Page 5070 - Week 12 - Tuesday, 26 October 2010
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notification have been debated already this year. In recent months the notification was again debated in response to Ms Le Couteur’s bill. The government’s bill before the Assembly today quite deliberately rejects many of the measures contained in the more radical Greens’ bill.
The deliberate limitations in the government’s bill are important, because they preserve the fairness and effectiveness of the existing notification and assessment process. The limitations are important because they preserve the ability of the existing system to deliver decisions and outcomes that can be relied upon by industry and the general public.
The government’s bill is also informed by the fact that errors in the content of public notifications are rare, and there is simply no need and no justification to apply a legislative sledgehammer in this area. The new measures in this bill apply only to defects that come to light during the period of the original public notification of 10 or 15 days. This ensures that once an application is decided, it will not be open to challenge on the basis of public notification errors potentially discovered many months or years down the track.
In the absence of such a limitation, development approvals would be open to challenge for weeks or months after ACTPLA’s assessment and decision. This risk, even if realised on but a few occasions, would introduce a level of uncertainty for all development approvals. This level of uncertainty would be unacceptable to property owners, and it would be unacceptable to the development industry.
The ACT Greens’ bill also included another measure that has been omitted from this bill. Existing sections 153, 154 and 155 of the act confirm that a breach of public notification requirement does not invalidate any final development approval granted by ACTPLA. This confirms that the development approval, once granted, will not be able to be challenged weeks or months down the track on the basis of a late discovery of a possible public notification error.
This provision is important. It gives the assessment and decision-making framework the ability to deliver outcomes that can be relied upon. The ACT Greens’ bill would, if passed, have removed these validating provisions. Under the government’s bill, the existing provisions on the validity of development approvals will remain undisturbed.
Another limitation in the government’s bill was noted in a recent letter I received from the Environmental Defender’s Office. The Environmental Defender’s Office stated that the bill applied to cases where a letter is sent to a lessee of a neighbouring property as required but was defective in some way. The office suggested that the government bill should apply equally to cases where the required letter was not sent at all or was sent to the wrong address. After all, the bill does cover the situation where a sign on the property has not been put in place as required.
I acknowledge the issue raised by the Environmental Defender’s Office to the extent that the bill in this way would introduce a new requirement, a new process, that could involve ACTPLA in time-consuming exercises ad infinitum to determine whether letters were sent and, if so, whether they were sent to the right address. This analysis
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