Phelps v Development Consent Authority & Ors [2011] NTSC 34

[1] This matter has a long history before a number of courts and tribunals.

[2] The Appellant, Ms Phelps, owns a 6.93 hectare block of land in the vicinity of Knuckey Lagoons, in the rural area south of Darwin ("the Land"). In June 2006, Ms Phelps made application to the Northern Territory's Development Consent Authority ("DCA") for consent to subdivide the Land into two lots, one of 4 hectares ("Lot A") and the other of 2.93 hectares ("Lot B").

[3] The Land is zoned R (for Rural) under the current Northern Territory Planning Scheme ("NTPS") and the minimum lot size in zone R is 8 hectares. The DCA may only consent to the subdivision of land in that zone into lots of sizes smaller than 8 hectares, if it is satisfied that there are "special circumstances" that justify it giving such consent.[1]

[4] In her application to the DCA, Ms Phelps attempted to bring herself within this "special circumstances" exception by offering, as a condition of obtaining consent to the subdivision, to register Covenants in Gross over the two subdivided lots which would limit further clearing of native bushland on the lots (after the clearing required for building a house on Lot B), limit the use to which the lots may be put to residential use, and prescribe the methods of waste disposal on the two lots.

[5] On 15 August 2006 the DCA refused to consent to the Development. The Appellant appealed to the Lands Planning and Mining Tribunal ("the Tribunal"). On 10 January 2007 the Tribunal, constituted by the then Chairman, Mr Loadman SM, dismissed that appeal. On 12 September 2007, by consent, an appeal to the Supreme Court from that decision of the Tribunal was allowed, and the matter was remitted to the Tribunal for rehearing.

[6] On 5 December 2008, the Tribunal, constituted by the then Chairman, Dr Lowndes SM, dismissed the appeal.

[7] Ms Phelps then lodged an appeal to the Supreme Court against the decision of the Tribunal constituted by Dr Lowndes. That appeal was successful, and the Court made the following orders.

"The matter will be remitted to the Tribunal for reconsideration on its merits on the basis that:

(a) the proposed restrictive covenants are capable (either alone or in combination with the other factors agreed by the Appellant) of amounting to "special circumstances"; and

(b) the proposed restrictive covenants, once registered, would be valid and enforceable.

Whether those proposed restrictive covenants, in all the circumstances, in fact amount to "special circumstances" justifying the granting of consent to the proposed subdivision is a matter for the Tribunal."

[8] The Respondent appealed to the Court of Appeal against this decision of the Supreme Court, but that appeal was unsuccessful.

[9] The Tribunal, this time constituted by Ms Tanya Fong Lim SM reconsidered the appeal and again disallowed the appeal on 20 December 2010.

[10] The Appellant now appeals to the Supreme Court against that decision of the Tribunal. Under s 133 of the Planning Act (NT) ("the Act"), an appeal to the Supreme Court from a decision of the Tribunal is available "only on a question of law".

[11] There are numerous grounds of appeal. The matters complained of were summarised in written submissions by counsel for the Appellant as:

• (a) point 1: overlooking the evidence from the Knuckey Lagoons Management Committee [Ground 8(a)];

• (b) point 2: wrongly concluding that the restrictive covenants would be ineffective [Grounds 2, 5, 7 and 9(f)];

• (c) point 3: wrongly characterising the application as a rezoning [Grounds 6 and 9(e)];

• (d) point 4: wrongly concluding that there would be less of a buffer zone; [Ground 4] and

• (e) point 5: wrongly impugning Greening Australia [Ground 9(b)].

[12] I assume that any of the grounds set out in the notice of appeal which were not argued have been abandoned.

Point 1: overlooking the evidence from the Knuckey Lagoons Management Committee [Ground 8(a)]

[13] Ground 8(a) in the Notice of Appeal states:

"The learned Tribunal erred in law in determining the Appeal:

(8) in negatively valuing evidence provided by the Appellant by failing or refusing to take into account relevant considerations, namely:

1. the letter of support from the Knuckey Lagoon Recreational Reserve Management Board Inc (see 114, the Decision)"

[14] The weight or value to be given to the evidence is a matter for the Tribunal. I take this ground of appeal to be a complaint that the Tribunal failed to take into account "the letter of support from the Knuckey Lagoon Recreational Reserve Management Board Inc" and that this error was manifested at paragraph [114] of the Tribunal's Reasons.

[15] At paragraph [114] of the reasons for decision, the Tribunal states:

"Knuckey Lagoons Management Plan - While the existence of this plan is not directly applicable to the Appellant's land the proximity of the land to the conservation area is an important consideration. The Kunckey Lagoons Management Committee has a responsibility to ensure the area is protected and use of the area is in accordance with the conservation values of the area. One of the committee's roles is to liaise with neighbouring landowners regarding the effect of their land use on the reserve and the natural values of that reserve. No comment has been made by this committee on this subdivision."

[16] Counsel for the Appellant points to the existence of a letter of support tendered in evidence before the Tribunal by the Appellant on letterhead bearing the name, "Knuckey Lagoons Recreational Reserve Management Board Inc", and signed by someone purportedly on behalf of "Knuckey Lagoons Wildlife Sanctuary Inc".

[17] In written submissions, counsel for the Appellant submitted that the existence of this letter made the statement in paragraph [114] wrong. I disagree. It is hard to know who this letter is from, but it is not from the Knuckey Lagoons Management Committee referred to in paragraph [114].

[18] It appears from page 4 of the Knuckey Lagoons Conservation Reserve Management Plan, referred to in paragraph [114] that the Management Committee "is comprised of five members, including the Chief District Ranger - Darwin Parks District (or delegate) and the Principal Planner - Darwin Region (or delegate) of the PWCNT and three members nominated by the Association (ie the Knuckey Lagoons Wildlife Sanctuary Incorporated)."

[19] In oral submissions, counsel changed his submission in relation to this ground. He said that I should infer from paragraph [114] that the Tribunal had failed to take into account that the Appellant's application had the support of the constituent bodies of the Management Committee. That support, he submitted was contained in the letter referred to above, and a letter from Andrew Bridges, Director, Territory Eco-link (which is a body within the Northern Territory Department of Natural Resources, Environment, the Arts and Sport).

[20] I reject that submission. First, neither Andrew Bridges, nor the agency known as Eco-link are a part of the Management Committee.

[21] Secondly, the letter from Andrew Bridges, does not express support for the Appellant's sub-division proposal. It is a letter to Greg and Denise Phelps thanking them for agreeing to a "conservation agreement" over the remnant native vegetation on the Land, to be registered as a Covenant in Gross, and annexing the draft covenants being considered by the Tribunal. The only reference to the sub-division proposal is as follows:

"You have advised of an application to subdivide the block into two Lots. Given this, it is administratively preferable to wait until the subdivision is dealt with before formalising the agreement. Should the subdivision be successful then separate agreements for each newly subdivided lot will be finalised."

[22] Thirdly, (as I have already said) it is hard to know who the letter set out above is from. Accepting for the purposes of the argument that it is from the Knuckey Lagoons Wildlife Sanctuary Inc (the body referred to in the Knuckey Lagoons Conservation Reserve Management Plan), that body is not a constituent body of the Management Committee: it has the right to appoint three members.

[23] Fourthly, that letter by no means expresses unequivocal support for the Appellant's subdivision proposal, containing as it does a paragraph stating:

"The committee is greatly concerned that a precedent will be set allowing further subdivision in the lagoon surrounds. The committee only offers its support because of the enhanced environmental values this subdivision offers through its conservation covenants."

[24] Finally, and most importantly, there is nothing in paragraph [114] from which I can infer that the Tribunal failed to take these letters into account. That paragraph simply states, accurately, that no comment on the proposal had been made by the Knuckey Lagoons Management Committee.

[25] There is no express reference in the Reasons to either letter. However, there is no duty on a decision maker to make reference to every single piece of evidence tendered in the case,[2] and I do not infer from the absence of a specific reference to those letters that the Tribunal did not take the evidence into account.

[26] Moreover, even if the Tribunal did fail to take that letter (or those letters) into account, in my view, there is no real possibility that either letter could have affected the Tribunal's decision. The Tribunal decided that, although the proposed covenants amounted to "special circumstances", they did not justify the granting of consent.[3] On a fair reading of the Reasons for Decision, the Tribunal's reasoning in coming to that conclusion is, in summary, as follows.

• (a) The Tribunal asks the relevant question, "If the covenants achieve a restriction on the use of the land and the clearing of vegetation how much more effective will they be in protecting the environment than the present regime?"[4]
• (b) She sets out the arguments and refers to some of the existing statutory provisions providing guidelines and restrictions for the protection of the environment (including further clearing).[5] [Relevantly, the land has already been extensively cleared and any further clearing would require the consent of the DCA.][6]
• (c) She examines the evidence (from Greening Australia and Dr Metcalfe) as to the ecological value of the vegetation which the Appellant submitted would be protected by the proposed covenants.[7]
• (d) She also examines possible practical difficulties in the enforcement of the covenants.[8] (This is dealt with further below in relation to the other grounds of appeal.)
• (e) She considers the planning implications of the proposed subdivision and special protection regime.[9]
• (f) She considers the other relevant matters under s 51 of the Act.[10] Included in the discussion of other relevant matters are references to a letter of support from Mr Gerry Wood MLA, pro forma letters of support from neighbours, and a letter of support from Greening Australia all of which were put in evidence by the Appellant.
• (g) Having taken all of these matters into account, she concludes that she is not satisfied that the proposed covenants would in fact be more effective in protecting the environment than the present regime.[11] She enumerates the chief reasons for coming to that conclusion.

"The enforcement of the covenants remain [sic] with the NT Government, the terms of the covenants are not certain, the enforcement of those terms would be problematic and the sub-division would require further clearance of remnant vegetation."[12]

There is no real possibility that the letter (or letters) in question could have affected any of these reasons.

(h) As expected from the nature of the Appeal, and the extent of the discussion in the Reasons, planning issues loom large in the decision, and the Tribunal then goes on to weigh up "any environmental gains" against planning considerations. In this context she states:

"The creation of only one more residential property, the further clearing of vegetation, the decrease of the buffer between inconsistent uses and the uncertainty in the enforcement of the covenants as drafted are all reasons why consent is not justified in this matter."

(i) Not surprisingly, given that she found as a fact that she was not satisfied that the covenants gave any additional protection to the environment, the Tribunal concluded:

"Even in times where environmental protection has become a significant issue, the possibility that the proposal might provide further protection of the environment does not outweigh the possibility of opening the floodgates to the ad hoc [de facto] [13] rezoning within the area."[14]

There is no real possibility that this conclusion could have been affected by a consideration of the letter (or letters) in question, particularly as the only real relevance of either letter was general support for the conservation value of the covenants, and the Tribunal made specific reference in the Reasons to other such generally supportive evidence, including the letters from Greening Australia, the Northern Territory Government pamphlet entitled 'Voluntary Conservation Covenants on Covenant Land', and the Metcalfe Report.

Point 2: wrongly concluding that the restrictive covenants would be ineffective [Grounds 2, 5, 7 and 9(f)]

[27] The Appellant's submissions on this point are divided into four parts - points 2.1 to 2.4.

[28] The submissions in Point 2.1 are directed to Ground 9(f) in the Notice of Appeal.

[29] Ground 9(f) complains that:

"The learned Tribunal erred in law in determining the Appeal:

(9) in wrongly determining without a basis in evidence, that:

(f) 'political motivations' may reduce the conservation effectiveness of Eco-Link covenants compared to any protection under the Scheme."

The error is said to occur in paragraph [48] of the Tribunal's Reasons for Decision.

[30] In paragraph [47] of the Reasons, the Tribunal states:

"47. Presently any consent to the clearing of vegetation on Lot 5251 under the present regime is in the hands of the Development Consent Authority. The Development Consent Authority has a level of autonomy from the government through the appointment of an independent chairman and members for a fixed term. The Authority is required to ensure any applications approved comply with the provisions of the NTPS and the Planning Act."

[31] The Tribunal continues, at paragraph [48], the paragraph complained of:

"48. Alternatively which department or government agency would have the responsibility to enforce the covenants is not clear. If the enforcement of covenants is left with the Northern Territory Government then that could be subject to political motivations."

[32] The Appellant submits that this paragraph contains a suggestion that Ministers of the Crown are prone to acting otherwise than in the public interest, and that this is an impermissible finding, not based on any evidence before the Tribunal. I do not agree that this paragraph contains any such suggestion. As counsel for the Respondent pointed out, it simply recognises that in our system of government, there is a difference between the duties of a person or body exercising statutory functions (whether a body such as the DCA or a minister making decisions pursuant to a power or administrative function conferred on him by a statute) and decisions made by a minister exercising the executive power of the Crown. In the former case the decision maker must exercise the power for a specified purpose, taking into account the matters proper to be taken into account for that purpose. In the latter case, the minister may take into account a wide range of matters which may be in the public interest. A minister exercising executive power in deciding whether to institute proceedings to enforce a Covenant in Gross would not be limited to considerations of protection of the environment, but may properly take into account a wide range of "political" matters which he considers to be in the public interest at the time of making the decision.

[33] The Appellant also submitted that the Tribunal's conclusion that enforcement of the covenants could be influenced by political considerations overlooked the fact that the orders sought by the Appellant included the following:

"8.2 an order under s130(4)(c) that the DCA issue a development permit on condition that:

8.2.3 the applicant and her successors in title comply and continue to comply with the terms of the covenants when registered."

[34] The Appellant submits that such a condition would render the covenants enforceable by the DCA under s 75(3) in the same way as for a breach of the NTPS. I do not agree that such a condition would be apt to produce that result. Section 75(3) provides:

(a) use or develop land in a manner that is only permitted in accordance with a permit, except in accordance with the permit; or

(b) subject to section 56(c),[15] use land in a manner that is only permitted in accordance with a permit until all the conditions of the permit that must be complied with before the use is permitted have been complied with."

[35] Counsel for the Appellant submitted that the effect of the condition sought by the Appellant would be that following subdivision, the Land would only be able to be used in accordance with the covenants, and as compliance with these was made a condition of the permit to subdivide, the DCA could bring proceedings under s 75(3) to enforce the covenants. However, that ignores the fact that the permit being sought is not a permit to use the Land, but a permit to subdivide (ie develop) the Land.

[36] Even if it could technically be brought within s 75(3), one must question how appropriate it would be to issue a permit to A to subdivide land on condition that B do something in the future, or if that were done, how appropriate it would be to prosecute B for breach of a condition of a permit issued to A. Section 75(3) is simply not apt for the purpose, and it was not an error of law for the Tribunal to assume that if the Covenants in Gross were to be registered over the land they would be enforced, if at all, by the normal mechanism for enforcing such covenants, namely an application for an injunction restraining breach of the covenants.[16]

[37] Point 2.2 is said to relate to Ground 5 of the Notice of Appeal. Ground 5 complains that:

"The learned Tribunal erred in law in determining the Appeal:

(5) in negatively determining the value, validity and enforceability of the covenants and in doing so failing or refusing to take into account relevant considerations, namely:

(a) the Eco-Link letter;

(b) the Metcalfe Report;

(c) the Clarke letters;

(d) the Northern Territory Government publication entitled 'Voluntary Conservation Covenants on Covenant Land';

(e) the use of the phrase 'residential and ancillary' in the Litchfield Area Plan 2004 at clause 7.4 in relation to 'Exclusive Rural Residential';

(f) the use of the word 'ancillary' 22 times in the Northern Territory Planning Scheme, particularly in relation to 'Restricted Rural Residential' at clause 10.2(6);

(g) the statement in the Respondent's Submission marked 5(b), that Territory Eco-Link covenants offer a valid conservation option;

(h) the lack of submissions by the parties on any confusion relating to the use of specific words and definitions in the draft covenants; and

(i) the reduction of uses under the proposed covenants (failing to weigh up the effect to the environment of actual uses permitted under current law compared to the effect of uses permitted under the proposed covenants)."

[38] The Tribunal found that enforcement of the proposed restrictive covenants would be "problematic"[17]. She also found that she was not satisfied that the proposed subdivision and the Covenants in Gross would achieve increased protection of the environment.[18] These are findings of fact. They cannot be challenged in this appeal unless the findings are vitiated by error of law. The complaint made in Ground 5 is that the Tribunal made an error of law by failing to take into account what are asserted to be the relevant considerations listed in sub-paragraphs (a) to (i).

[39] The complaints in grounds 5(b), (c) and (d) can be disposed of immediately. The Reasons demonstrate that in reaching these findings of fact, the Tribunal did take into account and specifically refer to the Clarke letters,[19] the Metcalfe Report,[20] and the Northern Territory Government publication entitled 'Voluntary Conservation Covenants on Covenant Land'[21].

[40] The Eco-Link letter referred to in Ground 5(a) has already been discussed in the context of Point 1. It is a letter to Greg and Denise Phelps thanking them for agreeing to a "conservation agreement" over the remnant native vegetation on the Land, to be registered as a Covenant in Gross, and annexing the draft covenants being considered by the Tribunal. That is its only real relevance and it cannot be suggested that the Tribunal ignored the proposed covenants. Consideration of the draft covenants was the central issue before the Tribunal.

[41] In written submissions, the Appellant complains about paragraphs 61 and 62 of the Reasons for decision.

"61. Effectiveness of the covenants as drafted - The Appellant's submission can only be persuasive if the covenants do achieve the conservation of the native bushland. The Respondent questions the effectiveness of the covenants as drafted even if they could be enforceable under the Law of Property Act. The use of different terms to the NTPS such as "residential and ancillary" and clauses such as:

5.4.1 ensure that exotic species that threaten the natural values of the Land are eliminated or controlled and do not become established"

add to the uncertainty of the effectiveness of the covenants.

1. If a situation were to occur where the Northern Territory were concerned about the "endeavours" the Owner of the property was making regarding exotic species or about a use of the land, whether it was "ancillary" to residential how would those concerns be resolved? The terms "best endeavours" and "ancillary" would have to be determined by the court which could be a costly and lengthy process."

[42] The Appellant submits that the conclusion that terms such as "best endeavours" and "ancillary" "would have to be determined by the court which could be a costly and lengthy process" is vitiated by three errors of law. First, it is said that the term "best endeavours" has a well recognised legal meaning. Secondly, it is submitted that this conclusion ignores the fact that the term "ancillary" is used in the NTPS. Thirdly, it is said that there is no basis in evidence or otherwise to support the conclusion that determining the meaning of these terms could be a lengthy and costly process.

[43] I do not agree that there is any substance to any of these complaints. "Best endeavours" clauses may have a well established legal meaning, but that doesn't mean that what, on the facts, is sufficient to comply with such a clause in any given circumstance cannot be the subject of dispute leading to litigation.

[44] I do not agree that one can infer from these paragraphs that the Tribunal failed to take into account, as a relevant consideration, the fact that the word "ancillary" is used in the NTPS [Grounds 5(e), (f) and (g)].

[45] In these paragraphs the Tribunal was making a simple point. The purpose of registering the covenants was to provide added protection to the environment, in particular to prohibit further clearing of native vegetation. (At present there can be no further clearing of native vegetation on the land without a permit from the DCA in any case.) This proposal uses the mechanism of Covenants in Gross to change the permitted uses of the land in an ad hoc way, outside the provisions of the NTPS, in order to further restrict clearing, but the normal method of enforcing such covenants is via court proceedings which can be lengthy and costly and may involve factual disputes about, for example, what amounts to "best endeavours" or "ancillary uses" in the particular circumstances at issue at the time. This is a finding of fact open to the Tribunal and does not involve any error of law.

[46] Grounds 5(h), (i) and (j) were not argued and I take them to have been effectively abandoned.

[47] Point 2.3 of the Appellant's submissions relates to Ground 7 of the Notice of Appeal. Ground 7 complains that:

"The learned Tribunal erred in law in determining the Appeal:

(7) in wrongly concluding that the Tribunal does not have the power to determine whether the covenant was satisfactory in principal and then to reserve to itself the power if necessary to settle any dispute as to its terms."

[48] This error is said by the Appellant to have occurred in paragraphs [66] and [67] of the Reasons for Decision in which the Tribunal stated:

"66. The powers of the Tribunal are set out above and the Appellant is relying on the Tribunal's power to direct the DCA to issue the permit with conditions. The Appellant submits if the parties cannot agree suitable covenants then the Tribunal has the power to direct the terms of the covenants. The Appellant is suggesting the Tribunal should have a hand in drafting the covenants.

1. I am of the view that once the Tribunal has directed the issue of the permit on conditions it has no further power to enforce or vary those conditions and it has no supervisory role to ensure the conditions are complied with, that is not the role of the Tribunal as defined by the Act."

[49] In my view there is no error in these paragraphs. Subsection 130(4) sets out what the Tribunal must do on determining an appeal.

"(4) 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;

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

[50] The Appellant submitted that it was open to the Tribunal to decide the issues of principle and then to leave an element of detail which flowed from the determination of those issues for the parties to agree if possible, and to come back before the Tribunal to adjudicate upon any dispute about what ought to be in the covenants if agreement could not be reached. I consider it doubtful whether the Tribunal has power to order the consent authority to issue a permit on conditions which are not fixed, but are to be agreed between the applicant and the consent authority. It is not necessary to decide that on this appeal, because the Appellant was asking the Tribunal to do more than that. By seeking liberty to apply, the Appellant was asking the Tribunal to make a further decision - ie adjudicate between the DCA and the Appellant if they failed to reach agreement on the content of the covenants. There is no power under s 130 (or any other section of the Act) which would empower the Tribunal to perform that function. The Tribunal was correct to hold that that was not the role of the Tribunal as defined by the Act. The Tribunal's role, as defined in the Act is to hear and determine appeals against a refusal to issue a development permit (under s 111), appeals in the case where the consent authority does not determine an application (under s 112), appeals against a refusal to extend the period of a development permit (under s 113), appeals against the determination to alter or impose a condition in a development application (under s 114), appeals against a refusal to refund or remit a contribution (under s 115), appeals against a refusal to vary a condition of a development permit (under s 116) and appeals in some circumstances by third parties in respect of development applications (under s 117).

[51] This Ground of Appeal must fail.

[52] Point 2.4 relates to Grounds of Appeal 2, 5, 7 and 9(f). Grounds 5, 7 and 9(f) have already been dealt with.

[53] Ground 2 complains that:

"The learned Tribunal erred in law in determining the Appeal:

(b) by disregarding the determination of Kelly J in the Supreme Court of the Northern Territory in [sic] that 'the proposed restrictive covenants, once registered, would be valid and enforceable', in remitting the matter to the Tribunal".

[54] This ground of appeal must fail. The learned magistrate did not disregard the determination of the Supreme Court that the proposed restrictive covenants, once registered, would be valid and enforceable. At paragraph [10] of the Reasons, the learned magistrate recites the basis for the remitter - including the requirement to consider the matter on the basis that proposed restrictive covenants, once registered, would be valid and enforceable. She then proceeds to do just that. (See for example, paragraph [46], where she states, "Covenants in Gross in favour of the Northern Territory are enforceable by the Northern Territory".) She was not precluded by the terms of the remitter from making findings of fact concerning the practical difficulties there may be in enforcing the covenants. That was a proper matter for her to take into account in determining whether the proposed covenants in fact gave sufficient additional protection to the environment to justify giving consent to the application for subdivision, notwithstanding the failure to comply with the minimum lot requirements (and the other planning considerations referred to in the Reasons).

Point 3: wrongly characterising the application as a re-zoning [Grounds 6 and 9(e)]

"The learned Tribunal erred in law in determining the Appeal:

(6) in wrongly determining that the Application would cause 'de facto' and 'ad hoc' rezoning and in doing so failing or refusing to take into account relevant considerations, namely:

(a) 'Restricted Rural Residential' is not a 'zone' under the NTPS;

(b) 'Exclusive Rural Residential' was not a 'zone' under the Litchfield Area Plan 2004;

(c) the 'special circumstances' by clause 2.5(3) of the NTPS is an express power; and

(d) covenants are sanctioned by the Territory as a valid means of environmental protection.

[56] These errors are said to occur at paragraphs [44], [96], [97], [98] and [125] of the Reasons. These paragraphs are as follows.

"44. The covenants restricting the permitted uses of Lots A & B also effectively rezones both Lots.

1. There is no doubt the Appellant's proposal is a de facto rezoning of the resultant lots. I have not been provided with any information about the frequency of which the DCA has consented previously to effective rezoning of the land. However it is important to note that there is a process by which a person can apply for a rezoning in the Planning Act (Division 3 of Part 2 of Planning Act) and to allow the effect rezoning [sic] of the land in this manner would bypass that process.
2. The Appellant, in earlier correspondence with the DCA and her application in 2006 indicated her acceptance of a reclassification of her property to "Exclusive Rural Residential" and that is a clear acknowledgement that rezoning was a possible solution. The Appellant has chosen not to pursue that option and there is no reason given for that choice.
3. The application circumvents the rezoning provisions of the Planning Act and the zoning scheme in the NTPS.
4. Even in the times where environmental protection has become a significant issue, the possibility that the proposal might provide further protection of the environment does not outweigh the possibility of opening the floodgates to the ad hoc rezoning within that area."

"The learned Tribunal erred in law in determining the Appeal:

(9) in wrongly determining without a basis in evidence, that:

(e) the "application circumvents the rezoning provisions of the Planning Act and the zoning scheme in the NTPS" (in paragraph [98] of the Reasons)."

[58] The Appellant contends that, on the contrary, the application "utilises a valid covenant and a valid discretion under the 'special circumstances' provisions of the scheme". The Appellant says, first, that the phrase "de facto re-zoning" is inapt as, "the application does not seek to alter the essential use of the Land from rural residential to say industrial, commercial or apartment living. It simply seeks "a relaxation of the development standard so as to permit a particular development to take place without compliance with that standard". That submission is inaccurate. The Land is currently zoned "Rural" not "Rural Residential". There are a range of permitted uses in the Rural Zone including, agriculture, horticulture and plant nursery. In addition to seeking a relaxation of the development standard (the minimum lot size requirement), the Application seeks, as a condition of approval, that covenants be registered over the Land which prohibit the use of the Land for purposes which are permitted under the Rural Zone (for example agriculture, horticulture and plant nursery), though not in the Rural Residential Zone. (In fact, the covenant goes further and prohibits absolutely some uses which are discretionary in the Rural Residential Zone.) Registration of these covenants would have the effect of 'ad hoc' de facto rezoning, which is all that the Tribunal was saying.

[59] The Appellant claims that this characterisation of the application as 'de facto re-zoning', led the Tribunal to wrongly confine or limit the exercise of the power under clause 2.5.3 of the NTPS to consent to a development which does not meet the prescribed standard if it is satisfied that special circumstances justify the giving of consent. This would amount to an error of law if that is what the Tribunal had done. However, there is nothing anywhere in the Reasons to suggest that the Tribunal wrongly construed the nature of the discretion it was exercising - or limited that discretion in any impermissible way. The learned magistrate constituting the Tribunal did not, for example, state that she could not exercise the discretion to give consent to the application because it would be a de facto rezoning. She mentioned these matters in giving consideration to whether or not she would exercise her discretion to give consent, and in doing so she asked herself the right question, namely whether the offer to register the covenants over the Land amounted to special circumstances which would justify the giving of consent. It has not been suggested by the Appellant that the planning considerations referred to in the paragraphs complained of (and elsewhere) were not relevant considerations for her to take into account in carrying out this exercise: plainly they were.

[60] The Appellant did not make any submissions in support of the contention in Ground 6 that the Tribunal had failed or refused to take into account the matters set out in Grounds 6(a), (b), (c) and (d) and I take it that those Grounds are not pressed. In any case, I can see nothing in the Reasons to suggest that the Tribunal was not aware of those matters and did not take them properly into account. In relation to Ground 6(d), the Reasons specifically refer to the pamphlet which encourages the use of covenants as conservation measures.

Point 4: wrongly concluding that there would be less of a buffer zone [Ground 4]

"The learned Tribunal erred in law in determining the Appeal:

(4) in wrongly determining the Application would cause a decrease of the buffer for inconsistent uses and in doing so failing or refusing to take into account relevant considerations, namely:

(a) the draft covenants, especially the attached maps; and

(b) the limitations of uses under the proposed covenants."

[62] It is frankly absurd to suggest that the Tribunal did not take into account the draft covenants and the proposed restrictions on the use of the Land contained in them - or the fact that the Land is next door to the Knuckey Lagoons Conservation Reserve, which is the only relevant piece of information on the maps. The entire argument before the Tribunal was about just these matters and the (lengthy) Reasons for Decision discuss the location of the Land, proposed covenants, and the restrictions on use contained in them. (It was those restrictions on use which, in part, led to the conclusion complained of by the Appellant in Point 3 that the application was a de facto rezoning application.)

[63] In submissions relating to this Ground, the Appellant contends that the Tribunal erred in the following paragraphs:

"71. One of the reasons for the 8 ha limit, as articulated in the NTPS, is to ensure there is a buffer between possible inconsistent uses of properties in that area. The smaller lots created by the proposed subdivision decreases the buffer. The Covenants do limit the uses for the land however there are still some remaining uses which are potentially incompatible eg residential and domestic livestock. Domestic livestock as defined by clause 3 of the NTPS includes the keeping of animals such as pigs, goats and camels all of which could prove to be incompatible with the quiet enjoyment of a single dwelling. That is only in relation to the uses between the proposed lots A and B.

1. Considering the incompatible uses with neighbouring properties there is a greater risk of incompatible uses of land as the neighbouring properties continue to have the broader range of uses available to them. If the subdivision was allowed then there would be less of a buffer between the uses on the proposed Lot A and B and the neighbouring properties."

[64] The Appellant submits (correctly) that the separation of incompatible uses is important because of clause 5.20 of the NTPS which provides:

"The larger lot sizes in this zone (ie the Rural Zone) facilitate the separation between potentially incompatible uses and restrict closer settlement."

[65] The Appellant submits that the purpose of the R zone in "a collar" around Knuckey Lagoons was intended to provide a buffer between Knuckey Lagoons on the inside of the collar and whatever uses were permitted outside the collar. Further, it is submitted that there is no rational basis for concluding that subdividing the land into two residences (instead of one) and then increasing the protection for the environment would create less of a buffer. I disagree.

[66] It may be that creating a buffer between Knuckey Lagoons and possible inconsistent uses outside "the collar" was a reason for zoning that Land R; it is a matter of conjecture as there is nothing in the NTPS which states the reason why that Zone was chosen for this particular land.[22] More importantly, the Appellant's submission on this point is based on the supposition that the only relevant separation of incompatible uses is between the Knuckey Lagoons Conservation Reserve and the land on the other side of "the collar" of Rural Zone land around the lagoons. I can see no basis whatever for that supposition.

[67] Clause 5.20.2 follows clause 5.20.1 and provides context for the meaning of the phrase, "potentially incompatible uses". Those clauses together provide:

"The primary purpose of Zone R is to provide for a range of activities including residential, agricultural and other rural activities.

"The larger lot sizes in this zone (ie the Rural Zone) facilitate the separation between potentially incompatible uses and restrict closer settlement."

[68] The table attached to clause 5.20 then lists the permitted, discretionary and prohibited uses for Zone R including agriculture, domestic livestock, horticulture, home based contracting, home occupation and plant nursery.

[69] Clause 11.1.1 of the NTPS deals with lot sizes and requirements on subdivision. Clause 11.1.1.1 provides:

"The purpose of this clause is to ensure that unzoned land and lots in (a number of) Zones (including Zone R) will be of a size capable of accommodating future uses."

The table attached to clause 11.1.1 goes on to provide for a minimum 8 ha lot size for Zone R.

[70] Reading these provisions of the NTPS together, it is plain that the Tribunal was correct in saying in paragraph [71] that "one of the reasons for the 8 ha limit, as articulated in the NTPS, is to ensure there is a buffer between possible inconsistent uses of properties in that area", and it follows logically from that, that there is no error in the balance of the two paragraphs complained of.

Point 5: wrongly impugning Greening Australia [Ground 9(b)]

"The learned Tribunal erred in law in determining the Appeal:

(9) in wrongly determining without a basis in evidence, that:

(b) Greening Australia's interest was vested and should be given less weight."

[72] This error is said to occur in paragraphs [115] and [116] of the Tribunal's Reasons which read as follows.

"115. Greening Australia support - This organisation's support gives weight to the conservation argument however has to also be considered in light of the organisation's obvious intention to develop their property into smaller lots. The Respondent submits the support of Greening Australia must be given less weight as they clearly have a vested interest in the approval of the Appellant's subdivision. If the Appellant's subdivision is approved with the Covenants in Gross they will be able to point to that approval as a precedent for what they propose.

1. I agree with the Respondent's submission in relation to Greening Australia, even though their charter is clearly one of conservation of native vegetation their proposal to subdivide and rezone their property does give them a vested interest in the present application being successful. Mr Wyvill submitted a not for profit organisation could not have a vested interest I do not agree with that submission. It is not clear what Greening Australia intends to do with its subdivided lots however given some of them allow for the clearing of the vegetation for residences it is a reasonable assumption they are intending to sell some of those lots and therefore could profit from that sale."

[73] The Appellant submits that paragraph [116] effectively accuses Greening Australia of putting aside its charter of conservation of native vegetation to pursue a profit motive, and that there was no evidence to support any such finding. I do not agree that there is any such necessary imputation in paragraph [116]; nor can I discern any error of law in the paragraphs complained of. All the Tribunal is saying is that given the nature of the application by Greening Australia to subdivide the neighbouring block (which was in evidence), that body has an interest in the Appellant's application to subdivide being approved: whether the subdivision is for the purposes of Greening Australia's charter or not is completely immaterial. For that reason the Tribunal placed less weight on the support from Greening Australia than she might otherwise have done - something she was entitled to do as it was a matter for her what weight she put on the evidence.

[74] For these reasons, I consider the appeal must be dismissed.

[2] Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728.

[3] Phelps v Development Consent Authority LMPT 98-2006-P (Reasons) at [126].

[5] Reasons at [35] to [42] and [51] and [52].

[8] Reasons at [46] to [50] and [61] to [67].

[9] Reasons at [68] to [77] and [82] to [98].

[10] Reasons at [81] and [99] to [118].

[15] Section 56(c) refers to staged developments and is not presently relevant.

[19] Reasons at [57] and [115] to [116].

[20] Reasons at [51] and [58] to [60].

[22] It is not immediately obvious why Zone R would be chosen if that were the purpose, rather than, say a special purpose zone, given the fairly wide range of permitted purposes in Zone R, some of which (eg agriculture and domestic livestock) do not seem particularly well adapted to the purpose of aiding the conservation of the lagoons.