The Worst Laid Plans


In February last year, NSW Planning Minister Frank Sartor used the supreme powers vested in him under the Environmental Protection and Assessment Act to go over the heads of the Sydney City Council and grant approval for the redevelopment of the former Carlton United Brewery site at Sydney’s Broadway.

The site is one of Australia’s largest urban redevelopments, and in an era of heightened awareness of climate change, you would expect ecologically sustainable development to be foremost in the minds of our elected representatives. Unfortunately this is not so.

When Sartor took over the redevelopment, I was frustrated by what I saw as an abuse of power. And when it was revealed that the plan met only the very basics of ecological sustainability, it dawned on me that a legal challenge was the only way of addressing my concerns.

I approached my local councillor, Chris Harris, an outspoken opponent of the plans who suggested we garner the support of the Environmental Defender’s Office – a government-funded NGO and dedicated team of environmental activists, lobbyists and lawyers. They jumped on board, along with environmental activist and former environmental lawyer, Michael Mobbs, and our lawsuit against the Minister was underway.

The case went to the Land and Environment Court, on the grounds that the Minister failed to take into account in his decision the impact of greenhouse gas emissions. As there is very little Australian law in this area, ours was a test case. We argued for a site that obliged all developers to use best practice green technologies.

Despite losing the lawsuit, the final outcome was favourable. The developers who bought the site from Carlton, it turns out, were very open to green building efficiency. They are striving for as close to 100 per cent carbon neutrality for the site as possible, and they’re hoping to achieve this by using a tri-generation facility – a natural gas-powered fuel alternative for power, heating and cooling – as well as solar-powered lighting and water recycling.

This is a far cry from the vastly unsustainable, climate-polluting plan approved by Minister Sartor back last year. And it’s business as usual down at the Department of Planning.

Sartor’s latest wave of reforms threaten to undermine the advances made in the NSW planning system over the last 30 years, since the introduction of the Environmental Planning and Assessment Act and the Land and Environment Court in 1979.

The current system of judicial review, through which concerned citizens may object to a minister’s decision, lies at the heart of the EPA Act. Maintaining the purpose of the Act and the authority of the Land and Environment Court is in the public interest.

The amendments to the Act attempt to bring into the system a less qualified class of people, who are solely appointed by the Minister, to determine complex legal matters which traditionally lie in the jurisdiction of the Land and Environment Court.

I am critical of introducing these extra layers of bureaucracy. They will make litigation a more burdensome, complicated and costly process for citizens. Those who want to bring an action against a governmental planning decision, in the public interest, will have far less incentive to do so.

Sartor’s reforms work in favour of the developer at the expense of the community, removing the right of citizens to be involved with development applications.

But individuals and groups can still take up the fight against decision-makers through the courts.

The case that I undertook demonstrates the importance of maintaining independence between the courts and the parliament. This independence is paramount to upholding the principles of government accountability and transparency – prerequisites for a workable democratic system.

It also shows how the current system can work for us. How many countries have laws that give citizens the right to sue a government minister, and a legal aid body which provides them the financial backing to do so? Not many. We have this legal recourse at our disposal.

Organisations such as the Legal Aid Commission and the Environmental Defender’s Office are vital for holding ministers accountable, as are the courts, and I would encourage people to use them.

If I can do it, anyone can. In the Aussie vernacular – have a go!

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