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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-04-10 Daily Xml
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DEVELOPMENT (DEVELOPMENT PLAN AMENDMENTS) (NOTIFICATION) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:08): 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 (16:08): I move:

That this bill be now read a second time.

When I explain the purpose of this bill to ordinary South Australians, their first reaction is they cannot believe that the measure I am introducing is not already in law. The question that this bill addresses is whether or not it should be possible for a state government or a local council to rezone somebody's property without telling them about it. The answer to that question under the current Development Act and regulations is a clear yes. There is no obligation for a local council or the Minister for Planning under a development plan amendment (DPA) to actually notify the people whose properties are directly affected.

Members would know that the development plan amendment process is one of the key parts of the Development Act whereby the rules about what can and cannot be developed in which places are established. So changes to a development plan—whether it be a rezoning, a change to height limits, a change to setbacks or minimum lot sizes, or any of the other matters that go to the question of planning—under the current regime, can be made without telling the owners. I think that is wrong and I think that it is easily fixed, and that is what this bill does.

I will mention some of the controversial DPAs that members would be familiar with, just to refresh your memory about the sorts of things we are talking about: certainly the ministerial rezoning of Mount Barker; we have had rezonings at Gawler East; the Cheltenham Park Racecourse, of course; the St Clair proposed development; and the Glenside Hospital. They were all changes of zoning, but we have had other changes that have not involved a change of zone but have involved, for example, changes to building heights, such as the ones currently under discussion in Burnside, Unley, Prospect and along the River Torrens Linear Park.

Under the current Development Act and regulations, the only obligation on the minister or a council—and this is under regulation 11A—is to put a notice in the Government Gazette and in a newspaper. If we start with the Government Gazette, apart from those of us whose job it is to know what is going on, I do not think I have ever met an ordinary South Australian who reads the Government Gazette. I understand that the gazette process is time honoured and formal, but it is not the way to get to South Australians who need to know things.

Newspapers are certainly a bit better. Most people have the ability to get a newspaper, but the number of people who read newspapers and the number of people who get to the public notices section is small and it is diminishing. It still begs the question: why should you have to be notified about something that so directly affects you that you need to go to a newspaper?

I note that there are some changes to development plans where owners are directly notified. For example, if the proposed change is to list your property as a heritage item, as a local heritage place, then you do have to be directly notified, but in other cases you do not. I recall some advice that I gave someone once when they rang and asked me how it was possible for their house to have been rezoned from residential to flood plain without them being told, and my advice to them was, 'They didn't have to tell you. If you don't read the Government Gazette and you didn't get a local newspaper and didn't see the notice, then, under the current regime, that's your fault and there's nothing you can do about it.'

This amendment is very straightforward. It says that, when it comes to development plan amendments, whether instituted by the government through the ministerial DPA process or by the local council, the obligation on the minister or the council at the time that the DPA is released for public consultation is to take reasonable steps to give notice to owners and occupiers of land that is directly affected by the operation of the proposed amendment that they have the right to make a submission and the right to appear at a public meeting.

The form that that direct notification should take I have left to the regulations. In other words, it may well be that in some cases an addressed letter is appropriate; in other cases, it may well be something in every letterbox is what is needed. The bill proposes that the council or the minister has to take reasonable steps to make sure that people get notice. I have extended it beyond those directly affected to the neighbours of those directly affected. That, of course, is clearly important for cases relating to building heights, where you have a situation where a person is potentially overshadowed by taller buildings next door. I believe they have the right to be told what is about to happen, or what is proposed, and the right to put in a submission and to front the meeting.

However, I do appreciate that, taken to its logical extreme, there may well be some inefficiencies in having a blanket rule that every change to planning has to notify every affected person because, of course, there are some cases where a minister might propose a change to planning that affects everyone in the state. These are the so-called statewide DPAs. My bill covers that situation by providing that there is no obligation to consult every person on a statewide DPA.

However, the vast majority of these DPAs do not affect the whole state; they affect limited numbers of people, and this bill makes it obligatory for those people to be notified. When I say 'obligatory', the obligation is to take reasonable steps, and there is a provision in the bill that states that just because someone who had a right to be notified was not notified, that does not invalidate the DPA. It does not invalidate the rezoning, it does not invalidate the change that was made to the planning rules. I think that provides a level of protection. We do not want to see unnecessary technical challenges on the basis that someone did not get a notice in the letterbox. I think that would be unreasonable.

This bill is really about changing the culture. It is about governments and local councils recognising—even though we are imposing it on them—that people who are affected by their decisions have a right to be told. I do not think this need be that hard at all. I think any of us could put ourselves in the position of the chap I mentioned earlier, who had his house rezoned from residential to flood plain; we would expect to be told that we had a right to comment on a change such as that.

In conclusion, this bill, along with the last amendment to the Development Act which I introduced some time ago and which this council, to its credit, successfully passed, is a bill I am putting forward on behalf of the Community Alliance, the umbrella group of resident associations and other groups around South Australia who have been individually fighting for justice in relation to development issues and who are now collectively fighting for justice. This is one of the issues that was identified by their members, and I am very pleased to be introducing it to parliament today. I commend the bill to the council.

Debate adjourned on motion of Hon. K.J. Maher.

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