Bills

Planning, Development and Infrastructure Bill

Committee Stage

In committee.

(Continued from 9 February 2016.)

Clause 60.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Emp–4]—

Page 53, line 23—

Delete 'Minister must, after consultation with the Commission' and substitute:

Commission must, after seeking the advice of the Minister

This group of amendments, Nos 7, 8, 9, 10 and 11, is in relation to the special legislative schemes. They will enable the establishment of state planning policies to ensure that the planning and development system takes into account the objects of other acts. These acts are already caught up similarly under the Development Act—for example, the River Murray Act, the Adelaide Dolphin Sanctuary Act, the Marine Parks Act, and the Arkaroola Protection Act, listed in clause 11 of the bill.

These government amendments, also newly inserted in response to a request to clarify the intent in relation to the role the state planning commission, will place responsibility for the development of the special legislative schemes with the commission rather than with the minister, although final approval will be issued by the minister.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Before I call the Hon. Mr Ridgway, my advice is that the minister can move amendments 7, 8, 9 and 10 all together if he would like to, but amendment No. 11 has to stay separate.

The Hon. K.J. MAHER: I will proceed that way. I move:

Amendment No 8 [Emp–4]—

Page 53, line 30—Delete 'Minister' and substitute 'Commission'

Amendment No 9 [Emp–4]—

Page 53, line 33—

Delete 'Minister may, after consultation with the Commission' and substitute:

Commission may, after seeking the advice of the Minister

Amendment No 10 [Emp–4]—

Page 53, line 35—Delete 'Minister' and substitute 'Commission'

The Hon. D.W. RIDGWAY: I indicate that the opposition is happy to support the government's amendments. I think I said the last time that we sat that where we can take some of the responsibility away from the minister and vest it with the commission the opposition will support that, so on that basis we will be supporting these amendments.

Amendments carried.

The CHAIR: We now move to the Hon. Mr Parnell's amendment No. 33. I remember that the Hon. Mr Parnell pointed out that there was an error, where it was listed as clause 56; it is actually clause 60, page 53, lines 37 to 41, and page 54, lines 1 and 2. I flag to the committee that there is also an amendment in the name of the minister that fits within this. Initially, I will give the call to the Hon. Mr Parnell.

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

Amendment No 33 [Parnell–1]—

Page 53, lines 37 to 41 and page 54, lines 1 and 2—Delete subclause (4)

The intent of this clause makes a lot of sense. It is about incorporating into our land use planning system some regimes for the protection or management of land that exists in other bits of legislation, and the minister referred to the River Murray Act, then there is the Dolphin Sanctuary Act and, one of my favourites, the Arkaroola legislation.

The Greens certainly support the intent of clause 60. The reason I think subclause (4) needs to be deleted is that, effectively, it says that whatever interpretations the government chooses to give to those other statutory schemes, however it chooses to interpret those other pieces of legislation, when it comes to writing a state planning policy then that policy does not have to go through any further steps and does not have to come to parliament, for example—they can just do it.

That puts these policies under clause 60 in a very different category from the policies, for example, under clause 68: the design quality policy has to go through a level of scrutiny and has to go to parliament. The state planning policy under clause 59, the integrated planning policy, ditto, has to go through a level of scrutiny, including parliamentary scrutiny.

The Liberals inserted a new clause 59A—a most excellent amendment I will say to the Hon. David Ridgway, given that I am probably not on his Christmas card list this morning. That was the adaptive re-use policy and it is a good one. The Greens got in a climate change policy, and I think the Hon. Kelly Vincent got in a universal design principles policy, and all those will have to go through a process that involves some public consultation, including parliamentary scrutiny.

But, under clause 60, the government's rationale seems to be that, because it is a policy that is prepared in relation to a special legislative scheme, that legislation went through parliament, that went through a process and therefore any policy based on that need not go through an extra level of scrutiny. I just do not think that is the way we should go. I think we should treat these state planning policies under clause 60, the special legislative schemes, exactly the same way as we treat all the other state planning policies. One of the paragraphs my amendment seeks to delete is the paragraph that states 'does not need to be referred to the ERD Committee under this Part'.

The ERD Committee, that hardworking committee that met this morning, as it turns out, I think would be very interested to see what state planning policy the government has written based on other pieces of legislation, and they should be able to give that the once over. So, that is the reason why I have sought to have subclause (4) deleted.

I will just make the point that, because of the confusion over the numbering, this features as an amendment to clause 56. People might say, 'The LGA opposes this amendment.' Had it been the deletion of subclause (4) in clause 56, they would have been quite right because it would have undone heritage protection, and that is certainly not what we want to achieve. If people are thinking, 'The LGA didn't like it,' that was because they not unreasonably assumed that I was trying to delete heritage protection, because that would have been the effect of undoing clause 56(4), but basically deleting clause 60(4) means that any policies written under the special legislative scheme provision will have to go through exactly the same public consultation and parliamentary process as every other state planning policy.

The Hon. K.J. MAHER: I move:

Amendment No 11 [Emp–4]—

Page 53, after line 38—Insert:

(aa) does not have effect unless it is approved by the Minister by notice published in the Gazette; and

It might be easier, in speaking to explain this, to respond to the Hon. Mark Parnell's amendment. This is a difference of opinion. It is the government's view that it does not require parliamentary scrutiny because the policy is derived from acts that have already been passed by parliament. I note that the Hon. Mr Parnell is of a different view, but that is the government's view.

The Hon. D.W. RIDGWAY: I have a question of the Hon. Mark Parnell on some of the notes I have in my folder here. In relation to your amendment, I will read what it says: 'The state planning policies that are to implement a special legislative scheme still will be referred to the ERD Committee.' These may have been some notes that you provided to us as your explanation. It says: 'go through a proper process of consultation and potential disallowance'. On the disallowance process, can you just refresh my memory? Is that a motion before both houses of parliament or is it just a motion by one member of parliament?

The Hon. M.C. PARNELL: I thank the honourable member for his important question and, like him, I am itching to get to clause 71, where we get to the subject of parliamentary scrutiny. The reason I have said 'potential parliamentary disallowance' is that, of course, this current bill effectively replicates, with some minor exceptions, the disallowance process under the existing legislation; that is, you have the gatekeeper being the ERD Committee. If the ERD Committee resolves that one of these planning documents should be disallowed then, only if the ERD Committee so resolves, it then goes to both houses of parliament and either can disallow it. That is basically the status quo. That is the system we have currently. I am actually seeking to amend clause 71—

The Hon. D.W. Ridgway: Which you are always trying to do.

The Hon. M.C. PARNELL: —which, the member reminds me, I always try to do. I have tried influencing the membership of the ERD Committee and the powers of the ERD Committee. I am now about to try to bypass the ERD Committee, but we will get to that when we get to clause 71. It is not that the committee does not have valuable work to do but, in my view, it should not be the exclusive gatekeeper.

I know it is a longish answer to your question but, on the potential disallowance, if the remainder of this bill, and especially clause 71 as drafted, comes into operation, the member should be in no doubt at all that no state planning policy will ever be disallowed, just like no development plan has ever been disallowed since 1994 when this act came into operation, because, when you have a government-controlled gatekeeper, that committee always does the right thing by the government, and motions to disallow planning instruments never succeed in the ERD Committee—that is just the way it is. That is a discussion we will have when we get to clause 71, but I think it is probably best described in the context of this amendment as a vain hope. It is not particularly a live issue at present.

The Hon. D.W. RIDGWAY: I indicate the opposition will be supporting both the government's amendment and the Greens' amendment.

The Hon. M.C. PARNELL: No, you cannot, because I delete the whole subclause.

The Hon. D.W. RIDGWAY: Well, in that case, I will make a decision on the run that we will be supporting the government and not the Greens.

The Hon. M.C. Parnell's amendment negatived; the Hon. K.J. Maher's amendment carried; clause as amended passed.

Clause 61.

The Hon. K.J. MAHER: I move:

Amendment No 12 [Emp–4]—

Page 54, line 5—Delete 'Minister' and substitute 'Commission'

Amendment No 13 [Emp–4]—

Page 54, line 9—Delete 'Minister' and substitute 'Commission'

Amendment No 14 [Emp–4]—

Page 54, line 21—Delete 'Minister' and substitute 'Commission'

Amendment No 15 [Emp–4]—

Page 54, line 30—Delete 'Minister' and substitute 'Commission'

The government's amendments, also newly inserted in response to requests to clarify the intent to empower the state planning commission, will place responsibility for the preparation of regional plans for any planning region that is outside the area for which a joint planning board is being constituted with the commission rather than with the minister.

Regional plans are effectively equivalent to volumes of the planning strategy under section 22 of the Development Act. They already exist in relation to, for example, the 30-Year Plan for Greater Adelaide, the Eyre and Western Region Plan, the Far North Region Plan, the Mid North Region Plan, and the Murray and Mallee Region Plan.

Amendments carried; clause as amended passed.

Clause 62.

The Hon. K.J. MAHER: I move:

Amendment No 16 [Emp–4]—

Page 55, line 4—Delete 'Minister' and substitute 'Commission'

The planning and development code effectively replaces the current development plans throughout the state with one code, which allows for consistency, while being cognitive of the finer details. The code, like all designated instruments, will remain subject to the consultation and parliamentary scrutiny requirements of clauses 70 and 71.

The amount, also newly inserted in response to requests to clarify the intended role of the state planning commission, will place responsibility for the preparation and maintenance of the planning and design code—effectively, the rulebook proposed to be developed for the new planning system—with the commission rather than the minister.

Amendment carried; clause as amended passed.

The ACTING CHAIR (Hon. J.S.L. Dawkins): There is a stranger who cannot be in part of the chamber.

Clause 63.

The Hon. D.W. RIDGWAY: I move:

Amendment No 2 [Ridgway–2]—

Page 55, after line 21—Insert:

(iv) support the adaptive re-use of buildings and places in cases determined to be appropriate under the Planning and Design Code; and

This is a further amendment to the adaptive re-use of buildings.

The Hon. K.J. MAHER: This amendment is one of a number moved by the opposition on adaptive re-use, which the government supports.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 17 [Emp–4]—

Page 55, line 25—Delete 'Minister' and substitute 'Commission'

Amendment No 18 [Emp–4]—

Page 55, line 28—Delete 'Minister' and substitute 'Commission'

As mentioned previously, the planning and design code is intended to replace and consolidate many thousands of pages of development plans and also to incorporate some details around interpretation and the like which already exist in regulation in one location.

The code will provide the rules which apply to each of the layers, including zones already in use—for example, residential zones subzones cannot be referred to as policy areas, like residential foothills subzone—and overlays, like bushfire risk or flood. Overlays will be used to address the specific policy issues that cover multiple zones.

The government's amendments are also newly inserted in response to requests to clarify the intended role of the state planning commission. It will enable the commission rather than the minister to specify additional content for the planning and design code.

Amendments carried.

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

Amendment No 34 [Parnell–1]—

Page 56, line 6—Delete 'or numeric'

This amendment seeks to remove the two words 'or numeric'. It may seem a very odd couple of words to remove, but I think it actually goes to the heart of part of the problem with this bill as it has been drafted.

If we go back to first principles, the whole nature of this bill is to tell the community that they need to pay attention to planning policy, they need to have their input at the time the planning rules are being written. With planning rules we are talking, in particular, about the planning and design code, which is going to be the document that sets out the detailed zoning. It is going to set out building heights, for example; it is going to deal with setbacks from the street; it is going to deal with a range of numeric issues.

Subclause (4) provides that the planning and design code (and I paraphrase ) can include as much wriggle room as the government wants in relation to technical or numeric requirements. To put it in a real, live example (and I have used it before but I think it is a good one) I will use Unley Road. With Unley Road, the government negotiated with the local community and it negotiated with the local council for a five-storey zone along Unley Road—five storeys, count them, take one glove off and count them, five storeys. What got approved was seven storeys. Why were seven storeys approved in a five-storey zone? Because the government allows wriggle room.

You would think that would not be so bad if the public were able, for example, to go to the umpire and say, 'Come on, umpire, don't let them get away with saying that seven storeys aren't seriously at variance when the rules are five.' Of course, it is seriously at variance. However, the government has written the current act and this bill in a way such that the community never has the right to go to the umpire in relation to these sorts of matters, and they write into the bill that the planning and design code can include wriggle room in relation to technical and numerical requirements.

It does not say, for example, 'not by more than 10 per cent'. It does not put any real limitation. It just states that the planning and design code might include 'provisions that provide for the adaptation or modification of the rules that apply in relation to a specified zone or subzone' by permitting the variation of a technical or numeric requirement within the specific parameters.

It all sounds very complicated, but what it basically says is that in the planning and design code they can write rules that allow for wriggle room—allow for far higher, far closer to the street or further back from the street. Whatever the problem might be, they are allowed to tinker with the numbers. The question that arises is: what confidence can the public have if we are engaging with the government in writing planning rules when a wriggle room clause is put in which says 'and if they want to change the numbers they can'?

It actually goes to the heart, I think, of the government's true intention in this, that is, to have as little public input as possible. Yes, flexibility is something that we need to incorporate, but this would have been a far more palatable clause if it said that any attempt to push the envelope by more than a certain degree, however defined—maybe it is 5 per cent, 10 per cent or whatever—would trigger some public participation rights or trigger the ability to take it to court. That actually would have been a good outcome.

In other words, if the way that Unley Road had been resolved was that the Development Assessment Commission had said, 'Okay, it's a five-storey zone. Put in a five-storey building, you'll be okay. There won't be appeal rights. People can have their say about the design details, but five storeys in a five-storey zone is okay,' under this provision, and under the current provision, effectively seven storeys become okay and it is equally protected.

If this clause had been written in a way which said, 'If you come to us, you'll get five, no questions asked (or not many questions), but if it's seven the neighbours will all be able to appeal,' then that would be a sensible provision because what it would say is that the planning rules actually mean something and that people have a right to rely on them but that, in the interests of flexibility if someone wants to push the envelope, let them, but it is going to trigger public rights. That would have been a far better mechanism.

That is a complex set of rules. I have not drafted that. I have basically said to get rid of the word 'numeric' so that at least it will stop them tinkering with distances, heights and number of floors. That is the intention. If they want a seven-storey zone, zone it for seven storeys; do not zone it for five and hoodwink the public into thinking that five will be okay and then allow people to build seven with no public rights. That is the evil that I am trying to overcome here.

The Hon. K.J. MAHER: I indicate that the government opposes this amendment which, in the government's view, would unreasonably limit the capacity for the code to allow for councils to provide for local variations of a technical or numeric nature to recognise the unique character attributes of that area.

The code is subject to very significant requirements for consultation under the charter—for example, the council's ability to consult the community of any changes under clause 44, the community engagement charter, clause 45 and, of course, the role of parliament under clause 46. As well, these checks and balances are aimed to ensure this is not used as very blunt means to circumvent the policy intent of the regional plan.

The Hon. D.G.E. HOOD: Family First will not be supporting this amendment. It comes down to a philosophical position ultimately. The Hon. Mr Parnell, as he usually does, has made his case quite succinctly and somewhat persuasively. That aside, I think that you cannot get past the fundamentals of what is happening here. Our fundamental position is that we would see no problem with seven storeys, for example, on Unley Road, regardless of whatever zoning might apply. We have come to a point in this state where we need to release the shackles, not tighten them, and fundamentally that is the reason we will not be supporting this amendment.

The Hon. D.W. RIDGWAY: Welcome back, Mr Chairman. I have a quick question of the mover. He talked about some wriggle room and said 10 per cent. If you have, for example, a five-storey building, 10 per cent is half a floor. I understand what his intent is, but to have some wriggle room that is practical, that makes sense, what sort of wriggle room would he envisage in his mind as being satisfactory so that it is not overriding the community's view but actually does give a bit of room to wriggle? I am in some sense a little bit in agreement with the Hon. Dennis Hood, in that we actually need not to keep constraining activities but allow them to happen. What would you see as acceptable wriggle room?

The Hon. M.C. PARNELL: It is a very reasonable question, and I cannot give a clear answer.

An honourable member interjecting:

The Hon. M.C. PARNELL: No, because I just threw 10 per cent out there. What I was getting at was that if you have a development that is generally regarded as a good development—everyone realises that this particular area is crying out for this sort of development—but it happens to be very slightly out, the rules at present talk about 'seriously at variance' but there is no numerical or percentage basis on what that means. Using the current 'not seriously at variance', the Development Assessment Commission said that seven storeys are not seriously at variance with five. I think that is over the top. If they had said, 'Keep it at five, but you can put in another underground car park or something,' then maybe that would have been within the 'not seriously at variance' test.

It relates also to what the Hon. Dennis Hood said. I have not expressed a view about whether seven or five or 13 or two is the appropriate height for Unley Road. Others who live closer have strong views. Let's say I agree that seven is just right, that seven is a good height for Unley Road; let's say I do. I would want the government to write 'seven' into the planning scheme. What I do not want is, having written seven into the planning scheme, for there to be a nudge, nudge, wink, wink, 'We know that there's wriggle room. We know that you can just add two to whatever number is there.' That is what I am trying to overcome.

I admit that it is a really crude way of doing it, just by removing the words 'or numeric'. It is very difficult. What I do not want is for the public to be hoodwinked when they are consulting with government about what the zoning rules should be and find that you add 20 per cent or 30 per cent to any number that you find. That is why I say that, when it comes to the wriggle room clause that may well be inserted into the planning and design code, there is still the ability for technical changes.

But if they have gone to the trouble of putting a number in it—a number of storeys, a number of car parks, a percentage of open space that is required for the new residence—the number should stick. If we think it should be a different number, write a different number in, but do not just use the wriggle room clause to deliver seven storeys in a five-storey zone. I want to see seven storeys in a seven-storey zone. That is what I am trying to get at with this amendment.

The Hon. D.W. RIDGWAY: I indicate that at this point in time the Liberal opposition will be supporting the Hon. Mark Parnell's amendment. We had some long discussion in our party room and we will be supporting it at this point.

The Hon. J.A. DARLEY: I indicate that I will be supporting the government's position. I can cite an example on Greenhill Road, on the southern end near to Fullarton Road, where in recent times the government increased the height limit to 10 floors. In my experience, no-one would build 10 floors today. Then all of a sudden the 10 floors were reduced to three, and that seems to be almost as ridiculous. Common sense should prevail in that situation, so I will be supporting the government's position.

The Hon. K.L. VINCENT: Just briefly, Dignity for Disability will support the Hon. Mr Parnell's amendment on this. We think that he makes a very persuasive case. I also take the Hon. Mr Hood's point about not wanting to go too far in terms of restricting development, but at the same time, with respect to him, he might not have a problem with seven floors on Unley Road (I think that was the example he used), but other people might. Ultimately, I think the crux of this bill is about giving people greater control over the development that happens in their communities and giving them some avenue for recourse if something they do disagree with does go ahead. For that reason, we support the Greens' amendment in this particular case.

Amendment carried; clause as amended passed.

Clause 64.

The Hon. K.J. MAHER: I move:

Amendment No 19 [Emp–4]—

Page 56, line 33—Delete 'Minister' and substitute 'Commission'

This amendment is also inserted in response to a request to clarify the intent to empower the state planning commission and will enable the commission, rather than the minister, to develop or adopt guidelines for the interpretation or application of criteria set out for designation of a local heritage place in the planning design code. The commission will be required to seek the advice of the South Australian Heritage Council in developing or adopting guidelines for this purpose.

This clause represents no change from the existing Development Act, section 23(4), regarding the criteria for listing, and section 25(12), requiring consultation if a person's land or property is proposed as a local heritage place. The clause also does provide for more consultation by requiring that, if a place is proposed as being subject to a heritage, character or preservation policy, all affected landowners must be consulted. In other regards, heritage is considered by the government as a sufficiently important topic that, if it is to be revised, it should be subject to its own review.

The Hon. M.C. PARNELL: I will be supporting the government amendment on this, but I do have some questions on this clause and some observations as well. My first question is whether the government can guarantee that every place that is currently listed as local heritage under the current development plans will be transitioned as local heritage places into the planning and design code.

The Hon. K.J. MAHER: I am advised that is the intent. It is a matter for implementation, but that is certainly the intent.

The Hon. M.C. PARNELL: I thank the minister for his answer and I am very pleased to hear it. I am not a suspicious person by nature, but I know, for example, that when they rewrote the federal heritage protection rules a very big list when transitioned to the new regime became a very small list; in other words, a lot of places got dropped off.

I might say at this point that my original intention was to move the deletion of clause 64. Before people think that the Greens do not care about heritage, the difficulty was that we do need to keep the level of protection that is currently there. I do not have the exact words of the expert panel in front of me, but they talked about moving heritage onto an entirely new footing. This does not do that. The minister suggested just now, I think, that future legislation is something that is likely to happen in relation to heritage.

I would strongly urge the government to sit down with the National Trust and other heritage groups and try to negotiate this new way of dealing with heritage. For example, one position that has been put to me is: get rid of local heritage out of, effectively, local planning schemes. Get rid of it out of there, move it all to the state level and maybe have a subdivision of state heritage called 'local heritage', but use some of the provisions in the current Heritage Places Act, which include public nominations—a whole range of things that do not currently exist here. I think this is an area that is crying out for reform.

The other point I would make, as both a member of parliament and a member of the Environment, Resources and Development Committee, is that I often receive correspondence from people in relation to local heritage. The correspondence falls into two categories. Category A is, 'Those (expletive deleted) people on the council have listed my place as heritage. It's an outrage. It must be removed from the list instantly.' Another form of correspondence we get, for example, is the good citizens of Prospect are writing to many of us at the moment saying, 'The heritage experts recommended over 80 properties for local heritage listing and only 20 are being progressed.' People are complaining that that is a sellout of the system.

I have been to a number of hearings of the Environment, Resources and Development Committee where we have to try to grapple with these issues as non-heritage experts. Because the heritage list is effectively at the back of the development plan—it is an appendix or an attachment to the development plan—changing the list is effectively a Development Plan Amendment. Under the act, development plan amendments go to the environment committee and the environment committee is not the best placed committee to say whether the house at number 13 is deserving of local heritage listing or whether it might be better off as state heritage, be part of the national estate or maybe it is world heritage. It is a difficult thing for members of parliament to resolve.

But what does stick in the craw is where you have this heritage consultancy industry of people who are expert in the field and who make recommendations and then, on political grounds, their recommendations are not accepted.

I remember Adelaide City Council some years ago had pretty much a blanket position that if a person did not want their house heritage listed, they were not going to put it on the list. In other words, it became an owner nomination. If you were happy to have it on the list, it got on the list. If you were not happy, it did not.

You have to remember that the reason we protect heritage is not for the benefit of the individual landholder, it is for the benefit of the community. The community benefits from having an historic precinct or historic houses and that is one of the reasons we actually impose restrictions on the property owner.

People might say that any restriction on property owners is onerous. Welcome to the bill. This planning legislation is all about putting restrictions on property owners. It is about the public interest interposing itself between individuals and their natural inclination to make as much money as they can from their property. If there was money to be made building abattoirs in Burnside then people would do it. The planning system says that is not such a good use of the land in Burnside so we do not allow it. That is what the planning system is all about.

People who own heritage properties pay whatever they pay on the basis that they know it is heritage listed and they know they cannot knock it down and build a block of flats. That just comes with the turf. A lot of people are very proud to live in heritage houses. They love it. They love the fact that they are listed. They do what they can to maintain the heritage values. I just make the point that it does not make sense to delete clause 64 because we need to keep a system in place until the new system is introduced.

I would urge the government, as soon as possible, to introduce heritage legislation and to consult with the National Trust and other heritage groups and give some consideration as to whether the listing of local heritage in planning schemes is the right way to go because there are a number of people who think it is not.

The Hon. D.G.E. HOOD: I thank the Hon. Mr Parnell for his contribution. Obviously, as individuals we have vastly different views on this issue, but I welcome the discussion. I would just like to provide a brief response to some of what the Hon. Mr Parnell said, if I may, because, of course, like every argument, there are two sides to it.

I think the Hon. Mr Parnell used the words 'heritage experts' when he referred to the proposed DPA at Prospect at the moment where there were originally 80 or 83 properties, or something like that, proposed to be listed by the Prospect city council. The government has rejected a large portion of that, which I applaud by the way, and have got it down to 22, 23 or 24 or something like that now. But let me give the chamber a bit of an example of what these so-called heritage experts wanted to list on the heritage register out at Prospect.

I have a disclaimer up-front. I do not live in the City of Prospect. I lived there for about 20 years. I live in North Adelaide these days, but I do own property in Prospect and, to be absolutely explicit about it, one of the properties I own out there was to be listed on this so-called heritage register at Prospect, but I will not talk about my property yet. I will get to that in a moment. I will talk about another one.

One of the ones that was to be listed on the heritage register, according to the proposed DPA in Prospect, was a cream brick, 1960s, three-bedroom, one-bathroom, brick and tile home with no features, no heritage and built in 1966 or 1967. This so-called heritage expert decided that this was of heritage value because it was built during a period when that style of building itself was significant. There may be some that think that is appropriate. I think it is rubbish, frankly.

I will turn to my own property out there which I think provides another good example. These are heritage experts, we are told. My own rental property out there was listed as a 1920s villa. In fact, we know for certain that it was built in 1949, it is not a villa and, of particular note, the verandah on the front of the building was documented by the so-called heritage expert as having great heritage significance. By the way, the chain wire fence at the front of the property, which you would use to build a chicken coop, frankly, was somehow significant as well.

Anyway, the verandah at the front of the property had arches, and it was deemed to have been built in the 1920s and to have great heritage significance. Unfortunately for this heritage expert, the previous owner of the house informed me that they built it in 1979 and had receipts to prove it. It was absolute fantasy, made up, not true. I do not know what the Prospect city council paid this genius who did this heritage work in that area, but they have a lot of questions to answer. No doubt this person charged a small fortune to do this and, frankly, largely just got it wrong.

Then a petition was run, completely separate from me, by a group of local residents who decided they would then petition the area to ascertain who was opposed to the DPA. I forget the number now—I may stand corrected on this—but in the order of 60 per cent of the properties (I am probably going under the figure, to be fair, as I think it was higher, but in the order of 60 per cent) directly affected by this proposed heritage zone objected to it, yet they are still planning to go ahead with it, and I understand that the mayor was meeting with the minister yesterday about it.

So, that is the real-world scenario of what actually happens. My property, listed as a 1920s villa, was built in 1949. A 1960s (1966-67) cream brick and tile home was to be listed as a great value heritage property in this area, when of course it is not. I spoke to the individual who owns that cream brick house—knocked on his door and spoke to him. He is a gentleman in his 50s, I presume, and he told me that it was the intention to one day demolish this property and build a couple of semi-detached properties as part of his retirement plan. If this DPA goes through and his property maintains that listing (which I do not think it will, thankfully—it seems like common sense has prevailed), he would be prevented from doing that, and I can tell you that his retirement would look vastly different.

There are all these examples where the theory and practicality are massively different. We are not dealing with amendments, so I do not have anything to either support or oppose the clause at the moment, but it is important that members understand that this is the real world of what is actually happening. In this one example 80-odd properties were listed down to 20 something. I am not sure of the merit of those last 20, frankly; I wonder if there are still mistakes in those last 20, but certainly the original plan was nothing short of crazy, in my view.

The Hon. M.C. PARNELL: I have a very quick response, and I absolutely agree with the Hon. Dennis Hood that there is always two sides. That is why I prefaced my remarks by saying that it is difficult for us as members of parliament, if we do not have particular training in an area, to necessarily fully appreciate the heritage values. The cream brick house example is an interesting one, because most of us would groan and think, 'Why on earth would you do that?'

I do not know the place or what was the report, but I had a bit of a road to Damascus moment a year or so ago when speaking to a member of the National Trust, Marcus Beresford, who many people might know as he is an active member of the community and very interested in heritage. When I said to him that a building he was seeking to protect I thought was rubbish and that the bulldozer was the best treatment, he made the very simple point that, if we do not protect any 50-year-old buildings, none of them will ever get to be 100 years old, when all of a sudden we do think that they are worth protecting.

I am not saying that that means you therefore protect every cream brick veneer house in Adelaide, but it raises an interesting question about at what point you say, 'Well, there is only X number left, we have demolished most, they have to be judged in their context as well.' So, whilst I am not defending the cream brick veneer example, I just make the point that, if you do not protect anything from each architectural generation, then you will not have the full suite in 100 or 200 years' time, so I just make that point as well.

The Hon. D.G.E. HOOD: I thank the Hon. Mr Parnell for his contribution. I know that it is a sincere position he holds, and obviously we have different views on this. I would just add that, in speaking with some of the senior people at the council there, including the mayor, they are making an argument that 1970s properties should be heritage listed because they have a particular style to them. I reject that. I do not know how other members of the chamber feel about that. That is legitimate and what they are aiming to do right now as the next phase of their DPA.

I do not know how much work has been done to that. I do not want to sort of overstate it, but certainly the mayor himself has said to me that he believes there is a place for heritage listing 1970s properties, particularly so-called art deco styles or other 1970 properties along those lines. I am not overstating it; that is what he said to me. How far they have progressed with those plans, I do not know, but that is the next stage, if you like, in this whole discussion.

The Hon. D.W. RIDGWAY: While we are having this discussion around heritage, I thought I might just add a couple of comments. Interestingly, I think it was the former mayor of the City of Marion, Felicity-ann Lewis, who said to me, 'Of course, the cream brick 1950s houses are typical of the City of Marion, and that is local heritage.' I am not sure she was going as far as to say they should all be listed, but that is one of those sort of, if you like, suburbs as Adelaide grew, so I have some sympathy with what Mark Parnell was talking about. There is some character in part of Adelaide. I live in a house built in 1965, I think, so it is not quite that old, but it is 50 years old. I think the additions that I have made to it are worthy of listing but not the house itself.

The Hon. M.C. Parnell: The pizza oven?

The Hon. D.W. RIDGWAY: The pizza oven and all the other lovely things that my friends and family enjoy. I guess this is either a question to the minister or just a comment. I cannot remember the actual street number, but on King William Street there is a building where the roof is heritage-listed. I assume it is not just the corrugated iron but the truss work and whatever is underneath. You can only see it if you are in the high-rise building on the other side of the street, but the owner cannot do anything with the building because the roof is listed.

I would have thought, being a practical type, that the easiest way to deal with that is to get a very big saw, cut the roof off, and you can put as many storeys on as high as you like, build whatever you want underneath and still preserve the roof, if it is so important that it has to be preserved. I assume the reason it is listed is because of the trusses and that the actual structural part of it is probably 100 years old or more. But it was interesting; you cannot see it, so it is not like a building you can look at. It was the roof, and the only way you can see it is to be on the 10^th storey of the building on the other side of the street and look down at the roof.

Again, I think we all agree we should preserve what is worthy of preservation but, at times, it seems that the rules are that prescriptive that, in preserving the roof, which may well be very worthy of preservation, that landowner was constrained in what they could do with the property.

The Hon. K.J. MAHER: I cannot give a response to the honourable Leader of the Opposition's direct comments about a particular roof. What I can say in general is I am sure that the government will be happy to look at any changes to the heritage regime and take into account people's views. I am quite certain that the leaders of the Greens and Family First parties will not wait to be consulted and will put their views very forcefully.

Amendment carried.

The Hon. D.G.E. HOOD: I move:

Amendment No 1 [Hood–1]—

Page 57, after line 3—Insert:

(4) In addition, an area cannot be designated under an amendment to the Planning and Design Code as constituting a heritage charter or preservation zone or subzone unless the amendment has been approved by persons who, at the time that consultation in relation to the proposed amendment is initiated under the Community Engagement Charter, constitute at least the prescribed percentage of owners of allotments within the relevant area (on the basis of 1 owner per allotment being counted under a scheme prescribed by the regulations).

(5) In this section—

prescribed percentage means 51% of relevant owners of allotments within a relevant area.

I think perhaps the easiest way to handle this is simply to read it out and then explain it. It is not a complicated amendment. I think people probably have a fair understanding of it already but, just for the sake of the record, my amendment seeks to insert subclauses (4) and (5). Subclause (4) reads:

In addition, an area cannot be designated under an amendment to the Planning and Design Code as constituting a heritage charter or preservation zone or subzone unless the amendment has been approved by persons who, at the time that consultation in relation to the proposed amendment is initiated under the Community Engagement Charter, constitute at least the prescribed percentage of owners of allotments within the relevant area (on the basis of 1 owner per allotment [to deal with that issue] being counted under a scheme prescribed by the regulations).

Subsection (5) reads:

In this section—

prescribed percentage means 51% of relevant owners of allotments within a relevant area.

Basically, what this amendment would do is this: subject to the consultation period that is required under the community engagement charter, councils, under the community engagement charter, would be required to survey an area. If they were wishing to apply a heritage conservation zone or any other sort of building restriction, they would need to get 51 per cent agreement, essentially—51 per cent of the property owners in that area actually affected. So, the people outside are not relevant to the discussion, in terms of that 51 per cent. They are obviously welcome to have their views, but in terms of forming 51 per cent, it is only the people within that particular zone who would be considered.

For simplicity, we have made it one person per household. That would mean if the area was to cover 100 houses, you would need 51 of those property owners to agree that it should go ahead. That seems reasonable to me. If you are going to put a heritage subzone on a particular area, at least half of those people should agree with it; that is the bottom line. If you were to vote against this, effectively what you are saying is that a minority of people should be able to overrule the majority in terms of what happens to their own properties. I do not agree with that.

The Hon. K.J. MAHER: I thank the honourable member for his contribution; however, in the view of the government, zoning decisions should not only be determined by those who enjoy the local property franchise and who are accorded voting rights in the system. It should also be based on sound and logical policy objectives.

Heritage matters in particular should not be reduced to a question of percentages, but should include and take into account heritage expertise and applying the right criteria. While understanding the intent of the Hon. Dennis Hood's amendment and appreciating the background that the honourable member has put on the record, not just in this clause but in previous clauses, the government cannot support the amendment as drafted.

The Hon. M.C. PARNELL: I appreciate the Hon. Dennis Hood's intention. He has given a lot of weight to the rights of the people who own properties in an area that is potentially going to be listed as a heritage, character or preservation zone. I think it is an interesting approach. It is effectively a veto clause: if half the people do not like it, it is not going to happen.

I would like to extrapolate from that approach. The question might be: should our road be widened? Should the road on which we own property be declared a truck route? Should our homes be rezoned from residential to light industry? You can imagine there are a whole lot of other planning or zoning questions where the affected property owners would think, 'Yes, you beauty; I would love to be able to have a direct vote, and that my neighbours and I can veto a planning change.'

What I am trying to do in my amendments in this bill is to certainly enable the democratic process to be able to veto more bad decisions, and that is why I am going to be pushing very hard when we get to the parliamentary scrutiny clauses. That is an absolute joke at present, and the new system perpetuates that joke. I think that if we do want to empower citizens in relation to planning, there are a number of things that we can do.

Certainly, the ability to go to the umpire is something that is right through my amendments—the ability for people to challenge in the Environment Resources and Development Court—but I am particularly interested in people using the democratic process (the parliamentary process) in order to be able to challenge what people think are bad planning decisions.

To have a 'one property owner, one vote' system and a 51 per cent threshold, whilst I appreciate exactly where it is coming from, I think is misplaced, largely because the whole rationale of heritage protection, I think as the minister has said, is that it is a public interest test. It is not just about the private desires of private property owners, even if they have bought the big block thinking that it is going to be their superannuation policy and that when they retire they will knock down the old bungalow and build the block of flats and that that will be their super and retirement.

I understand the natural desire that people have to maximise the value and use of their property. But, ultimately, the heritage question is over the top of that; it is a public interest test. Whether or not the experts do a very good job—the Hon. Dennis Hood has pointed out some examples where you might question their judgement—ultimately I do not think the final arbiter of these things should be a straw poll of property owners; I think it should be through the broader democratic process, and in particular, through parliament.

If an attempt to zone an area heritage, character or preservation zone is unpopular, I want those residents to be able to go to their member of parliament and say, 'Member of parliament, can you please move, in parliament, to disallow that zoning change,' and let's have that debate through the democratic process. That is what my amendments, when we get to clause 71, seek to achieve.

I am not saying that these people should have no rights: just the opposite. I do not think that case by case, individual property owners exercising a direct right of veto over a zoning decision is necessarily the way to go. It disenfranchises people who, for example, might live in the area but not own property, it disenfranchises people who live around the area but who do not actually live in the zone. I absolutely appreciate where the member is coming from, but I do not think it quite works. If the member is interested in citizens being able to directly knock off a bad planning decision, then when we get to the parliamentary scrutiny provisions, that is the place to do it.

The Hon. D.G.E. HOOD: Just briefly, to answer the Hon. Mr Parnell's question, I am certainly interested in that—that is why I moved this amendment—but I am interested in doing it this way. I think that if you involve the parliament in it, it becomes a more convoluted process. At the end of the day, philosophically I believe that the individuals directly affected should have the biggest say, not any other body, whether it be this parliament or even a council or whatever it may be.

I think those individually affected are the ones who go to work every day to pay for their home. They are the ones who build their life in an individual property, they are the ones who have chosen to invest what are very substantial amounts of money these days in a particular piece of land, wherever it may be. They have borne all the responsibility and they should also enjoy some of the rights and privileges of owning that property; that is, finally, to at least contribute to a say over what happens to their own property.

The Hon. J.A. DARLEY: For the record, I will be supporting the Hon. Dennis Hood's amendment. However, I should indicate that I do have an interest in two properties in a heritage conservation zone at Toorak Gardens.

The Hon. K.L. VINCENT: To assist the council, for reasons that have already been quite well outlined by other members, Dignity for Disability will oppose this particular amendment.

The Hon. D.W. RIDGWAY: The opposition will be supporting the Hon. Dennis Hood's amendment; however, I do have a question. Perhaps I was not paying attention, but it says, 'constitute at least the prescribed percentage of owners of allotments within the relevant area (on the basis of 1 owner per allotment…being counted under a scheme prescribed by the regulations).' I guess it is 'the relevant area' part. Is it part of a suburb, is it the property owners who are directly affected? You could have someone a kilometre away in an area who really has no interest in what is happening but who has a view. I am just interested in his understanding of what that would mean.

The Hon. D.G.E. HOOD: I thank the Hon. Mr Ridgway for his question and also for his indication of support. I think the Hon. Mr Parnell has explained it better than I can but, as I understand it, how this process works in practice is that the council will draw up an area and it will include a certain amount of homes (I have said 100 for the sake of simplicity). Under those circumstances, under my amendment it is literally only those homes that would get a say. However, if more than 51 per cent agree to it going forward, that goes through the normal process, or the community gets involved and has their consultation. Does that answer your question?

The Hon. D.W. RIDGWAY: Yes, thank you.

The Hon. K.J. MAHER: I have outlined the government's position; the government will not support that. For the sake of completeness, since others are making declarations, although we are not supporting the Hon. Dennis Hood's amendment that will change the way heritage gets listed, I have an interest in the State Heritage Plan.

Amendment carried; clause as amended passed.

Clause 65.

The Hon. K.J. MAHER: For the record, clause 65 replicates the current provisions for allowing the planning and design code to designate trees or stands of trees as significant trees based on specific criteria. The provision has been used in five development plans to list trees in addition to those covered or trees controlled more generally through the regulations. This ability, together with the existing regulations relating to regulated and significant trees, is well understood and accepted by the community.

Given this fact, I will signal now that the government, at a future date, intends to recommit clause 3, with the intent that amendments Nos 3 and 4, moved in the name of the  Hon. Mark Parnell, be reversed. The government is concerned that clause 3 as amended will upset the balance achieved in 2011 as a result of changes introduced by the Hon. Dennis Hood, between protecting signatories and allowing homeowners to undertake reasonable and expected development or remove inappropriate trees in inappropriate locations on their property.

The Hon. M.C. PARNELL: On clause 65, I am not at all surprised. I imagine there is a number of amendments that the council in its wisdom passed at the end of last year that the government might want to come back and get a second opinion on. What I will say in relation to significant trees—and I have moved a number of bills and amendments over the years—is that in terms of issues that directly concern people, and if the test of 'concern' is emails into the inbox, significant trees are right up there. Yes, they are contentious. There are people for whom having a significant tree is a barrier to development, and there are other people who, like me—

Members interjecting:

The Hon. M.C. PARNELL: There were a number of people who wept as they saw what happened outside Flinders University. I do not think anyone wept for the dead pine tree in my backyard. As people now realise, whilst it might have been a bit pre-emptive, the parliament was in the process of changing the law, but let's not go there. The law is now that dead pine trees are not protected, as it always should have been.

I will ask a question of the minister in relation to significant trees. Basically, the key provision the minister referred to is the ability to list by name individual trees or groups of trees in the planning and design code. That ability is here. My understanding is that that ability is in the existing regime as well but that not many councils have taken it on themselves to do it; in fact, I think there might have only been one council which went through its neighbourhood and pointed out the trees that it thought should be listed.

The Hon. K.J. Maher: Five development plans.

The Hon. M.C. PARNELL: I thank the minister who, for the record, has said that there are five development plans that actually include lists of significant trees. My question to the minister is: with the new planning and design code, is there an expectation that more councils or even that all councils will do a survey of the significant trees in their municipality and that they will then seek to have them listed in the planning and design code?

The Hon. K.J. MAHER: I am advised that we do not have an expectation. That will be a matter for implementation.

The Hon. M.C. PARNELL: I understand that it will be a matter for implementation and that councils will ultimately be responsible, but could I pose a further question. Does the state government have any thought to itself undertaking a review of significant trees in, say, the metropolitan area to start with, with a view to listing?

The Hon. K.J. MAHER: That will be up to individual councils. I guess the government is neutral on that issue.

Clause passed.

Clause 66.

The Hon. K.J. MAHER: I move:

Amendment No 20 [Emp–4]—

Page 57, line 34—Delete 'Minister' and substitute 'Commission'

This amendment, like the last number, has also been included in response to requests to clarify the intended role of the state planning commission. It will enable the commission, rather than the minister, to prepare design standards that relate to the public realm or infrastructure for the purposes of the act.

Amendment carried; clause as amended passed.

Clause 67 passed.

Clause 68.

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

Amendment No 35 [Parnell–1]—

Page 58, lines 20 and 21—Delete 'either as in force at a specified time or as in force from time to time' and substitute:

as in force at a specified time

We are now into subdivision 5 of division 2. Division 2 deals with all these planning documents called 'planning instruments'. Subdivision 5 contains the related and common provisions. The clause that I am seeking to amend is clause 68. I cannot remember exactly word for word, but it is certainly very similar to something that already exists. It is a sensible provision which enables a planning scheme, for example, such as the planning and design code, to be linked to other documents and to incorporate, wholly or partly, other documents.

I will give you a good example. I think it is regulation 15, from memory, under the current system. A list of, if you like, extraneous documents are incorporated by reference into the current development plans. A good example would be under the National Parks and Wildlife Act: they prepare management plans for each of our parks and those management plans are automatically incorporated into the development plan. If someone—the government usually, because it owns the national parks—wants to develop something in a national park, the test that should be applied is: what does the management plan say about it?

The reason that that is the question is that the management plan has been incorporated under the Development Act into the development plan, and therefore that becomes the question. In other words, being able to link extraneous documents that have been prepared, for example, under other legislation I think does make a lot of sense, but there is a sting in the tail. There are two stings in the tail and I have dealt with one of them in my amendment.

If we look at paragraph (b) of clause 68, it says that a designated instrument—basically a planning document—may:

refer to or incorporate wholly or partially and with or without modification, a policy or other document prepared or published by a prescribed body, either as in force at a specified time or as in force from time to time;

The first sting in the tail is 'prepared by a prescribed body'. We do not know who they will be. It could be any document prepared by the Property Council. I do not think that is their intention. I think their intention is any document prepared by a government agency under another piece of legislation; I think that is what they have in mind. It does not say that. It is anything prepared by a prescribed body.

That is sting in the tail number one. I am not proposing to change that; I am going to rely on the government's good sense. They could say a prescribed body is the Greens' policy platform and that the entirety of that is incorporated by reference into the state's planning laws. That would be an excellent move, but I do not see it happening.

I have not sought to undo that provision, but the bit that I am trying to modify is where it says, 'either as in force at a specified time or as in force from time to time'. The problem with 'as in force from time to time' is that means that these other documents can change—maybe they are documents that change annually, maybe they are documents that change occasionally—and they are automatically incorporated by reference into the designated instrument, as I understand it, without consultation, without any ability for anyone to say, 'Hang on, that's not right. That shouldn't be the case.'

If, for example, we remove the words 'from time to time', and if we limit the incorporation of documents to a document that is 'as in force' at a particular date, then you can name the document and you could say that the zoning rules, the planning and design code for the City of Prospect (we have been picking on Prospect, haven't we?), and incorporate this open space strategy that was prepared, dated 1 January 1916—sorry, 2016. In 1916, there would have been a lot more open space in Prospect; there would have been horses and sheep.

If you do that, I think that is fair enough. People can go to that document. It is a named, numbered, identified document and you know exactly what it says. However, if this clause stays as it is, then you could just say, 'The local planning scheme for Prospect includes whatever the current version of the city council's open space strategy might be.' So they could change it, it would be automatically incorporated and, potentially, people have not had a chance to be consulted on it properly. You would hope that the council would go through the right process under the Local Government Act.

If you took another example of a body that is not obliged to consult in the preparation of their documents, what this says is that any further version of some extraneous document automatically becomes planning law. I just do not think that is right. If a document changes, you then update the planning and design code by saying, 'This document we want to incorporate has changed,' and you go through the proper process for consulting the community over changes to the planning and design code.

The idea of just incorporating by reference an extraneous document where we do not know what is in it, we do not know how it is going to change and it will not go through any further process of public consultation necessarily, I think is a bad outcome. One of the principles of law is that you should be able to know with some certainty what the law is at any particular point in time and, in relation to this act, you should also be entitled to be consulted on and have your say over changes to planning rules.

My amendment seeks to do nothing more than effectively remove that reference to 'as in force from time to time', and the words should be, 'as enforced at a specified time'. By all means, incorporate extraneous material, but do it by date and by version number and do not just allow it to be open ended that any subsequent change in the future automatically becomes part of the planning law of South Australia.

The Hon. K.J. MAHER: The government opposes this amendment. The government prefers the words that are in there. It is our view that the amendment would remove the useful ability to automatically update linked extraneous material. We think it would be unfortunate and unnecessary not to have that ability to automatically update. The legislation and regulations are peppered with references that we feel would become quite unworkable otherwise. It is our view that, rather than helping to keep our planning system up to date, this would force an amendment process every time an extraneous document was altered.

The Hon. D.W. RIDGWAY: The opposition is inclined to support the amendment for the simple reason that we like it actually giving us a specified point in time, rather than the open-ended nature of it. Although, having heard the minister's explanation that the document is peppered with a whole range of other references, it is maybe one of those areas where, while we are certainly prepared to—

The Hon. K.J. MAHER: Sorry, the statute book generally.

The Hon. D.W. RIDGWAY: Yes, and it may be one of those issues where, while we are very happy to support it today for what we believe is the right intention of the amendment, to have a specified time so that we know when that is and so it is not an open-ended change, I suspect, if there is something put to us the opposition will be happy to look at it, if there is a reason that it becomes unworkable. However, at this point in time, we are certainly happy to support the Greens' amendment.

The Hon. J.A. DARLEY: For the record, I will be supporting the Greens' amendment.

The Hon. D.G.E. HOOD: As will Family First.

Amendment carried; clause as amended passed.

Clause 69 passed.

Clause 70.

The Hon. K.J. MAHER: Am I moving amendment Nos 21 to 29?

The CHAIR: There is an intervening amendment of the Hon. Mr Parnell.

The Hon. K.J. MAHER: I will speak to amendment No. 21 but will cover all those. I move:

Amendment No 21 [Emp–4]—

Page 59, line 3—Delete paragraph (a)

As to amendments Nos 21 to 29, I am speaking to amendment 21 at this stage though, these amendments are inserted in response, again, to a request to clarify the government's intention to empower the state planning commission. If passed, they will enable the commission, rather than the minister, to initiate a proposal to prepare or amend a designated instrument either on its own initiative or on the request of the minister.

The minister will be newly required to act on the advice of the commission in approving a proposal to amend a designated instrument initiated by the CE of DPTI, another government agency or instrumentality, a joint planning board, a council, and other specified parties. The commission, rather than the minister, will also specify the other persons or bodies who must be consulted, the investigations that must be carried out, and the information that must be obtained in preparing a proposal to prepare or amend a designated instrument.

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

Amendment No 36 [Parnell–1]—

Page 59, line 32—After 'entity' insert:

and charge the person or entity reasonable costs associated with doing so

I think the government's amendments are very consistent with what we have been dealing with so far. My amendment basically seeks to prevent cost-shifting from the beneficiaries of planning changes to the public. Clause 70, because it is in this subdivision 5—Related and common provisions, it refers to all manner of planning documents, including everything from a state planning policy, a regional plan, the planning and design code or a design standard.

There is a list in subclause (2) of the people who can drive the process. The word 'initiate' is the word used here. The list makes sense. Changing planning rules can be initiated by the current minister, another minister, a chief executive, another government department, a local council, a provider of essential infrastructure or, if we get down to subparagraph (viii):

…a person who has an interest in land and who is seeking to alter the way in which the Planning and Design Code or a design standard affects that land.

That might sound complicated. It is called 'spot zoning'. Basically, the situation is that if a person buys a block of land—maybe it is a prominent corner block on the corner of arterial roads—with a view to building a petrol station or a little shopping centre or something, but the zoning does not actually allow that to happen, if the local community, through the council, thinks, 'Good idea. We need a little shopping centre on that corner,' the property owner, the would-be developer, goes to the council and says, 'Look, you just need to rezone my block from residential to commercial and that will allow me to put in my application for a little shopping centre.'

The local council would come back and say, 'Well, that's all very nice. We agree with you. A little shopping centre on this corner is just what this neighbourhood needs, but we're not paying for it. It's not our agenda. It's your agenda, so you pay for it.' We have had arrangements like that for some time. I think this bill, compared with the current act, makes it a bit more transparent. In fact, I think this is the first time where the act actually sets out that the owners of property can be the ones who initiate the rezoning.

I might be shown to be wrong, but I am pretty sure it is the first time we have been as blatant, if you like, about it. I am not saying it is a bad process. I think it makes sense that if the beneficiary is the person whose land is going to be rezoned then, yes, they can drive the process, but they should also pay for it. What it basically says in subclause (4)(b) is that, when giving permission for the property owner to initiate the rezoning, the chief executive will conduct the process on behalf of the relevant person or entity. My amendment seeks to add 'and make them pay for it too'. In other words, it is to make it clear.

The government might say that there are other provisions that pick up the ability to charge these third parties for the cost of the rezoning. I want to make it crystal clear in this section that part of the deal between the minister, the chief executive and the person who seeks to have their property rezoned is that all the costs are going to be borne by the property owner, and I think that is a very reasonable provision. I know there are other provisions that allow it to happen. I want to make sure it happens, and that is the purpose of this amendment.

The Hon. D.W. RIDGWAY: On a point of clarification with the mover, I presume that if somebody wants a property rezoned there would be a process with the local council, some fees and charges that would relate to applying to have a property rezoned. Why would we need to have your amendment as such because, if a property owner goes to a local council and everybody agrees that it needs to be rezoned, surely the local council would have a set of fees and charges that cover the cost of that rezoning?

The Hon. M.C. PARNELL: The answer is that yes they can and yes they do. Let us look at it from the other way around. Would you like the local council to be able to say, 'But he's our mate, the ratepayers can pick up the cost'? I do not want that to happen. Mostly it is done sensibly. Whether it is full cost recovery or not, I do not know as I am not close enough to it, but I want to make crystal clear that the words are 'and charge the personal entity reasonable costs associated with doing so'. From the honourable member's question, he obviously agrees that that is the right outcome, so the question for us is whether we incorporate it into this clause or not.

I think it is a sensible addition, and it makes it clear. The two categories to which it applies are the property owner, who seeks to have their land rezoned, but also the provider of essential infrastructure. I do not want to get too bogged down now with infrastructure schemes, which we will discuss a bit later, but again it makes it crystal clear that, if there is a rezoning for the purpose of developing essential infrastructure, then that agency doing the infrastructure should also pay for the rezoning. In a nutshell, that is what my amendment seeks to achieve.

The Hon. D.G.E. HOOD: We have just had quite a lengthy discussion about heritage and its impact on the community as such, and it was argued by some that heritage represents a public good, a general good, and therefore everybody should be considered when deciding whether or not we proceed with certain heritage restrictions. I marginally agree with that position—I do not fully agree with it—and can at least see the rationale for it.

That same argument also applies in this circumstance, and that is that if we use the argument given, for instance we decide that a shopping centre is good on the corner down the road, is not that also a public good? I think it is. It is not just one individual who will be using that shopping centre but rather multiple individuals, thousands presumably, so it also provides a public good. That being the case, I would question why should one individual developer (or group of developers, as the case may be) be burdened with the entire cost?

They are providing a public good. In most cases it would be appropriate that they would, but I do not think we should put in legislation a requirement that in almost all circumstances they would. For that reason, for almost the same argument twisted on its head, we will not support the argument. Whilst in most circumstances that is exactly what would happen, I would not like to see it prescribed that that is what would happen almost regardless.

The Hon. M.C. PARNELL: I thank the honourable member for his contribution and I understand the point he is making. Maybe I have shot myself in the foot by using the example of a shopping centre, because a more realistic example is the person who buys the parcel of land in a single-storey zone and seeks to have it zoned for a 10-storey area. The question is: does the public benefit from having a 10-storey block of flats rather than having a single-storey zone? I can tell you who does benefit: the owner of the land. In my experience I am yet to see someone who voluntarily goes to the council and says, 'Can you please rezone my land so it's worth less?' It does not happen. People seek to uplift the value of land through rezoning.

Is it fair? It seems to me that, if someone is going to make an absolute windfall because their land that might have been worth X dollars per hectare is now worth 10 times X dollars per hectare, they are making a motser out of it. The only reason they have made that money is that the land was rezoned and is now worth more, so why should they not pay for the rezoning? That is where I am coming from.

I take the point that, with a shopping centre, if the community decides that it is a good facility there might be some merit in that, but the chances are that the land might have been zoned heavy industry and worth a certain amount; once it is zoned as a shopping centre, it will be worth a lot more. So, in effect you are capturing the increased value of land that results from rezoning and using something of it to pay for the rezoning process.

The Hon. D.G.E. HOOD: Just quickly, I do not disagree with the Hon. Mr Parnell. I think his logic is sound. My only point is that, because of the arguments we have just made, and I will not go through them again, I do not see any point in passing an amendment that makes that the case virtually every time. Why not leave the flexibility for the shopping centres and the like?

The Hon. D.W. RIDGWAY: I will indicate the opposition's position. I think the Hon. Mark Parnell can see that we are supportive of what he is trying to do, although I wonder whether it is not overburdening the system. Nonetheless, notwithstanding some discussions we might have on future clauses around infrastructure and the charges and who pays, in this particular instance the opposition does believe that, if you are going to get a benefit then, as it is a user pays system, the user should have to pay for the cost of that rezoning. I expect, as we have discussed, it happens now. I suspect in nearly every case that happens, but we will support the Hon. Mark Parnell because of our belief that the user should pay.

The Hon. J.A. DARLEY: For the record, I will not be supporting the amendment.

The Hon. K.J. MAHER: I indicate the government will support the amendment by the Hon. Mark Parnell. I move my further amendments Nos 22 to 26:

Amendment No 22 [Emp–4]—

Page 59, lines 4 and 5—

Delete 'on behalf of the Minister (at the direction of or with the approval of the Minister)' and substitute:

on its own initiative or at the request of the Minister

Amendment No 23 [Emp–4]—

Page 59, line 8—Delete paragraph (a)

Amendment No 24 [Emp–4]—

Page 59, lines 9 and 10—

Delete 'on behalf of the Minister (at the direction of the Minister or with the approval of the Minister)' and substitute:

on its own initiative or at the request of the Minister

Amendment No 25 [Emp–4]—

Page 59, line 11—After 'Minister' insert ', acting on the advice of the Commission'

Amendment No 26 [Emp–4]—

Page 59, line 12—Delete subparagraph (i)

The Hon. K.J. Maher's amendments carried; the Hon. M.C. Parnell's amendment carried.

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

Amendment No 37 [Parnell–1]—

Page 60, after line 2—Insert:

(ba) to the extent that paragraph (b) does not apply, in the case of a proposed amendment to a regional plan that has been prepared by a joint planning board where the amendment is not being proposed by the joint planning board—must consult with the joint planning board; and

Amendment No 38 [Parnell–1]—

Page 60, after line 8—Insert:

(bb) to the extent that paragraph (b) does not apply, in the case of a proposed amendment to the Planning and Design Code that will have a specific impact on 1 or more particular pieces of land in a particular zone or subzone (rather than more generally)—must take reasonable steps to give—

(i) an owner or occupier of the land; and

(ii) an owner or occupier of each piece of adjacent land,

a notice in accordance with the regulations; and

These are fairly simple consultation clauses. Amendment No. 37 ensures that a joint planning board will be consulted about planning policies that affect them, and amendment No. 38 ensures that the owners of land will be consulted in relation to changes to planning policies that affect them, so there are two issues there. The joint planning board issue is pretty straightforward. It just makes sense. It is not onerous. You have just got to talk to people who are also decision-makers and have a stake in it, so I am hoping that will not be contentious.

Amendment No. 38 is a bit more complex, and I will just make the point that 38—and I hope the Hon. David Ridgway has this in his extensive notes—is pretty much the same as one that we have supported in the upper house before, and one that certainly the Liberals supported before. It is to overcome the idea that people can have their houses rezoned underneath them without being informed as to what is going on.

When I have raised this in parliament in the past, I used the example of a man up in the northern suburbs who woke up one morning to discover that his house was zoned 'flood plain' when, the night before, it had been zoned 'residential'. His first question to me, as his pro bono environmental lawyer, was: 'How can that happen? How can you have a system where they can rezone your house and not have to tell you about it?' The answer is: that is what the Development Act says. There is no obligation to directly notify affected people about changes to planning rules.

We have to be a bit careful in relation to this because there are changes to planning rules that are of general application and affect everyone in the whole state, and then you have changes to planning rules that are of fairly narrow consequence. Whilst I think everyone should have the right to know about changes to planning rules that affect the whole state, you do not do that by letterboxing every house in the state, for example. There are other mechanisms.

We are going to have the portal. From previous amendments that have gone through and ministerial assurances, we are going to have a system where you can sign up to be told about planning changes in your local area, and that is going to be one of the good things about the planning portal. Nevertheless, when you have changes that affect a limited number of people, it seems to me only fair that they go to some lengths to draw the attention of those people to the proposed changes. The way I have worded this amendment is that the authorities have to take reasonable steps to give owners and occupiers of land or adjacent land a notice in accordance with the regulations.

You have different ways of directly notifying people. I guess the most personal way is when someone knocks on your door and has a conversation with you about it. I am not proposing that that would be necessary in terms of changes to planning rules, and that every house in the heritage preservation area of Prospect has to be doorknocked—although the Hon. Dennis Hood might think that is a very reasonable approach.

You can work down the pecking order. You could have directly addressed mail. I am not sure how long it would take to arrive under the current mail system, but maybe you could post a letter to the named person, such as the ratepayer, for example, or the occupier. You can also notify people in other ways. It might be a notice in a council newsletter that we all routinely get put in our letterboxes.

I have not been prescriptive about what level of notification is required, but it seems to me just wrong that really important changes that affect people can come into effect with them oblivious to it. At present, the only notification that is required for a change to planning rules—'rezoning' is often the shorthand that we use; let's say rezoning—is in the Government Gazette and in a newspaper generally circulating in the district.

While I do not know their names, I am told there are some people who do not read the Government Gazette. A similarly small number get as far into the Public Notices section at the back of The Advertiser. Whilst historically the way the state has communicated with citizens is by the Government Gazette or a local or statewide newspaper, I just do not think that cuts it anymore.

As the Hon. Dennis Hood talked about in relation to his specific heritage item, we are talking about changing the rules that apply to individuals and how they can use their land. I have limited it to changes 'that will have a specific impact on one or more particular pieces of land in a particular zone or subzone (rather than more generally)', so I have kept it fairly open.

We have had some statewide changes to planning laws dealing with rubbish dumps, and we have had a statewide wind farm DPA. I am not expecting that every single person has to be directly notified, but if it is a more limited application, then I think we should make the authorities go to some lengths to make sure that affected people know about it. Although I have not specified it, in my mind it is something in the letterbox.

Whether it is part of a regular council newsletter, or whether it is directly addressed mail, or whether it is something like if the rate notices are coming out and maybe you bung it in there, at least take some effort to tell people about changes. I say again: this did have the general support of the Legislative Council when we last debated it, and I am hoping that position has not changed.

The Hon. K.J. MAHER: I indicate the government does not support this amendment. It is our view that it will add unnecessary red tape and complexity and would tend to displace the community engagement charter, which is the most suitable avenue for engagement and consultation matters.

The Hon. D.G.E. HOOD: Can I just ask a question of the government, if I may, regarding this. In circumstances like I have just described, for example—the heritage conservation zone being sought to be applied in the City of Prospect—it may be unfair to ask the government this, as it is not their amendment, but I am hoping they can give an answer, because I am genuinely not sure which way to go—

The Hon. D.W. Ridgway: They have a view on lots of other things.

The Hon. D.G.E. HOOD: Well, they do, that's right. I am genuinely not sure which way to go on this one at this point. How would that play out? Why would the government oppose it in those circumstances? What is wrong with people knowing?

The Hon. K.J. MAHER: The government is not saying that the consultation would not be required. What we are saying is that clauses 44 to 46 of the bill requiring the community consultation charter and then parliamentary scrutiny in developing the community engagement charter would be the most appropriate avenue for that to happen.

The Hon. M.C. PARNELL: Can I just say that I agree with the minister. The charter is going to be where the detail of how people are consulted is located; the charter will say, 'This is how you tell people their house is about to be rezoned.' My amendment is effectively guaranteeing that the charter will cover this issue, because there is nothing in clause 44 at present that says they are going to have to do that.

So, yes, I agree, but the detail—whether it will be a letterbox drop, whether it will be some other form of communication, whether it will be emailed to people who have registered, who knows what it could be—will be in the charter. The obligation to consult people before you rezone their houses is in this amendment.

The Hon. D.W. RIDGWAY: The obligation to consult or the obligation to advise?

The Hon. M.C. PARNELL: Good question—effectively, to notify. It provides, 'must take reasonable steps to give an owner or occupier of the land…a notice in accordance with the regulations'. In other words, I have not been specific. The minister is saying it should be in the charter—well, charter or regulations, it does not matter. If he wants to change it to charter, I am happy to do that if you want to do amendments on the run. However, basically all you have to do is tell people this is happening, and then if they choose to engage that is up to them. If they do not want to engage they will not, but at least they cannot say, 'I never knew, I never knew this process was underway, nobody told me.' That is the evil I am trying to overcome.

The Hon. D.W. RIDGWAY: On that basis, 'never knew' is one side of the equation and 'didn't make an attempt to notify' is the other side of the equation. This amendment does require some attempt to be made to notify, to take reasonable steps to give notice, and the opposition will be supporting the amendment.

The Hon. D.G.E. HOOD: I indicate that at this stage we will also be supporting the amendment. I see no problem with people being notified. I do not want to pick on Prospect, but we will go back to the example there (I think that is the example the chamber is familiar with). In that example, to be fair to them, they did notify everybody and it was by post—and that is how I became aware of it. So I suspect that process is already underway in the real world, but I see no reason why we should not mandate it. People have a right to know what is happening to the zoning of their property. However, I do indicate to the government that if there are very good reasons why we should not support this—I have not heard them yet, but if there are—I am open to reconsidering this clause should we recommit it.

The Hon. J.A. DARLEY: I will be supporting the Greens' amendment.

The CHAIR: There are two amendments here. I draw members attention to amendment No. 38, clause 70, page 60. We have 'after line 8' and it should be 'after line 2'.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 27 [Emp–4]—

Page 60, line 3—Delete 'Minister' and substitute 'Commission'

Amendment No 28 [Emp–4]—

Page 60, line 6—Delete 'Minister' and substitute 'Commission'

Amendment No 29 [Emp–4]—

Page 60, lines 11 and 12—Delete '(except where the designated entity is the Minister)'

I move these amendments for the reasons I outlined when I moved amendment No. 21.

The Hon. D.W. RIDGWAY: The opposition will be supporting this group of amendments.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 30 [Emp–4]—

Page 60, after line 12—Insert:

(7a) The designated entity must, after furnishing a report to the Minister under subsection (7), ensure that a copy of the report is published on the SA planning portal in accordance with a practice direction that applies for the purposes of this section.

This is an amendment that I think has the agreement of the opposition and reflects the government's discussions with the LGA.

The Hon. D.W. RIDGWAY: I can indicate that from the consultations the shadow minister has had with the government and representatives, we will also be supporting this amendment.

Amendment carried.

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

Amendment No 39 [Parnell–1]—

Page 60, line 15—After 'this section' insert:

(subject to the requirement to charge costs under subsection (4)(b) (if relevant))

I will be guided by others, but I am pretty sure this is just consequential. We have agreed that the person driving the rezoning is going to pay the costs and this just reflects that.

The Hon. K.J. MAHER: Yes, we consider this a consequential amendment and we support it.

Amendment carried.

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

Amendment No 40 [Parnell–1]—

Page 60, after line 30—Insert:

(9a) The Minister must, within 2 business days after taking action under subsection (9), cause to be published on the SA planning portal a copy of any advice furnished to the Minister by the Commission for the purposes of this section.

We need to put this amendment into context: it is clause 39(9) and it is included as a new subclause (9a). It references back to subclause (9) and requires the minister, within two business days after taking action under subclause (9), to publish on the portal a copy of any advice that was furnished to the minister by the commission for the purposes of this section.

Basically, the regime is that we have the minister and we have the commission. For the last several hours we have been recalibrating, I guess, the relationship between the minister and the commission, where we are inserting 'the commission' in a lot more spots and taking out 'the minister', but ultimately the final decision is made on these designated planning instruments. The final decision is made by the minister, and I think that part of the transparency of this process is that any advice that has been furnished to the minister by the commission should be published; we should be able to see that, and it should be in a timely manner, so I have said within two days.

The minister has four main powers: the minister, when confronted with a proposed change to the planning rules, can just adopt it; secondly, the minister can change it and then adopt it as changed; thirdly, it can be split up into different bits; and the minister can approve some and delay or defer or decline others or determine that the matter not proceed at all. That is the range of powers that the minster has.

I think the community is going to be interested in whether the independent planning commission has, in fact, advised a particular course of action and whether or not the minister has actually accepted that advice—the minister is not obliged to; the minister has the final say. So, to make sure that we do get to see this information in a timely manner, this amendment requires it to be published on the portal within two days.

The Hon. K.J. MAHER: I can indicate that the government opposes the amendment. We think it is unnecessary. It creates an extra burden, and the advice of the commission in this respect should remain, in our view, unpublished. We note that we are giving the commission a whole lot of extra ways to insert themselves with previous amendments, but this is one we do not agree with. Secondly, in terms of the specifics of amendment No. 40, we do not agree with the prescribed two business days. If this was to be part of the act, we feel that this is a matter best left for regulations or good administrative practices.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the amendment proposed by the Hon. Mark Parnell. There is a little bit of concern that maybe two days is too tight and too prescriptive, but nonetheless we are happy to support the Greens' amendment.

The Hon. J.A. DARLEY: I support the Greens' amendment.

The Hon. K.J. MAHER: I have a question for the Hon. Mr Parnell on this matter. Obviously a lot of this information could be released through an FOI, if it were sought. If there is any information that should properly be kept confidential, do you envisage that there is an avenue to keep that confidential or does absolutely everything, even frank and fearless advice, have to be published? I guess my question is: if matters quite rightly were not able to be disclosed through FOI, would they have to be disclosed through this?

The Hon. M.C. PARNELL: I thank the minister for his excellent question. As a matter of statutory interpretation, we are going to have a number of provisions which have to be read side by side, and there are provisions in relation to confidentiality. As to how they would fit side by side with this, I would have thought that if it became a matter for a court to have to interpret, probably the court might want to test it because, as we know, governments often claim confidentiality to actually hide inconvenient advice when it is not really confidential at all.

I think that the commission, knowing that this provision is now inserted, will provide their advice in a way that protects any particular confidential information if they think that is necessary. They know that every member of the South Australian community is going to see their advice and they are not going to unduly, unreasonably or unnecessarily infringe people's privacy or trade secrets, or anything like that.

My view is that they will probably write their advice accordingly. If they do not, if the government chose to redact the advice when it put it up onto the portal, then if someone thought that it was unreasonable I suppose they could try to challenge it, but the government would have a pretty good case because there are other provisions of the bill that talk about preserving confidentiality. That is the best answer I can give.

The Hon. K.J. MAHER: I thank the honourable member for his answer. I understand the response given, but I think there is some ambiguity about this, and I wonder if we are not absolutely sure of the nature and effect. I know we can come back to it by possibly recommitting it. I have another query on a 'copy of any advice' and the use of the word 'any'.

Is that intended by the honourable member to mean not just the final advice provided, but if there is a question along the way before coming to the final advice—any advice at all whatsoever—of a nature that does not in any way pertain to the final advice furnished by the commission to the minister, does it all have to be put up? If along the way a minister asked a question of a technical nature about how something might work, for example, or something that was completely unrelated to the final advice given, would that all have to go up within two days, no matter how trivial?

The Hon. M.C. PARNELL: I thank the minister. Again, given that he is not the primary portfolio holder, he is on top of this in an amazing way. The reason that I use the words 'copy of any advice' is that there will be many instances where no advice is given. It is not compulsory for the commission to give advice; if the commission has not given advice on something, then there is nothing to publish, but if there is any advice then that should be published.

As to the minister's specific question, the way I would consider it is that if the commission is asking questions then they are not providing advice: they are asking questions. When they give advice, they give advice. Advice is, 'Minister, this is what you should do.' If they do not have enough information on whether to give any advice and what advice to give, I would not have thought that this clause picked up the whole communication trail, every communication from every officer of the commission with the minister's staff. I am not suggesting that that would all be picked up.

As the minister points out, if someone thinks that there is some draft advice that was never actually delivered but was drafted for the purpose of something else, they might try to chase it under FOI, but as the Hon. Rob Lucas said, 'Good luck'. It is not my intention for this clause to deliver anything other than the final advice, if any, provided by the commission to the minister.

The Hon. D.G.E. HOOD: I thank the Hon. Mr Parnell for his clarification. It certainly gives me more comfort, I must say, because I had taken more the view that the government was taking: I was worried about just how wide it would be and what sort of administrative burden it might pose. My other concern about this amendment is the two-day time frame; it is very tight. I have not read it in a few moments, but I do not think it said two business days, did it?

The Hon. M.C. PARNELL: Yes, two business days.

The Hon. D.G.E. HOOD: Business days, yes. It is very tight. I just raise that as a concern. I would have thought seven or 14 is probably more like it.

The Hon. D.W. RIDGWAY: I did raise that concern when we indicated that we would be supporting it. As it is almost lunchtime, I wonder whether the mover is interested in, if we reported progress, maybe over the break coming up with a longer period of seven business days. I think that two days seems awfully short. Seven or 14, there may be a standard the government might be happy with. I do not know, but maybe it is an opportunity to do that now.

The Hon. M.C. PARNELL: Thank you, and I accept what the Hon. Dennis Hood and the Hon. David Ridgway have said. I do not think we need to agonise over this over lunch. I am happy to move the amendment in an amended form, with the leave of the committee, to replace the word 'two' with the word 'five', five business days. They have a week to do it, which I think makes sense. Can I can get some non-verbal indication from the Hon. Dennis Hood; is that more sensible?

The Hon. D.G.E. Hood: It is better.

The Hon. M.C. PARNELL: I will seek leave to move the amendment in that amended form.

The CHAIR: It is good to see common sense prevailing.

The Hon. K.J. MAHER: If we are moving in amended form, I might ask the honourable member to consider changing the word 'any' perhaps to 'final' to clarify absolutely what he was indicating about the advice. One of the concerns is that if a minister is getting ongoing advice, which sometimes has changes or additional information, it would seem a pity that the commission might not give as frank and fearless advice as it might otherwise, particularly if the advice was ongoing. I think that would reflect what the honourable member is intending, to remove the 'any advice' to something like 'final advice'.

The Hon. D.G.E. HOOD: I indicate to the Hon. Mr Parnell that, if he were to do that, we would be inclined to support it as well—so, five days and then some tightening around exactly what sort of advice. I understand it is really the final advice you are interested in.

The Hon. D.W. RIDGWAY: I indicate that that would be an improvement from the opposition's point of view as well. I hear what the minister is saying, and I can see his adviser frantically looking at how we might be able to come up with some compromise that makes a bit of sense. That is why I think, maybe at this point in time, if I move to report progress, then perhaps if that discussion, as to whether it is 'final advice' or whatever the actually wording is, is sorted out we can then look at that when we resume later this afternoon.

Progress reported; committee to sit again.

Sitting suspended from 12:57 to 14:16.