This week a respected authority on land tenure in the ACT, Justice Rae Else-Mitchell, called for freehold to replace leasehold in the ACT. His conclusion may be impractical. But the fact that he came to such a radical conclusion indicates a belief that the present land tenure system has gone seriously off the rails.
Since self-government in 1989 there has been a feeling of the way, a groping in the dark. First the draft Territory Plan got a thorough work-over and became the Territory Plan. Since it has been in force there have been screams from all over town that the 50-50 infill-greenfields policy is causing heartache for existing residents and the government has embraced it as an article of faith without any economic or social underpinning.
And the logic of infill in the fringe suburb of Banks (before they have even got fill or infrastructure to be used let alone under-used) has yet to be explained by the Member for Brindabella and Minister for Environment, Land and Planning, Bill Wood.
Now there is to be another Assembly committee review of the plan.
The Assembly is already looking at how and why one petrol operator got tenure over a petrol station in a way different from the previous public-auction system. Perhaps a better long-term result could have been achieved by an auction of several sites restricted to independent operators, just like the old residential auctions restricted to first home-buyers.
The Building Owners and Mangers Association has been pressing Wood for a decision on a general policy for renewal of 50-year commercial leases for months to no avail.
Yet we learned last week that he approved the conversion of a 50-year lease to a 99-year one at Ginninderra Schoolhouse for what can only be described as a song.
Tuggeranong Homestead is slowly decaying because the land tenure policy over it and its surrounds have been allowed to drift.
A stated aim of the Government to return the residential land-development system to single-block public auctions has been left in abeyance. Meanwhile, the system of multi-block developments by large companies is not working well as one company has been in major arrears of payments to the government.
There seems to be an extraordinary amount of policy on the hop and very little coordinated policy directed at a long-term vision for Canberra.
It follows a pattern in some other states in the early 1980s when Labor Governments went overboard trying to prove they were pro-business.
Those state governments (and now apparently this ACT Government) did not do it with general policies that are good for the private sector in general, such as lower taxes and less regulation, but did it with a series of one-off arrangements that at the time favoured a particular business.
More thought is needed for the overall picture and the long-term consequences.
What is to be done?
Justice Else-Mitchell’s freehold argument has problems. He argued, with some regret, that leasehold was not serving its purpose as a device for planning control. Other laws were doing that. So why not have freehold?
There are several good reasons. The first is the constitutional and legal hurdles.
Section 125 of the Constitution says the capital territory “”shall be vested in and belong to the Commonwealth”.
That probably means the freehold in the territory belongs to the Commonwealth and that the Commonwealth cannot grant it to anyone else. Incidentally, that probably precludes any claim for native title in the ACT, but the details of these two arguments will have to await another column. Suffice it to say that converting the land to freehold in the ACT would require a change to the Constitution, or at least would be met with constitutional challenge. So it is unlikely.
Further and change to give greater holding over land than 99 years would require Federal regulation. The Federal ACT Self-Government Act precludes the Assembly from doing it.
So we have to live with leasehold.
Leases have several important attributes: a length of time, a purpose, covenants and easements.
The length of time has usually been 50 years or 99 years. Purposes have been extremely varied: from residential to classes of businesses. Covenants require certain minimum buildings to be built within a certain time. Easements allow electricity, water and other authorities to do work on the land.
In the early days of Canberra it was a neat package to prevent speculation and to provide orderly growth of the town, especially when conducted through an open public auction system.
However, as the town has developed changes have been desirable for some leases. Financiers require the lease to be longer than the finance period, so people with commercial leases require certainty about renewal often 20 years out. Some lease purposes appropriate in 1950 (an inner city golf course, for example) are not efficient in 1994.
The questions is how do you make those changes while balancing the several public-policy objectives: a good return to the community for the sale of land; healthy economic development; protection of residential amenity; efficient use of land so that infrastructure costs are minimised; open, accountable, timely and consistent public administration. Some of those aims can be inconsistent and they are nearly always riddled with value judgments.
The picture has changed. Unlike the early days, land administration now deals far more often with extending the term or changing the purpose of an existing lease. It is a far more difficult task dealing with existing lessees and their neighbours than planning anew. The human factor plays a bigger role.
The grand policy inquiry _ where have we come from, where are we now and where ought we be going _ has gone out of vogue recently. However, inquiries like those on television in the 1950s, employment in the 1960s, the public service, tax and financial deregulation in the 1970s and early 1980s were quite useful. An inquiry into land tenure in the ACT could come up with some clearer ideas on how to balance the policy aims and look at past mistakes with a view to avoiding them in the future.
It is fair to question whether the present Government and administration, necessarily pre-occupied with the short-term, is capable of doing it unaided.