Page 3495 - Week 12 - Wednesday, 19 September 1990
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involving a developer who had been indisputably encouraged in a course of conduct by a statutory authority of the Government. The NCDC correspondence with the developer made it clear that there had been a level of encouragement - probably falling short of creating legal problems for the Government; nevertheless a level of legal encouragement - to that developer, such that the developer, for better or worse, for good or bad legal advice, signed an unconditional agreement to purchase the property without the covenants and conditions that would allow the developer off the contract in the event that the lease purpose change was not given. That was peculiar.
What was even more peculiar, speaking as a practitioner, was that the seller's solicitors had major carriage of securing the lease purpose change. In fact, they eventually became the solicitors in the litigation. That was a somewhat idiosyncratic aspect of this, and one that perhaps we need to look at in future in terms of a number of legal issues involving the legal profession.
Mr Deputy Speaker, let me remind the house that Mr Justice Kelly endorsed the Morpath decision in that he said that his task was, firstly, to inquire into the town planning aspects of the proposed new user and, secondly, to determine whether the new use would be in the public interest. Certainly, His Honour said that balancing society's interest in the fullest use of the land against the interests of local inhabitants in their amenities was part of the task before him.
He then went on to say that ordinarily town planning considerations would be prominent in any such inquiry into the first limb of His Honour's test. The salient point lost sight of in this debate, and in the suggestion that this Government has overridden court decisions, is the statement in the Morpath case where Their Honours concurred with a statement by Mr Justice Beaumont. He said that any consideration of the public interest - that is the second test that Mr Justice Kelly went to after town planning - required that significant weight be given to the current plans of the commission. I stress "the current plans of the commission".
We all know that historically Mr Justice Kelly adopted the 1984 Metropolitan Policy Plan issued in February 1984 long before the matter came before him, and, in fact, he had the draft documents for the 1989 Civic Centre Canberra Policy Plan. He conceded immediately that clearly, in the light of the 1989 Civic Centre Policy Plan, the first limb of the test brought the use proposed by Concrete Constructions more emphatically within the policy proposed. So, the first limb - the town planning limb - was effectively satisfied in that sense and, indeed, we recall that even Tony Fleming in his evidence to our Assembly committee conceded that design and siting issues were not the matters in issue.
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