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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-29 Daily Xml
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DEVELOPMENT (ADVISORY COMMITTEE ADVICE) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:52): Obtained leave and introduced a bill for an act to amend the Development Act 1993. Read a first time.

Second Reading

The Hon. M. PARNELL (16:53): I move:

That this bill be now read a second time.

This is a bill to bring some transparency and accountability into the planning system in South Australia. In my brief contribution I will be using two acronyms, which I will explain at the outset for those who are not familiar with the planning system. The first is DPAC, which is the Development Policy Advisory Committee. It is a statutory body set up under the Development Act to advise the minister, and I will go into the functions of DPAC a little later.

The second acronym is DPA, or development plan amendment, and that is also commonly referred to as a rezoning, although that is not the only function of a DPA, but it is the main one. This is the process whereby planning rules are changed, such as zoning, and these are the rules that determine what development can or cannot be undertaken on certain areas of land. A classic example is the rezoning of farmland from rural to residential. This is a process that is proceeding apace, especially since the adoption of the 30-year plan and its urban fringe growth targets.

The link between these two acronyms is that DPAC gives advice to the minister on DPAs, especially those DPAs that have been instigated by the minister, but also some of those that are instigated by local councils. Some of the recent ministerial DPAs that have been the subject of DPAC advice include the Cheltenham Racecourse rezoning, the Mount Barker rezoning, the Gawler Racecourse and the Gawler East rezoning.

My bill is very simple. It provides that the planning minister, having received advice from DPAC in relation to a DPA, must publish that advice. Members would be aware that the DPAC hearing on the Mount Barker urban sprawl DPA has now been going for 15 hours and is still unfinished. I have attended all the meetings so far, and one of the most common complaints expressed by residents, and others, is just how disrespectful the process is. It is disrespectful in that those who put in submissions never get to see how their submissions were treated or reflected in the final advice given to the minister by DPAC.

Those who write submissions have no way of knowing whether DPAC took them seriously or whether DPAC dismissed their concerns out of hand. All they know is the final gazetted approval of the DPA. In fact, most people do not even know that unless they read the Government Gazette, because nobody is obliged to actually tell them what was the final outcome of the process. In my view, it is disrespectful and discourteous to those who go to the trouble of engaging in the public consultation process, and I think it needs to be fixed.

When the minister finally makes a decision on a DPA, those who made their submission in good faith have no way of knowing whether the final decision made by the minister was consistent with the DPAC advice or whether it was against that advice. In short, the Development Policy Advisory Committee is a black hole into which submissions disappear. But it is not just community members who are calling for the change that I am introducing today; so, too, are local councils. In fact, as recently as this morning, I have been speaking with local council planners who tell me that they have called for the publication of DPAC's advice to the minister and that they, too, have been refused.

I think this is an outrageous situation when you consider that local councils often spend hundreds of hours and thousands of dollars of taxpayers' money putting together comprehensive submissions on behalf of their communities, only to find that they fall into that same black hole. On 14 September this year, I asked the minister a question without notice. My question was:

Will the minister release the DPAC advice on the Mount Barker urban growth DPA as requested by the community?

In his answer, the minister said that the role of DPAC under the act is:

Their role is 'to consider the submissions made on ministerial development plans and to advise the minister.' He—

meaning me—

would well know the history and that DPAC and its predecessors have been in operation for decades, and he would know that it has always been the tradition that those reports are not made public.

We have to question the value of that tradition. So, the starting point is: what does the act currently say? In relation to the secrecy, or otherwise, of DPAC's advice, the act is silent. Section 9 of the Development Act lists the functions of the Development Policy Advisory Committee. Paragraph (a) provides:

to advise the minister on any matter relating to planning or development that should, in the opinion of the Advisory Committee, be brought to the minister's attention;...

Paragraph (c) provides:

to advise the minister (on its own initiative or at the request of the minister) on—

There is a list of things, including subparagraph (iv) 'Proposals to amend development plans'. The act gives the Development Policy Advisory Committee functions, including advising the minister, but nowhere in this legislation does it say that that advice should be kept secret. It does not say anything about whether or not the advice should be published. It is silent and, in that silence, a tradition of secrecy has evolved.

The minister has on a number of occasions dismissed the concerns of the community about this process. Again, on 14 September, the minister said:

...but it is a side issue; it is not really the core of the issue. At the end of the day I will have to make the decision on the final form of the development plan, and I will be fully accountable, as I should be, for the final form of the development plan amendment. It is DPAC's role to consider the submissions that are made, but it has to consider them of course in the context of the planning strategy for the state, which now incorporates the 30-Year Plan for Greater Adelaide.

I agree that the buck does stop with the minister, but is he fully accountable? No, he is not, because we no idea on what basis he makes his decisions. Was the minister simply doing the bidding of private property developers? Did the minister even take any of the submissions into account? Was the minister's decision supported by any of the evidence?

If we take, for example, the Mount Barker situation, so far every verbal submission—over 15 hours—has opposed the proposal, and almost every one of the hundreds of written submissions has opposed the rezoning as well. The only submissions in support are from developers or the small number of property owners who stand to make a killing out of the rezoning.

The mechanics of my bill are quite simple. The bill provides that the advice from DPAC should be published. With the way it is worded in the bill there are two operative clauses, clause 3 and clause 4. Clause 3 relates to development plan amendments by a council, and clause 4 relates to amendments by the minister. The operative provision is very short. It reads:

The minister must, within two working days of receiving advice of the advisory committee—

(a) publish the advice on a website determined by the minister and make the advice available for inspection, and

(b) inform by notice in writing each person who made written representations that the advice is available.

There are two approaches I could have taken. One is to make the Development Policy Advisory Committee itself responsible for publication, and the other is the one I have adopted in the bill, and that is to make it the minister's job. There are arguments for both approaches. In some ways it may be better for the Development Policy Advisory Committee (DPAC) to do it itself, because that would show that it was truly independent, but I have gone for the approach of putting the obligation on the minister, who already has a suitable website and already knows the identities of those who have made submissions, and because the administration of this provision would be relatively simple and very inexpensive.

One of the arguments that have been offered continuously by the minister against the approach taken in this bill is in relation to frank and fearless advice. The minister says that, if DPAC advice was always published, it would be less frank and fearless than if DPAC knew publication was imminent, and it would somehow phrase its advice differently. I do not accept that proposition, but I agree that there should be some opportunities for DPAC to provide confidential advice to the minister, especially when it is exercising its power to advise the minister of its own volition and not because it is subject to any statutory duty to do so.

For that reason, in this bill I have limited the obligations on the minister to publish the advice only in relation to those statutory processes where the DPAC calls for public submissions. In those situations the advice should be published. That is what people have been calling for over the last 16 years, and that is what this bill brings about. In relation to the type of advice that DPAC gives the minister, it goes without saying that we generally do not know what that is, because it has largely been kept secret. However, I have a copy of one DPAC advice obtained under freedom of information, and that was in relation to the Cheltenham Park racecourse development plan amendment. This advice was given about two years ago.

In relation to the Cheltenham Park racecourse DPA, there were 793 submissions from the general public, there were 37 oral submissions delivered over two nights, and at least 170 people attended the first of the public hearings. Having now obtained a copy of DPAC's advice, it is clear to me that the DPAC did support that rezoning, and in fact I am prepared to say that I am not aware of any situation where the DPAC has ever rejected a ministerial DPA. I am not saying it has never happened, but I am not aware of it. The chair of the DPAC was asked at Mount Barker whether he was aware. He indicated that, maybe, in the dim and distant past it might have happened, but he could not identify it—and would not—because the DPAC has taken the approach for the last 16 years that its advice is secret.

I should say that even if the Development Policy Advisory Committee were to advise against a particular DPA there is nothing to stop the minister going ahead anyway and approving it, because at present the buck does ultimately stop with the minister, and he is under no obligation to accept any advice he has been given, whether from his department, DPAC or anyone else. What the community is demanding, and what this bill provides, is that decisions be more transparent and not be made behind closed doors with secret reports. So, this bill obliges the minister to release the report, the advice, within two days of receiving it.

Finally, I want to acknowledge the support received so far from Isobel Redmond, the Leader of the Opposition in another place, who was reported in the Mount Barker Courier of last week. I will read a couple of sentences from the article, headed 'Libs would back report's release', as follows:

The leader of the state opposition would back legislative changes to force the independent body investigating a growth plan for Mount Barker and Nairne to release its final report and recommendations. Isobel Redmond, whose seat of Heysen adjoins the Mount Barker region, said she would 'absolutely support changes to the system' that currently keeps the Development Policy Advisory Committee's (DPAC) advice under wraps.

The article further quotes her as saying:

It just beggars belief that they (the government) say 'we are not going to make this public'.

She is further quoted as saying:

My own personal view is the more open the process, the better.

I agree wholeheartedly with Isobel Redmond. To be completely transparent—because that is what I am calling on the government to do—I note that the article also says:

Ms Redmond has stopped short of committing to supporting Greens MLC Mark Parnell's planned bill to change the Development Act to force the report's release. 'It's a matter for the party room and it hasn't been considered yet in the party room', she told The Courier.

Well, she has not because I have only just introduced the bill today; however, it seems that what I propose is exactly what the Leader of the Opposition says in The Courier that she supports.

So I urge opposition members to listen to their leader and look on this bill favourably. I also call on crossbench members to support it. It has been the focus of just about every submission in the 15 hours that we have heard at Mount Barker, the five hours we heard over Cheltenham Park, and the five hours we heard at Gawler East. The community wants these reports made public. I also urge members of the government to support this bill. Here is a chance to replace a tradition of secrecy with a practice of openness. I commend the bill to the council.

Debate adjourned on motion of Hon. B.V. Finnigan.

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