Pub: Sydney Morning Herald
Section: News and Features
Subsection: The Culture
New planning code: trust us, we’re the experts
The “ayes”, not to mention “musts” and “mays”, have put paid to public participation in development issues, writes Elizabeth Farrelly.
It’s funny, in a laugh-till-you-cry kind of way, that just when the whole planning thing becomes critical for Sydney, and people start to engage fully with the issues, the Government moves to delete said people – along with old buildings and bandicoots – from the process. It almost looks like it doesn’t want us in there. Strange.
An 82-page amendment to the Environmental Planning and Assessment Act 1979 was passed by both houses and both mute sides of Parliament this month. Opposed only by the independents, it exempts government from such irritants as heritage, culture, community and those pesky endangered species, maxes out ministerial discretion and virtually ends public consultation. Except for backyard extensions.
The long title of the act reads like a Lemony Snickett version of A.A. Milne. “An Act to amend the Environmental Planning and Assessment Act 1979 and other Acts to facilitate infrastructure and other planning reform; and for other purposes.” In which Pooh sticks it to the Heffalump.
The implication, if you are inclined to swallow it, is that our 10 years without a plan is not due to political expedience, cowardice or incompetence. No no. It’s a red tape problem. That’s the Government’s story. But the real one, of course, is that the Government, finally noticing that NSW is falling apart, has cooked up an emollient act to let it slide directly from press release to “just do it” phase, not only without a metro plan but bypassing, too, virtually every environmental or cultural protection already in place.
Impressed? I know I am. And this is how it works. The “other Acts” so amended include: the Forestry and National Parks Estate Act 1998, Heritage Act 1997, Lord Howe Island Act 1953, Land and Environment Court Act 1979, Fisheries Management Act 1994, National Parks and Wildlife Act 1974, Mining Act 1992, Mine Subsidence Compensations Act 1961, Redfern-Waterloo Authority Act 2004, Roads Act 1993, Rural Fires Act 1997 and Water Management Act 2000. Just like that.
The exact nature of the new provisions is hard for a normal literate human to ascertain, since the act carefully makes audience participation as much like crawling uphill through a dung-heap as possible. Just reading the 82 pages won’t do it for you, since each amendment refers, through a series of double and triple negatives, to some obscure sub-sub-clause of some completely other act, schedule or regulation. But persevere. It’s worth it.
Take, for example, the amendments to the National Parks and Wildlife Act 1974. Clause 7.12  of the new act simply adds the innocuous words “or (d) a project approved under Part 3A of the Environmental Planning and Assessment Act 1979”. Harmless, you might think. Its effect, though, when slotted into clause 91AA (4)(c) of the 1974 act, is to let designated “projects” sidestep existing departmental stop-work powers over development affecting protected fauna, native plants, Aboriginal objects or items of cultural heritage.
Clause 7.12, similarly, makes the “harming or picking of threatened species, endangered populations or endangered ecological communities” OK – fine – if executed in pursuit of a “project” as defined under the new act. Clause 7.12 makes it all right to harm protected fauna for sporting or recreational purposes with firearm, explosive, net, trap, hunting device or instrument as long as it is in the interests of an approved project. And so on. And the 50-odd other amendments frolic in the same “trust us we’re the government” spirit.
All of which makes “project” an extremely valuable designation. So, what is a project, exactly? Well, anything the minister feels like, really. Any major infrastructure or “other development” that is, in the opinion of the minister, of state or regional significance. Or any project where the proponent is the same as the consent authority – that is, where a conflict of interest is already built in – and which would otherwise (in the proponent’s opinion) require an environmental impact statement.
That is, any development, public or private, big enough and ugly enough to have hitherto required special scrutiny is now explicitly exempted from all scrutiny – except self-scrutiny.
“Project” also includes all so-called state significant development – which, since the special state environmental planning policy of May 25, corrals pretty much any project relating to agriculture, forestry, manufacturing, tourism, sport, film and television, entertainment, health, medical research, educational and correctional facilities, transport, water, electricity or waste management. It specifically includes Port Botany, Port Jackson, Rozelle Marshalling Yards (See? Whaditellya?), Glebe Island, White Bay, Darling Harbour, The Rocks, Rhodes Peninsula, Sydney Cricket Ground, Fox Studios, Moore Park, Luna Park, Ballast Point, ADI land at Ryde, Homebush, Ku-ring-gai, Taronga Zoo, Kurnell, Chatswood rail interchange, the Australian Museum and the entire Honeysuckle site in Newcastle. Oh, and any other project in the state exceeding $50 million. You can see why they’re too busy to plan anything.
But surely, you say, there are checks and balances still? Surely there are ecological, heritage and consultation requirements remaining? Well, yes, of course there are. The minister doesn’t have to make such decisions entirely alone. He may select a panel of experts or (even tamer) staff, although he need not heed their recommendations. The panel may – or may not – invite submissions from interested parties. Environmental and heritage assessment must be undertaken – but by the proponent, probably a government agency or ally – and submitted to the Director-General, who must publicly exhibit that assessment for 30 days.
And that’s pretty much it. So if it suddenly seems to be of state significance, somehow, that Luna Park turn a zero-sum by building half-a-dozen clifftop towers, or that Rozelle marshalling yards be flogged for high-rise apartments, or that Aboriginal land in Redfern be turned over to the lifestylers, there is nothing – virtually nothing – to stop it.
The new act contains 18 “musts” and 137 “mays”. This means pretty well all the rules are optional – which, in the development game, is like telling a child not to eat sweets unless it wants to. Should make for good spectator sport. Enjoy – until your teeth fall out.
FOUR PHOTOS: Tantamount to kicking sand in the public’s face … the Government has taken a vice-like grip on planning matters relating to the likes of, from left, The Rocks, Kurnell, the Honeysuckle precinct in Newcastle and Luna Park. Photos: Brendan Esposito, Robert Pearce, Michele Mossop