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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Planning, Development and Infrastructure Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 September 2015.)

Mr GRIFFITHS (Goyder) (11:12): I confirm that I am the lead speaker for the opposition on this bill and, indeed, that is why I am standing in this spot; otherwise, it would be something that I would avoid as often as possible. I confirm that today my contribution will be about the Planning, Development and Infrastructure Bill 2015, which was introduced by the Minister for Planning on 8 September, and it is some 207 pages. It is a rather extensive document which goes to many different areas. Many are the legislative framework attached to how things are to operate within this area, but also much to my frustration it includes what I believe to be clear policy areas which would not necessarily fall within a legislative framework on how to do things.

I want to put some things on the record, and it will take some time. In confirming that I am the lead speaker, I want the chamber to be aware that there are numerous other members from the opposition who will also speak on this very important bill. They would have been contacted by constituents and councils from their area—a wide variety of people who would have positions on it—and it is no doubt that they will use their allocated time to ensure that the chamber is aware of issues put to them. It is my intention also to ensure that the chamber allows for a full debate to occur on this to ensure that what has occurred since February 2013, culminating in a report to the parliament or the minister on December 2014, a response from the government in March of this year and now the legislation on this very significant issue for the future of South Australia, actually does have the future debate that occurs on it.

In noting that the legislation was tabled on 8 September, it is important to recognise that it was not quite the time frame that was previously advised. The minister has flagged the work undertaken by the Brian Hayes led review team. I recognise the work of Mr Hayes and his colleagues—Natalya Boujenko, Stephen Hains, Simone Fogarty and Mr Theo Maras AM—what they did in consulting around South Australia, the various reports that they submitted, and the 22 recommendations and some 149 subrecommendations that eventually came from that.

Following the completion of their work in December last year, and the government's subsequent response to that, the minister's confirmation to me, privately and within this chamber as part of questioning over the estimates when we were talking about the budget and the impact of last year and the future for this current financial year, was that the legislation was intended to be tabled by 28 July. For whatever reasons that I have never been fully advised of, that did not occur. On the basis that tabling the legislation by 28 July had occurred, it would have ensured that there would be that winter break period of the parliament for consultation to occur.

Without that, and the tabling of the legislation on 8 September, and only a paper version being provided to the chief of staff to the leader some, I think, nine days before that—which made consultation rather difficult—it has slowed the process down somewhat. While I always believed that debate would probably be occurring around about this time, it has been a little bit more rushed than I would have liked, and it has been a little bit more rushed than those involved in the development industry would have liked. That was part of the reason why, several weeks ago, they put to the minister a request for debate to not occur in the chamber until the sitting week of 17 November.

That has not occurred—we have come forward—but it does create some challenges to ensure that we have all the information available so that we are able to progress the bill. The timing of this, as I understand it—I am happy to be corrected—is that the minister has determined that from his point of view he wishes the legislation to be through both houses of parliament by the time of the Christmas recess. That, as I understand it, is a self-imposed time frame. There are those who talk to me and hold a variety of positions on the legislation who would prefer it to be a really informed, detailed debate about the impact of the legislation, how it operates and how its implications are to be managed, and for an outline to be given and amendment opportunities to occur, to ensure that we get the best possible piece of legislation moving forward. Potentially, that might delay things until March.

We are working from the minister's time frame, though, so today's debate will be fulsome. I will ensure, from my point of view and the contact that I have had with a wide variety of people who are interested in this—and I think by association all South Australians need to be, because it is a piece of legislation that actually impacts upon them, the communities in which they live, the areas in which they choose to reside, the areas in which they or their relatives in the future might choose to reside, and to a large degree the economy of South Australia—that we have some involvement in this legislation which is about planning, development and infrastructure.

The history of how planning and development have evolved is interesting. Having been an employee of local government for 27 years before entering this place in 2006, I am not uniquely placed, but I am placed to have had a practical observation of the physical implementation of planning and development rules as they were in place. In a previous time, it was determined by the local community and the local council. Then there was the planning act of 1993, which put in place greater guidelines and involvement of the state and ensured that recognition was given to the needs of adjoining council areas, that a longer term vision was developed, that community involvement existed, and a variety of successes which I do acknowledge. While regular review opportunities were provided for it, it was part of the strong level of community involvement in determining the vision for it and when it came to the regulated controls of it, which were done predominantly by local government.

The high-level involvement of the minister, and indeed the Crown and his staff, was to ensure that overall planning visions were upheld and that South Australia had a chance to actually ensure that, when planning visions were determined for individual areas, there was some level of coordination that occurred and some level of consistency. So, that is why I am a little bit intrigued that the minister talks quite often about the fact that part of the reason for his justification for this significant redraft of the bill and the changes that are proposed in it is that there are some 23,000 pages of planning policy.

I recognise that there are differences, but I want to point out to the chamber that there is an amazingly high level of consistency of words within it, too, and actions that follow from that. Without having thoroughly reviewed it, my estimate would have to be that, amongst those 23,000 pages, the consistency across it is in the 90 per cent range. The other 10 per cent, one could argue, is indeed the vision that a local community holds, and I think it is fair to respect the fact that different communities in different areas and different circumstances in the way their land is structured, where it is, the level of intensity that exists and the level of so many other needs that exist around them, hold different visions.

It is disappointing to me that that is used as the example for a significant amount of the change requirements when I think much of it is actually because of the fact that we have so many versions of development plans. There are wider-reaching development plans that exist for the whole of council areas, but then there are individual areas that are determined because, instead of a wider-ranging review on everything, it is, in a more practical way, a better situation sometimes to do isolated area development plan amendments. So, that is why the example of 23,000 is used. I actually think that, in essence though, the issues that are in contention are far fewer in number than that, but it is part of what the minister talks about.

I will put on the record that I am a pro-development person. I believe that it is important to ensure that development opportunities are created, because the economic outcomes that come from that are significant drivers to South Australia but, when I do review things, I try to take a very balanced view of it, which often gets me in trouble because it is very hard to determine plain yes or no on things when you are aware of so much information on the sides of these things all the time. But I look at it in terms of social, economic and environmental impacts, and the acknowledgement that for every action there is a reaction. It can either be positive or negative. It is a matter of managing that and trying to ensure that you get the best possible outcomes.

Doing that, and having had the benefit of working in local government, have provided me with opportunity in a practical way to actually meet and talk with people about conditions that might be attached to augmentation contributions on charges for infrastructure that might be required, and to understand where the history of development and planning control has come from and where it is now. I have looked forward to this debate actually occurring in the parliament because, for me, it is one of the most important bills that the parliament will consider this year. So, to some degree, I understand absolutely and completely why the minister has proposed it because, for an act that has been in place, as the current Development Act 1993 has been, for over 22 years, it is important that, in a changing society, reviews occur. The challenge is to ensure that we get the right outcomes from it.

There is concern put by a large number of people that, when a development vision is created for a community, it traditionally has involved a very low number of people. The legislation talks about the community engagement charter. From recollection, I believe it was recommendation No. 2 or 3 of the 22 from the Hayes report. It is one of the absolute key areas, so I can appreciate why the legislation sets out the creation of that charter, but the questions that are going to be raised later as part of the submissions that I will read onto the record and as part of the committee session that we have on this are about, in a practical way, how it is intended to work.

That is why I am rather frustrated that there were no draft words available. There was no example of how it is intended to work. There was nothing, as far as I am aware—and I stand to be corrected on this and will be happy if the minister would do so—about the cost implications of that. Who is to fund that?

What are the secret magic things that will ensure that people in our community not only decide to become involved when things are in their own backyard but, instead, look at the wider perspective on things and respect the fact that, no matter what their age profile, no matter what their economic circumstances, and no matter where they live, they need to be involved in it. It is a great vision to hold, but it will be a challenge to ensure that it is achieved.

I can give a metropolitan-based example of where frustration exists within communities. It concerned Unley Road development issues and negotiations that occurred between community groups and the Unley city council to create a development vision for Unley Road and now the subsequent impact of a development occurring in the Cremorne Hotel area.

My understanding is that, when the development vision was created via significant amounts of negotiation between the community and council—and it was supported by the minister, because it became part of the development plan—there was a height limit put in place for developments within that area. Frustration occurred earlier this year where an application was received and approved for some seven storeys. It was originally envisaged to be higher than that, but was negotiated down to the seven, in excess of what the development vision for the area is, which I believe is five. Now you have a development that is 40 per cent over the height than has been approved by the Development Assessment Commission as an on-merit application.

I have always worked on the philosophy, having been involved in development systems via local government for some number of years, that when the Development Assessment Commission was to consider proposals, they were guided absolutely, entirely, by what was said in the development plan for that area. There is a great level of concern about that having occurred and having been approved. While there are no on-ground works yet about the impact it will have on the community—and I have attended two public meetings in the Unley area talking to people about that—the timing of it was rather significant also, because it was around about the time of the government response to the Hayes review and the suggestion of the timing in regard to when the legislation might be put into place. I use this as an example, because it created a cross community that had to some degree been prepared to offer a compromise on what a development vision might be.

I respect the fact that there are some people who do not want any change at all, but there is a need for change to occur to ensure that we have vibrant communities. There was great frustration that as part of the timing of the bill we are currently debating there was a decision made by a high-level authority (which is intended to be replaced as part of the provisions of the bill by a different group called the Planning Commission instead of the Development Assessment Commission) to approve a development that the community did not want. I have been to public meetings when there have been close to 200 people there, and if I can take that as a reflection of what that community thinks, then they are upset—very upset. It puts into their mind a level of concern about where is the sincerity attached to planning and where are the efforts being made by those who have responsibility for making decisions for others to ensure that the community's vision has been adopted.

In any planning matter, though, it is obvious that there are at least two sides of a discussion. It is very difficult indeed sometimes to find the balance between what a proponent may wish to choose to do and what a community sees as all it wants. But where, to some degree, that debate had taken place and was part of a development plan amendment which was endorsed by all parties and subsequently broken, if I can use that term—the conditions attached to that—by approving something much larger than that, that is rather frustrating people and is something we will flush out as we continue along.

This bill is extensive, comprising 207 pages, although it is a very interesting read and will result in the committee stage going for some time, as it should, because it is significant. I believe that, when legislation is presented to the parliament, it should be about improving a system, a process, a service or the way in which government operates. It should also be about ensuring that we live in a safer place and that we have better infrastructure and all that sort of thing, and consequently you would expect people to support it. However, as a result of the consultation I have undertaken, I cannot find anyone at all who actually supports the bill in its current format.

There are some who are moving a bit, some who are openly against it, some who want the absolute majority of the changes that the bill proposes implemented because they believe it creates an advantage for them, and there are others who are very frustrated by it because they see it as a significant negative for them and the area in which they operate. That is why the consultation that the opposition has undertaken has been extensive and fulsome. Therefore, it is my intention to read into Hansard some of that detail that I have received.

I will put on the record what the intention of the bill is and what areas of legislation it amends. The intention of the bill is to:

provide for matters that are relevant to the use, development and management of land and buildings, including by providing a planning system to regulate development within the State, rules with respect to the design, construction and use of buildings, and other initiatives to facilitate the development of infrastructure, facilities and environments that will benefit the community; to repeal the Development Act 1993; to make related amendments to the Character Preservation (Barossa Valley) Act 2012, the Character Preservation (McLaren Vale) Act 2012, the Environment, Resources and Development Court Act 1993, the Liquor Licensing Act 1997, the Local Government Act 1999, the Public Sector Act 2009 and the Urban Renewal Act 1995; and for other purposes.

It is interesting that the majority of the pieces of legislation that are to be changed are controlled by the Minister for Planning as part of his portfolio responsibility. The one obvious example where it is not, though, is the Local Government Act 1999.

I have put on the record the concerns of the Local Government Association on behalf of their 68 member councils and the concern highlighted in some of the submissions that I received from other councils that it is a significant piece of legislation impacting upon local government in the hope that the member for Frome as the Minister for Local Government will also make a contribution. My absolute expectation is that he would have sought to be heavily involved and been briefed by the minister and that the Local Government Association would have met with the minister (as it does on a regular basis), put their position and sought the support of the minister and that he would be an advocate for them.

I am a believer in democratic principles. I do get frustrated by the decisions made via those democratic principles sometimes, but I respect the need to inform people and give them the opportunity to determine a position and then use that, as we do, to assist in their decision-making. That is why, at this early stage, I want to comment on a community meeting that was held at the Burnside Town Hall on 21 October, being last week, which the minister attended for a portion, as did the Hon. Mark Parnell from the other place and I. The minister, the Hon. Mr Mark Parnell and I were given the opportunity to speak initially at that meeting.

This meeting was advertised extensively using a variety of methods. It is my estimate that the number of attendees was in the 250 range. I commend the minister for attending, because there is no doubt that the majority of the people who attended did not necessarily support the minister's proposal.

Mr Gardner: How long did he stay?

Mr GRIFFITHS: Yes. There was a request at the very start by the person who set the scene and the moderator to ensure that respect was provided, and it was, but arising from that were some interesting points that I think the parliament needs to be aware of. There was also a panel discussion. Four people who have expertise in different areas were invited not to address the group but to respond to questions that were posed. Some of those had been submitted beforehand, it appeared; some were taken from the floor.

While there was a lot of support for what those four people said, because they raised concerns about the legislation, the eventual decision of that meeting was passed not just by a show of hands or by everyone saying yea with no negative dissenters but in the form of a communiqué which I will take the opportunity to read into the record, because I think it helps inform members about the position taken by different sectors. In this case it is Community Alliance SA Incorporated, which is an amalgam of various community groups which have also, in some cases, contacted us individually. The communiqué states:

The community forum rejects the Planning, Development and Infrastructure Bill 2015 and calls on the [South Australian] Parliament to oppose the Bill in its present form as it fails to recognise:

That Ecologically Sustainable Development must be an overarching objective of a new planning system in South Australia;

That a Community Engagement Charter supported by the State Government must be developed and mandated to enable community input into planning policy and development assessment;

That Council Development Assessment Panels must retain the involvement of elected members;

That 'Heritage must be placed on new foundations' as proposed by the Expert Panel;

That the Planning Commission must be independent and at arm's length from the Minister for Planning.

This forum empowers the Community Alliance SA to initiate actions to 'Bury the Bill' and to call on the State Government to 'Put the People Back in Planning and Development in South Australia'.

That group was most definite about what it wanted to do. From that meeting stemmed some interesting feedback that was provided to the rest of South Australia via the 'Have your say' sectionin The Advertiser last Saturday. I want to put a couple of those on the record. This one is titled 'Skewed focus':

Planning Minister John Rau has a Bill before Parliament to replace the current Development Act. The name has been changed to the Planning and Infrastructure Bill.

The Prospect Residents Association has serious concerns that the new planning and development system is overwhelmingly pro development and anti-community.

This skewed focus will result in very poor planning decisions having long-lasting negative impact on the character of our communities, which will in turn lead to increased negative impact on the social and environmental aspects of our local areas.

It will also significantly increase community conflict. Be nice to your neighbour will be a thing of the past.

It gives the Planning Minister enormous increased control over what happens, will lead to loss of heritage and character in our suburbs, and will result in rate rises as councils are required to pay for a new online planning system and the infrastructure costs of new developments.

To cap it all, developers will be able to come onto your property when building on the boundary without [your] permission. The community will have little say and should be alarmed.

That was written by the Prospect Residents Association. Another letter to the editor titled 'Adelaidistan', which is an interesting word, states:

The newly forming planning area of Adelaidistan will soon be ruled by regional chieftains subservient only to the Great God Rau, our Planning Minister.

The peasants will be locked out of being able to object when Hungry Jacks bulldozes its way to your street, or when a regional pow-wow is ticking off a five-storey block of flats over your back fence.

By shoving councils aside in rezonings and development assessment, the State Government is trashing local democracy and sowing the seeds of a peasant revolt.

There are some very extreme words there. I do not believe that is the case because if Australians can change their prime minister without going to civil war I do not think that we will do it over this matter. However, it shows some level of frustration that exists. I want to read out one final letter, and it is entitled, 'Give us a Say':

The packed Community Alliance forum on the proposed planning reforms held at the Burnside ballroom this week was a reflection of the public's response to the lack of transparency from our elected leaders.

The Minister for Planning and Development John Rau opened the evening followed by speakers from various sections of political, environmental and heritage groups. These argued that many of the projects on the drawing board are not sustainable. Urban planner Kevin O'Leary received loud applause when he questioned how heritage-listed parklands, protected under the National Trust, could be given away to a property developer. The public interest in these planning issues is now gaining momentum as was shown by the attendance from residents as far away as Mannum and Gawler who want a say in what is happening in their community.

That letter is from a lady in Woodville, and we have also spoken to her in the past. I commend the Community Alliance on creating the meeting opportunity. It was, I think it is fair to say, a little bit anxious. The minister said that he was attending within a time limit, and he put the position with respect to that. I understand it was the case that the minister had to go to other commitments, and that is what occurs. Ministers are very busy people, so I do not begrudge the fact that he was unable to stay.

From that meeting, and as part of the panel session, I took about four pages of notes on things, and there was a lot of interesting feedback on it and a very strong opinion put by those who were there. At this stage, I will also put on the record a statement made by Community Alliance in a submission it has prepared on the bill.

As part of the contribution I want to make today there are going to be a variety of positions put because, at this stage, and without going through the committee stage, it is very hard to determine, I think, where the best ground moving forward might be. So, I think that it is important to understand that my words here are reflective of those submissions that have been lodged with me. This is another direct quote from Community Alliance, and there is a bit of it:

The new draft Planning, Development and Infrastructure Bill of 2015 was introduced to the South Australia Parliament on Tuesday September 8. The proposed Bill is about 200 pages long and required a considerable amount of time and expertise to understand and in the short time available the Community Alliance SA cannot provide a detailed analysis on the provisions of the draft Bill.

It is not actually a draft bill: it is a bill. I continue:

However the Alliance has serious concerns about the following provisions in the draft bill but there may well be others that we have not as yet been able to identify:

They go on:

Too much power for the Minister—the Expert Panel recommended that the Minister be at arms length from planning decisions enabling community confidence in the…new planning system. Currently the public believe that major decisions are made behind closed doors.

I actually do not think that. I think that there is a level of maturity when that debate occurs. The letter continues:

For example—the Bill proposes that the Minister will appoint the chairperson and members of the proposed Planning Commission and also appoint the members of Regional Development Assessment Panels…

We are disappointed that the Bill does not include Heritage in the draft Bill. Heritage is a major concern for all Community Alliance members and it appears that the government is not concerned or interested in enhancing or preserving South Australia's Heritage.

The Community Alliance SA is very concerned that the Regulations are not available.

I break in here—and I will reflect upon this later—to say that there are provisions in the bill for some regulations (numbering 46) to be established, but there are no drafts of those regulations available. I go back to the Community Alliance submission:

We all know that the Regulations have the 'devil in the detail' and it is a major concern that the SA community cannot examine them in tandem with the…Bill.

The provision in the…Bill for elected members of councils to be excluded from sitting on development assessment panels is strongly contested on the grounds that local councillors provide valuable knowledge and expertise to the decision making process about development. Local decisions need to be made by local people.

The Community Alliance SA has significant concerns about the establishment of the proposed codes that include [and it uses as an example]

State Planning Code

Design Code

Assessment codes

Building Rules

Development Standard Designs. Who will write them and will there be provision for community representative/s on the panel who are charged with writing them? The Alliance has significant reservations about code assessment procedures—will assessments be made by using a 'tick and flick' methodology enabling corners to be cut and time saved for the development proponents? The Community Alliance suggests this provision warrants detailed examination of code assessment 'benefits'. We understand that this has caused significant problems in other states—

and they use Queensland as an example.

The…Bill has provisions for Environment and Food Protection areas but the area/s are not identified. The Community Alliance believes they should be.

They go on:

Objects and Planning principles (12(2)(f) includes the following:

'provide financial mechanisms, incentives and value-capture schemes that support development and that can be used to capitalise on investment opportunities;…'

We understand that clause relates to upfront development costs for the first owner of a house in a new development somehow enabling that cost to be spread over a number of years and supposedly lowering the cost of housing thereby making housing more affordable. The Community Alliance SA is unsure that this provision is sound. Where is the research and analysis of this inclusion and so far there has not been any significant community debate or consultation on this proposal.

The Community Alliance SA is appalled that local consultation/advice to residents of a nearby development has been pruned down from 60 metres to 40 metres.

I will break in here at this stage and flag the fact that, as part of amendments proposed by the government to its own legislation, that has been increased back to 60 metres, so I acknowledge that. The Community Alliance submission also states:

Access to information and consultation is totally inadequate and we deplore this provision. It brings into question whether the government is genuine and serious about providing good community consultation. This suggests otherwise. It is just not good enough.

The Community Alliance has concerns about the provisions of clause 118…This appears harsh and repressive. In an age when all organisations are asked to do significantly more with a lot less, it is quite possible that some development applications due to their complexity may run over the 'deemed time'—we suggest that planning professionals exercise care by getting the details right. Tight time lines do not always accord with quality decisions.

They go on to talk about clause 118—Time within which decision must be made, and they quote:

'A relevant authority should deal with an application as expeditiously as possible and within the time prescribed by the regulations.'

Again, we do not know what they are because there is no draft available. The submission continues:

'If a relevant authority does not decide an application within the time prescribed under subsection (1) in respect of the provision of planning consent, the applicant may, before the application is decided, give the relevant authority a notice in a prescribed manner and form (a deemed consent notice) that states that planning consent should be granted.

On the day that the relevant authority receives the deemed consent notice, the relevant authority is, subject to this section, taken to have granted the planning consent (a deemed planning consent).'

We have concerns about clause 133 [provisions for granting] access to neighbouring land. We think these provisions are quite unreasonable by permitting…building workers to access neighbouring land uninvited and unwanted. This may lead to arguments and infringe on a persons privacy. We believe good communication between the developer and his/her representative with the property owner is preferable to imposing legislation.

The Community Alliance has done a review of this bill, and held a community meeting, and they have provided feedback. Their hope is that the issues they have raised will be considered by the minister in time.

At that meeting, I also talked about a variety of things in the time that was provided for me to speak. I talked about the planning and design codes, and they are set out in the legislation as being required but there are no draft versions of it. The minister, in his comments—and I am not sure if it was at a briefing meeting I attended or where I have heard him speak—talked about the fact that those planning design codes will come from the development plans that are currently in place for a variety of areas.

That is going to be an amazingly difficult job to do, and I appreciate that, but it would have been nice to see some form of outline so that there can be some level of discussion to ensure that we, in this chamber, are debating things from an informed position; however, it is not available.

With regard to the community engagement charter, I make the point—and this has been mentioned to me by community groups—that it is a front-weighted objective. Whereas under the current legislation the opportunity exists for review and, in some cases, depending on what category of application it is, for an appeal to be lodged, in this case the community's involvement is intended to be at the front when it comes to the creation of the development vision.

I have already outlined the concerns, in a practical way and in a cost way, about how this is to be achieved and, even though it is a grand statement to make, how it is to occur. I note though, as part of my consultation and a meeting I held with the Adelaide City Council Lord Mayor and staff, that they had done some work on this. I believe the template as to what they see as a community engagement charter was drafted by a former employee of Planning SA, so it will be interesting to see what work they have done and if some level of that is taken up because that is going to be a key thing. As it stands it is a responsibility of the planning commission, once appointed, to prepare this community engagement charter.

The regulations. As I have mentioned, the bill provides for some 46 different areas, starting at schedule 5, which is on page 196 of the bill. In each of those 46 areas, where it is intended for a regulation to be drafted, in the main it only provides two or three lines. The frustration becomes that there is a bit of an outline for where a regulation is to be put in place and for what reason but, as those who listen in this place, those who operate in this place or those who are bound by the actions of this place understand, the important details are actually contained in the regulations. So, that is where I have some level of frustration.

I relate back to a concern I have when it comes to a level of review. It was some time ago when the Hon. David Ridgway was responsible for other planning changes being debated in the other place (it was about the residential code, from recollection). I am trying to think of it but I am pretty sure he told me that, as part of the debate in the other place, he was up to draft 10 of what the residential code was intended to look like. So, that is where it can move and change, but in this case we are putting in place a legislative framework to establish 46 regulation areas without any detailed knowledge about what the regulation is to be.

Another area I spoke about at the meeting was the infrastructure levy. There have been questions asked about this, as one would expect. It is a rather contentious issue in many areas, indeed the development lobby have some serious concerns about it, and I will go into that later as part of my contribution. In essence, if I can explain one simple thing, there was a question put to me: how do you ensure that an infrastructure levy only relates to an area where development is occurring? From the interpretation of the legislation that I have, it appears as though there are no definite controls in place for that and it is potentially subject to a much wider area.

By association, can I raise a point, and I am not sure if I am being silly on this, but it is a comment that I believe the Premier had attributed to him, or it might have been the Minister for Transport, when talking about the potential for tram extensions in various areas across the metropolitan area, the comment that local government may contribute towards that. Is that, by extension, an example of where an infrastructure levy could be determined by government to apply to an area in which a tram extension is proposed to occur within whatever time frame (because that is not given), therefore servicing that corridor of residents, no matter how wide that corridor is, and that those people have an infrastructure levy attached to their rates notice which local government has been told it has to collect? That is an example, I suppose, of a very large extension on what might occur. There will be lots of questions asked about that when we get to the committee stage and I will be putting some concerns that the development lobby has about that too, as part of this contribution.

The urban growth boundary, which is the name I attach to it, is referred to in the legislation as the greater Adelaide boundary, and part of that might be an environmental and food production area that is declared. The legislation talks about 'one or more', so I would see them as not being an outer boundary but an internal environment and food production area that will be established. I support the principle of that, I think it is important, but it is a very significant area where I believe it is a policy decision.

The minister, as part of the basis for his position on this infrastructure levy, refers to development that occurred at Mount Barker. Now the member for Kavel comments to me quite often about the fact that the most significant case, where the concerns have been raised, was an area of 3,000 acres that was rezoned. The minister noted, upon his appointment as the Minister for Planning, that he has issues with that, that he didn't want another Mount Barker to occur under, I believe the term was, 'his watch'. So instead of the current situation where an urban growth boundary has existed not necessarily by regulation but by a decision of the responsible minister for over 20 years, and where amendments that are made to that are made via the decision of the minister, the Minister for Planning has determined to legislate to pull this back into the parliament. So the debate will occur within this chamber and the other place if any changes are to occur.

We will be debating this during the committee stage as well, but I just make the point that this has been a very deliberate action by the minister, which areas. Community Alliance has questions on it and I know that the industry group certainly has questions on it, and that will come out later as part of this contribution. However, it has been a deliberate action to pull in a responsibility that currently rests with the minister, bring it into the parliament, and use it as the basis for legislative change but then to pull significant other areas into direct ministerial responsibility. I just cannot see the consistency occurring there.

It is not just the action of doing that. In a briefing that the deputy leader, the leader and myself held with the Minister for Planning and his staff—who I do acknowledge; indeed, his staff have been very helpful, if I have put any request in for information they have done that, so I put my appreciation of that on the record—we asked about reviewing a copy of the, and I use the term urban growth boundary that would actually be put in place. There was a map for a different purpose provided to us, which I have here: an Environmental and Food Production Areas 2015 Draft. The minister was able to confirm where the McLaren Vale and Barossa Heritage Protection Areas would be included in it and the Fleurieu Peninsula area has been extended, but it has somewhat of a boundary in place on that. The Hills Face Zone becomes the eastern boundary and the western zone is the coastline, but with this northern boundary we just do not know.

I have been told by others that they have seen drafts of it, but a copy has not been provided to the opposition. It is that area that we have real concerns about, where there is a significant intention to ensure that what I believe is a policy determination is provided as part of the legislation, but the parliament, in being requested to support this, is not being provided with a copy of where the vision is for it to occur. Even using what the current area is as a starting point was not provided to us. We find that bizarre, and I do not use that word all that often. I also find it rather disappointing that when a particular request is given for a copy of where an intention is for legislation to put in place controls, there is no copy of that map available to be reviewed. That is a level of debate that needs to occur, so it is frustrating.

I would like to add a few things. There were amendments provided to the opposition Friday afternoon last week, I believe, about four o'clock-ish. These were the second draft of amendments I have seen, as there was an example given to me some two weeks before that as well. I am not aware whether these amendments have been tabled; perhaps the adviser could indicate? Okay, the minister's adviser confirms that the amendments have been tabled. However, there are 74 of them, some of which have had some changes from the original version given two weeks before and some of which are new ones. Some from the original version given have also been removed and, as I understand it, from words from the minister, they relate to the infrastructure levy on the basis that there will be subsequent amendments that will come in at a later date about that.

The question I posed at the Community Alliance meeting and the comment that I put to the chamber today—and I am amazed at this also—is that, for a significant piece of legislation, one would expect some level of change to occur. There is no doubt about that. I understand that, as part of the drafting instructions, there are issues that are identified afterwards and there are things that have to be taken up. I also respect that, as part of an ongoing consultation that has been undertaken, I put on the record that it is my understanding that the minister has continued to meet with a wide variety of groups in the period since tabling the legislation on 8 September.

A total of 74 amendments have come through. For such a significant number of amendments—some which are replicas of others, and it just depends on where particular words are mentioned; so, you could argue that a lesser number of key changes have been made—does not that demonstrate, as much as anything, that there has been a level of haste attached to the creation to the bill, and the presentation before the parliament and the subsequent debate? The potential exists, if the minister can get it through both houses, for it to be passed before Christmas.

I would have hoped, because of the significance of this legislation, which will impact across all areas of our society, that there would be an opportunity for greater discussion to occur in some form of draft bill, and for the tabling of legislation to have been much more of an accepted position on things. I made the comment very early in this contribution that life revolves around compromise, so I understand that.

But, for 74 amendments to come through on the basis that even more are to be tabled probably between the houses, and for discussion to occur—no doubt from both sides, because from what we do today there will probably be amendments from the opposition before it is considered in the other place—it highlights to me that there has been a level of haste attached to this. My concern is that haste will create problems which might be unknown, unintended and were never expected to occur until the practical implications of legislation.

I put on the record that after the tabling of the legislation on 8 September, the minister and his staff made available a briefing opportunity to all members of the House of Assembly and the Legislative Council which was on 23 September. This is interesting to me, because in the schedule for that sitting week, the bill was listed. So, it was rather frustrating that at that stage it was intended for all members to be provided with a briefing on a bill that was actually going to be debated on the same week.

I just want to confirm that my intention is to give all areas that have provided feedback an opportunity to be recognised in the second reading, so that is why we will be here for a while. I hope members are prepared to sit this evening, because there will be some things that—

The Hon. L.W.K. Bignell: We'll be here.

Mr GRIFFITHS: Good man. The next one—there are some comments that I want to put on here too, because it is reflective of the wide range of consultation that I undertook—is from the Environmental Defenders Office, which is a group, as I understand it, the Hon. Mark Parnell worked for before he came into parliament in 2006. In their submission dated 6 October, which is a copy of a letter that went to the Minister for Planning, they say:

The Environmental Defenders Office…is an independent community legal centre with over twenty years of experience specialising in environmental and planning law. The [Environmental Defenders Office] functions include legal advice and representation, law reform and policy work and community legal education.

So, it is on that basis that they make the submission:

We appreciate the opportunity to provide a submission on this Bill.

The EDO is of the view that the Bill is being unduly rushed through Parliament without proper public consultation. Queensland is going through a similar process which includes a 6 week public consultation phase. It is our submission that in general the Queensland Bill takes a more balanced approach to planning decisions than what is provided for in the [South Australian bill]…

They then provide a link to that Queensland legislation. As part of their executive summary, the Environmental Defenders Office states—and there are some positives here:

We welcome the following initiatives;

1. [State Planning Commission] can require councils to inspect development undertaken in their area

2. Minister can order testing and monitoring of impact assessed development

3. Introduction of a Planning Portal to provide access to information

4. Introduction of orders for adverse publicity and recovery of economic benefit gained by contravention of the Act together with enforceable voluntary undertakings

5. Increase in penalties for breaches of the Act

6. Introduction of a two tier review system

They go on to say, though, that they had concerns with the bill in the following areas:

1. Reduces community participation and fast tracks decisions in the planning system significantly;

2. Sets up a State Planning Commission which lacks independence;

3. Gives wide discretionary powers and control to the Planning Minister and proposed State Planning Commission without appropriate checks and balances; and

4. Establishes a framework that contains none of the detail on how the system will work and how it will be implemented. This is left to a second (unseen) Bill to be produced in 2016 along with multiple regulations and practice directions and guidelines.

The EDO's key concerns are set out below.

A. Objects and Principles.

Concerns;

Bill's primary objective is to 'support and enhance State's prosperity' and to promote and facilitate development. There is no recognition of community 'ownership' of the planning system, sustainability or of intergenerational equity (these are regulated to 'Good Planning Principles'). The Courts look to the objects of an Act when interpreting its provisions. The emphasis on economics and prosperity in the objects will have significant impacts on the way the provisions are interpreted. Environmental and social impacts will be rendered secondary considerations. These provisions can be contrasted with the content of the objects in the current Act and those in the Queensland Bill.

They go on to say:

General duties of participants in the system include that they are 'expected' to cooperate, be honest and be reasonable, however expectations are not enforceable

Their second area is the State Planning Commission:

[State Planning Commission] will not be independent as it will be 'subject to the general control and direction of the Minister' except when undertaking specified duties such as assessing development.

Appointment of members is at the Minister's discretion.

No transparent process for making appointments

No requirement for at least one member with social/environmental/science expertise.

The legislation, though, does talk about the key skill areas, professional background and knowledge requirements in determining the Planning Commission membership. They go on to say:

C. Assessment Panels

Concerns;

No requirement to appoint members with social/environmental/science expertise

Exclusion of Local Government Councillors who can bring a community perspective to decision making.

The next area is:

D. Community Engagement Charter…and Planning Portal.

Concerns;

Minister controls the establishment and maintenance of the Community Engagement Charter and its contents—

done by the Planning Commission but still the responsibility of the minister. They go on to raise the point:

…can reject what is proposed by the Commission and has a discretion to unilaterally change it.

The second dot point states:

No time frame for Community Engagement Charter development.

Does not require community participation in the development assessment process

No requirement as to what the Community Engagement Charter has to address—the (unseen) regulations will establish requirements for the [Charter]—any 'mandatory requirements' for the [Charter] can be overridden by the Commission

[Charter] is not enforceable by the public.

[Planning Commission] can direct compliance and seek costs but is not required to.

The questions they pose are as follows:

Will public participation under the Charter be properly funded given the stated desire of the new system is to focus on community engagement at a policy development stage rather than the planning assessment stage?

Will the Planning Portal be properly funded to give wide and comprehensive accessibility to all types of planning information?

Lack of detail as to what restrictions there will be on access to information ie provisions refer to confidentiality/privacy, security or for any other reason specified in the Regulations.

Exclusion of the operation of the Freedom of Information Act

I interject here to say that I have noted that too, and I will have some questions about that during the committee stage. The next point is Assessment Pathways, and they go on to say:

a. Performance Assessed Development.

Concerns;

Public (other than neighbours) only notified of a development via a notice on the subject property.

Definition of 'adjacent' reduced from 60m to 'land no more than 40 metres…

We have already clarified the government's amendments in relation to that. The third dot point is:

Planning and Design Code can exclude public notification

A very interesting point. It continues:

Time frame for public consultation in unseen regulations and might be set out in an unenforceable Practice Direction

Their concerns about restricted development are:

Discretion on the part of the [planning commission] as to whether it allows assessment—criteria for making decisions to be in an unenforceable Practice Direction—certain proposals may be assessed when they shouldn't be

[The planning commission] to determine how public is to be notified—again detail to be in an unenforceable Practice Direction

[The planning commission] can dispense with public notification if it considers it necessary in the circumstances of the particular case—may be a loss of public consultation when it is important that there should be—again detail looks likely to be in an unenforceable Practice Direction

c. Impact assessed projects (specified in Regulations or declared by Minister)

The concerns they have there are:

Where a proposal must undergo impact assessment by way of an environmental impact statement (EIS) a Practice Direction will set out how the public is to be notified, time frame for consultation, criteria etc. The contents of the Practice Direction are unknown at this point in time, can be changed at any time by the [planning commission] and are unenforceable.

They raise the point here that there are no third party appeal rights. Another area for them is:

F. Amendments to designated instruments and the role of the Environment, Resources and Development Committee [of the parliament]

Their concerns are:

Whilst the Environment, Resources and Development Committee…can be consulted early this then bars further scrutiny.

'Complying changes' to the Planning and Design Code do not need to be referred to the ERD Committee. 'Complying changes' include changes to the boundary of a zone or subzone or the application of an overlay

State planning policies with respect to each special legislative scheme (such as a character preservation law or the River Murray Act 2003) established by the Minister do not have to be referred to the ERD Committee (and so are not subject to disallowance).

Interim operation can commence at the same time as the public is consulted on the amendment and before review by the Environment, Resources and Development Committee.

They then go on to 'Referrals' and the concerns they have there are:

Designation of prescribed bodies etc. by unseen regulations

Unclear whether Environment Minister will have the power to veto or place conditions on projects where environmental matters are likely to be significantly impacted

An applicant can defer the referral to a later stage in the assessment process. The relevant authority must comply with such a request. This could put the authority under undue pressure if planning consent has already been given.

The last point that they raise is in relation to enforcement and the concern they have is:

If a third party seeks to bring enforcement action there are significant barriers which include the court's discretionary powers to require security for costs, undertakings as to damages and to make orders for compensation for loss or damage and costs if the third party is unsuccessful

The Environmental Defenders Office has a focus on a particular area; there is no doubt about that, but that is a very substantial review and I do commend them on that. The next one I want to go to is the Local Government Association. They have been very diligent in their work on this. They undertook to commence consultation sessions across regional and metropolitan South Australia with their councils to ensure that the position taken by the state executive of the Local Government Association was fulsome in its consideration of what councils and local government thought about it.

They have been very helpful when it comes to meeting with other members of the opposition and me about areas they have issues with, and the fact that from an overarching point of view they understand that improvement and opportunities need to be pursued, but they are concerned about areas that are in the legislation which they think should be debated within this chamber, and where they will be seeking some level of change to occur.

Before I read that out, though, it is interesting that the minister has made particular comments about local government, and there was one session that I am aware of when the minister and the CEO of the Local Government Association were both on the same radio station at the same time. There were concerns put by local government, which they have responded to, and which I might read out a bit later, but the tensions that have arisen are interesting.

The minister might want to correct my understanding on this, but comments put to me are that, upon the Local Government Association undertaking a media campaign about ensuring that the local option stays in planning consideration, the minister was rather upset and questioned why a body had decided, before the debate had occurred in parliament, to go out and run a media campaign on that; and he has not been as open to discussion opportunities. I think officers of the minister's staff have certainly still done that but I am not sure if the minister himself has been available to the Local Government Association. If I am wrong on that, no doubt the minister will correct me.

The LGA has done good work in a relatively short time and I commend them for it. They have had quite a significant review. There will be some things that I need to put on the record about this and I think it is important that I do, because they are significant players. The planning department (if I can use that term) within the state government has a significant role to play in the practical appreciation of everybody in South Australia that, if they want to get something built, it has been the Local Government Association they have gone to in order to undertake that, other than the really significant ones where there have been major projects and the Coordinator-General has got involved in the issues that have gone to the Development Assessment Commission.

The absolute majority by number, that is, percentage—probably not the dollar value, as much as it is, because the higher valued stuff might go to a different area—of influences upon a community revolve around local government when it comes to planning and development control, so I think it is important that the issues that they have are actually presented to this chamber. I will start on their submission. It states:

The Local Government Association has been a strong supporter of the planning reform debate for many years and was an active contributor to the work of the Expert Panel on Planning Reform. The Association has worked with its members over the past two years through several series of workshops, discussion papers, research projects, working groups and surveys. The overarching clear conclusion was that councils want a better planning system for their communities and South Australia.

Many local communities are concerned about high unemployment, declining or stagnant population and falling investment. Local Government is a natural leader in local economic development because councils know their local business communities; workforce and comparative advantages better than anyone else. Councils are well positioned to work with local stakeholders to achieve better outcomes for their respective communities and achieve greater economic prosperity.

The Local Government Association acknowledges the important role that the planning system plays in stimulating the construction sector and facilitating a strong supportive business environment. While Local Government is contributing to a stronger South Australian economy, we don't want our prosperity to be achieved at the expense of other community values that make our State great. We need a planning system that balances our economic goals with the protection and enhancement of our attractive, resilient and sustainable communities.

The Planning, Development and Infrastructure Bill introduced in the HA on 8 September outlines the framework for a new planning system in South Australia. The [Local Government Association] had an expectation that it would have a four week period to comment on the details provided within this bill. Subsequently, and unfortunately it has been introduced and may be debated before the conclusion of our consultation.

I note that their consultation has been completed. The submission continues:

This submission reflects the views that have been expressed by LGA members and independent advice received on this important and complex reform.

Their executive summary says:

As drafted, the Bill significantly curtails the role of communities in the planning system and—

this is important to note—

will not be supported by the [Local Government Association].

In formulating a response on the Planning, Development and Infrastructure Bill, the LGA has held ten consultation sessions across the State, which have been attended by approximately two hundred and twenty council members and employees. The sessions were delivered in partnership with [a legal firm], who also prepared a consultation paper to articulate the Bill and the key considerations for Local Government. This paper is available at [the LGA website].

This submission outlines the key issues that have been expressed by LGA members at the consultation sessions and through previous and current submissions provided to Councils. There are four parts to the submission:

1. a detailed summary of the LGA's position on key issues;

2. an assessment of the Planning, Development and Infrastructure Bill against the LGA's 13 Planning Reform objectives;

3. a 'clause by clause' analysis of the Bill, including specific amendments that are being sought; and

4. a briefing paper commissioned from Wallmans Lawyers on the proposed Infrastructure Scheme and its implications for Local Government.

They continue:

The consultation undertaken on the Bill reinforces a key message that the LGA has been expressing for many years; that is, the current system is complex and inefficient and is not meeting both the expectations of South Australia and its communities.

If I can interject, it is obvious to me that local government recognises the need for changes to occur too.

The Planning, Development and Infrastructure Bill 2015 outlines the framework for a new planning system. The detail about how this system will operate will be prescribed in Regulations, statutory instruments and the Community Engagement Charter, which are yet to be drafted. Therefore, the LGA and other interested parties are faced with the difficult challenge of forming a view on this Bill in the absence of a complete model. The key issues that are currently of concern to the LGA are summarised below:

the role and influence of local communities to shape the future of their community will be significantly reduced, but the expectation for Councils and rate payers to fund the planning system remains;

there are many instances where the Bill does not require consultation with the LGA or Councils; specifically, the appointment of members to the Commission, the establishment of sub-regions, the establishment of an environment and food protection area, the development of the Community Engagement Charter, and the detailed scoping and funding arrangements for an infrastructure scheme;

They are significant areas. They continue:

there is also no prescribed role for individual Councils or communities in the preparation of important strategic and policy documents, such as State Policies, Regional Plans and the Planning and Design Code;

it is not clear from the Bill whether the Minister can enter into a planning agreement and initiate a joint planning board that does not involve a Council. There is concern about local communities being locked out through agreements between the Minister and the private sector;

a state-wide Planning and Design Code is likely to result in the loss of local policy that has been developed with communities over many years. There will be less local content on the policies that shape communities;

a substantial amount of work needs to be done to work through the detail of the proposed infrastructure scheme. As drafted, Councils and ratepayers could end up paying far more than their fair share;

Council members will be ineligible for assessment panel membership. These panels will consequently have no democratic connection to the local community;

community members will be distanced from decision makers by more centralised assessment of contentious developments by the Commission;

there is less chance for community to have a say in developments that impact them and it is not clear how greater engagement and policy will be achieved to justify the scaling back of public notification at the assessment stage; and

Councils should not have a role in determining whether a person can access private property. This should remain as a civil matter.

They continue:

A range of other 'mechanical' issues that impact on Local Government have been highlighted such as—deemed consents, limitations on conditions, checks and balances for private certifiers, change in land use exemptions, and accreditation of professionals.

There is potential for the views expressed in this submission to change, subject to the provision of more detail and any amendments that may arise as a result of the parliamentary process.

Under the heading 'LGA Position on Key Issues':

Objects of the Act—A primary object of the Planning, Development and Infrastructure Act would be to support and enhance prosperity by promoting and facilitating development. The state's environmental and social aspirations do not feature in the objects of the Act, creating the impression that they are not important considerations in the planning processes. The LGA believes that South Australian communities want a system that strikes a balance between competing demands for the use of land and this should be reflected in the objects of the Act.

State Planning Commission—The LGA has historically provided qualified support for the concept of a State Planning Commission. A key role of the Commission will be to achieve better integration of plans and processes across the State Government, which is currently a barrier for many administrators and users of the system, including Councils.

However the LGA cannot provide its full support to the Commission proposal in its current form given the outstanding concerns about removing the role for the LGA in the appointment of a member, the 'advisory' rather than a decision making role of the Commission and the lack of oversight in the relationship between the Minister and the Commission, which could be argued is not truly independent.

If a Commission was to be established, a contemporary understanding of the role, functions and operation that Local Government would have is a pertinent skill set that must be reflected in the Commission's membership. Local government rejects the removal of the role of the LGA in the appointment of members to the Commission.

The Expert Panel conveyed the view that the introduction of the Commission could refocus the role of the Minister towards state level strategy and policy and away from the administration of the system. While it is acknowledged that further roles could be delegated to the Commission, the LGA considers that its functions should be conferred by statute to provide long-term certainty about what the Commission will do and avoid creating another 'layer' in the decision making chain.

They go on about Joint Planning Arrangements:

The flexible arrangements for collaboration between state and local government at a regional level are a welcome inclusion in the Bill. Many Councils have already expressed an interest in pursuing the regional planning agreements that are envisaged by the Bill.

One area of particular concern to Councils is that the Bill is unclear as to whether the minister may enter into a planning agreement with any entity (whether or not an agency or instrumentality of the Crown) that does not include a Council. The most concerning scenario is that a minister could enter into a planning agreement with a private sector body and establish a regional authority that freezes out the Council and the local community.

The next area is Community Engagement:

The Government has expressed that engagement with communities will be a central feature of the new planning system. The minister's second reading noted:

'a new engagement charter will set benchmarks for meaningfully and genuinely engaging communities as ideas are being formed and tested, giving people genuine influence in the process of developing the plans and policies that will shape their communities.'

There is little argument that bringing people into the planning debate at the earliest stages of the process will provide them with the greatest opportunity to achieve influence. However, Councils have invested significant resources in innovation and contemporary-based engagement strategies to draw communities into discussion about planning policy. These strategies go well above and beyond the statutory requirements and in the majority of circumstances, the return is not commensurate with the effort because the broader community does not interact with the planning system until it directly affects them as either an applicant or a representor. It is not clear to the LGA how a Charter will resolve this fundamental issue and justify the scaling back of notification at the assessment stage.

The LGA is concerned that it may take many years to focus the attention of the broader community towards strategy and policy, and in the meantime there will be a spike in the number of complaints received by Councils about un-notified developments.

It is noted that the Bill makes no provision for community consultation in the preparation of a statutory instrument. In the absence of the actual Charter, it would provide a greater level of comfort if a requirement for consultation was incorporated within the Bill.

It is also noted that the Bill does not provide for consultation with Local Government in the development, review or amendment of the Charter. While this may be intended, the role of local government must be reflected in the Bill, given the sector's expertise and experience in engagement with communities on a range of matters.

They go on to online planning:

Local Government recognises the major advantages that an online planning system would bring in terms of accessibility and expediency of the system. Local Government also recognises the substantial establishment costs that will be incurred.

Certainty about the funding of the digital planning system needs to be confirmed and a costing model developed that equitably apportions funding responsibilities and cost recovery strategies over time. Without a significant state investment in an e-planning system, many of the reforms outlined in this Bill will not be achieved and the economic benefit will not be realised.

While Local Government is prepared to pay its fair share for a planning system that serves the interests of communities, the Bill creates a head power for the Chief Executive to send a bill to Councils at any time, for any amount to pay for the e-planning system. Local Government will not support any reforms that results in cost shifting and an unequitable financial burden on its members.

The LGA is seeking a commitment from the Government to work with Local Government on the costing, development and delivery of an e-planning model to ensure that the financial and practical implications for Councils are limited.

They go on to the Planning and Design Code:

The replacement of the Council Development Plans with a state-wide Planning and Design Code is a reform that has drawn much discussion amongst LGA members. This discussion has been frustrated by the fact that the form, content and process for developing the Code is unknown at this point.

The principle concern relates to how much local content will be included in a new Code. Councils have worked with communities and gained approval from the Minister over many years to shape the content of existing Development Plans and the Bill provides the potential for this local content to be unilaterally wiped out.

The Bill provides limited scope for Councils (and a raft of other bodies) to amend the Planning and Design Code to recognise 'unique character attributes'. The LGA acknowledges that there must be sensible limits applied to planning policy variations and that the current volume of policies may have tipped the scales in terms of what is navigable and manageable. However, much more needs to be understood about the Government's intention regarding planning variations, as the LGA and its members will not support reforms that remove the ability of Councils and communities to enhance what is genuinely unique or special about their area. A much greater role for Councils in the determination of local policy content is envisaged. The centralisation of planning policy also represents a resourcing challenge for the Government. As the Planning and Design Code is a keystone reform, it is critical that it be well executed. Despite the capabilities of existing staff, the LGA is extremely concerned that the existing resourcing issue currently experienced will further be exacerbated and won't be able to deliver a world class planning policy instrument as expected.

They go on to Development Assessment Panels (DAPs), as follows:

The removal of elected members from assessment panels is unnecessary, does not meet community expectations and will not achieve any actual difference in decision making. Key points about development assessment panels are summarised below:

since 2007, the majority of members of individual Council DAPs have been independent professionals, creating distance between planning decisions and the influence of local politics;

no other state in Australia excludes elected members from the assessment process entirely;

some of the State's most prominent planning and development experts currently preside over or are members of the Council Development Assessment Panels;

all DAP members, including Council Members must comply with the Minister's Code of Conduct. The LGA would support a review of this Code to ensure that a high degree of individual accountability applies to the conduct in this important role;

the Independent Commission Against Corruption has not reported any systemic issues of misconduct or corruption in the current DAP structure;

on average, approximately 90% of development applications are determined by Council staff, with no role for the Development Assessment Panel;

applications that are presented to the Panel have either drawn community objection or do not comply with the zoning rules that have been approved by the Minister;

removing local elected members would result in a local democratic deficit and elevate local planning disputes to state politics; and

fully independent assessment panels are likely to result in higher costs, which would be passed on to the sector.

The LGA has commissioned independent research and surveys that support an ongoing role for elected members on assessment panels.

They provide the website that is available. I think the contact with the community was done in January on that and there was over 60-odd per cent of people who supported it from memory. The submission continues:

The LGA seeks an amendment to provide an ongoing role for suitably trained elected members on assessment panels at local and regional level. The proposed role for the Minister to dismiss and reappoint a local assessment panel is heavy handed and unnecessary. Councils are capable of managing the assessment of the bodies they appoint and if given the necessary authority can dismiss and reappoint a panel if required.

They go on to Private Certification, as follows:

It is frustrating to the Local Government sector that an expanded private certification scheme is being contemplated despite the ongoing issues with the existing scheme. The Government committed to a review of private certification of Residential Code developments after the first 12 months of the scheme's operation. There is no evidence that this review has occurred. A survey of Councils undertaken by the LGA indicated that a number of Councils have experienced an unacceptable number of instances where Res Code developments have been certified in areas where the Code does not apply, or the development did not satisfy the Res Code criteria. Examples were also provided of private certifiers exercising considerable discretion in the judgement of a 'minor' departure from the Res Code criteria.

This is not just a matter of principle for Councils. There are serious practical consequences. Considerable amounts of time and resources are invested in rectifying the mistakes made by private certifiers on minor matters, resulting in delays for more significant development matters. Despite these obvious and predictable issues, the Government is intent on an expanded role for private certifiers.

They go on to Assessment of Planning Applications, as follows:

It is noted that the proposed categories of development are not dissimilar to the existing assessment streams.

Currently, it is category 1, 2 and 3, and new categories are proposed. The submission continues:

However, Local Government has a keen interest in the types of development that will be dealt with under each category and this level of detail has not been provided. The LGA is seeking a commitment that the State Government will work with Local Government on developing the detail of the Code and any Regulations that deal with assessment matters.

Notwithstanding that the detail of assessment categories have not been resolved, the fact sheets prepared by the Department of Planning, Transport and Infrastructure (DPTI) suggest that planning staff engaged by Councils will only deal with generally minor matters, which will also be available to private certifiers. Council planning staff are best placed to deal with planning and development applications. They understand the impacts an application may have on a community, they are acutely aware of the issues within the locality and understand the implications of the decisions they make. To render this knowledge and skillset to deal with minor applications is a significant waste of the talents and resources available within Local Government and is likely to see an increase in the proportion of applications that must be presented to an assessment panel.

It is also noted that Councils will no longer have any role in the assessment of restricted development. Again, this reform does not take into account the demonstrated capacity for Local Government to deal with complex and contentious planning matters and the expectations of the community. The LGA submits that the assessment of all applications (other than genuinely significant major projects) should, by default, be dealt with by council staff or appointed bodies and only be called in by another assessment body if there is verified evidence that the relevant Council has systemically failed to satisfy prescribed performance standards.

The concept of a deemed consent for anything other than accepted or 'deemed to satisfy' categories of development is not supported. The risk of issues arising from the practical application of this Clause exceed any potential benefits.

They go on to the matter of access to land:

The Bill provides a role for Councils in granting a permit to access adjoining land for the purposes of carrying out approved construction works. The Council may be asked to issue such permits even if the adjoining owner has objected and refused entry. This is a civil matter and Councils have objected to receiving these powers. The LGA is seeking for the related clauses to be removed.

I think there is an amendment on that. I will have to read that again. They then refer to the infrastructure funding scheme:

For a number of years, the LGA has been working with its members, the State Government and the development industry to move South Australia closer to a more sophisticated infrastructure funding model. It is encouraging that the State Government is intent on addressing this longstanding issue and has entered its own model into the policy debate.

However, the LGA is not encouraged by the limited detail provided and the absence of any consultation with Local Government on this matter prior to the introduction of the Bill. It is noted that the Regulatory Impact Statement prepared for the Bill does not consider the proposed infrastructure framework and there is little public evidence of any detailed modelling or comparison studies to demonstrate that this is the best option for South Australia.

Infrastructure funding is an important reform, and a complicated one. While the concept of a framework built upon the principles of equity, apportionment and nexus is one of support and the practical operation of the proposed infrastructure scheme is a matter of great interest to LGA members, given the limited time frame provided to form a view, the LGA engaged Wallmans Lawyers to provide detailed advice on the implications of the proposed scheme on Councils. Their review identified a number of key issues of concern to the LGA:

there are limited opportunities for councils to be involved in the development of infrastructure schemes or funding arrangements;

the funding arrangement under Part 13 of the Bill enables the imposition of liability for the cost of a broad range of infrastructure on Councils;

a Council may need to raise its contribution to infrastructure costs by entering into commercial financing arrangements—

i.e. loans—

a Council must impose a charge on rateable land with respect to the reimbursement of the Council's contribution (infrastructure charge);

despite the infrastructure charge being a charge on rateable land mandated by the state, the infrastructure charge is likely to be perceived to be a Council tax rather than a State tax;

Councils will be financially exposed to the extent that the infrastructure charge does not recover the amount of debt funding secured by the Council to pay its contribution of the infrastructure costs;

proposed consequential amendments to the Local Government Act 1999 (LG Act) will subordinate council regulation of road and activities on roads to development authorisations granted under the Bill; and

aspects of Part 13 of the Bill require amendment to correct errors, provide clarity and rationalise the regulatory framework under Part 13 with other systems of regulation relating to infrastructure.

They provided a copy of the legal advice provided by Wallmans Lawyers. It continues:

The LGA welcomes the opportunity to work with the Government in the first instance to address the issues that have been raised in the paper and by LGA members. However, given the LGA did not receive an advance copy of the Bill, it has not been possible in the time provided for the LGA to prepare a detailed list of specific amendments required to overcome our concerns.

In overarching, they go back to the role of local government:

The Planning, Development and Infrastructure Bill is a move towards a centralised planning system, with a less significant role for Local Government. An independent community survey commissioned by the LGA suggests that this is not what communities want. There is also evidence that the community wants State and Local Government to work in partnership, this is not what the Bill delivers.

This submission, including the clause by clause analysis points to those areas where Local Government has a stronger role to play.

As drafted, the Bill significantly curtails the role of communities in the planning system and will not be supported by the LGA.

So, they start with that, and they finish with the fact that the LGA is not supportive of it. They have also provided as part of their review in a slightly broader sense (using the traffic light method of the red light, amber light and green light) some amendment areas to that. I will not read those into Hansard, but it is fair to say that the concerns put by the Local Government Association will be expanded upon in the committee stage.

As part of the continued dialogue that has occurred, and I referred to a little earlier when the LGA CEO and the Minister for Planning were on radio together on 13 October, there were some statements made by the minister that the LGA has put out a response on which I think are worthy of inclusion in this debate also. The first one was:

The Minister says that local councils have got a poor track record of consistent decision making.

The fact put by the LGA is:

…the LGA is supportive of reforms that will provide greater certainty and consistency in decision making through clearer rules and a requirement to stick to the rules. However, the data supports Councils' track record in working with the current system. Only 0.05%, or 15 out of more than 28,000 development decisions in one year, being overturned by Courts.

The second comment by the minister:

The Minister says that Councils are requiring people to get planning approval for cubby houses and umbrellas etc.

The response by the LGA is:

…Councils do not decide what does and does not require a planning assessment; this is determined by State legislation and regulations. The LGA has been saying for many years that the definition of development is unclear and outdated and should be reviewed. A revised definition of development has not been included in the Minister's current reform Bill.

Interesting. The third statement by the minister:

The minister says that the current development assessment panel process is not working and is influenced by local politics by including elected person.

The response by the LGA is:

…Current law requires Council Development Assessment Panels (DAP) to include a majority of independent members, including the Presiding Members. All DAP members are bound by a Code of Conduct to make all decisions impartially and in accordance with the requirements of the Act.

Another fact the LGA states is:

…Interestingly, the Bill provides a role for the Minister (an elected person) as the sole decision maker in the assessment of Crown development and significant 'impact assessed' developments.

Another statement by the minister:

The Minister says the LGA spreading false information about the role of local government being removed altogether.

The response by the LGA is:

…The LGA has not made this claim in any of its responses to the Bill.

Another statement by the minister:

The Minister says the LGA is claiming that the Government is forcing Councils to have regional development assessment panels.

The response by the LGA is:

…The LGA has not made this claim in any of its responses to the Bill.

There are some more. Another statement by the minister:

The Minister says that the LGA stated that 66% of people wanted local council elected members on development assessment panels, and that this is not true.

The fact put by the LGA is:

…The LGA CEO stated on a 5AA radio that 60% of South Australians think that their councils are best placed to be involved in planning assessment. A public survey of 500 people commissioned by the LGA from McGregor Tan research found the 59% of respondents believe that the Local Council is best placed to manage the assessment of development applications in their local area.

Another fact put by the LGA is:

…The McGregor Tan survey found that 54% of people thought that the best described role for elected members should be the decision maker on both zoning rules and development applications. A further 12% thought that the best described role for elected members should be decision maker on development applications.

A statement by the minister:

The Minister says that survey results actually show that 66% of people said that Councils should be informed by a panel of independent experts.

The statement put by the LGA is:

…When asked to best describe the role that independent expert should have in the planning and development system, 66% said they should provide advice to council members. Only 19% should they should be the decision maker on both zoning rules and development applications and only 4% said their role should be decision maker on development applications. The Government is proposing that independent experts should be decision makers, not advisors.

It is not just the LGA that has put issues to me; I have here in my trusty bag a variety of other submissions, and I might just put on the record where they have come from.

I have one from the Mount Barker council, and I gather from discussions with the member for Kavel that he intends to put on the record the specific words used by that council—as will others, no doubt. There are submissions from the City of Burnside, the City of Mitcham, the City of Norwood Payneham and St Peters, the Adelaide Hills Council, the Adelaide City Council, and the City of Onkaparinga, which is a 25-page submission; they have gone to a lot of effort.

I also have submissions from Yorke Peninsula Council, the District Council of the Copper Coast, the Wattle Range Council, and the Limestone Coast Local Government Association. The Local Government Association itself has done a clause by clause review, which will be part of the discussion that we hold in the committee stage, but it is fair to say, and in a polite way, that local government is not happy with what is proposed.

I undertook a wide variety of consultation, and the next response I refer to is from the Conservation Council, which has put issues to me. This is not normally a group I talk to that often, not because of a deliberate action by me but because I do not necessarily deal with areas where I have contact with them; that is all. I thank Mr Craig Wilkins, who I met and spoke with at the Community Alliance meeting at Burnside last week. In a submission, dated 2 October 2015, as part of their thoughts the Conservation Council states:

Initial Analysis of the Planning, Development and Infrastructure Bill

…This response is based on an initial analysis only. We will be undertaking further work over the coming weeks.

So far, we have identified a large number of concerns. We believe the Bill will:

Reduce community participation in the planning system significantly;

Severely limit the ability of the community to know, or comment, on development;

Increase the discretionary powers of the Planning Minister;

Establish a Planning Commission that will not be independent and will not be able to acquire a sufficient level of expertise;

Establish a framework that contains none of the detail on how the system will work and how it will be implemented.

The overall effect of the Bill is to shift control and ownership from community and local government towards the Planning Minister. If passed without amendment, there will be a significant exclusion of democratic involvement and transparency in the planning system.

A significant number of changes proposed are inconsistent with the recommendations of the Expert Panel on Planning Reform.

We are deeply concerned that such a fundamental change to our planning system has not been widely explained or debated, and urge the Parliament to amend the Bill to restore balance.

Key concerns include:

A. Objects and Principles

The Bill's Objects do not recognise the community 'ownership' of the planning system, environmental sustainability, local heritage and integrational equality. Although these aspects are relegated to the 'Good Planning Principles', it is not enough to secure their proper implementation as the Courts tend to interpret an Act's provisions based on its Objects.

Although the Principles of the Bill cover matters of environmental and social importance, they are likely to be neglected due to the reduction of the Objects to a narrow focus on economics and prosperity only.

This remarkably narrow focus repudiates the universally recognised multi-objective, balanced, holistic approach to planning.

B. Distribution of Power

As the Minister is solely responsible for preparing and maintaining the Planning and Design Code, the Bill establishes a top-down centralised policy regime that may not be context sensitive.

The level of power consolidation in the Minister and Department suggested by the Bill contradicts the Expert Panel on Planning Reform recommendation.

The Bill suggests considerable scope for skewing the composition of various decision-making bodies whether by the Minister or under the delegation by appointed officials or bodies as opposed to elected representatives. Local government is eliminated from the development assessment bodies, yet is responsible for much of the cost of establishing and running the proposed planning reforms in the Bill.

The Bill compromises the State Planning Commission's independence by making it the subject of general control and direction of the Minister. As a result:

the Minister possesses a power to decide on the type of enquiries the Commission can undertake in view of the absence of the requirement to publicly release the inquiry report.

the Minister can obtain any information from the Commission and its staff and therefore can influence the flow of information.

there is an absence of clear appointment procedures.

there is no requirement in the Bill about the experience and qualification of the appointed Commission Members with regard to social, environmental and science expertise.

We have some changes on that—

This might notably diminish the commission's level and range of expertise.

The absence of local heritage designation in combination with the narrow Object is likely to result in ad-hoc and anti-heritage decisions by the Minister, who is not confined by the rigors of the Bill.

C. Community Engagement Charter

The [Charter] is under the Minister's control in terms of its establishment, maintenance and content, but with no time frame for its development. At the moment, there is no regulation establishing the requirements for the [Community Engagement Charter].

The [Charter] participation in the preparation and amendment of the statutory instruments is vague and not enforceable, and does not address community participation in the development assessment process.

On the one hand, any mandatory requirements in the [Charter] can be overridden by the Commission. On the other hand, the Minister can reject the [Charter] proposed by the Commission and unilaterally change the [Charter].

D. Information access

There is no clear understanding of the Planning Portal functioning provisions, namely funding availability, the type of planning information required to be placed on the Portal, and information accessibility. It is unclear, for example, how the confidentiality, privacy and security restrictions might influence the information placement and access on the Planning Portal. It appears that local government will bear the financial burden of establishing the system, yet there is no clear rule of local government participation in the content. This system appears to disadvantage members of the public who are not computer literate and put further pressure upon local government to provide training sessions.

E. Public participation

The state Planning Policies and Planning and Design Code are at risk of becoming top-down policy processes due to the shift in power away from the community and towards the Minister.

The alteration of the definition of 'adjacent' (down from 60m to 40m—

we have already explained this is actually in an amendment to take it back to the 60—

...will diminish participation options for residents and landlords.

The Bill promotes a substantial contraction in public notification options due to Commission's right to dispense public notification, no requirements for public notification details and removal of the requirement for newspaper advertising. While on-site notices of development proposals have been included, the process and responsibility of on-site notice display is crude and should be considered in the context of urban environments. A different notification system for isolated sites in rural environments where on-site notices alone will achieve very little scrutiny should be considered.

The bill relegates the environmental impact assessment option with respect to public participation to an unenforceable Practice Direction, which in turn can be changed at the discretion of the Commission.

Third parties do not have appeal rights to the impact assessment projects specified in the Regulations or declared by the Minister. Furthermore, if a third party seeks to bring enforcement action with regard to the Bill, they will meet significant barriers, including the requirement to provide security for costs, undertakings as to damages and risk paying significant compensation for loss or damage and costs if the third party is unsuccessful.

The Bill provides the Minister with the power to use interim control to facilitate development projects, which limits community participation and control and promotes non-transparent and potentially corrupt behaviour within the planning system.

We are deeply concerned that there has been inadequate community consultation about the impacts of this Bill. Furthermore, the process of change proposed by future Ministerial regulation reduces thorough scrutiny by Parliament prior to the changes being introduced.

At the beginning of the Expert Panel on Planning Reform process, the community was promised there would be no surprises. Yet this Bill contains a number of important elements that were not discussed during the Expert Panel process, and/or is at odds with the Expert Panel's recommendations.

Interstate, when similar wide-reaching planning law change have been proposed, there has been consultation at the White Paper stage. As this process step has been skipped, we would recommend a Parliamentary Committee review of the Bill before debate take place.

Another very detailed review indeed, focusing in particular areas that the Conservation Council has, no doubt about that, but I appreciate the effort made to provide it to me, and it raises some points that others have not picked up.

In continuing, I received an email, which I appreciated, from the National Trust of South Australia, provided by Mr Darren Peacock and that also contains some points that I think it is important for the chamber to hear:

Overall we are concerned about many aspects of the proposed legislation, in particular:

The centralisation and concentration of all planning decision making and the operation of all aspects of the planning system under a single Minister, with very little Parliamentary scrutiny or review.

Ministerial powers over the proposed State Planning Commission, Development Assessment Panels, the accreditation of planning scheme professionals and the creation and amendment of all planning instruments put the system at great risk of over centralisation. With few independent checks and balances, such a system runs an enormous risk of bias, undue influence and favouritism jeopardising the public interest.

The creation of a new State planning bureaucracy to administer the Act, including the establishment of regional assessment panels, seemingly over the top of local [government] decision making. This seems to us a hugely expensive and inefficient addition of another tier of planning administration. It seems impossible for this additional layer of administration not to involve significant additional costs, which the legislation seems to wish to transfer at least in part on to local councils.

A great diminution in the role of local assessment processes accountable to local communities through elected local councils (not a state government bureaucracy).

Marginalisation of local councils in all aspects of decision making leading to less responsive and accountable decisions made remotely from the individuals and communities most affected.

The proposed 'Community Engagement Charter' (S 12) is inadequate to ensure effective participation of the public in planning decisions. The Charter as proposed is established and maintained by the Minister, there are no defined rights or any mechanisms for independent review. Moreover, FOI and State Records provisions are explicitly excluded from the proposed Charter.

That is most interesting. The email continues:

Parliament has very limited opportunity for oversight and review of the planning instruments and decisions made in their application. There is a great need for more independent scrutiny of both if the system is to be transparent, trusted and not prone to abuse.

We believe that the principles for the act (S 14) also need to give recognition to the need to conserve significant places and to balance development with conservation of places that are significant to and valued by communities and which make their own contribution to community prosperity and wellbeing.

Sections 62/63 [and] 72(3) give the minister the power to designate and to remove local heritage places under the yet unseen Planning and Development Code. It is not clear that already designated local heritage places and significant trees will retain their existing designations. One of our principal concerns is that this legislation will in effect remove all existing designated local heritage places and significant trees and associated protections. This would put at risk from inappropriate development and potential destruction many of the most important heritage places in the state and, at the least, necessitate a huge amount of unnecessary work to reinstate these places and trees under the new Planning and Development Code. Further clarification and guaranteed protection for existing designated places and trees are required.

Similarly, S 189 1(a) suggests that owners of local heritage places will be able to appeal against the local heritage designation, suggesting another attempt to 'cull' existing local listings and to make it difficult to secure heritage protection for currently unprotected places and trees of local significance.

The National Trust encourages us to give consideration to these matters of concern. Again, it is another example of a community group with a particular focus area putting forward concerns. The challenge is whether, with so many as yet unseen portions of the bill in design codes and regulations, that security is provided, so I believe it is appropriate that they be put before the house. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.

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