Legislative Council Fifty-Third Parliament, First Session (53-1) 53 1 Parliament of South Australia Legislative Council published Motions Motions Planning Regulations Planning Regulations The Hon. M.C. PARNELL Legislative Council The Hon. M.C. PARNELL (16:02): I move: That regulations under the Development Act 1993 concerning assessment of significant developments, made on 14 August 2014 and laid on the table of this council on 16 September 2014, be disallowed. The state government's undermining of local councils' involvement in the SA planning system is gathering pace. First, it came for the Adelaide City Council, stripping it of responsibility for assessing developments worth over $10 million. There was some consternation, and certainly the Adelaide City Council was unhappy, but in the broader community not that many people complained because it did not affect them. Next, it came for the inner rim councils, stripping them of responsibility for residential developments over four storeys in height. While it was at it, it took another swing at Adelaide City Council and removed its right to even be consulted over large developments. This time more people complained because there were six local councils and local communities that were affected. I make the point, by way of interjecting on my own remarks, that in the lead-up to the state election the Greens promised to restore those responsibilities; so too did the Liberal Party but, as we know, the Liberal Party broke that promise and it voted with the government last week. Anyway, back to this motion. Now, emboldened by its success, the government has taken the next step and passed regulations to potentially strip all councils of responsibilities for all developments over $3 million. I expect that once councils realise what is happening here they will be very unhappy, and they have every right to be. The regulations that I now move to disallow were introduced without consultation and without the support from local councils or local communities. Indeed, the government yet again bypassed its own expert panel on planning reform. These regulations are not one of the panel's ideas; this is purely and simply the minister doing the bidding of the property development industry, which has this unsubstantiated and irrational hatred of local councils' involvement in planning. I mention the government's expert panel on planning reform because that was the process that was established by the government to resolve issues exactly such as this. Questions such as who the decision-maker should be, the basis on which planning decisions should be made, the rights of the community, the rights of developers and third parties and councils, that is the work of the expert panel and yet the government has completely bypassed that process. The expert panel has called for submissions on its latest report entitled, Ideas for Reform, and those submissions close on Friday. The final report is expected by 1 December. Yet, as with the last lot of regulations I sought to disallow, these new regulations have been introduced in haste because, clearly, the government cannot wait for that process to finish. The double standards at work here are quite appalling. For the rest of the community, we are supposed to have faith in the reform process, we attend the roundtable meetings, we lodge our submissions and all the while the government ignores that process and goes ahead with its own reform agenda. Clearly, the government does not trust its own expert panel or its processes, yet it expects the community to. Members will recall that over the last two years every proposal for reform of the Development Act that I have put forward in the Legislative Council has been rejected by the government on the basis that it would be improper and it would be premature for parliament to be considering changes to the planning scheme whilst the expert panel's work is still underway. Clearly, what is good for the goose is not good enough for the gander. Effectively, what the government is saying is that the consultation process of the expert panel is for mugs, that we are to be distracted by going through that process, yet the real action is happening in back rooms with the government introducing regulations without consultation. To the specifics of the motion disallowing these regulations, let us have a look at how they will work. There are always two ways to approach that question. As a lawyer, the first thing I do is I read the words and work out what they say. The next approach is to look at what the government says it intends to do with these regulations, and there is a vast gulf between those two approaches. In terms of the actual words of the regulations, it is quite simple: the only criteria for a development application to be taken away from a local council development assessment panel and given to the state level Development Assessment Commission is that, first of all, it has to be a development worth more than $3 million. That is the first criteria. The second criteria is in two parts: a person called the State Coordinator-General, although I think the rest of us know him as Mr James Hallion, has to determine that a development is of economic significance to the state or he has to determine that a development is of a type the assessment of which would be best achieved under a scheme established by the department of the minister to facilitate the assessment of such developments. Now, translating that into plain English: any development worth more than $3 million that a state public servant believes should be taken away from a local council can be taken away. It is that simple. In fact, it is slightly worse than that because it is not just Jim Hallion as the Coordinator-General, it is any number of public servants that the government inserts as assistant coordinators-general because the development regulations basically provide for an unlimited number of assistants and the Coordinator-General, Mr Hallion, can delegate to any of his assistants the ability to effectively call in any development worth more than $3 million and take it away from the local council. So, that is what the law says: pretty much unfettered discretion in the hands of public servants to decide who is the assessment authority. I should point out that there is no appeal or challenge or any way that that assessment can be called into question. When you look at what the government says it is going to do, the first thing it does is it sort of admits that it is on a roll; it admits that it got the last two regulations through without too much grief and so it is having another go. To quote the government's information sheet that accompanies the regulations, it states: To support our economic reform agenda, the government has expanded the role of the State Coordinator-General and the successful case management approach that has been applied to planning and assessment for developments in the Adelaide City Council and inner metro council areas. This new approach is intended to streamline the process and unlock red tape and delays in dealing with land use assessment bodies. These reforms have the potential to unlock and significantly speed up the delivery of in excess of $2 billion worth of private sector investment in our state that will help with economic stimulation and job creation. When you read that you think: how could anyone oppose any of that? But underlying those words is the falsest of false assumptions, and that assumption is that development is not going ahead and the reason it is not going ahead is that local council development assessment panels are knocking it back or making life miserable or not doing things in a timely manner. Yet the government has not provided one iota of evidence that any of those concerns or fears are justified. In fact, it is a mythology that has developed. When you talk to planners, as I do, who work in this area, the delays tend to be delays with other government agencies not getting their referral reports in on time. I cannot believe that changing the primary decision maker all of a sudden makes these referral agencies snap to and do their job properly. If there are delays they are overwhelmingly at the state level, not at the local council level. Under the heading 'What projects are eligible?' the government refers to the $3 million figure. It says: Proponents will need to demonstrate to government that they have a viable business case to deliver the projects and associated jobs. That is hardly a high hurdle for a developer to reach. Under the heading 'What powers does the Coordinator-General have?' it says: The Coordinator-General will also have the ability to call in projects for approval by the Development Assessment Commission should these private developments not be dealt with appropriately by local government in a timely manner, or the Coordinator-General considers the developments to be of economic significance to the state. What that means in practice is that effectively any developer who has a big project—it could be a big house worth $3 million; chances are that it is more likely to be a commercial or an industrial development—will make an assessment about whether they would prefer to deal with their local council or with the state government. If they elect to deal with the state government it would be pretty hard to see the state government knocking them back. There is certainly nothing in the regulations that limit the discretion of these call-in powers. That is why I say that potentially every development in this state worth more than $3 million has now been taken out of the hands of local councils. My concern is that not only has the government ignored its own process for planning law reform but it has now effectively put out a challenge to all local councils and put them on notice that their role in the planning system is now very uncertain. Another issue that was raised with me just recently is that these call-in powers for developments of $3 million and over could well be used to undermine the environmental impact assessment process under the Development Act because, as all members would know, the only trigger for an EIS (an environmental impact statement) under South Australian law is for the minister to declare something a major project or a major development. What we might see is that whilst the use of that power has been fairly random—I think would be the kindest way of putting it—it may well be that many projects that do deserve to be put through the scrutiny of an EIS might now be just sent to the Coordinator-General and then passed on to DAC. So they may well be assessing large-scale developments with no environmental impact assessment. The approach that I intend to take with these regulations is the same as I took with the previous regulations; that is, as soon as I discovered that the regulations were on the statute book I moved very quickly. I now need to consult local councils and find out what their views are. The informal chats I have had so far indicate that there will be a huge amount of opposition within local government, but I do need to consult with them formally and I wish to put their views on the record. To that end, I now seek leave to conclude my remarks. Leave granted; debate adjourned.