Planning, Development and Infrastructure Bill

Committee Stage

In committee (resumed on motion).

Clause 103 passed.

Clause 104.

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

Amendment No 6 [Parnell–2]—

Page 84, after line 12—Insert:

(2a) If a person is to appear personally or by representative before the Commission to be heard in support of a representation made, the Commission must, at least 5 business days before the appearance, ensure that—

(a) a copy of the application and any accompanying documents; and

(b) a copy of any report prepared by or on behalf of the Commission in relation to the application,

are published on the SA planning portal and available for inspection and downloading without charge.

The luncheon break came at a very opportune time because I had a question on clause 103, but I answered it myself, so I have saved the council time by not having to ask it. Amendment No. 6 [Parnell-2] basically seeks to put into legislation the current practice of the Development Assessment Commission, and the practice is that, when somebody, having put in a written submission, is entitled to front the commission and have their say, then the commission has had the quite sensible practice of giving them at least five business days' notice and also making sure that any representors have a copy of the application, copies of any accompanying documents and also a copy of the expert planner's report on which the Development Assessment Commission will rely.

That has been the practice of the Development Assessment Commission. I think it is a good practice, so the purpose of this amendment, in inserting a new subclause (2a), is simply to reflect that practice. The alternative to inserting this is that maybe good practice will prevail even without this clause being in, but there is also the risk that slack practices could creep in. You might get a situation where someone gets a phone call saying, 'It's 2 o'clock tomorrow afternoon; that's it,' which does not give people time to prepare.

It could also transpire that not all the documentation is available. I hope I am wrong. I hope it will all be up on the portal—that is the whole purpose of it—but it just seems to me that this is a longstanding practice of the Development Assessment Commission to give notice and to make sure that the documents are available, and I think it is helpful to incorporate it into the legislation.

The Hon. K.J. MAHER: I might speak to what the clause does first, and then I will speak to the Hon. Mark Parnell's amendment to clause 104. Clause 104 talks about restricted development. Restricted development is classified by the planning design code and will relate to types of development that are not envisaged for a zone or have impacts that are required through that assessment.

It is equivalent to noncomplying development, which currently requires an applicant to apply to a council for approval, at which point a council may refuse to consider the application and, indeed, the council may refuse the application at any point with no right of appeal. Should the council agree to proceed and approve the application, the Development Assessment Commission must concur with the council's decision, known as 'concurrence'.

We have made changes to streamline this process and provide greater certainty for applicants by removing the requirement for the dual assessment (the concurrence) by introducing new applicant rights, including for internal review of an early no by the commission and the right of appeal to the court against the decision to refuse after having gone through the full assessment process. Examples could include an application for a gin distillery or a microbrewery in a rural zone.

The commission is a relevant authority. The commission must have regard to the planning and design code, but is not bound by it because the reason it is restricted is that it was not envisaged at the time the code policy was drafted. Accordingly, it is subject to a more rigorous assessment which may bring to light information that will enable the commission to consider it. For example, breweries used to be like the West End Brewery at Thebarton but are now more likely to be microbreweries operating out of a large shed with far less impact on local water supply and other such things, but it is classified as the same land use and, therefore, deemed noncomplying at present.

The application is subject to public notification requirements and will be the same as category 3 under the Development Act, including neighbouring property owners, the public generally and newly, by notice, affixed land. This allows the planning system to be more responsive to changing markets and economic opportunities when they arise. The public has the right to make representations and to appeal in relation to restricted developments.

In relation to the [Parnell-2] 6 amendment, the government supports this amendment. I was getting there; just leaving him in suspense. The application and reports, etc., are already intended to be made available via the public notification and should be published. I would only add that this was likely to have been expressed later by regulation under clause 104(2)(a), in any case. However, the Hon. Mark Parnell's amendment effectively elevates it to the act rather than leaving it to regulation under that clause we are about to come to.

The Hon. D.W. RIDGWAY: I indicate the opposition will also be supporting the honourable member's amendment.

Amendment carried.

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

Amendment No 76 [Parnell-1]—

Page 84, lines 13 to 15—Delete subclause (3)

This amendment seeks to delete subclause (3), which provides:

The Commission may dispense with any requirement under subsection (2)(a) if the Commission considers that the giving of a notice envisaged by that subsection is unnecessary in the circumstances of the…case.

If you go back to (2)(a), that talks about notice to neighbours, notice to people of a prescribed class, notice to the general public, and comes back to the old star picket and sign on the land; so it is the full gamut—everyone must be told. 'The Moon and Mars Courier', no doubt there will be an ad in there as well.

The reason for telling everyone about it is that, as the minister has said before, it is restricted development. It was not envisaged by the planning rules, so it is something that is out of the ordinary. The logic of my amendment is that if it is something that is out of the ordinary, if it is something a needs a special level of assessment, it is difficult to see why the commission should be given the power to effectively say that no-one needs to be notified.

A major part of this assessment stream is that it does not fall within the rules; therefore, you have to tell people about it and it gets debated on its merits. To put this into context, the whole of this bill is about giving people the chance to comment on the rules and giving people less chance to comment on individual development applications. Having engaged the community at great length in the rules, here is something that does not fit the rules; therefore, why would you also dispense with notifying people about it? It is an internally illogical position.

I know that the minister will say that it would be rarely used, it would be for minor technical sort of matters, but really the commission has, I would say, an unfettered discretion because all the commission has to do is form the view that giving notice is unnecessary. There is no particular guidance as to what that might be. I know the minister will go back to clause 103 and say that the commission is going to prepare practice directions. It is certainly not clear from that clause that there will be practice directions about when public consultation will not be required. It seems to me that if something is seriously enough outside the planning rules, you do not want to be dispensing with public notification.

The other common-sense thing to say is this. Let's say it turned out to be something that was fairly minor and it was technically just outside the rules or whatever. You are not going to get floods of people lodging objections. It does not happen like that; that is not the experience. So, I think the safest thing is to say that with this form of development, this pathway, restricted development, do not give the commission the option of opting out of neighbour notification or opting out of public notification: leave it in as a mandatory provision. That requires the deletion of subclause (3).

The Hon. K.J. MAHER: The government will oppose the Hon. Mark Parnell's amendment on this clause. The commission should have the ability to dispense, in the rare circumstances that it might be reasonable, with the notification requirements for the restricted development. This provision provides for a level of flexibility that is sometimes required in relation to such proposals. For example, proposals may involve minor alterations and additions or ancillary building or works that might be required to ensure compliance with other legislative requirements. Some land uses may be subject to Environment Protection Authority licensing requirements that can over time be revised. There are often circumstances where, in order to meet such changed requirements, minor noncomplying work may be required, and it is appropriate to dispense with the needs to undertake notification for existing developments.

Another example is a roadhouse in a remote location, where shops are often treated as a noncomplying development. With very few people likely to be affected, it may not always be reasonable for a person to be required to install a sign on the land to meet clause 104(2)(a)(iv). This is a decision for an independent arm's length commission that will be trusted to use this power appropriately. As the Hon. Mark Parnell has already foreshadowed, I will reference clause 103, which sets out the requirements to be met in publishing practice directions for restricted developments.

The Hon. D.W. RIDGWAY: A bit of clarification: I may not 100 per cent be following where we are up to, although I know which amendment we are dealing with. When the minister just explained the reasons for the government not supporting the amendment, he talked about minor developments, minor alterations. Does that capture, under this part of the bill, the issues the Hon. Dennis Hood has raised with his minor alterations to his domestic property, namely, an ensuite? I did not think it did. Am I on the same wave length or not?

The Hon. K.J. MAHER: I am advised that it probably would not take into account the Hon. Dennis Hood's ensuite, as much as we like talking about it. Everybody supports Dennis's dunny—I think that is undisputed. That would be a performance assessed stream. This talks about minor noncomplying work. Some of the examples given might be minor noncomplying work that is required to meet EPA licence conditions or minor noncomplying work in a very remote roadhouse. They would probably be better examples than the Hon. Dennis Hood's ensuite.

The Hon. D.W. RIDGWAY: In that case the opposition is comfortable—

The Hon. K.J. Maher interjecting:

The Hon. D.W. RIDGWAY: Gin distilleries. I was reading an email from parliamentary counsel earlier on when the minister mentioned distilleries and small breweries. Listening to the explanation of the Hon. Mark Parnell, if something is outside the range that he described in the explanation of his amendment, the opposition feels at this point in time that it would be very happy to support the Hon. Mark Parnell's amendment.

The Hon. D.G.E. HOOD: The Hon. Mr Parnell will be pleased to hear that we will be too.

Amendment carried.

The Hon. M.C. PARNELL: My amendment No. 77 on file is consequential in that it relates to my issue of disclosing donations: we have dealt with that, so I will not be pursing it. I move:

Amendment No 7 [Parnell–2]—

Page 85, after line 4—Insert:

(8a) If an appeal is lodged against a decision on a development classified as restricted development, the Commission must ensure that notification of the lodgement of the appeal is published on the SA Planning portal.

This is a fairly straightforward notification provision. As the minister has explained, these are the types of developments that can be appealed, they can end up in court. I am proposing the insertion of a new paragraph (8a), which simply says:

If an appeal is lodged against a decision on a development classified as restricted development, the Commission must ensure that notification of the lodgement of the appeal is published on the SA Planning portal.

Really, it is out of an abundance of caution that the government is going to be putting application documents up and it is going to be putting a decision document up. If something is appealed, then I think they should put that up as well, just so that the public knows exactly what stage the development has reached.

They will know that it was applied for. They will know that it was approved, but what they will not know is whether anyone has challenged it. They will know if this amendment is inserted because it will be in addition to the portal, just the fact of an appeal having been lodged. It does not create any rights, it does not enable any people to appeal who would not have otherwise been appealing; it is simply a notification provision.

The Hon. K.J. MAHER: I thank the honourable member for his amendment. The concept of the appeal notification certainly has superficial reasonableness and appeal on the face of it, and the government is not completely opposed to the idea which you are putting forward. However, the government prefers that the amendment does not proceed at this time until there has been a conversation with the courts, as well as full consideration as to whether a failure in any notification system between the courts and the commission could give rise to a challenge.

The government will oppose the amendment, but it is happy to provide an undertaking that it will be flagged for consideration after we have looked at those issues that I just outlined, flagged for consideration in the regulations provided for under clause 47(2)(d), which could include this matter.

The Hon. M.C. PARNELL: I will just say that I accept the minister's position. I think the sensible course of action, as we have done in other clauses like this, is to support the amendment, and if the government makes the case that there are unintended consequences, we can take it out later.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be opposing the Hon. Mark Parnell's amendment. I think the minister is saying that there may be some room to move, but the Liberal Party position is to oppose the amendment. We will not be supporting it today

Amendment negatived.

The Hon. M.C. PARNELL: I have a further question on this clause. One of the aspects of this assessment pathway of restricted development is what is colloquially known as the 'early no'. It is similar to what we have at present, when it is called 'noncomplying development', and it basically gives the decision-maker the ability to say no, with no comeback on the part of the developer, because they have pushed the envelope too far and it is clearly not going to fly.

A good example, and one I like to use, is the application for the abattoir in Burnside, the residential zone of Burnside. You would look at the planning scheme and you would think, 'Well, it is good for houses, but abattoirs are on the noncomplying list.' If someone wants to give it a run, lodge their application for the abattoir in Burnside, it makes sense for the decision-maker to be able to say no, and that is the end of it. I think that is a reasonable provision; it is replicated in the current bill.

What is interesting is—and I might stand corrected—that there is now a new provision that says that if the applicant (the would-be abattoir operator) is unhappy with that early no, then they can actually get that decision reviewed. I refer to subclause (15), which says:

A decision to refuse an application under subsection (14) without proceeding to make an assessment is, on application under this subsection by the applicant, subject to review by the Commission itself.

My question is: how is it envisaged that that would work? Obviously, you have a developer who is unhappy. Effectively, the developer is saying, 'You've said no to my project and you haven't even properly assessed it.' They go to the commission and say, 'I don't think that's right.' My question is: how is this review process going to work? Would other stakeholders be invited to come along and express their views to the commission about whether this early no is in fact unreasonably exercised?

The Hon. K.J. MAHER: I understand what the honourable member is asking. The answer is that you are not allowing anything to proceed; you are not giving the green light to any development. There is a full process that happens if you have the early no, rejected. I understand what is being asked but I think a full-blown consultation process about whether to go to another full-blown consultation might be overdoing it. I understand what you are saying but the answer is that this is not about allowing something to go ahead or a development to proceed, this is just about asking: can it go to the consultation; can we see if it will proceed or not?

Clause as amended passed.

Clause 105.

The Hon. M.C. PARNELL: This is where we proceed with great speed now because my amendments Nos 78, 79 and 80 all relate to the donations disclosure issue. They are all consequential so I will not be moving them.

Clause passed.

Clause 106 passed.

Clause 107.

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

Amendment No 8 [Parnell–2]—

Page 87, after line 18—Insert:

(ab) the expected effects of the development on the climate and any proposed measures designed to mitigate or address those effects;

Amendment No 9 [Parnell–2]—

Page 87, lines 25 to 27—Delete 'if the development involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993,'

At one level this might be regarded as consequential but I think we just need to agitate it again. It is the issue of climate change and taking climate change into account in making decisions. Clause 107 is about Environmental Impact Statements (EISs). Subclause (4) is a list of the things that have to be taken into account subject to any practice directions. In other words, it is an indicative list of things that are going to be included in an EIS.

I want to add to that list the expected effects of the development on the climate and any proposed measures designed to mitigate or address those effects. The important thing to note is that, whilst we are adding that to the list, it is subject to any practice direction. If, for example, there was nothing whatsoever relevant to climate change about the development, if it had no bearing at all, then it would not need to be considered, but in most cases there is some element that needs to be considered. It may well be in relation to energy use, when you have developments on the coast for example and you have issues of sea level rise. There will be many cases where climate change should be taken into account.

I note that the first thing that the EIS must include is the expected environmental, social and economic effects of the development. That is your classic EIS—that is what it is: economic, social and environmental effects. Adding climate change helps to reinforce the government's commitment, stated many times over, that climate change should be taken into account in the assessment of major decisions. Decisions on these types of projects, given that they are big enough to require an EIS, I think specifying climate change makes sense.

The Hon. K.J. MAHER: In relation to clause 107 generally (which I think will help with regard to this particular amendment), the provision largely replicates the existing environmental impact assessment process. It is almost a cut and paste from what there was previously to what there is now; it is a process that I think is well understood by the community and industry, and lawyers who have been involved in planning.

One change relates to the omission of the clause contained under section 48E of the Development Act which is purported to prevent judicial review of decisions made under this process. This was omitted because such clauses are typically read down by courts in any event. The impact assessed development, other than restricted development, can either be classified by the regulations or declared by the minister. The commission will determine the level of assessment in accordance with clause 106.

The EIS process stipulates consultation requirements with the EPA, councils and other relevant ministers and prescribed bodies. Copies of an EIS are to be made available for public inspection, and written submissions invited. The applicant must respond to submissions received. The minister, as the relevant authority, can make decisions and must prepare an assessment report which is published as required under the government's amendment No. 38, set 4.

In relation to the particular amendment to insert the reference to climate change, as the honourable member has pointed out there is already an environmental impact statement prepared by the proponent. Not all developments will necessarily have an impact on climate change, thus it should not be necessary to address the topic in all cases, as I think the honourable member's amendment would force to happen. It would duplicate requirements already imposed.

As the Hon. Mark Parnell pointed out, clause 107(4)(a) has a reference to the environmental effects of the development, and also clause 107(4)(b)(i). In light of the new requirement to have a state planning policy on climate change, which has been a previous big win in terms of amendments, given that new requirement I think it is largely redundant that every possible proposal, that may not have an impact on climate change, will require it, given that clause 107(4)(b)(i).

So the government opposes this amendment. It appears to be a bit of extra red tape, given what has gone before. I do appreciate that both these amendments would have been lodged before it was known whether the first one was going to pass, but given that one did pass we strongly feel that this one has been made somewhat redundant by the passage of the previous amendment.

The Hon. D.W. RIDGWAY: I thank the mover and the minister for their responses and also the Hon. Mr Parnell for his description when he moved it. I will talk to both amendments Nos 8 and 9 [Parnell-2] as the two that I think effectively—

An honourable member interjecting:

The Hon. D.W. RIDGWAY: It might give you some clarity if I tell you what I am going to do. I know that the minister thinks it has been superseded by the previous amendment, but we do not see any problem in supporting amendment No. 8 [Parnell-2]. We do not think there is any problem with having that new paragraph (ab) to the expected effects of development on climate and any proposed measures designed to mitigate against or address those effects. We do not have any problem with that, but we do have a problem with amendment No. 9 so I indicate that we will not be supporting his amendment No. 9, but we will be supporting his amendment No. 8.

The Hon. M.C. PARNELL: I thank the Hon. David Ridgway for his indication. I accept what the minister was saying; I am pretty sure I drafted this before I knew that we would have a state planning policy on climate change. Nevertheless, I think the Minister for Climate Change would be delighted to see references to climate change in as many places as possible in the Development Act. I do accept that it will not be relevant in every case, but I make the point (as I think the Hon. David Ridgway has picked up) that it is subject to practice direction, so if it is not relevant it will not to be taken into account. However, I will briefly address amendment No. 9 of set 2, and I will invite the Hon. David Ridgway to just have another think about it.

The reason I have sought to modify paragraph (c) is that it says only for EPA licensable activities is it required for the EIS to take into account the objects of the Environment Protection Act, the general environmental duty under the Environment Protection Act or any environment protection policies under that act. The reason I think that is the wrong way to go is that those three things—the objects of the act, the general environmental duty and the environment protection policies—apply to the entire state and to every activity conducted in the state. They do not just apply to activities that need an EPA licence.

A classic example is, say, a wood processing factory or something like that. There are always thresholds that are written into the Environment Protection Act and, if you are over a certain size, you have to get an EPA licence. If you are below that size, even though you might be a potentially polluting industry, you still have to comply with environmental laws and policies and the general environmental duty, but you are not regarded as big enough to need a separate licence.

That is the structure under the Environment Protection Act. Everyone is bound to comply with these antipollution laws but only certain operations are obliged to have a licence. The way the government has worded this is that the only time the EIS has to deal specifically with the Environment Protection Act is if it is a licensable activity that is being proposed, yet often the activity might not be the perpetrator of the pollution: it might be the victim of the pollution.

The classic example of that is a major housing estate being built next to heavy industry does not require an EPA licence. If the application is for the big housing estate, it does not need an EPA licence. The heavy industry that it is close to might need an EPA licence. In other words, if it was reversed and someone came along and wanted to build heavy industry next to a residential area, yes, that would require an EPA licence and, yes, the EIS would have to have regard to the Environment Protection Act and its policies and its duties. So, really, it is actually a matter of logic that an act that applies to the entire state, and to all activities in the entire state, should not be simply read down narrowly as if it is only relevant to EPA licensable activities. That is the thrust of the amendment.

I take what the honourable minister has said before that it says 'environmental'. It is one of the first words and they do have to take environmental matters into account, but the Environment Protection Act has specific things such as the policies that relate to how water is to be managed. There are policies about burning and farmers, I guess—that is an environment protection policy. The question is: should that stuff be taken into account? I think it should.

I do not think there is anything particularly sneaky in it. It is basically saying that this set of state laws should be taken into account when writing EISs because they are laws that have to be complied with and they might as well be taken into account in the decision-making process.

The Hon. K.J. MAHER: In relation to amendments Nos 8 and 9, but referring specifically to amendment No. 9, that amendment provides that all proposals requiring environmental impact statements should include consideration of EPA impacts, not just for EPA licensable activities. It is argued that this is not justified and would represent additional workload for all proponents in preparing an EIS. By comparison to the status quo, the amendment would restrict the requirements to only those activities that have been prescribed as having environmental significance under the Environment Protection Act.

As to the example raised by the Hon. Mark Parnell on the houses and the heavy industry, I think he means—and he will nod one way or another if I am getting it right or wrong—that if a proponent wants to build a factory near a house, they need a licence from the EPA but, if someone wants to build houses near a factory, that does not require an EPA licence—which is true.

Housing adjacent to industrial zones is a matter for zoning to be addressed by the code. There are already existing zones that restrict or impose additional requirements on industrial residential interfaces. While the Hon. Mark Parnell's statement is true in terms of how houses being built do not require an EPA licence, a proponent wanting to build houses in an appropriate area would need to apply to change the planning and design code in order to allow such residential use in an industrial zone.

This change to the code would be subject to the checks and balances set out in the bill in relation to alignment with the regional plan, community engagement under the charter, and ultimately our parliamentary disallowance. It is argued for amendment No. 9 this additional layer of red tape is not warranted and we will oppose amendment No. 9.

The Hon. M.C. PARNELL: So be it. I may have changed the Hon. David Ridgway's mind in relation to amendment No. 9? No, it does not appear that I have. So, a bird in the hand: I will take the Liberal support for amendment No. 8 and accept the result on amendment No. 9.

Amendment No. 8 carried; amendment No. 9 negatived.

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

Amendment No 38 [Emp–4]—

Page 89, after line 11—Insert:

and

(c) ensure that a copy of the Assessment Report is published on the SA planning portal.

This amendment is proposed in response to a matter raised in another place. Members there suggested the publication on the portal of the assessment report, which sets out the minister's assessment of the development, the minister's comments, the environmental impact statement, any submission responses to the submission and the like, and other matters the minister or the commission thinks fit.

Currently all environmental impact statements, DRs and PERs are uploaded onto the government website for the public consultation period and remain there, as well as being available for inspection and purchase; however, the proponent's response document and the minister's assessment report are not usually made available or uploaded until the day the decision is gazetted when they are published and uploaded together with the decision. The proposed amendment to clause 107(10) reflects the government's intent that we maintain this practice of making assessment reports available online via the SA Planning website.

The Hon. D.W. RIDGWAY: The opposition will be supporting the government's amendment.

Amendment carried.

The Hon. M.C. PARNELL: I wanted to make another comment about this clause before we pass it. The minister earlier on referred to the notorious section 48E. That is a section of the current Development Act and it is a section which basically says that no matter how unlawful—and I am paraphrasing—a decision is, no matter how appalling it might be, no-one is allowed to go to court and challenge any part of the process.

I think it was probably one of my very first amendments 10 years ago to try to get rid of section 48E. I think I have probably tried three or four times. My enthusiasm might have waned in recent years but I am sure that I have tried to get rid of it several times. I just wanted to put on the record my congratulations to the government for having finally got rid of section 48E. I know it is not necessarily because of my advocacy on the issue. My understanding is that the government is moving towards being able to have full decision-making power over commonwealth environmental decisions. This is a matter that has been raised in the past and my recollection of a couple of years ago is that the government was not interested in going down that path.

What we are talking about are things called 'approvals bilaterals' under the commonwealth Environment Protection and Biodiversity Conservation Act. It is this notion that, rather than have two separate processes where the commonwealth assesses a process and the state then assesses a process, and then you have two separate decisions, where I think the law is heading—and I do not support this—is not only will the two assessment processes be combined but the decision-making process will be combined. One of the reasons why South Australia would never have got approval to be able to make these commonwealth decisions is because we have had this horrendous section 48E.

The Hon. K.J. Maher: So, do you want it brought back in?

The Hon. M.C. PARNELL: No, I don't want it back in. I have just congratulated you on taking it out; don't put it back in. I am just making the point that one decision that I think this parliament will possibly need to make is the extent to which we are happy for the commonwealth to handpass all their responsibility for things like nationally-listed endangered species or migratory birds or the protection of Ramsar wetlands, of which there are several in South Australia. We will have to decide to what extent we are prepared to let the commonwealth off the hook and have all these decisions made at the state level. I just flag that as a debate to come.

Clause as amended passed.

Clause 108 passed.

Clause 109.

The Hon. M.C. PARNELL: Amendment No. 81 [Parnell-1] is consequential, so I will not be moving it.

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

Amendment No 5 [Ridgway–4]—

Page 91, line 40—Delete subclause (10) and substitute:

(10) A decision of the Minister under this section is, on application under this subsection by the proponent, subject to review by the Commission.

(10a) An application under subsection (10) must be made in a manner and form determined by the Commission and must be made within 1 month after the applicant receives notice of the decision subject to review, unless the Commission, in its discretion, allows an extension of time.

(10b) On an application under subsection (10)—

(a) the Commission may adopt such procedures as the Commission thinks fit; and

(b) the Commission is not bound by the rules of evidence and may inform itself as it thinks fit.

(10c) The Commission may, on a review under subsection (10)—

(a) affirm the decision subject to review; or

(b) send the matter back to the Minister for reconsideration in accordance with any directions or recommendations that the Commission considers appropriate.

(10d) No appeal to the Court lies against—

(a) a decision of the Minister under this section; or

(b) a decision of the Commission under subsection (10c).

This is quite a large amendment which deletes subclause (10) and substitutes a new subclause. We have been trying to do this in a number of our amendments, that is, to remove the minister from some of the decision-making and give the commission more power. As members have heard me say in the debate at various times, our desire is to have a very independent planning commission, and we think this amendment goes a long way towards having a more independent planning commission.

I expect the government will not agree with us on this particular issue, but certainly the opposition, as I have said a number of times, has been striving to have a commission that is more independent and less able to be influenced politically, which would effectively take some of the politics out of planning. The government has wanted us to support their view of not having any of local government involved in the development assessment panel, saying we have to take the politics out of planning. We want to do the same by trying to take the minister further out of the process. I urge all members to support this amendment to give us some chance of having a more independent planning commission.

The Hon. K.J. MAHER: I rise to indicate that the government will oppose the Hon. Mr Ridgway's amendment as it would provide a proponent with a right of appeal to the commission against a decision of the minister in relation to an impact-assessed development. The provision as drafted reflects the current major development provisions in the Development Act. The decisions of the minister to refuse or approve a development under these provisions can only be made after the requirements of an environmental impact statement, set out in clause 106, have been met.

The decision-making power is appropriately set at the ministerial level. This is not to say, however, that the commission does not have a strong role in the process. The commission's role in this bill is analogous to that of the Development Assessment Commission in the EISs under the Development Act. The bill sets out the level of detail required in the EIS, and the commission is responsible for preparing the practice directions setting out how the EIS must be prepared by the proponent. The commission also prepares the assessment and report under clause 107(9).

This amendment would allow a proponent a right of appeal and provide the commission with the power to direct or recommend how the minister should reassess a proposal. The government cannot support an amendment that would effectively provide a power of veto to the commission over an elected representative of this parliament. This amendment is not consistent with the status quo. It goes a lot further, and the government opposes it.

The Hon. M.C. PARNELL: I acknowledge the Hon. David Ridgway's ambitions with this clause. Not even I thought that we might get an appeal mechanism in there. The one thing that is standing between the Greens and supporting this proposal is that the Liberal amendment limits this review power to the proponents. If the review power was extended to the third-party objectives, for example, or those who put in submissions, then we may well be on the same page. He has had a good go, I think.

The way that it would work, as I see it, is that the minister basically says no. To be honest, it is more likely that the minister attaches some condition that the proponent does not agree with. In other words, it might get a yes, it might get approval, but there might be a condition that is in dispute. The way this Liberal amendment would work is that the proponent would go back to the commission and say, 'Look, we think the minister's got this terribly wrong here.'

The commission could then say one of two things. They can say, 'No, you're wrong, the minister's completely right. The minister acted on our advice, the minister hasn't made any mistake at all. Go away,' or, the planning commission could say to the minister, 'Look, can you have a look at this again? We think that the proponent has a point here. You haven't quite got this right,' and it would be sent back to the minister for reconsideration.

Of course you could end up with a circular position, where you just had review upon review upon review, because there is no circuit-breaker because there is no appeal to the court. You could keep going backwards and forwards between the aggrieved proponent and the commission, just leaning on them to try to get the minister to make a different decision on the conditions.

We cannot support it as it is, but we are more than happy to work with the honourable member. If he was interested in providing an avenue for third parties to also be able to challenge decisions that were made by the minister, then I think we could talk turkey and I think we might be able to come up with something. A one-sided review process where it is only a developer who gets to revisit the decision, we cannot accept that.

The Hon. D.G.E. HOOD: The Hon. Mr Parnell has highlighted succinctly why Family First cannot support the amendment either; that is, my understanding of this process is that it could create a circular for never-ending review of the minister reviewing the commission reviewing the minister, etc. In the Westminster system the minister should have the final say.

Amendment negatived.

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

Amendment No 39 [Emp-4]—

Page 92, line 9—Delete '$250,000' and substitute '$120,000'

The amendment to clause 109 achieves greater consistency of penalty levels and reflects concerns raised by industry. In drafting the new bill, the opportunity was taken to review the penalties which were last revised in 2007. The penalty levels in these provisions, when compared with the Development Act, align with recommendation 15.3 of the Expert Panel on Planning Reform; that is, the enforcement of sanctions for noncompliance with planning rules and guidelines is crucial to the integrity of the system.

Penalties need to match the scale and nature of breaches. They should deter noncompliant behaviour but should not impose disproportionate burdens. Where it has been necessary to ensure deterrents for serious offences are maintained, the government deemed it appropriate for penalties to be increased. As all offences of the new bill are classified as summary offences heard within the criminal jurisdiction of the ERD Court, the limit for maximum penalty is proposed to be $120,000, consistent with the general limit for summary offences under the Summary Procedures Act 1921.

Accordingly, the government is determined to amend the maximum penalty provision under clause 109(11) down from $250,000 to $120,000 for those reasons. The offences under this provision are set out in subclause (11) and address undertaking the development without consent of the minister contrary to development authorisation or contravening or failing to comply with the condition on which the development authorisation was granted. These are all serious offences, which are reflected in the maximum penalty of $120,000. An example could include a factory failing to put in pollution control measures in line with a condition of approval.

The Hon. M.C. PARNELL: I have just a few questions in relation to this. The minister mentioned that it is the Environment, Resources and Development Court that will determine penalties if someone is charged with one of these offences. Can the minister confirm what is the maximum criminal jurisdiction of the ERD Court, because my recollection is that it is much higher than $120,000? I know that under the Environment Protection Act we have million dollar fines. I do not think the ERD Court can necessarily do the biggest fines, but could the minister tell us what is the maximum monetary penalty that that court is allowed to impose?

The Hon. K.J. MAHER: I will get that information in a moment, but the important part is the maximum penalty that a summary offence can be, which I outlined in my answer. Even if it was a lot higher, if it is higher than the maximum summary offences limit, it would not matter. For the sake of completeness, if you still want the answer, I think I have it. I am able to advise the honourable member that we do not have that information, but still it would be limited. The fact that we have reached the maximum summary offences limit of $120,000, it might be a bit of a moot point if you could go even higher; for the consistency of a summary offence we have maxed out at that. Even if the ERD Court criminal jurisdiction could go higher, it would no longer be taken into the realms of the summary offence, which it is intended.

The Hon. M.C. PARNELL: I am not proposing to oppose the amendment on that basis. I expect the minister is quite right, that there are limits to summary jurisdiction. It reminds me of a cartoon I used to have on my wall, depicting a little kid with a rubber ring, having just come out of the water, and it has all this goop dripping off it. He is standing in front of the chairman of the board and he says, 'Who put all that gunk in the water?' and the chairman of the board says, 'We pay the fine, kids, okay?' In other words, paying the fine is cheaper often than doing the work that you should have done to prevent the pollution.

I only use that example because the minister said that a breach that might attract prosecution might be, for example, under subclause (11)(c), someone who fails to comply with a condition. A condition might be to put on the pollution control device; if they do not put on the pollution control device they can be fined, under this amendment, $120,000. If the pollution control device costs $20 million, then this is a bargain.

My question is: is this potentially a daily fee for breach? Often you have in legislation a provision which says that for every day that a condition remains unfulfilled, or for every day that you are in breach, there are additional penalties. Is this a one-off or potentially could it be imposed on a regular basis for a continuing failure to comply with a condition of an approval?

The Hon. K.J. MAHER: We will have an answer to that shortly, but in relation to your previous question I can now advise that, for a minor indictable offence in the ERD Court, the maximum fine the court can impose is $300,000. That is for a minor indictable offence and not a summary offence, which we are talking about here and which under the Summary Procedures Act is limited to $120,000.

I note the example the honourable member gave about the economies of copping a fine in relation to the economic profit you get, but if it was a $20 million prevention measure it is probably not going to matter whether it is $120,000, $250,000, $500,000 or $1 million if that cartoon was to be a real case. I am advised that clause 3(6) defines a default penalty that can be applied to every continuing day of the offence; clause 3(6) in the definitions, Default penalty.

The Hon. M.C. PARNELL: Thank you for that answer, minister, because I was not aware of that. The default penalty here is $1,000, so basically you could keep pinging these people for $1,000 for every day that they are in breach.

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: No, if the judge threw the book at them, the maximum penalty is $120,000, and if they have not fixed it straightaway I would have thought there was a penalty of $1,000 a day. I take the point that there is an incentive there, obviously, in getting yourself compliant. I feel that the penalty is still a bit light, because it is not just about failing to comply with the condition. You have someone who actually goes ahead and builds whatever it is without getting any approval at all—it includes that—or they build something different to what was approved.

I will not pursue it because, if in that situation someone does build something other than what was approved, then there are other mechanisms in this act to make them knock it down or bring it into compliance. I do not need to pursue this anymore, but I thank the minister for his answer in relation to the daily default penalty of up to $1,000.

The Hon. D.G.E. HOOD: Very quickly, I think the arguments that have been put forward are quite sound, but I think the other thing that should be added is that there is of course substantial reputational damage to an organisation that would be seen to be flagrantly breaching rules, which I think, in the case particularly of large organisations, they would be very concerned about. That is something that would have an impact on them, as well as any financial penalty.

The Hon. D.W. RIDGWAY: The opposition will be supporting the government's amendment.

Amendment carried; clause as amended passed.

Clauses 110 and 111 passed.

Clause 112.

The Hon. D.W. RIDGWAY: I have three amendments. I suspect that I could probably move them all at once because they all relate to the same issue, that is, the adaptive re-use that we had some success with some amendments towards the end of last year, when we were debating this bill. My understanding is that they are almost the same as the government's amendments. I assume that we do still have the government's support, so I will not delay the chamber any longer.

The Hon. K.J. MAHER: All the amendments to clause 112? I think there are six.

The Hon. D.W. RIDGWAY: I move all the amendments standing in my name that relate to adaptive re-use:

Amendment No 3 [Ridgway–2]—

Page 93, line 21—After 'Building Code' insert 'or a Ministerial building standard'

Amendment No 4 [Ridgway–2]—

Page 93, line 23—After 'Building Code' insert 'or a Ministerial building standard'

Amendment No 5 [Ridgway–2]—

Page 93, line 33—After 'Building Code' insert 'or a Ministerial building standard (as the case maybe)'

Amendment No 6 [Ridgway–2]—

Page 94, line 4—After 'Building Code' insert 'or a Ministerial building standard'

Amendment No 7 [Ridgway–2]—

Page 94, line 7—After 'Building Code' insert 'or a Ministerial building standard'

Amendment No 8 [Ridgway–2]—

Page 94, line 22—After 'Building Code' insert 'or a Ministerial building standard'

They relate to adaptive re-use, which of course the government supported before the end of last year, and I think other members were also happy to support it, so I urge all members to continue that support.

The Hon. K.J. MAHER: I indicate that we undertake to support the three amendments and will, in fact, double down and support all six amendments.

Amendments carried; clause as amended passed.

Clause 113.

The CHAIR: The next amendments are amendments Nos 82 and 83 [Parnell-1].

The Hon. M.C. PARNELL: They are consequential, so I will not be moving them. I move:

Amendment No 84 [Parnell–1]—

Page 96, lines 13 to 20—Delete subclauses (7) and (8)

Amendment No 85 [Parnell–1]—

Page 96, after line 20—Insert:

(8a) An application that provides for—

(a) the construction of a dwelling (including the enlargement or extension of a dwelling); or

(b) the construction of a swimming pool,

within 10 metres of a regulated tree will be taken to include a component that provides for an activity that constitutes a tree-damaging activity and must therefore be accompanied by, or incorporate, an application for a development authorisation in relation to such an activity.

(8b) Subsections (7) and (8) do not apply in relation to determining—

(a) the species of a tree; or

(b) the circumference of a tree; or

(c) the distance of a tree from a building or swimming pool (including after taking into account any proposed development); or

(d) whether special circumstances apply under either subsection on account of any criteria prescribed by the regulations for the purposes of this paragraph.

These amendments relate to the significant tree issue. I will speak to both amendments, but I will speak in relation to amendment No. 85 first. This is the situation that we have discussed here in the past, that is, how the 10-metre rule works. Most members would appreciate that if there is a tree within 10 metres of a house or a swimming pool or whatever, you do not have to go through the approval process for tree-damaging activity and you do not have to get approval. There are some exemptions; there are some types of trees where you still do but, generally, trees within 10 metres, you can just get rid of them.

I have raised this issue several times, including most recently in a briefing with ministerial staff, but I am not satisfied that the answer they provided me is quite good enough. The difficulty always is not when someone is applying to remove a tree because it is 10 metres but when someone is applying to build something closer than 10 metres and then using that opportunity to knock down the tree. In other words, you apply for permission, you build your rumpus room or swimming pool and then you say, 'Oh, my goodness, there's now a tree within 10 metres of my new addition. I can chop that down.'

The government has made the point that what people should do when they are preparing their plans and sending them is that they should locate where any of these significant trees are. That would probably work in many cases, but I do not think it would work if the tree were actually on the next-door neighbour's property. If it was a next-door neighbour's significant tree and you were building a swimming pool on your property, I bet you that people are not lodging applications, joint applications, for a tree-damaging activity and for their swimming pool, for example.

It might be that the neighbour who has that significant tree has been wanting to chop it down for years but never had an excuse; now they have an excuse—the neighbour has built a swimming pool up to the fence and all of a sudden they have a legal excuse to get rid of the significant tree. My amendment No. 85 deals with that. It says that if you do try to extend a dwelling or build a swimming pool within 10 metres of a tree, you have to apply for both the building work and the tree-damaging activity. That is the first part of amendment No. 85.

The second part is in relation to arborists' reports because I am deleting the prohibition, if you like, or the restriction on requiring arborists' reports. I do not think you need an arborist's report for certain decisions, but in terms of the health of the tree, its vigour, whether it is about to fall down or die or is diseased, then I think you do. These are two issues I have agitated before—removing the restriction on arborists' reports and making sure that buildings that are built close to trees take those trees into account.

The Hon. K.J. MAHER: The Hon. Mark Parnell's amendments Nos 84 and 85 are opposed by the government. They seek to undermine the revised tree controls introduced in 2011. Mr Parnell's amendment No. 84 seeks to delete subclauses (1), (13), (7) and (8). If these amendments were successful they would newly require that an arborist report is required in relation to applications to remove regulated trees. This was a key change made to the tree controls in 2011, introduced by the Hon. Dennis Hood, because the requirement added considerable pointless cost to applications.

A common complaint leading up to the changes was that an applicant would be forced to pay for an arborist report supporting their tree removal application. The council would then commission their own arborist report, which was often the polar opposite to the application's arborist report; that is, it would argue for the tree's retention. This was an unworkable, costly and unhelpful process that was remedied by the 2011 changes, which provided that arborist reports were required only in special circumstances.

For these reasons, and for the reasons referred to in the Hon. Mr Parnell's amendment No. 3, which the government regarded as a test clause on regulated trees, the government opposes this and the next amendment, Parnell No. 85. The government is hopeful that the opposition will support its position on these amendments, and I understand, following briefings, that we will provide explanations of the impact of these and earlier amendments passed in regard to clause 3. We understand the development sector has also separately expressed concerns on the topic.

Whilst I appreciate the deeply held views of the Hon. Mark Parnell on these issues, these were matters that have been agitated, have been put on the record before, and have been decided before. We think the changes that were made in 2011 were significantly superior changes, and this will depart from that and take us way back.

The Hon. D.W. RIDGWAY: The opposition will not be supporting the Hon. Mr Parnell's amendments. I recall the debate when the Hon. Paul Holloway was minister (this was in the 2011 debate); obviously he was not the greatest maths student because he kept blaming the Liberal opposition for holding up the amendments on significant trees, but at that time I think we had only seven members in the Legislative Council. He needed only a handful of others to get those amendments through, and I am not quite sure why it took him so long to realise that.

Once the Hon. Dennis Hood and Family First managed to find some good interest in that issue then the government had the numbers and those changes were made. We supported those changes in the end and we understand that, if you like, we have a set of rules and regulations around significant trees. We are happy with them the way they are and we do not see any need to vary from that. That is the reason we will not be supporting the Hon. Mark Parnell's amendments.

The Hon. D.G.E. HOOD: For the record, I appreciate the very different views in the chamber. It looks like these amendments will be defeated, which is in accordance with the wishes of Family First as well; we would certainly be opposed to the amendments. Fundamentally, it comes down to a philosophical position. Our view is that on someone's own, private, residential block of land, if there is a tree they want to remove they should be able to do it without asking anybody.

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

Amendments negatived; clause passed.

Clause 114.

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

Amendment No 40 [Emp–4]—

Page 97, after line 24—Insert:

(3a) However, if—

(a) there has been a material change to one or more elements of the development; or

(b) a new or additional matter requires assessment (subject to any variations allowed by a practice direction),

then—

(c) further notification and consultation may be required in accordance with any provision made by a practice direction; and

(d) subsection (3) will not apply to the extent that a new assessment must be made in the circumstances.

This amendment responds to a query in the other place and comments from the Local Government Association regarding how outline consent is intended to work, with particular regard to public consultation on variations from initial application and consent. The government agreed that this provision would benefit from some further attention and has therefore drafted a proposed amendment to require that if the development which is the subject of the outline consent changes materially, then further notification and consultation may be required, but this will be governed by a practice direction.

The question of whether or not a variation requires assessment will also be subject to a practice direction. This is so that the commission can provide assistance in determining whether or not a matter constitutes a substantial change which would warrant further notification and consultation beyond that originally carried out.

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

Amendment carried; clause as amended passed.

Clause 115.

The Hon. A.L. McLACHLAN: I have some queries by way of clarification. Some of these issues came up in the briefing but we did not fully thrash it out. I am interested in the workings of the design review panel which is being envisaged. I may be one clause early because it might be under clause 116, so I will take guidance from the minister. I am interested in how design review panels will work, in what circumstances they are envisaged, and their constitution and selection.

The Hon. K.J. MAHER: The next two clauses do deal with it but I think it is easily dealt with under clause 115. The clause formalises and embeds at the statutory level the approach which the government has adopted to assist proponents for significant developments in achieving good design outcomes. It is not about slowing down the development but, rather, about making sure it is the best it can be in terms of matters such as adaptive reuse and universal design.

It will ensure the government's design review process has a permanent place in the state's planning system and the process to ensure that the complex developments that will leave their mark on our city have many minds on the case as they are going through their own pre-application concept development process. Coupled with case management industries being highly complementary, this process ensures that, by the time they get to assessment discussion, their proposal will be well considered and more likely to enjoy a smooth passage. Some members of the local government sector have also indicated an interest in this process, which may become available to them over time.

In relation to the operation and constitution of the design panels, which the honourable member specifically asked about, the design review panels are required to be dynamic and responsive to the type of development that is under consideration. Selection is not a political but an administrative matter. The department currently runs a robust process calling for expressions of interest from suitably qualified professionals.

The department runs an open and transparent process, advertised with selection criteria to ensure suitable applicants qualified in architecture, urban design and landscape architecture, with some other specialists available from time to time in specific fields. They must be highly regarded in the industry and good communicators. Applicants are short-listed by an independent panel. A very high calibre of people will be on the panel, including the New South Wales Government Architect and the former president of the Royal Australian Institute of Architects. All new panel members go through an induction process, as well.

The Hon. A.L. McLACHLAN: I am not coming from a tactic of delaying. I am just trying to understand the amount of aesthetic and artistic input into a development, so the minister should not see this as a criticism of this particular section: so he can relax. I take it that, given the minister's answer, there is already a panel envisaged, that is, members of the panel, or are we going to seek expressions of interest?

The Hon. K.J. MAHER: These panels already exist under the present regime and there are well-tested processes in place for the selection of these panels under the current regime.

The Hon. A.L. McLACHLAN: So it is envisaged—and, again, this is not by way of criticism—that the current members of those panels are likely to be rolled over? I am not asking for a commitment, but is it anticipated that they will continue in their current roles?

The Hon. K.J. MAHER: That will be a matter for implementation. At this stage we cannot say whether current members—all, some or none—will be rolled over. That will be a matter for implementation with the new regime.

The Hon. A.L. McLACHLAN: I am grappling with the circumstances where this would be applicable. Again, this is not challenging the government because I personally believe it is important that this sort of input is involved in development. The sort of development that the government is envisaging under these sections would require this sort of referral and how the input would be applied. For example, is it saying that you need a classical façade because you are in a particular heritage area? Is it saying it can be post-modern because you are in a particular area? Is it looking for consistency in urban planning or is it taking another aesthetic or artistic emphasis?

The Hon. K.J. MAHER: I thank the honourable member for his questions and the constructive manner in the way he is going about it. It makes a welcome change from the savaging he has given me for the other bill today in question time. My advice is as outlined at the start, this is for significant developments. I am not going to be able to give an example of the particular style of architecture or precise design concepts that it might envisage, but what I can say is that there are people who have come to the government to ask to use these principles, whether it is industry or council. A good example of where councils come to ask government is the City of Adelaide because, for any development over $10 million, it has asked for this process to apply to make sure those design outcomes are achieved.

Clause passed.

Clause 116.

The Hon. M.C. PARNELL: Before I move my amendment, I have a number of questions on this clause for the minister. Let me say at the outset that this clause replicates to a large extent equivalent provisions in the Development Act and at its heart is this idea that planning authorities are not the font of all wisdom and that there are other government agencies that have expertise that need to be consulted. You only have to think, for example, of someone who wants to build a major shopping centre on a major arterial road. It makes sense to go to the transport department—or the Commissioner of Highways to be technical—and check whether a slip road is needed or whether traffic lights are needed. It makes sense.

The current list of bodies that have to be consulted is in schedule 8 of the development regulations. My first question is: is the government intending to lift schedule 8 and to merge that in with the current system? Are they proposing that the same agencies that are currently consulted will be consulted under this new regime?

The Hon. K.J. MAHER: My advice is that like many of these things that would be a matter for implementation but schedule 8 would form the basis for that and, if it is helpful for the direction of further questions, the government will be supporting the amendment.

The Hon. M.C. PARNELL: Because it is a common-sense amendment, and I would not have expected anything less, I am keen to explore just a little bit.

The Hon. R.I. Lucas: Some of your others aren't common-sense amendments?

The Hon. K.J. Maher: As opposed to the other amendments you have had today.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The Hon. Mr Parnell has the call.

The Hon. M.C. PARNELL: I accept the minister's answer that the list has not been written. Part of my nervousness around this is that, in the past, when I have urged the government to add a new department, for example, to the list of bodies to which development applications are referred, I have been howled down by people saying, 'That is just more red tape.'

A classic example would be a development that has a major impact on the flow of water. You would have thought that the people responsible for managing water, like the natural resources board, would be consulted. No, they are not because what to one person is a sensible additional vehicle for information is to someone else extra red tape, so I just put that as an observation.

Another thing I would like the minister to put something on the record about if he could relates to the nature of input that will be sought from these referral agencies. At present, with all these bodies, if we take the EPA, for example, when a development application gets referred to the EPA, it falls into one of two categories: either the EPA has a right of veto—in other words, they can give directions and they can actually force the outcome—or the EPA can simply give advice which the decision-maker can take or leave. The word in the current system is 'direction' or 'advice'.

My understanding from my briefing with departmental officers is that the idea of going to a referral agency for advice is likely to come to an end, and the only time that matters will be referred to these other government departments—whether it is the health department, transport, EPA or coast protection—is to give these bodies a right of veto or a right of direction; is that correct?

The Hon. K.J. MAHER: There was a fair bit of commentary in the question, and I am happy to drill down a bit more if this does not completely answer the Hon. Mark Parnell's question. This clause, as has been stated, replicates the existing administrative processes—and I think they are found in section 37 of the act and the schedule that the Hon. Mark Parnell has referred to—to ensure that agency input is obtained as appropriate.

The aim would be that agencies develop and clearly delineate policies in the code so that only those proposals which are outside of agreed policy settings require referrals. Referrals are currently, as the Hon. Mark Parnell has said, in schedule 8 of the regulations, which would be reviewed in developing the code and the regulations as we go forward and implement the scheme.

The Hon. M.C. PARNELL: The answer I got from that is that you are hoping that the matters will be addressed in the code and there will be less need to go to individual agencies for individual input. The second part of it was that at present these applications are sent to agencies for advice or direction. Is it correct that they will no longer be sent for advice and that the only time you would bother going to the highways department is for them to tell you what to do, to attach conditions to an approval or tell you to refuse an application?

The Hon. K.J. MAHER: If the policies are set up-front, you will not need to go for advice if it is complying with those policies. It is only if it is outside those policies that you will need to.

The Hon. M.C. PARNELL: I think the answer is yes. You are not going to be sending things to agencies for advice. One provision in here which struck me as odd, and I am not sure whether it is consistent with other aspects of the bill, is the idea when the EPA, for example, says 'refuse'. It goes to the EPA, and the EPA says, 'If you approve this factory, we are not going to license it, so don't approve it.' That is currently how it works.

It says in subclause (6) that, if the regulations so provide, there will be no appeal against a refusal that has been ordered by an agency, and the rest of the clause goes on to say that if it does end up in court the EPA has to front up and defend their decision to refuse. My question is: how does this provision saying that the regulations can deny appeal rights sit with other parts of this bill which say that applicants very often do have appeal rights? Will this subclause (6)(b) be used to deny appeal rights that would otherwise exist?

The Hon. K.J. MAHER: It does not do anything more or less than what already exists. It is an existing provision being put into the new act.

The Hon. M.C. PARNELL: I will accept that is the case. I was not sure whether it was in the current system. It just seems odd that you have provisions all through this bill which basically say that if an applicant is unhappy they can go to court and challenge it. What this is saying is that if the reason the applicant is unhappy is that if a third party, like the EPA, is unhappy and the regulations so provide that will be beyond appeal; you will not be able to challenge that. I did not think that was within the current provision, but if it is I will accept the answer.

The Hon. K.J. MAHER: I am advised that it is straight from section 37(5)(b) of the current act.

The Hon. M.C. PARNELL: At the risk of infuriating the minister any further, I move:

Amendment No 10 [Parnell–2]—

Page 99, after line 36—Insert:

(12) A relevant authority must ensure that a response from a prescribed body under this section is published on the SA planning portal and available for inspection and downloading without charge as soon as is reasonably practicable after the response is received by the relevant authority.

The minister has said he is going to support this amendment. It is a simple amendment which simply says that when one of these prescribed bodies—for example, the EPA, the health department, the Coast Protection Board, whoever it might be—puts in their report, that report should also be published on the portal and be available for people to look at and download without charge.

The Hon. K.J. MAHER: I indicated earlier when the Hon. Mark Parnell started—and it is now with more reluctance—that the government will support this amendment.

Amendment carried; clause as amended passed.

Clause 117 passed.

Clause 118.

The Hon. M.C. PARNELL: I have two questions. Is this a direct copy of what we currently have, which is about bikie fortresses? The second question is: how often has this provision been used to demolish bikie fortresses?

The Hon. K.J. MAHER: I am advised that this is a direct carryover from the act. How often? Not often.

The Hon. M.C. PARNELL: I might just tease that out. Is 'not often' a euphemism for 'it has not yet been used'?

The Hon. K.J. MAHER: I do not want to inadvertently not give an answer that is as correct as it can be. It has not been used often. The advisers we have here are not aware of its use, but I do not want to completely rule out the possibility that it has and that we are not aware.

The Hon. M.C. PARNELL: I will give the minister a better answer than the one he gave. It may have had a chilling effect, in that people who might have been inclined to build bikie fortresses have no longer done so because of this provision and therefore there has not been a need for them to be demolished. I will offer that. That is all I have on this clause.

Clause passed.

Clause 119.

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

Amendment No 87 [Parnell-1]—

Page 101, lines 34 to 41, page 102, lines 1 to 19—Delete subclauses (2) to (7)

This provision is a new one, and I think that it is a provision that could result in mischief. What the government is trying to do here is hold a bit of a stick to relevant authorities to make them comply with time frames for the making of decisions.

The Hon. D.W. Ridgway: Hear, hear!

The Hon. M.C. PARNELL: The Hon. David Ridgway interjects, 'Hear, hear.' I think, yes, we do want decision-makers not to drag their feet. I will not raise the Hon. Dennis Hood's ensuite; it would be a hat trick. Yes, we want decision-makers not to drag their feet: we want them to make timely decisions. The question then arises that, if the decision is not made within the requisite time frame, what should be the response? There are a couple of ways we can go.

One way to look at it would be to say, 'Look, if they haven't made a response within the required time frame, let's just assume that's a refusal and let the developer take the matter to court or whatever.' That would be a deemed refusal. That is how it works, for example, when we lodge our freedom of information applications with government agencies. They rarely respond within the time frame.

If we are particularly bolshie, I do not know about other members but I immediately lodge an internal review saying, 'Deemed refusal, they haven't met the time frame,' and then the internal review is usually late as well, so we go straight to the Ombudsman. In fact, I have taken a number of matters to the Ombudsman on a double deemed refusal without ever having had a response from the agency. That is the way we deal with those things. What the government is proposing here is different.

If we look at this provision, though, it takes the opposite approach. It basically says that, if a decision-maker takes too long and does not meet the time frames, it is a deemed approval, an automatic yes. The clause goes on to explain that the ball is then back in the court of the council, for example, and they have a limited amount of time either quickly to give an approval, to regularise it, or to end up taking the matter to court.

I think that is the wrong approach. When a decision-maker has messed up, if you like, if they have taken too long, the answer should not be an automatic yes. The answer should be an automatic no, with the aggrieved party having a chance to go to the umpire and sort it out. What do we say? Silence does not equal consent. I think I would have heard those words a few times in a place like this: silence does not equal consent. If a council is taking its time, that does not mean that it is an automatic approval. It makes sense for it to be an automatic rejection.

The purpose of my amendment is to remove from clause 119 subclauses (2) through to (7), and they are the provisions that relate to an automatic yes. What I have kept in, as we do need it, is a dispute resolution mechanism because it is unacceptable for a councillor or anyone else just to drag their feet, not make a decision, and have limbo. You have to have a mechanism to resolve the matter, so I have left in that provision, subclauses (8) and (9).

The purpose of this amendment is simply to enable people to challenge a council or any other decision-maker (except the minister—I think he is immune from this), the planning commission, a local council or a regional board. If they drag their feet then, yes, we need a dispute resolution mechanism, but it should not be accompanied by an automatic yes because the result could be that a very inappropriate development gets approved.

If the planning commission has been so incompetent as not to deal with it in the appropriate time frame, the chances are that they will miss all these other deadlines as well—the 10-day deadline and a few others—and that something that is entirely inappropriate could get approved without anyone actually having properly assessed it, and I think that would be a bad outcome. Once you have given out these approvals you cannot take them back. There is no mechanism for revoking a development approval. My amendment basically says yes to a dispute resolution mechanism, but no to having automatic approval just because the decision-maker has taken too long.

The Hon. K.J. MAHER: The government opposes the amendment. Clause 119 introduces the concept of deemed consent, which is strongly supported by industry with multiple reports as to the problem with the current approach which requires applicants to go to court if a relevant authority fails to determine an application within the statutory time frame. Such provisions operate well in Queensland and Tasmanian planning systems and, indeed, in other areas of law—including South Australia's fisheries law, for example.

This is a key reform to the development system. Introducing stricter time frames in which decisions must be made will help ensure that decisions on applications are not unduly delayed. It will introduce a high degree of certainty into the planning assessment process, and will place the onus on the assessing body to make decisions within expected time frames, as it should be. Where those time frames are not met, the development is deemed to have been granted for planning consent. The onus of any appeal seeking the quashing of that consent then lies with the assessing body who, after all, is the one who has not met the time frames; not the applicant, as is currently the case.

The amendment proposed by the Hon. Mark Parnell would maintain the requirement that it is the applicant who, through no fault of their own, must then apply for the court order requiring the relevant authority to make its determination within a time fixed by the court. This situation has proven to be unworkable and unjust. Relevant authorities must be accountable for adhering to prescribed time frames within which decisions must be made. The government believes the concept of 'deemed consent' is a very important part of these planning reforms, and of the proposed planning system.

The Hon. D.W. RIDGWAY: I indicate the opposition will not be supporting the Hon. Mark Parnell's amendment. The concept of 'deemed consent' is something that we have been attracted to for some time, and we are pleased that the government has it as part of this package of reforms. As the minister said, industry has been wanting for some time to have a little more certainty, and it is employed in other states and other jurisdictions, and it seems to work particularly well. So, apologies to the Hon. Mark Parnell, but we will not be supporting him this evening.

The Hon. M.C. PARNELL: I accept what the minister says, that it is like a parent wanting to impose consequences on a naughty child. The difficulty I have with this approach, though, is that normally when you do that the punishment or the disadvantage is borne by the child. In this situation the disadvantage is potentially borne by the community when an inappropriate development sneaks through without any conditions being attached, because that is the other thing we are looking at: normally, a relevant authority is not just about yes or no, it is about the conditions that are attached.

You could end up with something which is 'deemed approval' with no conditions, which might turn out to be very inappropriate. Whilst we might all wag our finger at the naughty planning commission or the naughty council that has not dealt with it properly, the people who are going to suffer are the rest of the community who have to live with a very poor development. But I can see where the numbers are and I will not be dividing—I don't think we have had any divisions today. But I will not be dividing on this one; I will find some others to divide on.

The Hon. K.J. MAHER: I point out for the sake of completeness that it allows 10 days after the deemed consent notice for the decision-making body to either grant permission or to impose conditions. There is the possibility to do that, and it is a pretty big incentive if you get the notice for deemed consent to actually stop dragging the chain and do something about it.

Amendment negatived.

The Hon. M.C. PARNELL: My amendment No. 88 [Parnell-1] is consequential on the previous amendment.

Clause passed.

Clauses 120 and 121 passed.

Clause 122.

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

Amendment No 11 [Parnell–2]—

Page 105, after line 23—Insert:

(3) In addition, any person who was entitled to be notified of the application for the development authorisation previously given must be given notice of an application to which subsection (1) applies, and, in particular, such an application must be served personally or by post by the relevant authority on any person who made a representation on the application for the development authorisation previously given.

There is a story behind this amendment as well. I spent 10 years of my life doing this stuff, so I always have stories to illustrate these points.

The Hon. D.G.E. Hood: I like your stories.

The Hon. M.C. PARNELL: I thank the Hon. Dennis Hood. There was a situation in the South-East where a powerline company—it was ElectraNet—wanted to build a new transmission line. It was a category 3 development. It was not something that was envisaged by the planning scheme. It was something where the neighbours and other people could lodge objections to it and appeal—and they did. The objectors did not like the route that the powerline was going to take—it was going to go through some wetlands; it was brolga habitat, from memory—and so they went to court.

The first part of any court hearing is this thing called a roundtable conference, where the parties all get together and see if they can thrash out an agreement. They did that, the objectors and ElectraNet, with the commissioner of the court supervising it, and they reached an agreement whereby the company agreed that the route to be taken would go a certain way, and that satisfied the objectors. What happened was, the court then formally dismissed the appeal that they had lodged—so the court case was all over—and attached the agreed conditions to the development consent.

What then happened—and I think it was only a matter of months later—was that the developer went back to the planning authority and sought to remove the conditions that had been agreed in court. The planning authority said, 'Yes, we are happy to remove those conditions, and it's only a fairly minor matter, so we won't bother telling the objectors. We won't bother going back to them.' What eventually happened was that the company got what it wanted in the first place. The residents had exhausted their right of appeal. They were not given a chance to appeal the variation of conditions, and it was ultimately a bad outcome.

Clause 122 is about variation of authorisations. It is about this situation where you go back for a second bite at the cherry; you want to change something. There are often good reasons to do it; it is not always for ulterior motives. My amendment simply proposes that if you have a form of development where people have been consulted and notified, it makes sense to me that if you then try to change that afterwards, if you go back to try to get a variation, you should go back to the people whom you notified in the first place and give them a chance to have a say on what they think of the notification. My amendment provides that:

any person who was entitled to be notified of the application for the development authorisation previously given—

so that means the original authorisation—

must be given notice of an application to which subsection (1) applies—

that is, a variation application—

and, in particular, such an application must be served personally or by post…on any person who made a representation on the application.

I know that the government will say, 'This could be difficult, because what if the variation application is five years after the original decision was made?' Yes, maybe people have moved; maybe people have died. I do not think that invalidates this provision, because the obligation is to write or deliver if they have moved or you cannot find them, or they have died—well, so be it. What I do not want to see is applicants for development approval using the variation of authorisation provisions to effectively undermine the rights of citizens to participate in the process.

Under this whole regime of the Development Act, the number of opportunities people have to actually engage in individual development applications is far reduced. There are far fewer opportunities under this regime. What I do not want is for people to find out that they have been dudded by a two-step process, being an original application plus a variation of authorisation application. I think there is common sense in this proposal. It basically seeks to not disempower people whom the law had said have rights to participate in these decisions.

The Hon. K.J. MAHER: The government opposes the Hon. Mark Parnell's amendment. It will require that any objectors to an application to a development authorisation must be notified regarding any application for variation issued in the future, even if it is not relevant to their representation or no matter how minor it is. Clause 122(2)(b) already requires that a variation be treated as a new application. The scope and content of the variation application will determine the level of notification required at that point. It would be unfortunate for blanket notification requirements where they are clearly unnecessary, and would potentially open any such decision to challenge and to relitigate previous decisions.

The Hon. D.W. RIDGWAY: I indicate that the opposition will also be opposing the Hon. Mark Parnell's amendment. It is something we discussed in the Liberal Party and some of the notes have been provided to me. I also highlight clause 122(2)(b) already requires that a variation be treated as a new application. I understand what the Hon. Mark Parnell was talking about with his story of the electricity transmission line and the wetlands, and that the group had not been effective with those objectors who were not notified. However, we think that from reading clause 122(2)(b), which says that it will be treated as a new application for development authorisation, it provides a reasonable amount of protection, and so we will not be supporting the Hon. Mark Parnell's amendment.

The Hon. M.C. PARNELL: I can see where the numbers lie here. I just make the point that, yes, the variation will be treated as a new application—I get that—but in all likelihood that new application will be of a type that does not involve having to notify anyone. It is a matter of degree as well. Let's say, for example, the issue is the location of the entrance point and let's say that that is the only issue the objectors were worried about. They have said that they are happy for this development to go ahead provided you put the entry point on the other side.

If the person agrees to that and they then go back for a variation, and they try to get it put back to the original location, and if that application is not regarded as something that requires public notification, then, effectively, like I say, using a two-step process, they have achieved what they wanted in the first place and they have disempowered objectors in the process. However, I am not going to divide on this.

Amendment negatived; clause passed.

Clause 123.

The Hon. M.C. PARNELL (17:38): I move:

Amendment No 89 [Parnell–1]—

Page 105, after line 31—Insert:

State agency means—

(a) the Crown or a Minister of the Crown; or

(b) an agency or instrumentality of the Crown (including a Department or administrative unit of the State);

We are now onto a new part, part 8, which is another pathway for developments to be approved, this time in relation to what is called 'essential infrastructure'. Effectively, I think this is the current section 49 and section 49A which we referred to as 'Crown development'. Just by way of background, I support the concept of having a development pathway for government projects. There are some government projects which I think, yes, they can go through a separate pathway and there will be different rules attached to those.

What I struggle with is what has happened over the last several years with this special government project pathway where the minister is the decision-maker—and this is the important bit. It might involve some other agencies giving advice or whatever, but the ultimate decision rests with the minister, so it is the minister deciding on a government project and so the answer is yes. What has happened over the last several years is that they have decided that they want to take advantage of this fast-track, ministerial decision-making approval stream, not just for government projects but for other projects that the government likes.

So you have this provision which says that if a government department supports a development, if they are behind it morally or enthusiastically, there might be no government money involved at all; it might be a 100 per cent private project. But if the government is behind it in an encouragement sense, then they can allow that project to use this special pathway where the decision-maker is the minister and there is no right of appeal; no-one can challenge any approval.

That is what this amendment—and I think there are some consequential ones as well—is aimed at. I have to say that this has caused me some discomfort because sometimes the projects that are hanging on the coat-tails of the state are, in fact, projects that I quite like. I think they are good projects and I want them to go ahead.

A good example would be—and I gave an unfortunate television interview which may have given the wrong impression about my support or otherwise of a certain wind farm project—that I love wind farms and I want to see more of them. However, I do not approve of those private projects being treated as Crown development or, in this case, being treated as using the essential infrastructure stream. I want those projects go through the normal process. I want the public to have the right to challenge even, projects. It is not about whether you like the project or not, it is about the appropriateness of the decision-making pathway.

I appreciate that I am batting for certain projects and I want them to happen, but I am also batting for proper process and that is what this is about. This amendment effectively says that it has to be a state agency that is doing the project, who is a proponent. A state agency is the crown or a minister or an agency or instrumentality—in other words, a department or an administrative unit. What I do not want is to have people hanging on other people, private companies hanging on the coat-tails of government to get the advantage of the government assessment pathway. That is the purpose of this exercise.

I know the government will say that this just replicates the current system—which I have been railing against for several years—so we are reopening this act and I am railing against it now. Crown development should be exclusively for government projects.

The Hon. K.J. MAHER: I understand what the honourable member is saying but we are just completely and utterly opposed to what he wants and the change to the status quo that he is suggesting. This clause only applies to infrastructure being built in an infrastructure reserve set out in the code. The government opposes both amendments Nos 89 and 90 as we do not believe the benefits for this provision should be limited to only state agencies.

Many forms of infrastructure are designed and constructed by infrastructure providers other than state agencies. This provision was drafted to provide a means by which all providers of essential infrastructure, not just state agencies, can be developed in accordance with standard designs. This provision gives effect to reform 17.6 as put forward by the Expert Panel on Planning Reform. The provision as drafted takes into account that since the Development Act was drafted in the early 1990s there has been a significant shift in the way infrastructure is built, delivered and operated.

Whereas once these functions were largely and in a lot of cases almost always the preserve of the government, it is now increasingly common that in many instances this role has been taken on by the private sector through different sorts of models to deliver it. Nor is it uncommon for infrastructure to be delivered in various forms of partnership with government and the private sector, and there are a number of examples of that. The bill needs to be able to reflect and facilitate these new ways of delivering infrastructure.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be opposing the Hon. Mark Parnell's amendment, especially in the more modern world that we find ourselves where there will be other people, other companies or, shall I say, other bodies that may be building and providing essential infrastructure to the community and to developments and to customers in this state.

From the opposition's point of view, we want to make sure, as I think I have said on a number of occasions, that this is about facilitating development and economic activity. I understand that the Hon. Mark Parnell has been raising this almost as long as he has been in this place, but we really do think it is important not to support this provision, so we will not be supporting his amendments today.

Amendment negatived.

The Hon. M.C. PARNELL: Amendment No. 90 [Parnell-1] is consequential. That is again trying to limit the operation of this provision to state agencies, so I will not be moving that. I think probably amendment No. 91 [Parnell-1] is consequential as well because we have agitated the appropriateness of accredited professionals giving full development authorisation, as opposed to just building consent. I will regard it as consequential and I will not be moving it. I move:

Amendment No 2 [Parnell–3]—

Page 106, after line 10—Insert:

(4) This section does not apply to any development within the Adelaide Park Lands, within the meaning of the Adelaide Park Lands Act 2005 (and any such development must be assessed under Part 7).

This is effectively consequential. It relates to the Adelaide City Council Parklands amendments, which the Liberals have supported. We have said earlier that they cannot use major project status, and this is saying that they cannot use this fast-track Crown development status in the Parklands. I hope it is regarded as consequential.

Amendment carried; clause as amended passed.

Clause 124.

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

Amendment No 3 [Parnell–3]—

Page 109, after line 4—Insert:

(28) This section does not apply to any development within the Adelaide Park Lands, within the meaning of the Adelaide Park Lands Act 2005 (and any such development must be assessed under Part 7).

If we can treat this in the same way, again this is an Adelaide Parklands provision, which the opposition has supported, for which I am grateful.

Amendment carried; clause as amended passed.

Clause 125.

The Hon. M.C. PARNELL: Amendment No. 92 [Parnell-1] is consequential on my amendment No. 90, which failed, so I will not be moving it. I move:

Amendment No 4 [Parnell–3]—

Page 112, after line 17—Insert:

(27) Subject to subsection (28), this section does not apply to any development within the Adelaide Park Lands, within the meaning of the Adelaide Park Lands Act 2005 (and any such development must be assessed under Part 7).

(28) Subsection (27) does not apply—

(a) so as to exclude the Governor making a regulation under subsection (4) with respect to minor works of a prescribed kind; or

(b) so as to exclude from the operation of this section development within any part of the Institutional District of the City of Adelaide that has been identified by regulations made for the purposes of this paragraph by the Governor on the recommendation of the Minister.

(29) Before making a recommendation to the Governor to make a regulation identifying a part of the Institutional District of the City of Adelaide for the purposes of subsection (28)(b), the Minister must take reasonable steps to consult with the Adelaide Park Lands Authority.

(30) A regulation under subsection (28)(b) cannot apply with respect to any part of the Institutional District of the City of Adelaide that is under the care, control or management of The Corporation of the City of Adelaide.

(31) For the purposes of this section, the Institutional District of the City of Adelaide is constituted by those parts of the area of The Corporation of the City of Adelaide that are identified and defined as—

(a) the Riverbank Zone; and

(b) the Institutional (Government House) Zone; and

(c) the Institutional (University/Hospital) Zone,

by the Development Plan that relates to the area of that Council, as that Development Plan existed on 24 September 2015.

Again, this is consequential on the Adelaide Parklands issue. I appreciate the council's support.

Amendment carried; clause as amended passed.

Clauses 126 and 127 passed.

Clause 128.

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

Amendment No 11 [Ridgway–1]—

Page 113, line 34—Delete ', before granting the building consent,'

Amendment No 12 [Ridgway–1]—

Page 113, after line 40—Insert:

(2a) A requirement under subsection (1)—

(a) subject to paragraph (b)—may be imposed on the basis that the relevant matters must be addressed before the relevant authority will grant building consent; and

(b) in cases prescribed by the regulations—may only be imposed as a condition of the building consent that must be complied with within a prescribed period after the building work to which the application for consent relates is completed.

My amendment No. 11 deletes the words 'before granting the building consent'. From my recollection and understanding of the opposition's drafting of these, this is to do with adaptive re-use. My amendment No. 12 is, if you like, on the same issue.

When we tabled these the government had some concerns around amendment No. 12, and I will be interested to hear the government's view on that. However, I urge all members to support these amendments. It is really about adaptive re-use, something that the Legislative Council supported late last year and throughout the debate. The government has raised some concerns, and I will be interested to see whether we have been able to allay those concerns or whether they are insurmountable.

The Hon. K.J. MAHER: The government is broadly supportive of this set of amendments. They are related to amendments moved by the opposition on adaptive re-use. I think it might be useful, as the honourable member has invited, to seek a bit of clarification in amendment No. 12 [Ridgway-1] and consider inserting, in paragraph (a) after the word 'addressed', the words 'as part of the application'; so it is addressed as part of the application.

This would clarify that the application must contain those details and prevent possible misinterpretation of the amendment as drafted, that the building work itself must be carried out at that point. So we are happy to support both, but with the words 'as part of the application' inserted after the word 'addressed' in paragraph (a) of amendment No. 12 [Ridgway-1].

The Hon. D.W. RIDGWAY: I seek leave to move my amendment in an amended form.

Leave granted.

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

Amendment No 12 [Ridgway–1]—

Page 113, after line 40—Insert:

(2a) A requirement under subsection (1)—

(a) subject to paragraph (b)—may be imposed on the basis that the relevant matters must be addressed as part of the application before the relevant authority will grant building consent; and

(b) in cases prescribed by the regulations—may only be imposed as a condition of the building consent that must be complied with within a prescribed period after the building work to which the application for consent relates is completed.

I am happy to move this amendment in an amended form if the government is broadly supportive.

The Hon. M.C. PARNELL: The Greens supported the adaptive re-use provisions and, whilst I am trying to get my head around the meaning of this insertion, I do not think it does any harm; if it does, we will come back and deal with it again. For now, we are happy to support it.

Amendment No. 11 carried; amendment No. 12 as amended carried.

The Hon. D.W. RIDGWAY: I think there is support for all the amendments in relation to adaptive re-use. I move:

Amendment No 9 [Ridgway–2]—

Page 114, line 5—After 'Building Code' insert 'or a Ministerial building standard'

Amendment No 13 [Ridgway–1]—

Page 114, line 8—Delete ', before granting the building consent,'

Amendment No 10 [Ridgway–2]—

Page 114, line 11—After 'Building Code' insert 'or the Ministerial building standard (as the case may be)'

Amendment No 14 [Ridgway–1]—

Page 114, after line 11—Insert:

(3a) A requirement under subsection (3)—

(a) subject to paragraph (b)—may be imposed on the basis that the building work or other measures to achieve compliance with the relevant performance requirements must be addressed before the relevant authority will grant building consent; and

(b) in cases prescribed by the regulations—may only be imposed as a condition of the building consent that must be complied with within a prescribed period after the building work to which the application for consent relates is completed.

The Hon. K.L. VINCENT: To clarify Dignity for Disability's position on this block of amendments (if it is the block of amendments I think we are dealing with, because I appreciate there is some confusion), at this point Dignity for Disability is not inclined to support the amendments around adaptive re-use, particularly because, from our reading of them, this may allow for developments and re-use of spaces to go ahead without proper consideration of disability access.

I appreciate what the mover is trying to achieve in terms of giving people a chance to start up a business or to re-use a space that has been inactive for a long time, but I think at some point we have to draw a line and say, 'Well, things either have to be accessible or they don't.' My concern, and the mover can certainly tell me if we are misreading this amendment, is that if we give people leeway and say, 'We'll come back in a year or 18 months or whatever it may be and check how things are progressing in terms of the accessibility or other features of this building,' we know for a fact that that kind of checking up does not happen regularly enough.

If the mover can give us some reassurance on that, whether or not that is an accurate interpretation of what could happen under the adaptive re-use amendments, I would be happy to consider it, but at this point we are not inclined to support.

The Hon. D.W. RIDGWAY: It is not the opposition's intention to make it difficult for the issues that the Hon. Kelly Vincent has raised. These amendments have been drafted in negotiation with the government to try to get the best possible outcome from an adaptive re-use point of view, so we are certainly not trying to limit the opportunities. As I said, it was something that the Leader of the Opposition (Steven Marshall) raised with minister Rau during the very early stages of negotiations around this piece of legislation and that is why there has been this collaborative approach between the government and the opposition. We are trying to get the best possible outcome for adaptive re-use for everybody concerned.

The Hon. M.C. PARNELL: On that issue, I certainly understand the Hon. Kelly Vincent's concerns because, if you are building a brand-new building from the ground up, there is no excuse not to make it accessible. The dilemma is that, if we move towards retrofitting and re-using more old buildings, then those inherent design flaws can remain—which the honourable member in a double page spread in the newspaper highlighted on a walk down King William Street, and other places, showing that it only takes a couple of steps, often on a heritage building, and it is an inaccessible building.

So, absolutely, I think we need to respect the concerns of the Hon. Kelly Vincent. The proof of the pudding will be in the eating, when this adaptive re-use comes in, whether the authorities attach a requirement for making a building accessible at the same time. I used the example with the Hon. Kelly Vincent before of the building at No. 27 Leigh Street, which my wife rented as a Senate office and got some stick in the newspaper for having spent money on refurbishment, because people assume that it is used for gold-plated toilets whereas it was making an existing office building accessible. The cost all went on the ramp from the street and on the accessible toilet up on the third floor. So, there is now one more building that is accessible.

I think the question is that adaptive re-use has at its heart things like saving resources and not having to unnecessarily demolish things that are otherwise quite serviceable, but it need not be an impediment to making buildings accessible. I appreciate the Hon. Kelly Vincent's point. It will be up to the government, through the planning and design code, whether they are prepared to add that extra requirement to the people who choose to retrofit old buildings.

The Hon. K.L. VINCENT: The Hon. Mr Parnell has more or less stolen the words out of my mouth but I would add, also, just for a point of clarification, that in no way was I intending to imply that the opposition is trying to make things difficult. I am merely stating at this point that is the way that Dignity for Disability reads those amendments in terms of the impacts that they could have and, given that that is a concern for our core constituency, I cannot support them at this particular time.

I appreciate that the opposition is not making a conscious effort to make things more inaccessible but, as I said, given that we, as a committee, have supported universal design becoming part of this bill, I think at some point we do have to draw a line in the sand and say either we are going to support things being accessible to everyone or we are not. Our concern is that, if we start allowing leeway around whether things have to be accessible straightaway or not, that could erode that.

Like I said, I think we would be happier if there were more stringent mechanisms in place for monitoring compliance with the existing disability access standards in the same way that there are mandatory inspections for work health and safety and food safety, for example, and we might be more convinced that this would be successful; but, given that the rate of compliance is already very low and the improvement on that compliance is very much dependent on individual complaints being lodged, we are not convinced that now is the right time to go ahead with this particular amendment that might allow for further noncompliance.

Certainly, as I said, we would like to see increased compliance and we are investigating legislative measures to make that occur (as mentioned in that double spread that the Hon. Mr Parnell alluded to, with a hint of jealousy, I think), but for the time being it is not yet the case, so I do not feel that we can confidently put our support behind the amendments. Of course, we can see where the numbers lie and we accept that it is going to happen anyway, but I want to put on the record our very strongly held view at this point.

Amendments carried; clause as amended passed.

The Hon. D.W. RIDGWAY: I would like to make a couple of quick comments, if I may. It is just after 6 o'clock and it is my intention to move to report progress, but I will put on the record that the vast majority of the amendments and the clauses that we will deal with when we next come back to this place in a couple of weeks' time will be around the government's proposed infrastructure scheme or schemes. This is an opportunity to say to the government and to any of the industry stakeholders who are listening to the live streaming of this very riveting debate that we are having this afternoon on their computers that we have the opportunity now to try to get this thrashed out a little more, if we are trying to progress the bill in the next couple of weeks.

There still seems to be a fair level of confusion around exactly what is proposed. I note that in the file that was prepared by my office, which was some weeks ago, there is an explanation of the government's infrastructure scheme, but I am sure that scheme has changed. I think it is appropriate to put on the record that, if we are to progress this bill with any speed when we return in a couple of weeks' time, it would be useful for all stakeholders to have a close look at where everybody is in relation to the infrastructure schemes.

Progress reported; committee to sit again.