Legislative Council: Wednesday, July 03, 2019



Planning, Development and Infrastructure (Code Amendments) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 February 2019.)

The Hon. C.M. SCRIVEN (16:31): I rise to support the Planning, Development and Infrastructure (Code Amendments) Amendment Bill 2019, as introduced by the Hon. Mark Parnell, and indicate that I am the lead speaker for the opposition. The intent of the bill is simple: it will remove subsections 67(4) and 67(5) from the Planning, Development and Infrastructure Act 2016. These subsections deal with the establishment of heritage character or preservation zones or subzones under the new planning system's Planning and Design Code.

Labor supports this bill because these subsections establish problematic precedents under the new planning system. Under the new planning system, the Planning and Design Code will replace all of the state's 72 development plans, establishing a single set of statewide planning rules. The system is currently under development. It was introduced in outback South Australia on 1 July 2019, so just this week. In regional councils, the consultation process will commence soon and it is expected that the code will be operational from November of this year.

In metropolitan councils, consultation will commence later this year for implementation of the code in July 2020, according to our advice. While the Planning and Design Code will establish one statewide consistent set of planning rules, it will of course feature many overlays to regulate planning and development in zones and subzones, much like our existing development plans do now.

In determining how a heritage character or preservation zone or subzone can be established under the Planning and Design Code, as I mentioned, subsections 67(4) and 67(5) establish a problematic precedent. This is because they stipulate that the Planning and Design Code cannot be amended for this purpose without the agreement of at least 51 per cent of owners of allotments within the relevant area. Nowhere else in our planning system do property owners have such a privilege to veto the establishment of planning rules.

Property owners cannot veto planning rules regarding building heights or land use and they should not be able to veto the establishment of heritage character or preservation zones or subzones either. Planning rules should be established according to best practice principles, not the will of property owners in certain localities. Indeed, that is the very point that was made by Labor in this place when the legislation was moved on 11 February 2016. On that day, in response to the proposed amendment to add these subsections 67(4) and 67(5), the Hon. Kyam Maher MLC stated:

…in the view of the government, zoning decisions should not only be determined by those who enjoy the local property franchise and who are accorded voting rights in the system. It should also be based on sound and logical policy objectives.

Heritage matters in particular should not be reduced to a question of percentages, but should include and take into account heritage expertise and applying the right criteria.

So Labor has been consistent on this issue. However, despite the objections of the then Labor government, the amendment that included these subsections was passed. It is in this light that Labor supports this bill. We objected to the subsections when they were originally moved as an amendment to the act and we object to them now. We do not want to create a precedent whereby property owners are given veto rights over planning rules and development decisions. Planning rules and development assessments should be made according to sound principles. I therefore commend the bill to the council.

The Hon. F. PANGALLO (16:34): I rise on behalf of SA-Best to say a few words in support of the Hon. Mark Parnell's Planning, Development and Infrastructure (Code Amendments) Amendment Bill 2019. The bill, of course, repeals parts of section 67 of the Planning, Development and Infrastructure Act to remove the right of veto of property owners to strip heritage status from the areas where they live or where they own property. The history of the bill dates back to 2016 when the parliament voted in favour of an amendment to the Planning, Development and Infrastructure Bill which meant that, when it comes to zoning areas such as historic conservation zones to protect heritage value, zoning could not take place unless 51 per cent or more of the affected property owners agreed.

I share the Hon. Mark Parnell's concerns that the effect of this arcane law is that governments cannot create any historic conservation zones unless more than half the affected property owners agree. The relevant sections of the act have yet to be made operational. It is imperative that we move now to protect South Australia's building heritage before it is too late. I agree with the sentiments expressed by the Hon. Mark Parnell that giving property owners a right of veto over planning policy has no place in a modern planning system. With those few words, I commend the bill to the chamber.

The Hon. D.W. RIDGWAY (Minister for Trade, Tourism and Investment) (16:36): I rise to speak to the Planning, Development and Infrastructure (Code Amendments) Amendment Bill 2019. I am sure the honourable member will not be surprised with the response. The government understands the importance South Australians place on heritage and has introduced regulations to ensure that all state and local heritage places transition into the new planning system and are recognised by the Planning and Design Code.

The government understands that this provision of the act requiring 51 per cent of owners of properties in existing heritage conservation areas to approve these zones for the code has created some uncertainty in the process of transitioning heritage and character preservation areas from local development plans. As such, the government does not intend to proclaim these sections of the act at this time to enable the smooth transition of the code and will reconsider this provision at a later date following the full implementation of the code on 30 June 2020.

The government intends to further engage on heritage and character issues with the South Australian community prior to considering an amendment of this nature to the act. So the government will not be supporting the honourable member's bill.

The Hon. M.C. PARNELL (16:37): To sum up the debate, I would like to thank the Hon. Clare Scriven and the Hon. Frank Pangallo for their support, and I also to thank the Hon. David Ridgway for his contribution. I have to say that I am somewhat gobsmacked in relation to the government's response to this for a number of reasons. The first one is that, in all of my discussions with people in government, whether it is in the Public Service, the state Planning Commission or the minister himself, I have not heard anyone defend these provisions. Not one person in government has said, 'These are good provisions; we like them, and we are going to keep them in the bill.' The best they can do is to say, 'We won't proclaim them to be operational'—in other words, leave them on the statute book but not commence them.

What an outrageous proposition, when everyone agrees that these clauses are hopeless, they need to go, they create the wrong message, they create dangerous precedent, that the best the government can do is to say, 'Can we just leave them on the statute book and we'll just not commence them, we'll just not proclaim them?' What a pathetic response! I am not going to speak at great length. Clearly, I have the numbers here, and the lower house will have the opportunity to reconsider their position, and I am hoping they do.

I want to put on the record two very quick things that have occurred subsequent to me moving this bill. The first one is that all members would have received communication from the Local Government Association expressing their full support for this bill. The Local Government Association, on behalf of all of the local councils, agree with what I have said, what the Hon. Clare Scriven has said and what the Hon. Frank Pangallo has said, that a popularity contest for whether an area should be declared to have heritage status is absolutely the wrong way to go. The LGA have weighed in, saying, 'Get rid of these provisions from the Planning, Development and Infrastructure Act.'

The second thing that has happened is that the Environment, Resources and Development Committee of this parliament has recently conducted an inquiry into heritage. It has reported on that inquiry. One of its recommendations, as reported, was: get rid of these offensive provisions in the Planning, Development and Infrastructure Act. It should be no surprise that that particular committee of parliament is a government-dominated committee.

When I put it forward as a potential recommendation, I said to the Liberal Party members of the committee, 'Go and talk to the minister. Go and talk to the department. I think you will find nobody agrees that this is good law and should stay on our statute books.' Clearly, they have done that. They have come back into the committee and we have unanimously agreed that these provisions should be expunged from the act. That is exactly what this bill does: it expunges these offensive provisions from the act.

Whilst I am disappointed that my fifth private members' bill in 13 years will not be passing in both houses today, I do hope that common sense will prevail and that in the lower house the Minister for Planning will eventually agree that a provision that nobody supports ought to be struck from the statute book rather than simply using the power to not declare it operational. With those brief words, I look forward to what I expect will be a very short committee stage and the final vote on this bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. M.C. PARNELL (16:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.