The controversial powers granted to the NSW Planning Minister under Part 3A of the Environment Planning and Assessment Act were put to the test in the NSW Court of Appeal last week. These powers allow the Minister, Frank Sartor, to intervene in the local council processes of assessment and grant approval for developments deemed "State significant".
The Planning Minister was appealing a Part 3A challenge, headed by activist Jill Walker, a resident of Sandon Point, north of Wollongong. Walker, the Environmental Defender’s Office and local residents disputed the Minister’s approval of a major development involving Stockland and Anglican Retirement Villages (ARV). The Sandon Point case is the first time these powers have been successfully challenged in the Land and Environment Court (LEC).
Stockland and ARV are seeking to develop a site that is subject to flood risk. Their development proposal was approved by Sartor under the Part 3A provisions. In the original case before the LEC, Jill Walker argued that the Minister had failed to consider fully whether the potential impact of increased flooding due to climate change would be compounded at the site of the proposed development. One of the clearly stated objectives of the EPA Act (Part 1 (5)(a)(vii) is to "encourage ecologically sustainable development".
The question for the Court of Appeal last week was whether the Minister must consider ecologically sustainable development (ESD) principles when approving developments. And so I sat there listening to Sartor’s counsel argue that the clause "encourage ecologically sustainable development" was not intended to be "prescriptive", but instead was "general language to guide the decision-maker". I wondered how behaviour which explicitly offended the principles of responsible government and strayed toward abuse of power could possibly be upheld.
When pressed by Jill Walker’s lawyer on why Sartor’s approval for the Sandon Point development took only one day when such a process would usually take up to six weeks, the court was told the Minister may have "dedicated a large slather" of his day to determining the application. Such dedication! I thank Sartor and his representatives for so enlivening the day. They gave me and half the courtroom a day packed with comedy.
In the midst of last year’s State election, the Minister, in an unusual show of humility, decided against appealing another significant LEC decision – the case of Peter Gray and the Anvil Hill mine. In that case, a precedent was established which required new coal mines to take into account climate change considerations.
Now, however, Frank Sartor is exerting himself to defend and protect the wide scope of his autocratic Part 3A powers as he takes on Walker and her supporters in the community.
The Minister seems blissfully unaware that his besieged Government is sinking fast in the opinion polls. You’d think the last thing the NSW Government needed was more bad publicity – especially concerning climate change. Doesn’t Sartor read the papers? A win in the LEC may well secure the Minister’s grip on power, but he would be forced to relinquish it all in an election defeat.
Perhaps someone could point out to Sartor that the Environmental Planning and Assessment Act is, as its name suggests, concerned at least in part with the protection of the environment and planning for future generations. And that this is in fact why the Act was first passed, to protect the environment and encourage community involvement in planning. It’s not the "Development Act", as counsel for the Sandon Point community put it.
Well, such grand notions of protecting the environment and involving the community were notably forgotten by Sartor’s representatives in the Court of Appeal last week. Counsel for the Minister cast them aside in favour of protecting Sartor’s ministerial interests and the profit interests of the big end of town.
A decision on Sartor’s appeal is expected in 3-8 weeks. It will shed some light on the limits of the discretionary powers Part 3A affords the Minister when he’s dealing with major projects.
A win for the Government will give the green light to developers to continue along the path of minimal social, heritage and environmental responsibility. So it remains to be seen just how much the "general principles" of ecologically sustainable development will guide major planning decisions in NSW.
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