Tribunal confirms authority’s decision not to prosecute clearing that breached a permit (NTCAT, 2026)

What happened

In November 2018 the Development Consent Authority issued a development permit for the subdivision of a lot at Lee Point in Darwin to create 513 residential lots. A variation in July 2022 allowed the development to proceed in five stages. Building the lots meant clearing native bushland, and the permit said that before work could start on each stage the developer, Defence Housing Australia, had to prepare three documents to the authority's satisfaction: a shorebird monitoring program, a construction and environmental management plan, and an erosion and sediment control plan. By April 2024 those conditions had been met for stage 1 only.

Clearing began on 30 April 2024, carried out by a subcontractor engaged by Defence Housing Australia. Two different sets of maps of the site existed. One, prepared for a federal environmental approval, numbered the stages 2 to 6. The other, prepared for the planning approval and called Map 2CRU, numbered them 1 to 5. The subcontractor cleared stage 1 on Map 2CRU and also part of stage 2 on that map, which was the area labelled stage 3 on the other map. The management plans for that area had not been approved, so the clearing broke the permit conditions.

Defence Housing Australia said it had given its subcontractor a verbal instruction before any clearing started not to clear "Stage 3". There was no evidence that anyone told the subcontractor which of the two maps that instruction referred to. Clearing was stopped on 2 May 2024 on Defence Housing Australia's direction, and on the same day it told Development Assessment Services of the Northern Territory Government what had happened. The missing clearances were later obtained and on 23 July 2024 the clearing was confirmed as compliant with the permit.

The community group and a second applicant each complained to the authority and then each applied to the tribunal for review. Just before the hearing the second applicant asked for leave to withdraw his application, with consent orders signed by his solicitors and the authority's. The group did not object, and the tribunal also ordered that the material he had filed stayed in evidence and could be relied on by the group and the authority.

What each side wanted

The group argued that the developer was reckless: it knew the two maps numbered the stages differently, it was a well-resourced and experienced developer, and it gave only a verbal instruction naming "Stage 3" without saying which map it meant, so a breach of the permit was reasonably foreseeable. The group said the confusion was entirely self-inflicted and the result of inadequate planning and oversight. The authority said the clearing happened because of miscommunication made worse by the two sets of maps, that it could not prove the mental element of the offence, and that given its duty to act as a model litigant, the self-reporting, the immediate stop to works and the later compliance, further enforcement was not in the public interest. Defence Housing Australia's position, as put to the authority, was that because it had expressly told its subcontractor not to clear the unpermitted area, the subcontractor was not acting within its actual or apparent authority and the company had not authorised or permitted any offence.

What the tribunal decided

The tribunal confirmed the authority's decision under section 79A(1)(a)(ii) of the Planning Act 1999 (NT) not to take further action on the group's complaint about the clearing. That was done under section 50(1)(a) of the Northern Territory Civil and Administrative Tribunal Act 2014, which lets the tribunal confirm the decision under review.

In the second applicant's proceeding, the tribunal gave him leave to withdraw his application for review under section 100 of the same Act, and made no order as to costs.

No costs order was made in the group's proceeding at that point, because the tribunal said there could be relevant matters it did not know about. It gave both the group and the authority leave to apply to be heard on costs by filing an ordinary application within 28 days of the order.

Why the tribunal decided it that way

On a review like this the tribunal does not start again from scratch, and the applicant does not have to point to an error by the original decision maker. The tribunal looks at the merits and asks what the "correct or preferable" decision is, the test in section 46(1) of the NTCAT Act. The tribunal also had to work out what orders were open to it. Section 130(4) of the Planning Act would have limited it to confirming the decision or ordering the authority to issue or vary a development permit. The tribunal agreed with the authority that applying that section here would give an absurd result, because it would hand the tribunal a power the authority never had when it investigated the complaint. The usual options in section 50(1) of the NTCAT Act applied instead.

The offences are in sections 75B and 75C of the Planning Act. Section 75B makes it an offence to intentionally use or develop land in a way only permitted under a permit when the use is not in accordance with the permit and the person is reckless about that result. Section 75C does the same for clearing native vegetation. Nobody disputed that the clearing broke the permit. The question was whether recklessness could be made out. Because section 5A of the Planning Act brings in Part IIAA of the Criminal Code, the authority would have had to be satisfied of that to the criminal standard, beyond reasonable doubt, which the tribunal described, quoting the High Court, as the highest standard of proof known to the law. "Reckless" is defined in section 43AK of the Criminal Code: the person must be aware of a substantial risk that the result will happen, and taking that risk must be unjustifiable in the circumstances known to them.

The tribunal accepted the group's point that the confusion was entirely self-inflicted. The permit holder was the developer, and it was the developer's job to give clear and unambiguous instructions about what could be cleared. It supplied two maps with inconsistent stage numbers, gave the instruction verbally rather than in writing, and never said which map it meant. For that reason the tribunal rejected the argument that the subcontractor had stepped outside the authority it was given. A subcontractor cannot be said to be acting outside its authority when the instructions it received were ambiguous because of the principal's own failings.

That still did not get the group home. Companies are treated differently from individuals when it comes to a guilty state of mind. Under section 43BM of the Criminal Code, recklessness is attributed to a company only if the company expressly, tacitly or impliedly authorised or permitted the offence. The tribunal found the developer may have been negligent in the sense used in the law of torts, but negligence is not recklessness. On the evidence before the authority, and the eyewitness evidence from people connected with the group that was before the tribunal, that higher state of mind could not be proved beyond reasonable doubt. The authority was therefore correct to conclude that the matter did not warrant further action, and because that question was answered against the group, the tribunal did not need to go on to the second issue it had identified.

What this means if you are in a similar position

If you are in a similar position, having complained to a regulator and been told it will take no further action, this decision shows the difference between proving that a rule was broken and proving an offence. The tribunal accepted that the permit was breached, and accepted the central criticism of how the developer handled its instructions. That was not enough, because the offence provisions required a guilty state of mind, and the Criminal Code standard of proof beyond reasonable doubt applied to it. Carelessness, even careless conduct a tribunal describes as self-inflicted, sits below that line.

The decision also shows what a review of a regulator's decision involves. You do not have to find a mistake in the regulator's reasoning, because the tribunal considers the merits for itself and asks what the correct or preferable decision is. But the tribunal is limited to the orders the governing law allows, and it will not read a power into a review that the original decision maker never had. In this case the tribunal also left costs open, giving both sides 28 days to apply to be heard on them, so the end of the main dispute was not necessarily the end of the file.

Where a public body or a regulator is involved, the step most people take first is a written complaint to the body itself, setting out clearly what happened, what rule or condition they say was broken and what they want done about it, before any application to a tribunal or escalation to an ombudsman.

How to apply: our step-by-step guide to a NTCAT application. More decisions: NTCAT cases and other civil disputes.

Source: Friends of Lee Point Inc & Quall v Development Consent Authority [2026] NTCAT 2 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.