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Legislative Assembly for the ACT: 1997 Week 13 Hansard (3 December) . . Page.. 4454 ..

MR HUMPHRIES (continuing):

I have undertaken to make a copy of that advice available to another member of this place. I am very happy to show it to Ms Horodny as well, if she wishes. I also sought advice on whether, in fact, I had the power to overturn the decision of PALM made by a delegate at PALM. The advice to me was that I did not have that power; approval had been given, and the approval could not be revoked. There is a basis for revoking an approval, and that is if fraud or misrepresentation has been relied upon; but the advice to me is clear that that is not the case in these circumstances and, therefore, a reversal of that approval cannot be given.

I understand that the Administrative Appeals Tribunal has been asked to consider the matter. I understand that the applicant in the appeal, the president of the Residents Association, has been refused leave to appeal, principally on the basis that he was out of time. The AAT also found the developer had acted upon the original decision to approve by demolishing and removing the existing dwelling and levelling the site, and significant prejudice would now occur to him if the original decision were able to be reviewed.

I will say this, Mr Speaker, about this matter: In my view, it was unwise of PALM to amend the original approval without going back and talking to the original objectors. It was apparently within the power of PALM to make the decision, but it was, I think, unwise to make the decision without having consulted with those who were clearly stakeholders in this matter by virtue of their objection to the original building height for the proposed structure. I have indicated to PALM that this should not recur and have instructed that procedures within PALM are to change to address such situations in future. That, of course, is not much comfort to the objector in this particular case; and to him I extend my regret that this was the case. But I emphasise again that PALM considers that the variation was within the terms of section 247 and there is not any power that they have identified for me to reverse that decision.

MS HORODNY: Mr Speaker, I have a supplementary question. How can the public be expected to have any confidence in the planning system when PALM is making such arbitrary decisions over development applications in situations like this without any accountability to the public or even to the Minister?

MR HUMPHRIES: I think that inherent in that question is the criticism that if delegates make decisions it should be possible for the Minister to review them. I would say to Ms Horodny that she should think very carefully about whether that is actually a wise position to suggest. Of course, you, as a legislator, have the power to bring legislation before this house to change that in the Land Act, if you wish, and provide for that power of review. But I would say to members that it is not appropriate to do that. Under the circumstances, when a decision gets made, it should be reviewable properly by a court or tribunal such as the Administrative Appeals Tribunal.

If Ministers are to be involved as a special court of appeal because they disapprove of a decision a delegate has made, firstly, it will increase the workload of Ministers because they will be asked to make all these decisions rather than leave them in the hands of delegates, which rather defeats the purpose of having a delegate; and, secondly, it also undermines the system that people should be able to go to a court and argue the matter in a proper court.

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