The community’s right to participate: what happened to merits review?

By EDO NSW CEO/Principal Solicitor Sue Higginson

7 July 2016

Over the past few years, we’ve received many calls and emails from community groups across NSW who are concerned about the removal of their merits review rights for large resource extraction projects. Communities are concerned that they have lost access to a valuable right of public participation in the state’s planning system – the right to appeal the approval of large scale mining and coal seam gas projects to the Land and Environment Court. 

The right to appeal such approvals is an important check and balance on environmental decision making that was deliberately built into the architecture of the NSW Planning System.  In response to the community concerns, we have had a critical look at merits review and the role such reviews actually play in the planning system. We have released our findings in a new report, Merits Review in Planning in NSW.

Merits review: allowing community access to justice

Merits review was introduced into the NSW planning system over 35 years ago as part of the forward thinking reforms that were largely successful in depoliticising environmental decision making and improving the integrity of the Planning System. 

Merits review allows the community to challenge a development approval based on a project’s environmental ‘merits’ – that is, whether the environmental, social or economic impacts of a project are acceptable or not, based on the evidence of impacts. Such rights are only conferred in relation to developments that will have significant and enduring environmental impacts. Essentially they provide an independent forum (the specialist Land and Environment Court) to test the evidence about the predicted impacts of a development on the environment, the community and the economy.  The Court provides an equal playing field for the community as a legitimate participant in the Planning System. It allows communities to present their own expert evidence about impacts and test and challenge the level of impacts claimed by proponents and the NSW Government.

The Honourable Peter Biscoe QC, former Judge of the Land and Environment Court, notes that, “during the last decade ICAC has more than once recommended to the NSW government that third party merits appeal rights should be extended to improve transparency and accountability of development approval processes.”

The availability of merits appeal rights improve the quality of decisions and ensure that decisions are more legitimate in the eyes of the community.

So why are the community’s rights to access merits review being eroded?

Access lost

Since 2008 the Minister for Planning has had the power to refer large developments to the Planning Assessment Commission (PAC) for a public hearing before a decision about whether to approve a project is made. When a public hearing is held, the community loses its right to challenge any project approval based on its environmental merits.

Our report examined the frequency of the Minister (or the Secretary) referring large coal and coal seam gas projects to the PAC for a public hearing and found that such requests are disproportionate.  Some 38 matters have gone to a PAC public hearing at the request of the Minister (or Secretary) since 2008, of which 29 have been for resource projects.

The consequence of this, not surprisingly, has contributed to the widely-acknowledged crisis in public confidence in this system.

The report highlights five merits review cases that we have run for community groups in the Land and Environment Court over the years. These cases have all resulted in either the refusal of a development on the basis that the environmental or social impacts are unacceptable, or in the imposition of strong and effective conditions to ensure that the impacts on the environment and communities are minimised.

Jackie French, who was involved in the merits appeal against the Dargues Reef gold mine recently wrote to me:

“The community's merit appeal led to wider and more stringent Conditions of Approval, benefitting not just the community and environment, but improving the safety of the Project and the long term benefit to the NSW economy. Merits review gave us a voice, a chance to have independent expert views heard, a seat at the table.”

Our report demonstrates that merits review is an essential part of the planning system and it is crucial that it continues to be recognised and facilitated in NSW.

Read the full report »