In July 2005, with minimal consultation, the government introduced a
new Part 3A of the Environmental Planning and Assessment Act. This
allows the Minister of Planning, Frank Sartor, to call in State significant projects
or anything deemed by him as critical infrastructure. A new State
Environmental Planning Policy (Major Projects) 2005
defines what
projects are subject to Part 3A and require ministerial approval. This
legislation seriously weakens
transparency, local accountability and consultation processes. The
Nature Conservation Council of NSW has released a position paper on the
Part 3A of the planning process which can be found here .
What is a major project?
A major project can be:
• agriculture, timber, food and related industries
• mining, petroleum production, quarries and associated processing industries
• chemical, manufacturing and related industries
• general manufacturing, distribution and storage facilities
• tourism and recreational facilities
• health and public service facilities
• transport, energy and water infrastructure
• resource and waste-related industries.
There are thresholds (e.g. the cost of the development) which determine
when a development in one of these categories becomes a major project.
Major projects can also be residential, commercial or retail projects,
if they have a capital investment value over $50 million, and the
Minister for Planning decides that the development is ‘important in
achieving State or regional planning objectives’.
The
range of developments that are now being assessed under Part 3A can be seen by looking at the list of
Major Project Assessments on the Department of Planning website. This site also contains a useful community
guide [209KB] on the NSW Major Projects Assessment System, if you require more
background.
The Department of Planning have finally released on their website Guidelines for determining what is a State significant site [44KB], and Criteria for deciding what is a Major project
[51KB]. While the release of these long-awaited guidelines take Part 3A
one step towards being more transparent, there is still a long way to
go.
Critical infrastructure
Within Part 3A, there is also a sub-class of developments called
'critical infrastructure'. These developments are supposedly "essential
for the State for economic, environmental or social reasons."
Where a major project has been declared Critical Infrastructure, an
objector is not allowed to appeal to the Court. This applies to two
different types of appeals: not only for appeals where the Court
decides if the right decision is made, but also for those appeals where the Court decides if the decision was legal.
This means that even if the law is broken that the public can do
nothing. The right of the public to enforce breaches of the law had
been in place for over 25 years, allowing for many historic
environmental and social wins, until the 2005 changes took it away.
Concept plans
To lodge a major project application, a developer usually puts in a
detailed application, complete with detailed plans, environmental
assessments etc. However, a developer can also lodge a 'concept plan',
which provides only the outline of the development, sometimes including
a number of different options available.There could easily be environmental, social or economic impacts that were not
apparent in the concept plan and that only become clear later.
 Concept plan approval is even available for Critical Infrastructure,
meaning that huge and important developments can be approved without
all the details being provided. This has happened with the proposed
Sydney Desalination Plant.
Once a concept plan has been approved, objectors do not have the right
to take it to Court. This is problematic because of the vagueness and
lack of detail in a concept plan.
What's the problem?
The
Environmental Defender's Office has done a great in-depth article on the problems with Part 3A.
 Loss of appeal rights
Normally for large developments, people (known as 'objectors') who
put in a submission objecting to the proposal would have appeal rights
- i.e. be able to take the developer to the Land and Environment Court
to have the Court decide if approval should have been given to the
development application. However, under Part 3A, many appeal rights
have been taken away.
Where a major project has been declared Critical Infrastructure, an
objector is not allowed to appeal to the Court. This applies to
two different types of appeals: not only for appeals where the Court
decides if the right decision has been made, but also for those appeals where the Court decides if the decision was legal.
This means that even if the law is broken that the public can do
nothing. The right of the public to enforce breaches of the law had
been in place for over 25 years, allowing for many historic
environmental and social wins, until the 2005 changes took it away.
Inappropriate use
A high proportion of developments under Part 3A of the Act are along
the north and south coast of NSW, where land is more expensive and
developers can make the most money. Part 3A of the Act is supposed to
cater for major projects and critical infrastructure like water, transport and electricity
but is being used to subdivide and develop coastal land. However, the list of projects
currently being considered under this legislation is clearly not
restricted to what most people would call a 'major project'.
Developers are using this controversial clause to gain approval for
developments like town houses and holiday villas which may not have
been approved by the local council.
Townhouses and subdivisions are not Major Projects and it is
inappropriate for them to be approved through the Major Projects
(Part 3A) provisions of the Act. The NSW coastline is one of the most
fragile
and beautiful areas of the state, and should be protected for future
generations, not developed to make a quick buck for greedy developers.
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. Of
recent concern was the Moolarben coal project,
in which an Independent Hearing and Assessment Panel (IHAP) undertook a
review. Despite the fact that the IHAP is designed to be an independent
committee (clearly a much fairer system of decision-making), its
recommendations are once again only to be 'considered' by the Minister
for Planning, with whom the ultimate decision still lies. In the case
of the Moolarben coal project, the IHAP report has now been suppressed.
We saw this as a symptom of a bigger Part 3A problem concerning the
lack of transparency, and wrote to Mr. Sartor to tell him so.
| "We are deeply concerned at the
cover-up of the Independent Hearing and Assessment Panel Report into
the Moolarben coal mine. We see this not only as a serious issue for
the community consultation and decision-making process surrounding the
Moolarben coal mine, but also as a symptom of the bigger problem
concerning the lack of transparency throughout the entire planning
process.
NSW has been at the forefront of planning law throughout the world for
over thirty years, because of the public participation, appeal and
enforcement rights being embedded in our planning and environmental
protection legislation. The so-called “streamlining” and reform of this
legislation in the last few years has seen these rights steadily
stripped away, with the ultimate blow being Part 3A of the
Environmental Planning and Assessment Act 1979. Critical infrastructure
projects are currently above-the-law, without even basic judicial
review available. This should not be allowed to continue.
More specifically, we view the suppression of the Independent Hearing
and Assessment Panel Report to be a waste of tax-payers money in
providing the funding for the report, as well as evidence of the
problems associated with approving the Moolarben coal mine. Clearly, if
the report was not damning, it would have been publicly released as
other IHAP reports have been.
"
|
|
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:
- Any development in the coastal zone (under Coastal Protection
Act, restrictions on non-ESD developments, without impacts on
watercourses, ocean, dunes, riverbanks, beach, shore etc.)
- Any dredging or reclamation works, harm to seagrasses, mangroves
or other marine vegetation, or blocking the passage of fish (under the
Fisheries Management Act)
- Excavation permits, required for any likely impacts on relics (European heritage) under the Heritage Act
- Permit to impact on Aboriginal heritage (under National Parks and Wildlife Act)
- 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)
- Development of bush fire prone land (under Rural Fires Act)
- Water use approvals, water supply, drainage and flood control
works, controlled activities and aquifer interference (under Water
Management 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.
Other licences that may be required are forced, under Part 3A, to be
granted. Mining leases, aquaculture permits, petroleum production
leases, roads consents, and the inappropriately named environment
protection licences (which allow air and water pollution) all cannot be
refused if they are necessary for carrying out a Part 3A approved
project.
The powers of authorities to issue stop work orders, environmental
protection notices, and interim protection orders (used to protect
threatened species, stop pollution incidents and restrain breaches of
the Act) that affect any critical infrastructure development have also
been stripped.
 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.
What happened at the time?Click here
to view our Media Release from when Part 3A was introduced.
Cate Faehrmann, Executive Director of the NCC, recently gave a speech
at a Part 3A forum hosted by the Environmental Defender's Office. You
can hear the whole speech, and those of other speakers, on the EDO website.
As well as the impacts that Part 3A has had on the community and the
environment, Cate spoke of what happened in Parliament when Part 3A was
being introduced.
Cate quoted Craig Knowles, the then Minister for Planning, speaking in the Legislative Assembly on the 27th May 2005 introducing the Bill that provides for Part 3A to the Parliament.
| | "
'There is no doubt that this bill dramatically improves the climate in
which to do business in this State. The bill implements important
elements of this Government's planning reform program—a program which
is overhauling our planning system and cutting red tape at all levels,
whilst continuing to improve the high standards of environmental
assessment and community participation that have been the hallmark of
planning legislation in this State for almost 30 years.'
The government's intention, according to Mr Knowles' first reading
speech, was that 'For matters of State significance or major projects,
the new single assessment process will strengthen the rigour,
transparency and independence of the process of assessment, providing
higher levels of up-front certainty for the proponent, the community
and other stakeholders.' It would seem that the Government failed in
it's intent to provide more certainty, for the community at least."
|
|
Cate also quoted Frank Sartor, Minister for Planning, speaking in the Legislative Assembly on the 13th September 2005 - 6 weeks after Part 3A came into effect.
| " 'These planning laws are starting to have an effect on reducing
roadblocks, and improving and streamlining major infrastructure and
projects in the State while preserving important environmental goals,
as well as providing important techniques', that's an interesting word,
techniques, 'for dealing with community concerns on a whole range of
projects.'
The roadblocks that Mr Sartor is referring to of course are the
careful checks and balances that have been a hallmark of our planning
laws for more than 30 years. These roadblocks were designed to protect
the public's and the environment's interest. These roadblocks were
designed to protect threatened species, our heritage, including
Aboriginal heritage, our waterways, and our coast lines. These
roadblocks have been replaced with a process that allows one person
to make decisions concerning developments which can literally mean
millions to some individuals." |
|
What can you do?
To ensure that you are aware
what development is proposed in your area it is essential that you
regularly monitor the Major Projects Part 3A register - on exhibition at the
Department of Planning website. This can also be
searched by area.
Just some of the many recent Part 3A developments which are of great concern to us at NCC are:
|
NCC Home 
