Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 1998 Week 2 Hansard (20 May) . . Page.. 362 ..

MS TUCKER (continuing):

This recommendation came about because Stein was concerned that it was unclear from the Land Act whether any person apart from the Minister could apply to the Supreme Court to enforce an order or to require compliance with the terms of a development approval. Stein believed that the insertion of an open standing provision in the Land Act would remove any doubt as to the ability of a member of the public to seek to enforce breaches of the ACT planning and leasehold laws. Such a provision would enable a person, irrespective of their personal interests in the matter, to approach the Supreme Court to remedy or restrain a breach of the Act.

The Government, in its response to the Stein report, said that it agreed with this recommendation in part; but that the ability for people to question specific planning decisions in the Supreme Court was already available under the Administrative Decisions (Judicial Review) Act, so there was no need to amend the Land Act. However, in the Land (Planning and Environment) (Amendment) Bill (No. 4) that the Government introduced to implement its response to Stein, it deleted the relevant section of the AD(JR) Act. This deletion took away what was previously a citizen's right to legally force the government to correctly administer the Land Act, the Building Act and the Heritage Objects Act. Both Labor and Liberal justified their position with the argument that the standing requirements under the Land Act should be the same as for all other pieces of legislation.

Mr Speaker, there are good reasons why there should be open appeal rights on planning legislation. A judicial review of whether the rule of law is being maintained is quite different conceptually from an administrative review of the merits of a particular development application. As the Stein report said, open standing provisions included in this Bill have been in every planning and environmental statute in New South Wales for as long as 15 years, and are also in place in South Australia, Queensland and Tasmania. These provisions have a demonstrated capacity to ensure that decisions are made in accordance with the law and not contrary to it. They have not been abused and have not resulted in a flood of litigation. The costs and complexities of taking a matter to the Supreme Court have ensured that such cases are not undertaken frivolously. To quote Stein:

Open standing provisions are not to be feared but should be welcomed as an aid to enforcement. They have the capacity to ensure that administrators carry out their duties.

Ms Horodny last year tabled a Bill that sought to reverse the 1996 changes. That legislation, in addition to reinstating the relevant sections of the AD(JR) Act, would also have enabled any person to bring civil proceedings in the Supreme Court to enforce any aspect of the Land Act, not just to seek judicial review of specific administrative decisions that was previously allowed under the AD(JR) Act. The Bill was aimed at implementing this recommendation of the Stein report and was modelled on section 123 of the New South Wales Environmental Planning and Assessment Act 1979. That Bill was defeated, with Labor and Liberal opposition.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .