EDO Western Harbour Tunnel and Beaches Link Program

Western Harbour Tunnel and Beaches Link Program

What you need to know and how to have your say About the EDO

• National Community Legal Centre

• Specialists in planning and environmental law

• Non-government and non-profit

• Legal information , advice and representation

• Community education

• Policy and law reform expertise

www.edo.org.au Information, not advice

• The information in this workshop is a guide only and not a substitute for legal advice.

• If you need legal advice, call our Environmental Law Advice Line on 1800 626 239

• Visit https://www.edo.org.au/get-advice/

By law we can only assist one client on any issue – We prefer to work with community groups Overview

1. The proposal 2. State Significant Infrastructure 3. Assessment pathway 4. Environmental Impact Statement 5. Community Participation: Submission writing 6. What to expect next 7. Legal avenues 1. The Proposal Western Harbour Tunnel and Warringah Freeway Upgrade

Quick Overview: Who is the proponent? • Roads and Maritime Service What is being proposed? • New crossing of Sydney Harbour • Twin tolled motorway tunnels – approx. 7km long • Connecting WestConnex at Rozelle and the Warringah Freeway at North Sydney • Upgrade and integration works along the Warringah Freeway, including connections to the Beaches Link and Gore Hill Freeway Western Harbour Tunnel and Warringah Freeway Upgrade

Where is the process up to?

• EIS is being prepared 2017-2019

• EIS submitted and placed on public exhibition 2020

• Public submissions 2020

• Response to submissions • Possible preferred infrastructure report ? • Assessment and determination Scoping Report

• Broad description of the project • Brief justification for the project • Selection process for project - do nothing - rejected - more lanes on Sydney Harbour Bridge or Tunnel – rejected - increase public transport – rejected • Reasons for selecting blue corridor • Brief description of community consultation process • Key issues briefly identified Design Development Corridor SEARs

Key issues identified by the Department:

1. Transport and Traffic 9. Water - Hydrology 2. Air Quality 10. Water - Quality 3. Health and Safety 11. Flooding 4. Noise and Vibration – Amenity 12. Soils 5. Noise and Vibration – Structural 13. Heritage 6. Biodiversity 14. Sustainability 7. Place making and Urban design 15. Waste 8. Socio-economic, land-use and property 16. Climate Change risk 17. Hazards Beaches Link

Quick Overview: Who is the proponent? • Roads and Maritime Service What is being proposed? • 7.5km tolled twin tunnel motorway • Connecting the Warringah Freeway at Cammeray and the Gore Hill Freeway at Artarmon to the Burnt Bridge Creek Deviation at Balgowlah and the Wakehurst Parkway at Seaforth • Upgrade works along Wakehurst Parkway and the road network around the Burnt Bridge Creek Deviation • Connection and integration works along the existing Gore Hill Freeway at Artarmon Western Harbour Tunnel and Warringah Freeway Upgrade

Where is the process up to?

• EIS is being prepared 2017-2019

• EIS submitted and placed on public exhibition 2020

• Public submissions 2020

• Response to submissions • Possible preferred infrastructure report ? • Assessment and determination Scoping Report

• Broad description of the project • Brief justification for the project • Selection process for project - do nothing - rejected - improve existing network - rejected - increase public transport – rejected • Reasons for selecting blue corridor • Brief description of community consultation process • Key issues briefly identified Design Development Corridor SEARs

Key issues identified by the Department:

• SEPP (State and Regional Development) 2011

• Schedule 3 – Types of development (thresholds) • General public authority activities, Port facilities and wharf or boating facilities, Rail infrastructure, Water storage and water treatment facilities, Pipelines, Submarine telecommunications cables

• Schedule 4 – Specified development on specified land • Northern Beaches Hospital Precinct • Merimbula sewage treatment plant upgrade and ocean outfall What does it mean for this project?

• The assessment pathway for SSI is more streamlined than other developments • Some approvals are not required • EPIs don’t apply • Planning Secretary has broad discretion Relevance of other legislation

Approvals not required: • A permit to dredge, harm marine vegetation or block the passage of fish • an Aboriginal heritage impact permit; • a permit to clear native vegetation; • a bush fire safety authority; or • a water use approval. Approvals that must be consistent with the SSI approval: • Environment Protection Licence (EPA); or • Consent under s 138 of the Roads Act Relevance of EPIs

• Local environmental plans (LEPs) and State Environmental Planning Policies (SEPPs) do not apply to SSI except in very limited circumstances. For example, where they apply to the declaration of infrastructure as SSI or as CSSI.

• How the land is zoned is irrelevant to whether the SSI is permissible. Landholder consent

• Not required where:

• The application is made by a public authority; or • It is critical SSI; or • The SSI relates to linear transport infrastructure or utility infrastructure. 3. Assessment pathway Process for assessing SSI

Application and EIS

Notification, exhibition and public comment

Concurrence

Evaluation

Determination 4. Environmental Impact Statement Environmental Impact Statement What is an EIS? • An EIS is a comprehensive set of documents setting out all the relevant information on the project • It must address all of the key issues set out in the SEARs What role does an EIS play in the decision-making process? • The EIS is the main document the decision-maker will take into consideration when assessing the project Have all the decisions already been made by the time the EIS is lodged? • The decision/s around the type of project and the preferred route have been made by the time the EIS is lodged. What is required to be included?

• Must address the Secretary’s Environmental Assessment Requirements • In addition: • a summary of the environmental impact statement, • a statement of the objectives of the development, • an analysis of any feasible alternatives to the carrying out of the development, including the consequences of not carrying out the development, • an analysis of the development, including: • a full description of the development, and • a general description of the environment likely to be affected by the development, together with a detailed description of those aspects of the environment that are likely to be significantly affected, and • the likely impact on the environment of the development, and • a full description of the measures proposed to mitigate any adverse effects of the development on the environment, and • a list of any approvals that must be obtained under any other Act or law before the development may lawfully be carried out, • the reasons justifying the carrying out of the development in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ESD 5. Community Participation: Submission writing Public exhibition period • The EIS will be placed on public exhibition for a minimum of 28 days (legislative requirement).

• During that time, any person can make a written submission on the project.

• The Planning Secretary must then provide copies of submissions received by the Planning Secretary or a report of the issues raised in those submissions to: • the proponent, • the EPA, and • any other public authority the Planning Secretary considers appropriate. Submission writing

What documents should you comment on in your submission?

• Everything that makes up the DA – (SSI 8862 and SSI 8863), including the Environmental Impact Statement and all appendices

• All the relevant documents are available on the NSW Planning and Environment Major Projects website: • https://www.planningportal.nsw.gov.au/major- projects/project/10451 • https://www.planningportal.nsw.gov.au/major- projects/project/10456 Submission writing

How do I set out my submission?

• Introduce yourself or your group. What is your background and experience?

• Explain why are you interested in, and how you will be affected by, the development

• Give recommendations – tell the decision-maker what you want them to do Submission writing

How do I set out my submission?

• Personalise the submission – it’s OK to sign a pro forma submission, but ensure you personalise it

• Talk about how the proposal will affect: • you • your family • the environment • the local economy • existing industry Submission writing

Read proposal and supporting documents

Identify key issues/concerns

Clearly set out your concerns and support with facts/evidence Tell the decision maker what you want them to do

Submit before deadline Submission writing

How to engage the reader: • Think about your strategy. What will motivate people? • Keep submissions on-topic • Give insights into analysis or experiences from elsewhere that make your case • Point to innovative ideas • Make your submission short and punchy • Get the reader engaged early • Be objective and outcome focussed • Have a civilised and interesting conversation - Tom Grosskopf, Director Metropolitan Branch, Regional Operations, Office of Environment and Heritage Submission writing

Practical tips:

• Include a summary at the top of your submission • Use headings within your submission to structure your argument • Use clear language • One idea per paragraph • Put your idea in the first sentence, then explain it in the rest of the paragraph

- Tom Grosskopf, Director Metropolitan Branch, Regional Operations, Office of Environment and Heritage Alliances

• Who else shares your concerns? • A broad church of objectors is better than a narrow subsection of the community – more difficult to dismiss • Are there any Government agencies that would agree with your concerns? 6. What to expect next? Response to submissions

• The Planning Secretary may require the proponent to submit: • a response to the issues raised in the submissions, and • a preferred infrastructure report that outlines any proposed changes to the SSI to minimise its environmental impact or to deal with any other issue raised during the assessment of the project. • If the Planning Secretary considers that significant changes are proposed to the nature of the SSI, the Planning Secretary may make the preferred infrastructure report available to the public. Assessment Report • The Planning Secretary will give a report on the SSI to the Minister for Planning to inform the Minister’s decision. • The Report must include: • A copy of the EIS and any preferred infrastructure report • Any advice provided by public authorities on the SSI • A copy of any report or advice of the Independent Planning Commission in respect of the SSI • Any environmental assessment undertaken by the Secretary or other matter the Planning Secretary considers appropriate Evaluation

• Secretary’s Environmental Assessment Report:

• Copy of the EIS and any preferred infrastructure report • Any advice provided by public authorities • Any report or advice from the IPC • Any environmental assessment undertaken by the Secretary • Any other matter the Secretary considers appropriate

• Any advice provided by the Minister having responsibility for the proponent

• Any findings or recommendations provided by the IPC following a review (hearing) Determination • When deciding whether or not to approve a SSI application, the Minister must consider • The Planning Secretary’s assessment report and any reports, advice or recommendations it contains • Any advice provided by the Minister who has portfolio responsibility for the proponent (Minister for Local Government) • Any findings or recommendations of the IPC following a review • The Minister can approve or refuse the application • The Minister can approve the application subject to such modifications or conditions as the Minister determines. Access to Information

You should have access to: • The application to carry out State significant infrastructure • The environmental assessment requirements set by the Planning Secretary • The environmental impact statement prepared by the proponent and any responses provided to the Secretary by the proponent after the end of the public exhibition period • The environmental assessment report provided to the Minister by the Secretary • Any advice, recommendations or reports received from the Independent Planning Commission • Any approval to carry out State significant infrastructure given by the Minister (including conditions) • Any requests to modify an approval and any modifications made by the Minister 7. Legal Avenues If approved, can the decision be challenged in Court? Types of appeals

Merits appeal

• The court stands in the shoes of the original decision maker (Minister) and remakes the decision from scratch • The merits of the project are re-assessed – that is, costs and benefits • Court can approve or refuse the development – or attach new conditions

Judicial review

• The legality of the decision is under challenge, as opposed to the merits of the decision • Must be based on a legal error in the decision-making process • Court can void the decision but the same decision can be re-made (this time correctly)

Legal action should be viewed as a last resort Availability of appeals

State Significant Infrastructure Appeal Type Availability Time Limit Proponent Merits appeal No N/A Appeals Judicial Review Yes 3 months Third Party Merits appeal No N/A

Appeals Judicial Review Yes 3 months Judicial review

Examples of legal error that could form basis of judicial review

• failure to advertise a SSI application in accordance with legal requirements; • failure to properly notify relevant people in accordance with legal requirements; • failure to provide an Environmental Impact Statement when required; • failure to take a relevant consideration into account when granting consent.

Onus on the applicant to prove the error

• The onus is on the person bringing the case to point to a particular provision of a planning or environmental law which should have been complied with, and then to present factual evidence to show that it was not. • This is difficult for SSI projects because many other laws don’t apply and the process is highly discretionary If the project goes ahead

Civil enforcement may be an option

• Court proceedings where a person alleges that there has been a breach of an environmental law, and asks the Court to make orders to remedy or restrain that breach. • Any person can bring civil enforcement proceedings – useful where the regulator will not take appropriate enforcement action • No time limits • Requires evidence which can be difficult to get

Examples • Failure to comply with SSI approval conditions or any other licence requirements (e.g. pollution licence) Call us for free initial legal advice: 1800 626 239 Defend with us Support our work Donations are tax deductible: www.edo.org.au/donate Questions? Thank you.