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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-11-19 Daily Xml
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Planning Regulations

Adjourned debate on motion of Hon. M.C. Parnell:

That regulations under the Development Act 1993 concerning assessment of significant developments, made on 14 August 2014 and laid on the table of this council on 16 September 2014, be disallowed.

(Continued from 12 November 2014.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (19:47): I rise to speak on the motion of the Hon. Mark Parnell. In August this year the planning minister gazetted changes to the planning regulations, the Development (Assessment of Significant Developments) Variation Regulation 2014 and, as we know, the Hon. Mark Parnell, in late September, moved to disallow those regulations.

By way of background, in July the Premier announced that Mr Jim Hallion, chief executive of the Department of the Premier and Cabinet, had been appointed Coordinator-General, and his role had expanded to include the private sector development coordination. The Office of the Coordinator-General is to assist developers with projects valued at over $3 million to move through any blockages across all levels of government. It is interesting that we talk about all levels of government; I was fortunate enough to be at lunch today—

The Hon. G.A. Kandelaars: Not another one.

The Hon. D.W. RIDGWAY: It was a very good lunch; the federal Minister for Communications was the guest speaker. However, I was sitting next to some people who were involved in a marina development and marina activities in Port Lincoln, and they said it had been fortnightly phone calls to the Department of Planning, Transport and Infrastructure for some nine months to get the transfer of ownership of one of the marina berths to someone else. I think that is just symptomatic of 12 years of Labor government; they simply do not understand.

However, the Coordinator-General was appointed to assist developers with projects valued over $3 million to move through the blockages across all levels of government. The regulations in question prescribe the Development Assessment Commission (DAC) as the planning authority for development that is considered by the Coordinator-General to be of economic significance to the state. To be eligible, projects need to have a construction value over $3 million, including multiple projects by the same proponent that have a combined value exceeding $3 million.

This reform is targeted at commercial and mixed use development but it is not clear if residential development is to be excluded. I note that just on the northern side of Scotch College, and I am sure you are familiar with that, Mr President, there is a new house being built and I suspect that it is worth more than $3 million; it is quite a large structure.

The Hon. T.T. Ngo: Is that the President's house?

The Hon. D.W. RIDGWAY: No, it is not the President's. I do not even know who the person is but when we talk about commercial development over $3 million, there are now residential developments that will exceed $3 million popping up all over Adelaide.

Should a project be called in under section 20 of schedule 10 of the regulations, the relevant council will be provided with six weeks to formally comment on the proposal. In brief, the Coordinator-General role is supported by the following changes: changes to the Development Regulations 2008 to enable the Coordinator-General to assign the DAC as the planning authority for certain development projects of economic significance over $3 million; and expansion of DPTI's planning division case management team as senior case managers allocated to each proponent, and I think that is a significant step in the right direction. Often proponents really do not know the way through government, and to have somebody there to guide them through and be their case manager, if you like, is a sensible move.

The establishment of a senior government task force is also one of the changes. The task force includes senior 'decision-makers' from key land use agencies used to address blockages that may be occurring within the state government agencies. The minister has also delegated authority to the Coordinator-General to use the existing 'call in' powers for assessments that have exceeded the statutory time frames as per section 34 of the Development Act 1993 and section 41 of the Development Regulations 2008. This involves applications lodged with local government to be transferred over to DAC and this approach will still involve the assessment against existing zoning in the relevant council development plan.

The LGA and council have commented that the delays tend to be with other government agencies for not getting their referral reports in on time, and they question whether changing the primary decision-maker will cause these referral agencies to be more efficient. Since the introduction of the new planning reforms, 100 proposals have been referred to the Coordinator-General for assistance, including three projects that have been approved by councils under DPTI's case management, four projects that have been called in by the Coordinator-General for assessment for the DAC, 63 projects that have been referred to the Coordinator-General for consideration, and 30 project proposals that are currently under investigation.

Recently Messenger newspapersreported that the Coordinator-General had removed Onkaparinga council planning powers from a proposed $1.8 million service station redevelopment grouped with other On the Run developments in Aldinga, and the council's DAP had previously rejected the development in February. The LGA has questioned whether a petrol station is economically significant to the point that it warrants this special approval process.

During parliamentary estimates, my colleague Steven Griffiths, the member for Goyder, asked questions of minister Rau regarding the role of the Coordinator-General. His response was that such an initiative would provide a much-needed level of consistency within South Australia's planning system. He indicated that potential developers including ALDI, were frustrated with different planning rules from council to council which are apparently hampering investment in our state.

In liaising with the LGA, Steven Griffiths received extensive feedback predominantly with concerns about the $3 million threshold and the lack of consultation undertaken within local government. Unsurprisingly from the state Labor government, little information was provided to the LGA prior to the regulations being gazetted.

Additionally the LGA was initially advised by DPTI that there would be a sunset clause that would see the regulations expire at the end of the year. Unfortunately that did not occur. These are certainly familiar concerns and ones which I heard a lot throughout the time that I was shadow minister for planning. It was often that the LGA was left out of the loop, and perhaps it is a shame that while you were minister for local government, sir, you did not perhaps force the government to include them a little more in some of those consultation processes.

The LGA also has concerns that the government includes multiple projects by the same proponent with a combined value exceeding $3 million to be called in by the Coordinator-General. Legal advice provided to the LGA has confirmed the view that this is not permissible under the regulations. We have been advised that the LGA has written to the minister seeking some clarification on this point.

Additionally, the LGA sought clarification on the other matters, such as (amongst others), how this work aligns with that of the expert panel on planning reform, what these regulations mean for residential development, how statutory time frames will be measured, and the role of the Coordinator-General in the rezoning of land.

Local government is concerned about the financial impact of these regulations on councils that would ordinarily have received the total assessment fees for these development and now receive no fee at all. I have heard anecdotal evidence that some councils are losing some $40,000 or $50,000 a year by their not receiving those fees themselves. This is despite the fact that the councils are still required to undertake some level of assessment in order to provide documents to DAC and still retain responsibility for the ongoing inspection and monitoring of the development. The LGA has also provided feedback that this significant cost must now be subsidised by their ratepayers.

Mr Steven Griffiths has met with various other stakeholders, including Community Alliance SA, the National Trust, the Conservation Council of South Australia and the South Australian Council of Social Services. They raised issues, including that the mechanism for major projects already exists within existing legislation, discretion is coming into the planning process by providing the Coordinator-General with such powers that the $3 million threshold is highly manipulative (for instance, a rather large home in a high-value suburb) and, as I have mentioned before, the criteria is unclear and state heritage is a loser in the $3 million assessment process (listings can be manipulated), and it is unreasonable that the government would implement changes prior to the final report of the expert panel being released, which is due, I think, in December some time.

We recognise the concerns of local government following the expansion of the role of the state Coordinator-General to include private sector development coordination, particularly the authority of the Coordinator-General to assign the Development Assessment Commission as the planning authority for certain development projects of economic significance valued over $3 million. From the outset, we have had concerns with the relatively low value threshold of eligible developments set by planning minister Rau being projects that have a construction cost of over $3 million, including, as I have said before, multiple projects by the same proponent that have a combined value exceeding $3 million and the fact that major project declaration opportunities already exist.

After giving detailed consideration of the regulations, a determination was made that we will not be supporting the disallowance motion. To support it, in the opposition's view, would be a fruitless gesture as the state government could re-gazette the regulations tomorrow, as we know. As we see it, the important way forward is that we will focus on the legislative reforms and the effort it will receive when we see the final report from the expert panel. We intend to have significant consultation with local government and the communities when that comes through. As such, the state Liberal Party will consider changes through the proposed new planning bill.

I am sure that the Hon. Mark Parnell will not be pleased that we are not going to support his motion but, as I am no longer the planning shadow, he may also have had some discussions with the minister. My understanding is that, in the first half of next year, legislation will be introduced that reflects the expert panel, and that may be a totally new bill or some significant amendments to the existing legislation. We think that will be in the first quarter, and we are looking forward to that. The report, of course, is due within the next couple of weeks, as we go into December. In discussions with the minister, Steven Griffiths has confirmed that his response will involve some legislative change.

Ultimately, the state Liberals are supportive of progressive planning reforms developed in consultation with local communities, which currently occurs at a council development plan level, to ensure that South Australia continues to be a vibrant place to live and conduct business. We will obviously welcome comment from local government in relation to legislative changes through a new planning bill next year.

With those few comments, I indicate, as I am sure members are aware, that we are not going to be supporting the Hon. Mark Parnell's disallowance. We are concerned that the $3 million is too low, and I certainly will be looking to address that when we see all of the amendments and changes to the planning bills that I expect will come through this place next year, whether that is a totally new development act or whether it is some significant amendments to it.

I notice that the Hon. John Rau said on radio this morning that, because we got up early yesterday, maybe there was not much work to do, that we were like a scene from Monty Python's Life of Brian here in the Legislative Council. I do note that the House of Assembly got up—

The Hon. T.A. Franks interjecting:

The Hon. D.W. RIDGWAY: That's right—like a political documentary. I did note that the House of Assembly got up at a quarter to four today—

The Hon. T.J. Stephens: Ten to four today.

The Hon. D.W. RIDGWAY: Ten to four, so they would have been home in time to watch Teletubbies and Treasure Island. I am sure they would have been stimulated by that. Nonetheless, I think it is an opportunity for us to have a really good look at it next year. As the shadow minister for tourism and agriculture, we do not have a lot of legislation that passes in this chamber that I am responsible for so I am, with some level of perhaps perverse excitement, looking forward to next year when we will have a bill and some legislation that I will be the opposition spokesman for.

With those few words, I indicate we will not be supporting the Hon. Mark Parnell's disallowance motion but do place on the record we are concerned about the $3 million threshold and we will look to work with the local community and members in this chamber to make sure that next year when we get a chance to look at the Development Act, or whatever the bill is that the minister proposes, we give it a thorough investigation and reflect the community's wishes.

The Hon. G.A. KANDELAARS (20:00): It will not surprise the Hon. Mark Parnell that the government does not support this motion. It supports economic growth and a future for our children. Since the regulations were introduced in August this year, the Coordinator-General has called in significant projects that were suffering from administrative delay rather than major issues with planning policy.

The Coordinator-General's role builds on the successful delivery of commonwealth Nation Building and Affordable Housing Stimulus housing programs. As an example, Building the Education Revolution alone saw projects built at over 500 schools across the state, creating improved facilities for students and teachers, jobs for local builders and benefits for the building and construction industry of our state which, at the time, was facing dire consequences.

South Australia is not alone in introducing a significant role for the Coordinator-General. In fact, other states have far stronger powers for their coordinator-general roles. Projects identified by the Coordinator-General are still assessed against current planning policies in the system. They go through the same assessment process just as any other application does. They still include the same statutory referrals, including a six-week referral to council, and they still include the same public notification and appeal processes. Quite simply, these projects are not bypassing the planning system. This power is being used by exception and as a last resort option.

The first priority is to work with local councils and state referral agencies to assist them working through issues. The vast majority of projects discussed will remain with local councils for assessment. Often, the inclusion of a third party can help work through long-running blockages. This approach has already been successful. However, this process takes time and is difficult. It would be easier just to call in projects, but this is not the approach that has been taken. The government has publicly acknowledged that it is not just council development assessment panels blocking the process but also state referral agencies.

It is for this reason the Coordinator-General has established a task force to work through longstanding cultural issues within regulatory agencies to move towards can-do, solution-oriented bodies. Evidence is mounting that there are real blockages and legitimate concerns. The Coordinator-General has met with over 40 significant investors in this state and new investors looking to come here and invest. Councils and agencies are on notice to find solutions and work through often longstanding blockages.

Secondly, the government is not bypassing the excellent work of the expert panel. It is the government's view that we cannot sit idly by until reforms are introduced. Our intent in establishing this process was as an interim measure pending the final report of the expert panel to be provided in December this year. Of course, as the Hon. Mark Parnell would know, significant legislative reform takes time and we need economic growth now. We need jobs now and we need investment now, and we have acted now to make this happen.

The government has been overwhelmed by interest in this process, so it has extended the appointment of Mr Hallion as Coordinator-General. The Coordinator-General powers do not undermine the planning system and its existing processes. Rather, it provides another tool in the toolkit to help facilitate the right development in the right location, again, I stress, by exception.

This leads to the third point: this process is not intended to replace major development process. This notion is nonsense. Significant projects will continue to be assessed under the major development provisions of the act. The government strongly disputes the Hon. Mark Parnell's remark that potentially every development in the state worth more than $3 million has now been taken out of the hands of local councils.

The Hon. Mark Parnell's comments that these projects do not individually meet the $3 million threshold is simply not true. The tests in the regulations require that each project exceeds $3 million in value and to be of economic significance to the state. The individual project costs must exceed $3 million and they do include construction, fit-out, professional fees and must be verified by a quantity surveyor.

One of the big issues that this whole process has highlighted, particularly in relation to councils, is that large organisations wishing to undertake multiple developments have found that they do not get consistent planning advice given to them through councils. It is not uncommon to have the same development put to two different councils and get two different answers. This is hellishly—

The Hon. M.C. Parnell interjecting:

The PRESIDENT: Order!

The Hon. G.A. KANDELAARS: —frustrating for the business community. The lack of consistency when we are talking about the same zone and the same development in a different council area getting a different outcome is quite annoying for the business community. I encourage all members to oppose the motion before you.

The Hon. K.L. VINCENT (20:07): Very briefly for the assistance of the council, Dignity for Disability will support the motion.

The Hon. M.C. PARNELL (20:07): If there are no further speakers, I will conclude the debate. I first of all thank the Hon. David Ridgway, the Hon. Gerry Kandelaars and the Hon. Kelly Vincent for her brief but succinct statement of support. The numbers clearly are against us on this occasion, so I will not speak for too long, but I cannot let some of the comments that have been made go through to the wicketkeeper without response.

I will start with the Hon. David Ridgway who, in his own unique style, had us on the edge of our chairs while for 15 minutes he gave every reason under the sun to not support the regulations and then proceeded to say that they were not going to vote to disallow them, which was remarkable. I cannot disagree with too much of what he said about the content. He referred to the local government objections. He referred to the dodgy $3 million aggregate deals that are being done. He gave all the reasons why these regulations need to be thrown out and then said that they would not support this.

As I have said before, and I will say it again, you can't trust the Liberals on planning. They promised before the election they would reinstate planning powers to local councils, and I have given them two opportunities. The Greens love to give the Liberals opportunities to fulfil their election promises; twice now they have voted with the government to not reinstate planning powers to councils as they promised before the election.

What was most remarkable about the Hon. David Ridgway's contribution is that he apparently let loose with a new Liberal policy, which is not to oppose the disallowance of regulations because it would be a fruitless gesture, a fruitless gesture because the government could come back tomorrow and regazette the very same regulations.

The question then arises: if that is the approach of Her Majesty's Loyal Opposition to regulations, why do we bother? Why do we bother having the power? Why do we bother having a Legislative Review Committee—I know for the Hon. Gerry Kandelaars it is the highlight of his week—to consider regulations that the opposition has no intention of disallowing because it is a fruitless gesture?

Members interjecting:

The PRESIDENT: Order!

The Hon. M.C. PARNELL: The Hon. David Ridgway also said, 'Well, it makes sense to wait until the expert panel, chaired by Mr Brian Hayes QC, reports. That will result in legislation, and then sometime in 2015 we will have a debate about planning laws.' You can use that very same argument as a reason why we should stand up to the government using executive power to bully local councils ahead of a proper consideration of legislation. In fact, this very same argument is a pressing argument for supporting disallowance.

The Local Government Association is not happy about this, and I will put on the record some of remarks from a letter that I think went to most members, and certainly to all the major players in the Legislative Council. The association wrote yesterday, saying:

I am writing to confirm the LGA's support for the disallowance of the Development (Assessment of Significant Developments) variation Regulation 2014, moved by Hon Mark Parnell in the Legislative Council.

The LGA has again been disappointed by the Government introducing planning regulations that impact on Councils and communities without adequate consultation with our sector, and in the absence of any factual evidence to support their reform.

The LGA goes on:

The Local Government Association invites the State Government to provide any data to support its concerns about the efficacy of Council Development Assessment Panels.

The Hon. Gerry Kandelaars had an excellent opportunity to provide that evidence tonight: there was no evidence, and in a moment, I will come to his particular remarks. Again, back to the Local Government Association:

The LGA recognises that there is a need for an appropriate mechanism to break through barriers that occur at the State Government level, such as the untimely and inconsistent advice that is currently provided by referral agencies.

That is, state government referral agencies. The memo continues:

This may be an appropriate ongoing role for the Co-ordinator General.

However, these Regulations have been used as a blunt instrument to unnecessarily sideline Councils from assessment processes.

The LGA is concerned that the $3 million threshold is extremely low and does not capture development that would be widely considered of 'economic significance to the State'. It is our firm view that the $3 million development does not warrant a 'special' approval process, particularly when Councils have an excellent track record of supporting local economic development, approving some 97.5% of development applications lodged in one year.

Local government is supportive of planning reform that is evidence based; outcomes focussed and delivered as a complete package of reform. The disallowance of these Regulations will allow the decision making process for significant developments to be revisited in a positive and productive manner.

I urge you to support the disallowance of the Development (Assessment of Significant Developments) Variation Regulation 2014.

That is a memo from Wendy Campana, the LGA chief executive officer. That brings me to the contribution made by the Hon. Gerry Kandelaars. Whilst it is no surprise that his job is to support government regulations that members of the upper house are seeking to disallow, he doth protest too much. I have to say that when you get down to either supporting a future for our children or not, and the future of our children depends on stripping powers from local councils and giving them to someone else, I think our children are in a bit of strife. I cannot for the life of me make the connection between these regulations and supporting a future for our children.

The honourable member mentioned the school halls program as a program that was designed to avoid the global financial crisis in this country. The Greens supported that public infrastructure spending that had school halls and low-income housing built and other things. The fact that it involved the Coordinator-General is not a case for the Coordinator-General somehow taking on a godlike persona and being the responsible authority for calling in other private development; it is very different.

The Hon. Gerry Kandelaars said that these regulations would only be used as a last resort. Where does it say that in the regulations, that it is a last resort? It does not say that at all. In fact, what it will be is the first resort of developers who come up against local councils who are putting the best interests of their local communities at the forefront. The problem as I understand it was down at Aldinga, I think. A petrol station and convenience store was opposed by many in the local community. The local wine and tourism association put in a formal objection to it. It was the wrong development for that location.

The Hon. Gerry Kandelaars bemoans the fact that a petrol station and convenience store—it might have the same layout—are not treated exactly the same in every area. Whilst Hansard did not record the interjection because the Hon. Gerry Kandelaars did not respond to it, let me say that, if someone wants to put in an application for an abattoir in Burnside, it is going to be treated differently to an application for an abattoir outside Port Pirie or somewhere in the South-East.

The advantage of having local councils deciding local developments through their development assessment panels is that you have a mixture of expertise and also local knowledge. The local councillors, who are in a minority but sit on those panels can bring local understanding to the development assessment process. Really, what the government is proposing here is a system where, if mum says no, you go and ask dad. It is the oldest trick in the book for kids: if mum says no, you go and ask dad.

In relation to the $3 million, I am not sure where the honourable member got his figures from, but we know from the history of service station developments, including the On the Run developments that are the subject of these regulations, that most of them are well below the $3 million. You can try to add in the petrol in the tank under the ground, you can try to add in the packets of chips on the shelves, you can try to build it up as much as you want, but they are not $3 million. The Hon. David Ridgway said the Aldinga one was $1.8 million, I think from memory. We will check the Hansard later, but they are certainly nearly all below $3 million, and that is what the local planners tell me.

I say what the government is using is unlawful. The Hon. David Ridgway I think referred to legal advice, but I will give it to you for free. It is unlawful. You cannot take five petrol stations in five local council areas, add them up and say, 'They add up to $3 million; therefore, we are going to call them all in.' There are 22 of these petrol stations proposed. There is the revamping of some old petrol stations. Sure, in many cases, they might be very appropriate developments in that location that create some jobs for young people and all the rest of it, but why do you have to strip local councils of these powers? It is just ridiculous.

The final thing I will say is that I want to again acknowledge the work of the Community Alliance. As members would know, it is an umbrella group that looks after the interests of the residents and ratepayers associations from all over South Australia. I think many of the groups individually, and certainly the Community Alliance, have contacted many members of parliament, so I will acknowledge Tom Matthews who is in the gallery today.

He will report back to their members how the major parties have failed in this instance. Their mantra is to put people back into planning, and that is certainly what the Greens have tried to do with this disallowance motion. I appreciate that we do not have the numbers tonight, and I look forward to more debate about planning next year, but I am very disappointed that the opposition in particular have missed a golden opportunity to send a message to the government that the way they are behaving towards local councils is unacceptable.

Motion negatived.

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