THE LOWER HUNTER STRATEGY IS GOOD POLICY DESPITE THE COURTS RULING
OPINION PIECE
SYDNEY MORNING HERALD
The Hon Frank Sartor MP
Member for Rockdale
3 September 2009
The Lower Hunter Regional Strategy is good policy, despite this week's intervention of the Land and Environment Court in a planned development at Catherine Hill Bay.
So is using agreements to allow greater development in one place to protect more a sensitive environment somewhere else.
In my three years as planning minister, my decisions were challenged in the courts dozens of times. In most cases, some controversial, they were upheld and my actions vindicated.
Yet because one judge this week took issue with the wording of a non-binding memorandum of understanding between the state government and a developer – one drafted by the Crown Solicitor – some have argued this should colour my reputation and integrity. It should not. I reject these inferences outright.
I find perplexing both Justice David Lloyd's decision and his injudicious language. He inferred a minister's intentions without calling that minister - me - as a witness.
Let the facts speak for themselves.
The agreements have their origin in the strategy's development. The Department of Planning prepared a draft, which allowed for 125,000 dwellings to be built over 25 years. While on public exhibition, compelling submissions were made from a cross-section of the community arguing the target should be lifted. The Cabinet subsequently approved a target of 160,000 dwellings.
The then Minister for the Environment and I agreed the best approach to allow for some of the growth through a development process where private environmentally sensitive land could be transparently dedicated into public ownership. A total of 22,000 additional hectares were earmarked for transfer into either national parks or conservation lands; almost half could come from developers or land owners.
Land swap agreements ahead of development approvals are not unique to NSW, and both the Greiner and Unsworth governments entered into them.
One area where such offsets were considered feasible involved the Coal & Allied and Rosecorp lands around Catherine Hill Bay, the cause of this week's court decision.
The full cabinet adopted the Lower Hunter Regional Strategy which earmarked the areas of potential urban growth for the future. Nonbinding memoranda of understanding were agreed with several land holders and developers, including Rosecorp at Catherine Hill Bay. Up to 300 hectares of environmentally sensitive land could be transferred into public ownership.
The memoranda were public, not secret, and non-binding. They told the public of the likely consequences of any development approvals that might be given.
The final strategy was well-received by the community. The new environmental lands would be a great win for future generations. Good policy? Yes! Land bribes? Certainly not.
Contrary to some assertions, I did not receive legal advice not to proceed at any stage. Nor did I override my department's advice. Overwhelmingly, officials from both the planning and environment departments supported the agreements.
The case is even more perverse because the rezonings at Catherine Hill Bay and Gwandalan were not challenged, but the development approvals were, and were found to be invalid.
This is despite the DAs being considered by a public inquiry chaired by former Director General Gabrielle Kibble. It found them unsatisfactory, and laid out principles for their modification. Subject to further changes, including reduced housing at Gwandalan, the panel recommended approval. This was no red carpet ride for the developer.
After 18 months of assessment, the Department recommended I approve it, which I did. Those approvals involved higher developer levies than the local council could have levied and provided for significant community benefits.
Where is the "bias" in all this? There is none, but the case will have deleterious implications for many government planning decisions.
As the planning minster, I adopted the Sydney Metropolitan Strategy, favouring development in growth centres. Can the Minister deal with growth centre applications without – as befell the Catherine Hill Bay decision this week – an "apprehension of bias"? Is the whole strategy illegal?
If the government announces a new rail line, can the Planning Minister approve that line? Are the regional strategies all invalid because they pre-empt the development process?
None of this is going to help investment in NSW. We need to bring sanity back, and soon. And again, it shows why we need a new Planning Act.
When I was Lord Mayor of Sydney, we replaced the city's footpaths. Many screamed objections. When they were in, no complaints could be heard. Good policy will always transcend the noise, as long as governments hold their nerves.