NM investigates

18 Mar 2011

What Will The Libs Do About Part 3A?

A New Matilda investigation into two controversial NSW developments reveals just how high the stakes are for the incoming Liberal government. Wendy Bacon and Nicole Gooch report

When NSW communities wake up on March 27 to a Liberal government, they will be expecting change. Labor’s handling of the planning laws has been hugely unpopular yet, as New Matilda reported last month, communities fighting developments across NSW face an unclear future.

Two of the state’s most controversial development applications, at Catherine Hill Bay and Kendall Bay, are now in the final days of a long decision-making process and will be waiting on new NSW Minister for Planning Brad Hazzard’s desk almost as soon as the election is over.

Both developments face strong opposition from local councils and many residents but were taken out of the hands of local communities under the controversial Part 3A of the NSW Planning Act, which gives the Planning Minister sole discretion over any site deemed "state significant".

Hazzard told New Matilda last week that while the Part 3A law is "reprehensible" and decision-making on new residential applications should go back to local communities, he won’t make any decisions "retrospectively". This means the developments at Catherine Hill Bay and Kendall Bay will remain "state significant" and thus subject to ministerial discretion.

The Liberals have said they will totally overhaul the State Environmental Planning Policies. But realistically, that will be a complicated and lengthy task. In the meantime, Part 3A will stay in place and the 29 sites that are currently on public exhibition, and many more that are underway, will be processed under the same section that the Liberals have so vehemently criticised.

Under Part 3A, the Minister appoints a panel that can either be asked to have hearings and make determinations or merely prepare reports as advice to the Minister. Hazzard says he will ask for panel determinations — in contrast to the current NSW Planning Minister, Tony Kelly, who in most cases asked only for advice.

But Greens Legislative Council member and Planning spokesperson David Shoebridge says that processing by panels makes little difference: "The panels are appointed at the whim of the Minister, they are political, they are planners who are plucked at will and can be dismissed at will by the Minister."

Just how a Liberal Government will balance the interests of developers and communities has been an unanswered question for a long time. Hazzard’s decisions on Catherine Hill Bay and Kendall Bay will be closely scrutinised, and New Matilda’s investigation of these two developments shows just how the high stakes are.


Catherine Hill Bay

Rose Group is the developer for both the 600-lot residential development on the headland at Catherine Hill Bay — which is on sensitive coastal conservation land south of Newcastle — and Kendall Bay Marina, a 172-berth commercial marina on a contaminated stretch of the Parramatta River. Rose Group is the company of Bob Rose, who was Chair of the property lobby group Urban Taskforce for six years until 2009, and his sons Stuart and Bryan.

The company is well known for its property developments, especially on old industrial and contaminated land. What is not so well known is that its Catherine Hill Bay company, Coastal Hamlets, has another potential pot of gold under the ground.

Coastal Hamlets has a number of minority directors and shareholders who, along with Stuart Rose, have interests in mining and gas exploration, including at Catherine Hill Bay. In fact, Apollo and Macquarie Energy, in which they also have interests, started drilling for gas on the headland last year.

Despite environmental concerns about coal seam gas drilling, the companies were also granted coal seam gas exploration licences at Gunnedah in NSW and in inner Sydney, at Tempe. (After a recent friendly takeover, Macquarie Energy and Apollo Gas are now part of much bigger coal seam gas company US based Coal Dart Energy.)

The company would have had their Part 3A residential development at Catherine Hill Bay under way long ago but for a setback in 2009 when the NSW Land and Environment Court quashed the former Minister of Planning Frank Sartor’s approval of the subdivision.

The Court ruled that the developer’s earlier transfer of private land at Catherine Hill Bay to public ownership for conservation purposes, in return for approval of the massive development, constituted a "landbribe". As well, electoral funding records showed the Rose Group had donated more than $248,000 to the NSW ALP party since 2002.

Hazzard accused the NSW government, during question time in parliament in 2009, of approving development applications "corruptly and rottenly with the money that has been paid to the Labor Party". He was removed from the session a short time later at the Speaker’s request.

But what is less well known is that the Liberals too have well-established connections with the Rose Group. According to electoral funding records, since 2003, Rose Group and its companies have given more than $75,000 to the NSW Branch of the Liberal Party, including $20,000 in 2005/2006 and $55,000 in 2007/2008.

Bob Rose also had a special role in the Wentworth Foundation, which raised funds for Malcolm Turnbull’s 2007 federal election campaign. With his $55,000 donation, Rose was the highest paying member and the only governor of the "Wentworth Forum", entitling him to host boardroom events, two tables at functions featuring Turnbull, and attendance at an exclusive supporters’ dinner.

Asked if he was aware of these donations when making his accusation of corruption, Hazzard said "it was the government that created Part3A, and the government that accepted large donations".

"The Opposition has not made any decisions under Part 3A, nor will it be making any."

Sue Whyte, president of Catherine Hill Bay Progress Association, says Hazzard’s decision to stick to the Part 3A process is "very disappointing".

"Hazzard could use this as a statement to make his mark, show he is credible and send a strong message to developers," says Whyte. "We need to start from scratch again. Catherine Hill Bay went from being listed second last for development under the draft Lower Hunter Regional Strategy, to having houses built on the cliff head."

Nestled in between the Wallarah National Park and the Munmorah State Conservation Area, Catherine Hill Bay was listed state heritage in July 2010, only the second such town in NSW.

The listing stressed the importance of the iconic seascape and landscape in which the village is set.

But less than a month later, Minister for Planning Tony Kelly overrode restrictions on coastal development, allowing the Rose Group to make new plans for an even larger suburban development that now extends up to the beach.

Sue Whyte says the subdivision plan is an "appalling car park."

"It is an old-style 1970s back to back subdivision, designed to maximise profits for the developer," says Whyte. "Surely our coast deserves better than to be entirely concreted."

Then Planning Minister, Kristina Keneally responded to the court "landbribe" by promising the Catherine Hill Bay development application would be determined after a hearing by a Part 3A Panel, and Kelly had also said there would be a panel hearing.

But as soon the submission process was completed early in February this year, Rose Group quickly filed its response, rejecting nearly all objections including those from the local Lake Macquarie Council.

Sue Whyte says, "Apart from a small change in the location of the shopping precinct none of the issues raised in over 3500 objection submissions have been dealt with satisfactorily".

Kelly then quietly reneged on his promise that there would be a panel hearing that would give the development’s opponents another chance to present their case. Instead he requested advice, setting a short time-frame.

Even local Labor MP Robert Coombs, who wrote to the Minister in January about his concerns about the development, was not told how quickly the process was moving forward. It looked like the fate of Catherine Hill Bay might yet be decided before the state election.

But on March 7, several days after the storm of negative publicity that greeted his decision to exempt the equally controversial inner city $6 billion Barangaroo development from laws relating to contamination, in answer to his handling of the Catherine Hill Bay application, a spokesman for Kelly told New Matilda: "The Minister will be making no more determinations under the Major Projects Legislation (Part 3A) while in caretaker mode".

If the Catherine Hill Bay development is approved, David Shoebridge says the Greens will move in parliament to remove Catherine Hill Bay from the Part 3A process altogether, referring it to a new independently appointed and parliamentary approved panel for an inquiry. He says the same principle will be applied to Barangaroo and the largest residential development in NSW, Huntlee in the Hunter Valley.

"These projects have received statewide condemnation from planners and residents. They were blatantly political and approvals must not be done through Part 3A," says Shoebridge.


Kendall Bay

Tony Kelly’s decision to renege on the government’s promise to refer Catherine Hill Bay for a hearing would have pleased Rose Group’s Bob Rose who, as Chair of the Urban Taskforce, pushed for panel hearings to be abolished under Part 3A.

He wouldn’t have been so happy with Kelly’s decision to refer his other controversial development at Kendall Bay for a hearing. The Rose Group proposal for a huge commercial marina came as a surprise to residents of Breakfast Point, which overlooks the bay and was also developed by Rose. The Kendall Bay hearing took place in February and dealing with the panel report will be one of Hazzard’s first tasks.

Under remediation order by the Environmental Protection Authority (EPA) since 2004, Kendall Bay contains a "significantly elevated" concentration of hydrocarbons above Australian guidelines, some classifiable as carcinogens, and all remnants of the Mortlake Gas Works.

The EPA found that without adequate remediation, "further development of the area would increase the risk of harm".

Rose Group are proposing to remediate part of the toxic area with a "geotextile blanket" covering the polluted seabed so the movement of propellers does not disturb the sediment. Engineers who made submissions at the panel hearing for the residents expressed concerns that the blanket would not be sufficiently secure.

The highly organised Breakfast Point residents are fuming. They say the proposal fails to satisfy the EPA remediation requirements and are also concerned about noise and traffic.

Given their concern about boat noise, residents will not be impressed to learn that Stuart Rose, one of Bob Rose’s two sons, has turned his speedboat hobby into a business. He owns Midnight Boats, the Australian distributor for superpowerful speed-boat manufacturer Midnight Express. Bob and Bryan Rose are also directors of this company.

Rose Group declined to be interviewed for this article. A company’s PR spokesperson Chris Ford, in answer to a written question about whether they had consulted with Hazzard about his post-election approach, replied, "Rose Group’s understanding of the planning policies of the coalition has been gathered from statements in media and public forums".

The Greens, who have been campaigning for a clean up of the Kendall Bay contamination for several years, say they will not accept an approval for Kendall Bay Marina because of continuing concerns about unsatisfactory remediation.

The local Liberal candidate, Burwood Mayor John Sidoti, who has a strong chance of winning the local seat, has also individually campaigned against the marina. He is hoping that the panel will reject the marina. If it doesn’t, it will be tricky. Hazzard’s position is that he will accept the decisions of the Part 3A panels.

The Greens’ David Shoebridge isn’t holding his breath for an overhaul of the NSW planning laws. He says the Coalition’s position is pure "grandstanding" and amounts to "business as usual for at least half of the term".

"It will be two years of continuing Part 3A approvals," Shoebridge told New Matilda. "During the first half of their term there will be little change to the pro-developer planning laws."



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jbandrews 18/03/11 2:17PM

I would like to put another development area on the radar.

The former site of the Peat Island facility for intellectually handicapped (island and mainland), together with the now closed Mooney Mooney Public School, are now vacant and the State Property Authority has begun what we understand to be the Part 3A process.

This land is of great significance and there is potential for developments which are not in keeping with the extraordinary scenic values of the area. Given the surrounding National Parks, this might be the last opportunity for large scale development in the lower Hawkesbury.

John Andrews
 Mooney Mooney

wendy bacon 19/03/11 10:08AM

John, you are right. As we passed beautiful Peat Island over the years, I often wondered how long it would take before it was threatened by developers for some sort of private purpose. There are many more developments.
In this article we focused on Rose Group’s Catherine Hill Bay and Kendall bay which are on a cusp. From what Hazzard told us if sites are already in the Part 3 A process, he will continue the process. I don’t think this is clearly understood and there are many significant developments involved.
The Greens process is to repeal Part 3 A and set up independent Planning Commission. Libs policy is to review whole planning system ( whcih will take a long time) and it is not clear what will be put in place of Part 3 A. The developers will put huge pressure on them after the election.
I was working as a journalist when Greiner government got in. They had promised to look into the Sydbeyt Harbor Tunnel after election. Later this and other promises gave way to arguments about losing investment. Wendy

Examinator 19/03/11 7:30PM

It seems to me that the developers have simply got too much say over where, how and who pays for their profits. I forwarded to NM an email from a councillor regarding state mooted capping of developer contribution for utilities in QLD. In the council district from the source this will cost the council at least $10000000 per annum extra and that is one council area.

I would suggest that blanket State wide laws like Part 3A and the one in Queensland are ridiculous.

Likewise I find that coastal mansions hardly deserve special treatment as they do very little to address the underlying social needs or affordable yet acceptable homes for the majority.Much less are they deserving of ratepayer/voter indirect subsidies to the developers’ profit.

In that email I also describe how many developers pre GFC engaged in excluding of competition practices through artificially pushing up the land prices.
Post the GFC many have been caught by over leveraging with the pre GFC cheap money.
Much of the land that was tied up with options and this OL is now just sitting there because it’s too expensive to build on or they can’t raise the money at a rate they can afford.
The list of shenanigans goes on.
Added to that they are crying that there isn’t enough released or affordable land.
See the email for details or contact me direct for details/ contacts etc.

Any comments?

regards examinator

sand.murray 20/03/11 11:41PM

Wasn’t it the Greiner Gov’t that also abolished the Heritage Act back in the late eighties? What’s to make us think that a 21st century Liberal government could think any differently than that.

wendy bacon 21/03/11 12:23PM

I hate to say it but my memory goes even further back to the period of the Green bans when the Askin government had plans to build high rise from Kings Cross to the Rocks. I also remember as a journalist ringing the new Greiner government to find out what would be happening with promises to investigate the Harbour Tunnel contracts and being told that nothing would be happening in the interests of ’ international investment’.

Underlying all these issues, whether in NSW, QLD or PNG, is an approach driven by exploitation of land for maximum profit versus other social and ecological requirements. I agree with Examinator that the issue is wider but stories always need to be told in context - in this case, key projects in the time of a the NSW election.

A key political issue is the involvement of communities in planning which underwrote the original NSW Land and Environment Act, even if in a somewhat weak way. Labor and past Liberal government has thoroughly undermined this.

Broader perspectives help in assessing what to make of the vague Liberal promises of today, Wendy

Laing 21/03/11 1:45PM

As a former associate of Jack Mundey in the 70’s environmental movement, through the Broken Hill Barrier Environment Group which I co-founded, I advise you that Jack was, and I believe still is, the Patron of the Catherine Hill Bay Progress Association. I suspect he will have a view on the latest situation vis a vis the future of Rosecorp’s application when the new Government comes in. Why not contact him?

Dr Bill Laing
Member and homeowner
Catherine Hill Bay Progress Association

mak1 21/03/11 3:50PM

If the libs get in Lets hope Catherine hill Bay is saved from another dodgy political deal. The Landing project in Gosford is another “3a” development the NSW labor Government have foist on the people of Gosford under so called community consultation. More public land given to the developers for private profit. The difference here they didn’t do a land swap they just want to take the public open space around the waterfront for a mini barangaroo by lendlease.

Allie 21/03/11 5:28PM

Another area is on the mid north Coast of NSW. There is a development due at “Hearnes Lake” where the environment is fragile. Five hundred people turned up for a protest. City folk don’t get to hear of these areas yet they are the ones who travel up this way for their holidays, because it is a lovely area.
Wish I wish NSW was not so ‘Sydney-centric’. It becomes so tiresome when it comes to elections to be in a glued on National party electorate.
We certainly do NOT need a conservative government in NSW…what are we to do?? Four years is an awfully long time for the rich to get richer, the developers lay waste whatever they want and move on whilst having the ear of the politicians in Sydney.

wendy bacon 21/03/11 5:46PM

Yes Jack is involved with Catherine Hill Bay and in fact is in the State of Seige movie on Part 3 A that will be shown on Wednesday night March 23 6.30 at Wesley Mission Centre. Not much help if you are 100 k up the coast I know.
Back in the Green Ban days we wrote a Little Green Book with each area and ban listed in the book - a modern day equivalent would be good.

look on the bright side 21/03/11 7:37PM

wendy - interesting article - but what are you suggesting? that every group across nsw that doesn’t like a development should have their view (not often highlighted that in the majority of cases, their views are extremely self-interested but hidden behind ‘the community don’t want it’) as the prevailing issue that influences the decision? at least the community knows who bob rose is and his interests can easily be checked on the public record - unlike the myriad of nimbys that stand behind front groups and fail to admit their own self interest such as a monopoly on business or elevated property values. and i for one don’t understand what credible basis the greens have on such issues apart from saying “give it back to the community”. the greens support clean energy but oppose wind farms. they support affordable housing but oppose housing projects. and there’s always a convenient reason. the list goes on - or to use the ‘examinator’s’ phrase above - the list of shenanigans go on.

of course developers are going to pressure the liberal government (and the greens) because at this stage, it looks like the expectation has been raised that nothing is ever going to get approved, and will be subjected to the convenient block tactic of ‘consultation’. the green’s answer to everything is to have no answer but call for more consultation. the nsw economy is closely correlated with the construction sector - including all those property taxes that keep the public servants employed - so yes, once that stops, pressure will come from everywhere, including the construction union through to rainwater tank suppliers.

as for the examinator’s take on what developers do and don’t do, oh dear me, stick to high school economics and simplicity and using terms like ‘options’ to give the impression you know what you’re talking about.

wendy bacon 22/03/11 6:54AM

Thanks for the comment. Of course the Nimby factor can be there - although it’s never seemed to me to be unreasonable to want a say in your immediate environment. Someone was telling me on Sunday that there are people over in Leichhardt area opposed to a Green Council plan for disability housing. I guess that could be an example of what you mean. ( I have not checked this out yet though so I could be wrong).

I agree with you that people should declare their interests but I don’t agree that developers’ interests can easily be checked on the public record. Very little is on the public record. It costs money to unravel property interests through company searches. For example, i was pretty surprised to learn that Stuart Rose and other developers were the ones granted a license for proposed coal seam gas drilling down the road from me in Tempe. There are dozens of companies involved. Also lots of people won’t be interviewed. We contacted Rose but they directed us to their PR and would only allow us to put a very limited set of questions.

Often people are not opposed to all development. Maybe this did not come out sufficiently strongly in our article. The Catherine Bay Progress Association are not opposed to all development - just development of this scale that goes so close to the headland. Similarly the Kendall Bay residents were aware there could be a very small marina I think - but not a large scale marina from which boats can be sold.

Do you really think the interests of the construction sector should drive our economy? look where that got Ireland! I always remember that if the construction workers had not stopped the construction industry /developers in the 1970s, we would have had high rise from Kings Cross to the Rocks. It was the construction workers and residents that stopped those developments. This doesn’t mean however that there is not still constant pressure to exclude low income people from these areas but at least all the buildings were not torn down.

If you have any information about front groups I would be interested to receive it. Twice in recent years, I have been aware of front groups but these were ones supported by developers. I’m sure New Matilda would be interested in investigating this further.

Alex Njoo 22/03/11 10:37AM

Alex Njoo
Ms Bacon et al, conventional wisdom tells us that developers’ main objective is to profit at all cost and governments’ to lead for the benefit of the people. Now, this may well be a lofty dream. But that’s why we have (relatively speaking) a democratic system in this country. Demonising the developers is a meaningless exercise as the object of our venom simply don’t have the intelligence to understand our social/environmental vocabulary. It’s important to keep our elected officials constantly on notice that the management and planning of our surroundings are more important than the ubiquitous economic management debate.
The Nimby factor that is constantly paraded by those who’d rather live surrounded by concreted car parks is not an issue. If people are that dumb to realise that being concerned about urban/social environment is everyone’s responsibility, they’ve defaulted their right to be included in any civilised dialogue on human condition.

Examinator 22/03/11 1:49PM

Alex Njoo,
While I have some agreement with the sentiment I am bound to suggest that not ALL developers are illiterate, stupid, uncontrollably avaricious or morally bankrupt et al. However it does appear that they are traits that are either desirable or the industry has a preponderance of them.

The relevant question that is universal is “Who is more the villain the developers who does because they can or the public who are so introspective and self serving to see issues like the two mentioned as SEP (somebody else’s problem) ?”

I would posit that , like governments, we get the developers our indifference to others we deserve.

sand.murray 23/03/11 6:11PM

How about we have a look at the projected profits from the two property developments at Catherine Hill Bay by the Rose Group and Coal and Allied. Just as an example. What is a reasonable return for investment?
I have heard that Rose Group paid about $4.5million for its large tract (how many ha.?)of unique and spectacular coastline with beachfront residence above Catho included. What would this price equate to in the Sydney property market?
In the light of this fact a massive development for that quiet coastal village appears to be totally unnecessary. Furthermore the 600 lots in Rose Group’s proposed ‘McSuburb’ could be subdivided to create 1200 lots. This is then only half of the Catherine Hill Bay development proposal. Sttopp!
If you haven’t already, please go and have a look at Catherine Hill Bay and Moonee Beach. Have a walk to Ghosties. Even go there via google earth if you can’t make it in person.
This is part of the only green buffer between Greater Sydney and Newcastle. Catherine Hill Bay is an historic Heritage Listed town. The coastline, part of the Great North Walk, is accessible, undeveloped and beautifully unique.
It’s worth looking after.

Dallas Beaufort 24/03/11 1:12PM

As an applicant who has made an application to deliver affordable housing as part of the mix (desired outcomes) I find the majority of comments on this site selfish as they represent individuals who more than likely have not made application to deliver affordable housing at all, probably only a home for themselves.

sand.murray 24/03/11 3:46PM

Dallas, before I apologise for not being you, what do you define as affordable housing? Where do you stand on the issue being discussed? In an era of economic rationalism surely there’s no need to be afraid of mentioning $(dollar) figures.

Dallas Beaufort 25/03/11 9:52AM

Is there any on this site who do not hale from the public service and who understand how difficult it is to deliver housing?

wendy bacon 25/03/11 7:04PM

Just to take up this issue. Affordable housing is a big issue and the housing situation in NSW is horrendous for many. But one of the issues here is the underlying idea that the approach to land is one of maximum private profit.
Suggest you take a look at our story today on the Erskineville Alexandria Ashore Estate . http://newmatilda.com/2011/03/25/labors-highrise-legacy
Sydney city Council did a study which showed the developer could make a profit with a nine story limit. Most people in the inner city realise that some sort of consolidation is going to happen - and should happen. What did the developers do - they went via the Dept of Planning and got it raised to 19 stories. It’s not settled yet - but the residents and Council have a big fight on their hands now.
THe same goes for Catherine Hill Bay. The residents are not against all development - but over development on the headland is, they say, too much.
The whole issue of affordable housing and development is an important one to discuss however. I don’t think the houses at Catherine Hill Bay wll be affordable for most of us.

Dallas Beaufort 25/03/11 8:51PM

High rise will never be affordable and sustainable at the same time given the costs involved, including the union demands, the world trade centre, object lesson stands as one example.

Dallas Beaufort 25/03/11 9:50PM

While architects play with their blocks, floods strand the residents, as the high ground is regulated to the extent where the vista is more important that affordable housing

Dallas Beaufort 25/03/11 10:02PM

Private property?