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Building and Construction (Regulatory Reform Amendments) Bill 2020


Rosalie Woodruff MP

Rosalie Woodruff MP  -  Wednesday, 3 June 2020

Tags: Legislation, Infrastructure, Planning

Dr WOODRUFF (Franklin) - Madam Speaker, I rise to give the Greens' comments to the bill and in so doing I recognise the extensive conversations we had with the Planning staff yesterday who were responsible for taking carriage of this bill; it was a very fruitful conversation. It was a long and helpful conversation and I feel I have the measure of the contents of this bill, albeit at a very late stage, but we understand that legislation coming before us in this COVID parliament constrained period is to be of a certain type.

I am grateful for that consultation but I am aware that from the conversations I have been able to have in a short time period with some other stakeholders in the sector that they do not feel they had the sort of consultation they would have liked on the changes in this bill. It is my understanding that LGAT had nothing like strong consultation on this bill. I understand from the information I was provided that the changes to these various acts that are seeking to be changed in the bill have been a matter of discussion for about 12 to 18 months within the department. Whilst it seems likely probable that there have been conversations with different local government councils or LGAT itself across that period - and I understand there has been conversations with TasNetworks and TasWater - it is not clear to me and I would like to have some more information from the minister what consultation was done for this bill in particular.

Minister, you mentioned that 22 submissions were made and 41 stakeholders were spoken to. When you respond can you give us some more information about what those submissions were to? Was it to this actual draft bill that we have before us? Frankly, I find that implausible, given that it has possibly only been written, maybe the ink is barely dry on the printer, for members of parliament to have a look at, so it is fairly implausible that 22 submissions could have been made and 41 stakeholders spoken to on this draft bill. What exactly are the consultations that the minister referred to and who was spoken to about these particular changes that are before us? As a legislator and as stakeholders who were concerned with planning issues will understand, the devil is in the detail. You can talk about things and generalities and whilst you might have general agreement, it all comes down to us in black and white at the end of the day.

For council planning processes and an assurance of fair dealings for both the proponent and for the council when they acting as the planning authority who take the responsibility of making decisions on behalf of their local community and indeed in the best interests of the state, it is very important that we get the details right to make sure the balance is fairly struck between the planning authority and their responsibilities, between the rights of the developer for a fair and reasonable process, but most importantly that we are able as a state to fulfil the agreement and the legislative commitment to uphold the principles enshrined in schedule 1 of the Land Use Planning and Approvals Act, which are the principles surrounding resource management and planning for the state. It is those principles that are the basis of all planning decisions. They ought to be the foundational document that all Planning staff use to make an assessment through those statements of principle and statements of agreement. Everything else falls from that because that is what we are trying to achieve.

At the end of the day, if we do not get the details right we will wittingly or unwittingly erode over time the very principles we have legislated in this state that have kept us having a beautiful state where people have been able to have a say over what developments happen in their local area and where communities have been able to protect parts of the natural environment. Impoverished as our laws are, they nonetheless have given us the ability to hold back the tide of some of the most outrageous, egregious, massive, destructive developments that have happened across countries around the world and in other parts of Australia. Long may that last, Madam Speaker.

As a member of the Greens I speak for all the communities that are deeply concerned about the direction this Government is travelling, which it set up in 2014 with some of the commitments that were made to the Property Council and other big developers. We are deeply concerned to make sure that in the frantic rush to fulfil some of the commitments that have been made, they do not use the economic recovery from this devastation of the coronavirus pandemic as a veil for them to usher through the sorts of changes they have always sought to make to the planning scheme which would impoverish this state on so many levels.

What we want to do is keep strong and look to the future and understand what good planning has to be. Good planning has to put the promotion of sustainable development for the natural and physical resources and the maintenance of ecological processes and genetic diversity at the top of the tree for all of our planning decisions. That is what our schedule 1 of LUPAA says. We have to have a fair, orderly and sustainable use and development of our land, air and water. The word 'fair' is written in there and also the other principle is that there must be public involvement in resource management and planning decisions.

All these things regularly come under attack by this Government and it is not unreasonable for the Greens to look with scrutiny at every single bit of planning legislation that comes before this parliament. I would like the minister to outline the consultation process for this bill because whilst

many of the amendments in this bill are reasonable, I would like to understand on what basis they are considered to be essential for the COVID-19 economic recovery. I would also like to understand why sunset clauses were not considered for some of them. If they are so necessary for a COVID-19 recovery, then it could be entirely reasonable to put sunset clauses on a number of the clauses in the bill so we could have a reset and a reconsider at a period of three months, six months or 12 months to make sure that these changes, which are ostensibly being rushed through because of the coronavirus pandemic and our need to recover from it, have not gone too far and caused unintended consequences.

What we have been through two iterations of changes to the Planning Scheme that have been overseen first by the Labor Party, and then by the Liberal Party with the Tasmanian Planning Scheme, which is still at the interim stage. The Tasmania Planning Scheme will be coming into force in different local government areas in the near future.

These have dramatically shifted the way that planners and local councils assess development applications. There is such a fundamental risk aversion, understandably, of planning staff. Because of the way approvals must be assessed against performance measures, there is no capacity for qualified, expert planning staff to make sensible decisions on a case-by-case basis, based on principles and which look at each instance on its own merits.

What the Government has valiantly striven to do, and has succeeded to do in some measure, is to try to make every single assessment in the state be a cookie-cutter of every other one. That does force a blunt instrument onto every development application. It removes detail; it removes local situation. It removes the specifics of the environment. Everything becomes normalised. Ultimately, as we have seen in other parts of Australia and the world, bland. Blander, greyer and harder to maintain local character, harder to maintain local biodiversity and most of all, harder - impossible - to ultimately maintain a space for the community to have a real say about what happens in their local area.

Some of these amendments go a little way towards increasing the inexorable move which removes the ability of local councils to make specific planning decisions that are relevant to their area and relevant to the development application that they see in front of them.

Speeding up the process - sounds good. We agree with many of the clauses in here, and that processes need to have a time frame. That is entirely reasonable, but reducing the assessment period from 14 days to seven days - five business days and seven effective days - will put more pressure on staff to make an assessment of what could be large volumes of technical information in a very short amount of time. That five-day process is a problem when there is substantially complex material that staff are working on.

Although in theory it sounds fine, with an assessment to be made in that time period, what are we trying to achieve here? We are trying to get a good planning outcome. Is that not what we are trying to achieve? Should not that be what we are trying to achieve? If we are not trying to achieve that, then what are we asking for? We have to be careful what we ask for.

If you force time frames to be shorter and shorter, ultimately councils will have to respond by employing more staff. That is the only response that they can have. Employing more staff directly increases the cost to developers. It has to, because they have to pass on their costs and they will.

Whilst it sounds as though it might be possible to achieve a faster and cheaper system, you are not going to produce a cheaper system by pushing time frames down and down and down. You will just force a more cookie-cutter approach, a more risk-averse approach that will, understandably, often produce an outcome where planning staff will say, 'We will just ask for everything. We will ask for every possible report we could possibly need to make sure that we do not find ourselves short, and we do not get caught out not being able to tick all the boxes that we have to tick'.

The councils are required to tick boxes. If they are required to jump through performance measure hoops when making assessments, then that forces a particular approach from them to cover themselves. Ultimately, who gets rich out of this? It is the consultants who do the independent consultant reports. It is also lawyers.

Ms Ogilvie - Nothing wrong with lawyers.

Dr WOODRUFF - We are not here to create a planning system that makes lawyers rich, that is my point.

Ms Ogilvie - I do not think they are rich at the moment; I think they have been suffering in the pandemic.

Dr WOODRUFF - On the matter of lawyers, I was solicited by a lawyer who heard that this bill was on, and he made a point to me. He said, 'This is a bit of a sideways comment'. He said that he, in his firm and in conversations that he has with other lawyers, has a wave of legal claims against builders and building surveyors. That has occurred because of regulatory failure in the planning system. This person says subdivisions are approved, for example, and built at such a pace that work is often shoddy and building surveyors are failing to keep up with standards. This is great for lawyers but is awful for home builders and buyers. It is terrible for the community who also have to suffer with poor planning decisions. This bill, in some areas, speeds up processes, but in so doing risks making more problems in that area, not less.

I wonder, minister, whether you would be able to provide us some information about how many complaints have been made to the Consumer, Building and Occupational Services Area. Is it true that a large number of complaints have been made? Has there been a change over the last couple of years? It would be interesting to know in relation to this bill whether there are more complaints to the CBO than there has been.

 

Just finishing up my comments about the consultation process, my understanding is that the Local Government Association met with Planning staff and had a conversation about this but certainly from what I have been able to glean, it was not extensive, detailed or specific. It seems that councils individually, from the ones that I have been able to speak to, feel they have had time to develop an informed response to this bill. Given it makes substantial changes to councils' operations I find that inexcusable on the Government's part. If there has been a 12 to 18 month process for bringing these changes on councils should have been able to formally respond to this process and I am sure would like to be able to do so.

Minister, you or maybe your staff mentioned this was the first tranche of a number of bills that were coming through to make amendments to our planning laws. I am interested to hear what the other tranches are, what areas of planning they relate to, and what time frame you have for those other tranches if you are aware of that at the moment.

I want to move to some specific comments about clauses in the bill. It may be that we need to move into Committee for me to have a conversation about these, but I will see if we can get through them before then. Depending on your answers we may not need to do that.

Clause 4 provides that the councils must let TasNetworks know that they have to be ready to identify a person and requires TasNetworks to be aware that they will have to engage with the proponent. This sounds like a very sensible change because rather than processes happening sequentially where all of the development application must be completed before TasNetworks will start to look at electricity connections, having those things happening concurrently so that a person does not waste their money and their time is a very good amendment and we support it.

In relation to councils invoicing proponents when they put a development application in, given at the moment that the assessment process does not start until an invoice has been raised, this amendment requires that that process will commence within a certain time. It gives councils four days to raise an invoice. If they do not do so, on the fifth business day the process is deemed to have commenced and the clock will start for the 42-day permit period.

There is a number of comments I want to make about this. Regarding the question of whether it is deemed to be a valid application, the concern that has been raised with me is that if there is no invoice or demand for payment of the application fee made within four business days after the lodgement of the valid application, there may be little incentive for some developers or applicants to pay the fee because the planning authority on the fifth day will be required to process the application or the application will be in train. If the council operates in good faith and makes an assessment of the application within four days but for some reason there is a problem in the system and an invoice is not raised until the fifth or sixth day, then as I understand the way this is written, they have not raised the invoice and therefore they are into the permit application starting on the fifth day and there is no requirement for that invoice to be paid before council is required to complete its service. In fact, it may never be paid.

As I understand it, although a developer may choose not to pay the application fee, the council is still required to finish its service, even if after 21 days the developer has not paid the fee. Council could be more than halfway through the development process, the applicant is not paying the fee, and they have no way to force that to happen. I would appreciate your view on whether that is the case or not. We could suggest a simple amendment to that in clause 6, proposed new section 51A(2), which at the moment says -

(c) the planning authority has, before, or within 4 business days after, the day on which a person lodges, or attempts to lodge, with the planning authority, the application for the permit, demanded the payment of a fee; and

(d) the fee has not been paid within the 21-day period after the day on which the demand is made. [OK]

We foreshadow, depending on what the minister says, the possibility of changing that to 'unless the planning authority has demanded the payment of the fee'. It just removes all the four-day business. It does not stop it all going ahead on the fifth day if the council does not act but it relates to the fact that the planning authority can demand the payment of a fee without this four-day business getting in the way. I believe it would still achieve the result that is trying to be achieved here but it would not leave councils with the possibility of having applicants not paying fees. We can discuss that in Committee if we need to.

In relation to clause 7, there is the difficulty with a reduction of this time frame to five business days. For some councils, like the Hobart City Council, who would find it, in some situations, a risk that they would not be able to comply with the scheme and would be compromised, particularly when they have to coordinate between different units in council to make sure that the information that has been provided is adequate and has been done appropriately.

In a large size council, like the Hobart City Council - and it may relate to other councils too - there is coordination between different areas and five business days sounds reasonable. However, for bigger projects, again this is a scale issue, there is the likelihood that it would not be possible to do due diligence on that work within five business days.

Before I go, I will note my support for the changes that were made from the draft we saw yesterday.