Hearsay 11-2021

Friday, 4 June 2021

Hearsay 11-2021

Hearsay is the Law Society's fortnightly e-newsletter, sent out to all members. Reproduced here is the news section of Hearsay — other sections have been omitted.

Nominations now open for the 2021 ACT Law Awards

The Law Society is pleased to announce that nominations are now open for the 2021 ACT Law Awards. The awards are:

  • The President’s Medal, recognising significant personal and professional contributions of a local legal practitioner to the improvement of law and justice in the community.
  • The ACT Firm of the Year, recognising the efforts of local firms in contributing to access to justice, and to a diverse and healthy legal profession.
  • The Pro Bono Service Award, recognising the vital community legal work done by individual practitioners.
  • The Government Law Award, recognising the achievements of practitioners working in government.
  • The Young Lawyer of the Year, recognising the achievements of early career lawyers.

Nominations for the President’s Medal must be put forward by a person other than the nominee. For all other awards, individuals (or firms, where relevant) may self-nominate, or be nominated by someone else (subject to the nominees’ consent). Nominations close at 5pm on Monday 26 July. Awards recipients will be announced at our Annual Dinner & Awards Night on Friday 27 August 2021. Read More +

Transfer of land subject to building and development provisions

The Property Law Committee would like to advise members of a very significant change in how the ACT Government is applying section 298 of the Planning and Development Act 2007. This change will have significant ramifications, particularly for builders who buy a vacant block from the Suburban Land Agency and then look to on-sell that block to a customer for whom they will build a home on the land.

The Environment, Planning and Sustainable Development Directorate has asked us to communicate this change to our members. 

Notice from the Environment, Planning and Sustainable Development Directorate

The planning and land authority (the authority) administers section 298 of the Planning and Development Act 2007 (the Planning Act). Section 298 of the Planning Act relates to the transfer of land subject to building and development provisions.

Under delegation from the authority, the Suburban Land Agency (the SLA) is responsible for, amongst other things, granting leases under section 238(1) of the Planning Act.

The primary reason that people apply for a transfer under s298 is that they are unable to finance the purchase of the block.

As part of its continual review of statutory processes that fall within its jurisdiction, the authority has recently sought to clarify the way section 298 works. This clarification is particularly timely, given the emergence of a practice where a purchaser tries to obtain the authority’s consent to a transfer before settlement of the contract with the SLA.

A purchaser who has exchanged contracts with the SLA, but has not completed the contract, cannot obtain the authority’s consent under section 298 to transfer the land to a third party. This is because at this point in the process, a lease has not been granted, and the purchaser is not the ‘lessee’. An important message here is that a person should not make an application under section 298 with the authority unless that person has first been granted a lease. By the grant of a Crown lease, the authority means that the Crown lease must have been signed by all parties, and paid for by the purchaser, as well as contain a commencement and expiry date.

To support and strengthen the integrity of this process, the authority will now also apply more rigor to the assessment of any valid application under section 298. In particular, the authority will require more robust evidence to support the application, before the authority makes a determination. For example, a basic letter from a mortgage broker stating that, based on information provided to that broker, the purchaser does not have funds to complete the sale, will not amount to satisfactory evidence.

Policy information in relation to this legislative provision is in the explanatory statement to the Planning Act.

Information about the process more generally is on the website of the Environment, Planning and Sustainable Development Directorate.

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