sandon point case
29 Jul 2008
Frank Sartor Back in Court
Is there any limit to the NSW Planning Minister's discretionary powers over development?
The controversial powers granted to the NSW Planning Minister under Part 3A of the Environment Planning and Assessment Act were put to the test in the NSW Court of Appeal last week. These powers allow the Minister, Frank Sartor, to intervene in the local council processes of assessment and grant approval for developments deemed "State significant".The Planning Minister was appealing a Part 3A challenge, headed by activist Jill Walker, a resident of Sandon Point, north of Wollongong. Walker, the Environmental Defender's Office and local residents disputed the Minister's approval of a major development involving Stockland and Anglican Retirement Villages (ARV). The Sandon Point case is the first time these powers have been successfully challenged in the Land and Environment Court (LEC).
Stockland and ARV are seeking to develop a site that is subject to flood risk. Their development proposal was approved by Sartor under the Part 3A provisions. In the original case before the LEC, Jill Walker argued that the Minister had failed to consider fully whether the potential impact of increased flooding due to climate change would be compounded at the site of the proposed development. One of the clearly stated objectives of the EPA Act (Part 1 (5)(a)(vii) is to "encourage ecologically sustainable development".
The question for the Court of Appeal last week was whether the Minister must consider ecologically sustainable development (ESD) principles when approving developments. And so I sat there listening to Sartor's counsel argue that the clause "encourage ecologically sustainable development" was not intended to be "prescriptive", but instead was "general language to guide the decision-maker". I wondered how behaviour which explicitly offended the principles of responsible government and strayed toward abuse of power could possibly be upheld.
When pressed by Jill Walker's lawyer on why Sartor's approval for the Sandon Point development took only one day when such a process would usually take up to six weeks, the court was told the Minister may have "dedicated a large slather" of his day to determining the application. Such dedication! I thank Sartor and his representatives for so enlivening the day. They gave me and half the courtroom a day packed with comedy.
In the midst of last year's State election, the Minister, in an unusual show of humility, decided against appealing another significant LEC decision - the case of Peter Gray and the Anvil Hill mine. In that case, a precedent was established which required new coal mines to take into account climate change considerations.
Now, however, Frank Sartor is exerting himself to defend and protect the wide scope of his autocratic Part 3A powers as he takes on Walker and her supporters in the community.
The Minister seems blissfully unaware that his besieged Government is sinking fast in the opinion polls. You'd think the last thing the NSW Government needed was more bad publicity - especially concerning climate change. Doesn't Sartor read the papers? A win in the LEC may well secure the Minister's grip on power, but he would be forced to relinquish it all in an election defeat.
Perhaps someone could point out to Sartor that the Environmental Planning and Assessment Act is, as its name suggests, concerned at least in part with the protection of the environment and planning for future generations. And that this is in fact why the Act was first passed, to protect the environment and encourage community involvement in planning. It's not the "Development Act", as counsel for the Sandon Point community put it.
Well, such grand notions of protecting the environment and involving the community were notably forgotten by Sartor's representatives in the Court of Appeal last week. Counsel for the Minister cast them aside in favour of protecting Sartor's ministerial interests and the profit interests of the big end of town.
A decision on Sartor's appeal is expected in 3-8 weeks. It will shed some light on the limits of the discretionary powers Part 3A affords the Minister when he's dealing with major projects.
A win for the Government will give the green light to developers to continue along the path of minimal social, heritage and environmental responsibility. So it remains to be seen just how much the "general principles" of ecologically sustainable development will guide major planning decisions in NSW.
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Thank you, Matthew for drawing attention to a real problem.
Thank you for reminding us that we can only (and should only) regulate HOW decisions are made, not WHY they are made.
Matthew,
The Sandon Point development by Stocklands has happened during the "colourful" period of Wollongong Councils tenure. During this time the protest camp, set up by locals on Sandon Point, was burnt to the ground twice and the indigenous land owners residing near Sandon Point on McCauley’s beach has been burnt down twice. I realise the police said these were mere coincidences, but really does anyone doubt what was the cause of these events?
Now we find the "planning" minister is now siding with the developers. A 10 min visit to Sandon Point would be enough to show any LEC what a disaster the current development is without any further development on this very special site.
NSW hasn’t changed much since the rum corps …………
A large part of the reason why the whole Sandon Point saga occurred in the first place and has dragged on through at least FOUR NSW Planning Ministers - Knowles, Refshauge, Knowles (again, second bite at the job) and most recently Frank Sartor, has been the ongoing refusal of the Sydney-focussed media to pay serious attention to an issue occuring a mere 90 minutes to the south which - if it had occurred closer to home - would have been front page news!
I am a Sydney journalist (News Ltd, Fairfax amongst others) who before moving to the Northern Illawarra in 2001 - and since having moved back to the big smoke in 2007 after spending 6 years down there - has been helping the Sandon Point campaigners with media advice, fundraising and other practical support, including years of doing weekly shifts at the Sandon Point picket tent which - as mentioned in a previous email - was firebombed as was the Aboriginal Tent Embassy.
I could not count the number of times I and other Sandon Point campaigners provided newsworthy and factual material on the issue, while begging and pleading for Sydney journalists (including Quentin Dempster) to come down and see what was happening at Sandon - and in Wollongong generally - right under their noses. We would get the occasional bite eg little articles profiling one or another angle for which we were always grateful, but no-one seemed interested in looking at the bigger picture that we were expressly outlining to them.
While speaking/writing to journalists, I would comment that - having lived in Glebe in the 1980s while working at Fairfax - what was happening in Wollongong was making the Rats In The Ranks era at Leichhardt Council look like a kindegarten party …but to no interest. Then the ICAC raid of Christmas 2007 and the subsequent sex scandal gained Wollongong Council long overdue coverage!
Curiously - or perhaps not, given Stockland’s publicly admitted generous financial donations to Labour (and the Liberals: is Nick Greiner still on Stocklands’ BOD?) - the development saga at Sandon Point, the most classic example of the "Wollongong disease" in action, didn’t get a look in.
I’m pleased to see my media colleagues - especially those of the increasingly endangered species investigatus reportingus represented by New Matilda - taking an interest in the latest court case undertaken in a long campaign which is symbolic of those occurring in communities throughout NSW and Australia.
But I’d be a liar if I didn’t add that I am PISSED OFF that many people are now forced to live alongside development disasters which may have been prevented (or at least modified for the better) if the media had heeded a decade of community pleading to examine the corruption which led to their construction!
Thanks again to those who did listen to us - and for those who didn’t, please note there are plenty more Sandon Points in the making, especially if Mr Sartor, as suggested in today’s SMH and Tele, gets a run at the Premiership!
Thank you Matthew for your excellent reporting on Sandon Point in Sartor’s Supreme Court appeal against LEC 40240 of 2007 Walker vs Minister for Planning & Ors.
I thought the best line was when Sartor’s Counsel said the Objectives of the EP&A Act were merely "aspirational".
If it was true it would make me wonder why we have Planning laws at all, and whether we are moving towards government by decree. Or is that dictatorship?
Also thank you Jodi for your comments, though maybe journalists are also victims of our state government mafia standover tactics, and Sandon Point is right in the heart of the Illawarra corruption zone.
Jill Walker
sandon-point.org.au
NSW State Labor may never be proven to be legally corrupt but they are definitely ethically corrupt.
I had no idea of the situation at Sandon Point and thank Matthew and posters for wording me up. It seems every day there is a new story that demonstrates the abuses of these hacks.
If Frank Sartor becomes Premier of NSW I would consider it my duty to do all I can to bring down not only him but the whole system that placed him in that position.
The two most damaging and reviled figures in NSW politics right now are Sartor and Costa. It is no coincidence that they are also the most arbitrary and careless of the desires of the electorate in their decision making.
It is clear that these guys place themselves above the people of NSW. I must agree that regardless of legality their sense of ethics have atrophied to the point of irrelevance.
Having watched the ‘progress’ of this nasty fellow from his Mayoral days at City of Sydney I think Sartor’s rise in the Labor Party tells me all I need to know about Sussex Street, Macquarie Street and how little they care for those on their rhetorical favourite, Struggle Street.
It used to be insufferable even when it was a Liberal thing, but when Labor exudes this born to rule mentality they need to be dragged from their self built pedestal, stripped of the trappings of power and consigned to the bottom of the cesspool of history.
Give us our state back, Sartor. Putting a crown on your own head does not make you a king.
“Fire at Sandon Point” www.sandon-point.org.au
Last Saturday August 2 at Sandon Point, another mysterious fire raced through the forest and grasslands, driven by a gusty west wind. Residents walking and cycling on the public path were choked by smoke for several hours.
Starting in the early afternoon the fire caused a pall of smoke to drift out to sea from McCauleys Beach. It is not yet known how much damage was caused to the endangered species of swamp forest habitat, or the native wildlife.
We have fought for twenty years at Sandon Point to win a Regional Park against the forces of State corruption and big developers. Residents were vindicated when the Sandon Point Commission of Inquiry recommended a protected area of Regional Park, but that decision was reversed by Planning Ministers Knowles and Sartor who doubled the size of proposed subdivision. The community’s anger is reflected in their ongoing fight against corruption at Wollongong Council and the State government.
Sandon Point has been in court many times the last eight years; recently in the Supreme Court where our Land & Environment Court victory was challenged by Minister Sartor. When we are in court fires often breakout or bashings happen. Both the Aboriginal Tent Embassy and Community Picket were firebombed; but investigations uncovered nothing. It would be good to see a Police investigation actually discover whether Saturday’s fire was mindless vandalism or deliberate destruction.
Fortunately, the Fire Brigade stopped the blaze from reaching the sewage trunk pumping station and equipment near Tramway Wetland. If they had not come to the rescue the consequences would have been deadly. Thanks to the gallant and underpaid Firies!
Jill Walker
Government corruption spreading into the police force , sounds like its time for the community to fight fire with fire.