GREENS MOTION: Disallowance of Planning and Development Fund Regulations

Today Mark moved a third motion to disallow regulations that permit the Open Space Fund to be used to fund the Government's new planning system. He expects it to pass for a third time when he brings it to a vote.


That the general regulations made under the Planning Development and Infrastructure Act 2016 concerning the Planning and Development Fund, made on 24 September 2020 and laid on the table of this Council on 13 October 2020, be disallowed.

This is a motion to disallow regulations. It is the third time that I have introduced this motion and I expect it will be the third time that the motion passes. Following the second disallowance of the regulations that changed the permissible use of the open space fund—that was back on 23 September—the Government finally got the hint and removed the offending regulation from the general regulations.

The No. 3 regulations, which were also tabled yesterday, do not contain the offending provision, which was regulation 25 in the previous iterations, so my feeling is that unless people discover something newly offensive in those regulations, I expect the bulk of those general regulations will go through unchallenged. But the Government has not abandoned its plan to use the open space fund for administration and they have now introduced new regulations dealing with just this issue. These are the regulations that I am now moving to disallow.

The Government has reworded and reintroduced changes to how the open space fund can be used in this separate regulation. It is entitled the Planning Development and Infrastructure (General) (Planning and Development Fund) Variation Regulations 2020. Those regulations were also gazetted on 24 September, being the day after the last disallowance.

Now on my assessment, whilst the new regulations contain less words, the new form of text chosen does seem to cover all the items in the list that were in the regulations that were disallowed. I will not go through all the technical details of how it does that, but the new regulations replace a list of items with a more generic description. My assessment was that it has exactly the same effect: it allows the Government to raid the open space fund and use it for administration.

I took the opportunity to again write to all the stakeholders, all the groups that had opposed the previous regulations, all the groups that encouraged this chamber to disallow those regulations. I wrote to them for two purposes: firstly, did they agree that my assessment was correct, that the new regs were just as offensive as the old; and, secondly, did they still want the Legislative Council to move disallowance.

I received responses back from all those stakeholders. Before I quickly summarise what they said, yesterday all members would have received a large bundle of papers, being the Auditor-General's Report. I do not expect members would have read all that report yet, but I draw their attention to page 376 of the report. That is a section of the report dealing with the Department of Planning, Transport and Infrastructure. What it says, in summary, is that the total income of the agency decreased by $96 million, or 4 per cent.

The Auditor-General's Report goes on to describe why that happened, and then it has a section saying, '…an increase in transfers from other government entities of $21 million. In 2019-20 this included a contribution of $13 million from the Planning and Development Fund for planning reform', and then another $7 million from Renewal SA for the Adelaide Festival Centre precinct.

When you add the $13 million that the Government has pilfered from the open space fund in the last financial year to the $10 million that the media has reported was pilfered from the fund in the previous two financial years, that gives you $23 million that cannot be spent on parks and footpaths and cycleways, open space for the benefit of the community, because that money has been hived off into administration. That is the quantum of money we are talking about that these regulations allow.

Going back to stakeholders, Stephen Smith, who looks after planning issues for the Local Government Association, wrote to me, saying:

Hi Mark,

Our assessment is the same as yours that these new regulations, while amended, still provide for the Planning and Development Fund to be used to fund the Government's eplanning system, and do not address the following concerns raised by the local government sector.

There are five, and I will list them quickly:

1. During a time when parks and recreational areas are needed to support community health and wellbeing, the Government appears to be diverting funds that have been provided by those subdividing their land to fund the operations and functions of a Government agency.

2. While the importance of both the e-planning system and the Planning and Design Code are acknowledged, the funding of these essential elements of the new planning system should come from general revenue and not from the Planning and Development Fund.

3. Any funds that are paid directly to councils through the open space contribution scheme under the Planning, Development and Infrastructure Act must only be applied by the council for the purpose of acquiring or developing land as open space.

4. This variation may increase the impost on councils by reducing the funds available to establish new parks and recreation areas.

5. Councils are already making contributions for the maintenance of the e-planning system through an annual fee, and the State Government will be receiving a greater proportion of planning assessment fees under the new fee regime. The ability to use open space funding for the operation of the state's new planning system is 'triple dipping'—

not double dipping, but triple dipping—

and puts greater pressure on council ratepayers to fund a new system that provides less influence to local communities in planning decisions.

Mr Smith then goes on to point out that this item is on the agenda of the annual general meeting of the Local Government Association in coming weeks. I think all members should expect correspondence from the LGA, urging them to disallow again these regulations.

I have received correspondence from the Urban Development Institute. This is effectively the developers' lobby. These are the people who build the multistorey dwellings and who are involved in subdivisions and property development. Pat Gerace from that organisation wrote to me:

Hi Mark

Thanks for reaching out.

Yes we do have an issue with the use of contributions made to this fund not being spent on open space and public realm improvements, and instead on the administration of the system.

We made our thoughts clear in a recent article in the Advertiser and this position has not changed.

In previous disallowance motions, I have read extracts from that article. So, local government does not like it and the property development industry does not like it. If we go through the National Trust, Darren Peacock, the CEO, says, 'Thanks, Mark. Certainly agree with the disallowance.' Again, he sets out reasons that I have set out before. I contacted Professor Warren Jones from the Protect Our Heritage Alliance, who wrote, 'Thank you, Mark, for pursuing this. Please pursue another disallowance.' He makes some other comments, as well.

Christel Mex from the Community Alliance says, 'Go for it!'—I think that is an endorsement of disallowance. Melissa Ballantyne from the Environmental Defenders Office says she supports disallowance, and Craig Wilkins, the CEO of the Conservation Council, says, 'I agree with others' contributions. Keep going!'

Whilst technically this disallowance motion is a bit different from the others, the substance of the motion is exactly the same. When it comes to a vote on the next Wednesday of sitting, I expect the outcome to be exactly the same. The Government should not be raiding the open space fund for administration.

Now we know that, over the last three years, it is at least $23 million that can no longer be spent on public infrastructure, public works and parks and things that make our communities good places to live. That is an outrage. If the Government has messed up its budget by not allocating enough for administration, they need to provide additional general revenue allocations and not raid this important fund.