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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Motions

Planning, Development and Infrastructure Act Regulations

The Hon. M.C. PARNELL (15:59): I move:

That the general regulations made under the Planning, Development and Infrastructure Act 2016 made on 18 June 2020 and laid on the table of this council on 30 June 2020 be disallowed.

I am not going to speak for a long time today. I know that members wait in eager anticipation for my speeches on the subject of planning, but I do not need to speak for very long because I have spoken to members of all parties, other than the government, and I know that we have the numbers to disallow these regulations today. I have never known the government to agree to disallowing their own regulations, so it was not out of disrespect; it was out of practice. I am glad these regulations will be disallowed today, and I thank the chamber for their indulgence in allowing me to move the motion and to vote on it on the same day, as we have rather urgent motions.

The first thing I would say is that what we have discovered in the COVID pandemic is the value of public open space, more than ever. We have seen in the media that visitation to parks and reserves has in some cases doubled as people have taken the opportunity to get out into nature and into their local parks to exercise, perhaps in a way in which they can be socially distant. We have an appreciation of open space like never before.

Where does open space come from? Under the planning system, developers of large subdivisions are required to set a certain proportion of the land aside for public parks, if you like—for open space—but that is not always appropriate. Sometimes it is more appropriate for the developer to pay money into a fund. This fund is currently known as the Planning and Development Fund; it is also known colloquially as the 'open space fund'. This is the fund, and the amount in it varies: it can be $40 million, $50 million or $60 million that go through this fund each year. This is the money that is used for creating parks and bicycle ways and other elements of the public realm. It is the open space fund.

So it did come as a surprise to see that regulations had been gazetted that changed the permissible use of the fund. According to the regulations, the original wording of the regulations was that the fund could be applied for a public work or a public purpose that promotes or complements a policy or strategy contained in a state planning policy. The emphasis is on 'public work' and 'public purpose'; they are the key words. What the government did in these regulations was to add a whole lot of administrative functions. The words are:

…the establishment of projects associated with the implementation of the Act, including the establishment of—

(i) the SA planning website (the SA planning portal); and

(ii) the SA planning database; and

(iii) the online atlas and search facility; and

(iv) the online delivery of planning services; and

(v) the Planning and Design Code.

These are all administrative functions, and the idea that a bucket of money set aside for the creation of open space could be used for admin is something that all stakeholders in this area found obnoxious. We saw in the Sunday Mail on 4 July an article by their urban affairs reporter Renato Castello, under the heading 'Builders green with outrage'. It reports that the development industry, the Urban Development Institute in particular, was outraged by this move. According to Castello's article:

The decision last month has blindsided developers, who claim the regulations go against the sole intent of the fund to create open space in areas undergoing urban infill and regeneration.

The quote from the chief executive of the Urban Development Institute is:

It is concerning that instead of some of these contributions, which are supposed to go on open-space measures like paths and bike paths and to transform and rejuvenate suburbs, will be spent on administration.

He goes on to say that the Urban Development Institute was not forewarned of these powers. Mr Castello followed up a week later with another article. This time he got the perspective of the other side, if you like, of the stakeholder debate, which is local government and community groups.

Again, the LGA came out saying that they were deeply concerned that during a time when parks and recreational areas are needed to support community health and wellbeing, this government appears to be diverting funds that have been provided by those subdividing their land to fund the operations of a government agency. In other words, they are saying exactly the same thing: do not use this fund for a purpose for which it was not designed.

That, I think, is the thrust of the case against these regulations. I am very grateful to all the people who have taken the trouble to write to me and who have, more importantly, taken the trouble to write to the minister. I will not read from all these submissions, but certainly the Local Government Association, under the hand of mayor Sam Telfer, wrote, basically saying that they supported this disallowance motion.

A number of residents' groups have written to the minister and to me, again saying they strongly support the disallowance of these regulations. The Norwood Residents Association is one. The Kensington Residents Association is another. A number of individual councillors have written to me, again saying they support the disallowance of these regulations. The Prospect Residents Association and some of the peak groups, such as the Community Alliance, have also written.

One thing that does disturb me is some comments that were made yesterday by the planning minister. Clearly, the minister has been under pressure. Every stakeholder in this space is against these regulations, and when it was put to the minister yesterday, he effectively said, 'Well, the other lot did it too, and there's nothing wrong with it,' to which the response is, 'Well, why did you need to change the regulations, if it was already authorised?' But I will not paraphrase the minister. His exact words were:

It was always envisaged that part of these reforms were to be paid for out of the Planning and Development Fund. In fact, it is something that has happened over a long period of time. It is not something that is unique to this government, and it is not something that is unique to me as minister.

He goes on to say that:

…the Planning and Development Fund is an appropriate use of those funds.

That is, for administration. He continues:

Yes, there was a regulation that was put in place, but this is an authority that has existed and certainly the fund has been used for this purpose for some time.

That begs the question: you have put a regulation in and then said, 'I didn't really need to, because we have always had the authority to do this.' What is going on here?

I am very pleased that the opposition has seen fit to support this disallowance motion. My colleagues on the crossbench have seen fit. I fully expect that tomorrow's Government Gazette will contain these regulations again, but my plea to the minister is—and I fully expect the minister will, because these regulations are general regulations, and it is only one aspect of it that I have disagreed with—when the minister introduces these regulations again, leave out regulation 25. Leave out the one that changes how the open space fund can be spent. I have had no-one say that there is anything obnoxious or out of order in the rest of the regulations. The rest of them can be put back onto the statute book, but do not reintroduce these regulations with No. 25 in place.

Whilst the minister certainly can do whatever the minister chooses, I have no doubt that if exactly the same regulations are reinstated in the Government Gazette tomorrow, I will be moving exactly the same disallowance motion as soon as this parliament comes back from the winter break. That is an appalling way for this government to handle its regulatory responsibilities, to continually introduce a regulation that this chamber of parliament has disallowed. It is also particularly egregious when the minister is having a bet both ways. He is saying, 'Everyone used to do this and it's lawful already,' and then continuing to introduce a regulation to hopefully validate what I think are probably previously unlawful acts.

I would like to see what the Auditor-General has to say about how this fund has been spent. It would not surprise me in the least if a report comes back saying that the spending has been inappropriate, but for now let's make sure this fund is used for the purpose for which it was created and that is public realm, open space, for the benefit of the community, not to top up a budget that is struggling for administration. Go to the Treasurer for that. Go to the Treasurer and ask for more money if you need more money for the Planning and Design Code or the portal or the website; do not raid this open space fund.

The Hon. C.M. SCRIVEN (16:09): Labor supports this motion to disallow the general regulations made under the Planning Development and Infrastructure Act 2016, made on 18 June 2020 and laid on the table of this council on 30 June 2020. We support the disallowance because these regulations would allow the Minister for Planning to use funds from the Planning and Development fund to prop up his failed planning reforms.

Under the Planning Development and Infrastructure Act 2016, applicants who create new developments are required to pay into the Planning and Development Fund. They pay in monies to enable projects to be undertaken to improve the public realm. Money paid into the fund is derived from cash payments in lieu of open space for development involving the division of land into less than 20 allotments and for strata and community titles. The fund is for projects to make streets and suburbs more liveable, by developing reserves, planting trees, constructing water harvesting projects and building playgrounds. Instead, this government wants it to be diverted to prop up the mismanaged planning reforms and e-planning system.

So far this reform process has been plagued by a series of crises that have led to massive staff resignations, missed deadlines and massive budget blowouts. So it is not surprising that minister Knoll wants to cover up his failure and is trying to raid other budget lines. But in this case this fund is designed to improve the quality of the amenity of our communities. These funds are to improve the conservation, enhancement and enjoyment of public open spaces and to provide communities access to quality, green public open space for positive health and wellbeing outcomes.

The Hon. Mr Parnell reflected in a very timely way on how much COVID-19 and restrictions that have been placed upon us have made these open spaces, these green spaces, even more important and even more appreciated by members of our state. So Labor will not allow the open space fund to be plundered by the planning minister to prop up the budget shortfall in the development and implementation of the planning code, which is why we will support this disallowance. We congratulate the Hon. Mark Parnell on moving this motion.

The Hon. C. BONAROS (16:12): I indicate for the record, in a very short contribution, that, for all the reasons just outlined by both honourable members, we will also support this motion.

The Hon. D.W. RIDGWAY (Minister for Trade and Investment) (16:12): I rise to speak in opposition to the Hon. Mark Parnell's motion. This proposed motion to disallow the entire content of the Planning Development and Infrastructure (General Miscellaneous Variation) Regulations 2020 seeks to throw away 25 pages of regulations, critical to the operation of the state's development assessment system. These regulations, apart from the variation regulation 25, will commence in operation in regional areas of the state on 31 July, before applying to the whole state later this year.

These regulations build on the initial set of general regulations, also disallowed through a motion by the Hon. Mark Parnell on 4 December last year, which, while largely procedural or technical in nature, importantly prescribe additional referral bodies to align with policy contained in phase 2 of the Planning and Design Code, corrections to some of the identified procedural gaps correcting references to specific code provisions. In effect, they make the whole system work as it was intended.

The government notes that the Hon. Mark Parnell has particular concern with the variation regulation 25 relating to the application of the Planning and Development Fund. With regard to the fund, this government has shown a strong commitment to use the fund to provide economic stimulus by supporting shovel-ready projects, also while creating significant community benefit.

The Minister for Planning has doubled the Planning and Development Fund available for 2019-20 to $50 million. I repeat: the minister has doubled the fund available for this financial year to $50 million, when matched with a local government contribution on a 50/50 basis. Further, $25 million has been allocated to a diverse range of projects from playgrounds, biodiversity trails, main street and linear park upgrades, and there are a number of beneficiaries of the new planning and development system, including the general community, the development industry, local councils and the state more generally.

As such, the funding strategy for the program has always included a contribution from the Planning and Development Fund. This was a decision put in place by the previous government. It is interesting that the opposition spokesperson, though she was not there, does not remember when her team was in government.

The member should also be aware that the Planning and Development Fund can be used for a range of purposes set out in section 195 of the Planning, Development and Infrastructure Act 2016. When I went to school, 2016 was before 2018, so clearly it was under the former Labor government. The act envisaged regulations that set out additional circumstances for which the funds can be used. This variation regulation ensures that a portion of the fund can be used to ensure that the critical elements required for the implementation of the act can be developed on time, ensuring that all South Australians gain the benefits of a new and more efficient planning system.

We strongly believe that these regulations are sound and are based on extensive consultation, particularly with government agencies. They ensure that the development assessment process is now comprehensive and efficient, one that seeks to benefit all users of the land use planning system in South Australia. We oppose this disallowance motion on the strongest possible grounds.

The Hon. M.C. PARNELL (16:15): To conclude the motion, I thank the Hon. Clare Scriven and the Hon. Connie Bonaros for their indications of support and also the Hon. John Darley for the previous indication of his support. In relation to the Hon. David Ridgway's contribution, I would make one main point and a minor point.

The main point is that I can agree with him to a certain extent that disallowance of regulations is a blunt instrument. We do not have the ability to take the other 24½ pages and wave them through. It is only the one regulation; however, that is the system. If the minister would like to work with the Greens and with others to come up with a different system where we disallow only specific regulations rather than the whole set, then I am up for that discussion—absolutely. For now, this is the only tool that is in the toolkit.

The final point that I would make relates to the minister saying, 'The previous government envisaged that this fund could be used for other purposes.' The point I would make is that the government has raised the flag up the flagpole of these other purposes, and the parliament is saying, 'We don't want you to do that.' We want you to use this fund for the purpose for which it was originally designed; that is, the protection, enhancement and increase of open space, especially in our urban areas but also in important regional centres as well.

Motion carried.

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