SYDNEY’S DESALINATION PLANT: Lessons for critical infrastructure under the NSW Environmental Planning and Assessment Act 1979 Stephanie Lum Bachelor of Planning University of NSW October 2009 ABSTRACT Sydney’s Desalination Plant: Lessons for critical infrastructure under the NSW Environmental Planning and Assessment Act 1979 Part 3A (Major infrastructure and other projects) of the New South Wales Environmental Planning and Assessment (EP&A) Act 1979 commenced on 1 August 2005. The objective was to facilitate large-scale infrastructure developments by streamlining the approvals process. Local governments, environmentalists and community groups have vehemently opposed this planning reform on the grounds that it reduces scope for public participation, judicial review and merit appeals. These rights are further restricted for projects deemed critical infrastructure. Under section 75C of the EP&A Act, the Minister may declare a project as critical infrastructure if it is deemed “essential for the State for economic, environmental or social reasons”. Critical infrastructure projects exclude appeal rights by proponents and objectors, the application of all environmental planning instruments (other than State Environmental Planning Policies), and third party appeals. The declaration by the NSW Minister for Planning of the Kurnell desalination plant as critical infrastructure in November 2005 ignited considerable opposition from the public. Through a review of both the Government’s justification for the plant to safeguard Sydney’s water supply and the critical infrastructure process applied to it, this thesis makes recommendations on how the planning approvals process for major projects under Part 3A could be improved. Abstract i ACKNOWLEDGEMENTS I would like to sincerely thank Mr Peter Williams and Ms Jackie Biro for their guidance, advice, time and constant encouragement. I would also like to acknowledge the EG Property Group for their support through the final year thesis scholarship. I wish to also thank my family and friends for their support throughout the thesis process. Acknowledgements ii TABLE OF CONTENTS Chapter One: Introduction 1.1 Problem Setting 1 1.2 Theoretical Framework 2 1.3 Context 2 1.4 Research Statement 3 1.5 Methodology 4 1.6 Research Limitations 7 1.7 Thesis Structure 8 Chapter Two: Australia’s Recent Urban Water Crisis 2.1 Introduction 10 2.2 Water Demand and Supply in Australian Cities 10 2.3 Options for Managing the Water Crisis 19 2.4 Summary 23 Chapter Three: The Desalination Decade 3.1 Introduction 24 3.2 Western Australia – Perth Seawater Desalination Plant (Kwinana) 24 3.3 Victoria – Victorian Desalination Plant (Wonthaggi) 27 3.4 Queensland – Gold Coast Desalination Project (Tugun) 29 3.5 South Australia – Adelaide Desalination Project (Port Stanvac) 32 3.6 Summary 34 Chapter Four: Part 3A and the Critical Infrastructure Process 4.1 Introduction 36 4.2 Developments Assessed Under Part 3A 36 4.3 Development Assessment Process for Part 3A Projects 37 4.4 Government Rationale for Introducing Part 3A 38 4.5 Major Projects As Critical Infrastructure 40 4.6 Responses to Part 3A – Views of Commentators 40 4.7 Summary 45 Chapter Five: The Kurnell Desalination Plant and the Critical Infrastructure Process 5.1 Introduction 47 5.2 Key Concerns About the Desalination Plant and Critical Infrastructure 48 Assessment Process 5.3 Key Lessons for the Critical Infrastructure Assessment Process 59 5.4 Summary 65 Chapter Six: Conclusion 6.1 Introduction 67 6.2 General Overview 67 6.3 Research Findings 68 6.4 Suggestions for Further Research 72 6.5 Final Remarks 73 References 75 Newspaper Articles 82 Submissions 85 Appendices 86 Table of Contents iii LIST OF FIGURES Figure 2.1 Water usage in OECD countries 11 Figure 2.2 Change in water use in Australia (1983-84 and 1996-97) 11 Figure 2.3 Water consumption in Australia by sector (2000-01 and 2004-05) 12 Figure 2.4 Household water consumption per capita in Australia (2000-01 13 and 2004-05) Figure 2.5 Residential water consumption (kL/person/year) 13 Figure 2.6 Per capita per day demand trends (1991-2008) 14 Figure 2.7 Mean annual rainfall in Australia (1900-2008) 16 Figure 2.8 Sydney’s dam levels (1960-2006) 16 Figure 2.9 Annual mean temperature anomalies for Australia 18 Figure 2.10 Trends in annual total rainfall 1960-2008 (mm/10yrs) 18 Figure 3.1 Perth’s dam levels (2002-2009) 25 Figure 3.2 South East Queensland’s dam levels (2000-2007) 30 Figure 5.1 Themes raised in articles from the Sydney Morning Herald 50 Figure 5.2 Dam levels in the Sydney catchment area 60 APPENDICES Appendix A Parliamentary Inquiry into Sydney’s Water Supply – Terms of Reference Appendix B Part 3A of the EP&A Act assessment process Appendix C Kurnell desalination plant timeline Appendix D Newspaper articles from the Sydney Morning Herald Appendix E Submissions to the Parliamentary Inquiry into Sydney’s Water Supply Appendix F Submissions to the Department of Planning on the environmental assessment of the Kurnell plant List of Figures and Appendices iv CHAPTER ONE INTRODUCTION 1.1 PROBLEM SETTING Strong public and stakeholder opposition to proposed developments has a recognised history in Australia. Noteworthy occurrences include the first green ban conducted in Australia in the 1970s by the New South Wales (NSW) Builders Labourers‟ Federation (BLF) in Hunters Hill to protect the undeveloped bushland of Kelly‟s Bush. The success of this ban led to more such bans, most notably the green ban in The Rocks, which successfully led to the protection of historic buildings from being demolished as part of the NSW Government‟s redevelopment plans. These green bans led to the inclusion of „public participation‟ as an object of the NSW Environmental Planning and Assessment Act 1979 (EP&A Act) (Burgmann and Burgmann 1999). Governments‟ assessment and approval of developments remains controversial to this day. A recent case in point is the NSW Government‟s insertion of Part 3A (Major infrastructure and other projects) into the EP&A Act on 1 August 2005. The stated aim was to encourage investment by streamlining the assessment and approval process for major projects. However, local governments, environmentalists, community groups and the general public have vehemently opposed the legislation since its inception on the grounds it reduces scope for public participation, judicial review and merit appeals. Further opposition to Part 3A of the EP&A Act has erupted for projects deemed critical infrastructure. Critical infrastructure projects are any development “that, in the opinion of the Minister [for Planning], is essential for the State for economic, environmental or social reasons” (section 75C). For these projects, the legislation excludes appeal rights by proponents and objectors, third party appeals and the application of all environmental planning instruments (other than State Environmental Planning Policies (SEPPs), which the Minister may not need to consider unless the SEPP specifically states compliance is required). Sydney‟s Kurnell desalination plant was the first project the Minister deemed critical infrastructure under Part 3A, just three months after the legislation was introduced. The proposal to build a plant received overwhelming opposition from the public. Despite the strong public opposition, the Minister approved the application for the plant in November Chapter One – Introduction 1 2006. The plant is expected to start producing desalinated water for Sydney this coming summer. The contentious project offers potential insights into Part 3A and the process of conceiving, assessing and approving critical infrastructure projects in NSW, and Australia more broadly. 1.2 THEORETICAL FRAMEWORK This thesis draws on academic literature on Part 3A and the NSW planning system. The academic literature provides a critique of the NSW Government‟s rationale for Part 3A. However, much of this literature provides an overview of Part 3A from a conceptual or „philosophical‟ perspective, rather than a particular emphasis on critical infrastructure projects or any case study in detail to analyse the Part 3A process. There is also limited academic literature on desalination within an Australian planning context as it is an emerging technology in Australia. The majority of the literature has been written from an engineering perspective. This thesis seeks to make a contribution to the small body of existing planning literature on desalination, with a particular focus on the assessment and approval process for critical infrastructure projects under the NSW planning system. It is a central conceptual view of this thesis that the critical infrastructure process should be governed by the key philosophical drivers behind the defining characteristics of the introduction of the Act, such as public participation, government transparency and accountability (for example, through access to the Courts to challenge government decisions) and the role of local government. 1.3 CONTEXT The NSW Planning System The EP&A Act 1979 sets the framework for the NSW planning system, including the assessment of development applications by local government, State Government and agencies. Development proposals that fall under Part 5 (Environmental Assessment) of the Act are assessed by local councils or State Government agencies. They are “often infrastructure proposals, such as roads, water supply dams and sewage treatment plants” and are called „development without consent‟ (NSW DoP 2009a). Most development proposals in NSW are assessed by local councils or accredited certifiers under Part 4 (Development Assessment) of the Act (NSW DoP 2009a). These include local developments which require the lodgement of a development application with the local Chapter One – Introduction 2 council. The development may also be complying development if it is considered a common or routine proposal. However, in limited circumstances, the NSW Minister for Planning may be the approval authority for Part 4 developments, which include those that fall under Schedule 6 of State Environmental Planning Policy (Major Projects) 2005. The SEPP also encompasses major projects assessed under Part 3A of the EP&A Act.