DEVELOPMENT (CROWN DEVELOPMENT) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (17:41): Obtained leave and introduced a bill for an act to amend the Development Act 1993. Read a first time.

Second Reading

The Hon. M. PARNELL (17:41): I move:

That this bill be now read a second time.

This bill has the sole purpose of ensuring that private development projects are assessed under the Development Act in a consistent manner and that private projects cannot take advantage of special fast-track provisions designed for approving government projects. The rationale for this bill comes from a number of cases over the years where projects that are clearly private in nature are being assessed under section 49 of the Development Act rather than under the normal or general scheme for development assessment.

Three cases that have come to light over the last few months all involve the export of iron ore. These exports are from privately operated mines over privately operated railway lines taking iron ore to privatised wharves, yet they will all be assessed as crown development. These cases involve export of ore from Port Lincoln, Port Pirie and Port Adelaide, and all have been locally controversial. Other cases have included the further industrialisation of the Point Lowly Peninsula near Whyalla and also the subdivision of Torrens Island for private industry.

In order to explain why this is a problem that needs to be fixed, I need to briefly outline the differences in the assessment method for normal development and for crown development. Part 4 of the Development Act deals with development assessment. Division 1 of part 4 sets out what is called the general scheme. This is the scheme most of us are familiar with, if we have ever lodged a development application for a new home or a building extension. In the vast majority of cases it is the local council that is the relevant authority and either the council's development assessment panel or a delegated officer will make the final decision. If you are not happy with the decision, you can go to the umpire, being the Environment, Resources and Development Court, and in some cases third party objectors can also appeal.

Division 2 of part 4 is major developments or projects (and that is not affected by this bill). Division 3 of part 4 is crown development and public infrastructure. This division only contains one section, that is, section 49, and that is the section this bill seeks to amend. The amendment is to the eligibility criteria, in other words, the type of development that can be assessed under section 49, and as a consequence what types of development should be assessed under the normal process. When I say 'type of development', there are two components.

First, there is the nature of the development, what is it that is proposed to be built (and I am not proposing any change to those rules). My amendment relates to the provision of public infrastructure, and I am not proposing to change that definition but will come back to it in a moment. The second component is the identity of the developer, and that is the matter I seek to amend. Under the act there are three situations where these special crown development assessment rules apply. The first is where the developer is a state agency undertaking any form of development and doing so in their own right. That is a fairly straightforward provision, and I am not proposing to change it. That would include a government department building roads or other facilities.

The second situation is where a state agency, either by itself or as a joint venture with private interests, is constructing public infrastructure. Again, I am not proposing any change to those rules. The third situation, which I do seek to change, is where the developer is a private developer—they are not a state agency—a private company for example, but a state agency is supporting the development and gives a special endorsement to the project. Then it can be assessed using the crown development mechanism if the development relates to public infrastructure. That is the provision I am seeking to remove from the Development Act. It is a provision that applies only to private development that is not undertaken by a state agency or even a joint partnership.

The question that then arises is: what is the difference between the section 49 mechanism and the normal mechanism such that this bill seeks to change the eligibility criteria? In short, does it matter whether something is assessed under section 49 or under the normal provisions? I say it does. I will give you three areas where it is important. First of all is the decision-maker. In normal forms of development, the decision-maker is the local council or maybe the Development Assessment Commission, or maybe it is the umpire, the Environment, Resources and Development Court. Under section 49, the minister is the decision-maker and there is no right of appeal to any umpire.

The second issue is what must be taken into account when making a development decision. Normally, the predominant document is the local development plan. The obligation on councils is to not make any decision that is seriously at variance with that plan, and that includes the zoning and the principles of development control. The council or the DAC must also take into account public submissions and agency comments. When it comes to section 49, it is a very different regime. First of all, the minister must get a report from the Development Assessment Commission, and that report would include whether or not the project was consistent with the development plan.

But the minister is not obliged to take anything into account and is freely able to make a decision that is seriously at variance with the development plan. If the minister does make such a decision, the minister is obliged to inform parliament, but parliament has no right to overturn that decision. In relation to public participation, under normal development approval or assessment regimes, the level of public participation will depend on the characterisation: is it a category 1, 2 or 3? Where a development is inconsistent with the planning scheme (the development plan), it is likely to be a category 3 development, with full consultation and appeal rights, and the decision-maker is legally obliged to take those public submissions into account.

Under section 49, there is no public consultation, unless the development is over a certain size (presently $4 million), in which case, there is a public advertisement and a call for submissions but there are no appeal rights. Interestingly, the Development Assessment Commission is obliged to take public submissions into account in preparing its report to the minister, but the minister, as the final decision-maker, is not obliged to take those submissions into account; in fact, the minister is not even required to be given a copy of those submissions. The submissions from the public, if they exist, are effectively filtered through the mechanism of the Development Assessment Commission report.

In relation to the involvement of local government, normally it is local government that will be the decision-maker. If it is not, it will be fully consulted by the Development Assessment Commission. The regime under section 49 is that that the council is consulted but it has no rights. If the council is not happy with the proposal, that advice will be passed on to the minister. The minister is not obliged to take any further action on receiving that advice but, if the minister does go against the council's advice, a report must be tabled in parliament but, again, no consequences flow from the tabling of such a report; it is for information only.

I think there is a place for ensuring that genuine public infrastructure projects provided by the government should go through a slightly different process from normal development. I have no problem with the underlying philosophy of section 49. I am not proposing to change that regime at all, but what I do want is to stop the practice of private developers attaching themselves to the coat-tails of government in order to get their development fast tracked against the opposition of local communities and without giving primacy to the planning schemes that should be governing development in this state.

Now the trend as I see it, having worked in this area for many years, is very clear; that is, that opportunities for communities to engage meaningfully in the future of their towns, suburbs or regions have been steadily eroded over time and they continue to be eroded. I think it is now time to reverse this trend. I think we should err on the side of more community involvement rather than less. I think we should ensure that our planning schemes are adhered to as often as possible. If the planning schemes are not up to task then they can be amended.

Support for this bill is support for a very small reform that helps restore our planning system to a more transparent and predictable planning system that is less open to abuse. This bill ensures that special government concessions apply only to genuine government projects, including projects in collaboration with the private sector, but this should not apply to purely private projects. I commend the bill to the house.

Debate adjourned on motion of Hon. J.M. Gazzola.