Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill

ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT (INFRASTRUCTURE AND OTHER PLANNING REFORM) BILL

Second Reading

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [2.33 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

I am pleased to introduce the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005.

The wellbeing of our economy depends on business being able to work with certainty, a minimum of risk, low transaction costs, and appropriate levels of regulation. This bill demonstrates the Government's determination to take decisive action to achieve these objectives.

By establishing greater certainty in the assessment of projects of State significance and major infrastructure projects, the bill further assists in the Government's desire to afford opportunities for the private sector to participate in the delivery of our infrastructure programs.

There is no doubt that this bill dramatically improves the climate in which to do business in this State. The bill implements important elements of this Government's planning reform program—a program which is overhauling our planning system and cutting red tape at all levels, whilst continuing to improve the high standards of environmental assessment and community participation that have been the hallmark of planning legislation in this State for almost 30 years.

The bill introduces new mechanisms which will ensure that the Government delivers quickly and efficiently on its infrastructure programs-projects for roads and transport, schools, hospital upgrades, and water and energy projects are obvious examples.
The bill will introduce a number of important changes. A single assessment and approval system for major development and infrastructure projects will replace approval processes currently scattered throughout several pieces of legislation.

The bill will also improve the co-ordination of major strategic projects as well as ensure that the State focuses properly only on those matters which are genuinely of State or regional significance.

In that sense, this bill re-establishes the duality of the Environmental Planning and Assessment Act by ensuring the appropriate level of assessment is applied to each matter considered under the Act and, in particular, by ensuring that there is proper delineation between those matters which are properly dealt with by the State and those which are properly dealt with by local government.

For matters of State significance or major projects, the new single assessment process will strengthen the rigour, transparency and independence of the process of assessment, providing higher levels of up-front certainty for the proponent, the community and other stakeholders.

The bill will cut red tape. The bill will reduce time and reduce cost and complexity in the assessment of infrastructure projects, projects of State significance and critical infrastructure projects.

Together with the new State Environmental Planning Policy (State Significant Development) 2005, which was gazetted last Wednesday, the provisions contained in the bill enable the Minister to determine strategic sites, projects or programs of State significance and resolve issues associated with them decisively, transparently and expeditiously.

These reforms not only are vital to the delivery of major infrastructure projects and to the economy of New South Wales but also underpin the Government's ability to implement strategic initiatives such as the Metropolitan Strategy.

As part of that implementation objective, the bill introduces further legislative changes to support the necessary planning reforms to streamline the statutory planning system by reducing the number of planning instruments and ensuring those that remain are more consistent in their form and content, especially as they relate to local environmental plans.

Importantly the bill comes in advance of the recommendations in the Prime Minister's Infrastructure Taskforce for the establishment of a "one stop shop" approach—where there is a single point of contact for project facilitations and approvals of major infrastructure—to be established in each State with a single Minister responsible for issuing all necessary State approvals.

The bill introduces a new, simpler process for assessing major developments and infrastructure projects without compromising environmental outcomes. While the new assessment process will be managed more efficiently to reduce delays and costs, all existing environmental safeguards remain in place.

These reforms have been developed from long practical experience. The new regime of environmental, social and economic assessment of major projects proposed in Part 3A of the Bill has been built on the 25 years of environmental assessment practice by the Department of Infrastructure Planning & Natural Resources and its predecessors under the EP&A Act.

In these circumstances, the Bill provides New South Wales with a significant one time opportunity to build a one-stop, outcome focussed and value adding assessment regime that can direct and target the right levels of environmental assessment to specific projects. The new environmental assessment procedures will address the real social, economic, and environmental impacts that arise from specific proposals, not just be a compendium of information.

By having one integrated assessment process, and by concentrating the environmental assessment procedures and requirements in the guidelines, the new environmental assessment procedures will reduce time, cost and complexity in the assessment of major projects. The bill ensures the credibility of environmental assessment and community participation, and that environmental outcomes are not compromised.

To add to the environmental rigour in the assessment process, the assessment will be carried out under guidelines and protocols to be developed by a new Chief Executive Officers Forum. That forum will be made up of the directors-general of the major regulatory agencies.

The guidelines and protocols will set the rules for assessment methodology, consultation requirements and performance levels, and will ensure that high environmental outcomes are achieved.

For the first time, the Bill provides that the guidelines will be issued by the Minister, not the Director-General. In another first, they will be gazetted to ensure transparency and they can only be adopted after consultation with the Minister for the Environment where they relate to matters concerning threatened species and aboriginal cultural heritage.

The level of assessment will be tailored to the complexity and likely level of significance of the impacts of the project in question. Let there be no mistake—this bill will ensure that the impact of proposals on critical habitat, threatened species, aboriginal cultural heritage will be appropriately assessed under the new provisions.

I want to take this opportunity to emphasise that consultation will continue to be an essential part of the assessment process and in fact will now occur earlier in the process. The Bill provides that environmental assessment of all projects must be notified for a minimum of 30 days, with submissions invited from government agencies, councils and the community.

Importantly, these reforms provide additional opportunities for community participation. With new hearing and assessment panels, community consultation at the concept plan stage, making proponents respond directly to community concerns, and requiring proponents to provide a statement of environmental and social commitments for every project—this Bill goes further with more practical opportunities for community participation than ever before.
The Bill makes it clear that State Environmental Planning Policies must be considered when making a determination about a project—including a critical infrastructure project.

Before commencing the new Part 3A the government will ensure that community consultation and the environmental assessment is enhanced by amending the new State Significant Development SEPP to expressly provide that there is an appropriate consideration of economic, social and environmental impacts of proposals, the suitability of the site, a report on community submissions and other community consultations and other public interest matters before determinations are made.

The government will ensure that proponents of major projects deliver on their commitments to communities on environmental outcomes. This Bill strengthens the compliance and enforcement tools available under the Act to ensure environmental safeguards are delivered on the ground.

I will now address the elements of the bill in turn.

Schedule 1 deals with infrastructure and other projects amendments. Schedule 1 of the bill inserts a new part into the Environmental Planning and Assessment Act which will deals with projects, programs or sites which are determined by the Minister. The bill provides up-front certainty for major projects through the introduction of new concept approvals; removes the need for up to 15 different approvals and licences from nine separate pieces of legislation, replacing them with one assessment and approval process; removes the need for concurrences for major development; and abolishes the stop-the-clock provisions that currently add significantly to assessment times.

For projects of major worth to the economy, we are compelling our government agencies to follow processes which will provide certainty at the front end of a proposal in order to reduce investment risk. Projects which will be considered major are projects such as the Pacific Highway in its entirety, plans like the freight strategy, and sites like the Royal North Shore Hospital or the Westmead campus. This new legislation will deliver those types of projects faster and with more certainty. For private sector projects or public-private partnership type projects, that increased certainty translates into real cost savings and bankable security.

A new part for major infrastructure and development is also proposed. Currently, the same set of rules applies to a house extension as to, for example, a $300-million commercial, residential and retail complex. This one-size-fits-all approach has resulted in delays and has significantly added to costs for major projects. The existing single-issue approach to managing particular aspects of the environment has also led to additional layers of approvals and unnecessary constraints on development and significant added costs. It leads to potentially poorer environmental outcomes. The bill will deliver a more interrelated system, focused on delivering major projects together with sound environmental and community outcomes.

There is a new process for project assessment under a new part of the Act. The bill provides for a new part 3A of the Environmental Planning and Assessment Act which will replace two different assessment and approval processes for major private and public projects. The new part will apply to the following major projects: development currently identified as State significant development under the State environmental planning policy; major State Government infrastructure projects, for example, projects which normally require an environmental impact statement under part 5 of the Environmental Planning and Assessment Act; and other projects, plans or programs which are "declared" by the Minister because of their economic, social or environmental planning significance to the State or region.

To add to the environmental rigour in the assessment process, the assessment will be carried out under guidelines and protocols to be developed by a new Chief Executive Officers Forum. That forum will be made up of the directors-general of the major regulatory agencies. Those guidelines and protocols will set the rules for assessment methodology, consultation requirements and performance levels, and will ensure that high environmental outcomes are achieved. The level of assessment will be tailored to the complexity and likely level of significance of the impacts of the project in question. The guidelines and protocols will be published and gazetted by the Minister and, in relation to legislation administered by the Minister for the Environment, following consultation with that Minister.

For each project, the Director-General of the Department of Infrastructure, Planning and Natural Resources will issue specific requirements for the assessment of the project, including the level of assessment, assessment methodology, any performance criteria, and consultation requirements, based on the guidelines. One of the requirements will include the preparation of a statement of commitments by the proponent. This is an important new initiative as it makes the proponent state clearly and up front to regulators and the community how it intends to manage the project to minimise the impacts on the environment. Prior to exhibiting the environmental assessment, the director-general must be satisfied that the assessment meets the specified requirements. The director-general will seek advice from relevant agencies in making this decision. If the assessment is not adequate, additional information must be provided prior to the exhibition of the project.

This initiative ensures that the community, not just the regulators, have access to all relevant information important in the assessment of the project. There will be no stop-the-clock opportunities for delays caused by requests from agencies for additional information later in the process.

Consultation will continue to be an essential part of the assessment process. The environmental assessment will be exhibited for a minimum of 30 days, with submissions invited from government agencies, councils and the community. Following exhibition, the submissions-or a summary of the issues in submissions-will be sent to the proponent, with a request to respond to the issues raised. The proponent may modify the project and the statement of commitments to minimise impacts on the environment. If significant modifications occur, a preferred project report, including a modified statement of commitments, will be made public. This initiative increases the importance of community submissions, as the proponent will need to respond to issues raised. For the proponent, this initiative provides flexibility by allowing modifications to the project to minimise impacts without having to go through the full re-exhibition process.

The director-general then prepares an assessment report with recommendations for the Minister on the determination of the project. The director-general will seek advice from other relevant Government agencies in finalising the report and recommendations. The Minister will then make his determination public and the bill contains requirements to make all key documents public.

Appeal rights will generally continue to apply as if the project was being assessed under either part 4 or part 5 as is relevant. The proponent will continue to have the right of appeal against the Minister's decision. Third party merit appeals will continue to apply if the project is listed in schedule 3 of the Environmental Planning and Assessment Regulation, unless there has been a commission of inquiry, an expert panel hearing or a concept approval. Judicial review provisions will continue to apply under section 123 of the Act.

Integrated approvals have also been considered. The new part 3A provides for integrated approvals that will consolidate 15 approvals under nine Acts into a single assessment process and approval given under the Environmental Planning and Assessment Act. The assessment and approvals will be actively co-ordinated by the Department of Infrastructure, Planning and Natural Resources. The provisions relating to the assessment and management of impacts on critical habitats, and threatened species, populations and ecological communities and their habitats under the Fisheries Management Act, Threatened Species Conservation Act and the National Parks and Wildlife Act will be integrated into the assessment under this new part.

In addition, the environmental protection provisions under eight different Acts will be integrated into one approval. Those provisions relate to impacts on waterways, riparian zones and coastal processes, including from the use of water, water management works, dredging and aquifer interference under the Rivers and Foreshores Improvement Act 1948, the Water Management Act 2000 and the Coastal Protection Act 1979; impacts on aquatic ecology, including from dredging, obstructions in waterways or disturbance of mangroves under the Fisheries Management Act 1994; impacts on terrestrial ecology under the Native Vegetation Act 2003 and the National Parks and Wildlife Act 1974; bushfire risks under the Rural Fires Act 1997; impacts on Aboriginal items or places under the National Parks and Wildlife Act 1974; and impacts on heritage values, including in relation to excavation under the Heritage Act 1979.

Projects may still require a licence for ongoing operations under the Protection of the Environment Operations Act, an approval under the Roads Act, an aquaculture permit, mining or petroleum production lease or approval under the Mine Subsidence Compensation Act as is relevant. In these circumstances, there will be a joint assessment with the agencies contributing to the one assessment. Once the Minister has determined the project, any subsequent approval must be substantially consistent with the Minister's approval. This requirement will also apply in relation to any appeal over those authorisations.

The chief executive officers forum will ensure that appropriate assessment and approval guidelines and protocols are agreed to and are consistently applied. These guidelines, together with initiatives like biodiversity mapping and Aboriginal heritage landscape assessments, will better inform proponents and improve the quality of environmental assessments. Concept approvals are also included. For the first time, this bill will introduce "concept approvals" into the planning system for major projects.

Concept approvals will have statutory force and are designed to provide up-front certainty for those projects or programs which are either long term or complex, or where overarching strategies require statutory endorsement so their component parts can proceed with bankable security. Concept approvals will also allow for a program of projects, such as upgrading of the Pacific Highway, or an infrastructure plan like the Freight Strategy, to be assessed in a transparent manner to provide an early sign-off of the various components of the project or the plan. Concept approvals will increase certainty up front and reduce environmental and investment risks and costs. They will allow the community to comment earlier in the development process, and for community views to be taken into consideration in the refinement of the projects.

Let me now turn to critical infrastructure. Again let me make it clear—infrastructure will only be declared critical where its speedy completion is considered essential to the social, economic or environmental welfare of the State.

Declarations about critical infrastructure will only be made following appropriate considerations. It is not a measure that the government will invoke lightly. The government will use these provisions responsibly—for the well being of communities in New South Wales.

The types of projects that might be declared to be critical infrastructure, are those that are essential to the State—for example—if Sydney's water crisis continues - the desalination plant could be declared to be critical infrastructure because of its importance in providing drinking water to the people of Sydney, if dam levels continue to fall.

Before declaring any project to be critical infrastructure we will look at the project on a case-by-case basis. There will be a thorough risk assessment looking at financial, economic, social and environmental risk.

• Firstly we will look at the financial and economic risks to the state of delivering or not delivering the project

• Secondly, we need to look at what are the community implications of delivering or not delivering the project in a timely manner-the extent of social dislocation—the extent of hardship or cost on the community if the project is not delivered quickly.

• Thirdly, we need to consider the environmental risks of streamlining the delivering of the project—what are the benefits, what are the dis-benefits—how will the environment gain from the timely delivery of the project.

The Bill provides a clear process for making these declarations. A declaration can only be made either by an order by the Minister which is gazetted and made publicly available, or by State Environmental Planning Policy made by the Governor, which is also gazetted and made publicly available.

Again, let me make it clear. Once declared, critical infrastructure projects will be the subject of an appropriate environmental assessment. The environmental assessment will take place in accordance with the guidelines provided for in the Bill. It is these guidelines that will ensure all environmental impacts are appropriately assessed—not just threatened species, critical habitat or aboriginal cultural heritage. The same considerations that apply to other major projects will apply to decisions about whether to approve critical infrastructure.

After ensuring only appropriate projects are declared critical infrastructure, and ensuring that they are subject to an appropriate environmental assessment, this government makes this commitment to the communities of New South Wales - we will make sure that these critical infrastructure projects are built.

There have been some calls to make regulations to specify in more detail what types of projects might be declared critical and how they might be implemented.

There are sufficient powers currently available under the EP&A Act to achieve this. However, as an initial step, the government is satisfied the gazetted guidelines will meet these purposes. The Minister for Infrastructure and Planning has undertaken during the debate in the Legislative Assembly to monitor the operation of the critical infrastructure provisions over the next 12 months. If a need to move from guidelines to regulations is demonstrated after that period, the Minister will make those arrangements then.

With the new compliance and enforcement powers in the Bill we will also be able make sure that critical infrastructure projects, as well as the other projects approved under these new provisions, are built and operated in accordance with their conditions of approval.

The bill provides there will be no appeals against decisions on critical infrastructure and there will be no third party legal challenges under any environmental and planning statutes against those decisions. The bill will ensure that that the construction and operation of approved critical infrastructure projects cannot be stopped or delayed by other Government agencies or local councils.

There will be independent hearings and assessment panels. To underpin these reforms, the bill will include another important initiative to strengthen the integrated assessment process. The bill will make legislative provision for independent hearings and assessment panels to provide additional expertise to resolve technical issues in a timely manner and strengthen the scientific basis for decision making. Panels will be appointed by the Minister who will specify the make-up of the panel and the scope of the matters it is to investigate. The Minister may direct the panel to be involved in any phase of the assessment process.

A panel may be composed of independent technical experts, which is an expert panel, or a panel of government agency officers. The panel may hold hearings to assist in clarifying issues with stakeholders and to-ensure that community views are appropriately considered. The panel is advisory and reports to the Minister with its findings, which must be taken into consideration by the director-general when preparing the assessment report and recommendations for the Minister. The bill makes provisions for regulations in relation to time frames, landowners consent provisions, exhibition and notification provisions, and assessment fees. The bill includes transitional provisions for projects already being assessed under existing provisions of the Act.

Importantly, these reforms will provide additional opportunities for the community to comment. All major development will be advertised for community input and proponents will be required to respond to issues raised in submissions and, if appropriate, to modify the project. The new panels may also provide an independent mechanism for the community to raise issues and have them considered. The bill includes a requirement to make all assessment documents public.

New part 3A of the Environmental Planning and Assessment Act will strengthen environmental outcomes and provide for earlier consideration of environmental constraints. These changes will provide a more systematic approach to resolving environmental issues, replacing the current single issue considerations. Earlier consideration of environmental constraints will allow earlier and more effective influence over project design and location decisions. This provides better outcomes for the community and the environment without unreasonable cost to the proponent.

In summary, new part 3A introduced into the Environmental Planning and Assessment Act by this bill will provide a more appropriate regime for the assessment and approval of major investment in New South Wales. It will provide up-front certainty for complex projects by introducing concept approvals with better opportunity for improved service delivery through public-private partnerships. Red tape is cut by replacing single issue assessment processes and approvals with one integrated process delivering better environmental outcomes. Rigour, transparency and independence are strengthened through the introduction of independent hearings and assessment panels, and enforcement provisions are strengthened to ensure the desired outcomes are delivered on the ground.

Allied to this bill is a new State significant environmental planning policy, which has already been gazetted, and will be one of the ways to access these new provisions. It will focus the Minister's consent role on significant projects and sites, enable the Minister to tailor planning provisions to suit particular sites of State significance and allow the Minister to amend the State environmental planning policy to add new sites. Under the new State environmental planning policy, decisions on local development will be devolved to local government. That will allow better use of State resources and speed up the approval process. The Minister for Infrastructure and Planning has always had the power to approve projects. However, over the past 25 years more than 85 different planning instruments, directions and declarations have been made for this purpose.

This new State environmental planning policy will provide a more systematic approach for nominating projects and programs as well as for sites. The State environmental planning policy will continue to nominate as State significant development of major mines and industry, infrastructure and coastal development. Other developments have been added to the list. Construction projects worth $50 million or more will now be included where the Minister considers the project necessary to deliver State or regional planning objectives.

The $50 million construction project criteria will not apply everywhere but only in selected strategically important locations. The Minister might, for example, declare a $50 million residential project to be of State significance where the project would assist the implementation the Metropolitan Strategy by helping to locate people close to transport hubs. However, construction projects that are subject to the City of Sydney Act will continue to be determined by the Central City Planning Committee.

Major government infrastructure projects have also been added to the list to ensure that the State Government's infrastructure program can be delivered in an efficient manner. These include, for example, major hospitals, schools, TAFEs, university and medical research facilities, prisons and electricity generating plants. Once the bill is passed and commenced, State significant developments will be assessed as projects in the new part. Schedule 1 to the bill will remove all provisions relating to State significant development from part 4 of the Act. Similarly, the bill will remove all the provisions in part 5 of the Act relating to division 4 assessments as these will also be handled in the new part 3A. The bill and regulations also provide for the transition to the new part for all such projects.

A significant number of projects will be returned to local councils for approval. For example, over the last four years, over 700 urban and coastal development projects valued at over $2.3 billion were determined at ministerial level. However, over 600 of those projects had a combined value at less than $130 million. Under this package of reforms—the Bill and the State Environmental Planning Policy (State Significant Development)—most of these types of projects will be determined by local councils.

The bill also implements other elements of the planning reforms announced by the Government late last year. The Government is preparing new regional strategies in priority regions to align development with population growth and infrastructure needs and to protect our high-value natural resources. These strategies will provide the context for modernising the statutory plans in those regions. The amendments in schedule 2 to the bill will support those reforms to simplify and modernise statutory land use planning. The amendments do not involve a radical rewrite of part 3 of the Act and are limited to changes necessary for delivering the major elements of the reform program. The amendments are the outcome of several relevant task force reviews in 2004, involving experts and stakeholder representatives. The Government places on record its appreciation for their involvement over that period. Further consultation on the detail of these changes has also occurred with the development industry, local government, the legal profession and environmental groups.

The bill provides the critical drivers for the modernisation of local environmental plans [LEPs]. Our objective is to require every local council to bring in one LEP for their area, which means that over the next five years we will have moved from 5,500 planning instruments to 152. There is no reason there should be 5,500 local planning instruments around the State. Spot zonings and outdated orders going back prior to 1979 all add to the confusion and complexity of the system. The other goal of the planning reforms is to achieve greater standardisation and consistency of LEPs. The bill provides for standard instruments to be prepared for environmental planning instruments—namely, State environmental planning policies, regional environmental plans and LEPs. It is intended that this provision would initially be used for LEPs.

The Government has exhibited the working draft standard LEP template that seeks to standardise definitions, zones and key provisions of local environmental plans. As a result of the exhibition and stakeholder input, especially from local government and industry bodies, the amended standard LEP will be re-exhibited in the near future for further comment. We believe that the standard LEP will substantially reduce the time it takes to prepare new LEPs by reducing the involvement of lawyers in the process, offering another time saving. The standard LEP will also revise the zoning categories from the present 3,100 down to around 25 and the 1,700 definitions down to fewer than 300. The bill includes amendments to streamline and enhance the process for making LEPs. These changes will ensure that local councils prepare new LEPs in accordance with the standard instrument.

The director general will be obliged to ensure that the plan is consistent with the standard LEP before the draft plan is exhibited, and when making a report to the Minister for the approval of the local environmental plan. A further major element of the reform agenda is ensuring that new LEPs implement the State's strategic plans. The bill will enable us to ensure that these strategies are implemented through planning controls in LEPs. It does this by enhancing the existing power of the Minister to issue directions to local councils under section 117. The bill provides new powers for the Minister to ensure that the modernisation of LEPs occurs in a reasonable time. Section 33B provides for the creation of a staged repeal program for existing LEPs, which will require local councils to review and prepare new LEPs within a specified time period.

The staged repeal program may specify dates for the repeal of existing LEPs and key milestones for the preparation of new plans. The staged repeal program may also allow for the postponement of the repeal of an instrument in justifiable circumstances, and can also be used to establish requirements for the periodic review of LEPs. Local councils will be identified as requiring a new LEP within two, three or five years. The Department of Infrastructure, Planning and Natural Resources recently wrote to all general managers of local councils in New South Wales providing initial advice to them of their priority status. It is intended that shortly after the bill is passed the list will be used to establish the staged repeal program. The draft priority list is also being used to inform the provision of the next round of financial assistance to local councils from the Planning Reform Fund.

The staged repeal program is essential to achieve the modernisation of LEPs within a reasonable time frame. For the first time in recent history the Government is offering local councils substantial financial assistance to assist them to prepare new plans. Around $5.8 million of the Planning Reform Fund has already been granted to 57 councils for work associated with modernising their LEPs, and further rounds of assistance will be provided. Transitional provisions have also been included to assist in the smooth implementation of these requirements for new LEPs. A number of local councils are already well advanced in preparing new LEPs, and have invested significant effort and resources into this process. Transitional provisions are included to allow councils in these circumstances to proceed with making a LEP that does not comply with the standard LEP. Generally, these councils will be required to transpose their plan into the complying format within five years.

The bill contains amendments to provisions regarding development control plans [DCPs]. These changes are aimed at rationalising the number of DCPs, clarifying their relationship to environmental planning instruments and enabling an owner of land to prepare a DCP instead of a master plan. The bill aims to achieve a reduction in the number of DCPs by generally allowing one only to apply to a site. This means that in future a DCP may cover the whole local government area, a precinct or a site. The bill also clarifies that a development control plan may not duplicate the provisions of an environmental planning instrument, be inconsistent with an instrument or contain provisions that prevent compliance with an instrument. The bill provides for development control plans to replace master plans. Master plans have become another layer in the planning system. To simplify the system, in the future master planning will be implemented through development control plans and staged development approvals. The bill delivers this by allowing an environmental planning instrument to require that a development control plan should be prepared by, or on behalf of, an owner of land before development may occur.

The provisions also allow for land pooling, by providing for an environmental planning instrument to specify that a number of landowners within a defined area must jointly prepare a development control plan before development can be carried out. This provision is likely to assist in the timely delivery of urban land releases as part of the Metropolitan Development Program. The provisions will prevent planning authorities from stopping development by refusing to make a development control plan. The provision allows developers to submit a development application where council refuses a development control plan or delays the making of the development control plan by more than 60 days. The usual appeal rights will be available in relation to the development application. The provisions also empower the regulations to extend the 60-day time limit where the owner fails to provide requested additional information.

Transitional provisions have been included to ensure that the new requirements apply only to new development control plans. Local councils will not be required to remake all DCPs within a set time, although it is expected that many councils will, in practice, review their DCPs at the same time as preparing their new local environment plan. A transitional provision also deems all existing master plans to be DCPs, and deems all existing provisions that require a master plan to require a DCP.

Schedule 3 to the bill provides for the existing provisions in the Act for staged approvals to be augmented with the introduction of procedures for the lodgment, assessment and approval of staged development applications. This will enable developers to stage complex developments with clear procedures for obtaining approvals for the development. Section 83B provides that a staged development application may set out an overview of the proposal across the whole site, with the details of each separate component of the development to be subjected to subsequent development applications. Alternatively, a first stage development application may include both the concept for the entire site and a detailed proposal for the first component of the development.

Only the applicant can request that a staged development application be lodged. Where a development control plan is required for a site by an environmental planning instrument, section 83C allows a staged development application to be prepared and approved as an alternative. A staged development application is subject to the provisions of integrated approvals and designated development, and requirements prescribed by the regulations. While any consent on a staged development application remains in force, a determination on any further development applications for that site cannot be inconsistent with the staged approval. It should be noted that already more than 1,100 of the 3,000 concurrences and referrals in LEPs have been removed, and permits under the Rivers and Foreshores Improvement Act have been reduced by 60 per cent. This will assist in streamlining the approvals of local development with the removal of unnecessary red tape. The bill also amends the following Acts to allow for regulations to be made that specify persons, activities or projects which could be exempted from the need for an approval under those Acts: the Fisheries Management Act 1994, the Mine Subsidence Compensation Act 19610 and the Rural Fires Act. Schedule 4 to the bill limits the duty on determining authorities to consider section 111 where the environmental implications have already been considered by another determining authority. The provisions also provide that a determining authority can be exempted from this duty where routine activities—for example, the maintenance of infrastructure—are being undertaken in accordance with a code approved by the Minister.

Amendments to the bill expand the role of the nominated determining authority from co-ordinating the exhibition of the environmental impact statement, to include the co-ordination of the preparation and furnishing of the assessment report that forms the basis of a determination. This will ensure a better integration of all environmental matters relating to the activities and an upfront resolution of issues. The bill also provides for fishery management strategies to continue to be assessed under part 5, including in circumstances when the Minister for Infrastructure and Planning is the approval authority. In those circumstances, a regulation will set out the appropriate procedures.

The enforcement provisions in the Act need updating and strengthening to ensure environmental safeguards are delivered on the ground. Schedule 5 to the bill makes a new range of investigative, compliance and enforcement powers available to the Department of Infrastructure, Planning and Natural Resources [DIPNR] to ensure projects approved under the new part are carried out in accordance with their conditions of approval. In particular, the bill strengthens the monitoring, compliance and audit powers, and provides for offences where the monitoring or audit reporting has been inadequate, false or misleading. The bill gives DIPNR more powers to stop work on a project if there is a danger of any environmental harm. To ensure these new powers still allow for a more streamlined assessment process, the bill amends other legislation that requires permits and approvals for development.

The bill lists mining leases and petroleum production leases as integrated approvals under section 91 of Environmental Planning and Assessment Act. As a result, the Department of Primary Industries will be an integrated approval authority and will actively participate in the assessment of mining and petroleum projects under the integrated approval provisions. The bill also amends the Mining Act 1992 and the Petroleum (Onshore) Act 1991 to remove provisions which suspend the operation of the Environmental Planning and Assessment Act. The repeal of section 74 of the Mining Act makes it clear that the environmental impacts of proposals such as expansions of mines into new areas must be assessed and determined. This is essential as these proposals may have significant impacts, for example, on river systems that are important for Sydney's drinking water supply.

Section 65 (3) of the Mining Act will also be repealed. This makes it clear that any conditions the Minister might impose on a mine to protect the community and the environment from its impacts must be complied with. It is important that the mining industry be treated like any other industry in New South Wales. The reforms achieve that and will ensure that new mines and expansions of existing mines are properly assessed and that the mining industry complies with the undertakings it gave to the community when it applied for a consent. Similar provisions in the Petroleum Act will also be amended or revoked. It is intended that exemptions would be progressively introduced for minor and low impact development.

Development that is addressed by environmental planning instruments may be satisfactorily assessed by local councils under the Environmental Planning and Assessment Act. It is important to note that the Government will not allow the repeal of section 74 to prevent existing mining operations continuing under their existing approvals.
The Government undertakes to amend the State significant development State environmental planning policy [SEPP] before the mining-related provisions of the bill are commenced to ensure that planning instruments cannot prohibit mining and petroleum production activities carried out under existing leases. The SEPP will also provide appropriate transitional provisions for all existing mines. Regulations can also be made under the bill to ensure a smooth transition to the new regime for existing mines.

The Government has moved decisively with its planning reform agenda to cut red tape and provide the regulatory conditions to support a strong economy, jobs growth, and both public and private sector investment. The competitiveness of New South Wales to attract sustainable infrastructure and investment opportunities depends on having an efficient and clear development approval system underpinned by an up-to-date planning regime. This suite of initiatives—the State significant development SEPP, the new part of the Act providing for the efficient assessment and approval of major development, and the reforms to the planning regime—continues our drive to cut red tape and deliver on our infrastructure commitments. This bill is a very competent piece of legislation, which will underpin the State's economy for generations to come.

I commend the bill to the House.

The Hon. PATRICIA FORSYTHE [2.33 p.m.]: In my 14 years as a member of this place and my three years prior to that as chief of staff to the Minister for Planning I have never been involved with planning legislation as radical and controversial as this and on which there has been absolutely no consultation. The bill is based on a fundamentally false premise: that planning legislation is holding back infrastructure development in New South Wales. That is wrong. The Carr Labor Government's lack of will and failure to commit resources is what is holding back our infrastructure development. The Government's action and inaction, not the Environmental Planning and Assessment Act, is the cause.

Under the Environmental Planning and Assessment Act and other legislation New South Wales was able to complete—by meeting critical time frames and cost projections, efficiently and effectively—what could arguably be described as the single most important infrastructure development in this State, the Sydney Olympics. New South Wales was able to deliver the 2000 Sydney Olympics not despite that Act but because of it. The difference between what the Government did at the time of the Olympics and its approach to this bill is that the Government had a will to get the Olympics completed. The Carr Government, and before it the Coalition Government, committed resources to that. I repeat: the Government's action, not the State's planning legislation, is holding back development in this State.

I said that this is in many ways the most radical and controversial planning bill I have dealt with in the past 17 years. The fact that the Government has been so silent about it only highlights how significantly controversial it is. There has been no consultation or discussion at any level about the bill. Let me set the scene for it. I will begin by describing the process by which the Environmental Planning and Assessment Act and its cognate bills were introduced in this House on 21 November 1979, when the Hon. Paul Landa said:

On 17th April 1979 the Government introduced in another place five bills representing the result of the Government's comprehensive review of existing legislation relating to town and country planning and environmental assessment. Following the introduction of the bills in April this year—

as I said, this was in November—

I forwarded copies of all of the bills, together with explanatory brochures and detailed explanatory notes, to every local council and to numerous industry, community and professional associations interested in, and likely to be affected by, the bills. In April and May, every local council in the State was visited and given an initial briefing on the measures. Subsequently in June, every local council was afforded the opportunity to attend regional meetings to have detailed questions on the measures answered and further explanation given prior to the preparation of submissions by councils. Additionally, the Local Government Association of New South Wales and the Shires Association of New South Wales conducted discussion groups on their own initiative.

Seminars were organized by the New South Wales Planning and Environment Commission with numerous bodies such as the New South Wales division of the Royal Australian Planning Institute, the New South Wales Chapter of the Royal Australian Institute of Architects, the Institute of Valuers, the Local Government Planners Association, the Institution of Surveyors, the Institution of Engineers, the Building Owners and Managers Association, the Real Estate Institute, the Urban Development Institute of Australia, the Sydney Chamber of Commerce, the Confederation of Australian Industries, the Law Society of New South Wales, the Law Council of Australia, the Nature Conservation Council of New South Wales, and the National Trust.

He went on to say:

The statistics of this public consultation process are impressive. A total of 138 meetings were conducted by the Planning and Environment Commission. Of these 65 were in country areas and 73 were in the city. The meetings involved 89 with councils and 49 with non-council groups.

Written submissions were invited from a wide section of the community. The Hon. Paul Landa continued:

A total of 180 written submissions were received. Of these 61 were from councils; 18 were from professional institutes; 13 from the building and development industry and commerce; 18 from governmental and semi-governmental agencies; 4 from conservation organizations; 6 from consultative bodies and trade unions; and 60 from members of the public. The public consultation participation programme undertaken by the commission was the most extensive and intensive process of public involvement ever undertaken in New South Wales.

In 1979 the Government thought it prudent when making the radical changes that underpinned the environmental planning and assessment legislation to undertake months of consultation. Even in 1997 the Minister for Infrastructure and Planning, the then Minister for Urban Affairs and Planning, when speaking about the process that underpinned that Environmental Planning and Assessment Amendment Bill, said:

We based these reforms on the submissions received from business, community, environmental and professional groups in response to two 1996 green papers entitled "Towards an Integrated Land Use, Planning and Natural Resource Approvals Policy for NSW" and "Regulatory Innovation—Regulation for Results". That work formed the basis of the white paper called "Integrated Development Assessment—White Paper and Exposure Draft Bill". In the white paper the reforms were grouped into three main categories.

The Minister outlined the categories and continued:

The white paper was released on 12 February 1997—

I note that he delivered this speech in October 1997—

An extensive consultation process to explain and get feedback on the proposals was embarked upon. Over 30 information seminars were held at 17 locations across the State from 24 February 1997 to 20 March 1997. Almost 1,800 people, representing State and local government, industry and community, environmental and professional groups attended the seminars. The seminars were advertised in the press, including the Sydney Morning Herald and the Daily Telegraph; in major local and regional papers and ethnic newspapers; and local radio and regional television stations were informed. Over 400 information packages were sent to State agencies, councils, interest groups, known interested individuals and the media. Over 20 media interviews were conducted. Over 7,000 copies of the white paper were distributed. The white paper was made available on the Internet, and a free-call telephone line was set up and advertised. Public comment was invited until mid-April 1997. The white paper attracted great interest. Over 560 submissions were received.

What did the Minister say in his second reading speech about the process of consultation on this bill? I will tell you what he said—and it will not take me long! He said precisely nothing, because, to the best of our determination, there has been no consultation. Certainly there has been no consultation with local government. I had the opportunity—I will not use the word "privilege"—to hear the Premier address the Shires Association conference on Monday morning. The Minister for Rural Affairs also addressed the conference. Did either of them take the opportunity to inform the shires represented at the conference that they were about to be significantly dudded by this legislation? Let me say at the outset that there are aspects of this legislation that are fundamentally important and about which the Opposition has no concerns. There are, however, some aspects that greatly concern us. In his second reading speech the Minister said this about local government:

The bill will ensure that the construction and operation of approved critical infrastructure projects cannot be stopped or delayed by other government agencies or local councils.

Effectively this legislation takes the community of New South Wales out of the planning process if the Minister determines that a project is critical.

Mr Ian Cohen: What are you going to do about it?

The Hon. PATRICIA FORSYTHE: We will have an opportunity during the debate to discuss those issues. Did the Premier, the Minister for Rural Affairs or the Minister for Infrastructure and Planning take the opportunity to share their views on planning with the Shires Association at its conference this week? Maybe they did, but not in a public forum. By contrast, when I was leading for the Opposition on the 1997 amending bill, I, together with the then shadow Minister, the Hon. Ron Phillips, participated in a series of meetings with Minister Knowles and members of his department. We debated the provisions in the bill, we agreed there was a need to move forward, and we discussed how a good planning system was important to the whole community.

For the first time ever on a planning bill, I have had no contact from the Minister's office. In his speech in reply the Minister will tell the House that he gave a briefing to the Leader of the Opposition on Monday. But that is different from the approach the Minister has previously taken on this type of legislation. The Minister is not prepared to consult with members of this House who deal with legislation. He is not prepared to consult with key groups in the community. One has to question the nature of the Government's actions. The Minister began his second reading speech by describing a vision. He said:
The wellbeing of our economy depends on business being able to work with certainty, a minimum of risk, low transaction costs, and appropriate levels of regulation.

The Minister is absolutely correct in that assessment. That is a position the Opposition could claim as its policy. Two months ago the Leader of the Opposition, in an outstanding address to the business community of Sydney, set out a plan and direction for infrastructure development in New South Wales. We want New South Wales to be a State in which people feel confident to do business and invest significant amounts of capital. But more than that, we want its people to have adequate and appropriate infrastructure. The next sentence of the Minister's second reading speech is extraordinary. He said:

This bill demonstrates the Government's determination to take decisive action to achieve these objectives.

This Government has been in office for 10 years, yet it now claims it needs to take decisive action. If the Government genuinely had a vision for New South Wales, it would have made appropriate changes and adjustments to the Act years ago. It does not have a vision; it has never had a vision. The Government now faces criticism in the media, such as the significant campaign in the Sydney Morning Herald last week about crumbling infrastructure, and from significant interest groups. It has suddenly woken up to the fact that it needs to take so-called decisive action.

The Government knows that the Opposition, responsible as it is, is always prepared to work with it to achieve sensible legislation that shows at least a modicum of consultation with relevant groups in the community. That has not occurred in this case. The so-called decisive action the Government is going to take is about 10 years too late. If it believed that a better framework had to be in place, it should have done so a decade ago. As I said at the commencement of my speech, the Government had no difficulty in delivering the Sydney Olympics, arguably the single most important infrastructure development this State has ever seen, in a critically short period. And in doing so it met all criteria, such as efficiency, certainty, and appropriate levels of regulation. It was able to achieve that; it did not need that legislation.

It might be worth having a look at what the Minister said in his second reading speech, because it is perhaps through his words that I can best express some of the concerns of the Opposition. This bill will prove to be the Government's Trojan horse, because when it is passed the Opposition will want to know where the infrastructure proposals are, what the Government proposes to do to fix the problems with infrastructure in New South Wales and what it proposes to do in three months, six months or one year. The budget reveals very little by way of appropriate resource allocation to underpin the direction that the Government has claimed for this bill. In the second paragraph of his second reading speech the Minister stated:

The bill implements important elements of the Government's planning reform program—a program which is overhauling our planning system and cutting red tape at all levels, whilst continuing to improve the high standards of environmental assessment and community participation that has been the hallmark of planning legislation in this State for almost 30 years.

The problem with that statement is that the Minister is asking us to take much of the legislation on trust. We do not have before us all the documents we should to allow us to really underpin the process. It is interesting to note that only 10 days ago the Government was able to gazette the State environmental planning policy [SEPP] State significant development, which lists significant developments across the State that the Government was able to define as "State significant". The maps, the sites and the descriptions all appear in the gazette.

Some aspects of State significant developments will be of interest to communities. I am sure the people of Ku-ring-gai, for example, will be interested to discover that included in the SEPP is the housing strategy relating to multi-unit housing in Ku-ring-gai. It would appear that the possibility of multi-unit development in Ku-ring-gai has moved in importance from a development worthy of consideration at a regional level to that of "State significance". It is all there in the SEPP. The Government has been able to define it, describe it and have it gazetted. The Government should be able to apply that precedent to the whole of the legislation we are dealing with today. If the Government can adequately describe developments of State significance in a SEPP, it ought to be able to at least enlighten the House about projects of critical significance.

Major projects are described as developments that need a certain level of transparency and rigour, and high levels of up-front certainty for the proponent, the community and the stakeholders. Local councils may well be interested to be advised about projects that will be included now or in the future. As I said, the Government was able to gazette the SEPP. If it knows what is of State significance, it ought to be able to tell us what it deems to be of critical significance. The Minister's rationale for much of this legislation is that we will be able to deliver certain projects faster and with more certainty—such as private sector projects or public-private partnership projects—and that certainty translates into real cost savings and bankable security. In that regard the Minister referred to the Royal North Shore Hospital, Westmead campus and the Pacific Highway in its entirety.
The Opposition does not object to that philosophy; it even acknowledges the Government's ability to identify certain major projects. Of interest to the Opposition is the Government's record of dealing with projects. How many projects have been delayed or have run over budget? According to the budget papers presented two weeks ago, 171 infrastructure projects were delayed or ran over budget. The cost of these blowouts stands at $515 million. Any analysis of those projects would show that the delays were not caused by some elements of the environmental planning and assessment legislation but rather because of the Government's incompetence and its failure to make decisions.

In his second reading speech the Minister referred to hospitals and, later, to a list of development projects that may well be able to be dealt with more efficiently. He referred to major government infrastructure projects that have been added to the list in order that the Government's infrastructure program can be delivered in an efficient manner—major hospitals, schools, TAFEs, university and medical research facilities, prisons and electricity generating plants.

Recently some members of this House were involved in an inquiry into the future development of Mona Vale hospital. What emerged from that inquiry were details of the process of consultation the Government had undertaken—or, rather, the process that ensured that it did not have to make a decision. The Government has held that project out to the community, but it has allocated no resources to it except the $2 million plus that was spent on the so-called consultation process. The delay has not been because of planning problems or the will of the local community; it has been caused by the Government's inaction and its failure to allocate resources. The Government has referred to delays in significant developments. In that regard it must examine its own resource allocation process.

As much as anything else, the Government's incompetence has delayed the approval of appropriate infrastructure for New South Wales. The State's infrastructure is crumbling and the Government has had 10 years to do something about it. After 10 years in office it has introduced a bill it claims is about decisive action. But it simply does not come up to the mark because the Government has not at any other time demonstrated a will for decisive action. Had the Government done so, we may well have had a bill that was the subject of appropriate consultation.

So far as the Opposition is aware, the only consultation on this legislation has been with the business community groups that in the past couple of days received a phone call from the Minister for Infrastructure and Planning urging them to tell the Opposition why it should support the legislation. When we asked the representatives of those groups what the bill was about, they could not tell us because they did not know. They had merely been strong-armed by the Minister about why the Opposition needed to be given a clear message. The business community ought to educate itself about some aspects of this legislation. It would be horrified by one section of it to which I will return later.

I wish to detail some of the key elements of the bill, the purpose of which is to address major infrastructure reform. Our support for the bill is to the extent that it simplifies some of the New South Wales planning instruments, particularly in relation to local environmental plans. In that regard the Government has effectively picked up on policies and concepts the Opposition has been talking about for the past couple of years. With regard to New South Wales having an opportunity to deal better with infrastructure, the Opposition has been saying we need to move forward. But this legislation, which refers to critical infrastructure, will move New South Wales to a level that is far from the principles that have always enshrined planning legislation in this State. That is why there has always been recognition of duality, a tiered system, and a role for the State and local government.

Clearly, local government and third parties will now be dealt out of certain aspects of this legislation. Yet the Government already has at its disposal a very significant planning tool in the State environmental planning policy it gazetted only last week. The Government has had more than 10 years to plan for the State's future infrastructure. As I said, the Government has certainly not been held back by planning legislation. This is reactive legislation from a reactive government. I do not know how long the legislation has been in the planning stage. The actions of the Sydney Morning Herald over the past couple of weeks certainly brought to the community's attention the Carr Government's complete lack of vision for the future infrastructure needs of New South Wales.

The Hon. Catherine Cusack: That's too polite.

The Hon. PATRICIA FORSYTHE: That is too polite? I am sure my colleague the Hon. Catherine Cusack will make a few comments about that later. That is a recent campaign. However, it is not a new message. I well recall that two years ago Engineers Australia released a significant document outlining its views about the State's infrastructure. I also recall attending a dinner hosted by the Infrastructure Council of New South Wales about three years ago at which the single message to those attending was the lack of commitment on the part of the Carr Government to develop infrastructure in New South Wales. That was a consequence of the former Treasurer, the former Leader of the Government in this House, having, in his mind, a very clear, simple policy: clear the debt first and worry about the infrastructure at another time.

The former Treasurer was very proud of the position he took with debt reduction, but it came at great cost to the people of New South Wales because around us the State's infrastructure is crumbling. As evidence of that, one need only look at what the shadow Minister for Transport was able to identify with regard to the rail infrastructure at Circular Quay, or the lack of water infrastructure for New South Wales, or the fact that the Government has no real answers to the crisis of 91 per cent of the State being in drought.

The Government talks about, for example, establishing a desalination plant. I suspect that, given the present climate and water levels in Sydney, a desalination plant would receive strong support notwithstanding its potential energy use. But did the Government do anything about providing for such infrastructure in the budget? Did it set aside resources to implement such infrastructure to deal with the fact that Sydney relies on Warragamba Dam, which was planned and built to service a city about half the size of present-day Sydney? The Government has been ignoring such issues for so long that one treats with cynicism a statement from it that it wants to take decisive action.

In 2002 the Premier outlined 87 major metropolitan projects as part of his so-called strategic plan. It is not because of planning legislation that those projects have not reached the level of the Premier's vision; it is because the Government cannot get its act together and will not allocate appropriate resources when it comes to these sorts of projects. The brake may be off; we have a new Treasurer. But that the economic climate is now such that, I suspect, the Government will find some other excuses. The Government says that it has been, in its words, "dudded" as a result of the Grants Commission proposal. Yet, it says that if it got agreement from the Premiers of all the other Labor States it would be able to take a proposal to the Federal Government to alter the distribution of resources by the Grants Commission. That is well known, it is recorded in Hansard, and it has been an accepted position for a long time. They are the issues that are preventing the Government from doing anything—not inadequate resources from the Federal Government. This Government has not been prepared to make tough decisions for change. It has excuses, but it does not have the will to allocate resources to the projects it needs to implement.

Two years ago Engineers Australia declared that New South Wales infrastructure was at a crisis point. In its report card on New South Wales infrastructure Engineers Australia gave the following scores: State roads, C-plus; local roads, C-minus; waste water, C-minus; stormwater, D; and rail, D. But what has the Government done about it? If it believes that the way forward is to deny local communities a voice and to bring legislation that it has failed to consult on, and if it believes that it is capable of giving to the business community, whether in Sydney, elsewhere in Australia, or overseas, an image that New South Wales is the place to do business, it has lost the plot. It is the Government's inaction that has held back development, not planning legislation in New South Wales.

Some aspects of the bill are important. We recognise the need for developments that fall into the category of State significant. We recognise and accept that SEPPs can give the Minister the appropriate approvals. What we have difficulty with is the new concept of critical infrastructure, which will be treated quite differently from any other infrastructure that has been dealt with in New South Wales. The Minister said:

Critical infrastructure is introduced in this bill. As another new provision, the bill will also allow the Minister to declare projects as critical infrastructure. For example, if the drought continues, infrastructure work to implement the Metropolitan Water Plan will need to be accelerated. Under the present planning regime, some of those components would normally require lengthy environmental assessments.

We are the first to agree that there needs to be action. We will be pleased to work with the Government for a satisfactory outcome with regards water infrastructure for New South Wales. It is difficult to know, however, just what the Government has in mind when it talks about critical infrastructure. We will certainly move an amendment in Committee to deal further with that issue.

The Coalition acknowledges the move towards the rationalisation of local environmental plans [LEPs], a step that has been acknowledged for some time. Indeed, it is, and has been for some time, part of Coalition policy. We acknowledge that the Government has put out for discussion with local government bodies a draft standard LEP template. It is sensible to reduce the number of zoning categories from more than 3,000 to around 25, and to streamline the number of definitions within LEPs from 1,700 to about 300. We acknowledge that the principle of only one LEP across a local government area should allow movement towards a better and more modernised system of planning in New South Wales.

We acknowledge that many councils are getting on with the process of preparing new LEPs. Significantly, over the next five years the number of LEPs will drop from more than 5,000 to only 152. Where are the resources in the budget to underpin something as important as that? The proposal has been included in this bill without the level of consultation that was undertaken for the template LEP. But for the time it took to deal with other legislation, this bill would have been rammed through the House last night.

The Hon. Jan Burnswoods: What do you mean "rammed"?

The Hon. PATRICIA FORSYTHE: Rammed through. What resources have been allocated? The budget papers indicate that in the current year it is anticipated that two additional staff will be employed by the Parliamentary Counsel. For the Government to achieve the consolidation of more than 5,000 planning instruments into 152 over a five-year period, the allocation of resources to the Parliamentary Counsel must be significantly increased. I have been working with one counsel for more than two years, without success, to try to effect one small change to an LEP to meet the needs of local communities in a very deprived area as a consequence of drought.

The Opposition supports the Government's intention of reducing the number of LEPs to 152 because that is an important principle. It should do away with the concept of spot rezonings, which have in many ways weakened many aspects of the planning legislation. We recognise that. But the Government will have to do better with regard to the allocation of resources to Parliamentary Counsel if that is be achieved over the next five years. Some of those LEPs cannot be rewritten overnight; considerable reworking and consolidation of legislation will have to take place. Even with all the goodwill of the Opposition, it may not be possible for the Government, because of its failure to allocate adequate resources, to be decisive in its actions.

The legislation deals with State significant development and major infrastructure; it streamlines the assessment approval process for major development infrastructure projects; and it gives additional power to the Minister to determine strategic sites and projects of State significance, and resolves issues associated with them. Just 10 days ago a new SEPP of importance to this legislation was gazetted. Effectively it contains nine categories of State significant development: for agriculture, timber and food, with the criteria 100 people employed and development of $30 million; for mining, petroleum production, extractive and related industries, with the criteria 100 people and development of $30 million; chemical manufacturing and related industries, 100 people and $20 million; other manufacturing, 100 people and $30 million; construction projects, $50 million; tourism and related facilities, $30 million; health and public service facilities, $15 million; transport, energy, and water infrastructure, $30 million; and resources and waste-related industries, $55,000 tonnes per year and $30 million. So the Government has been able to define the basis of that which underpins State significant development.

There is a significant move in relation to integrated assessments. For major projects the stop-the-clock provisions have been removed. The Director-General of the Department of Infrastructure, Planning and Natural Resources [DIPNR] may consult only with relevant authorities. A chief executive officers forum will be established comprising directors-general of certain regulatory agencies. For major projects the development approval process will be split with a new concept approval before a development application. It is a very interesting concept. The Opposition would have appreciated more advice about that concept to enable it to understand clearly what the Government will accept in that approval process. Critical infrastructure will not be defined in the legislation. The Minister corresponded with the Opposition about this, and I will have more to say about that in Committee. Proposed section 75C provides:

Any development that is declared to be a project to which this Part applies may also be declared to be a critical infrastructure project if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons.

Critical infrastructure is a piece of major infrastructure that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons. End of story. The Minister does not have to give reasons or do any more than declare that it is essential for the State for economic, environmental or social reasons. Therein lies the issue that I suspect will occupy the House for some time in Committee.
I turn now to proposed division 2 in schedule 1 to the bill, which relates to environmental assessment and approval of projects, and to the roles of the Minister, the director-general and the panel of experts. I suspect that these matters will be dealt with conclusively in Committee. The Minister asks the Parliament to take this matter on trust, because no regulation exists which sets out, even by way of categories, what is meant by critical infrastructure. The Opposition would like more information on this matter and will seek to amend the bill. Just because the Minister says a project meets one of the criteria, it does not mean it will be declared critical infrastructure. If the bill is passed in its present form there will be no appeal process, even though such a process is available under other State environmental planning policies. Under this bill the Minister will have carte blanche to override everything.

The better approach would have been for the Government to issue papers, similar to those distributed prior to the 1997 legislation, setting out the grounds for such decisions. What is the urgency? What is the project that the Government is so desperate to have declared critical infrastructure? It is not prepared to share that information with the House. Why has the Government suddenly realised that it must take decisive action on infrastructure development when it has failed to do so over the past 10 years? Critical infrastructure will be the subject of lengthy debate.

I refer now to proposed division 2C in schedule 5. In the past 24 hours the Opposition has received numerous phone calls from organisations and individuals in the city urging support for the bill. I suspect that not one of those organisations or individuals has actually read the bill. If they had done so they may have shown a modicum of concern for the proposals set out in this new division, which relates to the department's enforcement powers. The bill, if unamended, will give the Minister extraordinary powers in relation to entry and search of premises. Paragraphs (b) and (c) of proposed section 122G (1) will enable the Minister to exercise powers for the following purposes:

(a) for determining whether there has been compliance with or a contravention of this Act, the regulations, any environmental planning instrument, any approval under Part 3A or any development consent under Part 4 or any document or requirement issued or made under this Act,

(b) for obtaining information or records for purposes connected with the administration of this Act.

Proposed section 122I provides:

(1) The director-general may appoint any person (including a class of persons), as an authorised officer for the purpose of this Division.

(2) An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes.

Proposed section 122J provides:

(1) An authorised officer may enter:

(a) any premises which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, and

(b) any other premises—at any reasonable time.

The director-general will be able to appoint any person to enter any premises if there are grounds for believing there may be non-compliance with or contravention of the Act. I hope that business in this State is well aware of that provision. The powers proposed under this bill are greater than any powers that the New South Wales Crime Commission or any royal commissioner in New South Wales may have. The Opposition will seek to amend this provision in Committee to specify those who should not at any time have approval to enter premises.

On the other hand, if a shonky development is taking place and people are deliberately contravening the Act, it is proper for the matter to be investigated and appropriately dealt with. Crossbench members may not be aware of this measure and may be considering supporting the bill. The 88Opposition will move an amendment in Committee to ensure that the director-general does not have the power to authorise representatives of unions or employer bodies to have carte blanche to any premises at which it suspects industrial, agricultural or commercial activities are being carried out under the Environmental Planning and Assessment Act.

The Minister's second reading speech contains little on this subject. He merely referred to the fact that enforcement provisions in the Act need updating and strengthening to ensure that outcomes are delivered on the ground. Once a development has been approved, it is important that there is no cutting of corners and that the work is carried out in the interests of sound development. The Opposition will not seek to delete the whole section, but will seek merely to ensure that there are no unintended consequences. The Minister has gone to great lengths to describe other schedules, yet on this matter he has merely said that the monitoring, compliance and audit powers should be strengthened. He should have drawn the attention of business and crossbench members to this section, but I suspect he did not do so.

There is nothing wrong with powers to enter and search if it is genuinely believed that a development application is being contravened. However, this should not be a backdoor method for the Carr Government to allow its union mates to enter any business, agricultural premises or farm at any time in the name of the environmental planning and assessment legislation. The Opposition urges members on the crossbenches to support my foreshadowed amendment to this section in Committee.

Certain parts of the legislation that streamline the processes conform with what the Opposition has for some time said should have been done. They meet the Opposition's criteria for improving and strengthening the planning regime in New South Wales. More than anything else, we want to be able to say that New South Wales is a good place to do business. We want a strong and robust economy. We want an economy that shows overseas businesses that it is appropriate to invest in New South Wales the millions of dollars necessary to update capital infrastructure. That is the Opposition's position. We do not want to see an absolute loss of powers and the community taken out of the planning process.

The Hon. Robyn Parker: A blank cheque.

The Hon. PATRICIA FORSYTHE: Not only is it a blank cheque for the Minister; it is clear that the Minister wants local government as far away from as many projects as possible. I wonder whether the Minister took the opportunity to visit the Shires Association this week and share that fact. As a matter of principle, the Opposition wants infrastructure in New South Wales to be given priority. Infrastructure must be given priority. Our transport and health systems will not be improved if the Government is not prepared to invest in upgrading capital infrastructure. Having said that, the notion of critical infrastructure is given no more than basically one line in the legislation. The Minister will make the appropriate announcement about what infrastructure is critical.

The bill provides for a process in which, effectively, the director-general is the Land and Environment Court for the purposes of that section of the Act. What will set critical infrastructure apart is the fact that there is no appeal process. The Minister will determine whether something is critical infrastructure, and a process will be put in place. There will be environmental assessment guidelines and an advisory panel, but at the end of the day it is a closed loop. It is the Minister, the director-general and the assessment panel, but that is it. There is no provision for an appeal process. It is taking what Paul Landa would have introduced in 1979 to a level far removed from the principles that he espoused in his legislation at that time.

Mr Ian Cohen: Why don't you oppose it? You'll get the numbers in the House.

The Hon. PATRICIA FORSYTHE: We believe that New South Wales must promote itself as a good place to do business and to grow the State.

Mr Ian Cohen: Why don't you stop it in its tracks? Your rhetoric is excellent.

The Hon. PATRICIA FORSYTHE: I make it clear to the Greens that we will move amendments in Committee. We want to place the Government's record on infrastructure before the community. The Government's failure to invest in infrastructure will be the subject of debate for the next two years. That is the issue. We will certainly not deny the New South Wales community an opportunity to consider the Carr Government's record. When this legislation is passed—I suspect that it will be passed because I have heard the views of many crossbench members—the Government will be beholden not only to exercise its powers responsibly but also to meet its own criteria: that is, appropriate levels of regulation, a minimum of risk, low transaction costs and, above all, within a framework in which environmental assessment still counts for something in this State. The Opposition believes that its amendments will strengthen the legislation. I hope crossbench members have read all aspects of the bill and understand which parts are appropriate to be dealt with.

Mr Ian Cohen: We haven't seen your amendments yet.
The Hon. PATRICIA FORSYTHE: The amendments are being circulated now. It is an issue of consultation. The Government gave us little time to consult on and review this bill. Mr Ian Cohen should not come in here and talk about circulating amendments. We have had little time to review the Government's proposals. I suspect that the remainder of this debate will be interesting. At the end of the day the Government could have achieved what it sought to achieve through a proper consultation process and by working with the Opposition, as it did in 1997 and at other times when it has had important legislation. We would be much more comfortable if the Government was prepared to be open with us about so-called critical infrastructure and provide the guidelines up front. That is what is missing, that is why we have concerns and that is why we must move amendments to the legislation at this late stage.

Reverend the Hon. Dr GORDON MOYES [3.36 p.m.]: The Hon. Patricia Forsythe is an incredible optimist if she thinks the bill will pass through the House this month, because it is an extremely detailed bill. The purpose of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill is to amend the Environmental Planning and Assessment Act 1979 to reform land-use planning and the development assessment and approval system under that Act, particularly in respect of State infrastructure and other significant projects and land-use planning instruments. While respecting the Government's desire to gain major developments for New South Wales, if this bill goes ahead it will be at great public price. This critical legislation will have significant implications for planning across New South Wales.

In the history of the development of the Environmental Planning and Assessment Act 1979 I cannot recall one bill that has had such far-reaching effects. Thus, if this bill is passed the environmental planning law landscape will be permanently refashioned. The bill's central intent is to cut through red tape within land-use planning processes. Surely this bill accomplishes that. But cutting red tape within land-use planning processes has been seen by some as necessary to rid planning procedures of the so-called excessive complexity that is perceived as being responsible for delay or inaction. Cutting red tape is applauded and commended by some because it streamlines and makes more efficient the intricacies of the bureaucratic processes. But others may be of the view that cutting what may be considered as red tape actually removes the checks and balances necessary for land-use planning.

For example, the Environment Liaison Office considers that this bill will remove long-standing checks and balances such as accountability, transparency, technical oversight and community input for the most important and potentially environmentally sensitive proposals such as tourist resorts, mines and marinas, as well as developments in national parks and fragile coastal zones which are currently protected.

As a member of the Greens recently interjected, the last time this type of change took place was after a disaster in the Blue Mountains National Park. It seems that people—local citizens, lobby groups, councils—are an absolute pain, an intrusion, an interruption to the bureaucracy. But the Christian Democratic Party believes that ordinary people have the right to have a say, even if they might be a pain, an intrusion or an interruption to the bureaucracy.

The bill inserts into the Environmental Planning and Assessment Act 1979 a new part 3A, which will replace the procedures relating to State significant development. Development projects are subject to the provisions of part 3A if so declared by a State environment planning policy or by order of the Minister published in the Government Gazette. The latter scenario is novel. The Minister may declare projects as falling within the realm of part 3A when they fit within one of two categories, being major infrastructure developments or critical infrastructure projects. A major infrastructure development is a development which, in the opinion of the Minister, is of State or regional significance. A critical infrastructure project is any type of development that might be considered by the Minister to be essential for economic, environmental or social reasons. This places huge power in the hands of a Minister and his opinions, whether or not he or she has any professional training or experience.

The Legislation Review Committee effectively describes the process for approval under proposed part 3A. I will not refer to that here, but the main concern surfacing from this process is found within proposed section 75C. If the Minister is of the opinion that a project is essential for the State for economic, environmental or social reasons, he or she can declare it to be a critical infrastructure project. This is important because the Minister can approve a critical infrastructure project even if it would otherwise be wholly prohibited under an environmental planning instrument. The salience of and concern stemming from this proposal should not be underestimated. The effect of this proposal is to vest broad discretionary powers in the Minister. It is very clear that this proposal will allow the Minister to wield far-reaching powers, untrammelled by established measures catering for the protection and conservation of the environment.
Another disconcerting aspect of proposed part 3A is that appeals to the Land and Environment Court against the Minister's decision may be made only in certain circumstances, and appeals cannot be made in relation to critical infrastructure projects. This proposal prevents individuals from questioning the merits of a Minister's decision. Citizens ought to have recourse to appeal mechanisms; that is the nature of an individual's rights within our court system. The bill provides that the Minister may authorise or require a proponent of development to submit a concept plan for a project. A concept plan is to outline such things as the scope of the project and any development options.

My esteemed leader asked the Government whether this would consist of, for example, an artist's sketch plan? Would it consist of, perhaps, an elevation? Would it consist of a line on a map? The proposal for the staged implementation of the project may be very simplistic. Concept plans may also be authorised or required in relation to environmental assessment requirements, assessment panels, public consultation and environmental assessment reports by the director-general. A person dissatisfied with the Minister's refusal to approve a concept plan may appeal to the Land and Environment Court in certain circumstances; however, again, appeals cannot be made in relation to critical infrastructure projects.

Once again, I note the hemming in of appeal rights. Of most concern is that the approval of a concept plan satisfies any requirement in an environmental planning instrument for the preparation of a development control plan. Special mention must be made of the fact that the Minister's approval of a concept plan satisfies requirements under an environmental planning instrument. Again, it is apparent that the Minister has extremely broad discretionary powers. The only requirement of proposed part 3A that is mandatory in connection with the validity of an approval of a project or a concept plan is a requirement that an environmental assessment of the project is made publicly available. The fulfilment of this public notice requirement may be viewed as just a token gesture towards the community where part 3A projects are concerned.

Where a project is approved under proposed part 3A, parts 3, 4 and 5 of the Environmental Planning and Assessment Act do not apply to it. Part 3 relates to environmental planning instruments, part 4 to development assessment and part 5 to environmental assessment. Part 3 of the Act and State environmental planning policies do not apply to the carrying out of projects under part 3A but, in the case of a critical infrastructure project, only to the extent specifically provided by a State environmental planning policy. Thus, the current environmental impact assessment [EIA] process is done away with. There will no longer be a requirement to prepare a formal environmental impact statement. The Environment Liaison Office has noted:

The EIA is an internationally recognised component of responsible environmental planning.

Within the new process for part 3A developments there will be large scope for ministerial discretion. For example, proposed section 75G states that the Minister may constitute a panel of experts to assess applications for approval, and the requirement for a panel of experts to be established and referred to is not binding on the Minister or mandatory. Where a project is approved under part 3A, the bill will not require various statutory authorisations that are required to be submitted under the current law. This proposed development is very important. The various statutory authorisations that will not be required for approved part 3A projects include, for example, the concurrence under part 3 of the Coastal Protection Act 1979 of the relevant Minister; an authorisation referred to in section 12 of the Native Vegetation Act 2003 to clear native vegetation, and a bushfire safety authority under section 100B of the Rural Fires Act 1997.

The severity of this proposal can be highlighted in the context of the removal of the need for a bushfire safety authority for approved part 3A projects. The Nature Conservation Council has indicated that this proposal may apply to residential development under the Sydney Metropolitan Strategy as well as "any other commercial venture favoured by the Minister of the day". Andrew Stanton, the Nature Conservation Council's bushfire officer, said in a media release issued on 1 June 2005:

This leaves it open for corporate developments including medium density housing, large subdivisions, as well as public hospitals, schools and nursing homes to escape the State's stringent bush fire protection guidelines... the concern here is that the future residents, workers and users of these facilities will be left vulnerable to bushfire attack... This is a slap in the face to those ordinary people who have hoped to subdivide their small residential blocks, build a new house or renovate their family home, but can't because of these strict, but previously universal, bushfire protection laws... While these small developments bear the brunt of these restrictions, large corporate developers will be allowed to circumvent the rules completely... The other concern we have is for our brave and faceless volunteer fire fighters. Does the Government expect volunteers to risk their lives protecting the commercial ventures they plan to negligently approve?

That gives some food for thought. On my part, it provokes deep concerns about the implications of part 3A projects for our communities. As pointed out by the Legislation Review Committee, this bill will provide that certain proceedings cannot be taken in the Land and Environment Court without the approval of the Minister where critical infrastructure projects are concerned. Grave concerns must be held when laws hamper or cut off the rights of individuals to appeal ministerial decisions in our State's courts.

As indicated by the Environment Liaison Office, the public will not be able to challenge, and the court cannot make orders regarding, the declaration of projects, the approval of projects or the enforcement of conditions of approval for critical infrastructure projects. Moreover, the validity of an approval or other decision under proposed part 3A cannot be questioned in any legal proceedings if the proceedings are not commenced within three months after public notice of the decision was given. It must be pointed out that the three-month time frame may pose problems, as it may not leave sufficient leeway for proceedings to be commenced. Schedule 2 provides for the standardisation of local and other environmental planning instruments. In this regard the Legislation Review Committee said:

This is achieved through the Governor prescribing the standard form and content of local environment plans or other environmental planning instruments, including the prescription of mandatory and permitted provisions.

It is envisaged that existing environmental planning instruments will be repealed in a staged fashion. From a commonsense point of view, the streamlining and standardisation of environmental planning instruments may not cater for the individual needs of areas. A one-size-fits-all approach may not effectively target the environmental issues in a particular area. The rationale behind the standardisation of local and other environmental planning instruments is not clear. A cookie-cutter approach to environmental planning standards or requirements across New South Wales will not offer suitable solutions for the conservation of our environment.

Schedule 5 gives new powers to the Minister, the director-general and authorised officers to enforce approvals under proposed part 3A. It is proposed that the Minister or the director-general will be able to use local council order powers for part 3A projects and that the Minister will be able to impose conditions on part 3A approvals that require monitoring and audits to be carried out by or on behalf of the approval holder.

Moreover, as the Legislation Review Committee said, schedule 5 will enable the director-general to appoint persons as authorised officers to enter premises in certain circumstances—as referred to by a previous speaker—to conduct inspections, to take samples and photographs, to examine and copy records, to seize things connected with an offence under the Act, and to require the answering of questions or the production of documents. The Legislation Review Committee has exhaustively defined issues that are of real concern. I urge the Government to reflect on these issues, particularly the fact that there is an exclusion of merits review.

The Christian Democratic Party does not involve itself in obstructionist practices with government legislation, but it does warn of the dangers of being a headstrong, centrist, authoritarian government of the type found in banana republics. The people have chosen this Government and given it the authority to be a law unto itself and garner to itself the self-delusion that it alone knows best, so the opinion of the public is not required. However, we recognise that obstructionist action by many environmental groups has cost business dearly, delayed projects that would have benefited society, and discouraged investors away from this State. The approach is simple but sometimes painful: Listen to the people, and then act. Do not just crash through.

Ms SYLVIA HALE [3.52 p.m.]: Previous speakers have pointed out many of the flaws in this bill. The Greens, the environment movement, and the community as a whole are extremely concerned. I was particularly interested in the remarks of the Hon. Patricia Forsythe about the lack of consultation and time constraints. She said there had been little opportunity for the members of this House and members of the community to discuss the provisions of the bill. I therefore foreshadow that at the conclusion of the second reading debate I will move that the question be amended by omitting the words "That the bill be now read a second time" and inserting instead "That the bill be referred to General Purpose Standing Committee No. 4 for inquiry and report."

I confidently expect the Opposition and the crossbenchers to support the amendment. By doing so, members will have the opportunity to further consider the provisions of the bill and the public, who are most widely affected by it, will have the opportunity to give the committee and, through them, members of this House the benefit of their experience as to how they anticipate the bill will operate.

I say at the outset that the Greens oppose and deplore this bill. Even its title sticks in the craw. The bill represents the undoing of 25 years of environmental safeguards and the dismantling of hard-won environmental processes that have been underpinned by a framework of legal rights to challenge rapacious development. The bill before us masquerades as reform. I admit that it is true to the manner of its conception. Schedule 1, which introduces a new part 3A and makes the most significant change to the Act, has been conceived in secrecy and subject to no public discussion or input, save that of the Property Council of New South Wales and similar groups. It has been foisted upon the community in arrogance. Ambiguity, uncertainty and arbitrariness pervade the bill's provisions, unless one is a major developer, financier, or a mate of the Government.

To reach an overall understanding of the nature of the bill, it is worth outlining its worst provisions before analysing it in detail. Proposed part 3A creates a new category of development known as critical infrastructure. There is no definition of what constitutes critical infrastructure; that is left entirely to the discretion of the Minister. The bill allows the Minister to approve critical infrastructure and other major projects based on concept plans. One might ask what is a concept plan? We are not told; but we are told what a concept plan is not: It is not a detailed report. The bill states specifically that a detailed description of the project is not required.

After providing for critical infrastructure based on a concept plan to be approved in the absence of relevant detail, the bill proceeds to remove any third party or legal challenge to the decision. As I said, ambiguity, uncertainty, and arbitrariness pervade the bill. The actual provisions are worthy of George Orwell. The only group within the community to take joy from the bill are large developers, financiers, promoters of public-private partnerships and mates of the Government—the very organisations that have contributed so handsomely and consistently to the Labor Party coffers over the last 10 years and enjoyed unrivalled access to the Premier and his Ministers. Their access to the Government has clearly shaped the bill. In an email dated 24 May, which was sent to various people and subsidiary organisations when the bill was being drafted, Ken Morrison, the New South Wales Executive Director of the Property Council of Australia, said:

This morning I attended a further briefing on amendments to the EP & A Act to implement the Government's state significant development reforms announced in the last fortnight and the reforms to plan making announced last year. The Bill will be introduced to Parliament this week.

The state significant development amendments will be very enabling and very powerful.

Mr Morrison said:

From our briefings on this, it would seem the Property Council should give its strong support to the legislation.

He concluded:

The other elements of the Bill support the reforms for plan making, resulting from the Kibble Task Force Review into Plan First. It seems that all the legislative amendments we sought will be in the bill.

The bill delivers everything the major developers have asked for. It is not difficult to determine who they are. They are the Premier's cronies who turned out in force two weeks ago, on 27 May, to celebrate the Premier's tenth anniversary in office.

The Hon. Michael Gallacher: It was pretty cheap, wasn't it?

Ms SYLVIA HALE: It was—$500 a seat, I believe. Harry Triguboff from Meriton was there, along with Brian Rose from Rosecorp, Guido Belgiorno-Nettis from Transfield, Alistair Walton from Goldman Sachs, Helen Nugent from the Macquarie Bank, and the newest entrant to the BRW rich list, Western Sydney's own home-grown developer, Tony Perich. They were all there at Bob Carr's party. As the Sydney Morning Herald noted the next day, "Seats were a snip at $500. Whole tables had been taken by KPMG, PricewaterhouseCoopers, Westfield and Rosecorp. To have a Labor minister at a table costs serious money." I am sure Minister Kelly could tell us what an enjoyable night it was, rubbing shoulders with these proponents of the public-private developers.

The Hon. Tony Kelly: I did not see you there.

Ms SYLVIA HALE: No, of course not! I was not there. But, of course, there were many Greens outside protesting, as we have persistently protested at these money-raising undertakings. But the attendees' money was not wasted. Carr and Knowles are not ingrates; they know how to return favours. What more could any right-minded developer want from a government than this tenth anniversary present? It is very clear to see who the winners in this process will be—and it certainly will not be the community. It is now in order to ask just what will the community get from the bill. It will get its comeuppance! It has been told well and truly where its place is in the pecking order. The community's reward is the loss of the right to appeal against any ministerial declaration that a development is critical infrastructure—and that loss is accompanied by a watering down of the community's entire role within the planning process.

It is ironic that within six months of the twenty-fifth anniversary of the passage of the Environmental Planning and Assessment Act in 1979, this Government is setting out to weaken, undermine, and remove the right to community consultation and participation in the planning process. It is worth putting the bill in its historical context and looking at what was said about community consultation and participation when the Act was passed in 1979. In fact, it is essential if we are to understand just how retrograde this legislation is. When one reads the then Minister's second reading speech on the 1979 bill, one is struck by the stark contrast between it and the current Minister's second reading speech on this bill. In 1979 the Minister noted that:

The Government has been aided by its consideration of comments elicited from the unprecedented public participation processes to which the bill has been subjected.

The Minister declared that the legislative framework for environmental planning in 1979 was unsatisfactory because of:

… its failure to give members of the public any meaningful opportunity to participate in planning decision making.

References to the desirability of including the public in the planning process recur throughout that 1979 speech. The Minister was explicit then about what the Government was intent on achieving, and he summed it up in the following paragraph:

The bills will confer equal opportunity on all members of the community to participate in decision-making under the new legislation concerning the contents of environmental studies; the aims and objectives to be adopted by draft planning instruments; the contents of draft planning instruments; development applications requiring prior publicity before determination; development applications for designated developments; and environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment Bill. Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent. Members of the public are given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws.

That was the intention of the Wran Government. That was truly break-through legislation—which the Carr Government is intent upon undoing. What a contrast with the current Minister's second reading speech! In Craig Knowles's speech, community participation barely rates a mention. Instead, the Minister referred repeatedly to "business being able to work with certainty", "a minimum of risk", "low transaction costs", "appropriate levels of regulation", "this bill dramatically improves the climate in which to do business in this State", "for private sector projects or public-private partnership type projects … increased certainty translates into real cost savings and bankable security", and that the Government's agenda is "to cut red tape and provide the regulatory conditions to support a strong economy, jobs growth, and public and private sector investment".

Always the emphasis is on the fact that the legislation will "cut red tape by reducing time, cost and complexity". It is remarkable how they have changed over 25 years—25 years ago they were interested in public participation and in involving the community in the decision making process. Now all they are interested in is making money for big business. I suppose the remark that really gives the game away is in the last paragraph, in which Minister Knowles pointedly thanked "those in the various industry groups who have participated in the formulation of this legislation".

There is no mention here of the community, local government, or planning professionals, only reference to industry groups, such as the Property Council of Australia and the Urban Development Institute. After all, the Minister could not thank the Local Government and Shires Associations because, as its weekly newsletter says:

The Associations were not consulted on the major aspects of the bill. While the Associations had been notified of an impending amendment bill through [its] Planning Reform Committee, we were only consulted on Schedules 2 and 3 of the bill.

The Hon. Duncan Gay: I am surprised about that. I am very surprised. Phyllis Miller said at the opening that the shires get terrific access to the Labor Government.

Ms SYLVIA HALE: It is obvious. They said in the newsletter that they were not consulted.

The Hon. Duncan Gay: That's what she said at the opening.

Ms SYLVIA HALE: I cannot comment on Phyllis Miller's remarks. I know that on many other matters I have had a difference of opinion with her. The newsletter continued:

These schedules relate to the amendments to planning instruments and development consents. As it has turned out, these are only relatively minor aspects of the bill.

The Local Government and Shires Associations makes it clear in its newsletter that they were told about the minor aspects of the bill, but were kept in the dark about the crucial elements of the bill, despite the associations having established, in conjunction with the Minister, a planning reform committee, one member of which was the director general of the department, Jennifer Westacott. The Minister could not thank the Local Government and Shires Associations, nor could he thank the peak environmental organisations because they were not consulted either. Like the rest of the community, they have been outraged to discover just what is in this bill. There were no ongoing discussions with them, just the nasty surprise of the Minister's second reading speech and the terms of the bill.

I will now turn to the specific provisions of the bill. Let me say at the outset that the Greens believe that the bill is so fundamentally flawed that it cannot be amended to a level that would make it acceptable. Amendments would be simply be tweaking at the edges of a deeply flawed piece of legislation and the Greens will have no part in validating it by taking part in that process. The changes that the Greens believe are necessary to make the legislation acceptable are so significant they would be outside the leave of the bill. But to ensure that the concerns of the Greens, environment groups, community groups, and local government are put on the public record I will go through the bill in detail.

Mr Ian Cohen: We only found out about your amendments minutes ago.

The Hon. Duncan Gay: Do you think we have control over consultation on the bill?

Ms SYLVIA HALE: If you support the referral to the committee, and we have adequate time to consult about the amendments, we will consider your amendments during that process. Schedule 1 to the bill should be deleted altogether. As the Local Government Association said in its weekly newsletter to members last week:

The most important part of the bill is contained in Schedule 1 which relates to "Major Infrastructure and Other Project Amendments". Schedule 1 inserts sweeping new Sections into the Act.

The newsletter went on to explain that the schedule:

… strips councils of approval powers in relation to such developments, it also overrides the authority of other approval agencies such as the Department of Environment and Conservation, NSW Heritage Office, Department of Agriculture etc. Third parties are also restricted or barred from rights of appeal by various provisions of the bill.

As I said, local government was not consulted about schedule 1. Since introducing the bill last week, the Minister has asserted that he already has these powers. We can only presume that this is why the Minister felt no compulsion to consult on these matters. But the Greens dispute his contention. Schedule 1 to the bill allows the Minister to declare a development to be "critical infrastructure" or "major infrastructure development", and once this declaration is made, sweeping new powers come into play. I will deal with those powers in a moment. But before I do I would like to point out that one of the most fundamental flaws in the bill is that there is no clear definition of, or criteria with regard to, what constitutes "critical infrastructure" or "major infrastructure development". Proposed section 75A defines "major infrastructure development" as follows:

Major infrastructure development includes development, whether or not carried out by a public authority, for the purposes of roads, railways, pipelines, electricity generation, electricity or gas transmission or distribution, sewerage treatment facilities, dams or water reticulation works, desalination plants, trading ports or other public utility undertakings.

The Greens agree that this list constitutes what a reasonable person might consider to be major infrastructure. But the Government was clearly not content to leave it there. Proposed section 75C takes the definition much further, and hands the Minister the power to categorise just about anything he or she sees fit as critical infrastructure. Section 75C defines "critical infrastructure projects" as follows:

Any development that is declared to be a project to which this Part applies may also be declared to be a critical infrastructure project if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons.
Despite protestations from the Minister to the contrary, the bill makes it very clear that critical infrastructure can be anything the Minister deems to be essential for economic, environmental, or social reasons. Proposed section 75B (3), which relates to related development, makes it clear that only part of a development need be declared critical infrastructure for an entire project to fall into this category. These are very sweeping powers indeed.

The Hon. Duncan Gay: It could be Bob's nuclear power station.

Ms SYLVIA HALE: Yes, indeed, it could be Bob's nuclear power station, or Frank's desalination plant. Once the Minister has declared a project to be critical infrastructure, normal environmental protections—such as carrying out an environmental impact assessment before the development can proceed—are suddenly at the discretion of the Minister. Much of what was mandatory becomes discretionary, and yet the Minister continues to pretend there has been no change in the nature and extent of his powers.

The Minister may develop guidelines for an environmental impact statement [EIS] process, and the director general will be required to prepare assessment requirements on a project-by-project basis, but there are no clear requirements about when an EIS is required. Again, the entire process hangs on ministerial discretion. If the Minister decides to proceed with an EIS, proposed section 75H stipulates that any report must be publicly available for at least 30 days and that members of the public may make submissions at this point. But there is no requirement for the Minister to take the views of the public into account in his or her final determination. To help with that determination, the Minister may appoint a panel of experts to assess the project, but there is no requirement for any community or environmental representation on that panel.

The bill also severely curtails third party and legal appeals. With respect to a development that is not critical infrastructure, the proponent has three months to appeal any decision, but the community is given only 28 days to object. This is manifestly unfair, and yet it demonstrates how the Government ensures that the playing field is anything but level. The balance is clearly tipped in favour of its developer mates. But it gets worse. For projects that the Minister has designated as critical infrastructure there are no third party or legal appeals whatsoever. The Government is unequivocal about this. In his second reading speech the Minister said:

The bill provides that there will be no appeals against decisions on critical infrastructure and there will be no third party legal challenges under any environmental and planning statutes against those decisions. The bill will ensure that the construction and operation of approved critical infrastructure projects cannot be stopped or delayed by other government agencies or local councils.

When it comes to community involvement in decision making in this State, no stone has been left unturned and there is no right that has not been weakened or eliminated altogether. The Minister gets his way, and that is it! The bill makes environmental protection discretionary, relegates public consultation to lip-service, and puts the Government above the law.

Schedule 1 also introduces an entirely new creature into the New South Wales planning system: the concept approval and its associated concept plan. The justification for this move is that the Minister will be able to either deny or grant approval early in the conceptual stage of a development, and thereby avoid the developer having to spend time and money on a project only to have it subsequently rejected.

This mechanism has been long sought by the development industry, which has complained bitterly about the drawn out and costly process of securing development approval for large and/or contentious projects—and those complaints have become deafening when developments have ultimately been denied. With the enactment of this provision, the lobbying efforts of the developers have finally borne fruit. Proposed section 75M allows the Minister to authorise or require a concept plan for any project. As I said at the outset, we have no idea what a concept plan actually looks like.

The Hon. Dr Arthur Chesterfield-Evans: A few pretty pictures.

Ms SYLVIA HALE: Indeed. The bill says it must outline the scope of the project and any development options. In all other respects the bill is silent. Subsection (2) of proposed section 75M expressly stipulates that a detailed description of the project is not required. This is a ludicrous proposition. How on earth can anyone make an informed decision about a development if no meaningful information is provided or if the information that is provided subsequently proves incorrect? The Minister might be omniscient, but the community needs a reasonable amount of detail before it can provide informed input on such concept plans.

It is almost equivalent to neighbours knocking on the front door to announce that they will be undertaking some renovation. They might remark, almost as an afterthought, "Well, the other option was to move, but we have decided to build instead. It would be an extension out the back. We have just been granted concept approval," and that is it. It would be laughable if this were not how concept approvals will operate. There is absolutely no doubt that the proponents of a concept plan will provide the barest possible detail in order to give themselves the greatest degree of flexibility later in the project. To do anything else would be bad business practice.

Based on the smallest possible amount of information, the Minister will then make his or her decision. Community consultation in the process will be little more than a charade, and once concept approval has been granted there will be little opportunity to amend, even if other critical information becomes available, any subsequent development applications, as long as they conform to the initial concept plan. The Government's adoption of the concept plan is a cave-in and surrender to the development industry. It has swallowed the industry's lobbying, hook, line and sinker. But in doing so, the Government has completely misunderstood and undermined the fundamental nature and purpose of the development assessment process.

When making planning decisions in order to achieve a full and meaningful outcome it is essential to examine detailed information. Furthermore, the process of negotiating an outcome that meets technical requirements, the concerns of the community and business imperatives, and ensures an acceptable level of environmental impact, takes time. The larger and more complex the project, the more information and time is required. Instead, this bill takes us in precisely the opposite direction. It leapfrogs the assessment process and produces a decision before any of the analysis has actually taken place. The suggestion that this could possibly lead to better planning outcomes is mind boggling.

The Minister should immediately tell the Parliament what additional resources will be provided to the Department of Infrastructure, Planning and Natural Resources [DIPNR] to accommodate the extra workload that will result from these provisions. DIPNR is already struggling in the wake of massive restructuring, unable to meet its work commitments associated with the metropolitan strategy and the planning reform process. Exactly who, in the context of a massive shortage of experienced competent planners, is going to do the work associated with this bill?

Let me return for a moment to appeal rights. Under proposed section 75K the proponent of a major piece of infrastructure or development will have three months to appeal to the court against a ministerial refusal. An objector, however, whether it be a local council, the National Trust, the Total Environment Centre, or other third party, will have only 28 days to lodge an appeal. In relation to a concept plan for major development, if the Minister refuses a plan, the proponent has the right to appeal within three months. On the other hand, objectors do not have the right to appeal against the approval of a concept plan. This is manifestly unfair.

Despite the decades that have gone into building this State environmental protection framework, this bill allows any project that the Government chooses to simply ignore environmental laws. The bill allows critical infrastructure to circumvent the core environmental protection Acts, including the Heritage Act, the Coastal Protection Act, the Fisheries Act, the National Parks and Wildlife Act, the Rivers and Foreshores Act, the Rural Fires Act, the Water Management Act and parts of the Threatened Species Act.

My colleague Ian Cohen will talk about this in more detail in his contribution, but I cannot move on without saying a few words about it. The protection of our environment has been at the centre of cultural and political life in New South Wales for at least 30 years—some would argue it has been there for much longer. The National Parks and Wildlife Act, which this bill is so deliberately designed to undermine, dates back to 1974, precisely 31 years ago. Since then, concern and awareness in the broader community about the environment has only intensified. Bob Carr has ridden this wave to his own electoral advantage, gazetting new national parks and scoring a bubble reputation as the Green Premier. Sadly, it is a very tarnished reputation.

The Hon. Dr Arthur Chesterfield-Evans: It's spin. It's not a real one.

Ms SYLVIA HALE: Yes, spin. There is no substance to it at all. It is a bubble.

The Hon. Eric Roozendaal: It can't be a spin and a bubble. It doesn't work like that. Bubbles don't spin. It's either spinning or it's a bubble.

Ms SYLVIA HALE: They twist and turn in the wind. Only yesterday members of both Houses of this Parliament were hand delivered a fresh, green choko. Sticking out of each choko was a toothpick with a small flag attached that labelled Bob Carr as the choko Premier—green on the outside, white and watery on the inside. To the community activists, lawyers, staff in government agencies, lawmakers, law enforcers, businesses, mums, dads and schoolkids who have worked for decades building and implementing our system of environmental protection, choko Bob says, "Stuff it". Big projects favoured by his Government need not comply. This bill is truly draconian, but it truly reflects the depths to which this so-called Labor Government has sunk.

Schedule 2 contains the provisions associated with the strategic planning reforms that have been mooted over the past 12 months. The Greens recognise the need for a strategic overhaul of the State's planning framework. There is no denying that streamlining and consolidation in some areas could improve life for residents and communities, for local government and for developers. The Greens support genuine planning reform so long as it involves all the key stakeholders in the associated decision-making process. And there has been some involvement, albeit limited, in discussions on schedule 2 with local government and environment groups.

Over the past 12 months the Government has reluctantly consulted on the key provisions of the schedule, including standard local environmental plans [LEPs], consolidation of development control plans [DCPs], regional environmental plans [REPs] and State environmental planning policies [SEPPs], and the phasing out of DCPs. The consultation has not been adequate, but it has taken place nevertheless, and it is better than nothing. At least with schedule 2 it was not a closed-shop deal with choko Bob's developer mates. Local governments and community groups have had some inkling of what was coming. Proposed sections 33A to 33C deal with the introduction of a single standard LEP for each local government area, based on a standardised statewide template.

Associated with this will be standardised zoning and definitions. There is no doubt that some streamlining is necessary to reduce the more than 5,000 LEPs currently in existence across the 152 councils in New South Wales. The Greens are not opposed to this per se, but we do have a number of concerns in relation to it. Currently, there are approximately 3,100 zonings and 1,700 definitions in use across New South Wales. There is certainly room to rationalise these to a more manageable number. It is vital, however, to remember that these zonings and definitions have evolved over time to reflect very specific regional variations in geography, topography, existing land uses, plans for the future, and social, cultural and historical issues. They have evolved to reflect the fine-grained tapestry of cultures and communities in different areas. As members of this House well know, every community is different in subtle but important ways. Despite the wishes of developers, who want the same definitions to apply whether they are building a block of units in Byron Bay or in Bega, cultural and land use considerations vary greatly.

A chief concern of local government is that the State Government will reduce the number of definitions and zonings to a level that is unable to fully reflect regional subtleties and variations across the State. Strong concerns were raised in the more than 160 submissions received by DIPNR about its discussion paper in January 2005 on this matter. There was particular concern in relation to the proposed lower density living zone, which permits multiunit dwellings. Such a zoning may be appropriate in Bondi Junction or Chatswood, but surely not in the Blue Mountains or Orange. Despite the development industry's assertions, most communities across New South Wales do not consider multiunit dwellings to be lower density. It is only if the conditions that multi-units are well designed and sympathetic to their location and community considerations are met that multiunit dwellings or zonings will be accepted by the community. But this legislation does nothing to bring about such outcomes.

Local government raised also resourcing and the capacity of both individual councils and DIPNR to take on the workload associated with the changes. I have already mentioned capacity constraints within DIPNR, but local government is concerned at the cost of a wholesale review of their LEPs and DCPs. The bill will also see multiple development control plans that deal with different issues, possibly overlapping different geographic areas, reduced to a single development control plan containing all issues. Once again, on the surface this might sound like a sensible and streamlined move, but again it is one that has been designed to appease developers. Local government has expressed concern that it may not be the most practical way to deal with the subtleties of any given issue. In fact, in the name of simplicity it may indeed substitute complexity.

Another issue is the phasing out of master plans and their replacement with site-specific DCPs. Master plans tend to be for large projects that intersect multiple local government areas or involve particularly large sites. How will the new DCP arrangements incorporate this level of complexity? This move could potentially reduce the ability of the community to provide input into the design and approval process. In the absence of master plans, what will provide the important overview for community consideration? The cost of preparing master plans is currently borne by developers. The transfer of the function of master plans to development control plans effectively shifts that cost onto local government.

The cost implication of these reforms is of major concern. Councils have indicated that funds from the Plan First levy will be woefully inadequate to complete the task of reviewing instruments over the next three to five years, and the Government has given no commitment to increase funding over the longer term for longer term operational costs that will result from these changes. Councils have also expressed concern that the time frames in which to have new instruments in place are too short, and have indicated that those time frames may not be achievable, given the industry-wide shortage of planners.

The Government has expressed its intention to reduce the number of SEPPs from the current number of 59 to 25, and the number of REPs from 44 to five. Already it has gazetted a new SEPP—State significant development 2005—much to the dismay of residents of Redfern, St Marys and elsewhere. Division 3 deals with how this review will relate to the reform of other planning instruments. Local government is concerned that these changes need to be finalised before individual councils can review and prepare their new instruments.

The bill represents the most significant reform of planning law in New South Wales for 25 years. Given the scale and nature of these reforms, the bill is lacking sufficient detail on precisely how the process will unfold. Professional planners I have spoken to, working both within DIPNR and in local government, have expressed similar concerns. The bill is too vague on the transition from existing instruments to the new instruments.

Schedule 3 relates to provisions that enable a development to be approved in stages. Once a concept approval has been granted the proponent can apply for subsequent development application approvals that are effectively rubber-stamped as long as they comply with the initial concept. Proposed sections 83B and 83C make it clear that even changes to a council's planning instruments, such as to a DCP, cannot stand in the way of a development that has already received concept approval. This represents a serious undermining of the power of a democratically elected council to determine and/or amend its own planning priorities. The Minister has the power to impose or amend an LEP, a power he or she has never previously possessed.

The bill will severely reduce community input into the planning process. It is seriously misleading for the Minister to assert otherwise. The creation of concept approval, without any details of the development being provided, severely curtails the community's ability to partake in any meaningful decision-making process. The fact that there is no community representation on assessment panels and that the Minister is not obliged to take the views of the public into consideration when making his or her final decision further excludes the community. The removal of third party and legal challenges to the Minister's decision is the final nail in the coffin.

The bill also seriously undermines the State's system of environmental and heritage protection. The ability of the Minister to arbitrarily determine a project to be critical infrastructure, and thereby render environmental impact assessment process discretionary, is outrageous. To exempt big projects from core environmental and heritage laws is alarming. This should worry everyone—not just people who care about clean air and water, or heritage and local communities, but anyone who objects to unfettered control being handed to a government. The bill is not about improving planning outcomes to achieve more sustainable, liveable communities. It is not even about ensuring the provision of essential infrastructure. Schedule 1 is about big business and placating Bob Carr's big developer mates.

The Greens support the development of essential infrastructure but this should proceed in a way that is sensitive to the needs and concerns of local communities and in a manner that complies with the same environmental protection and heritage laws that have hitherto prevailed in this State. This bill is about silencing opposition and minimising developer costs and delays in order to maximise profits. The Greens are not alone in opposing this bill.

Numerous organisations have signed a joint letter opposing the legislation. Those organisations are: A Salt Research Associates; ADI Residents Action Group; Angels Beach Dune Care and Reafforestation Group Incorporated; the Animal Protection Association of Australia (Incorporated); the Australian Conservation Foundation; the Australian Conservation Foundation, Central Coast Branch; the Australian Conservation Foundation, Shoalhaven Branch; the Australian Marine Conservation Society; Australian Seabird Rescue Incorporated; Australian Wetlands; Ballina Environment Society Incorporated; Bellingen Environment Centre; Bendalong and Districts Environmental Association; Big Scrub Environment Centre Lismore Regional Environment Group; Bio-Diversity Protection Services; the Blue Mountains Conservation Society; and Bonny Hills Progress Association.

The Hon. Tony Kelly: Are these donors to the Greens?

Ms SYLVIA HALE: These parties do not fund the Greens. They are independent of the Greens. These genuine community organisations are genuinely concerned about community participation and involvement in consultation. They are deeply concerned about the bill's provisions. The list continues: the Brunkerville Residents Action Group; the Byron Environment and Conservation Organisation; Cables Downunder; the Caldera Environment Centre; Callala Bay Progress Association Incorporated; the Castlecrag Conservation Society; the Cavanbah Dune Care Group; Central Coast Airport Action Group Incorporated; the Central Coast Community Environment Network; the Central West Environment Council; the Clarence Environment Centre; the Clarence Wetland Network; Climate Action Network Australia; the Coast and Wetlands Society; Coastwatchers Association Incorporated; the Collins Creek Bushcare Group; the Colo Committee; the Colong Foundation for Wilderness; the Concerned Residents of Whitebridge; the Conservation Ecologists Association; Conservation of North Ocean Shores; the Corindi Beach Residents Group; and Crescent Head Ratepayers and Residents Association Incorporated.

The list further includes: the Greenpeace Australia Pacific Campaigns Manager; Dubbo Field Naturalist and Conservation Society Incorporated; the Dudley Progress Association; E.P.A.Net; East Ballina Landcare Incorporated; Ecology Action Sydney; Environment Watch Incorporated; the Environmentally Sensitive Development Association, Pambula; the Evans Head and District Water Committee; the Evans Head Memorial Aerodrome Committee Incorporated, State Listed Heritage site; the Friends and Residents of Glenrock; the Friends for Stanwell Park; the Friends of Burleigh Association; the Friends of Cook Island Aquatic Reserve; the Friends of Cudgen Nature Reserve; the Friends of Durras; the Friends of Lindfield Incorporated; the Friends of Milton; the Friends of Solitary Islands Marine Park; the Friends of South West Rocks Incorporated; the Friends of the Koala Incorporated; the Friends of Tumblebee; and the Friends of Ku-ring-gai Environment Incorporated.

The list also includes: the Gloucester Environment Group; the Gordons Bay Volunteer Bush Regeneration Project Incorporated; the Goulburn Field Naturalist Society; the Great Lakes Environment Association; the Green Corridor Coalition Incorporated; Greenpeace; the Hastings LGA Residents Action Network; the Hawks Nest/Tea Gardens Progress Association Incorporated; Hornsby Earthwise; the Heffron Community Group; Hodges Shorten Architects; the Hornsby Conservation Society Incorporated; the Hunter Bird Observers Club; the Hunter Community Environment Centre; the Hunter Environment Lobby; the Illawarra Escarpment Coalition; the Inland Rivers Network; the Jervis Bay Regional Alliance; the Jetty Action Group (JAG); the Lake Cathie Progress Association Incorporated; the Lake Macquarie Coastal and Wetlands Alliance; the Lake Macquarie Coastal and Wetland Park Committee; the Lake Wollumboola Protection Association Incorporated; the Long Beach Area Improvement Group; the Manning Group, Taree; the Mineral Policy Institute; and the Moonee Action Group.

Other organisations are: the Mosman Parks and Bushland Association; the Mudgee District Environment Group; Mulbring Valley Landcare; the Myall Koala and Environment Support Group; the Nambucca Valley Conservation Association Incorporated; the National Parks Association of New South Wales; the National Parks Association of New South Wales, Illawarra Branch; the Native Animal Trust Fund Incorporated; the Nature Conservation Council; the Nepean Action Group; the Newcastle Cycleways Movement; the North Coast Environment Council; the North East Forest Alliance; the Northern Illawarra Residents Action Group; the National Parks Association, Three Valleys Branch; the New South Wales Bird Atlassers Incorporated; the New South Wales Regional Conservation Network; the Oatley Flora and Fauna Conservation Society Incorporated; the Parks and Playgrounds Movement; the Pelican/Blacksmiths Progress Association and Land Care Group; Peninsula Dune Care, Central Coast; the Pindimar Bundabah Community Association Aquaculture Committee; the Red Rock Preservation Association Incorporated; the Redhead Residents Action Group; Rising Tide, Newcastle; the Sandon Point Bushcare Group; the Sandy Hearnes Action Group; Save Hawkesbury's Unique River Environment; the Scotts Head Protection Group; and the Shoalhaven River Alliance.

Other organisations are: the Shortland/Birmingham Gardens/Sandgate Community Forum; the Slacky Creek Bushcare Group; the Stanwell Tops Residents Awareness Association; the Summerland Point Progress Association Incorporated; the Sustainability Research Institute; Sustainable Communities Research; Surfrider; the Swanhaven Progress Association; SWEEP Consultants; the Terrigal Area Residents Association; the Broadwater Action Group Incorporated; Grey-crowned Babbler—Environmental Surveys; The Milton Mirror; the Myall Koala and Environmental Support Group Incorporated; the Parramatta/Hills Group of the Australian Plants Society; the Society of Frogs and Reptiles Newcastle; the Wetlands Centre; the Wilderness Society; the Wilderness Society Newcastle; the Total Environment Centre; the Tweed District Residents and Ratepayers Association; the Tweed Monitor; the United Residents Group of Emerald; the Whartons Creek Bushcare Group; the Wildlife Rescue Service, Hunter Region; the Willoughby Environment Protection Association; the Wolli Creek Preservation Society; the World Council for Renewable Energy, Asia Pacific; the Wyong Shire Ratepayers and Residents Association Incorporated; and Wyong Terrestrial Orchid Research.

That is just a few of the groups. The list also includes many individuals, but I will not read out their names at this stage. That is just a smattering of the hostility of the opposition and outrage that is evident across the State. It should give all Government members cause to think about what they are doing, how they are destroying, dissipating, undermining, ruining whatever sense of credibility they might once have had with the community. As I said, this bill is about silencing opposition and minimising developer costs. But as that list indicates, the community refuses to be silenced. If Government members think they can sit back and let major projects be railroaded through, regardless of these concerns, I suggest that they are living in cloud-cuckoo-land.

Each and every one of these organisations urges members of this House to oppose the bill. I am sure many members have received the letter that accompanied the list of organisations. The Greens thank the people involved in those organisations, the vast majority of them volunteers, for their tireless work in protecting the natural environment and the culture and heritage of their local neighbourhoods. It is shameful that the Government is so contemptuous of their efforts. Along with these organisations and the hundreds of people who attended the rally outside Parliament House last Tuesday, 7 June, to protest against this bill, the Greens urge all members of this House to oppose the bill. I move:

That the question be amended by omitting the words "now read a second time" and inserting instead "referred to General Purpose Standing Committee No. 4 for inquiry and report".

I do not need to remind members that that standing committee deals with planning matters. It would be entirely appropriate, particularly in light of the views of the Hon. Patricia Forsythe—and I am sure the views that will be expressed by other members in this debate—to give the community a genuine opportunity to provide evidence to the committee and to Parliament of their misgivings or otherwise about the bill and the impact of its provisions. I trust members of the House will support that amendment.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.51 p.m.]: The word "democratia" means by the people. Theoretically we are a democracy, although I think we are merely a pale shadow of that. The Government gets its legitimacy because it expresses the will of the people. If it does not express the will of the people, it has no legitimacy. That is the essence of democracy. There are always some faults in democracy. My view is that Parliament should represent the diversity of the people. If legislation takes longer to get through Parliament, so much the better; it will be improved. Each bill would be discussed as an individual piece of legislation with individual perspectives that a democratically elected Parliament creates.

The duopoly view of government is that there be only two parties, one of which gets ahead of the other, and the other, having been defeated, decays for several years. Thus, the dominant one claims legitimacy on everything it wishes to do at all times. Because it was the lesser of two evils in the minds of the public it then claims that everything it does is legitimised by democracy. Of course, this is nonsense. Democracy has ebbed and flowed throughout history. Over a couple of millennia one would find there is a generally positive trend but the tide has ebbed and flowed over perhaps half centuries within that time—and perhaps even longer if one looks at some of the revolutions and regimes that have existed. Arguably, in the thousand years since the Romans the progress of humanity was somewhat stultified by the capture of knowledge by the churches. But that is another story.

At any rate, the Government's job is to stand up to vested interests on behalf of the people, not simply to cut a deal with those vested interests. Sadly, this Government has pioneered the idea of spin and media management, so a bullying government, satisfied with mediocrity and rejoicing in power for the sake of power, has been managed by a journalist who makes things look good, meets deadlines and organises appearances. This Government, which has done very little in the past decade, is run by a journalist managing a group of schoolboy bullies. The Government has concentrated power unto itself. It often sees power as an objective of its own. It is almost arrogantly dismissive of good ideas. It is pleased to say: We have the power to do it so we will do it. With globalisation, money is often seen as an object in itself, with people so small they are almost an unmeasurable commodity.
It is convenient for developers that development applications go through quickly. Often they borrow to the nth degree and take a risk with a small amount of capital to make a killing. If they do not have to wait long, the interest payments do not build up and they make far more money. Some years ago I met a developer who deals with five councils in the Hunter region. His index of whether councils were any good related purely to how quickly they approved what he wanted to do. He had no time for any objections to his plans, no feeling that he ought to modify them in anybody else's interests, no introspection as to the direction the development might take. As far as he was concerned, the only thing that graded the council was how quickly he could get his development through it. That living, breathing, walking caricature has stuck in my mind. It is common behaviour of developer organisations. Increasingly this Government is tied to the huge donations of the development lobby in the way it deals with planning.

Some years ago I was at a Public Research Institute dinner. One of the guests asked me, somewhat belligerently, "What right do you have to interfere in the way we run our business?" I caught the tone of his question and told him, "Four per cent of the population of New South Wales elected me to look after their interests. What percentage elected you?" He looked a little nonplussed. I said, "It is shareholders, people wanting to see how much money they make, is it not?" He conceded that was the case. I said, "My job is to work in the interests of New South Wales, and nothing you do is in the interests of the people of New South Wales. That is where I get my legitimacy. That is what motivates me, and that is what I am going to do."

He sat there like a stunned mullet. Presumably he expected me to say, "I am sorry if my modest little effort in the upper House should get in the way of you doing whatever you like." Presumably that is what is normally said to him by members of the Government: We have a begging bowl here, we want people to invest in our State and we will do anything to allow that. This bill follows in the same tradition—which is becoming more frequent with this Government—of all power to the Minister. When in doubt give all power to the Minister; do not allow public input.

The Hon. Patricia Forsythe: Not just any Minister.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I acknowledge the interjection. Often the legislation that goes through this House reflects the personality of the Minister. So if the Minister wants to grab power, the legislation will reflect that. I believe that, pari passu with the bullyboy approach of this Government, there has been a politicisation of the public service. No longer is the public service in any way independent of the government of the day. One could argue that an independent public service effectively runs the Government because it does not implement what the Government wants, and the Government is short term and the public service lifetime tenure means that nothing could be changed.

On the other hand, we now have a Cabinet Office that influences the selection of heads of departments. The Ministers have become fleas on the back of departments. There is nepotism within departments. From my experience within the public service, the bureaucrats at the top keep reorganising their departments until they get who they want where they want. Appointments very much depend on who you know and what you are willing to do. I know of many examples of this, not only from my own experience in Sydney Water. The loss of expertise within the public service is frightening, particularly in the environmental area, where people who are experts in their field are manoeuvred out because their views are inconvenient and do not correspond with the Government's aims.

The public service has lost the expertise of people who provide genuine neutral advice. More often departmental appointments are being made by the Cabinet Office. By appointing clones they concentrate power. This dangerous process has been going on for a decade. If there were a change of government—which, considering the Opposition, is not very likely—the implementation of policies would be resisted by the public service because of its politicisation. In our briefing by the government minders they said, with a straight face, that the bill would improve public input in the process. They spoke complete nonsense with a straight face, which supports my contention about the politicisation of the public service. Admittedly, some of them were ministerial minders.

The significant changes to the planning laws proposed in this bill are extremely detrimental to many aspects of the planning and assessment process, which has existed for nearly 30 years. This is a fundamental step backwards in historic terms. The input by the people in government policy ebbs and flows. This bill is a low ebb. The legislation gets rid of many important environmental planning laws that have existed since 1979 when the Environmental Planning and Assessment Act was first introduced. It removes longstanding checks and balances, such as accountability, transparency, technical oversight and community input. Currently, the most important and potentially environmentally sensitive proposals, such as tourist resorts, mines, marinas, developments in national parks and fragile coastal zones, are protected under State environmental planning policy 71.

This bill proposes amendments that set up a separate regime for major infrastructure developments or any development considered by the Minister to be of State or regional significance. These provisions are contained in proposed part 3A of the Environmental Planning and Assessment Act. Proposed part 3A gives the Minister wide discretionary powers with regard to the approval of major development proposals, the cutting back of the environmental assessment processes and community involvement. The bill applies to two major types of developments: major infrastructure developments, which are any developments that in the opinion of the Minister are of State or regional significance, and critical infrastructure projects, which are any developments that are considered by the Minister to be essential for the State for economic, environmental or social reasons. The definition of these projects is entirely up to the Minister.

The Minister has largely unfettered discretionary powers in the environmental assessment of large-scale projects, approval criteria, the need to consider the views of the public, and procedures governing such projects. The bill concentrates power in the Minister in relation to the need for separate approvals, including approval on issues of pollution, native vegetation, cultural heritage, coastal protection, bushfire safety, rivers and fisheries. It allows the Minister to approve critical infrastructure developments even where local plans prohibit such development. The bill gets rid of the current environmental impact assessment process, including the requirement to prepare a formal environmental impact statement [EIS]. The EIS is an internationally recognised component of responsible environmental planning and should be clearly set out in legislation. The bill leaves the entire environmental impact assessment process to the broader unfettered discretion of the Minister.

A new process for developments under proposed part 3A will be limited to a non-mandatory range of unspecified environmental assessment requirements. The Minister may develop guidelines for environmental assessment and the director-general is to prepare environmental assessment requirements on a case-by-case basis having regard to those guidelines. I call it Minister-may legislation. The Minister may do whatever he likes. A panel of experts may be appointed by the Minister to assess applications for approval, but the Minister is not bound by the recommendations of the panel. The panel has discretion to decide whether it will receive submissions from interested persons, but the Minister is not required to take these submissions into account when making a decision. Indeed, there is no requirement that the panel, should the Minister choose to convene it, comprise experts.

The Minister may require a developer to submit a concept plan for part 3A projects. Concept plans do not have to include any detailed description of the project. This is specifically stated in proposed section 75M (2) (c). Projects will be able to be approved in principle by the Minister prior to full details of the project being made available. Additionally and importantly, there are no appeal rights for objections to the concept plan. This avenue is specifically excluded in proposed section 75L. The concept plan may simply be a vision, a few pictures or some sketches. If the development does not accord with the concept plan, presumably that is a matter for the Minister.

A developer goes to the Minister's office with a concept, has a little discussion and the Minister approves it. The rest is a mere formality. The Parliament is being asked to relinquish all power to the Minister so that he can make deals behind closed doors. There is no process to deal with individual projects. The Parliament does not deal with individual developments, but we delegate power to a process that examines each case on its merits. This bill takes away the power to put a structure in place to examine individual projects on their merits and to allow competing groups to put their case and reach consensus or compromise. By passing this bill we would be approving every deal the Minister may make in closed sessions with developers. That is a backward step.

The bill winds back community involvement in relation to the ability of members of the public to be involved in the pre-approval process; to challenge an approval on legal grounds; to enforce breaches, such as breaches of pollution licences; to seek stop work orders, interim protection orders or notices relating to cultural heritage, threatened species or pollution; and to appeal an approval on the merits of the case. In particular, the provisions in the bill abolish the longstanding rights of any person to take legal proceedings where environmental laws are not being followed. The bill even winds back the ability of the Land and Environment Court to entertain challenges to an approval and to enforce approval conditions, such as pollution licences. The Land and Environment Court has long been nicknamed the developer court because of the infrequent occasions on which the little person wins.
Following the passage of this legislation, the public will not be able to challenge declaration of projects, approval of projects, enforcement of conditions for approval for critical infrastructure projects or breaches of authorisations under section 75V—which deals with substantially consistent authorisations—and the court will not be able to make orders about them. The far-reaching exclusion of community participation is really a very bad feature of this bill. The bill also does away with the necessity for authorisations from many different State agencies and departments relating to fisheries, threatened species, cultural heritage and so on. In addition, interim protection orders and stop-work orders under national parks, threatened species and fisheries legislation will no longer apply.

It is extremely worrying that protection notices under the Protection of the Environment Operations Act or orders under section 124 of the Local Government Act will also be excluded for part 3A developments. The bill amends the National Parks and Wildlife Act so that developers will not be prosecuted for having harmed protected fauna without a licence, if the work carried out is essential for part 3A projects. Developers will be able to defend themselves against prosecution for having harmed threatened species, endangered populations or endangered ecological communities, or for having damaged their habitats, if the work was essential for a part 3A project. They will also be able to use this defence to justify having damaged critical habitat or reserved land, such as national parks.

It is interesting to note that the bill makes a huge number of consequential amendments to other Acts, all of which will have their power watered down in this winner-takes-all legislation. The Government has not put this bill in the framework of a master plan for transport; this Government has never had a master plan for transport or for water. It has basically gone along ad hoc with the new concepts, which have all been put out to tender and then written by developers in their areas of interest. There is not an overall view; this Government has never had an overall view. As the Hon. Patricia Forsythe said in her contribution, the real problem with infrastructure in this State is that the Government has not put any money into it.

The Government has not put any money into infrastructure because it has forgotten the method. It has forgotten that the State once built things. It issued bonds, it borrowed the money and it built the infrastructure. It was not declared bankrupt because the infrastructure it built was always well ahead in value of the money it invested in that infrastructure. There is nothing wrong with borrowing if you have assets. So far as infrastructure is concerned, that is the critical aspect. This Government is too scared to say to the merchant bankers and businessmen, "We will borrow the money and we will build this thing, and you cannot have the huge commission that you want to be involved in a public-private partnership."

It worries me that the Opposition, which wants to build everything by way of public-private partnerships, will leave us with the liability but without ownership of the assets. If anyone wants to use the asset they will be beholden to the private partner. The profit will be guaranteed by the taxpayer, who will have the liability should anything go wrong, but the profit will be taken by the developer. The Liberal Party's amendments, unfortunately, are weak. They want to wait for the definition of "critical infrastructure" to be inserted in a regulation. I do not think the Opposition is really serious about changing the nature of this bill. I do not believe that this bill can be changed.

I fear that the members of the Opposition, while fluffing their feathers, want to vote this bill through on the basis that they want to give the development lobby as much as Labor gives the development lobby, and want the donations just as much as the Labor Party wants them. That is most unfortunate. The bill is going in the wrong direction. Yes, democracy takes a bit longer; yes, democracy requires more voices; yes, it is more complex, but this is fundamentally a country that belongs to its people and not to developers. It is not there just for the exploitation of a few; and it is not there to enable a Minister to cut deals behind closed doors, which is what this legislation facilitates. I do not believe the bill can be fixed. I note that the last time this bill was before the House more than 100 amendments were moved by the Greens. The Greens fought for each of the amendments but were voted down on each one by the two big parties. The Greens have not bothered this time and I can understand that they are, in a sense, wearing out. Mr Ian Cohen might speak about that aspect. This bill cannot be fixed; it must be voted down.

Mr IAN COHEN [5.15 p.m.]: I am pleased to speak in support of Ms Sylvia Hale on the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill. I certainly have a feeling of deja vu on a number of levels, having gone through this process before. Before I stood to speak in this debate the Hon. Eddie Obeid asked me, "Are you moving any amendments?" I remember the first round of planning legislation, I am told it was in 1997, and I know the Committee took all night to deal with the bill. I was the only member of the Greens in the New South Wales Parliament at the time. A former member of this Chamber, Richard Jones, and I had 150 amendments between us. Neither the Government nor the Opposition was prepared to listen to our arguments. I recall that, at the time, Reverend the Hon. Fred Nile was vehemently opposed to our amendments and supported the legislation. I will be interested to see how he and Reverend the Hon. Dr Gordon Moyes vote this time around.

It is interesting to look back over the period of 10 years that I have been a member of this House. I remember how I went through my 75 amendments one by one. Richard Jones did the same. We worked hard to try to convince members of this Chamber. I guess I have learnt a lesson; we will not bother with amendments to this bill tonight because it really is an utter waste of time, unfortunately. The legislation is so abjectly flawed I think that it deserves some historical comparison. It is interesting to note that we went through that process right through the night. I recall looking out the glass windows at the conclusion of the 150 amendments to see the grey sky of dawn. I wandered up to my room and I recall that I was quite upset about the reality of life in this place and upset to think that, of all those amendments, not one was worthy of any support. It was certainly an interesting thing to contemplate after the best part of a 20-hour sitting of the Parliament.

Some things have not changed. The Hon. Craig Knowles, who was Minister for Planning at that time, is Minister for Infrastructure and Planning now. He derives a certain pride in his attitude of take no prisoners and support no amendments. That is it. He believes such things should go through his way. There is no point in discussing the matter with him or with his weasel-worded advisers who talk about how beneficial this kind of legislation is going to be for the people of New South Wales. What a load of crap! Where are we coming from that we are supposed to listen to that type of advice?

As I said earlier, I would like to make a certain historical comparison because I think it is appropriate. It was interesting in our discussion and investigation of this legislation that it really comes down to the fact that more than 30 years ago in Queensland the State Development and Public Works Organisation Act 1971—Joh Bjelke-Petersen's Act—did very much what the current planning Act, under the auspices of the Hon. Craig Knowles, is doing this very day in the New South Wales Parliament. History has shown the legacy of Joh Bjelke-Petersen and I would venture to suggest that history will show the legacy of Craig Knowles in this Government that is way beyond its use-by date halfway through its third parliamentary term.

However, the State Development and Public Works Organisation Act 1971, which was used by Joh Bjelke-Petersen—I am sure some members of this House think he did a great job—is still in place and is used for $50 million-plus projects such as tunnels and projects such as the Paradise Dam. Interestingly, however, an environmental impact statement is still compulsory. So on one tick, from a community point of view Joe Bjelke-Peterson's legislation of 1971 was better than Craig Knowles's bill. Joe Bjelke-Peterson's bill can be challenged on judicial review grounds—this bill does not allow that—subject to someone getting standing "as person aggrieved". What is this? Is it a glimpse of public participation? It might even be something akin to third party appeal rights. The term "as person aggrieved" was allowed under Joe Bjelke-Peterson, but forget about it under Craig Knowles and the New South Wales Labor Government.

The State Development and Public Works Organisation Act 1971 takes significant projects out of the Integrated Planning Act and puts them through processes in the Department of State Development, which, arguably, may at the time have been somewhat worse than it is here in New South Wales. After all, the Joe Bjelke-Peterson legislation is more than 30 years old. Concurrent powers become merely advisory for these significant projects. Interestingly, in New South Wales all major projects dispense with concurrence powers. Again, it would appear that the Queensland experience under Joe Bjelke-Peterson was better than it is in New South Wales under Craig Knowles. One could argue all day long about whether the Queensland Act is better than the New South Wales legislation. However, one thing is very clear: they are very similar models, which perhaps is all one needs to say.

It is obvious that the Greens are vehemently opposed to the bill, as Ms Sylvia Hale clearly detailed. It is equally obvious that the Opposition is concerned about the bill, but it is not prepared to refer it to a committee or to oppose it. Clearly the Opposition is very comfortable about the Labor Party doing the dirty work, putting this sort of legislation through. If—or I suppose when—the Coalition gets into power, it will be able to use this legislation to the hilt. The two major parties are at one in promoting the interests of developers above and beyond the interests of the general community.

Clearly, the dominant faction of Labor has lost any drive it may have had to support the general public. In recent days we have seen plenty of that. Despite the fact that it is likely that the majority of members of this House, including the crossbenchers, would support the Opposition in opposing this legislation, no such move has been made. And, as I said, nor has the Opposition made a move to refer it to a committee in order to slow down the process, because clearly the Opposition wholeheartedly supports this type of legislation.

The Greens believe that this legislation is extremely retrogressive and aggressive. It is an attack on the rights of the community and it undermines the fundamental principles of public participation, transparency, and environmental protection. The bill proposes major and alarming changes to the environmental assessment process for large-scale developments in New South Wales. It removes many of the hard-won environmental and planning provisions that have existed since 1979, when the Environmental Planning and Assessment Act was introduced. It gives the Minister absolute power to throw environmental controls out the window. The forward-thinking and progressive legislation established under David Landa and the Wran Government has been absolutely turned around in just a few decades.

The bill sets up a regime for major infrastructure development, or any development of State or regional significance, critical infrastructure projects, and major development projects. These include aquaculture, mining and construction projects, sporting facilities, hospitals, ports, electricity generation, sewage treatment works, and various other coastal developments. With regard to electricity generation, I will be interested to see whether there will be such a forward lurch by big business interested in an alliance with the Labor Government. I would like to know—perhaps I will ask this during question time—whether the desalination plant, the purpose of which is to generate water, is mooted by the Government to supply water to the nuclear power plant to generate electricity? Or is the nuclear power plant to generate electricity to get water through the desalination process?

Reverend the Hon. Dr Gordon Moyes: They would have to be in close proximity to each other.

Mr IAN COHEN: I take the advice of the Reverend the Hon. Dr Gordon Moyes: put them close together in a marginal electorate. Maybe we can locate them just offshore in the sewage stream so we can pick up the sewage outfall at the same time and do the complete job. This demonstrates the Government's absurdity in proceeding with these big-picture, technological solutions. It misses the point completely.

I suppose I will be satisfied with this debate and debates on similar issues being put on the record, because I do not expect to get anywhere with this one. But how small-minded is the Government; it is unable to see that it is being led by the nose by the big bureaucracies—partly because its Ministers are lazy, do not do their homework, and do not oversight what is going on. They get lines on maps from the Roads and Traffic Authority and they get diagrams of pipes going into the ocean from Sydney Water, and then the Government realises it has a problem and decides to build another pipe. It is an engineering fix all the way along the line, and this legislation will facilitate the unimaginative, technological direction taken by the New South Wales bureaucracies, aided and abetted by the New South Wales Labor Government.

Members continually condemn the Greens, and make a joke and farce of the points of view we put forward, but they miss the point. They miss the point about demand management, about frugality of use, and about utilising the resources of waste we have at hand so we can create a conserving society. That does not mean that anyone has to miss out on the comforts of modern life; it is just an intelligent approach that is sadly lacking—possibly because we have a government that has been in power for too long and an Opposition that is not interested. I suppose the Opposition is waiting for the Government to fall—which will happen eventually.

The Hon. Duncan Gay: You've propped them up for two elections now.

Mr IAN COHEN: I used to credit the Deputy Leader of the Opposition for being a bull that roared, but now he is more like a sheep that bleats. We do not even get quality interjections in this House any more. It is absolutely pathetic. The standard of debate, even by way of interjections, is going down the drain.

The Hon. Duncan Gay: You are embarrassed that you want to keep them in power.

Mr IAN COHEN: There is no embarrassment at all.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind the Deputy Leader of the Opposition that he should not interject. And members should not make sheep noises.

Mr IAN COHEN: Unfortunately it is very difficult to control the bleating in this House.

The Hon. Ian West: Hurry up; we want to go home.

Mr IAN COHEN: The Hon. Ian West said, "Hurry up; we want to go home." That probably sums it up.

The Hon. Ian West: It would be all right if you said something sensible.

The Hon. Don Harwin: He's entertaining us.

Mr IAN COHEN: I am. When I hear the bleats from both sides of the House, and comments like "We want to go home" and "It would be all right if you said something sensible", I would not expect to be understood by many of the sheep in this House. But that is the way it goes, and I have a right to say what I want to say. I represent a significant portion of the community of New South Wales. There are people who agree with the principles put forward by the Greens and other minority groups in this House.

In terms of sewage treatment plants and coastal zone developments we are looking at specific sites such as Kurnell and the Rhodes Peninsula, and at the Redfern-Waterloo Authority project. The criteria for "critical infrastructure" and "major development" projects are not clearly defined. The Minister has discretion to designate a project as major infrastructure. New part 3A of the bill removes opportunities for community involvement for critical infrastructure projects, which are defined as being essential to the State for economic, environmental or social reasons with regard to the ability to be involved in pre-approval; to challenge an approval on legal grounds; to enforce the approvals, such as breaches of pollution licences; to seek stop-work orders, interim protection orders and notices regarding cultural heritage, threatened species and pollution; or to appeal on the merits. We are seeing a massive reduction of rights here.

The new part also abolishes the right of any person to take legal proceedings if environmental laws are not being adhered to—basic third-party appeal rights and the rights of individuals to seek redress in court. Although we have seen many cases where the Government has overridden those rights with further specific legislation—that has been pretty disgusting—now all the rights are to be abolished. Further, the provisions will remove the ability of the Land and Environment Court to entertain challenge to an approval and enforce approval, such as breaches of pollution licences. It is interesting also to see in some 13 pages of the "Legislation Review Digest" that the Legislation Review Committee—which is dominated by Australian Labor Party membership—certainly has concerns with concept approvals. I will not go through all the details but paragraphs 70 and 71 state:

70. The Committee notes that approval of a concept plan may significantly impact on persons adversely affected by development that would normally be categorised as designated development within that plan.

71 The Committee has written to the Minister to seek his advice as to why the Bill makes no provision for an objector to appeal against the approval of a concept plan.

Why not? Government members dominate that committee. But I am sure that as far as the Minister is concerned it will fall on deaf ears. The environmental impact assessment [EIA] process, including the requirement to prepare a formal environmental impact statement [EIS] for large-scale developments assessed under proposed part 3A, is removed. The entire environmental impact assessment process will be left to the broad, unfettered discretion of the Minister.

The Minister may develop guidelines for environmental assessment, and the director general is to prepare environmental assessment requirements on a case-by-case basis having regard to the guidelines. A panel of experts may be appointed by the Minister to assess applications for approval, but there is no requirement that the recommendations of the panel bind the Minister. All public involvement is at the discretion of the Minister. We know the history of Minister Craig Knowles. We have seen how he has treated public involvement and we have seen how he listens to the developer lobby and certainly not to the public, whom he constantly disparages.

In effect, this bill takes environmental assessment out of the Environmental Planning and Assessment Act. The bill removes the need for authorisation from other State agencies and departments in regard to a vast number of environmental safeguards. Proposed section 75U (a) removes the need for concurrence, under part 3 of the Coastal Protection Act 1979, of the Minister administering that part of the Act. The New South Wales coastline is under enormous development pressure. Every year hundreds of new tourist, residential, commercial, and aquaculture developments are proposed and approved along fragile coastal land. Wetlands, estuaries, foreshores, dunes, coastal lakes, forests and headlands are all impacted by inappropriately located and designed developments. Removing the need for concurrence with the Coastal Protection Act will no doubt endanger our fragile coastal ecosystems even further. I really do not know how a government can claim it is in some way environmentally sensitive under these circumstances.
Section 75U (b) removes the need for approval for a permit under sections 201, 205 or 219 of the Fisheries Management Act 1994. This means there is no need for approval from the fisheries department to carry out activities such as dredging or land reclamation that could affect fish breeding, passage and habitat areas and harm marine vegetation such as seagrass or mangroves. This could have enormous implications for marine species, including those that are already endangered. Seagrass beds are valuable fish habitats. They provide food and shelter for many different fish and a diverse range of crustaceans, and they protect small fish from larger predatory fish.

Reverend the Hon. Dr Gordon Moyes: Like grey nurse sharks.

Mr IAN COHEN: That is correct. Like grey nurse sharks, and they are certainly running out of habitat. As a result there is commonly a greater diversity and abundance of fish in seagrasses than in unvegetated areas. The destruction of seagrass beds for development would inevitably have devastating effects on marine diversity. Very often these are the nurseries—the areas where stocking for both commercial and recreational fishers is undertaken in a natural process. Commercial fishers are equally concerned as seagrass beds are the nurseries for the fish stocks on which they rely, as Department of Primary Industries reports have shown. The destruction of seagrass beds will see a depletion of fisheries resources for the commercial fishing industry. The removal of the need for concurrence with the Fisheries Management Act also overrides the threatened species provisions in that Act.

Section 75U (e) removes the need for an authorisation, referred to in section 12 of the Native Vegetation Act 2003, to clear native vegetation. The conservation of native vegetation is critical to conserving biodiversity, countering soil and water degradation, maintaining and improving agricultural productivity, and reducing climate change. Conserving our remaining native vegetation is becoming more and more difficult, with the forestry industry's devastation of our precious forests and with illegal clearing by landholders. This legislation gives developers open slather to clear native vegetation.

Section 75U (f) removes the need for a permit under part 3A of the Rivers and Foreshores Improvement Act 1948, for excavation on foreshores of rivers, lakes and other aquatic areas. These are some of the most fragile ecosystems, being susceptible to siltation, erosion, salinity and pollution. Removing this concurrence puts our waterways under increasing threat. We have so many of these waterways up and down our coast. Lake Ainsworth near Lennox Head is under attack from blue-green algae and pollution; it is already under threat. Areas on the South Coast such as Wallaga Lake in our western wetlands and so many other areas are all under threat, in part because of drought but also in great part because of human activity. This will lower the defences for these very fragile habitats.

Section 75U (g) removes the need for a bushfire safety authority under section 100B of the Rural Fires Act 1997. This means that such permits are not necessary in areas that are highly prone to bushfire. Surely the bushfire history of New South Wales over the past decade in particular would indicate that bushfire safety needs to be taken seriously. Currently, 91 per cent of the State is in drought and we are experiencing record high temperatures. How does this bode for future fire risk? Yet major developments will not be subject to a bushfire safety authority under this bill.

Section 75U (h) removes the need for water use approvals under section 89, a water management work approval under section 90, or an activity approval under section 91 of the Water Management Act 2000. This means that approval is not necessary for the right to use water at a particular location or to carry out work that could affect the surface or groundwater, for example, the drainage. The bill also removes the power for the Environment Protection Authority to issue an Environment Protection Notice under the Protection of the Environment Operations Act. These notices are to clean up pollution, prevent pollution, or prohibit the carrying out of something that pollutes, and compliance costs for damage done.

The notices are a major tool for ensuring compliance with the Protection of the Environment Operations Act. So it seems that developers of major projects will be given free rein to pollute, without facing the consequences. But of course the Minister says, "Trust me." This is "trust me" legislation. We have to trust Craig Knowles that he has been able to work through his bureaucracy and has sufficient expertise, after he has gutted local government throughout New South Wales in the first round of planning to privatise the process of local government.

The Department of Infrastructure, Planning and Natural Resources does not have the expertise to deal with this new regime and new way of doing business. It certainly does not have enough knowledge of specific areas. There is an empty canyon of ignorance between local government and State government agencies. Despite Minister Knowles' assurances, particularly his speech in reply in the other place, the department has insufficient expertise to do adequate and proper mapping. The result of this bill will be an increase in poor planning decisions. In his reply in the other place the Minister stated:

During the second reading debate some remarks contained an assumption that my view reflected a false view that somehow a quantity of process equates to quality of outcome.

In response to that Jeff Smith, Director, Environmental Defenders Office, said:

The legislation contains limited assurances around any processes. Processes—and in particular involvement of the community—also determine outcomes.

The Minister then stated:

That, of course, is arrant nonsense. By constantly adding to the process, particularly in an environmental assessment, the international evidence is clear that it degrades and diminishes environmental outcome.

Jeff Smith said:

No doubt that EIA is flawed in NSW. However, well-established internationally and domestically, offers a degree of accountability... This Bill is not the answer to EIA problems.

The Minister further stated:

There is a false view that more time axiomatically gives a better result.

Jeff Smith responded:

More time may do so, though—concurrence and "stop the clock" can add to the quality of decisions by making agencies take a hard look at a proposal.

The Government has done away with "stop the clock", and the process now will not necessarily result in quality decisions. The Minister continued:

There is a view that governments can work only within their silos and that environmental assessment has to be done sequentially.

Jeff Smith replied:

Concurrence is about checks and balances and having the experts making decisions.

That will certainly not be the case under this new regime. The Minister continued:

The word "may" has been incorporated in the planning Act since 1979. The use of the word "may", the discretionary power, as opposed to the word "shall", the obligatory power, has always been reflected in the Act, and there is no change. Indeed, it is a direct carryover.

In response Jeff Smith said:

The specific concern here is the discretion re community participation. Conservation groups have always argued that community rights should sit alongside development rights in the legislative framework. True that presently Parts 4 and 5 deal with a lot of community participation in the regs. The bill continues this practice but also does not require the Minister to take public submissions into account and we have not seen the regs which would go towards any "carryover".

This is another example of the sort of "trust us" legislation that is blindly accepted by the Opposition in this House. Indeed, much of the detail of this bill is in the regulations. It is merely a smoke screen, which will be a further blow to the community and the environment. Quite frankly, I do not believe we can trust Craig Knowles. His record clearly demonstrates his orientation and propensity to work with developers rather than with the people.

Local government powers that order a developer to refrain from carrying out damaging activities, such as preventing or repairing damage from drainage works or demolishing or building something that pollutes the water supply, have also been removed. Other projects that cannot be refused include aquaculture projects, mining leases, approvals under the Mine Subsidence Compensation Act, petroleum production leases or environment protection licences. In short, the amendments remove almost every layer of environmental assessment, protection and approval that government departments apply. This will allow State significant projects to go through a one-stop-shop process without interference and is an abrogation of democracy.
Paragraphs (a) and (b) of proposed section 75U (3) clearly demonstrate that the Threatened Species Conservation Act does not apply. The bill totally overrides the Threatened Species Conservation Act with respect to interrupting protection or stop-work orders. The continuing loss of native flora and fauna is one of the greatest environmental problems in New South Wales today. When the Threatened Species Conservation Act 1995 was introduced there was a sense of optimism, which I shared. That significant legislation promised a way forward on the protection of endangered flora and fauna. Last year threatened species legislation was downgraded through amendments to the Threatened Species Conservation Act. This bill now seeks to override threatened species legislation altogether. Under this bill developers will be immune from prosecution for killing endangered species.

Almost four years ago the Government introduced SEPP 71 to protect the coastal zone outside Sydney from ad hoc destructive, sprawling development. Now, every State significant development that falls under the policy in the fragile coastal zone outside Sydney can avoid environmental checks and balances from other State environment agencies and even local council regulations. State significant development that impacts on coastal wetlands and littoral rainforests is also exempt from crucial environmental checks and balances.

Given the expense of developing land on our coastline, any declaration of development as "State significant" will lower the bar for coastal development. These changes will make it easier for developers to do what they want, where they want. Environmental controls are applied for good reason: to protect the environment and the community from development that is damaging or inappropriate and from overdevelopment. These environmental controls will now be irrelevant in the face of major development.

The bill will allow the Minister for Infrastructure and Planning to give the green light for the destruction of Aboriginal cultural heritage sites without affording justice and fairness to Aboriginal traditional owners. The bill removes concurrence, referral and approval from the National Parks and Wildlife Service for the destruction of Aboriginal objects or places. I understand that the Indigenous Justice Advocacy Network is proposing a High Court challenge to this legislation. The provisions in section 75U (d), which remove the need for a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974, have been described by some as cultural genocide. It is appalling that developers will have a green light to destroy Aboriginal sacred sites and artefacts, without even having to concur further with the relevant provisions of the National Parks and Wildlife Act.

I live in an area on the far North Coast that is under threat. Indeed, certain developers will cry tears of joy, particularly development companies such as Becton, which previously had to deal with the local council. In addition to introducing the new planning regime to allow the Minister for Infrastructure and Planning to be the consent authority for State significant development valued at more than $50 million, the bill also introduces a new process called "concept approval". This will give in-principle approval to developments prior to any detailed assessment of a project. It is another case of the Government fast-tracking development without any real commitment to assessment. I will quote Councillor Jan Barham, Mayor of Byron Shire Council, a good friend and tireless worker for improved quality of life in what I believe to be an iconic shire. She said:

The Government is delivering to developers an easy access for approvals. Instead of Local Government having the final say on major developments, the Minister will be the consent authority. This makes a mockery of the planning processes for local communities as the State will not be bound to local planning rules when assessing these developments or be aware of the impacts of development. A new approval process by the Minister for "concept approvals" does not even involve public consultation …

I have been supportive of the State reviewing local government planning processes and requiring standardised definitions and planning standards. This new process will take some years for councils due to the work involved in preparation. The Government states that they may devolve the consent authority back to council when councils have their rules in place. If this is the case, then surely it would be more appropriate to assist local government and work in partnership on these issues rather than create the opportunity for councils to be bypassed in the approval process. The new legislation does formalise the new planning principles but as yet the new template for LEPs has not been released.

The Government is creating laws to allow for the fast tracking of development and cutting "red tape", which is code for what communities called adequate assessment. On a local level it will mean less local input to development approvals and uncertainty about local expertise being used to assess applications. The government is proposing Independent Hearing and Assessment Panels consisting of one or more experts to provide technical evaluation of projects.

It appears that the Government does not understand the detailed nature of local assessment and the understanding of the impacts of proposals, particularly in sensitive coastal environments and for community amenity. In an assessment process there can be more than ten areas of local expertise needed to assess the impact of a development. In the past we have seen inappropriate approvals delivered by the court system due to the lack of understanding of local conditions and ultimately it is local government who must deal with the impacts …
Changes such as this should have been proposed as a draft for detailed consultation with local government and the community instead of being rushed through the Parliament. We have seen the problems with these processes previously with the poorly drafted SEPP 71 Coastal process. The Government should not move forward with these changes until it consults broadly and considered the consequences of such changes. There does not appear to be the budget or staff available to DIPNR to undertake the additional workload required if these moves go ahead and this will give rise to less scrutinised applications, which rely on the applicants information.

Good development takes time, it is essential for the details of a proposal to be properly assessed and for the community to have meaningful input to the process. The new legislation strips away challenges to certain decisions and undermines environmental legislation for protection and stop work orders which were previously provided to councils to intervene if inappropriate work or impacts were identified during development.

The Government has however identified the inappropriate nature of Masterplans and has replaced the requirement for them with site specific DCPs (development control plans). This action supports the move taken by Byron Council in relation to the Becton site to produce a DCP.

It is a great shame that the Government is not taking the opportunity to work with local councils. Historically, such opportunities have been bypassed by Ministers and Governments more interested in working with the big end of town to ensure development at all costs. It is shortsighted of the Government and the Minister to take this direction, but it is what I have come to expect from them. It is interesting and laughable. Although nowadays I sit here and expect such a direction from the Government, I recall being shocked by that attitude in 1997. Perhaps I have been here too long. Perhaps I would do better elsewhere. I will give that some serious thought.

The Hon. Tony Kelly: Some of your colleagues have been trying to do that.

Mr IAN COHEN: I note the Minister's interjection, and in response I point out that the Government and the Opposition, and not my colleagues, are responsible for this attack on the people of New South Wales. In short, this bill removes the hard-won rights of people to be involved in the planning of their communities, dramatically winds back environmental protection, overrides other important legislation related to environmental, cultural and heritage protection, removes the guarantee of environmental impact assessment and reduces transparency for the entire process for large-scale developments. I am happy to join with Ms Sylvia Hale and Ms Lee Rhiannon in opposing this bill.

Reverend the Hon. FRED NILE [5.54 p.m.]: My colleague has already spoken about the bill in detail, but I have been provoked by Mr Ian Cohen's presentation to put on the record where I stand. In my 24 years as a member of this House I have witnessed the accumulation of more and more green tape, strangling green tape—albeit most with all good intentions—from both sides of politics. Despite what Mr Ian Cohen said, I would call this the courageous civil progress and prosperity bill. Its official title, of course, is the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill.

Mr Ian Cohen: That's all you do—read the title of the bill and then regurgitate the Government's position.

Reverend the Hon. FRED NILE: This is my contribution.

Mr Ian Cohen: You don't analyse the situation.

Reverend the Hon. FRED NILE: I do.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind Mr Ian Cohen that he should not interject.

Reverend the Hon. FRED NILE: I repeat: this courageous civil progress and prosperity bill will create growth, development and, more especially, jobs in New South Wales with adequate assessment of the environment and community protection. Over the years the pendulum has swung far to the left, and now it is swinging back to the centre. It is not swinging to the extreme right; it is simply swinging to the centre. I support the bill, which could also be called the cut the strangling green tape bill. As Mr Ian Cohen was speaking I thought of that as another possible title. The bill deals with the problems of 15 different approval systems that have been complicated, confusing and costly. I will not defend Sir Joh Bjelke-Petersen—

Mr Ian Cohen: You might as well.

Reverend the Hon. FRED NILE: Mr Ian Cohen criticises Sir Joh Bjelke-Petersen, in my view falsely and wrongly. I suggest he go to Queensland, where he can see eight-lane superhighways, not the little laneways we have in parts of New South Wales. The bill provides protection through the Chief Executive Officers' Forum and the independent hearing and assessment panels. The House should pass it.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I call Mr Ian Cohen to order for the first time.

Reverend the Hon. FRED NILE: We should allow the people of New South Wales to receive the benefits of this legislation.

The Hon. PATRICIA FORSYTHE [5.57 p.m.]: I speak to the amendment of Ms Sylvia Hale. The Carr Government has demonstrably failed to deliver infrastructure for the people of New South Wales. If the Green's amendment is successful, the Carr Government's spin will be that for some period into the future anything relating to the infrastructure failure will be blamed on the Legislative Council. People will say that the Legislative Council is not enabling something to happen. That is what the Government will do. The Greens know exactly how this Government operates. The Opposition will not give them the satisfaction of diverting attention from the Government's record on infrastructure by supporting an amendment that refers the bill to a committee for an inquiry—an inquiry that does not have, for example, a reporting date. The amendment merely states, "for inquiry and report". We will not do that.

We are not prepared to allow the Government off the hook when it comes to infrastructure in New South Wales. Although the Greens may see this as a way forward, for whatever reason, I say to them: a better way forward would be to address some of the fundamental concerns in the legislation and support the amendments that the Opposition will move in Committee.

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [5.59 p.m.], in reply: I thank all honourable members who contributed to the debate on the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill. The wellbeing of our economy depends on business being able to work with certainty, at minimum risk, with low transaction costs and appropriate levels of regulation. The bill demonstrates the Government's determination to take decisive action to achieve these objectives. By establishing greater certainty and efficiency in the assessment of projects of State significance and major infrastructure projects, the bill supports our economy and the Government's desire to provide opportunities to the private sector to participate in the delivery of our infrastructure programs.

The bill, which was developed following extensive consultation, introduces new mechanisms that will ensure the Government delivers quickly and efficiently on its infrastructure programs. Projects for roads and transport, schools, hospital upgrades, and water and energy projects are obvious examples. A single assessment and approval system for major development and infrastructure projects will replace approval processes currently scattered throughout several pieces of legislation. The environmental protection provisions under nine different Acts will be integrated into a single approval system. The bill will ensure the State focuses properly only on those matters that are genuinely of State or regional significance with a significant number of projects being returned to local councils for approval. In other words, it will make sure councils get more projects to look at and fewer will be taken from them. Councils have assured us that they are very happy about that.

For complex projects, concept approvals will increase certainty up front and will reduce environmental and investment risks and costs. Of importance, they will allow the community to comment earlier in the development process, and they will allow for community views to be taken into consideration in the refinement of the projects. The new environmental assessment procedures will address the real social, economic and environmental impacts that arise from specific proposals; they will not just constitute a compendium of information. To add to the environmental rigour in the assessment process, the assessment will be carried out under guidelines and protocols to be developed by a new Chief Executive Officers Forum, which will be made up of the directors-general of the major regulatory agencies. The guidelines and protocols will set the rules for assessment methodology, consultation requirements and performance levels, and will ensure that high environmental outcomes are achieved.

The bill provides that, for the first time, guidelines will be issued by the Minister rather than the director-general. In another first, they will be gazetted to ensure transparency and they can only be adopted after consultation with the Minister for the Environment where they relate to matters concerning threatened species and Aboriginal cultural heritage. The level of assessment will be tailored to the complexity and likely level of significance of the impacts of the project in question. Let there be no mistake—this bill will ensure that the impact of proposals on critical habitat, threatened species and Aboriginal cultural heritage will be appropriately assessed under the new provisions.

I take this opportunity to emphasise that consultation will continue to be an essential part of the assessment process and will now occur earlier in the process. The bill provides that environmental assessment of all projects must be notified for a minimum of 30 days, with submissions invited from government agencies, councils and the community. These reforms provide additional opportunities for community participation. With new hearing and assessment panels, community consultation at the concept plan stage, making proponents respond directly to community concerns, and requiring proponents to provide a statement of environmental and social commitment for every project, this bill goes further than ever before with practical opportunities for community participation.

The bill makes it clear that State environmental planning policies must be considered when making a determination about a project—including a critical infrastructure project. Before commencing proposed part 3A the Government will ensure community consultation and environmental assessment is enhanced by amending the State significant development SEPP to expressly provide that appropriate consideration is given to economic, social and environmental impacts of proposals, the suitability of the site, a report on community submissions and other community consultations, and other public interest matters before determinations are made.

Proposed part 3A of the Environmental Planning and Assessment Act will strengthen environmental outcomes and provide for earlier consideration of environmental constraints. These changes will provide a more systematic approach to resolving environmental issues, replacing current single-issue considerations. Earlier consideration of environmental constraints will allow earlier and more effective influence over project design and location decisions. This provides better outcomes for the community and the environment without unreasonable cost to the proponent. The Government will ensure that proponents of major projects deliver on their commitments to communities on environmental outcomes.

The bill strengthens the compliance and enforcement tools available under the Act to ensure environmental safeguards are delivered on the ground. The bill provides a new suite of investigative, compliance and enforcement powers for authorised officers of the Department of Infrastructure, Planning and Natural Resources [DIPNR] to ensure projects approved under the new part are carried out in accordance with their conditions of approval. The bill strengthens the monitoring, compliance and audit powers, and provides for offences where the monitoring or audit reporting has been inadequate, false or misleading. The bill gives DIPNR more powers to stop work on a project if there is danger of any environmental harm. These provisions give real teeth to ensure that the outcomes required by the new integrated assessment process are delivered by proponents when constructing and operating projects approved under the new system.

Yesterday in the other place the Opposition sought further information about reference in the bill to critical infrastructure. That information was provided at the end of the debate and confirmed in a letter to the Leader of the Opposition. I reiterate it here today. Infrastructure will only be declared critical where its speedy completion is considered essential to the social, economic or environmental welfare of the State. Declarations about critical infrastructure will be made following proper consideration. It is not a measure that the Government will invoke lightly. The types of projects that might be declared to be critical infrastructure are those that are essential to the State.

This morning the Government announced that the north-west rail link would be declared critical infrastructure, and no-one can argue with that decision. That new rail line will go from Cheltenham to Rouse Hill via Castle Hill and will include a 16-kilometre tunnel. Another example of what might be considered a critical infrastructure project, if Sydney's water crisis continues and dam levels continue to fall, is the desalination plant because of its importance in providing drinking water to the people of Sydney. Another item that could be declared critical infrastructure is particularly important to rural members—a project to secure water supply for Goulburn as it faces a critical water shortage.

For any project to be a critical infrastructure project a thorough risk assessment will be made taking into account financial, economic, social and environmental risk. First we will look at the financial and economic risks to the State of delivering or not delivering the project. Second, we will need to look at the community implications of delivering or not delivering the project in a timely manner—the extent of social dislocation and the extent of hardship or cost to the community if the project is not delivered quickly. Third, we will need to consider the environmental risks of streamlining the delivery of the project—what are the benefits, what are the disadvantages and how will the environment gain from the timely delivery of the project?
The bill provides a clear process for making these declarations. A declaration can only be made either by an order by the Minister that is gazetted and made publicly available or by State environmental planning policy made by the Governor, which is also gazetted and made publicly available. It is important to understand that, once declared, critical infrastructure projects will be the subject of an appropriate environmental assessment. The environmental assessment will take place in accordance with the guidelines provided for in the bill. These guidelines will ensure all environmental impacts are appropriately assessed—not just threatened species, critical habitat or Aboriginal cultural heritage. After ensuring only appropriate projects are declared critical infrastructure and ensuring that they are subject to an appropriate environmental assessment, the Government makes this commitment to the communities of New South Wales: we will make sure that these critical infrastructure projects are built.

There have been some calls to make regulations to specify in more detail what types of projects might be declared critical and how they might be implemented. Sufficient powers are currently available under the Environmental Planning and Assessment Act to achieve this. However, as an initial step, the Minister has indicated that he is satisfied the gazetted guidelines will meet these purposes. He has given an undertaking that he will monitor the operation of the critical infrastructure provisions over the next 12 months. If a need to move from guidelines to regulations is demonstrated after that period, regulations will be made.

With the new compliance and enforcement powers in the bill we will be able to make sure that critical infrastructure projects, as well as the other projects approved under the new provisions, are built and operated in accordance with the conditions of their approval. The Government has moved decisively with its planning reform agenda to cut red tape and provide regulatory conditions to support a strong economy, jobs growth, and both public and private sector investment. The competitiveness of New South Wales will attract sustainable infrastructure and investment opportunities to support the economy of New South Wales, which depends on an efficient and clear development approval system underpinned by an up-to-date planning regime. This bill is a very competent piece of legislation and it will underpin the State's economy for generations to come. I commend the bill to the House.

Question—That the amendment be agreed to—put.

The House divided.

Ayes, 4

Mr Cohen Ms Hale Tellers, Dr Chesterfield-Evans Ms Rhiannon

Noes, 33

Ms Burnswoods Mr Catanzariti Mr Clarke Mr Colless Mr Costa Ms Cusack Mr Della Bosca Mr Donnelly Ms Fazio Mrs Forsythe Miss Gardiner Mr Gay

Ms Griffin Mr Hatzistergos Mr Jenkins Mr Kelly Mr Lynn Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Mr Oldfield Ms Parker Mrs Pavey

Mr Pearce Ms Robertson Mr Roozendaal Mr Ryan Mr Tingle Mr Tsang Dr Wong Tellers, Mr Harwin Mr West

Question resolved in the negative.

Amendment negatived.

Question—That this bill be now read a second time—put.

The House divided.

Ayes, 33

Ms Burnswoods Mr Catanzariti Mr Clarke Mr Colless Mr Costa Ms Cusack Mr Della Bosca Mr Donnelly Ms Fazio Mrs Forsythe Miss Gardiner Mr Gay

Ms Griffin Mr Hatzistergos Mr Jenkins Mr Kelly Mr Lynn Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Mr Oldfield Ms Parker Mrs Pavey

Mr Pearce Ms Robertson Mr Roozendaal Mr Ryan Mr Tingle Mr Tsang Dr Wong Tellers, Mr Harwin Mr West

Noes, 4

Dr Chesterfield-Evans Mr Cohen Tellers, Ms Hale Ms Rhiannon

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time.


In Committee

Clauses 1 to 4 agreed to.

[The Chair of Committees left the chair at 6.25 p.m. The Committee resumed at 8.00 p.m.]

The Hon. PATRICIA FORSYTHE [8.00 p.m.]: I move Opposition amendment No. 1:

No. 1 Page 5, schedule 1 [1], proposed section 75C. Insert after line 6:

(2) A project may not be declared to be a critical infrastructure project until regulations have been made under this Act relating to the categories of projects that may be considered to be essential for the State under this section.

Let me be very clear about where the Opposition stands on this issue. The legislation contains many principles that the Opposition supports. We certainly accept that there is a category of development called "major infrastructure"—we absolutely accept that. Indeed, much of what the Government has said in the bill accords with Opposition policy, but the Government has in fact created a fictional category; it did not exist until this legislation came into being. The Government created a new class of project, something above a State significant or major infrastructure project—that is, a critical infrastructure project.

We have critical infrastructure in New South Wales only because the Government has failed to deliver during the past 10 years. Now, in the twilight of the Government, it is been faced with having to be seen to be doing something to address the issue of failing infrastructure. Accordingly, it created something called "critical infrastructure". All that the Opposition's amendment seeks is that the Government, by way of regulation, sets out what are to be the categories of projects that may be considered essential. As it stands at the moment, the Government has asked the Opposition to buy a concept called "critical infrastructure", which has never before been part of planning legislation in this State.

The Opposition has accepted the concept of major infrastructure. We understand that and we understand State significant projects. "Critical" is a new term, barely defined, and we are being asked to give the Minister the authority to determine what is critical, based on criteria that the Government has set out—that is, that it is essential for the State for economic, environmental or social reasons. I suspect that, because it has failed up until now to deliver essential infrastructure to the State, the Government is feeling the pressure. It is feeling the heat from a community that wants to know why it has crumbling rail infrastructure, why it does not have road projects to break the gridlock of the parking lots that pass for highways around New South Wales and why there are so many hospitals with significant problems.

That is what the Government is now referring to as critical infrastructure. Indeed, we do have a problem. We have a problem with water supply, but what has the Government been doing for the 10 years that it has been in office? Now we have this new class and the Government has said it is critical in terms of economic, environmental or social reasons. The Opposition is not asking that every single project be identified; we are asking what the Government is talking about. What are the categories of projects that may be considered?

The Opposition proposes that, before this section is enacted, the Government provide, by way of regulation, details of the categories. I repeat: The Opposition does not want details of every individual project; it wants the categories set out in a regulation so that this new class of critical infrastructure projects can be defined up front and dealt with concurrently with the legislation. Out of this legislation the Government will get its new classification called "critical infrastructure" and, allied to that, the Opposition gets at least a category of essential projects. We are not asking for individual items; we are asking what the Government has in mind.

I commend the Opposition's amendment to the Committee. I believe it goes some way towards meeting the concerns in the community, but it also sets forth a better basis upon which this legislation can operate. As with other regulations, no doubt the Government would be able to introduce a variation from time to time. The Government should be up front about this and have some faith in the Parliament of New South Wales. The Government has failed to deliver on infrastructure. The Government has dug a hole for itself and is now asking the Opposition to take on trust the fact that the Minister will get it right. The Minister is to be the judge of what is of such critical importance that it will meet his test of economic, environmental or social criteria and be dealt with in a way unlike any other project in New South Wales.

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [8.08 p.m.]: The Government does not support the amendment. Critical infrastructure, by its very nature, may in some cases need to be quickly declared as critical, and quickly constructed. The situation might be difficult to anticipate. The reconstruction of the bridge over the Derwent River in Tasmania—the critical link between the two sides of Hobart, which partially collapsed after a boat crashed into it—is a good example. The categories in the regulation would need to be cast so broadly as to be almost meaningless in order to ensure that essential projects are not delayed. The Government simply could not guarantee that the regulations would cover every case.

We oppose the regulations as they would undermine the intent of the critical infrastructure provisions, which is to remove delays to building critical infrastructure projects. I reiterate that the Government will gazette guidelines that will set out the assessment processes associated with these types of projects.

Ms SYLVIA HALE [8.10 p.m.]: The Greens support Opposition amendment No. 1. The Minister's reason for opposing the Opposition amendment is perhaps the most specious and ludicrous reason one could possibly come up with. Fancy predicating a whole category of important planning legislation—against which there is no appeal and which is entirely at the discretion of the Minister—on a disaster that occurred in Hobart about 40 years ago, as I remember.

The Hon. Michael Gallacher: Are you that old?

Ms SYLVIA HALE: I regret to say that I am. It is ludicrous that this is the only reason the Government can advance for opposing the amendment. The Greens support the Opposition amendment because characteristic of the bill is the fact that so much important detail is missing. So much detail is left to be subsequently provided by the regulations, which will not be able to be disallowed by this House. The Government says the infrastructure is critical. It is also important to ask the question: Critical to whom? Is the infrastructure critical to Labor's electoral success? Is it critical because all other infrastructure is failing? Is it critical because without it the flow of donations to the Labor Party will dry up? Just who is it critical to? Obviously the community does not share the Government's confidence in this so-called critical infrastructure. Indeed, it needs to be spelled out specifically what is implied when this category of planning provision, namely critical infrastructure, is passed. The Greens support the amendment because it adds at least one minimal element of clarity to the bill.

Reverend the Hon. FRED NILE [8.12 p.m.]: In his reply to the second reading debate the Minister listed some of the so-called critical infrastructure projects. He referred to the Goulburn pipeline, the harbour rail tunnel, the desalination plant, and other projects. He also referred to the Hobart bridge disaster. I wonder how many of us would have thought of a Goulburn pipeline a couple of years ago. Would there have been discussion about having a pipeline because of the disaster in Goulburn? That is just one example of a more recent—

Ms Sylvia Hale: The drought has been going on for years.

Reverend the Hon. FRED NILE: Even the Greens have not talked about a pipeline in Goulburn. I have never heard them mention it. I am simply suggesting that many projects, which none of us would envisage, could come under this legislation. I do not believe the amendment would restrict the legislation. If it were carried, and the Government then listed five categories and omitted others, people would protest against the project being allowed to proceed. We are trying to get rid of the green tape, but this is a backdoor way of putting in more green tape.

The Hon. Dr PETER WONG [8.13 p.m.]: Reluctantly, I do not support Opposition amendment No. 1. We are facing a crisis. Whatever we do, we have to make sure things are rectified as soon as possible.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.14 p.m.]: The Hon. Dr Peter Wong says we have a crisis. This is what the Government always wants. It says, "You have to vote for this because we have a crisis. We have done nothing about Goulburn's water situation, we have done nothing about the infrastructure, we have done nothing about conserving water, we have done nothing about conserving electricity, but now we have a crisis. We need a pipeline. We need a nuclear power plant. Get rid of the environment; it is all a crisis." The Opposition's amendment simply seeks to clarify the term "critical infrastructure project" because the definition in the bill is basically nonsense. Section 75A defines critical infrastructure as follows:

critical infrastructure project means a project that is a critical infrastructure project, as referred to in section 75C.

What a terrific definition! It could not be clearer.

The Hon. Rick Colless: What have you been smoking, Arthur?

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I have been reading the bill. It is a bit dangerous, I know. Proposed section 75C provides:

Any development that is declared to be a project to which this Part applies may also be declared to be a critical infrastructure project if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons.

In other words, it is a critical infrastructure project if the Minister says so! There is no other definition. I believe that the reason for the introduction of this bill is that the Government is losing badly in the case involving the Collex waste transfer station. If the Government brings in legislation naming the Collex waste transfer station, the High Court will chuck it out as a separation of powers issue. The Act will be changed halfway through the court proceedings because the Government will be about to lose the case. If the Government makes a policy change such as this, it can tip that case and stop the activists and local residents from protesting. As we know, the local residents have lost all their power under this legislation because the guys from Collex are successful. This is all about the Collex waste transfer station, because the No Dump Residents Association is winning.

Let us put it on the record right now that that is what the Government is doing. It demonstrates its capriciousness. A project is deemed to be a critical infrastructure project when it suits the Minister and the Government. They do not even want the definition to be able to be disallowed in a regulation. The Opposition amendment, to its credit, allows us to see what a critical infrastructure project might be, and it provides for regulations to enable the definition to be disallowed. But, of course, that would cause a delay, and the Government would lose the Collex waste transfer station case in the meantime. The Government would hate that, because the people at Collex have given the Government a lot of money and are its mates. The Government put a bill through for them a little while ago. Clearly, the amendment needs to be supported. I am not sure whether the Liberals are aware what good it would do, but it may be that the Government has the numbers in any event. The amendment supports the whole notion of residents being able to conduct a reasonable court case and thereby act in the interests of their suburb.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 15

Dr Chesterfield-Evans Mr Clarke Mr Cohen Ms Cusack Mrs Forsythe Mr Gallacher

Miss Gardiner Ms Hale Mr Lynn Ms Parker Mrs Pavey Ms Rhiannon

Mr Ryan Tellers, Mr Colless Mr Harwin

Noes, 20

Dr Burgmann Mr Catanzariti Mr Costa Mr Della Bosca Mr Donnelly Ms Griffin Mr Hatzistergos

Mr Jenkins Mr Kelly Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Ms Robertson

Mr Roozendaal Mr Tingle Mr Tsang Dr Wong Tellers, Ms Burnswoods Mr West


Pairs




Mr Gay	Mr Primrose
Mr Pearce	Mrs Tebbutt


Question resolved in the negative.

Amendment negatived.

The Hon. PATRICIA FORSYTHE [8.26 p.m.]: I seek leave to move Opposition amendments Nos 2, 3 and 4 in globo.

Leave not granted.

Given the seriousness of what we are debating, the Committee may give some thought to what is under consideration. I intended to talk about the three amendments together because the principle that enshrines them is the same. I will accede—obviously I cannot avoid it—to the Greens' request that they be dealt with separately. I move Opposition amendment No. 2:

No. 2 Page 10, schedule 1 [1], proposed section 75K (1) (a), line 11. Omit all words on that line.

Amendment No. 2 relates to appeals. Critical infrastructure projects will not be subject to any appeal process. New section 75K provides an appeals process for the proponent. Regardless of whether we are dealing with a proponent or an objector the principle is the same. Having established this criterion called critical infrastructure the Government is now undermining the process of planning in New South Wales by creating a concept for one class of development—critical infrastructure. According to a letter the Minister provided to the Opposition, appropriate risk assessment parameters and environmental assessment will be applied.

We acknowledge that that is the advice to the Minister, but what is inherently missing is that while something is subject to an appropriate environmental assessment, the word "appropriate" is absolutely as determined by the Minister because there will be no right of appeal by the proponent or the objector. The Minister has absolute power, and that is a concept that does not sit comfortably with the principles that have been enshrined in the environmental planning and assessment legislation since 1979.

As I said, the Opposition is happy to support the Government in relation to a class of development called major infrastructure and to put in place a planning regime that underpins that. However, critical infrastructure—which is to be determined by the Minister, with no regulation, nothing upfront, and no guidelines—will now not be subject to any appeal. The principle applies for amendments Nos 2 and 3 and I urge the House to vote against the Government's proposal and to support the Opposition's amendment.

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [8.31 p.m.]: The Government does not support this amendment. It introduces merit appeals by the proponent of a critical infrastructure project. This provision undermines the intent of establishing the category of critical infrastructure so that the Government can move quickly when necessary to ensure that critical projects are not delayed by lengthy merit appeals—essentially, a rehearing of the assessment process through the courts.

Ms SYLVIA HALE [8.32 p.m.]: The Greens support amendments Nos 2 and 3. We agree that the reference to "critical infrastructure" should be removed because we believe it is essential that both the proponent, who is covered in amendment No. 2, and the objector, who is covered in amendment No. 3, should be treated equally and have the right to appeal. For that reason, particularly when we are dealing with legislation and a concept that is so ill-defined, it is appropriate that there be appeal rights.

I am amazed how readily this House gives away a citizen's right to appeal to a court of law. I find that extraordinary. It is as though there is a belief somehow that there are three arms of government and that the Legislature is the only one of them that is just ignored in this House. The Greens support this amendment because we believe that in all this legislation there should be the right of appeal, particularly in relation to "critical infrastructure", which is bound to have such an important and critical impact upon the lives of people. It is wrong to do away with that right of appeal on the spurious ground that somehow "critical infrastructure" is dead urgent and must be pushed through with all speed and without any possibility of delay.

It is extraordinary that, given the nature of critical infrastructure and just how massive and expensive some of it will undoubtedly be, infrastructure that can have such a major impact not only immediately on the community but on the future development of the community can be treated in so cavalier a manner in this bill, as the Government obviously intends to treat it. For this reason the Greens are pleased to support amendments Nos 2 and 3 to strike out the reference to "critical infrastructure" in those proposed sections.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.35 p.m.]: The Democrats support amendments Nos 2 and 3, in the concept of fairness.

The CHAIR: Order! Only Opposition amendment No. 2 is before the Committee.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, but I am giving my reason for supporting amendment No. 2. If amendment No. 3 were not to be moved, and I were not being entirely fair to both proponents and objectors, I would not support amendment No. 2. But because of my extreme sense of fairness I believe that the proponents, in favour of whom the whole bill is stacked, should have the right of appeal as well. That would seem to me a bit much, except that one has to be fair if the objectors are going to have that right pursuant to amendment No. 3. I am supporting amendment No. 2 because I support amendment No. 3, not particularly because I am absolutely dedicated to giving even more power to the proponents.

The Hon. PATRICIA FORSYTHE [8.36 p.m.]: Far be it from me to give a lesson in House procedure to the Greens, particularly since they are voting with me, but I cannot resist. It would have been far better had we debated the appeals concept amendments, that is, Nos 2, 3 and 4, in globo.

Ms Sylvia Hale: We quantitatively did do it.

The Hon. PATRICIA FORSYTHE: You could have asked to vote on them seriatim, as I had suggested to some people. That would have been appropriate and convenient. That is just a little lesson on how we can succinctly deal with significant issues. There is a deal of hilarity on the part of the Government. All I can say is that the Government, particularly some of its members, must be extraordinarily embarrassed about this legislation and their only way out is to distract themselves from its substance by the sort of stupid behaviour they are engaging in tonight. Notwithstanding that, I urge the Committee to support Opposition amendment No. 2.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 15

Dr Chesterfield-Evans Mr Clarke Mr Cohen Mrs Forsythe Mr Gallacher Miss Gardiner

Ms Hale Mr Lynn Ms Parker Mrs Pavey Mr Pearce Ms Rhiannon

Mr Ryan Tellers, Mr Colless Mr Harwin


Noes, 21

Dr Burgmann Mr Catanzariti Mr Costa Mr Della Bosca Mr Donnelly Ms Griffin Mr Hatzistergos Mr Jenkins

Mr Kelly Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Mr Oldfield Ms Robertson Mr Roozendaal

Mr Tingle Mr Tsang Dr Wong Tellers, Ms Burnswoods Mr West

Pairs

Mr Primrose	Ms Cusack
Ms Tebbutt	Mr Gay

Question resolved in the negative.

Amendment negatived.

The Hon. PATRICIA FORSYTHE [8.45 p.m.]: I seek leave to move Liberal Party amendments Nos 3 and 4 in globo.

Leave not granted.

I seek leave to move amendments Nos 3 and 4 in globo but for them to be voted upon seriatim.

Leave granted.

I move Liberal Party amendments Nos 3 and 4 in globo:

No. 3 Page 11, schedule 1 [1], proposed section 75L (1) (a), line 3. Omit all words on that line.

No. 4 Page 14, schedule 1 [1], proposed section 75Q (1) (a), line 33. Omit all words on that line.

The key issue in relation to these amendments is the right of appeal. The Committee needs to understand that it is essential that communities have a role and a place in planning in New South Wales, as well as a right to have a say about infrastructure, critical or otherwise, in an area. If infrastructure is terribly important, one would assume that the community would accept the rationale of the Government. But there are to be no appeals by objectors. It is quite clear from the Minister's second reading speech that there will be no role or place for local government. The Minister stated:

The bill will ensure that the construction and operation of approved critical infrastructure projects cannot be stopped or delayed by other government agencies or local councils.

As I said, this is where the Government has effectively failed to communicate its proposal, even to local government—its so-called partner in government. We know that this provision will not apply to other agencies of government. It is about taking the public out of the planning process. That is wrong in principle. The Opposition believes it is not appropriate. The Carr government has certainly not adequately consulted people about their rights.

We are being asked to buy a concept of "critical infrastructure" projects for which no clear definition has been provided other than a definition that the Minister will make determinations based on social, economic or environmental considerations. Effectively, there will be no process of appeal, so the Land and Environment Court is being taken out of the process. We will be rewriting the Environmental Planning and Assessment Act. When we conclude our deliberations on this part of the bill someone will need to rewrite the planning texts that apply in New South Wales, because this bill fundamentally changes the principles that underpin the Act.

Ms Sylvia Hale: Why do you not vote against it?

The Hon. PATRICIA FORSYTHE: Because there are many aspects of the bill that the Coalition supports, as I think we have made clear. The Coalition fundamentally accepts the role of major infrastructure, but we are not prepared to buy a pig in a poke, which basically is what an inadequately defined "critical infrastructure" provision, devoid of an appeal process, is. Beyond that, the Coalition accepts that it is timely to streamline planning processes, and the Coalition accepts the role of major infrastructure. I thank Ms Sylvia Hale for her interjection.

Reverend the Hon. FRED NILE [8.49 p.m.]: These amendments are different from the previous amendment, which was defeated. I was surprised that the Greens so enthusiastically supported that amendment because it sought to give developers the power to appeal following the Minister's refusal of a development application. It had nothing to do with the community. These amendments deal with appeals by objectors. As I understand it, the classification of "critical infrastructure project" is designed to streamline an important project. For example, the Goulburn pipeline, which we hope will be a reality, could be stopped by an objector and tied up in the appeals process while the people of Goulburn die of thirst.

Ms SYLVIA HALE [8.50 p.m.]: The Greens support Opposition amendment No. 3 because it gives objectors the power to appeal against decisions in relation to critical infrastructure. We do so on the same grounds that we supported amendment No. 2, which extended appeal rights to both parties: if it is good for the goose, it is good for the gander. The Greens oppose amendment No. 4 because it deals with concept plans. The provision dealing with concept plans provides that only appeals lodged by the proponent will be permitted. No provision exists for appeals by objectors. For reasons of parity and equal treatment, even though the Opposition favours proponents of critical infrastructure, we oppose amendment No. 4. We do so in accordance with our opposition to the notion that there should be no appeal rights whatsoever with respect to concept plans by objectors—and a great deal hangs on the approval or otherwise of concept plans.

The bill makes it perfectly clear that there is no requirement to provide details in the drafting of a concept plan. Once a concept plan has been approved any subsequent development application that is consistent with the plan cannot be refused, even if additional information comes to light, the original description was flawed or it deliberately lacked relevant and important detail. Under the bill as it stands once the concept plan has been approved objectors have no right to appeal. Because there is a fundamental disparity between the treatment of proponents and objectors the Greens will not support amendment No. 4.

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [8.54 p.m.]: The Government does not support amendment No. 3. This amendment would introduce merit appeals for objectors. Even more than the previous amendment, this amendment has the potential to tie up critical infrastructure projects in the court through third parties lodging merit appeals. Appeal provisions such as these have a major impact on whether the private sector will participate in these projects and reduces the potential for it to enter into public-private partnerships. This is a curious amendment from the Opposition, given that public-private partnerships are a major component of the Opposition's policies in this area.

Third-party merit appeals would introduce major delays in the approval of projects such as the north-west rail link, the desalination plant—should it be necessary—and projects that might be necessary to ensure that Goulburn does not run out of water, as Reverend the Hon. Fred Nile has stated. The amendment is unacceptable and the Government does not support it. The Government does not support amendment No. 4 either. It introduces merit appeals for proponents in respect of concept approvals for infrastructure and other major projects. It, too, goes against the whole intent of amendments to reduce red tape and increase the certainty that projects will proceed.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.55 p.m.]: Madam Chair—

[Interruption]

The schoolboy bullies on the other side can go to hell! I have had enough of schoolboy bullying in my life. If Government members have nothing better to do than play schoolboy bullying, they should go home to bed.

The CHAIR: Order! The Hon. Dr Arthur Chesterfield-Evans will resume his seat. The degree of disruption to the debate is unacceptable. I would appreciate the co-operation of all members in allowing the Committee to proceed in an orderly manner. It is disorderly for the Hon. Dr Arthur Chesterfield-Evans to seek the call to speak on amendments and to then launch a tirade of abuse against other members. If he asks me to call to order members who are interjecting on him, I will do so. However, it is not his role, when speaking to amendments, to insult other members. A number of members on both sides of the Chamber have been called to order already, and if they continue to interject I will be quite happy to add to their score.

[Interruption]

Order! I call the Hon. Michael Costa to order. The Hon. Dr Arthur Chesterfield-Evans has the call.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I was responding to an interjection, rather than starting a tirade spontaneously. One might ask why the concept of "critical infrastructure" has been included in the bill. I did not understand at first because, from a functional point of view, it is the same as a project of State significance in that both of them can be arbitrarily conjured by the Minister. The reason for a separate category of critical infrastructure is blindingly obvious. This bill has been introduced at this time to enable Collex to win its case.

The existing State-significant development provisions would not change the law sufficiently to win that case so the Government has invented another measure that effectively does the same thing. It is another element of ministerial discretion, but with a different name. If there were appeals by objectors to critical infrastructure projects, without this amendment the case of Collex would be able to go ahead and, I believe, the Collex people would win. I will provide some facts to back up that contention. This bill, which amends the Environmental Planning and Assessment Act, seeks to help Collex over its legal hurdle in relation to the Clyde waste transfer station. The legislation must include wide policy-type drafting.

The Hon. Tony Kelly: Point of order: I ask you to remind the honourable member that he is not entitled to debate the general context of the bill, merely the clauses affected by the amendments.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: To the point of order: The significance of these amendments relates to the definition of "critical infrastructure" and the impact of these amendments on other important legal cases, to wit, the Collex case. This is a critical aspect of the bill. The implications of the amendments would be to allow the court case to go ahead. If the amendments are defeated the court case will not go ahead.

The CHAIR: Are you speaking to the point of order?

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, I am. What I am saying is absolutely relevant to the passage or non-passage of the amendment. I might be troublesome, but I am certainly relevant.

The CHAIR: Order! Both amendments seek to delete the words "critical infrastructure" from proposed sections 75L and 75Q. In essence the member was relevant, but he must confine his remarks to the impact that the removal of those words would have on the proposed sections in schedule 1.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My argument was longer than I wanted it to be, but it explains why in the current court case these amendments are critical. The legislation must be drafted as a wide policy-type document as any future Collex special legislation would be unconstitutional, because of associated chapter 3 issues. The No Dump Residents Association [NDRA] took Collex to the Land and Environment Court at the end of last year and again early this year. The main point of the case was that the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 did not give proper lawful authority for the waste transfer station to operate. The case was split into two parts. The first part was to decide the proper interpretation of the legal effect of the Collex special legislation. The NDRA was successful in that argument.

That special legislation approved the waste transfer building only and all activities outside the building—trucks in and waste containers out—are not covered by the Act. The only reason for that decision was that those activities were excluded by the development application and the Act approved only that development application. The second part of the case dealt with the claim by Collex that in the alternative it has existing use rights. The claim was that because the site was an old goods yard that gave Collex an existing use right for the balance of the Clyde transfer terminal. The NDRA argues that the site cannot have existing use rights because the Collex use is different use, namely, that of a waste management facility. Justice Talbot ruled that Collex does have existing use rights for all waste management activities outside the four walls of the waste transfer building itself, despite the site never being used for waste management and State significant development cannot have the benefit of existing use rights.

That is why a new category of the concept of critical infrastructure has to be created, even though it is effectively the same. Section 109 of the Environmental Planning and Assessment Act 1979 provides an exemption only to a requirement in the local environmental plan, not from a requirement for consent to the Act itself. State significant development requires consent by the Minister, and as such cannot have the benefit of section 109. Section 107 of the Environmental Planning and Assessment Act applies only if the development is characterised as prohibited. The Collex special legislation has the legal effect of making all parts of the Collex project State significant development. That has the effect that development is permissible by consent of the Minister. As such it cannot have the benefit of sections 107 or 109 of the Act.

The NDRA believes that the judgment Justice Talbot gave to Collex was contrary to law. The group immediately filed and served appropriate appeal documents in the New South Wales Court of Appeal. It believed it would win on appeal, as Collex did not have existing use rights as defined in the Act or in the applicable New South Wales Court of Appeal and High Court authorities. The filing of the appeal has triggered these changes in the Environmental Planning and Assessment Act. The changes are designed to circumvent the requirements in relation to the State significant development by defining this new category in order to get Collex out of its legal problems. The changes were also designed to allow the Minister to rubberstamp a new approval if the NDRA is successful on appeal.

The definition of "critical infrastructure", from a functional point of view, is identical to State significant development. There is merely a tiny difference which would be irrelevant in any other context but the Collex waste case. My argument is that the bill, and these amendments in particular, are designed to win the Collex case. In effect they are interference in the process of the courts by Parliament and, as such, are liable to be struck down by the High Court. However, the short way of fixing this would be to vote for the amendments, in which case the No Dump Residents Association appeal could go ahead, as it should. The amendments should be supported. If they are not, Parliament will be deliberately interfering in the Collex case and, basically, we have belled the cat on this occasion.

Question—That amendment No. 3 be agreed to—put.

The Committee divided.

Dr Chesterfield-Evans Mr Clarke Mr Cohen Ms Cusack Mrs Forsythe Mr Gallacher

Miss Gardiner Ms Hale Mr Lynn Ms Parker Mrs Pavey Ms Rhiannon

Mr Ryan Tellers, Mr Colless Mr Harwin

Dr Burgmann Mr Catanzariti Mr Costa Mr Della Bosca Mr Donnelly Ms Griffin Mr Hatzistergos Mr Jenkins

Mr Kelly Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Mr Oldfield Ms Robertson Mr Roozendaal

Mr Tingle Mr Tsang Dr Wong Tellers, Ms Burnswoods Mr West

Mr Gay	Mr Primrose
Mr Pearce	Ms Tebbutt

Question resolved in the negative.

Amendment No. 3 negatived.

Amendment No. 4 negatived.

Schedule 1 agreed to.

Schedules 2 to 4 agreed to.

The Hon. PATRICIA FORSYTHE [9.12 p.m.]: I move Opposition amendment No. 5:

No. 5 Page 60, schedule 5 [17], proposed section 122I. Insert after line 4:

(2) An officer or employee of an industrial organisation of employers or employees cannot be appointed as an authorised officer for the purposes of this Division.

This is a different amendment to those we have dealt with previously. Although some crossbench members have felt that it is important to support the Government's intention of creating a regime to deal with critical infrastructure, this amendment deals with a different matter. It is important that people who breach environmental planning legislation, who create shonky developments and who cut corners should be the subject of investigation. The Opposition has absolutely no problem with the concept of departmental enforcement powers. Indeed, division 2C states that the department has a right to enforce regulations and legislation. The Opposition is of the view that in schedule 5 the Government has put in place the potential for much greater powers than it might have intended.

I believe the Government intended that departmental officers be able to enter certain premises. Indeed, proposed section 122J states that an authorised officer may enter any premises at which he reasonably suspects that any industrial, agricultural or commercial activities are being carried out that contravene the Act, the regulations, any environmental planning instrument, any approval under part 3A, any development consent under part 4 or any document or requirement issued or made under the Act. The Opposition has concerns about the definition of "authorised officer". I am interested to hear the Government's defence of the bill or indeed whether it is prepared to accept the Opposition's amendment. The Opposition is seeking to amend the definition that simply states that the director-general may appoint any person as an authorised officer for the purpose of this division.

I am not sure that the Government intended to make the definition so broad. We do not want union officials to use these provisions as an opportunity to enter work sites but that could potentially happen. We have provided a definition that applies not only to unions. We believe that an employee of an industrial organisation of employers cannot be appointed as an authorised officer for the purposes of this division. One must read not only the definition of an "authorised person", which is so lacking in the bill, but also the powers of the authorised person. I am reliably assured that the Government proposes giving authorised officers greater powers than those of the New South Wales Crime Commission. Those powers are extraordinary in their breadth. This is not about fundamental planning principles in terms of major or critical projects; this is about the fundamental issue of appropriate powers. I urge crossbench members and, indeed, the Government to accept the Opposition's amendment, which will limit the class of persons who may be considered as authorised under these provisions.

The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [9.17 p.m.]: The Government does not support this amendment. The officers who will be authorised to undertake enforcement action will be public servants employed by the Department of Infrastructure, Planning and Natural Resources. Clearly, they will not be employed by an industrial association of either employers or employees. In any case, there is absolutely no reason that a person associated with the union or any employer association cannot carry out their work duties professionally and properly. We are debating planning legislation, not industrial law. As I said, the Government does not support this amendment.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.18 p.m.]: I do not quite understand the rationale for this amendment, and I cannot support it. It is unlikely that someone employed by an employer organisation would be appointed by the Department of Infrastructure, Planning and Natural Resources as an inspector because they would have a job already and they would have to resign and become an employee. Also, one does not want an employer advocate doing inspections of employers. That would be absurd. Under the amendment, it would seem that an officer of an industrial organisation could simply be a union delegate in his or her workplace.

Unions take an interest in, and run courses on, occupational health and hygiene, so people with a degree of expertise in that area might well work for a union. Under this bill the powers that are given to authorised officers are extraordinarily high. All the provisions in this bill are draconian in nature, which is not inconsistent with other Government policy. However, it should not impede someone who is not a union delegate who has a background in occupational health and safety or industrial hygiene from getting a job as an inspector within the framework of the Department of Infrastructure, Planning and Natural Resources.

Ms SYLVIA HALE [9.20 p.m.]: The Greens oppose this amendment for many of the reasons advanced by the Hon. Dr Arthur Chesterfield-Evans. Proposed section 122L outlines the powers of authorised officers. One of their powers is to "examine and inspect any works, plants or other article" and another of their powers is to "examine and inspect any records". If work of this nature is to be done it often requires a degree of expertise. Amongst the ranks in the union movement are people who have made a definite study of pinpointing deficiencies in work, plant or other articles. Merely because someone is an officer of a union—whether or not it is in an honorary capacity—is not sufficient to exclude that officer from being able to be appointed as an agent.

On the face of it, this amendment is supposed to be equal-handed in its approach because it excludes employers and employees of industrial organisations. But as the Hon. Dr Arthur Chesterfield-Evans pointed out, the whole intent of this amendment is to exclude active union members, in particular, active union officers. The Greens cannot support this amendment. Once again this is a manifestation of the Opposition's anti, automatic and unthinking approach to unions.

The Hon. PATRICIA FORSYTHE [9.23 p.m.]: The Minister suggested that officers employed by the Department of Infrastructure, Planning and Natural Resources [DIPNR] would be employed as inspectors, but that is not what is stated in this legislation. That might have been the Government's intention, but that is not what is stated in the legislation. It is left open. The Opposition is well aware that business wants this legislation passed. Perhaps those who have been so insistent on passing it in its present form are comfortable with all aspects of it. The Opposition has real concerns about the open-ended nature of the bill.

It is not good enough for the Minister to say that officers employed by DIPNR will be authorised to carry out inspections. That is not what is stated in the Act. The Act states that any person can be appointed as an authorised officer. If those who are intent on supporting the Government's entry and search power proposals read the legislation they will establish that authorised officers will be granted extensive powers to carry out inspections at any time when agricultural or commercial activities are being carried out. The department must be able to deal with shonky developers. People must not be allowed to cut corners. If people are licensed to do certain things within certain hours and they breach those provisions the department should have the capacity to carry out inspections.

This new section is much broader than that. I have adequately expressed the Opposition's concerns. Down the track, when people discover the unintended consequences of this legislation, they will wonder whether Opposition members were asleep or awake when it was debated. Because of the open-ended nature of definitions in this bill Opposition members are aware of the potential for this new section to be misused. I appeal to all honourable members to examine this issue. I am surprised that the Minister accepted the bill in its very broad format. As the bill has gone through the Cabinet process one would have to ask whether the Government has another agenda. As I said earlier, the Minister suggested that officers employed by DIPNR would be employed as inspectors, but that is not what is stated in this legislation.

Amendment negatived.

Schedule 5 agreed to.

Schedules 6 and 7 agreed to.

Title agreed to.

Bill reported from Committee without amendment and report adopted.


The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister for Lands) [9.27 p.m.]: I move:

That this bill be now read a third time.

The House divided.

Ms Burnswoods Mr Catanzariti Mr Clarke Mr Colless Mr Costa Ms Cusack Mr Della Bosca Mr Donnelly Ms Fazio Mrs Forsythe Miss Gardiner

Ms Griffin Mr Hatzistergos Mr Jenkins Mr Kelly Mr Lynn Mr Macdonald Reverend Dr Moyes Reverend Nile Mr Obeid Ms Parker Mrs Pavey

Mr Pearce Ms Robertson Mr Roozendaal Mr Ryan Mr Tingle Mr Tsang Dr Wong Tellers, Mr Harwin Mr West

Noes, 4

Mr Cohen Ms Hale Tellers, Dr Chesterfield-Evans Ms Rhiannon

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time.