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 Affairs (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 6th ed
Forbes Justice in Tribunals 2nd 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
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
1. 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 dwelling for caretaker’s residence and dependant relative unit in three stages.
2. 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 development;
(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 facilities 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 which 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 cannot 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 limitation is sought on the basis that the dependant’s relative’s husband will need a separate bedroom to allow him regular 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 detached 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 establishment 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 caretaker’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.
3. 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 Registrar 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.
5. 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.
6. 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
7. 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.
8. 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 determination”.[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.
9. 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.
10. 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 limited 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]
11. 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 the powers enjoyed by, and the duties imposed on, the body to which the appeal lies.
12. 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 powers 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.
13. 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.
14. 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.
15. 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