HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-12-02 Daily Xml
Contents
Pdf Xml

DEVELOPMENT (PLANNING AND DEVELOPMENT REVIEW) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 27 November 2008. Page 1051.)

Clause 1.

The Hon. P. HOLLOWAY: It might help the committee if I put some information on the record. The protection of heritage and the uniqueness of Adelaide suburbs is important to this government. This is the reason why the government did not adopt all the recommendations of the planning and development review steering committee, choosing to exempt historic conservation zones and heritage items from the application of the proposed residential code in recognition that development in these areas is sensitive and must be assessed on qualitative criteria. Outside of heritage areas, it is important to balance the reasonable expectation of landowners to develop their land and the public benefit derived from the maintenance of existing character-laden streetscapes. After careful consideration of the public submissions received over the three-month consultation process, the residential code has been significantly modified to ensure that this balance is fair, allowing home owners to develop their properties without an unreasonable impact on their neighbours.

The government proposes to introduce the residential code from 1 March 2009 for alterations and additions to existing homes and ancillary structures in most areas, excluding designated heritage areas and places. It also proposes, in addition to the draft regulations, that alterations and additions be restricted to single-storey development in order to ensure that streetscapes are not adversely impacted upon. The code will only apply to new homes from 1 March 2009 in those areas nominated by local councils.

Between now and 31 March 2009, councils will be able to nominate to me those areas which they consider to have character and which can be the subject of further work on how the development assessment process can be streamlined for landowners in these areas. Should this bill pass in this place, I intend to release a suite of documents in the near future to assist councils in preparing their nominations. Once nominations are made, I will set a timetable for each council to undertake a more detailed assessment of their nominated areas—depending on the extent of those areas—and to submit to me their views on the application of the code to these areas.

During this transitional period the code will not apply to any applications for new homes in the nominated areas without the consent of the local council. This process will allow the introduction of these important reforms for those seeking to extend their homes, or to build a shed or similar in their backyards as soon as possible but will also allow councils the opportunity to consider their nominated character areas in more depth.

It may assist the committee if at this stage I make some comments on the LGA's submission on the bill. The LGA made a submission on the draft bill and comment can be made on these as follows. The LGA raised concern about the use of the word 'minor' in clause 5(2)(1b). The concept of 'minor' in development legislation is not new, and, in all instances, including here, the power lies with the assessing authority to determine whether an application is one meeting this clause.

For example, section 36(2)(b)(i)(A) allows a relevant authority to excuse a minor departure from compliance with the building rules. Section 49(7d) and section 49A(7d) allows the Development Assessment Commission to dispense with certain procedures where it considers development to be minor. Regulation 17(6) allows the relevant authority to dispense with the requirement for an applicant to provide a statement of intent in prescribed circumstances where the relevant authority considers the application to be of a minor nature.

Regulation 32(2) allows the relevant authority to determine a development to be category 1 despite the fact that it is an activity specified under schedule 22 where the authority considers it is of a minor nature. Schedule 8, clause 1 of the regulation allows the authority to determine that a referral to the Coast Protection Board is not needed for prescribed development of a minor nature. They are all examples currently in the act where 'minor' applies. The purpose of clause 5(2) is to allow for those small variations—smaller than what would be encompassed by limited assessment in paragraph (1c)—to be assessed as complying development rather than a small variation falling back to the merit assessment.

An example of this might be a situation where an existing home is located 890 millimetres from a boundary (suppose it was the old Imperial measure of 3 feet), and the owner is wanting to build a family room extension with a side boundary setback consistent with the existing home. The departure here is a mere 10 millimetres from the code. If the building was 890 millimetres, under the new code it would have to be 10 millimetres back from the current alignment, and it would make sense for the council to treat this variation as minor, otherwise there would be a rather unpleasant look in the building. I do not think it is appropriate to quantify this in a definition of the act, as it should be left to the discretion of council. That is the sort of example as to why we have put the word 'minor' in the clause. As I said, it has been used in a number of other places in the Development Act, so it is not a novel concept.

In relation to clause 7, the LGA has questioned the use of the phrase 'adjoining land' in relation to category 2A development. This term was used in the Development (Assessment Procedures) Amendment Act 2007 and is carried through in this bill. It is expected that this term has its ordinary meaning. It is inappropriate to use the term 'adjacent land' as this is defined and includes properties up to 60 metres away. That is why we use the term 'adjoining' rather than the term 'adjacent', which is defined in the act to include properties which could be up to 60 metres away.

In relation to clause 9, the LGA is concerned that the deemed refusal provisions will increase the resource burden on councils through increased appeals. It should be noted that the refusal is applicant triggered. I think it is very important we understand this: the refusal is applicant triggered. So, if councils discuss the matter with applicants, it should not lead to an appeal in every instance. These reforms are designed to reduce the assessment burden on councils and an efficient council planning department is not expected to experience difficulties in meeting the time frames proposed. I also note that the government will be considering a change to fees for complying development to fulfil the recommendation of the Planning and Development Review Steering Committee that fees be reviewed so that councils are not out of pocket as a result of the reform.

Finally, the LGA talked about a proposed new clause on consultation. The LGA is seeking a clause that would require the minister to consult with the LGA before any regulations are made relating to building rules only or complying development. This would inhibit the ability of the minister to make quick responsive regulations to correct issues that are raised over time. The Hon. Mark Parnell is seeking an amendment to give effect to this proposal, but his amendment goes further in requiring public consultation of at least 28 days for any regulation affecting the designation of building rules consent only or complying (that is, code development), as well as any designation of development into a public notice category.

This goes well beyond the application of the code, affecting non-residential development as well. An example of this would be the changes made to move aquaculture development in an approved aquaculture zone from category 3 to category 1. Under the proposed amendment, this simple proposal would have required full public consultation. This could also have adverse effects in relation to any future movement from, for example, a type of development in the building rules only category into complying or even merit. Providing full public notice of such a proposal could lead to a flood of building rules consent only applications in anticipation of the change.

The government has entered into the state/local government relation agreement which provides for consultation wherever possible and legislative changes affecting local government. The government has been open and transparent throughout this entire process. It has provided the LGA with $500,000 in order to cover the expense of consultation, the expense of undertaking independent road-testing and the expense of explaining the system to local government so that councils are not charged for their staff attending training or information sessions. After all, it is very important that these important reforms are understood by as many in councils as is possible.

The government has also provided to all and sundry draft regulations, which, as members can see, have gone through 10 revisions to date and will probably go through more before being finalised. It is uncommon that we should circulate those, but, given the nature of the reforms, the government has deemed that appropriate, and we discussed that last week. In addition, the LGA has had representation on the Planning and Development Review Implementation Steering Committee, which is providing advice on the implementation of the reforms.

Recommendation 29 of the planning review sought the establishment of an advisory committee, with representation from local government, to advise me on the need for changes to the code on an ongoing basis. The review recommended that the code be reviewed annually, with an opportunity for submissions to be made on modifications to the code. I have appointed the Development Policy Advisory Committee, which includes representatives from local government to undertake this task. It also cannot be forgotten that any regulation is subject to disallowance by parliament. Should regulations be made which the Legislative Review Committee of this parliament deems to be inappropriate, either house of this parliament can move to disallow such regulations.

That is the proper process for scrutinising subordinate legislation. Let us respect that process and not seek to introduce more red tape to what is intended to be a system of streamlining and reducing unnecessary red tape. Given all the above, I urge members not to support such unnecessary and cumbersome reforms.

The Hon. R.L. BROKENSHIRE: Given that the minister has acknowledged that it will create a considerable workload involving many staff for local government to comply with the requirements, is the minister intending to or has he discussed with his government financial support to local government? If not, how does he expect local government to pay for the particular costs that they will incur?

The Hon. P. HOLLOWAY: I just indicated that we had provided $500,000 to council for the road-testing and other aspects, but I understand that it incorporates a training component. So, that should all be part of it. Also, as I just indicated, in relation to fees for the new code, even though, hopefully, it will significantly reduce the time that council officers spend on that particular part of the planning, we are intending, in our fee proposal, to ensure that councils are adequately recompensed so that they are not out-of-pocket. In other words, these changes are meant to be revenue neutral, so, although they should free up the time of council, we intend to ensure that councils will not suffer financially as a result of that.

The Hon. D.W. RIDGWAY: As I indicated when we last sat, in relation to the opposition's formal process of evaluating amendments, we missed that opportunity with our party room meetings, but subsequently we have had those meetings and a handful of questions were raised for which I was unable to provide an answer, and I gave members of the opposition an undertaking that I would ask them today of the minister. In relation to the draft code, I will use the example of clause 2A—Additions and alterations, which provides in subclause (1):

This clause does not apply in relation to a local heritage place or in a Historic (Conservation) Zone, a Historic (Conservation) Policy Area, a Residential Historic (Conservation) Zone, a Historic Conservation Area, a Historic Township Zone, the Hills Face Zone, or a Watercourse Zone, Flood Zone or Flood Plain delineated by the relevant Development Plan.

That is consistent with outbuildings and other variations to the schedule for complying development and shade sails, and pretty much everywhere else in the regulation it is consistent, with the exception of clause 2B—New dwellings, which provides:

This clause applies in relation to any area determined by the Minister for the purposes of this clause and identified by notice in the Gazette.

Can the minister explain why new dwellings are being treated differently from all the other new alterations and new structures that may result?

The Hon. P. HOLLOWAY: Because that will allow us to go through the character process, as I indicated earlier in my speech. I will repeat that for members who may not have been there at the time:

The government proposes to introduce the residential code from 1 March 2009 for alterations and additions to existing homes and ancillary structures in most areas, excluding designated heritage areas and places. It also proposes, in addition to the draft regulations, that alterations and additions be restricted to single-storey development to ensure that streetscapes are not adversely impacted upon.

The point has been made that, if you have a two-storey development, that could change the streetscape. So to deal with that issue I give that undertaking. I also indicated:

The code will only apply to new homes from 1 March 2009 in those areas nominated by local councils. Between now and 31 March, councils will be able to nominate to me those areas that they consider to have character, that can be the subject of further work on how the development assessment process can be streamlined for landowners in these areas. Should this bill pass this place, I intend to release a suite of documents in the near future to assist councils in preparing their nominations.

Unley I think has about 45 per cent of its area where it has done work, and the government has already introduced some regulations that give additional controls in relation to that. That is an example of one council that has been working on this for two years. I intend to release the suite of documents, and they will be based on that Unley experience. I continued:

Once nominations are made, I will set a timetable for each council to undertake a more detailed assessment of their nominated areas.

That is where this power can come in. The Hon. Rob Lucas talked about Norwood last week and, clearly, like Unley, that is one council that has a significant quantity of older buildings that are likely to come into this character process, and, given that it took Unley something like two years to do it, it may be necessary—

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: Obviously for those councils it will take longer than councils such as Playford that were mainly developed post Second World War. I intend to release the suite of documents. Once council submissions have been received, I will set a timetable for each council to undertake a more detailed assessment of their nominated areas, depending on the extent of those areas, and submit to me their views on the application of the code to those areas. During this transition period the code will not apply to any applications for new homes in the nominated areas without the consent of the local council. That is why that clause is in there, so that we can give effect to the objective of properly considering character areas.

The Hon. D.W. RIDGWAY: Following on from questions raised in our party room, under this code is it possible that an existing dwelling could, potentially, have the number of bedrooms or kitchens altered inside the dwelling without there being any change to the external dimensions of the dwelling? I am talking of urban infill, not through demolition and the erection of two new dwellings on an allotment but rather a big house with two large bedrooms, a study, a lounge room, one kitchen and a family room being remodelled internally to deliver four or six bedrooms and a couple of kitchens, so that you have urban infill and greater population density, without urban renewal, in the sense of a more environmentally sustainable-type building.

The Hon. P. HOLLOWAY: If the person was changing the use of the land to a non-residential or multiple use, like a boarding house, that would be a change of use and you would need planning approval. The code does not change that. In relation to structural changes, building rules only would apply. You may not need planning approval as you are not changing the envelope, but you would need building approval. There would be other building requirements if you are remodelling bathrooms and so on. Presumably there are requirements that would need to be met but, in relation to planning approval, that would only apply if you are changing the use of the building.

The Hon. D.W. RIDGWAY: In relation to sustainable living and design, the Planning Institute has indicated that it is disappointed that sustainable building design has not been included in the code. The government claims that it is covered under the Australian Building Code, although the Planning Institute suggests that there are some matters, such as site situation, access to sunlight and so on—some of the modern expectations of sustainable urban design—not captured in the building or residential codes. Is it the minister's intention to address that, given that all of us in the world today want a more sustainable quality of life in the built form? Is the minister looking to make any changes of that fashion to the residential code?

The Hon. P. HOLLOWAY: The decision was made that we should deal with the sustainability issues in the initial planning approval for subdivisions. Issues such as water sustainability and so on need to be addressed at the subdivision level, which is where these issues will come into play. Once the blocks are determined, it is the building code where we see that the sustainability issues of energy and water efficiency would come in. Clearly, a lot more work needs to be done on those issues and, as I indicated the other day, some work is being done on sustainability indicators. This has been one of the more complex issues of discussion. We will have a review of the code annually, as has been indicated, after the code has been settled down. Clearly, this is one of the issues that we may or may not need to revisit. It is our belief that, in terms of sustainability, we can achieve all the objectives we need to through the building code. However, if some issues arise, we will have a look at them.

To some extent, I think it is worth pointing out that there is a bit of turf warfare here between planners and building people as to who should get the credit for sustainability. What is important is to have an assessment somewhere along the line and, of course, it is at the building stage when the inspections are made. So, that is the appropriate place, in many respects, where we can ensure that the sustainability provisions are incorporated into buildings.

Clearly, this is a huge subject, because we have the Building Code of Australia. There was a strong push, certainly, from the previous federal government (and I imagine that the current federal government will not be much different) in trying to support the highest level of harmonisation of building codes as we can, because we are only six or seven per cent of the country's building market.

Manufacturers work on a national scale with respect to building products. There is a national market in a lot of materials, and so on, and it makes sense to try as much as possible to have a national building code, in terms of safety and standards. However, clearly, there are differences and some states will want to go further than others in relation to sustainability. However, if for example we want to increase the size of tanks that we require to be installed, that will be done under the building code rather than in planning.

The Hon. D.W. RIDGWAY: A former builder has quickly looked at the residential code and raised a number of questions. I will ask the minister a question, to highlight the area where a sensible amount of work potentially needs to be done. While it appears that consultation has been undertaken with stakeholders from the LGA's point of view, the Save our Suburbs and heritage retention people and the development industry, I do not think it would hurt to involve the people who will deliver the product.

I was interested to note that, in the draft regulations, the maximum height of a single-storey roof is five metres, and there is a whole range of things that go with it. However, the crux of it is that it is five metres. With respect to shade sails, section 7(c) provides: 'No part of a sail will be more than three metres above the ground or floor level, depending on where it is situated.'

Most people would know that, if you are going to attach a sail to a house, it is often attached to part of the roof or the apex of the gable end of a roof to get maximum elevation, air flow and creature comfort underneath it: it is not just pinned down above your head. So, on the one hand, the maximum height for shade sails is three metres, and no part should be higher than that, and the maximum height for a roof is five metres.

It just intrigued the builder as to how one might anchor the shade sail to the roof so that no part of the shade sail was higher than three metres—for example, in the event of an extended patio or outdoor living area, when a shade sail is a continuation of the roof. Is it a roof or is it a shade sail? The former builder said that there were a number of, if you like, small details that he thought were inconsistent. So, I just raise that as a question for the minister. Notwithstanding that I think the government has consulted with the HIA, I ask the minister: what level of consultation has been undertaken with respect to the guys with the tools doing the job on the allotments?

The Hon. P. HOLLOWAY: Some consultation but, clearly, with the 822 road-tested applications, one would have thought that would have covered the whole spectrum of applications, alterations and additions and it would have brought up those issues—although it remains to be seen whether that is the case. But I think the honourable member was talking about a maximum roof height of 5 metres. My advice is that that is just to outbuildings such as verandas.

In any case, here we are talking about the code. Remember, if you want to do something a bit differently, the code is really only to speed things up. Let me remind members that the code is to be almost like a lowest common denominator, if you like, of all the building plans and all the things that everyone agrees to in councils. That is what the code is trying to encapsulate. You can still do things and, as I said the other day, even if the code covers as many cases as we would like it to, you would expect about 30 per cent of cases still to be outside the system, for all sorts of reasons—for example, they might be in high fire risk areas and need approval because they are in sloping areas where they need more cut and fill than is allowed; they might be in flood zones; or the builder or home owner might want a particular architectural form—so, they would revert to the merit system, even with these sorts of sails and things.

We have tried, in order to get the code established, to be reasonably modest and as uncontroversial as we can be but, of course, as we get confidence in the code, there is always the capacity to try to improve the coverage of the code to other areas. However, at this stage, we think that the best thing we can do is try to get the code up and running, get people familiar with it, working with it and happy with it or, if they are not happy with it, let us find out why. Let us try to capture the low-hanging fruit in the area but then, if we can get some of the fruit that is hanging a bit higher and get the benefit of that, then that becomes a possibility in the future.

The Hon. M. PARNELL: Could I ask the minister to go back to the first question that the Hon. David Ridgway asked, concerning the transitional provisions. We have had some discussion about what is in the code but I want to revisit this question of where the code applies and where it does not.

I ask the minister to correct me if I have misunderstood the arrangement that he is proposing. First of all, after 1 March, home extensions, repairs and things like that will be covered but new homes will not be covered if councils basically do not want them to be covered because of a character area that has been identified. The minister has indicated a process by which councils will be assisted to identify their character areas.

As I understand it, the Development (Residential Code) Variation Regulations provide effectively that the code will apply in any area determined by the minister in relation to new houses, so my understanding is that, by September, councils will have identified what they think is a character area, the minister will either have agreed or disagreed, and the minister will eventually put a list in the Government Gazette. First of all, have I understood that that is the process?

The Hon. P. HOLLOWAY: That was the original proposal of the Planning Review Committee. First of all, I have to get the bill through unamended because, if there are delays with the consultations, then those timetables could not be met. But what I have said in addition to that is in response to some of the issues that have been raised and I have proposed that, between now and 31 March, yes, councils will be able to nominate those areas that they consider to have character that can be the subject of further work on how the development assessment process can be streamlined for landowners in these areas.

As I said, should the bill pass this place, I intend to release a suite of documents in the near future to assist the councils in preparing their nominations and, again, that is based largely on Unley. I do not know whether the honourable member has yet had a chance to look at the Unley development plan but I commend it to him. It is a huge volume of work and, no doubt, through the ERD Committee we will also be looking at the associated regulations that apply to that development plan because it has been brought in and given some interim protection.

Once the nominations have been made—that is, nominations from councils of character areas—I will set a timetable for each council to undertake a more detailed assessment of its nominated areas.

The Hon. Rob Lucas spoke last week about Norwood, and Unley has taken two years. With councils like that that have a significant amount of character, clearly the work involved is likely to be significantly longer than September. So, for that reason, I was proposing to set a timetable for each council. For Playford, perhaps Onkaparinga, they have fewer character areas and more greenfields areas or suburbs developed in the past 20 or 30 years; obviously, that will be less of an issue for inner city councils.

What I am proposing is that, rather than the timetable that was initially put forward by the planning review, we have the capacity to enable particularly the inner city councils to do the sort of work that experience with Unley has shown us has taken a couple of years. Hopefully, it will not take that long in the future, because a lot of the groundwork has been done, but clearly the six months or so from 31 March is unlikely to be sufficient in some of those cases.

The Hon. M. PARNELL: At the end of the day, will these character areas be reflected through amendments to the development plan as (I think you have described) in Unley, or will they be reflected by simply having certain areas excluded from the operation of the code? In other words, are we going to see amendments to the actual planning scheme which recognises character, or will the minister simply take note of those agreed character areas and simply exclude them from the code by a notice in the GovernmentGazette?

The Hon. P. HOLLOWAY: The recommendation of the planning review was that we look at variations to the code that would apply in that area. It is essentially in character areas. Remember, these are places that are not deemed to be character areas. It is not like Colonel Light Gardens, which is on a heritage list and, incidentally, where property values have gone up significantly because it is on a heritage list and because people know that they will have that character in there. These are areas where, although there may be the odd house that is on a local heritage list, the general code will apply.

If it is a character area, we are looking, essentially, at streetscape, and so that is the element that we would most want to protect. We are less concerned about what happens in people's backyards in terms of additions, alterations and the like. What we are concerned about is impact that will affect the street frontage in particular, and a modified code, as I understand it, is the way that we are looking at dealing with that in those areas. That is the process that will take place.

Once the code is in place (we would hope from 1 March) for new homes in the areas nominated by local councils and for alterations of less than one storey, it is after the character areas come in that, obviously, we will have to look at that data and see how we deal with the character there. Clearly, the character that you are preserving could be quite different. If one looks at the Unley development plan, at least half a dozen different types of architectural styles are reflected in that Unley region, from the late 19th century through to the 1940s, that are predominant or significant in particular areas. So, what one requires may involve a significant amount of work.

The Hon. SANDRA KANCK: When I spoke on this bill last Tuesday, I indicated my concern that things were being rushed through, and I expressed a concern about the need to consult with various community groups. I believe my concerns were validated, particularly with the receipt of an email late on Friday afternoon from the Planning Institute of Australia, South Australian division. I am sure other members have received it, but I want to read one paragraph from it:

As the peak body representing the planning profession, PIA believes that we should be consulted in the development and implementation of the review findings. We are therefore disappointed that the provision of information on the Development (Planning and Development Review) Amendment Bill 2008 and Development (Residential Code) Variation Regulations 2009 has not come from the government or Department of Planning and Local Government, but from the opposition and other parliamentarians. We are also disappointed that our views on the proposed amendments to the Residential Code have not been sought despite some assurances being given that we would be further consulted. We hope that in the coming months we are further consulted and that the issues raised in the attached submission are addressed in the Regulations.

Could the minister please explain how it was that PIA was not provided with particularly the residential code variation regulations and whether the government will see fit now to include PIA in any further consultation?

The Hon. P. HOLLOWAY: I meet with PIA regularly. I have regular meetings with PIA members. They had been well aware of this. They were informed of the government's intention. They have been informed right up to—

Members interjecting:

The Hon. P. HOLLOWAY: Well, certainly, the act, but they are well aware of it. In fact, the Hon. Sandra Kanck, myself and the Leader of the Opposition were all at a meeting with PIA some time back when we had questions and answers that covered some of these issues. I have certainly had meetings with a number of people who are key members of PIA. There has to be some limit. We have had this code—

The Hon. Sandra Kanck: Come on, they are the principal body for planners!

The Hon. P. HOLLOWAY: But I have had meetings with key members of PIA—

The Hon. Sandra Kanck: On these regulations?

The Hon. P. HOLLOWAY: On various issues.

The Hon. Sandra Kanck: On draft 10 of the regs?

The Hon. P. HOLLOWAY: Well, the regulations, as the honourable member knows, were produced fairly recently, but the issue is that they cannot come into effect until the act has passed. The honourable member well knows that it is unprecedented to have regulations, because I have done what few other ministers do in terms of producing the regulations before the act is finalised.

If this bill is amended, if the Hon. Mark Parnell's amendments are carried, then I have just wasted the time of parliamentary counsel in drafting all those regulations because things will not happen or, in any case, the time frames and others will all be altered. The final version of the code clearly will depend to some extent on what happens in this place, but I am sure that PIA members have been able to get a copy of the code—they have certainly had all the original ones—and I am sure they have had a chance to look at it.

I have spoken to some of the key members of PIA following the release of the code, not with PIA as a body, but there has to be some limit physically to the number of meetings I can have. There is a bit of a turf war here between planners and others in terms of what should be in the planning code and what should be in the building code, and I am sure I am never going to get agreement from the Planning Institute and others who believe passionately that something should be in their side of the code—the planning code—rather than the building code.

Nonetheless, sooner or later, somebody has to make a decision—and it is this parliament—and I am putting up what I believe to be the best outcome from all those lengthy discussions. The road testing, for example, has all been done with local government. The members of PIA who are local government planners are significantly represented. A lot of them would have been working with the road testing by councils, so I am sure there is plenty of expertise within there as to what is going on. Sooner or later, we have to make a decision on whether or not we go forward with this important reform, and it is now crunch time.

The Hon. R.I. LUCAS: I ask the Leader of the Government about the statement he made at the start of the debate on this clause where he said something to the effect that the government's proposed intention is to implement the residential code from 1 March, I think it was. Can I just have the minister clarify for the record in relation obviously to certainty in the system that the minister accepts that any member of this chamber in the February session has the capacity to move a disallowance of the residential code?

I assume that the minister will have to promulgate the regulations for that some time in February and that then there will be the standard number of sitting days which will certainly take him past 1 March. I am not sure when the 14 sitting days after the February sitting will expire where this chamber could disallow the regulations that will constitute the residential code.

If the minister confirms that, does he accept then, in relation to certainty in the system, that potentially there would still be doubt about the system for a period after 1 March until this chamber, one way or another, resolves an issue of potential disallowance of the residential code?

The Hon. P. HOLLOWAY: Of course; that is exactly why I have produced the code inasmuch as I can in the final form, so that members in this place will be aware of it and so that at least no-one will be able to say that it is unseen, or that something has come out of the blue and, despite the undertakings I have given about the code and its operation, is being implemented.

Yes, this is an unprecedented exercise, I suppose, in the way I am doing it, but it is exactly to recognise that point that I have drafted a code. It is not something that we would normally do, and it is not something I would recommend that any other minister necessarily do, because of the enormous amount of work involved in going back and forth and then you are accused of not consulting when, in fact, I seem to have done nothing else for the past six months but deal with this subject and consult on it in one way or another. Nonetheless, these are important and significant changes. The detail is in the code, and that is why I have put the draft version in here—so that members can see it and so that no-one can say they have not studied it. But, ultimately, yes, it is up for disallowance.

The Hon. R.I. LUCAS: I thank the minister for that information. I think it is important that that is acknowledged because there is still considerable concern, and I think it is growing in some areas. Certainly, I have been contacted by people with a particular interest in the Norwood area, which is something I raised last week with the minister. For example, I refer to the minister's confirmation last week that, under the proposal he and the Premier are pushing in relation to this current residential code, if you happen to have a property in Norwood, your next-door neighbour on one side can build a 10 metre high by 8 metre long fence right up against your boundary and your neighbour on the other side can build a 10 metre high by 8 metre long fence right along your boundary, and the fence can then also extend up to 50 per cent of the length of both boundaries, so that you have this surrounding effect.

As more information becomes available and the minister confirms that that is his intention in relation to the residential code, I hope that there would be quite an intense debate about the impact of the residential code, come February/March, if a member in this chamber were to move for disallowance.

The second general area I want to raise relates to the issue of character areas—and, again, this is coming from people with some concern about the minister's and the government's intention in relation to areas such as Norwood, Payneham and St Peters. I ask the minister to confirm again that a council like that could make a submission, do a lot of work over an extended period (to which the minister has referred) and seek approval for a number of character areas which cover a significant part of those areas, and that it is the minister who ultimately has the absolute and final say and could reject some or most of those requests.

The Hon. P. HOLLOWAY: The Hon. Rob Lucas, of course, totally ignores what I said last week about all the qualifications, and I do not know whether we can go through it all again.

The Hon. R.I. LUCAS: Is it your final decision absolutely?

The Hon. P. HOLLOWAY: Well, it depends on what stage it is at. The point I made last week is that, if it comes to development plan amendments, yes, the minister has the final say. I suppose one could argue that the ERD Committee can also make comment on development plan amendments, but it is a feature of the Development Act that the minister have the final say. For example, things like major projects override council developments.

The minister always has, and presumably always will have, the final say. If the minister or somebody does not have the final say over development, I suspect that we will get ourselves into a real mess, but that should not be used to try to suggest that there are not proper procedures and processes. If the minister was going to do everything, why would we bother with all these incredibly involved processes? Clearly, there is a complex range of consultative and other measures—

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: The great majority of decisions are taken at the local government level, and I think that 95 per cent or more of the planning decisions are made at the local level. I know where the Hon. Rob Lucas is coming from. I know what he is trying to do: he is trying to cause—

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: Yes; I know what you are doing, and I know why you are trying to do it. I will not let him get away with misrepresenting the position, or distorting it. The fact is that the minister, in planning terms, has a number of ways—

The Hon. R.I. Lucas: You can ignore all the advice and reject any submissions.

The Hon. P. HOLLOWAY: You cannot do that because of the levels of accountability; and I have not done that.

The Hon. R.I. Lucas: Yes, you can.

The Hon. P. HOLLOWAY: I guess Rob Lucas will want to keep us here all night. He will want to send out to the people of Norwood a totally distorted message, but I am not going to participate in this futile game anymore. I am not going to let him get away with distorting the position.

Of course ministers have—in relation to development plans and other things—the final say, because somebody has to; although one can say that there is also judicial review, depending on which part of the process you are in. If processes have not been adopted, there are all sorts of judicial reviews and other means of scrutiny available.

In relation to the code, again I come back to the basic point. All we are seeking to do in those areas which are not heritage or character areas, or not areas where other special conditions apply—mainly greenfield areas are where the benefits will be felt—is simply trying to get a code that will greatly simplify and save tens of millions of dollars for ordinary South Australians in terms of the cost of housing.

It is to keep jobs in this state; it is to keep our state competitive and, to do that, we have to ensure that we have an efficient, up-to-date planning system that lets most approvals go through. Where these applications are straightforward, they should be able to go through the system within 10 days with a minimum of fuss, and that is what the code seeks to do.

There are complications in some areas. Some suburbs, such as the inner-city areas of Unley and Norwood, are more complicated than others, and that is why we have special provisions which we will put into effect to deal with those issues.

The Hon. R.I. LUCAS: I thank the minister for that. In essence, in the end, the minister confirmed the question that I put to him: ultimately, the minister has the capacity to listen to the advice, reject it and make his own decision in relation to this particular issue. The people of Norwood, Payneham and St Peters need to be aware that, just because they do all the work in relation to requesting character areas within their particular area, there is no guarantee that this minister—indeed, any minister, to be fair—will necessarily agree. That is the first point. The second point that I put on the record is that the—

The Hon. P. Holloway interjecting:

The Hon. R.I. LUCAS: Hang on; I am still speaking. The second point that I put on the record is that I think the minister said in his earlier statements that the length of time (two years) in relation to Unley is potentially constructing a set of circumstances where it may be this government's intention—having received requests from Norwood, Payneham and St Peters, and other areas, in relation to character areas—not to have a decision or a response on those until after March 2010; that is to say, 'This is going to take a long time; we are going to need to look at it; we won't be in a position to make a decision prior to March 2010.'

Why might that be the case? If this government had the intention not to respect the wishes of the Norwood Payneham and St Peters council area and refuse some of its requests, it would prefer to do so after the election, with a four-year period to go prior to 2014, rather than just before 2010. Having listened to the minister's carefully constructed time lines, I think the people of Norwood Payneham and St Peters need to bear in mind that it is a possibility that the minister and the government are constructing that set of circumstances in relation to what is a critical issue for many of these people in Norwood Payneham and St Peters.

The Hon. P. HOLLOWAY: Perhaps the people of Norwood Payneham and St Peters should be aware that the Hon. Rob Lucas was the person who deliberately misled them at the 1997 election, when he said that he would not sell ETSA. If there is some person in this chamber they should not trust because of dishonesty, it is him.

The Hon. R.I. Lucas: You have got the wrong minister and the wrong election.

The Hon. P. HOLLOWAY: No; 1997 was when you were part of the government that said it would not do that. I think that my bona fides in relation to this are seen in Unley, which has been given interim effect. Of course, in terms of the time lines and the politics, if the opposition's amendments get up, this will all be delayed anyway because, if you start to put in consultation periods and so on, it is just impossible to meet the sorts of deadlines that were suggested by the planning review.

It has taken a long time for Unley to do it, but the fact is that I have honoured that. Why would I treat the people of Norwood any differently from the way I have treated the people of Unley? Why would I do that? If I were intending to do so, why would I approve the process, as I have done in Unley, and given them the protection which they have been asking for for many years and which was, supposedly, asked for by the opposition? Either the Hon. Rob Lucas supports his own party or he does not.

I accept the fact that he will make as much mischief as he can in Norwood or other areas and try to distort it. That is taken as a given; nonetheless, this government wants to rise above that and do something good for the people of this state and save the unnecessary costs involved in unnecessary planning approvals.

The Hon. R.I. LUCAS: I am sure that the minister will be pleased to hear that this is the last general area I want to raise on clause 1, and he may want to take it on notice. I am not sure whether the minister responded to these submissions before; if he has, I apologise for raising them late in the piece. It was only at the weekend that a lot of other members and I were contacted by Stephen Fisher in relation to a whole range of views, and I do not intend to raise them all today. I will read one issue he raised and ask the minister to indicate whether he has publicly responded and, if he has not, whether he will respond. Mr Fisher wrote to all parliamentarians and, in part, he stated:

The recent '2008 Reform of the South Australian Planning and Development System' from the State Government was backed up by data (purporting to be factual) which claimed that Unley and Murray Bridge Councils took in excess of 50 weeks to approve 'complying developments'. See page 3 and particularly page 6, which is an enlargement of Figure 3.7 from page 3 of the powerpoint document 'Michael O'Brien & John Hanlon Presentation to Mitcham Councillors 01 Oct 08.pdf', attached.

Page 6 is an enlargement and scaling from the graph, Figure 3.7 of Chapter 3, labelled 'Performance of the current planning & development system', sourced from: System Indicators Data 2006Q3-2007Q1.

This data is false and misleading and must not be used as the basis to justify alteration to the system of law in the administration of Planning Approvals in South Australia.

He continued:

I have contacted Unley and Murray Bridge Councils, as well as Port Adelaide/Enfield, Prospect and Tea Tree Gully, each of which has claimed 'long approval times' of >15 weeks. Every one of these Councils' Development Managers have advised me that the data is incorrect and that they have written letters of protest to the Minister of Planning and to Planning SA advising them of the obvious errors in these false figures.

Mr Fisher went on in much greater length to outline more detail in relation to the error of the claims, in his view, and how they have been used in the public debate in the newspapers and in the debate with councils. I will not take the council's time and go through all of those; I think all members received that contact anyway.

My question is: has the minister publicly responded to the claims from Mr Fisher, and, if he has not, can he indicate what the government's position is? As I said, in terms of rejecting this, if the minister wants to take it on notice and indicate that he is prepared to write to me with the rebuttal of the claims made by Mr Fisher, I am prepared to accept that undertaking.

The Hon. P. HOLLOWAY: Some of the figures used by the Planning and Development Review, which were system indicators that came from the councils themselves, were incorrect. The councils—and I think Unley was one of them—contacted us when they saw those figures in the review. My understanding is that they were the original source of the information. They all have been corrected within the system. There are a number of other councils also. Why they provided the incorrect information I am not sure. An initiative was put in place shortly after I became minister that we wanted to start to have indicators on how the system was performing so that we could properly understand what was happening, review the system, and make changes as necessary. As I said, some information was incorrectly put in by councils.

The Hon. R.I. LUCAS: Are you happy to give an undertaking to provide the correct information?

The Hon. P. HOLLOWAY: This is updated all the time. Do you mean at the time the planning review came out or at the—

The Hon. R.I. LUCAS: Is it the claim, in relation to the figures, that the figures are now correct?

The Hon. P. HOLLOWAY: My advice is that we will be publishing a report at the end of this year which will include the corrected figures. The Planning and Development Review asked us to publish the figures.

The Hon. R.I. Lucas: Will that be in January?

The Hon. P. HOLLOWAY: At the end of this year, probably, but we will try to get it ready as soon as we can. As I said, some information supplied by a number of councils was apparently incorrect so, clearly, we need to address that. That has been under way only since February 2006 or 2007. We will include that; but, put it this way: it has not been that long since we have been keeping these indicators. They were needed so that we could obtain this sort of reasonable assessment. That information and advice will be made available shortly.

The Hon. D.W. RIDGWAY: I had a number of other questions to ask about implementation; however, I think they largely have been covered. I acknowledge the lateness of the evening. During the opposition's exhaustive party room process, the party asked me to put on the record that we would potentially reserve our right to move disallowance in the new year, and we will make that judgment, if the government gets its particularly wrong, either to do that or, if we do not, to watch them suffer at the ballot box in 2010.

Clause passed.

Clauses 2 and 3 passed.

New clause 3A.

The Hon. M. PARNELL: I move:

Page 2, after line 10—Insert:

3A—Insertion of section 5A

After section 5 insert:

5A—Regulations relating to planning system

(1) The Governor cannot make a regulation under a designated planning system provision unless the minister has certified that the requirements of subsection (3) have been complied with in relation to that regulation.

(2) An allegation in legal proceedings that the certificate required by subsection (1) was issued on a particular day is, in the absence of proof to the contrary, sufficient proof of that fact.

(3) The following provisions apply for the purpose of subsection (1):

(a) the minister must cause to be published in the Gazette and in a newspaper circulating generally throughout the state an advertisement—

(i) containing a general explanation of the regulations that are (subject to the section) to be made; and

(ii) inviting interested persons to make written submissions to the minister in relation to the proposed regulations within a specified period (being a period of not less than 28 days from the date of publication of the advertisement); and

(b) the minister must send a copy of the proposed regulations to the LGA at the time that the minister publishes the notice in the Gazette required under paragraph (a) and invite the LGA to make written submissions to the minister in relation to the proposed regulations within the period that applies for public consultation after paragraph (a) (or within such longer period as the minister may allow in a particular case).

(4) In this section—

designated planning system provision means any of the following:

(a) section 33(4a);

(b) section 35(1);

(c) section 38(2)(a), but only in relation to a proposal to assign a form of development to category 1 by regulation.

This is amendment No. 1 in the set Parnell [2]. It is a very straightforward amendment, even though it takes up a whole page. This amendment states that there are some things that governments put in regulations that deserve public consultation. I have identified three things that I think should go to public consultation before the regulations come into effect. One of them is any situation where the government wants to take something out of the scheme of development assessment. In other words, including something on a list—such as the list in schedule 1A—which is now in the regulations that is now going to include things like solar panels on the roof is a good move in not requiring them to go through planning approval. However, whenever the government wants to add to that list, then my amendment provides that it should consult the public and it should consult the Local Government Association.

The second category where I said the government should consult the public is adding something to the list of complying development. Remember that complying development must be approved. The authority does not have a choice to approve it or not; it must be approved. The third one which I say should go to public consultation is where the government wants to change the regulations to make something a category 1. Category 1 is that category where no public consultation occurs. Categories 2 and 3 are limited or general public consultation but for category 1 no-one is consulted.

To synthesise these amendments down to their most basic level, what I am saying is that whenever the government proposes to use its regulation-making power to remove something from the system or to remove public consultation which has previously been there, then it should at least consult the public about its intention to do so. I am not saying it has to consult the public on every single application that is lodged under one of these new regulations but, if it wants to change the rules that diminish rights of public involvement in planning, it should at least consult the public before it brings that into effect. It really is that simple.

There is more. I have not invented a method of public consultation. I have taken the existing method in section 5 of the act which already provides that there are some regulations on which, if the government wants to change them, it has to consult. Currently, that list is a pretty simple list. It provides that, if the government wants to change any definitions, it has to consult the LGA and it has to consult the general public. All my amendment does is to provide that other important changes that the government can make through regulation should also go to the LGA, and they should also go for public consultation. In fact, in many ways my amendment is weaker than the existing provision, because under existing section 5 there has to be a public meeting as well. I am not requiring a public meeting, but I am requiring it to consult the public and to consult the LGA.

The minister pointed out that my amendments, which require public consultation on changes to the regulations, go beyond simple houses and additions to houses. He mentioned that my amendment would apply to a change to an aquaculture designation. All of us in this place have our buttons, and the minister has pressed mine, because I think he is well aware that in 1999 I won this state's longest ever environment trial on the issue of aquaculture and whether it was ecologically sustainable. The full court of the environment court agreed with me. We won the court case and the government changed the regulations to provide that, in future, no-one has to be consulted about aquaculture; therefore, if you do not have to be consulted, no-one has the right to appeal. Bingo! The government used regulations to overturn the findings of the court that that particular industry was not ecologically sustainable.

I make no apologies for highlighting whenever the government tries to sneak in regulations and undermine the rights of the public—and aquaculture is a brilliant example, because it is not even private land; it is the commons, for goodness sake. At least here we are talking about private land. So, thanks for pressing my buttons, minister.

I do need to very briefly explain the difference between my amendment and the Hon. David Ridgway's amendment because, effectively, they cover the same turf. If you vote for the Liberals' amendment, then what you are voting for is not public consultation but what the Local Government Association asked for, and that is that some limited changes to the regulations should at least be referred to that organisation before they come into effect. That is the effect of the Liberals' amendment and it is a pretty minimalist position. It involves no public consultation; it just requires some changes to regulations that deal with the residential code to go to the LGA before they come in. That is fine, as far as it goes. My amendment goes further: it requires that, but it also requires some of these other changes that undermine public consultation and planning also to go to the LGA and to public consultation.

I will be brief, because we have a number of amendments to get through; however, I was unaware until yesterday that, while we are going through this process here in South Australia, they are going through the same process in New South Wales. A colleague of mine in the upper house of the New South Wales parliament issued a statement yesterday, because the government there had consulted on a version of its residential code and got everyone happy about it and then, because there were no public consultation provisions for changing it, it put in the really nasty code that it had always wanted. I would like to quote a paragraph from the Hon. Sylvia Hale's press release of yesterday, which read:

Drafts of earlier codes were available for comment but it is clear that they were merely a diversion during the debate on the changes to the planning laws [which is what we are doing now]. Now the bill is through those draft codes are withdrawn and the free-for-all codes that the government and the developers always wanted are being imposed.

I do not want to suggest for one minute that I am directing that comment at this minister or this government, but if we are serious about protecting our urban form, our character areas, then we need to make sure that future governments cannot change the code in a way that undermines our rights as citizens to engage in the planning system.

I will finish with that cautionary tale, and remind honourable members that if they support my amendment they are supporting not just consultation with the LGA but also a fairly minimal model of consultation with the general public. I call on all members to support this amendment.

The Hon. P. HOLLOWAY: The government opposes this amendment. As I said earlier, the amendment requires public consultation of at least 28 days for any regulation affecting the designation of building rules consent only or complying code development, so any chance of getting this code in and getting at least some benefits for alteration and things by 1 March is immediately out the window.

What have we been doing for the last few months? We have this implementation committee on the code, with three local government members—a mayor, a chief executive and a relevant person from the LGA. We have now put out the draft, and local government has had it for as long as anyone else, from the moment it was hot off the press. It will still be two months before it can be introduced but, if this amendment of the act is carried, we then have to go through the process all over again. Presumably if it got knocked back, because of the position of reserving the right, because of one particular thing, we would then have to go back in another 28 days and do it all over again.

The Hon. Mark Parnell has already talked about aquaculture, and you can see what is motivating him, but there has to be some economic generation within this state. If we do not have a reasonable cost structure within our planning system the cost of housing in South Australia will rise relative to those of other states—particularly Victoria and Western Australia, which have similar systems—and we will become less competitive. We will lose jobs and we will lose people from this state. Perhaps if you are a Green or a Democrat, and you do not actually believe in population growth, if you believe that we should be declining—

The Hon. Sandra Kanck interjecting:

The Hon. P. HOLLOWAY: Well, as the Hon. Sandra Kanck says, that is okay. However, let us understand that what you are supporting here, what you are going for, is a path of long-term decline in the living standards of the people of this state. This government does not believe in that; it believes that we can have a system that is more efficient in terms of planning and that will, at the same time, give greater protection than we now have to our character areas. I think we have shown that with Unley, and I invite anyone to look at the development plan for that area. It addresses some of the issues that people there—the Save our Suburb group and others—have been complaining about, sometimes for years and years, under the current system.

You can have all these rules in place, all this consultation and everything else, but at the end of the day we have seen that when councils have tried to stop things people have gone to the development court and invariably been overturned. It adds costs, delays and inconvenience but, in terms of the end result, it does not achieve anything at all. That is the sort of system we want to get away from. All we are seeking to do by the code is deal with the vast majority of applications—most particularly in greenfield areas, involving the sort of project homes that one mainly sees in those areas. We want to simply let them progress through a system much more quickly, with much less paperwork, so that the owners of those homes—the first home buyers, and others—can get the benefit. If we can maintain cheaper housing, we might therefore keep more industry here and be competitive with other states.

I can understand where the Greens and others are coming from. As part of their philosophy, of course, they will put in the way as many impediments as they can. They are coming from the reverse direction. If you want to resist change, you will put in as many delays and restrictions as possible. But, at the end of the day, through the ERD Court, we have seen what happens to those sorts of policies. They simply do not work. It is no substitution for good planning rules—for getting the planning rules right and ensuring that they comply with modern standards and tastes in most instances. If you want to go beyond that, you go back to a merit assessment system and you will have to take a bit longer and pay a bit more if you want something outside the ordinary. That is, essentially, in a nutshell what the code is all about. It is trying to capture the benefits in terms of the vast majority of houses that South Australians want to build.

The Hon. M. PARNELL: In response, it is easy to start getting into an ideological debate on the code and the system the government has put in place. I make the simple point that this amendment does not oppose the residential code. It does not add a single extra expense for developers—home developers, or anyone. All it says is that if the government wants to change the rules it should inform the public and the LGA 28 days in advance. Once the rule changes have gone through, they have gone through, and everyone who wants to take advantage of them can do so. This is not a debate about the ideology of whether or not a code is a good idea. This is just saying that some regulations are so important that the public deserves to be consulted.

The Hon. P. HOLLOWAY: That is exactly what has been done with the code now. As I said, it is unprecedented for a code to be put into parliament two or three months before the act can come into place. Yet we would have to start it all over again if this regulation goes through. What reason, other than delay, will that serve?

The Hon. D.W. RIDGWAY: I indicate that the opposition does not support the Hon. Mark Parnell's amendments. As members are aware, we have an amendment of our own on file, and our view is that the Hon. Mark Parnell's first amendment will add significantly to the red tape, if you like, that will be involved in the consultation process. The more simple form is the one I will speak to when I have an opportunity. It is a model that involves the LGA and, of course, in our three tiers of government, members of local councils are elected by a small number of ratepayers and therefore often reflect community wishes much more accurately.

The Hon. SANDRA KANCK: I support these amendments. I do not think it is too much to ask for consultation, particularly when we are talking about something being put in category 1. It is very clear from this legislation that we are saying there absolutely must not be any consultation on anything that has been declared category 1. So, if we are going to bring something into that category where there must not be consultation, it is really important that we get it right, and that whatever it is we are contemplating deserves to be put in a category where there is no consultation.

I was quite astounded by the minister's comment that consultation will lead to a drop in living standards for South Australians. I honestly cannot understand how he reaches that conclusion. Consultation is about embracing the community and, if you embrace the community and listen to what people say, maybe sometimes changes might occur and you will be able to bring the community along with you. At present, as things stand, the government will be able to do it and simply impose it on people. Therefore, this amendment is reasonable.

The committee divided on the new clause:

AYES (2)
Kanck, S.M. Parnell, M. (teller)
NOES (17)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I.K. Lawson, R.D. Lucas, R.I.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
Wortley, R.P. Zollo, C.

Majority of 15 for the noes.

New clause thus negatived.

Clause 4.

The Hon. D.W. RIDGWAY: I move:

Page 2, after line 18—Insert:

(4ab) A regulation cannot be made under subsection (4a) that relates to development associated with the use of land for residential purposes unless the minister has given the LGA notice of the proposal to make a regulation under that subsection and given consideration to any submission made by the LGA within a period (of between three and six weeks) specified by the minister.

We would like support for this amendment for a number of reasons. Notwithstanding the government's comments that it has consulted widely, as the Hon. Sandra Kanck indicated, the Planning Institute has expressed its concern about lack of consultation. I recall the event to which the minister referred. Together with the Hons Sandra Kanck and Paul Holloway, I was part of a panel at the launch of this year's planning report card, where South Australia received the unfortunate distinction of being the worst in the nation for consultation in relation to planning issues. While it may not have been totally as a result of consultation on this reform, I suspect that it reflected the government's lack of consultation on country health, the Marjorie Jackson-Nelson Hospital, the expansion of tramlines and other things where it has consulted poorly.

As I said when speaking to the previous amendment of the Hon. Mark Parnell, the opposition felt it was important to test the will of the parliament in relation to consultation for the LGA. Obviously, local councillors are elected by a much smaller voter base than are we or our colleagues in the House of Assembly. By and large, those people are at the coalface, shall we say. The opposition thought it was important, as I said, to test the will of the parliament to see whether there was support for the LGA to be included in consultation. Notwithstanding the concerns the minister has about extra red tape, we think it is important.

The Hon. P. HOLLOWAY: We have been through the arguments before, quite apart from the fact that any regulation can be disallowed by parliament at some future date. In relation to this particular one, I do not think there will be a regulation that ever will have been consulted on as much as this one. In particular, the LGA and other groups, as I said, have membership from the LGA itself and an elected official, as well as a chief executive from local government. All those people are involved in the implementation committee where all these things are discussed in great depth. They are given the briefings on all the road testing, and so on.

Also, the regulations are out there being discussed now. Why on earth would you want to slow this all down? By the end of this process, when everyone has seen it (because we have been debating it here for ages), you then have a further statutory period of negotiation on the end of it.

The Hon. M. PARNELL: I support the amendment. The Local Government Association is at the coalface—95 per cent, probably, of development applications are considered by local councils. In relation to other groups that have a legitimate claim to be consulted (and the Planning Institute has been mentioned), the advantage of this amendment is that, once the Local Government Association knows, so too do most of the planners who are members of the Planning Institute, and, through the back door, members of the public will find out what is going on.

It is a very minimalist form of consultation, but, nevertheless, as a fall-back position to the unsuccessful amendments I moved, I am very happy to support amendment No. 1 which is before us. I will not speak to amendment No. 2 separately, but the issues are exactly the same, and I will be supporting that also.

The Hon. P. HOLLOWAY: Why would you consult with just the LGA? If you are going to consult with all the stakeholders, what about all those others affected by regulation? In fact, of course, we do consult with all those groups where we can. Occasionally, there are situations where you do need to make regulations quickly. The classic case was last week with Unley—we brought in its development plan amendment. To give some protection so that the bulldozers were not bulldozing it down, we had to bring it in straight away. If you had consulted you would have given it 28 days notice to bring out the bulldozers and knock down some of those heritage places. There are, in fact, very good reasons on occasions why you do need to act quickly.

Amendment negatived; clause passed.

Clause 5.

The Hon. D.W. RIDGWAY: My amendment is consequential to the previous one that was unsuccessful, so I will not be moving it.

Clause passed.

Clause 6.

The Hon. M. PARNELL: I move:

Page 3, line 36—Delete 'may' and substitute 'must'

This is a very straightforward amendment, and I hope that it will close a very minor loophole in the legislation. My amendment says that, where you have a situation where a local council and a referral agency—perhaps the EPA—are involved in a planning appeal before the Environment, Resources and Development Court, both those parties are entitled to be part of that court case. As the clause is currently worded, it says that the court 'may' join them. I am proposing to change that so that the court 'must' join them. My understanding is it reflects the current situation. It would be very unusual for a court not to join a relevant party to a court case, but just in case a court was minded to do that, this amendment makes it very clear that both those bodies should be parties to the appeal.

The Hon. P. HOLLOWAY: The government opposes this amendment. The amendment will require that relevant authorities (which, in most cases, would be councils) are to be joined to appeals where a direction has been provided by a referral body. My advice is that it should be left to the ERD Court to determine where it is appropriate for relevant authorities to be joined to an appeal.

The Hon. D.W. RIDGWAY: The opposition opposes the amendment of the Hon. Mark Parnell. Of course, this will force councils to be involved when it may not be necessary and we believe it will bog down the process. We think it is more appropriate to let the courts decide.

Amendment negatived; clause passed.

Clause 7.

The Hon. M. PARNELL: I move:

Page 4, lines 5 to 16—Delete paragraph (a) and substitute:

(a) the regulations or a development plan may assign a form of development to category 1 or to category 2 and if a particular form of development is assigned to a category by both the regulations and a development plan then the assignment provided by the development plan will, to the extent of any inconsistency, prevail within the area to which the development plan relates (subject to the operation of paragraph (b));

I know from the minister's previous comments that this amendment is the one with which the government disagrees the most. Basically, this amendment seeks to honour the planning regime that the government established two years ago. Members might recall that we debated a bill to take away from elected members of council their ability to sit en masse on a development assessment panel and make a decision about whether or not a particular development should go ahead.

The parliament decided that we would have specialist panels made up of seven members—half elected members, half outside experts and an independent chair. At the time, the government said that the rationale for doing that was that this will free up the elected members to concentrate on strategic planning. In other words, it will free up our elected members to write the planning schemes for their local area—what we call development plans.

The government's amendment now says that, when you have a conflict between something that has come from the grassroots—that is, a specific provision that has been written into a local planning scheme by a council—and something the government has imposed via regulations, the regulations should prevail. I say that the specific should override the general. If you have gone through the trouble of negotiating and consulting with your community and writing something in your local development plan, why should that not prevail over the government's regulations? It is a matter of principle.

I think it is very consistent with the approach that we took two years ago in freeing up our elected members to do this sort of work and I think elected members, quite rightly, would feel dudded that, having been taken off the panels and told that they were going to be able to do strategic planning work, they are now told, 'Yes, but if you do, the government will override it through regulations.' That is the underlying philosophy behind this amendment.

I do accept what the minister says; that is, it is counter to the thrust of what the government is trying to do, which is to have a residential code in regulations that always overrides the local council development plan, other than in the areas about which we have been talking—heritage areas and maybe some character areas. It is a matter of principle and I would urge all members to support it.

The Hon. P. HOLLOWAY: The government opposes it. Obviously, if the code is to comply, it becomes complying development. That is why category 1 should apply. Without that, the code will not work. The amendment is inconsistent with the introduction of the code as there are many instances where the type of development proposed by the code would be treated as category 2 rather than category 1 under existing development plans. If you do not introduce this measure then, of course, you defeat the whole purpose of it—not that I would suggest that is the Hon. Mark Parnell's intention, but I am sure he had it in mind.

The passage of this amendment would require a totally different approach to implementing the code. In fact, this is one of the key amendments in the bill that enables the code to be introduced and that is why we oppose the amendment because, essentially, it would defeat that purpose.

The Hon. D.W. RIDGWAY: The opposition opposes the Hon. Mark Parnell's amendment. The opposition has always supported the implementation of a residential code, and it said from the outset that it supported what the government was doing. At the time, it did not support the draft code that it had released, and I think that the opposition has been vindicated in not supporting that as we are now seeing version No. 10. As the minister said in an earlier contribution today, we are likely to see more than ten versions. I will be intrigued to see how many amendments are made to it but, nonetheless, the opposition supports the concept of a residential code and, on that basis, it does not support the amendment of the Hon. Mark Parnell.

The Hon. SANDRA KANCK: The Democrats support this amendment. One of its concerns about what we are doing with this legislation—following on the tail of other legislation—is that it takes away decision making at the local level. Local government is the level of government that is most in touch with the community and most able to respond to its needs. We are now putting this up at a higher level, which is much more remote from the general community. I believe that this amendment goes some way to addressing that, which is why the Democrats support it.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 4, lines 25 to 32—Delete subclause (3)

This amendment was discussed in some little detail in the second reading debate, so I will not go back over all the arguments but, in a nutshell, my amendment seeks to strike out a provision that the government is proposing to include in the Development Act. The government's provision is, to my mind, a dangerous slippery slope-type provision. It is a provision which makes it against the law for a local council to consult its citizens over certain matters—that is what it says.

Under the Development Act—as members might know—there are three categories for public consultation. Under category 1, there is no obligation upon a council to consult neighbours, for example, or others who might be interested in a development. They do not have to consult but nevertheless some councils do, for their own reasons. As I mentioned in my second reading contribution (as did the minister), the Environment, Resources and Development Court has been critical of that approach. It has said, 'Don't consult people; it raises their expectations. They'll think they can do something about it when, in fact, they have no legal rights, so don't raise their hopes by consulting them.'

I do not accept that for one minute. I think that consultation can assist in achieving better outcomes. It may be that a person can provide some ideas that would make the development better for the developer and for the neighbourhood. It is one thing to have a category of development where you do not have to consult, but we are writing into the statute books here a law which provides that local councils must not consult their citizens over certain types of development. I think that is a remarkable provision to be putting into legislation, and it is a step far removed from saying, 'You don't have to consult.' We are used to that type of provision, but outlawing consultation, to me, is entirely the wrong way to go.

The Hon. P. HOLLOWAY: The Hon. Mark Parnell essentially gave the reasons against this amendment himself when he said that the courts have been highly critical of councils which have sent this out. It has resulted in cases coming before it for its attention and clearly the court has discovered that people have been misled into believing that they have rights that they do not have, and that is why the government opposes this amendment. If councils genuinely consulted to try to achieve a better outcome, that might be one thing, but clearly there have been cases where councils have abused that provision, and that is why the court has criticised them accordingly.

The Hon. D.W. RIDGWAY: The opposition will not support the amendments, for similar reasons outlined by the minister, namely, that the court has deemed that people have had expectations raised, with no positive outcome for them. Earlier we indicated that we supported the implementation of a residential code. There will be reports along the evolution of this reform to our planning system in South Australia, and the opposition will certainly look at any issues where anomalies have been created by this legislation that are not working.

The Hon. SANDRA KANCK: I am appalled that we even have a provision like this in the bill that says there must not be consultation. The Democrats think public consultation is valuable and that we can learn something from it. I strongly support the amendment.

Amendment negatived; clause passed.

Clause 8.

The Hon. M. PARNELL: I move:

Page 5, lines 17 to 41 [clause 8(1)]—Delete subclause (1)

The effect of this amendment is to retain the status quo in relation to the ability of councils to seek further information from applicants for development approval. The regime proposed in this bill is to say that in some circumstances the council is not allowed to ask any further questions, and in other cases they are limited to asking questions on one further occasion. It seems that that is an overly restrictive regime. It could be said that a council that is not satisfied and does not have the ability to ask more questions just says no, just refuses, which means you end up with an appeal situation, which you could have avoided if you had allowed councils the opportunity to seek the information they needed. We should be aiming at giving our councils every ability to extract relevant information, whether from the community or the applicant. I do not support this artificial restriction on councils not being able to seek further information from applicants.

The Hon. P. HOLLOWAY: The government opposes the amendment. The Hon. Mark Parnell's amendment deletes the proposed changes to stop-the-clock provisions in the act that would allow councils unlimited stop-the-clock opportunities for all kinds of development, including complying developments. The proposed clause in the bill was a key recommendation of the planning review (recommendation 34), and it is essential to improving the efficiency of development assessment and reducing lengthy assessment times. For those councils with good planning departments, this would be good practice already. Clearly there are some where there has been a culture for various reasons and it will require some effort to change from it, but there are no reasons why councils should require all the information they need with a stop-the-clock provision. Unless this provision is in there, experience shows that the lazy way will always be taken.

The Hon. D.W. RIDGWAY: The opposition will not support the amendment. It defeats the purpose of a quick assessment and the reduction of red tape that the government is hoping to achieve by this residential code, and that is one of the many reasons the opposition supports the principle of a residential code: that it will make it quicker and easier for young families and first home buyers to get the bricks and mortar on the ground and get into their first home. As the minister outlined, it will reduce costs and make our state more competitive. In the opposition's view, this amendment will defeat the purpose of the intention of the implementation of these reforms.

The Hon. SANDRA KANCK: I indicate Democrat support for the amendment.

Amendment negatived; clause passed.

Clause 9.

The Hon. M. PARNELL: I will just make a brief comment. The purpose of my amendment to this clause was to slightly amend the government's provision, which states that if a council is tardy—in other words, if they do not make a decision within the prescribed time frame—then there is a deemed refusal and they have to repay the application fees that have been paid. My amendment proposed that the deemed refusal remain but they do not have to give the money back. I have since consulted with the LGA and a few others in the system, and they believe that repaying the money is not a bad discipline on councils that are very slow in approving what should be fairly straightforward amendments. So, in the light of that consultation, I will not be moving my amendment to clause 9.

Clause passed.

Clause 10 and title passed.

Bill reported without amendment.

Third Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (17:36): I move:

That this bill be now read a third time.

Can I place on the record my thanks to Amanda Nicholls, who has done an enormous amount of work in dealing with all the regulations, and so on. It has been a very exhausting exercise, and I thank her and all the other staff at Planning SA for their work.

The Hon. SANDRA KANCK (17:38): I indicate that the Democrats will not be supporting the third reading of this bill, and it can be encapsulated in two words, 'public consultation'—both the lack of it within the bill and the lack of it about this code in this last week. I do not know what resources the minister has at his disposal, but I know that I have not been able to consult all the people who have raised concerns with me about the bill, the process, the code, the regulations, and so on. I am convinced that this parliament will find itself amending this probably within 12 months, when the flaws of it are discovered.

Also (and I say this not in an unkind way to the opposition), I want to draw attention to the fact that the Hon. David Ridgway referred in his second reading contribution and again today to the PIA Report Card, which talked about the government's very low score (the lowest in the nation) on consultation. What this bill will do is to really cement that lack of consultation. Under those circumstances, I find it extraordinary that the Hon. David Ridgway has referred to this not once but twice, when in fact the opposition is about to agree with the government that that lack of public consultation should be entrenched.

I would be interested to know at some stage in a private conversation with the Hon. David Ridgway how many community groups he consulted about this code or these regulations in the last week since we received version 10 of it. I believe that we should have had time over this break, through December and January, to allow that consultation with all the groups and all the local government entities that began the process of contacting MPs quite some months ago, expressing their concern. I believe that this is now a flawed bill and, as I said, I cannot support it.

The Hon. M. PARNELL (17:40): Just briefly, the Greens do not support the third reading but, in saying that, I have put on the record previously, and I do so again now, that some aspects of the package make sense. It does make sense to have solar panels on the roof, minor domestic water tanks and other sundry minor operations and not have to go through the whole gamut of planning approvals. Some of those things make sense, but other aspects of this are absolutely fraught with danger, and I am disappointed that we do not have now a regime for public consultation, because the pressure will now be on us to look at the regulations when they come back with a view to disallowing them.

Disallowing regulations is such a blunt and crude tool which could be avoided if major flaws in the regulations were identified early on through a process of public consultation. So, I am disappointed that it has come to this, but we will now, as legislators, have to take very carefully our responsibilities when the regulations are put before us to consider whether or not they should be disallowed.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT