Page 116 - Week 01 - Wednesday, 28 February 2007
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won in court. Mr Snow’s legal advice had nothing to do with this. The legal advice Dr Foskey is referring to is the legal advice Mr Snow received about land use policy at Fyshwick.
This legislation has got nothing to do with land use policy at Fyshwick, Dr Foskey. I would have thought even you would have understood that. This legislation has to do with the application of a regulation that exempts third party appeals from Civic, our town centres and industrial land areas. So the suggestion that in some way Mr Snow was right all along is simply not correct. Nor is it correct to characterise this as legislation designed to address only the issue raised by Mr Snow’s company’s appeal against the development approval for the DFO site at Fyshwick.
This amendment seeks to address issues raised by a recent decision of the ACT Supreme Court. The issues were raised by the court following the action brought by Capital Property Projects, Mr Snow’s company. In April last year, regulations were made, as members would be aware, that sought to supplement this list by the removal of third party merit appeal in specific areas—Civic, the town centres and industrial land areas.
The Supreme Court considered the exemption in industrial areas—industrial areas only—and found the exemption to be invalid. The court concluded that the phrase “of a kind” in section 282 of the Land Act required the exemption regulation to say what kind of development is exempt. The reasons of the court had the effect of invalidating or putting in doubt the entirety of the April 2006 exemptions from third party appeal. This bill aims to restore what was intended and understood to be the legal position prior to the December decision of the Supreme Court.
The bill does this by explicitly affirming the validity of regulations put in doubt by the court and the power to make such regulations. As such, the bill does have a clear and intended retrospective effect. It both restores regulations made in the past as well as affirms the ability to make regulations of this type in the future.
It terms of the reasons for the bill and the reasons for retrospective effect, the underlying need for these exemptions from third party appeal remain as compelling now as they were back in April last year. They are part of a series of measures to improve the development assessment process within Civic, town centres and industrial areas by a reduction of delay and cost, and also by increasing the level of certainty in the decision-making process.
These regulations do not, as has been suggested in the media, have the effect of putting planning applications beyond comment and debate. Third parties will continue to be able to comment on applications. The existing rules for public notification for some applications—not all get that now, but some applications—remain.
In addition, it will still be possible to challenge interpretations of planning law by application to the Supreme Court. So issues on the interpretation of the law are still open to review by the Supreme Court under the Administrative Decisions (Judicial Review) Act 1989.
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