Huntlee: Why NSW planning laws need to change.

Opinion piece from Newcastle Herald 29 June 2011.  James Ryan is a Cessnock Greens councillor and a member of the Sweetwater Action Group.

THE battle for Huntlee is at a fascinating stage. For the second time in 20 months the Land and Environment Court has been asked to rule on the validity of NSW’s largest single residential development of 7500 lots.

The three-day court hearing ended on last Friday. The developer and the community will have to hold their breath until the judgment is delivered.

One of the interesting aspects of this legal battle is what wasn’t argued in court.

The relevant law is structured so that only limited aspects of development approvals can be challenged on their merits. Most aspects are restricted to what is called ”judicial review” which concerns itself with whether the correct procedure was followed.

We can’t ask the court to review what we think is a bad decision by the Minister.

Many people will be aware of the history of Huntlee. It was evaluated by government planners in 2005 as being the least-suitable location in the Hunter Valley for large-scale development. It is home to a critically endangered plant found nowhere else in the world. The original developer made large donations to the NSW Labor Party before selling the land to other develoment companies. Huntlee was included in the Lower Hunter Regional Strategy without the public having a chance to comment.

In support of Huntlee it is said it will create jobs, provide affordable housing and result in an improvement in the environment.

But here are some issues that couldn’t be discussed in court.

About half the area designated for housing and commercial development has not been surveyed for Aboriginal heritage. This is despite the Department of Planning requiring this to be done and despite the area being known for having a rich Aboriginal history.

It is not known just how contaminated parts of the site are. The developer has estimated half a million tonnes of coal chitter are present from past mining activity. These chitter heaps are gradually leaching acid into the waterways. However, one consultant has said there could be substantially more.

The developer makes much about providing 5600 hectares of land offsets in return for developing a site which will have a footprint of 900hectares. This sounds like a good deal. However I compare it to trading a handful of diamonds for a bucket of sand. There might be more sand but it is not worth as much as the diamonds.

There has not been a single attempt to have a suitably qualified independent expert assess the mostly far-flung mountainous ”offset land” to judge whether it actually compensates for the habitat which will be lost. However we do know that almost 800 hectares of the offset lands are State Forests, some of which are still required for logging.

So the government has rezoned land for a private development company and allowed that company to count land that the government (and therefore the public) already own as its offset.

Despite the seeming lack of commonsense which surrounds the Huntlee proposal we can’t question these issues in court – essentially the law says the Planning Minister has the power to make the decision as long as the developer has provided a report.

The planning law in NSW desparately needs to be changed. Local communities have to be able to challenge decisions on their merits. If ministers were aware that a decision which lacks commonsense could be challenged, they would be motivated to take far more care in deciding approvals.

Second, we must move away from the situation where development companies select and pay for consultants to prepare reports which (naturally) support their development. The law must be changed to allow the government to appoint neutral experts from an accredited pool who would be paid for by a levy on the developer (equivalent to what they would pay to engage their own consultant).

These neutral consultants would then be free to give a professional opinion without worrying where their next commission would come from.

These changes would result in development decisions that were more informed and of a higher quality. We would still have development, but our goal must be to have development that is not harmful to the environment, leaving the world in just as good a condition for our children as it was when we were children.

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