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Legislative Assembly for the ACT: 2003 Week 7 Hansard (26 June) . . Page.. 2613 ..

MS TUCKER

government's electoral platform. I understand that the government now sees the need for this, in order to relieve the planning authority of the administrative inconvenience of the notification process currently required where a minor building encroachment occurs.

The bill provides for the planning authority to approve certain building encroachments, that are deemed to be minor, by simply licensing them. Depending on how the authority uses this provision, it could deliver an increase in administrative efficiency as it promises. However, if wrongly used, it could conceivably provide a convenient mechanism to formalise, after the event, a situation where a developer has simply taken a liberty-either by design or by accident.

Developers have been known to gain significant advantages by being given approval to encroach on adjacent territory land, and we are not comfortable with the government's intention to streamline this process. I hope this is not code for making it easier for developers to get what they want. If so, this could be done at the expense of public space and convenience. With the notification provision dispensed with, no public input would be allowed for-the public would not even know. The information would become public some time thereafter, but only when the minister tables a quarterly listing of direct grants.

Even if something inappropriate is picked up at that stage, by then it is too late to do anything about it, apart from challenging the government to provide an explanation for its decision. What constitutes a minor encroachment is defined but, effectively, it comes down to a reasonable person test. We are required to trust that the authority's exercise of its discretion to determine what is minor will broadly equate to what the community considers reasonable.

With regard to enforcement, I accept that the government is responding to a perception that the existing enforcement powers were inadequate and did not give PALM a sufficient range of tools to use to deal with non-compliance issues. I understand that, when trying to negotiate a solution in response to complaints, PALM found it a problem that its only ultimate sanction was the revoking of the lessee's lease.

I hope this new regime will deliver the orderly development the minister promises, but this will depend on how it is implemented by the authority. We are also taking it on faith that planning authority officers will use these powers sensitively and appropriately.

This is a significant range of new penalties. Most people in our community would not be aware of them, as they have not been widely publicised. There is provision for a fine of $1,000, six months jail, or both, for resisting an authorised person carrying out an order-for example, for rectification work-plus the costs of the rectification work. This is a strict liability offence, so the prosecution does not need to establish fault.

This places the authority in a powerful position, relative to an individual leaseholder who may have a disagreement with the authority about the issues forming the subject of the order. Their recourse in such a situation is to challenge the order in the AAT, where the process and the decision are reviewable on their merits.

These orders are often initiated by the complaints of neighbours, who would like to be sure these new powers will not be used oppressively against home owners who are

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