Page 735 - Week 03 - Tuesday, 8 April 2014
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to merit review in the ACAT. Under new subsection 407(b)(iv), there will be no avenue to challenge a development approval on a merits review basis alone. The only avenue for challenge on such matters will be the Supreme Court under the Administrative Decisions (Judicial Review) Act or the common law and then only on questions of law or procedure, not on the merits of the proposal.
This is done to ensure that as far as appropriate proposals in the area are not delayed through litigation and the approval decisions are final and not able to be varied. It is worth highlighting that the residents of Giralang are still waiting for a new supermarket to be developed in their suburb due to resort to Supreme Court and now High Court action, despite the fact that a ministerial call-in was used to try and give some certainty to that project. That delay in that suburb is costing those residents years and years of reduced amenity because of protracted delay in litigation by commercial rivals. Those are the types of issues the government is seeking to anticipate and address for future projects.
I note that the scrutiny committee commented on the limitation in relation to AD(JR) review in its comments and suggested that the retention of AD(JR) and common law rights of review was a justification that might be considered to have little weight. The committee expressed the view that judicial review was much less efficacious than merits review and noted that it was more expensive. While the government notes the committee’s concerns, we do not agree with them.
The continued availability of Supreme Court rights of review in this circumstance is significant. These rights, notwithstanding the costs involved, are available to the community. It is the government’s view that these limitations on merits review are appropriate. The bill provides many opportunities for the people of Canberra to have their say on the special precinct area. In addition to the consultation processes I have outlined, development applications in the special precinct area will be subject to public notification. People can make representations about the application and these representations must be taken into account.
I draw the Assembly’s attention to one more efficiency measure: the special precinct area process will be able to include what the bill refers to as a restriction declaration. The bill inserts new division 5(3)A.3 into the act. This new division establishes a process for making restriction declarations. The declaration will be able to state that the Heritage Act and the Tree Protection Act have no application to the processing, assessment or granting of development approvals in specific circumstances. Such a proposal must be forwarded to the Heritage Council and the Conservator of Flora and Fauna for comment, and these comments must be conveyed both to the executive and to the Assembly.
Under this new section, this restriction process cannot apply to existing registered or provisionally registered trees and any associated declared sites. These matters are unaffected by the proposed restriction process. It is also worth emphasising that the restrictions will have the effect that the Heritage Council and Conservator of Flora and Fauna will not be able to progress nominations for registration in the relevant areas. This restriction will apply from the moment the proposal is released for public comment.
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