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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-17 Daily Xml
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Development Act Regulations

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

That the regulations under the Development Act 1993 concerning the Flinders Chase Tourist Accommodation, made on 21 January 2021 and laid on the table of this council on 2 February 2021, be disallowed.

(Continued from 3 February 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:22): I rise to indicate that Labor will be supporting the Hon. Mark Parnell's disallowance motions, Orders of the Day, Private Business, Nos 10 and 11. I indicate that rather than speaking separately to both of them, as one relates to regulations under the Development Act and one to regulations under the Native Vegetation Act, I will speak to both Nos 10 and 11 in this one contribution and then the opposition will be voting to disallow those regulations.

The first motion disallows the regulations under the Development Act regarding private tourism developments worth more than $1 million in Flinders Chase National Park. Developments in national parks are currently required to be consistent with each national park management plan and to go through the normal, standard development approval process. Under the regulation that is before this chamber for consideration to disallow, development may be approved by the State Coordinator-General and would not be subject to development plan consent nor appeal.

The second motion will attempt to disallow regulations under the Native Vegetation Act regarding private tourism developments worth more than $1 million in Flinders Chase National Park. Under this regulation, any vegetation clearance required by the development may be approved by the State Coordinator-General. At present, as I said, developments in national parks require not just the development planning consent but native vegetation clearance and are subject to approval by the Native Vegetation Council. This council requires significant environmental benefit to offset any such clearance.

The context of these regulations is a controversial proposal from the Australian Walking Company to build accommodation on clifftops in Flinders Chase. This proposal has been subject to an appeal launched by local interested groups. These regulations, if allowed to stand, would allow the company to proceed without being subject to public input in the development approval or being subject to any appeal.

Since the introduction of these regulations and the subsequent disallowance motions, concerned groups and the company have reached some agreement about a change of location for the accommodation. However, such negotiated agreements have been made in the knowledge that the company was able to get approval from the government regardless of the views of the local community, due to the operation of the regulations that are the subject of the disallowance.

The introduction of these regulations has to be considered as an intentional shot across the bow of the local groups that are opposed to the government. This is a deliberate attempt to sideline them and to take away proper protections. The regulations effectively gave the local groups no option, with a gun held to their head in the negotiations, than to try to settle with the development company.

These regulations are not specific to that development but cover any private development in the park and are not time limited. We think they should be disallowed to avoid any further controversial development not being subject to any approval or scrutiny. At this stage, I wish to place on the record and acknowledge the tireless work of the local member of state parliament whose electorate includes Kangaroo Island, Leon Bignell, the member for Mawson. He has spent a great deal of time letting not just me but many members of this side of the chamber know his views about these regulations.

The member for Mawson, Leon Bignell, has implored that he is not against development but it needs to be sensitive, sensible development on Kangaroo Island to make sure that environmental concerns are taken into account and that it works properly for the benefit of everyone. I spent some time at almost this time last year on Kangaroo Island with the member for Mawson, Leon Bignell, in the wake of the bushfires helping BlazeAid to clean up fencing and meeting with members of the local community.

I know and share the member for Mawson's concern, as bushfire recovery continues, that the wishes of the local people on Kangaroo Island are not trampled on, as these regulations seek to do. We on this side of the chamber are very fortunate to have someone like the member for Mawson, Leon Bignell, who is in touch with the community on Kangaroo Island to inform us of the wishes and needs of the Kangaroo Island community, working together to bring about better results.

We think these regulations are another unfortunate example by this government to degrade our shrinking natural habitats. Regulations like these can turn amazing and timeless natural treasures into nothing but resources to be squeezed for cash, regardless of the destruction, degradation or views of those in the area. We have seen it before in this term of parliament with cuts to marine parks, where the only real threat of disallowing the regulations forced the environment minister at that stage into retreat.

We have seen it on issues to do with the Murray River, with the minister being found in a report to have capitulated to the interests of irrigators in the Eastern States, to the detriment of South Australians and South Australia's waterways. Even more recently, we have seen the shambolic handling of the death of more than 10 hectares of mangroves and 30 hectares of samphire wetlands near St Kilda. It was likely caused by hypersaline water seeping from nearby salt mining ponds.

We have a Minister for the Environment in name only, with almost all of the funding committed in last year's budget going to the building of facilities in national parks and very, very little to the protection of our precious biodiversity and natural resources. There needs to be a line drawn in the sand. Both these regulations are contrary to Labor's policy on development in national parks and it is contrary to our views while in government and in opposition, and we wholeheartedly support the Hon. Mark Parnell's motion to disallow them.

The Hon. R.I. LUCAS (Treasurer) (16:29): The government opposes the motion from the honourable member. With the recent devastating Kangaroo Island bushfires and the ongoing impact of COVID-19, it is important, from the government's viewpoint, that the local economy, that tourism ventures that generate local jobs are enabled in a way that carefully manages our environmental assets.

As we emerge from COVID, we indicated in last year's budget that this government's budget and its two-year stimulus package was predicated on the basis of saving as many businesses as we could, but also saving as many jobs and creating as many jobs as we could. For those areas that have been doubly impacted, not only by COVID, in terms of the impact on tourism, but also impacted by the devastation of bushfires, any sensible venture which is going to actually create local jobs for local communities we believe is worthy of serious consideration and support.

An example of development frustrated by the current planning regime is the existing Kangaroo Island Wilderness Trail, the existing visitor infrastructure and the Adelaide Walking Company's ecologically-sensitive accommodation and ancillary facilities and infrastructure within Flinders Chase National Park.

The variations to the development regulations 2008 made under the Development Act 1993 prescribe that a tourism development in the Flinders Chase National Park, where it exceeds $1 million in development cost, does not require planning consent and would instead be approved by the State Coordinator-General. The ecotourism project along the Kangaroo Island Wilderness Trail will go ahead, after the Adelaide Walking Company and local environmental groups reached an agreement and settled the matter in the Supreme Court.

I am advised that on 9 February it was publicly announced that the Supreme Court action taken by Eco-Action against the Adelaide Walking Company had been resolved between the parties and further that the State Coordinator-General has provided approval to AWC for the development to occur and we welcome that sensible resolution.

AWC has now received approval to build eco-sensitive accommodation pods along the Kangaroo Island Wilderness Trail after making changes to their original plans. The development approval reflects the agreement established with all the parties and ensures that native vegetation clearance conditions, including pre-clearance surveys and threatened species management plans, are undertaken prior to any development on site.

The project will deliver positive economic and environmental outcomes for Kangaroo Island. The partnership comes with the support of the Liberal government, which worked with the two parties and other community stakeholders in a process to reimagine visitor experiences on Kangaroo Island. This proposal has followed the precedent set for a number of developments by which the development regulations exempt certain developments from the requirement to comply with section 33(1)(a) providing that the development is approved by the State Coordinator-General.

Similar changes were made to facilitate the development of the SA Motorsport Park at Tailem Bend, as well as other developments specified in schedule 1A of the development regulations. The effect of the regulation is that it excludes, as I said earlier, the development of a requirement assessed against the development plan but still preserves building rules, consent and other aspects of the planning regime.

For those reasons, the government will be opposing the motion from the honourable member. As I said in conclusion, the government, in all that it is doing at the moment, where it can, sensibly, wants to save as many businesses as it can. We want to save as many jobs as we can and we want to create as many new jobs as we can in terms of coping with the impact of not only COVID-19 but, in this particular part of the state, the devastating impact of the bushfires as well.

The Hon. T.A. FRANKS (16:33): I am not the portfolio holder for the Greens for this particular motion or indeed, as the Hon. Kyam Maher noted, we have a little omnibus of them here. This is not the first time we have had this debate. So many people have written to me absolutely horrified about what this government is doing in this area that I feel compelled to highlight again to this chamber the strength of the Greens' vehemence and opposition to these regulations and why we will continue to disallow them. We cannot allow private vested interest to win out over public good.

I know the Marshall government has been called out here, yet again, by my colleague the Hon. Mark Parnell for trying to fast track major private tourism projects with no oversight or accountability and, indeed, making a joke out of our planning laws. Any claim that they may make of protecting the environment, when this is deforestation and privatisation by stealth, is certainly the sentiment of the correspondence I have received.

I reiterate that I am covering both the Development Act regulations and the Native Vegetation Act regulations, as the Hon. Kyam Maher did. Private developers would not need planning consent for tourism related developments in the iconic national park. Under the Native Vegetation Act regulations, developers could clear unspecified amounts of native veg inside Flinders Chase without needing to seek approval. What a disgrace!

Private development belongs on private land. Public land belongs in public hands. What the government is trying to do here is open the door to private developers and set a standard that it is fine to have private developments in other national parks as well without any consideration of the damage that this kind of development might bring, likely will bring. If these regulations in their omnibus, as we debate today, are allowed to stand, we are allowing public parks, national parks, to be carved up for profit.

It seems to be that, if it is nature, it is up for privatisation and profiteering under this Marshall Liberal government and with this particular environment minister. Private developers should not be intruding on our public spaces, but not only our public spaces, our parks and reserves as well. It is appalling that this government keeps encouraging them to do so, not just encouraging but enabling them by waiving developmental and environmental requirements and protections to help their developer mates.

This is a game of mates and the developers are the ones who will profit from it. We should be taking every step possible to preserve and protect our national parks, not privatise and develop them. The changes proposed by the government that we, here in the Greens and the community, seek to disallow are done under the guise of bushfire recovery. Indeed, I am stumped as to how allowing a new development here whilst waiving away the very basic requirements that would protect native vegetation has anything to do with that.

Flinders Chase is a globally recognised flora and fauna diversity hotspot and the national park was created and dedicated for the purpose of preserving flora and fauna over 100 years ago. There is long established evidence that shows us protected areas must be preserved, yet this government seems determined to privatise, monetise, commercialise and exploit any vestige of untouched natural wonder that they can find.

The Hon. J.M.A. Lensink interjecting:

The PRESIDENT: The Minister for Human Services is listed on the next one. Some members have spoken to both matters on this one item but you, minister, are listed on the next one. I will call the Hon. Mr Parnell to conclude the debate on this development matter.

The Hon. M.C. PARNELL (16:37): In some ways similar to other members, I will make most of my comments in relation to this item but, in the course of recent conversations I have had with some colleagues, I think I do need to make some additional explanations on the second item. I note that the government has separate speakers for both items as well. But the bulk of my contribution will be to this item and I will start by thanking the Hon. Kyam Maher, the Hon. Rob Lucas and the Hon. Tammy Franks for their contributions.

On behalf of South Australia's conservation movement, I thank the Labor Party for their support for the motion. It will be no surprise to anyone that the entirety of the conservation movement in South Australia is opposed to these regulations. I do know that some of my colleagues on the crossbench have received some conflicting information, and in fact misinformation, from the government, so I will be addressing my comments largely to my crossbench colleagues because I am not sure that they necessarily appreciate the stakes involved in relation to these two lots of regulations.

I will start with the development regulations. I also want to put on the record my thanks to a couple of groups, in particular the Field Naturalists Society of South Australia. It has to be one of our oldest conservation groups, established in 1883—older than any member in this chamber. Their letter to the minister states:

It [is] with great sadness but unshakeable resolve that I write to you on behalf of the Field Naturalists Society of South Australia to express our dismay at the State Government's recent move to introduce new Regulations…to over-ride existing protections…

Similarly, the people who know this park better than anyone else, the Friends of Parks, the ones who are there every day doing work in the park, the Friends of Parks Kangaroo Island Western Districts, their letter—addressed to the crossbench mainly, I am not sure who else got it—says:

For more than two years we have been fighting to preserve the environmental integrity of Flinders Chase National Park, one of the most iconic and biologically important natural areas left in South Australia, from inappropriate private tourist developments on remote and pristine coastal headlands, in what we argue was blatant disregard for the legally binding park management plan.

I will come back to something else they say in a little while, but they are two key groups. My conversations with other conservation groups are along a similar vein.

There have also been a number of developments since I moved this motion, and I feel the need to put this on the record. This is new information; I am not going to reagitate what I have said before. I will start with this court case that the Treasurer has referred to—and other members know about it—a longstanding court case: Kangaroo Island Eco-Action, the longest standing conservation group on the island, challenging various processes in relation to Kangaroo Island Wilderness Trail private accommodation.

Members may have seen some of the protest on the steps. The banners were saying, 'Get back on the track', and that is, in fact, what they have managed to succeed in doing. They have managed to convince the Walking Company and the government that having these private accommodations miles, kilometres, away from the track on pristine coastal headlands was not the appropriate way to go. Whilst we do not know what the new location is, we do know, anecdotally, that it will be closer to the actual wilderness trail. It will not be on those prominent headlands that were there before.

We can look at that as some level of success; mind you, it was not something that all conservationists supported. In fact, even those who, through gritted teeth, signed off on it are unhappy with the process. I come back to the Friends of Parks Kangaroo Island Western Districts, who said:

The day before we were due to meet with a departmental consultant to negotiate in good faith a resolution to this longstanding dispute and the week before the case was due to appear in court, the government introduced this regulation, thus forcing us to effectively negotiate with a gun to our heads.

So the settlement that the minister and others are very proud of was achieved by virtue of introducing regulations, the effect of which was, 'Well, we hold the whip hand. We will do whatever we want. You'd better reach agreement with us.' On 9 February, Minister Speirs was on ABC Radio Adelaide. He said:

I'm delighted that we have achieved a mediated outcome where the eco-pods will go ahead but in an altered form, they will be in less invasive spots and closer to the trail. They won't need as much native vegetation clearance.

I should just say, by way of an aside, that I do love the word 'eco-pods'. It sounds very small, very cosy, very low key. One of the buildings is 18 metres long, nine metres wide and four metres high. It is bigger than some houses, and it is in a national park. The interview with Minister Speirs on ABC 891 continued. David Bevan asked:

Does this mean the Vickie Chapman regulations which would have allowed pretty much the government to do whatever it liked in a national park, the government will drop those?

Minister Speirs replied:

I believe Mark Parnell has moved a disallowance motion in the upper house, the project is now approved, it was approved in a way that wouldn't have needed those regulations in the first place, so it becomes a bit of a moot point.

There is the minister on radio saying that these regulations are a moot point, yet we have the government saying that they are opposing disallowance. The minister then went on to make a quite outrageously false claim that my disallowance motion somehow affected the rebuilding of the Southern Ocean Lodge, which was destroyed in last summer's bushfire. He said:

There's actually other regulations which came in at the same time to help facilitate the rebuild of Southern Ocean Lodge, which is a critical anchor product in South Australia's tourism economy, so unfortunately Mr Parnell has moved to disallow both sectors' regulations and we really need Southern Ocean Lodge to be re-established, so hopefully they won't be disallowed by the parliament.

That was a bizarre statement. Luckily, I think the interviewer was on the ball a little bit and gave the minister a chance to recover. David Bevan said:

But these regulations would allow you to do pretty much whatever you like in those parks, so you say you still might need them for Southern Ocean?

Spiers: This is not in the park, so we wouldn't need them for this project.

So he has immediately contradicted what he said earlier, which is that the Parnell disallowance motion is a problem for Southern Ocean Lodge.

We are all used to ministers being vague and confused, and I normally do not let it get to me, unless the minister's confusion misrepresents what I or my party are trying to do. The minister is responsible for his own utterances, but I suspect the reason for his confusion is that there is another part of the Government Gazette which effectively says that the old major development approval for Southern Ocean Lodge, which dates back to 2004, can be revived because they are proposing to rebuild, basically, what was burnt down, in the same location and in the same form. It is an entirely different part of the Government Gazette; it does not relate to these regulations at all.

If people are thinking that this is somehow a backdoor method of preventing Southern Ocean Lodge being rebuilt, the minister was wrong, he has half-heartedly corrected the record, but I want to make that really clear on the record: these regulations only apply in the park. Southern Ocean Lodge is declared a major project, the normal planning rules do not apply to major projects, so put that from your minds.

Minister Speirs then says in relation to the future use of these regulations, 'I don't believe they will be used.' In other words, the government is saying they are opposing the disallowance of these regulations, the environment minister is saying he does not believe they will be used. The fact is that they have been used. The minister said on radio, 'The project is now approved. It was approved in a way that wouldn't have needed those regulations in the first place, so it becomes a bit of a moot point.'

Leaving aside that moot point bit, he said the development had been approved. I am not sure whether he was saying, 'I don't believe they will be used'—I will give him the benefit of the doubt. I think what he meant was 'again', 'we won't need to use them again', because they have clearly used them already. I will explain that because there is a time line that is important here.

The regulations were put in place on 21 January—they have done their job, they have done their dirty work. They have been used to approve, already, multiple private buildings in Flinders Chase National Park without planning consent and with zero consultation. The regulations came in on 21 January, they were tabled in parliament on 2 February, I immediately gave notice of intention to move disallowance on 2 February, and that is what we are now debating. Also on 2 February, I asked the Treasurer, representing the Attorney-General, a question in parliament. The question I asked was:

Did the minister encourage the Australian Walking Company to take advantage of the new regulations gazetted on 21 January to lodge a new development application for private tourism infrastructure inside Flinders Chase National Park?

The answer came back on 7 February, 'No'. My initial reaction was that that cannot be true, but then I realised that I do accept that the Attorney-General herself probably offered no personal encouragement. My question was not addressed to the environment minister or to the environment department, who clearly are behind this and who have reached an agreement with the Walking Company for them to advance their project without its requiring planning consent.

The environment department certainly, and I suspect the minister, knew that these regulations would probably be disallowed, because they are an outrageous breach of proper planning processes, so the developers had to act fast. They had the full support of the department, even if the Minister for Planning, the Attorney-General, was not in the loop. I also asked the Attorney on 2 February whether an application had been lodged, and the response that came back on 7 February was:

While I have no statutory role in the process, I have been advised that an application has been lodged.

While the Attorney might have known when she responded to my question that an application had been lodged, she may not have known that it had been approved five days earlier, because in fact that date—2 February, the date the regulations were tabled in parliament—was the date the project was approved.

All I did on 2 February was give notice of intention to move disallowance. I did not speak to it until private members' day the following day, but by the time I spoke, by the time I got up on 3 February, the project had already been approved under these regulations. They have done the job that the government set out for them to do.

I am still at a loss as to what the new development is. We are told that it is closer to the track. We are told that it is not on the prominent coastal headlands anymore, but we do not know exactly where it is. The reason for that—some people might have thought my question in question time yesterday was quite cryptic—is that the government's web page is so hopelessly compromised with failed security certificates that no web browser will allow you to open the decision notification form that tells you exactly what has been approved. I thought that if I asked the question yesterday I would give the government some time to fix up the website, but no, it is still not fixed.

That all happened on 2 February. I do know because, whilst the decision notification form is not available, I did manage to find on the government's public register two applications lodged on 2 February and then you go to the tab that says 'Assessment' and the assessment says, 'Decision granted, decision date 2 February.' What that tells you is that it all went according to plan. The regulations were introduced, they did their job, the Walking Company now has planning approval for something—we do not know what—something a bit different, hopefully better than what they had before.

These regulations in relation to the Australian Walking Company have no more work to do. There is nothing left for these regs to do, but it is still important that they be disallowed. I will make the point that disallowing these regulations today will not affect the approval that the Walking Company has. It will not retrospectively impact on that decision. They have their approval. They did not need planning consent because that is what the regulations do. You do not need planning consent. Just as for a pergola in your backyard, you do not need planning consent, but you do need building rules approval and they have that. They got that the same day they lodged their application. Nothing we do in relation to these development regulations impacts on the Walking Company.

So if they have no further work to do, why does the government want to keep them on the statute books? Again, we go back to Minister Speirs' interview with David Bevan on the radio last week. I quite like this question. David Bevan asked:

So why don't you just drop them? Why don't you just tell Vickie that you had a rush of blood to the head? 'We don't need them anymore. We've got a deal. Everybody has walked away and they've been quite reasonable about this, so can we just drop them?'

I thought it was a very good question. The answer that the minister gave was:

As a government, we remain committed to those regulations because they may be required as part of a broader reimagining—

a reimagining—

of the western end. We have some work to do in there. I don't believe they will be used, but a government can have those in our back pocket in case they are needed. I don't expect that to be the case going forward. I don't expect to be taking any projects that would require those regulations, but we still believe we need them in the toolkit just in case, so it will be interesting to see what the upper house does.

That is the question. What members need to take from that is that, if these regulations stand on the books, what the government will do is probably talk to some people about appropriate projects or whatever, but if they get any pushback—if they get the sort of pushback they got from the Friends of Parks or Eco-Action KI or the Conservation Council or the Field Naturalists—they will have in their back pocket regulations that say, 'We can do whatever we want in Flinders Chase National Park. Provided it is a tourism development and provided they are going to spend a million bucks, we don't need to consult anyone. We don't need to get planning consent. We can just do it.'

The question for the chamber today is: is that the regime that we think should apply to the future of this national park going forward? Forget the Walking Company, forget the eco-pods. Whether you think that is a great project or not is irrelevant. These regulations now are about what happens in this iconic national park going forward. If there is going to be future development, should it go through a proper process of assessment or should we allow these regulations that effectively give the government the sign-off power without having to consult anyone, without having to undergo any process at all?

That is the dilemma. The minister is saying that if other private developers come along and they want a chunk of Flinders Chase National Park for their private tourism projects, he wants the ability to approve those projects without it requiring planning consent, with no public or expert consultation or any of the checks and balances that should accompany development anywhere, especially in our most important national park.

In short, these regulations, if allowed to stand, provide carte blanche for the government to approve any future tourist development inside the national park that it wants. Provided it is worth more than $1 million, it is inside the national park, it is for tourism and the government likes it, it can go ahead with virtually no assessment other than a public servant deciding how much money they need to put into the kitty if they clear any vegetation—and we will come to those regulations next.

In conclusion, regardless of a person's views or a member's views on development in national parks, the very least that a parliament should do is to insist that proper processes be followed, that those processes be rigorous, transparent and accountable. To achieve that end, these regulations have to be disallowed.

I disagree most strongly with what the Treasurer said. He makes the point that we all know: they have had a tough time on Kangaroo Island, they have had the most horrendous fires, but you cannot then say that because a community has had a tough time with fires the only solution to job creation is to remove all accountability, all checks and balances and for the government to be the sole arbiter of what should happen inside a national park. That is illogical in the extreme.

We all want the Kangaroo Island economy to do better. We know that tourism is an important part of it, but when it comes to developments in national parks these are the areas set aside on behalf of the community, in the name of the community, for the preservation of nature. It is not to say that nothing can ever happen there, but if it does, it should go through the most thorough process. These regulations prevent that proper process from occurring and that is why the Greens are saying they need to be disallowed.

The council divided on the motion:

Ayes 9

Noes 10

Majority 1

AYES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. Parnell, M.C. (teller)
Pnevmatikos, I. Scriven, C.M. Wortley, R.P.
NOES
Centofanti, N.J. Darley, J.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Pangallo, F. Ridgway, D.W. Stephens, T.J.
Wade, S.G.
PAIRS
Ngo, T.T. Bonaros, C.

Motion thus negatived.

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