XN000022-1996-04-24 — Page 43

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Clause 5

Clause 5 of the Bill seeks to validate the decisions made by the Town Planning Appeal Boards when a member was a judge, except when the appellant has questioned the validity of the judge's appointment to the Appeal Board and applied for judicial review to quash the decision on or before 31 October 1995 which was the date of the This ensures that Executive Council meeting before publication of the Bill. proceedings currently before the court will not be interfered with while providing a measure of certainty to the status of past decisions of the Appeal Boards.

The Bills Committee however maintains that it is not fair to impose a time limit on the right of interested parties to seek a judicial remedy against a Town Planning Appeal Board decision and has decided not to support the clause.

The Administration has reviewed the need for the clause in the light of the Bills Committee's decision, and the consequences if the clause is deleted. Since the validity of the appointment of the Chairman of the Town Planning Appeal Board was first called into question in May 1995, it is unlikely that a court would uphold a challenge to decisions taken by the Appeal Board before that time because the "de facto" doctrine would apply to such decisions. Under the doctrine the acts of an official may be held to be valid even though his appointment is invalid. Once the flaw in the appointment became known the official would cease to have the benefit of the doctrine. The May 1995 challenge was dismissed by the High Court in November 1995. An appeal was lodged by the applicant but was abandoned a few days before the hearing date. While two other similar challenges were filed in December 1995 and January 1996, the Administration has concluded that we could live without clause 5 for the time being and has agreed to move a committee stage amendment to delete it.

Thank you, Mr President.

End