AGL’s Dalton Power Project (DPP) was assessed under this discredited, disgraced and repealed piece of legislation. Now 6 years since that repeal, the Modification Application we are currently confronted with is still being assessed under the ‘Transitional Part 3A’ arrangements. The DPP remains a ‘Part 3A Transitional Critical Infrastructure’ Project.
A significant problem with Part 3A Critical Infrastructure projects is that the decisions made throughout the assessment process, and indeed the final determination, are made by an act of Ministerial discretion. There are no rights of review with respect to those decisions.
This extract from the Environmental Defenders Office document explains some of the issues:
EDO : Part 3A Projects (now repealed)
Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) was repealed in 2011. However, the Part 3A system for major project assessment still applies to many project applications that were submitted before the repeal, as well as to modifications for projects that were initially approved under Part 3A.
Critical infrastructure projects
If a project has been declared as a Part 3A project, the Minister can make an additional declaration that the project is also a ‘critical infrastructure project’ if the Minister is of the opinion that the project is essential for the State for economic, environmental or social reasons.
No appeal against critical infrastructure projects
In relation to appeal rights, the effect of a project being declared as critical infrastructure is to:
- exclude all merit appeals (Class 1) (by either the proponent or by objectors) against any decision regarding of the project, and
- exclude anyone from taking judicial review proceedings (Class 4) in the Land and Environment Court to challenge the declaration, to remedy or restrain a breach of the EPA Act in relation to the way the decision was made, unless the proceedings are brought, or approved by, the Planning Minister.
Exemption from other environmental laws
Once a critical infrastructure project has been declared, there is very little that another public authority or the public can do to ensure that it complies with environmental laws.
Where critical infrastructure is concerned, only the Planning Minister or the Director-General of Planning can give an administrative order relating to the enforcement of the EP&A Act or the Part 3A planning approval.
Critical infrastructure projects are also exempt from the usual range of administrative orders that can be used by public authorities to enforce other environmental laws. For example, interim protection orders and stop work orders to protect threatened species, and environment protection notices to reduce pollution, cannot be issued against a critical infrastructure project.
The EP&A Act also excludes anyone from taking enforcement proceedings in the Land and Environment Court (Class 4 proceedings) to enforce the conditions of a critical infrastructure approval, or to remedy or restrain a breach of the EPA Act or any other environmental law in relation to the project, unless the proceedings are brought or approved by the Planning Minister.
The ICAC report into The Exercise of Ministerial Discretion under Part 3A identifies the potential for corruption and the realisation of unfair outcomes that Part 3A presents.
Clover Moore also provides an explanation of these issues in this address in support of the repeal of Part 3A in 2011.
Part 3A Transitional Arrangements
Part 3A allows “Modification” Applications to be lodged to modify the project or the consent conditions attached to it. The Part 3A Transitional provisions, which are now 6 years old, ensure that the modification provisions still apply to the DPP. AGL have lodged a “Modification” Application under s.75W for a 2-year extension to the lapse date of their conditional project approval. The conditional approval otherwise lapses on 19 July 2017.
As Brad Hazzard stated in the motion to introduce the Part 3A Repeal Bill in 2011, the Transitional provisions were intended to be an interim measure:
“In that sense the bill I introduce today is an interim, but necessary, measure to rebuild confidence in a new planning system for New South Wales—a planning system based on the public interest, not private interests; a planning system that is transparent, where planning rules are certain and decisions are taken on merit and in a timely way.“
In January this year, a Media Release from Planning Minister Rob Stokes announced “proposed amendments to the Environmental Planning and Assessment Act 1979 “. The “proposed changes include leveling the playing field for the assessment of major projects by ending transitional arrangements under Labor’s controversial Part 3A development assessment which will prevent the misuse of modifications.”