The planning process for the controversial and costly Westconnex motorway is heavily biased in favour of supporters of the project. Independent experts and thousands of ordinary citizens have pointed out weaknesses in the rationale for the project, the destructive impacts it would have on their communities and transport planning for the whole of Sydney. But the Baird LNP government and big business lobby are determined to push ahead. The granting of contracts before an EIS or business case has even been completed is symptomatic of the biased and undemocratic nature of planning in NSW.
Many different tactics are being used to oppose the motorway including petitions, stalls, electoral campaigns, street theatre, civil disobedience and electoral campaigns. If the NSW Greens are successful is getting a NSW Parliamentary Inquiry, the whole process will be opened up to more scrutiny. The planning approval and environmental assessment of the project is just part of the bigger picture. The aim of this step by step guide is to make it easier for residents and groups to have an impact on that process. It is not intended to suggest that this is THE solution to the Westconnex problem.
Although this post refers to the law, it doesn't provide answers to important legal questions e.g. In what if any circumstances, can you challenge the process in the courts? Hopefully, I can post more on that later.
Discussion about the process is welcome. Also post a comment if you can see ways to improve or clarify this guide.
Westconnex Planning Steps
The Westconnex motorway is State significant infrastructure (SSI) under Part 5.1 of the EP&A Act. (See page 3 of Factsheet). These sections are amendments to NSW planning law introduced by the LNP government in 2011 to replace the Labor's government's notorious Part 3A law. Unfortunately, the new amendments have similar features that allow a government to push through developments despite strong and well based community opposition.
The massive 33 kilometre Westconnex is being completed in stages. The Westconnex Delivery Authority ( WDA) is allowed to put forward each stage as a separate project, meaning that there will be no planning assessment of the whole motorway. Approval for the Westconnex M4 widening and King Georges Interchange project has already been granted. For Westconnex critics this is a serious problem as the process does not allow them to contest the justification for the project as a whole or its cumulative impacts.
The WDA can't begin construction of any stage of the project without the approval of the Minister for Planning and Infrastructure who is currently Rob Stokes. Despite this, the Westconnex Delivery Authority, which is part of Transport NSW, has let contracts worth billions of dollars for unapproved works.
1. Westconnex Delivery Authority makes a Proposal for a Stage of the Westconnex project
The proposal is posted on the Planning and Infrastructure Department’s Major Projects Site.
These documents can be found be using this search engine. The New Westconnex M5 for example can be found here
The Westconnex M4 Extension can be found here
2. Department publishes Department Secretary's requirements for EIS.
This has been done for M5 E (March 2015)
M4 E tunnels.(Jan 2014 amended & reposted June 15
The proponent must lodge an EIS report within 2 years
3. Secretary Requirements
Director’s Requirements for EIS Westconnex M4 extension and M5 tunnel include:
Statement of objectives
Analysis of alternatives
Environmental risk analysis
Contingency plans to minimise risk
Traffic and Transport
Social and Economic Impacts
Soil and Water
Urban Design and visual amenity
Noise and Vibration
Consultation report on community consultation including with government departments Councils, specialist groups, Aboriginal groups, cyclists and community groups in affected communities. The report must describe issues raised and amendments made and where not made explanation.
Each of these requirements includes more detail so if you want to know more, download a copy of the requirements.
4. Westconnex Delivery Authority lodges the EIS report
The WDA must give two weeks notice of its intention to lodge the EIS.
The Department checks if the report formally complies with Schedule 2 of the Environmental and Planning Regulation 2000.
5. Department publishes Westconnex’s EIS report
The report is NOT user friendly but it will include a large amount of information, much of which is technical. There are also appendices of technical data prepared by consultants.
A minimum of 30 days is allowed for submissions. The Minister can extend the period of consultation. In the case of the Northconnex project, it was extended to 60 days.
Submissions can be made by:
a) Local Councils
b) NSW government departments including the NSW EPA and the Department of Health
c) Community and special interest Groups e.g School P and Cs, play groups, resident action groups, heritage associations.
d) Individuals members of the public
e) Independent Experts
People can withhold names and details from publication.
Submissions can address one particular aspect of the EIS report or as many as you like of the issues set out in the requirements or any issue you want to raise. You can oppose the process as well as the project.
6. Response to Submissions report
The Department secretary can require the WDA to lodge a Submissions Report which summarises the submissions & sets out its response to submissions. Government department and Council submissions tend to be taken more seriously than individual submissions.
The Secretary has the power to ask for a "preferred infrastructure report" showing how WDA will overcome environmental impacts.
A Submissions report was required for the M4 Widening and it is expected that it will be for future stages.
7. Planning Secretary can require more work
This occurred with Westconnex M4 Widening as the NSW EPA was not satisfied with the air quality methodology used by the EIS consultants.
In the case of the M4 widening, some responses to Response to Submissions report were sent to the Department. These were referred to the in Department’s report.
8. Planning Dept Secretary’s report with recommended conditions is published.
For example, the proponent may be required to publish complaint registers, construction management of waste plans, contamination procedures and so on.
9. The Minister’s approval
This can follow within days of the final report.
Conditions are attached to the approval. (In the case of M4 widening about 40 conditions were attached, many of them standard ones.) Apart from preliminary works, construction cannot proceed until plans are lodged and approved. This is why even though media reports suggested Westconnex M4 widening work had begun before the NSW state election in March, serious work only began in May.
11. Want an overview of the whole process?
If you want to follow an example of the whole process, you can follow the M4 widening approval process
The NSW Environmental Defender's Office has produced a handout on the State Significant Infrastructure (SSI) planning process. The section on SSI starts on page 10. There is also a short section on Appeal Rights which are restricted to judicial review of the process rather than appeal against the merits of the decision. If the Minister declares a project to be 'critical infrastructure', appeal rights are more restricted but there is still a possibility that the decision could be challenged in a court.
Extra note Posted 21/7/2015
Under Federal law, if proposals are likely to have a significant impact on matters of National Environmental Significance, approval needs to be also sought under the Commonwealth Environment Protection and Biodiversity Act. Last week, the RMS of which the WDA is a public authority referral threats to endangered species from the M5 duplicate. I'll be reporting more on this very soon