Copyright © Government of South Australia 2002
All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Copyright. The Copyright Act, 1968 (Cth) permits certain reproduction and publication of South Australian legislation. In particular s. 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For the reproduction or publication beyond that permitted by the Act, permission should be sought in writing from the South Australian Attorney-General's Department. Requests in the first instance should be addressed to the Attorney-General.

ROADWORK (REGULATION) BILL

Mr HAMILTON-SMITH (Waite) obtained leave and introduced a bill for an act to regulate the carrying out of roadwork that may have a severely adverse effect on the flow of traffic or the conduct of business; and to create a right of action in damages against an authority that carries out certain roadwork without taking appropriate action to minimise loss to businesses conducted in the vicinity of the work. Read a first time.

Mr HAMILTON-SMITH: I move:

That this bill be now read a second time.

I bring this bill before the house as the shadow minister for small business in an effort to solve what has become quite a serious problem in both metropolitan and country areas wherein government authorities, either state government or local government, plough down a road to either rebuild the road, lay pipes or conduct other works, as required, and, in so doing, have the effect of putting small businesses out of business by obstructing entry and exit to their premises; by interrupting the flow of goods and supplies; by interfering with access for customers; and in other ways.

The plight of businesses along Portrush Road, Norwood, where, at present, extensive work is going on, came to my attention in April. Some of the companies affected in that area include the Silver Earth Trading Co., the Norwood Garden Centre and the Robin Hood Hotel. They all have indicated to me that they have been adversely affected by prolonged roadworks on Portrush Road, and I know that this is of concern to my friends and colleagues whose electorates share Portrush Road.

These people reported to me that their businesses have been severely restricted by these roadworks, which have generally deterred people from visiting their enterprises. As a result, these businesses have suffered severe losses. The Silver Earth Trading Co. alone has lost $300 000, and at least 10 jobs have been lost. The company wrote to the Minister for Transport seeking assistance but was advised that no compensation was payable for the `incon­venience' caused as a result of the roadworks.

The Portrush Road, Norwood, roadworks are not the only concern. I have also had letters from businesses on Unley Road, Unley, and King William Road, Hyde Park. A number of other roadworks are under way around metropolitan and country areas that are affected; and I will mention some of those in a moment. In my view, it is unacceptable that small businesses can be destroyed as a result of prolonged road­works without consultation or compensation in cases where there has been no consultation. This matter has application across the whole state, within all 47 electorates represented in this place.

My bill seeks to ensure that, before embarking on roadwork which is likely to have a severe and prolonged adverse effect on traffic, or which is likely to harm businesses in the vicinity, a road authority must, first, obtain a roadwork impact statement setting out the likely effect of the proposed roadwork on vehicular and pedestrian traffic and the likely effect, if any, of the roadwork on business conducted in its vicinity and containing recommendations for minimising possible adverse effects of the roadworks.

#30 Secondly, if a road authority fails to take reasonable steps to minimise adverse effects of roadworks on business, the failure is actionable as a tort by the owner of any such business who has suffered loss as a result of that failure. It is a defence for the road authority to establish that it has complied with its obligations. The bill therefore seeks to require that government, including both state and local government, take reasonable steps to protect small businesses from financial damage as a conse­quence of the roadworks. In most instances, these steps will already have been taken or should have been taken.

In many cases, authorities are presently performing and fulfilling their responsibilities to liaise and consult with small business, but there are cases where that is not happening. In my view, it is likely that the costs associated with compliance with this bill are minimal. I know an argument the govern­ment may put up is `We do not want to expose ourselves to liability claims.' I put it to the government that in most cases authorities are already doing the right thing. Where they are clearly not doing the right thing and not consulting, it is proper and appropriate that some form of compensation should be paid.

You might ask, Madam Acting Speaker, for more information and more guidance on the circumstances that have led to the requirement for this bill to be written. I simply need to refer back to the events of King William Road in the mid-1980s when that road underwent substantial refurbish­ment. I have been in contact with a couple of businesses that suffered considerable financial loss and had stories to tell on that street.

I mention in particular Sal Tropicano from the Lorenzini boutique in King William Road, Hyde Park, who indicated that when these roadworks occurred, everybody suffered and many businesses closed down because of the way the work was carried out without adequate consultation. Lessons should have been learnt from this. In this case, his particular business at this time in the mid-1980s dropped by 50 per cent, but up to 30 per cent of businesses in the street simply went broke. The roadworks caused a lot of stress for business owners—even those that survived. Clothing shops, furniture shops and others went out of business.

There were some positives in the end, because the street was cleaned up, strong businesses stayed and things were better after the roadwork. But there was chaos during the works, which went on for 16 to 18 months. Mr Tropicano understands that the work was prolonged by training pro­grams being part of the context through which the work was carried out. He is concerned that another roadwork upgrade is due to be conducted a few years from now.

Another business on that street is Jarrett Legal Services, and Mr Warren Jarrett expressed the same concern. Major difficulties were experienced while they were digging up in front of his property. The only way to get in and out of the office at one stage was to wade through mud. He simply could not walk into the office. It disrupted his business for a number of months. How does a law firm conduct its practice in these circumstances? He confirmed that, while some businesses survived, many went broke, and businesses had little time to prepare. Mr Jarrett claims that the local govern­ment on that particular occasion was not particularly interest­ed in their plight. It was simply a case of literally bulldoze through and get things done. That is fine from the point of view of completing the roadwork but not too good for the small businesses who suffered as a consequence.

Let me move to Unley Road, because I have also had correspondence from Mr Robert Miels of the Miels Clothing Shop at 154 Unley Road, who is presently experiencing dislocation as a consequence of roadworks currently under way near his two businesses on Unley Road. There are trenches being dug to put in underground power cables, and it looks like that work will go on until March 2005. They were given a week's notice, which turned out to be three weeks notice because the work did not start on time. Mr Miels says that the contractors have been fairly good and considerate, but the reality is there simply was not enough notice for businesses to prepare. For two to three weeks his shop was inaccessible and this, of course, had an effect on his business. Fewer people were able to access all the shops along Unley Road. Robert Miels told me that his business had changed its name and had sent out a lot of invitations to its launch. The invitations had already been printed and it was too late to change them. The roadworks almost completely ruined the launch of the rebadging and renaming of their business—another example of chaos flowing from roadworks.

Getting back to Portrush Road, I have spoken to Denis Northey and Mr Mark Caldicott of the Norwood Garden Centre. They told me that the roadworks have severely affected their business. People are avoiding the area, which quietened down business activity considerably. The centre had to lay off staff, two others have left and have not been replaced, and they had to cut back on hours. There was considerable dislocation and loss of revenue. The turnover has been down anything up to 25 per cent since last Christmas and, even before that, people were generally avoiding the Portrush Road area. This has been confirmed by Mr Matthew Binns of the Robin Hood Hotel who said there was a serious decline in its business over at least five or six months of the work. It was too hard for people to get in and out of the business. He told me that the restaurant, bars and drive-through were all affected due to difficulty in access. They had to cut back four or five full-time employees and the employment of casuals was affected.

The works went right through Easter, usually a strong period. Lanes were being blocked off and paving was under way, which was extremely frustrating for the customers, workers and the proprietors. It was a family owned business. They had been there for eight years. It simply created chaos for them. Again, they say the council were not that helpful when putting a sign out to show people how to get in. Of course, that was too late in that it was reacting to the road­works already having interrupted their business. It was not done in a planned way. Mr Binns makes the point that the government offers relief in a range of circumstances where problems arise such as drought relief, but it seems there is no relief being offered when the department of main roads or some other entity comes through and ploughs up the road. Of course, I have mentioned the Silver Earth Trading Company, which has suffered considerable financial loss. They have written to the minister and virtually been flicked aside with the minister saying, `We have no obligation to compensate or to consider you; we simply have at our discretion an option to show a duty of care to your con­cerns.'

For all those reasons, I bring this bill to the house. The government has a responsibility to its constituents: it has a responsibility to its citizenry and a responsibility to small businesses to give them a fair go. It has a responsibility to consult with you if it is going to dig up a road near your driveway and interfere with your shopfront so that customers cannot come and go and goods and services cannot be picked up or delivered, because this will have a serious deleterious effect on the viability of your business.

There ought to be some sort of a small business impact plan. The government has undertaken to provide such a plan for all cabinet submissions. I do not know whether that is happening—I suspect it is not—but the government should certainly have a small business impact plan in cases where major roadworks are planned, as should local government. I know that local government and state government will not want to be held to account on this issue, but I say they should be.

The bill requires the government to be responsible and to consult. The government should demonstrate that they have done that, that they have spoken to businesses and given them a bit of notice, and taken into account their concerns. Maybe all their concerns cannot be ameliorated, but if the govern­ment has made an honest effort and done a reasonable job, that is a defence. Where it has not done that, where it has been reckless and irresponsible (whether in Whyalla, Port Lincoln, Burnside or Port Adelaide), businesses should have the right to say to the government, `Fair go. You didn't let us know; you put me out of business; you cost people their jobs; there should be some compensation.' I ask the government to give this bill fair consideration. I seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Clause 1: Short title

This clause is formal.

Clause 2: Commencement

The Bill will come into operation on a day to be fixed by proclamation.

Clause 3: Interpretation

Provides definitions of council, road auth­ority and roadwork for the purposes of this Bill.

Clause 4: Roadwork to which this Act applies

Subclause (1)

Provides that the Act will apply to roadwork that is likely to have a severe and pro­longed adverse affect on the movement of vehicu­lar or pedestrian traffic; or is likely to harm (tem­porarily or permanent­ly) businesses conducted in the vicinity of the roadwork.

Subclause (2)

Provides that despite Subclause (1) the Act will not apply to roadwork if the roadwork is urgently required to deal with an emergency or a problem requiring an urgent solution.

Clause 5: Preconditions to be satisfied before roadwork to which this Act applies is car­ried out

Subclause (1)

Provides that a road authority must, before embarking on roadwork to which the Act applies, obtain from a com­pe­tent person or organisation that is independent of control by the road authority a roadwork impact statement setting out the likely effect of the proposed roadwork on vehicular and pedestrian traffic; and the likely effect (if any) of the roadwork on business conducted in its vicinity; and con­taining recommendations for minimising possible adverse effects of the roadwork.

Subclause (2)

Provides that where the likely adverse effects of the pro­posed roadwork are severe, or the roadwork impact state­ment recom­mends the sub­mission of the proposals to public scrutiny under this section, the roadwork authority must publish a notice in a newspaper circulating generally throughout the State giving reasonable details of the pro­posed roadwork; and stating that the roadwork impact statement is available for inspec­tion at a particu­lar website or a particular address (or both); and inviting written suggestions (to be made within a reasonable time stated in the notice) for minimising adverse effects of the proposed roadwork.

Clause 6: Carrying out of roadwork to which this Act applies

Provides that in carrying out roadwork to which the Act ap­plies, a road authority must give effect, as far as reason­ably practi­cable and economically feasible to recommen­dations for minimis­ing the adverse effects of the proposed roadwork contained in the roadwork impact statement; and if a notice inviting written sug­gestions for minimising adverse effects of the proposed roadworks has been pub­lished—to reasonable suggestions made in response to the notice.

Clause 7: Right to compensation for interference with business

Subclause (1)

Provides that if a road authority fails to take reasonable steps to minimise adverse effects of roadwork to which the Act applies on businesses in the vicinity of the roadwork, that failure is action­able as a tort by the owner of any such business who has suffered loss as a result of that failure.

Subclause (2)

Provides a defence for a road authority to establish that it has complied with its obligations under the Act in rela­tion to the relevant roadwork.

Mr SNELLING secured the adjournment of the debate.