Technocratic Decision-Making and the Loss of Community Participation Rights: Part 3A of the Environmental Planning and Assessment Act 1979
by Ian Ratcliff, Jessica Wood and Sue Higginson 
In New South Wales, the terms of the Environmental Planning and Assessment Act 1979 have encouraged involvement in planning decisions through public participation rights with respect to the original decision-making process, merits appeal rights for objectors in relation to 'designated development', opportunities to be heard when a developer appeals against refusal and open standing for any person to seek an order from the specialist Land and Environment Court to remedy or restrain a breach of the Act. This legislation recognises that the community can and should have a significant voice in planning decisions.
Increasingly, however, the NSW Government is moving away from the recognition that local communities have relevant expertise and interests in planning outcomes; that decision makers sometimes get it wrong; and that preservation of the environment sometimes outweighs the importance of economic growth. The introduction of Part 3A by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 reflects the philosophy that "Government knows best" and the idea that planning decisions are technical matters that do not gain from substantial community involvement.
In effect, Part 3A of the Environmental Planning and Assessment Act 1979 ('the Act') dramatically reduces the involvement of the community in the original decision making process and seeks to reduce any risk of concerned individuals or groups delaying or preventing significant development, by limiting the grounds on which, or the circumstances in which, they can seek merits or judicial review. Instead, the Minister for Planning and Director General, Department of Planning maintain the power to make all key decisions regarding significant development, with advice from 'expert panels', limited input from other key agencies and little opportunity for effective criticism where the bureaucracy 'gets it wrong'.
Classification of major projects
The assessment process under Part 3A of the Act will apply to the most significant types of development. These are also generally the types of development that will have the greatest impact on the environment. Development can be declared as a project to which Part 3A applies in two circumstances:
To capture most significant types of development, the Government amended the State Environmental Planning Policy (State Significant Development) 2005 and renamed it the SEPP (Major Projects) 2005. Under this SEPP, development that is (in the Minister's opinion) of a kind described in Schedules 1-3 and/or 5 will generally be treated as development to which Part 3A applies (cl 6).
The new approval process is characterised by a departure from the principles that the community would expect to find in a good decision-making process: that is, consistency, transparency, accountability and certainty. The loss of principle from the decision-making process itself limits the extent to which the community can become involved in that process.
Finding out about the proposal
The new provisions potentially limit how much the community can discover about the proposed development.
Firstly, the need for advertisement of Part 3A projects in the local area, rather than their appearance on the Department of Planning's website, is limited to circumstances where the owner's consent is not required (cl 8F). 
Under the Environmental Planning and Assessment Regulation 2000 ('the Regulation'), the information and documents that must accompany an application for development consent are clearly set out (cl.50 and Sch 1). However, these requirements may not apply to applications for approval under Part 3A. Rather, the proponent only has to include a description of the project and "any other matter required by the Director General" (s.75E).
There is neither further explanation in the Act or Regulation of what such requirements might be, nor guidelines that cover this issue. Members of the community can therefore have no expectation that certain information will be found in the application, or that documents addressing particular concerns will be attached. This can leave members of the community 'out in the cold' and result in increasing suspicion and antipathy towards major development and Government.
The capacity for the community to give meaningful input is further weakened where the Minister authorises or requires the proponent to submit a concept plan for approval. Concept plans are new to NSW planning law and, as the name suggests, premised on the basis that "a detailed description of the project is not required".
Concept plans only need to outline the scope of the project and development options, set out any proposal for staged implementation and provide any further details required by the Director General. While the environmental assessment requirements apply to the concept plan itself, once approved it is up to the Minister to determine what further environmental assessment might be required for particular aspects of the project (s.75P).
The problem for the community can be that the concept plan is itself so broadly drawn and leaves so much detail for later in the process that only broad comments (that consequently hold little weight) can be made. Moreover, it is the larger, more complex proposals that are likely to be the subject of a concept plan at the first stage.
An example of this is the recently proposed desalination plant at Kurnell where the environmental assessment dismissed potential impacts with broad statements that measures would be developed to minimise impacts. Other than raising concerns that the yet to be developed measures might not have this effect, such assessments leave little room for meaningful community input.
Setting the agenda: defining what impacts the proposal should address
In a similar vein, the expectations of what will form part of any environmental assessment disappear under Part 3A. The provisions of the Regulation pertaining to Parts 4 and 5 of the Act set out clearly the matters that must be addressed in an environmental impact statement (or statement of environmental effects). This allows the community to prepare accurate information about the impact on the local environment that can be referred to at the submission stage. Early preparation is particularly important for the types of significant, often complex, developments that are subject to the requirement for an environmental impact statement.
However, under Part 3A, the consistency of what will be required has been removed. The Director General now has largely unfettered discretion with respect to the environmental assessment process. It is the Director General who prepares the environmental assessment requirements for the proponent (s.75F(2)). Section 75F does require the Director General to 'have regard to' any Ministerial guidelines that have been published on this topic. The Director General must also consult with 'relevant public authorities' and 'have regard to' the need for the environmental assessment requirements to assess key issues raised by those authorities. Unsurprisingly, there is no formal mechanism for the community to propose that particular issues should be included at this stage.
Despite these vague obligations, the discretion of the Director General is almost unfettered in this regard: There is no obligation on the Minister to publish guidelines; when public authorities will be considered 'relevant' is not set out in the legislation; and the failure of the Director General to consult with the public authorities or have regard to these issues will not be treated as a procedural error that might invalidate an approval (s.75X(5)).
The limited impact of community involvement: the effect of submissions
The Director General will notify the proponent of the environmental assessment requirements and the proponent will then conduct the necessary environmental assessment. Again, it is the Director General who determines the adequacy of the environmental assessment and decides whether to require the submission of a revised assessment. The community will only have an opportunity to raise their concerns after the environmental assessment has been 'accepted' by the Director General who will then make the assessment publicly available for at least 30 days, during which any person or public authority may make a written submission (s.75H).
Given that the Director General has already concluded that the environmental assessment is adequate by this stage, it is questionable how much impact any submissions will have. The evidence for this will be the extent to which the Director General requires proponents to respond to the issues raised or requires a preferred project report that outlines proposed changes to minimise environmental impacts, or a revised statement of commitments (s,75H(6)).
The submissions or a summary of submissions will be attached to the Director General's environmental assessment report which provides the information on which the Minister will make a decision to approve or disapprove the carrying out of the project (ss.75I, 75J, cl 8B(d)). However, it is unrealistic to expect that the Minister will place more weight on community submissions than the Director General, given that the Minister will be guided by the Director General's report when making the decision to approve or disapprove the project.
Technocratic decision making
The move towards in-house governmental, technocratic decision-making which sidelines the significance of local community input is equally evident in the Minister's ability to constitute a panel of experts or officers to assess particular aspects of a project.
There are no criteria for the appointment of 'experts' to a panel, excepting that they are not to include officers having regulatory functions in connection with the project. The panel of officers will simply be made up from nominees of the CEOs of the public authorities that the Minister nominates to constitute the panel.
There is discretion for such a panel to receive or hear submissions but no specific requirement to do so (S.75G(4)). So the panel can report back after looking at generalist, paper-based evidence but presumably without reference to local conditions or knowledge, if it chooses.
Significance of the assessment
The capacity for the local community to influence the final outcome of major development becomes even more important when it is recognised that Part 3A projects are exempted from the need to obtain many of the authorisations required under other legislation (s.75U). These projects will therefore be able to effectively ignore such matters as local heritage, Aboriginal objects and places and controls on native vegetation, to the extent that no conditions are imposed dealing with these matters.
These exemptions indicate the emphasis of the NSW Government on ensuring that major infrastructure and other development occurs over and above the preservation or enhancement of the NSW environment. Indeed, even where authorisations or licences are still required (such as environment protection licences), s.75V ensures that they cannot be refused and must be substantially consistent with the approval, notwithstanding that this might permit considerable pollution, for example. Proper assessment of these issues relies on effective inter-agency protocols regarding consultation during the assessment process.
Appeal rights for objectors
Part 3A does continue, generally speaking, to permit merits appeal rights for objectors with respect to development that would amount to designated development if it was not being dealt with under Part 3A (s.75L). The time limit for such an appeal is 28 days from notice of the determination. Likewise, if the proponent appeals against a refusal, the Minister is to give notice of that appeal to each objector who may then, within 28 days, apply to the Land and Environment Court to be heard as if they were a party to the appeal (s.75K(3)).
However, these appeal rights are subject to a number of exceptions. No such appeal rights will apply if:
Where a concept plan or an expert report is concerned, the Act does not prevent an objector seeking judicial review of the decision. However, in keeping with the vague, discretionary nature of the Part 3A decision-making process, the Act reproduces the constraint on procedural grounds for review that previously applied to State significant development. Section 75X(5) states that:
It is clear from this analysis that the greater the potential environmental impact of a proposal, the fewer rights of involvement the community has, either through the decision-making process, or through legal remedies where environmentally damaging proposals are approved.
This trend reaches its high point with the concept of 'critical infrastructure projects'. Projects may be declared critical infrastructure projects if they are of a category which the Minister considers "essential for the State for economic, environmental or social reasons".
Because these projects are viewed as essential, the Government wants them to go ahead in some form or other, despite any objections. Effectively, submissions are limited to the form in which they will be approved, rather than whether they will be approved. Naturally, the scale and impact of these proposals are often likely to be contentious in at least the local area, if not State-wide. The scale of opposition to the Kurnell desalination plant that is declared as a critical infrastructure project is a case in point.
In these circumstances, Part 3A attempts to remove both appeal and judicial review rights through what is effectively a privative clause. Section 75T attempts to prevent the use of the open standing provisions of the Environmental Planning and Assessment Act 1979, the Protection of the Environment Operations Act 1997 and the general jurisdiction of the Land and Environment Court in relation to planning and environmental laws. Proceedings can only be taken in these circumstances with the approval of the Minister. The likelihood of such approval being granted would appear slim, especially where it is in respect of the Minister's decision.
Section 75T extends to attempts to remedy or restrain breaches of the Act in respect of a critical infrastructure project (including its declaration as either a project to which Part 3A applies or a critical infrastructure project); the enforcement of conditions of approval; and attempts to remedy or restrain breaches of other Acts, where some form of authorisation had to be obtained (such as an environment protection licence).
The removal of certainty, consistency, and accountability from the planning process with respect to major projects is unlikely to result in better decisions. Part 3A inherently admits that there will be controversy surrounding many of these developments and then sidelines the objectors, rather than properly engaging with them. There has been a move towards a discretionary, technocratic form of decision making that places little value on local knowledge or concerns.
The limited capacity for members of the community, or even other environmental agencies, to have their voice heard and the reduced rights to seek justice in the Land and Environment Court also suggest that the NSW Government considers that development ranks ahead of the environment, whether that development is sustainable or not.