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Legislative Assembly for the ACT: 1997 Week 10 Hansard (24 September) . . Page.. 3229 ..

MR HUMPHRIES (continuing):

Conversely, the Auditor-General considers the 1989 letter a general inquiry which may not necessarily constitute an application. As a result the application is, for the purposes of the Auditor-General's findings, dated from 1993 as applied under the Land Act. If this were the case, a 10 per cent remission would have applied at the time.

Prior to the Land (Planning and Environment) Act 1991 there were three avenues by which a lease could be changed and the status of an application varied. Appendix 1 of the Auditor-General's report acknowledges these three avenues: First, section 11A of the City Area Leases Act; second, section 72A of the Real Property Act; and, third, surrender and regrant. The report notes at page 43 that section 11A of the CALA was the only section which prescribed a form of application and that this was only for purposive changes. The report acknowledges:

Forms relevant to the various types of applications ... have been administratively determined.

If the question is "Do I find this a satisfactory way of doing business?", the answer is no. But in 1991 the Assembly passed laws which required an application form to be approved.

In the absence of any statutory provisions for what constitutes an application under the Real Property Act and the surrender and regrant process, officers of the then department administratively determined what an application was by using common law principles. Therefore, in this instance an application was deemed to be a request. I advised the Assembly on 16 June 1996, based on advice from my department, that in 1989 the letter was deemed to constitute an application. To assist members, I table a copy of the possible Assembly question brief provided to me by the department.

As acknowledged in the report, the Land Act and the new procedures of the Planning and Land Management Group in my department will safeguard against the recurrence of such uncertainty. In essence, section 184 of the Land (Planning and Environment) Act does not create a debt due to the Territory, and there is no provision in the legislation for the Minister or the Executive to make an amended assessment and recover revenue. Additionally, the legal advice provided to me presents no option to recover the revenue that has been forgone. Mr Dunstone, please take note. If recovery action was pursued for Kingston, it is likely that the courts would hold that the Executive could be estopped from taking action. If the courts did not stop such moves, the Land Titles Act may allow lessees to take action against the Executive.

MR HUMPHRIES: Mr Speaker, I took on notice part of a question from Mr Wood on 2 September. It was about the proposed development of section 41 at Manuka. He asked me whether it was open for me to withdraw the conditional offer of lease and not proceed or, indeed, make another offer, presumably to somebody else. It is not open to me to withdraw the conditional offer of lease until a mandatory preliminary assessment has been prepared and circulated for comment and any subsequent investigations that may arise from the PA have been completed.

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