Ana səhifə

Parties: robert roos and beverly roos


Yüklə 356.37 Kb.
səhifə1/4
tarix13.06.2016
ölçüsü356.37 Kb.
  1   2   3   4


CITATION: Robert Roos and Beverly Roos v Development Consent Authority NT LMT-87-2005-P (20508828)
PARTIES: ROBERT ROOS AND BEVERLY ROOS
v
development consent authority
TITLE OF COURT LANDS AND MINING TRIBUNAL
JURISDICTION: LANDS AND MINING TRIBUNAL ACT
FILE NO(s): LMT-87-2005-P (20508828)
DELIVERED ON: 31 August 2005
DELIVERED AT: DARWIN
HEARING DATE(s): Not Applicable
DECISION OF: D LOADMAN, CHAIRPERSON
CATCHWORDS:
Lands and Mining Tribunal Act NT, Planning Act NT
REPRESENTATION:
Counsel:

Appellant: June D’Rozario

Respondent: John Pinney
Solicitors:

Appellant: June D’Rozario and Associates

Respondent: Development Consent Authority
Judgment category classification: B

Judgment ID number: LMT-87-2005-P

Number of paragraphs: 53

IN THE lands and mining tribunal

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA


No. LMT-87-2005-P (20508828)

BETWEEN:
ROBERT ROOS AND BEVERLY ROOS

Appellant
AND:
DEVELOPMENT CONSENT AUTHORITY

Respondent


DECISION

(Delivered 31 August 2005)


Mr David LOADMAN, CHAIRPERSON

HISTORY

  1. This is an Appeal against the refusal by the Development Consent Authority (DCA) to consent to a four lot sub-division for rural living of Section 4458 Hundred of Strangways located at 340 Virginia Road Virginia (the Property). The Property is zoned RL1 (Rural Residential 1) under the Litchfield Area Plan 2004 and is possessed of an area of approximately 9.66 hectares. The application, sought to sub-divide the four allotments, each containing a minimum area of 2.0 hectares for detached dwelling sites, although relevantly the following uses are permitted according to the zoning table appended to the Litchfield Area Plan 2004:-

  1. Business Sign

  2. Dependant Unit

  3. Domestic Livestock

  4. Flora and Fauna Sanctuary

  5. Home Based Contracting

  6. Home Occupation.

    There are also numerous uses permitted with DCA consent, namely:-

  1. Agriculture

  2. Bed and Breakfast Accommodation

  3. Child Care Centre

  4. Community Centre

  5. Horticulture

  6. Intensive Animal Husbandry

  7. Kennel and Cattery

  8. Nursery

  9. Retail Agricultural Stall

  10. Rural Industry

  11. Special Purpose

  12. Sports and Recreation

  13. Supporting Accommodation

  14. Veterinary Clinic

  1. The full history preceding 25 June 2005 in respect of the Application is not something which the Tribunal proposes to set out. The Application was originally made on 6 September 2004 and after several communications between the Appellants’ agents and the DCA, the DCA indicated a preparedness to grant an Application, if amended as required by them, but on the 3 February 2005 the agent for the Appellant informed DCA the Application would not be so amended and requested the Application be determined.

  2. A Notice of Refusal dated 23 March 2005 is in the following terms:-







  1. Against the Refusal the Appellants appeal on the following grounds:-











GROUNDS OF THE APPEAL


  1. Section 44(b) PA requires a Development Permit issue “if the proposed development is the sub-division or consolidation of land”.

  2. In respect of the Appeal, the DCA lodged submissions in support of the Refusal of the Appeal signed by delegate Richard Luxton 26 May 2005 and filed the same day. Those submissions are set out below:-





























  3. The Appellant lodged submissions also signed filed and served 26 May 2005 (“The Appellants submissions”) and those submissions are set out below:-

PLANNING ACT 1999

APPEAL AGAINST

NOTICE OF REFUSAL NR05/0009
BETWEEN:
Robert Roos and Beverly June Roos

Appellants


AND:
Development Consent Authority

Respondent



LMT 87-2005-P

SECTION 128(1) PLANNING ACT – APPELLANTS’ SUBMISSION

_________________________________________________________
RELEVANT BACKGROUND


  1. The Appellants are the registered owners of Section 4458 Hundred of Strangways.

  2. Section 4458 is situated at 340 Virginia Road, Virginia. The land is zoned RL1 (Rural Residential 1) under the Litchfield Area Plan 2004 and has an area of about 9.66 hectares. The land was previously used to graze cattle, and the improvements include a detached dwelling, 4 bores, fencing, power supply, and vehicle access.

  3. On 6 September 2004, the Appellants applied to the Development Consent Authority for approval to subdivide the land into 4 allotments, each with a minimum area of 2.0 hectares, for detached dwelling sites.

  4. A copy of the Development Report prepared by the Applicants, plans of the proposal, and further information furnished to the Development Consent Authority are at Annexure 1 of the Notice of Appeal.




  1. The Applicants also responded to issues raised during the public exhibition of the proposal in a submission dated 21 October 2004. A copy is at Annexure 2 of the Notice of Appeal.




  1. At the hearing of the application on 22 October 2004, the Applicants made oral submissions and answered questions put by members of the Authority.




  1. The Authority considered the application on 22 October 2004 and issued a letter dated 25 November 2004, indicating a resolution to determine the application if the application were amended in the manner set out in the letter. A copy of the Authority’s letter is at Annexure 3 of the Notice of Appeal.




  1. On 3 February 2005, the Applicants informed the Authority that they declined to amend the application in the manner required by the Authority’s letter of 25 November 2004, and requested determination of the application. A copy is at Annexure 4 of the Notice of Appeal.




  1. The Authority issued Notice of Refusal NR05/0009 dated 23 March 2004. A copy of Notice of Refusal NR05/0009 is at Annexure 5 of the Notice of Appeal.




  1. Pursuant to s 111(1) of the Planning Act, the Applicants appealed against the Authority’s determination to refuse consent to the proposal in their development application.




  1. A compulsory conference was convened on 9 May 2005 under s 121 of the Planning Act, but no compromise or settlement was achieved. Consequently, the Appellants applied to have the appeal determined by the Appeals Tribunal.


GROUNDS OF THE APPEAL


  1. The Grounds of Appeal set out in the Notice of Appeal are :




    1. The Authority is wrong in rejecting the proposal on the basis that the proposal is contrary to the NT Planning Scheme because the proposal complies with the NT Planning Scheme, as outlined in the Grounds of Appeal that follow.



    1. The key culture and land use objective, to maintain and enhance the high level of amenity for residents of the shire and visitors, on which the Authority relies in Reason for Decision 2, is insufficient to reject the application because -

      1. it infers a single and “high” level of amenity in the shire, when the reality is that there are widely varying levels of amenity in Litchfield, many of which are documented in Litchfield Planning Concepts and Land Use Objectives 2002.

      2. a broadly expressed land use objective, embodying phrases of indefinite meaning, should not override more specific land use objectives relevant to the particular development which was the subject of the application, and with which the application complies.

    2. The factors upon which the Authority formed its opinion, set out in Reason for Decision 2, that the proposal is contrary to a land use objective to maintain and enhance the high level of amenity for residents of the shire and visitors, lack foundation because -

      1. there is no requirement in the Planning Scheme for subdivided lots to meet any specific minimum width, or depth to width ratio.

      2. the relevant assessment is whether a dwelling site, bore and waste system can be sited on each lot, while meeting the necessary separation distances and building setbacks, and the application demonstrated that this could be done. Accordingly, the Authority’s conclusion that its width or depth would limit Lot B’s future rural residential amenity is arbitrary.

      3. the lot geometry of Lots A, B and C is a result of analysis of the land’s attributes and the requirements for dwelling sites, and the lot boundaries have been set to provide compliant dwelling sites within the constraints of those attributes and requirements.

      4. the proposal provides viable dwelling sites within each proposed lot, and the siting restrictions arising from the attributes of each lot in the proposed subdivision are no greater than those applicable to any of the hundreds of other lots in the RL1 zone in Litchfield that are similarly or more severely affected.

      5. it is not undesirable to restrict land use opportunities in the RL1 zone. An essential purpose of the Planning Scheme is to facilitate such restrictions, and the Litchfield Planning Concepts and Land Use Objectives 2002 and the Litchfield Area Plan 2004 are replete with such restrictions.

      6. land use opportunities in the RL1 zone are determined by the zoning table for that zone, and all the uses permitted as of right in that zone are able to be carried out on the proposed lots.

    3. The Authority is wrong in rejecting the proposal on the basis set out in Reason for Decision 3, that the proposal is contrary to a residential land use objective to provide sufficient residential land to supply the market, while retaining the amenity and lifestyle of existing rural living areas and minimising detrimental environmental impacts, because -




      1. the method by which the proposal meets the objective (ie. providing sufficient area within each lot to accommodate a dwelling, associated bore and waste disposal system, and the necessary separations) is expressly stated in Litchfield Planning Concepts and Land Use Opportunities 2002 as being a way of achieving the relevant land use objective.

      2. the proposed subdivision layout considered the physical capability of the land to support rural living. That some parts of the proposed lots are unsuitable for dwelling construction or waste disposal does not render those parts unsuitable for other purposes associated with rural living. These activities include planting native vegetation, establishing and cultivating a garden, cultivating shadehouse plants, establishing native fauna habitats, growing tropical fruit, keeping domestic pets, all of which activities are commonly embraced by lot owners in Litchfield as falling within the accepted meaning of rural living.

      3. the application materials having dealt with all relevant issues of amenity of the existing rural living area and the environmental impact of the proposal, there is no reasonable basis for the Authority’s conclusion that the proposal does not retain the amenity and lifestyle of the existing rural living area and fails to minimise detrimental environmental impacts.

    1. The Authority is wrong in rejecting the proposal on the basis set out in Reason for Decision 4, that the proposal is contrary to the Environmental Management land use objective to protect the natural attributes of Litchfield Shire as important contributors to the amenity of the area, because -




      1. the only assertion in Reason for Decision 4 in support of this proposition - that the application has not assessed the significance of natural vegetation and natural drainage - is baseless in that the application materials considered the natural attributes of the site, and that assessment was not contested.

      2. the Authority did not exercise its power under s 46(4)(b) of the Planning Act to require further information on this matter, or otherwise request the Applicants to furnish further information on this matter.

      3. if the Authority was concerned about any aspect of the assessment of natural vegetation and natural drainage, it should have indicated those concerns to the Applicants and afforded the Applicants an opportunity to answer those concerns before it rejected the application.




    1. The Authority is wrong in rejecting the proposal on the basis set out in Reason for Decision 5, that the proposal is contrary to Clause 11.1 of the Litchfield Area Plan, because there is no reasonable basis upon which the Authority’s requirement for each lot to contain 2 hectares of “unconstrained land” can be justified.




    1. The Authority is wrong in rejecting the proposal on the basis out in Reason for Decision 6, that the proposal is contrary to Clause 11.3 of the Litchfield Area Plan, because -

      1. this clause applies only to land within a Priority Environmental Management Area, and there is no basis upon which the Authority could have concluded that the subject land is within a Priority Environmental Management Area.

      2. in preparing the application, the Applicants made inquiries of the agency named in clause 11.3 as having produced the map referred to in that clause, and asked to inspect the map. The agency informed the Applicants that it was unable to meet the request because there was no map in existence that answered the description in clause 11.3. Accordingly, the application report stated that clause 11.3 did not apply.

      3. the application was referred to the agency named in clause 11.3, and there is nothing in that agency’s submissions that suggests that the subject land is in a Priority Environmental Management Area.

      4. if the Authority had the map referred to in clause 11.3 at the time it made its decision on the application, it should have disclosed that fact to the Applicants and afforded them the opportunity to consider the effect of clause 11.3 on the application, and especially so because, according to Reason for Decision 6, the clause would have required the Applicants to cede some of their land to public ownership.

    2. The factors upon which the Authority concluded, in its Reason for Decision 7, that the proposal is not in the public interest - that the proposal does not adequately allow for the constraints of the land and unreasonably restricts land use opportunities consistent with the rural living zone - are insufficient to reject the application, because -

      1. the application materials comprehensively dealt with the constraints of the land, and demonstrated that the requirements for a detached dwelling, bore and waste system and the necessary separations between these items could be met on each proposed lot.

      2. land use opportunities in the RL1 zone are determined by the zoning table for that zone, and all the uses permitted as of right in that zone are able to be carried out on the proposed lots.


APPELLANTS’ ARGUMENT IN RELATION TO THE GROUNDS OF APPEAL

First Ground of Appeal


  1. This ground does not require detailed argument because Reason for Refusal 1 does not specify any particular ways in which the proposal is contrary to the Litchfield Land Use Objectives and Planning Concepts 2002 or Litchfield Area Plan 2004. Other reasons in the Notice of Refusal identify the provisions with which the proposal is said to be contrary, and these assertions are answered in other Grounds of Appeal.


Second Ground of Appeal


  1. This Ground of Appeal answers Reason for Decision 2 in the Notice of Refusal. First, the Appellants argue that Reason 2 is insufficient to reject the application. It infers that there is a single and uniformly “high” level of amenity in the shire whereas the Litchfield Planning Concepts and Land Use Objectives 2002 document a very different picture. The document outlines several issues of land use conflict and circumstances that affect amenity in Litchfield. These include –




  • effect of aircraft noise on residents, extending from Thorngate to Howard Springs – p A15




  • proximity of existing rural residential subdivisions to biting insect breeding sites – pp A3, A13




  • that control of vegetation clearing has not been particularly effective in protecting natural resources or wildlife habitats – pp 15, A14




  • tensions between rural residential lot owners and owners of lawful nonconforming commercial and industrial developments – pp A4, A14




  • conflict between extractive mining activities and rural living – p A7




  • conflict between horticulture and rural living on 2 hectare lots – pp A8, A14




  • effect of traffic generation from Robertson Barracks on Thorngate locality – p A15



  1. The shire contains an area of more than 3,000 km2, so it is to be expected that these conditions affect individual localities to varying degrees, ranging from no effect to severely affected. In addition, experience of living and working in Litchfield indicates that, even in localities not affected by any of these conditions, the quality of amenity varies widely. Many factors contribute to the quality of amenity in any of the localities in Litchfield. There is no way of knowing which particular amenity level the application should be called upon to maintain and enhance. Consequently, assessing a proposal covering about 9 hectares against an arbitrary “high” level of amenity supposedly enjoyed across an area of more than 3,0000 km2 will not produce any credible judgement.




  1. Secondly, the land use objective relied upon to reject the application is broadly expressed and contains phrases of indefinite meaning. The Appellants say that this objective should not override more specific objectives relevant to the proposal, with which the proposal complies. This is also the approach taken in the Litchfield Planning Concepts and Land Use Objectives 2002. There, at p 1, in the second column, is the statement :

“The land use objectives are presented as




  • Key Objectives which establish broad principles guiding all development; and




  • Detailed objectives relevant to particular land uses, activities and necessary infrastructure or land use issues which establish more specific guidelines relevant to particular land uses or issues.” (Appellants’ emphasis)



    1. At p 3, under the heading Key Land Use Objectives is the statement :

“The land use objectives in this section, which are shaded, establish broad policy applicable to all development within the shire. The planning concepts illustrate factors which can contribute to the achievement of the objectives. More detailed objectives relevant to particular land uses will promote development in accordance with the principles established by these Key Objectives.” (Appellants’ emphasis).




    1. The detailed objectives relied upon in the Notice of Refusal will be answered in later Grounds of Appeal.


Third Ground of Appeal


    1. This Ground of Appeal also relates to Reason for Decision 2 in the Notice of Refusal. The Appellants argue that the factors upon which the Authority formed its opinion that the proposal is contrary to a land use objective to maintain and enhance the high level of amenity for residents of the shire and visitors lack foundation.




    1. Regarding Lot B, the Authority contends that this lot is narrow, its depth to width ratio is greater than 4:1, and that these attributes would limit the future rural residential amenity of the lot.

  1   2   3   4


Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©kagiz.org 2016
rəhbərliyinə müraciət