Page 117 - Week 01 - Wednesday, 28 February 2007
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Mr Speaker, the judgment of the Supreme Court turns on a specific interpretation of a particular section of the land act, but the judgment has implications beyond that. In particular, it introduces a significant degree of uncertainty and discontinuity into the planning and development process. The judgment reverses what was the intended and understood legal position, and, I must add, understood by both sides of this chamber. The exemptions from third party appeal were intended to be, and understood to be, valid. Since early last year the development industry, community groups and individuals have made plans as well as financial policy and operational decisions based on this understanding.
Then came the court decision; certain exemptions from third party appeals were no longer valid. Any government faced with such a reversal in the law, irrespective of the subject matter, has a duty to consider the implications for the community. The government has a duty to consider whether legislative intervention is necessary to restore continuity. Community confidence in the continuity and stability of the regulatory environment is essential for forward planning and day-to-day decision making. Continuity is essential to a positive environment for investment in the territory.
There is a second level of uncertainty. The Supreme Court decision concerned the validity of exemptions in industrial areas. As with all such decisions, there is a level of uncertainty as to the extent to which other laws are in fact affected. In this case there is a level of uncertainty as to whether exemptions in Civic and town centres are also invalid. This is very likely, but it was not directly confirmed by the court decision. There is also a level of uncertainty as to whether similar regulations in connection with the exemption of control activities from land act processes would be valid.
The third level of uncertainty affects the position of individual development applications and development approvals. The December Supreme Court decision altered the process that is to apply to applications. Development applications which did not previously attract potential third party appeal may now do so. This change in process could affect development approvals granted prior to, as well as after, December. This is because it may now be open to a third party to seek leave of the AAT to appeal an approval notwithstanding that the approval was granted some time ago.
It is uncertain whether such appeals will be made, and whether they would be successful, but it does put many land owners and builders in doubt in relation to recent, current or completed projects. These multiple elements of uncertainty and discontinuity require a response, and that is why we are legislating in this way.
Mr Speaker, I would now like to turn to the issues raised by the scrutiny of bills committee report. The scrutiny of bills committee made a number of comments, and the matters raised were specific. I deal first with the issue: is there a right not to be affected adversely by retrospective law and does this bill unduly trespass on this right?
The actual principle is that in interpreting legislation a court starts with the presumption that the legislature does not intend to interfere with rights that have
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