OPINION: Appeals on the environment under threat

REPORTS of significant political involvement in the environmental planning process for resource development are very concerning.
Nanjing Night Net

In NSW we have a system that has been in place for 35 years that we use to assess the environmental impact of new developments.

Though the Environmental Planning and Assessment Act has undergone several revisions during that time, the landmark legislation does allow third party appeal rights.

Appealing development decisions in the Land and Environment Court is no easy matter for those materially affected by large developments, as many residents in the Hunter know.

In many cases the legal costs can be significant for individuals and communities, particularly if expert witnesses are engaged to counter the team of consultants usually engaged to promote the development in the public arena and through the consent process.

The Herald has recently reported on the involvement of Big Coal in the review of the Mining State Environmental Planning Policy (SEPP) in NSW. This SEPP has controversially made the economic benefits of mine projects the “principal consideration” in the approval process, above social and environmental concerns.

Even with third party appeals still possible, this makes it far more difficult for those appeals to be successful simply because the argument associated with positive economic impact and jobs is always seen as a political winner.

At the federal level, there has been political interference, with the government pushing to end the “legal sabotage” of resources projects. There are plans to amend the 16-year-old Environmental Protection and Biodiversity Conservation Act, following the recent Federal Court decision on the Adani coal mine in Queensland.

The government plans to repeal Section 487 to remove the power of so-called third parties (such as environment groups) to appeal the minister’s decision. This would restrict groups from challenging major developments, which the government says is illegitimate green “lawfare”.

This political interference in the environmental planning process is there for all to see.

The government feels constrained by the legislative process and the Environment Protection and Biodiversity Conservation Act (EPBC Act) that is in place, so the response is to change the law. If this change is made, individuals and those materially affected by any proposed development will in future increasingly find appeals difficult.

They will not have the support of groups such as third parties whose role is in protecting the environment and advocating on behalf of others less fortunate.

The government in this case is not above the law and should be held accountable. Based on its response to the Federal Court’s decision, and in other public policy positions concerning the environment, the evidence suggests that the government is not interested in preserving the environment or the interests of those in the community who have different views.

Associate Professor Phillip Geary teaches in the school of environmental and life sciences at the University of Newcastle.

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