Page 1843 - Week 06 - Thursday, 14 May 2015
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The existing bill from the ACT Greens requires a development proposal to have been subject to pre-lodgement community consultation prior to any exercise of the call-in power. This means that the proponent must have completed the pre-lodgement community consultation before the call-in powers are to apply. If there is no pre-lodgement community consultation then the call-in power cannot apply. This is the effect of new section 158(1A), inserted by clause 5 in the existing bill, in conjunction with amended section 138AE, as amended by clause 4 of the bill.
For the purposes of this restriction on the call-in power, it does not matter whether the pre-lodgement community consultation was done because it was required by the Planning and Development Act or done as a voluntary exercise by the proponent. This is because the existing bill expressly permits a proponent to undertake the prescribed pre-lodgement community consultation even if this is not required by the act. This is the effect of new section 138AE(4) of the existing bill as inserted by clause 4.
The government has the following issues with these features of the bill as it is currently drafted. While it is evident that the Greens bill is about ensuring adequate community consultation on a DA before the minister calls it in, it is the government’s view that the requirement for pre-lodgement community consultation does not achieve this. The bill still leaves open an unrestricted potential for the development application to be called in even if the pre-lodgement consultation is arguably insufficient or the post-lodgement public notification of the development application is incomplete.
It is also the government’s view that the bill is inflexible in that it does not permit the minister to call in a DA and refuse it in the public interest if the DA did not undergo the prescribed pre-lodgement consultation. This is not only a matter of inflexibility. This requirement as drafted could also detract from the integrity and independence of the minister’s call-in process. This is because in some circumstances the bill effectively permits the proponent to control whether the minister can exercise the call-in power or not. A proponent can do this by electing to undertake or not undertake pre-lodgement community consultation. If this consultation is not undertaken the development application cannot be called in.
This issue obviously does not apply if the pre-lodgement consultation is mandatory under the Planning and Development Regulation. However, the potential for this issue to arise in some circumstances is unacceptable. The minister should have an unfettered ability to make a call-in if required in the public interest. The minister should be accountable to the Assembly and the broader community and not be bound by the choices made by the proponent of the development.
Further, I also note the following. The bill includes unnecessary red tape in that it has a provision to permit a proponent to undertake pre-lodgement community consultation. This is not necessary because proponents can already do this and are encouraged to do so. There is no need for this legislative permission. The proposed amendments to the bill recognise the importance of adequate community consultation prior to the exercise of the call-in power but do so in a manner that is more comprehensive and more flexible than the existing bill before the Assembly.
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