Legislative Council Wednesday 24 June, 2020
Ms FORREST (Murchison) - Mr President, I understand the bill before us today is part of a series of further reforms to improve the performance of the state's planning approvals process, although we are assured that it is not broken.
I note that this matter has been considered by the Government for some time. Mention was made of a need for reform in a range of areas in early March in the Premier's State of the State address.
I much prefer to see an integrated and holistic approach to such reform. I am always concerned when we receive and are expected to deal with piecemeal reform, especially in this rather fraught area of planning.
Before dealing specifically with the detail of the bill, I will make some comments about reform in this area more broadly, and the approach being taken in light of the COVID-19 pandemic, and the response by government - both state and federal - related to the areas this bill goes to.
I note the honourable Leader's statement that this bill is a key part of the Government's response in recovery to the COVID-19 disease emergency, and that it will help manage and mitigate the significant impact this pandemic has, and is having, on businesses, our community and our economy. That is a pretty bold claim. I am always wary of cries of 'Cut red, blue, green, and any other colour tape there may be.'.
Generally, our regulatory framework is there to ensure a proper process is maintained, and that people, the environment and structures are kept safe.
We need to be very aware that this constant claim of too much regulation, if, for example, this cry demands a relaxation of important and necessary safety measures.
This bill predominantly seeks to insert, or tweak, time frames for steps in the process, which arguably, if we are to be honest, makes sense and that we are not removing any red tape here at all. In fact, we are adding to and tightening up the tape for some councils, TasNetworks and TasWater. Let us all stop the moving red tape rhetoric here, because that is nonsense in this case.
I agree the economic recovery is a huge, very challenging and daunting task. The federal and state governments have resorted to giving the construction industry preferential treatment to help the economy recover. These jobs are important, but the industry has been, and will continue to be, male-dominated. Programs aimed at encouraging women into the trades have limited progress to date. Skills and trade training have been under-resourced, and undervalued by governments. Investment infrastructure needs to create social value, not just capital value.
Building social housing, improving our educational and health care facilities, improving road safety are also important investments.
I do not dispute that one of the key drivers of our economy prior to the COVID-19 pandemic was the building and construction industry, which was operating at record levels across the state. However, our blinkered approach risks giving us a distorted view of the real world. Health and education are downplayed as if they are not fair dinkum industries, like the building industry because it builds things we can all see.
When we consider employment numbers, the latest 2019 data on the federal parliament's website notes the percentage of employees from - people employed in the health care and social assistance sector, 13.3 per cent; retail trade, 10.1 per cent; construction, 9 per cent; professional scientific and technical services, 8.7 per cent; education and training, 8.1 per cent; and accommodation and food services, 7.1 per cent. That is the top; obviously, there are many others below that.
When we break this down by gender, in the health and social assistance sector, 22.2 per cent are women, 5.4 per cent men; retail trade, 11.9 per cent women, 8.4 per cent men; construction, 2.4 per cent women, 15.3 per cent men; professional scientific and technical services, 7.9 per cent women, 9.2 per cent men; education and training, 12.4 per cent women, 4.3 per cent men; and accommodation and food services, 8.1 per cent women, 6.2 per cent men.
I illustrate this as a point about the value of the investment in this sector, but not to the detriment of others.
Health care, social assistance, employment and education training - including child care and early education - are wrongly held in lower regard and are not seen as economic drivers in our community. It is true many of those employed in these areas are paid less, on average, than many of the male-dominated sectors that add to this disparity.
As for the arts industry, if it were not for David Walsh, MONA and the festivals, many of which he promotes, arts would still be regulated to a pastime for those who do not like the footy and not a fair dinkum industry that contributes to the economy and our social wellbeing.
All of us would have consumed arts during this period of the COVID-19 shutdown without paying for it, because we all appreciate the importance and value of the arts to our health and wellbeing. It is time it was better recognised as an essential component to our overall economic recovery.
I certainly acknowledge the Tasmanian building construction industry employs over 20 000 people. The member for Launceston referred to the multiplier effect impact on associated employees, such as hardware stores, whitegoods retailers and even local coffee shops, which depend on a robust construction industry. All those little take way shops with all the tradies pulled up at a quarter to seven in the morning, before they start work at seven. They rely on them and particularly during the COVID-19 shutdown.
The claim by the Leader, that the Premier has made it clear Tasmania will build our way out of the coronavirus and the economic crisis it has caused, flagging the biggest infrastructure spend in the state's history completely ignores these very important matters I have just raised.
These comments also ignore past and present governments' history of old claims in the very same area, being overly optimistic and where the reality of the spend has not matched the promises for years.
The economic recovery plan needs to take a broad long-term approach that is gender sensitive. To date we have seen anything but a sensitive and equitable response.
I hope all members in the Government take note of my comments because we should not be focusing all our economic recovery entirely on a male-dominated employment area. I fear this trajectory takes us back to the past, reinforces old views of what industries are important, reopens gender inequality gaps that have started to close and risks further disadvantaging vulnerable Tasmanians and is particularly disadvantaging to women.
In a recent article in The Conversation, Elizabeth Mossop, Dean of Design, Architecture and Building at the University of Technology Sydney, makes a very important observation -
Industry spending is great for economic stimulus, but it has to be the right kind of infrastructure.
These are some of our largest public investments, so we want this public money to work a lot harder to create multiple rather than just singular benefits. As well as quickly providing jobs and the economic benefits of solving the problems of transport or energy supply, stimulus projects need to deliver broad, long-term community value, reduce inequality and help counter climate change.
We must be sure such investment is affordable and social history is part of the stimulus and not lost to this opportunity.
She goes on -
The focus of fast-tracked infrastructure spending in the pandemic recovery should be many smaller-scale projects that provide these broader benefits. Hence these projects will provide greater value than the transport mega-projects that had already been proposed for economic stimulus.
Infrastructure projects are such significant economic engines they can incorporate community improvement without compromising their other outcomes.
The ways in which projects get planned and implemented hold the key. For example, projects should involve local businesses, give hiring preference to long-term unemployed and use suitable materials.
Infrastructure planning can integrate multiple functions. For example, water-management infrastructure (for drainage or flooding) can be designed to include open space, tree cover, recreation and cycleways. Streets can be designed as beautiful public spaces that include pedestrians, cyclists and cars, as well, as tree canopy and water storage.
Mr President, we must avoid missing the messages we have learnt over this period.
She goes on to note -
The Morrison government is promoting the myth of fast-tracking through the cutting of red tape and green tape. This is not the key to faster project delivery. We have a decent system of development regulation, which attempts to balance the business interests of developers against the public good. The current crisis has illustrated very clearly the importance of the public values of liveability, preserving natural resources and easy access to open spaces and local centres.
Ave we not seen that and its importance for people's health and wellbeing during this period? She goes on -
We must hold all our infrastructure projects to higher standards. Robust planning and environmental regulation are crucial to maximise the public benefit of projects. Effective community engagement ultimately leads to smoother implementation and better outcomes. Projects that work within planning regulations move more swiftly into implementation than projects that try to bypass them.
Martin Loosemore, Professor of Construction Management, University of Technology Sydney, acknowledged the importance of the construction sector before expressing similar concerns, as published in The Conversation on 15 June. He added - (TBC time 12.29)
We should not ignore the risks involved with rush to get the economy going again. We will pay for mistakes made now in the form of debt created by cost blowouts and unscrupulous developers.
We will have to live with poor-quality, ill-conceived and environmentally damaging developments for decades. Of course, construction and infrastructure programs provide us with a powerful stimulus tool. It's why federal and state governments are looking to this sector to drive the recovery.
The social impact of investing in more construction infrastructure could certainly be significant. Construction is one of the country's largest employers. The sector employs around 1.2 million people directly, and indirectly much more. It's one of the largest employees of apprentices, youth and disadvantaged groups such as Indigenous people and refugees.
Investment in construction flows through to the broader economy. The Australian Bureau of Statistics estimates for every A$1 spent on construction output generates $2.9 million in output across the economy as a whole.
Every job created in construction leads to another three in the wider economy.
I am not saying it is not a worthwhile place to invest. I want my comments to be taken in context, which is why I have gone to that detail.
He went on to say -
Knowing this, state and local governments are relaxing hard-won controls to fast-track projects. Planning ministers are being given more power to override some of the statutory time frames that govern normal planning and approval processes.
This approach creates many risks, as well as opportunities. If we do not control these risks in our rush to stimulate the economy, we are likely to regret this in the future.
I am not saying this is what this bill does. This is an overall statement that will cover all those other bills that come following this. We need to be careful.
He went on to say –
Relaxing controls also opens the doors to unscrupulous developers to exploit the crisis for their own personal gain.
Something I will speak about a little bit later -
Transparency International's recent submission to the Senate inquiry argues that powerful groups have too often prevailed over public interest. It warns:
Businesses in highly regulated industries such as transport, mining, energy and property construction all actively seek to influence politicians, although the channels of influence vary by industry.
We do see that. He says -
In some countries, we are already seeing developers exploiting the COVID-19 crisis to argue for relaxation, or even removal of, regulations put in place to ensure projects contribute positively to the communities in which they are built.
A former senior adviser to US President Donald Trump has argued that his administration should trigger an emergency override of America's environmental protection laws to establish 'Australian-style permitting'.
Strange comment, Mr President.
He goes on -
If fast-tracked projects are undertaken without appropriate controls, purely to boost the economy rather than meet the real community need, then we will be paying for this crisis far longer than we expect.
Professor Loosemoore goes on to note the comments made by Elizabeth Mossop, as I have noted above. He also commented on the importance of procuring locally, to support investment and infrastructure. This is something the Government must be acutely aware of.
I asked the honourable Leader what measures will be put in place to ensure there is a focus on local procurement - not specifically related to this bill; this is more with the reforms that are coming. Is that part of the Government's intention?
Professor Loosemoore had some suggestions, for some guidance perhaps. He stated -
We should learn much from the principles of urban acupuncture which would advocate a community-based approach to stimulus. It would also warn against rewarding contracts to major multinationals. These corporations suck money out of needy communities into the pockets of shareholders with no links to the communities we need to help.
Research shows procuring from local businesses provides a 77 -100 per cent economic advantage and an 80 -100 per cent increase in jobs compared to procuring from multinationals.
If stimulus programs follow traditional approaches to infrastructure procurement in Australia, then we will miss an unprecedented opportunity to tackle growing inequality. Even before this crisis, many younger and poor members of our society were already being left behind.
Mr President, some of those comments were not germane to this bill entirely, but I wanted to make those points because as we get more of this legislation coming down to us, we need to keep those principles in mind.
That said, we have a bill before us to consider, so I will turn my attention directly to that.
The Leader informs us that this bill is the start of regulatory refinement that will assist a construction-led recovery, and that we need to have a permit and approval process that is fit for purpose. In the other breath, we hear them say there is nothing wrong with it, and that it is not actually broken.
I accept some areas do need refinement. We need to ensure there is confidence of investment in building construction infrastructure, without unnecessary delays in the assessment and approvals process. We need to remove burdens on small building businesses around new housing projects, and ensure that applications no longer take months to pass through an antiquated or uncertain assessment and approvals process.
Where does this leave the statewide planning scheme? It was something that came up when I was reading through this bill. What is happening with that? Maybe the honourable Leader could tell us what is happening there.
This has been worked on for so long - almost as long as I have been in this place and now we are just going to do this piecemeal approach to it.
Mrs Hiscutt - What in particular did you want?
Ms FORREST - Where is it at?
Mrs Hiscutt - Right, where it is at.
Ms FORREST - Yes, and how does this bill intersect with that?
The Leader assures us also that this bill does not remove either a single permit or layer of regulatory scrutiny from the process. One could reasonably ask: Why have these processes not been dealt with and made more efficient pre-COVID-19? Did it take COVID to focus the attention on it?
The Leader went through the list of different aspects that the bill seeks to achieve, so I will not reiterate those.
The third point the Leader raised is about the electricity, water and sewerage utilities allowing permanent decisions to occur concurrently. I have called for this form of streamlined strategic approach for years, and not just to include electricity, water and sewerage - what about IT and communications, including NBN, and another energy source such as gas, where available, and transport planning, for example? Rather than have to dig up the road or footpath or the surrounding area of a building, just do it once, rather than do it three, four, five times, as we see. Why would you not require all services to be identified up-front, and actually work together for the benefit of everyone, especially the consumer or the customer?
As a whole, the amendment to enable minor amendments to planning permits, to enable planning authorities to process a minor amendment in a lesser time than it took to consider the original planning permit, does make sense. I know there is no time frame here, and it is interesting that it was never put in in the first place.
By interjection, I asked the member for Launceston about her experience in dealing with minor amendments when she was a member of local government, but I am interested in cases where minor amendments may create an unwelcome or unforeseen impost on a neighbour, or a safety risk. We are told that will not happen, and it will not be approved, but we see it happen and I hear about it.
How is the minor amendment to be assessed? I am sure this does not change it, but it is relevant to this area. It is a matter that LGAT raised, too, about the clarity around the application of that minor amendment.
The member for Launceston referred to the letter from Dr Katrena Stephenson from LGAT. I will refer to some points she has made, but I will not repeat the particular section she referred to with regard to the minor amendment. To me it makes sense that a time frame is put in there. I think it can be used as a way of avoiding dealing with the neighbours again if you have difficult neighbours, because if you go back through the whole permit, I imagine that has to be readvertised.
The Leader also informs us that across the state requests for further information are received from between a quarter and third of all applications. A reduction in the time frame for 14 days to five business days, if this can be reasonably be achieved, begs the question of why it was even 14 days in the first place.
I do not believe it probably can be achieved in five business days in all circumstances. On further discussion, it seems this may be the reaction of a number of councils that I represent. When I talk to them, most of them progress these requests for information within a timely framework. I know from my consultation that the really complicated ones with a lot of detail are very difficult for small councils, because you have one person doing the lot, including the invoicing. As we heard at the briefing, some of the bigger councils may have to send the information to a number of departments within council to get the information.
I will speak further about this in the Committee stage, but I think it has been ill-considered to cut it right back to five days in this way.
I did my own consultation, before I got the letter from LGAT, and this letter confirmed the concerns that I held, particularly around dealing with more complex matters.
I am concerned that this change has not been adequately consulted on with LGAT.
I am concerned it will put planners in small councils under undue pressure, which could result in adverse outcomes. One outcome could be a hasty decision that is not fully informed, or the planning officer deciding the only way to assess the additional information fully, especially if it is complex and voluminous, is to seek further information further delaying the process. You have the perverse outcome that they have not had time to assess it properly so will ask for something more - we are not sure we have it all here - and the clock will start again.
I appreciate the 14 days does not make the maths stack up. If councils use the full 21 days for the first part of the process, then 14 here in this process and another 14 for public exhibition, but I am informed the majority of Tasmanian councils do better than that. At my request, LGAT sent through some figures of the median times for dealing with applications and there are couple of outliers there, but overall they are meeting their obligations within the statutory time frame. It is often quite a bit shorter than some of the other jurisdictions around the country. This bit does not appear to be particularly broken. I know 42 days if you use all the time does not add up, but when you look at the figures, at the end of it most of the councils are doing it well within that time. It is the complex cases where you want them to have the available time to assess them properly, to avoid some the problems I spoke about at the outset.
I know the bodies consulted with regard to this bill; however, the key stakeholder here, LGAT, stated in an email I mentioned, that it has had limited time to canvass its membership to inform discussion on the bill. This is troubling because the majority of these amendments will have a direct impact on local government. My own consultation provided details of the consultation with LGAT. This is what I was told about the consultation with LGAT, and it is really significant to understand. This is directly from LGAT when I rang them. They said, 'Yes, there was broad discussion around the reform in the area that has been going on for some time.'.
With regard to the provisions of this bill, I am informed this is the information provided. A confidential copy of a general approach and measures was provided to LGAT in early March, around the time of the State of the State address, I assume? This was not draft legislation, just broad principles. They were ideas and concepts for reform and areas under review for reform.
LGAT had less than a week's notice of the current approach and legislation prior to the tabling of the bill in the other place. LGAT received a copy of the draft bill, the one we are dealing with, on Friday, 29 May but was informed it was confidential and it was not to discuss it with its members at that stage. That was Friday, 29 May - not to discuss with their members.
LGAT received a bill it could distribute to their members on Tuesday, 2 June. The bill was debated in the House of Assembly the following day on Wednesday, 3 June. How could it consult with its members overnight? A number of the members I contacted, who I represent, did not know this was happening. When I spoke to the advisers about this, they said, 'Maybe that could be the case.'. They might not know it was happening and certainly LGAT suggested that, too.
This is not good consultation with a key stakeholder, particularly when most of the burden of this bill falls right there on local government. In a personal briefing on this bill - and I appreciate the Leader providing the assistance to facilitate this - I was informed there may be councils who were not even aware of the legislation at that time. That was last week, and correct when I followed up with my council.
In the email we received from LGAT, it provided the following feedback in relation to the amendment to Part 3, Additional information, under section 54 of LUPAA. I will read part of that into Hansard -
This amendment is of significant concern for the Local Government sector and we believe it is not necessary. Under the current arrangement a council has 14 days to assess if information supplied by an applicant in response to a request for further information is adequate. If the information is deemed to meet the request the statutory clock starts on the day on which the information was submitted, not once the council has determined it meets the request. This provides an inbuilt incentive for councils to assess information expediently, as in effect if they do not do so in a timely fashion then they risk unnecessarily utilizing the precious statutory clock time.
The proposed 5 business day timeframe may work for very simple applications but this amendment has not considered the difficulty of assessing further information supplied on major and complex applications.
In such instances, the further information may include complex plans, and extensive and detailed specialist consultant and technical reports, sometimes running into hundreds of pages.
Don't forget, Mr President, this one is being dealt with by one person in a small council -
This information, typically, requires internal and at times, external referral and assessment prior to a decision being made on their adequacy, all within five business days.
Consider a situation when the further information includes a collection of documents, such as a traffic engineering study, coastal hazard assessment from a specialist engineer, architectural design, detailed plans, land stability, and a flora and fauna report.
This is possible, and not uncommon, in large and complex proposals in sensitive coastal or hillside locations, for example.
Much of Tasmania is coastal; the rest of it, hills -
Is it realistic to expect a proper assessment of these reports to determine they are satisfactory within such a short period and does that provide justice for all parties involved, as well as ensuring the council delivers on its responsibilities? This is a particularly difficult request for small councils which have staffing challenges, and is not the case of hiring another planner, as there is a national shortage of land planners.
The difference for the developer, between 14 days and five business days, is minimal, as I mentioned earlier. If the information is satisfactory, there is no loss to statutory time-
However, for a small council, the current timeframe of 14 days assures an efficient assessment can be undertaken without being rushed, and subsequently missing matters that require further consideration.
Mr President, I read the bill, and the second reading speech before I received this email, and these questions were the ones I was already asking myself. I represent one of smallest councils on King Island. I am very aware we must not create unnecessary burdens in our attempts to simplify matters that may be quite achievable for a large council.
The same goes for the valid permit test. While it makes sense, it is achievable and reasonable, especially for a small council, and what unintended impacts could there be with this? I do not think this is such an issue and probably, makes more sense. It is the additional information one that is the problem.
The reforms to TasNetworks and TasWater Service standards - if we could achieve a truly coordinated and integrated approach, that would be welcome. I spoke to people at TasNetworks who say this is what they do already.
The Leader suggested this is probably one of the most important provisions in the bill and regulating time frames for the entire design approval and post-approval process will mean clear and measurable standards can be established for the industry and the regulators alike.
I agree if TasNetworks and potentially other services could be incorporated into the integrated planning permit process, that would allow them to engage with proponents at a much earlier time in the approval framework and would be most welcome.
I personally experienced the challenge these reforms are designed to address and also assisting many constituents over the years, so hopefully, these measures will actually work as intended.
With regard to these reforms, the email from Doctor Stephenson states -
While it is useful that the electricity entity is to be required to identify its requirements and to establish a program for works, the approach set out in the Bill is disjointed. The Bill imposes an obligation on a planning authority to refer an application and to provide the applicant with advice received in reply during the planning permit assessment period on matters that are not within the jurisdiction of the planning scheme, in essence councils are a postal service. While it may be convenient for the Government to introduce this parallel process into the permanent assessment, it adds to the administrative requirements planning applications, with additional referral and forwarding of any response to the applicant. At the moment, without the regulations that clarify exempt application, it is unknown how much work will this entail.
So again, the small councils are concerned about the extra impost on them.
As so often the case, we do not have the draft regulations to see how this is actually going to work or what the time frames are going to be. I understand TasNetworks and TasWater are going to be engaged in coming up with, hopefully, an appropriate process and time frame. See what they come up with, perhaps.
I would like the Leader to address in her reply some of these matters I have raised. I certainly appreciate that this would expedite matters, many of these measures in situations in which additional electrical loads are proposed for the network and can take a long time to provide the necessary infrastructure upgrades, having had very direct and personal experience of this and at great personal cost.
I understand from the briefing I had on the bill this week that TasNetworks has been consulted on this matter and will be able to propose workable service levels and time frames that will be the focus of these regulations. I note that at the briefing yesterday, the honourable Leader's advisers committed to providing draft copies of the regulations prior to them being made. I would like the honourable Leader to reiterate that commitment on the record. It is not done all the time and it would be helpful to have them if there is to be a bit of toing and froing.
If TasNetworks and TasWater come up with what is deemed by the Government to be unacceptable and the Government says they have failed and we are going to do it another way, it might be helpful for members to be aware of that before they are gazetted, so any concerns can be raised promptly. I understand the regulations were to be completed by August so the bill could be enacted by then, subject to the passage through this House. I appreciate there does need to be some time for councils, TasNetworks and TasWater to ensure they have done what is needed to accommodate these changes, especially councils, some of whom I am informed were not even aware of this.
I ask the Leader to address the concerns raised by LGAT and ask her to provide clear assurances and details regarding the matters of local procurement and avoiding the growth inequity, which I mentioned at the beginning of my speech, as an overall approach to this reform. Is the Government also considering the local procurement process in all its reform measures to look at encouraging that?
The cry of red tape reduction is often not backed up with any evidence of unnecessary barriers to appropriate processes and measures to protect people and places. I support this bill in principle. I remain somewhat concerned about the time frame reduction of assessment of additional information under section 54 of LUPAA and believe this requires meaningful consultation before it is dealt with. I suggest it is not dealt with in this bill, but deferred to another bill we are going to get not too far down the track, as I understand it. There are a number of bills coming our way and it would be sensible to send this bill back to councils to have some meaningful consultation about a reasonable time frame. It may be that it is less than 14 days, but I do not believe it will be five. I will listen to the debate but, in view of the lack of consultation, particularly on that aspect, I will be encouraging members to vote against clause 7 of the bill; however, I support the principle of the other aspects of the bill.