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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-25 Daily Xml
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DEVELOPMENT (PLANNING AND DEVELOPMENT REVIEW) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2008. Page 693.)

The Hon. B.V. Finnigan interjecting:

The Hon. M. PARNELL (21:11): I have been invited by the Hon. Bernard Finnigan to support the bill unreservedly, and it will come as no surprise to him or anyone else that I do have some comments to make about this legislation. The planning review that gave rise to this bill is a very far cry from the planning review that was initiated by former premier John Bannon back in the early 1990s. That earlier planning review was absolutely chock-a-block with community consultation and engagement. There was well over a year of workshops, focus groups, stakeholder consultation and public meetings.

The people of South Australia were invited into a process and they were asked to present a vision of what they wanted for their cities, towns, suburbs, communities and regional areas. We were invited to tell the government what we wanted South Australia to be like in 30 years. Some of the vision that came out of that process has ever so slowly started to be adopted; for example, the vision in relation to public transport is now at least on the agenda, if not in fruition. The current planning review, on the other hand, was a very narrow and selective process that had its outcomes predetermined by the government's very clear agenda to make development in this state cheaper and faster.

The government got the outcomes it wanted and, with this bill, we are starting to see those outcomes implemented. If anyone doubts my analysis of the process, just have another look at the second reading explanation because it is dominated by the claims of the vast sums of money we will make or save by reforming the planning system and cutting what the government describes as 'red tape'. However, planning and development control is not just the domain of the development industry: it is the framework around which and within which our communities exist. Therefore I will always advocate that people should be engaged as much as possible, because it is us who must live, work and play in the environment that is shaped by planned use, planning and development.

Our children and our grandchildren will inherit that environment from us. In fact, empowering the community to engage in these debates is what I spent 10 years of my life doing before coming into parliament. I do not accept the adequacy of the process the government has gone through to get us to this point. It does distress me somewhat to see that the momentum in planning law reform is all in one direction, and that direction is to disempower the community and to disempower local democracy as expressed through our local councils. I am reminded that one of the first bills with which I had to deal when I came into this place was a bill to remove the bulk of elected members from development assessment panels.

That legislation, back in 2006, was promoted by the government largely on the basis that it would free up those elected members to be able to concentrate on writing planning policy. That was regarded as a more appropriate role for them rather than them all sitting on a development assessment panel to determine the fate of a rumpus room or a carport. In fact, in his second reading explanation on that development panel's bill, on 2 May 2006, the minister said:

The suite of proposed bills increases the role of elected members in strategic planning, policy review and representing their constituents in their elected member capacity without a conflict of interest.

Now we find that the government is undermining even that role by providing that state government regulations should prevail over any inconsistent local planning rules set out in a council's development plan largely written by those elected members in conjunction with their staff. Apparently it is not enough for the state government that it has a right of veto over council development plans.

The government also wants to be able to veto those plans en masse by passing regulations that undermine the specific local council planning policies. My position in planning is always to prefer the specific over the general. In other words, if people have sat down and thought about appropriate planning rules for particular types of development in a particular location, then that level of specificity should prevail over a general principle written by a state government and incorporated into statewide regulations.

The other reason that I prefer council development plans to prevail over government regulation is that those plans, through the development plan amendment process, go through public consultation. People have the right to make submissions, a public meeting is mandated and, at the end of the day, they even go to a standing committee of parliament. Regulations, on the other hand, may or may not go through any process of public consultation and the only tool that we have available to us for reform is the very crude one of disallowing them at the end of the day. As members know, disallowance is not retrospective and bad regulations can cause harm and do damage until they are, in fact, disallowed. The process of writing planning policy through regulations is a crude one, it is a one-size-fits-all approach and it does not enable the nuanced response that you can have with a council development plan amendment process.

In relation to the package of measures that is before us, I support some aspects of it. I support the initiative of taking some very minor forms of development outside the planning system and freeing up town planners for more important work. I think that it makes sense that the solar panels on your roof, or the rainwater tank in your backyard, or the shadecloth over your barbecue area do not have to go through the full gamut of planning approvals; so that aspect of the reforms I think is appropriate. People might argue whether too much is caught by this new category of exempt development, but nevertheless the process, I think, is a good one.

Most of the controversy around these reforms has been in relation to the so-called residential development code. The bill that is before us does not actually refer to the residential code, but it is, in effect, enabling legislation because it opens the door to allow for the code to be introduced through regulations. The bill itself does not prescribe the code, but allows for the code to be prescribed.

A version of the residential code was distributed for public consultation some months back and it received a great deal of criticism from many people in the community, from the planning profession and from local government. Another version was provided to us yesterday and that contained some improvements but in my view was still inadequate, and yet a further version was provided to us an hour or so ago. I have had a quick look at that, but again the improvements are very incremental and the objections that I have to the code remain.

The effect of this residential code is to provide that certain quantifiable requirements in relation to things such as open space and site coverage, setbacks and car parking are met, then approval is virtually automatic. It is what has been described as a tick-a-box approach, and once those boxes have been ticked, then whatever other requirements might exist in a local council's development plan are overridden. Why I find that situation unsatisfactory is that development plans increasingly are reflecting better environmental practices in terms of the orientation of buildings on their sites, water-sensitive urban design, solar access, minimum sunlight requirements for habitable rooms, amongst other things. That good work is being undermined when you have a residential code that simply requires a developer to tick a few boxes—and it is only a few—and then they do not need to go through the rest of the development plan in the design of their development.

Under the government's proposals, these important environmental matters are either ignored entirely or left to the Building Code of Australia to pick up, which it generally does not pick up not only because the Building Code of Australia is still overwhelmingly about building safety rather than about social or environmental performance but also it only comes into operation at building approval stage, which is generally after planning approval. It is a very crude method of ensuring the environmental quality of new buildings to rely on the Building Code of Australia.

I will refer briefly to some of the contributions that have been made in relation to the residential code. I have a very large folder full of submissions, but I will refer briefly to a few. One to which the government should have paid more attention than it did was the submission from the City of Onkaparinga. In their lengthy submission to government of 18 September 2008, they pointed out the following problems, as they saw it, with the residential code.

Under the heading of qualitative assessment, they pointed out that the code does not contain any qualitative assessment criteria and that the absence of such criteria has the potential for development to negatively affect the amenity of a locality. It is all about quantitative assessments. In other words, how many metres it is set back from the boundary, how high it is and how many car parking spots it has. None of the qualitative aspects are included. Under the heading of urban design and sustainability, Onkaparinga goes on to say:

None of the Code's performance criteria seek good urban design by incorporating issues such as sustainability principles, building orientation or building materials. This also has the potential for development to negatively affect the amenity of a locality and consideration should be given to incorporating these matters in performance criteria.

The reforms seek to move to quantitative assessment of residential development, rather than assessing against qualitative measures as currently exists. If the Code is to be implemented, additional work must be done to ensure that the Code provides clear guidance to applicants and the community.

The Code does not contain any performance criteria that prescribe appropriate construction materials nor does it seek high standards of urban design incorporating sustainability principles such as appropriate solar orientation. Given the Government's position on climate change and the need for environmental sustainability, it is surprising that this issue is not addressed by the Code. Further, the ongoing affordability of maintaining a house should be a consideration of the government in its push for affordable housing—simple measures such as solar orientation greatly improve the ongoing costs of maintaining a home.

There you have the views of Onkaparinga, and those views are reflected in a large number of other submissions from individual town planners, other local councils, planning academics and community groups. The Planning Institute of Australia put out a media release on 12 September and it picked up the themes of Onkaparinga by saying, for example:

In its current form the Code fails to adequately deal with important issues of concern to the community including sustainability, climate change, character and overshadowing.

The Planning Institute's media release and submission to government points out the potential community backlash that will arise from implementation of an insufficiently prepared code. It points out that rallies on the steps of Parliament House complaining about the code will effectively see more disputation in the suburbs as people realise developments are going on around them that are inappropriate, of low quality and about which they have no say.

I took the unusual step myself of lodging a personal submission to the planning review on the residential code and, whilst I will not read out that submission, the conclusion that I came to—and this is the conclusion of many other people who made submissions—is that the government should go back to the drawing board and rewrite the residential code following further public consultation. I also suggested to government that this will necessitate putting back the proposed implementation dates to make sure the community does have a genuine opportunity to have a say.

Within the past few days I have also had a submission from the Local Government Association, and I will refer to that towards the end of my contribution because it has some specific points about specific clauses in the bill. One of the issues raised by the introduction of a residential code is that the amount of information required of developers before they get their approval will be fairly strictly limited by the regulations. Under the current regime, schedule 5 of the development regulations sets out the types of paperwork and information that you have to provide to your local council before you can get approval. It includes plans and specifications drawn to a certain scale.

Under the government's proposed regime, it will have a system where, once a person has provided that information, no further information is needed. In fact, the bill that is before us provides that councils are not allowed to ask for further information once the basic minimum has been provided under schedule 5 of the development regulations. There are some minor additions to that information that must be provided. One is in relation to significant trees. The developer has to identify up front whether there is a significant tree on the property. One that I have just seen in the past day is information about whether the site might be contaminated. There are still many important things that a council needs to know which should be provided but which will not be required to be provided under this regime.

One clear example would be that there is no obligation on a developer to disclose the existence of any native vegetation on a site. Many members might think we are primarily talking about the suburbs of Adelaide and that there is not much native vegetation left, so why would you encumber developers by having to disclose whether there is native vegetation? However, I point out to members that the whole of the City of Onkaparinga, including its suburban parts, is covered by the Native Vegetation Act.

There is currently a bill in another place which will get here very soon and which proposes that the whole of the Mitcham Hills will be covered by the Native Vegetation Act. The suburbs of Belair, Bellevue Heights, Blackwood, Coromandel Valley, Craigburn Farm, Eden Hills, Glenalta and Hawthorndene will all be covered by the Native Vegetation Act, yet the residential code is proposed to apply to those suburbs and developers will not need to disclose whether there is any native vegetation. As a resident of Mitcham Hills, I can tell members that there is some good vegetation left, much of it in backyards, and our development authorities need to know where it is if we are to have any chance of protecting it.

So, the failure of the proposed regime to ask questions, such as native vegetation, does remove opportunities to preserve those important remnants, and I say that is not good enough. Similarly, I think that trying through legislation to limit the number of questions a council is allowed to ask developers is putting an unfair restriction on a council's ability to do its job properly.

In relation to the legislation itself, I have a number of amendments on file, and I will very briefly outline the effect of those amendments. However, I will refer first to the submission that was made by the Local Government Association. The LGA has pointed out three clauses, I think, of what is a fairly short bill, it is unhappy with—clauses it says need amendment or further consultation.

For example, in relation to clause 5; the LGA summary is that it does not support the amendment in its current form and that it needs more work. Other sections the LGA does not support at all. For instance, the LGA does not support clause 9 (the amendment of section 41, I think). The LGA concludes its submission by making a plea for better consultation on the regulations because the regulations is where the residential code will eventually find its home.

I have five amendments on file. I will speak to them in detail when we get to the committee stage, but I will give members an idea of their subject matter. My first amendment is very straight forward. It provides that, if a matter goes on appeal to the Environment, Resources and Development Court because of some requirement that has been imposed by an outside body (for example, the EPA is one body that has a legal right to impose conditions or to direct refusal of certain types of development), that both that body and the local council need to be parties to the appeal. That is pretty much the current regime. My amendment is a very minor one. Basically, I have just tried to close a potential loophole that would have enabled the Environment, Resources and Development Court to exclude a local council from being a party to that appeal. I hope that amendment will not be controversial.

My second amendment basically provides that, where a local development plan is inconsistent with the government's regulations, that local specific plan should prevail. I know that is a clause the government will not like, because the purpose of this bill is to undermine that local planning regime. I am trying to preserve some balance and trying to keep those locally written, local planning rules at the forefront and have them prevail over state government regulations.

My third amendment is one that has attracted a bit of interest in the media in the last couple of days, and that is a provision in the government's bill that will make it illegal for a local council to consult its citizens over certain types of development. It is a remarkable provision in the legislation; it basically provides that the council shall not consult citizens (shall not consult neighbours, for example) in relation to what is described as a category 1 development.

Members who are not as steeped in planning law perhaps as I am might think that all sounds like gobbledegook. However, category 1 developments are the bulk of residential developments in the state, and generally there is no obligation on a local council to consult neighbours or anyone else about it. Nevertheless, some councils do decide to let their citizens know what is going on in their neighbourhood, and that is an appropriate thing for councils to do in some circumstances.

I know that some of the judges of the Environment, Resources and Development Court do not like that approach. They take a very pragmatic view and say that you should not consult anyone and raise their hopes unless they have some legal ability to do something about it if they are unhappy with the outcome. They say that you do not want to raise the expectations of people by consulting them if they do not have, for example, appeal rights.

I think that is a very weak excuse, and I think it is a poor reason not to consult local people in relation to development. My amendment does not force councils to consult anyone; but it seeks to remove what I think is a silly government provision which makes it illegal for a council to consult neighbours of certain types of development.

The fourth amendment is a fairly straightforward one. I am seeking to delete the provisions of the bill that stop councils asking questions of developers. If council members need more information to assess a development, I say they should be able to ask the questions, and if they need to ask twice, let them ask twice. If the answer that they are provided with in the first instance is inadequate, let them ask again. The way the government has drafted this bill, in relation to some types of development you are not allowed to ask any questions at all, in relation to other types of developments, you get one bite of the cherry and, regardless of the quality of the answers, you cannot ask a second round of questions.

The response is likely to be, 'Well, if a council is unhappy with the responses it gets, it will simply refuse the development. It will simply say no.' But councils will be loath to drag too many of these applications through the courts through an appeal process. Basically, these measures are designed to discourage councils from seeking too much information and to say yes to development instead.

My fifth and final amendment relates to the question of what the consequences should be where a council is tardy in approving a development. The government's bill provides that if the development is not approved within a 10-day time limit, then it will be regarded as a deemed refusal, and the council will have to refund all the development application fees.

I can probably live with the first part of that. If it is a fairly straightforward development and the council has not approved it within the time frame, then a deemed refusal makes sense, and the disgruntled developer can go to the court and get a second opinion. However, having to refund hundreds or thousands of dollars worth of fees is not an appropriate response because, at the end of the day, that will lead to developers effectively getting their development approved, albeit through negotiations in the environment court, for free.

The final point that I would make in my second reading contribution is that we will be urged by the government not to be too worried that the residential code is not in final form before we pass this bill. What we will be told is what we are always told when regulations are involved, and that is that it is our job as a parliament is to pass the bill and we should leave it up to the executive to pass the regulations, that we should not hold up the act just because the regulations are not ready.

I am generally supportive of that type of view when you look at regulations or delegated legislation as the fine tuning of laws that we create. When you learn this at law school, they usually give you the example where the regulations set out the admission prices for the zoo, for example—a level of detail that the parliament does not need to get into. That is the role of delegated legislation.

However, this residential code and the delegated legislation that we are inviting the government to implement through this act is not just admission prices or fine detail. It goes to the heart of the system. These regulations determine what types of development have to be approved, what types of development have to go through a thorough process, and what types of development go through very little process.

If anyone is in any doubt as to how significant these changes are, we are talking about 70 per cent of development in the state effectively being rubber-stamped through a 'tick-a-box' process through the development code and that is what the regulations will do. So whereas I usually say I am happy to pass the bill and we will trust the government to write good regulations, I am far less inclined in this situation to allow that to happen.

I accept that the government is still fine tuning the residential code and I am happy for it to spend more time fine tuning it and spend more time consulting the community about what should be in the residential code. If that means that we do not deal with this legislation this week, if that means that we wait until we come back in February when there has been proper consultation, then so be it, because the consequences of leaving things out, the consequences of getting this wrong, are that we could end up with a far worse urban form. We could end up with boxes made of ticky-tacky that all look just the same because the residential code does not have the qualitative aspects that our current development plan has.

I support the second reading of the bill, but I do want to see the response to my amendments and I do want to see the government's proposed process of consultation over the code before we take it further.

The Hon. J.A. DARLEY (21:40): I rise to indicate my support for the bill, and commend the government for its planning reforms in seeking to streamline the planning process. For too long we have allowed councils to delay applications for even the simplest additions. This is not only frustrating for homeowners and builders: it takes up valuable council time and resources that could be better spent elsewhere.

I would have liked to see an amendment to clause 9, the new provisions to section 41, that applications will be taken to be approved rather than refused if the application is not determined in time. Under the government's bill, if an approval is not granted within time it is deemed to be refused and an applicant will be required to go to the ERD Court. It would be in the spirit of this whole push for planning reform in terms of approving new developments and additions to deem, as much as possible, applications not determined in time to be approved rather than refused. I acknowledge that there are problems with this; however, I understand that under the new provisions of section 41, if an application is deemed to be refused because it is not decided in time, the application fee is refunded and the applicant can apply afresh. I see this as a positive step that saves time and money if an appeal to the Environment, Resources and Development Court is not warranted.

My personal experience with councils, particularly regarding planning approvals, has made me quite cynical about their ability or even willingness to determine assessments within strict time limits. In a recent discussion I had with the Premier, I understand that he too has experienced the frustration of waiting for council approvals in the past. I am hopeful that this bill will enable government to cut through red tape and streamline and simplify the cumbersome planning process for all parties.

The Hon. SANDRA KANCK (21:42): Although I am speaking to this bill tonight, I will not agree to progressing it beyond the second reading this week because I, my party, and many community organisations need time to study, discuss and digest the implications of the draft regulations upon which the bill stands. We received the first copy of those regulations yesterday afternoon and we received a second, replacement copy just half an hour ago. It would be an extremely poor process for government to try to ram through this legislation this week, given that we have effectively had the bill in our hands for only three sitting days and the regulations for perhaps just one sitting day.

I would like to see this debate resumed in the new year. As members know, I will not be here at that time to debate it and I would therefore lose the opportunity—which I would like to take now—to berate the government for what I see as a very shortsighted, unsustainable and undemocratic approach to urban development and planning. This bill is part of an urban planning package which is, I believe, fundamentally flawed. First, it is designed to facilitate population growth at a time when we cannot provide even enough water for the existing population; secondly, it pushes the boundary of the city out onto productive farming land and native vegetation at a time when food and oil are becoming more expensive and biodiversity is under threat; thirdly, it is based on the delusion that there are simplistic, tick-a-box fixes for urban planning dilemmas; and, finally, it seeks to reduce the rights of residents and the autonomy of councils.

Urban development is not simple, even though the government seems to think that its proposals will make it so: it is complicated and it has long-term effects.

Apparently simple matters , such as how close a fence should be sited to a wall, can turn a much-loved room or verandah from a warm sun-drenched winter refuge into a cold and dark corner. Many people in our community cannot afford to move when insensitive development ruins their quality of life; they are just stuck with it.

Every development is different. Paradoxically, the tick-a-box system proposed by the minister is much better suited to the quarter-acre block. When almost every house was situated in the middle of a large yard and all the neighbours were single-storey, issues such as overshadowing and hammerhead developments were much less important. High-density housing means that every development decision made by the neighbours has more impact, and development choices for each site become more varied and more complex.

The quasi-jury system of development assessment panels, which brings a mixture of professionals and lay people together to consider development proposals, may not be perfect but it is possibly the best tool we have. It is cumbersome and slow sometimes, but I believe that local councils are best placed to streamline development applications in a way that suits their area rather than be dictated to by a one-size-fits-all system devised by distant bureaucrats.

The case of Unley city council, which is able to achieve higher population density than those envisaged by the state government, is a case in point. I understand, however, that the minister is causing a degree of frustration by refusing to approve the Unley council's DPA. I know that sometimes councils need a push, but that can be done by mandating a default system based on broad performance indicators and stepping in only when councils fail to meet those targets.

This brings me to the issue of residents' rights. People should have a right to be consulted about matters that affect them, but this legislation will remove any expectation of that. The regulations will almost certainly further diminish those rights simply because they reduce the possibility of representation and redress at the council level and reduce the greatest sensitivity that often results from local knowledge.

I note the comments of the Hon. Mark Parnell in relation to the requirements in this bill that state that councils must not consult. Only a fortnight ago the minister and I and the Hon. David Ridgway were at a Planning Institute breakfast where the annual report card on government was presented. The area in which this government almost failed and where it achieved the lowest rating was in respect of consultation. What this legislation does is to enshrine even less consultation. The mistakes are already there in the past in respect of failing to consult, and this legislation simply makes that worse.

I am also concerned about the selective use of evidence to justify this initiative. The report provided with this legislation put forward what I assume to be the strongest arguments for this bill and the regulations. There are two points to be made about this, and the first is that all the arguments are economic. Sustainability, a sense of community, safety for elderly people and all of the other aspects of life that can be affected by development are not seen as relevant; something like sunshine is not really part of it.

Secondly, the figures that are given to back this position seem excessively positive. The changes are purported to produce a benefit of $75.6 million to applicants and local government—not $75.4 million but $75.6 million. The claimed financial benefits will include $16.6 million for private citizens and $49.6 million to industry. The figures are provided with such precision, such incredible precision, that I think it is almost impossible precision.

It is claimed by the government that the gross state product will rise by $3.4 billion to $4.9 billion over five years as a consequence of this legislation. That is an extraordinary claim. Of course, according to the government, there will be no downside, no amenity will be lost, no solar panels overshadowed, and there will be no increase in neighbourhood disputes. I suppose we should say that pigs might fly.

If one believes what the government has to say, we should be rejoicing but, unfortunately, these figures and claims represent an extravagant attempt to gild the lily. The powers in this bill rest on the regulation. As I said, we received our first copy yesterday afternoon and our updated copy just half an hour ago.

If the government intends to push this bill through by the end of the week, it means that, tomorrow morning, those of us who do believe in consultation will have to try to get copies of that bill, which we do not have in electronic form, and get them out to all voluntary community groups. It assumes, therefore, that all such groups will be able to get together tomorrow night in their respective suburbs and have meetings to discuss the regulations of this residential code. That is absolutely unfeasible. You cannot turn around and say to voluntary groups, 'You must do this under the conditions and timeline that this government sets.'

I believe that the model developed by the government, as shown in this bill, is both underdone and oversold. We should recognise that the piper calling the tune is the development industry, and we in this parliament ought not to be at its beck and call. The devil will be in the detail and the implementation of the regulations, and I think there will be a lot of devil here.

In attempting to solve problems such as a shortage of planners in local government, I fear that this new approach will create a new set of problems, and it is increasingly undemocratic. At this stage, I indicate guarded support for the second reading, provided the government does not push it beyond that. I know that the government has said from the outset, when the planning review reported, that it intended that all of this should be in place in March; that can still happen.

We can still have the opportunity, over the next two months, to consult with community groups and then, when parliament resumes in February, there is a month in which the bill can get through this place and the House of Assembly, and the government can still effectively have its own way in getting the new structures in place by March. I appeal to the government to see the sense in having that sort of consultation and not forcing this legislation through this week.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (21:53): I rise on behalf of the opposition to speak to this bill, on which a number of comments have been made by previous speakers, and I hope I do not cover too much of the ground already covered.

The Hon. Sandra Kanck: If you repeat it we'll like it.

The Hon. D.W. RIDGWAY: I am sure; and I can identify whose comment it was, and you can clap and cheer. As members who spoke prior to me said, the actual amendment bill is a relatively small bill containing only a handful of amendments which, as the Hon. Mark Parnell said, are enabling provisions for the residential code, which has been the subject of much discussion.

It is interesting to look back at a little history of the planning review. I have to admit, as the shadow minister for urban development and planning, that it became apparent to me that the planning system was probably in need of a major review and overhaul. I have to say that I was hoping that the government would not do anything so that our policy going to the next election would be that we would undertake a significant review. I was, I guess, a little annoyed, but also pleased from the state's perspective that the government had announced its review.

On Tuesday 19 June 2007, in a ministerial statement, the minister announced that he was instigating his planning review. I certainly will not read all his ministerial statement, but at one point he stated:

Parliamentary secretary to the Premier, Michael O'Brien...will chair the steering committee. The committee membership will include a number of people, including Michael Hickinbotham, Fiona Roche, Grant Belchamber...Tim Jackson, Stuart Mosely...and Jamie Botten.

He went on to say:

The steering committee will report progressively to the government during the course of the review to ensure early adoption and implementation of recommendations for reform. It is expected that the steering committee will complete its work by the end of this year.

That was in 2007, so I think that all members of this chamber expected the committee to report by the end of that year. I have not been able to find it in hard copy (but I have a very good memory) and I think that on another occasion (it may well have been in response to a question or a Dorothy Dixer from one of his own team) the minister said that the steering committee would report by the end of 2007 and that legislation, if required, would be introduced early in 2008 and be through the parliament and in place by, roughly, 1 July 2008. Clearly, in this instance, the government has not kept to its time frame.

It is interesting to note that today the minister issued a press release in relation to this code, entitled 'Residential development code to slash red tape'. He stated that they released the draft code in June, which was when they had hoped initially to have all the recommendations from the steering committee in place. They released the draft code in June, and that is what the number of stakeholders, including the Local Government Association and the development industry, understood. Members may have just seen me on the phone; I was speaking to the member for Unley, who had just been to a focus group, the Save our Suburbs group. The government consulted with a whole range of stakeholders in the community on this draft residential code.

The minister's press release today states that the significant changes they have made as a result of this consultation should allay many of the legitimate concerns raised by local government, industry and community groups in the five months since the discussion draft of the code was first circulated for public consultation. He goes on to say that the final version of the residential code is to be established through new regulations that rely on amendments to the Development Act that are before parliament, which are the ones we are talking about today. He goes on to say:

To ensure an informed debate on these much-needed reforms, the Government is also providing MPs with a draft of the regulations required to enforce the Residential Development Code.

Members have said this evening that they have received a copy of that release, which was produced at 4.51 today, and it is interesting that we get it in the last week of sitting. We have private members' business tomorrow, and we sit at 11 o'clock on Thursday morning. We have the initial draft, when the government was happy to consult for 5½ months, but we are now getting not much more than 5½ minutes to consult on this final code.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: The minister asks, 'What other bill have we got the regulations on?' From discussions I have had with the minister, he was well aware that, from the opposition's perspective, he has its in-principle support; in fact, many of the planning review intentions are well supported by the Liberal Party. We released a policy principles document earlier this year, before the government announced a lot of its planning initiatives.

I have made the minister well aware from day one that the final draft of the code would need to be in our hands, and those of the industry players and the community groups, so that there was some comfort that we would actually have a workable document.

I think it is worth putting on the record that I spoke to the minister as late as last Wednesday, when he assured me that I would have something by Thursday; however, it did not turn up at that time. I was a bit caught up with other things on Friday, so I did not contact his office, but I did so yesterday and was advised, 'Yes, we had to do a bit of drafting. We actually had two versions on Friday, but the person who drafted them was not here and we were not sure which one to give you.' Yesterday, I was provided with a copy (version No. 7), on which was stamped 'Preliminary: subject to change'. This afternoon we get version No. 10, barely 24 hours after I received version No. 7. I guess, on the one hand, that demonstrates that the minister's staff and parliamentary counsel who are drafting this are working at fever pitch to try to come up with the final document.

What it indicates, however, is the uncertainty over the past 24 hours, even within the minister's staff and parliamentary counsel—about the exact wording and what this document should look like. Even the minister's advisers who spoke to me at 5.30 yesterday afternoon were saying that some of the new drafting, some of the new clauses that have been included in relation to the previous consultation needed to be, if you like, workshopped or tested to make sure that they were actually going to deliver the outcome that the government intended.

The minister knows, and the opposition made a public statement a couple of weeks ago, that there were some key points that we would like to see in the code, which related to heritage, character, set-back and allotment size. I have only just received this document and, like the Hon. Mark Parnell, I have had a quick flick through it. It probably addresses a large number of the concerns that the opposition had, but I have no idea. I am not a planning expert and I do not have the benefit of years of planning and legal work that the Hon. Mark Parnell has had, so I need to make sure that this document goes out to all stakeholders so that we can get some comment as to whether it has covered the concerns that we have.

We have a number of members of the House of Assembly who live in and represent electorates that will be impacted, especially the electorates of Unley, Bragg and Burnside, and our candidates in some of the other seats are quite concerned that this new residential code could impact upon their particular patch, so they, in particular, want to circulate it to the stakeholders in their community.

It is interesting that yesterday afternoon I received a copy. The Hon. Mark Parnell, and I think the Hon. Sandra Kanck, stated that they received a copy—I think it was version No. 7—but I do not believe that industry or the Local Government Association received that copy. I know that—

The Hon. P. Holloway: They had the draft. We had been consulting on the draft. They had three months to comment on the initial draft. This is the outcome of it.

The Hon. D.W. RIDGWAY: The minister interjects that they had three months to comment on the initial draft. I have a copy of the next draft that the minister's staff provided to me and I rang some of those stakeholders—

The Hon. P. Holloway: Name another bill where you have been given regulations to look at in this detail. Name one!

The Hon. D.W. RIDGWAY: The minister interjects: name another bill.

The PRESIDENT: The minister is out of order. The Hon. Mr Ridgway will not respond to interjections.

The Hon. D.W. RIDGWAY: Exactly. However, I will refer to his interjection because he gave me an undertaking that we would receive what we would call the final workable document for the residential code. It is, if you like, the nuts and bolts of this planning reform. I know it is unusual, and in the past he has resisted, and I thank the minister and his staff for making it available. What I am disappointed with is that yesterday, when I had version No. 7, I thought I would ring some of the industry stakeholders. They had not seen it, and I could not tell whether any of the concerns that they had raised in their submissions to me, or copies of the submissions to the government that I had seen, had been dealt with.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: The minister is interjecting again. The Hon. Sandra Kanck said at the Planning Institute report card meeting that the government was the worst on consultation in the nation, and clearly this demonstrates that it is. It is normally the other way around: that industry, the Local Government Association and other stakeholders receive it, and the opposition is the last to receive it. Often the Independents and minor parties will receive it so that the government can perhaps lobby them and get their position, and we are the last to get it.

Thankfully, yesterday we were probably the first to get it, and I do appreciate that; however, nobody else had it, and we were uncertain of what industry and stakeholders wanted. I warned the minister privately, and I do so now publicly, that we needed to have this in advance for the stakeholders to be comfortable, otherwise he would have little or no chance of getting it through in the timeframe that he would like.

I will put on the record that the Local Government Association has up on its website a report on the road test, because they road-tested a lot of this residential code, which I think was a sensible way to go—to get out among the councils and put it into practice to see how it would actually work. My understanding is that this is now a public document and is on the Local Government Association's website.

I refer members to page 15 under the heading 'Findings and industry comments' and, in particular, the concerns. I will just list a few of them, as follows:

concerns that councils might change business practice to frustrate the objectives of the reforms and the provisions regarding delegations should be reviewed;

concerns were expressed that the Victorian code (the VIC code, which is the one that this has been modelled on) became unmanageable because too many standards were introduced, and the South Australian system should not become so convoluted;

concerns that, if the built form is approved under the code, an applicant would still have to run the gauntlet on land division applications and the link between a code approval and the eventual certificates of title should be created;

a blanket approach to design standards might dismiss the context of locality, but applying character was not generally considered a solution to the failure to consider streetscapes.

the code did not apply to enough zones;

the code does not enforce quality of build outcomes and sets design benchmarks that are too low;

sustainability is not addressed by the code—

That is something that the Hon. Mark Parnell raised. It also stated:

Limited assessment applications need to be very simple, otherwise builders will not know what to expect and confidence will be undermined.

It then goes on with some other comments and, in particular, a number of conclusions. I will read them out, because I think it is important that they are on the record so that people realise that there is some confusion—this is draft No. 10—and that is why we need to consult on it more widely. These are the conclusions from the Local Government Association report:

The following comments pertain to matters that should be considered further to ensure that the objectives associated with streamlining the development assessment system are achieved.

They are as follows:

A. A suitable replacement fee should be determined for BRCO and code assessments.

B. A specific proactive information program is required to ensure that information requirements for BRCO and code applications are understood by applicants and providers of advice to applicants.

C. Suggested amendments to the development regulations only enabling councils to request further information once should be reviewed in light of the road test findings.

D. The code should be redrafted to contain three sections tailored to (i) dwellings, (ii) dwelling additions, and (iii) outbuildings.

E. The redrafting of the code into three sections should also tailor the information requirements to the complexity of the applications addressed by each section.

F. The development application form should be amended to require applicants to nominate the type of assessment path they seek to be undertaken by the relevant authority (hence streamlining fee payment and information provision).

G. The code redraft should take into account the matters raised in Appendix 1 and more generally in section 4(c)...of this report and ensure the standards are unambiguous in their intent and use.

H. A centralised website should be established and maintained clearly outlining the new system, a flow chart of the assessment process, the information requirements, the time frames and the costs and benefits to ensure that applicants make best use of the system improvements.

I. Training and support programs should be provided in relation to the new assessment process and internal system and resource changes for councils and the building industry.

J. Funding programs for system improvement for regional groups of councils should be considered to develop best practice internal assessment processes and systems.

K. Significant consideration of the complexities of the limited assessment path is required and a trial of the system should be undertaken before formally introducing this element of the reform package...

L. Delaying the introduction of limited assessment for dwelling additions and alterations should be considered until (a) the demand for this assessment path is determined and/or (b) September 2009 to coincide with the...detached, semi-detached and row dwellings into the code.

M. Consistency between the code and the BRCO and the scope of BRCO developments should be increased where possible...

N. A review of discretionary state government agency referrals should occur to avoid uncertainty in the assessment of code-type applications.

O. Systems will need to be developed by Planning SA to ensure that the code adapts simultaneously to changes to the zones in development plans.

There are three more, and I will not take much more time. It continues:

P. A review of the development regulation system indicators should be undertaken to implement new indicators to measure the consequential changes brought about by the reform package.

Q. Consideration of how and when relevant planning matters should be assessed is required in relation to code-type applications as required (e.g. assessment of waste control systems, land management agreements, significant trees on adjoining land, heritage items adjoining land and linkage of subsequent land division applications).

R. Further road testing should occur during the introduction of the code of dwelling additions and alterations on outbuildings—

That will be on 1 March 2009, to make sure that there are no further problems with this code before its introduction.

A whole range of other queries are outlined in that report, but it is available on the Local Government Association's website. Clearly it indicates that there is significant concern in the community. There is broad support—and certainly the Liberal Party supports it—and most of the stakeholders I have spoken to support the concept of a residential code. Even the Hon. Mark Parnell—not in the broad sense as it appears—certainly has some support for a residential code. He spoke of the Planning Institute of Australia's press release. I attended, along with the Hon. Mark Parnell, the gathering on the steps of the Parliament and indicated to the assembled group that we supported a residential code, but not the one the government had released in draft form, and that we would be looking to make significant changes to it to protect what we see as important parts of what makes Adelaide special: our character suburbs, our heritage, our setback, and all the things that are important in those areas.

We think that it is important for local councils to determine the areas they see as important to preserve, because they are the local representatives that are elected to make that decision on the ground. On the other hand, I am sure there are areas in every council that are right for some sort of renewal, whether higher density or better more modern dwellings.

I live in Mitcham and there has been some changes in the short time I have be there, where we have seen urban infill and renewal and most of it has been quite sympathetic to the surrounding character of the suburbs. There are some buildings in that area that are the cream brick, two-storey block of flats—developments which are not in keeping with the general character of the suburb and, quite frankly, could be demolished and something with a similar population density built there that is more in keeping with the suburb.

There are a number of concerns and today at 1.59pm the Hon. Mark Parnell tabled some amendments to this bill. All members know that the opposition is not a one man band, and that is in fact a great asset; but the parties that have single representatives, like the Hons Mark Parnell, Ann Bressington, John Darley and Sandra Kanck, largely can make decisions in half a day on particular amendments. Everybody knows the opposition has a rigorous process of looking at these issues, whether it be amendments or further consultations, and a committee system whereby we evaluate things and make recommendations to our party room. Those party room meetings are always held on Tuesdays, and that is the problem with leaving legislation to this late stage.

Although this legislation is not complex in itself, with the code tacked on the end of it, and now with the amendments moved by the Hon. Mark Parnell, the opposition finds itself in the position where it does not have another meeting scheduled and does not have the capacity to internally evaluate the Hon. Mark Parnell's amendments nor get feedback from industry stakeholders to be able to debate it in the next day and a half.

I know that there will be this cry if we do not pass the bill this week that the opposition is taking control out of the government's hands, frustrating the parliamentary process. I can see the minister now in front of the TV cameras, blaming us and other members of the Legislative Council for frustrating the parliamentary process. Clearly, it is almost with contempt that the government holds this chamber, to give us this document just a day or so before we get up.

I will throw an opportunity to the minister opposite. We have an optional sitting week scheduled for next week and the opposition is more than happy to do that—you laugh, Mr President, but this is a serious piece of legislation—if the government is serious about getting it through. It has been interesting to hear some of the feedback from industry groups. I suspect little phone calls went out and panic buttons were pressed. I was contacted by industry groups saying, 'How dare you frustrate this. We want this through.' I said, 'Hang on, this is only going through the Legislative Council this week. It is not on the House of Assembly Notice Paper, so it is not going through parliament until 2009.'

But the message that was sent out—and I am not sure by whom—to some of the industry players was that the opposition is playing games and will not allow this to pass until next year—and then it will be 12 months from the election and we will be in election mode and the government will not have the courage to pursue it and it will all disappear and not happen. If that has come from the government, it is an outrageous way to try to influence the parliamentary process—by giving industry people the wrong information and getting them to ring us to put pressure on us.

I have given the facts to the industry people who have spoken to me. They did not have the document that I had, so they were quite surprised and quite supportive when I gave them the facts, and they believe we should not be processing this legislation this week. We will be happy to come back, probably for only one day next week, whether it is Tuesday, Wednesday or Thursday. That will give the opposition the opportunity and time to do what it needs to do in looking at the Hon. Mark Parnell's amendments and hopefully get some sensible feedback from the stakeholders, because we have to get it out. It is past 10 tonight, and we have to get it out tomorrow morning. They have to be in a position to evaluate it and check that it fits the requirements of the stakeholders. I am sure there will be areas that do not.

The Hon. P. Holloway: If it is amended we will have to do it all again, anyway.

The Hon. D.W. RIDGWAY: I have told the minister and his advisers we all understand there will be mild tweaking, but to go from version 7 one day to version 10 in about 24 hours—

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: The minister says that basically the parameters have not changed, but I have not had a chance to compare it. That is the hypocrisy of his comments. We received this document only at the last minute. As I said before, I warned the minister that we needed to have it in advance. I am sure there have been some difficulties in getting the information together and drafting it, but I did warn him that it would be a problem if we did not see it in advance. I know it is unusual to see regulations prior to passing a piece of legislation.

I have not spoken to the clauses, but I will do so at a later date. However, I indicate to the minister that we are prepared to sit one of the days next week or how ever many days it takes. I do not think that is an unreasonable demand to make—an offer, if you like—to facilitate the government's time frame. If the government is not prepared to sit next week, we will deal with this in the first week of February 2009. Given that I have not made any comments on the bill itself, I now seek leave to conclude my remarks later.

Leave granted; debate adjourned.


At 22:19 the council adjourned until Wednesday 26 November 2008 at 11:00.


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