Page 5546 - Week 17 - Wednesday, 4 December 1991
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MR COLLAERY: Mr Speaker, I need not repeat the arguments made about why a plan cannot be questioned in any legal proceedings. Surely the answer is to narrow the form of legal proceedings rather than to say, baldly, "any legal proceedings". Does this mean that you would support a view that, if there was an illegality found in the National Capital Plan, now that it is down we could not challenge it? The wide-sweeping words of that provision, "any legal proceedings", are extraordinary in my experience. "Any legal proceedings" covers prerogative writs; it covers a whole range of issues. It does not refer to just third-party review. Anomalies may well be found, particularly in the early years of the plan. What you are saying is "any legal proceedings".
Surely, as Mr Kaine correctly points out, builders and developers should not be put in a position where they act to their detriment, and we support that view. There should be certainty. There must be certainty to those people who put their money out and act to their detriment. But there are other issues in the plan that do not relate to building and development approvals, that relate to variations at large, and the words "any legal proceedings" therefore are too wide.
The provision has not been thought through, in our view. It may conflict with the other processes promised and it does not answer the question - I wait for the Minister's advice - as to why we cannot have a review of a variation. Or have the draftspersons themselves forgotten to reflect the very intent of what they do? Does this provision embrace variations? You will see in the Bill, at clause 4, a definition of "Plan", and on page 5 a definition of "draft Plan variation". It says on page 5:
"variation", in relation to the Plan, includes the revocation of the Plan and its substitution with a new Plan.
That refers to a revocation and substitution. Then we need to deal with partial variations to provisions, changes to any provisions. I ask the Minister whether he is going to assure this house that there will be review if there is a change, a partial change, to a provision at all.
MR MOORE (3.43): Mr Speaker, I think it is important at this point to refer to the attitude of His Honour Justice Mahoney, JA, in a decision of the New South Wales Court of Appeal in the North Sydney Municipal Council v. Lycenko and Associates in 1988. This is not my own perception of this, because I must say that I am referring back to the speech of Alan Bradbury again. I think it is very important to listen to this. I particularly would like to draw the attention of the Leader of the Opposition to the opinion of this justice, where he deals with this. He is a man of some standing in judicial planning circles. I am quoting from his judgment:
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