Page 5067 - Week 12 - Tuesday, 26 October 2010
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appeal, it is vital for natural justice reasons that notification be improved as far as possible. If people do not know what the DA proposed actually entails, it makes it extremely difficult for people to object.
Section 246 of the Planning and Development Act 2007 provides that the validity of a lease is not affected where ACTPLA has not complied with the section. In this case, it operates to protect those who have acted in good faith from any error on the part of ACTPLA, who are administrators of the system and should not make that type of mistake. This is a fair and reasonable application of this type of clause. But it is frustrating that, just a few months ago, Mr Barr suggested that the mere omission of a comma could mean that the notification was invalid. He totally belittled the whole experience of people where the notification was invalid. Nobody ever suggested that a mere comma would be the issue.
The case of the DA in Latham needs to be raised, as it probably instigated this debate in the first place. This DA was put out for public notification, but it only contained a lease variation proposal. The actual demolition and development proposal was completely omitted from public notification. Despite this, ACTPLA used the out clause and permitted a decision on the whole proposal. This should be a breach of the DA process, and the notification should be started again. I am glad that Mr Barr and his department have now realised that my complaint was a reasonable one and that this fault is finally being partially fixed with this bill.
It can also be the case that the developer has not given the full or correct information, and thus what is being notified is incorrect. There is very little cost involved to correctly notify a development application, and it could well be that members of the public will be forced to suffer a significant detriment without ever having had the opportunity to put their case. Given the reliance our planning system places on objector comments, it is proportionate and reasonable to ensure that the community are given a fair opportunity to have their views heard.
I would like also to mention the human rights component of the Latham example. Given that the notification was not carried out properly, Professor Peta Spender, the presidential member of ACAT who heard the interlocutory application, examined the composite process of this case in February this year. Although ACAT did not have jurisdiction to order a renotification, she found:
... the respondent has the same obligations as the Tribunal under section 40B of the Human Rights Act to give proper consideration to a relevant human right and recommends ... that it considers its own obligations as a public authority to preserve and foster the rights of potential affected parties under section 21 of the Human Rights Act and to make arrangements to renotify the development proposal.
When I raised this matter through questions without notice, first with Mr Barr and then with Mr Corbell following the ACAT finding, I was disappointed that neither our planning minister nor our minister responsible for human rights was concerned about this loophole in the legislation. It has been suggested to us that there should be a formal process whereby the government should respond to recommendations from ACAT. This seems like a reasonable proposition which we will continue to follow up with the government.
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