Since 1835 thirsty Sydneysiders have been satisfied by the product of the brewery at 26 Broadway, Chippendale, on the fringe of the CBD. The brewery complex is a major landmark site, and in about 2003 brewing gave way to proposals for residential and commercial redevelopment.
On 9 February 2007, after an extensive and complex series of planning proposals and examinations, the Minister for Planning approved a concept plan for the site under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) ("Planning Act").
Mr Drake-Brockman challenged the validity of the concept plan approval, and the Minister's related determination about further assessment and approval processes for the redevelopment proposal under section 75P of the Planning Act.
The Land and Environment Court rejected Mr Drake-Brockman's challenge. In doing so, it gave some valuable guidance on how the new Part 3A operates and the role of ecologically sustainable development (ESD) in project approvals (Drake-Brockman v Minister for Planning  NSWLEC 490).
Concept plans and a question of timing
Mr Drake-Brockman's first ground of challenge rested upon timing, and the definition of "concept plan".
Part 3A requires the Director-General of Planning to issue environmental assessment requirements (EARs) for a project. Mr Drake-Brockman said that, at the time the Director-General's EARs for this project were issued, the concept plan application had not been lodged formally with the Director-General. This, he said, meant that the Director-General had not properly consulted relevant public authorities while preparing his EARs, and that the Director-General actually issued the EARs before he had an application before him.
The Court rejected this challenge. It held that an application for a concept plan approval had, in fact, been lodged prior to the issue of the EARs. The proponent had lodged documents which objectively satisfied all of the Planning Act's requirements for a concept plan, even though it had not submitted the relevant standard form at that time. These documents were sufficient to enable the Director-General to prepare the EARs.
The Court then went further. It said that the Director-General doesn't have to wait for an application for a concept plan, or even for the Minister’s to authorise a proponent to submit such a application - he can start preparing the EARs for a project before either of these things occurs.
The Director-General's paper trail
The next ground of challenge was based on the Director-General's failure to include a statement relating to the project's compliance with the EARs. Mr Drake-Brockman said that:
- Part 3A requires that a single compliance statement be included in the Director-General's report to the Minister, and the report didn’t include such a statement; and
- without a single statement as to compliance, the Minister could not properly consider compliance with the EARs, and therefore his decision was invalid.
The Court also rejected this challenge. It noted that, although Part 3A required that a "statement relating to compliance with" the Director-General's assessment requirements must be included in the Director-General's report, Part 3A does not specify what form that "statement" must take or who must prepare it.
Given that many of the items to be included in the Director-General’s report had to be prepared by persons other that the Director-General, the fact that Part 3A didn’t specifically require the Director-General to prepare the statement was significant. The Minister could, if he wanted, ask an expert panel, the proponent or another public servant to prepare the statement.
The Director-General's report also doesn't have to include certification of compliance or non-compliance with the EARs. According to the relevant Planning Act provision, a statement "relating to" the EARs is all that's needed. This could be constituted by a document, or a series of documents, as long as it was readily discernable as a single entity. Indeed, the "statement" could be constituted by the entirety of that Director-General's report, and that is what the Director General said had been done here.
Was ESD considered?
Mr Drake-Brockman's final ground of challenge concerned ESD.
In the course of the concept plan assessment process, the Director-General included in the EARs for the project (under a heading specifying ESD) some "green building" requirements, and the proponent sought to address those requirements in its assessment and its Statement of Commitments. The Director-General, in his report to the Minister on the project, outlined and commented on the green building commitments the proponent had made, and the Minister imposed conditions in the concept plan approval which required the proponent to meet the those commitments.
Mr Drake-Brockman however said this was not enough. He produced an expert report which calculated the likely greenhouse gas emissions from the project. His argument then went like this:
- the principles of ESD were a mandatory relevant consideration for decisions under Part 3A, following the (highly publicised) decision in Gray v Minister for Planning (2006) 152 LGERA 258;
- the Director-General's report did not mention the need for the proponent to satisfy the onus imposed by the "precautionary principle", or the role of "inter-generational equity" (two of the key principles of ESD for greenhouse gas assessments); and
- when the Minister made his decision on this project, he didn't have enough information to address the likely volume of greenhouse gas emissions from the project, or the particular principles of ESD which were relevant to the project, and his approval was therefore invalid.
Once again, the Court disagreed. It held that:
- the decision in Gray doesn't mean that Part 3A requires any particular form of assessment of greenhouse gas emissions
- the content of an assessment doesn't have to include a quantitative analysis of greenhouse gas emissions; and
- an assessment doesn’t even need to refer specifically to particular principles of ESD, if it can be shown that ESD was nevertheless taken into account.
The Court also made some important observations on the role of ESD in the project approval process. ESD should be seen as one of several objects in the Planning Act, and not necessarily the only one. Justice Jagot focused on "the unifying theme" of ESD in the Planning Act - "the effective integration of economic and environmental considerations" - to emphasise the point that we should not be too prescriptive in the way in which we apply ESD.
"One assessment – one approval"
When the Government's reforms to the approvals process for major projects were passed in 2005, we wondered if they would really speed up the process. Judging by the number of challenges to approvals made under them, you could be forgiven for thinking they haven't quite worked as intended.
Having said that, the decision in Drake-Brockman suggests that there is more flexibility in the Part 3A regime than many have thought. The key challenge remains - apply Part 3A in a practical manner, while giving effect to the objectives of Part 3A and the Planning Act as a whole.
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