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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-27 Daily Xml
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DEVELOPMENT (PRIVATE CERTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 November 2012.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (21:01): I rise to continue my remarks from when we last sat and indicate that the opposition is supporting the government's move to introduce private certification for planning consent, especially for the residential code and, I guess, a lot of the debate will revolve around that. I think the opposition and most members of the community support private certification, particularly where it responds to the residential code. Although the residential code is not prescribed in the act, it is, if you like, a tick-in-the-box development approval process for single-storey houses, garages, carports and the like.

Of course, the government has provided some information to the parliament this week and it is interesting. I have some information from the LGA that I might speak to shortly, some of the government's comment and also comment from the Australian Institute of Building Surveyors, who are already private certifiers and, I suspect, will be the body that is most likely to, if you like, add this particular string to their bow and take on this role in this particular field of private certification.

The government believes this will deliver economic benefits and that the applications for the residential code will be processed more quickly. They claim it will be processed within two to nine days. While I am sure that that is their intention, I am not sure that the economy under this government is robust enough for the people of this state to have the confidence to go out and purchase new houses.

Notwithstanding the government's intent here—and, as I said, the opposition is happy to support it—we really think that some of the expectations that have been raised by private certification are somewhat ambitious. Maybe once the economy recovers—I suspect it will take a change of government, a change of policy and a change of direction to see a full and sustained recovery—we may see some benefits.

The opposition is prepared to support private certification because we see it as an important step forward in the right direction but, really, the full benefits will not arise until we have an economy that is full of confidence and some sustained economic growth. The government claims that the time saving is a once-only positive economic impact arising from bringing forward constructions estimated in the order of 150 jobs and $17 million to the gross state product arising from additional incomes. Again, I think in this current environment that is somewhat ambitious.

They go on to say that, secondly, more applications will be lodged as residential code development rather than full merit assessments because of these private certifiers. They claim that this will deliver typical savings of between 12 and 34 calendar days, and that the proportion of assessments being residential code development is expected to increase by at least half. They then go on to claim within this briefing paper which has been provided to us all that the result would benefit in the order of 270 jobs per annum and some $30 million in gross state product each year.

Again, the government says they are conservative estimates and that the actual benefits are expected to be higher. I suspect that they are estimates that are somewhat bold, a bit like the population growth expected in the 30-year plan and some of the population targets in the 30-year plan. Nonetheless, as I said, we have seen this as a sensible move to provide an expeditious approach to development approval.

I will quickly touch on the LGA's comments in relation to the draft regulations that have been circulated—and I do thank the government for circulating the draft regulations. It was like pulling teeth with the Hon. Paul Holloway, when he was planning minister, to get draft regulations just so that we could see them, because when you have a bill with head powers you need to look at the regulations to see what they really mean. The LGA's main concern is still:

The...regulation provide Private Certifiers with the authority to determine a minor variation from a complying development, consult with other authorities and agencies and to request further information from the applicant and grant permission to vary development plan consent.

The LGA go on:

These activities are considered to be beyond the scope of assessing Residential Code Development and it is not necessary for a certifier to be authorised to undertake these functions.

I know that was a question that was pursued at length by the Hon. Iain Evans and Steven Griffiths (the member for Davenport and the member for Goyder respectively) in the other place, but I would like the minister, when she responds (whether it is later tonight, or tomorrow during the committee stage, or Thursday) to again give this council a guarantee that even though the regulations provide, from my understanding, the authority to determine minor variations of the complying development, this will be limited to the residential code.

I think that is where some of the concerns lie. I know that the Hon. Mark Parnell has filed one amendment in relation to the residential code, and that is certainly where the concern lies. The LGA has advised me that they do support private certification but are concerned with limiting it to the residential code and not allowing private certification beyond that reasonably narrow field.

I think it is interesting to put on the record the comments of the Australian Institute of Building Surveyors. I forwarded a copy of the regulations to them. I think this sums up the pretty typical response to a lot of things this government has done. I will say at the outset that the Australian Institute of Building Surveyors says it cannot see any issues with the regulations as written. However, they then go on and say:

We however believe this has been rushed through without any consultation with those who are required to implement this change.

That is, the building surveyors. Hello! It is what we often hear with this government, that is, things are rushed through and they simply do not consult. They go on:

The feedback we have been getting is that there is not going to be great uptake of these proposed changes as there are implications for the Private Certifier.

Again, this comes back to consultation and working with a group of people, the Australian Institute of Building Surveyors, to address some of these issues. The first one is insurance—the liabilities of the planning system. Secondly, conflict and inconsistency with local government—a question about liabilities—and the skills and experience in terms of planning by certifiers. They then go on to ask:

How has Section 92(1)(a)—Private Certifier involved in any aspect of the planning been alleviated?

Other comments from the industry have been:

Why the rush—time frames are too short for proper consideration of the implications.

Why are the regs structured such that the private certifier is given powers that he doesn't need for residential code development?

A good question, and these are questions I would hope the minister would bring back an answer to. They also ask:

Where is the demonstrated need for giving private certifiers these powers?

Where is the evidence that private certifiers will use the powers when given to them?

The next question is:

What is the government's plan if private certifiers do not take up the planning powers and stick solely to building rules.

They go on:

The government spent a large amount of money training local government planning officers in the residential code—what evidence is there that the private certifiers have sufficient knowledge in the rescode planning requirements to not require further training.

And I guess, if they do require further training, who is going to provide that training? They go on:

Could the poor uptake in the use of rescode planning in fact be the fact that the rescode requirements are too onerous and far too complicated for small complying developments.

Has the Government considered whether there should be an increase in the public liability and professional indemnity insurance requirements for private certifiers considering they now have both planning and building for rescode developments.

It appears to me that we should be looking to simplify the planning system, around the rescode (and all of the differences between [development] Plans) so it can be a simpler system. When there are statements in the Development Act such as below then the system is simple.

And it goes on to quote:

'The construction or alteration of, or addition to, an outbuilding, other than where the outbuilding is in a Historic Conservation Zone/Area, the Hills Face Zone, a River Murray Zone, the Golden Grove Residential Zone, the Golden Grove Residential D Zone or the Golden Grove Residential Policy Area in the Residential Zone of the City of Tea Tree Gully, or West Lakes General Policy Area 18 or West Lakes Medium Density Policy Area 19 in the Residential Zone in the City of Charles Sturt'

I think that explains how complicated some of our current planning processes are. I thank the Institute of Building Surveyors. They are more concerned that it appears that the introduction of select committee recommendations (and, of course, the Hon. John Rau, Minister for Planning now, was the chair of that committee), which they understood were to be rolling out and starting by this year with a code of practice, will be delayed. They are quite concerned that, under this model of private certification, this code of practice that was to be in place for the building surveyors now should also be in place for the private certifiers in relation to planning, and they are actually requesting an urgent meeting with minister Rau to try to resolve some of those issues.

The opposition, as I said, supports the implementation of private certification but I think you can tell by some of the comments raised by the Institute of Building Surveyors and the LGA that there are still some concerns, and I hope the minister addresses those concerns, and particularly some of the issues in relation to liability, skills training and the like that I raised on behalf of the Institute of Building Surveyors, because they are the ones who are most likely to take up the private certification role in respect of planning and they need some clarity from the government as to how they will be protected. With those few words, I indicate that the opposition will be supporting the second reading of the bill.

The Hon. M. PARNELL (21:13): The Greens will be supporting the second reading of this bill. Before I go into some of the detail of the bill and also outline the amendments that I have put on file, I make the observation that the government has said on a number of occasions, usually in the lead-up to elections, that the age of privatisation is over and they will not be privatising anything else. Whilst this is not privatisation of a scale that might concern most people, if we sit back and reflect, what we are finding is that a job that used to always be done by publicly employed people is now going to be done by private operators.

That regime first came into place with private certifiers being used for building rules consent. In other words, the job of signing off that the foundations were deep enough or the roof trusses were appropriately constructed was always the job of local council building inspectors but, some years ago, it was deemed appropriate to allow qualified private people to certify that the building rules were, in fact, all being complied with.

So now we move onto the next stage of privatisation, which is to allow private certifiers to say whether development plan consent should be granted. Just to remind members, a development approval usually comprises two parts: there is the building approval; and then there is the planning approval. After the passage of this bill, for some forms of development, private operators will be able to make both those decisions.

The key players, key stakeholders, in this debate include the Local Government Association and the planning institute. The Local Government Association is clearly interested because up till now it is local councils that are providing probably more than 90 per cent of development plan consents. The Planning Institute of Australia (PIA) is an interested party because part of its mandate is maintaining appropriate professional standards for people who do, amongst other things, sign off on planning decisions.

The approach of both those organisations is something that I think we need to pay careful attention to, and I will start with the position of the Planning Institute of Australia, and members would probably have all received the letter dated 25 October 2012 signed by the state President, Dr Iris Iwanicki. That letter includes the following:

The South Australian chapter of PIA is generally supportive of the implementation of private sector certification of planning approvals consistent with PIA policy on this matter. Further, PIA is keen to contribute to the development of a model to streamline planning processes. It is also supportive of planning certification that will allow planning decisions to be made by experienced and capable professionals with clear commitments to ethical conduct, continuing professional development and business and community outcomes.

The PIA considered it an important part of the development assessment system that the community has confidence in the decisions of relevant authorities, and that the introduction of private certifiers into the system will require a mechanism for establishing the relevant individual's suitability to operate as private certifiers and make appropriate decisions.

The Planning Institute of Australia is not opposing the entry of additional private sector players into this field, but it is keen to maintain professional standards. The letter also includes the following:

It is the view of PIA that the provisions of private certification for approval of minor development applications should enable local government resources to be better prioritised with qualified planners to respond to emerging social, economic and environmental issues of relevance to planning for the development of our towns and cities.

I will just pause there, because amongst the planning profession it has often been noted that with so many big, important issues that they could be working on, a lot of their time was spent on retaining walls, fences and carports. As important as those things might be for the individuals concerned, whether it takes a three year—or longer—university degree to be able to deal with carports, I think is a moot point. The planning institute goes on to say:

However, in the current legislation, once section 89(3) is deleted as the bill proposes, regulation 89 could be changed to allow full merit assessments to be undertaken by private certifiers.

I will need to explain to members what that means. What the planning institute is concerned about is that once the absolute prohibition on the use of private certifiers in providing development plan consent is lifted, unless it is further constrained, it would be possible for the government by regulation to vastly expand the scope of work that could be done by private certifiers and the scope of decisions that could be made by private certifiers.

I fully believe that that is not the government's intention; and, in fact, the government has circulated draft regulations and it has made it clear that the type of approval that it is comfortable with private certifiers being able to sign off on will be limited to what is known as residential code development, and that is in a nutshell fairly minor forms of development that certainly do not involve neighbour notification and listening to the objections of neighbours or anything that requires, for example, public hearings to be held.

Yet, I think the Planning Institute's concerns are well founded because it is difficult, in the absence of statutory limitation, to be completely confident that a future government will not come along and say, for example, that industrial development in South Australia is taking too long to go through the approval process and that we will allow private certifiers to sign off on all future industrial development. It would be technically possible for that to happen unless we deal with the act.

In conversation with the Hon. David Ridgway, speaking about my amendment, I pointed out to him that a form in which I know he is very interested—that of wind farms—might find itself by regulation on a list of matters that could be dealt with by regulation. Again, I do not pretend for one minute to believe that the government has that in mind at all. The point is that if the prohibition against private certifiers making planning consent decisions is removed without constraint, it would leave that door open to future governments.

I go on now to the submission of the Local Government Association. I will not deal with their whole submission as they raise many of the same concerns as the Planning Institute, but they say in relation to this matter:

The Bill proposes the deletion of Section 89(3) to remove the existing impediment to a private certifier issuing Development Plan consent. The Minister for Planning has stated that authority for a private certification to issue a Development Plan consent will be limited to applications which satisfy the criteria of the Residential Code outlined in the Development Regulations 2008, Schedule 4, Part 1. However, there is concern that the unfettered removal of this Clause from the Act will allow for future changes to Regulation 89 to allow for full merit assessments to be undertaken by Private Certifiers. As such, it would be preferable to amend Section 89(3) rather than delete it.

That is precisely what I propose in the amendments I have tabled. When the local government talks about 'full merit assessments', they are talking about forms of development that are not necessarily complying. They might not be envisaged in the locality—they might attract public representation rights—and clearly a private certifier is not set up to be able to deal with the range of issues, such as public comment and the conduct of a public hearing that might be required. It is completely out of order to think that a private certifier would be acting as judge and jury and effectively executive rather than executioner.

I do not think it is appropriate that the private certifiers have that role, so the amendment I have put forward is slightly different from what the Planning Institute and Local Government Association have asked for, for the simple reason that it is not possible in an act of parliament to refer to this concept of the residential code because it is a concept in the regulations, which might subsequently change. I have got as close as I can and it does pick up residential code matters.

The amendment I will propose basically says that the regulations may not authorise a private certifier to undertake any form of planning approval for anything other than residential development, that is, complying development, and that also falls within a class of development prescribed by the regulations. In other words, if a future government decided that the private sector was to be responsible for more detailed and contentious planning issues, they would have to come back to the parliament for those changes to be made.

This is a very sensible amendment which does not in any way whatsoever undermine anything that the government has said it wants to achieve through this legislation. It allows the government to implement 100 per cent of its stated agenda, but it does provide that level of protection from a future government that might decide that the private sector is a suitable body to deal with these more contentious issues.

I have tabled a second amendment that relates to the duties of private certifiers, in particular, their duty to provide access to the information that they hold. Members would be aware that, when a local council is dealing with development applications, all of the paperwork has to be included on a public register that is available for members of the public to inspect and, in some instances, to obtain copies.

That I think is an important democratic measure. It does allow people affected by development to actually go to the source material and find out exactly what is proposed. If the paperwork is all going to be lodged with a private certifier, the difficulty we have now is: how do we make that material as accessible to the community as it would have been had the application been lodged with a local council?

The response, I believe, is twofold. The first thing to do is to make sure that, whilst the private certifier has the conduct of the matter, that person be bound by the same disclosure regime as a local council would be subject to. That is the first thing. The second thing is that private certifiers are different from local councils in that they do not have perpetual succession. A private certifier can die, resign or quit the industry, and the question then has to be asked: what happens to all of the paperwork?

I am sure it is assumed in this legislation that the paperwork will be forwarded to the local council. I am sure that is assumed, but I think we need to state that explicitly. Once the private certifier has forwarded the file, as it were, to the local council, then I think that private certifier should be protected and immune from having to deal with requests for access to information.

I think this is quite a neat arrangement whereby the rights of the community are preserved but the obligations on private certifiers are not made open-ended and they are not made too onerous. At the end of the day, the plans, the drawings and the specifications that relate to that planning decision need to be held by the local council where they can be properly archived and held in perpetuity.

They are the two amendments that I have put forward. From talking to members, I understand that there is a great deal of support for at least one, and I am hoping both, of these amendments. I am more than happy to discuss with members whether there is any tweaking that is required to them, but I believe they do the job required of them. On that note, the Greens are pleased to support the second reading of this bill and I look forward to moving these amendments when we get into the committee stage.

The Hon. J.A. DARLEY (21:27): I rise to speak briefly on the Development (Private Certification) Amendment Bill 2012. As members know, the bill will enable the same process applicable to building approvals to also apply to residential code development approvals. It will provide applicants with another avenue for approval in that they will have the option of seeking residential development approval either through private certifiers or through the existing council approval process.

I am pleased to see the government taking the initiative to introduce these changes. This is an issue I first raised with the government over a year ago. The Minister for Planning was receptive to the idea and, over the past year, I have met with the department several times to discuss its progress. I understand there were several options under consideration in terms of streamlining the residential code approval process. However, I am pleased that the government has chosen to proceed with what I consider the most logical approach.

My concern about the time it takes to receive development approval was confirmed earlier this year when my son had to wait six months for development approval for his home. It was by no means a contentious application and council did not express any specific concerns about it. Notwithstanding that, it took some six months for his development to be approved. Going back some 15 years, when I waited two years for development approval to extend my own home, we can see that not much has changed in terms of lengthy delays in this area. There is no question that something needs to be done to fast-track the current process.

Private certifiers are already used to approve building rules applications. This has resulted in the streamlining of this process and has saved time and money for homebuilders, the housebuilding industry, councils and ratepayers. I expect that the same will result for development approvals if there is an option to use private certifiers.

The benefits of private certification are well outlined in a paper prepared by Connor Holmes, Heynen Planning Consultants and Hudson Howells, which I understand has been circulated to all honourable members. Perhaps one of the most obvious benefits over the current system is that more applications will be lodged as residential code applications rather than full merit assessments, a process which I understand has become the norm rather than the exception.

In closing, I think this is a good first step in terms of ensuring a simple and effective assessment method, and I look forward to further discussions with the minister concerning other development approval processes which could potentially benefit from similar reforms. With that, I support the second reading of the bill.

Debate adjourned on motion of Hon. Carmel Zollo.

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