The answer is a resounding NO. The promised review of the Denison Street Bunnings fiasco focused on the legal obligations of the Department of Planning rather than ‘good’ planning to protect residents and critical infrastructure.
The review was undertaken by Clayton Utz who completed it on either 10th July 2015 or 3rd July (see 2.12(c)). It was forwarded to selected community stakeholders on 15 August 2015.
1.8 DCP 2013 provides a guide for the external notification of development applications and suggests that “approvals, referrals and comments” may be sought from the Department (Manager of Hazards Unit) for development “affected by the provisions of the Botany/Randwick Study; the Port Botany Report….” In our view, DCP 2013 did not create any formal role or obligations for the Department with respect to the risk assessment of any possible hazard relating to the Proposed Development, although it provided a basis for consulting the Department.
It’s now established that the community and business can take no comfort from the Botany/Randwick Industrial Land Use Study and the Port Botany Land Use Study. As far as providing certainty they are as worthless as the Port 2005 Botany Expansion Conditions of Consent.
Whether, in determining DA11/224, the JRPP’s consideration of submissions made to the JRPP or Council by community members was consistent with its role
1.14 In our view, submissions made by community members may be relevant considerations which need to be taken into account by the JRPP. In making the decision with respect to DA11/224, the RJPP was also required to afford procedural fairness. We have had regard to these matters as well as the JRPP Operational Procedures and JRPP Code, which provide guidance to the JRPP, including with respect to submissions.
1.15 Given the high volume of submissions made in relation to DA 11/224, we have not conducted an analysis of each individual submission made. Instead, we have taken the extensive submissions by Mr Salter as an example of the submissions made by community members.
1.16 (b) In our view, it is reasonable to conclude that the JRPP afforded procedural fairness to Mr Salter with respect to his submissions. In particular, we consider that the JRPP provided Mr Salter with numerous opportunities to be heard on the matter, deferred its decision with a view to ensuring it had appropriate evidence to support a decision, and took steps to ensure that there was enquiry into a key matter raised in submission(ie. (sic) transport risk assessment).
By singling out Mr Salter, Clayton Utz conveniently ignore other submissions and particularly input from NSW Ports. Further they state that the JRPP ‘deferred its decision with a view to ensuring it had appropriate evidence to support a decision…’. They are content that the Lister QRA which was presented to the JRPP shortly before 1 April 2015 and which underestimated class 2 Dangerous Goods by x10 was ‘appropriate evidence’.
2.4 The NSW Department of Planning and Environment(Department) had some involvement in the assessment of DA11/224, including in relation to the procurement of a QRA of Dangerous Goods Transport along Denison Street. An independent consultant, Scott Lister, prepared a report entitled “Dangerous Goods Transport QRA, Denison St, Hillsdale” dated 12 February 2015 on behalf of both the Department and the Council (QRA Report). An addendum to the QRA Report (Addendum) was subsequently prepared to address updated traffic flow data. Information subsequently included in the Addendum was provided to the JRPP before it made its decision. Scott Lister provided the Addendum to the Department on 18 May 2015.
2.7 The JRPP had available to it the QRA Report and some of the supplementary advice which was subsequently formalised in the Addendum, in determining to grant development consent.
The DA was determined by the JRPP on 1 April 2015. The QRA Report was not uploaded to the website until 13th May two days after community members had a meeting about the matter at Minister Stokes’ office. At that meeting the errors in the QRA Report were discussed and the answer given was that there was an Amended Report. On subsequent contact with the Department ‘Amended’ became ‘Addendum’. The Addendum Report was uploaded to the JRPP website but with no date and no author. To establish whether someone from Scott Lister’s office actually attended the JRPP meeting on 1st April a request was made to the JRPP for the minutes of the meeting. The JRPP refused to make the minutes public nor would they say who attended. It is unclear how and when the JRPP was apprised of ‘updated traffic flow data’.
Clayton Utz fail to note that the Addendum contains a map which shows residents at ‘unacceptable risk’. They could argue that this is outside the scope of the Terms of Reference, which it is. But normally when ‘unacceptable risk’ is flagged it is incumbent on those aware of the problem to do what they can to address it. But was this exercise ever about protecting citizens? While the new Minister may be smart and committed. He is only one person. The legacy of Tony Kelly continues to thrive.
Last April Fools Day, the Sydney East Joint Regional Planning Panel* approved a very high traffic generating development on a major hazardous goods route servicing Port Botany and surrounding Industry, i.e. Bunnings on Denison Street. In doing so it overruled the objections of Botany Bay Council who cautioned against future risk associated with a growing Port Botany. The JRPP determination is dismissive of Council’s concerns for ‘future risk’.
The Risk Assessment finally released onto the JRPP website on 13th May underestimated one class of dangerous goods tenfold. An undated, unsigned addendum was added to the website about a week later. It contains a map with revised risk contours indicating that residents are now exposed to ‘unacceptable risk’.
Port Botany was conditioned in 2005 for a trade cap of 3.2 million TEU. In the lead up to the lease/sale in 2013 the Government successfully brought in legislation to outlaw any cap. The Risk Assessment of Hazardous Goods, required as part of an EIS under the 2005 Conditions, wasn’t undertaken. There was no mention of Hazardous Goods in the December 2011 Ernst and Young Report commissioned by INSW but there is a recommendation pertinent to the Bunnings DA and the change of the Port SEPP boundary to accommodate it (see below):
Recommendation in Ernst & Young Report commissioned by Infrastructure NSW (page 51): Preserve critical land around the Port precinct – Early consideration – This measure would mark out a sufficient land buffer around the Port, and put in place appropriate planning controls on residential development in these areas, as well as strict monitoring and adherence to these. The aim is to prevent urban encroachment on key infrastructure assets in the corridor that might obstruct their future optimal development. While the Port is currently a State Significant Zone, there has been examples of residential and sensitive use development near to the Port, which would threaten more productive use of the Port in the medium to long term.
Yet only this week an advertisement appeared for part of the Orica owned Botany Industrial Park site on Denison Street with no mention of Three Ports SEPP or the Dangerous Goods Route. Instead prospective buyers are advised that it is “away from the congestion of Alexandria with no impediments from local residential occupants…..Perfect profile and exposure for the occupier with room for growth”
Tony Kelly rezoned Botany port land, June 16, 2014: Anne Davies, SMH Former Labor planning minister Tony Kelly made changes to a planning policy designed to protect land around Port Botany for port uses, clearing the way for a large Bunnings hardware store and a multi-storey residential development on a highly contaminated site in Pagewood. The changes were signed off by Mr Kelly in late 2010 without any advertising or public consultation and without going to cabinet. As lands minister, Mr Kelly was found to have acted corruptly over an unrelated matter. The changes were made against the explicit advice of his own departmental planning panel and Sydney Ports. But they were strongly pushed by Botany Council whose then mayor, Ron Hoenig, was close to Mr Kelly. Both developments are now very controversial in the Botany community. In his mayoral blog, just after Mr Kelly approved the rezonings in October 2010, Mr Hoenig said he had worked through the issues with the department and had invited Mr Kelly, “to come and have a look”. “What we wanted the Minister to understand were the views of local residents and how they saw the future of this area,” Mr Hoenig wrote. “The Minister and his Department agreed with those views and a week or so ago the local planning scheme was altered to allow varying developments.” Mr Hoenig told the Sydney Morning Herald council officers took Mr Kelly to see several sites, including Page Street in Pagewood, which the council had long wanted to have developed as residential and office space because it was opposite a school. He supported the Bunnings proposal because he wanted to see bulk retailing along Denison Street. The alternative was that both sites would become 24-hour container terminals, which would be bad for residents, he said. Mr Hoenig said there was nothing untoward about the council’s position. The Sydney Morning Herald was not suggesting there was. Mr Kelly said he did not recall the particular sites very clearly but thought the local member for Maroubra Michael Daley might have come to him with residents’ concerns about the Bunnings site being turned into container storage, leaving them looking at container stacks. “My department must have agreed in the end,” he said. “There was no pressure put on them.” A State Environmental Planning Policy was put in place in 2005 to protect industrial land around the major ports in NSW from development that would be inconsistent with port activities. At the time, developers were beginning to eye off old industrial brownfields sites close to the city for apartments. On July 2009, the then ports minister Joe Tripodi brought the rules together for all three ports: Botany, Kembla and Newcastle. “It will provide clearly defined boundaries to allow local government, industry and residents to plan for a future in harmony with each of the state’s three major ports,” he said. The plan would provide “certainty for the future of these important employment lands”, he added. But in just over a year, Mr Kelly had amended the SEPP to carve out two sites in the Botany port zone. Labor-dominated Botany Council, headed by Mr Hoenig, now a state MP, began lobbying for the two excisions within a month of Mr Tripodi’s announcement. Documents uncovered under freedom of information legislation show that, beginning in August 2009, the council resolved to push both developments. It also decided to deal with the matters in closed session. Sydney Ports, which has since been privatised, opposed the plans and in later submissions warned the council the two proposed developments were inconsistent with port activities. Despite the objection, in May 2010, the council sought permission to proceed to what is known as a gateway rezoning for the Bunnings store. A panel within the Department of Planning recommended against it in June. It said Bunnings should not be allowed to build a retail facility within industrial land because it would give Bunnings an unfair advantage, would add to the traffic on the local roads and was inconsistent with the SEPP and the metropolitan strategy. A letter was prepared for the department’s Director-General Sam Haddad to send to the council relaying the opposition, but it appeared not to have been sent. Instead, by August 2010, the correspondence showed there was some urgency in the department surrounding the changes to the SEPP. Bureaucrats, who refused to go on the record, said it was made clear to them the changes to the SEPP would have to be made. In August, Bunnings went ahead and exercised its option to buy the site, even though the SEPP still prevented a hardware store on the site. In late October, Mr Kelly’s department prepared a briefing note for him to alter formally the SEPP, supporting action on both the Bunnings and residential developments. “As the amendments have been request [sic] by the Botany City Council and are supported by the relevant property owners, it is recommended that it is not necessary or appropriate to publicise an explanation of the intended effect of the proposed SEPP or seek submissions from the public on the matter,” the department said. The advice also said there was no need to consult with any other minister, as “it is not involving the generation of new policy”. Ross Salter, owner of the local Mitre 10 store, said he first knew of the rezoning when the plan for a Bunnings store was announced by then premier Kristina Keneally just before the 2011 state election. “We weren’t consulted about the amendment to the SEPP nor were the neighbours to the land,” he said. “The process of community consultation has been grossly lacking.” He said the impact of Bunnings on his business would be “catastrophic”. Since the change of government in 2011, Botany Council has made further attempts to have port land rezoned for a hotel and offices. The department has reverted to its tough stand that port land should remain industrial. Mr Hoenig employed Mr Kelly’s son at Botany Council in 2001, after the son was involved in a computer hacking scandal while working for his father in Parliament House. The Daily Telegraphreported last month that Mr Kelly and Mr Hoenig were drinking together in the Parliament House bar for more than an hour. Mr Hoenig described it as a chance encounter.
* The Panel consists of John Roseth as Chair, Julie Savet Ward (EPA Board), Sue Francis, plus Peter Fitzgerald GM of Botany Bay Council when the SEPP boundary was changed and Ben Keneally current Mayor of Botany Bay Council and husband of Kristina Keneally who was Planning Minister when the SEPP was on exhibition and Premier when Tony Kelly changed the boundary.