What Will The Libs Do About Part 3A?


When NSW communities wake up on March 27 to a Liberal government, they will be expecting change. Labor’s handling of the planning laws has been hugely unpopular yet, as New Matilda reported last month, communities fighting developments across NSW face an unclear future.

Two of the state’s most controversial development applications, at Catherine Hill Bay and Kendall Bay, are now in the final days of a long decision-making process and will be waiting on new NSW Minister for Planning Brad Hazzard’s desk almost as soon as the election is over.

Both developments face strong opposition from local councils and many residents but were taken out of the hands of local communities under the controversial Part 3A of the NSW Planning Act, which gives the Planning Minister sole discretion over any site deemed "state significant".

Hazzard told New Matilda last week that while the Part 3A law is "reprehensible" and decision-making on new residential applications should go back to local communities, he won’t make any decisions "retrospectively". This means the developments at Catherine Hill Bay and Kendall Bay will remain "state significant" and thus subject to ministerial discretion.

The Liberals have said they will totally overhaul the State Environmental Planning Policies. But realistically, that will be a complicated and lengthy task. In the meantime, Part 3A will stay in place and the 29 sites that are currently on public exhibition, and many more that are underway, will be processed under the same section that the Liberals have so vehemently criticised.

Under Part 3A, the Minister appoints a panel that can either be asked to have hearings and make determinations or merely prepare reports as advice to the Minister. Hazzard says he will ask for panel determinations — in contrast to the current NSW Planning Minister, Tony Kelly, who in most cases asked only for advice.

But Greens Legislative Council member and Planning spokesperson David Shoebridge says that processing by panels makes little difference: "The panels are appointed at the whim of the Minister, they are political, they are planners who are plucked at will and can be dismissed at will by the Minister."

Just how a Liberal Government will balance the interests of developers and communities has been an unanswered question for a long time. Hazzard’s decisions on Catherine Hill Bay and Kendall Bay will be closely scrutinised, and New Matilda’s investigation of these two developments shows just how the high stakes are.


Catherine Hill Bay

Rose Group is the developer for both the 600-lot residential development on the headland at Catherine Hill Bay — which is on sensitive coastal conservation land south of Newcastle — and Kendall Bay Marina, a 172-berth commercial marina on a contaminated stretch of the Parramatta River. Rose Group is the company of Bob Rose, who was Chair of the property lobby group Urban Taskforce for six years until 2009, and his sons Stuart and Bryan.

The company is well known for its property developments, especially on old industrial and contaminated land. What is not so well known is that its Catherine Hill Bay company, Coastal Hamlets, has another potential pot of gold under the ground.

Coastal Hamlets has a number of minority directors and shareholders who, along with Stuart Rose, have interests in mining and gas exploration, including at Catherine Hill Bay. In fact, Apollo and Macquarie Energy, in which they also have interests, started drilling for gas on the headland last year.

Despite environmental concerns about coal seam gas drilling, the companies were also granted coal seam gas exploration licences at Gunnedah in NSW and in inner Sydney, at Tempe. (After a recent friendly takeover, Macquarie Energy and Apollo Gas are now part of much bigger coal seam gas company US based Coal Dart Energy.)

The company would have had their Part 3A residential development at Catherine Hill Bay under way long ago but for a setback in 2009 when the NSW Land and Environment Court quashed the former Minister of Planning Frank Sartor’s approval of the subdivision.

The Court ruled that the developer’s earlier transfer of private land at Catherine Hill Bay to public ownership for conservation purposes, in return for approval of the massive development, constituted a "landbribe". As well, electoral funding records showed the Rose Group had donated more than $248,000 to the NSW ALP party since 2002.

Hazzard accused the NSW government, during question time in parliament in 2009, of approving development applications "corruptly and rottenly with the money that has been paid to the Labor Party". He was removed from the session a short time later at the Speaker’s request.

But what is less well known is that the Liberals too have well-established connections with the Rose Group. According to electoral funding records, since 2003, Rose Group and its companies have given more than $75,000 to the NSW Branch of the Liberal Party, including $20,000 in 2005/2006 and $55,000 in 2007/2008.

Bob Rose also had a special role in the Wentworth Foundation, which raised funds for Malcolm Turnbull’s 2007 federal election campaign. With his $55,000 donation, Rose was the highest paying member and the only governor of the "Wentworth Forum", entitling him to host boardroom events, two tables at functions featuring Turnbull, and attendance at an exclusive supporters’ dinner.

Asked if he was aware of these donations when making his accusation of corruption, Hazzard said "it was the government that created Part3A, and the government that accepted large donations".

"The Opposition has not made any decisions under Part 3A, nor will it be making any."

Sue Whyte, president of Catherine Hill Bay Progress Association, says Hazzard’s decision to stick to the Part 3A process is "very disappointing".

"Hazzard could use this as a statement to make his mark, show he is credible and send a strong message to developers," says Whyte. "We need to start from scratch again. Catherine Hill Bay went from being listed second last for development under the draft Lower Hunter Regional Strategy, to having houses built on the cliff head."

Nestled in between the Wallarah National Park and the Munmorah State Conservation Area, Catherine Hill Bay was listed state heritage in July 2010, only the second such town in NSW.

The listing stressed the importance of the iconic seascape and landscape in which the village is set.

But less than a month later, Minister for Planning Tony Kelly overrode restrictions on coastal development, allowing the Rose Group to make new plans for an even larger suburban development that now extends up to the beach.

Sue Whyte says the subdivision plan is an "appalling car park."

"It is an old-style 1970s back to back subdivision, designed to maximise profits for the developer," says Whyte. "Surely our coast deserves better than to be entirely concreted."

Then Planning Minister, Kristina Keneally responded to the court "landbribe" by promising the Catherine Hill Bay development application would be determined after a hearing by a Part 3A Panel, and Kelly had also said there would be a panel hearing.

But as soon the submission process was completed early in February this year, Rose Group quickly filed its response, rejecting nearly all objections including those from the local Lake Macquarie Council.

Sue Whyte says, "Apart from a small change in the location of the shopping precinct none of the issues raised in over 3500 objection submissions have been dealt with satisfactorily".

Kelly then quietly reneged on his promise that there would be a panel hearing that would give the development’s opponents another chance to present their case. Instead he requested advice, setting a short time-frame.

Even local Labor MP Robert Coombs, who wrote to the Minister in January about his concerns about the development, was not told how quickly the process was moving forward. It looked like the fate of Catherine Hill Bay might yet be decided before the state election.

But on March 7, several days after the storm of negative publicity that greeted his decision to exempt the equally controversial inner city $6 billion Barangaroo development from laws relating to contamination, in answer to his handling of the Catherine Hill Bay application, a spokesman for Kelly told New Matilda: "The Minister will be making no more determinations under the Major Projects Legislation (Part 3A) while in caretaker mode".

If the Catherine Hill Bay development is approved, David Shoebridge says the Greens will move in parliament to remove Catherine Hill Bay from the Part 3A process altogether, referring it to a new independently appointed and parliamentary approved panel for an inquiry. He says the same principle will be applied to Barangaroo and the largest residential development in NSW, Huntlee in the Hunter Valley.

"These projects have received statewide condemnation from planners and residents. They were blatantly political and approvals must not be done through Part 3A," says Shoebridge.


Kendall Bay

Tony Kelly’s decision to renege on the government’s promise to refer Catherine Hill Bay for a hearing would have pleased Rose Group’s Bob Rose who, as Chair of the Urban Taskforce, pushed for panel hearings to be abolished under Part 3A.

He wouldn’t have been so happy with Kelly’s decision to refer his other controversial development at Kendall Bay for a hearing. The Rose Group proposal for a huge commercial marina came as a surprise to residents of Breakfast Point, which overlooks the bay and was also developed by Rose. The Kendall Bay hearing took place in February and dealing with the panel report will be one of Hazzard’s first tasks.

Under remediation order by the Environmental Protection Authority (EPA) since 2004, Kendall Bay contains a "significantly elevated" concentration of hydrocarbons above Australian guidelines, some classifiable as carcinogens, and all remnants of the Mortlake Gas Works.

The EPA found that without adequate remediation, "further development of the area would increase the risk of harm".

Rose Group are proposing to remediate part of the toxic area with a "geotextile blanket" covering the polluted seabed so the movement of propellers does not disturb the sediment. Engineers who made submissions at the panel hearing for the residents expressed concerns that the blanket would not be sufficiently secure.

The highly organised Breakfast Point residents are fuming. They say the proposal fails to satisfy the EPA remediation requirements and are also concerned about noise and traffic.

Given their concern about boat noise, residents will not be impressed to learn that Stuart Rose, one of Bob Rose’s two sons, has turned his speedboat hobby into a business. He owns Midnight Boats, the Australian distributor for superpowerful speed-boat manufacturer Midnight Express. Bob and Bryan Rose are also directors of this company.

Rose Group declined to be interviewed for this article. A company’s PR spokesperson Chris Ford, in answer to a written question about whether they had consulted with Hazzard about his post-election approach, replied, "Rose Group’s understanding of the planning policies of the coalition has been gathered from statements in media and public forums".

The Greens, who have been campaigning for a clean up of the Kendall Bay contamination for several years, say they will not accept an approval for Kendall Bay Marina because of continuing concerns about unsatisfactory remediation.

The local Liberal candidate, Burwood Mayor John Sidoti, who has a strong chance of winning the local seat, has also individually campaigned against the marina. He is hoping that the panel will reject the marina. If it doesn’t, it will be tricky. Hazzard’s position is that he will accept the decisions of the Part 3A panels.

The Greens’ David Shoebridge isn’t holding his breath for an overhaul of the NSW planning laws. He says the Coalition’s position is pure "grandstanding" and amounts to "business as usual for at least half of the term".

"It will be two years of continuing Part 3A approvals," Shoebridge told New Matilda. "During the first half of their term there will be little change to the pro-developer planning laws."



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