5.0 Objection to the corruption of planning process

WAG objects the corruption of proper planning processes that characterises WestConnex, including the New M5.

As the NSW Planning Department is aware WAG sent in a large submissions of concerns about the M4 East. We were dismayed to see how nearly all of these were superficially rejected in the Response to Submissions report which were were not even notified had been published. We know that citizens have made serious complaints about breakdowns in the process and the lack of adherence to principles of access. We are aware too that they have not even been able to find out what guidelines the Planning Department uses to deal with complaints. Planning department staff have told members of our group that some of the problems came about because so many submissions were received. This is a ludicrous situation. The Planning Department imposed unreasonable demands on the community to deal with highly complex poorly presented documents and then expect the community to accept it when it cannot deal with the process properly. This raises serious questions about the independence of the process.

WAG also has other objections in relation to the corruption of the planning processes for this project, which we have detailed below.

5.1 Strategic development

There is a requirement for the EIS that the proponent’s proposal is consistent with all Sydney’s strategic planning instruments. Requiring this project to be consistent with all strategic planning instruments sounds reasonable until you realise that all the plans were rewritten in 2012/2013 to place WestConnex at the centre of their transport strategies.

Up until 2012, metro strategy development in NSW was based on developing the broad strategy planning objectives and then discussing options to meet these strategic objectives before proposing individual projects/actions. Linking the M4 with the M5, as proposed by WestConnex, was never included as a project to realise previous Metropolitan Strategies.

Once WestConnex became the number one infrastructure project proposed by Infrastructure NSW, all strategic planning documents were rewritten to include WestConnex. In fact, it became the centrepiece of the transport strategy. This was after extensive community consultation was undertaken in February 2012 for the Long Term Transport Master Plan, which did not include Westconnex.

At the time, Les Walinga, the then Director General of Transport, was on the Board of Infrastructure NSW and at the same time was developing the Long Term Transport Master Plan. When Infrastructure NSW proposed WestConnex as the major infrastructure project of its plan, Les Walinga resigned from the Board citing conflict of interest as he was proposing public transport solutions in the Long Term Master Plan and was not supporting WestConnex. Even within Infrastructure NSW there was doubt about the appropriateness of WestConnex.

Even allowing for the bastardisation of the planning process, there are a number of areas where the New M5 is clearly not consistent with the Metro Strategy. These include:

●     Does nothing to alleviate Western Sydney congestion

●     Is an unsustainable solution as it will reach capacity by 2031

●     Does not relieve traffic congestion on most downstream intersections.

In 1998 the NSW government released Action for Transport 2010 an integrated transport plan for Sydney. According to page 2 of this plan, it proposed to:

“redress the [then] current imbalance in the road and public transport system.”

The plan included a 10 Point Action Plan for Sydney:

1.    Getting the best out of the Sydney system

2.    Improving Sydney’s air quality

3.    Reducing car dependency

4.    Meeting the needs of our growing suburbs

5.    Getting more people on public transport

6.    Safeguarding our environment

7.    Making space for cyclists and walkers

8.    Preventing accidents and saving lives

9.    Making freight more competitive

10. Giving the community value for money 

The plan listed 21 projects to be completed or started by 2010. These were: 

Rapid Bus Only Transitways

1. Liverpool to Parramatta (2003)

2. Parramatta to Strathfield (2002)

3. St Marys to Penrith (Stage 1 2003) (Stage 2 2008)

4. Parramatta to Blacktown (2004)

5. Blacktown to Castle Hill (2009)

6. Blacktown to Wetherill Park (2006)

7. Parramatta to Mungerie Park (2010)

Heavy Rail

1.   Airport Line (2000)

2.   Bondi Beach Railway (2002)

3.   Parramatta Rail Link to Epping and Chatswood (2006)

4.   Hornsby to Newcastle High Speed Rail (Stage 1 to Warnervale 2007) (Stage 2 to Newcastle work to start by 2010)

North West Rail Link Epping to Castle Hill (2010)

1.    North West Rail Link Epping to Castle Hill (2010)

2.   Sutherland to Wollongong High Speed Rail (2010)

3.   Hurstville to Strathfield Railway (To start by 2010 and be completed by 2014)

4.   Liverpool Y Link (Work to start by 2010

Light Rail

16. To Lilyfield (2001)

Road Improvements

17. Eastern Distributor (2000)

18. M5 East (2002)

19. Cross City Tunnel (2004)

20. M2 to Gore Hill (2004)

21. Western Sydney Orbital (2007)

All the projects in bold were built. It can be seen from the list that every road project was delivered. Of the 16 public transport projects only four were completed.

The inability for successive governments to deliver public transport projects has made Sydney (particularly western Sydney) more car dependent. Building more roads has not had any lasting impact on road congestion. No evidence has been provided in this EIS to suggest WestConnex will be any different. This project will not reduce car dependency, meet the needs of our growing suburbs, or get more people on public transport.

5.2 Contracts being signed before planning approval is granted

Another unusual feature of the New M5 is that while the EIS must look at “feasible alternatives” and “project justifications”, the contracts for construction will and are being awarded before this EIS was completed or planning approval granted.

Asked whether he would prefer to grant approval before the contract was awarded or whether he had any concerns about the process, Minister Stokes told New Matilda, "Timing of contracts is entirely the proponent’s responsibility and is not a consideration in the assessment process. However it is clear that no work on any project is able to commence without planning approval…. I do not intend to treat this project differently to any other project that comes to me or the Department.”

WAG believes that awarding the contracts before approvals as though such approvals are merely “green tape” is neither acceptable nor democratic.

5.3 Politicisation of the process by government officials and Ministers

One of the most disturbing elements of the WestConnex project has been the highly politicised nature of any discussion around the WestConnex. Expert analysis presented by the likes of SGS Economics and Planning, who prepared two independent reports on WestConnex for the City of Sydney, and even the NSW Auditor General have been dismissed by the NSW Government.

Perhaps the most shocking public example of this was the treatment meted out to Dr Tim Williams, CEO of the Committee for Sydney, after he strongly criticised WestConnex and the highly politicised road-building ideology that lies behind these kinds of infrastructure projects in an heavily researched presentation at the University of Sydney in April 2015.

Within days of his speech being reported in the Sydney Morning Herald, Dr Williams backed away from the criticism, saying in a letter to the Herald co-signed by Committee for Sydney chair Lucy Turnbull that the speech reflected only his personal views, despite the fact that his presentation was made on Committee for Sydney-branded PowerPoint slides.

Days after this letter appeared, Roads Minister Duncan Gay admitted in Parliament that he and his staff had made angry phone calls to pressure the Committee for Sydney to retract Dr Williams’s comments, saying:

"I did most of the phoning but my office did some as well...This was an appalling situation in which there was a rogue operator using the Committee for Sydney's material without their permission. In the strongest possible terms I prosecuted that case to the members of that committee, as did some of my staff."

It is hard not to conclude that the pressure placed on the Committee for Sydney by Minister Gay and his employees did not play a pivotal role in Mrs Turnbull and Dr William’s decision to make such a public and humiliating backdown from his well-informed speech, which was in line with credible international analysis on best practice urban and transport policy.

It is a chilling development when elected officials use their power to shut down open and democratic debate on an issue in which so much public money, the future prosperity and liveability of Sydney, and the quality of life of thousands of people rests.

5.4 Compulsory acquisition of properties before planning approvals are granted

Similar to the process for the M4 East, residents and businesses in St Peters and Kingsgrove received compulsory acquisition notices before this EIS was released, let alone planning approval for the project granted. This has had the effect of residents being forced into a timeline for negotiations with the RMS (which has been charged with acquiring properties for WestConnex) for properties being taken for the New M5 before this project has received planning approval.

Residents, some of whom have lived their whole lives in the district, are being forced from their homes, often with what is considered inadequate funds to secure housing within the neighbourhood. Residents report that RMS staff are behaving in a forceful and bullying manner towards them. WAG has been contacted by numerous home and business owners affected by WestConnex compulsory acquisitions across the route, including the New M5, who have reported being offered hundreds of thousands of dollars less than what they are legally entitled to. All of these affected property reported suffering physical and mental anguish as a result of the process, with anxiety, depression, insomnia, relationship strain, significant weight loss and worsening of existing conditions such as schizophrenia, chronic fatigue, and high blood pressure all being reported to WAG as a direct result.

In January 2016, a series of articles in the Sydney Morning Herald by Sean Nicholls revealed that the NSW Government was told three years ago that this compulsory acquisition process was unfair to property owners. In the piece that ran on 11 January 2016, it was revealed that:

Hundreds of millions of dollars worth of property is being forcibly resumed by the NSW government to make way for major infrastructure projects such as the WestConnex motorway using a system it was warned three years ago was unfair to landowners.

Despite the report of a parliamentary committee chaired by Liberal MP Matt Kean calling for an overhaul of the compulsory acquisition system, the government has not implemented key recommendations while forging ahead with forced resumption of private homes.

…[M]any landholders have complained they are being given compensation hundreds of thousand of dollars below market value, amid the recent Sydney property boom.

Under the Land Acquisition (Just Terms Compensation) Act, if a landowner cannot reach agreement with the government about how much they will be paid, the Valuer-General provides a valuation as part of a compulsory acquisition.

The landowner can appeal the decision to the Land and Environment Court. But doing so can cost tens of thousands of dollars.

In 2013, the joint standing committee on the office of the valuer-general published a major report on the NSW land valuation system.

It found the compulsory acquisition system is "unfair and inadequate".

"The entire approach to objection and compulsory acquisition valuations requires a paradigm shift where landholders are no longer seen as the receiver of a valuation notice, but rather as an interested party, whose views and opinions are entitled to be heard," the report found.

It recommended landholders be legally entitled to two conferences – in person, by telephone or online – with the valuer or acquiring authority after they make a submission on the valuation of their land.

Far more information should be disclosed about how the valuation was made, the committee said, while authorities should be required to provide in writing reason for rejecting a landholder's submission. Similar rights are in place in Victoria and Queensland.

The report found that "the current costs associated with litigation in the Land and Environment Court represent a material barrier to the enforcement of legal rights."

A full hearing in the Land and Environment Court can cost $100,000 in fees for lawyers and experts.

The report also recommended landholders be entitled to a merits review of their valuation in either the Land and Environment Court or the more affordable option of the NSW Civil and Administrative Tribunal.

Vincent Butcher, a lawyer at Slater and Gordon representing over 100 property owners affected by WestConnex, NorthConnex and other projects said the Land Acquisition Act states a person should not be put in a worse situation.

"The process in which the acquiring authority is engaging in restricts and doesn't give land owners a fair opportunity to have their say," he said.

Mr Butcher said implementing the committee's recommendations would be "a good starting point" but what was needed was an independent panel to impose "more accountability on the acquiring authority during the negotiation process."

Subsequent reports on the issue in the same paper revealed that the findings of this parliamentary committee were being kept secret by the NSW Government.

The only true and fair way of mitigating this social and health impact on affected residents is to cease all property acquisition processes until there is full release of the WestConnex business case and an independent analysis of the entire project, including this New M5 proposal, to be considered and independently verified. This must include a full socio-economic impact analysis that accounts for the true costs of the project and does not hide the costs borne by individuals if the New M5 project were to proceed.

Should the project stand up to this level of transparency and independent scrutiny, affected property owners must be offered just compensation for their losses, and be left in a position that is no worse off than they would have been had they not been forced from their homes or businesses for the toll road. This protection should also extend to rental tenants who live and/or run a business from an affected property.

5.5 Conclusion

WAG formally and strongly objects to the corruption of the planning processes surrounding WestConnex, including the New M5, and we ask that the Minister for Planning reject the WestConnex New M5 project.



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