Page 3 - Week 01 - Tuesday, 20 February 2007
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This bill is necessary to address issues raised in a recent decision of the ACT Supreme Court as to the validity of a regulation made under the Land (Planning and Environment) Act 1991; that is, the land act. The issues were raised in the decision of His Honour Justice Gray in his judgment of 15 December 2006 in an action brought by Capital Property Projects and others and opposed by the ACT Planning and Land Authority and others. Mr Speaker, it is important to note that the government has appealed against this decision and that the appeal is still pending. However, in the event that the Assembly passes this bill, the government will give consideration to withdrawing its appeal.
In order to understand the issues raised it is necessary to go over some background detail. Section 276 of the land act enables a person who objected to a development application to seek merit review of a decision to grant the development approval through the Administrative Appeals Tribunal. This section is also available to people who did not object to an application but had a reasonable excuse for not doing so. Merit appeals under section 276 are typically referred to as objector or third party appeals. I will refer to actions under section 276 simply as third party appeals.
Section 282 of the land act authorises the making of regulations to exempt specified development from provisions of part 6 of the land act. Section 43 and schedule 7 of the land regulation make use of section 282 to exempt development listed in schedule 7 from third party appeal. The list of exemptions in this schedule is of long standing.
The government sought to supplement this list of exemptions through an amendment regulation notified in April 2006. The government intended, through the regulation, to exempt from third party appeal all development in the Civic centre, town centres and industrial areas. Members will recall that the Assembly debated a disallowance motion on the regulation in August last year and that motion was defeated.
In its decision of 15 December last year, the Supreme Court found an element of these additional exemptions to be invalid. Specifically, the court concluded that the phrase “of a kind” in section 282 of the land act required the exemption regulation to say what kind of development is exempt. The court found that it was not sufficient in this respect for the regulation to specify the area where the exemption was to apply. Specifically, the court ruled that section 43 of the regulation, as amended in April last year, was invalid to the extent that it sought to exempt all development in industrial areas from third party appeal.
The decision of the court did not apply expressly to other exemptions of third party appeals in Civic and town centres. However, the reasons behind the decision of the Supreme Court throw doubt on the validity of these and similar exemptions. In summary, the decision has the effect of removing, or putting in doubt, the entirety of the amendment regulation of April 2006 that was intended to exempt Civic, town centres and industrial areas from third party merit appeal.
The implications of the decision go beyond the immediate case in question. The decision overturned the assumption of the government, the property sector and the broader community that the exemptions were valid. This shift introduces a level of
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