
  3. The present owner wishes to have the dwelling units titled under the Unit Titles Act and sought a permit for the existing development to comply with one of the requirements of section 16 of the Unit Titles Act. The relevant requirement is that a building must conform to applicable development provisions under the Planning Act.
  4. As the existing development provides 10 car parking spaces, whereas the current development provisions require 20 spaces, the application also sought waiver of the number of car parking spaces required by the Darwin Town Plan. A copy of the application is at Annexure 1.
  5. Aside from the parking layout and number of spaces, and a minor shortfall of 0.2 m in the side setbacks of the existing building (which is not at issue), Development Assessment Services assessed the development as complying with the provisions of the Darwin Town Plan. A copy of the DAS assessment is at Annexure 2
  6. The only objection to the application that the Applicant was made aware of was the submission of Darwin City Council, a copy of which is at Annexure 3.
  7. The Authority considered the application on 5 March 2003, and issued Notice of Refusal NR03/0007 dated 12 March 2003. A copy of Notice of Refusal NR03/0007 is at Annexure 4.
  8. Pursuant to s 111(1) of the Planning Act, the Applicant appeals against the Authority's determination to refuse consent to the application.

GROUNDS OF THE APPEAL

  1. The Authority is wrong in refusing the application on the basis that the development does not require consent to continue because the authorisation conferred by Part 4 of the Planning Act does not disentitle the Applicant to a permit under Part 5 of the Act, and does not relieve the Authority of its obligation to consider the application on its merits.
  2. The Authority is wrong in refusing the application on the basis that it does not comply with clause 21.1 of the Darwin Town Plan because -
  1. it is an invalid exercise of the discretionary power contained in that clause to reject the application because the number of parking spaces does not comply with the table to the clause.
  2. the application for waiver required the Authority to consider the matters set out in clause 21.2, and none of those matters is advanced as a reason for refusal.
  3. the Authority should have given weight to the circumstance that the parking provision has adequately serviced the development since it was established.
  4. that the number of parking spaces does not meet current day requirements has not been shown to have any adverse consequence.
  5. unit titling the development has not been shown to produce any adverse consequence with respect to the number of parking spaces.
  1. The Authority is wrong in refusing the application on the basis that it does not comply with clause 21.5 of the Darwin Town Plan because -
  1. the Authority should have given weight to the circumstance that the parking area has operated satisfactorily since the development was established.
  2. that the layout of the parking area does not comply with present day requirements has not been shown to have any adverse consequence.
  3. unit titling the development has not been shown to produce any adverse consequence with respect to the layout of the parking area.

JUNE D’ROZARIO

Agent for the Appellant

Date : Wednesday, 9 April 2003

  1. Pursuant to section 121 of the Planning Act, a mediation conference was fixed by this Tribunal to commence on 28 April 2003.
  2. On 9 May 2003, a Notice under section 127 PA was received from the appellants advising that a compromise or settlement had not been reached. Further that the appellants wished the matter to be determined by the Tribunal. The parties were accordingly instructed by the Tribunal to provide written submissions as directed.

THE SUBMISSIONS

  1. On 23 May 2003 the Tribunal received the appellant’s submissions (“appellant’s submissions”), the relevant material therein being set out below:

LMT-66-2003-P(20305397)

SECTION 128(1) - APPELLANT’S SUBMISSION

APPELLANT’S ARGUMENT IN RELATION TO THE GROUNDS OF APPEAL

First Ground of Appeal

  1. The fact that the existing development on the site is authorised under Part 4 of the Planning Act does not disentitle the owner to a permit under Part 5 of the Act. On the contrary, the fact that the existing development is already authorised under the Planning Act is a factor in favour of granting a development permit under Part 5 of the Act, particularly as granting the permit will not affect existing neighbourhood amenity. If, as the Authority concedes in Reason for Refusal 1, the flats may continue without consent, there can be no possible adverse consequence to neighbourhood amenity from granting consent.
  2. The Appellant says the Authority had an obligation to consider the application on its merits. The Authority evidently considered the parking issues to be negative factors, but there are also positive factors. These include: first, the circumstance that the development is already authorised by the Planning Act.
  3. Secondly, the application did not seek to alter the use in any way, so the continued use on the site does not affect existing neighbourhood amenity.
  4. Thirdly, only issues in dispute are the number of parking spaces and the layout of the parking area, and the current development provisions relating to these issues (clauses 21.1 and 21.5 of the Darwin Town Plan) are able to be waived. So, granting consent to the application will neither worsen or improve the parking situation, and consequently, there will be no effect on existing neighbourhood amenity.. The Appellant's arguments in relation to clauses 21.1 and 21.5 are detailed under the second and third grounds of appeal.
  5. Fourthly, there were no objections to the proposal from any member of the public. Therefore, whatever the Authority considers are the defects of the existing development, no one claims to be adversely affected by it.
  6. Fifth, the application was made only to facilitate unit titling of the existing dwelling units. Unit titling the building will affect only the manner in which the real property interests in the property are distributed; it will not alter the physical character of the development. Therefore, a change in the distribution of the real property interests in the building will have no effect on the amenity of the neighbourhood.
  7. Sixth, and related to the preceding point, the application does not involve development, as that term is defined in the Planning Act. In the Planning Act, "development" means "an activity that involves -
  1. the establishment of, or a change in, the use of the land;
  2. the subdivision or consolidation of the land; or
  3. carrying out works on or in relation to the land.
  1. A subdivision under the Unit Titles Act is excluded from the definition of "subdivision" by s 5 of the Planning Act. The term "works" is defined in the Planning Act to include various activities, all of which affect the physical character of the land. The application did not involve any development beyond that which is currently on the site, and there will be no change of use or subdivision. Therefore, approval of the application will not affect either the physical character of the existing development or the amenity of the neighbourhood.
  2. In addition, the Appellant says that, where no new or additional actual development is involved, the scheme of the Planning Act suggests that the Act is intended to operate prospectively, not retrospectively. In support of this submission, the Appellant invites attention to ss 33 to 35 of the Planning Act. In essence, ss 33 to 35 protect existing uses and works even if they would not be lawful under subsequent amendments to development provisions. The Authority states in Reason for Refusal 1 that the existing development may continue without consent under these provisions. However, these provisions do more than simply tolerate existing use and development; by explicit words, they also deem that the existing use and development does not contravene the development provisions. Therefore, the Authority's approach of assessing the application against the currently applicable development provisions in search of any that the application may not meet is inappropriate and undermines the explicit direction of the legislation. The Appellant also says that, in its consideration of s 51(a), the Authority should have taken into account that the existing development is deemed by Part 4 of the Planning Act not to be in contravention of the Planning Scheme.

Second Ground of Appeal

  1. The application sought a waiver of clause 21.1 of the Darwin Town Plan, which relates to the number of parking spaces to be provided for various classes of development. It is an invalid exercise of the discretionary power contained in clause 21.1 to reject the application simply because it does not comply with that clause, because the fact that the development does not comply is the very reason for applying for the waiver.
  2. The Appellant does not agree with the Authority's Reason for Refusal 2 wherein it is stated that the provision of 10 parking spaces instead of 20 spaces is inconsistent with the objective of clause 21.1 to provide sufficient off-street parking to service the on site development. The Authority cannot validly conclude that the failure to provide 20 spaces means that the application is inconsistent with the objective of the clause. First, clause 21.1 is clearly intended to apply prospectively, not retrospectively. This is plain from the objective statement : "The objective of this clause is to ensure that developments provide sufficient off-street car parking to service the proposed use." (Appellant's emphasis). The use on Lot 1853 is an existing use, not a proposed use. It is not open to the Authority to relate the clause objective to on site development (Appellant's emphasis), when clause 21.1 explicitly relates the objective to proposed use. Consequently, the conclusion contained in Reason for Refusal 2, that the application is inconsistent with the objective of clause 21.1, must be rejected.
  3. Secondly, if it were invariably the case that the provision of fewer parking spaces than that required by the table to clause 21.1 meant that the proposal is inconsistent with the clause objective, there would be no capacity for discretion in clause 21.1 and no logical reason for clause 21. The structure of the parking provisions in the Darwin Town Plan clearly contemplates that there will be cases where fewer spaces than the number derived from the table to clause 21.1 will be sufficient. The Appellant says that the objective of clause 21.1 is not to provide the number of spaces calculated by reference to the table to that clause, but to provide sufficient off-street parking to service the proposed use.
  4. Even if the Appellant's submission that clause 21.1 is prospective fails, clause 21.2 provides for a reduction in the calculated parking requirement having regard to -

i. the provision of car parking spaces in the vicinity of the land;

ii. the availability of public transport in the vicinity of the land; and

iii. the zoning of the land, the use or development or proposed use or development of the land and possible future use or development of the land.

  1. Regarding the issue in paragraph (a), there is an abundance of parking spaces, freely accessible to the public, in the near vicinity of the land. These parking spaces are in the public parking areas abutting Nightcliff Shopping Centre and in Woolworths Shopping Centre, both of which are in the near vicinity of the land. Paragraph (a) does not distinguish between parking spaces in the public or private domains, and although access to the parking spaces in Woolworths Centre may be restricted at some time, the spaces are part of the parking inventory in the vicinity of the land.
  2. Regarding the issue in paragraph (b), the application stated : "[T]he units are on a public transport route and are in close proximity to the Nightcliff shopping centre and the Woolworths complex". Progress Drive, in close proximity to the appeal site, is also a public transport route.
  3. Paragraph (c) explicitly authorises the Authority to consider the existing use or development of the site, and distinguishes the existing use or development from proposed use or development and the possible future use or development. Therefore, the existing use and development, which is authorised under Part 4 of the Planning Act, is a valid consideration, and the Appellant says that the Authority should have given more weight to this circumstance.
  4. The parking provision for the existing use and development of the appeal site has been stated to be sufficient. The application stated : "Whilst the existing development on the site does not have two car parks per unit (there are 10 car parking spaces as opposed to 20 required by the Darwin Town Plan) there has never been a problem with a lack of parking space. The units are relatively small, four of them are only one bedroom, and the number of parking spaces has always been sufficient for the residents.". This statement is uncontested; there are no reports of complaints about parking associated with Lot 1853 from surrounding residents or traders, and there were no objections to the application from any member of the public. In these circumstances, the Authority should have given weight to the circumstance that the parking provision has adequately serviced the development since it was established.
  5. The Appellant says that the proposed or future use or development of the appeal site is not relevant to determination of the application because the application did not seek to alter the existing use or development. The application was made to facilitate unit titling of the existing dwelling units, and as outlined under the first ground of appeal, unit titling the building is not development in terms of the Planning Act.
  6. In any event, unit titling the development has not been shown to produce any adverse consequence with respect to the number of parking spaces. The building will continue to be used as it is now. The Authority appears to acknowledge this fact, because it did not adopt the reason for refusal recommended to it by Development Assessment Services - see folio 52 of Authority's file. In that recommendation, the reason proffered was "because the provision of one parking space per dwelling is considered inadequate for the purpose of unit titling and the location of the existing development prevents creation of further parking space on-site.".
  7. It is noted that the Authority did not advance any matter in clause 21.2 as a reason for refusal. The Authority's Reason for Refusal 2 is based solely on a premise that if the number of spaces calculated from the table to clause 21.1 is not provided, then it is the inexorable conclusion that the proposal does not meet the objective of clause 21.1.
  8. The Notice of Refusal gives no indication that the application failed under any matter in clause 21.2, and nothing in the Authority's file (provided to the Appellant under s 120 of the Planning Act) indicates that there was any consideration at all of the matters in clause 21.2. The Appellant says that a proper consideration of the criteria in clause 21.2 should have lead the Authority to the conclusion that a reduction in the number of parking spaces was warranted.

Third Ground of Appeal