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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-02-14 Daily Xml
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Bills

Statutes Amendment (Planning, Development and Infrastructure) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 December 2016.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:39): As you would be aware, the government is keen to progress implementation of the Planning, Development and Infrastructure Act 2016, which secured passage through this chamber in April last year. The statutes amendment transitional bill before the house makes provision for transitional matters already on foot and authorisations already issued under the Development Act 1993.

During the course of its passage through the House of Assembly, Mr Griffiths, the member for Goyder, detailed, during the committee stage, a number of matters raised with him by the UDIA and the LGA. As a result, the government committed to following up these matters between the houses before commencing debate on the bill. I can inform the house that the government intends to move a number of amendments during the committee stage that respond to the concerns raised.

In brief, the amendments cover three matters. Firstly, amendments will be moved in relation to the change of use provisions which ensure that any action in relation to cessation of an activity is only recognised from the commencement of section 4(4) of the new act. The same principle will apply in relation to the operation of section 4(4) and (5) in any area under clause 4(8) of the bill. The second set of amendments clarify that any approval or consent issued under earlier acts, such as the current Development Act 1993, is still operative. This ensures there will be no doubts raised as to their validity.

Finally, changes will be made to the provisions relating to the Planning and Design Code. These changes make absolutely certain previous commitments given that any consequential changes to a development plan as a result of the code's introduction will only be done after council and community consultation.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. D.W. RIDGWAY: This is a broad question and the minister and his adviser may not have an answer. My question relates to the interface between agriculture, rural towns and changes of land use. In explanation, I recently had, with the Hon. John Darley, some meetings with some landowners who have had a change of land use on three sides. They are now confronted with a set of circumstances where, after all this summer rain, they have a range of weeds that have come up on their properties, which are declared weeds, so it is an offence for the landowner not to control those weeds.

However, the change of land use on the three sides of their property means that it is also an offence to use the chemicals that are registered to control those weeds because they cannot use them in close proximity to either the other crops, which is grapes, or houses, which could be the other alternative. With that interface, these producers do not wish to break the law by not controlling a declared weed, but the only chemicals they can use to control those weeds are prohibited for use because of the change of land use.

I suspect that will become more and more prevalent with that interface between horticulture, agriculture, residential development and changes of land use. I accept that it is not an amendment or a part of the bill but, given we had a long debate on the bill before the honourable minister was in the parliament—or he might have just been here last year when we were talking about planning—its head has risen again, so I thought it was an appropriate time to ask the question when we have the specialist advisers here.

I might just add that, obviously, there are professional spraying contractors who have professional equipment to apply these chemicals. They are prohibited. They are not prepared to break the law or take the risk to spray these chemicals close to other crops or people's houses. It is a real issue that we, as a community, have to grapple with to come up with a solution, so that farmers can farm and people can change their land use and also so that people can live safely in these rural towns.

The Hon. P. MALINAUSKAS: Thanks for the chamber's indulgence as we get some specialist advice. Notwithstanding the fact that the concerns raised by the Hon. Mr Ridgway do not necessarily pertain to specific measures within the bill, my advice is that the EPA does have the capacity to issue exemptions under particular circumstances regarding chemical licensing arrangements. That may be something that could potentially address the concern you have raised for the relevant parties. Also, the issue can be considered through rezoning stages of development. There are opportunities for the issues you have raised, I have been advised, to be addressed, again notwithstanding that it does not speak to the specifics of this bill.

Clause passed.

Clause 2.

The Hon. M.C. PARNELL: People do not normally speak to clause 2, which is the commencement clause, but it is important because this is a transitional bill. I am interested in understanding from the minister how this transition is progressing. Part 3 in clause 10 of this bill effectively says that on 1 April—so, in a very short period of time—we are going to have our new planning commission.

Clause 2 says that this bill will become an act on proclamation, so it is a roundabout way of asking the question: how is recruitment going? Has the new planning commission membership been settled? Has there been an announcement? I might have missed it. Has there been an announcement of a chair? Is there any risk that the 1 April deadline which is, effectively, in clause 10, the transitional provisions, might not be met?

The Hon. P. MALINAUSKAS: I have been advised that the commission has not yet been appointed and, naturally, it cannot be appointed until such time as this legislation has passed. Nevertheless, the selection process has been initiated. The government hopes that that would be completed by 1 April this year, subject to the bill passing. My advice is that if the bill were to pass and the appointment had not occurred by 1 April, then there is the capacity for the Governor, through proclamation, to amend that date.

The Hon. M.C. PARNELL: I thank the minister for his answer. I should say that these are genuine inquiries, rather than being based on any particular information I have. One of the things with transitional provisions is that you have a system that marches on and, at a point in time, we are going to slot in a new entity; namely, this new planning commission. They are going to take over the role of the Development Assessment Commission and the role of the Development Policy Advisory Committee, and I am not suggesting that there is any other way you could do it. If you are going to have a new entity working within a system that keeps rolling on, you have to slot them in at a point in time.

The question I have relates to the processes of those earlier bodies. The Development Assessment Commission and the Development Policy Advisory Committee, over a period of decades, have established practices, protocols and procedures so that people who are dealing with these bodies know how it works. They know what happens when you go to a DPAC hearing. It used to be Mr Mario Barone who would conduct the hearing. You knew what was going on.

What I am not certain about is: when the new planning commission takes over these roles, is there an expectation that it will adopt the practices and procedures of the bodies whose work it is taking over, or is there likely to be a clean slate with new practices and procedures? How will the community know what those new procedures are? Again, it is not a tricky question. I accept that, at some point, you have to slot in this new body, but I wonder how the transition might work in practice.

The Hon. P. MALINAUSKAS: The commissioner is required to appoint an assessment panel and delegate his assessment powers. The Development Assessment Commission or some of its members could be appointed to any such panel or panels. There could be more than one panel; for example, the equivalent of the Inner Metropolitan DAC (IMDAC), if the commission was so minded. Regarding your question about practices and procedures, my advice is that the commission will likely use existing procedures and practices as a basis of going forward, and that is likely to be published on the ePlanning portal.

Clause passed.

Clause 3 passed.

Clause 4.

The Hon. M.C. PARNELL: When I spoke to this bill at the second reading in December, I suggested for the anticipation of members that, whilst on that date I was prepared to outline the reasons for these amendments, I would speak at some length when we got into committee. I have actually changed my mind. I do not really need to speak at any great length because when I re-read my notes from 1 December I pretty much explained why I think these amendments are necessary.

In a nutshell, what we are talking about is, under this new system, who was responsible for state planning policies. For the original suite of policies that the government included in the bill, the responsibility rested with the planning commission. The minister then pointed out that the Hon. David Ridgway and myself included a few extra policies in the bill: the adaptive re-use policy and, in my case, the climate change policy. For whatever reason, we have made the minister responsible for those policies and the government has leapt on this inconsistency and decided that they should make all of the state planning policies the primary responsibility of the minister.

I said last year that that is one way to resolve the inconsistency. Of course, the other way is to honour the original spirit of this legislation, to honour the recommendation made by the Brian Hayes expert panel and to do as the Hon. David Ridgway urged us to do on dozens of occasions, and that is to pay attention to how the Western Australians did it. According to Mr Hayes and according to the Western Australian legislation, these state planning policies should be the responsibility of the planning commission.

The government has now reversed that and, despite the planning minister's exhortations over many months that he was relinquishing power, when push comes to shove he has not been able to do it. He has not been able to let go. So, in this legislation he has taken back to himself the power to control the state planning policies. As members will remember, these are high-level documents and all the subservient documents—the zoning rules, setbacks, building heights and all these things—will need to be subservient to these state planning policies. It is really a question of where authority should lie if we are to believe the government that this system is going to be more professional and less political.

Unfortunately, the government has got this wrong in wanting to put these powers back into the hands of the minister. That explains why I have opposed clause 4, clause 5 and clause 6. It also explains why, when we get to clause 6, I have inserted two more clauses, 6(a) and 6(b), basically to put the power back into the hands of the planning commission and away from the minister. The same applies to clauses 7 and 8. They all relate to this same issue that the planning commission should be responsible for overseeing these policies and not the minister.

To reinforce the point, when you look at the Hayes expert panel report entitled The Planning System We Want, and you look at the job that they assigned to the planning commission, their words are that the planning commission should oversight state planning policies and not the minister. They do not give the job to the minister, they give it to the planning commission. So, quite simply, my amendments restate the commission as the responsible body.

The Hon. P. MALINAUSKAS: This amendment is opposed. The original Planning Development and Infrastructure Bill tabled in parliament gave responsibility for a range matters, including state planning policies, to the Minister for Planning rather than the commission. These provisions were significantly amended during debate to instead refer to the commission.

State planning policies are of significant importance as expressions of policies belonging to the government of the day as they are ultimately accountable to the people. On reflection, the government considers that, under the Westminster system, the representative of the elected government of the day rather than an unelected body should be responsible for ensuring that such policies are prepared.

Placing responsibility with the minister for ensuring that the required state planning policies exist, rather than with the commission, would be consistent with adaptive re-use and climate change policies under sections 61 and 62, as amended in this chamber earlier this year. Under the government's proposed amendments, state planning policies and amendments relating to design quality, integrated planning, adaptive re-use and climate change, will all be drafted in the same manner by the commission, but at the minister's instigation and on his or her behalf.

The requirements set out under sections 73 and 74 of the principal act would still apply, such that the commission would draft and the minister take responsibility for the state planning policies and amendments, including consultation in accordance with the Community Engagement Charter, submission to parliamentary scrutiny and potential disallowance.

The Hon. D.W. RIDGWAY: I indicate that the opposition wrestled with this because, as the Hon. Mark Parnell said, it was something that worked very well in Western Australia and had served a range of governments over a longer-term planning horizon, and the reserving of land for development and public infrastructure. The opposition has wrestled with these amendments and we have decided that we will support the government rather than the Hon. Mark Parnell's amendments.

We all know there is an election early next year, and we are not sure of the result, but if the Liberal Party is fortunate enough to win an election, it is something we will look at to see how it works in operation, and if we think that the Independent Planning Commission is required, it will be nice to know that the Hon. Mark Parnell might be willing to support those amendments. I am not the shadow minister.

I indicate that we will not be supporting any of the Hon. Mark Parnell's amendments and we will be supporting all of the government amendments. We had some 14 days of debate here last year. This is another bill that the planning minister, minister Rau, said we would have in this chamber. I think it is important to say from a record point of view that we have a few concerns. We are happy to support the government at this point in time, and not the Hon. Mark Parnell, and we will see how this bill and the new act work in practice over the next few years.

The Hon. J.A. DARLEY: I will be supporting all of the Greens' amendments on these matters because I also understood that the minister was to relinquish these responsibilities.

The Hon. M.C. PARNELL: I thank the Hon. John Darley for his indication of support and I am disappointed that the opposition will not be supporting it. I do not intend to divide on these amendments. We do need to move on with this. I make the observation that if the Hon. David Ridgway's hopes and dreams are true and that they are successful at the next election, and if one of the early acts of the new government is to divest itself of executive power under a piece of legislation, then if I had a hat, I would eat it. I will be surprised if that happens, but I will take the honourable member at his word that if they are successful they will review these provisions. My feeling is once these powers have been given to the minister, the minister has them for ever and a day.

Clause passed.

Clause 5.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 7, lines 5 to 7—This clause will be opposed

The Hon. M.C. PARNELL: I will not speak again to these amendments. They all relate to the same issue and I expect they will have the same result.

The Hon. P. MALINAUSKAS: I concur with the Hon. Mr Parnell.

Clause passed.

Clause 6.

The Hon. M.C. PARNELL: I move:

Amendment No 3 [Parnell–1]—

Page 7, lines 8 to 10—This clause will be opposed

Clause passed.

New clauses 6A and 6B.

The Hon. M.C. PARNELL: I move:

Amendment No 4 [Parnell–1]—

Page 7, after line 10—Insert:

6A—Amendment of section 61—Adaptive re-use

Section 61—delete 'The Minister' and substitute 'The Commission'

6B—Amendment of section 62—Climate change policy

Section 62—delete 'The Minister' and substitute 'The Commission'

New clauses negatived.

Clause 7.

The Hon. M.C. PARNELL: I move:

Amendment No 5 [Parnell–1]—

Page 7, lines 11 to 22—This clause will be opposed

Clause passed.

Clause 8.

The Hon. M.C. PARNELL: I move:

Amendment No 6 [Parnell–1]—

Page 7, lines 23 to 29—This clause will be opposed

Clause passed.

Clause 9 passed.

Clause 10.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 8, after line 13 [clause 10, inserted Schedule 8, clause 1]—Insert:

earlier Act means—

(a) the Planning Act 1982; and

(b) the City of Adelaide Development Control Act 1976; and

(c) the Building Act 1971; and

(d) the Planning and Development Act 1966; and

(e) the Town Planning Act 1929.

This amendment inserts the titles of all previous planning and development acts. This change was requested by stakeholders between the houses. For the avoidance of doubt it ensures, through related amendments, that any approvals issued under any of the previous acts remain as valid approvals or consents.

The CHAIR: Minister, there are a number of amendments here to clause 10, do you want to move them all?

The Hon. P. MALINAUSKAS: If the chamber is amenable, I think that is probably okay.

The Hon. M.C. PARNELL: I have a question: I understand the minister said that stakeholders are keen to avoid uncertainty. Are there any development approvals under the Town Planning Act 1929 that any stakeholders could identify were at risk of somehow failing for want of proper approval or that might somehow die during the transitional period if this was not included in the act, bearing in mind that we have existing use provisions which, effectively, entrench things that people have been doing for any period of time? I would not have thought there was a whole lot of work left to do for that 1929 act.

The Hon. P. MALINAUSKAS: I think industry and relevant stakeholders quite reasonably want to mitigate any risk, and there is a genuine concern that without this amendment there may be examples, but this seeks to mitigate that risk and seems to make sense.

The CHAIR: The minister has a further 10 amendments, is there any objection to moving them all at once?

The Hon. D.W. Ridgway: No.

The Hon. P. MALINAUSKAS: Therefore, I move:

Amendment No 2 [Police–1]—

Page 8, line 26 [clause 10, inserted Schedule 8, clause 3(1)]—After 'repealed Act' insert:

or an approval or authorisation under an earlier Act (and a reference in this Act to a development authorisation under this Act will be taken to include a reference to an approval or authorisation under the repealed Act or an earlier Act)

Amendment No 3 [Police–1]—

Page 9, lines 19 and 20 [clause 10, inserted Schedule 8, clause 4(7)]—Delete subclause (7) and substitute:

(7) For the purposes of section 4(4) (but subject to subclauses (8) and(9)), any period of cessation of an activity occurring before the designated day will be disregarded (and in the case of such a cessation of an activity the relevant period for the purposes of section 4(4)(b) will be taken to run, and will be calculated, from the designated day).

Amendment No 4 [Police–1]—

Page 9, lines 35 to 38 [clause 10, inserted Schedule 8, clause 4(9)(c)]—Delete paragraph (c) and substitute:

(c) section 4(4) will not extend to a period of cessation of an activity in an identified area occurring before the day on which the Governor makes the relevant proclamation under that subclause (but in the case of such a cessation of an activity the relevant period for the purposes of section 4(4)(b) will be taken to run, and will be calculated, from the day on which the proclamation is made); and

Amendment No 5 [Police–1]—

Page 14, lines 12 to 19 [clause 10, inserted Schedule 8, clause 9(3)(c) and (d)]—

Delete paragraphs (c) and (d)

Amendment No 6 [Police–1]—

Page 27, line 15 [clause 10, inserted Schedule 8, clause 39(1)]—After 'Act' insert 'or an earlier Act'

Amendment No 7 [Police–1]—

Page 27, line 21 [clause 10, inserted Schedule 8, clause 39(2)(a)]—

After 'planning consent under this Act' insert:

or a corresponding consent or approval under an earlier Act (other than the Building Act 1971)

Amendment No 8 [Police–1]—

Page 27, line 26 [clause 10, inserted Schedule 8, clause 39(2)(b)]—

After 'building consent under this Act' insert:

or a corresponding approval under the Building Act 1971

Amendment No 9 [Police–1]—

Page 27, line 34 [clause 10, inserted Schedule 8, clause 40]—After 'the repealed Act' insert:

or an earlier Act

Amendment No 10 [Police–1]—

Page 27, line 41 [clause 10, inserted Schedule 8, clause 41]—After 'the repealed Act' insert:

(or the repeal of a provision of an earlier Act)

Amendment No 11 [Police–1]—

Page 28, line 5 [clause 10, inserted Schedule 8, clause 42]—After 'the repealed Act' insert:

(or to the repeal of any provision of an earlier Act)

Amendments carried; clause as amended passed.

Remaining clauses (11 to 85) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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