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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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DEVELOPMENT (INTERIM DEVELOPMENT CONTROL) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 September 2012.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (21:41): I rise on behalf of the opposition to speak to the Hon. Mark Parnell's Development (Interim Development Control) Amendment Bill 2012. As members would be aware, this is a reaction from the Hon. Mark Parnell to the abuse of the interim DPA powers that we have seen under this current government—of course, the government that he and the Greens preferenced back into power at the last election.

An honourable member interjecting:

The Hon. D.W. RIDGWAY: Get used to it; it is going to be thrown in every time I can throw it in. People need to understand that you cannot have it both ways: you cannot criticise them and then say, 'Oh, here, have our preferences and get back into government.'

Nonetheless, I am delighted to be able to speak on behalf of the opposition on something that has been concerning the opposition for some time, the way that the powers of the interim development control have been exercised. I will come back to that shortly, but one that sticks in my mind, in particular, was the interim statewide development plan for wind farms. That took away third-party appeal rights and changed the rules totally, which was not in the spirit with which the legislation was put in place. I do not recall, in any of the years that the Hon. Diana Laidlaw was planning minister, this provision being abused in the way it has been by this current government.

Of course, everybody points the finger at one of our former members here, the Hon. Paul Holloway, as being the minister who was the most likely to use, or abuse, this power, but I remind members that it was the Deputy Premier, the member for Enfield, the Hon. John Rau, Minister for Planning, who unloaded upon the state the statewide wind farm DPA, which took away third-party appeal rights, as well as a number of other provisions in relation to wind farm developments.

However, I think it is also important to have balance in these debates because often some of the other stakeholders are overlooked, in this case the opposition, saying, 'Yes, we think it has been abused.' I am sure the government will come back and say that it has not been abused, but we would expect that from this government, the mob that were preferenced by the Hon. Mark Parnell back into power at the last election.

I want to read into the record—the Hon. Gerry Kandelaars may do it, but I am beating him to the punch—a letter received from the Urban Development Institute, which is probably the group that some would say benefits most from these changes if they change the rules to allow development to happen. This spirit of this was for there to be a freeze on the existing provisions, and then you would consult on what the changes might be. After a period of time, no longer than 12 months, the new development plan amendment would be brought into place.

The Urban Development Institute has written to a number of people, and this is a copy of a letter written to the minister, the Hon. John Rau. I will read it into the Hansard because I think it is important that their point of view goes into the record. It states:

The Urban Development Institute of Australia (SA) [UDIA] is aware that the Hon. Mark Parnell MLC introduced the Development (Interim Development Control) Amendment Bill 2012 in the Legislative Council yesterday, 19 December 2012.

I am not sure, but I think they are a little like the Premier; sometimes they do not know what day it is. We saw earlier that the Premier wanted to have a debate in the House of Assembly last week when parliament was not sitting. It was September. The letter continues:

The Hon member explained this Bill was to 'amend the "interim development control" provisions of Section 28 of the Development Act 1993.'

Members of the urban development industry, and no doubt citizens of South Australia, would be aware that s.28 of the Development Act 1993 allows a Development Plan Amendment (DPA) to be introduced on 'Interim Development Control', meaning that the policies proposed by the DPA take immediate effect.

This is an important provision of the Act because it allows zoning changes to be introduced where time is of the essence. While most often used to prevent development occurring during DPA consultation that would be hostile to the intent of the DPA (for example, to prevent buildings proposed for heritage listing being demolished during consultation), it is also a very important avenue for avoiding unnecessary and costly red-tape delays in relation to urgent and important investment proposals.

Our industry believes this current arrangement is working well. Ministers have a track record of using this provision responsibly, even when they do so with the aim of facilitating (rather than stopping) development.

The suggested amendments proposed by the Hon Mark Parnell will do nothing more than remove one of the few remaining options that the Government has to fast-track investment and development. While infrequently used for this purpose—and wisely so—it is nevertheless critically important that the option remains open to this and future Governments.

The Development Act is an instrument for promoting and facilitating quality investment and development to underpin the future of the State. To fulfil this role, it must continue to offer options to consider urgent development proposals through streamlined assessment pathways. To deprive this and future Governments of this option will only serve to tie up good proposals in red tape and bureaucracy.

They strongly oppose the amendment and urge all members of the parliament to accordingly vote against it.

As I mentioned earlier, we saw the statewide wind farm interim DPA. It covered the whole state and it was in relation to wind farms, but it took immediate effect and of course as members, if they are not aware, should be aware, any development application that is lodged when an interim development plan is in place is assessed at that time against those provisions. We have, as we said, 48 per cent of the nation's wind farms in South Australia. We had just about as many already approved before this measure was put in place, and for some reason—and nobody has yet been able to work out why—premier Rann and minister Rau (Deputy Premier Rau) decided that it was important to take away people's rights and it was important to have an interim measure when there was a backlog of projects waiting to happen.

As the Urban Development Institute talks about it being a tool to facilitate development and to fast track it and move red tape and bureaucracy, in this particular example we had almost 1,200 megawatts of wind farm generator capacity waiting to be developed that had already been approved. It flies in the face of anything that the UDIA has said and it flies in the face of most things that the government has said in relation to the use of this particular provision.

It is particularly alarming when it is used in that particular way. As I said earlier, when the Hon. Diana Laidlaw was minister, my recollection is that it was never used to take away people's existing rights; it was to freeze what was the existing norm at the time. I think the Hon. Mark Parnell has read the Hon. Don Hopgood's briefing note or planning circular—I forget the number, but whatever it was he will know it; it is about 31 or something.

The Hon. M. Parnell: 1980.

The Hon. D.W. RIDGWAY: It was a long time ago—1980. I think everybody accepts that the intention was that it would put a freeze on it so that people could not be opportunistic or knock down a heritage building or do something that gave them an advantage because they knew the government was consulting and likely to change. I think everybody has accepted it was a sensible provision. Under Liberal governments it has never been abused and now of course we see ourselves confronted with a piece of legislation because this has been abused in a number of examples—some more so than others. As I said, the one that I think sticks out the most has been the statewide wind farm DPA, although it is interesting to note that when the Capital City DPA was implemented on an interim basis I think there were seven development applications lodged within a week. That is interesting because it takes a fair while to develop a $20 million or $30 million project.

It is interesting that minister Rau, the Deputy Premier of this state, imposed an interim development amendment on this Capital City and, within a week, we have development applications for seven developments in the millions of dollars. It is not like one of us saying we are going to build a carport or something pretty simple: these are multimillion dollar developments that just happen to be ready to go a week after the minister had declared an interim development plan.

It is interesting that that same minister—after he became minister and after some of the early stages of Mount Barker started to unravel—said it would never happen again on his watch. Yet on his watch we have had seven development applications lodged within a week of him declaring the interim DPA. We had him declare the whole state an interim DPA in relation to wind farms and yet he would say on his watch that Mount Barker would not happen again.

I know that the Hon. Mark Parnell and others are pursuing the Ombudsman's report and there are some ICAC discussions going on. Maybe there is a whole range of things that should be looked at in a lot more detail because it seems just too much of a coincidence that we would have seven applications lodged within a week of the minister declaring the Capital City DPA as an interim DPA. I do not want to prolong the evening—

Members interjecting:

The Hon. D.W. RIDGWAY: Everybody is very happy with that.

The Hon. J.M.A. Lensink: Keep going.

The Hon. D.W. RIDGWAY: Thank you; my colleague the Hon. Michelle Lensink asked me to keep going. If I had those notes written down I would repeat them but I do not have them all written down; they are in my head.

The Hon. G.E. Gago: We can tell; you're rambling.

The Hon. D.W. RIDGWAY: Finally, the minister has something to interject about. I indicate that the opposition will be supporting the Hon. Mark Parnell, although I always put the caveat that we do not necessarily think that this is something that we would necessarily do in government. The Liberal Party has a track record of never abusing—people laugh. Tell me when the Liberal Party abused this provision? Never; it has never ever happened. I do not want to be rolled into the same category as this lot—

The Hon. A. Bressington: No, I wouldn't either.

The Hon. D.W. RIDGWAY: I would like to be judged on our performance. When the Hon. Diana Laidlaw was planning this when we were last in government this provision was not abused. We are very happy to support the Hon. Mark Parnell tonight. It is an indication that we are not happy with what has happened and we think it deserves a lot more scrutiny because some of the decisions, quite frankly, do need closer inspection. With those few words I am very happy to support the Hon. Mark Parnell's amendment and look forward to further debate.

The Hon. G.A. KANDELAARS (21:53): I rise to give the government's response. Through this bill, the Hon. Mark Parnell proposes suggested changes to the use of interim powers under the current planning system. The suggested changes are thoughtful and the government accepts that they are brought forward by Mr Parnell in good faith based on concerns about how powers have been used on occasion.

However, the government cannot agree to an amendment of this nature without also solving the issue of delays in the rezoning process which bedevil the planning system. These delays in the rezoning process are among the reasons why ministers from time to time use the interim development control powers in the way which Mr Parnell seeks to prevent through this bill.

The government is happy to discuss this issue further with the Hon. Mark Parnell and other interested members, to look at how these issues could be taken forward in the context of a more holistic solution to the rezoning delays and the issue of better zoning policy consistency. We are also working with the Expert Panel on Planning Reform announced by the Minister for Planning recently to explore these issues further. While the Hon. Mark Parnell's concerns are appreciated, the government believes this bill is premature. We would, however, be happy to return to discuss this issue if further conversations can produce a package of integrated measures to address rezoning issues generally. Accordingly, the government opposes this bill.

The Hon. K.L. VINCENT (21:55): I will not hold up the progress of this bill or the procedures of the chamber for long, but I would like to put on record Dignity for Disability's support for the Hon. Mr Parnell's bill. Development and urban planning matters are not the areas that constituents and the community are in regular habit of contacting my office about. In fact, I am sure many of them would love to have the luxury of the time and energy not to be so wrapped up in matters of, I suppose, pure survival and to be able to discuss these things more. In any event, they are not things that are discussed too often with my office.

However, I have to say we have received a vast array of correspondence on this particular bill before us and, to the best of my recollection, not one person who has contacted my office on this bill has been opposed to it. So, clearly, there is a lot of community support for it and, therefore, I am very happy to put our support behind it also. I would like to thank all the individuals, community organisations and residents' groups that have taken the time to contact me with submissions seeking my support for the bill. Some of the residents' associations and surrounding areas include, but, of course, are not restricted to those from Kensington, Norwood, Mount Barker, Callington, Dulwich, Rose Park, Western Adelaide Coastal Residents Association, Goolwa and Prospect. Community Alliance SA is also a ferocious supporter of these reforms, as an umbrella organisation that represents a broad range of community and resident groups.

So, clearly, again, I reiterate that the community is very unhappy about what has been occurring in relation to development and, therefore, so should this parliament be very unhappy. Since recent and past experience shows very clearly that we cannot rely on this Weatherill government to live up to its own promise of consult and decide, we do, therefore, rely on non-government members to raise issues such as this and, so, I commend the Hon. Mr Mark Parnell on doing just that. I see this bill as an opportunity to start correcting at least one area of the government's wrongs in this portfolio and, therefore, I commend the bill to the chamber.

The Hon. A. BRESSINGTON (21:57): I also rise to indicate my support for the Hon. Mark Parnell's bill and, like the Hon. Kelly Vincent, I have had numerous representations to my office about this. Again, like the Hon. Kelly Vincent, this is not an issue which normally comes across my desk very often. I think, given the vast array of letters, submissions and requests to support this bill, it is a very clear indication from the community that all is not well. I think we get this now more and more, where we are seeing community activism starting to rise because of the absolute dissatisfaction with a government that is tired and arrogant and, I believe, at the end of its days.

They have stopped listening and they stopped listening a long time ago, and now they are more deaf than they were 12 months ago. Of course, the dividend of that is that people are actually starting to take an interest in what is going on in their community, they are starting to get active about it, and they are starting to speak their mind, which is the sign of a very healthy democracy.

So, with those very short words, I congratulate the Hon. Mark Parnell for putting this forward, and I also acknowledge his life prior to politics, being involved in planning and development and, I believe, some cases fought out in court over such issues. I acknowledge that he does have some background and some level of expertise in this area, and that he is acting on what he knows rather than what the government is doing, which is acting on what they think they know. I will leave that with the house and, again, commend the Hon. Mark Parnell for the bill.

The Hon. J.A. DARLEY (22:00): I am unable to support the bill of the Hon. Mark Parnell because I believe that, until such time as we have canvassed all the options available to speed up the zoning process, this bill is premature.

The Hon. M. PARNELL (22:00): I would like to begin by thanking the Hon. Kelly Vincent, the Hon. Ann Bressington and the Hon. David Ridgway for their support and I also thank the Hon. John Darley for putting his views on the record. I would like to say that I am sure we can address some of those issues and I understand where he is coming from. I also thank the Hon. Gerry Kandelaars for his contribution.

I am delighted that this bill clearly has the numbers in the Legislative Council to pass tonight. I want to make a couple of brief observations about the contributions from the Hon. David Ridgway and the Hon. Gerry Kandelaars. Then I want to very briefly explain an amendment that I have filed. If I explain it now I will not need to explain it again in committee, so it will save us time. Then I want to quickly put on the record some of the contributions that have been received since this bill was introduced.

In terms of the Hon. David Ridgway's contribution, I am delighted that he is supporting the bill now. He referred to the Urban Development Institute of Australia; they provided a letter, to which I think the best response is, 'They would say that, wouldn't they?' because one person's red tape and bureaucracy is another person's rights to public participation and engagement in the planning system.

They make the point that it is a slower system where you actually have to consult the community and you have to talk to the community. It is much faster if you can, in dictatorial fashion, impose a rezoning and have it brought into effect immediately. Of course that is quicker, but I appreciate that the Hon. David Ridgway has put that on the record and it can just sit there.

The Hon. Gerry Kandelaars raises the point, and it is a point I will come to again in a second, that the government uses—I say, abuses—interim operation because it is too slow to get a rezoning through in the normal fashion, to which my response is, 'You're the government; you've got control of the legislative agenda. If there are efficiencies that can be introduced in the rezoning system, the DPA system, let's debate those in parliament.' It seems a bit rich for the government to say that it is somehow the Greens' problem to fix up the delays that they have ignored for years and years and that until I can come up with a complete package of reforms to address delays, they are not prepared to address abuse. That is just an illogical position to take.

I just need to quickly put on the record the amendment that I have foreshadowed; it has been filed. It comes from the period of the last six months while I have been consulting on this bill and it did become apparent that the bill would not necessarily work in every case to prevent misuse of interim operation. The Planning Institute pointed out to me that some of the controversial developments that have been approved under interim operation might slip through the net if they are regarded by the minister as reasonable, notwithstanding the clear intent of the legislation. They say to me in correspondence:

While a practice circular on interim authorisation dating from the 1980s stated that interim operation would be introduced only to avoid inappropriate development contrary to the intent of the amendment to a Development Plan, the use of interim effect to encourage high rise or other types of development appears consistent with what the minister regards as 'reasonable' given current state planning policy and objectives in 2013.

So, I have added a subsection that refers to how applications for development approval should be treated under interim operation and the amendment works like this: where an application for development approval is lodged during the period of interim operation, it must be assessed against both the development plan as it existed prior to the interim DPA and also against the development plan as amended by the DPA.

If the outcome—be it approval, refusal or approval subject to conditions—would be different under both those assessments, the development approval must not be granted or refused or conditions attached until the interim operation period has ended and the DPA has been finalised. If the outcome would have been the same, approval can be given. This ensures that routine developments that might be within an area affected by an interim operation provision can still be approved if they are not directly affected. However, any development where the result would be different is effectively put on hold.

This provision has no work to do if the minister stops abusing the interim DPA process. This amendment would also put pressure on the minister not to drag his or her feet and to finalise the DPA sooner rather than later because, if the process is abused, some development applications will still be languishing.

The other change I have introduced in the amendment I have tabled is to make sure that the minister cannot downgrade public participation rights using an interim DPA. Where the effect of an interim DPA is to alter the public notice category for a particular type of development, any application for development approval considered during the interim operation period shall be regarded as being the higher of the two categories. In other words, if it is a change from category 2 to category 1, then it remains a category 2 during the interim operation.

Lastly, I have included a provision that requires the minister to consult the Development Policy Advisory Committee (DPAC) before declaring interim operation. This provides an extra check on the appropriate use of this power. This was a specific recommendation of the Planning Institute, and I thank them for that feedback. In relation to the bill, the President of the Planning Institute had the following to say:

The Planning Institute of Australia supports legislative reform that would make the planning process transparent, consultative and effective. The amendments you have suggested...would enable a higher level of community engagement, identify resident and neighbour issues related to proposed planning polices and enable comment on interim amendments consistent with the intent of wide consultation during the exhibition period originally provided by the legislation.

I should point out that the Planning Institute's division committee does not meet until April and, in the absence of their formal position, Dr Iris Iwanicki has offered that submission as her personal comment, which she says is consistent with the Planning Institute's policies relating to achieving better communities through planning and the PIA code of conduct. In earlier communications from the Planning Institute, they acknowledged that the harm that is sought to be overcome by my bill is real harm. They say:

PIA (SA) acknowledges the inherent contradiction in seeking public submissions during the interim period whilst consenting to developments enabled by interim policies—prior to consideration of the wider business and community's inputs on the interim arrangements. The situation is confusing to the public. The process suggests to the community that public comment on the policies introduced under interim effect is unlikely to result in significant review of the amendments to the Development Plan unless planning consents issued under interim authorisation are contingent upon final authorisation of the amendment. This is because of the perception that any submissions that raise reconsideration of the interim policies stand to compromise approvals that have been granted during the interim authorisation period. Given the lack of appeal or representation rights because of Category 1 notification, developments encouraged by interim planning policies are unlikely to be subject to reversal given the significant investment made by applicants in seeking (and obtaining) planning consent under the provisions of the Development Act and Regulations.

I acknowledge to members that this is highly technical and possibly washing over the heads of many people, but it is important to put on the record the effect of the bill and the amendments to it that I have tabled. I will also refer briefly to the submission of the Local Government Association of South Australia. They say:

The use of Interim Operation for several recent Development Plan Amendments...has been of concern to Local Government. In particular, the Statewide Wind Farm, Capital City and Adelaide Oval Footbridge DPAs, in our view have been released on Interim Operation for the purpose of 'fast-tracking' favoured developments by distancing the community from important policy decisions.

The use of Interim Operation provisions provide an important safeguard against inappropriate development in relation to DPAs that propose more stringent development controls such as heritage or environment conservation. However, the use of this provision to expedite the approval of certain types of development for the economic benefit of a particular industry is considered to be inappropriate and at odds with the historical intent of Interim Operation controls.

I will not read the whole of their submission, but they basically say that they hope that my efforts are rewarded with a successful outcome. They are supporting the bill.

The final thing that I want to do is acknowledge, as other members have, the important contribution of the Community Alliance. This, as members must now know, given the amount of correspondence you have certainly received, is an umbrella group of most of the active local residents associations that have been working in the planning field, the environment field and the community development field right across the state over many years. I am delighted that members of the Community Alliance have come to the parliament today to see democracy in action.

I specifically want to make mention of a number of the groups that I know have gone out of their way to make their views known to members of parliament. I would like to acknowledge the Adelaide Showground Area Residents Group, the Cheltenham Park Residents Association, the Gawler Environment and Heritage Association, the Gawler Region Community Forum, the Kensington Residents' Association, the Mt Barker & District Residents' Association, the No Dam in Brownhill Creek Community Action Group, the Norwood Residents Association, the Prospect Residents Association, the South-West City Residents Association and the Western Adelaide Coastal Residents Association.

On top of that, there are many, many individuals from all over Adelaide and the rest of South Australia who have taken the trouble to contact members of parliament with their concerns. I am delighted that this bill will have the support of the council tonight and I look forward to its speedy passage tonight through the remaining stages.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. M. PARNELL: I move:

Page 2, after line 22—Insert:

(1b) The Minister must consult with the Advisory Committee before the Minister acts under subsection (1).

I have already explained this amendment; I do not need to explain it again.

Amendment carried.

The Hon. M. PARNELL: I move:

Page 2, after line 22—Insert:

(3) Section 28—after subsection (6) insert:

(7) Despite any other provision of this Act, while an amendment to a Development Plan is in interim operation under this section—

(a) any application for a development plan consent in respect of which the amendment is relevant must be assessed against the provisions of the Development Plan immediately before the amendment was made and the provisions of the Development Plan after the amendment was made and if the decision on the application would be different depending on which version of the Development Plan applies (including with respect to any condition that would apply in relation to the development)—

(i) development plan consent must not be given until the amendment is no longer in interim operation; and

(ii) the application must then be assessed at the end of the period of interim operation against the provisions of the Development Plan as in force immediately after the end of that period (and section 53(2) will not apply); and

(iii) any period that applies under section 41 will be suspended while the application is subject to the operation of this paragraph; and

(b) if the amendment changes the category of any development so as to reduce the level of consultation under section 38, any application for a development plan consent in respect of which this aspect of the amendment is relevant must be considered under section 38 as if the amendment to the Development Plan had not been made (unless or until the amendment is no longer in interim operation).

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. M. PARNELL (22:15): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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