Bills

Planning, Development and Infrastructure (Use of Vacant Land) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 October 2022.)

The Hon. J.M.A. LENSINK (20:09): I rise to place on the record some remarks in relation to this bill. It will come as little surprise, I think, that the Liberal Party will not be supporting this bill. I have not checked the record, but I am assuming that when it has been brought to this chamber in the past by the Hon. Mark Parnell, the Liberal Party did not support it then for similar reasons, which I will outline now.

This bill allows the designated entity, as prescribed in this bill, to take temporary control of privately owned, vacant, underutilised land for public purposes, notably for emergency and portable housing. Under the bill, landowners who are deemed unable or unwilling to develop their land can be subject to statutory leasing by the state or the council, depending on where, without their consent or compensation. The bill was inspired, I am advised, by a similar Victorian program—and Victorian programs or ideas should always be considered with caution. The socialist state of Victoria has taken a number of measures which have seen people, who would otherwise be able to build and supply housing, flee the market because of suggestions such as these.

While we appreciate that there is a significant need for housing, we certainly do not think that this is a good approach. Ninety-seven per cent—I think is the figure that industry uses—of housing is built by the private sector, so I think we need to bear that in mind and not make them some sort of bogey in this debate. If we do not make things easier for the private sector, they are not going to be able to build.

This bill effectively allows for occupation of private land without the consent of the landowner or payment of rent for it either, which is a fundamental breach of property rights that have operated in this state since settlement. It sets a precedent that would undermine confidence in secure land ownership, and that is very significant indeed. I think there would be a number of people who might otherwise operate in South Australia who would see that as a sovereign risk. We have concerns about key terms in this bill, such as 'public purpose' and 'underutilised land', and whether there is any appeal mechanism that would allow landowners to prevail against the designated entity's decisions. There is also a concern about politicisation.

The bill proposes an insertion into the Planning, Development and Infrastructure Act of new section 243A, subsection (9) of which contains the definition of 'designated entity':

(a) in relation to all land within the State (whether or not the land is situated within the area of a council)—the Minister; or

(b) in relation to land within the area of a council—the council;

We did have significant changes to the PDI Act, which came into being in 2016 from the old Development Act. Through the new PDI Act, we have moved to a merit-based process which sought to depoliticise all planning decisions. Prior to that, councils of the whole had a huge amount of influence over development, and a number of councillors would make political decisions and not make decisions on merit. So we have certainly seen that shift; in the PDI Act it is section 82 that contains the relevant authorities.

We now see that there are council assessment panels, and in regions there are regional assessment panels, which at a local level have decisions about planning. This is a diversion from that to enable the council of the whole to make what could be potentially arbitrary decisions, which I think would certainly deter investment in South Australia.

We hold other specific concerns in subclause (1), which states that if a designated entity is satisfied that the owner of prescribed land is unwilling or unable to undertake development they can start to exert these powers. I have concerns about how this would be determined. How would the council determine that the owner is unwilling or unable? Council might suggest that they have not lodged an application process, but then they may have lodged an application process, but council says, 'Well, they're not taking it seriously.' Where is the opportunity for an owner to rebut this decision, an appeals process?

A developer may put in an ambit claim to say, 'Yes, I'm prepared to develop this.' For instance, if we are looking at a lot of places in Adelaide in which the general neighbourhood zone applies, the maximum building heights that apply in a general neighbourhood zone are two building levels up to a height of nine metres. Somebody who owns the land and says, 'I want to put five storeys' with a maximum height of whatever that is—it is usually five times 3.7 metres—they could put in an ambit claim. Does that protect them from this? In that case, I do not think the neighbours would be rightly pleased that somebody was seeking to go up much higher than that.

The corollary is that, if we had particular—he is not going to like this—green-leaning councils, and we use the Sydney planning system as an example, where a lot of councils have a bunch of green nimbys in charge of them, that is part of the reason they have not seen any development over the years. They have had a massive problem with housing supply for a number of years because—and I think this might also apply in Melbourne—in some council areas you will see some development take place because they are not controlled by green nimbys and others where they are controlled by green nimbys and nothing takes place.

I think, similarly, in this case, anyone who owns land in a green nimby council is going to be at very high risk of the local council deciding, based on determining somehow that the owner is unwilling or unable to undertake a development, to use their land against their will. I probably should not mention the EFPAs and the urban growth boundary, which is another great idea by the Greens, which has restricted supply and has certainly played some role in the increase in house prices in South Australia.

These may be well-meaning ideas, but I think if you talk to people in the know who are responsible and have been engaged in building for many years, you would probably see the whites of their eyes and see how horrified they would be by suggestions such as this. For those multiple reasons, we are unable to support this bill.

The Hon. M. EL DANNAWI (20:18): I rise to speak on behalf of the government to indicate that we do not oppose this planning, development and infrastructure bill in principle, but we do believe it needs more work. The government supports the intent of the bill and is open to discussing sensible reforms that see vital land that is being banked made available for housing.

The housing crisis is not going to be resolved by land remaining vacant for an extended period of time. Any proposed amendment to the Planning, Development and Infrastructure Act should be practical but ensure housing delivery as a cornerstone priority for the state. The government does not support the current form of the bill for a few reasons, which I will summarise.

Firstly, the tests allowing the government to seek lease over land are not clear and certain. They contain terms such as 'considered sufficient' and 'reasonable steps' and terms which carry a level of uncertainty. This means the use of the provisions may result in a legal challenge. Secondly, public money may be better spent on long-term public benefits such as purchase of land and housing that will be retained by the government. Establishing temporary public housing and other temporary public purposes, such as playgrounds, is a significant expense for government, with little certainty as to how long use rights would remain.

Thirdly, it is very difficult to remove public infrastructure, such as playgrounds, from a local community as local residents may not understand that the land is privately held and the use is temporary. Removal of this infrastructure, once it is in place, is likely to be upsetting and not received well by the community. Finally, it is considered that other mechanisms, such as increased rates or levies over vacant land, may be more effective, less controversial and require less government spending in order to reduce the amount of vacant or unused land within Greater Adelaide.

The government acknowledges the intent of the bill and is open to considering and progressing reforms in an alternative manner that would see vital land that is being land banked being made available for housing.

The Hon. R.A. SIMMS (20:21): I thank members for their contributions: the Hon. Michelle Lensink on behalf of the opposition and the Hon. Mira El Dannawi on behalf of the government. I want to thank the government for the constructive way in which they have engaged with me on this issue. I have had a number of constructive discussions with the Minister for Housing on this very question around what we do with vacant land.

Indeed, it is an issue that I raised just a few weeks ago in this chamber in the context of the planning reforms. I was very concerned around the opening up of farmland for new housing developments. It has long been my view that rather than us eating into our farmland, what we should be doing is activating long-term vacant land.

This bill draws on some of the work of my predecessor in this place, the Hon. Mark Parnell, and adds a few new elements. I think it is fair to say this is an issue I have been concerned about since my time on the Adelaide City Council. I remember the O'Connell Street saga, the old Le Cornu site that was vacant for more than 30 years. This is designed to try to incentivise owners of this kind of land.

It is my hope that if this bill passes the upper house tonight, I would be able to work constructively with the government to nut out an approach that might deal with this scenario.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. J.M.A. LENSINK: I think I outlined some of my concerns in my second reading contribution, but I think particularly subclause (1), which I will have to restate so that the question makes sense, states that 'If a designated entity is satisfied that the owner of prescribed land is unwilling or unable to undertake development', then we understand the acquisition can then take place by council or the minister. In relation to some of the language, I would be interested if the mover of this bill could perhaps expand a little bit on an entity being 'satisfied' and also how on earth they would determine that an owner of prescribed land is unwilling or unable to undertake development on that land.

The Hon. R.A. SIMMS: I think it is fair to say the bill has been deliberately not prescriptive in terms of what might inform some of those considerations. When this bill was first developed by my office, we were intending to deal with the scenario whereby someone did not have an active development application in train and that that would be assessed by the designated authority.

For instance, if someone was actively trying to develop land and had actively lodged a development application and that was being assessed, that would clearly demonstrate an intention to activate and develop the land, but if somebody was leaving the land vacant for a long period of time and demonstrating no intention to do anything with the land, there would be the potential for the minister or another designated authority, be it the local council, to step in and do something with the long-term vacant lot.

The Hon. J.M.A. LENSINK: I appreciate that explanation. I note that the mover of this bill referred to the Le Cornu saga and we are all familiar with that as something that sits well in the memories of most people in this state and it is probably an obvious example. Maybe I am just talking myself into reasons why I cannot come at this piece of legislation at all, but there is so much that is left in the open with this. Does the honourable member have in mind a specific period of time for which an application may not have been lodged? In the case of the owner deciding to keep the council at bay and leave them alone, they might just put in an ambit claim that they know is never going to be approved. How does he envisage scenarios like this may play out under his proposal?

The Hon. R.A. SIMMS: As I said earlier, I have kept the bill deliberately broad and that is because I guess I envisaged that this would be an extra tool in the toolkit for the government to use. The intention here is to incentivise the development of long-term land and the fact that the minister or the designated entity has been given these new powers might have the effect of incentivising the owner of land to actually do something with it. I deliberately have not stipulated specific timeframes and the like, but, that said, if there are amendments in that regard, I would certainly be open to entertaining them.

The Hon. J.M.A. LENSINK: Just on a slightly separate issue, if there is one of these arrangements that council determine to place on land, is the honourable member able to provide some details about what appeal mechanisms they might be able to use, because clearly they might feel that they are aggrieved in some way or that it is an unfair imposition?

The Hon. R.A. SIMMS: I am sorry, I could not advise what the appeal mechanisms are. I am actually not sure.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. R.A. SIMMS (20:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.