Phelps v Development Consent Authority & Ors [2012] NTCA 2

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

[73] Ms Fong Lim SM declined to make the order. She was of the opinion that once the Tribunal had directed the issue of a permit on conditions it had no further power to enforce or vary those conditions and it had no supervisory role to ensure the conditions are complied with. That is not the role of the Tribunal defined by the Act.

[74] Kelly J held that the Tribunal was correct to hold that was not the role of the Tribunal as defined by the Act. Her Honour stated:

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).

[75] In my opinion, the Tribunal did not have the power to make the order sought by the appellant. Under s 130(4)(c) of the Planning Act the Tribunal must fix conditions which it thinks fit. It cannot do so if it is left to the parties to finalise the terms of the covenants which are in effect to constitute the conditions of the development permit. The Tribunal's role is not simply to determine a dispute between the parties but to determine whether a development should be approved in accordance with the provisions of the Planning Act or not. What Ms Fong Lim SM could have done if she thought there was merit in the covenants was to bring the matter back before her Honour and to give the parties an opportunity to make further submissions about the terms of the covenants. She could also have adjourned the matter to give the parties an opportunity to obtain instructions and discuss the terms between them before she heard further submissions about the terms of the covenants. If the parties agreed on the terms of the covenants the Tribunal would still have to be satisfied that the terms were fit and proper terms before a final order of the Tribunal was made. If the parties could not agree on the terms of the covenants the Tribunal could determine what the terms of the covenants should be. The covenants could then be incorporated into the permit. Under s 6 of the Lands, Planning and Mining Tribunal Act the Tribunal may do all things necessary or convenient to be done in connection with the performance of its functions.

[76] Even if the Tribunal had erred in law in determining that it was not its role to draft such conditions, the error was not such as to vitiate the decision of the Tribunal because there was no real possibility that the error could have affected the decision of the Tribunal. Ms Fong Lim SM had determined on quite broad grounds that the covenants provided a less efficient mechanism for protecting the environment of the Land. The content of the covenants was only one of the factors she took into account in arriving at that conclusion.

[77] I also accept the submissions of the respondent that even if the grounds of appeal did identify errors of law made by the Supreme Court, the errors of law would not have been such as to vitiate the decision of the Tribunal because there was no real possibility that any of the errors could have affected the decision of the Tribunal or the Supreme Court. The Tribunal also dismissed the appeal for the following reasons. The proposed subdivision would require further clearing of native vegetation. There would be a decrease in the buffer between inconsistent land uses and the subdivision would create a precedent for the ad hoc rezoning of the land within the area. None of these findings are the subject of appeal to the Supreme Court.

[78] The appeal should be dismissed.

[1] (2009) 27 NTLR 164.

[2] [2010] NTCA 3; (2010) 27 NTLR 174.

[3] [2011] NTSC 34.

[4] Planning Act, s 133(1).

[5] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 at 177; par [9] to par [10].

[6] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 at 177 [par 11].

[7] S 51(t).

[8] S 9(1)(a).

[9] S 9(1)(b).

[10] NTPS cl 11.1.1.2. The lot in question was created well before the minimum 8 ha lot size came into force.

[13] Clause 11 of the NTPS is within Part 5.

[14] S 130(2) of the Act.

[15] S 130(3) of the Act.

[16] Decision of Tribunal 20/12/2010, par 42.

[17] Planning Act, s 3(1).

[18] See also Land Title Act, s 112.

[19] Northern Territory Planning Scheme cl 2.5.3 which states: The consent authority may consent to the development of land that does not meet the standards set out in Parts 4 or 5 only if it is satisfied that special circumstances justify the giving of consent.

[20] Planning Act s 133(1); Phelps v Development Consent Authority [2010] NTCA 3; (2010) 27 NTLR 174 at [9]; Crestwood Phoenix Darwin Pty Ltd v Kamarakis [1996] NTSC 104 at [2]; Tiver Constructions Pty Ltd v Clair [1992] NTSC 86; (1992) 110 FLR 239 at 255.

[21] Phelps v Development Consent Authority [2010] NTCA 3; (2010) 27 NTLR 174 at [10].

[22] Leichardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 per Moffit P; Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236 at 247 per Mildren J.

[23] Phelps v Development Consent Authority [2010] NTCA 3; (2010) 27 NTLR 174 at [23].

[24] Phelps v Development Consent Authority and Ors [2011] NTSC 34 at par [50] and par [51].