Page 2265 - Week 06 - Friday, 27 June 2008
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proponent had engaged with ACTPLA or some other qualified source on those issues that the ACTPLA staff had raised about the suitability of the Mugga Lane site. In short, my assessment of ACTPLA’s performance is that it “shows promise; a few runs on the board; shines by comparison, but try harder”.
I want to conclude with a rebuttal. On Tuesday, the planning minister took me to task for suggesting that he had the power to direct a proponent to undertake an EIS before ACTPLA had completed its preliminary assessment process. He said:
Once the Planning and Land Authority has assessed the preliminary assessment, it then makes a recommendation to the environment minister. It is at that point that a decision is made—and a decision can be made at a ministerial level—as to whether a higher level of environmental assessment is required. To do so before that would be in breach of the act. For those opposite and Dr Foskey to be calling for that to occur before the planning authority has made that assessment would be asking us to breach the act.
Well, that is a remarkable proposition and it is apparently based on a legal opinion given to the minister by ACTPLA. ACTPLA has tried to convince the minister that its advice is required in all circumstances before a court could find that the minister’s consideration of a preliminary assessment was reasonable. In many instances it will be apparent to anyone with even a modicum of understanding, which a court will presume that a planning or environment minister possesses, that an environmental impact statement is needed after reading a particularly deficient PA for a particularly sensitive development proposal. Alternatively, it could be the case that time is of the essence in a particular circumstance, that the PA is incomplete and that the EIS process should start immediately.
The case that I was referring to was the original gas-fired power plant proposal. In this case it seems that the proponent might have thought that they could get away with submitting a defective and misleading PA on the basis that the project partners would walk if an EIS was to be called, and they were gambling that the government could ensure an EIS would not be required. The act clearly gives the minister the power to calm public fears and assure people that developers would never get away with that kind of behaviour in this jurisdiction by calling for an EIS as soon as he had considered and was satisfied that the PA was defective.
He does not need ACTPLA to tell him that he should consider that an EIS was necessary or not, particularly given that the PA’s projected emissions of nitrous oxide of 245 micrograms per cubic metre was claimed by the proponents as “comfortably” meeting emissions standards, given that 245 micrograms per cubic metre is 45 micrograms per cubic metre over the World Health Organisation’s safe pollutant levels before taking into account background gas levels and the fact that every deficiency in the model pointed to higher concentrations than the model predicted.
These issues have not had sufficient airing and the government has not acknowledged that the first iteration of the development was being seriously misrepresented by the proponents. It is informative that the proponents have now gone to the more stringent and responsible World Health Organisation standards when it seems clear that the two turbine generator proposal will comfortably meet those lower standards.
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