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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Planning, Development and Infrastructure) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr WILLIAMS (MacKillop) (15:58): In speaking to this bill, I understand that this is concerning transition provisions and the implementation of the new legislation which has already been passed by this house, but I want to take the opportunity to raise a couple of matters which continually come up in my electorate, and another specific matter that I want to address which will give an indication of some of the problems created within, I guess, the general planning field and, particularly, problems which occur in country areas.

First, I will mention a couple of general things that have been upsetting a number of my constituents. We have this notion in South Australia when establishing environmental and food protection areas that we use the planning system to isolate areas of the state to protect food-producing lands from other activities, particularly, residential development.

I suggest that one of the things that we have plenty of in South Australia is land. There is not a shortage of land in South Australia, although some of our best and most highly productive agricultural and horticultural land is underneath asphalt, housing and that sort of thing. Principally, that has occurred in the Adelaide metropolitan area and those areas immediately to the north and south of metropolitan Adelaide and to a lesser extent in the Mount Lofty Ranges, the Barossa Valley, McLaren Vale and Willunga areas. These are the areas that to this point have been the greatest subject of the government's push to provide protection, but the government has seen fit to extend this even further.

This leads me to an issue that occurs in all the council areas in my electorate. As part of their development plans, there is a rule that prevents people from establishing residences on small properties. In general, across the council areas in my electorate, for a property of less than about 80 acres, 30-something hectares, it is a noncomplying development to seek to build a residence on a block that size. It causes all sorts of problems because there are many small parcels of land, particularly close to our townships, that lend themselves to be used for residential purposes.

Indeed, some of these blocks of land, where the owners have been prevented from either building on the land or selling it to other people to build on, are basically not used for anything. Because the ownership is separate and they are very small, they are not viable to be used for general farming, whether it be running a few sheep or some cattle, etc., because to do that you need the infrastructure. You need yards to load and unload, to corral the animals to get them to market or to provide veterinary services. It is not as simple as saying that this is in a general farming area and that it is a small block of land and we should not allow housing to be developed on it.

It came to my attention quite recently, when I was approached by a constituent who owns one of these particular blocks of land, notwithstanding that this land is in a general farming zone, and who is being charged the residential rate by the local council. She is not allowed to build on it because it is in the general farming zone and not in a rural living zone or residential zone. She is not allowed to build on it, but she does not get the benefit of paying the general farming differential rate. She is paying the residential rate, and I think that is an absurdity.

Again, this issue came up with the quite recent changes to the NRM levy, which puts a differential levy on farming land as opposed to residential land or land with other purposes in my region. These people are damned if they do and they are damned if they do not. That is an issue that I would love the minister to do something about. I will go to a specific case that was brought to my attention by constituent. The minister I am sure will be somewhat aware of this because about 12 months ago I brought this constituent to the minister. The minister agreed to meet with him, and he talked about an issue he had.

He owns a shack site on the River Murray, and shack sites are subject to a land management agreement which has certain rules. This all came about when the shacks on this site were given freehold title a few years ago and certain restrictions were put on the sort of development that could occur on them. Lo and behold, one of his neighbours decided to redevelop his shack with no regard for the agreement that had been signed at the time of the freeholding. He moved the boundaries of the shack, and all the other aspects of the land management agreement were ignored. This site is obviously not in my electorate.

My constituent appealed to the council and said, 'These are the things that were written into an agreement that I thought we would all abide by,' but the council was not of a mind to take any notice of that in any case and went on their merry way. My constituent came and spoke to the minister about this 12 months ago in an effort to ensure the minister was aware of this and so maybe it would not happen again.

As it turned out, another shack owner in this particular group lodged a development application to redevelop their shack site. My constituent went to the council and said, 'This is noncomplying. They are doing this and they are doing this and they are doing this. It doesn't really matter the actual disregard that they had for the land management agreement.' Notwithstanding that, the council took no notice and the council development assessment panel approved the application for the redevelopment of the site and, it being a noncomplying development, it then had to go to the Development Assessment Commission.

This is where things got tricky, because my constituent was sitting there waiting for his opportunity to appeal if the decision went in favour of the proponent. I want the minister and his agency to be aware of how difficult it is for people out in the street to work their way through our planning laws. Once the Development Assessment Commission made its decision, if the appellant (my constituent) disagreed with that decision, I understand that he had 15 working days to lodge an appeal. To aid that process, the council has an obligation within five working days to give notification to the appellant that the decision had been made, so that would leave 10 working days for the appellant to lodge their appeal.

What actually happened in this circumstance is that on 9 August the Development Assessment Commission handed down their judgement, which approved the assessment panel's approval and therefore triggered my constituent's desire to lodge an appeal. The council did not sign and post the letter of notification to my constituent until 30 August. According to my calendar, that is 15 working days, so the window of opportunity that my constituent had to lodge an appeal had already closed by the time the council had posted the notification. Indeed, my constituent did not receive the notification for another full week, another five working days, which was on 6 September.

My constituent happened to be overseas at the time, but he had a planning expert handling the matter on his behalf and, by the time he made contact, he had lodged his appeal. Being a resident in the Lower South-East, he lodged the appeal at the Mount Gambier courthouse. The appeal was with the ERD Court. According to the ERD Court's website, it says that you can lodge these papers in these matters at any court registry in the state. My constituent's appeal was lodged at the courthouse in Mount Gambier on 14 September. It turns out that the papers, as lodged, did not get to the ERD Court in Adelaide until 19 September.

Obviously by that date the 15 days from 9 August had long since passed and my constituent sought leave from the ERD Court for an extension so that his appeal could be heard. That leave was not granted; the ERD Court, in its infinite wisdom, decided that my constituent should have proactively sought to understand when the Development Assessment Commission was going to make its determination. Notwithstanding that the council managed to gobble up the whole 15 days' window, the council sent its lawyer along to this hearing at the ERD Court and argued that my constituent should not be heard, should not have leave, that the period in which they could lodge their appeal should not be extended. Indeed, that was agreed to by the judge. This seems absurd to me.

We have a planning system—hopefully—to allow us to have orderly planning, and part of the process is that when we get a noncomplying development at least people still have an opportunity to argue the case. I have always thought that noncomplying developments should have a hearing. One of the things that annoys me about the way planning happens in this state is that if a development is seen as noncomplying, quite often the council's attitude is that it is not just noncomplying but that it has no chance—and probably should not even be submitted in a lot of cases.

I always think that noncomplying simply means that it should be judged on its merits. To judge something on its merits, not only should you have the council assessment panel look at it, and in this case the Development Assessment Commission look at it, but if a neighbouring property owner has a concern I think they should be heard. However, the processes I have just described make that an impossibility.

I am making no claim as to whether or not there was any motivation in the council to gobble up the 15 days, I am not making that allegation at all. I am just pointing out the facts: that is what happened. When it came to my constituent seeking an extension of the 15 days' statutory time frame to lodge his appeal, the council sent its lawyers along to argue the case against that. To my mind that is unconscionable. I would have thought that the council should have accepted that it had been less than thorough in the exercise of its duty and that my constituent should, indeed, have been heard.

What I found even more extraordinary was that, in making his judgement, the judge of the ERD Court also apparently made comment about the strength of the appeal, whereas I thought that the hearing was all about whether the appeal would actually be heard or not. My constituent went along not to plead his case on the appeal but simply to plead to be heard, and it was judged that it was not worth hearing because it was not worth it, his case was not strong enough—yet he never had the opportunity to make his case.

I make this point to the minister because this is the way that planning is being handled in this state at the moment. I know that the changes the minister has brought about are all about the big end of town stuff, it is to try to fast track major developments, trying to make things happen more quickly. At the end of the day, if we are going to have orderly development, and we are going to have a process where noncomplying developments can get approval, surely we need to make sure that interested parties can appeal, should be able to lodge their appeal and should be able to have their appeal heard.

I think my constituent was denied natural justice. To be quite honest, I think my constituent possibly has a case against the council for its failure to fulfil its duties, but that is a different matter. I just want the minister to be aware that there are serious problems within the planning system in South Australia and the way that it is handled within councils. Quite often on this side of the house, we will stand up for local government, but here is an example of where local government has let down their constituents (and my constituent). But that is not all of the problem.

The reality is that, in country areas, we are relying on the postal system. I know that extending that 15-day opportunity to 30 days may slow things down, but it also may increase the ability of people to be heard fairly and justly when they have a worthwhile claim to make. Without going to the actual bill itself, I thank the house for its indulgence and I will leave my comments there.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:16): First of all, can I say thank you to those members who have contributed. I understand from the member for Goyder that we will be going into committee and there will be an opportunity to discuss in some detail a few other bits and pieces, and obviously I welcome that opportunity. Can I say to the member for MacKillop that it is refreshing, from this side of the house, to hear somebody who sits on the other side of the house making full and frank disclosures about some of the problems in the present system which do actually land at the doorstep of local government and throwing out the challenge to all of us collectively to do something about it.

Quite often, we have other members opposite—not the member for MacKillop—essentially parroting the position of the Local Government Association or some council or something. I think they could do well to read and reflect upon the member for MacKillop's contribution because he is obviously bringing a critical mind to things, rather than accepting that whatever the local government people have to say is to be taken as being unequivocally correct and coming from a position of total perspective, if you know what I mean.

Can I say thank you to all those who have made those contributions. I know that some of those contributions—I think in particular from the member for Hammond—proceeded from what I am happy to advise is a misapprehension. The misapprehension of which I speak is the misapprehension that there has been no consultation. I am delighted to advise him that that is a complete misapprehension and he can sleep tonight. The consultation on this particular piece of work has been more extensive and more rigorous than any consultation on perhaps anything ever anywhere.

Prior to 2013, an expert panel chaired by Mr Brian Hayes was asked to go out and inquire into all the issues about planning. Mr Hayes and his group went out for 18 months, they had something like 2,000 meetings, and they received a gazillion submissions. I can assure the member for Hammond and anyone else who has a consultation worry in their mind that Mr Hayes and his group spoke to absolutely everybody, including the LGA, multiple times. They produced quite a significant draft report which arrived in late 2014.

Mr Griffiths: December 2014.

The Hon. J.R. RAU: December 2014, thank you. Then they said, 'We are not content with this. We enjoy consultation so much, we are going to consult on the draft.'

Mr Griffiths: It was in August, and then in December it was final.

The Hon. J.R. RAU: August, I beg your pardon. So out they go again consulting on a draft. This will all come as great news to the member for Hammond because I know he is worried about a lack of consultation. As good fortune would have it, he need not worry. So there they go, consulting again from August to December, at which time they then produce a final report, and the final report is then out there in the public domain. We then go off and draft legislation to reflect what is said in the report and we say that we are going to pick up everything in the report except heritage, because heritage is itself quite a complex issue as I am learning every day.

Heritage will be dealt with as a separate matter, but we will come back to it, and we have and we are presently. We will do everything else and we will put it into a bill. We set about doing that, but I thought, 'Let's have more consultation', because I like consultation on this sort of thing because I think it is important. So off we went and we called together all of the main groups that were interested in this. Again, member for Hammond, can I reassure you that the LGA was on the invitation list from day one, and they bobbed up with people like the then president, I think, His Worship, the Mayor of Prospect, and their legal team.

They were invited to many meetings around the drafting of the bill, as were the Property Council, as were the UDIA, as were the Master Builders and as were, initially, even the HIA, although they told us at the first meeting that unless we did exactly what they wanted—a former colleague of the member for Goyder actually delivered the message on their behalf—the bill would be defeated, which I thought was an unusual way to commence the negotiation. Shortly after that, they dropped off the Christmas card list.

Nevertheless, with everybody else it was consult, consult, consult. We got the bill in here and I made it clear that it was a bill we were putting in to save time, but we were going to consult on it, and we did. We established a thing called CAT because I am quite fond of that word. It is consultative action team or something—collaborative advisory team. It does not matter, as I can only remember the acronym. That is why you have acronyms; it means you do not have to worry about the other words. Anyway, we have a collaborative advisory team and guess who is in the collaborative advisory team? It is the Local Government Association and their lawyers, the UDIA, the Property Council and the Master Builders.

Mr Knoll: The HIA?

The Hon. J.R. RAU: No, they had already decided that they were not involved. They decided that they were going to take their bat and ball and go home, throw the toys out of the cot and not participate in the process, and that is fine and they are enjoying the fruits of their decision-making. We then established a regular set of meetings for these people and I said to them, 'I don't just want to meet you before this bill goes through'—this is the bill we did last year and the beginning of this year—'I want to keep meeting you for the next three years, if I am still here in three years—

Mr Duluk: Hopefully not.

The Hon. J.R. RAU: That is very unkind—'as the process, not just the legislative process, but administrative and policy process, rolls out.' I have had at least six or seven meetings of that group since the first bill passed, or something in that order, and, in fact, I feel like another one. For those who are listening, can we please organise another one because I have not seen them for a while and I miss them. I understand that on Friday we are doing it all over again. There you are, on Friday it is happening all again.

The reason we are meeting with them is that we want to hear what they have to say. Can I say to the member for Hammond that there is no need tonight to toss and turn. There is no need tonight for Bovril. There is no need tonight for Milo, Ovaltine, valerian tea or any other form of assistance to enable you to rest comfortably in the arms of Morpheus because—

Mr Knoll: You don't drink Milo at night.

The DEPUTY SPEAKER: You are not in your seat, therefore I can't hear you, can I?

The Hon. J.R. RAU: —because the consultation has been relentless, it continues to be relentless, and in pride of place in every consultation process is the Local Government Association. I hope that rather lengthy recounting of the consultation process will mean that when we are asked questions in the committee stage, I do not say it all over again, and if I am asked that, Madam Deputy Speaker, would you like me to say all this again or just refer to my—

The DEPUTY SPEAKER: I will do that.

The Hon. J.R. RAU: In that case, I will say I will refer to my earlier remarks because that might save everyone a lot of time. Is there anything else I should get to at this point in time?

The DEPUTY SPEAKER: No, you have closed the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

Mr GRIFFITHS: Minister, I am glad you are in a good mood. I like listening to your speeches. In defence of the member for Hammond, we are going off the track slightly, but he was talking about consultation direct with the Rural City of Murray Bridge about the EFPA. That was the focus of his comments. Indeed, the feedback from him is that the level of knowledge was not there beforehand, and I know you are talking about different groups. My question, and I apologise if I am completely wrong on this, is about clause 2 and how section 7(5) of the Acts Interpretation Act does not apply to this act. Could you explain that to me please?

The Hon. J.R. RAU: Yes, it is a very good question. The story is that the Acts Interpretation Act has a sort of a catch-all provision in it which says if an act of parliament has been proclaimed, and within two years of it having been proclaimed it has not by reason of gazettal been brought into being, it automatically comes into being.

It occurred to us that, because we are not at this point in time sufficiently certain when individual bits and pieces of this legislation are going to be ready to be turned on and consequently bits of the other legislation turned off, it was prudent for us to actually dispense with that automatic two-year turn on because, if we did, what would happen is at exactly a predetermined date in two years someone could walk in and flick all the switches on one to 'off' and flick all the switches on the other one to 'on' and chaos would ensue. This is intended to enable an orderly transition.

Clause passed.

Clause 3 passed.

Clause 4.

Mr GRIFFITHS: This question relates to clauses 4 to 7 about a change of emphasis from the commission to the minister. There were a substantial number of amendments that stemmed from all sides, I think it is fair to say, on the debate on the previous legislation where there was a change of focus from the minister to the commission, but this is the reverse. I have not checked to ensure whether this one was amended. Was this amended in the Legislative Council debate to the commission? Could I have an explanation from the minister as to why? I can understand that accountability requires responsibility but I just thought you should put it on the record.

The Hon. J.R. RAU: Yes, I will put it on the record. The original bill tabled in parliament gave responsibility for a range of matters, including state planning policies—in other words, these are the high-level executive government determinations, in effect—ultimately to the minister, as I think political accountability would demand rather than the commission. These provisions were significantly amended during the debate instead to refer them to the commission, an unelected body, albeit probably a very good body. Can I say that obviously the minister would have regard to the advice of the commission, no doubt, in determining state planning policies.

The government recognises that state planning policies are of significant importance as expressions of policies belonging to the government of the day, and the government of the day should be entitled to change them if and when they have good reason to do so. On reflection, the government considers that, having regard to the Westminster system of government with which we operate, the representative of the elected government of the day, whoever they may be, rather than an unelected body, should be responsible for ensuring that such policies are prepared because ultimately they are accountable to the people and the commission is not.

The purpose of this clause is to place responsibility for ensuring state planning policies exist with the minister of the day, rather than with the commission, consistent with adaptive re-use and climate change policies under sections 61 and 62 as, in fact, passed by the Legislative Council. Under the proposed amendments, these policies will be prepared by the commission on behalf of the minister. I emphasise those words 'on behalf of the minister'.

The requirements set out for the commission to prepare and amend policies under sections 73 and 74, including compliance with the community engagement charter, submissions to parliamentary scrutiny, and potential disallowance will still apply. For further information, section 73, it is intended that both the commission and the joint planning boards will be designated entities for the purposes of section 73(6), authorised for the purposes of preparing statutory instruments under section 73(2). Therefore, both will be required to comply with the requirements to consultation under the charter, etc. pursuant to section 73(6).

Mr GRIFFITHS: I am happy to accept that response.

Clause passed.

Clauses 5 to 7 passed.

Clause 8.

Mr GRIFFITHS: The minister alluded to this in his last sentence about the designated entities. I know that is a concern, and I am expressing this on behalf of the LGA where they have a difference of opinion, as I understand it, and they have had some legal advice. There was a concern that they are not recognised in the legislation as a designated identity, and there was the suggestion of an amendment change to ensure that was tidied up. My understanding from the LGA is that that information has been forwarded to the government. While the initial position might have been that it saw the thing very differently, is that still the case, or has there been a review of the position?

The Hon. J.R. RAU: No, I think the situation here is that it has always been the case that we have had a view that the LGA would be involved in consultations about this. Section 44 of the act, which governs the charter, actually provides at subsection (6) that the charter must provide for consultation with councils or the LGA in relation to preparation or amendment of designated instruments. So, I am of the view that that is already catered for.

Mr GRIFFITHS: As an extension to that, the LGA concern was that that does not necessarily mean that it has to comply with the community engagement charter.

The Hon. J.R. RAU: The advice I have is that we are of the understanding that parliamentary counsel says that is exactly what it does mean, so it might be that their lawyers and our lawyers do not have the same view, but that is as I understand it to be.

Clause passed.

Clause 9.

Mr GRIFFITHS: My understanding from the briefing provided by your staff was that this was an area that was inadvertently missed out from the legislation initially.

The Hon. J.R. RAU: I understand that it is a typographical error or an editorial error in the act. It is not a change of substance; it is fixing up an omission or an error.

Clause passed.

Clause 10.

Mr GRIFFITHS: I have quite a few questions because it is quite a substantial area, as this is where the new legislation actually starts. 'Designated day' is referred to through it a bit, and my recollection of reading this is that there are references to 'designated day' and potentially before and after 'designated day'. I am interested to find out how that was chosen and what does it mean?

The Hon. J.R. RAU: That is again a very good question. The situation is basically this, and I know analogies are always problematic, but—

The CHAIR: Dangerous.

The Hon. J.R. RAU: Dangerous, yes, but here we go. If we have a Commodore 61 machine here and the Commodore 61 machine is running all our bits and bobs—

Mr Griffiths: It was a 64.

The Hon. J.R. RAU: A 64—that is the later model, I think, yes. There you are: it is not my long suit, is it? Anyway, you are trying to actually move something from there to somewhere else, but the rules say that at no point can either machine stop operating and at no point can the data stop being accessible or capable of being utilised. What you actually wind up doing is finding individual components that you can switch from one to the other according to some logical pattern, and that pattern may not mean that whole slabs of information or whole slabs of data are moved at the same time. It might mean that you start breaking it down into smaller parcels. So, far so good.

The CHAIR: No, I don't think it is. Is there a recipe analogy?

Mr GRIFFITHS: I appreciate that explanation.

The CHAIR: Do you? Next question. I am not sure anyone else will understand it.

Mr GRIFFITHS: You have to have been here for a while to listen to the minister's speak to understand what he meant.

The CHAIR: I have been here a long time listening to his speeches and I did not get that one at all, but go on.

Mr GRIFFITHS: Can I ask this question under clause 2 of new schedule 8—Saving of Operation, It talks about repealed acts and then states:

…Act remains relevant to the operation…the provision may be taken to continue to operate for the purposes of this Schedule despite its repeal.

The Hon. J.R. RAU: I think I can explain that, and if I get it wrong there will be a bunch of very concerned-looking people slightly to the left of me who will be making hand signals. I think what it means, as I understand it, is this: let's say that you got an approval under the existing act to do something, and let's say that the requirements for that approval under the existing act turn out to be different from the requirements under the act.

This, as I understand it, means that, by reason of the new act coming into operation, there is no question about the validity of steps already taken, notwithstanding the fact that the new act no longer requires those steps to be taken or that those steps are no longer even there. The way I would paraphrase this is that it is a no-disadvantage sort of proposition. Whatever happens under the new regime, the fact that you have commenced your process, or indeed may have completed your process under the old regime, you will not be disadvantaged and the thing will roll on as if you had been compliant had the new scheme been in place.

Mr GRIFFITHS: I thank the minister for the explanation. If I can go on to part 2 and clause 3—Definitions, particularly 'development authorisation'. While the minister has asked me not to refer to consultations with other groups, there are some particular words I want to put on the record. This one is from the UDIA has a concern about this clause 3. Its concern states:

The reference to development authorisation being taken to include authorisations issued under the 'repealed Act' should expressly extend to authorisations issued under earlier repealed Acts for instance to include the Planning Act and the Planning and Development Account…This is because there are still authorisations under those Acts which are in force today and it is important that the chain of transitional adoption of prior approvals from those Acts to the current day is intact.

The Hon. J.R. RAU: Again, a good point. Our advice from parliamentary counsel is that, because there were transitional provisions in the current act which referred back to those earlier acts, that is already picked up by this. So there is a domino effect going backwards, if you like, and this is simply, in effect, relying upon the transitional provision of the earlier work.

Mr GRIFFITHS: Therefore, it becomes more inclusive than the concerns put by the UDIA. It does go back as necessary.

The Hon. J.R. RAU: Yes.

Mr GRIFFITHS: I can appreciate that. If I can go to clause 4—Change of land use. They also have some concerns and say:

This clause enables the period of non-use to extend to a period that started before the designated day. Given the more extensive reach of these provisions it would be fair for the period of non-use to only commence on or from the designated day and not before.

I am interested in your thoughts on that. I have not come to a final conclusion on that issue, so I am just interested in your thoughts.

The Hon. J.R. RAU: Let's have some context first. Increasingly over the next few years, we are going to be looking at the opportunity—and, indeed, the necessity—for urban infill, not just in the City of Adelaide but all around the state, and we are also going to be looking at the fact that we have parts of South Australia (many of them in the city, but not all) where we have historic industrial activities that have taken place and those historic industrial activities have, for whatever reason, ceased. The effect of the provision in the bill we passed earlier is to say that, if you have a couple of events occur, there is a change in the way the law will operate, and I will explain what I mean by that.

First, let's say we have some land somewhere in the city which is industrial land or it is zoned for an abattoir or zoned for whatever else. A good example would be the land around Clipsal. This is probably the best way of illustrating my point. If you look at the land around Clipsal, you have an old gas works which is a very filthy, dirty, old polluting mid-20th century industrial activity and electrical manufacturing works and various other things. Those lands were earmarked for urban redevelopment and rezoned from their former industrial use either to deferred urban or to urban development with quite a lot of detail into it. But, either way, they were rezoned from industrial.

In the event that there is an industrial enterprise operating still, in that area—notwithstanding that it has been rezoned—the rezone has zero impact on that enterprise. They have an existing use and they are entitled to continue with it. If we look at, for example, again, Clipsal, there is a factory at the back which is not owned by the state government (I think it is Conroy's factory, if I remember correctly), and they produce smallgoods and other things. The member for Schubert might be able to correct me about what they do.

Mr Knoll interjecting:

The Hon. J.R. RAU: Anyway, they are not in the same league as another well-known entity.

Mr Knoll interjecting:

The CHAIR: You are in the wrong spot, aren't you, for saying anything.

The Hon. J.R. RAU: In any event, they are entitled to continue doing what they are doing. Even more that, member for Goyder, if they are continuing to do whatever they are doing and the member for Schubert decided to purchase them as a going concern and set up yet another—

Mr Knoll interjecting:

The Hon. J.R. RAU: I don't want to mention it. If some mysterious person were to want to purchase that enterprise and keep doing it, they are allowed to, too, because they are taking advantage of an existing use of right. What this is saying is that in circumstances where non-use (that is, the complete stopping of doing things) has occurred before the date of whenever it is this comes into operation, you actually say that the period of time that this thing has been not operating starts from the day that it stopped operating and not some fictional date later on.

Mr GRIFFITHS: Therefore, in effect it is like turning on and turning off the legislation. It does not matter whether or not legislation is in place, it is from the time of use or non-use that is the key date. I can appreciate that response.

The Hon. J.R. RAU: The only thing that this will affect is something which has completely gone into non-use.

Mr GRIFFITHS: Under clause 4—Change of use of land, subclause (3) refers to section 4(2)(a) of the act, which refers to a 12-month period. Clause 4(3) talks about a period that is to be extended to two years. Can you give me an explanation as to why that is there?

The Hon. J.R. RAU: This is a transitional provision, and the explanation I have is that you start off with a period of discontinuance as far as the act is concern. Clause 4(3) provides:

For the purposes of the revival of a use of land after a period of discontinuance, the period of 12 months referred to in…4(2)(a) of the act will be taken to be extended to a period of two years in relation to a period of discontinuance…

In other words, it is saying that you get an extra year because that is the provision under the Development Act and it was started under the Development Act.

Mr GRIFFITHS: Part of the concern of the UDIA with clause 4(2), where we are talking about change of land use, they also have a similar concern about clauses 4(6) and 4(7). I have a question about clause 4(8), where there are terms such as 'before the designated day', 'under a preceding subclause', 'before being brought into operation' and 'if the Governor'. It just seems to be a collection of—

The CHAIR: Bad English.

Mr GRIFFITHS: Yes.

The CHAIR: Is the minister able to help us with that?

The Hon. J.R. RAU: Is it subclause (8) in particular that you are looking at?

The CHAIR: Clause 4(8)—what is the wording that we would like to use, member for Goyder?

Mr GRIFFITHS: I can understand 'before the designated day under a preceding subclause and before being brought into operation'. I have a question on 'if the Governor, by proclamation'. Is this a normal selection of words used for transitional legislation such as this, because I looked at this and it was confusing to me.

The Hon. J.R. RAU: If we came to the view that there was another Clipsal-type opportunity sitting somewhere in the city, for example, by reference to this clause we should be able to designate that as a particular thing which was singled out, if you like, as a particular project before the general provision came into operation.

Mr GRIFFITHS: Subclause (9) refers to 'In connection with subclause (8)' and (a) has the words 'the Governor' and (b) has the words 'if the Governor'. Does it have to do be defined in the legislation somewhere else that that is one of the responsibilities of the Governor, or is there another act where there is an overriding power that provides for the Governor to do those things?

The Hon. J.R. RAU: Where it refers to Governor, generally we are talking about the Governor in Executive Council. It is a shorthand way of referring to a process by which there is a cabinet decision, the cabinet decision is conveyed to the Governor and the Governor then in Executive Council gives effect to that decision.

Mr GRIFFITHS: If I can go over the page to 5(2) under part 3, which is part of clause 10. I note there is a proclamation date of 1 April, but it then talks about opportunities to go around that date. I asked this question in the briefing, but I presume that is in case—and I hope this is the case—things can happen earlier. Or is the other side of the scenario that, if it cannot be achieved earlier, we do not need to bring in separate legislation to amend a date?

The Hon. J.R. RAU: Correct. What I wanted to do was to give the parliament, the industry and those people who are interested in this thing as much of a transparent idea as to what my expectations were about the introduction of the planning commission as possible. My view was that we wanted it up and running by the end of March. That is why I started off with 1 April.

I then spoke to those wiser than me who advise me and they said, 'But what if it doesn't get done by then?' I said, 'Of course it will be done by then.' They looked at me, and I said, 'Well, I guess if it can't be done by then, I will be quite agitated, but we wouldn't want to have to go back to parliament or we wouldn't have to start something that didn't exist.' Then I said, 'Hang on, what if you can do it earlier? Does it work that way too?' and they said, 'Yes, I suppose.' So that is it; that is exactly it.

We have a target date, but we are saying, if we really get snappy on it—and this is a way members can judge the high performance of the planning people—that if they undershoot 1 April, you will not need me to tell you how good they are because you will know it, and if they overshoot 1 April you will not need me to tell you that I am quite embarrassed.

Mr GRIFFITHS: My obvious question then becomes: because the planning commissioner is such an important appointment for things to occur—and my questions to you in estimates were that you are still looking at a March commencement opportunity for that position.

The Hon. J.R. RAU: Absolutely.

Mr GRIFFITHS: Any earlier than that? Do you have any update?

The Hon. J.R. RAU: I am mindful of the fact that we are running into Christmas, we do not have this legislation through yet, I want this thing running as fast as I possibly can and we want an excellent person, so I do not want to have some sort of cursory desktop search or something going on. I have asked the department to start work on an appropriately thorough search, but until this legislation is actually through I cannot formally press the button on the search because I do not yet have a thing to search for. Well, I do not have timing anyway that I can reliably offer anybody.

We have everything ready to go—at least I hope so; we do. We have everything ready to go. My strong view is that it will be up and running come 1 April. This provision is here as a safety valve if something completely terrible and unforeseen happens and we do not have it or, alternatively, if everyone gets their skates on and we can do it earlier, we will do it earlier.

Mr GRIFFITHS: I hope there is a multitude of people jumping out of their skins ready to apply for it, too—

The Hon. J.R. RAU: Me too.

Mr GRIFFITHS: —so we get the absolute best person. Can I say, firstly, I put a tick against the fact that, for the charter of community engagement, you have set yourself a six-month time line. I think that is great and that is one of the key things. As part of that, because it will be a formulation effort that goes into that, is it the intention to allow individual members of parliament to be involved in the creation of that? It will be an important thing for us, as representatives of the community, to be involved in the consultation on how to consult.

The Hon. J.R. RAU: I absolutely would welcome that. I have told the group with whom I have been consulting, the CAT, that I want all of them to do their best to offer up whatever thoughts they have. I speak to people in the local government sector who are not necessarily LGA executive holders and I say to them, 'Please get involved.' Yes, I put on the public record that I welcome the involvement of any and all members of parliament in that process because I would like to think that, by the time we get to this community charter, we have something about which there is a high degree of consensus not just in the industry and local government sectors but within the parliament as well.

Mr GRIFFITHS: I commend you on those and hope that at a minimum the ERD Committee, for example, is used because it represents various political groups, but individual members being involved would be fantastic.

I now go to new schedule 8, clause 6(3) which provides that on or after the designated day 'a reference in any Act…be taken to be a reference to the State Planning Commission'. We are talking about designated entities here again. That is a very broad statement to make. Did that need to be included to give some surety to every other piece of legislation about? Yes.

The next issue relates to new schedule 8, clause 6(5). I note that the state planning commission 'may' adopt any findings or determinations from designated entities, adopt or make any decision. The question I have is: what if the planning commission has a different opinion from the designated entity and does not wish to adopt? Whose authority rules here?

The Hon. J.R. RAU: Ultimately, it would be the state planning commission, but what I think we are particularly talking about here is that the current Development Assessment Commission might have a matter before it which is at some point; it has not yet been finally disposed of but it is nevertheless in the pipeline somewhere in the Development Assessment Commission. As I read this, it is intended to mean that the new planning commission does not have to go back to square one and start again. The Development Assessment Commission might have gone through a whole bunch of processes—called witnesses, had a design review, done whole bunch of things—and it would be silly if the commission could not take advantage of that work.

Mr GRIFFITHS: I completely agree that it would be silly if that were not the case, but it comes down to the use of the word 'may' versus 'must', I suppose, which has been part of planning debates for decades now, but I am prepared to accept that response. Over the page, it talks about 'take other steps to promote or ensure the smoothest possible transition'. Is that a legislative phrase, 'the smoothest possible transition'? I am not aware that I have ever read that in anything else.

The Hon. J.R. RAU: I do not think I have read it before either. It has the horrible ring of something that I might say that has accidentally found its way into the act. It is intended to convey the idea that we should be having a seamless transition, we should not be inconveniencing people, not annoying people, not making people say, 'No, go back to the end of the queue and start again.' It is that sort of thing.

Mr GRIFFITHS: I can appreciate that. I probably would not have asked the question if it had said 'seamless transition', as well, so I understand that. I go down to new schedule 8, clause 7, which talks about the regions. Subclause (1)(a) provides that a regional plan under section 64 need not be prepared and adopted until the expiration of 24 months. Why has that 24-month period been chosen?

The Hon. J.R. RAU: This is one the member for Hammond might find pretty satisfactory. What that is intended to do is to give an opportunity for councils—and in some cases these regional plans will obviously involve more than one council, and councils have differing degrees of competencies and resources available to them—to ensure that they have sufficient time to be able to marshal their forces and make decisions.

I have to say here—and I know that the member for Goyder is well aware of this, and I am sure the member for Hammond is, too—that having, as we do, 68 local government areas where, at one end of the spectrum, you have an area like Onkaparinga where you have 120,000 or 140,000—

Mr Picton: A bit more than 160,000.

The Hon. J.R. RAU: More than 160,000 people, you therefore have a ratepayer base capable of sustaining a quite sophisticated council bureaucracy. At the other end of the spectrum you have Elliston or something—

Mr Griffiths interjecting:

The Hon. J.R. RAU: Well, there you are, you see. There is a tremendous diversity of capacity in local government so we have to allow for that. The other thing is that in this part, where we are talking about regions, we are also giving an opportunity for there to be sufficient time for them to also negotiate planning agreements and set up regional plans. One of the things in this that I thought was very important was that there should be no compulsion on local government in regional areas to collaborate, but there should be encouragements and rewards for collaboration. SELGA, for example, in the South-East, to all observations I have had is a very successful collaboration between councils in a region. The Upper Eyre Peninsula—

Mr Griffiths interjecting:

The Hon. J.R. RAU: Yes. Again, many of them are already moving in this direction, and this is just to give them an opportunity to actually turn that into something that is functional.

The CHAIR: The member for Hammond has a question on clause 10?

Mr PEDERICK: Yes, Madam Chair. We were talking about regions, I believe?

The CHAIR: This is the longest clause I have ever seen; it is 20 pages.

Mr PEDERICK: Page 12—that will do. In relation to defining regions, there is a section under the act where that can be constituted. Does that mean that potentially the environment and food protection area would be constituted as a region? There is a huge area of land between Kapunda and Goolwa, and encompassing the Rural City of Murray Bridge, under the previous act and this bill.

The Hon. J.R. RAU: My understanding of the whole area in relation to this is that, in relation to regions, we are talking about local government authorities volunteering to create a regional collaborative environment. I guess the answer to the question is: if all the local government areas anywhere wish to collaborate to do something, then that becomes possible, but this is not designed to enable the minister or the commission to go around dictating that these regional affiliations occur. It is a matter for people to come forward, not for them to be coerced.

Mr GRIFFITHS: At the bottom of page 12, under 7(2), it states:

(2) To avoid doubt, a plan applying under subclause (1)(b) may be amended…

Is an amendment defined as being more of a cosmetic change or a significant one, or is it any amendment that occurs? Is there any control in place as to how extensive it can be?

The Hon. J.R. RAU: The advice I have on that is what is meant by 'amendment' basically comes after part 5 of the act, which talks about amendments to plans. One has to have regard to part 5 to understand exactly what the scope of amendment in this particular scheme is. Generally speaking, an amendment, basically as in this place, constitutes anything short of the effective repeal of the original provision or the effective complete substitution of that for something completely different. The specific answer lies in part 5.

Mr PEDERICK: In relation to what I asked about environment and food protection, you indicated that local governments would not be forced to work together on this, but essentially they were landed with the environment and food protection area. Are there any options for local government working with the minister and his department if they are not happy with provisions of the environment and food protection area, or even being part of it, to negotiate their way out of that?

The Hon. J.R. RAU: There are several answers to that. As a matter of good public policy, whether they want to be in it or not is not the primary question. The primary question is whether or not the EFPA is a good piece of public policy, but in particular the answer to the question is that, under the legislation we passed earlier this year, there is an automatic review every five years. Every five years, there is a legislated requirement that the planning commission must have an inquiry into a whole range of things, and that inquiry includes an inquiry into essentially the existing boundaries of the EFPA with a view to asking itself: do we think those boundaries are continuing to be appropriate?

In addition to that, there can be, of its own motion, opportunities for the commission to undertake such a review, and that own motion review might indeed be provoked by a request, which they may or may not choose to action, but they have to do it every five years because the act says they have to. The short answer is that, if any council, or any landholder for that matter, wanted to approach the planning commission at any time during those five-year windows and say, 'I've got a particular problem here. I want you to look at it,' they are entitled to go forward and ask that question.

The planning commission is not obliged to answer yes, but if they make a sufficiently compelling case the planning commission is empowered to look at it, and then there is a process in the act as to what then follows. If the planning commission, either at a five-year review or as a result of a request from an individual or a council, comes to the view that the EFPA needs to be modified, there are two separate kinds of modifications that might be entailed. The first one is a completely trivial or minor modification.

For example, the Hills Face Zone might run around a contour of land that chops off the bottom corner of your 1,000 square metre block and sticks it into the Hills Face Zone and the rest of it is in your block. By any definition, that is an absolutely trivial boundary adjustment. The commission is empowered to fix those things itself. You just go there with your case and say how ridiculous and trivial it is and the commission can fix that.

However, if you are talking about a more large-scale change, then the process set out in the act is that ultimately the commission makes a recommendation, the recommendation goes to the minister and the minister can determine to do it or not do it, as the case might be. It then winds up being brought to the attention of the parliament. There is an engagement opportunity for the ERD Committee, and ultimately the parliament will decide, not the minister, whether or not that change should occur.

The short answer is that, for those people who might consider that they have a genuine and strong case for a change in that boundary, the place to go in the future is not the minister: it is the commission. When they go there, they should know that if what they want is a tiny, trivial, obvious fix-up of a line because of some obviously unforeseen and ridiculous consequence, the commission itself has the capacity to fix that, full stop. But if it is a major thing, there is a much more elaborate process which cannot be agreed to or stopped or mucked around with ultimately by the minister: it is a matter for the parliament.

Mr PEDERICK: I am certainly pleased that there is the ability either in between the five-year period or at the five-year period, and you can make comment on this if you like minister, and it is more of a comment that a question. It is certainly far more opportunity, I believe, than what people in local government had in being landed in these environment and food protection areas.

The Hon. J.R. RAU: I understand what the member for Hammond is saying and I understand where some of the concerns are coming from. Can I put it this way: the EFPA is intended to preserve the environment and food production areas which are very close to the City of Adelaide. It recognises that Adelaide should be able to feed itself and have valuable landscapes and horticultural and agricultural areas preserved in close proximity to the city. I know that, of course, there are some landholders within that close proximity who believe that if they could rezone their land they would make a lot of money, and that is fair enough, I understand that.

Mr Pederick: It is not just about that, John.

The Hon. J.R. RAU: I know, but I am just saying. There are a lot of people who think that. That is entirely fair and reasonable that they would like to be able to do that, but ultimately whether we allow them to do that should not be dictated on whether or not they want to make more money, it should be on whether or not it is good planning policy. Their making money out of it is incidental.

If we come to Murray Bridge, which I know is the primary concern the member for Hammond has, Murray Bridge already has a significant unrealised development opportunity contained within the future growth plans for the existing city of Murray Bridge. It is already there, and that has been preserved. None of that has been taken away. The EFPA did not remove what is—and I cannot remember what the future growth allowance is there over 20 or 30 years or whatever—actually sitting there already as yet undeveloped, not in the EFPA either.

Murray Bridge is not being squeezed or choked to death. It is not being choked. Murray Bridge can grow. There is plenty of room for Murray Bridge to grow. If in 10 or 20 years there is a significant growth in the population of Murray Bridge and it gets to the point where that population is starting to bump up against constraints in terms of available land, that might make an excellent case for the Murray Bridge community to go to the commission and say, 'Look, we are wanting to grow our community and the EFPA is likely to restrict us doing that. We would like you to consider doing something about it,' and that would be entirely reasonable at that time.

At the moment, I am informed—reliably informed, I believe—that there is more than sufficient available land in all of the townships that are captured by the EFPA to permit 20 or 30 years reasonably foreseeable growth opportunity, and that is assuming no greater densification. I am absolutely positive that no town within the EFPA is going to be choked by the EFPA. That is not what it is doing.

Mr Griffiths: It will be five years before it is renewed anyway.

The Hon. J.R. RAU: Well, let's say there is a new industry that comes to Murray Bridge, a lot of people start moving to Murray Bridge and the population growth really takes off. Of course, then it would be reasonable for the Murray Bridge community to go to the planning commission and say, 'Here is our problem. Can you help us with it?' Then it is a conversation with the commission, and ultimately it is a decision for the parliament whether that is something we want to do. In putting in the EFPA it was always intended that there had to be some independent capacity for those decisions to be reviewed.

Mr GRIFFITHS: It is interesting to talk about the EFPA, the environment and food protection area. Hansard wanted me to clarify what I had said before, so that is why I have enforced it. I have a question about division 3, clause 8(1) which provides, 'Subject to this clause, section 7(5) of this Act does not apply.' Section 7(5) talks about environment and food protection areas and the division of areas within that land.

I completely understand the fact that you want to preserve existing rights. The title gives me the explanation but I am wondering, for the benefit of those who might wish to review this later and those who might feel they are impacted by it, if you want to put any words on as to the need to ensure the preservation of that right, and therefore why this amendment is in place?

The Hon. J.R. RAU: The intention of this is basically this: the real nitty-gritty of this is in section 8(4). What it is basically saying is this: I presently have a property within the EFPA. I have an unrealised potential, presently, to build a home on that. Bear in mind that at all times the only thing the EFPA is touching is the ability to do residential division. It does not affect any other form of land use at all. But let's say that I have the opportunity, presently, to subdivide a piece of land and create multiple holdings which can be used for residential purposes, and I have that right right now.

What this is saying is that, notwithstanding the fact the EFPA is coming in, I have two years to exercise that right if I wish to do so. It is saying to everybody, 'You're not going to wake up one morning and all of a sudden this has gone. You've got a chance, and if you wish to exercise that chance you've got two years to do it.'

Mr GRIFFITHS: I agree, and I recognise that we just spoke about this during the primary debate in the initial legislation also. If I can jump forward over the page, I note at the end of page 13 there is a reference to the fact that the planning and design code does not have to be enforced until 1 July 2020, but I presume efforts have been made to ensure it is there before then, and we all agree on that. The UDIA has put to me a concern, which I might just read out again:

The power for the Minister to make amendments to the Development Plan as the Planning and Design Code is brought into operation is sensible.

We all agree.

It is important however that the amendments to the Development Plan all form part of the consultation process. This can be achieved without duplication so long as the process to create the [Planning and Design Code] includes consultation on the consequential amendments to the Development Plan. The concluding sentence to 9(3) [on page 14] could be amended to say '…the Minister may make the amendment by the Planning and Design Code and the process of amendment under Part 5 Division 2 shall apply to the amendment to the Development Plan as though it were the Planning and Design Code under this Act.'

They go on to say that clause 9(4) can simply be deleted. I just want to check that on the basis that I have received this from the UDIA, and that it has been provided to your staff also, is there a position of acknowledgement of this issue and is it fixed?

The Hon. J.R. RAU: Can I get back to you about that one? I think that is one I need to take some advice on. The short answer is: on consultation, I am totally accessible to all these people all the time, and my intention is that they are part of this process ongoing. Everything that we are going to do, I want them to be involved in a lot of it. We want people to own this thing. So, we want people on board, working with the government, and we want their input and their expertise.

Mr GRIFFITHS: Subclause (4) on the middle of page 14 states:

The Minister must give notice of an amendment under subclause (3) in such manner as the Minister thinks fit.

Are there any guidelines about how the minister is to 'think fit' for the notice to be provided? At a minimum, is that because it relates to the code—and this is a local government request—that individual councils that will be impacted by it will be advised?

The Hon. J.R. RAU: The last sentence has to be read as part of the rest of the whole section, and so 'if the minister considers that a Development Plan should be amended', first question, including:

…by the removal or alteration of material in the Development Plan—

(a) because of provision by the Planning and Design Code; or

(b) because of…the minister may make the amendment...

These are not enabling provisions that enable the minister to please themselves as to what they want to do. It has to be an amendment which is pertinent and relevant to the empowering provision, which is at the top. I am not troubled by that in a sense. I do not think that it lacks any particularity.

Mr GRIFFITHS: Can I clarify then, does it mean the same thing as a ministerial DPA does at the moment? My understanding of the process there is that it is a determination that you make and you put in force on an interim basis for 12 months?

The Hon. J.R. RAU: This is apparently very similar to section 29 of the existing Development Act, which enables amendment. The advice is that section 29 of the current act provides that certain amendments may be made to development plans without formal procedures by way of notice in the Government Gazette.

Mr GRIFFITHS: At the bottom of page 14 under clause 6(c) my notation here is 'What does this mean??' I wonder whether the minister can outline that for me?

The Hon. J.R. RAU: Let me have a look. I am advised that this means that if there is in progress a DPA under the current scheme, this facilitates the possibility of the DPA being split and continued.

Mr GRIFFITHS: Thank you. If I can go over the page then to subclause (7) which provides:

Without limiting a preceding subclause, the Minister may, by notice in the Gazette, revoke a Development Plan…

If you consider it no longer required or appropriate. Is this advice that is provided to you by the commission? Is that the only case where you would do something?

The Hon. J.R. RAU: This is, as I understand it, one of the provisions here which is in effect one of the incremental switch-off provisions. So, my expectation is that, when everything else is lined up and ready to go to replace the development plan, you would then basically turn it off using that.

Mr GRIFFITHS: I come to local heritage, and I will not talk about it very long because I know it is subject to things later on. As it is going to be separate piece of legislation, why it is included at this stage?

The Hon. J.R. RAU: Excellent question. As much as I tried to keep local heritage out of the legislation in this place earlier this year, and as much as I knocked it out once, it again was the subject of, I think the euphemism is 'improvement' in another place.

Mindful of the very fact the member for Goyder has just raised, namely, that we are in the process of having a conversation about local heritage—and I did actually raise this with the relevant people in the upper house and say, 'For God's sake, we are going to get around to this, just don't jump the gun'—this is just saying, 'Look, in effect, that will be turned on when we are ready,' and my expectation and hope is that we will have our heritage conversation, a heritage bill, a heritage act and this will no longer be required.

Mr GRIFFITHS: I appreciate the response but can I seek an explanation under subclause (3) where it refers to 'Subclauses (1) and (2) do not limit the ability to make a later amendment to the Planning and Design Code in relation to a place' for recognition? Why have you given yourself a capacity to make an amendment to a place that is identified under local heritage listing? Is that what the implications of it are?

The Hon. J.R. RAU: I do not want this legislation to have anything to do with local heritage: trust me. I do not want to do that. As I understand it, it is saying in subclause (2) that you can amend a planning or design code in order to include a place of heritage value in the code. I gather that is an inclusive proposition, not an exclusive proposition.

Mr GRIFFITHS: Having said that, they are an inclusion, not exclusion. I appreciate that. If I can go over the page to page 16 and clause 12—General transitional scheme for panels, I am interested in the transition from what is currently in place to the panels being in place. This legislation, as I understand it, will set the scene about how that is done, but do you want to put any words into Hansard about that?

The Hon. J.R. RAU: Yes. This clause provides for existing council development assessment panels under the Development Act to continue for the time being (so, they continue to operate) until the complete legislative scheme is commenced to operate as council appointed assessment panels for the purposes of the new act. So, even though their membership probably does not comply with the new act, there is a deeming provision, in effect, that says that, notwithstanding the fact you do not comply, for a transitional period you will be deemed to be okay. They will also be able to make decisions under the repealed act until the new act is fully operational. So it is one of those transitional arrangements.

Mr GRIFFITHS: If I can jump over to page 17 and subclause (7), I have some more comments from the UDIA about section 12—General transitional scheme for panels. They go on to say:

This ought to include an express provision that enables an assessment panel acting under that clause 12(7) to deal with any matter subject to an appeal so that a panel can for example consider and agree to a compromise proposal put as part of the settlement of an appeal. Otherwise, once the decision is made, the Panel has discharged its function and the matter is within the jurisdiction of the Court. If the old DAP cannot consider a compromise proposal (because it has ceased to exist as a DAP under the old act) then the new Panel ought to have the express power to deal with the litigations.

The Hon. J.R. RAU: I understand that, and I think there is a satisfactory answer to this. I am advised that the new panel will stand in the place of the old and make decisions accordingly in relation to appeals, including in relation to settlement conferences and the like. So the new panel will have the ability to settle an appeal informally and, indeed, to give effect to any decision in relation to an appeal as it stands in the place of the panel established under the Development Act.

Mr GRIFFITHS: Jumping to page 18, under clause 14—Assessment managers, I have a quick question. Can an assessment manager act for more than one panel?

The Hon. J.R. RAU: I am advised the answer is yes.

Mr GRIFFITHS: At the bottom of page 19, under clause 18—Continuation of processes, this is another UDIA area, and they say:

The ability to vary an existing authorisation which may have been granted under the Development Act or a preceding Act would be helpful (see clause 18(6) which goes some of the way). It may be appropriate to insert somewhere a clause that expressly recognises the prior approvals and enables the variation power in section 128 of the [Planning, Development and Infrastructure] Act. At present, s128 is limited to varying any approval 'previously given under this act' thus arguably precluding variations to approvals under earlier Acts unless some express provision is included. For instance a clause could be inserted to read 'Any consent or approval given under or for the purposes of the repealed Act, the Planning Act 1982, the Planning and Development Act 1966 or the Town Planning Act 1929 is to be treated as though it was given under this Act'.

Is that necessary?

The Hon. J.R. RAU: It is the same answer we had a while ago, where the transitional provision dominoed back through the previous legislation.

Mr GRIFFITHS: I refer to the bottom of page 20—Appeals. I do not want it to be seen as confusing for anyone that an appeal is considered under the provisions that might relate to the current development plan requirements, where an application might have been considered and approved under the planning and design code but considered under the development plan provisions. Does this tidy it up to ensure that it is understood by all that what is in place at the time is that the appeal has to be lodged and considered under it?

The Hon. J.R. RAU: The advice I have is that this clause provides for the continuation of third-party appeals lodged under the repealed act to be continued to final determination under the repealed act and recognised, however, under the new act.

Mr GRIFFITHS: I refer to page 21—Crown and infrastructure development. Subclause (1) states (this is for sections 49 and 49A developments) that 'the designated day may be continued and completed under the provisions of the repealed act.' Does 'may' mean that it has to be and, if not, how is it considered?

The Hon. J.R. RAU: It simply enables; it means 'may' and not 'must' or 'shall'. We will try to get some confirmation about that from parliamentary counsel.

Mr GRIFFITHS: I refer to new schedule 8, page 23, part 8—Building activity and use, classification and occupation of buildings. Can the minister outline what clause 27 means?

The Hon. J.R. RAU: This goes to the classification of buildings.

Mr GRIFFITHS: This applies to land or buildings owned by the Crown.

The Hon. J.R. RAU: I am advised that the present provisions do not apply to crown buildings, and this is intended to make it clear that they will only apply after this comes into new crown buildings, not retrospectively to existing crown buildings.

Mr GRIFFITHS: Swimming pool safety referred to at the bottom of this page has also been referred to in the previous debate. Can you explain how the implementation of this area will improve the current provisions? It was previously explained to me by a person who works in this area that there was some level of ambiguity about regulations not necessarily agreeing with each other. As an expert in the field, he talked about the fact that he has inspected properties that are built according to the regulations but do not meet required standards from other areas. Does this help to fix that and ensure that the provisions exist?

The Hon. J.R. RAU: I am advised that, yes, subject to consultation, this does give the power to resolve those ambiguities.

Mr GRIFFITHS: I refer to page 24, pilot schemes for infrastructure projects, for which I know the minister has quite a passion. I am intrigued because new schedule 8 clause 30 provides, 'This clause applies despite section 245(6)'. Why is it necessary to put it in?

The Hon. J.R. RAU: If I am not mistaken, 245(6) is the is the one that says that these infrastructure schemes are going to be non-operational for a period of a couple of years after the act is proclaimed. That was something which was made as a request by the UDIA, the Property Council and others at the time we did the original bill. Since that time they have come back to me and said, 'Actually, we have been thinking about it and we wouldn't mind test driving a couple of these infrastructure schemes. What do you think?'

I said, 'I think that's a great idea, but you got us to put in a thing that said I couldn't do that for two years. So, if you are asking me to go back to the parliament at your request to actually truncate that period in respect of an application you make to me to do one of those things, I will do it.' That is why I am doing it. I said to them, 'I want you to make it crystal clear to the member for Goyder and others that I am not doing this because I am trying to recant on something that was settled by the parliament at the beginning of the year; I am doing this because you have asked me to do this.'

I hope they are very happy to confirm that with you, but I can assure you that is the way this came about. I have actually been told by both the Property Council and the UDIA that they have two, three or maybe even four potential projects in mind that they would like to participate in.

Mr GRIFFITHS: I will confirm that the industry that I have spoken to do fully support its inclusion, so there is no doubt about that. However, I did receive a response from the Master Builders Association, and I can understand the reason for it, so I will put it on the record:

Master Builders SA is concerned that these trials may be subjected to a lower bar for approval, which may in turn survive the transition and so be open to weakening the provisions relating to future schemes. We have been reassured this is not the case, and look forward to an opportunity to assess the operation of Act's infrastructure scheme provisions with reference to an actual project.

Is that commitment in place, that the assessment of it will be safe?

The Hon. J.R. RAU: Again, I welcome the opportunity to put this on the record: all this particular section (part 9) about general schemes deals with is to say that the limitation in terms of the commencement time for this will be shortened in some circumstances; it does nothing to affect the rigour attached to the schemes. That rigour is already set out in the act and just because a scheme pops into the system early because of this does not relieve anybody of any obligation under that provision.

Mr GRIFFITHS: Still on page 25, talking about land management agreements, I have not referenced this against what part 5 of the repealed act actually states, but I am interested that at the start it provides:

A council must, in relation to any land management agreement to which the council is a party…furnish a copy of that agreement to the Minister within the period of 3 months after the designated day.

Is that all LMAs? I can imagine that they are quite substantial in number, and I am wondering what you actually do with them then. I presume they become part of the planning portal so that they are on the property, and therefore any future owner or intended purchaser will be aware of the provision of it. I am just wondering about that.

The Hon. J.R. RAU: Essentially, the intention is that the commencement of the new legislation provides an opportunity to take stock, update records and establish a contemporary register, which then will become a register on the planning portal.

Mr GRIFFITHS: That will be a substantial project, but it is part of the documentation requirements for those who might own it in the future, so I can understand that. The next point I want to go to is on page 26, clause 34—Proceedings to gain a commercial competitive advantage. The UDIA commented to me that they seek the insertion of an express carryover of the right of action under section 88C of the repealed act.

The Hon. J.R. RAU: That is the same thing again.

Mr GRIFFITHS: Is it?

The Hon. J.R. RAU: I will ask people to consider that between the houses, but my understanding is that that is simply a reflection of something that exists in the existing legislation. I do not believe it to be a new thing.

Mr GRIFFITHS: The next question relates to part 15—Other matters, proclamation of open space. Is this only an issue that has come to light since the legislation was passed in April? I looked at this and thought, 'Why wasn't it actually in the original legislation?'

The Hon. J.R. RAU: My advice is that this was a transitional provision in the Development Act 1993, and that it carried over provisions going back to the 1929 act. It is further being carried over into the new system.

Mr GRIFFITHS: If I can go to the bottom of page 27, to 40—Conditions. Again, this is the UDIA feedback which I will allow you to give consideration to later on:

This clause relating to the continuation of conditions under the Development Act should refer to conditions applying to a decision under the repealed Act or any of the earlier Acts given that they may still be in force.

The Hon. J.R. RAU: Exactly. I say again that our advice is that we have this cascading arrangement already in place, but we will check it again with parliamentary counsel.

Mr GRIFFITHS: Nearly there. I appreciate the minister's willingness to provide fulsome answers. I have gone to page 32 now, part 10—Amendment of section 3—Interpretation:

(1) Section 3(1), after the definition of pollute insert:

pre-school…

Minister, I read this and I was intrigued as to why the definition would change as a result of the PDI Bill in the Environmental Protection Act.

The Hon. J.R. RAU: The answer apparently is: because the Development Act regulations will ultimately no longer apply and this apparently appears in the Development Act regulations, the EPA has asked that it be stuck into their regulations.

Mr GRIFFITHS: I could have accepted it if it related to section 49 or 49(a), in relation to crown development if it was a childcare centre on crown land, but okay, I accept that. I go on to the second to last page, 43—

The CHAIR: Page 43 is the last part of clause 10, and then I am passing clause 10 before we do anything else.

Mr GRIFFITHS: That is true. I am interested in 79—Amendment of section 34C—Minister may give effect to road process proposal. I think this relates to the Roads (Opening and Closing) Act:

…delete "The Governor" and substitute:

The Planning Minister

Minister, I know you are influential in many areas, but I am just intrigued about this one.

The Hon. J.R. RAU: I am advised that the reason for this is that previously, major projects were determined by the Governor, which means the Governor in counsel with SALT. Under the Planning and Development Act, as passed, this would be a matter for determination by the minister, not the Governor. Therefore, any road closing or opening under the act should be undertaken by the minister as part of the major development process, not by the Governor.

Clause passed.

Remaining clauses (11 to 85) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:43): I move:

That this bill be now read a third time.

Can I thank the member for Goyder, the member for Hammond and others who participated in the committee stage. I think all the questions that have been asked have actually been very constructive, and hopefully those people who were concerned about some of those matters will find that the answers are satisfactory. If they are not, I say, particularly to the member for Goyder, I am obviously very happy to chat to him about further matters between here and elsewhere.

Bill read a third time and passed.


At 17:45 the house adjourned until Thursday 20 October 2016 at 10:30.


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