Mood:
downTopic: nsw govt
Sydney Morning Herald image yesterday 13 March 08 "Experience ... Meredith Burgmann points to her long history opposing inappropriate development."
Photo: Sahlan Hayes
In our previous post we identified City Hall aspirant Meredith Burgmann ex MP President of the NSW Legislative Council having endorsed as a loyal ALP member the 2005 Part 3A amendment of the Environmental Planning & Assessment Act 1979 brought in by Minister Sartor.
In a recent submission on a major sand mining development to the Dept of Planning:
our research extract on Part 3A reads as follows (and we commend this material to Adam Spencer of abc 702 who interviewed Burgmann last Thursday, noting without more at this point that Spencer sits on the Sydney University senate with Burgmann's niece Verity Firth MP):
Political/legal context
Regretably this DA is another exemplar of:
Strong-arm tacticians Elisabeth Wynhausen in The Australian 26th Jan. 2008
in relation to ramming through ‘major developments’ against community standards and ecological sustainability.
In particular this quote:
"The minister [Sartor] can declare a site to be "state-significant", giving developers the go-ahead on big projects. Under Part 3A of the Environmental Planning and Assessment Act, projects that are objectively of state significance can go to the minister. Brad Hazard, the Opposition's planning spokesman, says of the Government's planning actions: "The reality is that anything Frank wants to get his hands on to, he takes."
This theme regarding the dictatorial and/or arbitrary use of Part 3A of the EPAA reversing the proud history of the NSW ALP in Government from the intent and effect of the 1979 Act has been picked up extensively by civil society as here:
1. NSW Nature Conservation Council background paper at Major Projects (Part 3A) developments:
“Lack of transparency
The concentration of power in one person, the Minister for Planning, is bad enough, with clear implications for corruption. To make this worse, the decision-making process surrounding Part 3A developments is unclear, with environmental impacts, submissions from community groups and the public, and the thoughts of other government departments merely needing to be 'considered' by Frank Sartor."
Weakening of other laws
Under Part 3A, many standard approvals are not required, meaning effectively the Minister for Planning becomes the consent authority for these actions. Approvals that are no longer required include: ….
- Clearing native vegetation or state protected land (under Native Vegetation Act )
- Permit to excavate from riverbanks or shore, or to interrupt the water flow (under Rivers and Foreshores Improvement Act) ….
- Water use approvals, water supply, drainage and flood control works, controlled activities and aquifer interference (under Water Management Act) …
- Excavation permits, required for any likely impacts on relics (European heritage) under the Heritage Act ….
Part 3A also changed the National Parks and Wildlife Act so that developers will not be prosecuted for harming protected fauna without a licence, if the work carried out is essential for Part 3A projects. ….
What about environmental impact assessment?
For Major Projects, the Director General determines the Requirements for environmental assessment. The Director General then writes a report to the Minister for Planning, including a statement whether the developer's environmental assessment met the Requirements. The Minister must 'take into account' this statement when deciding whether to approve the development. However, amendments made in 2006 – controversially described as ‘housekeeping’ measures by Frank Sartor – mean the Minister can now approve a development application under Part 3A whether or not the environmental assessment complies with the Director General’s environmental assessment requirements.
For Part 3A projects, environmental assessment requirements are ‘tailored’ to a particular project. This means that the Director-General determines the assessment requirements based on consultations with ‘relevant’ (as decided by the Director General himself) public authorities. Consequently, if the Director General misses something (e.g. air pollution impacts) when writing the Environmental Assessment Requirements, then such impacts do not need to be investigated by the developer."
The peak green groups Media Release from when Part 3A was introduced reads:
Law removing community's right to appeal massive development passes
Friday, 10 June 2005
Environment groups are outraged that NSW Parliament last night approved a Bill which makes major and alarming changes to environmental laws in NSW. Both major parties pandered to the development industry, but set dozens of community groups against them, they said.
"The passage of this appalling piece of legislation represents the greatest set-back in environmental protection laws in over 25 years. On his tenth anniversary as Premier, this Bill will ensure that Bob Carr is remembered as the 'anything but green' Premier," said Cate Faehrmann, director of the Nature Conservation Council of NSW.
"The Bill gives the Minister for Infrastructure, Planning and Natural Resources largely unchecked powers when assessing the most significant and potentially environmentally damaging projects.
"The Government was hard-pressed to even demonstrate the need for granting such broad, discretionary powers to the Minister. The best example they could come up with to justify this dangerous piece of legislation in Parliament was a bridge collapse over the Derwent River in Tasmania - which occurred decades ago," said Ms Faehrmann.
"The Bill is so flawed that even the Coalition saw fit to propose amendments which would have provided at least some checks and balances limiting the Minister's broad discretion.
"But Coalition concerns over the Bill in the end amounted to mere rhetoric. If the Opposition were serious about addressing community concerns they would have supported a move to refer the Bill to a Parliamentary Committee for Inquiry," said Jeff Angel, Director Total Environment Centre.
"An Inquiry would have been entirely appropriate, particularly given the level of community concern and lack of consultation surrounding the introduction of the Bill.
"The fact that this Bill was ultimately approved by both sides of politics is a clear indication of how little public opinion matters and how much the property industry matters to both Labor and the Coalition. But you can't win government by just pleasing the developers and there is now a big hole in the parties' community credibility," Mr Angel said."
See also their [the peak green groups] Position Paper on Part 3A in particular:
· That an independent body, with members appointed by relevant groups/organisations rather than by the Minister, replace the Minister as the consent authority for the purposes of Part 3A.
· That equal weighting and consideration be given to social, economic and the principles of ecologically sustainable development (ESD) when determining each development application. This should take into account previous decisions and cumulative impacts.
2. NSW Environmental Defenders Office - EDO Public Seminar – “Part 3A and the Public Interest” Cate Faehrmann, Nature Conservation Council of NSW - listen to speech [23:47 mins] Cr Sam Byrne, Local Government and Shires Association - listen to speech [19:20 mins] More information on the Part 3A amendments For a brief overview of the recent planning reforms, the EDO has assessed the current state of play. [PDF 92 KB]
Note the EDO July 2007 states:
“The new Part 3A reforms in 2005 introduced a new way of doing planning and development in NSW. The reforms were based on laws introduced by Premier Joh Bjelke-Petersen in Queensland in the early 1970s: the State Development and Public Works Organisation Act 1971. These rode roughshod over community consultation rights.”
quoting Jeff Smith Principal Solicitor, EDO July 2007
Also note:
Also note:
EDO letter Rachel Walmsley Policy Director dated 25 May 07 to Sector Strategies and Systems Innovation Department of Planning Re: State Environmental Planning Policy (Major Projects) including:
Additional approvals
The consequence of the listing of a class of development as a Part 3A project under the Major Projects SEPP is that certain licences and approvals required by other Acts are no longer required. Under s75U of the Environmental Planning and Assessment Act 1979, t hese include: the concurrence of the Minister administering the Coastal Protection Act 1979, approvals under Part 4 of the Heritage Act 1977, permits under section 87 and section 90 of the National Parks and Wildlife Act 1974 and water use approvals under sections 89-91 of the Water Management Act 2000
These other approvals constitute important safety nets, and help ensure that all potential impacts of a development are adequately considered when the Minister makes his decision. The departments that are responsible for granting these additional approvals have the necessary expertise to adequately assess issues such as pollution, heritage and threatened species licences. The listing of a class of development under the Major Projects SEPP means that these issues may be validly ignored. Furthermore, even those approvals that still apply under Section 75U (such as an Environmental Protection Licence) cannot be refused. Given these consequences, the EDO opposes the listing of classes of development as Part 3A projects. Developments should be considered individually to determine whether they are appropriate for consideration under Part 3A.
Also note:
Environmental Defender's Office New South Wales (Ltd), Fact Sheets - 2.1.2.2. Major Projects and Critical Infrastructure, including
Environmental Assessment of Major Projects and Critical Infrastructure
Major Projects
The environmental assessment requirements for major projects and critical infrastructure are far more discretionary than the requirements for developments under Part 4, and activities under Part 5 of the Environmental Planning and Assessment Act 1979.
Once a development or activity is declared by the Minister, or identified in the Major Projects SEPP as a major project, Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 no longer apply to the project, nor do the provisions of Local Environmental Plans (LEPs) or Regional Environmental Plans (REPs). Whilst the permissibility of a proposed major project in the provisions of a LEP or a REP is a matter for that the Minister must consider in determining whether to grant consent to a major project, the fact that a project is prohibited in a LEP or a REP will not necessarily prevent it from being approved. ….
State Environmental Planning Policies also do not apply to major projects unless the policy expressly states that it applies to the particular project. Part 3A also sets out different environmental assessment requirements for major projects
Unlike the provisions of Part 4 of the Environmental Planning and Assessment Act 1979 which require proponents of integrated development applications to obtain additional approvals under other legislation, such approvals are not required for major project approvals. Approved major projects are exempt from having to obtain the following approvals:
- concurrence of the Minister for development within the coastal zone under the Coastal Protection Act 1979.
- permits for dredging or damage to mangroves or seagrasses or to obstruct the passage of fish under the Fisheries Management Act 1994.
- approval under the Heritage Act 1977 for works affecting properties listed on the State heritage register or for excavation works which may affect relics. In addition, an interim heritage order cannot protect a heritage building, work, relic or place from being destroyed in order to carry out an approved major project.
- permits under the National Parks and Wildlife Act 1974 to interfere with or destroy Aboriginal objects.
- consent to clear native vegetation under the Native Vegetation Act 2003.
- permits to excavate the bed or shore of rivers and coastal lakes and lagoons under the Rivers and Foreshores Improvement Act 1948.
- bush fire safety authority under section 100B of the Rural Fires Act 1997.
- water-use approvals, water management approvals and activity approvals under sections 89-91 of the Water Management Act 2000.
In addition, the following orders and notices cannot prevent an approved critical infrastructure project from being carried out:
- an interim protection order under section 91A of the National Parks and Wildlife Act 1974 to protect significant areas or areas which may contain threatened fauna or flora.
- a stop work order issued under the National Parks and Wildlife Act 1974, the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994.
- an environment protection notice issued under the Protection of the Environment Operations Act 1997.
- an order made under section 124 of the Local Government Act 1993.
Once a major project is approved by the Minister, there is little another authority can do to prevent the project from being carried out. If an approved project requires an aquaculture permit, mining lease or environment protection licence under other legislation in order to be carried out, then another authority is not permitted to refuse that approval.
The clear implication is that planning in NSW is under control of a modern ‘Mussolini style’ autocracy, making the DA ‘train run on time’ with hardly any democracy or justice, for instance as regards in this specific case:
- need for future water licensing (now repealed) in a very water stressed location both for neighbours and the immediate environment due to unlicensed overuse in breach of the 1998 and 1989 consent.
- Extreme failure to follow progressive rehabilitation requirements 1998 or 1989 consent.
- Protection of a public land heritage lookout on Trig Hill from extreme vandalism including destruction of sensitive vegetation and private profiteering for sand mining profits off public land.
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Thus endeth the lecture on the ALP's disgraceful vandalism of the planning regulatory framework, that is under the Party of Government that sponsors Meredith Burgmann for City Hall in 2008.
