CITATION: John Robinson v Development Consent Authority NT LMT 51
PARTIES: JOHN ROBINSON
v
development consent authority
TITLE OF COURT LANDS AND MINING TRIBUNAL
JURISDICTION: LANDS AND MINING TRIBUNAL ACT
FILE NO(s): LMT-51-2001-P (20118114)
DELIVERED ON: 4 March 2002
DELIVERED AT: DARWIN
HEARING DATE(s): Not applicable
DECISION OF: D LOADMAN, CHAIRPERSON
CATCHWORDS:
PLANNING APPEAL – GROUNDS OF REFUSAL OF DEVELOPMENT PERMIT – GROUNDS ILL-CONCEIVED OR INCORRECT – IGNORING OF FAVOURABLE ASSESSMENT REPORT – FAILURE TO DISCLOSE OR GIVE REASONS FOR DOING SO – FAILING TO ALLOW OPPORTUNITY FOR APPLICANT TO ADDRESS GROUNDS OF ULTIMATE REFUSAL - DIRECTION TO ISSUE DEVELOPMENT PERMIT AND ANCILLARY MATTERS
Lands and Mining Tribunal Act NT
Planning Act NT
REPRESENTATION:
Appellant: June D’Rozario & Associates
Respondent: Self
Judgment category classification: B
Judgment ID number: NT LMT 51
Number of paragraphs: 86
IN THE lands and mining tribunal
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. LMT-51 - 2001-P (20118114)
BETWEEN:
JOHN ROBINSON
Appellant
AND:
DEVELOPMENT CONSENT AUTHORITY
Respondent
DECISION
(Delivered 4 March 2002)
Mr David LOADMAN, CHAIRPERSON
HISTORY
1. On 1 October 2001 an application was made to the Development Consent Authority for a development permit pursuant to section 46(1) of the Planning Act “(“PA”) and in a paragraph headed “Description of Development/Proposal” the value of works (excluding land) is stated at $3.5million. The text of the Proposal is “Construct boutique tourist resort with motels and villa’s accommodation. Convert existing functions centre to Resort Reception”.
2. On 9 November 2002 a Notice of Refusal No NR01/0030 was issued (“Notice of Refusal”). The text of the Notice of Refusal and the reasons for refusal are set out below:-
NOTICE OF REFUSAL N R01 /0030
DESCRIPTION OF SUBJECT LAND
Lot No.: 648 and 7287, 7266 and 7288
Town/Hundred: Town of Darwin
Street Address: 64 and 60 The Esplanade, 6 and 10 Herbert Street
The Development Consent Authority, at its meeting of 7 November 2001, resolved, pursuant to section 53(b) of the Planning Act, to refuse to consent to the application for motel including cabin accommodation, for the reasons set out in the attached Statement of Reasons, given under section 54(1)(a) of the Act.
STATEMENT OF REASONS FOR DETERMINATION
NOTICE OF REFUSAL
NR01/0030
Reason/s
1. The proposal particularly as it includes masonry constructed buildings represents an inappropriate level of development suitable to a temporary (maximum five years) utilisation of the site.
2. The proposal does not meet the objectives of the Central Darwin Land Use Objectives 1999 in relation to aesthetic building design.
3. On 20 November 2001 the Appellant lodged a Notice of Appeal at the Lands and Mining Tribunal pursuant to section 118 PA. The relevant material as set out in the Notice of Appeal are as follows:-
1. RELEVANT BACKGROUND
1.1. The Appellant applied to the Development Consent Authority for consent to develop a tourist accommodation complex on Lots 648, 7266, 7287 and 7288 Town of Darwin, situated at the intersection of The Esplanade and Herbert Street, Darwin.
1.2. The land is zoned CBD (Central Business Darwin) under the Darwin Town Plan 1990, and has an area of 7,740 m2
1.3. The land is the site of the former Hotel Darwin and adjacent Functions Centre.
1.4. An infrequently used Functions Centre is located on Lot 648, and the rest of the site is a surface car park, operating pursuant to a development permit issued for a short term only.
1.5. The development application sought approval to develop the site for tourist accommodation in one and twostorey motel buildings and in individual manufactured buildings, and to refurbish the existing Functions Centre as the Reception, Administration and Breakfast Room for the complex.
1.6. The proposal envisaged that the resort would fulfil an existing demand for inner city tourist accommodation until business conditions improved sufficiently to support development of the site for a more substantial and permanent purpose. Consequently, the proposal was devised to relocate the manufactured units to other tourist parks operated by the Appellant and salvage the motel buildings at the time of site redevelopment.
1.7. A copy of the plans of the development proposal and the Development Report prepared for the applicant are at Annexure 1.
1.8. The applicant also responded to issues raised during the public exhibition in a submission dated 5 November 2001. A copy is at Annexure 2.
1.9. The Authority considered the application on 7 November 2001 and issued Notice of Refusal NR01/0030 dated 9 November 2001. A copy of Notice of Refusal N/r01/0030 is at Annexure 3.
2 . GROUNDS OF THE APPEAL
2.1. The Authority is wrong in rejecting the proposal on the basis that the proposal represents an inappropriate level of development for a temporary (maximum five years) utilisation of the site because
2.1.1. the proposed development is for a purpose which conforms with the Planning Scheme, and as such, its temporariness is not relevant.
2.1.2. the proposal should not be judged against a speculative permanent development, but against the current use of the land as a surface car park, or if renewal of the permit for a surface car park is denied, against the prospect of the land reverting to a vacant lot.
2.1.3. the underlying stance, implicit in the Authority’s reason for refusal, that the site should be developed for a more substantial or permanent purpose is insufficient to vitiate the owner’s right to use the land for another conforming purpose.
2.1.4. there is nothing in any legislation or other prescriptive instrument that applies to this land which requires the owner to develop the land for a permanent purpose.
2.1.5. there is nothing in any legislation or other prescriptive instrument that applies to this land which requires the owner to develop the land for a permanent purpose in any particular time frame.
2.2. The Authority is wrong in rejecting the proposal on the basis that the proposal includes buildings of masonry construction and thus represents an inappropriate level of development for a temporary (maximum five years) utilisation of the site because
2.2.1. the Authority’s reason for refusal is predicated on an attempt to enforce a time limit of 5 years on the proposed development, the validity of which is rejected by the Appellant.
2.2.2. the relevant assessment is whether the buildings are suited to their intended purpose, and the Appellant says that masonry construction is very commonly used in commercial buildings and has proven its suitability for the purpose intended in the proposal.
2.3. The Authority is wrong in rejecting the proposal on the basis that the proposal does not meet the objectives of the Central Darwin Land Use Objectives 1999 in relation to aesthetic building design because
2.3.1. the aesthetics of building design are open to wide interpretation.
2.3.2. the Appellant addressed the merits of his building design in the Development Report, and does not agree that the proposal does not meet the objectives of the Central Darwin Land Use Objectives.
2.3.3. the Authority does not say in what ways the proposal does not meet the Central Darwin Land Use Objectives as they relate to aesthetic building design.
2.3.4. if the Authority was concerned about aspects of the aesthetics of the building design, it should have indicated the nature of its concerns to the applicant and afforded the applicant an opportunity to amend the design before it rejected the application.
2.3.5. to the extent that the Central Darwin Land Use Objectives suggest that the aesthetics of building design should demonstrate consideration of certain listed matters, the proposal addressed those matters.
2.3.6. a mere disagreement on what is or is not aesthetic building design is insufficient to constitute a valid ground of refusal.
4. Pursuant to section 121 of the Planning Act, a mediation conference was fixed by this Tribunal to commence on 14 December 2001. On 18December 2001, a Notice under section 127 PA was received from the Appellant advising that a compromise or settlement had not been reached. Further that the Appellant wished the matter to be determined by the Tribunal. The parties were accordingly instructed by the Tribunal to provide written submissions as directed.
PRELIMINARY COMMENTS OF THE TRIBUNAL
5. It is necessary to outline immediately that in the view of this Tribunal Reason No 1 of the Notice of Refusal is at worst capricious, at best an indication of a total misunderstanding of powers reposing in the Development Consent Authority.
6. The Tribunal will not repeat what is stated in any of the documents filed and as a consequence refers to the Notice of Appeal which in paragraph1 sets out the relevant background. At the outset the Tribunal highlights and adopts what is stated in paragraph 2 of the Grounds of Appeal. There is nothing in any planning philosophy or in any appropriate plan or use objective which is related to the duration of the existence of any structure or structures. It is the Tribunal’s view at the outset that a use in conformity with all legitimate requirements ought not be refused on the grounds that the construction is not permanent (whatever that may mean).
7. There is nothing in the application seeking a permit which entails the development existing for 5years. It follows that the first ground of refusal is completely untenable and based on an entirely wrong and inappropriate premise. In fact the ground is so lacking in any kind of logic or justification that the ground in itself is utterly specious.
8. In relation to the 2nd ground of refusal, the Notice of Appeal addresses these matters at paragraph 2.3. It should be noted that, with or in supplementation of the application, there was filed with the Respondent by the Appellant a document styled “Development Statement” and in that document under the heading Merits of the Proposal it is stated: “It is envisaged this Resort will have a medium term life ...”.
9. It is asserted by the Appellant in the Development Statement that it is a proposal consistent with Darwin Town Plan CBD zoning, which in fact is the relevant zoning “and satisfies the objectives”. It is stated:-
To accommodate a diversity of activities including high density commercial, retail, residential and tourist facilities and to encourage the development of a mixed use area with a maritime theme near the foreshore consisting primarily of residential and tourist accommodation and commercial, entertainment and leisure facilities in conjunction with a limited expansion of the existing waterfront and maritime industrial activities. [Appellant’s underlining]
This does not seem in any event to be in dispute.
10. It is asserted in the Development Statement that the development conforms to the “Darwin feel”. There is a focus on breezes, ventilation and style.
11. In the Development Statement, under the heading Concept it is stated
The shape and layout of the Villa units has been designed to provide a boutique resort feel, which will be enhanced by tropical landscaped gardens. The balconies take full advantage of our tropical environment, views, and the gardens to be planted, giving the guest a facility, which is not otherwise currently available in Darwin.
Landscaped buffer screens and brush style fences will be included to provide additional visual and acoustic privacy between Villas.
12. It is further asserted in the Development Statement under the heading A Tropical Landscape Design the following:-
Tropical screen landscaping will be provided to the street boundary, including an avenue of majestic tall palms along the street faces. These palms will be transplanted of mature size. Feature and buffer planting will be provided to the perimeter of the site, and around the buildings and car parks, with a truly tropical flavour in the selection of species. The proposed species selection and planting locations have been selected and designed by Tropical landscape designer Darryl South of Darwin Plant Wholesalers. This design will Compliment the Applicants other Resorts and form a part of an identifiable group, including Knotts Crossing, Palms Village Resort, and the soon to commence Gateway Resort, Palmerston.
13. The plans, copies of which have been filed with the Notice of Appeal, are detailed and appear to be comprehensive in all necessary respects. Leaving aside the Darwin Land Use Objectives, the Tribunal does not understand how any comment can be made to the effect that there is something intrinsically objectionable from the point of view of “aesthetic building design”. It does not seem to the Tribunal to be even remotely analogous to a situation for instance where some contemporary structure is being erected in the middle of a 300year old Georgian architecturally dominated city precinct. Almost anything aesthetically, would be more attractive than what is currently visible at the heart of Darwin’s tourist Esplanade which most resembles a War World II bomb site in London.
14. The material before the Respondent at the time of the application has been supplied to the Tribunal. From the Minutes of the DCA meeting of 7 November 2001, being the meeting at which it was resolved to refuse the application, it is notable that the Minute records that the “Lease term will be 10 yrs plus 10 years” which is construed to be a 10 year option to renew. The actual lease or even a draft form of it does not exist, but that does not detract from the information provided which there is no reason to expect is inaccurate.
15. Amongst that material is also the usual report prepared by Development Assessment Services entitled “Agenda Item 14” (“Item 14 Report”). It is notable that the Item 14 Report apart from anything else raised a necessary variation to the requirements of 21.1 of the Darwin Town Plan 1990 (“Darwin Plan”) which is a requirement relating to parking spaces. That of course was an eventuality never visited because of the refusal of the application on the grounds stated.
16. In paragraph 2 of the Item 14 Report it is asserted that the structures “can loosely be considered to be demountable structures”. That did not form part of either of grounds of refusal but in passing the Tribunal remarks that such a contention is without any foundation, having regard to the definition of demountable structure in the Darwin Plan. The structures are not such as conform to the definition of demountable structure the Darwin Plan at all.