Environment Law in the Northern Territory

Development Permits, Exceptional Development Permits and Significant Development Proposals

Development permits – when are they required?

A person must apply to the Development Consent Authority for a development permit to use or develop land if approval is required under the Planning Act. A development permit is required if the Northern Territory Planning Scheme or an interim development control requires consent or for the subdivision or consolidation of land. A development application must address certain matters under Section 46 of the Planning Act. These include:

  • whether the proposal is consistent with the Northern Territory Planning Scheme.
  • whether a Public Environmental Report or Environmental Impact Statement report is included with the application. This determined by the Minister for Natural Resources, Environment and Heritage after a development application has been submitted to the consent authority.
  • the merits of the proposal – this generally includes specific information about the proposed development.
  • whether the land is suitable for the proposed development
  • any potential impact on the existing or future amenity of the area affected by the proposal

Public notification and exhibition of the development application

After receiving a development application, the consent authority must notify the public of the proposal unless it is exempt from public notification. The Planning Regulations set out the requirements for public notification, and these include that:

  • a notice be published in a newspaper circulating in the Territory “generally” or in an area where the development is proposed;
  • a sign be placed on the land to be developed;
  • the notice in the paper and a sign on the land must include information regarding the land description, its land use zone, a brief description of the proposal, the date by which submissions must be received and the place to send submissions; and
  • the deadline for submissions is the date specified in the notice in the newspaper and on the sign on the land. Submission periods are at least 14 days from the date the notice first appears in the newspaper.

The consent authority places an advertisement in the NT News every Friday (complying with the Planning Regulation requirement for advertising in a newspaper “generally”). Additionally, the notice will be placed in any newspapers circulating in Alice Springs, Katherine, Batchelor, Tennant Creek, and Palmerston. The consent authority usually requires the applicant to erect a pink sign on the land advising of the application and inviting submissions.

Anyone can make a submission regarding the proposal to the consent authority within the timeframe specified in the public notice.

Objecting to development applications

Members of the public have the opportunity to make written submissions regarding development applications and exceptional development permit applications. Submissions on a development application must be made in writing to the consent authority (who is either the Development Consent Authority or the Minister for Lands and Planning).

Development applications are advertised by notice for a period of 14 days. Submissions must be received by the consent authority within the 14 day period.

The Planning Regulations provide that certain developments are exempt from public notification including certain accommodation (such as refuges) and some single dwellings (where the affected boundary does not adjoin a public thoroughfare) and industrial development (where it does not adjoin a residential zone) permitted without consent under the Northern Territory Planning Scheme.

The consent authority must write to any local council advising of a development application within the local council area and inviting the Council to make a submission within the period specified in writing. Usually this is 14 days, but it may be longer.

What can I include in my submission?

There is no requirement to lodge a submission in any particular form. However, submissions should include your name and address and clearly explain your objections. In order for the consent authority to consider your submissions, they must be relevant. Relevant matters are those that the consent authority can take into account in their decision whether or not to grant the development permit. The matters the consent authority must consider are set out at Section 51 of the Planning Act and include:

  • whether or not a proposal is consistent with the Northern Territory Planning Scheme and any planning scheme amendments that have been exhibited. For example, does the proposal comply with ‘performance criteria’ in the Northern Territory Planning Scheme that apply to environmental impact such as:
    • impact on a heritage item or object;
    • flood levels;
    • storage of hazardous materials; and
    • downstream impacts from excavation and fill.
  • any Public Environmental Report or Environmental Impact Statement prepared during environmental impact assessment of the project. Actions in the Northern Territory that are likely to have a significant impact on the environment require assessment under the Environmental Assessment Act and theEnvironmental Assessment Administrative Procedures;
  • the merits of the proposal, for example, whether the proposal is consistent with the purpose of the zone and is compatible with surrounding development;
  • whether the land is capable of sustaining the proposed development and its impact on the land or any other land, for example, the land may be flood prone or constrained in a way that would impact on the natural or built environment if consent is granted;
  • any requirements for public facilities or public recreation required to be provided by the proponent, for example, if the proposal is for a residential subdivision that is required to have a public open space component;
  • requirements for public utilities or infrastructure, for example, if there is a need for additional water or sewerage requirements due to the size of the development;
  • the potential impact of the proposal on the amenity of the area, for example, the impact of a commercial development adjacent or near a residential zone from noise or excessive traffic through a residential area;
  • public interest, for example, if the proposal is a large shopping centre, whether the proponent has adequately addressed community safety through crime prevention principles and access for persons with disabilities; and
  • any potential impact on natural, cultural or heritage values, for example, if the proposal will impact on nearby water body or natural vegetation, affect a significant site for Aboriginal people or affect a heritage building or site.

If you have an environmental concern about a development application and would like help preparing your submission, please contact the Environmental Defenders Office.

What happens to my submission?

After public submissions have been made, the consent authority (either the Development Consent Authority or the Minister for Lands and Planning) may invite any person or local Council who made a submission to appear before it and give evidence regarding the development application. This is an opportunity to present an objection in person to the consent authority. This may occur at one of the meetings of the Development Consent Authority.

If you have formed a group of residents to object to the proposal, you may wish to appoint a spokesperson to give evidence to the Development Consent Authority on behalf of the group.

The consent authority’s decision

After hearing evidence from those who made submissions, the Development Consent Authority must take into account the matters specified in Section 51 of the Planning Act (see above). The Planning Act states the Development Consent Authority must not consent to a proposal if, in its opinion, the proposal is contrary to a statement of policy or a prohibition or restriction applicable on the land (including an Interim Development Control Order) that is specified in the Northern Territory Planning Scheme. However, if the Minister is the ‘consent authority’, the Minister is permitted to consent to a proposal despite it being contrary to a planning policy specified in the Northern Territory Planning Scheme.

The Development Consent Authority may however consent to a proposal that is inconsistent with a specified planning policy in the Northern Territory Planning Scheme if it notifies the Minister of its intention in writing.

The consent authority must determine the development application “as soon as practicable” after considering it and do one of the following:

  • grant a conditional, or unconditional consent (the development permit)
  • alter the proposal “as it thinks fit” and grant a condition or unconditional consent
  • refuse the proposal

If third party appeal rights are available16, the consent authority must give the applicant, the local Council and a person who made a submission regarding the development application a notice of its decision (referred to as a “notice of determination in the Planning Act).

If there are no third party appeal rights available, or no public submissions have been made regarding the development application, the consent authority issues a ‘notice of consent’ to the applicant and notifies the local Council and any person who made a submission regarding the development application.

If the consent authority makes a determination to refuse the development application, the consent authority issues a “notice of refusal” to the applicant and notifies the local Council and any person who made a submission regarding the development application.

Notices of determination, notices of consent and notices of refusal must be made available for public inspection and purchase.

Appealing against decisions about development permits

The Planning Act provides limited appeal rights for objectors and local Councils (third party appeals) subject to the Planning Regulations.21 Appeals relate generally only to some residential development or non-residential development in a residential zone and only in limited circumstances.

The Planning Regulations set out when third appeal rights apply, which are:

  • for a single or multiple dwelling over two storeys high where the planning scheme limits the height to two storeys
  • building setbacks for multiple dwellings or medium density (dual occupancy or units) that do not comply with the planning scheme
  • development in a residential zone where the development is not consistent with the specific planning controls under the planning scheme (for example a medical centre that does not comply with specific building setback requirements or parking)
  • development is in a non-residential zone or on unzoned land and adjacent to a residential zone
  • development in a non-residential zone or on unzoned land and directly opposite land in a residential zone with a road width of less than 18 metres

Appeals must be made to the Lands, Planning and Mining Tribunal within 14 days after the person or Council receives a notice of determination.22 Only people who made an initial submission to the development application have the right to appeal the decision. An appeal may not be made for reasons of commercial competition.

The procedure to follow when lodging an appeal is:

  • lodge a Notice of Appeal form with Registrar for the Lands, Planning and Mining Tribunal
  • state the grounds of the appeal25 and pay the “prescribed fee” which according to the Department of Justice website is $679.
  • You may amend the grounds of appeal specified in the Notice of Appeal any time up to the conclusion of a compulsory conference on a date fixed by the Registrar.26

After you have lodged the appeal, the Registrar of the Lands, Planning and Mining Tribunal is required to set a date for a conference hearing between the parties and appoint a mediator. The conference is held to determine any compromise or settlement that is appropriate, and the mediator may make orders at the conference to expedite the matter. Evidence given during a conference is not admissible in any subsequent hearing of the Lands, Planning and Mining Tribunal to determine the matter.

If a compromise or settlement is not reached at the conference, an objector may give notice to the Registrar that they wish the matter to be determined by the Lands, Planning and Mining Tribunal. Once such a notice is given, as an appellant, you must make a written submission within 14 days to the Lands, Planning and Mining Tribunal stating your argument in relation to the grounds of appeal stated in your Notice of Appeal. The consent authority must also make a submission to the Tribunal within 14 days of receiving notice by the Registrar that the matter will be determined by the Lands, Planning and Mining Tribunal.

As an appellant, you may you may make a further written submission in response to the consent authority’s submission within 28 days after lodging the written notice to have the matter determined by the Lands, Planning and Mining Tribunal. The submission must not introduce new material or evidence that was not originally before the consent authority when it made the determination of the development application.

The Tribunal usually determines the appeal in the absence of the parties. However, it may “if it thinks fit” require a person to appear before it to answer questions.

Any person entitled to appear before the Tribunal must be notified by the Registrar of the date, time and place where evidence will be given. Evidence must be given in the presence of all the parties to the appeal (except if a party has declined an invitation to appear).  A party is not permitted to cross-examine any people giving evidence.34The Tribunal may engage a consultant with “expertise” in planning or development to assist it in determining the appeal. The Lands, Planning and Mining Tribunal is not bound by the rules of evidence.

Each party to the proceeding must pay their own costs unless the Tribunal orders otherwise. This means that you must usually pay your own legal costs unless the Tribunal orders the other party to pay. As costs are awarded at the discretion of the Tribunal, there is a risk that costs may be ordered against you. This means that you may be ordered to pay the legal costs of the other parties to the hearing, in addition to your own.

If the Tribunal determines the appeal and orders that a development permit be granted, the only legal remedy is a “judicial review”. The Planning Act states that any appeal against a determination of the Tribunal is to the Supreme Court on a “question of law”.  Any appeal must be made within 28 days of the date the Tribunal gave a written statement of the reasons for the determination.

You are not entitled to appeal against a determination by the Minister for Lands and Planning if the Minister has ‘called in’ the development application to make the Minister the consent authority rather than the Development Consent Authority. The Minister has the power by declaration to remove a right of appeal against a decision of the Minister as consent authority.

Amending existing development permits

An owner, or someone authorised by the owner of land subject to a development permit may apply to vary conditions of the permit before it expires. In practice, the ‘conditions’ of the permit include all the plans annexed to the permit so if a change to the plans is proposed, the applicant applies to vary the permit.

The application for variation of a permit must be in the approved form. The form requires an applicant to provide a detailed statement, which includes the reason for the variation and its impact on the development. There is no public exhibition requirement for variation of a development permit under the Planning Act.

The Planning Act provides the extent of the variation to the development permit that is permitted. The variation is limited to:

  • 5% of any measurable aspect of the development and the variation will not “materially” affect the amenity of adjoining or nearby land; and
  • if there is no ‘conveniently measurable’ aspect to the development, the variation must not “materially’ affect the amenity of adjoining or nearby land.

If the consent authority refuses the variation, it must give the applicant written reasons for the refusal.

Extending the expiry dates for existing development permits

Development permits run with the land. This means that they do not belong to the named person to whom they are issued. Instead, they belong to the land to which the permit relates. Development permits expire on the date stated on the permit. If no date is stated on the permit, the permit expires in two years from the date it is issued. If any works are required to be done under a condition contained in the permit and those works have substantially commenced, the life of the permit is automatically extended for a further 2 years. Effectively, this allows a 4 year period for a development to be completed.

The owner or a person authorised by the owner of land subject to a development permit, may apply to extend the period of the development permit 47 but only if the permit has not expired. An application must be made in an approved form. The applicant must give reasons for the extension of time. The application is not required to be advertised to the public. The consent authority may either extend the date of the permit “as it thinks fit” or refuse the application.48 If the application is refused, the consent authority must give written reasons to the applicant.

Exceptional development permits – when are they required?

Exceptional development permit are required for the following circumstances:

  • a proposal for development or land use that is prohibited under the planning scheme
  • changing an existing use to another use that does not comply with the Northern Territory Planning Scheme. The Planning Act makes “existing uses” that would otherwise be in breach of the planning scheme lawful. Existing uses are uses that existed lawfully immediately before the commencement of a planning scheme or an amendment to a planning scheme and a subsequent planning scheme made the use unlawful.
  • altering an ‘existing building’ or ‘existing works’ if the extent of the alterations will not alter a “measurable” aspect of the building or works by more than 5% and will not “materially affect” the amenity of adjoining or nearby land. If there is no “measurable” aspect, the extent of the alterations will not “materially affect” the amenity of adjoining or nearby land.
  • An “existing building” means a building that existed before the planning scheme commenced, was “lawful” at that time and would not be “lawful” under the current planning scheme.
  • “Existing works” means works that were undertaken before the planning scheme commenced, was “lawful” at that time and would not be “lawful” under the current planning scheme.
  • demolishing and reconstructing an ‘existing building’ used for an ‘existing use’
  • where an exceptional development permit has already been granted, application may be made to vary that permit

Once the Minister for Lands and Planning has received an application for an exceptional development permit, the Minister may do one of the following:

  • Place the proposal on exhibition in a newspaper circulating in the Northern Territory or in the area to which the proposal relates
  • If the proposal is to vary an existing exceptional development permit, decide the proposal is not so significant that public exhibition is not required
  • Refuse to grant or vary the exceptional development permit without placing
  • the proposal on exhibition

Public exhibition of a proposed exceptional development permit

If the Minister decides to place the exceptional development permit on exhibition, the proposal is exhibited for a minimum of 28 days starting on the day the notice is first published in the newspaper.

The Minister must also request the applicant to place a notice on the land to which the exceptional development permit application relates advising the public of the details of the proposal for the entire 28 day period unless the Minister considers this to be impracticable and that notice by newspaper will suffice. The planning notices for exceptional development permits are available from the Department of Lands and Planning website at ‘Development Applications Online’.

Submissions to a proposed exceptional development permit

Members of the public are entitled to make written submissions relating to an exceptional development permit within the 28 days it is on public exhibition. Submissions should be sent to the address specified in the notice.

The Minister for Lands and Planning must also notify a local Council of any proposed exceptional development permit that applies to land within a council area.

Your submission is made to a ‘reporting body’ which is the Development Consent Authority or a person or panel appointed by the Minister.

In order to make a submission relevant, it should address the matters that the Minister must take into account when determining the exceptional development permit.

The Minister must not grant an exceptional development permit for a development or use of land that is prohibited by the planning scheme unless the Minister is satisfied that it is preferable to issue the permit rather than to amend the relevant planning scheme.

The matters the Minister must taken into account when determining an exceptional development permit are:

  • An environment protection objective under the Waste Management Pollution Control Act
  • An environmental assessment under the Environmental Assessment Act
  • The merits of the proposed development
  • The capability of the land to which the proposed development relates to support the proposed development and the effect of the development on the land and on other land, the physical characteristics of which may be affected by the development
  • The public facilities or public open space requirement, if any
  • Public utilities and infrastructure
  • The potential impact on the existing and future amenity of the area on which the land is situated
  • The public interest including community safety, water safety and access for persons with disabilities
  • Any potential impact on natural, social, cultural or heritage values
  • Any beneficial uses, quality standards, criteria or objectives that are declared under the Water Act
  • Other matters he/she thinks fit

Hearing of an exceptional development permit

The reporting body must conduct a hearing to consider any submissions and invite all persons who made submissions to appear before it. The reporting body is the Development Consent Authority when the proposal is within one of its divisional areas. The Minister may also appoint the Development Consent Authority to be the reporting body when the proposal is outside one of the divisional areas.

Any hearing must be conducted with a minimum of formality and in a “manner that ensures procedural fairness”.

The hearing is an opportunity to present your argument in person to the Development Consent Authority (or reporting body). The hearing usually takes place at one of the monthly meetings of the Development Consent Authority.

The Minister for Lands and Planning may issue a written request to the Development Consent Authority (or reporting body) to “carry out” consultation with certain persons, and the manner in which those persons will be consulted.  Such a request may include consultation with the Northern Territory Environment Protection Agency.

Following the hearing into any submissions received or consultation required to be carried out by the Minister for Lands and Planning, the Development Consent Authority (or reporting body) must provide a written report about issues raised in the submissions, the issues raised at the hearing and during any consultation and “any other matters” the reporting body consider the Minister “should” take into account when considering the proposal. The reporting body then provides the report to the Minister for Lands and Planning.

The Minister may also request any other person or body to provide a written report to the Minister about relevant matters regarding the proposal or anything referred to in the reporting body’s report.

Decision on exceptional development permit

The Minister is the decision-maker regarding exceptional development permits.

After considering a report from the Development Consent Authority and the matters the Minister is required to take into account under section 51, the Minister may:

  • Grant a permit in accordance with the proposal
  • Alter the proposal and either require it to be placed on public exhibition or grant a permit for the altered proposal
  • Refuse to grant a permit

The Minister must publish a notice in the Northern Territory Government Gazette of the decision.

Appeal Rights – exceptional development permits

There is no right to appeal a decision made by the Minister to either grant or refuse to grant an exceptional development permit. However, if you believe the Minister or the reporting body has not complied with the procedure for determining the exceptional development permit, a judicial review of the decision may be possible. Please contact the Environmental Defenders Office if you would like to find out more information about your appeal rights.

Significant development proposals

A new avenue for the review of certain proposals that may have significant impacts was introduced in the 2012 amendments to the Planning Act.

Three types of development need to be assessed as a significant development proposal.  These are development proposals that may have significant impact on:

  • strategic planning in the sustainable use of resources;
  • strategic planning in transport corridors and other public infrastructure; and
  •  natural environment or amenity of the land, adjoining land or other areas, covering both the development phase and subsequent use.

The Planning Act may accommodate further areas via its regulations.  To date, however, significant devlopment proposals are limited to these three types of developments.

The significant development process requires the Commission to provide a report to the Minister that:

  • considers the proposal development in relation to the object of the Planning Act
  • identifies the possible impacts of the proposal on future land use and development; and
  • provides advice to the Minister about these identified impacts.

The Commission may also include advice in its report regarding strategic planning implications of the proposal and may  identify Crown land that may be suitable for the proposal.

The trigger for when a significant development report may be requested includes when a consent authority receives and assesses a particular development application as being significant and the Commission has not already provided a report on that application. The Minister may make a determination the proposal is not to be a significant development.

Where a significant development report is provided, the findings in that report must be taken into account by the authority determining the application.  If the Minister determines an application that is contrary to the advice received in the significant development report then the Minister must, within 6 days of making a determination, table in the Northern Territory Parliament reasons why the advice was not followed and include details of the significant development report.  Where consent is granted, the Minister must provide particulars to any person who made submissions regarding the application that include their rights of appeal of the decision or reasons why no right of appeal is permitted.

When is environmental impact assessment required?

If a proposal is likely to have a significant impact on the environment the proposal may be assessed under the Northern Territory Environmental Assessment Act and Environmental Assessment Administrative Procedures.   For more information, please read our Fact Sheet on “Environmental impact assessment for more information“.