Bills

Planning, Development and Infrastructure Bill

Committee Stage

In committee.

(Continued from 23 February 2015.)

Clause 94.

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

Amendment No 66 [Parnell–1]—

Page 76, line 24—After 'A relevant authority' insert ', other than an accredited professional,'

This is an amendment to clause 94, which relates to delegations. The clause, as it reads, states that: 'A relevant authority may delegate any functions or powers of the relevant authority under this Act.' If we recall, the definition of 'relevant authority' includes everything from the minister and the planning commission right down to individual assessment managers or these accredited professionals. The amendment that I seek is to preclude the ability for an accredited professional to subdelegate, if you like.

In other words, my view is that if there is some reason why an accredited professional cannot do the job, then there should be another accredited professional or another relevant authority appointed to do it, but my nervousness around the clause as it is worded is that it does say that a delegation can be made 'to a particular body or person' or 'to the person for the time being occupying a particular office or position'.

The government might say that an accredited professional cannot delegate to anyone of lower standing than another accredited professional. We will see if that is the response, but it seems to me that we just need to be careful about giving fairly low level functionaries the power to delegate. Normally, the way I look at these things is that higher level bodies, the minister for example, yes, should be able to delegate, but once you are down near the bottom of the food chain, allowing further delegations is unnecessary.

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: When I say 'the bottom of the food chain', I guess what I am saying is that in the pecking order of relevant authorities, we have some individuals who are maybe well experienced professional people, but I maintain that I do not think that we should allow further delegations at that end of the chain. I notice that the Local Government Association supports my amendment.

The Hon. K.J. MAHER: The Hon. Mark Parnell's amendment will prevent accredited professionals from delegating their functions or powers under the act. The current Development Act does allow for this delegation, as per the clause that is drafted, without the amendment. However, the Hon. Mark Parnell will be very pleased to know that the government will support this particular amendment at this time, but notes that if it proves to be a problem at some time in the future, we would want to reconsider that and we would hope for his support in reconsidering that if it does prove to be a problem.

The Hon. D.W. RIDGWAY: I indicate that the opposition shares the concerns of the Hon. Mark Parnell and am pleased that the government also shares those concerns. With the argument that the Hon. Mark Parnell talks about with people being at the bottom of the food chain, some names of various government officials come flashing back to me, but I will not put their names on the record.

Nonetheless, I would think that it would be inappropriate for private certifiers to delegate their responsibilities given that, again, if you like, they are professionals. We would want to make sure that they were not delegating the authority to somebody who is not qualified, so we are very happy to support this amendment.

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

Amendment carried; clause as amended passed.

Clause 95 passed.

Clause 96.

The Hon. M.C. PARNELL: I will just make a brief observation at this clause and the clause that we have just passed. Clause 95 is probably the most important operative clause in the entire bill. It basically says that you cannot undertake development unless it has been approved. That is at the heart of this legislation. This is it. This is the key clause, but there have been a number of questions including: what does development mean and what needs approval? But the key question is: who makes the decision and on what grounds do they make it?

We have spent a fair bit of time talking about planning rules and planning policies and the connection between the decision-maker's power to make a decision and the rules that they need to apply. I know I am going back to basics here, but it is important.

Clause 96—Matters against which development must be assessed. In a nutshell, it says that you have to look at the relevant provisions of the planning rules, and we have spent some time talking about what these planning rules are (the planning and design code). The key words I want people to note are in clause 96(1), which provides that the development has to be assessed against and granted a consent in respect of each of the following matters:

(a) the requirement that the development is assessed as being appropriate after taking into account—

(i) the relevant provisions of the Planning Rules…

Those words are really important. The test is that the development is 'appropriate' (that is the first word) and that you have to 'take into account' the relevant provisions of the planning rules. The reason I am pointing those words out is that the obligation under the current legislation is actually quite different. The obligation under the current legislation is actually worded in the negative rather than in the positive. What it says in the current legislation is that a relevant authority must not make a decision that is seriously at variance with the planning rules, or with the development plan in particular.

It might seem like it is something semantic. Currently, it says that you cannot make a decision seriously at variance with the planning rules. This new bill says that you have to judge a development as being appropriate after taking into account the planning rules. Whilst this might seem very esoteric and semantic, it is actually quite fundamental. The reason I raise this now is that there is a later amendment where I move for the test to be somewhat closer to the current test. In other words, the test should be a test of variance: how different is what is being proposed from what is anticipated in the rules?

Ultimately, what the community expects is that there will not be too much wriggle room. They want to know that the rules mean something. Are they just vague guidelines that a decision-maker at its whim can decide to implement, or are they something that is a bit tighter? Another way of looking at it is: is it black letter law or is it a vague guideline? I think that goes to the heart of this assessment. I make that point now because I will be raising it later on. I do not actually have an amendment to clause 96 because that is not necessary. This issue is raised in other clauses.

I wanted to make that point, that this is a new test: is the development appropriate and all you have to do is take into account the relevant planning rules? It does not say you have to follow them, it does not say you have to mostly follow them and it does not give any guidance as to the level of variation that might be appropriate.

Clause passed.

Clauses 97 to 99 passed.

Clause 100.

The CHAIR: The honourable minister might want to send a runner to the Hon. Mr Rau to let him know we are up to clause 100.

The Hon. M.C. PARNELL: I would have baked a cake if I had known that it would be a matter of some celebration. I move:

Amendment No 67 [Parnell–1]—

Page 80, line 16—Delete 'A' and substitute 'Subject to subsection (3a), a'

Amendments Nos 67 and 68 go together, if the second could be treated as consequential on the first. The key element is the second amendment, amendment No. 68, so I will speak to that. It proposes to insert new paragraphs (3a) and (3b). New paragraph (3a) provides:

Notice of an application for planning consent under this section must be published on the SA planning portal within 2 business days after the application is made in accordance with this Act.

That basically goes to the government's commitment of openness and transparency, that we are going to know about applications and we are going to know about approvals because they are all going to be published on the portal.

The clause that we are dealing with is clause 100—Deemed-to-satisfy assessment. This is a sort of low level of development, it is things that are going to get approved. There is not really any doubt about that. They are deemed to satisfy the planning rules, but it seems to me that in the interest of openness and transparency the fact that an application has been lodged should be put up on the portal, as all other development application lodgements are going to be put up on the portal; so I think that that is consistent.

The second point is that new paragraph (3b) basically says that representations are not called for—they are not advertised, a call does not go out asking if anyone has got anything to say about the development application. That will not happen. It will not be publicly advertised, calling for comments. I think the notice might still go on the LAN. I need to check whether the star picket and the sign are still going to happen.

Basically what my paragraph (3b) says is that if the representation is made to the relevant authority, then the relevant authority, if it thinks that the representation says something worthwhile, may take it into account. It does not say that they have to, it just says that they may. The reason I have put that in is that, again, it is putting the government to the test of how serious they are about this openness and transparency.

Under the current Development Act there are lots of provisions which direct the relevant authorities not to take stuff into account; it is all worded in the negative. The relevant authority does not have to take this stuff into account. And we know how things work in bureaucracies: that means it will not be taken into account. I think we are far better off wording these things in the positive to say, 'Well, if someone does happen to find out about it, and if someone does happen to make some comments, and if those comments happen to make sense, then why on earth should we not let the decision-maker take it into account?'

It does not increase opportunities for public participation, it does not require advertisement when none existed before other than putting stuff on the portal, which the government told us it was going to do anyway. It means 'if someone finds out about it', and the example I often give is that there might be an issue that no one else knows that other than the one expert on endangered frogs or something who happens to know that that particular location is near the endangered frog habitat. No-one else knows that.

If this person finds out about it and says that a development has been proposed for that site, and says, 'Look, I know you haven't advertised this for comment, but I just thought you should know there is an dated frog there,' then why on earth would you have a provision which says the decision-maker must ignore that? I am putting it in the positive. The decision-maker, if it thinks something worthwhile has been contributed to their decision-making process, they may take it into account if they think fit.

The Hon. K.J. MAHER: In relation to the clause, 'Deemed-to-satisfy assessment' classified by a planning and design code must be granted planning consent, the basic one way to comply. It is equivalent to complying for development under the existing act. In relation to the amendment that has been put forward for this clause by the Hon. Mark Parnell, the government will be opposing the amendment.

This is applying to development proposals that are reasonable and an expected development in a particular location such as dwellings and residential zones. The rules for such a zone would have to be determined in consultation with the community well in advance of making an application. It is not the point of the planning system to reargue policy on application by application basis as proposed in this amendment.

The proposals by the Hon. Mark Parnell would build community expectations so that other people can influence property owners' development applications even if they are well within the rules. Proposed new subclause (3b) would newly introduce the ability for people to make and authorities to consider representations on a proposed development that is classified as 'deemed-to-satisfy,' currently complying development.

For this sort of development, notification is not presently required and nor are representations permitted. The act intends the purpose of representations received, where a notification can be used to assist an authority to determine an application. Such representations do not provide any assistance to the authority, as the development is already conclusively deemed to satisfy the requirements of the code and must be approved, as would be a complying development under the current Development Act.

The amendment would expand the ability to take into account representations about development which should be expected for a location well beyond the status quo under the Development Act. This could lead to a proliferation of representations regarding developments that are even more minor than those cited, for instance, by the Hon. Dennis Hood. I am advised the Hon. Mr Hood's applications have been subject to the views of neighbours and have taken ages and ages to obtain approval previously.

This is not a proposal for a factory or a tannery in the Hills Face Zone, it should surely constitute an anticipated development for a residential zone. Were members of the chamber to pass this amendment, many more home owners could face these sort of inordinate delays for a shed or a swimming pool.

The Hon. T.J. Stephens: Or an ensuite.

The Hon. K.J. MAHER: Or an ensuite, indeed. The government is of the view that such interference in the enjoyment of their properties is not warranted. This would be contrary to the recommendations of the expert panel and the need to ensure its expected and envisaged development has a streamlined and official assessment-making process for the benefit of any home owner undertaking minor development to their own property.

The problem has been identified for some time, initially in 2008 by the planning and development review. The government cannot support the frustration of the planning system for additional red tape and, in our view, no benefit.

The Hon. D.W. RIDGWAY: I indicate the opposition will not be supporting the Hon. Mark Parnell's amendments Nos 67 and 68. Amendment No. 67 reads:

Delete 'A' and substitute 'Subject to subsection (3a), a'

I will make some comments. We will not be supporting either of them. The issue the minister raises in relation to (3b), where somebody can make a representation in relation to a development—it is outlined by the minister—you can see quite simple complying developments (developments to be expected in a residential zone) being frustrated.

I think the Hon. Mark Parnell makes a comment about the frog expert, and that is similar to one of the amendments he moved, I think, last sitting week where we talked about his, if you like, honourable intention, where there was something that was unique, such as the only expert on a particular endangered frog. What his provision opens up then is the opportunity for a whole range of people outside the affected area to be able to influence a development.

As the minister points out, it would cause, in our view, delays and more red tape. One of the reasons that we have, in broad terms, supported the government's planning reforms is to try to speed this up to remove red tape and get economic activity. So, at this point, we are unable to support the Hon. Mark Parnell's amendments.

The Hon. M.C. PARNELL: I see where the numbers are; I will not be dividing on these amendments. I make the point that the purpose of the exercise was not necessarily that people would come out of left field and bog it down with red tape and, in fact, overturn the approval. It is going to be approved; it is a complying form of development. The point might be, if we take that example I used, that conditions are attached to the development and the conditions might be: do not let them fill the creek in and do not let them build their shed on the creek. Let them build their house but not affect the frog, for example.

The point I am making is that it might be a hypothetical situation. I am just making the point that I think any planning system that denies the ability of relevant information to at least be taken into account, is missing out on making the best possible decision, but I can see where the numbers are. I will not be dividing; I just wanted to make the point.

Amendment negatived; clause passed.

Clause 101.

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

Amendment No 69 [Parnell–1]—

Page 80, after line 39—Insert:

and

(c) to the extent that paragraph (b) applies—the development must not be granted planning consent if it is at variance with the Planning and Design Code (disregarding minor variations).

This is the issue I alluded to before, in terms of: what is the test that the decision-maker has to apply when deciding whether or not to approve a development, and, if they are going to approve it, what conditions to attach? As I pointed out, the bar has been set very low under clause 96. The test is that the development is assessed as being appropriate after taking into account the relevant provisions of the planning rules. This amendment proposes a slightly different test, and the test is one of variance: the development must not be granted planning consent if it is at variance with the planning and design code, disregarding minor variations.

In other words, it is still giving an amount of wriggle room, but it is designed to overcome the example that I have used many times before—a relevant authority saying that seven floors are the same as five floors. At present, they get away with saying that seven is not seriously at variance to five; I think it is. I am just trying at least to get some semblance of appropriateness that relates to the provisions of the planning rules, so I am proposing to incorporate this variance test in addition to the government's appropriateness test.

It might sound like semantics, but I can tell you that the job of the environment court day in and day out, in all the cases they deal with, is to interpret the words 'not seriously at variance'. That is what they are used to doing—working out variance. Putting variance back into it actually taps into the jurisprudence that has been created over the last 20 years.

The Hon. K.J. MAHER: The government opposes the proposed amendment that would unduly limit the application of the performance-based assessment pathway set out in the bill which is intended to wholly replace the current merit-based assessment process. Planning law is applied, as the honourable member has pointed out, on a concept of 'seriously at variance' as a threshold test that limits the circumstances in which development plan consent can be granted.

In practice, this concept has not worked well, nor is it needed if we have a system that allows assessment decision-makers to undertake performance-based assessments of development taking into account its outcomes. By grafting onto this the notion of minor variances onto the performance-assessed pathways, we run the risk of reintroducing the system of hesitancy and uncertainty that can occur in the current system, entrenching reliance on numbers rather than on good planning outcomes.

Performance-based assessment is modelled on the assessment process applying to the national building rules that has worked successfully and without controversy for many decades both here and interstate. It will enable the application of flexibility and discretion to merit applications depending on design, location and the like.

The Hon. D.W. RIDGWAY: I rise on behalf of the opposition and indicate first up that we will be supporting the Hon. Mark Parnell's amendment. I say that, and I guess it is the Cremorne development, the plan allowing for five storeys and then seven being approved, and the issue of 'seriously at variance' (I cannot recall the exact language), where you have a significant variance from what the development plan allows, causes quite a lot of unrest in the community and concern.

I know the very hardworking and diligent member for Unley, Mr David Pisoni, has been to a number of community meetings where the community was initially quite concerned about any development, as often they are in some of our leafy suburbs. We are comfortable with the concept of five storeys and then quite concerned that it went to seven storeys, which is nearly 40 per cent higher than the five storeys it was before. That is a significant change.

The opposition thinks we need to try to come up with a better way of dealing with it. We understand the minister is saying that there needs to be flexibility where a development application may have some degree of variation from the development plan, but this certainly caused quite a lot of angst in that community, so I indicate that we will be supporting the Hon. Mark Parnell's amendment today. I am sure that the advisers and officials from the Hon. John Rau's office and department will go through this bill as we near the end of it and look at opportunities for where we can come back and perhaps negotiate.

We are very happy to support the Hon. Mark Parnell at the moment, but if we can come up with a set of words or a structure that allows that flexibility—and I notice the Hon. Mark Parnell shaking his head; I think he is in the same sort of space as us—

The Hon. M.C. Parnell: Nodding; shaking is that way.

The Hon. D.W. RIDGWAY: Nodding his head, not shaking his head. Nodding in agreeance—not at variance, but in agreeance. If we can come up with some structure, some words, or some mechanism that allows for flexibility, I think we would all be happy to look at that, but this evening we will be supporting the Hon. Mark Parnell.

The Hon. J.A. DARLEY: I will not be supporting the Hon. Mark Parnell's amendment.

The Hon. D.G.E. HOOD: I indicate that Family First also will not be supporting the amendment, and perhaps I will give just a brief explanation of why that is the case. To be frank, I think we have overregulated. If a particular development plan says that five levels are appropriate, then I say, 'Why not 10? Indeed, why not 15?' What is the difference? If you look at O'Connell Street at the moment, sir, and we have had restriction after restriction and because of that we have had nothing happen, that is what happens.

If we think about a time before these very intricate planning regulations were enacted in our state, and if we cast our mind back to the most beautiful houses in South Australia, and in Adelaide in particular, most people would nominate those houses built in the late 19^th or early 20^th century, that is, the sandstone villas, the cottages, the large bungalows which were built in the early to mid-20^th century. All those were built before planning regulations—all of them. People are not silly. They build things that look the best, that work the best, that are the best, and I think sometimes parliaments and governments overreach and try and restrict people from building what are the best.

The truth is that we have overreached in this place over the last decades, and anything we do to pare that back, to let people have their own creativity, to let people build what works best on that particular site is a good thing. We will not support the amendment.

The Hon. K.L. VINCENT: Dignity for Disability will support the amendment.

Amendment carried.

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

Amendment No 70 [Parnell–1]—

Page 81, after line 15—Insert:

(3a) A notice for the purposes of subsection (3) relating to an application that is required to be accompanied by a statutory declaration under section 113(1)(ab) must set out the information contained in the statutory declaration.

(3b) In addition, notice of an application for planning consent must be published on the SA planning portal within 2 business days after the application is made in accordance with this Act.

This amendment is one of a large number, the others of which will be consequential, so I will address them now and, as we get to the consequential ones, I will indicate which ones they are. This is an issue that I have raised in this place in previous years, and it goes to the known difficulty or problem of corruption in the planning system, whereby political donations are granted for the purpose of achieving development consent.

I know that I am saying that in very bold terms, but we all remember what happened in New South Wales—the 'table of knowledge' outside the kebab shop and the money in brown paper envelopes that was changing hands. It was a level of corruption that the government said could never, ever happen here. I am not here today to identify any particular brown paper bags full of money.

However, we know that since the beginning of time, when somebody has something that you want—like development approval, sale of land, subdivision rights, whatever—the temptation for people to act corruptly is there. The government for many years rejected the possibility that corruption might ever occur in the state, so they resisted having an independent commissioner against corruption. We now have one, and so for the first time now at least we have somewhere where we can take these complaints.

My issue here is not to do with preventing political donations. There is a broader agenda at work and, discussing different legislation, I would love to move to a model of public funding and not have political donations, but the next step down is to have greater transparency. This amendment and a large number of other consequential ones say that if you are undertaking a big development and you are giving largish sums of money, over $1,000—and by 'large development' I mean over $4 million worth of development—to political parties, you should declare that. It is a transparency measure, that when you lodge your development application you have to say, 'For a $10 million development and, by the way, I have given $20,000 to the Liberal Party or the Labor Party or whatever,' so it is a transparency measure.

It is not saying that you cannot give the money: it is just saying that you have to declare it. People say, 'Well, that's a bit over the top'. I think we were talking about having a cake for the 100^th clause; possibly I need a cake for the 100^th time I have mentioned this story. The Hon. Rob Lucas has mentioned it almost as many times, and that was when the CEO of the Makris Corporation, on Matt and Dave eight years ago, when asked, 'Why do you give money to political parties?' responded, 'That's the way business works here. We want our projects to happen.'

It is the clearest statement that has ever been made that I have heard at least in the history of our state that large developers and large businesses do not donate money to political parties out of their love of democracy, they don't do it out of the goodness of their hearts, but they very often do it because they want to get their developments approved. Like I say, I am not outlawing donations—I cannot do that in this bill—I am just saying, 'Let's declare them; let's cast a bit of sunlight.' When the government rises very shortly to oppose this series of amendments it might say, 'Well, we've just rehashed all our electoral laws and we now have a better disclosure regime'. I bet that is in the notes.

When I first introduced this measure there was no state disclosure regime for political donations at all—nothing, zip. All we had to rely on was the commonwealth disclosure regime which, as people know, can have a lag built into it of up to about 18 months, I think. I think it is donations on a financial year, and I think they are declared in about October and published by the Electoral Commission in about the first week in February, so there is quite a delay.

I have said that, for these larger developments, performance assessed developments, for example, and also restricted developments and impact assessed developments, they ought to accompany a statutory declaration which acknowledges what political donations that developer or would-be developer has made to political parties over the last two years.

The Hon. K.J. MAHER: I will not use the exact words Mark Parnell said that I might say, but I can indicate that we will oppose this amendment. I accept that Mark Parnell brings these amendments forward in good faith, and very often in various guises in different bits of legislation or amendments, but it is the case that there have been significant steps forward in transparency with the passing of the electoral laws in parliament last year, which we say are a more effective tool than what is being proposed here. We also had the passing of the ICAC bill.

I know that the Hon. Mark Parnell loves to talk about some comments that have been made, and I know they have been talked about here before, so I will not again go into what I think is still is the largest donation in Australian political history and some of the commentary and comments around that at the time.

The Hon. D.W. RIDGWAY: I do not have any real notes written about this, but I have a similar message for the Hon. Mark Parnell as has the government. We will not support the amendments he has proposed. There are about a dozen consequential amendments. I have the very same reasons, namely, that we had quite a review of all our funding, electoral and disclosure laws last year. That bill has passed parliament. We will operate under that now in the regime of the next state election. We think it is a good step forward, and we do not see any need at this stage to have any other further level of disclosure at this point. We think that legislation has covered it for the moment and we will not support the Hon. Mark Parnell's amendments.

Amendment negatived.

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

Amendment No 71 [Parnell–1]—

Page 81, line 24—Delete 'is not required to' and substitute 'may'

Amendment No 72 [Parnell–1]—

Page 81, line 25—After 'this section' insert:

(if the relevant authority thinks fit)

This is a similar issue to the one I raised before, which was that, if someone finds out about a development and they happen to make a comment, ought the decision maker be able to take it into account? I have this in a few different spots, but the significance of the development we are cranking up. We have the simplest form of development. The government said that this amendment would get in the way of the approval and the certainty, but as we get to more contentious forms of development that are not so straightforward, the question still remains: what if people do make a submission; what if they do say something, and if a decision maker thinks they have said something important, ought they be able to take it into account?

I did not succeed in relation to the 'deemed-to-satisfy' stream, but now we are up to the 'performance assessed development'. In other words, there is a level of assessment that is required. You have to assess it against the rules. I think you should also assess it against any other relevant information that comes your way, whether you have asked for that information or not.

Whilst I certainly did not divide, and I accepted what the minister said about 'deemed-to-satisfy' assessment, as we get higher up the food chain—it is a different food chain to the one that the accredited professionals are in—we get to the very top and we are talking about the most major projects in the entire state. We have to keep addressing this issue. If the government is serious about its planning portal, its charter of citizen engagement and all of these new information streams and ability to be involved, then I think performance assessed development is an appropriate spot to include this. My amendment simply replaces the words 'is not required to be taken into account' with 'may be taken into account if the relevant authority thinks fit'.

The words are not that different, but it is worded in the positive rather than the negative. I guess you could say that under these current words they are not required to take it into account but they could if they wanted to. I am just saying that when you word things like this in the negative, the chances are they will not take it into account.

If you say pretty much exactly the same thing in the positive, then they will at least realise that, if the information is relevant to them making a decision—and it is not just a decision whether to approve or not: it might be a decision about what sort of conditions are to be attached—it might not have been appropriate in 'deemed to satisfy', but I think it certainly is appropriate in performance assessed development.

The Hon. K.J. MAHER: The government opposes these amendments. The government does not agree with the idea that representations not made in accordance with regulations may be considered and taken into account in the decision-making process. Under certain circumstances, a landowner wanting to undertake performance-based development on their property is required to notify adjoining landowners, who may make representations to the relevant authority. It is intended that this would apply to developments that would not be reasonably expected by neighbouring property owners in that location, having regard to the provisions of the code.

The amendments moved appear to seek a means to reopen additional notification and appeal rights on elements of development that are deemed to satisfy, that is, complying, rather than performance based on merit. This will go beyond existing development right acts to notification, representation and appeal. It is quite possible that the effect of this amendment would also create further grounds for appeal by landowners where an assessment body incorrectly placed weight on representations received to which they should not properly have had regard.

It is an invitation to assessment bodies to consider extraneous matters completely counter to the approach the expert panel recommended, which is that the assessment process should be professionalised. This would be another case of re-arguing settled policy on an application by application basis and vulnerable also to our local politics. This is all the more so having regard to our other outcomes in this place on the composition of the assessment panels.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the Hon. Mark Parnell's amendments. I do actually thank the Hon. Mark Parnell. He provided the opposition with a copy of his amendments and a brief description of what he thought the impact of his amendments was. It is interesting to note that, according to the notes written on this page, the Hon. Mark Parnell thought that amendments 71 and 72 were consequential to amendment 67.

For the reasons outlined by the minister, we think this gives an opportunity for extraneous involvement from people outside the development area. Again, the points I made before were that we are trying to support the government to overhaul this planning system to remove red tape and get development activity and economic activity in this state. For that reason, we will not be supporting either of these two amendments, 71 or 72, if in fact they are not consequential, and I think the honourable member's notes indicate that they are consequential to his amendment No. 67.

The Hon. M.C. PARNELL: I think that yes, I did go to some lengths to try to give a plain English explanation of them all. I think what I probably meant by that is that it is the same issue, it is just that it is applying it to a different stream of development assessment. I did not want to agitate anything, but the reasons are the same; it is just that it applies to a different one. Technically I should have said that it is not strictly consequential because it is applying a test to a different process, but I am not going to divide on this issue.

Amendments negatived.

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

Amendment No 73 [Parnell–1]—

Page 81, lines 26 and 27—Delete subclause (6)

This is a new issue; there is no possibility of this being consequential. It goes to the integrity of the public and neighbour notification system. I am proposing to delete subclause (6), which provides:

The Planning and Design Code may exclude specified classes of development from the operation of subsections (3) and (4).

When you look at subsections (3) and (4), they are the sections that require the relevant authority to notify the neighbours. The question then is: do you notify the neighbours or do you not notify the neighbours? What subclause (6) does is say that the government can simply put a list in the Planning and design code of all the things that neighbours do not have to be notified of in a development stream where the default position is that the neighbours should be notified.

Subclause (3) talks about notifying the owner or occupier of a piece of adjacent land, and members of the public by notice placed on the relevant land—and I have just answered my question from the previous clause: the deemed-to-satisfy assessments do not have the star picket on the land, they do not have that notification, I have found that now. Certainly for performance assessed, there will be a star picket on the land with a sign on it saying, 'Development application lodged.' The neighbours will be given notification.

I know that the Hon. Dennis Hood, through his own personal experience, is not always happy with neighbour notification. My feeling is that under this new regime a lot fewer things are going to be notified to neighbours, because that is what the government said it is doing. However, if you have a stream of development where neighbour notification is appropriate, my point is that you should not be able to exclude the statutory provisions simply by making a change to a subordinate instrument.

What I am saying is that if it is a performance assessed development you still have to put the sign on the land, you still have to notify the neighbours, and I do not want the government wriggling out of it by putting something in the planning and design code. It could exclude every class of development from requiring public notification or neighbour notification, and I do not think that is in the spirit of the legislation.

The Hon. K.J. MAHER: I indicate that the amendment is opposed by the government. There should be an ability for the planning and design code to exclude specified classes of development from notification requirements. This is a key element of the code and ensures that notification is targeted to those forms of development where it is genuinely required. Development that is listed as being excluded from the notification requirements will be limited to development that is common, expected and appropriate within a particular zone. This is not a significant departure from schedule 9 of the Development Regulations, which currently excludes a range of applications from public notification.

The policy rationale for this is that the need for public notification is generally tied to zoning; thus, houses in a residential zone, factories in an industrial zone, and shops in a shopping centre zone are category 1, requiring no public notification. While councils have exercised the ability to override schedule 9 category 1 listings by including some relatively minor, low impact and zone-appropriate forms of development in the development plan category 2 listings, this should be addressed by the development of the planning and design code with consistent and rational notification requirements, and rein in some of the unnecessary public notification of minor, zone-appropriate development.

The Hon. D.W. RIDGWAY: I indicate that the opposition's understanding of this is that it is similar to when you talk about performance assessed developments, and this could particularly relate to the issue we have discussed, which is Unley Road opposite The Cremorne, and the notes that the shadow minister provided me with. This could mean that the neighbours are not required to be notified when there is a serious variance from five floors to seven floors.

I indicate that the opposition will be supporting the Hon. Mark Parnell's amendment at this stage but we will look for some clarification. If our interpretation of what his amendment does is accurate—the Hon. Mark Parnell is nodding and not shaking his head so we are correct in this—similar to his amendment No. 69, we do want development activity and we do want the economy to grow, but that 40 per cent increase from five storeys to seven storeys is a significant increase and we would look at some other mechanism or some language that may give landowners a bit more comfort.

If you are an adjoining landowner and you believe that it is going to be five storeys and you are not advised that is going to be seven storeys—I think the Hon. Dennis Hood made some comments, if it is five, one at 10, one at 15—you would be concerned. If they were happy with five storeys next door and suddenly it was 10 and they were not told about it, I think there would be some cause for alarm.

As I indicated earlier, we are happy to support the Hon. Mark Parnell now. We would also be prepared if there was some other set of words or an amendment that gave us and the community a little more comfort but did not stifle development to look at that as well, but we will be supporting the honourable member this evening.

The Hon. K.J. MAHER: It would be a disappointing outcome if the opposition supported the Hon. Mark Parnell in this amendment. This winds back the current situation and is more onerous than the current regime. It would stifle growth and it would increase red tape. Schedule 9 regulations under the current regime are less consultative than the code. We appreciate the comments that have been made already by the opposition and the support that has been given to make sure we get on with development in South Australia where it is appropriate and that we do not introduce further red tape, but we think that this is a measure that seriously does that and it has harmful effects on moving the new regime forward in that it winds it back even further than where we are now.

The Hon. M.C. PARNELL: I have some quick points to vindicate the good decision that the Liberal Party has already made. The first thing I would say is that the Local Government Association supports this provision. The second thing is that the example the Hon. David Ridgway used was exactly the right one because this performance assessed development with immediate neighbour notification is similar to what we currently call category 2 development. Unley Road was a category 2 development.

If we do not strike out this clause it could mean that the government could put in the planning and design code that 'blocks of flats on major roads are hereby exempted from neighbour notification'. They could do that. By striking out this subclause, we are stopping them from doing it. If a development really is as straightforward and simple as the minister makes out, it is going to be a 'deemed to satisfy' development and there is not going to be any notification at all; it is just going to get ticked and it is going to go ahead.

However, as you are working up the level of complexity you are getting into a more serious development, such as what is currently called category 2, and neighbour consultation should be obligatory, it should not be optional. Giving the government the ability to basically take any form of development it likes away from neighbour consultation is just wrong. I think the Liberals have made a good decision, but as the Hon. David Ridgway says, we will be recommitting these clauses and we will have another look at it later.

The Hon. D.G.E. HOOD: I would like to express Family First's views on what we see as the issues with so-called neighbour notification equivalent to the current category 2 notification. I will use my own example to explain to the committee what I have seen as problems with the particular system in place. I have recounted the story to the chamber before so I will be very brief.

Members will be aware that my wife and I made an application to put an ensuite on the side of our premises early last year. Because the ensuite was to be built off the side of our house and therefore on the boundary of the property—our main dwelling is roughly 1½ metres from the boundary of the property so the ensuite is roughly 1½ metres wide but to be built on the boundary—it triggered what is called, as the Hon. Mr Parnell said, a category 2 notification. That means that all neighbours of our property had to be written to by the council explaining exactly what we were intending to do.

That makes sense when you think about it in a simple context but, when you actually look at what it means in practicality, it seems a bit absurd, and that is because of this. We are on a 750 square metre block. Next to us we have neighbours on a similar size block, and on the other side they have about 1,000 square metres. The neighbours behind us are on about 1,900 square metres. They are all quite large blocks.

On the exact corner at the rear, there is a townhouse development which we cannot even see from our property and they cannot see us. On that particular development behind the house immediately on the side of us, well behind the street level, there are six to eight townhouses. Every single one of those individuals in that townhouse had to be written to with a copy of the plan that we were planning on putting on the side of our property for our ensuite, and every single one of them had to be written to explaining the ensuite that we were planning to put on our property.

Indeed, on the other rear corner there are also townhouses at least 100 metres away from our property that also had to be written to. I do not know how many townhouses are there, maybe eight or possibly 10, something like that. We cannot see them from our property—although, to be fair, we can see one of them from our property and it is a fair way away.

All of these 16 to 18 townhouses had to be written to by the council explaining what we were intending to do on a side of our property 1.5 metres wide by 4.5 metres deep that none of them could see. What does it have to do with them? Why would they have any say in that? None of them could see it either from the street because it is covered by trees or from their property because they cannot see it from their property. Why is it relevant to them?

Every single one of those people had to be notified by formal letter from the council explaining it to them, and then there had to be a consultation period—and I am not sure how long that was; I think it was six weeks but I may stand corrected on that—for them to foster their opinion on whether or not we, in this case, but whoever it would happen to be, could build this particular small ensuite on the side of the property. That delayed the process by about three months because by the time we had heard back from council, it was at least three months, probably longer.

This neighbour notification or category 2 development is a delay. I doorknocked every single one of those townhouses myself. I think it was 16, but it might have been 18 in total, something like that. I did not speak to every member of each household because some of them were not home at the time but I spoke to most of them. I cannot remember how many. I explained what we were planning to do, I showed them the drawn plans and everything. Every single one of them said, 'That is terrific. Great. Go ahead,' and they all said, 'We can't see it anyway. What has that got to do with us?' It was something to that effect; I am paraphrasing, of course. That is the point: it has nothing to do with them, so why should they have a say in it? We do not support the amendment.

The Hon. D.W. RIDGWAY: I think that the Hon. Dennis Hood has highlighted the dilemma that this provision causes for us where you have the circumstances that he has described. I suspect it was quite expensive; ensuites are always expensive with all the infrastructure that goes into them, but it would have been a relatively small and modest addition to his home.

When you look at the example that we have talked about with the example of Unley Road and, as the Hon. Mark Parnell talked about, a block of flats being from five storeys to seven storeys, maybe one way through this for the government is to look at how that can be separated. I think we all have a lot of sympathy for the circumstances the Hon. Dennis Hood has found himself in and I do not think anybody really supports that sort of operation of the act that slows down development and causes delay. Once you have made a decision to pursue something and you have all the planning, architectural and design work done, you want to get on with it.

Obviously we are going to support the Hon. Mark Parnell's amendment but I wonder whether there is some opportunity in a drafting way. I am no expert. I am looking to the three experts who are sitting there who offer advice to the minister. Is there some way of doing it to perhaps shift those multi-storey buildings into a different space?

We talk about 'seriously at variance'. The Unley Road Cremorne site is one we have used as an example and it is a 40 per cent increase. A development plan for five storeys gets approval at seven: it could be 10 storeys. If the development plan is 10, under that rationale, it could be 14. Maybe the variance could be as little as 20 per cent, so it sends five storeys to six and the local residents then know that the development plan says five but it could be six, or the development plan says 10 and it could be 12. Maybe that would give some clarity around what the neighbours might reasonably expect and then we might find ourselves able to not support the provision that the Hon. Mark Parnell is trying to put into the bill by deleting subclause (6). I indicate we will still be supporting the Hon. Mark Parnell at this stage.

The Hon. K.J. MAHER: This goes to the heart of a lot of what the new planning regime is about. Once in performance-based assessment, it is important to ensure good planning outcomes. These can be achieved by considering policy reasons why a numeric limit is proposed, for example, building height, which is about overlooking, overshadowing, building mass and car parking.

The planning system should provide for these matters to be managed by building design and setback which prevents overshadowing and overlooking, including the possibility of basement car parking—not just a blind adherence to exact rules or exact numbers but taking into account the design matters and the policy outcomes.

That is at the heart of a lot of what this new regime is about so, as I have said, we oppose the amendment. I understand how the Liberals are going to vote and where the numbers lie for the sake of tonight's vote. However, if this is recommitted, we would seriously hope that the opposition reconsiders their view and comes down on the side of reducing what we say is completely unnecessary red tape.

The Hon. D.W. RIDGWAY: I guess that strikes at one of the dilemmas that the opposition has, that is, we have not seen the code. The minister is asking us to reconsider our position, which, of course, this evening we will not be doing, but that is why we need the codes. We need more information. This is like a framework. It is the people in the suburbs who have been concerned, and I keep coming back to the example of the development on Unley Road. They accepted five storeys but then they got seven.

I guess what I am doing tonight is letting the minister know, and minister Rau, and their great team of experts. Of course, the Hon. Mark Parnell has a couple of staff and I have a couple and Steven Griffiths has a couple, but the minister has a team—an army—of experts supporting him and the Minister for Planning. We are inviting you to have a look at this and to come up with perhaps a better way of dealing with it. We are sympathetic to what you are trying to achieve. We just think it is a relatively cumbersome way of doing it.

The Hon. Dennis Hood has put his example on the record on several occasions. We absolutely agree with the dilemma he has been faced with but we also see that there are some issues. We will continue to support the Hon. Mark Parnell tonight but we do invite the government to give us some sort of options as we progress to recommit the clause later.

Amendment carried; clause as amended passed.

Progress reported; committee to sit again.

At 22:34 the council adjourned until Thursday 25 February 2016 at 11:00.