Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005
Reverend the Hon. Dr GORDON MOYES: The Hon. Patricia Forsythe is an incredible optimist if she thinks the bill will pass through the House this month, because it is an extremely detailed bill. The purpose of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill is to amend the Environmental Planning and Assessment Act 1979 to reform land-use planning and the development assessment and approval system under that Act, particularly in respect of State infrastructure and other significant projects and land-use planning instruments. While respecting the Government’s desire to gain major developments for New South Wales, if this bill goes ahead it will be at great public price. This critical legislation will have significant implications for planning across New South Wales.
In the history of the development of the Environmental Planning and Assessment Act 1979 I cannot recall one bill that has had such far-reaching effects. Thus, if this bill is passed the environmental planning law landscape will be permanently refashioned. The bill’s central intent is to cut through red tape within land-use planning processes. Surely this bill accomplishes that. But cutting red tape within land-use planning processes has been seen by some as necessary to rid planning procedures of the so-called excessive complexity that is perceived as being responsible for delay or inaction. Cutting red tape is applauded and commended by some because it streamlines and makes more efficient the intricacies of the bureaucratic processes. But others may be of the view that cutting what may be considered as red tape actually removes the checks and balances necessary for land-use planning.
For example, the Environment Liaison Office considers that this bill will remove long-standing checks and balances such as accountability, transparency, technical oversight and community input for the most important and potentially environmentally sensitive proposals such as tourist resorts, mines and marinas, as well as developments in national parks and fragile coastal zones which are currently protected.
As a member of the Greens recently interjected, the last time this type of change took place was after a disaster in the Blue Mountains National Park. It seems that people—local citizens, lobby groups, councils—are an absolute pain, an intrusion, an interruption to the bureaucracy. But the Christian Democratic Party believes that ordinary people have the right to have a say, even if they might be a pain, an intrusion or an interruption to the bureaucracy.
The bill inserts into the Environmental Planning and Assessment Act 1979 a new part 3A, which will replace the procedures relating to State significant development. Development projects are subject to the provisions of part 3A if so declared by a State environment planning policy or by order of the Minister published in the Government Gazette. The latter scenario is novel. The Minister may declare projects as falling within the realm of part 3A when they fit within one of two categories, being major infrastructure developments or critical infrastructure projects. A major infrastructure development is a development which, in the opinion of the Minister, is of State or regional significance. A critical infrastructure project is any type of development that might be considered by the Minister to be essential for economic, environmental or social reasons. This places huge power in the hands of a Minister and his opinions, whether or not he or she has any professional training or experience.
The Legislation Review Committee effectively describes the process for approval under proposed part 3A. I will not refer to that here, but the main concern surfacing from this process is found within proposed section 75C. If the Minister is of the opinion that a project is essential for the State for economic, environmental or social reasons, he or she can declare it to be a critical infrastructure project. This is important because the Minister can approve a critical infrastructure project even if it would otherwise be wholly prohibited under an environmental planning instrument. The salience of and concern stemming from this proposal should not be underestimated. The effect of this proposal is to vest broad discretionary powers in the Minister. It is very clear that this proposal will allow the Minister to wield far-reaching powers, untrammelled by established measures catering for the protection and conservation of the environment.
Another disconcerting aspect of proposed part 3A is that appeals to the Land and Environment Court against the Minister’s decision may be made only in certain circumstances, and appeals cannot be made in relation to critical infrastructure projects. This proposal prevents individuals from questioning the merits of a Minister’s decision. Citizens ought to have recourse to appeal mechanisms; that is the nature of an individual’s rights within our court system. The bill provides that the Minister may authorise or require a proponent of development to submit a concept plan for a project. A concept plan is to outline such things as the scope of the project and any development options.
My esteemed leader asked the Government whether this would consist of, for example, an artist’s sketch plan? Would it consist of, perhaps, an elevation? Would it consist of a line on a map? The proposal for the staged implementation of the project may be very simplistic. Concept plans may also be authorised or required in relation to environmental assessment requirements, assessment panels, public consultation and environmental assessment reports by the director-general. A person dissatisfied with the Minister’s refusal to approve a concept plan may appeal to the Land and Environment Court in certain circumstances; however, again, appeals cannot be made in relation to critical infrastructure projects.
Once again, I note the hemming in of appeal rights. Of most concern is that the approval of a concept plan satisfies any requirement in an environmental planning instrument for the preparation of a development control plan. Special mention must be made of the fact that the Minister’s approval of a concept plan satisfies requirements under an environmental planning instrument. Again, it is apparent that the Minister has extremely broad discretionary powers. The only requirement of proposed part 3A that is mandatory in connection with the validity of an approval of a project or a concept plan is a requirement that an environmental assessment of the project is made publicly available. The fulfilment of this public notice requirement may be viewed as just a token gesture towards the community where part 3A projects are concerned.
Where a project is approved under proposed part 3A, parts 3, 4 and 5 of the Environmental Planning and Assessment Act do not apply to it. Part 3 relates to environmental planning instruments, part 4 to development assessment and part 5 to environmental assessment. Part 3 of the Act and State environmental planning policies do not apply to the carrying out of projects under part 3A but, in the case of a critical infrastructure project, only to the extent specifically provided by a State environmental planning policy. Thus, the current environmental impact assessment [EIA] process is done away with. There will no longer be a requirement to prepare a formal environmental impact statement. The Environment Liaison Office has noted:
The EIA is an internationally recognised component of responsible environmental planning.
Within the new process for part 3A developments there will be large scope for ministerial discretion. For example, proposed section 75G states that the Minister may constitute a panel of experts to assess applications for approval, and the requirement for a panel of experts to be established and referred to is not binding on the Minister or mandatory. Where a project is approved under part 3A, the bill will not require various statutory authorisations that are required to be submitted under the current law. This proposed development is very important. The various statutory authorisations that will not be required for approved part 3A projects include, for example, the concurrence under part 3 of the Coastal Protection Act 1979 of the relevant Minister; an authorisation referred to in section 12 of the Native Vegetation Act 2003 to clear native vegetation, and a bushfire safety authority under section 100B of the Rural Fires Act 1997.
The severity of this proposal can be highlighted in the context of the removal of the need for a bushfire safety authority for approved part 3A projects. The Nature Conservation Council has indicated that this proposal may apply to residential development under the Sydney Metropolitan Strategy as well as “any other commercial venture favoured by the Minister of the day”. Andrew Stanton, the Nature Conservation Council’s bushfire officer, said in a media release issued on 1 June 2005:
This leaves it open for corporate developments including medium density housing, large subdivisions, as well as public hospitals, schools and nursing homes to escape the State’s stringent bush fire protection guidelines… the concern here is that the future residents, workers and users of these facilities will be left vulnerable to bushfire attack… This is a slap in the face to those ordinary people who have hoped to subdivide their small residential blocks, build a new house or renovate their family home, but can’t because of these strict, but previously universal, bushfire protection laws… While these small developments bear the brunt of these restrictions, large corporate developers will be allowed to circumvent the rules completely… The other concern we have is for our brave and faceless volunteer fire fighters. Does the Government expect volunteers to risk their lives protecting the commercial ventures they plan to negligently approve?
That gives some food for thought. On my part, it provokes deep concerns about the implications of part 3A projects for our communities. As pointed out by the Legislation Review Committee, this bill will provide that certain proceedings cannot be taken in the Land and Environment Court without the approval of the Minister where critical infrastructure projects are concerned. Grave concerns must be held when laws hamper or cut off the rights of individuals to appeal ministerial decisions in our State’s courts.
As indicated by the Environment Liaison Office, the public will not be able to challenge, and the court cannot make orders regarding, the declaration of projects, the approval of projects or the enforcement of conditions of approval for critical infrastructure projects. Moreover, the validity of an approval or other decision under proposed part 3A cannot be questioned in any legal proceedings if the proceedings are not commenced within three months after public notice of the decision was given. It must be pointed out that the three-month time frame may pose problems, as it may not leave sufficient leeway for proceedings to be commenced. Schedule 2 provides for the standardisation of local and other environmental planning instruments. In this regard the Legislation Review Committee said:
This is achieved through the Governor prescribing the standard form and content of local environment plans or other environmental planning instruments, including the prescription of mandatory and permitted provisions.
It is envisaged that existing environmental planning instruments will be repealed in a staged fashion. From a commonsense point of view, the streamlining and standardisation of environmental planning instruments may not cater for the individual needs of areas. A one-size-fits-all approach may not effectively target the environmental issues in a particular area. The rationale behind the standardisation of local and other environmental planning instruments is not clear. A cookie-cutter approach to environmental planning standards or requirements across New South Wales will not offer suitable solutions for the conservation of our environment.
Schedule 5 gives new powers to the Minister, the director-general and authorised officers to enforce approvals under proposed part 3A. It is proposed that the Minister or the director-general will be able to use local council order powers for part 3A projects and that the Minister will be able to impose conditions on part 3A approvals that require monitoring and audits to be carried out by or on behalf of the approval holder.
Moreover, as the Legislation Review Committee said, schedule 5 will enable the director-general to appoint persons as authorised officers to enter premises in certain circumstances—as referred to by a previous speaker—to conduct inspections, to take samples and photographs, to examine and copy records, to seize things connected with an offence under the Act, and to require the answering of questions or the production of documents. The Legislation Review Committee has exhaustively defined issues that are of real concern. I urge the Government to reflect on these issues, particularly the fact that there is an exclusion of merits review.
The Christian Democratic Party does not involve itself in obstructionist practices with government legislation, but it does warn of the dangers of being a headstrong, centrist, authoritarian government of the type found in banana republics. The people have chosen this Government and given it the authority to be a law unto itself and garner to itself the self-delusion that it alone knows best, so the opinion of the public is not required. However, we recognise that obstructionist action by many environmental groups has cost business dearly, delayed projects that would have benefited society, and discouraged investors away from this State. The approach is simple but sometimes painful: Listen to the people, and then act. Do not just crash through.