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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-08 Daily Xml
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DEVELOPMENT (MAJOR DEVELOPMENTS) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:32): Obtained leave and introduced a bill for an act to amend the Development Act 1993. Read a first time.

Second Reading

The Hon. M. PARNELL (16:32): I move:

That this bill be now read a second time.

This is a very simple bill, which seeks to amend that part of the Development Act that deals with major projects. The operative provision of the bill is only a couple of lines long, so I will just read it out. Basically, my bill says that if the minister (the Minister for Urban Development and Planning) proposes to make a declaration under this section (the declaration here is a declaration that something is a major development or a major project) in respect of a development or a project that will, if the development or project succeeds, be situated wholly or partly within the area of a council, the minister must consult with the council before making the declaration. So, the bill is saying that, before a minister declares something a major project, the minister must consult with the local council.

To explain why that is important, I need to go back to some basic principles. The first thing to note is that, under our Development Act, the decision whether or not to declare something a major project rests with the minister. The minister simply has to be of the opinion that a development is of major social, economic or environmental significance and that, as a result, a significant level of assessment is required and, having formed that view, the minister simply declares it to be a major project. That is a different regime to that which exists in other states. In some states they have a list of the type of developments that would automatically trigger a major project, for example, oil refineries, chemical works and large proposals. Here it is at the whim of the minister and it is an unfettered discretion.

There are good reasons why some developments should be declared major projects. The main good reason is that the major project declaration is the only way to trigger an environmental impact statement. In other words, the highest level of assessment, the EIS, cannot be triggered by a local council but only by the minister. For genuinely big projects, with genuinely serious implications for the environment, the economy or for society, it is appropriate that the minister declare something a major project.

However, there are a range of what I would call very poor reasons why some ministers declare certain projects to be major projects. One would be to avoid having to deal with a difficult local council. Another would be that the zoning for the land is completely inappropriate for the type of development proposed. Another reason would be that the project is so controversial that they know the community will try to appeal against it, so they short circuit the project and make it bullet proof or appeal proof. They are poor reasons for declaring something a major project.

The trigger for my introducing this bill has been some little while coming. We now find a number of case studies that lead me to the conclusion that we need law reform in this area. The first situation is that in the Unley council, where the government has declared a major project for the site across Goodwood Road from the showgrounds. To read a couple of sentences from The Advertiser of 17 December last year, under the heading '$300 million makeover for Goodwood Road at Wayville', the article by Russell Emmerson states:

The state government has bypassed Unley council's planning processes by directly granting major development status to a $300 million project at Wayville. The project would involve a complete makeover for the streetscape opposite the Adelaide showgrounds, which itself has undergone a significant upgrade over the past 18 months. The Wayville [as it is being styled] development proposes a boutique hotel, shopping mall, apartments, retirement living units and underground parking. The large site combines multiple properties between 43 and 51 Goodwood Road at Wayville between Young Street and Le Hunte Street that are owned or controlled by the group. It will be a mixed use development of six above-ground levels with retail shops, food outlets, a supermarket, boutique hotel and apartments, medical consulting rooms and retirement village, with more than 100 units with courtyards and common areas and three basement levels for car parking with almost 900 spaces.

The article goes on to describe the project. It may well be that it is a big project and maybe it is deserving of major project status. I do not need to go into the merits of it, but it concerns me that the local council was not consulted. The local council will have to deal with this development if it goes ahead, it will have to service the development as it is in its municipality, and it will have a major impact on the council in terms of extra residents, visitors and the provision of services, yet it was not consulted. The article by Russell Emmerson goes on:

The minister can declare a project a major development where he or she believes it is appropriate or necessary for its proper assessment, but it is usually linked to contentious projects which have run afoul of council planning process, such as the Makris Group's $150 million Le Cornu development in North Adelaide. City of Unley mayor, Richard Thorne, said no application had been lodged and the developer had only had preliminary discussions with council planners.

Quoting the mayor, the article continues:

'They (the developers) don't want to have to deal with council or development applications; they just want to get something up and going, but there has to be some democracy', he said. 'We would have been quite happy for Paul Holloway to get in touch and then we could have discussed it.'

So, that is the crux of my bill. My bill says that, before the minister makes the declaration of a major project, he or she should consult with the council.

Unley council has issued a press release of its own in relation to this development, and I want to refer to a small part of that because it provides a lot of the argument as to why this bill is necessary. The media release is dated 18 December 2008 and headed 'Concern raised over the granting of the major project status for the Wayville development'. It states:

Unley council is disappointed this developer has requested the state government to grant major [project] status to this proposed Goodwood Road development and even more disappointed that the state government has apparently provided immediate major status to this proposed project without prior reference or discussion with Unley council,' Mayor Thorne said.

Mayor Thorne said: 'There has been neither a development application lodged nor a refusal of development so there is no justification for state government intervention by awarding major status to bypass the council.

We have had a good and successful relationship with this developer who has lodged and had two sizeable projects approved without any problems by the council; one on King William Road, Hyde Park and another, corner of Unley Road Wattle Street.

There have been preliminary discussions with our planning department and myself about possible redevelopment of this Wayville site. During this we advised that the site is ripe for development and there would be flexibility about the high density suggested because of the bulk and scale of the recently built Goyder pavilion opposite the Wayville Showgrounds.

In these circumstances it is hasty and unnecessary for the state government to grant major development status without prior consultation with the council and I am sure this will not be appreciated by councillors or residents.

We believe this location is suitable for retirement village and/or a hotel to service the showgrounds and commercial development but we have not been given a go by this unprecedented intervention.

The City of Unley's media release then lists five problems that it sees with the way the government has proceeded. First, there are no appeal rights for residents. As members may know, if someone is proposing a development that is out of sync with the relevant zoning, it will probably be a noncomplying development, which means that if it is assessed on its merits it can also be challenged on its merits. Declaring something a major project basically makes a project bullet proof: no-one is allowed to appeal it. That is one of the reasons developers like major project status; it gives them that security.

The second reason the council gave is that it will receive no building fees. In other words, it will not get the application fee for assessing the development. Members might think that is just the council being money-grabbing, but the council will still have to monitor this development. It will still have to devote considerable staff, time and resources to ensuring that the development fits in with the infrastructure fabric of the council. It will have to service it with rubbish collections and roads, yet will receive no recompense from the developer at the assessment stage.

The third reason is that limited consultation with the community will occur. Under a major project declaration there is a form of community consultation. An EIS, or similar, is produced and people have the right to comment on it. However, there is usually less opportunity than if the council was conducting it itself.

The fourth problem the council sees is that the development will not be assessed against the development plan. This in some ways goes to the heart of the problem with the major project declaration because, as well as making it bullet proof and bypassing the council, major project status also enables the government and the developer to bypass the relevant zoning. That is because under the Development Act the zoning or the development plan for the area is one of a number of factors that has to be taken into account but it is not conclusive.

If you go through the normal process, you have to make sure the development is appropriate for the zone and, if it is not appropriate, you fix up the zoning or say no to the development. This is a way of basically pretending that the zoning does not exist. It undermines proper planning. The fifth reason that the council gives as to why this is a problem is stated as follows:

We would have preferred coordinated development of the area rather than ad hoc intervention by the state government.

That also is one of the reasons why developers like it: they do not necessarily care about the overall development of an area or a municipality; they just want their project up. However, the responsibility of local councils is to make sure that developments are properly integrated, so undermining local councils undermines that integration.

The issue of the Unley development was discussed on ABC radio on 4 March on the Abraham and Bevan show on 891. At the conclusion of a discussion, which I will not go through because it was basically the mayor repeating some of the problems that I have just identified, Matthew Abraham says:

It's an interesting one to watch and I'm sure many councils and ratepayers will be watching as well...Thank you for talking to 891 Mornings.

The mayor concludes:

That's okay. I think it's a bit over the top...because we haven't been given a chance. A number of mayors are concerned that this has been more prevalent. We've just had one over at Stansbury for a marina which the council and residents weren't even consulted or anything and it's just gone major development status. It seems to be happening far too frequently.

I will come back in a second to the Stansbury marina because I had the great pleasure of visiting that site on Monday. Matthew Abraham concludes:

Richard...thank you...and Minister Paul Holloway is unavailable this morning but a spokesman says the Minister is comfortable with the decision to grant the hotel on Goodwood Road major project status.

I should hope he is comfortable: he made the decision. It would be quite remarkable if the minister were not comfortable with a decision that he has so recently made.

The mayor mentioned Stansbury, where the Stansbury marina project has been declared a major project. You can get details from the Planning SA website but, in a nutshell, it involves an area of not pristine but undeveloped coastline. It is an area of around 600 metres by 800 metres where there are a few fishing boats and a couple of old oyster leases where it is proposed to dump millions of tonnes of rock and soil that have been carted from a few kilometres away into the marine environment, on top of the leafy sea dragons, and to then build 200 houses on what was marine environment and which will be reclaimed land for a marina.

This is to occur in an environment where the marina just down the road at Port Vincent, which has been there for six or seven years, is still about three-quarters empty. It is a project that has very little merit and really, in my view, does not deserve to be seriously considered, but that is not the question. The question is about the process that the minister went through. Did the minister consult with the local council? No; the local council finds out that the project has been declared a major project when the media contacts council members. They read it in the paper or they hear it on the radio.

People might think, 'Well, if it's offshore then it's probably not in the council's area.' That is not true, because the access road and the beach up to the high watermark is in the council area and, if the marina is approved, it will then be incorporated into the council area. It is the key player here. The council is going to have to manage the consequences of a marina if it goes ahead and yet it was not even consulted before the major project declaration was granted.

The third and final example that I will give is the case of Victor Harbor and the Makris shopping centre proposal on the outskirts of Victor. When that was first declared a major project, I recall that my first reaction was, 'That's odd. I thought the council was part way through a comprehensive planning exercise to work out where new shopping centres should be built.' In fact, the council was halfway through that process, and had identified where the shopping centres should be built, but it was not the Makris land. That did not get to the top of the list as the best spot for a shopping centre, so Makris goes to the state government and gets it declared a major project.

Two things flow from that. First of all, it undermines the work that the council had been doing over several years: a thorough study of the retail shopping needs of Fleurieu Peninsula and where shopping centres should be built, so it basically undervalues that work, but also it completely sidelines the council from the assessment process for this new supermarket. I do not need to go into the merits of whether or not that is a good project, but the point is that the council should not find out about these things through the media: it should find out because the minister consults.

In summary, I have given the reasons why I believe the system is not currently working. An amendment like this should not really be necessary, because you would expect that ministers would be working with local councils, which still have overwhelming responsibility for development but, in the absence of governments doing the right thing, I think we do need law reform.

My amendment simply provides that a minister cannot declare a major project without consulting with the local council. I have not specified the form of the consultation; I have not specified a period of time over which it could take place. At the very minimum I guess it might be the minister ringing up the mayor. I would think that is not the appropriate way for consultation with the council to work; I would expect it to be in writing, and I would expect that there be an opportunity for dialogue as well.

I am not seeking to be overly prescriptive; I am simply seeking to put into the legislation the principle that local councils should not be insulted by planning ministers declaring major projects without first consulting with the council. I commend the bill to the council.

Debate adjourned on motion of Hon. J.M. Gazzola.

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