Amendment that scotched Parklands development was constitutional, court rules
A legislative amendment that scotched a controversial proposed multimillion dollar residential development was valid under the Australian Constitution, a court has ruled.
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A LEGISLATIVE amendment that scotched a controversial proposed multimillion dollar residential development in The Gardens was valid under the Australian Constitution, a court has ruled.
Makrylos Group took the Territory government to court last year, challenging a decision by Planning Minister Eva Lawler to knock back its Parklands development following community backlash.
Then while that legal action was still on foot, the government amended the Planning Act with a clause specifically validating Ms Lawler’s decision, effectively rendering the court challenge futile.
Makrylos Group had argued the law change amounted to “a command to the Supreme Court as to the conclusion that it is to reach” in the pending court case.
But in handing down its ruling on the validity of the amendment on Thursday, the Full Court found the law change did not amount to an affront to the separation of powers.
The court held that while the amendment was directed specifically to the Parklands development, “it does not direct or conscript the Supreme Court to treat as valid that which the legislature has left invalid”.
“The fact that the defendant’s decision was validated by legislation at a time when there were already proceedings on foot challenging the decision and that the validation is determinative of those proceedings, does not mean that the Supreme Court has been unlawfully enlisted or conscripted to the purpose of the executive or legislature,” the judgement reads.
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“In many cases, the legislation in question will be the outcome of political controversy, or reflect controversial political determinations — but administering and giving effect to such legislation does not compromise the integrity of a court simply by reason of the fact that the result is the outcome of political action or in conformance with a legislative or executive intention.”
The court ruled that even though the effect of the amendment was to ensure the court challenge would fail, it was directed to the minister’s decision rather than to the court.
The only avenue now available for the development to go ahead would be a further appeal to the High Court of Australia.
In a statement, Ms Lawler said the government was not opposed to future development on the site.
“We want development to occur in the Northern Territory, however it needs to be in line with legislation and the amenity of the area,” she said.
“This site can still be developed. It needs to meet planning guidelines and should align with community expectations.”
Makrylos Group was contacted for comment.
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