Supreme Court slams NTCAT for error of law over housing project

The Supreme Court has cleared the way for a controversial housing project delayed for years by NTCAT. Read what happened.

A decade-long battle to develop an apartment complex in The Gardens has taken a dramatic twist, with the Supreme Court ruling against the NT Civil and Administrative Tribunal, which had repeatedly blocked the project.

Supreme Court Justice Meredith Huntingford ruled the NTCAT “erred in law” when determining the amenity of the development proposal and ordered that the tribunal reverse previous decisions.

NT developer Kalhmera Pty Ltd wants to build Elysium Green, a seven-storey, 101-unit apartment complex in two towers at 4 Blake Street against the objections of residents.

But since the first application was lodged in 2016, Elysium Green has been subject to three NTCAT reviews and two Supreme Court actions, the latest of which ruled overwhelmingly in the project’s favour.

A controversial development on Blake Street in The Gardens.

In July, Justice Huntingford tore apart NTCAT judgments that blocked the development, the most recent of which was in 2023.

The court found NTCAT “failed to properly exercise its jurisdiction ... by failing to determine the correct or preferable decision in relation to the development application”.

“It follows that it is in the interests of justice to grant leave to appeal ... and the appeal must be allowed,” the court ruled.

The Supreme Court also dismantled NTCAT’s finding the Development Consent Authority, in approving Elysium Green, was a “manifest error”.

“The purpose of the requirement for a manifest failure of ... the Planning Act is to ensure decisions of the DCA are not overturned on legal technicalities. The focus is to be on the planning merits of the application.

“Therefore I am of the view the Tribunal had erred in law in finding the DCA manifestly failed to consider the matters ... of the Planning Act. The result is that leave to appeal ... must be given and the appeal ... must be allowed.”

The judgment appears to pave the way for the project to go ahead.

The NT News has reached out to developer Michael Makrylos and objectors from the Planning for People lobby for comment.

The drawn-out planning saga began when former Planning Minister David Tollner backed a rezoning at Lot 7820 from community use to a specific use zone, allowing controlled residential developmental the site.

“Darwin still faces a long-term need for new homes,” Mr Tollner said at the time.

“If we cease residential development we will soon see a return of the surge in house prices and rents that has left many people unable to afford a home of their own.”

Kalhmera’s planning submission said the development would contain a gymnasium, residents’ lounge with eateries, office space and a basement carpark on the ground floor.

“The proposed development blends architecture, landscape, and streetscape into an integrated whole, to produce a landmark development in the Blake Street Precinct,” the development application said.

“The proposal introduces several Territory-first high-rise residential design initiatives, and sustainability inclusions.”