Page 1135 - Week 04 - Thursday, 21 March 1991
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
What, in fact, Charles Daley did was introduce a planning appeals system. It was a very unusual and far-reaching and far-thinking step that he achieved. He decided that the appropriate spot for the appeals was the Supreme Court. I have a copy of the original case of Mrs Breckenreg, and you can see that the judgment of His Honour, Mr Justice Lukin, was a very brief judgment indeed - some page and a half, including the transcript of the case. Of course, the situation then was that an appearance before the Supreme Court was a relatively inexpensive and relatively simple way to deal with it.
So, the original purpose of section 11A was to provide an appeals mechanism. Later on it is recognised in the report on the Canberra leasehold system, the Langmore report, that a different system ought be used, and that is section 72A of the Real Property Act, the surrender and regrant area. Recommendation 9 of that committee states:
The Committee believes that the current methods of amendment of lease purpose clauses under section 11A of the City Area Leases Ordinance are unsatisfactory and recommends that they should be replaced by surrender of the existing lease and the grant of a new lease for the new purpose.
In addition to that, of course, what needs to be added is the appeals mechanism, and the appeals mechanism clearly ought not to be before the Supreme Court but ought, perhaps, to be before the AAT.
The important part of the Langmore report and the important function of what is happening with this particular amendment is that the principle that we should be working towards is for a surrender and regrant, not for an ad hoc changing of these particular leases. Why is that? The lease is, of course, a contract between the lessee and the ACT Government - recognising the people of Canberra - and that contract, like most contracts, ought not to be fiddled with halfway through. If the contract is unsatisfactory, it ought to go through a process of surrender and regrant.
In his paper in November 1988, Mr Harrison concurs entirely with the Langmore report on the leasehold system and with Professor Max Neutze who made the same recommendation. All the people who have looked carefully and closely at the leasehold system in the ACT have said that section 11A is not the appropriate way to go, as it is no longer used as an appeals mechanism for the most minor of changes as was originally intended.
What the amendment to the legislation that we have before us does, in fact, is suggest that we drop out a series of words so that section 11A can be used much more broadly than it currently is. I have circulated amendments that will attempt to prevent that from happening. If that is an
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .