Wednesday 16/07/2014 Nicola Rivers, New Matilda
A Victorian Government decision to fast track the approval of a major new Melbourne road has shredded the rule book on community consultation. Environmental lawyer Nicola Rivers explains.
Well that was quick. Hearings to assess the impacts of the eastern section of the East West link finished in April and the final project has already been approved.
That’s fast-tracking for you. It’s so fast that some of the people who are going to lose their homes to the freeway don’t even know about it yet, and won’t have any say in the process because it’s over.
The East West Link is a proposed 18 kilometre tolled freeway-standard road link in Melbourne, planned to run from the western suburbs to the Eastern Freeway.
I’d like to say that Victorians are being ‘railroaded’ into this controversial project, but that seems like an unfortunate description for a process designed to avoid questions about public transport.
‘Road-roaded’ might be a more appropriate term.
Our community has some big questions around East West Link. Should this development proceed at all? What are the climate change impacts? Would public transport be a better option?
Changes to our laws made by successive governments mean that those questions cannot and will not be asked.
The rules are stacked – deliberately – against the public and the environment. That’s because, in September, the government made changes to the laws that fast-track major transport project approvals.
Essentially, they fast-tracked the fast-tracking. As a result, they have almost unfettered discretion to determine whether, how and where the tunnel and roads will be built, regardless of impacts on our environment, heritage, and communities.
Planning Panels Victoria, the independent panel investigating the project and making recommendations to the Minister on whether it should proceed, were scathing of the process.
Their report to the Minister, which was released early last week, along with the Minister’s approval, notes that the ‘project’ they were required to assess was in fact just a hypothetical, with the actual freeway development yet to be determined.
They note the rushed timeframes forced on the proponent and consultants, which has led to less than adequate information being presented to the Panel. And they note the angst and confusion this process has caused the community.
Ultimately, they supported part A of the project with some significant alterations, and rejected part B outright.
The Minister, however, has approved both parts, with significantly less alterations.
Most concerning is the fact that even after approval, the government still does not know the exact path of the freeway or the location of the on and off ramps which will have a significant impact on the surrounding area, requiring houses and businesses to be knocked down, trees to be removed, public open space to be lost.
Gone is the original concept of project assessment legislation. That should involve a genuine and open assessment of the social, economic and environmental impacts of major projects, in partnership with the community, followed by a genuine consideration of whether the project should go ahead or not.
The result? The whole approval process is a carefully stage-managed exercise masquerading as thorough and inclusive, but which is actually a free pass for the government to do whatever it wishes.
It’s bad enough that the Victorian Government is both the proponent and the decision-maker, but the Coalition’s changes to the laws last year removed the few remaining safeguards around that process.
Because of our fast-tracking laws, the Government can now change the project after it has been approved, without requiring any further investigation, consultation, or assessment of impacts.
It is entirely up to the discretion of the Planning Minister whether any further procedure is followed before approving the variation, no matter how large.
The final twist in these laws is that the previous government included a clause that excludes the public's right to a court review.
This is an extraordinary clause.
Found in almost no other legislation, it removes one of the most fundamental rights that citizens have: that a person who is wronged by a government decision can seek redress from the Court if the government has acted unlawfully.
For almost all actions under the Major Transport Project Facilitation Act, that right has been removed.
It is doubtful whether this clause is legally valid – indeed, Environmental Justice Australia would welcome an opportunity to test it – but the very fact that it’s there indicates that the entire goal of this process is to control and restrain citizen involvement, not to establish a transparent and accountable process.
The Planning Panel, with its group of committed experts, has done the right thing here in the face of a deeply flawed process.
Unfortunately the same cannot be said of the government.