Bills

Development (Assessment) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:59): Obtained leave and introduced a bill for an act to amend the Development Act 1993; and to make related variation to the Development Regulations 2008. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (12:00): I move:

That this bill be now read a second time.

On 18 September 2014, Her Honour Judge Cole of the Environment, Resources and Development Court handed down a judgement in the case of Paior & Anor v City of Marion and Others (No.3) which, for those who wish to look it up, is in 2014 SAERDC 42.

This decision is the latest in a series of judgements that have caused problems to the system of development assessment for detached, semidetached and row dwellings and land division. This government regards the residential construction sector as a crucial part of our state's economy. Following representations from both industry and councils concerned about the negative effects of this decision, we have brought forward this bill for debate. Given that detached and semidetached dwellings are the most common form of residential development, the consequences of this decision cannot be left unaddressed.

I seek leave to insert the remainder of the second reading explanation in Hansard without my reading it.

Leave granted.

It is common practice in South Australia for home builders to seek planning approval for dwellings ahead of undertaking subsequent subdivision in respect of house and land packages involving subdivision of land. Builders can get an early 'yes' or 'no' on their plans before they invest time and money in further approvals that they will only need if they know their development can go ahead. This is a practice that is common both for 'two for one' infill, as well as for larger-scale greenfield development.

The Paior decision reverses this practice, requiring all steps associated with subdivision to be fully completed, including the issuing of a title before a planning approval can be granted for a home to be built on the site. Requiring subdivision ahead of a development approval brings forward a number of expenses will be brought up front, without any guarantee of a subsequent dwelling approval, resulting in higher building costs and, potentially, higher purchase prices.

Ultimately, left unaddressed, this will mean less jobs for builders, fewer homes at an affordable price for home buyers and pressure on the rental market.

This is not the first time the government has had to respond to a court decision relating to the interaction between dwelling and subdivision approvals. In 2008 the Supreme Court handed down its judgment in the case of City of Port Adelaide Enfield v Moseley [2008] SASC 88 which raised similar issues.

This case directly overruled a decision of the Environment, Resources and Development Court. Given a number of earlier judgments in which similar comment had been made including McNamara v City of Charles Sturt & Attard [2001] SASC 368 and Kermode v City of Mitcham [2007] SAERDC 57, the government decided to put the matter beyond doubt by amending the relevant definition in the Development Regulations.

The regulation change made in 2008 sought to make clear that a dwelling approval could be granted whether or not land had first been subdivided. This was done by amending the definition of 'site' to make it clear that the use of this term in relation to various land use types should not import any notion of title. The Paior decision appears to have misunderstood the intent of the regulations.

The Paior decision also follows two judgments from 2014—Mileto v City of Port Adelaide Enfield [2014] SAERDC 39 and Dyson v City of Port Adelaide Enfield [2014] SAERDC 36, and preceded a further decision in Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder & Ors [2014] SAERDC 48. This is a trail of complicated and, at times, confusing judgments. In the case of Mileto, the court refused to countenance a land division that followed a privately certified approval of a residential code compliant development involving 3 dwellings. In the case of Dyson, the court expressed frustration that councils are not following the principles enunciated in Moseley (ignoring the regulation changes made since that case). In the case of Tru Energy, the court seemed to conclude, contrary to Paior, that the Moseley principle was in fact not a rule of law and should be applied flexibly. It is important that this Bill is passed so as to provide certainty to state and local government and industry.

That is why this bill seeks to make it clear, in statute, that there is not a need to create an allotment before seeking approval for a land use on that allotment.

The bill achieves this in two ways.

Firstly, the bill inserts a new subsection (3a) into existing section 33 which provides that, for the avoidance of doubt, in assessing a proposed development it is not necessary for an assessment body to grant the consents in any particular order. This new subsection will directly address the line of reasoning that Paior has crystallised relating to subdivision approval.

Secondly, the bill also makes consequential amendments directly to the Development Regulations. These changes clarify the meaning of a site held exclusively.

The making of amendments directly to the regulations in a bill is an unusual course of action and directly flows from the process currently imposed by section 5 of the Development Act.

The government is of the view that this provision is cumbersome prevents timely updates to development definitions necessary to respond to case law and changing industry practice. Because of this, we have chosen to introduce an amendment as part of this bill that will make it easier to maintain the land use definitions set out in Schedule 1 of the regulations in future.

The final issue the Government wishes to address concerns minor variations—minor variations from complying development provisions and also minor variations to approved developments.

With regard to complying development section 35(1b) of the Act allows a council to accept minor departures from set standards without the need for a formal on-merit development application. This is quite common as a development application progresses.

Often detailed building requirements considered as the building consent stage of an assessment process may result in the need to tweak the original planning consent in some fashion. For example, a change in a roof truss product as the detail of the building consent stage may mean that the angle of the roofline will be altered by a few degrees; in many cases, this may require a minor variation to the original planning consent. Similar issues can arise in relation to a number of other building issues, depending on product availability and detailed building design.

Typically, a council assessment officer will address these matters by accepting a change as a 'minor variation' within the terms of this subsection, rather than requiring a new development application that would require a formal merit assessment.

The government proposes to include a new subsection (1ba) which is intended to allow for guidelines on the type of variations that should be regarded as minor to be issued by the Minister. While not intended to fetter or limit the discretion of assessment officers under subsection (1b), those who act consistently with the guidelines will be protected from any court challenge suggesting they have misused their discretion. This will allow a greater degree of certainty in the application of subsection (1b) for councils and applicants.

The second matter concerning minor variations, directly raised in Paior, relates to minor variations as they relate to approved developments. To ensure current practices can continue the government has issued regulations under section 39(7)(b) of the Act which make it clear that a request for a minor variation after a development approval is granted does not require a new application. The regulations make other consequential amendments to the regulations necessary to give effect to this principle.

Additionally, the regulations will provide that if a development plan consent has been granted for residential code development, a proposed division of land that provides for that development to occur is to be treated as complying development. This directly addresses the issues raised in the case of Mileto. The effect of this is that private certifiers will be able to certify a land division relating to a residential code development as part of the one process.

Mr Speaker, a healthy housing industry is a sign of a healthy economy and helps to ensure housing continues to be affordable for all of our citizens—a key competitive advantage for South Australia on the national and world stage. Once again, this government is acting to support this vital part of the South Australian economy and I encourage all members to do the same.

I commend this Bill to the house and look forward to its speedy passage.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Development Act 1993

4—Amendment of section 5—Interpretation of Development Plans

These amendments alter the consultation requirements relating to regulations made for the purpose of defining a term used in a Development Plan.

5—Amendment of section 33—Matters against which development must be assessed

This amendment clarifies that, in relation to a proposed development that requires more than 1 consent for the approval of the development, a relevant authority is not required to grant the consents in any particular order.

6—Amendment of section 35—Special provisions relating to assessment against Development Plan

This amendment provides that if a relevant authority assesses a development as being a minor variation from complying development and the variation is consistent with any guidelines published by the Minister by notice in the Gazette, that variation is to be taken to be a minor variation for the purposes of the Act.

7—Amendment of Development Regulations 2008

This is a technical provision relating to the variation of the Development Regulations 2008 by Schedule 1.

Schedule 1—Variation of Development Regulations 2008

1—Variation of regulation 3—Interpretation

This clause varies regulation 3 of the Development Regulations 2008 by inserting a new subregulation which provides that a reference in a term set out in Schedule 1 (of the Development Regulations 2008) to a dwelling occupying a site that is held exclusively with that dwelling will be taken to be a reference to the site being held exclusively for the purposes of occupation or use of the dwelling and will not be taken to require separate ownership of, or title to, the site.

Debate adjourned on motion of Mr Gardner.