State Treasurer’s announcement of removal of Port Botany cap: Unlawful

The O’Farrell Government has announced the effective sale of Port Botany to the private sector by putting it on the block as a 99 year lease. Whilst privatisation of public facilities may not be in accordance with my political philosophy, the decision is one for the government of the day and not Botany Bay City Council. 

In announcing the government’s intention to sell Port Botany several weeks ago, the Treasurer indicated that the government would remove the 3.2 million cap on containers. According to newspaper reports of the Treasurer’s statement, the removal of the cap would mean that the government would receive more than one billion dollars extra. 

The cap on containers, or Twenty foot Equivalent Units (or TEU’s) is not an arbitrary figure. It was stated on the 13 October, 2005 as one of the Conditions of Consent when the then Minister for Planning, the Hon Frank Sartor, determined a development application for State significant and designated development under Section 80 of the Environmental Planning and Assessment Act, 1979. 

Clause A1.4 of that consent provided as follows:

Port Throughput Capacity Limits

A1.4    Port throughput capacity generated by operations in accordance with this consent shall be consistent with the limits specified in the EIS, that is, a maximum throughput capacity at the terminal of 1.6 million TEU’s per annum and a total throughput at Port Botany of 3.2 million TEU’s. These limits may not be exceeded by the development without further environmental assessment and approval. Sydney Ports Corporation shall prepare, or have prepared on its behalf, such further environmental assessment for the determination of the Minister.

The expanded part of the Port is not yet completed. The total throughput capacity limits were designed because the transportation system could not, and cannot, cope with the movement of containers to and from the Port. The road system is currently in gridlock and that is without even the 3.2 million TEU throughput being reached. 

It beggars belief that a State Treasurer, with no credible knowledge or understanding of the Port, the environment or the capacity of the road and rail system, just wishes to arbitrarily remove throughput capacity limits because he thinks he will get another billion dollars in a sale of a public asset. 

The damage to existing infrastructure that the removal of the cap would lead to would, in reality, be a ten times what the Treasurer may receive. It is a frightening prospect that the Treasurer of the State does not seem to either understand this or just sees dollar signs in front of his eyes. Good governance of this state is no where in his equation. 

I am sorry to have to advise the Treasurer that he does not even have the lawful authority to do what he says he wishes to do. 

He seems to forget, or ignore, that the law binds the government of the day as it binds all citizens and the law requires the NSW Government to make an application under the Environmental Planning and Assessment Act. 

To do what he says he wants to do, and stay within the law, requires the government undertake an environmental assessment and seek approval of a variation to the existing consent. 

I would be surprised if it was even possible to obtain an environmental assessment that could cater and make provision for the movement of freight with the cap being removed. In any event, the Treasurer and the NSW Government is bound by the law. 

Botany Bay City Council has decided to seek an undertaking from the NSW Government that it will act in accordance with the law and, if such undertaking is not received, then Council will institute proceedings against the NSW Government, seeking orders restraining the Government from proceeding in accordance with the Treasurer’s announcement other than by law.