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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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CHARACTER PRESERVATION (BAROSSA VALLEY) BILL

Committee Stage

In committee (resumed on motion).

Clause 1.

The Hon. I.F. EVANS: This committee stage will not be long, minister; I just want to ask a couple of general questions. One is: why has the government left the use of the major project status provisions available to be used in the townships? The bill abolishes it for the districts, but leaves it for the townships. Why has the government adopted that model?

The Hon. J.R. RAU: Thank you for that question; it is a very good and reasonable question.

The CHAIR: Are you surprised?

The Hon. J.R. RAU: No, the honourable member has obviously given some thought to this, and that is good. The background to the original proposal was basically this: it was all very well for me to put forward a bill which created a protection zone, ostensibly for the purpose of defending that zone from a future minister acting without the consent of parliament, but if I then did not explicitly remove the opportunity for major project declarations to occur within that zone, I might have left a back door for a future minister.

The Hon. I.F. Evans interjecting:

The Hon. J.R. RAU: No, just let me finish. I wanted to make it absolutely clear that I was not only removing my power to unilaterally, or after a process or whatever, sign off on a subdivision in that area through a normal channel, I was also excluding it through the extraordinary channel; that was the reason for that. I have to say—as I have said before in the parliament—I have no intention of doing either, and never have had.

However, when we get to the township, the reason it was not touched there was because, so far as I am concerned, in drafting the legislation there were a couple of priorities. The first one was basically to disturb the status quo as little as possible in order to achieve the purpose that we had set out. That was point No. 1. Point No. 2—and it follows from point no. 1—is that the townships, I think, are best understood as islands within the protection zone which are not actually disturbed.

If you follow that rationale through, I guess the question comes up as: why should those particular townships which are otherwise completely normal from the point of view of the planning arrangements—they have a boundary around them which is set by the act, but within that boundary they are just like any other township, and just like any other place. Why should those townships—amongst all the townships that are in South Australia, which are otherwise indistinguishable in that planning sense—receive an additional, differential planning treatment, namely, the major projects provisions would not apply only to those towns?

So, that was the reason: point No.1, for consistency because those towns, in as much as you are talking about the bit within the township zones, are practically indistinguishable from the point of view of the application of planning principles and law and so on, from any other township. Point No.2: the clear object of the act was to absolutely minimise the disturbance of the status quo. It was to do the minimum required to achieve the purpose, which was to prohibit subdivision in the region, but not otherwise to muck around with what normally would or would not go on in the townships.

The Hon. I.F. EVANS: Just so I understand it correctly, under your model, a future government could come in and use its major project status to arrange for intensive residential development in the existing townships.

The Hon. J.R. RAU: If any proposal within those townships met the criteria required by the act, then a future government could initiate those processes and it would be exactly the same as it is now. I make the point that, at the moment, absent this legislation, that could happen today or it could have happened at any time in the last 10 years. If this does not pass, it could happen at any time in the next 30 years, 50 years or whatever.

I am not proposing to disturb that at all but, as you would be aware, there are certain criteria that hang around that. I think I have made it clear that I personally cannot foresee a circumstance where it would be appropriate to invoke those provisions for residential development. I have to say that my own concept of the thing is that they are more for things like major port facilities or things of that type.

The solution to the problem of perceived inadequacies in residential development is to tackle the actual development policy documents, which is what we have done in the City of Adelaide. Rather than looking at the City of Adelaide from the point of view of whether there are particular projects that recommend themselves and, therefore, should be given this opportunity through that process, we have sought to turn that whole thinking on its head and say that what we are going to do is deal with the zoning so everybody is on a level playing field, irrespective of who they are and whether they have got a block here, there or anywhere else.

These townships will be indistinguishable from anywhere else but, as I said, there is nothing in this legislation which prohibits the council, or directs the council really, as to what to do within those township zones. Indeed, one of the criticisms that was forwarded to me of the original bill was that it tended to be a bit prescriptive about what sort of things the council might or might not do within those protection zones.

It was put to me, particularly by the Barossa Council, that they already had very strong rules about not allowing McDonald's to be in the middle of a heritage region and all that sort of stuff and I did not need to overlay it with more protection. I eventually said to them, 'Okay, but on your own head be it. I am offering you the chance of preventing that with some statutory force. If you people and your community want to have the golden arches in the middle of a rustic German town or wherever it might be, then, I guess, on your own heads be it.'

That is where we have wound up here, but that was because I was asked to do that when the first bill was put out for consultation. So, they are in control of those townships, make no mistake about that.

The Hon. I.F. EVANS: But just so I am clear, they are only in charge of those townships to the extent that a government does not use its major project status to override the DPAs that exist. So, for instance, if a government wanted to use its major projects powers to put in place a major development like the Dick Smith development or whatever it was on Kangaroo Island—the Kangaroo Island resort—in the township, that would be quite possible. So, the councils still do not necessarily totally control their townships. They are still subject to the major project status, aren't they?

The Hon. J.R. RAU: As I said, I cannot remember when those provisions were introduced. I think it was during the period of the Olsen government.

The Hon. I.F. Evans: Brown government.

The Hon. J.R. RAU: The Brown government. So, that takes us back a little ways. From the moment it was introduced then, all those townships were potentially going to be subject to that sort of ministerial or government intervention. If this bill does not pass they will continue to be potentially open to that sort of intervention, and if this bill does pass they will continue to possibly be open to that sort of intervention. It does not touch it at all.

The Hon. I.F. EVANS: Can you explain to the house: what is the process to increase the size of the township under your model? How do the little islands, as you have described them, in the protected area become slightly bigger islands, if at all, or is that process simply not available?

The Hon. J.R. RAU: Again, a good question. The answer to that is basically this: first of all, we need to look at the map that accompanies the bill. If you look at the map in detail, you will see that the townships within the map are drawn in conformity with the plan outlined in the 30-year plan for growth in that region. So, the 30-year growth projection for those towns is contained within those islands. To put it another way, not everything within the township island has a house or a building on it. There are elements of that township zone which are open land or vacant land. So, the townships already have the capacity for growth built in to that boundary.

If it turned out that there were greater growth pressures than that in any of those towns and if it was the view of those communities that they wished to change their boundaries of the town—bearing in mind that, in the case of many of those towns, that would be at the expense of vineyards or certainly agricultural activity of some sort, in most cases—the process would be this: they would go through whatever conversation they need to go through at a local level, they would form a view and they would take that view to the minister of the day.

The minister of the day, armed with the view of the community, would come in here and say, 'I have been asked by the community. I have discussed the matter with the community. They have asked me to extend the boundary in this fashion for this particular reason.' The process would be that it then goes through this house, goes through the Legislative Council and the boundary is changed. In the meantime, within the boundary, council just gets on with its current behaviour, because it is still controlling what goes on within that zone.

Mr GRIFFITHS: Therefore, minister, all the current development principles in place as part of the council's plan amendment report still have control within those township areas or those island areas that you are talking about. Building heights, design principles, if they have them, streetscape and all those sorts of things stay in place.

The Hon. J.R. RAU: Absolutely. I think the only thing that we are requiring in this bill is that, as part of the whole DPA process, we are asking them to review whether those are all satisfactory. However, ultimately, you are exactly right: it will continue to be governed by the rules that the Barossa Council in particular generates for that zone. I need to emphasise again that the object of the exercise was to have as relatively light a touch as possible. The original bill, which was distributed last year, sought to provide a lot more particularity and guidance about how those exercises would be gone through. The current bill, as you have probably noticed by having a look at it, is an even thinner document than the original bill and does not contain all those detailed guideline principles that appeared in the schedules and all that sort of thing.

One of the criticisms I received of the original bill was, 'We think you're boxing us in too much with the guideline principles.' I did not think I was. I thought I was saying to them, 'These are things you might turn your mind to and how you come out of that is a matter for you.' In any event, I thought, 'Well, fair enough. I don't want to have an argument with them if, in essence, it's an argument about style rather than substance.' I hope it is fairly clear from this that we have left that very open to the councils to make their own minds up.

Mr GRIFFITHS: Can I ask the minister a question about the limitations on land division in the district (clause 8)? I pose this from the viewpoint of not speaking to any of the property holders there. It is a question about what restrictions that might place on people who have had plans in place for some time to develop, say, for their children a home as part of a subdivision that would occur on farming land where, I think, the principles of many other councils is that you can subdivide 100 acres, for example, and that could be developed and you could build a home on that. I note here that you talk about creating additional allotments to be used wholly or partly for residential development. For a home considered a residential development is that ability removed completely?

The Hon. J.R. RAU: A very good question. As I was trying to explain before, there are three different types of threat to these regions. One is the spilling over, if you like, of Gawler, probably into, first of all, the Cockatoo Valley and then progressively through to the Barossa. That is the threat from outside, which is why we have the perimeter around the protection zone.

The second threat is that if you allow the townships to be completely unregulated and to determine how big they are going to be at any given time without any sort of guidance, you could have them growing within the district. The third potential threat is that you might have a series of land divisions in the protection zone which are styled for a particular purpose—and let's say it is for farming activity or something else—but in substance are really a matter of subdivision by another name.

To give you a hypothetical example, if you have, say, a 100 acre property, or whatever it might be, and you have got one house on the property, you may be able to carve off a couple of acres around that house, create a new title, sell that title, then say, 'Oh, I've got 98 acres here without a house on it. I'd like a new house. It is not fair, I haven't got a house. I've got all this land, but I've got nowhere to live.' So, you go off and you build your house. Then, a little bit later, 'Oh, I'd like to have five hectares around this house. Do you mind, because cousin Bill wants to come and live here,' and so on, and so on. So, it is that sort of incremental happening.

I can tell you about places where that sort of thing has been underway. Cockatoo Valley is an example of where that has been underway for some time. I think the progression goes from viable farming property—whatever sort of farming. It might be grapes, it might be cattle, livestock, or any number of different things, but agricultural, call it.

Then, the next step down the slippery slope is a hobby farm (whatever that means). Then, the next bit down the slippery slope is, 'Oh, look, we've got all these hobby farms and they are useless now. They don't serve any viable agricultural purpose because of their size and whatever.' It is unreasonable not to permit them to be further subdivided to create a nice living ambience for these other people who want to have a hobby farm experience.

Cockatoo Valley is seriously at risk from that sort of thing and, indeed, there are parts of the southern area in the McLaren Vale district which have a threat as well from that type of behaviour. I think if we all calmly analyse what happened in and around Mount Barker historically, whatever might be said or not said—and I am not here to canvass the exact processes by which the current arrangements came to be—there is no question that a large amount of the land that was affected had already been the subject of that sort of incremental chop-up.

The reality is if you combine the incremental chop-up with insufficient resistance to subdivision, there is a tipping point at which it becomes almost irresistible. We are attempting to protect that, not in such a way that those people who currently hold those blocks are not able to develop the blocks as they would have under the existing rules been able to develop them, but so that they cannot look forward to a change to liberalise that further without bringing it here.

Mr GRIFFITHS: I understand the scenario the minister has put, completely, and, coming from a regional community, I am all about preserving the land for agricultural production also: there is no debate about that in my eyes. I am certainly aware of legitimate requests within families for multiple generations to occupy adjoining properties but to have some tenure of the land in their own name with the ability to subdivide a 100-acre property and still leave a substantial parcel of land. All I am about is trying to ensure that some equity and opportunity exists for those people where it is a legitimate exchange of land title and ownership and, indeed, the opportunity exists for a family to continue to reside and to work the land for its original intention but to have more than one generation potentially doing it—because you do not always have the case where mum and dad are prepared to move into town: sometimes they want to be on the farm, too.

The Hon. J.R. RAU: I understand your point and that was something that we were aware of and it is not prohibited. What we have done, though, is to say you have to look very carefully at this and be careful that this is what it says it is and it is not something else pretending to be what the member has just described.

The Hon. I.F. EVANS: The minister says it is not prohibited but my understanding is it becomes noncomplying. Can the minister explain to me: does the applicant in a noncomplying application have any appeal right? When you go to the council with a noncomplying development, the council says no, which 99 per cent of the time they will—

Mr Griffiths: No, they don't.

The Hon. I.F. EVANS: Come live in my council.

Mr Griffiths: No, sorry: there is no appeal right.

The Hon. I.F. EVANS: That's what I am asking: is there an appeal right? My understanding is there is no appeal right. The minister, I think, is being technically correct but a bit cute: it is not prohibited but if it is noncomplying and the council says no (which, in the vast majority of cases, they do), there is no appeal right for the applicant so it is effectively going to be prohibited.

The Hon. J.R. RAU: I think as a matter of law that is correct, but can I just say this: that is the case now. Any noncompliant—

The Hon. I.F. Evans interjecting:

The Hon. J.R. RAU: And they are not compliant as they are. We are talking about a change in use. They would still need to be approved by council, and they still would be approved, or not, as the case would be. Part of the argument that I understood most speakers from the opposition advanced before was that you should give the power to the council. They are the people who will be making that call, not me.

Mr Griffiths: We are just checking whether or not the process is the same.

The Hon. J.R. RAU: Some of these pieces of land are presently in a position where people may have an expectation that in the future the rules will change and they will be able to divide them. We are not interested in changing that. The ones who presently would be able to change the land use in the way that you have described are still able to make that application, and I will just check who the determining authority is. The determining authority under section 8 is the Development Assessment Commission; but remember, that does not mean that the development policy is written by the Development Assessment Commission. I know that the member for Goyder understands—and I am sure that the member for Davenport understands—the distinction here. Some people unfortunately do not.

There is a distinction between the rulebook, which is the policy document, and who the umpire is, that is, who has got the whistle and the funny shorts running around the oval. I accept that it may be that the umpire in some of these cases stops being the DAP and becomes the DAC. This is to do with a change in land use or subdivision, and I understand that it also applies in the Hills Face Zone now and in relation to the River Murray flood plain. So, there are already circumstances where this type of development control regime exists.

The Hon. I.F. EVANS: How many new titles have been created in the Hills Face Zone since that process has been in place? I can give you the answer, minister: none.

An honourable member interjecting:

The Hon. J.R. RAU: He did gesture a zero. As I said, this does not prohibit land division. Can I give you an example? Let's say that you have 100 acres again and the owner of the property wants to sell half of it to somebody who wants to grow blueberries or whatever. They sell half of it and the bit they sell does not have a house on it. There is a plan attached to the whole application process: here is what we intend to do with the land and here are our plans and everything else. I would expect that that would not be anything that would cause any difficulty.

The Hon. I.F. EVANS: You know your own act. Your own act says that. Your own act says that it is subdivision for residential purposes that is prohibited, not for agricultural purposes. So, the example that you give us is irrelevant.

The Hon. J.R. RAU: Exactly. That is my point. My point is simply this: not everything that purports to be a subdivision for agricultural purposes may in fact be that. It is shocking, but some people are prepared to call it something other than what it really is in order to make it get past the person who gets to put the red tick in the box. That is all this is about. It is not intended to impact on the current expectations people have under the current rules, irrespective of what they might do with the land.

The Hon. I.F. EVANS: I only have a couple more questions and then we can wrap this up. My understanding is—and I may have the figures the wrong way around—that in one area of the Barossa Valley about 800 allotments that are not built on will be impacted by this particular piece of legislation and, in the McLaren Vale area, about 700 allotments that have not been built on will be impacted by this legislation. Can you please explain to me the answer you just gave, where you said that there will be no impact, when those allotments can be currently built on and under your provision will not be able to be built on? How is that not an impact?

The Hon. J.R. RAU: I am not sure about the numbers. I do not know where you got those from, but I can tell you this: if you are talking about 700 or 800 blocks, you are talking about a rather diverse group of landholdings. I do not think it is appropriate to cluster them all as one type of landholding. Some of those will be clearly agricultural blocks which have no dwelling on them at present because the owner of that particular block either does not require a dwelling or has a block somewhere else on which they have a dwelling and they work that block.

I think it is pretty clear that the impact of this on those people is likely to be zero, even in terms of the regulatory thing, because if you have what is clearly operating as an agricultural property, which does not have a dwelling on it, and the owner wants to put a dwelling on it, then I do not see that there is any likelihood of that being a problem. You start getting into areas that require a lot of scrutiny when you have much smaller landholders. This is the three, four, five, 10 hectare-type landholdings where people want to crack them down even further. That is where this provision is intended to do its work, and it is simply saying—it is not prohibited—that you need to ask for permission to do it.

The Hon. I.F. EVANS: I will leave that point but I will make this point to the minister. If the minister re-reads what he said, essentially what he is saying is—rest assured—first of all he told us that the council's powers would not be taken away. He actually accused the opposition of protecting the powers of councils, and then he said, 'That is exactly what we are doing.' With the next answer he got up and said, 'Well, actually, that's not quite right. Now the opposition has pointed it out, it is the Development Assessment Commission that will actually make the decision in relation to that question of subdivision for residential land, not the council, so the rules have changed.' So, the opposition's point was validated by the minister's correction to his own answer, all within two answers of each other.

The other issue, of course, is that the minister says, 'Don't worry, the council will be writing the rules.' Well, the rules are set out in the DPAs and the DPAs are signed off by the minister, and the minister can override the council any day he wants.

The Hon. J.R. Rau interjecting:

The Hon. I.F. EVANS: The minister said, 'and has been able to do so for years'. So, to use the analogy of the umpire that the minister uses, we have the minister writing the rules for the umpire and the minister appointing the umpire as well, because, ultimately, the minister appoints the DAC, the minister signs off on the DPA, so if the minister wants to more intensively develop the townships he can, no doubt about that, whether it be through major development status, project status or whatever.

The other question I have is that I would like to get on the record an answer we got yesterday from your officials, and I got the figure of 700 to 800 allotments from your officials briefing this week. I want to get on the record that there is no compensation payable. If the government rezones land that could have been subdivided, then cannot be subdivided for residential purposes, then under court cases that have already been decided in the South Australian courts there is no entitlement to compensation.

The Hon. J.R. RAU: First of all, in respect to the 700 to 800, I have clarified that matter. That is something to do with the current interim DPA only—it is nothing to do with the act—and the DPA process is actually being gone through now. The interim DPA, as you know, is subject to statutory consultations and so forth and, in the end, there will be a final document, which may or may not look like the existing document, and that is a matter for future discussion. The second thing is, can I say that, if I were determined to do so, I could actually go through a process now whereby I rezone the Barossa Valley for housing over the objections of the council, and over the objections of the people who live there. I do not know how many ways I can try to make it clear, I do not want to do that.

The Hon. I.F. Evans interjecting:

The Hon. J.R. RAU: Not from me there isn't. Absolutely not. But, if we look at it in the context of there being a city which perhaps will have half a million extra people in the next 30 years, and how much pressure is going to start building on those two regions which are reasonably proximate to the city, and reasonably well serviced by transport linkages, a point arises where, if you do not have something like this in place, the commercial value of the land for residential purposes overwhelms the existing use. I can also say that, many years ago, when the Hills Face Zone was determined, the same sort of argument that you are putting, could have been, probably was, and probably continues to be put about affected landholders. The question is: are we better off for having entered into the process of protection for the Hills Face Zone?

The Hon. I.F. EVANS: Come to the valleys and I will show you some properties, John. The last minister would not. Come to the valleys and I will show you some valleys in the Hills Face Zone and you tell me how those properties are in the Hills Face Zone.

The Hon. J.R. RAU: I am happy to have a conversation with you about particular matters. I have been up there (as you know) with you and had a look around parts of your electorate. We were looking, at that time, in the context of bushfires but I am familiar with the terrain. As with any planning decision, whether it is made by council or whether it is made by the parliament, or however it is made, the landholder holds the land subject to the law at whatever time it is they make an application. It is the case that a person who makes an application today may, by reason of that application being made today, be in a different position to a person who makes one tomorrow because the rules have changed, and that is all that would be happening here.

The Hon. I.F. EVANS: What about the court cases in relation to compensation? We were told there was no compensation available for change of zones as the court cases had established that no compensation was payable as a result of rezoning.

The Hon. J.R. RAU: I would think that would be absolutely correct. If that is what you were advised, I have no reason to doubt it; I would assume that is correct. Government (at a state and local level) makes decisions about zoning all the time. For instance, a local government authority may say, 'We want to rezone this particular parcel of land here from agricultural to industrial, and the bit next to that we want to rezone from agricultural to urban development.' Those three parcels of land are going to have quite different values the moment that rezoning occurs.

In that particular example, two of them get an uplift which they are quite happy to pocket, and the reason they get the uplift is because there has been a change in use permitted by the rules; likewise, there are times when the rules change and adversely affect some people. In those circumstances, as I understand it—and I am happy to be corrected by those who advise me—that is not a matter which is compensable. I will come back to this again: subdivision in the region for legitimate agricultural purposes—or not for urban subdivision purposes, should I say, is not prohibited.

The Hon. I.F. EVANS: Just to make it clear: they will be able to subdivide (for industrial purposes and commercial purposes) areas that are currently under vineyard?

The Hon. J.R. RAU: Subject to the council's development plan—again, can I explain: in the first draft of this legislation there was quite a bit of prescription built into the schedules to the legislation about what commercial and industrial activity might occur. The same people who are now saying that we have not talked to them, we have not consulted with them and we have not listened to them said, 'Look, we know more about what sort of commercial or industrial activities are consistent with the theme and the atmosphere of our district than you do. We have been managing this for 100 years.'

In fact, I can repeat the words that the honourable member for Bragg used and that you used: 'We have been doing this for 100 years. Why do you suddenly think we can't regulate these things any more? What's wrong with the way we're doing it?' We said, 'Fair enough. What you're saying is that you want a lighter touch in respect of those things.' Okay. We had hoped, in terms of the legislation, to give a bit more direction around those things but in the end we said, 'Look, our major priority is the subdivision bit.' I was persuaded by arguments about not wanting to stifle industrial activities—for example, associated with the wine industry in either of those districts where somebody wants to build a bottling plant or somebody wants to have a crushing plant or something else.

The Hon. I.F. Evans: Caravan park.

The Hon. J.R. RAU: Maybe—that is what I am saying. So between the first version of this legislation and this one we have withdrawn from that in terms of setting rules and we have said to the councils, 'Okay, you reckon you can do it—you do it.' That means that the councils, with their communities, will be working up what they want to have in there. I anticipate another question: won't that also mean a DPA and won't that DPA have to go to the minister of the day? Yes, it will, just like it has for however many decades and just like it will if we do nothing from here to eternity. I cannot emphasise enough that we are trying to disturb as little as possible.

The Hon. I.F. EVANS: The minister has made the argument consistently about the pressure that the Barossa Valley, McLaren Vale and Willunga will come under because of the growing population and the new road infrastructure going into those areas. We need to protect our food bowl which is essentially the crux of the minister's earlier contributions. Why, then, does the minister not propose this for all the market gardens in Virginia? I declare to the house that I have uncles with property at Virginia (two of the biggest market gardeners in the state) and it seems to me that we are protecting the vineyards under this legislation while, closer to the city, closer to the population pressure and providing a far different food source are all the market gardens of Virginia. I am wondering, first, why you have not done it for them; and, secondly, are you proposing to do it to any of the other food-producing areas within the state?

The Hon. J.R. RAU: First of all, to be honest, I have not turned my mind to Virginia but if the opposition is asking me to do that I am happy to consult with them about whether we should be doing something similar there. The other point is that in this legislation we are trying to look at the 30-year plan to see where the outer reaches of the city are being demarked and we are trying to carve off regions which, in effect, block the city in the north and the south.

The closer you come to the city the more you have patchy bits where there is agricultural land and built-up land, so protection districts would have to start getting smaller and smaller the closer you got to the city. It is not like it is one cohesive parcel of land. The zones that we have picked to the north and the south represent the first large cohesive zones of undeveloped land (from a residential subdivision point of view) in the city, and that is why we are doing it. However, subsequent to seeing how this goes, if the opposition can raise a good case as to why other areas should be treated similarly, obviously I would be happy to have that conversation. Presently, there is no plan about that and I think we have enough on our plate with this.

Clause passed.

Remaining clauses (2 to 11), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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