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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-15 Daily Xml
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DEVELOPMENT (MAJOR DEVELOPMENTS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 8 April 2009. Page 1928.)

The Hon. CARMEL ZOLLO (20:33): I respond on behalf of the government to this legislation which provides that the Minister for Planning and Urban Development consult with local councils before a decision is made to declare a development as a major development or project. The government believes that the proposed legislation is unworkable for a number of reasons which I will outline.

First, the proposal by the Hon. Mark Parnell to require the minister to consult with local councils before declaring as major a development or project will cause a number of issues for the Department of Planning and Local Government and for the proponents. The honourable member has not indicated how the consultation would occur, but it is assumed that it would need to be by written communication. Councils usually meet on a monthly basis, and for the minister to receive a response from council may delay the declaration of a project by, possibly, up to six to eight weeks.

Whenever a consultation clause is inserted in a bill, and someone has an anti-development stance, it can be open to a number of protracted challenges. All sorts of reasons can be put forward as challenges, and they can end up being nothing but a delaying tactic. There are ramifications, in terms of delays, to the commencement of the major development project process and, for the proponents, delays and potential extra holding costs waiting for a response from the council. This would not support the government's red tape reduction programs and could result in significant delay. Proponents may also have issues with confidentiality, having the councils involved before declaration is made. Proponents could be reluctant to provide detailed information about a proposed development if they are concurrently purchasing options on land or have a competing interest with another developer.

The current legislation does not prelude the minister seeking informal advice from either the elected members or council staff, if he so wishes. I understand that the minister does do just that sometimes. The minister always informs the council of his decision to declare a development or project as major and invites them to be part of the formal assessment process for these proposals before an assessment report is forwarded to the minister and cabinet for consideration and before a decision is made by the government under section 48 of the act.

The current act provisions are a reflection of the nationally agreed ANZECC (Australian New Zealand Environment Conservation Council) guidelines for environmental impact assessment, signed by the states, territories and commonwealth in the early 1990s. Some states do consult with councils and/or other agencies before declaration occurs; some do not. In most cases consultation is an administrative act not required under legislation.

It is expected that, with the establishment of the new Department of Planning and Local Government, ties with local government will be strengthened as part of that process. It is not intended to marginalise council input in the planning process—quite the reverse.

For all the reasons I have just outlined, the government does not support the honourable member's proposed legislation. The government believes that considered legislation needs to be applied with every opportunity to succeed in its objectives. Our current legislation does just that, and I urge honourable members to consider the arguments I have just put before the chamber and not support the bill.

The Hon. A. BRESSINGTON (20:37): I indicate that I will support the Hon. Mark Parnell's Development (Major Developments) Amendment Bill. This is a relatively minor amendment to what is comparatively an extensive act, which seeks to require the minister to consult with the local council before declaring a development a major development under section 46 of the Development Act 1993. That the local council be consulted prior to a declaration being made should be, to my mind, due process, especially considering that it is the council that is required to service the facility once the development is complete. It is local councils that are charged with developing the area's development plan and consequent zoning, and to bypass this and make a declaration without consideration is unnecessarily impetuous.

While I recognise that the local council, along with other stakeholders, is given the opportunity to put forward its position under the consultation required by the environmental impact statement process, specifically by section 46B(5)(a)(ii), and required to be kept in the loop by the minister under section 46B(12), this opportunity follows the declaration by the minister. Logic and past examples show that, if a council is to have a meaningful impact on the trajectory of a major declaration, consultation must come prior to the minister publicly committing himself or herself.

However, with that said, I question what practical effect this amendment could actually have. I cannot recall a declaration that has not been opposed by the local community, at least in a minor way, earning the major development provision the deserving reputation of the unstoppable bulldozer.

As the honourable member made clear when introducing this bill, a declaration under section 46 is solely at the discretion of the minister, requiring only that he or she be satisfied that the development is of 'major environmental, social or economic importance'—a purely subjective assessment. While I am sure scenarios can be envisaged in which the minister has overlooked some crucial detail and, when alerted by the local council, the intention to declare is altered or withdrawn, under the aforementioned subjective requisites I find that I am not so imaginative.

The member also made clear that a declaration under section 46 is, by the indemnity provided by section 48E, 'bulletproof'. While I am not suggesting that for this reason the minister will not comply with the amendment, I do fear that, due to the ambiguity of the proposed amendment, particularly on what form the consultation must take and the weight to be given to it, it may simply be a 'call to the mayor' or a basic letter of intention. This may be viewed as insufficient by a court but, due to section 48E, we will never know. However, despite these reservations, I support the bill, and it is my hope that, if it is successful, the minister will comply with the full extent of its intent.

Debate adjourned on motion of Hon. S.G. Wade.

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