Page 2459 - Week 08 - Tuesday, 22 August 2006
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its letter of 6 October 2006; and, yes, I will table a copy of that correspondence. For some reason, I do not have it with me in my documents, but I will table it later today.
In a supplementary question, Mr Smyth asked why ACTPLA’s reply to Austexx provided clear indications as to permissible uses, yet the LDA reply was simply to leave ING to work it out for themselves. As I indicated in my response to Mr Smyth last Thursday, I do not accept his version of events in relation to this matter.
In relation to the ACTPLA letter to Austexx of 8 December 2005, ACTPLA responded as an appropriate territory authority to a potential bidder conducting its due diligence after the issue of the sales documentation, including the lease and development conditions and the indicative crown lease. I do not agree that this response provides clear indications as to permissible uses.
The chief planning executive responded to legal advice from Austexx advising that ACTPLA’s “interpretation of the aspects of the territory plan relevant to the matters raised by Austexx did not accord with the company’s legal advice, as that advice was understood,” noting that the authority was not privy to the instructions the company gave its counsel. The ACTPLA letter went on to say:
However, our interpretation should not be taken to constitute any form of advice to you or the company and it should not be taken, necessarily, to be our interpretation in the future. Any proposal for development … will be considered on its merits, having regard to our interpretation of the Territory Plan at that time. Your company should obtain further legal and commercial advice it considers necessary for the purpose of bidding at the auction, and, if successful, subsequently developing the land.
Mr Savery’s handwritten note dated 8 December 2005 on a subsequent conversation with a representative from Austexx, when asked for a clarification, reads:
I said we felt a Brands outlet could be considered on merit, but our interpretation was open to challenge.
In contrast, ING made its request for information before the issue of the full suite of sales documentation, and this included before the issue of the lease and development conditions and the indicative crown lease. Notwithstanding this, I note that the advice to ING was, in effect, the same:
… the EOI document does not contain a set of lease and development conditions or a sample Crown Lease. These will be provided in the auction documents and clearly identify the range of permissible uses.
I note that you are familiar with the Territory Plan and specifically Variation 175, which related to Fyshwick Section 48. The range of permissible uses and their definitions is evident in the Plan. The onus lies with prospective proponents to consider the provisions of the Plan and formulate their own conclusions as to whether the permissible uses accord with their aspirations for the site.
The lease and development conditions and the Crown lease provided in the auction document will contain provisions relating to minimum and maximum development …
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