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planning 11

Pub: Sydney Morning Herald

Pubdate: 06-Dec-2006

Edition: First

Section: News and Features

Subsection: Opinion

Page: 13

Wordcount: 834

Two victories for the environment turn up the heat on political leaders


Hannibal defeated the Romans at Cannae by centring himself, against huge odds and at great personal risk, in his small garrison of Gauls and Spaniards, rather than on hill-top horseback. It’s the kind of leadership we’ll need in the forthcoming Battle of Climate Change, but in politics, where courage now equals stupidity, it’s a big ask.

Instead, what leadership we have is coming from the courts, with two recent cases, state and federal, promising comfort and joy on the environmental front. The High Court passed power to the feds, then the NSW Land and Environment Court delivered a landmark defence of the public interest. Both should have the states quaking.

On green issues, centralism could deliver genuine leadership, applied unflinchingly in the long-term interests of nation and planet. It could see this vast continent husbanded as a single intricate ecosystem, with roads and airports, land releases and wind farms located accordingly. It could end the ceaseless blame-shifting and finger-pointing that passes for state-commonwealth relations and concentrate our meagre political talent in a single pool.

Such leadership would require abstraction, even altruism, enabling decision-makers to act as if neither they nor their mates were personally involved. And that’s positively un-Australian.

At state level, meanwhile, the Land and Environment Court supported the student activist Peter Gray and his novice pro bono silk in their battle against NSW’s ever more Goliath-esque Planning Minister. The proposal was for an open-cut coalmine at Anvil Hill, near Muswellbrook, submitted under Part 3A of the much-scarred Environmental Planning and Assessment Act (1979). Gray argued that the state should consider the climate-change effects of not just extracting but burning the coal. The court agreed.

For the court, as well as Gray, this was little short of heroic. The Land and Environment Court is traditionally the poor cousin of courts. It doesn’t get to earth-shatter often. But Justice Nicola Pain’s judgement that ministers must consider the public interest – including global climate change – in their decisions may change that. “There are three reasons,” she said, “why the minister … must take into account the public interest when operating under Pt 3A.”

First, she said, the minister promised Parliament last year “that Part 3A of the Environmental Planning and Assessment Act … provides better outcomes for the community and the environment without unreasonable cost to the proponent”.

Second, because the projects in question are “major infrastructure or projects of state or regional planning significance”. And third, because the minister is required under the constitution to act “for the good management of the public affairs of NSW”. This gives the Government a duty of care towards us and opens it to all sorts of potential action for failure to do so.

Which is why the Government will appeal. And why parallels are drawn with California’s climate-change action against leading car makers. Commentators point to early anti-tobacco litigation, blazing the classic defendant trajectory from denial through deception to defeat.

Back in NSW, the implications are still resonating. The original act (1979) was relatively transparent but slowly thickened with age, as legislation does. Backyard additions would wait months or years before being plastered with perhaps hundreds of conditions of consent.

Last year, in desperation, the Government drafted Part 3A. But instead of letting the small stuff out the bottom for as-of-right approval, it pushed the biggest projects out the top for ministerial fast-tracking, removing them from public scrutiny and putting enormous pressure on the minister. Previously, Anvil Hill would have been subject to rigorous environmental standards. Under Part 3A, and the extra loopholes whipped through Parliament in October, all standards are discretionary.

Beneath the mine’s 3700 bush-clad hectares sit 150 million tonnes of coal. Extraction will damage more than 2200 hectares and produce 167,574 tonnes of carbon dioxide a year. That’s the proponent’s own assessment.

The question for the court was whether the minister should have required the proponent, Centennial Hunter, to evaluate the climate-change effect of the 27 million tonnes of carbon dioxide produced each year when the coal is burnt as fuel, although 60 per cent of this will be outside Australia. Has “think globally act locally” become a duty of care?

Our Prime Minister thinks not, habitually arguing that Australia’s global-warming contribution is so small we may as well go on doing it. Katie Brassil, for Centennial Hunter, agrees: “Anvil Hill will contribute less than 0.1 per cent of global greenhouse gas emissions, globally.” But is this, in fact, so small? Even 0.1 per cent of the Stern review’s estimated $9.1 trillion cost of climate change, gives $9.1 billion. From just one mine.

So the Upper Hunter can send its blessings to the court. Might need to, in view of the dam at Tillegra, approved as a climate-change measure by Parliament in the same pre-election rush as the planning loopholes. Then, if that doesn’t scare ’em, Howard has a nice big nuclear reactor poised for Port Stephens. That’ll show them grape growers.


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