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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-12-01 Daily Xml
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Legislative Review Committee: Planning Reform Petition

The Hon. N.J. CENTOFANTI (16:08): I move:

That the report of the committee, on the Legislative Council's petition No. 2 of 2020, Planning Reform, be noted.

On 30 April 2020, the Hon. Mark Parnell MLC presented petition No. 2 of 2020, Planning Reform, to the Legislative Council. The petition, signed by 13,928 residents of South Australia, expressed concern that the state's precious natural and built heritage is being put at risk by laws, policies and practices that allow for destruction degradation of heritage and environmental values in contravention of the public interest. The petitioners prayed that the Legislative Council:

1. Undertake an independent review of the operation of the Planning, Development and Infrastructure Act to determine its impact on community rights, sustainability, heritage and environment protection;

2. Undertake an independent review of the governance and operation of the State Planning Commission and the State Commission Assessment Panel;

3. Urge the government to defer the further implementation of the Planning and Design Code until—

(a) a genuine process of public participation has been undertaken; and

(b) a thorough and independent modelling and risk assessment process is undertaken.

4. Legislate to ban donations to political parties from developers, similar to laws in Queensland and New South Wales.

The Planning, Development and Infrastructure Act 2016, which I will refer to as the PDI Act, was the first step in bringing about the most significant planning reforms in South Australia for a generation. These planning reforms included the establishment of the State Planning Commission, the State Commission Assessment Panel and new assessment bodies. The ePlanning portal was developed and activated, providing the public with digital access to the planning system.

The 72 individual council development plans were replaced with a single Planning and Design Code, which now applies throughout South Australia. During the process of consultation and the gradual implementation of the Planning and Design Code, there was growing discontent in the community regarding:

the consultation process for the code;

the governance of the State Planning Commission and the State Commission Assessment Panel;

the potential for improper influence from the development industry; and

the impacts of the PDI Act and the code on property development within the state and, in particular, on community rights, heritage, sustainability and the environment.

That discontent led to this petition. The committee heard evidence that the PDI Act generally succeeded in setting out objectives and guiding principles that should form the foundation for informed, effective, ecologically sustainable planning reforms. However, the committee also heard that the code and other documents drafted under the PDI Act failed to achieve these ideals.

The petitioners requested that implementation of the code be deferred until a genuine consultation and independent modelling and risk assessment were undertaken. The committee notes that, after the petition was referred to the committee, the Attorney-General's Department and the State Planning Commission provided a further round of consultation on a revised version of the code and further delayed its implementation.

The committee heard evidence that, even with this additional consultation, the submitters were not satisfied with the consultation process. Submissions suggested that the engagement requirements set out in the instruments prepared under the PDI Act were not met. The witnesses indicated that they did not find the engagement to be genuine, informed or transparent and that the materials were not fit for purpose.

Although the code was fully implemented prior to this report being tabled in the parliament, the committee recommends that a further 12-week period of consultation occur on the current version of the code. The submitters indicated that any independent modelling and risk assessment undertaken for the code and other planning documents was not sufficient nor independent. The committee therefore recommends that an independent risk assessment be undertaken annually and reviewed by the Environment, Resources and Development Committee.

The petitioners also sought an independent review of the PDI Act and in particular its impacts on community rights, heritage, the environment and sustainability. A number of submissions expressed a view that community rights had been diminished by the planning reforms. The committee heard complaints that local councils now play a smaller role in the planning process. The committee also heard that fewer developments will be required to notify neighbouring property owners and third parties will have fewer rights to appeal planning decisions.

The committee also heard that submitters hoped the reforms would go further to support and encourage sustainable and energy-efficient building practices, protect and increase the tree canopy and incentivise renovation and repurposing of heritage buildings rather than demolishing them. The committee heard that the planning system is an important vehicle to mitigate against and adapt to climate change and yet submissions suggested the code may have fallen short of achieving these vital ambitions.

The committee therefore recommends that the Minister for Planning and Local Government establish an independent review of the PDI Act and the code by the Expert Panel on Planning Reform. This review should determine the impacts of those instruments on community rights, sustainability and protection of the environment.

The most frequently raised issue in the submissions received by the committee related to the protection of heritage. In 2019, the Environment, Resources and Development Committee completed an inquiry into heritage and reported to parliament with a number of recommendations. The Legislative Review Committee recommends that the Minister for Planning and Local Government implement each of the recommendations made by the Environment, Resources and Development Committee as a matter of priority.

Submissions expressed concerns that the Planning and Development Fund, which was intended to be used to create public open green spaces, was diverted to cover the cost overruns of the development and implementation of the planning reforms.

The Legislative Review Committee recommends that the Economic and Finance Committee undertake an inquiry into the cost overruns, financing and use of funds of the Planning and Development Fund for the new planning system. In addition, the committee recommends that the PDI Act be amended to restrict the use of this fund, as well as the recently established urban tree canopy offset fund, to creating and developing open and green space.

To avoid regulations being remade immediately after being disallowed by parliament, as occurring here with the Planning Development and Infrastructure (General) Regulations 2017, the committee also recommends that the Attorney-General introduce amendments to the Subordinate Legislation Act 1978. These amendments will prohibit the reintroduction of a regulation that is the same in substance as one that has been disallowed by the parliament. Such a regulation will not be able to be reintroduced for six months from the date of disallowance. A similar provision currently exists in the COVID-19 Emergency Response Act 2020 and in other jurisdictions within Australia.

Submissions received by the committee expressed a view that the State Planning Commission and the State Commission Assessment Panel are dominated by property development interests and do not adequately represent the views of the community. Public trust in the planning system requires that these bodies act, and be seen to act, with integrity, objectivity and transparency.

The committee therefore recommends that the Statutory Authorities Review Committee conduct a review into the operations of the State Planning Commission and the State Commission Assessment Panel. This review would include inquiring into their governance, structures, membership and procedures.

In conclusion, this petition constituted a substantial undertaking for the Legislative Review Committee. The committee received 103 submissions and heard from 27 witnesses. In addition, at the time the committee received the petition, amendments to the draft Planning and Design Code and related documents were ongoing. Therefore, the submissions received and the majority of evidence heard by the committee were based on earlier versions of the code and not the version that was eventually implemented across South Australia on 19 March this year.

The committee appreciates that since the petition was presented to parliament substantial amendments have been made to the code, stemming from the consultations that occurred. As a result, many of the complaints raised have been rectified in the code as now implemented. Nonetheless, the committee heard that some of the concerns raised were not addressed by further consultation and amendments.

The committee concluded that one of the primary factors driving the community's dissatisfaction with the planning reforms, which in turn led to this petition, was the approach to community consultation prior to the reforms being implemented. The community had expectations of appropriate modelling and risk assessment of the impacts of the new legislation taking place prior to changes of this magnitude.

On behalf of the committee, I would like to commend the petitioners for pursuing this petition, one of the fundamental vehicles of democracy, to bring their concerns before the parliament. The petitioners sought to protect the amenity, history, environment and livability of South Australia. The committee is optimistic that the recommendations contained in this report will help achieve these aspirations and will result in an efficient, effective and streamlined planning system envisaged at the inception of these once-in-a-generation planning reforms.

In addition, the committee would like to thank all those who made submissions and provided evidence in relation to the matters raised in the petition for the assistance their experiences, knowledge and expertise have provided in this inquiry.

I would like to thank the other members of the Legislative Review Committee for their contributions to this inquiry: in the House of Assembly, the member for Flinders, the member for MacKillop and the member for Ramsay; and in this place, the Hon. Connie Bonaros MLC and the Hon. Irene Pnevmatikos MLC. I would also like to thank previous members who served on this committee during the duration of this inquiry. Finally, I would like to thank the committee secretary, Mr Matt Balfour, and the research officer, Ms Maureen Affleck, for their assistance with the report and the inquiry.

Debate adjourned on motion of Hon. I. Pnevmatikos.

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