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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-07-03 Daily Xml
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DEVELOPMENT (DEVELOPMENT PLAN AMENDMENTS) (NOTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 April 2013.)

The Hon. CARMEL ZOLLO (16:59): This bill seeks to mandate direct notification of all owners or occupiers of land directly subject to the operation of amendments proposed in a development plan amendment or DPA, as I will refer to it through the remainder of this contribution. This will apply to all council and ministerial DPAs, other than statewide ministerial DPAs. The government opposes this bill.

An honourable member interjecting:

The Hon. CARMEL ZOLLO: Well, we look forward to what the opposition has to say very shortly in relation to the proposed policy by the Greens. I think it is about time we heard what the opposition's policy is in relation to these matters.

While the government appreciates that there is a case to examine ways to increase transparency and openness in planning matters, the proposed bill will create significant workload and resource issues for the government and, more particularly, for councils. The Development Assessment Commission currently relies on the goodwill of councils in the provision of property database information when undertaking public notification of development applications, and the assistance required for DPA notification would be many times greater and place significant pressures on councils.

While statewide DPAs would be exempt, councils and the government undertake many DPAs that apply to extensive areas and tens of thousands of properties. For example, the City of Onkaparinga has approximately 160,000 residents. The administrative and resource issues for any council-wide DPAs or large-scale ministerial DPAs (such as the wind farms or regulated trees DPAs that covered many council areas but not the entire state) cannot be underestimated.

The Development Act 1993 currently provides for direct notification of DPAs in some circumstances—known as process C—and this can be used where it is appropriate and manageable. DPAs that cover large regions or whole council areas may be more effectively communicated in marketing-type advertisements in the paper or other media. DPAs should not be seen in isolation of strategic planning processes and, where extensive community engagement has occurred at a strategic level, further consultation on detailed policy may result in consultation burnout at the local level.

I am certain that honourable members would be aware that the government has set up the Expert Panel on Planning Reform and, given the wide-ranging review of the planning system currently being undertaken by the Expert Panel on Planning Reform, it is appropriate for this matter to be considered by the panel. I understand that the minister in the other place has brought this bill to their attention and it will be considered in the broader context that it deserves to be considered in. It is for these reasons that the government opposes this bill. As I mentioned previously, I look forward to what the Hon. David Ridgway has to say in relation to this policy and what the Liberal Party believes it could deliver.

Members interjecting:

The PRESIDENT: Order! We are all going to listen very carefully and in silence to the Hon. Mr Ridgway.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (17:03): Thank you, Mr President. I am surprised at the comments from the other side of the chamber saying I am about to announce a policy. I am about to speak to the Development (Development Plan Amendments) (Notification) Amendment Bill 2013, proposed by the Hon. Mark Parnell. I can assure members opposite that there is no way I would ever be announcing a policy: first, I am not the shadow minister responsible; and, secondly, I would never want to do it off the back of a Greens' initiative.

The Hon. Mark Parnell preferences you guys and puts you into government time and time again and he knows that I would not be wanting to rain on his parade or take any of the kudos from what he is doing and put it into a Liberal policy. However, I indicate that the Liberal Party will be supporting the amendment.

I have a number of questions, and I note what the Hon. Mark Parnell has said in his second reading speech—and he talked about a number of events that have brought this about. I think we all have some sympathy for the gentleman whose property was rezoned to a flood plain without being told. I think there is a fundamental issue that we all would agree with—that if it is your property and it has a change in a zoning sense, you are entitled to know, especially if it happens to be your own personal private dwelling. I think that is fundamental and that there is a good case to make sure that people are advised.

I have a number of questions for the Hon. Mark Parnell because he talks in his second reading speech about people who are directly affected so, clearly, other people whose properties are affected. I think he may have made some reference to an owner or occupier of an adjacent property. I would be interested to know his definition of adjacent. Is it an absolutely neighbouring property, or is it one in the district, and how broad is that?

While we have some sympathy for those people who are directly affected—and that is the reason we have agreed to support it today—I think we would all agree that you should be notified. But if it is a much broader scope, it raises a whole range of issues about the cost and the timeliness, and of course we hear constant complaints from our development industry about more red tape and the slowing down of the whole process. In the end, it is not the developers who pay, it is not the taxpayers who pay, it is often the first home owners who pay when there are delays. I would be interested to hear some comments from the Hon. Mark Parnell to set my mind a little bit at rest in relation to how that would take place.

I note in his second reading speech that he talks about reasonable steps. What is a reasonable step? He is a lawyer, and I am not, but what is the definition of a reasonable step in the eyes of the law? If somebody says, 'Well, I wasn't notified,' and the council or government says, 'We took reasonable steps. You just weren't home that day when we knocked on your door,' is that reasonable steps? I can see what he is trying to achieve, but I am not quite sure that the definition of reasonable steps will cover that.

From what I read in the Hon. Mark Parnell's bill, I do not think that this will apply to statewide ministerial DPAs, such as the wind farm DPA. However, given the number of people who have given evidence, and who have been outraged and came to the select committee, maybe there might have been some sense in doing that. It would be very cumbersome and a great burden on the system, the government, local council, or whoever, to notify everybody. Of course, with a wind farm, there will be an argument that if you can see it you are affected, and therefore is it adjacent because it is visible? I guess that also goes to the definition of adjacent. If it is a building that is visible, but you are five blocks away, are you adjacent to it or are you the neighbouring property? I think it raises a whole range of questions.

I am delighted to hear that the government is referring it to the expert panel because I think that is a sensible thing to do, and the opposition, as I said, is supporting it today. We have some sympathy with the people whose properties are rezoned without them knowing. We think that it is potentially a bit cumbersome and that some of the definitions may be a bit ambiguous; I would be interested to hear the Hon. Mark Parnell's explanation when he sums up, and I may ask him a couple of questions. The fact that it is going to the expert panel means that they will report later in the year; is that right, the Hon. Carmel Zollo? She is not quite sure of that.

Members interjecting:

The Hon. D.W. RIDGWAY: Well, after the election—then that is a very timely thing. If it is after the election, and we are fortunate enough in this state to have had a change of government, the expert panel will be reporting to a new Liberal government. We have indicated that, by supporting the Hon. Mark Parnell's amendment today, we think there are some things that need to be improved in relation to property owners whose property is rezoned.

All the other aspects are somewhat cumbersome, but nonetheless we are prepared to support it today to indicate to the community that we do think, in those circumstances where it is somebody's private property that has been rezoned or they are directly affected, that they have a right to know.

The Hon. K.L. VINCENT (17:09): I appreciate that I am not on the list of speakers, but I thought I would just chime in very briefly to put on the record that Dignity for Disability will be very strongly supporting this particular bill. I think it makes absolute sense to let people know what is happening to their own properties. Call me crazy, but I do not think that should rely entirely on what the Hon. Ms Zollo called, I believe, goodwill. I think people should have a legal and very solid right to know what is happening to their own properties.

The other point I would make very briefly is that, of course, as with most issues, we have received quite a high volume of correspondence on this bill in my office, and to my memory—I could be wrong—not one piece of correspondence, or one person who sent us correspondence, has been against this bill. All of them have been asking us to support this, so obviously this is what the community wants and with very good reason. For that reason, I will be supporting this bill very strongly.

The Hon. M. PARNELL (17:10): I will begin in summing up by thanking the Hon. Carmel Zollo, the Hon. David Ridgway and the Hon Kelly Vincent for their contributions. I will respond briefly to some of the things that have been said. In relation to the Hon. Carmel Zollo's contribution, I am not in the least surprised that yet another sensible initiative to reform our planning system to make it more accessible to people and to tell people what rights they have is being dismissed by the government. The two main reasons the honourable member offered were in relation to cost and the fact that the government has formed an expert panel. I will deal with both those issues.

In relation to cost, those councils that are already respectfully engaging with their communities will bear no extra cost because they are the sorts of councils which already tell people what is going on. They already notify them of changes that have been planned for their neighbourhoods. The only people who would bear extra cost would be that decreasing number of councils that choose not to tell their community what is happening, not to tell people that building height limits are to be raised or that setbacks are to be changed or, in the example I gave in my second reading speech, that the actual status of their land is being changed via a rezoning. The question we then have to ask is: if those councils have to pay a bit more to notify the residents of important changes that their residents have a right to comment on, is that a bad thing? The answer is: no, it is not.

Regarding the expert panel, that is now a standard response to any amendment that any member of parliament puts forward between now and next year. To any amendment to the Development Act, the standard response will be, 'We have an expert panel that's looking at that,' and therefore every other idea is all of a sudden premature or out of line.

The Hon. D.W. Ridgway: Pre-empting.

The Hon. M. PARNELL: Pre-empting, pre-emptive. I do not accept that. I have had a number of conversations with members of the expert panel; I wish them well, but I do not believe that the process needs to stand in the way of this parliament considering very simple law reform initiatives that will make a real difference to people in understanding their rights under the Development Act.

I have a very strong feeling from my conversation with members that this bill will pass this chamber today, and my hope is that it will not just be slotted in next to the previous bill we passed, down in the lower house, with no action and no real intent from the government to advance it. I hope that is not the case, but we will see.

In terms of the Hon. David Ridgway, I will answer the questions he has posed, and I guess that if I miss some we could do it in a brief committee stage, if he would like. He raises the question about exactly who would be notified. The bill makes it very clear that the people who need to be notified are the owners or occupiers of land that is directly subject to the operation of the proposed amendment—so, owners or occupiers. The second tier of people to be notified are those who are owners or occupiers of each piece of adjacent land to land that is directly subject to the operation of the proposed amendment.

The phrase 'adjacent land' is used throughout the planning system, and it has a fairly technical definition. I hope I will not have to come back and correct the record because I do not have the actual provision in front of me, but I am pretty sure it is this simple. If you directly adjoin a parcel of land that is affected—in other words, if you are an immediate neighbour, or perhaps you do not share a boundary but maybe there is a person across the road—that person would also be regarded as an adjacent landholder, particularly, I think, if the distance is within 60 metres. Basically, we are talking about immediately adjoining property owners or people who are pretty close, usually over the road and within 60 metres. I will correct that if I need to, but I am pretty confident that that is the technical definition. We are not talking about notifying people who are kilometres away or who are several streets away; it is the people who are directly affected.

The question he raised in terms of reasonable steps, and what they are, is a good question. It is left deliberately uncertain in the legislation, not for any purpose of trickery or anything untoward, but basically because we want to allow flexibility for the state government or local councils to choose a method that is appropriate to the situation at hand. For example, the Hon. David Ridgway mentioned maybe someone knocking on the door; to be honest I had not thought that that would be one of the methods but, clearly, if you are looking at a spectrum of communication, knocking on someone's door and having a direct conversation with them is, absolutely, a way of notifying someone.

If you work down through the spectrum, the next one would be a personally addressed letter; your name is on the envelope and it is posted to you. Working a bit further down the spectrum and you have something that is put in your letterbox. It does not have your name on it, it might just be addressed 'To the resident' or 'To the householder'. Then you might go one further step down the continuum where it might be, for example, a community newsletter that, I think, all local councils put out. Maybe a feature in that community newsletter would be a rezoning proposal or a development plan amendment, and a reminder to people that they have a legal right to comment. So that is the spectrum of activity that could fall in the definition of 'take reasonable steps to give notice'. As I said, the bill has not specified it. If there were only three properties affected, I would expect that a personally addressed letter, at least, would be required.

However, the fact that someone does not get notified is not fatal. This is a very important part of this bill, because a lot of this bill is educative in many ways for local councils. What we do not want is someone to say, 'My property has been rezoned. No-one knocked on my door, no-one put anything in my letterbox, there was not even a community newsletter. Therefore the rezoning is invalid because I was not directly notified.' I have specifically written into this bill that, if that situation arises, it does not invalidate the development plan. In other words, you cannot use the technicality that you were not directly told to somehow say that the plan is invalid.

What we also have to remember is that this method of notification is in addition to the existing statutory measures, which are a newspaper and the GovernmentGazette. There are always those positions. So people who will not be directly notified are still able to make submissions and put them in either to the council or the Development Policy Advisory Committee and turn up to the public hearing, even if they did not get anything in their letterbox.

I think that is the answer to the member's question. I would expect that the more people affected, the less personal would be the notification. I would have thought that, if there were only a few hundred people, or a few thousand people, affected, then something in the letterbox—preferably timed with council's routine communication with their ratepayers—would be the way to go. When you put all that together, the only councils for which this would be an extra expense would be those who are not routinely engaging with their local communities, and I would say that they should be. They should be talking to their communities about what is going on in the neighbourhood.

The Hon. David Ridgway drew attention to the fact that I have excluded statewide DPAs, and mentioned the wind farm one. The reason for that was simply one of practicality. I do not know how many dwellings we have in South Australia but it might be three-quarters of a million, and the need to personally notify everyone in Unley that the rules have changed throughout the state for wind farms seems to be a bit over the top.

The Hon. D.W. Ridgway: Unley was excluded.

The Hon. M. PARNELL: The Hon. David Ridgway points out that Unley was excluded. A good point, but not everyone, even in country areas, whose development plan does technically include them, would necessarily need to have that direct information. The argument is that if it is statewide, if it affects every council area—a good example is one of the Bulky Goods DPA that was statewide—there are various that have been done to avoid the expense of having to notify every property owner in South Australia; I have excluded those.

The vast majority of rezonings that people would want to comment on do affect their local communities. The example of Mount Barker springs to mind. Certainly, the number of properties affected would be in the dozens—I do not think it would be in the hundreds—and the number of neighbours to those properties again would be in the dozens, or even less, because it would only be the periphery, given that many of these people were neighbours.

I do not see that there is a great deal of extra effort that councils or the state government will be forced to go through to simply make sure that people are advised of their democratic rights, with the important proviso that failure to take reasonable steps—failure to notify someone—does not invalidate the plan. Really, in many ways it is a best endeavours measure, and it is left up to each individual council to determine what might be the best way of letting their residents and ratepayers know what is going on.

I think that has pretty much covered the issues and questions that were raised. I again thank those members who have spoken and other members who have privately offered their support, and I look forward to the committee stage of this bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. D.W. RIDGWAY: The Hon. Mark Parnell raised the issue of Mount Barker. I cannot recall, so I am just going to ask him: how many of the landowners' properties that were rezoned were unaware that that was going to happen? My understanding is that most of those had options, or they had sold, or they were going to be joint ventures. Most of the owners were aware that that was happening, and so it was possibly only the neighbouring properties that may or may not have been aware. I remind members that we had 500 people give evidence to the DPAC hearing over three or four nights—

The Hon. M. Parnell: Five nights.

The Hon. D.W. RIDGWAY: 'Five nights,' the Hon. Mark Parnell says. Members could easily think that all 500 would have received a letter; clearly, they would not have, because there are only perhaps a dozen that would be adjacent landowners. The Hon. Mark Parnell might be able to clarify that, because, certainly in some discussions that I have had with people, they think this is a good bill to support because all the people in Mount Barker would get a notification. Clearly, that is not likely to happen.

The Hon. M. PARNELL: I thank the honourable member for his question, and his analysis is basically correct. Certainly, as to the number of properties of people directly affected by a change of zoning (in that case, effectively from farm land to residential land), the property developers who were behind the rezoning had actually already acquired a fair chunk of that land, either by purchase or by options to purchase; certainly, they knew about it.

I would be surprised if there were too many people who owned properties in that area who did not subsequently find out because of the massive community outrage at the proposal. It was on the front page of every edition of the local paper; people in neighbourhoods talk to each other, and it was the talk of the town. In that particular case, I think that there was pretty good coverage. I would be surprised if there was anyone who was not either affected or a neighbour of someone affected who did not ultimately know that that was the case.

The point that I make is: that is a particular example of a controversial, large-scale rezoning. There are plenty of others where the consequences are not necessarily that well known. People often do not pay attention to newspapers or the Government Gazette. I think there are plenty of other cases where we will actually, through this bill, be telling people what is going on.

Bear in mind that the only consequence that flows from it (of someone being notified) is that they know they have rights. They know have the right to put in a submission and they know they have the right to attend a public meeting. The tragedy that we are trying to avert here is where someone with a genuine legitimate interest, in fact, does not find out that changes were afoot and, therefore, does not exercise their right or go to the meeting. Remember the example that I gave earlier, which was from my earlier professional experience, about the chap who found out his house had been rezoned as flood plain. No-one told him. No-one was obliged to tell him. It had not been in the local paper.

The Hon. D.W. Ridgway: Was it near a river?

The CHAIR: Order!

The Hon. M. PARNELL: The Hon. David Ridgway interjects out of order, 'Was it near a river?' Absolutely it was but it was—

The Hon. D.W. Ridgway interjecting:

The Hon. M. PARNELL: No, it was near a river but it was far enough away that it had always been zoned residential and the government in that case redrew all the flood maps mainly in relation to climate change and predictions of increased frequency of flooding, so that is how that particular case came about.

The point is if your house is zoned residential, you have an expectation that authorities have had a good look at whether that is an appropriate zoning and, when they have another good look and they change it later on, they should certainly tell you about it. It is not to say that individuals who are notified will be able to change the outcome but it may be that they have a submission which improves the outcome. It may be that there is additional land that needs to be included, there may be some land that could be excluded. So, when you do not have the people on the ground with the knowledge knowing that there is a process afoot, not putting in submissions, we do not get the best information on which to base these important town planning decisions.

Clause passed.

Remaining clauses (2 to 5), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. M. PARNELL (17:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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