Legislative Assembly for the ACT: 2002 Week 13 Hansard (21 November) . . Page.. 3958 ..
MR STEFANIAK (continuing):
some of the figures bandied about in relation to what was lost during the 1980s. So I think there are a number of concerns there.
One particular point I wish to raise is the statement of planning intent. The minister, I understand, will be able to give the authority a statement that sets out the main principles that are to govern planning and land development in the ACT. Neither the explanatory memorandum nor the presentation speech gives light as to what is proposed to be in a statement of planning intent. In the absence of greater explanation, it is difficult to distil the role of a statement of planning intent in the context where the Territory Plan has to set out the planning principles and policies, as it currently does-particularly in the strategic principles set out in appendix A2 of the plan.
Also, the planning minister can give written directions both as to the general policies the authority must follow as well as for the revision of the plan, including, one assumes, the planning principles contained in the plan. The role of the statement of planning intent will certainly require much greater explanation. I just wanted to make those couple of points, Mr Speaker.
MR SMYTH (5.27): Mrs Dunne's amendment is a very sensible one, simply because there is still much to be answered about what the minister proposes. For instance, on something like sustainable development, the legislation requires the authority to act in a way that has regard to sustainable development, and the definition of sustainable development used in the bill is the standard statutory definition increasingly employed in Commonwealth environment legislation as well as in legislation in New South Wales and the ACT. It says that the authority must have regard to the precautionary principle, the intergenerational equity principle, the conservation of biological diversity and ecological integrity, and appropriate valuation and pricing of environmental resources.
This largely gives effect to the 1993 intergovernmental agreement on the environment between the states and territories, which sets out what Australian governments should do to protect the environment. It should be noted that many of these concepts are already incorporated in the sustainable development principles as set out in the Territory Plan. Perhaps the only exception is paragraph (d) of the definition, which may have a role where, for example, the agency is granting or varying leases on behalf of the executive. So, subject to the caveat of the previous paragraph, the legal situation is generally unchanged. That said, putting these provisions into the act itself provides a greater prompt, if nothing else, to decision makers to ensure that environmental considerations form part of any decision-making process.
So, apart from the requirement to follow the Territory Plan, the Planning and Land Bill says that the authority must consider all the things just discussed. It must just consider them. Where is the increased strength in that? Where is the greater certainty in that? It will be important for the authority to show that it has considered them and how it did so. It must be able to show that it has considered them because the Legislation Act 2001 says that where legislation uses the term "must", the function has to be exercised. So, if the Authority fails to consider these things when making a decision, it has to be assumed that the decision will be set aside on judicial review.