Slings and Arrows: Rot Property

Property Rules

Adelaide was once described as the ‘Athens of the South’ for more than social reasons. In the 1970s its planning culture emerged from the dark ages and increasingly included ‘the people’ in development decision-making. The rot began with the Liberals in the 1990s as councillor representation on council development assessment panels was restricted to a minority. Labor’s long reign (2002–2018) saw many development plans ministerially changed to satisfy development lobby agendas. Applications once non-conforming to a development plan became, under ministerial amendments, ‘conforming’. ‘The people’ were progressively ignored. After 2012, Labor’s planning policy culture became openly contemptuous of local community views. New developments across the city have trashed many streetscapes’ former fabric and scale.

The ‘fast-tracked’ fad

Under the Marshall government, Labor’s planning revolution is reaching its ‘delivery stage’ – the fast-tracking of development approvals under selective privatisation of assessments. There always was pressure to revise approvals procedures for some simpler development applications: external alterations, internal fit-outs, signage, building safety work, conservation work, land division, air-conditioning and installation of solar panels. But the scope for other applications to fit this category is now being tested and the approvals system for planners is to become more complicated. The public understands nothing about recent (2016) new development legislation and its many flaws, some parts of which are still to be enacted. Behind the scenes, Adelaide’s professional planners, mostly council-employed, warn that new procedural categories and steps introduce more red tape and make them responsible if things go wrong, as they surely will. They also identify new potential for conflicts of interest, compromising of once clear-cut procedures and, most Kafkaesque of all, implied public participation processes that don’t deliver participation. Premier Steven Marshall isn’t driving this. It’s coming from Labor’s highly paid planning advisory gurus who survived the election to continue their work – serving a Liberal planning minister with Labor’s recipe for placating an ever-demanding, no-compromises development lobby.

Multiple flaws

A 53-page, 9 October 2018 city council report was revealing, but wasn’t reported. It remains timely. One would have thought that new planning legislation at bill stage would have been well sorted in the Upper House, but it appears not so. Experts are finding major cause for confusion as new procedures are being described, especially under new draft regulations. The government wants to broaden the number and type of ‘experts’ qualified to approve applications, as well as the type of approvals. The new law’s revolutionary draft planning code, to replace 72 development plans across South Australia, needs to be on the table now to test the new procedures. But it wasn’t ready in October, and still isn’t for the city when it’s significantly in demand, so procedural scenarios can’t be fully tested, and there have been no apologies from the bureaucrats. The city part won’t be rolled out in the metro area until mid-2020. Planner analysis suggests the birth of a new, potentially chaotic era of South Australian development assessment. Some outcomes flagged include:

Likelihood of new conflicts of interest. When a developer contracts a new private planner to approve a plan, as the council warns: “…they are being paid to grant consent, which leads to implications of bias” and possible code of conduct breaches.

Conflicts of purpose. The new model is to be based on roles, not skills and experience. There is already major doubt about what the new law intended, and that law has not even been fully enacted. A red flag.

Compromised procedure. State planning bureaucrats have created a new, Frankenstein level of assessment (one of many) described as ‘deemed consent’, which requires an application whose brief assessment time has expired to be automatically approved. This opens new opportunity for applicants, who submit controversial but poorly detailed applications, to stall their cooperation with council planners during the assessment, but get the green light anyway, and thus manipulate the result. Moreover, the new rules that limit a council assessor to one opportunity to ask applicants for further information severely handicap the assessor. The council planners say that answers sometimes prompt multiple, subsequent questions. An allusion to procedural handcuffs comes to mind for future stressed planners.

The ‘sign on the land’ phenomenon. A new concept is to plant a sign on the land proposed for development, explaining all to passersby (a good idea) but people learning about a proposed development won’t be lawfully guaranteed a chance to have comment heard on the application before a council assessment panel. The authors of the 2016 law omitted to ensure that guarantee. Moreover, third party appeal rights have been junked. “Natural justice principles should prevail,” warned a council planner.

Glaring compliance omissions: At the top of the assessment tree is the State Commission Assessment Panel, whose members check the big-dollar controversial applications. But under the new development law, SCAP assessors don’t have to comply with criteria under the new Accredited Professional Scheme. They don’t need to have the same high-level skills and long-term expertise. It’s a major loophole, and one that big developers will delight in. Another legislative red flag.

Labor’s legacy, now enthusiastically driven by the Liberals, is a proposed mix of confusing and poorly considered procedures, built on foundations of theoretical ‘fast-track’ sand, ripe for manipulation – and most disturbingly, corruption. Athens of the South? In 2019 it’s ancient history.

*Ash Whitefly is Executive Director of the Adelaide Whitefly Institute of Diplomatic Studies

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