GOVERNMENT BILL: Planning, Development and Infrastructure Bill
December 1st, 2015
On Tuesday 1st December, Mark spoke to the Planning, Development and Infrastructure Bill 2015.
The Hon. M.C. PARNELL (15:35): I rise on behalf of the Greens to speak on the Planning, Development and Infrastructure Bill. I will note at the outset what all members know: that this is the longest, most significant and most detailed bill that we have dealt with this year. It is an incredibly complex piece of legislation. It has well over 200 clauses and is over 200 pages in length. It is, in fact, a once-in-a-generation rewriting of our land-use planning laws. It is seriously a considerable piece of work. This bill replaces the 1993 Development Act, which is now 22 years old.
Members who have been here as long as I have (coming up to 10 years) would know that this has been a favourite topic of mine over my whole time in this place. I have moved probably hundreds of amendments to the Development Act over that time. I have moved many motions, many disallowance motions for regulations, and have asked many, many questions. In fact, I think this legislation has been the subject of some of the low lights of this parliament, in particular as the former minister (the Hon. Paul Holloway) and I sparred on this legislation into the early hours of the morning. I am hoping that the debate on this bill will be a bit more civilised, but I am nervous that the government is proposing to rush this bill through.
I want to reflect a little on what appears to be the thinking behind the government wanting to push this bill through all of its stages, not only in this final parliamentary sitting week but they are also suggesting that the optional sitting week might be used next week. The government has listed this bill as a priority.
One of the questions we would be asking ourselves is: I wonder who is behind that? Which of the stakeholders is pushing the government to get this bill through as a matter of urgency. The answer is: none of them. None of the stakeholders are pushing this through. I will go through in my contribution today what some of the stakeholders are saying about this legislation. It is certainly not because the community sector is pushing it through.
I will at this point acknowledge that I have been working for many years on planning law reform with the Community Alliance, being the umbrella group for residents and ratepayers associations around South Australia. I am very pleased that a number of members of the Community Alliance and members of their individual organisations have taken the trouble to come to parliament today, sitting here in the gallery. A number of others came earlier, at 11 o'clock. They thought they might hear me, but they had a treat in store for them and instead heard the Hon. David Ridgway—their luck.
I acknowledge the interest that community groups are showing in this bill. It is certainly not at their request that the government is seeking to push this bill through its final stages. It is certainly not the local government sector that is asking the minister to push this bill through in a hurry. I will refer at some length to things that the Local Government Association has said, as well as what individual councils and councillors have said about this bill. It is not even the industry stakeholders who are urging the government to push this bill through.
In fact, Mr Acting President, I know you are up with modern technology, so you would appreciate that the Master Builders Association have been tweeting live from the Legislative Council this morning and commenting on some of the Hon. David Ridgway's comments. I will just refer to some of those tweets citing the Hon. Mr Ridgway.
Ridgway: Greens, Independent, Family First, D4D handed amendments in recent days. Should treat MLCs with greater respect.
I absolutely agree with the Master Builders SA tweet. Another one, again referring to the Hon. David Ridgway, read:
concerns about attempt to push through Planning Bill before Christmas when it will take another 3-5 years.
Obviously what they are referring to is the fact that this bill is not the end of the planning reform process but the start; there are a number of other bills that we will be seeing over coming years to give effect to the new regime.
So if it is not any of the stakeholders who are pushing the government to rush this bill through, why is the government doing it? I am going to offer two explanations: one of them is generous and one of them is less so. The generous interpretation is that the government—the ministers, in particular, the executive—lack an understanding of how the Legislative Council works, lack an understanding of our bicameral system of parliament, and seem to have forgotten—being slow learners—that the government of the day has not controlled this chamber since the 1970s. Minister Rau can go to the Leader of the Government in the Legislative Council and say, 'Just push it through, that's what we'd do in our chamber,' but, to its credit, this chamber behaves better than that and insists on proper debate being undertaken. That is the generous explanation.
The less generous explanation is that this government has utter contempt for the parliament, and it has contempt for the Legislative Council in particular. Certain parts of the Labor Party have never accepted that this house of review is an integral part of our democracy, and that is to their shame. Government members often believe they can just rush things through and that they can do it with minimum debate. In fact, if you look at some of the debate in the other place you will see that they went to midnight, I think three times they went to midnight, and at one point the minister did let himself go a little bit, describing critics of the legislation as 'morons' (I think that was the word he used). One of the other things he said was that the bill was now in such fantastic shape that the upper house would just wave it through without debate. Well, he was wrong on that count.
The thing that bothers me about the way the government treats the Legislative Council is that they take their own sweet time when it suits them. I think it is often more to do with pride than with good legislation, that they just decide, with a snap of a finger, that there has been enough scrutiny and they are going to just ram the legislation through.
I know the minister is frustrated; he would like to get this through. It may have been on his plate for many years but it has been on our plate, in the Legislative Council, for just over a week. As members have said before—the Hon. David Ridgway referred to it—the way this place works is that in a bicameral system of parliament, when we get the bill we start considering it, start looking at amendments and consulting with stakeholders. That is not to say that many of us have not already been consulting with stakeholders; I have been talking to stakeholders about this for three years. I had three groups in just last week—the Urban Development Institute, the Property Council and the Housing Industry Association—and certainly in my discussions with those three groups none of them were urging this bill to be pushed through. They still had serious concerns with it.
I am grateful that the opposition, generally, is not about to bow to the government's unreasonable demands. They do sometimes collude but, unlike Labor, they do believe—
The Hon. M.C. PARNELL: No, I said 'sometimes'; not this time, but sometimes they do. They do actually believe in a bicameral system of parliament and they will allow debate.
I am going to put on the record now, and I will probably say it a number of times in the course of this debate, that when we get to the end of the second reading contributions I will be moving that we adjourn the debate, and I will be moving that the detailed committee stage be an order of the day for the resumption of this chamber's work in February next year. I very much hope that the Liberal Party will join in that call. know the crossbench have already told me that they are supportive of adjourning at the end of the second reading.
In terms of the unholy rush that the government is trying to impose on us, I remind members that the final report of the Expert Panel on Planning Reform was delivered to the minister in December 2014, so that is a year ago that the government had that report. The government then took about nine months to write the bill, but we are being asked to pass it in a few days, having only had it for a few weeks. In fact, we still do not have the final version of the bill, because not only were there I think 85 or 90 amendments in the lower house, but also there are another 55 amendments to come.
I do want to look at some of the history of this. Let's go back to this Expert Panel on Planning Reform. They were established in February 2013, so that is getting close to three years ago. The members of that panel were Mr Brian Hayes QC, Natalya Boujenko, Stephen Hains, Simone Fogerty and Theo Maras AM. The Hayes committee, as part of their consultation with the committee, took about two years to consider what changes needed to be made.
In August 2014 (so that is over a year ago), they produced the document 'Our ideas for reform,' and then getting close to a year ago now on 12 December 2014 they produced their report 'The planning system we want,' and that included 22 proposed recommendations. The government sat on that for three months. They got the report on 12 December and the response was not handed down until 25 March 2015. The government then set about drafting a new bill.
Those who pay attention to estimates would have seen that minister Rau was quizzed about the fate of this bill and when we might see it. He promised us that we would have it before the winter break. In fact, if you go back to the Hansard—I do not have it in front of me now—I think the words 'heads will roll' are included on the record if he did not get his bill before the winter break.
He did not get his bill. I do not know whether any heads rolled—I am not interested in that—but he did not get his bill, and neither did we. It was not received in the lower house of parliament until 8 September. That is nine months after receiving the final report, and six months after finalising the government response to that report, they finally tabled a bill. It sat on the table in the House of Assembly for a bit over a month before it was debated.
I have no criticism of that process. I have no criticism of the length of time they have taken because, as I have said, this is one of the most fundamental pieces of legislation we are dealing with this year. It is certainly the longest and it is certainly the most complex. We are rewriting the entirety of our planning laws for the first time in 22 years, and it needs to be done properly. But, even though the government had taken all that time, they still had not got it right. They still had dissatisfied stakeholders, and so we then had all these amendments being introduced by the government in the lower house.
The opposition, as I understand it, did not introduce any amendments. They have held their fire until this chamber, and that is appropriate as well. There are 55 more amendments, and we were provided with them yesterday afternoon in draft form. We have been told that the final form will not be that much different, if at all, to the draft form, but we only got them at about 5 o'clock last night. There was some argy-bargy with the minister's office that we were supposed to have got them Friday morning of last week.
I have checked with the engineers in the parliamentary network support group. They said, 'Don't bother looking for it; you didn't get it. It did not arrive', and no other crossbench member I have spoken to got those amendments either. What I am doing is just showing that the moveable feast of this complex bill, with amendments yet to be filed, incredibly complex, was only received in draft form in the week of the final sitting of parliament.
When the bill was debated in the lower house, what level of scrutiny was the government prepared to allow honourable members in that place? You might think me a bit of a sad character, but I did actually extract all of the debate in the House of Assembly, snip it out of the Hansard and paste it into a Word document. I can tell you (I did not count them myself: the machine did it) it was 166,000 words. n 10-point font, it goes for 240 pages. That was the amount of debate that was allowed in the lower house of parliament, and I have to admit that I have not had a chance to read it all yet.
One of the things I find frustrating with the way the government treats this is that they seem to forget that we have our own legislative agenda to deal with in this place and that we do not actually hang on their every word in the lower house and take their copies of Hansard home each night and read them and then put them lovingly under our pillows. We do not do that.
I know that a lot of questions were asked in the lower house by the shadow minister, the Hon. Steven Griffiths, and others. I still do not have a handle on which of them were answered. I do not know—maybe the minister has an extensive second reading closer and we will get some of those answers. The point I am making is that that bill went through an extensive process: it went to midnight on three nights, and yet we are being told that we are to rush it through this week and in the optional sitting week.
The other thing I found galling about this process is that, in the three years that the expert panel has been working and that the government has been drafting responses and drafting this bill, the government has, nevertheless, persisted in putting through its own amendments to the existing Development Act. In fact, they put through fundamental changes that go to the heart of the system: who was responsible for development assessment, the threshold levels at which different relevant authority kicks in? They have been doing that despite the fact that the whole system was supposed to be under review by the expert panel.
For example, in December 2013, the government was pushing through changes to the Development Act, and they did not even have the courtesy to tell Mr Hayes or his committee what they were doing. They were not consulted, and that has been confirmed. But if anyone else—me, for example—tried to introduce any amendments to the Development Act during any the last three years, we were told that it was completely inappropriate because it was premature for us to be introducing changes to legislation because there was a planning review underway. The hypocrisy is absolutely galling.
Over the last three years, I have introduced many amendments to the Development Act. Many of these have been done on behalf of the community alliance; as I said, the umbrella group representing residents and ratepayers associations throughout South Australia, and the government refused on the grounds that they would be premature. No-one is suggesting that a government does not have the right to govern, but they do lose credibility when they hide behind a review when it comes to considering private member's bills, and yet are happy to rewrite the law to suit themselves at the time of their own choosing.
As I said at the time, back in December 2013, it is no wonder that local councils are fuming. Not content to remove local councils as the decision-makers for new housing developments, in particular, over four storeys in height, the government has also decreed that local councils do not even have to be consulted. As I said back then, this is quite outrageous, and it shows that the government is treating local councils with contempt.
My point is that I do not think that attitude has at all changed, and it augurs very poorly for the new regime that we are told is being put in place: a charter of citizen participation; the end of announce and defend; a more consultative approach—I just do not see it.
In terms of the bill before us, I mentioned that we have 55 government amendments apparently on their way. The Hon. David Ridgway alluded to the fact that he had amendments on three topics on their way, and I understand the Hon. Kelly Vincent has some. I think the Hon. John Darley has some as well, and I cannot recall whether Family First has amendments.
The point is that if the government persists in trying to push this through this week and next, none of us will have a chance to consult properly on these amendments and talk to stakeholders—whether they be industry stakeholders, local government stakeholders, or the community.
In terms of my amendments, I have provided parliamentary counsel with a spreadsheet—some 15 pages of amendments—and I have got some more to come. hey are working hard, I know, to try to get amendments back. My point is that even if we do get all our amendments drafted, even if they are all back, I still maintain that it is inappropriate for us to be dealing with this bill next week.
That is not to say that I do not want to work: I am happy to come back for the optional sitting week. I have said that every year. I am happy to come back and happy to work hard, but we should not be debating this bill. If they want to come back next week, let us debate some of the other pieces of legislation. There are plenty of them on the Notice Paper.
This debate in the Legislative Council is the most important part of the debate in many ways, because the government does not control this chamber. This is the pointy end. The bill was allegedly—and I use that word advisedly—read for a first time in this chamber on Wednesday 18 November, having passed through the lower house of parliament the day before on the Tuesday. But in fact, it was not provided to us until Friday 20 November, some two days after it was allegedly read a first time.
Perhaps I should have insisted on the parliamentary tradition of actually having the bill read. On the day that this bill was notionally read a first time, maybe I should have suggested to the Clerk that she read the bill. Of course, I do not think the Clerk would have thanked me at all, for two reasons. The first reason is that she did not have it, because they had not actually printed the bill with all the government amendments in it; we physically did not have it. The other thing is that, on my calculation it would have taken probably at least eight hours to have read the entire bill.
The Clerk has been let off the hook from having to do that, but the point I am making is, when we say that the bill is read a first time, we should have a copy of the bill in our hands. A bill should not be read for a first time in this place without the bill being present. People might say that that is not the convention. I think it should be the convention, if that is not the case.
Nobody has been dragging their feet on this bill. I have certainly been consulting with stakeholders and working on the bill since we got it in September. As I said, I am happy to sit in the extra sitting week, but we should not be debating this bill. We should adjourn this bill at the end of the second reading.
What I think would be unhelpful is if we have a stoush over procedural matters either at the end of this week or early next week. I really do hope that the Liberal Party will take the advice of the stakeholders, including the various stakeholders that the Hon. David Ridgway referred to, and agree with the crossbench that no harm is done by moving this bill back to February. In fact, the government has put no cogent reason before us as to why it is urgent.
I want this parliament to deliver to the people of South Australia the best bill we can. Later I am going to go through a number of the amendments that I will be moving, and I note that some of these amendments have already passed this chamber. They are previous amendments that the Liberal Party and the crossbench have supported and, now that we are rewriting the planning legislation, I will be bringing those back and I fully expect the Liberal Party and the crossbench to support them again. They were good ideas a year ago and they are still good ideas.
That is going to take us some time to work through. I do not want to force the Liberal Party to try to do things on the run: I want them to have the chance to consider these things properly in the party room, to reflect on the fact that they have previously supported some identical amendments to the ones that I will be moving this time and give them every opportunity to act consistently.
My commitment to the government is that, if due process is followed and we are given adequate time to develop and to consult on our amendments, then I will certainly do my best to be as efficient and as evidence-based as possible when we do get to the detail of this bill next year.
Whilst all members in this place are equal, I do remind people, in case they wonder why Parnell gets so excited about this, that this did represent a huge part of my life for 10 years as the solicitor with the Environmental Defenders Office. I have more experience in the administration of this bill than any other member of parliament, and I think I can put forward amendments that will make the bill better.
One of the things the government needs to consider—and, again, this is still in relation to timing—is that if it does insist on proceeding next week, there will undoubtedly be amendments passed which means that the other house has to sit next week as well. If we do not complete this bill until midnight on Thursday, they will be here midnight on Thursday. If they send us back a message saying, 'Please don't insist on your amendments,' what are we going to do then? I have been saying this for weeks: there is no way this bill is going to pass every stage this week or next, so the government just needs to get that message.
I think there is also a serious chance that some of the government's headline items in this bill are destined to fail, yet if the government gave more time they might have some chance of success. The urban growth boundary springs to mind. My rough understanding of the numbers is that they probably do not have the numbers to get that through; they may well have if they allow for a more considered debate.
I am old enough to have been part of the previous planning review. This process was colloquially known as The Planning Review: 2020 Vision and conducted through the early 1990s. At that point I was the newly-appointed campaign manager for the Australian Conservation Foundation. My predecessor, Jacqui Gillan, who was a member of the Adelaide City Council for a time, handed the mantle over to me and I was part of the community reference group. What that process and this process have in common is Mr Brian Hayes QC. He chaired up the 2020 Vision planning review process back in the early nineties, and he has also chaired this process 20 years later.
I can recall attending countless meetings in the State Administration Centre which were aimed at discovering from the community what it wanted from its planning system. Personally, I think I have contributed to entire forests being felled for the butcher's paper that no doubt exists in a basement somewhere in the planning department. We were consulted until we were blue in the face, and the final product of that process was the most disappointing thing: it was pretty much business as usual.
The legislation that came out of that process was not that much different to what had gone before—but that is not what the community said. Similar to this process we have just gone through with the most recent Hayes review, a lot of what the community is saying does not find its way into this legislation. The community talks about liveable cities; it talks about having open space where kids can play; it talks about having public transport to reduce car dependence; it talks about maintaining urban biodiversity, places where birds and lizards can live as well as people in cities; and it talks about human-scale development—development of a scale that recognises that we are Adelaide, we are not New York.
These are the things that people talk about during public consultation sessions—20 years ago and now—and yet these things do not find their way into the legislation. Part of what we need to do as a Legislative Council in amending this bill is to write some high-level principles back in to the legislation. That is not to say that the system that we have had for the last 22 years is perfect. In fact, it is not perfect and I will be spending a considerable amount of time going through its imperfections. However, I do support rewriting and replacing the system. It is overdue for reform and the Greens will support its replacement, but we are not going to support replacing it with just any old thing. At present, what is before us is just any old thing. It needs a lot more work.
We want to replace the Development Act with something that is better and something that delivers on community expectations. The headline item for us is that we want to make sure that people are put back into planning. That has been the mantra for some years of the Community Alliance—put people back into planning. They have not just taken that out of some market testing or focus group; it comes from the real-life experience of communities around South Australia that, when it comes to planning law and policy, the development industry in its most general form, has been calling the shots and has been getting its way, and it has been at the expense of genuine democracy and genuine community participation, so many of the amendments I will be moving go to that question of public participation. e want to redress the balance that has swung too far in favour of the interests of property developers and away from communities and their needs.
Since the 1993 bill came into operation—and it came in, I think, about a third of the way through 1994, from memory—we have seen some things that it has done well and we have seen some abject failures as well. Many of the things that went wrong with the bill I raised during my 10 years as a solicitor with the Environmental Defenders Office, and I have raised many more of them in my 10 years in state parliament. The lens through which I am looking at this bill is how well this new regime would deal with some of the poor planning decisions that we have seen over the last 10 or 20 years, and that does involve a bit of a trip down memory lane.
The question is: will this bill lead to better planning outcomes for communities? I have actually gone and looked at previous issues that I have been engaged with in my 10 years in state parliament. For this, I am grateful for having a very good archiving system and a very handy website that has every speech, motion, bill and media release on it. When I type in the words 'development act' I get 626 hits in separate documents.
That is the number of times that I have talked about the Development Act in the 10 years that I have been here. As tempting as it is to go through all 626 of those documents, I am not going to; I am going to go through the greatest hits. The point I am making, though, is that it should be no surprise to members that this is something that I am passionate about.
When I pulled from the archives some of the planning issues that I thought might be informative, the first one that popped up was the Cheltenham Racecourse. The Cheltenham Racecourse was a great case study of the government refusing to engage with local communities, refusing to talk with local residents or negotiate on any outcome other than their original predetermined outcome.
Whilst there were various views on Cheltenham Racecourse, my view was that a solution that overwhelmingly redressed the imbalance in open space that is faced in the western suburbs would have been the right answer. I still think there were good opportunities for development there as well, in particular along the railway line. You could have had more than half that area preserved as open space, with appropriate areas developed along the railway line. That, of course, was the flavour of the month a few years ago. Everyone was talking about TODs—transit oriented development. It has gone out of the language lately, but the concept is as sound now as it was then. That was the spot to put the development.
The Cheltenham Park Residents Association, one of the feistier groups in Adelaide, quite courageously took the matter to the Supreme Court. They were on a judicial review, from memory, arguing that the minister had not taken into account all of the relevant considerations that he should have, in particular, stormwater management. I note from their latest newsletter that I think they are still back in court, now fighting to keep poker machines out of their community. The Cheltenham Racecourse was an excellent example of how not to do things.
One other aspect of the Cheltenham Racecourse was that there were three contiguous parcels of land and they should have been dealt with as a whole and strategically planned accordingly. Those three parcels of land were the Cheltenham Racecourse, the old Sheridan factory site (where they made sheets and things) and then you get over to the St Clair site.
I asked minister Holloway in parliament many times why they would not consider them all as a whole. The answer was fairly cynical: the answer was that certain commitments had been made in relation to open space at Cheltenham and if they regarded the three blocks as a single development opportunity, they would not have been able to short-change the community on open space in the other two sites, which is what they ultimately did.
Of course, that brings us to the infamous St Clair land swap, again a fairly shameful part of South Australia's planning history. he government kicked an own goal at the very outset. Regardless of what you think about the merits of the land swap, the own goal was short-changing the community and offering them less land in exchange for the park that they were taking. They were offering them an old, contaminated industrial site of less area than the well-loved community park that they were taking. It was a dodgy land swap.
There was no shortage of designers and architects who did the calculations and worked out the community was short-changed. We know of course that that dodgy land deal ultimately resulted in a wholesale change at the Charles Sturt council, and the election of a mayor who was prepared to bat for her local community.
The next one that crops up on the list is Buckland Park. Buckland park is one of those rare planning cases where the normally conservative professional association—the Planning Institute of Australia—actually comes out with a press release paraphrasing, 'What are you doing?' They were gobsmacked that this project, which had been criticised for many years by just about every town planner out there, was somehow getting preferential treatment by the government by being given major project status, and the land being rezoned for housing when any town planner worth his or her salt had agreed that this was the wrong spot for urban development. It was a flood plain—a flood prone area of land far removed from any services.
In fact, when you look at the documents that were put out for the Buckland Park project —and we have had minister Hunter today talking about carbon neutral cities—they agreed that, by I think it was the year 2023, a massive 5 per cent of trips might be by public transport. In terms of future urban development in our state, to be designing and approving housing estates out in the boondocks and agreeing that no-one will get public transport, they will all drive, they will all probably have two cars and have massive commutes, it is just astounding to think that this is effectively the same government as the one that approved that—just remarkable. We still have not seen sods turned, but it is not for want of having all the approvals in place. It is just a bad project, and I hope the market speaks and the market says this project will not go ahead.
That then brings us to another urban sprawl planning disaster for South Australia at Gawler and Gawler East in particular: Concordia. Again, the lack of integration between land use planning and transport planning comes to the fore because there was an opportunity to commit to a rail extension out into Concordia. There was no commitment at all. All they were interested in doing is fast-tracking the rezoning of urban fringe land for housing because that is what the development industry was asking of them. They were asking for fringe development, and that is what the government was delivering.
Also up north, you had the Gawler Racecourse. Again, that was a case of the state government overriding the local council. The local council ultimately, I think, went to the Supreme Court again over that one. The minister's approval for a retail precinct on part of the Gawler Racecourse site was made within a day or two of the government going into caretaker mode, just before the March 2010 state election.
It was no surprise that heavily involved was prominent former Labor Party senator Nick Bolkus. He was in it up to his neck, as were planning consultants Connor Holmes. Both of those were planning consultants and lobbyists involved with the notorious Buckland Park development, so that led not just me but many people to come to the conclusion that there was only one winning combination for getting your development approved in South Australia: you needed a former Labor Party senator, preferably someone with access to fundraising, and the firm of Connor Holmes.
Ex federal Labor MP Nick Bolkus attracted controversy over many of the developments where he acted as a lobbyist. He was, of course, at the same time the chair of the South Australian Labor Party's major fundraising body, SA Progressive Business. Certainly, questions were asked about potential conflicts of interest involving not just the Labor Party through its political wing but also Connor Holmes, which was acting on behalf of developers, advising developers, at the same time as it was advising government on the future of urban growth in Adelaide, in particular the task of identifying new land for new housing estates as part of the 30-year plan.
That brings us to Mount Barker. As tempting as it would be to go through chapter and verse of Mount Barker, I will just touch on a few of the issues. The Hon. David Ridgway referred to it as well, quoting planning minister John Rau, who famously said 'no more Mount Barkers on my watch'. That was I think probably the first quotable quote that we got out of the minister on his appointment to that office. He had very good reason for saying that, because Mount Barker was a disaster at every level. It was not just a simple matter of unnecessary urban sprawl. People might say, 'Well, now, hang on, Mount Barker's not part of metropolitan Adelaide, that's not urban sprawl,' but I can tell you that it is. Ninety per cent of workers in Mount Barker commute down the freeway to Adelaide. It is a dormitory suburb of Adelaide. Pretending that it is some self-contained little country community is an absolute fiction.
But, of course, members might recall that planning minister Holloway stood up in parliament, I think in about 2008 from memory, and announced that he was going to rezone 1,300 hectares of prime agriculture land around Mount Barker for a housing development. He mentioned in his statement that he was asked to do so by seven property developers. The very first time I got to ask him a question—I cannot remember whether it was a supplementary or question time the next day—I said, 'Name them, name these property developers who are so influential that they have convinced you to rezone all this land around Mount Barker,' and he did name them.
So, I immediately lodged a freedom of information application and said, 'I want to see the correspondence between the planning minister, the planning department and the consortium of property developers.' The government fought hard to deny that. In the end they handed the baton over to the property developers, who ultimately took the matter to the District Court; they were so desperate to avoid disclosure of their dealings with the government over this dodgy rezoning deal.
What was fascinating, just a couple of the snippets that came out of the freedom of information documents—because of course I won the case—was that the developers achieved part of what they wanted and they managed to bog it down in the court for over two years, the object being to make the documents as stale as you can before they emerge into the public light. But just two things came out: one of them was a frantic exchange of correspondence between the planning minister and the consortium of property developers, represented by Connor Holmes. Paraphrasing those communications, it went along like this: 'Dear minister, if you don't immediately rezone this land for urban development, we might not be able to fulfil our commitment to pay for the second freeway interchange off Bald Hills Road.'
Ultimately, the government did as they wished and pushed through the rezoning. Fast forward a few years, when they are now talking about building the second freeway interchange, and who is paying that? The property developers who told the minister they were up for it: rezone this land for us and we will pay for the freeway interchange for you? No, they are not paying for it; they are paying a tiny proportion of it, while taxpayers are paying most of it—federal taxpayers and state taxpayers—absolutely outrageous!
The second thing that came out of the Mount Barker documents was an email from an officer in the planning department, and the email went something like this. It said, 'Is anyone else surprised by the fact that the map produced by Connor Holmes in advising the government where new houses should be located is exactly the same map that Connor Holmes prepared when lobbying on behalf of the property developers who own land at Mount Barker?' This officer in the planning department was saying, 'Am I the only one who thinks this is odd?'. Well, of course, he was not the only one who thought it was odd, but that view did not prevail in the department and of course the rezoning went ahead.
The Ombudsman had a good look at it, the ICAC Commissioner has had a good look at it. The Ombudsman was scathing; for the ICAC Commissioner the bar is a bit higher, so not quite the result there, but it was absolutely dodgy. he minister was quite right to say, 'No more Mount Barkers on my watch' when he assumed the mantle of planning minister.
This Mount Barker development was hand-in-hand with the 30-year plan and the Growth Investigation Areas Report that the Hon. David Ridgway referred to at some length in his contribution. This is a project that was absolutely full of conflict of interest. In fact, one of the amendments that I think is going to be needed in this legislation is something to guarantee that strategic planning is conducted in the public interest by publicly employed planners. There is a huge conflict of interest in using the small pool of private sector planners to do strategic land-use planning on behalf of government. The answer is simple: just don't do it.
I will get some advice from parliamentary counsel on whether it needs legislative reform, but my advice to government is: just don't do it. You got it wrong at Mount Barker, you got it wrong up at Gawler, you will get it wrong at the next place you do it as well. Do not do it. Do not use private planning consultants for public interest strategic planning.
I will work again through this list of planning matters that I have been involved with. The purpose of this is to find the lessons for improving the bill that is before us. It is relevant, and directly so. I mentioned transit oriented development—a good idea but no longer talked about. Certainly the bill and the planning policy that is developed under this bill, I think, should advance that concept further.
The Le Cornu site. In terms of watercooler conversations, when people are looking for a bit of a case study of what is wrong with the planning system, everyone comes back to the Le Cornu site. For those who do not know—I do not think anyone does not know, but in case they do not—it is basically the case of a prime piece of real estate in North Adelaide remaining idle for decades. Nothing is being done there, a prime spot for development. It is just an eyesore for the community. The question that is always asked is: why isn't anything built on the Le Cornu site? Of course, everyone loves to point the finger, and what people would do is point the finger at the local council (the Adelaide City Council) and say, 'It's their fault. They haven't approved development on that site.' Well, they have.
The problem from my perspective always was that the planning scheme for that area, the zoning for that area, made it clear that this was a site that would accommodate medium level rise, maybe around the three-storey mark. It was not a high-rise site, yet developers kept either buying the land or at least hanging onto the land thinking in their heart of hearts that it was a 10-storey site when in fact it was only ever zoned for about three, and as a result it stayed vacant. Ultimately, it wasn't the local council not saying yes to developments: they would say yes to every development that met the criteria in the development plan.
Ultimately, of course, the government stepped in and, rather than do the right thing and do a proper rezoning exercise and community consultation over appropriate heights, just declared it a major project. That is their shortcut, because, as you know, major projects—and I do not think it is any different under this bill than under the previous one—do not have to comply with the planning scheme and are unchallengeable—so basically open slather; declare it a major project, open slather, do what you want. Yes, sure, you might have to put in an embarrassing report to state parliament saying, 'We've just ignored all the planning rules but no-one can stand in your way; you'll get what you want.'
Also, in the last 10 years we have raised the issue of building safety. People often forget that the planning system is a combination of planning approval and building approval. We have the Building Code of Australia and various state amendments to that plan. We had that tragic situation—I think it was the golf club—where the roof collapsed, so we do need to pay attention to the building rules as well as the zoning and planning rules.
That brings me to the issue—in fact, I will skip over this issue; I will mention it now and then come back to it in detail later—of political donations from developers. No exposé of planning in Australia is complete without a good look at the corrupting influence of political donations from developers. I will just put that on hold for now and come back to it.
Another issue we dealt with was referrals of planning applications to government agencies. On a number of occasions I would—I thought quite sensibly—advocate for reforms to the referral system. What I am talking about with the referral system is that if, for example, you want to build a factory that requires an EPA licence, under the Development Act it has to be referred to the EPA; it is a referral. If you want to build something on a major road where you have issues of access and egress, a fast food outlet on Main North Road or something, you have to consult the Commissioner for Highways. If you want to build something on the coast you have to consult the Coastal Protection Board. There is a list of agencies that need to be consulted.
However, whenever I have tried, over the years, to improve that list by adding relevant agencies to it we get told that they cannot do that because they are interested in reducing the number of referrals, not increasing them. You get the situation, for example, where a body that is responsible for water management—say for catchment management—would not be consulted if someone built a new shopping centre with 100 hectares of bitumen car park, or something, that will obviously have a massive impact on flows into the local creek. The NRM boards responsible for water do not even have to be consulted.
In fact, the system is so crook that even those bodies that do have to be consulted get ignored. I have raised this with the EPA at committee hearings in parliament. I posed the question to them, 'EPA, you are consulted about these things. How often is your advice taken heed of?' Their answer was about 80 per cent; in other words, 20 per cent of the time they are ignored. You have to ask yourself what is the point of having an expert environmental agency if planning authorities are allowed to ignore them 20 per cent of the time. It makes no sense.
Another development we looked at was the Southern Ocean Lodge on Kangaroo Island. That is obviously a controversial one, because I think it makes a bit of dough; it is very expensive to stay there. I have not been there myself (although I have a nephew who is a cook there), but it certainly was a prominent development in a wild and remote location. People may have thought that was okay, but then you start seeing the spin-off developments. One of them was the heliport, because rich people who can afford to spend a thousand dollars a night or whatever for luxury accommodation do not want to just sit in the bush—
The Hon. J.S.L. Dawkins: That is the cheap rooms.
The Hon. M.C. PARNELL: The Hon. John Dawkins has obviously checked it out; he says they are the cheap rooms. My understanding is that it is, I think, Dick Smith's daughter and son-in-law; Dick Smith, the famous helicopter pilot. They have always wanted a helicopter landing, but they were told they could not have a helicopter facility as part of that site. What did they do? They went to the neighbouring farmer and said, 'Can you host our helicopter pad?' the reason being that rich people like flying helicopters over sea lion colonies and over wild coastlines. That is very bad for the environment, not good for nesting ospreys and sea eagles, yet the planning system is not vigorous enough to basically say, 'No; these conditions were attached for a reason and we are not going to let you skirt around them by going next door and just putting your facility on someone else's land.'
In terms of major projects, one issue I raised some years ago was the level of consultation required. This came to a head when the media was reporting a new major project—I think it was on Goodwood Road, close to the showgrounds—and the mayor of Unley (I cannot remember who that was, it was not the current mayor but the previous mayor) found out about it when the journalists rang up; read about it in the Messenger Press. I thought, 'What is wrong with this system when the government does not even bother telling the relevant local council that it is about to declare a major project to be a major development under the Development Act?' So I put forward a very simple amendment—I think it was about one line—saying that if the government was going to declare a major project then please tell local council. It was not very radical. Of course, it did not get through. Let us bring it back, let us put it back on the agenda this time.
The stripping of powers from local council authorities is something that has proceeded apace in the last five years. The first cab off the rank was stripping the Adelaide City Council of its power to assess any development worth more than $10 million. In my view, I do not think the council fought quite hard enough. I tried to fight it but I do not think there was an appetite; maybe it was a defeatist council back then. hey should have fought that harder, because they were basically accepting the fallacy of the minister that they were incapable and competent in dealing with these complex developments. I do not believe that was the case.
Having had success in stripping powers from the Adelaide City Council for $10 million, the government has now tried it on again. Then they decided, 'Okay, anything in the inner suburbs that is more than four storeys high, let's strip that off councils as well. Let's give that to the Development Assessment Commission, because you know you can't trust councils.' There was no evidence presented that they were doing a bad job or were incompetent at assessing these developments—just stripped.
Then they went one step further, and I think this was only last year, and they said, 'Anything worth more than $3 million, why don't we take that off local councils as well?' The origins of that one I think are fascinating, they are corrupt, and they are illegal, and I say those words advisedly. As people might know, the Shahin family and their company, Peregrine Corporation, wanted to either build or refurbish a number of service stations to expand their On The Run network. From memory, I think there were about 22 proposals around the state, and they were being assessed, properly, by local councils in the areas where these developments were proposed. I think there was one up in Gawler and one down in Aldinga.
I think it might have been the Aldinga one where the local council (and I am pretty sure about this), at the request of the Grape Wine Tourism Association down there and a number of other community groups, said, 'No, wrong location. It's the wrong spot for an On The Run. We're not going to approve it.' I think that was the only one that got knocked back; there may have been one other. So, the company went crying to the government and said, 'This is outrageous. We've had a local council say no to our development application.'
The government came up with this brilliant idea. They said, 'Why don't we put this $3 million rule in and we can strip local councils of their planning authority if the development is worth more than $3 million.' They thought that would be great, but what they forgot, of course, is that most of these individual petrol stations were not worth $3 million. I had some analysis done on a couple of them: the average was about $800,000. Even when you counted the value of the Twisties on the shelf or the petrol in the tank under the ground, even when you added in the carpet, the curtains and everything you could possibly do, you still could not get to $3 million.
So, what did the government do? They said, 'Well, this sort of On The Run chain is effectively one development. It is one development that might be in Aldinga and the Barossa Valley and all points in between, but we are going to count it as one development, and if you add them all up, they are all worth more than $3 million, so therefore we are going to strip the councils of their planning powers.'
I still cannot for the life of me believe why no-one challenged that in court, because that was a winner. That was an absolute winner. They would have won, and it is probably not too late, because this new regime is not going to come in for a while, but you heard it here first: it is an unlawful way to behave, to strip councils of their powers and use dodgy arithmetic to pretend that a petrol station in Gawler is part of the same development as a petrol station at Aldinga. It is just wrong.
We then had the Global Financial Crisis and we had the nation-building program kick in, which I will say was the right call by the then federal Labor government. I know it was criticised, but spending money in the community on infrastructure was the right call. The Greens in the federal parliament supported that national infrastructure spend, but the state government still managed to mess it up. What they did is they said, 'If the money for the development, whether it's housing or a school hall or whatever it might be, came from the nation-building program (if it was stimulus money, in other words) then we are going to let you override the planning laws.'
That pesky significant tree that was standing in the way? Forget about it; you do not have to comply with those planning laws. You do not have to consult all of the people you would normally have to consult over your development. So, what we saw was that agencies like the CFS, EPA and Coast Protection Board did not have to be consulted as long as the money for the development came from the stimulus fund. As a result, some schools that had lodged applications to build halls, classrooms and whatever who had been knocked back by local councils because they were inappropriate developments for the site—there might have been a significant tree in the way, too close to the boundary, whatever the reason was—basically went straight back to the Coordinator-General with their defeated applications, relodged them, and this time they were approved, no questions asked. o again, does the bill before us allow that sort of behaviour to continue? Yes, it does. We need to put measures in place to curb that sort of behaviour.
Back on major projects, and the Penola pulp mill was one of my favourites from about 2007. The Penola pulp mill was a great example of a case where major project declaration was warranted. I know a lot of the time I am in here saying, 'They're misusing major project status and declaring things major projects that shouldn't be—a block of flats in Hindmarsh Square a major project? I don't think so.' But that gets declared while the $2 billion pulp mill down at Penola does not rate; that is not a major project. The government said, 'We're going to do much better than an EIS. We're going to do much better than a rigorous environmental assessment; we'll get a committee of the lower house of parliament to have a look at it and they'll determine whether it's a good project or not.' It was an absolute sham.
As it turned out, it was a project that was being promoted by some white shoe brigade who did not have any experience with pulp mills. They just wanted to onsell an approval to someone. No?one bought it; it never happened; it was a complete waste. But if ever a project was deserving of an environmental impact statement, it was the Penola pulp mill.
I make the point, for those who do not know, that under South Australian law, the only trigger for an environmental impact statement—the only trigger for an EIS is that it must be declared a major project or a major development. If you do not declare a major project you cannot demand an EIS. The two things go hand in glove; they should have done it, and they did not.
Over on the West Coast we had the Cape Bauer so-called eco-tourist village declared a major project. That went nowhere. Then we come to Newport Quays, a fantastic example of where the government, having the ear of the property developers and ignoring the local community, got it so terribly wrong. I can remember being in the sweltering town hall 12 years ago, whenever it was—a long time ago, before parliament—when they were consulting with the community over the future zoning of the Port Adelaide precinct, and the community were up for renewal. They could see that their community was stagnating, and they really wanted new development. They wanted to see something happen, but they did not want to lose all of the character of the Port. They said, 'Well look, it's a working port, it's part of our heritage; we want to hang onto that. We want to hang on to public access to the waterfront. We want to hang onto the things that make Port Adelaide a special place.'
The government ignored most of that, and in the end basically handed it all over to an exclusive consortium to develop. It was not successful: people who did buy the early apartments lost money. Then, of course, you had the debacle of the proposed development at Dock 1 where it was realised that this location, which I will say is a fantastic spot for new houses—I love Dock 1 and it would be a good spot, but it had two things going against it. One was that it was far too close to Adelaide Brighton Cement, being within a kilometre of the cement works, and the other thing was that it was far too close to the Incitec Pivot fertiliser plant. Apart from those two things, it was a great location for new houses.
They managed to worm their way around Adelaide Brighton by simply deciding that, 'It shouldn't be a kilometre, let's reduce it to 800 metres, and if we measure the 800 metres from a point a bit further away, we can actually miss the circle.' So, they got around that one but they could not get around Incitec Pivot.
However, the relevance of this case study to this bill before us is: how did we know that SafeWork SA, the health department and the EPA had so strongly recommended against development in this location? How did we know that? Did we know it because the government volunteered that information? Did we know it because they put it on a planning portal? And I do like the planning portal when we get to see that, I like that: that's good, tick, planning portal. Did they do that? No. I had to get the first one off the back of a truck—a leak—and the second one through freedom of information.
The relevance to this bill is that freedom of information is now being ruled out in terms of obtaining copies of these planning documents. he SafeWork SA document was a good one. It said, 'Well, if something goes wrong at Incitec Pivot, it will flatten Port Adelaide, including this location.' I think the Hon. David Ridgway was part of the select committee. We had them in giving evidence.
The Hon. D.W. Ridgway: We went for a visit.
The Hon. M.C. PARNELL: We went for a site visit to Incitec Pivot and they maintained that it was not volatile, that it was a form of fertiliser that was not prone to explosion. Of course, we had all seen on our television the one in Texas that went up and flattened kilometres around. One in France went up and destroyed the outskirts of, I think, Lyon or one of the cities out there. Of course, that could not happen in Port Adelaide, but when you look at what the relevant authorities were saying, SafeWork SA was saying, 'Don't do it; it could blow up; it could explode.'
I am delighted that the government has now agreed to relocate Incitec Pivot. It was a very big site. I think it employed eight people. Putting it somewhere else is a brilliant idea if we can open up the Port for development, but the relevance for now is that the community only found out about this problem by accident and, under this bill, it is going to be even harder to get access to that sort of information.
That brings me to the next development, which is again one of my favourites. It falls into the category of magic government own goals, and that is the Mayfield development. The Mayfield development is a series of three apartment blocks on Sturt Street, and there are a couple of issues here. The first issue is whether that part of Sturt Street is a good spot for tower blocks. I do not actually have very strong views on that. I think what is proposed is too high.
Personally, I am a big fan of some of the European densities that go up to about five storeys. I think that works well in a city like Adelaide. Ten, 12 or 14 storeys is probably over the top but I am not going to die in a ditch over it. But what I will die in a ditch over is the absolute arrogance that the government showed to the people of south-west Adelaide in the way that it handled the development approval for the Mayfield development.
It goes something like this: the various elements of the development industry got into minister Rau's ear and told him that the sky was about to fall in if he did not urgently and immediately rezone large tracts of the city for housing of unlimited heights, including the so-called catalyst zones, and that he needed to bring that in immediately. The minister, I think, was spooked by the fear that there might not be cranes on the skyline and he rezoned large areas of the CBD, using what are called the interim operation powers.
Interim operation is colloquially known as the 'shoot first and ask questions later' provision. What it means is that the government does not have to go through the normal public consultation process before rezoning land: it can rezone the land at the click of a finger, put it in the Government Gazette and then it undertakes the consultation afterwards.
The problem with that approach for the Mayfield development is that, once the land had been rezoned, two things happened in parallel. The developer lodged its application to have the development approved and the public consultation, where the community was asked, 'What do you think about the change of zoning?' happened at the same time.
The public, in good faith, put in submissions to the Development Policy Advisory Committee. They wrote submissions saying, 'This is what we think of rezoning our part of the city.' Some people said, 'Yes, we think we could do some good stuff here, but not so high.' Other people said, 'No, it's going to overshadow character.' Everyone had their views and people put in their submissions.
While they were off doing that, the developers lodged their application and the Development Assessment Commission approved the application two weeks before the public consultation hearing—not two weeks after, but two weeks before the public consultation hearing. I think there were 50 or more people who, in good faith, made submissions on the future of their corner of the world only to find that, by the time they got to the public consultation meeting, the one development they were most worried about had all ready been approved and that approval was irreversible.
Now, if that is not the greatest insult that a government can show to people in relation to planning, I do not know what is. It sent a very clear message to all of those people who put submissions in, 'We don't give a hoot what you think. We're going to proceed regardless.' That's why when I raised this with the minister and I raised it with people I have not had a single planner who has justified that one and said, 'Yes, that was a good call; we did well there.'
It was an absolute own goal, because it has basically built up a level of distrust in the community, that you cannot trust the planning system and you cannot trust the government. The implications for this bill are that the minister, despite his earlier assurances that he was going to be relieving himself of powers under this bill, has actually entrenched and centralised more power in the minister—and you wonder why people are suspicious about what is going on.
Other issues have cropped up like building on contaminated land and what happens when contamination is discovered. We make the point, of course, that when it comes to the discovering of contamination in existing urban areas, that tends not to be the realm of the Development Act or the new planning, development and infrastructure act. The bill before us is about new development. However, we have certainly dealt with a number of cases where contaminated land has been involved.
One that I recall was I think down near Findon where the process of rehabilitating the contamination basically was an on-site process and it spewed dust all over the neighbourhood and just made people's life a misery. Of course, what had happened—and again this is an abuse of the planning system that this new bill does not redress—was that the application that they were invited to comment on was building a senior citizens centre.
They said, 'Yes, happy with the senior citizens centre,' but of course what they were not allowed comment on and what they were not allowed to appeal against or challenge was the rehabilitation of the contaminated land on site which basically involve digging up what had been a former rubbish dump. Some of it got taken away and some of it was just hydrocarbons vented to the atmosphere—an appalling process to be undertaken on site—and, again, the community had virtually no rights.
We have the question of inner rim development, which I mentioned before and, again, I am supportive of increasing the densities for housing in areas that are close to the city. I think it makes sense. Where I differ from the government is often in relation to scale, and I certainly differ in relation to its complete inability to integrate physical infrastructure with its proposed developments. If I use just one example, take Fullarton Road and Greenhill Road.
There you have a situation where, apart from the two tall buildings that are already there—the old maternity hospital on Fullarton Road, and the old ETSA building on Greenhill Road—it is mostly two and three-storey office blocks with undercroft car parking and it makes sense to me that that could be redeveloped as housing. It is opposite the Parklands, a great location. However, when you look at the government's development plan amendment and look at its rezoning exercise it has the nerve to say that it is on an important public transport corridor—absolutely it is not.
We got the timetables out and had a look at the buses that were going along Greenhill Road. They said, 'There are three bus services.' That sounds pretty good but we had a look at them and one of them had one bus in the morning and two buses in the afternoon; one of them went off to the Hills somewhere and did not run at night or weekends; and the other one was a regular bus service but it was not in a 'go zone'. In other words, they could not even guarantee a 15?minute frequency, and yet both these roads had 40,000 motor vehicles per day.
Whilst it is not the job of the planning system to rewrite the bus timetables, it is the job of government to make sure that you do not allow increased densification and increased population without a guarantee of infrastructure. If we go back to John Rau's famous quote, 'No more Mount Barkers on my watch', the context, as I recall it, in which he made that was that there would be no more development like this without sorting the infrastructure out first. That was, as I recall, the context for that.
The inner rim development also has fuelled the minister's prejudice against local communities. From where I see it, the minister has the view that all these people are just nimbys and none of them want to see any change at all.
Of course, you can always find someone who does not want anything to change, but they are a fairly rare species. Most of the groups that I have been dealing with, whether it is the Burnside residents or whether it is people at Unley, or wherever it is, most of them are up for a level of change, but they want it to be good change. They want it to be appropriate change and they want it to be sympathetic change. This crusade that the government is on to write the public out of key parts of the development process, I think is borne out of a prejudice that does not exist in reality, and I think it is more in the imagination of the minister.
Another development that I think has important implications for this bill is the debate around the future of Torrens Island. Torrens Island is one of those fascinating places that most people have never been to. We all vaguely know where it is, because we can see a map of Port Adelaide and we can see the big chimneys from the power station, but most people have not been out there. It is quite a remarkable place. It is the location of the old historic quarantine station. I think that quarantine station has been mentioned a few times in speeches, because it was where new migrants coming to South Australia were quarantined. I think it was also an internment camp for people of German extraction—they would have been Australian citizens, but people of German extraction—who were locked up there.
The relevance for this bill is that the government was proposing to basically subdivide for private industrial development a great chunk of Torrens Island, and it was not proposing to use the normal and proper planning processes. It was trying to sneak the development through under so?called crown development rules. Even though these were ostensibly private projects, they were effectively given a leg up of special treatment under the government's own fast-track planning stream. I just think that is inappropriate. Again, does the current system, because it has replicated the notion of crown development, stop things like that happening? No, it does not; we need to fix it.
We then come to development in the Adelaide Parklands. That is obviously topical at the moment, because we have a couple of proposals. There is obviously the future of the old Royal Adelaide Hospital: what is going to happen there? We have the O-Bahn project; a select committee is looking at that. We also had the footbridge proposal. What we have discovered with all of these is that the government has managed to find ways of getting its way and undermining the Adelaide Parklands Act, which was designed to entrench a level of protection. It has managed to get around it.
The thing that I find most difficult about it is that, although some of these projects I do not mind, and some of them I think could be quite good projects, because the government uses such a dodgy process, designed to avoid scrutiny and in particular to avoid challenge, I find myself railing against it on the basis of process rather than the actual merits of the development itself. The relevance for this legislation is that there is a part of this bill which talks about the incorporation of statutory schemes. From memory, I think there is the dolphin sanctuary and there are a few of the other statutory schemes, but the Adelaide Parklands Act is not on that list; it needs to be put back on. We need to build Parklands protection back into the development legislation.
Next, we get to aquaculture. The relevance of aquaculture to development and planning legislation is that people often forget the fact that the border of South Australia does not end at the beach. The border of South Australia extends three nautical miles offshore, and when it comes to the gulfs, Gulf St Vincent and Spencer Gulf, the state border actually includes the whole of those gulfs. What that means is that all the oyster farms and all the tuna feedlots and the kingfish aquaculture ventures are all part of South Australia. They are all on land. The land might be covered by sea, but they are all development of land and therefore they are required to get development approval.
As I have mentioned, possibly more than once, in this place, the first big court cases that I conducted as an environmental lawyer were on behalf of the Conservation Council, and they were to challenge aquaculture developments, firstly at Fitzgerald Bay, north of Whyalla, and secondly down at Louth Bay near Port Lincoln.
The consequence of the Louth Bay case in particular was in fact a seminal judgement of the Environment, Resources and Development Court that helped define the meaning of 'ecologically sustainable development'. The importance of that phrase 'ecologically sustainable development' is that it is built into the current Development Act, but it is not built into the new planning, development and infrastructure act.
In fact, I will come to this point in more detail later, but the whole notion of the environment being central to our decision-making around land use is missing from this act. It was included in the old act. Mind you, it was honoured in the omission, or in the breach, more than the observance, but it was in that act, so the planning scheme, or the development plan, for offshore coastal waters had in it the magic phrase, 'All development must be ecologically sustainable.'
So, when we challenged those tuna feedlots, the Environment, Resources and Development Court got to consider what that meant. In quite a famous judgement that has been reported in the international literature, they basically decided that the onus of proof was on the developer to prove that their development was sustainable; it was not the role of the objectors to prove that it was not. That was a very important finding.
Having won that case, which was the longest planning case in South Australian history up to that point, the victory lasted all of six days because the government then stepped in with regulations under the Development Act which did not deal with any of the environmental issues that the court had considered during the trial. The purpose of these regulations was to say, 'Henceforth, no-one is allowed to challenge aquaculture.' It was as simple as that. 'You can't challenge it anymore.'
So, what did the developers do—the Tuna Boat Owners Association? They photocopied the defeated development applications, they relodged them, and this time no-one could challenge it, so it went through, notwithstanding the fact that the Environment, Resources and Development Court had found those exact same developments to not be ecologically sustainable.
That just shows you the ability that planning ministers have, or any part of the executive has, to override proper processes, including proper judicial processes. The question we have to ask ourselves is: does the current system improve on that? No, it does not. This bill does not improve that situation. The government could do exactly the same thing again.
We then had the situation of another development: the Dunes development on the Copper Coast. I will not go into that one in any great detail other than that Greg Norman appeared to be on a real winner there, lending his name to anyone who wanted to build a golf course. They could say that it was Greg Norman designed, but it was not enough to sell the blocks and that development was a complete failure. But the development assessment process was far from perfect, and I think the residents were glad that the market spoke and defeated that project.
We have then got the Victoria Park grandstand. That was a case where, as members would remember, former minister Kevin Foley was determined that he was going to get his way. He was not prepared to let the local community or the local council stand in his way. Ultimately, that project did fail, and largely it was, I think, on the strength of the Adelaide Park Lands Act. Again, it was an example of the government riding roughshod over decades of community vigilance in protecting the Parklands by selecting this eyesore of a permanent facility right in the middle of one of the largest open-space portions of the Adelaide Parklands. I am very glad that that development failed.
I mentioned earlier the 30-Year Plan for Greater Adelaide. Of course, as members may know, that plan was devised while the ink was still wet on previous versions of the planning strategy for Adelaide, which actually said you do not need this urban sprawl. The development industry was not prepared to accept that and so, before the ink was dry on the planning strategy for outer metropolitan Adelaide, they made sure the government commissioned their people to write the study and to deliver the report that they wanted.
I received a lot of correspondence a few years back in relation to the main street—Tasman Terrace, I think it is called—in Port Lincoln. Again, the case there was whether the local community was being given reasonable opportunity to talk about their desired character for that location. Ultimately I think the developers prevailed; they got the building heights they wanted, from memory, but the local community was very dissatisfied with the outcome and it did affect their view of the whole planning system.
Quite early on one of my earlier forays into the development assessment system here in state parliament was when the development assessment panels were first devised. So that members are all on the same page, back in the old days, as it were, every carport, every rumpus room, every granny flat would go to a whole council meeting, and all the elected members would decide what the outcome would be. That was clearly not a workable system.
Most of the bigger councils had by this staged delegated to planning officers that sort of decision-making power, but ultimately the government came up with this model to say, 'Well, why don't we have, rather than all elected members, panels of say seven, with three elected members, three outside experts and an independent chairperson?' That was a contentious debate at the time. I can remember copping a bit of flak by supporting that proposal. Some people said, 'No, stick with local councillors, they know what's best, we want panels to be made of just local councillors.'
I accepted the government's argument that these hybrid panels were a good idea, and largely my acceptance was borne out of my experience working with councils, because of course some councils were good, experienced and professional. Other councils did not get that many development applications crossing their desk and they were not very good at it. Some of the country councils in particular would just say yes to everything, because that is what they thought they should do.
The notion of assessing the development against the planning scheme for the area and deciding whether it fitted or not was a bit foreign to them. As one elected member from a country council put to me not that long ago, 'Mark, what right do we have to say no to anyone who wants to develop in our area?', to which my response was, 'Well, you don't have a right, you actually have an obligation to say no if what they are proposing is at odds with the planning scheme for your area. Your job is to say no; don't phrase it "What right do we have to say no?"; it's your job to say no.'
While some local counsellors do not get it, most do. Those on panels certainly do; they go through training, they understand what their job is. I think this model of panels with a mix of elected members and outside people has worked pretty well, and I would like to see that continue. I do not think the government has made the case for removing these elected members altogether from panels. I know that is still a point of contention with the Local Government Association and with the individual councils, many of whom have written to me. As we progress with this debate I will read some of the things they have said.
A sub-debate, a secondary debate, as part of this was the debate we had here in parliament about how people serving on these development assessment panels should behave. The government came up with a code of conduct for development assessment panel members. This code of conduct was, I think, well conceived in terms of what they were trying to achieve, and that is that they want to avoid the situation that has been fraught interstate in terms of corruption, where the decision maker, whether it is a local councillor or someone else, is taken to the football in the corporate box by the developer, taken out to golf days, wined and dined—what most of us would call corrupt behaviour.
The government wanted to put an end to corrupt behaviour, so they came up with this idea of a code of conduct, but the code of conduct threw the baby out with the bath water. It was so restrictive that it meant that no panel member, whether an elected member or an outside elected person, was allowed to have any conversation with anyone concerning the development. They were not allowed to inform themselves privately in any way whatsoever. I thought that that was a recipe for poorer decisions in the end.
The reason I say that is that I remember one of my local ward councillors—she has since retired—took her job on the local development assessment panel very seriously and would visit every single site of every single development application in the area. She would look at it and sometimes talk to the neighbours, saying, 'Next door's putting up a second storey on your boundary, what do you think about that?' Or she would talk to the proponent. Under this code of conduct, an elected member diligent in their job could have got the sack for having those conversations. They could get the sack if someone came up to them in the supermarket wanting to talk about a development application.
I do get it that there is a line to be drawn between corruption and independently informing yourself of the situation. The model that I put forward, which the government rejected but which I would love it to reconsider again, is one of disclosure. In other words, when these development assessment panels sit down to consider a development, the first thing they do is disclose whether they have had any conversations or any dealings with any parties involved or any interested persons and the nature of those communications. Get it out in the open, get some sunlight on it. Do not try to prevent people from finding out information. Otherwise, if they turn up to the panel hearing, the only information they have is the information that is put before them.
For example, in a category 2 development, if people who have genuinely relevant, important things to say are not even notified of the development or even given an opportunity to put in a submission and are not given the right to turn up to the hearing, they will miss out on potentially important, relevant information. We have debated that here at some length. Again, I come back to the question: does this bill fix that up? No, it does not. Could this bill fix it? Yes, it could.
I have not said this much—I think the Hon. David Ridgway mentioned it and others will—but this bill is the tip of the iceberg. The vast bulk of the planning regime, as we will know it, is going to be in documents yet to be written. It is going to be in regulations, in the planning and design code, in state planning policy and in documents like codes of conduct for panel members.
The next lot of developments that I want to look at are wind farms. The Hon. David Ridgway has already referred to the very pleasant evening that he and I and the Hon. Russell Wortley spent in a haunted house a short distance from a wind farm, where the object of the exercise was to determine whether the noise, or the sub-audible noise, from this wind farm was such that it would prevent us from sleeping. The only thing that prevented us from sleeping was the level of snoring that was coming from rooms other than mine.
The reason I raise wind farms is that they are a good example of where the planning system has been quite slow to react. Wind farms were upon us as a concept before the planning system was very developed, and it took some time to come up with appropriate rules. Again, I found myself in a difficult situation.
Obviously, being a Greens member of parliament, being a huge fan of renewable energy, including a big fan of wind farms, I found myself on the other side of the debate, where I was actually batting for the rights of local residents to object and appeal against wind farms in their area. That is because I felt that the wind farms would have stood up on their merits, but I was determined to make sure that local citizens had every opportunity to be involved. I have always railed against the state government withdrawing notification, comment and appeal rights from citizens. We need more of these rights, not less.
As I will explain a bit later on, when we provide more of these rights we actually find that we get better outcomes. The main reason for that is that any decision-maker, when making a decision that they know is challengeable, is going to pay a lot more attention to the rigour that they need to apply because if they do not get it right they know they will be challenged.
So, appeal rights is one of those things that haunts the nightmares of the development industry and the government but they do not haunt the courtrooms. The number of third-party appeals is small and declining, yet if we had more ability to lodge third-party appeals, sure, there would be a few more lodged, but better decisions would be made that would counteract any inconvenience from the extra appeals. That is wind farms.
Then we have the industrialisation of Point Lowly. Again, that was a good case study for the incremental impact of developments on a location. The planning system is very poor at dealing with cumulative, incremental impacts, and that is because every development gets assessed on its merits and the planning authorities do not necessarily consider what is already there or what might be to come. What we had in the case of Point Lowly was that yes, you had the facility there; you can see it from the other side of the gulf, the Santos facility, with the big white gas and, I think, diesel containers, which leak. They leaked into the gulf and millions were spent trying to stem the leak and trying to prevent hydrocarbons entering the gulf.
There was already an environmental impact from industrialisation, and all of a sudden the government is proposing a whole lot of extras, none of which would have been judged cumulatively. They would have been judged individually. There was the desalination plant for the proposed Olympic Dam mine expansion. There was an additional diesel storage facility next to the one that leaks. There was an explosives works designed to store and, I think, to manufacture explosives for use in the mines.
All these things were going to be dumped into one of the most sensitive environments in South Australia—and I say sensitive because it is the home of the only known breeding aggregation of the giant Australian cuttlefish. Just a few years ago we saw the numbers of cuttlefish declining to worrying levels and no-one really knew why; they appear to have picked up, not to the levels of a decade or more ago but they do appear to have picked up. However, the consequences of one of these industrial facilities going wrong would have been devastating to the only known breeding aggregation of this unique species. That was a good example of the failure of the planning system to consider the totality of development rather than judging each individual development as if it were the only thing in the area.
The protection of the Hills Face Zone is something we have debated here, and obviously that is something relevant to the planning system. Originally this was regarded as a no-go zone for urban development. My understanding of its history is that it was a no-go zone for very different reasons to the ones for which we now value the Hills Face Zone. We now value it because it is an open, natural backdrop to the city of Adelaide that is relatively undeveloped; it is not like a hillside at the back of Rio de Janeiro with the slums going right up into the hills. It is a relatively undeveloped scenic backdrop to Adelaide but my understanding is that, historically, the purpose of this zone was basically because the Engineering and Water Supply Department (E&WS) could not guarantee to sewer or provide water to this area, so they zoned it as an area inappropriate for development. I think we can be grateful for that decision back then; however, because the Hills Face Zone does provide the most spectacular views in Adelaide, it is always going to be under pressure from development applications.
The future of Port Stanvac is another one we have dealt with here; a combination of planning laws, not the least of which is the contaminated site and the requirement for that to be rehabilitated before anything can go ahead. Obviously we have the future of the jetty but, again, the test we have to apply is, 'Would this new planning development and infrastructure build provide the best outcome for Port Stanvac, including a genuine ability for the community to have a say and have their views taken into account?'
We have debated the protection of the Southern Vales. Again, we had legislation before parliament which is now cross-referenced into this new legislation before us. It is slightly different now in that we have the new food production areas, which include slightly different township boundaries but, again, it is separate legislation for the Southern Vales and for the Barossa. If someone had asked whether that legislation was really necessary, it was not; they could have achieved the same results another way, but most of us did support that legislation because, symbolically, it made the strongest point we could that these agricultural zones were a key part of Adelaide's landscape and that they should stay agricultural zones and not be subdivided for housing.
With the Adelaide Oval redevelopment and the Torrens Footbridge—I have mentioned the footbridge before as part of the Adelaide Parklands development—again, the government tried a couple of different techniques. I think they tried regulations, which were disallowed, and then ultimately they eventually found a way to use a non-disallowable instrument to achieve what they wanted.
Again, it is not necessarily a criticism of the footbridge—although most people still sort of rail at the cost of it, I think it has probably been generally well received by the people of Adelaide even though it was very expensive—but the fact that the government is so fearful of community debate and community challenge that they have to push these things through and deny public involvement I think is what is most disappointing.
The rezoning of the Glenside campus is another planning issue that, in fact, in my 10 years here, is the closest we have ever got to the system of parliamentary scrutiny under section 27 of the Development Act actually working. It is the closest we have ever got to that section working. I will have a bit to say about parliamentary scrutiny of planning policy a bit later on, but the reason I mention Glenside is because there was a brief period when the Environment, Resources and Development Committee of the parliament was not entirely government dominated. There was a brief period when there were two Labor, two Liberal, one Green and the late Dr Bob Such.
When it came to the rezoning of the Glenside campus, and in particular the zoning of I think it was the Fullarton Road frontage basically for housing, the two Liberal members and I voted to disallow that planning change, and the late Hon. Dr Bob Such joined us. I got quite excited, because I could see that this was probably going to be the only time ever that parliamentary scrutiny got to work. Unfortunately, and I never did find out from the Hon. Bob Such what happened, but he had a change of heart at the last moment and a rescission motion was put in to the committee a couple of weeks later, and ultimately the government did get their way.
It is a good case study as to why it is important for the Environment, Resources and Development Committee of parliament to not be government dominated, because you actually do get a chance for the parliament to consider some of these important planning changes. As you will hear me say at some length later on, the system of parliamentary scrutiny has never worked. It has never once been applied to the full extent. It has tinkered around the edges a bit. The minister has occasionally taken a suggestion from the committee for a minor change in planning policy, but it has never resulted in a planning scheme being brought to the floor of parliament and disallowed.
This is actually something that is lost, I think, on many of the constituents who have written to us about this legislation. So many of them, whether they are industry submissions or other submissions, say, 'We just need to make sure that the parliamentary scrutiny process applies to more aspects of the development system.' I am saying, 'Yes, but if you don't fix the actual mechanism of scrutiny, you are wasting your time.' So, I will have amendments to deal with that, and I will come to those a bit later on in my contribution.
I mentioned the 30-year plan before. One of the underpinnings of that plan were what I say are dodgy population growth estimates that were used to justify the urban sprawl components of that plan. The way it works is like this: the government put I think it was three conditions that were going to guide their future urban planning. Condition No. 1 was that we have to cater for a vastly increased population. Condition No. 2 was that we have to have at least 15 years of empty residential-zoned land.
Condition No. 3 was that the government, I think foolishly, said, 'We are not going to touch 80 per cent of the metropolitan area.' So, when you put all those things together, your options for urban consolidation are far reduced, and urban sprawl is the logical consequence. If they are the three inputs, urban sprawl is the logical output.
Part of the problem, of course, is that the 30-year plan is technically a chapter of a document known as the Planning Strategy. The Planning Strategy is a statutory document under the Development Act, and it cannot be challenged in any way. The government is not even really obliged to take public consideration into account in any serious way. t is basically the government's own document, and they can put in that whatever they like. As a result, they have put rubbish in it from time to time.
We have also debated here the use of private certifiers in relation to building approvals. That is one of those issues that are directly relevant to the current bill, because the role of private certifiers is proposed to be expanded. I am prepared to say that at the time, whilst I was nervous about an important statutory task that had traditionally been undertaken by publicly employed officials—mostly local council building inspectors—whilst I was really nervous about handing that role over to the private sector, we did not rail against it as much as we are going to rail against what is in this bill in relation to planning decisions.
I think there is a very different and more significant impact when you have a private profit-making individual deciding whether something gets planning approval compared to a private profit-making individual deciding whether the foundations have been dug deep enough. They are very different questions.
The compliance with building rules is pretty much a systematic thing. You get your tape measure and your slide rule—whatever you use—and you can work it out; it is not that hard. Provided there is oversight, private certifiers may be able to do that job; it may have improved the efficiency of building approvals. But to then go to the next step and say, 'Right, we're going to outsource to the private sector the actual fundamental decision of whether or not someone should get planning approval' I think is a step too far, and we are going to be opposing those provisions of the bill.
The next issue that we have debated here in the past which is directly relevant is the impact of climate change on sea-level rise and on coastal development. I can remember the Hon. Paul Holloway laughing at those foolish people up at Byron Bay, or somewhere, where basically they were one of the early councils to recognise that climate change was real, sea-level rise was real, and they put in place planning rules that, basically, were to deal with it, including strategic retreat.
Here at the state level, what the government has done over a period of years is to put in various rules around heights. You cannot develop below a certain height, which varies in different locations—I think it might be a metre around mean high sea-level rise, and technical people might know exactly what it is. But there are more fundamental questions about what we should do with the planning system to cater for what could be sea-level rise at magnitudes greater than we have currently experienced.
People will remember that every so often, The Advertiser will publish a picture or a map showing what worst-case scenario sea level looks like, and I have to say it looks pretty spooky. When people are talking about one or two centimetres then, yes, you have got increased erosion and you have got some impact. Most people do not get too scared by that, but once you start getting into tens of centimetres or into metres, then there are whole sections of our coastline that effectively become uninhabitable and, in particular, because of the impact of storm surges.
You do get the situation where the planning system has, for example, completely failed the existing coastline of Adelaide, and it costs all of us millions of dollars every year to pay for these planning failures. Planning failure number one was allowing urban development on the sand dunes along the metro Adelaide Coast. That was the source of sand to replenish the beaches; once you have built on those sand dunes the beaches do not replenish, and the beach erodes.
As a consequence, for decades now we have had a system where we have to take the sand from one end of the metro Adelaide coastline and we have to deposit it at the other end of the metro Adelaide coastline so that natural forces can send it back up to where it started from. As a result of poor planning, over decades we have had to have trucks on the beach and pipelines, and the Hon. Ian Hunter has answered questions in the past about the pipelines piping the sand along the beaches. ut I will tell you where the planning system has failed more recently and that was the decision to approve the West Beach boat-launching facility.
Those of us who were involved in that campaign—and any scientist or engineer you asked—said, 'If you build a protuberance out from the Adelaide coastline, the sand, which has a natural south-to-north drift, will build up on one side of the facility and it will erode on the other side of the facility.' It is costing us millions of dollars of year to move the sand around these artificial obstructions we have created. It is absolutely ludicrous. It is like painting the Harbour Bridge: you start at one end and, by the time you finish, you have to do it again. It costs millions of dollars a year.
When the Hon. David Wotton was the environment minister and he invited me to participate in a reference panel to look at the management of sand on Adelaide's beaches, one of the things I did was actually went out into the community and said, 'Look, this is costing us a lot of money. Are you prepared to stop? Are you prepared to give it up and let nature take its course? It might mean that some houses at Tennyson get washed into the sea.' The Hon. John Gazzola, I do not know if your place is anywhere near the sea: you might get washed in.
But the answer I got was that no-one was prepared to abandon it because, as a community, we do value having a sandy beach on our metro coastline. It is one of those costs we would rather not have to pay but we are prepared to pay because we like the beach. The point I am making is that the planning system is at the heart of the problem that has resulted in citizens having to pay millions of dollars per year.
We will have a referral system under this new legislation. The referral system is currently schedule 8 of the Development Regulations; there will be a new version of that. The government has been resisting putting too many authorities on that list but we do need to make sure that climate change authorities are included on the list of people to be consulted about the potential impacts of development. It is a bit of a no-brainer, but my experience has been that, every time I have tried to add to the referral list, the government has rejected it.
In terms of that list that I have gone through, I mentioned that I had 626 hits on my online archive of references to the Development Act that we have debated over the last 10 years in state parliament, but of course the other thing I have done is introduced a large number of private members' bills over the years to amend the Development Act and also moved a very large number of amendments to government bills that amend the Development Act. I just want to give a quick snapshot of some of the bills that I have introduced in the past that I will be reprising again in amendments to this legislation.
The first one is in relation to the provision of direct notification to residents who are affected by zoning changes. It actually comes as a surprise to most people when you put it to them that the government can rezone your house and not have to tell you. When you put that to people at a barbecue—I do not get invited to many barbecues, and now you know why. If I said to someone at a barbecue, 'Did you know that the government could rezone your house and they don't have to tell you?', most people would say, 'That can't be right; you must be wrong.' But my experience at the Environmental Defenders Office is that it happened all the time.
The worst example was a bloke who was living up on the northern plains. I think he might have been up on the Little Para somewhere and his house was rezoned from residential zone to flood plain without his knowing about it. When he did discover it, when he tried to put in a development application to improve his property and was told that he now lived in a flood zone, he put it to me that this cannot be true.
Of course when you look at the law as it currently is, the obligation on the minister is to put the notification in the Government Gazette and in a newspaper. The first thing I will say is that I do not know of anyone sad enough to voluntarily read the Government Gazette who does not work for the government or work in this place. It is not a bestseller. If you go to a newsagency, there are car magazines and all sorts of things. I do not think you can get the Government Gazette; no-one reads it.
It is an anachronistic provision. I am not saying we should do away with it because you do need to have a formal repository of certain notices, but to think that it is a sufficient notification for the public is rubbish. The newspaper is following in the same vein. ery few people read newspapers. The idea that you can rezone someone's house from under them and then say to them, 'But didn't you read the public notices in last Saturday's Advertiser,' I think is ludicrous. So I moved a bill which said that, with some exceptions, people should have the courtesy of the government telling them that they are about to change the planning rules that affect their property. I use the word 'rezoning' as a bit of a shorthand.
If they are going to rezone your house they should tell you; they should tell you that you have the right to make a comment, that you have the right to attend a meeting. Do not just let people find out, years down the track often, when they lodge a development application, only to find that the rules were changed on them. That was a very simple reform. It is not in this bill. It needs to be there.
The interim operation provisions that I referred to before in relation to the Mayfield development have been abused on many occasions by the government, and I previously introduced a bill into parliament to reform that. I am delighted that that is one of the bills that the Liberal Party has supported. They agreed with the Greens, and I hope they still do, that interim operation—it is not called that under the new system but it is exactly the same system—is a valuable tool, but it is a valuable tool for protecting the status quo whilst discussions are undertaken in relation to planning changes.
The classic example of where interim operation is an appropriate tool is in relation to heritage listing. You only have to think of this as an example: if the government says, 'We’re thinking of listing this building on the local heritage list,' and then they put it out for public consultation and nothing happens while public consultation is under way, then if the owner is unhappy with that declaration the first thing they are going to do is ring a bulldozing contractor and knock the place down before the change comes into effect. That is exactly what has happened in the past.
This notion of interim operation—in other words, shoot first, ask questions later, bring the planning change in straightaway and then consult—is a valuable tool. It is a valuable tool for protecting the environment and protecting heritage, and it should be confined for those purposes. If you reckon I have made this up, members might recall that years ago I tabled in parliament a planning circular under the name of the Hon. Don Hopgood, former Labor planning minister. Again, paraphrasing his planning circular, which he addressed to local councils and developers, he basically said, 'As planning minister, you people keep asking me to use interim operation to help get your development fast-tracked; I'm not going to do it any more. That's not what interim operation is for. It's not about fast-tracking your favourite development, it is about protecting the environment and retaining the status quo pending public consultation.'
That is what it was designed for and that planning circular was under the old planning act and it pre-dates even the Development Act. It was from the 1980s. If that was a reason for introducing that measure, it is still the reason for retaining it so we have to incorporate those changes back into this bill, and I will be moving accordingly.
Another of the bills that I put forward which, again, was supported by the Liberal party, and I think—I will have a close look at this but I think it may have been incorporated into the current bill, one of the very few things that I have moved over the years that has found some favour—is the direct notification through posting of a sign on land in relation to development. It is an old method. It has been used in most other countries in the world. It can be a sign in the window, a star picket in the yard—we have been using it for liquor licensing applications forever and there is no reason why we should not be using it for development applications.
Another bill that I was forced to introduce back in 2008—and, again, the need for this has not gone away—was to protect the rights of free speech for those who are involved in planning debates. One of the important things about planning is that people need to be able to honestly comment on proposals that are put forward. If they have concerns about it they need to be able to say that they have concerns. What they should not have to run is the gamut of developers and their lawyers threatening them with legal action for daring to comment or criticise the development.
I have worked extensively in this area—the area of SLAPP suits. SLAPP stands for Strategic Litigation Against Public Participation and is a time-honoured method where developers silence their critics by either bringing legal action or threatening legal action. You might think, 'What's that got to do with little old Adelaide? Surely that doesn't happen here?'
But if you go back to February 2008, North Adelaide residents were distributing a flyer which was encouraging residents to attend a public meeting to get information and comment on a development in O'Connell Street. The residents who distributed this flyer received a letter from lawyers representing the Makris Group of companies.
The letter threatened to sue them if they dared to raise at the meeting the issue of the Makris Group's $180,000 donation to the Labor Party, in other words, threatening residents that if they dared mention at a meeting the fact that the Makris Group had given $180,000 to the Labor Party, they would send in the lawyers. That is just outrageous: stifling genuine community debate with those sorts of bully boy legal tactics is not on, and we need to make sure that legislation deals with that.
On the topic of developer donations, I have over the years developed a number of different models as to how we deal with it. First of all, to answer the rhetorical question, 'Why do we need to deal with it?' The answer is pretty simple: look at New South Wales. If you want to know why developers making donations to political parties is a corrupting influence, just look at New South Wales. It was one of the main features that saw Labor thrown out in New South Wales, with a resounding majority against them. It was a corrupt state; officials were corrupt at every level, at the state and local government levels.
We do need to deal with it, but you have to be smart about how you deal with it, because if you had a blanket prohibition on any developer making a donation to a political party, then of course that would catch the person building a carport or a rumpus room or adding a kitchen, or whatever it is. We are all developers when we do those things. It would have to be limited to substantial developments.
You have also then got issues around the right of citizens in a democracy to support the political party of their choice. Certainly, the model that the Greens have proposed is to put an end to those big private donations. Our model is for one of public funding of elections, but until we have that it does make it difficult to ban outright one group in society from being able to donate when others can.
The model that I eventually settled on in my bill before state parliament was a disclosure regime. The disclosure regime basically said that if your development is worth more than $4 million or if you are proposing a subdivision of more than 10 lots, then you need to declare, as part of your development application, the fact of that donation; in other words, get it out into the open so it is public and people know it.
Then people can draw their own conclusions about whether it has been a relevant factor or not. Hopefully it is not relevant because it has been disclosed and people know about it. As we know, political disclosure regimes, whilst they have been improved and strengthened in South Australia since 1 July this year, are not cross-referenced to any particular activities that the donors might be involved in. They are not cross-referenced to the development application that they put in.
In case people are again thinking, 'Well, it might be a New South Wales problem, but it is not a South Australian problem', let's go back to Mount Barker. Let's have a look at that consortium of seven property developers who convinced planning minister Paul Holloway to open up Mount Barker to new broadacre development.
When we went back and looked at what donations those companies had made, we found that at least $2 million had been donated to the Labor Party. Most of that was to the Labor Party nationally, but a fair chunk of it was in South Australia. For example, the total was $179,500 that went directly to Labor. The companies involved included Urban Pacific, which was part of the Macquarie Group, and the Walker Corporation. gain, if I was going through my list of dodgy developments and links to party donors, we could go to the Festival Plaza, but I kept that one off—we might come back to it later. Certainly, Walker Corporation is there, as are the Fairmont Group, Land Services Pty Ltd and Daycorp Pty Ltd.
I have not got up-to-date figures, so these figures are about four or five years old. Since the year 2000, certainly the Walker Corporation had given $25,000 to Labor in South Australia and $1.1 million to federal Labor and to New South Wales Labor. The Macquarie Group had given $27,350 to SA Labor and just shy of $1 million—$978,519—to federal Labor and New South Wales Labor. The Fairmont Group donated $119,450 to Labor in South Australia. Daycorp made a smaller donation of $7,700 to Labor. Like I said, that added up to $179,500 to the South Australian Labor Party.
The question in the public mind is: have these companies donated to a political party because of their deep and abiding love of the democratic process, or have they made those donations because they are developers? That brings us to one of the more famous quotes that was made, and I will come to that in a second. It was a famous interview on Matt and Dave with I think the CEO of the Makris Group, which has had a lot of outings in parliament over the last few years and is the gift that keeps on giving.
Before I get to that quote, whenever I raised these issues in state parliament, planning minister Paul Holloway would get as defensive as you have ever seen him. He would go berserk, and he would accuse me of 'peddling sleaze'. Whenever I mentioned major party donors to Labor who were also property developers, I was 'peddling sleaze'.
Clearly, it struck close to home, it struck a nerve, but do not just take it from me. I always like to quote Labor luminaries on topics where I am being told I am out of line. Let's go to Paul Keating. Former prime minister Paul Keating said, 'I think we would be better off if developers were forbidden from donating election funds to municipal candidates and to political parties', so it is not a novel idea. Labor recognised it. New South Wales Labor recognised it. It cost them office. It is a corrupting influence, so we need to bring this reform back.
I mentioned my bill in 2008, which I want to reprise as part of this bill, but I think it was a couple of weeks after I introduced mine that the Morris Iemma government introduced the Local Government and Planning Legislation Amendment (Political Donations) Bill 2008, which inserted a new section 147 into the New South Wales Environmental Planning and Assessment Act, which is the equivalent of our Development Act. Under the heading 'Disclosure of political donations and gifts', the New South Wales bill provides:
(1) The object of this section is to require the disclosure of relevant political donations or gifts when planning applications are made to minimise any perception of undue influence by:
(a) requiring public disclosure of the political donations or gifts at the time planning applications (or public submissions relating to them) are made…
So, the words of my 2008 bill that need to be put into this 2015 bill were almost identical to what the Iemma government enacted in New South Wales. They saw it was appropriate, and I do too. Another bill that I introduced, which I do not think is redundant but it will require some tweaking before we reincorporate it into this current act, contained the reforms to the Development Policy Advisory Committee.
I think the Hon. David Ridgway referred to this in his contribution. He certainly referred to the fact that I am a frequent flyer at the Development Policy Advisory Committee and regularly make submissions to planning policy discussions. I actually deny that I 'whip the punters into a frenzy', to use the honourable member's words, but I do reflect the concerns that the punters raise with me, and that is what we do in parliament. People come to us with their concerns and we reflect them.
I have been to many hearings of the Development Policy Advisory Committee, and it is almost formulaic now. hat happens at those meetings, is that someone will ask the chair—it might be Mario Barrone or someone else—'Well, here we are making submissions, what happens to our submissions?' The answer would come back, 'Well, the Development Policy Advisory Committee is a statutory body under the Development Act; we will take your considerations into account, and we will give advice to the minister.' The question from the audience is then, 'Well, can we see that advice, it's our submission, we're the ones who've made written submissions, we're here talking to you verbally, can we see the advice?' The answer is always, 'Nothing to do with me, ask the minister.'
The position that the Development Policy Advisory Committee has always taken is that it is not their job to disclose their advice to the minister, that it is up to the minister to release the advice. So, when I have come to parliament and I have asked the minister whether we can we see the advice, the answer has always been, 'No, no you can't.'
The Hon. David Ridgway may have proposed this compromise—he will correct me later if I am wrong—but in the end we managed to get some level of disclosure so that these submissions are published, but they are published after the horse has bolted; in other words, the community and the parliament, through the Environment, Resources and Development Committee, does get to see the advice from the Development Policy Advisory Committee, but only after the minister has made a final decision, and that is wrong, that is the wrong way about it.
Those people who go to the trouble of making a submission are owed the right to see how their submission was treated. If under this new regime we will have bodies, whether it is the planning commission or whatever else, providing advice to the minister then in the interests of fairness, openness, transparency and plain democratic decency, those who have taken the trouble to make submissions should be advised of the outcome, should be given a copy of the advice.
What we find out is that it is after the horse has bolted, as I have said, but when you look at something like the Mount Barker rezoning, where (I have forgotten the exact number) I think 500 or more people made submissions—
The Hon. D.W. Ridgway: It was 540.
The Hon. M.C. PARNELL: —540, the Hon. David Ridgway corrects—and if it was not 100 per cent it was 99.9 per cent against the rezoning at those hearings, yet we did not find out that the Development Policy Advisory Committee recommended in favour of rezoning until a considerable period after the meetings had been held, after the horse had bolted, long after there was any ability to do anything about it. So, we need to bring back that reform.
I have mentioned the abuse of interim operation. We are going to reprise that bill as an amendment to this bill. I also want to reprise another private member's bill I had, which was to prevent private developers from taking advantage of government fast-track rules for crown development. I mentioned the Torrens Island case, but we also had a number of proposed developments on Spencer Gulf, in particular various mining ports, that were absolutely private developments. There was no doubt they were private developments, yet they were allowed to be assessed and approved using the crown development provisions of the Development Act. Those provisions are replicated in the bill before us, so therefore we need to fix this bill as well.
In parliament over the years I have also moved the disallowance of many development regulations, and certainly, as has been said before, the devil is in the detail in this system. The regulations will be important: there is no proposal to diminish the rights of parliament to disallow regulations, but of course the government may well decide that more of the detailed planning policy will be put into other planning documents, such as the design code, rather than in regulations to try to avoid their being disallowed. I am suspicious: I think the government has given itself more options, with more subsidiary planning documents, and I am nervous about the fact that things that traditionally might have been in regulations might be put in some of these other documents.
I have tried on numerous occasions to reform the ERD Committee, and again I will have another go at that, but as I will refer to a bit later on when I talk about some of the other amendments I have, I think it is time to now bypass the ERD Committee. The Environment, Resources and Development Committee does play an important role in scrutinising planning policy, but it must not be the sole gatekeeper between the people and the parliament.
People who are calling for the parliament to dismiss inappropriate planning policy expect the parliament to actually consider it and vote on it. They do not expect a smaller subsidiary group of six government-dominated committee members to be the gatekeeper between them and their elected representatives. So, I will be proposing not just the reform of the ERD Committee but the bypassing of that committee when it comes to the disallowance of planning policy.
In the past we have also argued or debated the appropriate jurisdiction of the Environment, Resources and Development Court. As I understand it, it is proposed that that court is to stay for the time being. There have been various conversations over the years about whether it is going to be merged into the Civil and Administrative Tribunal. My main interest in that court is that it maintains the jurisdiction it has and, in particular, it needs to maintain its jurisdiction over judicial review.
I mentioned in my contribution earlier that a number of residents groups and a number of local councils have had to go to the Supreme Court in order to make the case that the government has behaved illegally in relation to the Development Act. I think that having to go to the Supreme Court is too onerous, given that it is a cost jurisdiction. It is expensive and it is slow. I want to make sure that the specialist Environment, Resources and Development Court has that power. I also want to make sure that some of the major disincentives to civil enforcement are removed from this bill.
At present there are a number of tools that the government or developers can use to effectively make it impossible for residents groups to enforce the law. They include things like undertakings for damages, undertakings for costs and adverse cost orders. They are disincentives of such a magnitude that most community groups will not pursue action in the face of those impediments. So we have to make sure that that is fixed as well.
The final issue I want to raise is that of significant trees, because that is back on the agenda. Significant trees are regulated under the Development Act. They will continue to be regulated under the Planning, Development and Infrastructure Bill. We do need to again debate whether or not it has been made too easy for significant trees to be chopped down with no evidence being provided. I know that the majority of the parliament in the past wanted to make it as easy and as cheap as possible to chop down large significant trees, so the inability of the decision-maker to require an arborist's report was at the heart of those changes. I want to make sure that there is the ability to engage an arborist in situations where it is required.
That is a bit of a trip down memory lane: the issues that we have dealt with in my time here over the last 10 years in relation to the Development Act and why I say they are still relevant to this new bill and how we want to reform them.
I now want to go back to first principles because I think there are some fundamental flaws in the philosophy behind this bill that we need to address if we are going to end up with a bill that South Australians can have confidence in. I am going to actually pose the threshold question: what is planning law designed to do anyway? What is it for? What is the purpose of it? Certainly this bill, as we have said, is a complete rewrite of the Development Act, but the bill does much more than that: it will actually determine the nature of our cities, our towns, our suburbs and our regions for decades to come. Getting this right will result in good outcomes. Getting it wrong will result in bad outcomes.
The bill will also determine whether some of the government's other aims will be achieved; for example, carbon neutrality. We have heard about that today. We heard about it over the weekend. I think 7,000 South Australians marched in the climate rally. Minister Hunter released some new state government strategies aimed at reducing our carbon footprint.
However, there is a fundamental issue that if we get this planning system wrong then we will undermine that attempt to decarbonise South Australia. I have already mentioned Buckland Park; they knew they were never going to get decent public transit out there, they knew it would be a car-dominated, satellite, commuter suburb, and they knew that most families would probably not be able to survive without two cars. That goes directly against the government's stated climate change objectives.
The urban growth boundary has been mentioned, and that is going to be a big part of this debate. My concern is that I think the government might not have the numbers on that at this stage, but we will wait and see. Certainly, the Greens' position is that we have always supported restraints on urban growth, we have railed against urban sprawl, and we will have a look at what amendments the government or the opposition might have in relation to the urban growth boundary; however, it is a fairly fundamental thing.
What I am getting at with this is that as an enabling piece of legislation this new bill, when it is enacted, will not of itself make anything happen. You can have the best structure plans, the most comprehensive future urban character statements, you can have all the right words, but there is nothing in this bill that actually makes any of that happen. The bill does not make the government extend the tramline, it does not force the government to build parks or community infrastructure. The bill is an enabling piece of legislation, but it has to wait for someone to come along with an idea. If no-one comes along with an application for development then the act has very little work to do.
The purpose of the Development Act, as stated at present, is not repeated in the new bill. The old act, the current act, talks about orderly and economic development, but the meaning of 'orderly and economic development' is something that has changed over time. Back in the 1930s, 1940s and 1950s it probably would have seemed orderly and economic to build workers' accommodation as close as possible to the factories. It would have made sense; people could have walked to work or could have ridden their bikes to work. Now that we know more about the impact of noxious industries on human health we believe that is not such a good idea, you do not want noxious industries hard up close to where people live. So the thinking on orderly and economic development has changed over time.
In my view, at the heart of the planning system—given that it is a responsive system, it responds to things that you want to do—is this principle: that the public interest requires the curbing of the natural tendency of individuals to maximise their personal outcomes, often at the expense of public outcomes. The way the planning system deals with that is by saying to landowners, 'You can't just do whatever you want.' That might sound a bit folksy or as if I have synthesised it down to an absurdly simplistic rationale but it is important to recognise that, because the key element is that what we are doing is curbing the natural instinct of people to maximise their self-advancement.
Of course you can make more money putting more houses onto a block of land and minimising the amount of open space, you can make more money by pushing certain developments where they might not be wanted by the local community but where you think you can make a profit. The planning system says, 'That is not on. We're going to have orderly and economic development, but we also want to deliver' and again, this will sound very folksy but it is at the heart of the planning system, 'happy, functional, secure communities that are living within the natural constraints of the environment.'
None of those concepts are really built into this bit of legislation. There is no concept that what we are really aiming to do is to deliver happy, functional and secure communities living within the natural constraints of the environment. They are foreign concepts in this bill, and we need to revise the objects clause and we need to build those in, because the current objective is in relation to growing the economy. It is about economic growth, it is about promoting development, but growing the economy is not the objective of the planning system.
Economic activity is not an end in itself; it is a means to an end. It is a way of obtaining wealth and productive employment and value in our lives. It is not an end in itself. There are far more sophisticated thinkers than I who have put their minds to this issue about what the objects of planning legislation should be, not the least of these is Professor David Harvey from the University of New York. Professor Harvey is now over 80, but he has been one of the world's leading researchers in neoliberal economic theory for many decades. In his 2008 work, 'The Right to the City', Professor David Harvey notes that:
We live, after all, in a world in which the rights of private property and the profit rate trump all other notions of rights.
In a melancholy way, he is stating that as a fact. That is at the heart of the current bill before us. It is about private property and it is about profit; it is not about the rights of citizens.
Professor David Harvey goes on to argue that one of these rights that a citizen should have, and they should have this right collectively, is what he calls 'the right to the city'. The professor says:
The question of what kind of city we want cannot be divorced from that of what kind of social ties, relationship to nature, lifestyles, technologies and aesthetic values we desire. The right to the city is far more than the individual liberty to access urban resources: it is a right to change ourselves by changing the city. It is, moreover, a common rather than an individual right since this transformation inevitably depends upon the exercise of a collective power to reshape the processes of urbanization. The freedom to make and remake our cities and ourselves is, I want to argue, one of the most precious yet most neglected of our human rights.
That is the end of the quote, and at this point, with the words of Professor David Harvey ringing in your ears, I seek leave to continue my remarks.
The Hon. M.C. PARNELL (19:47): I feel that the last few things I said just before the dinner break may well have been lost with people. We started getting a bit philosophical. I was quoting Professor David Harvey in relation to the rights of the city, and I think that once the clock has ticked over to 6 o'clock it is difficult to keep people's attention. Nevertheless, the relevance of the quote I gave was that it poses the question about whether the objectives or, as we use in legislative parlance, the objects of the bill are the right ones.
In other words, is this bill about promoting healthy communities, good neighbourliness, equity of access to public resources and a culture of sharing? Will it help us live good lives, be nice to each other and tread softly on the planet? Normally, when you talk like that, people roll their eyes and they think, 'Well, Parnell is off with the fairies. He has completely lost it.' but think about it. Is our existence in cities purely as consumers and part of the economic cycle or is there more to it? If there is more to it, and this is a bill about planning for cities, then why do we not ensure that the bill has as its objects the things we are really trying to achieve? The bill, according to its objects clause, states:
The primary object of this Act is to support and enhance the State's prosperity …
It then goes on to identify that this will be achieved through a planning system that 'promotes and facilitates development'. It is only as a secondary objective, the creation of a scheme:
…for community participation in relation to the initiation and development of planning policies and strategies.
But if you are looking for more social or environmental objectives, they are much further down the list in subsidiary principles of planning. I made the point before the dinner break, and I will say it again, that development and economic activity is not an end in itself; it is basically a means to an end, and that end is a cohesive community, a coherent and caring society and one that treads more lightly on the planet.
At a technical level, what is unsurprising about the bill and about all predecessor bills is that it has at its heart two main issues: first of all, the writing of planning policy, in other words, writing the rules; and, secondly, making decisions about individual development applications. This bill deals with both those points, as all previous bills have done, and that makes sense. The connection between the two is pretty simple: developments should fit within the planning rules; they should fit within the framework of planning policy. If the development does not fit or it cannot be made to fit, then it should be rejected.
But are they the only issues that the planning system should address? I would say that the planning system has been overly narrow in past years because it has been reluctant to deal with activities and the behaviour of people that also impact on our quality of life. The land use planning system has been very poor at regulating behaviour. Certainly, the planning system can zone land as being suitable for industry, but it does not speak to pollution. The planning system can create buffer zones, but they are often very crude, they are sometimes insufficient, and at other times they are unduly restrictive of other land uses.
We can zone land as suitable for farming, but the planning system is silent as to the impact of farming—for example, chemical use. That raises an interesting issue. The Hon. Robert Brokenshire often comes in here with legislation dealing with the right to farm which, on his interpretation, has included the right of farmers to pollute to the extent required in order to farm. The take-home message from legislation such as that is, 'Don't complain about spray drift or vapour drift; that's just part of farming.'
I think the planning system can be more robust, and I would like to think that in this bill we incorporate some principles that allow planning to go a bit further. I will just give one example that members would not have heard about. It is not earth shattering, but I think it is an important one. Several years ago, the town planner at Mallala had an idea that one way of using the planning system to overcome disputes between farmers and the growing residential population would be to try to zone land for a form of low impact farming. The sort of low impact farming they had in mind was, for example, organic farming that did not use chemicals and therefore was more safely conducted hard up against residential areas because there was no risk of spray drift and chemical contamination.
However, he was very quickly howled down. The people in Planning SA would have no bar of using the land use planning system to determine the type of farming. It was either a farming zone or it was not, and they were not prepared to countenance that you might have a type of farming zone that was low impact farming or, in particular, non-chemical farming. I think we can do better with the way we treat land use planning.
In terms of the problems with the system, whatever you think is wrong with the system will largely be determined by who you are. In other words, the answer to what is wrong with the planning system will differ whether you are the state government, a big developer wanting to build a new housing estate, a small developer wanting to add a swimming pool or a carport or a rumpus room, or whether you are a community group that wants to protect urban character or heritage. I want to go through some of the criticisms that have been made by those different sectors and problems they have identified with the planning system so that we can address the question of whether this new bill is, in fact, an improvement on the old.
That is the question: does the bill improve the status quo? If it does not improve the status quo, we should vote it down and stick with the status quo. f it does or can be made to improve the system, then it deserves support.
As I started to say before, one of the overall issues that we are looking at is: on whose behalf are we planning? Are we planning on behalf of the whole of the community? Are we planning on behalf of big developers? Are we slaves to trickle-down economics, so that we think whatever development people with money choose to undertake will necessarily be good for the rest of society as the benefits trickle down?
We also need to ask ourselves what the balance should be between the executive, the legislature and the judiciary. I make no bones of the fact that I think that the balance is wrong. I think it is too far in favour of the executive and not enough in favour of the legislature and the judiciary. You may well say, 'You would say that', because I am not in the executive.
One of the problems we have got is that, even though in their heart of hearts many members of the opposition know that I am right when I am trying to put the brakes on the executive and the planning system, they tend to squib at the final moment, because they know that one of these decades they will win an election eventually and they will become the executive, and they want the powers that they rail against the government for exercising, but, of course, they will in government exercise them so much more sensibly; so they have never really supported a wholesale attack on the unfettered power of the executive, as I have been trying to do for the last 10 years.
In terms of the overall principles, there is one other one that I just want to touch briefly before I go into a sectorial analysis, and that is one of the points that is at the heart of the government's bill which I think it has got completely wrong and which I will be moving amendments to try to overturn. It relates to the government's assumption that the only proper time for citizens to be engaged in planning is at the front of the process when policy is being determined. The bill makes it very clear that when we get to the pointy end of the system, when individual development applications are being assessed, the role of the community will be severely curtailed.
The reason that I think the government has missed the point is because they have fundamentally failed to understand the way communities work and human nature. If we were living in a science experiment, I would agree with the government that technically, yes, if everyone gets involved in writing the planning policies, when individual developments come along no-one will need to have their say because they have had their say already, and it is very clear what is allowed and what is not, and therefore you do not bother notifying people about developments and you do not bother giving them appeal rights.
However, human nature as we know it and as I have certainly experienced it in the last 20 years is that, try as you may, you will only get a certain proportion of the population to get excited to come along and involve themselves in debates about planning policy. When I spoke at the Burnside Ballroom at the Community Alliance forum, to illustrate this point I put two photos up. Photo one was the meeting hall to discuss strategic planning—it is a room full of empty chairs.
The second photo was the meeting called to discuss the new development at the end of the street—that is full of people. You will fill a hall to talk about real developments happening in real neighbourhoods. You will struggle getting many people along to talk about generic planning policy. It is just the way it is. We can rail against it, we can say that people are stupid and they should get involved earlier, but it is not the way communities work.
Rather than insist on applying this theoretical model that communities should comply with the way the government want to do things, I think the government needs to just get with the project, and understand that people want to be engaged at all levels and not just at the planning policy level. In terms of the problems, the question we have to ask ourselves is: are they real or are they imaginary and to what extent are they addressed in the bill?
If you look at it from the government's perspective, one of the first problems that they have identified is that the quality of developments being approved is inadequate. To a certain extent, that issue is being dealt with in terms of new design processes that large developments have to go through, and those are processes under the existing act; so the new act I do not think will necessarily make much of an improvement there on top of the powers that are already available to government to insist on better design.
Many of the government's other stated problems with the planning system are shared with the development industry. I have talked about some of these already and I will not repeat them, but I think the government and industry have in common, for example, a concern that the level of building activity is too low and that somehow it is the fault of the planning system rather than the fault of the economy or the availability of finance, or anything like that.
As I mentioned, the government's hasty interim rezoning of land in the city was fuelled by a fear of not enough cranes on the skyline. The Mayfield development was the result, as I have explained. The point that I would make in terms of the level of building activity is, yes, we want to see people employed and we want to see a healthy building sector, but there are jobs in good development and there are jobs in bad development. It is not a question of an insistence on good development being bad for jobs. They are just different jobs; they are jobs building good developments.
The government and industry also complain that developments are not being approved either quickly enough or at a sufficient rate. I would disagree with that strongly. I note that on 17 November the annual report 2014-15 on the administration of the Development Act was tabled in the House of Assembly. I think it was probably tabled in this chamber as well, but they have a much better online recording system for tabled papers, so I have the version from the House of Assembly.
When you go through the figures that are in that report, the message that you get from it is that overwhelmingly the answer to development applications is yes. Overwhelmingly, developments are approved. The few that are not approved are either clearly inappropriate—they are people pushing the envelope—or where problems have arisen and the applications have been withdrawn. Overwhelmingly, they are approved.
I will refer to some statistics from one council a bit later on. I asked Norwood, Payneham & St Peters for their detailed development approval statistics. In a nutshell, there were over 1,000 approvals, worth well over $100 million, and they were nearly all approved within the statutory time frames; in terms of the averages and the medians, they were all pretty good. I do not think that is a real problem; I think that is an imaginary problem.
Developers and the government complain that different councils have different approaches to planning. From an industry point of view, they do like the idea of one size fits all and that if a development is good enough for the Barossa, it is good enough for McLaren Vale. If it is good enough for the inner suburbs, it is good enough for the outer suburbs. The result of that approach was this government regulation that I referred to earlier, the $3 million aggregate spending regulation which was used by the On the Run chain to get their developments through in a variety of locations.
They were not prepared to accept that different councils might have different standards and that something appropriate in one area was not appropriate in another. The housing development industry often complains that the different zones for different types of housing should be uniform. We do not live in a uniform society. Different areas have different character; I do not think we should be foisting one size fits all across the whole of Adelaide.
The industry complains about the cost of development, and in particular the cost of infrastructure. Interestingly, there are duelling consultants out there, addressing the question of whether infrastructure is more expensive in an infill situation or whether it is more expensive on the fringe. I must admit that I have always assumed that it was more expensive on the fringe, and there is certainly a government report that indicates that, but the Housing Industry Association is very keen for me to see their report which showed that, in fact, infill development was far more expensive from an infrastructure perspective. Again, there are some issues we have to look at there.
I mentioned that industry complains about delays in development. I do not think the statistics bear that out. Certainly, there is one area of considerable delay and that is in the planning policy area in rezonings in development plan amendments. My understanding is that overwhelmingly the cause of that delay is the state government and state government agencies rather than local councils.
The industry is very worried about the planning system imposing limitations on their future options. That is code for 'they like urban sprawl, they have made their money off urban sprawl, and they want to see more urban sprawl.' We will have that debate when we get to the committee stage next year and we deal with the urban growth boundary question.
The industry wants certainty of outcomes. They do not like appeals, obviously. They like to think that, having gone through an administrative process, whether it is with a council or the Development Assessment Commission, that that is it, and that a yes means a yes and no-one can challenge that.
I think the appeal statistics, as I have seen them, do not indicate a serious problem with third-party appeals. In fact, I have the statistics for probably the last four or five years and what you find is that applicant appeals—that is developer appeals—far outnumber third-party appeals and that the numbers have been fairly constant over the last several years.
For example in 2012-13, there were only 30 third-party appeals lodged. Mind you, seven of those resulted in a reversal of the decision so they were dead right. Most of those third-party appeals were resolved without the need for a hearing, but the third parties won more often than they lost when it actually went to a verdict.
In the year before that, 2011-12, there were 37 third-party appeals and, again, of those, 13 resulted in either a reversal of the original approval or a variation. Only three of those approvals survived intact, and each year the statistics are similar.
If we take the most recent figures, there were more third-party appeals—still less than half the number of applicant appeals—but of the 70 third-party appeals in the year 2014-15, the vast bulk of them (56 of them) were resolved without the need for a hearing. With only two the third party was basically thrown out and they lost, but with six of them it resulted in a reversal of the decision.
The point that you get from these statistics—I could go through more of them—is that third parties do not appeal lightly. They very rarely have the option of appealing; it is in very limited circumstances, and when they do they have more of a chance of winning than losing. I have said that as a fairly bold statement. What is hard to tell is the vast bulk of them that are settled. We do not know on what basis they are settled. Some of them might be settled with the appellant getting nothing. My guess would be that they would probably get something, but the point is that when they go to trial, third parties have a good record of proving their case.
When we look at problems with the planning system from the community perspective, certainly the issue of appeal rights and participation more generally is at the forefront. I mentioned before that the Community Alliance's slogan is 'putting the people back into planning'. If we want to look at the framework for how you do put people into planning, a good place to start is something like the European convention on public participation in environmental decision-making (known as the Aarhus Convention). Whilst it is a European convention, it has been signed by lots of other countries outside Europe in Central America and Africa. Basically it says that there are three main components to public involvement. The first one is access to information, the second is public participation in decision-making, and the third is access to justice. That is a useful framework to look at this.
When it comes to access to information, my experience over many years is that councils, in particular, vary in the scope of information they provide, and state agencies are similar. It has often been a tortuous task to obtain access to documents involving going to a shopfront at the council or the DAC.
Sometimes, they will take photocopies for you; more often than not, they will not let you. Sometimes, they get very confused about laws of copyright and suggest that, even though something might be a category 3 development where you have a right of appeal, they will still deny you copies of the documents. My advice as a lawyer to people is, if you get any grief in terms of obtaining documents, just appeal. Just lodge an appeal, then they have to give you the documents, and they give them to you for free. That was always the comeback to reluctant planning officers not wanting to hand documents over.
This new planning bill, I think, in the regime of access to information, does hold potential to be a lot better. The planning portal, if used properly, could be a great tool for the community to actually get access to information, but only if the government is truly committed to it and it does it properly; in other words, it puts all the information online, it does not charge people for accessing online material, and it emphasises pushing material out rather than forcing people to make applications to bring material in. If they can get that right, then it could be a good case study.
As I have mentioned, I will be moving to delete the provision that says that the Freedom of Information Act does not apply. The point is, if you understand the Freedom of Information Act, it does not apply anyway if information is published. If an agency routinely publishes information, then the FOI Act is irrelevant but, if the government declines or refuses to publish information, why should the community not be able to go through the FOI system to at least access the umpire—the Ombudsman—in terms of accessing that information?
A blanket prohibition on FOI, coupled with an anal-retentive government that does not put much stuff up on the portal, is a disaster and will send us backwards. There is an element of trust involved, but I will be looking for commitments from the government in relation to what they put on the portal.
I actually mentioned the Mount Barker FOI case. The other one I did not mention was the Festival Plaza, behind Parliament House. I tried to get the documents about what they are proposing for behind Parliament House and, again, they dragged that out in court for over a year with, basically, the objective being to make the documents as stale as possible before I could get my mitts on them, and then they withdrew their appeal. It is a no-cost jurisdiction, so I could not do anything about it.
I eventually got the documents, and that was one of the first disclosures of these multi-storey blocks that were proposed for the Parklands between Parliament House and the Adelaide Festival Centre. As I say again, we are going to be fighting very hard to keep the Freedom of Information Act alive for when the government does not routinely publish planning information.
The second of the Aarhus principles is public participation in decision-making. I have mentioned already that the government says they only really want people to engage in discussion of planning policy. I am saying they need to be engaged at the development application stage as well. It is not either/or, it can be both.
In terms of access to justice, I will be pushing for increased rights for citizens to go to the umpire and get a second opinion on a whole range of planning matters, certainly merits appeals. By a merits appeal, I mean: does the development comply with the planning scheme? That is what merits appeals are about.
The nature of our system is, because so few development applications trigger an appeal right, decision-makers can make the worst decision possible, they can make terrible decisions, they can completely disregard the planning scheme, and they know nobody can do anything about it. It is a recipe for bad decision-making. As I said before, appeal rights are a silent sentinel for good decision-making. The fact that you can go to court, even though you probably will not in 99 per cent of cases, is what provides incentive to decision-makers to make good decisions that are consistent with planning policy.
I mentioned judicial review and civil enforcement as well. We need to remove the barriers to civil enforcement and undertakings as to costs and damages. The number of civil enforcement cases in the last 20 years you could count without taking your socks off. There have been very, very few such cases brought by third parties.
Major projects have been immune from legal challenge for a long time. In fact, worse than just immune from merits appeals, they have been immune from judicial review was well, so we will be having a close look at those provisions to make sure that major projects can be challenged when the government fails to comply with proper processes.
Another concern that the community has is in relation to the extended ministerial power. The minister assured us, as this process was underway in the last couple of years, that he would be giving up some powers and that these new bodies would be created. But one of the questions we have to ask is: how arm's length are these new bodies? I will come shortly to the Planning Commission, which ostensibly is at arm's length but, depending on how the government directs it, it can become a puppet of government.
The community is worried about the corrupting influence of big business and political donations, and I have mentioned that. I alluded to it in passing but said that I would come back to it. I talked about the famous Matt and Dave interview from about 2008. John Blunt, I think his name was, one of the project managers, I think, for the Makris corporation—I think I have got that right—
The Hon. R.I. Lucas: No, CEO.
The Hon. M.C. PARNELL: The CEO of the Makris corporation: I am indebted to my colleague. He was asked by either Matt or Dave (I cannot remember who), 'Why do you give money to political parties? Why do you make these donations?' The answer was as blunt as the fellow's name. He said, 'We want our projects to happen. That's the way business works here.' It was the bluntest statement I have ever heard from a developer as to why they give money to political parties: they want their projects to happen; it is the way things work here. The community hears those sorts of things, and they have always known it, but here was someone actually saying it, and they want that fixed.
The community also lacks, I think, at a more general level, confidence in the integrity of the planning system, and planning policy in particular. They see the rules being broken with impunity and that raises the question whether, in planning policy, they are rules or guidelines. Most planners would say that they are guidelines but, when they are guidelines that are interpreted in such a loose manner that the final product is unrecognisable from the guidelines, is it any wonder that communities become discouraged and disillusioned?
The best case study I think has to be Unley Road, the increased densification of inner urban transport corridors, where the zone clearly said a five storey maximum—no more than five storeys. The very first application lodged under the new system applied for seven storeys and it got approved. The community looks at that and shake their heads and think. 'Why do we bother? Why do we even bother engaging with government and negotiating on planning policy when, the very first cab off the rank, they push the envelope and get away with it.' That is another one of these own goals. When the community sees that, they lack trust in planning policy and insist on having more of a role in development assessment, so they say, 'Forget planning policy. Give us appeal rights over every development.'
The community I think also is concerned about the impotence of parliament. I referred before to the parliamentary scrutiny provisions of the current Development Act. The new bill provides that parliament can be consulted earlier, but the fundamental problem with the system (the fact that there is a government-controlled gatekeeper between the community and the parliament) makes it unacceptable. In fact, during much of the last eight years, whilst encouraging people to come along to the Environment, Resources and Development Committee, I have spent a lot of time on expectation management.
I have to say to them, 'You get a chance. You get on Hansard. You come along to the committee and have a say, but you know the parliament has never, ever rejected a development plan amendment, whether from a minister or anyone else.' It is disappointing for me to have to say that. I would love to say to people, 'Come along to parliament. You never know your luck. You might, through persuasive argument, convince the committee to recommend either changes or disallowance,' but I cannot do that: I am on expectation management.
When we look at the problems of the planning system through the eyes of local government, we see a few other issues that I have not actually touched on much until now but I think they are fairly critical, and they have certainly flavoured the Local Government Association's input to the bill and those of individual councils and councillors.
Councils do not appreciate being painted as the problem in the planning system. They do not accept that they are the problem. They do not accept that they are too untrustworthy and too incompetent to participate in development assessment. They do not appreciate the fact that their elected members are precluded from being on development assessment panels. In fact, under this bill, there are only two classes of people who are so untrustworthy and so incompetent as to be precluded from being on development assessment panels: elected local councillors is one, and state members of parliament is the other—so, we are in good company.
Local councils do not appreciate that they are often overridden by ministerial prerogative. If I had a dollar for every time, in the Environment, Resources and Development Committee, we have had a local government come along and tell us about the exhaustive process of consultation and research they have done to come up with appropriate planning policy for their area only to have the minister override it on a whim or, more often, override it on the back of lobbying from some big vested interest! They hate that. They know that they are the poor cousins in the system. They want to be treated with more respect.
I think that is at the heart of most of the local government concerns. The Hon. David Ridgway went through some of the submissions that had been received. I am not going to repeat the ones that he outlined, but—
The Hon. R.I. Lucas: Hear, hear!
The Hon. M.C. PARNELL: The Hon. Rob Lucas can see the size of my lever-arch file and he will no doubt urge me to read every submission that I have received, but there are hundreds upon hundreds of pages. I am not going to take the bait, and I will not be reading them all—as much as he would like me to—but I will start with the contribution of the Local Government Association.
I think it is fair to say that they have been very thorough and very diligent in analysing the legislation at the earliest possible opportunity. I have appreciated the time that they have spent with me to try to understand the consequences of the legislation. They came out very early with a spreadsheet showing all the clauses of the bill and all the amendments that they thought were necessary. I was pleased to see that a large chunk of those were accepted by the government in the lower house. Mind you, they plucked the low-hanging fruit. It is pretty simple just to write into the bill, 'And by the way, make sure you don't forget to consult local council.'
That has been incorporated into quite a few provisions, but that is a good thing. I do not want to demean it, but there are some more significant issues that are still outstanding. In fact, if we look at the LGA's formal submission to this bill, the first sentence of the executive summary says it all:
As drafted, the Bill significantly curtails the role of communities in the planning system and will not be supported by the LGA.
So, that is a pretty bald statement at the start of the executive summary—that the bill, as drafted, is unacceptable. I think that is probably similar to the Greens' position, that if the bill is not sufficiently amended we will not be supporting it.
The LGA, in their submission, point out, as I have, that the objects of the act are inadequate because they overemphasise the economic considerations at the expense of social and environmental. To quote the LGA's submission:
The State's environmental and social aspirations do not feature in the objects of the A ct, creating the impression that they are not important considerations in the planning process es . The LGA believes that South Australian communities want a system that strikes a balance between competing demands for the use of land and this should be reflected in the objects of the Act.
The submission goes on for another 13 or so pages, and I will not refer anymore to that submission, but I will refer to the campaign that the Local Government Association has undertaken. I think it has been a very professional campaign. They have radio advertisements running on FIVEaa and, under the heading 'Keep planning local: have your say', they are using the slogan, 'No voice, no choice'.
I think they have done an excellent job in drawing attention to the fact that local councils are at the coalface in our cities, towns, suburbs and regions, and that they do need to be involved at a greater level in the planning system. In fact, they have actually gone to the trouble of putting out a myth-busting press release following an interview with minister John Rau on the Leon Byner show on 13 October.
They have put two pages out with what the minister said and what the facts of the situation are. The first myth-bust that they try to do is where the minister says that local councils have a poor track record of consistent decision-making. Again, you have a look at the statistics on a council-by-council basis and I think you will find that councils are not the problem. I will not go through the rest of the myth-busting.
The Hon. David Ridgway referred to two documents which are very recent. One of them is dated today from Wallmans Lawyers, who have been providing advice to the Local Government Association, and the other was some briefing notes from a meeting last Friday which the LGA held with planning minister John Rau. The Hon. David Ridgway read much of this into the Hansard, so I will not do it again, but the point is that as of, hour by hour, last Friday and again today, we still have stakeholders who still have serious concerns about the bill and are still wanting to engage in dialogue with members of parliament.
I say again what I said before: when we get to the end of the second reading of this bill, regardless of whether everyone's amendments are filed or not, I will be moving for the debate to be adjourned and for the committee stage to be undertaken next year. It will not be a question of whether all the amendments are in or not, because having the amendments in does not help with stakeholder consultation. We still have to talk to people in the community.
Just this afternoon, I think it was 4 o'clock (I haven't got the timestamp on it), we finally got the 70-something amendments from the government. Hopefully tomorrow, you will have 100 or more from me. You will have a handful from David Ridgway and, as I have said, I think Kelly Vincent, the Hon. John Darley, Family First—
The Hon. K.L. Vincent: Just a handful.
The Hon. M.C. PARNELL: A handful? But there are more to come. My point is, regardless of whether we have all the amendments tabled and filed by this week, it is still inappropriate for us to be dealing with this bill in committee next week. Like I said, I am not lazy: I am happy to come back to work next week. We can do other bills; we should not do this bill.
In terms of other submissions I have received, there is quite a wealth of material from the Local Government Association, but I will skip over that and I will go to just some of the councils, because I do want to also put on the record my thanks to those who have taken the trouble to write to me. These are in no particular order, but a former colleague of mine, Kris Hanna, the Mayor of the City of Marion, has written an extensive submission. Again, the key point they have made is there is a reduction in the role of local government in the planning process, and they are not happy.
It does not take rocket science. All of us have worked with people in local government. The majority of people who put their hand up to serve at the local level do so because they have a passion for their local area, and that includes the future development of their local area. It is the main reason most people get involved in planning. So, to rule these people out or to diminish their role I think is the wrong way to go. The City of Marion points out that there is a reduced role for local government. The council says:
'The Bill' appears to propose a reduction in the role of Councils in both development assessment and planning policy setting. We believe local government and the democratic representation it provides should be central to any new planning system.
They also bat not just for their own elected members; they bat for the community. They say that there will be less community involvement in development assessment. Again, to quote the council's submission:
Council acknowledges that a new Community Engagement Charter may well provide for meaningful engagement at the policy setting stage. However, this appears to be coming at the expense of engagement at the development assessment stage. It is our observation that the broader community does not interact with the planning system until it directly affects them as either an applicant or representor with direct interest in a specific development application.
He said in fewer words what I said in more words: people do not engage in planning policy, but you try to build a block of flats at the end of the street or a crematorium across the suburb or any other form of development and you will fill the town hall, because people will want to have their say. My thanks to the City of Marion.
The City of Onkaparinga have actually sent a very extensive submission, including a clause-by-clause breakdown of the bill. I should say, all of these submissions relate to the bill as introduced into the House of Assembly. Of course, the bill that we finally received (the one that I did not make the Clerk read out) last Friday was different, and I am still not sure whether it was 85 or 90 amendments that were made. So, councils went to a lot of trouble to tell us what was wrong and what we needed to fix. The letter from the Mayor of the City of Onkaparinga, Lorraine Rosenberg, states:
At the heart of our objection is Minister Rau's clear intent to remove local government from the planning system, which in turn denotes a loss of community influence and involvement in the management of their local places .
We believe that local government should be central to the success of a new planning system. We have the proven ability, processes and expertise to achieve this. We are best placed to understand our community and we always ensure that development policy reflects the character and culture of our places .
That is pretty straightforward, and those sentiments are reflected in other submissions. This submission is directed to all members of parliament, not just to me, and their plea with us is as follows, they say to members of parliament:
You are critical to the success of our communities in enabling them to have a voice on development proposals that will affect them. Together we need to stand up for our local communities and ensure that they continue to have the right to have a say on what is happening in their local community … It is essential that we work together on this crucial issue for our communities and we have developed information that will assist you in understanding the effect that this Bill will have on them.
I thank Lorraine Rosenberg and her staff for the comprehensive submission they have put in. I would also like to thank Bill Spragg, the Mayor of Adelaide Hills Council, for their detailed comprehensive submission with a spreadsheet. I will not go through all of the issues, but the themes are much the same: they are railing against what they call the denigration of the role of local government in the development assessment process. They say:
Our Council supports any change s to the planning and development system which will make the system operate simpler, better and faster. However, we have some significant concerns in relation to the essential principles and architecture of the reforms as outlined in the Bill...
Again, primarily the diminution of the local community role. The Barossa Council put in an extensive submission under the hand of the Mayor, Bob Sloane. I will not refer to that in detail, but it is very similar. The Yorke Peninsula Council forwarded to members of parliament their submission to the Local Government Association. Their concern is, as well as the ones raised already, around cost shifting between state and local government. They also point out that the planning minister is gaining significant extra powers in relation to the planning process, but local councils will carry the burden of administration, finance and enforcement. We will deal with those issues when we come to some of the amendments. So, that is the Yorke Peninsula. The Adelaide City Council has a comprehensive submission. Lord Mayor Martin Haese states:
Council encourages reform that delivers efficiencies and benefits to business and the community but finds the lack of detail on the associated bodies of work and an implementation plan has made it difficult to reach a comprehensive position on the Bill.
This Bill is a significant piece of legislation that warrants careful, thoughtful and detailed consideration. The Council shares the opinion of other stakeholders in that there should be more time to fully consider the Bill before it progresses through parliament.
For this reason, Council calls on the State Government and members of Parliament to provide all stakeholders more time to fully consider the Bill before it progresses through parliament, particularly given the importance of the Bill and the long implementation phase of 3-5 years.
On the basis that the bill is before parliament they have provided some comments, but I think we need to heed their call. They have come to this conclusion a month after the bill was first tabled. What we have to remember is that these councils have access to considerable professional planning staff to provide them with advice. Members of parliament are not so lucky. I know that, certainly, members on the crossbench have struggled with some of the technical aspects of the bill. It is complicated stuff. If our premier local council, the Adelaide City Council, is saying that it is struggling with it, then I think we need to heed that advice and take our time.
The next local council is the City of Norwood Payneham St Peters. Again, it has put in a comprehensive submission. This is the council I mentioned also that had provided me with its statistics in relation to the developments it has approved in its municipality. For example, the number of development applications lodged usually number around the 1,000 mark. The value of those developments was $133.6 million in the last year. The proportion in a typical month is 221 approved, 10 refused. So, the councils are in the business of saying yes to reasonable development applications. The council in its letter to planning minister John Rau says:
The council considered the bill at its meeting on 6 October and generally welcomes the comprehensive review of South Australia's planning system and the overall aims of the bill. However, given that the bill represents the biggest overhaul of the planning system in more than 20 years, it is disappointing that key stakeholders in the planning system were not afforded sufficient time to review, understand and analyse the bill in detail.
The lack of a formal consultation process on the bill does not appear to meet the obligations of the state government's own reforming democracy policy statement released on 13 August 2015, in which the Premier stated, 'Our vision is for the government to make better decisions by bringing the voices of communities and stakeholders into the issues that are related to them.'
The council acknowledges that the bill is reflective of the state government's proposed reform agenda, and that the legislation provides a framework that is intended to provide a planning and development system which is easier to administer than the current system. However, the introduction of the bill into parliament without the supporting regulations and the planning and design code, which are integral to achieving the aims of the bill, means that it's not possible to provide meaningful comments on many aspects of the bill at this time.
I could go on as they have said more about community engagement, but you get the idea. Councils dealing with hundreds of millions of dollars, thousands of development applications, need more time to fully comprehend the provisions of the bill.
Mid Murray council put in a lengthy submission as well, which I will not refer to, but I thank Geoff Parsons, the Manager of Development Services, for sending that through. The City of West Torrens, Declan Moore, Deputy Chief Executive, made a detailed submission, and again very similar issues as raised by other councils, in particular the diminished role of local government. The Limestone Coast Local Government Association has written to us as follows:
The Limestone Coast Local Government Association is concerned that the timing of the debate on the Planning, Development and Infrastructure Bill provides very little opportunity for local government and the community to provide meaningful input into any discussion.
I am labouring the point, I guess, but here we have the biggest bill before parliament this year, the most complex bill, and I hope the government will see reason, but at present they are talking about pushing this through committee in the optional sitting week and, like I said, I will oppose that move, regardless of whether all the amendments have been lodged. In fact, once all the amendments are in, then we can start talking to local councils and other stakeholders about that.
I thank Berri Barmera council for its submission. The District Council of the Copper Coast has put in a submission. Then I come to the submissions that were made by community groups. In particular I have very much appreciated the support and advice I have been given by the Environmental Defenders Office. They have put forward a number of submissions. To declare my interest: as members know, I was the solicitor at the Environmental Defenders Office for 10 years, and I am a life member of the EDO and I value their input. They are just biding time at the moment until a change of government at the federal level and until Legal Aid funding is reinstated. But they are not going anywhere; they are just doing it all on a shoestring at the moment. hey have put quite an extensive submission forward. I will not go through it in detail now because it is largely technical in nature, but I will refer to that material when we do the committee debate in February next year.
I mentioned the Community Alliance, and there were a number of representatives in the gallery earlier today. They have put a detailed submission in and they have engaged the minister with this process the whole way through. They engaged Mr Brian Hayes the whole way through. They cannot be accused of having fudged their engagement, yet very little of what they have said has found its way into the legislation.
So I will be pushing amendments next year that are built around the two or three years that I have been working with this group and the various concerns that are born out of real life experiences such as the ones that I outlined in some length earlier. I will be working with the Community Alliance and I would urge members of the opposition and others to take heed of what they say as well.
One of their member groups, the Prospect Residents Association, have put in a submission, and again they are concerned about elected members being removed from development assessment panels. They are worried about the planning minister having too much control and they are worried about the emphasis on fast tracking approvals, which they say, and I agree, will lead to inappropriate developments being approved. They are concerned about the lack of consideration of social and environmental goals, similar to other groups.
The Friends of the City of Unley Society put a detailed submission in, and they make the point—and I think the Hon. David Ridgway might have made the same point as well—that this bill extends to well beyond the recommendations that were made by the expert panel and gives far more power to the minister than was envisaged and, if this bill passes in its current form, it will result in a sense of community disenfranchisement and will not assist in addressing social needs and objectives.
The Friends of Willunga Basin have written to me and, like a lot of groups, they are saying that they appreciate that after 22 years it is time to review the planning system but, as they say:
We believe there are elements of the bill which push the envelope too far and which are not favourable or desirable from a community standpoint. They remind us that being a developer per se neither bestows great wisdom in all the circumstances nor guarantees good design or good taste and that the community has to live with the consequences of bad design and bad planning decisions for a generation or more.
They make the point that the broader community has a right to be involved in, and have input into, decisions which have long-term effects on matters of local interest and concern—Geoff Hayter, Chair of Friends of Willunga Basin. I think in terms of the community submissions, that is all I will refer to.
I mentioned earlier that I have spent some time recently with the Urban Development Institute, the Housing Industry Association and the Property Council. I also have a detailed submission from the Master Builders Association, the group that was actively tweeting from the public gallery earlier in the day. Good on them for engaging in parliamentary debate.
The Hon. David Ridgway went through those submissions in some detail so I do not need to, but I just make the point, as I said earlier on: why is the government rushing this bill? Which stakeholders are urging them to rush it through this week or next? None of them. Not these industry groups and developer lobbies; they are not urging the bill to be rushed through. The community groups certainly aren't and local government certainly isn't.
I do not know whether the Hon. David Ridgway has some inside knowledge that the planning minister is not long for his portfolio and needs this chalked on his belt before he retires. It is not a rumour I have heard and the advisers are looking bemused, so they have not heard it either. The government has still not put any justification forward other than they are sick of talking about it and they want it passed. If that is the only justification, it is not good enough and I am not going to accept it.
The final thing that I want to do in the brief time allocated to me is to talk about some of the amendments. I am not in any position to talk about the government amendments that we have had for an hour or so, but I can at least give some indication of the types of amendments that I will be moving. he fact that I have to shuffle so many papers around shows that a forest of trees has gone into this bill and we need to repay the environment by getting a good bill.
Parliamentary counsel is currently working on my table of amendments. I will not go through the 15 pages of the amendments in this spreadsheet, but I will go through some of the key ones that I am keen to see addressed. One of them is perhaps a curious one, but it goes to the heart of the matter in terms of the definition of 'development'. There is a legal dispute underway at the moment between a bricks and mortar greengrocer shop and a so-called farmers' market. The greengrocer says that the farmers' market stalls are all shops and that a collection of farmers' market stalls is a shopping centre and, therefore, they need to get planning approval.
I will declare an interest as a member of the Adelaide Showground Farmers' Market. I am a big fan of farmers' markets. I think anything that can help break the Coles and Woolworths duopoly is a good thing. We need more diversity and we need more competition, but I think we also need to have a good look at the definition of 'development' to make sure that temporary structures such as the farmers' market in the car park of the Old Spot Hotel does not actually infringe the Development Act. That is just a simple one to have a look at.
The bill does recognise, in clause 11, some special legislative schemes. We need to make sure that the Adelaide Park Lands Act is one of those legislative schemes. It was basically a scheme designed to protect the Parklands from the misuse of the Development Act. Back in clause 4, the concept of change of use of land is being modified. We need to make sure that this concept of use class is not used to basically allow significant changes to take place that impact on communities without it having to go back through an assessment process.
The government would say that is exactly what they are trying to achieve, but you only have to think about it. You might have something that is a shop, and there are some shops where you would have hundreds of customers at all hours of the day and night and you have other shops where you get three customers a day. They are all shops, but they have very different impacts. I am concerned that the government tinkering with the change of use rules could result in communities being subjected to significantly different impacts without the development having to go through a proper process.
I mentioned the objects of the act. I want to put the environmental and social considerations back in there. Call me old fashioned, but 'ecologically sustainable development' still works for me. They might be the form of words that we need. The State Planning Commission in clause 17 is supposedly at arm's length from the minister, but there is a curious provision in there which says that the planning commission is obliged to take into account a particular government policy or a particular principle or matter specified by the minister. To me, that says, in the wrong hands, the minister can dictate what they need to do. The minister just needs to develop policy or principles and then oblige the State Planning Commission to take them into account. I do not think they are sufficiently arm's length. No doubt, when I have my briefing with the minister's staff on Friday, they will tell me why I am wrong, but I am not sure I am.
When it comes to the citizens' participation charter, like I said, this has the potential to be quite good, with the main proviso that it is completely inadequate, in that it is focusing on engagement in policy and ignoring engagement in development assessment. However, there are a couple of other principles additional to the ones that are there. It says that 'members of the community should have reasonable, meaningful and ongoing opportunities to participate in relevant planning'. There are some extra principles in there: 'timely' I think is one. Simple word: 'timely'. Think about it. mentioned the situation with the Mayfield development where the public consultation was two weeks after the final decision had been made. That is hardly timely.
The other thing I would like to incorporate into that is that this idea of participation also needs to incorporate access to information, because there is not much point participating in something if you have been denied key access. There is a range of new principles we could put in there, and one principle that I have always subscribed to is that if you are genuine about community engagement then members of the community should have access to the same information that the decision-maker has. I do not know about other members of parliament, but I have certainly presented at various bodies and one, I remember, was the Native Vegetation Council. I knew they had a report in front of them but they would not tell me what was in it, and I said, 'Look, my ability to meaningfully participate depends on me knowing what's in that report.' They said, 'No, we're not going to tell you what is in the report. Tell us what you think.' Given that the report was a technical ecologist's report, it was very difficult for me to actually engage. So members of the public should have access to the same information as decision-makers.
I mentioned earlier that the emphasis must be on routine publishing of the information, not requiring people to go to lengths to obtain it for themselves. In other words, put it out there, put it on the portal, put it on the website. In relation to that, I think some legislation, in the earlier days of the interwebs, had this notion that people would be charged for online information. Certainly, particular newspapers—and The Australian springs to mind—like to charge after you have read your first, I think, three articles. We need to make sure that this online planning portal is free; I am happy to accept payment on a cost recovery basis for hard copies or for discs, but online should always be free.
The provision in the Citizen Engagement Charter that talks about community engagement should be weighted towards engagement at an early stage and scaled back when dealing with settled or advanced policy—delete that. Cross that out. It is the wrong policy approach. Similarly, delete the provision in clause 44 that provides that the charter must not relate to the assessment of development applications. I think it should relate to both. In terms of the preparation of the charter, under this new model there are various planning documents that will be subject, notionally, to disallowance by the gatekeeper, being the ERD committee. I want to make sure that the charter is included in those documents and, as I said earlier, I want to bypass the ERD committee as well.
I mentioned the planning portal, and I think that is quite exciting. I like the idea of the routine publishing of planning information. I hate having to front at the counter and argue with counter staff about my right to look at documents; it is almost mediaeval, the way they do that. We need to make sure that provisions that enable the minister to prohibit or restrict information are not abused. Currently, under clause 52 all the minister has to do is put something on the Government Gazette saying that certain information is prohibited, restricted or limited. He does not have to give reasons, and I think that power needs to be constrained. I mentioned that clause 53, the Freedom of Information Act, needs to be written back in rather than removed.
There are a couple of principles that I think are quite important. They are all important, but the one I really want to spend just a bit of time talking about—I have done parliamentary scrutiny, and early commencement, which is the new name for interim operation, I have mentioned already—the one that I think is really fundamental, is clause 95. This goes to the heart of the matter because, as I said before, you have two elements in this planning regime: you have planning policy, and then you have individual development decisions, and the link between them is that the decision about an individual development application should, in some measure, be consistent with the planning policy.
The words that have been used for the last 22 years are that a development should not be approved if it is 'seriously at variance' with the planning scheme. Those have been the words: 'seriously at variance'. Sometimes those words have worked well and sometimes they have been a complete failure. Ask the people of Unley Road whether a seven-storey building is 'seriously at variance' with a maximum of five storeys and they will tell you that it is. Could they do anything about it? No, because they were denied the right to appeal because it was a category 2, which meant no appeals.
Let's look at what the government has got in the bill at present. They have done away with the 'seriously at variance' test and the new test is:
…the development is assessed as being appropriate after taking into account —
(i) the relevant provisions of the Planning Rules;
I will just say that again:
…the development is assessed as being appropriate after taking into account —
(i) the relevant provisions of the Planning Rules;
That is far weaker than the 'seriously at variance' test. All the development has to be is 'appropriate'. There is no rigour in that at all and the planning rules just have to be taken into account. They do not have to be followed.
I have to say that whilst there is one part of me which is very sympathetic to a flexible outcome-driven planning system of assessment, performance based, the fact that it has been abused so badly over the years says, 'Bring back black-letter law. Bring back a law that says that five means five, that 10 metres means 10 metres and does not mean 15 metres.'
That is what the community is now clamouring for. They want black-letter law written back into the planning system. The planners do not necessarily like that because they want flexibility to be able to approve innovative solutions to complex problems, but the community has been ripped off so often that they want to go back to black-letter law. We do need to have a look at the language and at whether these planning rules are rules at all, or are they guidelines or are they just vague things to be taken into account and potentially ignored.
My current solution is that the words 'seriously at variance' should be modified and the new words should be 'at variance'. Anything 'at variance' with the planning scheme should not be approved. That is a tougher standard. It means that when you write 'five storeys' into a planning scheme, it damn well means five storeys; it does not mean seven or eight or nine. We know that developers are going to push the envelope.
Maybe—and this is why we need more time to consult on amendments—the deal is that five storeys go through as a complying-type of development and any pushing of the envelope goes to full public consultation and appeal rights. Maybe that is the solution: anything that exceeds the parameters automatically is the equivalent of what is now category 3 appeal rights. Maybe that is the solution. I am happy to talk about that with the government, but at present my current solution is to replace the word 'appropriate', as that is too weak, and go back to the 'seriously at variance' test but drop off the word 'seriously'.
There are various other amendments as well, and I pointed out earlier that I have reprised all the old bills I have introduced over the years and incorporated them as well. I know parliamentary counsel is working hard. They are working into the night on the amendments but, as I say, even if I do manage to get all my amendments finalised by tomorrow or the next day, I am still going to insist on this bill being deferred. I think it is an insult to the Legislative Council.
As I pointed out, every stakeholder is on our side, and if minister Rau wants to have a media war about the upper house obstructing government legislation I can tell him where the hearts and minds are going to be. He is not going to win that one. He has everyone out there against him, not wanting this bill rushed through at this stage. As I have said, it is the most important bill we are dealing with this year, and we have a great opportunity to get a good planning system in place.
I am supportive of rewriting the 22-year-old Development Act, but I do not want to replace it with something worse. I am in the hands of the chamber as to how we proceed. My feeling is that it will be a far more constructive debate if we do it properly next year, and I certainly hope that the government will see reason. I hope that the opposition—who have previously indicated that they were similarly inclined to leave this to next year—stick by their guns as well and that we do not see an unholy rush during this optional sitting week, which is guaranteed to make mistakes and, as I said, guaranteed to not get a final bill anyway because we will be passing amendments, there are potentially going to be deadlocks, and there is no way that this is going to be done and dusted. One final thing I will say is that—
The Hon. R.I. Lucas: Hear, hear!
The Hon. M.C. PARNELL: I can say more if the Hon. Rob Lucas wants. The minister's staffers have sent a note through and pointed out to us that another bill is on its way in the new year. To quote from the email:
For your information please also note that the department continue to compile a set of minor/technical miscellaneous amendments to the bill, which amendments the minister has foreshadowed may be moved during a further necessary implementation bill in the new year.
I am thinking that we had all those amendments in the lower house, we have just had 72 or whatever it is in the upper house and the department is admitting that there are still things that it has not got right and they are going to have to have a further necessary implementation bill in the new year. My invitation to the government is, 'Don't bother with that. Let's get this bill right. Let's get it right over summer and let's come back in February,' and I look forward to the committee stage of the debate then.
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