[2018] NTCAT 1100

Review Jurisdiction - Planning Act

1. These reasons for decision relate to two proceedings in which the issues are essentially the same.
2. The applicants are respectively the owners of land at 125 Thorak Road, Knuckey Lagoon ('the Thorak Road land') and 100 Agostini Road, Knuckey Lagoon ('the Agostini Road land'). In each case, the land is located in the Litchfield Municipality and is zoned R (Rural).
3. At a meeting on 16 March 2018, the Litchfield Division of the respondent ('DCA') made determinations refusing to consent to proposals by the applicants for the development of the Thorak Road land and the Agostini Road land.
4. The proposed development in each case related to already constructed business signs.
5. In the case of the Thorak Road land, the proposal concerned a sign with a surface area of 18.75 m² (5 m x 3.75 m) and located so as to face the inbound lane of McMillans Road.
6. In the case of the Agostini Road land, the proposal concerned two signs, each with a surface area of 18.75 m² (5 m x 3.75 m) and located so as to face the outbound lanes of the Stuart Highway.
7. By Notices of Refusal dated 3 April 2018 the DCA advised the applicants of its refusal to consent to the proposed developments and the reasons for the refusal.
8. In each case the DCA noted that the proposed signs were substantially larger than the permitted maximum for the Rural zone, which is 3 m². The DCA went on to consider in each case whether there were special circumstances justifying a departure from the permitted maximum and determined that there were no such circumstances. In addition, the DCA considered that allowing signs of the proposed size would have negative impacts upon the existing and future amenity of the immediate area.
9. The Notices of Refusal were sent to the applicants under cover of letters from the DCA dated 4 April 2018 requesting removal of the subject signs within six months of the date of the Notice of Refusal (that is, by 3 October 2018). The signs remain in place pending the outcome of these proceedings.
10. The present proceedings were commenced by initiating applications dated 3 August 2018. The applicants seek for various reasons to have the DCA's decisions overturned and replaced with decisions granting approval for the signs. The applicants have the right, under section 111(1) of the Planning Act (NT), to apply to NTCAT for review of the DCA's decisions.

1. By section 111(2) of the Planning Act (NT), an application under section 111(1) is required to be made within 28 days after the person making the application is served with a Notice of Refusal.
2. The applications in these proceedings were filed three months after the expiry of the 28 day period. The Notices of Refusal were emailed to the applicants' agent on 3 April 2018 (as well as being mailed to the applicants themselves on 4 April 2018 - see [9] above). As such, the 28 day period expired no later than 2 May 2018.
3. The applicants seek an extension of time.
4. The extent of NTCAT's power to grant an extension of time for the commencement of tribunal proceedings remains unsettled.
5. By section 94(3) of the Northern Territory Civil and Tribunal Act (NT) proceedings in the tribunal's review jurisdiction must be commenced within 28 days of the applicant receiving notice of the decision. Section 94(6) gives the tribunal a discretion to extend period specified in section 94(3).
6. Although the 28 day period in section 94(3) happens to correspond with the period prescribed by section 111(2) of the Planning Act (NT), section 94(6) of the Northern Territory Civil and Tribunal Act (NT) refers only to the period in section 94(3); it does not in terms apply to the period specified in section 111(2). The Planning Act (NT) contains no provision for an extension of that period.[1]
7. If a power to extend time cannot be found in either the Planning Act (NT) or the Northern Territory Civil and Administrative Tribunal Act (NT) then it must be found elsewhere.
8. For some categories of matters in the tribunal's original jurisdiction, NTCAT has held that a power to extend time exists under section 44(1) of the Limitation Act (NT); however, the availability of that section in NTCAT proceedings - which gives the power to extend time to 'a court' - is likely to depend on whether the matter being heard is of a type traditionally considered by courts.[2] A review of the merits of an administrative decision is not such a matter.
9. In the circumstances, I have some substantial doubt as to whether NTCAT has power to grant an extension of time for the commencement of these proceedings.
10. I do not, however, intend making a final ruling upon the matter of an extension of time.
11. This is for several reasons.
12. First, the applicants have not had the opportunity to make submissions regarding the question of NTCAT's power to extend time.
13. In addition - and on the assumption there is such power - the grounds upon which the applicants rely in seeking an extension are expressed in unsatisfactory terms and would require clarification and elaboration before a decision is possible.
14. Finally, and most importantly, I do not regard such a ruling as necessary.
15. This is because I am firmly of the view that the applicants' challenges to the DCA's determinations cannot succeed.

1. Clause 6.7 of the Northern Territory Planning Scheme provides as follows:

1. The purpose of this clause is to ensure that business signs and promotion signs on zoned land are of a size and location that minimises detriment to the amenity of the area.

1. This clause does not apply in the municipalities of Alice Springs, Darwin, Palmerston, Katherine or Tennant Creek.[3]

1. For the purposes of this clause, business signs and promotion signs include but are not limited to:

(b) signs erected on poles or pylons that are not part of a building or other structure;

(d) signs attached to and protruding from a building.

1. The total area of business signs or promotion signs on a site in a zone specified in column 1 of the table to this clause is not to exceed the areas specified opposite in column 2 or if the sign is illuminated, column 3.

1. Illuminated signs are to be no closer than 30m to any residential zone.

1. Signs attached to and protruding from a building are to be at least 2.7m above the ground and are not to extend past the edge of any awning adjacent to a road.

1. For the purposes of clause 6.7(4) the maximum area specified for a sign in zone R is 3m². In the case of both the Thorak Road land and Agostini Road land, the proposed signs substantially exceed the specified maximum.
2. Clause 2.5(4) of the Northern Territory Planning Scheme provides that a consent authority may consent to a proposed development that does not meet a standard such as set out in clause 6.7 'if it is satisfied that special circumstances justify the giving of consent.'
3. The meaning of clause 2.5(4) has been considered in a number of NTCAT decisions and most particularly in White & Ors v Development Consent Authority & Tomazos Property Pty Ltd ATF Tomazos Property Discretionary Trust [2015] NTCAT 10. In that decision the tribunal noted (at [102] - [103]):
   1. The meaning of... [clause 2.5(4)][4]... is well understood. In Phelps v Development Consent Authority [2009] NTSC 54 Kelly J relevantly noted:
      • that 'special circumstances' are circumstances that are 'unusual, exceptional, out of the ordinary and not to be expected' (at [21]);
      • that an holistic approach to the question is necessary, with each case to be considered on its merits, and with the decision maker alert to the fact that circumstances which by themselves might not be 'special' can, in combination with other circumstances, create a situation which overall gives rise to 'special circumstances' (at [22]);
      • that there is also the need to determine, in an ordinary common-sense manner, whether there are circumstances which either individually or collectively can be considered to be 'special circumstances' justifying consent (at [23]).
   2. The need for an holistic approach to the application of clause 2.5 applies not only to the identification of circumstances said to constitute 'special circumstances' but also to the respects in which a proposed development does not comply with the NTPS. In other words, it is important to avoid an approach to clause 2.5 that involves piecemeal consideration of non-complying aspects of a development against particular 'special circumstances'. Although there will often be circumstances that are especially relevant to particular instances of non-compliance, the ultimate question must always be whether, in all the circumstances, there are special circumstances justifying the giving of consent to a development proposal that does not meet the requirements of Parts 4 and 5 of the NTPS.
4. The applicants have identified several matters in support of a submission that there are special circumstances justifying a departure from the requirements of clause 6.7.
5. They refer to the fact that the signs advertise businesses (operated at locations separate from the two affected blocks of land) in which they have an interest. They note that they do not, in the circumstances, directly profit from the signs (as might be the case if the signs were rented to third parties). They emphasise that, commonly with many commercial enterprises in the Darwin area, the businesses advertised by the signs are facing pressures as a result of a local downturn and competition from larger market players. They note that if the businesses do not survive, or are consumed by larger enterprises, this could force prices up. These sorts of factors, they say, mean that it is necessary to look at all commercially viable ways of advertising the businesses.
6. They also point to the fact that no-one who lives in the immediate vicinity of the affected land has opposed to the application; indeed, they have provided letters of support from some local residents (which include statements that the proposed signs do not interfere with the amenity of the area).
7. They refer to the fact that the signs are set 5 metres back from the property boundaries and submit that they do not, as such, cause traffic issues. They note that the signs are not illuminated.
8. In addition, the applicants rely upon the fact that there have been erected, in the general vicinity of the two affected blocks, a number of signs with dimensions that clearly exceed the 3m² maximum.
9. Finally, they rely on the fact that, for the purposes of the DCA's consideration of their application for approval for the signs, the Development Assessment Services division of the Department of Infrastructure Planning and Logistics ('DAS') made a recommendation that approval be granted.
10. In respect of the Agostini Road land the DAS report included the following:

'The purpose of clause 6.7 (Signs) is to ensure that business signs and promotional signs on zoned land are of a size and location that minimises detriment to the amenity of the area. The proposal is not expected to have a detrimental effect on the amenity of the area for the following reasons:

• The proposed signs will be appropriately buffered from any residential areas.
• The proposed signs will be setback 4.2m from the lot boundary.
• The proposed signs will not be illuminated.
• The site is opposite land zoned GI (General Industry) and FD (Future Development), at which larger signs can be expected.

A variation to Clause 6.7 (signs) can therefore be supported.'

1. In respect of the Thorak Road land the DAS report included the following:

'The purpose of Clause 6.7 (Signs) is to ensure that business signs and promotional signs on zoned land are of a size and location that minimises detriment to the amenity of the area. The proposal is not expected to have a detrimental effect on the amenity of the area for the following reasons:

• The proposed sign is appropriately buffered from any residential areas.
• The proposed sign will be setback 5m from the lot boundary.
• The proposed sign is not illuminated.

A variation to Clause 6.7 (Signs) can therefore be supported.'

1. In my view, there are no special circumstances justifying a departure from the requirements of clause 6.7 as they apply to the two affected blocks.
2. I first note that it is unclear whether the DAS recommendations involved any consideration of the special circumstances requirement - certainly the DAS reports contain no reference to clause 2.5(4).
3. In addition, the extracts above appear to be directed to the question whether signs of the proposed size would detrimentally affect the amenity of the relevant area and thereby fall foul of the expressed purpose of clause 6.7.
4. Whilst the expressed purpose of a clause such as clause 6.7 will always be relevant to consideration whether there are special circumstances justifying a departure from its requirements, the mere fact a proposed development is not inconsistent with such a purpose is unlikely of itself to amount to such circumstances.
5. The test for whether clause 2.5(4) applies is not whether a proposed development achieves the purpose of a planning clause; it is whether there are circumstances that are 'unusual, exceptional, out of the ordinary and not to be expected' that justify consent.
6. None of the matters identified in the DAS reports for the two affected blocks has that character.[5] None is a matter that points to any compelling reason why the applicants should not be required to comply with the maximum sign size fixed by clause 6.7 (which size, it must be assumed, has been fixed in order to achieve the stated purpose of minimising detriment to amenity).
7. The same can be said of the various other matters relied upon by the applicants.
8. The fact no one living in the immediate vicinity of the affected blocks has opposed the granting of permission for the signs (and that others have voiced support) is of limited relevance. The absence of such opposition may well be explained by the fact that opponents of the signs were content to assume that they would not be approved because there are no special circumstances.[6] The fact that the authors of the letters of support consider that the signs do not interfere with the amenity of the area does not, of itself, point to the existence of circumstances that are exceptional or unusual.
9. Nor, in my opinion, do the essentially commercial considerations relied upon by the applicants (in terms of their wish to promote their business interests - see paragraph [31] above) support the existence of special circumstances for the purposes of clause 2.5(4).
10. Those considerations, which are wholly personal to the applicants, are far removed from qualities or characteristics of the affected blocks of land that would warrant special treatment of that land for planning purposes.
11. It must also be observed that the applicants' purpose for retaining the over-sized signs - which is specifically they will be noticed by people driving past - is not easy to reconcile with the purpose of clause 6.7.
12. Finally, the fact there may be other similarly-sized signs in the immediate vicinity does not, in my opinion, point to the existence of special circumstances in relation to either the Thorak Road land or the Agostini Road land.
13. The evidence before me does not enable firm conclusions regarding the planning compliance of those signs. However, even assuming some of those signs have been erected in breach of planning requirements, it would not follow that there are special circumstances affecting the applicants' land. All it would mean is that steps should be taken by the relevant authorities to enforce those requirements.
14. For the reasons above, the applicants have not demonstrated that there are special circumstances for the purposes of clause 2.5(4). It follows that there is no need to further consider whether the proposed developments otherwise comply with the Northern Territory Planning Scheme; however, I note my general agreement with the conclusion of the DCA that permitting the signs would have undesirable effects upon the existing and future amenity of land in the immediate and broader vicinity of the two affected blocks.

1. If the tribunal has no power to extend the time for commencing these proceedings then it has no jurisdiction to review the DCA's determinations. If, alternatively, the tribunal has power to extend time, the granting of an extension of time would be futile as the DCA's determination was plainly correct.
2. In the circumstances the appropriate order in each proceeding is that the application is dismissed. The determinations of the DCA therefore stand.[7]
3. I will assume that the DCA will allow the applicants a reasonable further time within which to remove the signs.

[1] If this means there is an inconsistency between the Planning Act (NT) and the Northern Territory Civil and Administrative Tribunal Act (NT), the Planning Act (NT) prevails - see section 5 (1) of the Northern Territory Civil and Administrative Tribunal Act (NT).

[2] See Lewis v CEO Housing [2017] NTCAT 239 where it was found that the power to extend time in section 44(1) of the Limitation Act (NT) applied to matters in NTCAT's residential tenancies jurisdiction. (Note that the observations at [47] in Lewis regarding extensions of time in matters in NTCAT's review jurisdiction should be understood as referring to matters, such as the present proceedings, where section 94(6) of the Northern Territory Civil and Administrative Tribunal Act (NT) does not apply.)

[3] Regulation of signs within the identified municipalities is a local government matter.

[4] Note that the numbering of the special circumstances clause has changed since the decision in White.

[5] Indeed, it can be added that the fact the proposed signs are not illuminated (which is also relied upon by the applicants) is of no significance whatsoever, given that illuminated signs are wholly prohibited in the relevant area.

[6] It can also be noted here that the DCA received letters from the Local MLA, Mr Wood, opposing the applications on the grounds that the signs would have an adverse impact on amenity. The Litchfield Council also opposed the applications on similar grounds.

[7] I note that, on the approach I have taken, the orders I am making do not involve an exercise of the tribunal's jurisdiction under section 130(4)(a) of the Planning Act (NT) to confirm the DCA's determinations. Instead, the orders should be understood as being made under the Northern Territory Civil and Administrative Tribunal Act (NT), either in the exercise of the express power in section 64 (to make any order the tribunal thinks appropriate) or as an exercise of NTCAT's power (both expressly under section 52 and otherwise as a matter of implication) to make orders controlling its own procedures.