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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-03-23 Daily Xml
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Bills

Planning, Development and Infrastructure Bill

Recommittal

Debate resumed.

The Hon. K.J. MAHER: I am advised that there have been some views put forward by some individuals, not just on this but on various aspects of the bill, and they certainly have been taken into account.

The Hon. D.W. RIDGWAY: Just let me get this clear. You deposited a plan on 1 December, you have spoken to councils and there have been discussions, and you said that their views have been taken into account. You have had discussions with landowners on a whole range of issues and I assume some include this, and you have just said that their views have been taken into account. Clearly, if we are legislating to enshrine a map that was deposited on 1 December, you have taken nothing into account when it comes to the actual boundary itself.

The Hon. K.J. MAHER: I am not sure that there is an answer beyond what we have been talking about. I think that is more of a comment than a question.

The Hon. D.W. RIDGWAY: It may have been a comment, but in your inability to say, 'Yes, we've taken it into account and we've tweaked the boundary in these particular locations,' the answer is: you deposited a plan on 1 December, people have talked to you, but you have had no interest in changing the boundary. The boundary deposited on 1 December is still the boundary that we are legislating today. Is that the minister's answer? Is it yes or no?

The Hon. K.J. MAHER: I am advised that there has been a great deal of checking to make sure that the boundary reflects the existing zoning.

The Hon. D.W. RIDGWAY: So none of the discussions you had resulted in any change to the boundary?

The Hon. K.J. MAHER: Since 1 December, the lines on the map have not changed.

The Hon. D.W. RIDGWAY: What does the government think the impact on the price of land will be as a result of this boundary change? Interstate, evidence shows that when you constrain land supply by putting in a boundary you put the price of land up.

The Hon. K.J. MAHER: Is the question: will land that you can build on go up and there will not be a change outside? Is that the suggestion?

The Hon. D.W. RIDGWAY: My question is: can the minister guarantee that this will not have a negative impact on housing affordability, by putting land prices up by constraining supply?

The Hon. K.J. MAHER: There are many, many factors that impact on prices of all sorts of things, so I am not going to guarantee any such thing. What I can say is: no current zoning will be disturbed. So, if you are looking at a price based on current zoning, it will not be disturbed and the price will reflect that current zoning.

The Hon. D.W. RIDGWAY: Minister, you talked earlier about transparency and you paid tribute to the Hon. John Darley for helping to negotiate with the government in relation to this particular component, or these few pages of amendments. In the interest of transparency, are you prepared to detail to the chamber those discussions and what deals or negotiations have been done to arrive at this set of amendments?

The Hon. K.J. MAHER: There have been many discussions. I know that the planning minister in another place is very open to having discussions and very accessible to members to discuss their concerns, and he will continue to do so on a whole range of bills. I do not purport to represent everything he discusses with everyone. I think the honourable member would be very disappointed if I was asked to do that when he has discussions with someone about any given matter. So no, I will not.

The Hon. D.W. RIDGWAY: The reason I ask that question is that during the second reading debate the Hon. John Darley—and he came in here as Nick Xenophon's running partner, I think No. 3 on the ticket originally. I do not think he really ever thought that he would end up having a career in parliament; nonetheless, he has done so—was quite concerned about this environmental and food protection area and the negative impact it would have on land values. I quote:

Experience from major cities around the world has seen an increase in land prices whenever an urban growth boundary is put in place. This decreases housing affordability and penalises those who are already struggling to gain a foothold in the housing market. Normal supply and demand principles should apply, however. They will not if supply is limited.

The point I am trying to make is that, clearly, the Hon. John Darley is now part of the Nick Xenophon Team—a political party that will run candidates in a whole range of electorates in the next federal election, at least—and, clearly, there have been some negotiations behind the scenes that have resulted in a significant change in position for the Hon. John Darley and the Nick Xenophon Team, who say, 'Well, back in December we were opposed to this and now we're in favour of it.'

I want to know whether there have been any other arrangements. We talk about transparency and we talk about this being a democratic process. After the first amendment, the minister talked about transparency. It is a significant shift for an individual or a political party to shift from being opposed to it to now being in favour of it. I think this chamber needs to know if there are amendments or any other arrangements that are tied up in this particular deal when we are talking about transparency.

The Hon. K.J. MAHER: Again, I do not think there is a single question in there, so we will take it as a statement rather than a question. The Hon. David Ridgway has come in here previously and said that there is not enough consultation and that people are not talking to each other enough, and then he comes in and says exactly the opposite and criticises when the planning minister in the other place is open and is able to talk to people about what it means and talk to them about this scheme and how the bill works.

He tries to have it both ways when it suits him. When it suits him to say that it is difficult to negotiate or to look at different ways to do things, he will criticise, but when it is abundantly clear that the planning minister is open for discussions with members about how this scheme works, he criticises that as well. I just do not accept his comment. There was no question in there, but I think it is important to put on the record that he just cannot have it both ways on this.

The Hon. D.W. RIDGWAY: My question to you is: are there any other landowners in South Australia who will get an opportunity or a benefit as a result of the negotiations of the Hon. John Darley with the Minister for Planning?

The Hon. K.J. MAHER: I quite genuinely do not understand his question whatsoever.

The Hon. D.W. RIDGWAY: I do not know how plain I have to be. There are a couple of landowners who have had some arrangements who have been quite frustrated with their being landlocked. My understanding is that part of the arrangement that the Hon. John Darley has is to effect some sort of solution to their problem that the minister is happy to look at as a result of the Hon. John Darley's support for this amendment. I think the chamber needs to know if that is the case and what the nature of that is.

The Hon. K.J. MAHER: My advice is no, in response to that question. My response is no, but I would ask the honourable Leader of the Opposition to respond as to what discussions he or his party have had with developers who would be looking to use greenfield sites and how their views on this might have been influenced by that. The answer to his question is no, and I invite him to put on the record what discussions have been had and what influence his party's view has had from developers.

The Hon. D.W. RIDGWAY: I will respond to that. It has been known from day one that we have never, ever supported an urban growth boundary, not in this context or at any time in the future.

The Hon. K.J. Maher interjecting:

The Hon. D.W. RIDGWAY: I'm answering. We have supported an urban growth boundary that we have had since the Hon. Diana Laidlaw in this place put one in place. There has been 14 years of this government, so it was in the late 1990s that she put that in place. We support having an urban growth boundary that is not legislated and enshrined in legislation. What I want to know—

The Hon. K.J. Maher: You're not answering my questions.

The CHAIR: We could be here all day on this.

The Hon. D.W. RIDGWAY: At the end of the day, I asked a simple question: are there any other landowners whose properties have been involved in the negotiations between the Hon. John Darley and the Hon. John Rau?

The Hon. K.J. MAHER: My advice is no and, again, I would invite the honourable Leader of the Opposition to put on the record whether he or his colleague in another place have had discussions with developers in relation to this bill and this particular part of this bill. It is up to him whether he wants to.

Amendments carried; clause as amended passed.

Clause 6 passed.

New clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Emp–6]—

Page 23, line 24 to page 25, line 30—Insert:

7—Environment and food production areas—Greater Adelaide

(1) On the commencement of this section, the environment and food production areas as defined by the plan deposited in the General Registry Office at Adelaide and numbered G17/2015 (being the plan as it existed on 1 December 2015) are established within Greater Adelaide.

(2) The Minister must ensure that a copy of the plan referred to in subsection (1) is published on the SA planning portal.

(3) In making any decision under this section (following the establishment of the initial environment and food production areas under subsection (1)), the Commission must ensure that areas of rural, landscape, environmental or food production significance within Greater Adelaide are protected from urban encroachment and the Commission may only vary an environment and food production area if the Commission is satisfied—

(a) that—

(i) an area or areas within Greater Adelaide outside environment and food production areas are unable to support the principle of urban renewal and consolidation of existing urban areas; and

(ii) adequate provision cannot be made within Greater Adelaide outside environment and food production areas to accommodate housing and employment growth over the longer term (being at least a 15 year period); or

(b) that the variation is trivial in nature and will address a recognised anomaly.

(4) If an area of land that is, or is included in, a character preservation area under a character preservation law ceases to be, or to be included in, a character preservation area, the area of land will, at the time of the cessation, by force of this subsection, be taken to be an environment and food production area established under this section.

(5) The following provisions will apply in relation to a proposed development in an environment and food production area that involves a division of land that would create 1 or more additional allotments:

(a) a relevant authority, other than the Commission or the Minister, must not grant development authorisation to the development unless the Commission concurs in the granting of the authorisation;

(b) if the Commission is the relevant authority, the Commission must not grant development authorisation to the development unless the council for the area where the proposed development is situated concurs in the granting of the authorisation;

(c) no appeal lies against a refusal by a relevant authority to grant development authorisation to the development or a refusal by the Commission or a council to concur in the granting of such an authorisation;

(d) if the proposed development will create additional allotments to be used for residential development, the relevant authority must refuse to grant development authorisation in relation to the proposed development;

(e) a development authorisation granted in relation to the proposed development will be taken to be subject to the condition that the additional allotments created will not be used for residential development.

(6) In acting under subsection (5)(a), the Commission must take into account the objective that areas of rural, landscape, environmental or food production significance within Greater Adelaide should be protected from urban encroachment.

(7) For the avoidance of doubt, the establishment of 1 or more environment and food production areas does not affect the operation of this Act, a Mining Act or any other Act, except as provided in subsection (5).

(8) Subject to this section, the Commission may, from time to time, by notice published in the Gazette and on the SA planning portal, vary an environment and food production area (including an environment and food production area established (or taken to be established) under this section).

(9) The Commission may only act under subsection (8) if—

(a) the Commission has conducted an inquiry into the matter and furnished a report on the outcome of the inquiry to the Minister; or

(b) the Commission has conducted a review in accordance with subsection (10) and furnished a report on the outcome of the review to the Minister.

(10) The Commission must conduct a review under subsection (9)(b) on a 5 yearly basis.

(11) The purpose of a review under subsection (9)(b) is to assess the matters set out in subsection (3)(a).

(12) If the Commission publishes a notice under subsection (8), the Minister must, within 6 sitting days after publication of the notice, cause a copy of—

(a) the notice; and

(b) (at the same time as the notice is laid before Parliament) the report of the Commission under subsection (9)(a) or (b) (as the case requires),

to be laid before both Houses of Parliament.

(13) If either House of Parliament, acting in pursuance of a notice of motion, passes a resolution disallowing a notice laid before it under subsection (12) the notice cannot take effect.

(14) A resolution is not effective for the purposes of subsection (13) unless the resolution is passed within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the notice was laid before the House.

(15) If a resolution is passed under subsection (13), notice of that resolution must immediately be published in the Gazette.

(16) If or when a notice laid before both Houses of Parliament under subsection (12) can take effect after taking into account the operation of subsection (13) and (14), the Commission may, by notice published on the SA planning portal, fix a day on which the notice will come into operation.

(17) A notice under this section may define an area by a plan deposited in the General Registry Office (as it exists at a specified date), or in some other way as the Commission thinks fit.

(18) In this section—

residential development means development primarily for residential purposes but does not include—

(a) the use of land for the purposes of a hotel or motel or to provide any other form of temporary residential accommodation for valuable consideration; or

(b) a dwelling for residential purposes on land used primarily for primary production purposes.

The government has recommitted clause 7 largely as drafted in the original bill with key changes to increase the role of the commission to tighten review requirements and ensure that relevant reports of the commission are tabled in parliament at the same time as it tables a notice proposing to vary or amend the EFPA.

The Hon. D.W. RIDGWAY: I indicate that the opposition will oppose this amendment, but I have some questions. Can the minister explain the process? My understanding of how a motion of disallowance works now is that it is a regulation, somebody gives notice, they move it and it stops the clock. It has to be done 14 days after the regulation is tabled; that stops the clock and you have forever and a day to come back and debate it and this house either support it or not support it. I want to know how the new process will work.

It seems a strange process if there is a change to the urban growth boundary and it is tabled, anybody could move disallowance and it stops the clock. The community that wants the change, whether it is an individual or a council, how long do they have to wait? You talk about trying to get the economy moving and getting rid of red tape, and now you are saying that we will have a period of time. In my discussions with the minister yesterday, he was uncertain of the number of days, and I think that the Hon. John Darley did not know what were the number of days. Can the minister explain how the process will work?

The Hon. K.J. MAHER: My advice is that, once notice of disallowance has been tabled, there are 14 sitting days to have the disallowance motion passed. I think the question was around stopping the clock. My advice is that the clock is not stopped, but there are 14 days for the disallowance motion to be passed once it has been tabled. My advice is that, once the change of boundary has been tabled, there are 14 sitting days in which to lodge a motion to disallow, and after that time the boundaries come into effect.

The Hon. D.W. RIDGWAY: And that is consistent with the current regulation of 14 sitting days once it is gazetted to move for a disallowance. What I want to know is: once you have moved for disallowance, when is the chamber required to deal with it? I do not think you are giving us the right answer: you go back and get the right answer.

The Hon. K.J. MAHER: My advice is that the 14 sitting days apply not just in relation to introducing a disallowance motion but to having it passed. The 14 sitting days is to have the disallowance motion passed.

The Hon. M.C. PARNELL: I will continue the same theme of questioning. To make it abundantly clear—because I think it is important to clarify this—there is a note in the Government Gazette, published by the commission, which says, 'We are going to change the environment and food production area.' That is the first step, a note in the Gazette. The government then has six sitting days, I think it is, to table that in parliament, and members of parliament then have 14 days to actually deal with it—and 'deal with it' does not just mean introduce a notice of motion of an intention to disallow, it actually has to be resolved. So it is effectively 20 sitting days altogether.

The parallel has been drawn with regulations. The big difference with regulations is that they come into operation on the date they are gazetted and they are effective until or unless they are disallowed by parliament. I think it is important to make it crystal clear that the changes to the urban growth boundary do not come into operation until this process has been completed. It is not as if there is a sneaky couple-of-week period when people can take advantage of the changes; they do not come into operation until the disallowance period.

Let us say that the government sat on its hands for the full six days and then parliament sat on its hands for the full 14 days—

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: Twenty altogether. So it does not come into operation until it is finally resolved in parliament and, if parliament has not resolved it, it is resolved in the affirmative. In other words, if you have not dealt with it in 14 days it comes into effect. Can the minister put on the record that that is the way it works?

The Hon. K.J. MAHER: I can inform the Hon. Mark Parnell that my advice is that it is as he has described it, that is the way it works. Fourteen sitting days is a relatively reasonable period of time, given that we meet three days a week and not regularly two weeks in a row.

The Hon. D.W. RIDGWAY: I think I do understand it. It comes into effect at the end of that 20-day period—

The Hon. K.J. MAHER: Yes, 20 sitting days.

The Hon. D.W. RIDGWAY: Effectively, you could have a change that is gazetted and tabled, the government has six days to table it, and you could have a six-month period—I think we are now in our 13th day dealing with planning since Christmas; it is now 23 March—you could see something tabled in December and it still being uncertain for the proponents who are wishing to change until, say, the end of March. We are talking about four months being the potential delay.

The Hon. K.J. MAHER: In relation to the previous comments from the Hon. Mark Parnell—and I appreciate the abundance of clarity we are seeking on these things—and the date on which it comes into effect, you have that 20-day period running out, but then it is not automatic that it comes into effect. I think subsection (16) says fix a day on which the notice will come into operation, so that 20 days runs out and then the date is fixed for when it comes into effect. It does not automatically, when the 20 days are up, come immediately into effect.

In relation to the Hon. David Ridgway's question, yes, that period of the six sitting days to table and then the 14 days would depend, at any given time of the year, on the parliamentary sitting calendar.

The Hon. M.C. PARNELL: I will pursue the Hon. David Ridgway's question a bit further, because he talks about how there will be a period of uncertainty. I think that is absolutely right; there will be a period when people will not know whether certain land is going to be within or without the urban growth boundary. The point I make is that urban growth boundaries in theory can move in two directions. You could actually shrink it or you could expand it. In other words, in theory you could take land that would currently be available for subdivision for housing and you could decide to include that in the food production area.

My feeling would be that the pressure is all going to be in the other direction. The pressure will be on land that is currently protected from subdivision and there will be pressure to open it up for subdivision. Yes, I think there will be uncertainty as to what the result might be, because people have to wait, but I would expect that the only uncertainty would be property owners on the fringe, who will not know for a period of time whether they are going to be able to subdivide or not. At present, they cannot, and they will know in a few weeks or a few months whether they can.

I do not see any disadvantage to those people in that period of delay, but absolutely, it would be a period of uncertainty. I would be very surprised if, having established the urban growth boundary, the commission then gazettes a change to it, to actually incorporate into the environment and food-growing area land that currently is not. I expect the pressure will be all in one direction.

The Hon. R.I. LUCAS: Can the minister outline what would happen in the circumstances under this new provision where one house of parliament does disallow this notice; the process has been followed, notice is given and within the four sitting days one of the houses of parliament disallows the notice. What in this provision prevents the government of the day from reintroducing the same provision and seeking a revote on an issue?

The Hon. K.J. MAHER: Nothing prevents the reintroduction. I guess it is the case that unless something has changed you will get the same result again, though.

The Hon. R.I. LUCAS: So if the government lost or had a notice that was defeated, would the government in the circumstances that it had, let's say, worked over a member of parliament, done a deal with a member of parliament and changed his or her vote, have to go back through the process with the commission again, conducting an inquiry and gazetting?

Under subsection (9), where the commission has conducted the review and provided the advice, etc., the reactivation of another vote in the parliament would only be generated by the minister following the process from subclause (12) onwards, that is within six sitting days after the publication of the notice. How could that be achieved without another notice having been given by the planning commission, because the six sitting days provision under subclause (12) would have expired?

The Hon. K.J. MAHER: My advice is that if there is a disallowance, then the process starts again. I think that is your question.

The Hon. R.I. LUCAS: It was, but that is different to the answer you gave me to the question earlier. That is, you said nothing would stop the minister from just reintroducing the motion.

The Hon. K.J. MAHER: I took that as meaning if—

The CHAIR: Let the honourable member finish his question.

The Hon. R.I. LUCAS: Let me explain the question. All I am saying is that that most recent answer is different to the first answer. The first answer that the minister gave was, 'If you lost the vote, you could just reintroduce straightaway, but why would you if you lost the vote?' Well, you might lose the vote one time, but you might do a deal with a member, and the member might say, 'I'm prepared to change my vote now if you reintroduce the motion.'

As I said, my reading was that it would lead me to suggest that you might have to go back through the whole process again. That is what I am seeking to clarify and that appears to be now what the minister is saying. If that is the case, by 'the whole process again' are we saying that the planning commission would have to undertake its work again, conduct another inquiry, furnish another report and then go through the whole process again?

The Hon. K.J. MAHER: That is right. The whole process would have to start again, as was described at the very end of your question, but if a very similar boundary was proposed, then, of course, it could be revoted on again after that whole process has happened. I do not think it is right to characterise it as a different answer. I think what you are saying is correct that it could be a similar boundary that is come up with, but only after the whole process has been gone through again and then, of course, it would be subject to the same disallowance provisions once more.

The Hon. D.W. RIDGWAY: The concern I have, now that the minister has explained this, is that we could have a set of circumstances where the commission does its work, it tables its notice and—one member of parliament in this chamber is probably a good example—one member of parliament can decide whether a development or a change to the boundary takes place. We often have votes in here that are either won by one vote or lost by one vote so that disallowance could be one person.

The Hon. K.J. Maher: You could win a vote by one.

The Hon. D.W. RIDGWAY: You could win it by one, you could lose it by one. The point I am making, and it is more of a comment than a question, is that this whole process is then opened up to a deal done about something totally different from this particular boundary to get that one member of parliament's support or opposition to a change on something that has nothing to do with actually changing the environment and food protection area. Again, I highlight the point that this process is now becoming super political when we wanted to have an independent planning commission and take the minister out of it. It becomes super political when you have one member of parliament who may have no interest in the boundary, but have interest in another bit of legislation they want to do a deal on.

The Hon. K.J. MAHER: Again, I guess that is a comment. The comment is that one member of the parliament can influence a decision and of course they can. To be convincing enough and win over the support of this council on something is how it has always operated. I am not sure if the honourable member is suggesting that the democratic process is not a good process and is going to put forward another one or the abolition of the Legislative Council. I am not sure where he is going with this, but it seems a very odd statement.

The Hon. M.C. PARNELL: I will pursue this same line of questioning. I thank the Hon. David Ridgway for drawing it to the committee's attention. What is at stake in changing the boundary is potential massive profits from those who own land in the vicinity of the urban growth boundary. I expect that there will be great incentive on people who are the wrong side of the line—if I can use that phrase—to influence members of parliament to support the line being shifted in their favour. So my question is: given the potential that exists for undue influence to be brought on members of parliament, will the government now consider banning political donations from property developers as occurs in New South Wales?

The Hon. K.J. MAHER: I am sure that the honourable member can agitate his views on these things, electoral matters, changes to the Parliamentary Committees Act and all the other things that he has brought up during the course of this process with the relevant minister and see if he can convince them of the merit of a whole lot of suggestions. I know he has deeply held views about a whole range of areas and I appreciate those. I am sure he will continue to agitate for the things that he believes in and talk to the relevant ministers about them in the future.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:17.

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