Legislative Assembly for the ACT: 1998 Week 5 Hansard (27 August) . . Page.. 1461 ..
MR HUMPHRIES: Mr Speaker, I will field that question on the basis that the matter Ms Tucker has referred to is still before the courts. The decision is still in the course of being made and it would be better if as Attorney-General I were to respond to those issues on that basis. I need to say first of all that today's decision by Justice Higgins is not yet complete, so it is not appropriate to comment on all the aspects of that matter, at least insofar as it is not complete, or to speculate on those areas of decision which remain for the judge to determine. His decision, however, is not - and I repeat "not" - to set aside the granting of the lease. He says it is consistent with the Territory Plan. I want to repeat that for members who may not have gathered fully what it was that Justice Higgins had to say. He has not set aside the granting of the lease. He says that the lease is consistent with the Territory Plan. He says, in fact:
The terms of the lease granted are therefore not inconsistent with the plan nor was it granted otherwise than lawfully.
He does find deficiency in the development approval in one respect, and that is in an undersupply of car parking by between 11 and 13 spaces, to which Ms Tucker referred. His Honour finds that on the basis that the space for cars in a drive-through at a fast food outlet is not car parking that deficiency occurs. Mr Speaker, Ms Tucker has characterised that as a miscalculation or as some problem or flaw in the calculation of car parking spaces. I can advise members that the decision to treat those areas in the drive-through lane as car parking is not based on any ad hoc decision within PALM but is rather based on a case in which the Administrative Appeals Tribunal actually ruled that car parking was held to include drive-through space for a fast food outlet. It had actually been determined by the Administrative Appeals Tribunal.
Mr Moore: That has been overturned now? The effect has been to overturn that?
MR HUMPHRIES: The effect may be to overturn it.
Ms Tucker: It does not mean it is right.
MR HUMPHRIES: It does not mean it is right, but it does mean that what is right and what is wrong is a determination by the court. The decision by PALM was based on the best legal authority available at the time. To claim that the system is deficient in taking into account a decision by the Administrative Appeals Tribunal is quite wrong. Justice Higgins's decision today gives planners guidance on that issue. It may be said to overturn an earlier decision of the AAT but cannot be characterised as saying that the planners had made a capricious decision or that the system was deficient. They were relying on an earlier quite valid authority.
The judge has recommended that parties return to court and seek orders. The Government will, of course, be examining its options in that context and is cooperating entirely with His Honour's ruling. It is inappropriate in this place to debate what those orders might be, but I point out to those who have said so far that the lease was contrary to the Territory Plan, Mr Speaker - and there have been a number of so-called experts who have been making that statement fairly volubly in the media in the