Gregory John Perry v Attorney General of the Northern Territory

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Hiley J
• Judgment Date: 19 May 2014
• Neutral Citation: [2014] NTSC 17
• Date: 19 May 2014
• Docket Number: FILE NO: No. 13 of 2014 (21410222)

[2014] NTSC 17

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Hiley J

FILE NO: No. 13 of 2014 (21410222)

Between:

Gregory John Perry

Plaintiff

and

Attorney General of the Northern Territory

First Defendant

and

Lands, Planning and Mining Tribunal

Second Defendant

and

Group 1 Consulting Pty Ltd (ACN 066 014 328)

Third Defendant

REPRESENTATION:

Counsel:

Plaintiff: Mr Hayes QC, Mr McIntyre

First and Second Defendants: Mr Bruxner

O'Connell v Nixon (2007) 16 VR 440 ; Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 87 ALJR 162, applied

British American Tobacco Australia v Western Australia (2003) 2017 CLR 30 ; Cohns Industries Pty Ltd v Deputy Commissioner of Taxation (Cth) (1979) 37 FLR 508; R v Tkacz (2001) 25 WAR 77; Solomons v District Court (NSW) (2002) 211 CLR 119; Victims Compensation Fund v Brown and Ors (2002) 54 NSWLR 668; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, referred to

Interpretation Act 1978 (NT)

Planning Act 1999 (NT)

Planning Regulations 2000 (NT)

DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7 ^th ed, 2011)

ENVIRONMENT & PLANNING — Development control — Appeals against decision of consent authority — Third party rights of appeal — Planning Act 1999 (NT) s 117

STATUTORY INTERPRETATION — Words and phrases — ‘including’ — Planning Act 1999 (NT) s 117(4)

STATUTES — Regulations — Validity — Planning Regulations 2000 (NT) r 14, 15

STATUTES — Regulations — Abrogation or modification of statutory rights by regulation — Planning Regulations 2000 (NT) r 14, 15

REASONS FOR JUDGMENT

(Delivered 19 May 2014)

Introduction

1 The plaintiff owns and resides at a property next door to Lot 689 Town of Darwin, 6 Schultz Street, Larrakeyah, NT ( the Land) which was subject of a development application by the third defendant under s 46 of the Planning Act 1999 (NT) ( the Act). On 16 December 2013 the Development Consent Authority ( the DCA) issued Development Permit DP13/0850 under s 53(a) of the Act consenting to the proposed use and development subject to conditions. The Development Permit allows the Land to be used and developed ‘for the purpose of a 3 x 3 bedroom multiple dwellings in 1 ? 2 storey building, in accordance with the attached schedule of conditions and the endorsed plans.’

2 By letter dated 16 December 2013 addressed to the third defendant and copied to a number of other people including the plaintiff, the DCA advised of its decision to grant consent and its reasons, attached a copy of the Development Permit and gave advice concerning rights of appeal to the ‘Appeals Tribunal’. The letter advised that ‘there is no right of appeal by a third party under s 117 of the Act in respect of this determination as s 117(4) of the Act and regulation 14 of the Planning Regulations apply to the application.’

3 On 30 December 2013 the plaintiff lodged an appeal against the determination with the second defendant purportedly under s 118 of the Act. On 6 January 2014 the second defendant wrote to the plaintiff advising that it was ‘of the view that there is no right of appeal’ having regard to s 117 of the Act and Part 4 of the Planning Regulations 2000 (NT) ( the Regulations).

4 In these proceedings the plaintiff is challenging the second defendant's refusal to entertain his appeal against the grant of the Development Permit. In order to do so he seeks a declaration that sub-regulations 14(2) and 14(3) of the Regulations are invalid and are of no legal effect. If such a declaration is made the plaintiff seeks orders quashing the second defendant's decision refusing to entertain his appeal and remitting the plaintiff's appeal back to the second defendant to be heard and determined according to law.

5 The first defendant intervened and was substituted as a party. The other defendants agreed to abide the decision of the Court subject to the question of costs.

Relevant legislation

6 On 30 September 2005 s 117 of the Act and corresponding amendments to the Regulations came into effect. The relevant regulation was regulation 15. Prior to then there was no provision for appeals by third parties in respect of development applications.

7 Section 117 provides as follows:

‘117 Appeals by third parties in respect of development applications

• (1) Subject to the Regulations, a person or local authority who made a submission in accordance with section 49 in relation to a development application may appeal to the Appeals Tribunal against a determination under section 53(a) or (b):

  • (a) to consent to the development, as proposed or as altered; or

  • (b) to impose conditions on the proposed development or proposed altered development, including a condition referred to in section 70(3).

• (2) The appeal must be made within 14 days after the person or local authority is served with the notice of determination in respect of the development application.

• (3) A person or local authority must not appeal under this section for reasons of commercial competition.

• (4) The Regulations may specify other circumstances under which there is no right of appeal under this section, including by reference to the type of development in conjunction with:

  • (a) the zone of the land on which the development is to take place;

  • (b) the zone of land adjacent to the land on which the development is to take place; or

  • (c) the zone of land referred to in both paragraph (a) and (b).

    Example for section 117

    The Regulations may specify there is no right of appeal in respect of development on land zoned for industrial use or development unless the land is adjacent to land zoned for residential use or development.’

8 Regulation 15 (now repealed) provided as follows:

‘15 Circumstances when no right of third party appeal

• (1) For section 117(4) of the Act, this regulation specifies circumstances under which there is no right of appeal under section 117 of the Act against a determination of the consent authority.

• (2) There is no right of appeal if the determination relates to the subdivision or consolidation of land.

• (3) There is no right of appeal if the determination relates to any of the following proposed developments on land to which a planning control provision applies:

  • (a) a detached dwelling not exceeding 2 storeys above ground level;

  • (b) attached dwellings not exceeding 2 storeys above ground level;

  • (c) any other type of development on land in any zone except a residential zone, or on land for which no zone is specified, unless the land –

    • (i) is adjacent to land in a residential zone; or

    • (ii) is directly opposite land in a residential zone and is on the other side of a road with a reserve of 18 m or less in width;

  • (d) a non-residential use in a residential zone if the use complies with all the planning control provisions relating to the use and the consent authority, in making the determination, has not exercised any power it has in respect of the planning control provisions to vary or waive that compliance.

• (4) There is no right of appeal if the determination relates to a proposed non-residential use of land in a residential zone if –

  • (a) the relevant Plan does not include any planning control provision relating to the non-residential use; and

  • (b) the proposed non-residential use complies with the criteria for the use specified in Schedule 1, Part B.’

9 Regulation 15 was replaced by (the current) regulations 14 and 15. They came in to force on 1 February 2007. Regulation 14 provides as follows:

‘14 NT Planning Scheme – when no right of third party appeal

• (1) This regulation specifies circumstances under which there is no right of appeal under section 117 of the Act against a determination of the consent authority relating to development on land to which the NT Planning Scheme applies.

• (2) There is no right of appeal if the determination relates to the subdivision or consolidation of land.

• (3) There is no right of appeal if the determination relates to any of the following proposed developments on land to which a planning control provision applies:

  • (a) a single dwelling or multiple dwelling not exceeding 2 storeys above ground level;

  • (b) setbacks for a single dwelling;

  • (c) any other type of development on land in a residential zone if it complies with all the planning control provisions relating to the development;

  • (d) any other type of development on land that is not in a residential zone, or for which no zone is specified, unless the land:

    • (i) is adjacent to land in a residential zone; or

    • (ii) is directly opposite land in a residential zone and is on the other side of a road with a reserve of 18 m or less in width.’

10 The new regulation 15 is very similar to (the new) regulation 14, but relates to land to which the Jabiru Town Plan applies, as distinct from land to which the NT Planning Scheme applies.

Contentions and consideration

11 Although it is regulation 14(3)(a) which would apply in the present matter, the plaintiff challenges the validity of the whole of regulation 14(3) and also of regulation 14(2) on the basis that they are not regulations authorised by s 117(4) of the Act (or by any other provision such as the broader regulation making power contained in s 148). The plaintiff also contends that regulation 14(2) and (3) are not capable of meaningful severance and that the whole regulation should be struck down. (The same consequences would apply to regulation 15 if the plaintiff's contentions were correct.)

12 The plaintiff contends that the right of appeal conferred upon third parties by s 117 is broad and is only limited by s 117(3) and regulations that specify circumstances of the kind described after the word...