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

Planning, Development and Infrastructure Bill

Committee Stage

In committee (resumed on motion).

Clause 64.

Mr DULUK: The question concerns significant trees, which clause 64 deals with. Attorney, will the requirements of significant trees under this new design code exclude trees on land used for primary production?

The Hon. J.R. RAU: I am advised there is no change from the present arrangements with respect to significant trees, so the answer to that is whatever the answer is presently.

Mr DULUK: That is very clear. At the moment, significant trees are covered under the development regulations, and there is a whole heap of exclusions. You are saying that what is excluded at the moment will stay going forward?

The CHAIR: That is two questions.

Mr DULUK: That is one and a clarification.

The CHAIR: All right, I will think about that.

Mr DULUK: Just for the benefit of my constituent I may as well put it all on the record because, Attorney, she will not believe you. At the moment, there are trees which have been planted on land used for primary production and subsequently, for some reason, have become prescribed as significant trees—which may happen. Will farmers now require approval to remove those trees if a tree were deemed significant and, if they were, will the farmer be required to contribute to the tree fund as a condition of their removal as they are required under the current rules?

The Hon. J.R. RAU: Again, the answer is that nothing is going to change from what would happen now, so your constituent should ring her friendly solicitor and ask what the story is or speak to the council, or whatever it might be. This is not going to change that arrangement. To be more particular, it depends on the genus of the tree and a whole bunch of things—seriously, it does—the species of the tree, not just genus but species which includes genus. There are 22 species and all of them have a genus as well.

The CHAIR: I think the answer to the question is that nothing has changed.

The Hon. J.R. RAU: The other point is—I come back to it again—nothing has changed and at the moment, as will be the case in the future, eventually trees get to a certain dimension at which point they become captured by the regulations, but when they are captured and at what size is a matter which is determined in part, at least, by the species of the tree.

Mr DULUK: Currently, there are 23 trees listed as significant species, is that correct?

The Hon. J.R. RAU: Regulated trees.

Mr DULUK: If it were to become 25 and the extra three were on a farming property and then deemed significant then yes, this act would apply to it, would it not?

The Hon. J.R. RAU: There are 22 which are deemed 'regulated trees'—that is the terminology. The intention is that that 22 would migrate across and this, by itself, will not do anything. If at some future time a future minister was brave enough to dive back into the world of significant trees and start fiddling with that, then obviously there would potentially be a change. But that is the case right now.

Mr PEDERICK: In regard to clause 64 and significant trees, you may have to remind me what can or cannot be done at the moment in regard to planning and development around significant trees. I suppose I refer to the commercial development of Burnside Village, where I think it approached the millions that were spent in containing a tree and trying to work through a plan to have the development but also have the tree, which has now left a nice building with a bit of a see-through roof at the top, a flow-through roof, and a stump.

Mr Gardner: Arboreal husbandry.

Mr PEDERICK: Arboreal husbandry, the member for Morialta says. Apart from some planning consultants and probably a heap of lawyers and a few—give me that word again.

Mr Gardner: Arboreal husbandry—arborists.

Mr PEDERICK: Arborists will do—I think a lot of people have made a lot of money out of this stump. I just wonder in what reality in the real world that will take place and what provisions there are, or will there be, under this clause, the ability for people to, if they need to, shift just one significant tree, and I use the example of Burnside?

The Hon. J.R. RAU: A couple of things about Burnside. First of all, as I understand it the people who did that, as part of their concept, wanted that thing to be there and it was part of their vision for what the place would be like. We can judge whether or not that vision was wise. I come back to the point that the rules, as they presently stand, are not being disturbed by this because, quite frankly, as the member for Hammond might recall, every time we have a conversation about significant trees it goes on for a significant period of time. So, we are not disturbing that pond, we are leaving it alone, we are just moving it from the old to the new and then in due course if we need to have a conversation about what those rules are that is a separate piece of work, but we are not re-agitating that.

Clause passed.

Clause 65.

Mr GRIFFITHS: I am fully in agreement with design standards being created but I suppose I am asking: is there going to be the opportunity for flexibility? Two examples were given to me, one by the URA and the Property Council about where an alternative solution might be created and if that is able to be used and, from the local government perspective, where some of the development plans have design codes within them, design standards, will they be removed completely or will they hold precedence over what could be created here?

The Hon. J.R. RAU: As to the alternative solution question, the answer is that it is performance based, so yes, that is the whole idea of having performance based stuff. The second thing is, these are pretty high level propositions. As I said before, an example might be that a development must relate in a sympathetic way with the environment in which the development is occurring. So, they are not intended to be prescriptive and you may well find additional design requirements in the zone or the code (I call it a zone because that is what we use now). These are very high level principles.

Clause passed.

Clause 66 passed.

Clause 67.

Mr GRIFFITHS: I am seeking clarification on behalf of the Local Government Association about paragraph (e) and I pose the question: does that clause mean that the minister, the commissioner, chief executive or another specified body could unilaterally decide that the planning design code will not be applied to a particular development, because it talks about being dispensed with?

The Hon. J.R. RAU: I am advised that this is a straight transposition of the existing law and so it changes nothing in that respect. A number of the questions that the member for Goyder has been asked to ask on behalf of others are actually questions to which the others should know the answer because they are already in the law. That is not a criticism of the member for Goyder at all; I realise he is just doing his duty, but I am told that is nothing more or less than a transposition of the existing provision.

Clause passed.

Clause 68.

Mr GRIFFITHS: There are a few areas under clause 68—Status, where I have some questions. The first subclause refers to 'and does not affect rights and liabilities'. I presume that a state planning policy would have that impact.

The Hon. J.R. RAU: This is one of those points where we are starting to have the same conversation we had before—again, no criticism of the member for Goyder. Remember, before lunch we talked about this not including this. This is a preservation of existing rights provision; it is the same intent.

Mr GRIFFITHS: Subclause (2) starts off with 'no action' and then talks about 'that is inconsistent'—that this is identical.

The Hon. J.R. RAU: Yes.

Mr GRIFFITHS: In subclause (3) it states:

The Planning and Design Code…is a public document of which a court or tribunal will take judicial notice, without formal proof of its contents.

I am not sure how a court can take notice of a document without knowing the formal proof of its contents.

The Hon. J.R. RAU: Subclause (3) deals with the situation that is presently called development plans and subclauses (1) and (2) deal with planning policy which is the higher level. In effect, it is replicating the existing thing but changing the names to take into account the new names in the new act.

The CHAIR: But your question is: how can a court take notice without formal proof and if it is the same as it always was, what is the—

Mr GRIFFITHS: I will have to accept the answer then.

Mr PEDERICK: I refer to clause 68—Status, and subclause (1) which states:

A state planning policy or regional plan is an expression of policy formed after consultation within government and within the community and does not affect rights and liabilities (whether of a substantive, procedural or other nature).

Is the proposed environment and food production area, as part of a regional plan, part of that subclause?

The Hon. J.R. RAU: No; these are regional plans. The food production zone is a completely separate piece of the legislation. I think we explored all of the things that that does and does not do before lunch, but this does not have any work to do in that space.

Clause passed.

Clause 69.

The Hon. J.R. RAU: I move:

Amendment No 18 [Planning–1]—

Page 56, after line 17—Insert:

(via) a scheme coordinator appointed under Part 13 Division 1; or

Mr GRIFFITHS: I have questions on a couple of different areas. In relation to subclause (7), I have been asked about whether it is possible to insert the words 'and publish that report on the planning portal'. The first line talks about preparing a report with a practice direction.

The Hon. J.R. RAU: Yes, I am happy to look at that between the houses. It does not sound to me to be a problem but we will check if there is some reason that I do not know of why we could not do that. It does sound reasonable.

Mr GRIFFITHS: The Local Government Association has asked about the involvement of the local government in the preparation of statutory instruments. Is that a possibility also, because you have been quite supportive in other areas?

The Hon. J.R. RAU: They are already included in subclause (2)(c)(v).

Mr GRIFFITHS: On (2)(c)(vii), the Master Builders seek confirmation that developers might avail themselves of that clause for large-scale developments either before or after a subdivision.

The Hon. J.R. RAU: Subclause (2)(c)(vii); is that right?

Mr GRIFFITHS: Yes.

The Hon. J.R. RAU: I am advised that from a practical point of view, because such an instrument is prospective in its operation, it would be sensible to do that before land had been subdivided. Conceivably, it might be done afterwards, but it is difficult to see how that would be of great value.

Mr GRIFFITHS: I suppose I do consider that it is possible that they might want to know about the flexibility that exists before they go ahead with the purchase of the land, and that is why before the subdivision.

The Hon. J.R. RAU: Yes, they would have that flexibility.

Amendment carried; clause as amended passed.

Clause 70.

Mr GRIFFITHS: On parliamentary scrutiny, would the minister like to put on the record just for a minute or so the differences and how this parliamentary scrutiny will change as a result of this being in place?

The Hon. J.R. RAU: First of all, the parliamentary scrutiny provision (clause 70) we will see in other places through the bill, so this is a good time to ask members to assume that in the future when the same thing pops up this is the response. The ERD Committee will have an expanded role in scrutinising planning instruments. Presently, the committee only considers DPAs, but under the new planning system it will also have a role in considering state planning policies, regional plans, the planning and design code and design standards.

Moreover, the new provisions will encourage the minister to engage with the committee before promulgating instruments on the basis that early engagement and agreement should remove the need for latest scrutiny and disallowance. This addresses the concern that the current process makes the parliamentary scrutiny process a bit of an afterthought. In addition, changes to the boundaries of an environment and food production area in Greater Adelaide will require parliamentary consent.

Over the time I have been here, I have spoken to many members on both sides who have been members of the ERD Committee. They have indicated to me that their role to some extent is perceived to be a bit perfunctory and superficial. What we are trying to do here is actually increase the role of the parliament as a scrutiniser of the actions of the executive government. That increased scrutiny occurs in respect of the food production area.

Preparatory to that occurring, rather than the parliament have a minister of the day bring stuff in here cold, so to speak, it is envisaged that there would be early engagement with the ERD Committee so that any wrinkles in that could be discussed as a parliamentary standing committee, and then the information that needed to be shared with the committee could be shared at committee level and the committee could then provide a report to the parliament which would hopefully assist members in making a decision.

Mr GRIFFITHS: I appreciate the details provided by the minister, and it is how I understood it to be. Is it still a possibility for a minority report to be prepared by several members of the committee?

The Hon. J.R. RAU: That is governed by the Parliamentary Committees Act and, as I understand it, the answer to that is yes.

Clause passed.

Sitting suspended from 18:00 to 19:30.

Clause 71.

Mr GRIFFITHS: I am just looking for confirmation about the level of consultation that will take place on complying changes to the planning and design code. I know that, when a development plan amendment occurs, consultation occurs hopefully with property owners who are aware that they are going to be impacted by that, but this does not specifically refer back to the charter of community engagement, but it does talk about the fact that the minister may initiate or agree to it. Is there also a position—I am trying to stretch it out—whereby there is engagement with the community who might be impacted by the changes takes place?

The Hon. J.R. RAU: Yes, but can I just explain how this would work. The planning code is what is sometimes referred to as a planning library. I am looking for an analogy, but it is a bit like the alphabet. You make words out of the alphabet, so the planning library is like the planning alphabet, if you like. Are you with me so far? That means that, whilst there would obviously be some consultation around the alphabet, what people are more interested in is which bits of the alphabet are going to be applied to their community. So, the charter refers in particular to which elements in the planning library (or in the planning alphabet) would go to cover what community and what subzones or other nuances would be necessary for that community.

The focus of the conversation is which one of these utility policies is best for my community, but the formulation of the policies is something we would consult on, but it is a higher level because they are intended to be of general application. For example, you might have a policy which describes 'commercial precinct'—I am just making one up. A commercial precinct should be basically the same thing whether it is in Mount Gambier, Onkaparinga or wherever it is. The question for the local community is: do we want this part of our community to be called a commercial precinct and, if we do, what overlays are necessary to be added to that in order to make it particularly relevant to us?

Clause passed.

Clause 72.

The Hon. J.R. RAU: I move:

Amendment No 19 [Planning–1]—

Page 60, after line 35—Insert:

(ba) in order to provide consistency between the designated instrument and subsection (3) of section 7 after a notice under subsection (5) of that section has taken effect in accordance with that section; or

The CHAIR: Any questions on the amendment?

Mr GRIFFITHS: Just the reason for this one, because it does refer to a lot of the subclauses underneath it, but I am just interested as to where this one came from.

The Hon. J.R. RAU: This is a consequential amendment to say that if at a future time the environment and food production area is changed by the parliament, then there is a power to make consequential amendments elsewhere to accommodate that.

Amendment carried; clause as amended passed.

Clause 73.

Mr GRIFFITHS: This is about early commencement, and I consider this to be same as ministerial DPAs and authorisation immediately, 12-month consultation period, review at that time, so it is similar to that. It has been put to me, and questioned by the Local Government Association, because the majority of concern is around where this provision would be used and it allows a high level of development to occur. The suggestion from the LGA is that it would decrease development opportunities within that site, not increase them. Can the minister outline in what way this would be used?

The Hon. J.R. RAU: This is, in effect, what is now an interim DPA, so the terminology has changed but that is it. Just as a matter of interest, at the moment, in the period between 2005 and 2013, the prime reasons for the use of interim DPAs were 34 per cent to protect heritage items, 14 per cent to protect coastal land and two-thirds of DPAs using interim operation are initiated by councils.

Mr GRIFFITHS: Minister, I suppose the reason I asked the question is I am aware of an interim DPA that you brought in in regard to wind farm applications in, I believe, October 2011 or thereabouts, which most would perceive was for a higher use of the land. Was that a bit of an unusual example of it, given the response you have just given?

The Hon. J.R. RAU: Yes, it was because, at that point in time—and it continues to be the case—the government had a strong commitment to green energy, and the perception at that point in time was that there was a market opportunity for South Australia to attract investment from green energy producers. There was a sense that timeliness was going to attract that investment and that is why it was done in that way but that is not common. The other point is that, I am advised, with the new planning and design code there would be even less likelihood that such an instrument would be necessary.

Clause passed.

Clauses 74 and 75 passed.

Clause 76.

Mr GRIFFITHS: This one has a couple of different areas. There are some groups who have contacted me who are concerned about the minister being a relevant authority. Their preference would be for the political sphere to be taken out of it and it to be the planning commission or as you have there, but that is the position the minister has taken so I understand that is not likely to change. There has been though a question about the local assessment panel under subclause (e)(iii). I am not sure if there are two opportunities for that to be appointed: one by a council and one by a minister?

The Hon. J.R. RAU: There are two points. Firstly, as to the second point, the use of that term 'local assessment panel' is a drafting artefact to avoid using other terms which have a specific meaning and not confusing that. What is meant to be captured by that is a panel which has been constituted by a local government entity which for whatever reason has become dysfunctional and a need is determined for that to be replaced; that is what we are talking about here.

As to the earlier point about why the minister is a relevant authority, the way I look at it is this is an overall proposition as far as this bill is concerned. We are trying to invite the parliament more actively into the process of being engaged with planning through the ERD Committee and the parliament itself.

But, ultimately, somebody must be accountable to the parliament for the ultimate behaviour of the whole edifice, and that must be the minister. If the minister is going to be accountable, the minister must ultimately be in a position where the minister can exercise decision-making powers, otherwise you have this notion where the minister is accountable for what goes on but cannot influence what goes on and the body that is doing the thing is an unelected body, albeit a well-selected body, one would hope but, nonetheless, unelected. So there is no elected accountability for that.

That is the reason for the view that you would see throughout here, that the minister is there because ultimately the minister is answerable to this place and to the general public for what goes on there.

Mr GRIFFITHS: I seek some clarification on that. Above that, I believe it says in paragraph (d)(ii):

if a local assessment panel has been constituted by the Minister in substitution for an assessment panel appointed by the council;

I presume that is on the basis that the minister has dismissed the local assessment panel.

The Hon. J.R. RAU: Correct.

Mr GRIFFITHS: It seems to me that the minister then appoints a replacement. Why is it not that the council is again given the opportunity to review the membership and determine who the replacement should be?

The Hon. J.R. RAU: Obviously, the minister of the day should talk about it to the council concerned, but there is a range of possibilities here: one is that the individuals who are on the panel have gone off the reservation in some fashion and that requires it, and another is that the whole council itself has become dysfunctional, for whatever reason, and they are not going to be of much assistance.

I would have thought in the ordinary course it would be courteous, if nothing else, to at least seek the views of the council. But to get to that point we are talking about a fairly extreme set of circumstances. It is dealt with further on, I am told, in more detail in clause 78.

Mr GRIFFITHS: It is interesting that you say it would be a 'courteous' thing to do, to consult with the council on that. It is a possibility that future ministers for planning might not have the same respect for local government that you have, minister. Should it, indeed, be in the legislation?

The Hon. J.R. RAU: Clause 78(1)(d) states that the minister may constitute a panel—and that would include reconstitute—'after undertaking such investigations as the Minister thinks fit and consulting with the relevant council'.

Clause passed.

Clause 77.

Mr GRIFFITHS: Clause 77(1)(d) says:

a person who is a member of the Parliament of the State or a member of a council is not eligible to be appointed as a member of an assessment panel;

Minister, you were talking to me about contemplation of an amendment to your own legislation about a time limit being in place.

The Hon. J.R. RAU: Yes. I am of the view that it would be, or has been in the last couple of years, quite frankly, a reasonable addition to that, but I think we can probably deal with that by regulation or in the code of conduct. If, generally speaking, the member is asking me whether that is my view, the answer is yes. If the preference would be that it is dealt with in here, I can arrange for a suitable amendment to be formulated between the houses. I do regard that as important.

Mr GRIFFITHS: I actually proposed that to you because it was words that you expressed to me. That is why the suggestion was made. Indeed, my preferred position is for that clause not to be there. The Local Government Association has a very different position from the minister on this. Because, I think it is since 2007, the independent structure of CDAPs and the independent chair and the remaining members have been shared, the feedback I have received is that that system has worked well.

The Hon. J.R. Rau: Well, they would say that.

Mr GRIFFITHS: True. Why has the minister taken this tack to remove council members from this panel?

The Hon. J.R. RAU: It was an overwhelming message coming back to the expert panel, and it—

Ms Chapman: Not from the elected members.

The Hon. J.R. RAU: From everybody except some elected members, because interestingly enough—and I will not name them because it would embarrass them—I have had some elected members come to me and say, 'Thank goodness you're doing that because it's a terrible conflict for us to be in, but—'

Ms Chapman interjecting:

The Hon. J.R. RAU: '—we know it is a little bit unpopular for us to say that amongst our peers, so we are just saying it to you quietly.' It was—

Ms Chapman interjecting:

The CHAIR: Member for Bragg, please!

The Hon. J.R. RAU: It came through loud and clear through the expert panel and all of the consultation I have had with industry; indeed, I have consulted with Commissioner Lander about this as well and, if I recall, although I do not want to put words in his mouth, he sees some merit in this as well. I think this is fundamentally important, and I would invite the member for Goyder, between the houses, to speak to industry groups and ask their opinion as to what they think about this. Again, I cannot put words in their mouth, but I can tell you that if the whole of this bill did not exist they would love to have that bit.

The CHAIR: The member for Goyder's last question.

Mr GRIFFITHS: Minister, I do acknowledge that that would be the position of one side of the equation that has spoken to me about this. I do understand that because of the fact that elected members of council who are a part of a CDAP could not be lobbied on any application before the CDAP as it might place them in some compromising situations sometimes to explain that to people who come to them, but I am a bit perturbed to hear that there are people who wish they were not part of it. They do not have to be; they are nominated by their council, and they would have had to stand as a volunteer to go on that in the first place. I respect the fact that we cannot change it now.

The CHAIR: No further questions on 77?

Mr GRIFFITHS: Sorry, I did have a further clarification.

The CHAIR: You have had three, but this will be a supplementary to your third.

Mr GRIFFITHS: Thank you very much, Chair. The development lobby group has questioned me about the make-up of the skill set and experience of panel members and if there is an opportunity to consider the similar types of qualifications and experience that you have for the state planning commission. They would be rather difficult to attract; I do respect that, but I do see that these panel members you envisage creating will actually need some good skills.

The Hon. J.R. RAU: Ultimately, the skill mix is a matter for the minister, although they all must be accredited people. For example, if we are picking planners, they have to be people who are accredited by their appropriate body and suchlike. I was anxious to avoid here, as I am everywhere else where it comes in front of me, the sin of the representative board, which is one of the sins I have been attempting to eradicate from legislation as best I can; that is, the notion that you somehow get wisdom by making sure you have a butcher, a baker and a candlestick maker, instead of saying that you actually have some skill-orientated thing.

I am happy to talk to the member for Goyder, but if you look at clause 79 you would see that if they do not have, as a part of their core complement, an appropriate skill set for whatever it is they are particularly doing, they have the capacity to co-opt people.

Mr GRIFFITHS: This is a rather interesting area, Chair.

The CHAIR: The Chair is being really patient. This is your last question on this clause.

Mr GRIFFITHS: I do respect that. I see this group as being a vital one and I am interested in the process of how the selection of people will take place, minister, to be appointed to these panels and what you envisage as the particular skill sets or experience that you will be seeking to attract.

The Hon. J.R. RAU: It is not intended here that the minister of the day would be selecting every person for every one of these panels. The actual selection of the people, all things being well, could be done by the relevant council, but they would be selecting people with accreditation and a particular skill set.

Mr Griffiths interjecting:

The Hon. J.R. RAU: No—from an accreditation scheme so, I suppose, in the broad, but the minister would not be saying, 'Council X, you will have the following people.' It would be saying, 'Look, these are the people who have the appropriate sort of skill sets. You can approach them and engage whomever you see fit.'

Ms CHAPMAN: The appointment of the panels—whether it is by the joint planning boards of councils or later in section 78 when it is done by the minister of the day—sets out the parameters for which there are certain responsibilities; obviously conflicts of interest that are undisclosed attract serious penalties and the like, and I understand all that. However, one of the claimed defects of the local government system, apart from the alleged influence that apparently elected members are under, is the burden and the weight of trying to acquiesce to the wants of their local constituents as a justification for moving to panels and, in addition to that, is the reasonable complaint that at times some councils do not advance developments in a timely manner.

Indeed, they do not make a decision at all, and they are sent back to answer frivolous inquiry and provide extra detail which, frankly, could all have been dealt with if it was properly assessed and reasonably considered at the time. The applicant could then—whether they are a person who is proposing a development or someone who is wishing to raise some objection—advance the progress of the application: either to be accepted or rejected or obviously identify with conditions. That is a frequent complaint that probably many of us, as local members, would receive.

It is not unreasonable that the government would want to remedy that but I do not see anything in the obligations here of the new panel members who are going to be appointed to assume responsibility for some of these applications as to what instrument of enticement or discipline is going to be exercised over them to do the right thing and what time process they are obliged to do it. When will the default kick in? I see that there are no cost orders being dealt with at this point. There is no change to the environment court to be able to say that costs should follow the cause of frivolous applications or opposition—which I am very disappointed about; I raise it every time we deal with this but—

The Hon. J.R. Rau: Can I answer the question?

Ms CHAPMAN: I just want to know where the powers are, what the impediment will be, what the disciplinary tool will be to ensure that these panels are going to be any more diligent in their timely application of these processes.

The Hon. J.R. RAU: In reverse order: in terms of penalties and so forth for misbehaviour, go to schedule 3 which is the codes of conduct.

Ms Chapman: Sorry, schedule 3 at page?

The Hon. J.R. RAU: Page 191. In respect of the other two matters, have a look at section 112, which we will come to shortly, which is on page 91, and section 118 which is on page 97. I think those provisions—which we will come to in a moment—are the provisions which add the sticks, if you like, that the member is asking about.

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