Political Infrastructure or Critical Destruction?
On 21 November, 2007, Hunter Water lodged a ‘major’ project application with the Department of Planning for the proposed Tillegra Dam under Part 3A of the Environmental Planning and Assessment (EPA) Act – one year after the Iemma Labor Government’s political announcement put Hunter Water off-guard and their planning documents irrelevant. On 9 January 2009, the NSW Government Minister for Planning gazetted the proposed Tillegra Dam project as a Critical Infrastructure Project – moving it from a categorisation of ‘major infrastructure development’. The only thing critical about this proposal is its political nature.
Where does ‘critical infrastructure’ fit into the 3A planning law process?
Under Part 3A of the Environmental Planning and Assessment Act 1979, the NSW Government will declare some projects to be ‘critical infrastructure’.
When does the Government invoke critical infrastructure?
The NSW Government states that a major project may be deemed critical infrastructure when it is essential to the State for economic, social or environmental reasons.
Why does the Government state that an infrastructure project needs to be deemed critical infrastructure?
The Government will state that it needs to implement a critical infrastructure to:
· ensure the timely and efficient delivery of essential infrastructure projects
· allow the Government and the planning system to rapidly and readily respond
to the changing needs of the State
· provide certainty in the delivery of these projects
· provide for rigorous scrutiny to ensure environmental outcomes are appropriate
· focus on delivering outcomes essential to the NSW community
Do the public’s rights change under ‘critical infrastructure’? YOU BE THE JUDGE!
The NSW Government will say that the environmental assessment process for critical infrastructure projects is the same as for any other major project. The Government will state that a project that is declared to be essential to the State is the subject of a full and thorough environmental assessment by the Director-General. The Government will state that:
· the proponent’s environmental assessment must be publicly exhibited for a minimum of 30 days, and the community is invited to make submissions.
· the proponent is required to respond to submissions and this response is made available on the Department’s website.
· the Director-General also considers submissions and the proponent’s response in preparing the Director-General’s assessment report to the Minister.
Legal sources advise that the major ramifications of the Minister declaring the project to be a ‘Critical Infrastructure Project’ are twofold.
First, the declaration excludes appeals by the proponent or any other objector against any approval (or disapproval) of the project by the Minister to the Land & Environment Court (L & E Court).
And second, third party appeals against the approval (or disapproval) of the project to the L & E Court are excluded unless an appeal is made by or approved by the Minister.
Legal sources ‘feel’ that if the Minister does approve the project, then it is highly unlikely that he/she would approve any appeal being brought by a third party objector to the L & E Court against such an approval.