1. The Friends of Lee Point Inc ('FOLP') brought an application for review of a decision of the Development Consent Authority ('DCA') not to take further action on a complaint lodged by FOLP in relation to clearing work carried out by a subcontractor of Defence Housing Australia ('DHA') on land situated at Lee Point in the Northern Territory. The complaint related to an alleged breach of sections 75B and 75C of the Planning Act 1999 (NT) ('Planning Act').
2. An application for review was also filed by Kevin Quall ('Quall') seeking the same relief as that sought in the proceedings brought by the FOLP. Pursuant to an order dated 4 April 2025, the Tribunal directed that the Quall proceedings be heard together with the proceedings brought by the FOLP.
3. Immediately before the commencement of the hearing held on 20 February 2026, the Tribunal received an Ordinary Application for leave to withdraw the Initiating Application for review filed by Quall. Minutes of Proposed Orders by Consent signed by the solicitors for Quall and the DCA accompanied the application to withdraw.
4. At the commencement of the hearing, Mr Bartley, on behalf of Quall, spoke to the application to withdraw. The FOLP did not object to the application. Orders were made by the Tribunal consistent with the Minutes of Proposed Consent Orders submitted by Quall and the DCA. In addition, the Tribunal ordered that material filed by Quall in the proceedings remained as documents admissible in the proceedings and could be relied upon by FOLP and the DCA.

1. On 30 November 2018, Development Permit DP18/0409 (the 'Permit') was issued by the DCA for the subdivision by DHA of Lot 4873 Lee Point Darwin. The purpose of the development was to create 513 residential lots. On 14 July 2022, a variation to the Permit was issued for the development to proceed in five stages.
2. The construction of the 513 residential lots necessitated the clearing of native bushland. The Permit required DHA, as conditions precedent to the commencement of work on the various stages of the development, to prepare for the satisfaction of the DCA a shorebird Monitoring Program, a Construction and Environmental Management Plan ('CEMP') and an Erosion and Sediment Control Plan ('ESCP'). Before April 2024, the condition precedents had been fulfilled for stage 1 of the project, but the CEMP and ESCP had not been approved for any other stage.
3. Land clearing works under the Permit commenced on 30 April 2024 by a subcontractor of DHA. On that date, the subcontractor had two sets of maps of the area to be cleared. In its Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development ('Statement of Reasons'), the DCA noted at [9]:

The DCA found that two sets of maps existed at the time of the clearing. The EPBC map (submitted by DHA as part of application seeking environmental approval) with stages numbered, commencing at Stage 2 through Stage 6 and Map 2CRU (submitted by DHA as part of application seeking planning approval) with stages numbered commencing at Stage 1 through to Stage 5.

1. In addition to clearing stage 1 identified on Map 2CRU, the subcontractor cleared part of stage 2 on the same plan. On the EPBC map, this area was designated as stage 3. It is accepted that, at the time the clearing of stage 2 of Map 2CRU occurred, the DCA had not yet approved the CEMP and ESCP for this stage. Consequently, the clearing of stage 2 on Map 2CRU was done in contravention of the conditions of the Permit.
2. In response to the complaints lodged by FOLP and Quall with the DCA, DHA maintained that, before any clearing of the Lee Point site commenced, it had verbally instructed its subcontractor "not to clear "Stage 3"".[1] There was no evidence before the Tribunal, or, it appears, the DCA, that a representative of DHA stipulated to the subcontractor that, in stipulating that Stage 3 was not to be cleared, reference was being made to the EPBC map.
3. On 2 May 2024, the clearing works were halted at the direction of DHA. On the same date, DHA advised Development Assessment Services ('DAS') of the Northern Territory Government, that its subcontractor had proceeded to clear the stage 2 of Map 2CRU in addition to stage 1.
4. The DCA found DHA to be in breach of the Permit in relation to the clearing works on stage 2 of Map 2CRU. In its Statement of Reasons, the DCA noted at [18] that:

... following that breach of permit, DHA had worked with DAS to reach compliance with the Permit in respect of the subject clearing. DAS officers identified all necessary conditions precedent and, on 23 July 2024, confirmed that all clearances from the relevant authorities to enable clearing of stage 2 had been obtained. The "stage 2" clearing was then compliant with Permit conditions.

1. In its Statement of Reasons, the DCA concluded at [13] that:

... clearing occurred as a result of miscommunication between DHA and the subcontractor, such misunderstanding being exacerbated by the existence of two separate sets of maps with different numbering of the stages involved.

1. The DCA decided under section 79A(1)(a)(ii) of the Planning Act that the matter did not warrant taking further action. In coming to this decision, the DCA considered the elements of an offence under section 75B of the Planning Act and concluded that it,

could not be satisfied that the evidence obtained through the investigation established the requisite mental element under section 75B to prove the offence on the part of DHA as required by section 75B(2).[2]

1. In addition to the difficulties in establishing the elements of an offence under section 75B, the DCA considered its position as a model litigant, the self-reporting of the breach by DHA to DAS, the cessation of clearing works on 2 May 2024 and the subsequent compliance with the Permit conditions. Having considered such matters, the DCA concluded that it was not in the public interest to proceed with further enforcement action.[3]
2. Finally, the DCA acknowledged that the complaints lodged by FOLP and Quall related to both sections 75B and 75C of the Planning Act. This notwithstanding, it decided only to investigate the complaint as an alleged breach of section 75B for the following reasons.

Noting that the same facts and circumstances were relied upon in relation to the alleged breaches of Sections 75B and 75C and that a permit existed allowing the clearing of native vegetation, the DCA resolved to investigate the Complaint as an alleged breach of section 75B of the Planning Act.[4]

1. Section 75B of the Planning Act provides:

(1) A person must not use or develop land in a manner that is only permitted in accordance with a permit:

(b) subject to section 56(c), until all the conditions of the permit that must be complied with before the use is permitted have been complied with.

(a) the person intentionally uses or develops land; and

(b) the use and development is only permitted in accordance with a permit; and

(c) the use or development is not in accordance with the permit and the person is reckless in relation to that result.

1. Section 75C of the Planning Act provides:

(1) Land must not be developed by clearing it of native vegetation except in accordance with any of the following that applies in relation to the land:

(a) the person intentionally engages in conduct; and

(b) the conduct results in clearing of native vegetation on land and the person is reckless in relation to that result; and

(c) the clearing of native vegetation was not in accordance with:

(i) a permit or an interim development control order that applies to the land; or

(ii) if no permit or interim development control order applies to the land - a planning scheme that applies to the land.

1. There is no dispute that the clearing by the DHA subcontractor of stage 2 of Map 2CRU was carried out in contravention of the Permit. The issue in these proceedings is whether the elements of the offence in sections 75B(2) and 75C(2) could be made out. In both sections, to find guilt on the part of DHA the DCA would need to be satisfied that DHA was reckless in relation to the intentional clearing of stage 2 of Map 2CRU by its subcontractor.
2. Section 5A of the Planning Act stipulates that, "Part IIAA of the Criminal Code applies to an offence against this Act". It follows, therefore, that in considering whether recklessness on the part of DHA could be proved, the criminal evidential burden of proof applicable to the prosecution of beyond reasonable doubt applies.[5]
3. Relevant to the issue in this proceeding, the word 'reckless' is defined in section 43AK of the Criminal Code to mean:

(1) A person is reckless in relation to a result if:

(a) the person is aware of a substantial risk that the result will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

1. The provisions of the Criminal Code apply to bodies corporate, such as DHA, as well as to individuals.[6] Further, section 43BL provides that:

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

1. Finally, section 43BM of the Criminal Code provides:

If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

The ways in which such authorisation or permission may be established are enumerated in section 43BM(2).

1. The jurisdiction of the Tribunal to review a decision of the DCA to take no further action under section 79A(1)(a) was found in section 111(1)(i) of the Planning Act. Pursuant to the Petroleum, Planning and Water Legislation Amendment Act 2025, section 19(2), the jurisdiction conferred on the Tribunal to review such decisions of the DCA was repealed. The repeal of section 111(1)(i), occurring after the decision of the DCA and the application for review in these proceedings, has no impact on this review.
2. A review of a DCA decision falls within the Tribunal's review jurisdiction in Part 3, Division 3 of the Northern Territory Civil and Administrative Tribunal Act 2014 ('NTCAT Act'). Such review is not a hearing de novo, nor is the FOLP required to identify errors made by the DCA in deciding under section 79A(1)(a)(ii) of the Planning Act that the matter did not warrant taking further action.[7] The decision of the DCA is reviewed on its merits[8] with the objective of the Tribunal to produce the "correct or preferrable decision".[9]
3. The meaning of the statutory term 'correct or preferrable decision' was addressed in the High Court of Australia decision in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].

"Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees.

1. Generally, in Tribunal review proceedings section 50(1) of the NTCAT Act governs the determinations available to the Tribunal after the review. The Tribunal must confirm the decision (section 50(1)(a)), or vary the decision (section 50(1)(b)), or set aside the decision and substitute its own decision (section 50(1)(c)(i)) or send the matter back to the original decision maker for reconsideration (section 50(1)(c)(ii)), or make a different decision if such a determination is permitted by the Act from which jurisdiction to review a decision is derived (section 50(1)(d)).
2. In a review of a decision of the DCA, the determination available to the Tribunal is complicated by section 130(4) of the Planning Act which provides:

(4) The Tribunal must, in writing, determine an application for review of a determination of a consent authority by taking one of the following actions:

(a) confirming the determination of the consent authority;

(c) ordering the consent authority to issue or vary a development permit subject to any conditions the Tribunal thinks fit.

1. If section 130(4) applies to a review of the DCA's decision to take no further action under section 79A(1)(a) of the Planning Act in response to a complaint, the options available to the Tribunal will be to either confirm the decision of the DCA or order the DCA to issue or vary the Permit. In submissions, the DCA maintained that to apply section 130(4) to the circumstances of these proceedings would lead to absurd results.[10]
2. In particular, the DCA noted that the powers available to the DCA after investigating a complaint are stipulated in section 79A of the Planning Act. The DCA can take no further action if it is satisfied that there are no grounds or evidence to justify taking further action (section 79A(1)(a)(i)) or the matter does not warrant taking further action (section 79A(1)(a)(ii)), or the DCA can "take any enforcement action available under this Act, including prosecution and issuing an enforcement notice" (section 79A(1)(b)). No other enforcement actions, such as varying an issued development permit, are available to the DCA.
3. The Tribunal agrees that applying section 130(4) to a review of a DCA decision under section 79A of the Planning Act would lead to an absurd result. It would vest in the Tribunal on review a power that was not available to the DCA after the FOLP's complaint had been investigated. Further, the Tribunal's power under section 130(4)(c) to vary the Permit is circumscribed by section 130(7)(a) or (b), neither of which is applicable to the decision of the DCA in these proceedings.
4. The alternative, and preferrable, construction of section 130(4) of the Planning Act is that it does not apply to a review under section 111(1)(i). The determinations available to the Tribunal are those set out in section 50(1) of the NTCAT Act.

1. Two questions arise for determination in these proceedings.
   • 32.1. Was the mental element of recklessness in sections 75B(2)(c) and 75C(2)(b) of the Planning Act established sufficiently to warrant the issuance of an enforcement notice?
   • 32.2. If the question in [32.1] is answered in the affirmative, does the matter "not warrant taking further action" as that term is used in section 79(1)(a)(ii) of the Planning Act?

1. At the hearing Ms Berglund, on behalf of the FOLP, adopted the written submissions made by Mr Quall on the issue of recklessness. In particular, FOLP submitted that DHA was aware of the inconsistent stage numbering between the EPBC map and Map 2CRU. Further, DHA gave verbal, rather than written, instructions to its subcontractor to not proceed with the clearing of Stage 3 without stipulating to which map reference was being made.
2. The FOLP submitted that,

... it was reasonably foreseeable to DHA, being a well-resourced, informed, and sophisticated entity, which is experienced in land development and related approval processes, that a breach of the Permit could occur due to the inconsistent numbering in the 2CRU Staging Plan and the EPBC Masterplan when providing the instruction not to proceed to "Stage 3".[11]

1. By proceeding with a verbal instruction to its subcontractor, rather than a written instruction where the confusion relating to the existence of two inconsistently numbered maps could have been identified, it was "open to the Tribunal (and to the DCA) to believe on reasonable grounds that DHA was reckless as to whether the development could proceed without necessary preconditions being met".[12] Finally, the FOLP submitted that the evidence substantiates the fact that "the "confusion" and "miscommunication" between the DHA and their clearing contractor was entirely self-inflicted by DHA, largely the result of woefully inadequate planning and oversight".[13]

1. DHA submitted that, to attribute the physical elements of the offences in sections 75B and 75C of the Planning Act to DHA, section 43BL of the Criminal Code requires that the DCA would need to be satisfied that the subcontractor was acting within the actual or apparent scope of their employment, or within its actual or apparent authority.

In this case, DHA expressly told its contractor not to clear in the 'unpermitted' area. Consequently, it is unlikely that the contractor could be considered to have acted within the actual or apparent authority given to them by DHA.[14]

1. Further, DHA submitted that there is no evidence to support a finding that DHA "expressly, tacitly or impliedly authorised or permitted the commission of the offence" within the meaning of section 43BM of the Criminal Code. Such a finding would not be available to the DCA because DHA expressly directed its subcontractor not to clear "Stage 3".

1. The Tribunal accepts the FOLP submission that the confusion and miscommunication between DHA and its subcontractor was entirely self-inflicted. The permit holder was DHA and it was the responsibility of DHA to provide clear and unambiguous instructions to its subcontractor regarding the area to be cleared. In this regard the DHA failed.
2. By its own admission two maps with inconsistent stage numbers were provided by DHA to the subcontractor. A verbal, rather than a written, instruction was provided to the subcontractor as to which stage was to be cleared. When advising the subcontractor not to clear Stage 3, the representative of DHA did not stipulate that reference was being made to Stage 3 depicted on the EPBC map rather than to the stages depicted on Map 2CRU.
3. It follows that the submission of the DCA that the subcontractor was not acting within the actual or apparent authority given to them by DHA when clearing Stage 2 of Map 2CRU cannot be sustained. DHA, not the subcontractor, must bear the responsibility for the confusion and miscommunication that led to the unauthorised clearing. The subcontractor cannot be said to be acting outside the scope of its actual or apparent authority when the instructions as to which stage to clear were ambiguous and confusing due to the failings of DHA.
4. To establish recklessness in relation to the use or development of land not in accordance with a permit (section 75B(2)) or the clearing of native vegetation not in accordance with a permit (section 75C(2)), the DCA must be satisfied that DHA's actions transcend negligence and satisfies the criminal standard of recklessness beyond reasonable doubt. The High Court of Australia stated in R v Dookheea (2017) 262 CLR 402 at [39] that,

... proof beyond reasonable doubt is the highest standard of proof known to the law, and therefore requires a much higher state of satisfaction than proof on the balance of probabilities.

1. The DCA was correct to conclude that, in the circumstances of these proceedings, the mental element of the offences could not be proved to the criminal standard. The evidence before the DCA, and the eyewitness evidence of those affiliated with the FOLP which was before the Tribunal, does not establish such mental element. While DHA may have been negligent, as that word is used in the law of torts, the evidence does not support a finding beyond reasonable doubt that DHA "expressly, tacitly or impliedly authorised or permitted the commission of the offence" as required by section 43BM of the Criminal Code. It follows that the DCA was correct to conclude that the matter did not warrant taking further action within the meaning of section 79A(1)(a)(ii) of the Planning Act.
2. Having answered the question posed at [32.1] above in the negative, the question in [32.2] does not arise for consideration. The decision of the DCA should be confirmed.

1. The correct decision within the meaning of section 46(1) of the NTCAT Act is to confirm the DCA's decision pursuant to section 50(1)(a). Such an order will be made in the proceeding commenced by FOLP. The orders in the proceeding commenced by Mr Quall will be in accordance with the Minutes of Proposed Orders by Consent discussed above at [3]-[4].
2. While, generally, in Tribunal proceedings parties are to bear their own costs, section 132(1) does vest in the Tribunal the discretion to make a costs order. No such order in the FOLP proceeding shall be made at this time because there may be matters relevant to the question of costs of which the Tribunal is not aware. Either the DCA or the FOLP may bring, within 28 days from the date of the orders arising from this decision, an Ordinary Application should either party wish to be heard on the question of costs.

1. In proceeding 2025-00298-CT, Kevin Quall has leave to withdraw his application for review pursuant to section 100 of the Northern Territory Civil and Administrative Tribunal Act 2014.

2. In proceeding 2025-00298-CT, there shall be no order as to costs.

1. The decision of the Development Consent Authority pursuant to section 79A(1)(a)(ii) of the Planning Act 1999 not to take further action on a complaint lodged by Friends of Lee Point Inc in relation to clearing work carried out by a subcontractor of Defence Housing Australia on land situated at Lee Point in the Northern Territory is confirmed.
2. The Friends of Lee Point Inc and the Development Consent Authority have leave to bring an application for costs by filing an Ordinary Application within 28 days of the date of this order.

[1] Letter from DHA to DCA dated 26 June 2024 at [46].

[2] DCA Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development, [5].

[3] DCA Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development, [7].

[4] DCA Statement of reasons in relation to decision under section 79A(1)(a)(ii) of the Planning Act regarding Lee Point Master-planned Urban Development, [2].

[5] Criminal Code of the Northern Territory, s 43BS(1).

[6] Criminal Code of the Northern Territory, s 43BK(1).

[7] Kasper v Psychology Board of Australia [No 2] [2015] NTCAT 179, [16]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[8] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[9] Northern Territory Civil and Administrative Tribunal Act 2014, s 46(1).

[10] Outline of Submissions on Behalf of the Respondent dated 6 June 2025, [10].

[11] Outline of Submissions on behalf of Kevin Quall, undated, [33].

[12] Outline of Submissions on behalf of Kevin Quall, undated, [32].

[13] Outline of Submissions on behalf of FOLP, undated, [70].

[14] Outline of Submissions on Behalf of the Respondent dated 6 June 2025, [37]. (Emphasis in original)