Planning and Development (Consideration of Public Interest) Decision 2012 (No 2)*
Notifiable instrument NI2012 – 100
made under the
Planning and Development Act 2007, section 261 (No decision on application unless consideration in public interest)

1.	Name of Instrument
This instrument is the Planning and Development (Consideration of Public Interest) Decision 2012 (No 2).
2.	Commencement 
This instrument commences on the day after it is notified.
3.	The Decision
Pursuant to section 261 of the Planning and Development Act 2007 I decide that it is in the public interest to consider Development Application No 201119951 applying to Block 5 Section 24 Stirling made on 1 June 2011.  
4.	Background
Details of the relevant development application and the reasons for the decision are attached.  

Simon Corbell MLA
Minister for the Environment and Sustainable Development
21 February 2012

Background
The development application
The development application that is the subject of this instrument is an application for approval of a lease variation to remove the concessional status of the Crown lease Volume 801 Folio 37 in respect of land that is Block 5 Section 24 Division of Stirling [also know as 4 Teesdale Place, Stirling].
Notification of Planning and Land Authority
The Planning and Land Authority has been notified of the decision pursuant to s261(3) of the Planning and Development Act.  
Public interest test 
Section 261(1) of the Act applies to development applications for approval of a lease variation to remove the concessional status of a lease (ie to deconcessionalise a lease).  Section 261(1) prohibits the Planning and Land Authority or the Minister from deciding such an application unless the Minister first decides whether it is in the public interest to consider the application.  
In deciding whether it is in the public interest to consider such an application, the Minister must consider the matters set out in s261(2) of the Act.  The factors required to be considered are:  
a.	Whether the Territory wishes to continue to monitor the use and operation of the lease by requiring consent before the lease is dealt with (s261(2)(a) of the Act);

b.	Whether approving the application would cause any disadvantage to the community taking into account potential uses of the leased land that are consistent with the territory plan, whether or not those uses are authorised by the lease (s261(2)(b));

c.	Whether the application to vary the lease to make it a market value lease is, or is likely to be, part of a larger development and, if so, what that development will involve (s261(2)(c));

d.	Whether the Territory should buy back, or otherwise acquire, the lease (s261(2)(d));

e.	Whether the Territory wishes to encourage the continued use of the land for an authorised use under the lease by retaining the concessional status of the lease (s261(2)(e)).

The Public Interest Test – matters considered in this case

a.	Re s261(2)(a) of the Act:  The application does not seek to vary the Crown lease to add additional uses or to change the existing use.  The site will continue to be used for a club.  

If approved, a condition of the application will require the lessee to pay the “payout amount” as worked out under section 263 of the Act.   If approved, the application will be finalised by surrender of the existing lease and regrant of a new lease which will not include rental provisions or any provisions requiring the Territory’s consent to deal in the lease.  If the concession is removed there is no justification to retain a restriction on transfer in the lease.
 
b.	Re s261(2)(b):  The proposal to deconcessionalise the lease will not materially disadvantage any section of the community.  The club will continue to operate as a recreational resource.   No concerns about the proposal were raised in feedback received during the public consultation process undertaken by the club.   This application does not confer additional development rights.  Any additional development or change of uses will require a further development application.  

c.	Re s261(2)(c): There are currently no additional development proposals for the site.  The proposal is not part of a larger development application.

d.	Re s261(2)(d): The lessee intends to continue to operate a club from the site.  The site could be acquired by negotiated purchase or under the Land Acquisitions Act 1994 either by agreement with the lessee or by a compulsory process.  Acquisition of the site can only be for a public purpose.   The Territory would be required to compensate the lessee for all lessee owned improvements on the site.  The Territory does not wish to buy back the lease nor acquire the site for a public purpose. 

e.	Re s261(2)(e): This development proposal does not change the existing use of the site.  Therefore, the site will continue to be used as a club.  A further development application would be required to change this authorised use.  If the concessional status of the lease is retained, the Authority will be required to approve any dealings with the lease.   Further, the club’s objectives outlined in the Social Impact Assessment would not be met.

Social Impact Assessment

In assessing the matters set out in section 261(2), I considered the Social Impact Assessment required under section 139(2)(1) of the Act and submitted in support of the development application.