Legislative Council

GREENS MOTION: Misuse of planning process over Life Care developments

October 18th, 2017

The Hon. M.C. PARNELL: I move:

That this council —

1. Condemns the government's misuse of major development status to undermine local planning policy and to disempower local communities in relation to their legitimate concerns over development in their neighbourhoods; and

2. Calls on the government to not approve any retirement villages or aged-care facilities as major developments and allow them instead to be assessed in the normal way against the objectives and principles of development control set out in existing approved development plans.

I thank the council for its indulgence in shuffling a number of items around on the Notice Paper today because, as members have been aware, for the last hour and a quarter we have had a large number of people sitting in the gallery who have come specifically to hear this item, so I thank the chamber. It also logically flows from the previous item on the agenda, which was considering aged care.

I believe the South Australian government has a nonsensical and undemocratic approach to managing our cities, suburbs and regions, particularly in relation to aged-care accommodation. In particular, I think there is an unfortunate approach of government where they take a trend or a problem that everyone accepts has to be dealt with, everyone agrees it is a live issue and needs to be addressed, but then they come to the conclusion that the only way to address it is to throw the rule book out the window and to be governed by executive decree.

For me, that is one of the hallmarks of tyranny. The subject here is aged accommodation. Let's consider what I think is generally common ground in this area: first of all, we understand that the South Australian population is ageing. Tick. We have known that for a long time. Secondly, that we need a variety of options to manage an ageing population, including residential options. Thirdly, I think it is generally accepted that we mostly want to keep people home as long as is possible but that eventually for some people a form of residential care will be needed or will be what they want. Fourthly, I think we also want to help people stay in areas that they are familiar with, where they are near their friends and family, and I think that is generally accepted.

What flows from that is that facilities in various parts of Adelaide for aged accommodation are going to be needed. I do not think there is any dispute in the community about any of those basic principles, but that is where the paths diverge. The question then is whether high-rise living is a part of that aged-care future. To be honest, I do not know the answer. I expect there are a divergent range of views about whether aged care and high-rise go well together, but that is not the question that is in the motion before the council, that is not the question at all.

This motion is not anti aged care and it is not anti high-rise; it is about the appropriate location for different types of facilities. It is about proper town planning, it is about the government following due process, and it is about not treating communities with contempt. My position is that we have known for 50 years what the demographic trends are in South Australia. We have known we have an ageing population. We have had plenty of time to develop comprehensive community-accepted policies as to how we are going to deal with this future. The motion before the council is in two parts. The first part is:

That this council—

(1) Condemns the government's misuse of major development status to undermine local planning policy and to disempower local communities in relation to their legitimate concerns over development in their neighbourhoods;

That is the first part of the motion. The second part is that this council:

(2) Calls on the government to not approve any retirement villages or aged-care facilities as major developments—

that is the critical bit, 'as major developments'—

and allow them instead to be assessed in the normal way against the objectives and principles of development control set out in existing approved development plans.

I will be addressing both parts of that motion. The next thing I would say is that this is not an esoteric motion, it relates to live issues, and there are three in particular that I want to address today, and they are proposed high-rise aged-care facilities at Joslin, Glen Osmond and Norwood. They are not the only ones but they are the first three cabs off the rank.

I would also like to say that in the last week, I have had three separate meetings with three separate residents' groups that are involved, that are largely neighbours but some more distant than others, in relation to those three developments. I thank them for opening their homes and for sharing their concerns with me. I am particularly delighted that so many have taken the time to come into parliament to hear our work today.

Whilst the detail of each of these three proposed developments are slightly different, what all of the residents' groups that I met with have in common is that what they are facing is something in their local neighbourhood that is entirely out of character and out of scale with the surrounding areas.

Some of the common concerns that come from that, as well as character, are problems of overlooking, problems of overshadowing and problems of traffic management. They were common to these three developments. But what struck me the most was that it was not actually just those local environmental or potential nuisance issues; all of the three groups that I met were particularly disturbed—outraged is probably a better word—at the process that had been followed that will potentially allow these developments to be built.

What is that process? If we go back to 19 April we find an entry in the South Australian Government Gazette. I will not read the whole entry, but in a nutshell it uses a provision of section 46 of the Development Act that, to the best of my knowledge, has never been used before—never. I think 1 April 1994, April Fools' Day, was when the Development Act came into operation. I do not think this provision has been used at all.

The provision basically says that the minister has determined that any aged-care facility—I will get the exact words—any 'retirement village within the meaning of the Retirement Villages Act 2016 and/or a residential care facility for the purposes of the Aged Care Act 1997 (Commonwealth)' and any associated development around those has basically been declared to be a major project or a major development. They have to actually be worth at least $20 million, but most of these facilities would seem to meet that threshold.

Basically, the normal process is for the government to pick an individual development and declare it to be a major project and then assess it. They have now decided for the first time to declare a category of developments to be major projects, being these aged-care facilities. That means that between 19 April—in fact 30 March was when the notice is but it was not in the Gazette until 19 April—until 30 June next year, anyone who wants to build an aged-care facility can have it declared a major project. That has a number of consequences, the most important of which is they are protected from the planning rules. They are protected from the zoning requirements, the height limits, the setback, the amount of open space. They do not have to follow those rules. They are given, if you like, a special exemption. That is the process that the government has chosen to assess these multistorey aged-care developments.

Who are the players? The Minister for Planning, John Rau, initiated this process. It is his notice in the Government Gazette. We also have the Development Assessment Commission, which is part of the new state planning commission, the new DAC. Their job is to determine the level of assessment that is going to be required. They have decided that Life Care—it is the first time I have mentioned Life Care—are the proponents for these three developments at Norwood, Glen Osmond and Joslin. They have to prepare something called a development report, which, if you like, is a mini EIS—I think with the emphasis on mini.

The public will then have 15 days to comment. Importantly, the final decision will be made by the government. We all know here—the public do not know this, as a rule, but we all know—that when it says in legislation the decision is made by the Governor, it is not His Excellency across the road; it is actually the government. Effectively, it is a circular thing. The government decides to declare it a major project and the government decides whether it will be approved or not. This is a political decision. That is the way major developments work. They are political decisions.

The decision to approve, for example, or deny—but most often approve—is not able to be challenged. It is a political decision. Why I am getting a bit confused is that these issues actually transcend the transition between the two bodies, the DAC and the SCAP (State Commission Assessment Panel)—I remembered it.

But, this is where it gets quite odd, because when you look at the agenda and the minutes of these meetings (and they are all on the web—you can look at them), it is most confusing. I have in front of me a notice of the meeting and agenda of the Development Assessment Commission on 13 July this year, and under the heading, 'Major developments', it says 'nil'. Then I look at the minutes of the 582nd meeting of the Development Assessment Commission, held on that same date, Thursday 13 July 2017, and I have a look under the heading 'Major developments', item 5.1—deferred applications, nil, 5.2—new applications, nil.

Yet, all of the documentation is dated 13 July, so where did that come from? Off the back of a truck! I have an alternative copy of the agenda for that meeting and, instead of saying 'nil' next to major developments, it actually sets out the three Life Care developments: the Glenrose Court development at Glen Osmond; the Roselin Court development at Joslin; and, the development on Beulah Road at Norwood. Whilst the government will eventually need to respond to this motion, if the planning minister is listening I would ask him to please explain why is it that there are conflicting sets of agendas on the website, and which ones do we believe?

I will put on the record now—I think this is important—that the Deputy Presiding Member of the Development Assessment Commission is Helen Dyer. Helen Dyer is, effectively, the representative of the proponent. The reason I say that is because on all the different versions of minutes I have seen she was absent from that meeting. As I have explained to people, I would be gobsmacked if someone of that experience did not excuse themselves from any consideration of it, but I just put out there that the Deputy Presiding Member of DAC is, effectively, the representative of the proponent, represents Life Care, but was not present on any record I have seen at those meetings, and I would fully expect she would excuse herself from any consideration of this matter. So, are these alternative minutes and agendas a conspiracy or a stuff up? I would like to know from the minister: I say no more about it.

So, Life Care, as the proponent, has come under a fair bit of pressure from the local community. There have been a range of public meetings and protest meetings where the community has said to Life Care, 'We actually want you to care; we want you to care not just about your future residents, but we want you to care about us in the neighbourhood community.'

One other thing I will say is that three of us here in this chamber are members of the Environment, Resources and Development Committee. I have asked for this issue to be put on the agenda of that committee as well, and I am hoping that in two weeks' time the ERD Committee will hear from these residents first hand, because I really want that committee of parliament to get to the bottom of this and to hear not just from the residents but to hear from Life Care as well, and I want them to hear from the government, to explain why it is they have decided to fast track these developments and to ignore the normal planning rules.

I want to talk briefly about the three areas. Let us look at the Joslin one first. The first thing I would say is that, where this proposed high-rise development is to be built, is a residential zone. It is in a policy area called the 'medium density policy area', and that area has a height limit of three stories. That is the planning rules for Joslin—three stories. It is immediately adjacent to a residential historic conservation zone, and that means that anything taller than three stories will be a live issue in relation to overlooking for the occupiers of those historic homes.

The operators of Life Care already have approval for two separate three-storey buildings, which have been deemed to be within the rules, across the entire site; now they want seven stories. I might just quickly put on the record some correspondence, in fact, a Letter to the Editor of The Advertiser. I cannot recall whether or not it was published, but I will read it anyway. It is only four paragraphs and it is from Tony Di Giovanni and, under the heading 'Heritage not respected', this is his letter to the editor:

I have been living in my heritage-listed 106-year-old home for 49 years respecting and following the heritage planning rules, which include getting a painting permit just to repaint my house. Next door to me, Life Care has proposed a seven-storey, 24-metre high tower in Joslin which, if allowed to proceed, will completely destroy local heritage characteristics. The proposed new development flagrantly contradicts a 2015 Environment Resources and Development Court order for a three-storey development, which gave some protection to local heritage.

The proposed new development, allegedly of economic significance to the state, in fact reduces the number of aged care beds by 30, as previously approved by the ERD Court in 2015, and in lieu creates 15 penthouse apartments on two upper levels. This development application was allowed by John Rau's recent changes in planning rules, and it does not respect my local heritage listed home or the other contributory heritage houses all adjoining the Life Care site.

According to heritage planning rules, when building next door to a heritage house the new building should not adversely affect the heritage of the house. Some of the issues that adversely affect the heritage are height, setbacks, scale and form. I urge John Rau to save my heritage home that is 106 years in the making and once ruined cannot be undone. I would have thought that Life Care and Churches of Christ should care about the community and maintain the heritage along with the residential amenities of this residential zone of Joslin. By their actions to date, clearly they don't care.

Tony Di Giovanni

I will not read all the letters I have received, because we would be here a long time, but that is fairly consistent with other submissions, not just in relation to Joslin, but the other developments as well. The question that is posed there is: is this really about aged care? Is it really about dealing with the ageing population, or is it really about luxury high-end housing for the rich that allows people to lord it over their neighbours in towers that thumb their nose at the community and its planning rules? That is the question.

As a result of pressure by the community, it appears that the seven storeys has been reduced a little. I have seen some new drawings. It might now be four or five, but it is still seriously at variance with the zoning rules and the planning rules. The Joslin development actually raises a number of other issues, not the least of which in fact is, in my view, a serious question mark over the validity of the major project declaration in the first place. What the Development Act states—and I will just refer you quickly to it—in section 46(2) is:

A declaration under this section does not extend to—

which means declaration as a major project—

(a) a development lawfully commenced by substantial work on the site of the development before publication of the notice in the Gazette;

On the evidence before me, this matter was taken to court some years ago. The developer was given permission to develop the entire site at three storeys, and they have started doing that. That development is underway. It has substantially commenced. I think there is a serious legal question to be raised about the idea of going back for a second bite at the cherry and getting another go at it at seven storeys.

In fact, just to be clear, I have a copy of the sealed court order signed by His Honour Judge Costello on 25 September 2015. Basically, it says:

By consent, the court orders that development plan consent is granted to development application numbered—

and there is a big long number—

for an integrated residential aged care facility comprising supported accommodation, a wellness centre and corporate facilities, including offices, together with basement car parking and landscaping, to be implemented in two stages on land at…

And it gives the address on Payneham Road in Joslin and then the certificate of title numbers. Clearly, the court has already given approval. Development has already been in some places, as I understand it, completed, and at other times commenced. Regardless, it says to me that this major project declaration may well be invalid.

Glen Osmond: I met with the Glen Osmond residents. Again, what we see is that when it comes to the zoning and what is proposed, the two are completely out of sync. When I refer to the Development Assessment Commission's guidelines for the preparation of a development report for Glen Osmond, it states this:

The Glenrose Court site is within the Community Zone within the Development Plan…for the City of Burnside. The Community Zone supports community, education and health care facilities. It also contemplates residential dwellings. It is silent in respect to aged care and retirement village style facilities.

Heights within the Community Zone are notionally 2 storey with 3 storeys contemplated in areas where there will not be impacts due to bulk, scale or height. The proposed development is for 5–9 storeys in parts with a 3 storey car park.

It does not take a rocket scientist to understand that the test normally applied in planning is whether something is seriously at variance with the development plan. If someone says, 'What does the development plan say?' and it states two storeys, maybe three at a pinch, and someone else comes along with five to nine storeys, that is seriously at variance—it is a lay-down misère; there is no argument.

That brings us to the heart of the problem. If the government were to use the existing community accepted and endorsed planning scheme, this development does not have a look-in. I will come back later to what I think the government should do about that. So, there is a two-storey zone, a three-storey car park proposed and five to nine levels.

When I met with the residents, they raised issues of height—overlooking, overshadowing, traffic, parking, the scale—but they also pointed out some vulnerable members of their local community for whom this development would actually be a quite disastrous imposition on their life. However, the most important thing the residents raised with me was the dodgy and underhanded process that was used to progress this, and they were very clear about that.

Let us quickly have a look at the Norwood development. Again, I will not go through all the details, but it is the same as the others: it is a two-storey zone, and what is being proposed as a major project is a seven-storey development. It was interesting that one of the residents I met who lives near the Norwood proposal is, in fact, a town planner. As a town planner, she actually undertook plenty of due diligence in terms of investigating the zoning of the area before buying her home. She knew that development would be taking place around them. We have to accept that, but if you are doing due diligence you have a look at the zoning rules—if I were to buy a house here, what sorts of things are likely to happen in my neighbourhood?

She was assured from that work that the zoning would limit buildings to two storeys and there would be no issues of overshadowing or overlooking. Of course, we have to appreciate that over time zoning can change, but that is not the case here. It is not a case of the zoning having changed; it is a case of the minister having intervened and, potentially, being ready to approve something that is so completely at odds with the planning scheme that there is absolutely no justification for approving it. So, that was not something that could be predicted beforehand.

I will mention the major projects stream for development assessment. I have talked about it on many occasions over the last 11½ years in parliament. It is a fraught scheme. It has its advantages, but it can also be terribly abused. As I have said, the trick is the minister: the minister thinks it is appropriate, the minister thinks it is necessary to declare a major project, therefore it is. If this was being assessed, as I said, against the normal planning scheme, they would look at the planning scheme: what is the zone; what is the height; yes or no. It is pretty straightforward.

If someone who proposes to do something that is so out of character with the area were to come along wanting to build an abattoir in the middle of Burnside or wanting to build a nine-storey building in a two-storey zone, the way the system works—whether it is the council or the state government—is that they are allowed to say, 'Okay, we'll accept your application, but it's non-complying, and non-complying means that we are going to notify all the neighbours and put an ad in the newspaper. If anyone at all is unhappy with the outcome, they can go to the umpire and get a verdict.' That is, they can go to the ERD court and get an appeal against that decision. Of course, developers do not like that because it slows down the process. However, that is what would normally happen.

The main consequence of declaring something a major project is that these planning schemes just become one part of the consideration of the minister in determining the outcome. They have to take into account the planning scheme, but it is not the definitive answer; it is just one of many. They are allowed to ignore it, and there is nothing anyone can do about it. People say, 'Mark, you're a lawyer. That's a bit rich: if someone behaves so badly and they breach all the laws, surely you just go to the Supreme Court on a judicial review.' Wrong again.

Not only is there no appeal on the merits, but, thanks to this parliament having rejected three times my bill to get rid of section 48E, it says in the Development Act that no-one is allowed to challenge anything—anything at all—to do with a major development. You cannot challenge anything that the minister does, that the DAC does, that the SCAP does, that the Governor does; none of it is able to be challenged, however they might disregard proper process and even break the law. That is what section 48E says. So, no appeal, no judicial review, which is why governments like these sections, because they get to thumb their nose at the planning scheme, thumb their nose at the community, and they can approve, without risk of legal action, anything they want, regardless of whether it fits in with that community or not.

So, I think this is a massive insult to all South Australians. But I tell you what really got my goat. I have spent a number of weekends down at the Adelaide Pavilion, that nice little cafe in the south Parklands there, as part of the citizens' jury which has been looking at a charter of public participation. Members will remember that we debated the new planning legislation here a year or so ago, and one of the things that we all thought was a pretty good idea was a charter of community participation, to set out, if you like, how it is that people are going to be involved in planning decisions.

I am not entirely happy with how the marching orders for the charter were done; I would have preferred it to have been broader. Nevertheless, what the charter says is that when it comes to big picture planning issues—the zoning, for example, the height limits—that is something the public have an absolute right to be consulted about, and we are going to have a charter which says how we are to be consulted.

The problem is that when it comes to major projects, it does not matter what the zoning is. It does not matter. So, the insult to the community, as I see it, is that the government is telling people, 'You busy yourself over here, consulting with your local council, consulting with the State Planning Commission, and we'll have public meetings to talk about what the zone should be,' but over on the other side, 'We don't care. We don't care what you think. We don't care what the zone is. We are going to give ourselves the right to approve whatever development we want in any location.'

That is why I think it is a fraud. I would love that citizens' jury to be reconvened and for them to be told, 'Sorry guys—' I think there were 30 or 40 people—'Sorry we wasted two weekends of your life consulting on something that can be so easily overridden by the government.' I think that is just appalling.

The next thing is: where do we go next with this? The answer is that unless some action is taken it is likely that these three developments could be approved before the state election. I notice in the newspaper today that the Liberal Party is coming out saying they will repeal this notice in the Government Gazette if they win government. That is all well and good, but two problems: first of all, by the time any new government takes place it will be, what, May or June next year? The window of opportunity for these aged-care developments ends at the end of June next year, so not a great deal there.

More importantly, I think, the damage will be done. I do not think it is going to be very easy at all for any new government to be able to undo an approval that has been granted, especially if people have started building. I told you that it says in the Development Act that you cannot sue anyone, you cannot bring any legal claim or anything in relation to a major project, but I bet you the Supreme Court would bend over backwards if one of these developers had started work on a nine-storey building and was told by a future government, 'Oh, stop. We take away your approval.' No. It is just not going to happen.

In relation to the Hindmarsh Island Bridge, there was a change of government. The new lot came in and said, 'We'd rather not build it,' and they got legal advice that it would cost them more not to build it, with having to pay compensation, than to build it. I will get some further legal advice on this, but I think the government has up until at least the caretaker period, possibly even longer, to approve these. So, given that there is only 15 days of public consultation, I think there is every chance that they could be approved in the meantime.

I think there are a few things that can be done. Certainly, the residents will continue to campaign, and I will urge them to do that, but I will actually propose a more sensible and more dignified way forward. That would be for the government to say in relation to these three Life Care developments—they have not started the building work on them yet, so they can say, 'Look, guys, we got that wrong. The answer is no. It's an early no.' There is a provision for an early no. You can say no to these developments.

Then what they should do is go back to the local councils where these developments are and invite those councils, as a matter of urgency, if you like, to reconsider the zoning rules for these areas. If the government does not trust local councils—and they rarely do—the minister can do it himself. He can instigate a ministerial development plan amendment which is effectively a rezoning and he can go through that proper process. Under the act, there have to be public meetings, he has to talk to the community, and at least put it out there upfront and open.

If the minister thinks that these three sites—and I should say there are more; there’s Fitzroy as well and Port Adelaide is another one coming up—there will be a lot of these. If they think they are appropriate sites to build nine-storey buildings in two-storey zones, well, rezone them. Let the minister rezone it and then they can lodge their applications: they will be consistent, they will be complying, they will be exactly what the planning scheme envisaged. So, I think that is the proper way to proceed.

With those words, I would like to thank the community members who wrote to me, as I am sure they have written to other members, those who met with me and those who have come in today because they care about the future of their neighbourhoods. I am hoping that common sense will prevail. I know these groups have a lot of energy. I have seen the photos: while we were doing question time they were out on the steps with their placards. I know they have a lot of energy and they should not be dismissed as merely self-interested because, in fact, they are batting for all of us who care about decent planning and decent government.

I know they will be applying pressure to Life Care and, as a result of that pressure—I know some minor changes have been made but I am hoping that a lot more changes will be made. They will be putting pressure on the government but I have no doubt that they will be putting pressure on all political parties as well, especially in the lead-up to the next state election. I commend the motion to the house.

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