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Legislative Assembly for the ACT: 2004 Week 07 Hansard (Thursday, 1 July 2004) . . Page.. 3105 ..

These amendments do not change the current arrangements in section 128 of the land act to cover transfer or assignment of a lease that do not require consent. Consent is not required where a lessee has died; where the transfer or assignment is made under an order of the Family Court, or other court having jurisdiction under the Family Law Act, or an order under the Domestic Relationship Act 1994; where the transfer or assignment occurs by operation of, or under, bankruptcy or insolvency; or where the lessee has obtained a certificate of compliance under section 179 of the land act, which relates to compliance with building and development covenants in the lease.

If a lessee does not qualify under any of these circumstances, then the lessee must apply to the Planning and Land Authority for consent to transfer the lease. This provision was originally designed to cater for genuine hardship cases where the lessee, due to personal or financial hardship, could not comply with the building and development covenants of the lease, but where the operation of the existing provision proved to be ineffective.

If a lessee applies for an assignment or transfer of lease, the existing subsection 182 places the onus of proof on the transferee of that building, and the development covenants will be met. This is inappropriate, as the lessee is a person who in essence has a contract with the territory to commence and complete construction in accordance with the lease. It is the lessee who should be required in the first instance to demonstrate their inability to comply on the grounds of hardship. The lack of any requirement for an existing lessee to prove they are unable to comply with building and development provisions is the loophole that enables people to speculate on the sale of residential leases.

It is the single dwelling and small multiunit residential leases that are most attractive to land speculators because of the relatively small financial outlay that is required to reap potentially large speculative profits. This is the sector of the transfer market on which these amendments focus. The changes proposed in this bill will introduce an additional requirement in subsection 180 (2) for the lessee of the land to provide evidence of their inability to comply with the building and development covenants in a lease before the consent to transfer can be given.

The information to be provided by the lessee is stipulated in a disallowable instrument. To assist members to consider these amendments I will make available for your information a new draft disallowable instrument under sections 178 and 180 of the act, and I will formally table it after the Assembly has dealt with this bill. Section 180 will also be amended to enable the authority to consent to a lease transfer where it is part of a normal development process.

However, evidence that the request for consent to transfer meets one of the stated circumstances where the consent may be given will still be required. As with the existing provisions of section 180, a decision of the authority to refuse to consent to transfer is appealable to the Administrative Appeals Tribunal. If a lessee does not gain consent to transfer either from the authority or through the AAT, they must comply with the building and development provisions of the lease and they may also apply for an extension of those provisions in order to comply.

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