NSW could return to the Obeid days with new fast-track planning laws for ‘housing’, handing the minister unprecedented power for mines, renewable projects, say critics. Michael Sainsbury reports.
Sweeping new planning laws introduced by the Minns government in NSW to parliament are so controversial that the government has spent time consulting on its plans with the ICAC (Independent Commission Against Corruption).
These new laws in the Planning System Reform Bill (2025) reach far beyond their public stated purpose of fast-tracking housing approvals and potentially as far as every development in the state.
They effectively wind back changes to planning laws, particularly in relation to ministerial discretion, that were instituted following recommendations from ICAC in 2010, Elaine Johnson, principal of environmental law firm Johnson Lawyers, told MWM.
More than just housing
They concentrate power in the Minister for Planning, Infrastructure and Housing – now Paul Scully – and his departmental head, Secretary Kiersten Fishburn. Critics say this is a return to the bad old days when ministers like Ian Macdonald had similar discretion, before controversial Part 3A of the Environmental Planning and Assessment Act was overturned.
“These planning reforms are not just about housing and renovations, this is the whole planning system, ” NSW Greens MLC Sue Higginson, an environmental lawyer, told MWM.
“When we’re looking at these big, environmentally harmful and socially changing projects like mining, it’s very hard not to see a disingenuous front on part of the Minns’ Labor government.”
“But modernising a planning system does not mean streamlining development or fast tracking and cutting out the safeguards, particularly in relation to these big, environmentally significant projects like these industrial mining complex projects.
“It’s a real falsehood to stand there and say those things and then look at what’s actually being proposed.”
It’s two very different things.
To ICAC and back – “consults” behind closed doors
“The ICAC was consulted on the Bill and raised no issues,” Planning Minister Paul Scully claimed in response to questions from MWM.
“The Planning System Reform Bill is aimed at making the whole NSW planning system faster, fairer and more modern to speed up the delivery of our housing, infrastructure and renewables. This Bill is not weakening or reducing the environmental assessment requirements or oversight over planning decisions.
“It is aimed at removing duplication in planning functions from the system that has grown over the last nearly 50 years.”
The ICAC would not say whether it has any concerns with the new legislation, but confirmed it had provided extensive advice.
“The Commission’s involvement in this matter has comprised ongoing discussions with public officials from the Premier’s Department and the Department of Planning, Housing and Infrastructure regarding the various proposals, including the establishment of the Housing Delivery Authority, the Investment Delivery Authority and the Development Co-ordination Authority,” a spokesperson told MWM.
“The Commission has provided advice on these efforts over the past few years, on topics including conflicts of interest, conflicts of duties, lobbying, decision-making criteria and process issues”.
ICAC legislation allows the Government to consult ICAC on new laws (Independent Commission Against Corruption Act 1988 – Section 13), but provides no onus on the government to take that advice.
Higginson has asked ICAC to provide its advice.
The new laws have not been through any parliamentary or public consultation or process, and communities are being kept in the dark, with the government choosing not to promote anything non-housing related in the legislation, but with the Liberal Party already enthusiastically on board, there is little chance of any potent parliamentary challenge.
Mudgee lead mine at centre
Key to the legislative changes now before Parliament that pertain to mining has been a relentless years’ long lobbying campaign by the NSW Mining Council and Silver Mines Ltd, the promoters of a lead/zinc and silver mine being promoted as a silver mine near the inland tourist mecca of Mudgee, despite silver only being planned for production of 3.4 million ounces of silver per year—versus thousands of tonnes of associated lead.
On August 16 last year, the NSW Court of Appeal overturned a 2023 Independent Planning Commission (IPC) Development Consent for Bowdens because the company had not undertaken an EIS for the transmission lines access. New legislation now means Bowden’s could regain assent for its mine by simply excising the transmission line from the project.
“This means we’re going to make it unlawful to holistically consider major projects and all their associated infrastructure,” Johnson says.
“For example, a project like the Bowden’s lead mine, which is an open-cut lead mine in a region that is of high priority, is a tourist destination and agricultural production. A project like that will be cut up into little pieces and will only be allowed to look at one piece of the puzzle at a time in isolation from the rest of the project.”
Silver Mines’ unfettered access
Silver Mines Limited has had seemingly unfettered access to the NSW government and the strong support of Ministers – even after the NSW Court of Appeal overturned the IPC decision. Meetings were arranged between Silver Mines (Bowdens) and Ministers and senior Department staff, starting on the day of the court loss (16 August 2024), to get the project back on track.
The CEO of Silver Mines, Jo Battershill, in an address to the BeaverCreek Precious Metals summit, only weeks later, summarised the closeness of the company’s relationship with the NSW Minister of Resources, Courtney Houssos: “I said to the Minister, ‘What do I tell the world’s investors?’ And she turned around and said that, ‘Silver Mines has the full support of the NSW Government’. And she said: ‘You can quote me on that’.”
In response to questions on notice in the NSW Upper House about meetings with Silver Mines since August 17 last year, Scully’s eventual response was that: “The Department has met with the proponent seven times since the Court of Appeal decision. Legal representation was present for two of these meetings. The Minister’s Office has held two meetings.”
Yet every request from the community to meet or be involved in the process since the Court of Appeal decision has been turned down or simply ignored by both the Department and the Minister, Johnson told MWM.
Community concerns downplayed
If Bowdens gains approval, the Minister for Natural Resources cannot withhold a mining lease or place conditions on the mining lease that would be inconsistent with any planning approval, so it becomes a fait accompli.
This makes Bowden’s – or rather the residents and businesses that will be affected by it – something of a canary in a lead mine. If multiple community, health and environmental concerns are ridden over roughshod – and critical new healthy research ignored for the sake of a private mind that sets up a template for the scores of mining – and other major projects to be rammed through at ministerial discretion.
”That is inevitably going to involve further and continued litigation throughout the course of the project, which never makes for a faster and better development assessment regime, ” Johnson says. Ironically, the new planning laws are likely to make for a slower and more chaotic assessment regime where the burden is on the proponents to deal with the impacts of their projects, rather than having those considered upfront.”
No silver lining. Mudgee locals fear lead poisoning from mine
Michael Sainsbury is a former China correspondent who has lived and worked across North, Southeast and South Asia for 11 years. Now based in regional Australia, he has more than 25 years’ experience writing about business, politics and human rights in Australia and the Indo-Pacific. He has worked for News Corp, Fairfax, Nikkei and a range of independent media outlets and has won multiple awards in Australia and Asia for his reporting. He is a fierce believer in the importance of independent media.