Prior to Christmas the ACT Assembly dealt with special legislation to fast-track the relocation of the Hume data centre proposal - an issue GCC has largely remained out of.

At the time, GCC raised concerns that the hastily prepared legislation have unintended long-term impacts for ACT, and urged the opposition and the Greens to consider it carefully - in particular clause 9. Our email is below.

 

The Assembly's Hansard service is notoriously slow, but we now bring readers the debate (below) at which GCC's late night email to MLAs was debated and resulted in the legislation being amended to remove the clause.

 

Sometimes GCC people are accused of being Gungahlin-focussed to the detriment of the rest of the ACT community. We beg to differ, and regularly seek (and gain) improvements to ACT-wide issues, even at times when they have little or no impact on Gungahlin.  

 

 

From Alan Kerlin - GCC President <president@gcc.asn.au>

Date Thu, Dec 11, 2008 at 2:36 AM

 

Hello MLAs

I understand you are to debate legislation to enable the relocation of the Date Centre to Hume, and that this legislation includes a number of ancillary provisions including:

9 Use of land - To remove any doubt, a data centre and gas powered co-generation facility is a communications facility.

I see a big problem with this. Currently it is only ACTPLA's interpretation of the Territory Plan that a data centre equates to a communications facility.

This could well be tested in a court as to whether this is in fact an extreme and inappropriate interpretation (which I believe to be the case).

However this legislation as worded would remove a court's ability to make that determination.

So that would include:

CZ1 - Town Centre Core 

CZ2 - Business Zone

CZ3 - Services Zone

CZ5 - Mixed Use Zone 

IZ1 - General Industrial Zone - appropriate

IZ2 - Industrial Mixed Use Zone - (Fyshwick? Over the road from Narrabundah?)

PRZ2 - Restricted Access Recreation Zone

TSZ1 - Transport Zone (Good use for the railhead land next to Viridian if they terminate the line at Fyshwick instead!)

TSZ2 - Services Zone ("essential municipal services such as water, energy, transport and waste disposal" - that's more like it)

NUZ1 - Broadacre Zone ("make provision for activities requiring clearance zones or protection from conflicting development" - so the Mugga Lane site was the right zone but didn't satisfy that key objective?)

NUZ2 - Rural Zone

NUZ3 - Hills Ridges and Buffer Zone

NUZ5 - Mountains and Bushlands Zone

Do you believe this is a good outcome?

If this interpretation were taken to the absurd, every department building with servers in it could be called a "communications facility"!

There is a defined use in the Plan called Major Utility Installation - that is what this use is. I believe that the land in Hume is Industrial zone, making this defined use a merit assessable use.

This is only one small aspect of the draft legislation that I've looked at.

I urge you to scrutinise closely this legislation for anything that does not need to be there, and may have unintended consequences. Delay voting on it if you feel there is more to discover - it is your parliamentary right.

Regards,

Alan Kerlin

President

Gungahlin Community Council

Hansard extract (our highlighting):

 

MR SMYTH: It is interesting, Mr Speaker, that a number of us this morning—and you are at the top of the list: Shane Rattenbury, Meredith Hunter, Le Couteur, Bresnan, Coe, Dunne, Hanson, Doszpot and Smyth—received an email from the president of the Gungahlin Community Council. The Chief Minister has tried to portray this as a localised problem, a bunch of NIMBYs trying to protect their house values. He has not been able to make that case because it is simply not true. But here we have an email which a number of members of the opposition and the crossbench have received which clearly points out the concerns. Its subject is:

It goes on to say:

This is at the nub of the problem that we all saw—all of us bar the Labor Party and the Chief Minister—in this. The email is there, Chief Minister. If you are interested, I can arrange for you to have a copy of this because it is important. To portray this as a problem for the people of Macarthur is wrong.

This is a problem, because of your mismanagement, that stretches right across the ACT, to the far end of Gungahlin, to the west of Belconnen, because people are concerned, because people do care. People move and live here because we are the bush capital and we have a planning system, a system which your process, I believe, has sought to subvert. If you could please give a guarantee at the end —

Mr Stanhope: I would be pleased to see the letter too, Mr Smyth, if it is convenient.

MR SMYTH: I will get you a copy. I seek leave to table the letter, for the interest of members. A copy can be provided to the Chief Minister.

Leave granted.

MR SMYTH: I present the following paper:

I seek leave for inclusion of the email in Hansard, Mr Speaker.

MR SPEAKER: Mr Smyth, as I am sure you are aware, there are guidelines for the inclusion of such documents in Hansard. I will seek advice on those guidelines.

MR SMYTH: I withdraw that request. I have tabled it. Those members that have not received it and that are interested can get a copy from the Clerk, just for the sake of process.

…

That being said, I will simply close and again inform the Chief Minister that there are two major concerns in the community that remain. The first is the nature of clause 9 and its definition of a communications facility, which will be addressed, because that will be removed. So no precedent will be set and things will be answered.

MR STANHOPE: …A couple of issues have been raised which I am happy to respond to. One issue which Mr Seselja raised was in relation to clause 9. I take the point that is being made in relation to this. I must say that it is an issue that we discussed in the preparation of the bill. I can say quite genuinely that the position that the government took was to seek to provide some certainty that reflected the government's position and interpretation of "communications facility". I say that on the basis that ACTPLA's firm view is that it is a broadacre sustained communications facility, and the definition of "communication" or "communications" actually grows as our language and technology grows. The word "communication", at the time that the territory plan incorporated it, did not imagine or envisage data centres. Of course, they simply did not exist. The law grows, and language within the law is interpreted according to changes in language reflected by changes in technology et cetera.

It was a genuine attempt or desire by the government to provide some clarification around its understanding of the meaning of the term. I understand that there are some that think otherwise. The government has legal advice which suggests that the interpretation that we apply is the appropriate and correct interpretation, but I do not dispute the position that is essentially put by Mr Seselja, the Leader of the Opposition, in the amendment that he proposes in order to remove it. We are quite comfortable with that, accepting that this is a conversation and a debate which we will have on another day as a result of another process.

Let me assure members that the government's intentions were simply to provide some certainty around this issue where there has been uncertainty. So we are quite happy to support the removal of that provision, and we will support the amendment that the Leader of the Opposition has circulated. The Leader of the Opposition has also circulated an amendment to the—

Mr Seselja: Do you know there's an update to that?

MR STANHOPE: Yes, I did see it. The Leader of the Opposition has circulated a second amendment, to the preamble. I must say that the update is far more reasonable in the eyes of the government than the original. Having said that, the government will not be supporting it. The government's position would be one that would either maintain the existing preamble or simply do without one altogether. We will oppose that particular amendment.

MR SESELJA (Molonglo—Leader of the Opposition) (5.24): The opposition will be opposing clause 9. I have flagged the reasons for this, and the Chief Minister touched on them in his closing. It is worth just mentioning the Auditor-General's report on this at page 26:

Audit noted that at this stage, the possibility the data centre was a communication facility was not envisaged by ACTPLA.

It is fair to say that that is conflicting advice. CPR received counsel's advice prior to the election saying that the communications facility would not include a data centre and gas-fired power station. There is a concern in the community if this clause were to go ahead that this would set a precedent, particularly in broadacre. The concern is not industrial, because we have seen data centres with some cogeneration capacity, I understand, approved in Fyshwick, in Hume, and in Mitchell. So in industrial areas these projects have gone ahead. They presumably have been under warehouse. We asked for some clarification about whether any had been approved as communications facilities, but to date, to the best of my knowledge, we have not received any information giving out a list of those.

A very strong concern in the community was that if this clause were to go ahead it would set a precedent for what a communications facility is and would therefore open up the prospect of broadacre being used for data centres or gas-fired power stations in the future. For that reason we will be opposing the clause. I understand the Greens and the government will also be opposing the clause, so I thank members for their support.

MS BRESNAN (Brindabella) (5.26): The Greens are pleased to support the removal of clause 9 because it has too wide an impact. It may be reasonable to have the argument that a data centre with gas-fired cogeneration is by definition a communications facility and that consequently any land zoned as broadacre in the ACT is an appropriate site for such a facility. We do believe it is important to have a clear definition for data centres. However, the time or occasion for that debate is not when we are supporting legislation which is otherwise site specific and which seeks to ensure the proposed data centre development will be assessed under the merit track of the Planning and Development Act for a specified industrial site in Hume only.

MR SMYTH (Brindabella) (5.27): It was interesting to hear the Chief Minister in his conclusion reiterate that it is ACTPLA's firm view that this is a communications facility, because clearly the Chief Minister, as he has done with so many reports, has not bothered to read the report. If you go to page 26, paragraph 3.9 states:

ACTPLA advised CMD on 28 August 2007 that the CTC proposal may only be allowable if it was considered a scientific research facility rather than office use. More information was required on the equipment and activities to confirm whether the proposed project met the definitions of the allowable uses contained within the National Capital Plan and Territory Plan.

Paragraph 3.10 states:

Audit noted that at this stage, the possibility the data centre was a communication facility was not envisaged by ACTPLA.

That is ACTPLA's firm view. There it is in black and white. That is what they told the Auditor-General. It is just extraordinary because the next paragraph says:

After this advice was provided, CMD contacted ActewAGL on 30 August 2007 to obtain further information as requested by ACTPLA. ActewAGL responded on 31 August 2007 stating that the data centre was a communications facility, and supported this with a brochure that outlined the nature of the 'communications infrastructure' within the facility.

We are now running the territory plan by brochure! So if you want to get something through the ACT Labor Stanhope-Gallagher government just produce a brochure.

Mrs Dunne: Preferably with a jingle.

MR SMYTH: And, indeed, if you have got a jingle, that apparently goes down pretty well too. It is interesting that when you go to paragraph 3.12 the auditor notes:

Part D of the Territory Plan 2002 sets out definitions for a 'communications facility' and a 'major utility installation' as per Table 3.2.

She concludes:

The group Canberrans for Power Station Relocation had to go to the expense of getting their own legal advice, which indicated that the data centre component of the development is not a communications facility within the meaning of the territory plan. And that is the problem we have got here.

Mr Seselja and I had a briefing last week from the head of the Chief Minister's Department, and I am grateful for that briefing. The comment was made by the head of the Chief Minister's Department that of course a number of data centres had been approved as telecommunications facilities and some as warehouses. So I said: "Fantastic. That will make life easy. Give us a list. Can we have a list of that?" The reply was, "Of course you can have a list of that." We had to send a reminder to ask for that list but what we got back was quite interesting, because it details the land use lease purpose classification covering other data centres in the ACT. It does not say that any of them were approved as a communications facility.

We sent another email saying, "Which of these were actually approved as communication facilities?" We are yet to have an answer to that. I would have thought that, if you had examples that went through the process as telecommunications facilities, that data would be reasonably accessible. But we are yet to receive that, and that is unfortunate.

I am pleased that the Chief Minister and the Greens have agreed that this clause goes, because when it goes it will take a lot of angst out of the situation for many residents. As I said when I tabled the communication from the Gungahlin Community Council, they told me I should spread it far and wide and maybe I should insist that it be included in Hansard.

The concerns are not of a NIMBY-like group of residents, as the Chief Minister has said on so many occasions over the past eight months. This concern is spread across the ACT. People are afraid that under a Stanhope-Gallagher Labor government these things might pop up in the block next door to them—anywhere. What we do as an Assembly by removing this clause is send a very clear message that we support the notion of the bush capital as a planned city and that this Assembly will stand up for the rights of residents to live in that planned city. So I am very pleased to be able to vote to remove the clause, as I am sure just about everybody else in this place is.

MR STANHOPE (Ginninderra—Chief Minister, Minister for Transport, Minister for Territory and Municipal Services, Minister for Business and Economic Development, Minister for Indigenous Affairs and Minister for the Arts and Heritage) (5.33): I have just a couple of points of clarification in response to Mr Smyth's comments, but I do not want to delay members; I really am anxious for us to get on to the appropriation bill.

The first is that Neil Savery, the head of ACTPLA, has confirmed today, in discussions and advice that I sought in relation to the proposed amendment which we are currently debating and in response to a request for just some clarification around the issue and the section, that it is the view of ACTPLA—and I have written advice from Mr Savery today saying it is Mr Savery's—

Mr Smyth: Can you table the advice?

MR STANHOPE: No. I have a note to me from Mr Savery, signed by Mr Savery, saying it is ACTPLA's view that the data centre falls within the definition of communication. Look, this is—

Mr Smyth: Can you table that?

MR STANHOPE: No, I will not; it is a note to me.

Mr Seselja: Read it out.

MR STANHOPE: I have just said it: ACTPLA has senior legal advice that it is reasonable to consider the data centre under the definition of a communication facility. It is entirely consistent with what I just said—that this is the view of ACTPLA. But this is academic. This is a completely academic debate here now. The government's position is, the position of ACTPLA, is that a data centre fits within the definition of a communications centre. Mr Savery has confirmed to me today, in writing, that that is their view. That is what I said.

Mrs Dunne: When did you twist his arm on that? He certainly did not say that at the public meeting.

MR STANHOPE: Yes, I did. I said that. This is an entirely academic discussion. I am more than happy to have it, just to put in some context here what it is that we are debating.

It is the government's view, accepting that there is a contrary view, that a data centre is a communications facility. In the context of the current site and this legislation, the point is irrelevant. That is why the government have agreed to support the Leader of the Opposition's amendment, because in the context of the legislation we are debating today it does not need to be included. That is why I said earlier, in closing the debate at the in-principle stage, that the government's willingness to agree to the amendment which the Leader of the Opposition proposes is that, to all intents and purposes, it is irrelevant to the end that we are seeking to achieve today.

I went on to explain why it was that we included it in the first place, which was to express the government's view that a data centre fell within the definition of a communication facility. That is our view. It remains our view. But we are happy to enter into this debate in the context of a change to the territory plan.

Including clause 9 in this piece of legislation was done in the knowledge that it would have no effect or impact. I just want to make the point—I understand people's concerns—that the inclusion of a definition of communication facility in a specific piece of legislation that is project specific and site specific and has a 12-month sunset clause will not affect in any way the definition of communication facility as it applies to broadacre. But we are happy to engage in that debate in a broad way. In fact, I think perhaps it is a very good, reasonable reference for us to make to the planning committee first up. Let us have a full robust inquiry into some of these issues.

I just wanted to explain the government's position in relation to this. We believe it is a communication facility. That is ACTPLA's view. That is the government's view. We accept there are other views and we are happy now to proceed to settle the matter once and for all. That was the rationale and the basis on which we proceeded in relation to this issue. I will conclude my remarks on that point. The government is happy to support this proposed amendment.

MRS DUNNE (Ginninderra) (5.37): In accordance with standing order 213, I move:

That the document quoted from by Mr Stanhope (Chief Minister) be presented to the Assembly.

Mr Stanhope: They were personal notes for my information, Mr Speaker.

MRS DUNNE: It looks like an email to me.

MR SPEAKER: Sorry, Mr Stanhope, I did not hear you.

Mr Stanhope: I said the notes that I referred to were personal notes provided for my information and I have no intention of tabling them.

MRS DUNNE: The standing order applies to documents that the member has quoted from. He said in his speech that he had received in writing today advice from the Chief Planning Executive in relation to this. Whether or not he has it in his hand or not, he has referred to advice and I would like them tabled.

Question put:

That Mrs Dunne's motion be agreed to.

The Assembly voted —  Ayes 6  Noes 11  Question so resolved in the negative.

MR SESELJA (Molonglo—Leader of the Opposition) (5.41): I thank members for their support. I understand the Chief Minister's point in relation to the definition of communication facility. I think it is fair to say, though, that there is still a fair amount of ambiguity, and certainly it is a contested point as to what is a communications facility and what falls within this definition. But we do believe that it is very important that it is not contained within this piece of legislation because there is no doubt that when these issues are being considered this has the possibility of setting a precedent. It is a precedent that we do not support. It is a precedent that the community would be concerned about. That is why we have sought the removal of this clause. I thank members for their support.