MOUNT BARKER DEVELOPMENT PLAN AMENDMENT

The Hon. M. PARNELL (16:00): I move:

That this council—

1. Notes the admission from the Minister for Planning that the government erred in fast-tracking the Ministerial Mount Barker Urban Growth Development Plan Amendment ahead of appropriate community and infrastructure provision; and

2. Calls on the minister to—

(a) Immediately suspend the operation of the Mount Barker Urban Growth Development Plan Amendment and reinstate the zoning that existed prior to 16 December 2010 when the DPA was approved; and

(b) Prepare a new plan for development of Mount Barker and Nairne that respects the wishes of the people of the district and the District Council of Mount Barker.

Whilst the government would like it to be otherwise, the debacle that was the Mount Barker urban sprawl rezoning is simply not going to go away. What I have discovered in recent weeks vindicates most if not all of the concerns that I have raised, the local council at Mount Barker has raised and the community has raised in relation to the way the rezoning of Mount Barker was undertaken.

What we know is that we were on the money the whole time and the reason that we know that is that I have recently obtained a number of documents under the Freedom of Information Act—documents that both the government and the developer were very keen to keep secret from me and from the South Australian community.

The first paragraph of my motion notes the admission made by the Minister for Planning that the government erred in fast-tracking the Ministerial Mount Barker Urban Growth Development Plan Amendment ahead of community and infrastructure provision. I would like to just explore what the minister has actually said went wrong with Mount Barker, and I start with the minister's address to the Property Council on Friday 25 March last year, which was not long after minister Rau was appointed planning minister.

A part of his address to that gathering said that, under his watch, the pace of greenfield development—in other words, urban sprawl—would be slowed significantly and that the state's unique assets would be retained. To quote the minister: 'We cannot continue to build suburbs on top of our best agricultural land.' He also said:

With the natural barriers of the hills and the gulf waters, Adelaide has grown to the north and south—but this urban sprawl must end.

Not surprisingly, the new minister was accused of hypocrisy, given the decisions that had already been made about Mount Barker and other areas on the fringe of Adelaide. According to the Sunday Mail on 27 March, Mr Rau said that his remarks applied only to sprawl beyond what was already planned. The minister, according to the Sunday Mail, denied that the rezoning of Mount Barker and Seaford Heights was a mistake. The quote from the minister was: 'They were the right decisions at the time.'

Then the minister made a further contribution in another speech to developers and the planning profession, this time to the Urban Development Institute in August 2011. What the minister was widely reported as saying at that meeting was that the planning policy in this state was 'dishevelled, disjointed and inconsistent'. He was reported as saying that fixing this problem was the key to a better planning environment.

In particular in this address, minister Rau signalled critical areas for change, which included a pledge that the lack of infrastructure planning before the rezoning of land near Mount Barker would never happen again. The ABC reported this on 18 August last year under the heading 'No more Mount Barkers: Rau'. I will quote from some of that report:

South Australia's planning minister has admitted the government made a mistake in its handling of the Mount Barker housing development. John Rau says that the government should not have approved the rezoning of land before working out an infrastructure plan for the area. Speaking at a meeting of developers in Adelaide, Mr Rau said the government had learnt its lesson from Mount Barker.

The quote from the minister was:

I am not in favour of decoupling rezoning from infrastructure planning. With the benefit of hindsight this was a problem in the Mount Barker rezoning.

In a further quote he said:

There will be no more Mount Barkers on my watch.

He goes on:

It makes no sense to let developers build houses without the government and local councils being able to support that community with infrastructure.

The article goes on to say that the Mount Barker development was met with widespread community opposition and led to several protests, which were overridden by Paul Holloway, who was the planning minister at the time.

So, here we have the new minister Rau backing away slightly from the tougher stance he took earlier. In many ways the approach of the government in fact represents the good cop, bad cop routine, where former planning minister Holloway was the bad cop and new planning minister Rau is the good cop. The good cop does not want to see further urban sprawl but, as I will outline later, he is not prepared to do anything about the bad decisions that have been made to date, even though he does have the power to redress the situation.

So, that is what the government admits has gone wrong, but it goes further than that, and certainly I believe there is a range of other fundamental problems with the Mount Barker rezoning that need to be addressed. To get to the bottom of it we need to go through some of the history of this quite sorry state of affairs. I want to highlight some of the key issues that come from the documents that I obtained under the Freedom of Information Act.

Members might recall that former minister Holloway wrote to the Mount Barker council on 19 May 2009 advising the council that he was proposing to rezone land around Mount Barker for urban development. In this place in June 2009 I asked the minister to name them, and he did. To quote the minister:

My information is that the consortium of five companies comprises the following organisations: Urban Pacific, the Fairmont Group, Walker Corporation, Land Services Pty Ltd and Daycorp Pty Ltd. I am advised that Connor Holmes is not a member of this consortium.

I then lodged a freedom of information application to obtain copies of the correspondence between this consortium of property developers and the government. In response to my request the planning department did as it is required to do: it consulted the third parties who were part of this chain of communications, primarily the consortium of developers and the firm of Connor Holmes, their representative.

Not surprisingly, these third parties objected to the release of documents. The department chose to side with the developers and therefore refused access. I lodged an internal review of that decision, which resulted in the same decision. I then appealed to the Ombudsman. The Ombudsman overturned the department's decision and ordered that the documents be released to me. In his findings the Ombudsman had some interesting things to say that are certainly relevant to Mount Barker but also of more general application. For example, one observation the Ombudsman made was in relation to claims of commercial confidentiality. The Ombudsman had this to say:

It seems to me that commercial entities, when they come up against the FOI Act, commonly claim that all matters relating to a commercial matter is either confidential or exempt under the business affairs provisions. Put another way, I find it all too common that commercial entities expect to be able to do business with the government under a complete veil of secrecy. I find such claims to be difficult to accept. Exemption claims levelled at discreet information to do with a commercial matter are more justifiable.

The Ombudsman also had a bit to say about the balance that needs to be struck in the Freedom of Information Act between the rights of those named in documents and the public interest. What the Ombudsman said in my case was:

There is a strong public interest in the minister's decisions under the Development Act and therefore there is a strong public interest in information underlying his decisions being disclosed. Decisions of this nature tend to impact a wide variety of people, significantly the people living in surrounding areas and not just those involved in the negotiations.

Disclosure of relevant information assists openness and accountability. Any countervailing public interest factors tending against disclosure will have to be weighed against this. More particularly and in the light of the importance of these decisions made under the Development Act, it is my view that there is a significant public interest in the actual issues surrounding this particular information and a corresponding public interest in knowing that the government is appropriately handling such issues. Accordingly, to the extent that disclosure of this information could be expected to have an adverse effect on the business affairs of the consortium, I am not satisfied that this outweighs the overriding public interest in the release of the information.

I was pleased that the Ombudsman saw that the public interest overrode other considerations and ordered that the documents be released. However, before I could get them, the consortium of developers appealed to the District Court. I was named as a respondent to the proceedings. The planning department was the other respondent. I should note that the department decided to take no active part in the appeal, although it attended to give any assistance that was required. Effectively, the case was the developers against myself.

This then resulted in the quite bizarre situation of a court trial, where I had to defend the Ombudsman's decision—and I point out that the Ombudsman is not party to these appeals. So, I had to defend the Ombudsman's decision without actually knowing how the Ombudsman's reasonings related to the documents, because I had not seen the documents.

So, in a court case over the release of documents, I am the only person in the room who does not actually know what is in them. The department knows what is in the documents—it holds them. The developers know what is in the documents—they wrote half of them, and they were the recipient of the other half. The judge had the documents. So, it is a bizarre type of court case, where you really go in with your hands tied behind back.

My lawyers even asked if they could be given confidential access to the documents to help them prepare the case. They promised not to show me the documents, and they promised on pain of contempt of court charges, but that was unsuccessful. However, ultimately, despite having one or even two hands tied behind my back, the matter went to trial in late 2010. Importantly, that was before the Mount Barker Development Plan Amendment had been approved by the minister.

I am disappointed to say that, despite the urgings of my lawyers as to the urgency of the matter, the District Court took over a year to hand down its decision. By that time the Mount Barker DPA had been approved and the Environment, Resources and Development Committee of this parliament had concluded its deliberations. The important thing is that that latter decision, that of the ERD committee, was taken without the committee having access to these documents. That is why I mention just in passing why I have given notice today that I want this matter to be referred back to the Environment, Resources and Development Committee. I will address the reasons why when that item is put on the Notice Paper next month.

So, even though the District Court handed down its decision last year, I still was not able to get the documents because the planning department had to wait for a further appeal period to expire; they had to wait to see whether this consortium of developers wanted to buy a bit more time by going to the Supreme Court; ultimately, they did not. I eventually got these documents more than 2½ years after lodging my application and, as I have said, after all the main decisions had been made. That is clearly a travesty, and the Freedom of Information Act needs to be fixed up to avoid that situation happening in the future.

There is no doubt in my mind that the appeal by the developers was overwhelmingly an exercise in delay and obstruction. If they could keep these embarrassing documents out of the public realm for long enough, the DPA process could run its course and they would get what they want with less ammunition in the hands of the community as to why the proposed rezoning process was fundamentally flawed and corrupt. So, to the extent that this was their objective, the developers had won, thanks to the culture of secrecy within the planning department and the unwieldy freedom of information regime and the painfully slow legal system—and I am sure that the tens of thousands of dollars the developers spent trying to prevent my accessing these documents was probably regarded as money well spent on their part.

Before I go through what some of these documents disclose about the Mount Barker rezoning, I need to remind members that, prior to 2010, when former planning minister Holloway signed off on the DPA, there was no policy vacuum in a planning sense. The question of where future development in the outer metropolitan and near country areas should occur had already been the subject of a comprehensive process over the preceding several years.

In August 2006, minister Holloway released the planning strategy for the outer metropolitan Adelaide region, which includes Mount Barker, and that planning strategy is the highest level planning document in our state planning system, and it was the culmination of a lengthy, across departmental process. That document did not identify urban sprawl at Mount Barker as a priority. That was a document released in 2006. The introduction to that document says:

The planning strategy represents the South Australian government's policy directions for the physical development of the state over the next 10 to 15 years.

It also says:

This outer metropolitan Adelaide region volume of the planning strategy creates...an environment of certainty for investors, state agencies, local government and the community by providing a clear indication of the state government's policy directions for the physical development of the outer metropolitan Adelaide region.

What that says is that, certainly, as of 2006, the clear intention was that Mount Barker was not to be developed and that that was the position that was set in the highest level planning document to last for at least 10 to 15 years.

The documents that were eventually ordered to be released to me by the District Court show, before the ink was even dry on that planning strategy, forces at work to undermine it and, ultimately, those forces succeeded. It is also clear that the developers bullied the government into fast-tracking the process, rather than following proper planning procedures, and they did this by veiled threats to pull out of the project if they did not get their way.

I want to refer to a number of specific documents that I obtained and to quote some extracts from them. For the information of members and for the readers of Hansard, these documents will shortly be uploaded to my website, www.markparnell.org.au. The first document is numbered document 7, and it is a letter to the minister from Connor Holmes, dated 1 April 2008. What this document shows is that Connor Holmes, on behalf of the consortium of developers, had a feeling that they were not going to get too far with the Mount Barker council. What they said in this letter was:

There is a sense that the council is unlikely to move on this matter at this time and possibly not in the future as well.

I would say, 'Who can blame them?', given that we had had a comprehensive planning process for this part of the state just a few years earlier—in fact, three years earlier—which had said that this was not a priority, that this was not an area that should be subject to urban sprawl.

The document also outlines a number of claims that are complete rubbish. In one, for example, they say that they want to 'deliver a carbon-neutral project'. Well, I can tell you, Mr President, you do not build a dormitory suburb tens of kilometres from where most of those people need to go for work and think of that as a carbon-neutral project. It is absolute greenwash; absolute codswallop.

The document claims that the existing residents of Mount Barker, the ones who overwhelmingly oppose these plans, would benefit and they would benefit from 'avoidance of wider Hills sprawl'. In other words, the people of Mount Barker would benefit because all the urban sprawl would be in their backyards, it would not be elsewhere in the Hills, and that is some benefit to them. It also mentions 'developer-funded infrastructure to reduce the rate burden on existing residents'. I do not think anyone envisages that the rates in Mount Barker are going to go down as a result of this development.

Document No. 9 is a letter from Connor Holmes to the minister dated 16 June 2008. Again, it makes outrageous claims such as, 'This project will deliver a carbon-neutral outcome.' It also talks about 'the wastewater that would be produced by all the extra people to live at Mount Barker and how that wastewater would provide a water source for the Adelaide Hills mining operations'.

Mind you, it does not identify any particular mining company that wants that water or any particular method for delivering any excess water to mining companies; it is absolute rubbish. The letter also predicts that there will be a community and council backlash to any ministerial rezoning. It says, 'It will likely evoke considerable interest from the local community, government agencies and council.'

'Likely evoke considerable interest': that is a euphemism for 'all hell will break loose'. They knew it would happen, and it did happen. The letter also includes an insulting reference—a backhander, if you like—to the local council and community. What Connor Holmes says in this letter is that if the minister chooses to go down the fast-track ministerial process this will mean that the process will be 'free of any parochial, conservative and/or emotional attitudes'.

What a remarkable set of words! It suggests that it would somehow be improper; it would be emotional or parochial for the local council and the local community to care about the future of their local environment and the future of development in their area. According to Connor Holmes, the only way to avoid those considerations getting in the way of money is for the minister to take this project on himself.

The letter also acknowledges that the Mount Barker consortium was prepared to fund the ministerial DPA. It was prepared to provide the consultancy team—possibly led by Connor Holmes—that would undertake all the investigations and deliver the necessary documentation for the rezoning. In other words they are saying, 'Don't worry about the work involved, minister; you just leave it to us and we'll do all the work for your rezoning of Mount Barker.'

The letter discloses that whilst the company would have been prepared to accept a major development declaration, that was not its preferred approach. I know why it was not their preferred approach: because they would have had to do an EIS, and that would have added extra time and expense. What the document does disclose is the main card that they held up their sleeve. The main reason for rushing the Mount Barker rezoning was that they saw a need to keep the consortium together. The quote is:

Retaining the interest and commitment of the Mount Barker consortium could prove to be a difficult exercise as fiscal demands in a fickle land market could well impose pressures that could divert the interests of any participants.

In other words, they are threatening to walk away, and if they walk away the government might have to pay for the freeway interchange out of its own money rather than have the property developers pay for it for them. That was the card that they held up their sleeve, and ultimately it was a successful card.

Another document that was released, document No. 1, is a departmental file note of meetings between the department and the developers. What that discloses is that there was a meeting between minister Holloway and the developers in January 2008, in other words, less than 18 months after the 10 to 15-year planning strategy had been published. At that meeting the minister supposedly provided encouragement towards a different approach—a different approach to the agreed approach from just 18 months earlier. The note indicates that the developers, by that stage, had already met with minister Conlon and, not surprisingly, the consortium had already bought up 600 hectares of the land to be rezoned.

Document No. 10 from 6 August 2008 is a letter from minister Holloway to Connor Holmes. This letter actually outlines the proper process: what should happen. What this letter shows is that Mount Barker would be considered as part of the overall growth investigation areas, not a separate exercise, so the minister was still holding out at that stage.

Document No. 11 is a letter from Connor Holmes to the minister on 14 August 2008. In response to the minister's letter, clearly unhappy by not getting the answer that it wanted, Connor Holmes made it very clear why it wanted to rush this rezoning. It states:

We also advise that the prospect of holding the Mount Barker Consortium together during a possible further five years of uncertainty is slim. The ability of the Consortium to underpin construction of key infrastructure for the township, such as the Adelaide-bound on-off ramps to a Bald Hills Road interchange will diminish if Consortium members pull out during the hiatus.

In other words, 'Do the rezoning, minister, or we might not fund your freeway interchange.' I also make the observation that this letter includes some fundamental flaws of thinking in relation to planning. In particular, Connor Holmes is emphasising the need for a supply of 15 years of residentially zoned land. The point that they miss, of course, is that there is no obligation or even indication from the government that that 15-year supply needs to be at Mount Barker. I do not actually agree with the 15-year supply target but there is certainly nothing in any documents that the government has released which says that that land has to be at Mount Barker.

Document No. 12 is perhaps one of the most telling. It is a draft letter from the minister to Connor Holmes. It was a letter that was drafted by the department for the minister to sign to give the minister's final verdict on what should happen at Mount Barker. What this unsigned draft letter written by the department says is that the minister was 'not willing at this time to prejudice the outcomes of this work'. By 'this work' he means the growth investigation areas report, the investigations for the 30-Year Plan for Greater Adelaide. It goes on to say that the minister would 'continue further dialogue with you once this work has been completed'.

Certainly the department got it. The department realised that the way to do these things is to inquire into the needs of the community, then you compile all that information into a comprehensive planning strategy document (in this case the 30-Year Plan for Greater Adelaide) and then, and only then, and after that has happened, you consider whether any rezoning is needed in a specific area. That was the advice that the department gave to the minister. It drafted a letter for him to sign and it is pretty clear now that the minister rejected that advice and did not send the letter.

The document numbered two in the set that I received is an email exchange between Connor Holmes and the Department of Planning on 21 and 22 April 2009. What is really curious about this is that the subject field in the first email is 'Mount Barker growth'—that is the subject line. By the time the email exchange is completed, Connor Holmes have added the words 'cabinet-in-confidence' to the end of the subject line. Remarkable! How does a private firm of planning consultants know what is cabinet-in-confidence? Clearly, this was an attempt to try to make sure that the document would never be released to a member of the public under the Freedom of Information Act. Clearly, that did not work; we have this chain of communications.

Also interesting in this chain of emails was the recipient list. Included in the cc field is one former senator, ALP fundraiser and lobbyist, Nick Bolkus. There is a question for the government: why is he being included in this chain of communications between property developers and the government?

Perhaps most interesting in this chain of emails is the issue around conflict of interest and, clearly, all of the people involved knew that they had a problem with conflict of interest, the problem being that the firm of Connor Holmes, which was lobbying on behalf of the consortium, represented the consortium and offered to write all the rezoning documents for the consortium, were the same people employed by the government to give the government advice on what would be some good spots to rezone for housing around Adelaide.

It is remarkable. I have raised that in this place before. These documents simply add flesh to the bones of that conflict of interest. Richard Dwyer of the department in this email chain says:

Whilst not ideal, the consortium has accepted a single representative on an interim basis on the understanding and assumption that, following the execution of the contract for the 30-year plan and the Growth Investigation Areas projects, Connor Holmes would no longer have a perceived conflict of interest—

no longer have a perceived conflict of interest—

and could return as the primary point of contact for the Mount Barker consortium.

They knew they had a problem, and they were trying to think of ways to sideline the consortium until this conflict went away. It never went away, and it is at the heart of everything that is rotten about this rezoning at Mount Barker.

The document numbered 3 in the set is a minute to the minister. This is departmental advice to minister Holloway dated 14 May 2009. It is a lengthy minute, and I will not read too much of it, but it refers to the fact that the Growth Investigation Areas report, undertaken by Connor Holmes, was fast-tracked and that there was a clear desire to get Mount Barker sorted out before any other potential growth areas were identified and, certainly, before the 30-year plan was approved and, certainly, before the consortium lost interest in developing at Mount Barker. The minister was warned in this minute by his department:

Undertaking a DPA to review the zoning of land around Mount Barker at this stage could be seen by council and the Hills community as pre-empting the consultation process and government decisions about the 30-year plan, potentially giving rise to concerns that a decision to accommodate urban growth at Mount Barker has been made.

Well, of course it had been made! Absolutely, it had been made! Here you have the department desperately trying to help the minister understand that there is a problem with the way this is being handled. The document also makes it very clear that the current practice for doing the planning work for this type of development is to be outsourced rather than the planning department doing it itself, and we have seen that happen in a number of locations. Towards the end of the advice to the minister, there is another reference to conflict of interest. Their minute states:

Until recently, the consortium of developers was represented by Connor Holmes. Depending on how the consortium wished to progress the investigations, etc, the assistance of Connor Holmes may be more appropriate following completion of their involvement with the Growth Investigation Areas project/30-year plan.

So, they know that there is a real problem with the same firm of consultants working for the government and working for developers in relation to the same land.

Why, then, in light of all of these new revelations, should the minister go back to the drawing board in relation to Mount Barker? The first question is: is it possible for the minister to do it? The answer is: yes, it is. Members would be aware that a technique commonly used by the minister in planning is something called interim operation. The minister can, almost overnight, announce changes to the planning system, and to zoning in particular, so it is certainly possible to do it.

Is it ideal? It is not ideal. Would it add to uncertainty? Yes, it would add to some uncertainty. But, is it the right thing to do for the people of Mount Barker and the environment of Mount Barker? Absolutely, it is. There are some arguments that will no doubt be raised against this approach, and I want to take the opportunity to pre-empt and counter some of those now.

In the speech made by new minister Rau to the Property Council on 25 March 2011, as reported in the Sunday Mail on 27 March, the minister made it very clear that he would not undo decisions that had already been made. He says, 'There are commercial arrangements in place.' He goes on to say, 'There have been decisions made over a period of time. I'm not intending to go around disturbing those.'

I also refer members to the article in today's edition of the Mount Barker Courier, where planning minister Rau said he had 'no intention' of changing the rezoning for fear of 'disturbing contractual arrangements between third parties entered into in good faith on the basis of the Mount Barker DPA.' He is also quoted as saying, 'As I have said before, to even contemplate doing so would raise the spectre of sovereign risk in South Australia.' I say that this is not about sovereign risk but it is about risk. Property developers and speculators are in the business of taking risks. They take gambles, gambles that sometimes pay off and sometimes do not. They sometimes take a gamble that things will change in their favour and they sometimes gamble that things will not change against them.

To give an example, members might wonder why the Le Cornu site at North Adelaide was vacant for so long. The answer is that developers had gambled by paying six-storey prices for land in a three-storey zone. They knew what the zoning was; they gambled that ultimately either the zoning would change, the council would buckle or the minister would bail them out. In the end that is what happened, the minister bailed them out. They won that gamble, but the price paid by the residents of North Adelaide was a blight on their landscape and a prime piece of real estate vacant for many years.

I say that, at the end of the day, democracy is more important than any implied guarantee of property gains for land speculators and developers. Ultimately the will of the people should be more important than any perceived right that property developers have to make a profit out of land they own. These property developers have actively worked to sidestep the local community and the local council to thwart the legitimate concerns of the people of Mount Barker, and if democracy catches up with them, so be it.

If they turn out to have paid too much money for land—because no doubt most of them would have had options to purchase and they would have purchased the land at above farming rates, even though that is what it was zoned—on the basis of the rezoning, if that is overturned, so be it. These are people who are out there undermining the system, buying up land speculatively over a period of time, and then working on the government to make sure that their interests are protected and that proper processes are sidestepped and they get the rezoning they want.

I think we have in our society a problem with this notion that the rules, the planning rules in particular, are only allowed to change if they increase property values. That is rubbish. The rules will change in both directions; there are swings and roundabouts. There is no constitutional or other implied right on the part of property developers to make a profit from land. If land is rezoned back to a more appropriate use—such as in the case of Mount Barker to farming, agricultural use—then so be it.

I note that, following the minister's August 2011 speech to the Urban Development Institute of Australia, there were some comments made by the local community. For example, Brian Haddy, spokesperson for the Coalition for Sustainable Communities, a group that was fighting against the rezoning of land at Mount Barker, was reported in the media as saying the following:

We've said all along that the Mount Barker development was inappropriate, and now the government's agreeing with us, which is great, but unfortunately it's too late for all the beautiful rolling green hills and the productive agricultural land in Mount Barker that's going to go under housing estates in the next few years.

I have to say that at the time I tended to think he was probably right, that it was too late, but now that a fuller picture has emerged of exactly how dodgy this whole process was I think it is beholden on us to do whatever we can to make sure that we do try to reverse some of the worst aspects of this decision.

There are some aspects of it that will be difficult to reverse, but the bulldozers have not yet moved in. The roads have not been bulldozed and paved, the stately old trees have not been cleared; there is still time to resurrect the situation. I know that for some parts it will be too late. The reason I say that is anyone who has already lodged their subdivision applications has a legal right to have them assessed against the current planning scheme, but we certainly know that not all of 1,300-odd hectares are subject to current development applications; it is not all being subdivided for housing; it is possible to go back to the drawing board.

In conclusion, I think that the sorry tale of Mount Barker is actually a wake-up call to us in this place, and it is a wake-up call to the whole community that we need to get our planning system back on track. When injustices occur, when poor decisions are made, when the legitimate interests of local people are overridden, we have an obligation to step in and try to rectify the situation. That is what my motion calls for the government to do, and I would urge all honourable members to support it.

Debate adjourned on motion of Hon. G.A. Kandelaars.