On 19th November 2007 a legal case on which I had worked for 12 months was heard in the Land & Environment Court. We were suing the Minister for Planning (Frank Sartor) over the proposed development of the 5.7 hectare Carlton & United Brewery site which had been purchased by a Singaporean based developer – Frasers. The Minister gave consent to Frasers to build in excess of 1600 apartments, towers up to 120 metres tall and parking spaces for 2300 cars. The development promised to double the population of Chippendale. From an environmental perspective the minister failed to use his power to require the developer to do any more than “business as usual” and so the opportunity to create a sustainable world class development appeared to be lost. Yet another scandalous use of Part 3A powers to deliver “mate” significant development.
 
The minister called in the Concept Plan in September 2006 and I could see what was likely to happen, so I enlisted the help of a friend and environmental warrior, Michael Mobbs, and we started to plan the challenge. An Inner Sydney Greens member – Matthew Drake Brockman, who was studying law at UNSW, wanted to be the litigant for the action. We did some research to identify an environmental consultant who had court experience and who could conduct primary research on the greenhouse gas (GHG) emissions that would be emitted from the giant development.
 
The consent was issued in February 2007 and we immediately approached the EDO to act as our solicitors. Kirsty Ruddock, who was the EDO’s principal solicitor, was interested in preparing a case that tested the relatively new Part 3A powers. She obtained initial legal advice and lodged a legal aid application on our behalf. Our proposed action passed both the “public interest” & “reasonable prospects of success” test applied by the EDO.
 
Meanwhile we went hunting for an environmental consultant, legal counsel and money to cover the cost of the GHG study, court fees and at least something for the legal counsel & the EDO should our legal aid application be unsuccessful. We raised money from the community and the City of Sydney Council also contributed with environmental grant funding. In the end our legal aid application was successful and so crucially we were indemnified against the legal costs of both the Minister and the developer.
 
The main argument in our case sought to build on the principles laid down by the court in the successful “Gray” case (Anvil Hill coal mine). In that case the court found that the minister failed to consider the climate change effects of the coal (both its extraction and end use) that was to be mined and it overturned the minister’s approval for the mine to proceed. We submitted that proper consideration of climate change effects was mandatory and that the minister failed to consider the climate change effects of a huge urban  development that relied on dirty coal fired power for its energy needs, pumped its sewage into the ocean, drew its water from the dam and provided for an unsustainable and unjustifiable number of polluting cars to be housed on the site (it is across the road from UTS and is arguably the best located site for public transport in Australia).
 
We were asking the court to apply the Gray (Anvil Hill) principle to urban development. Success in a case like this had the potential to change the way cities are built.
 
What happened ? We lost. The court ruled that climate change considerations were just one of the matters that the minister needed to consider and that he had the discretion to decide on what weighting that would have.
 
But the pressure that we had applied to the developer and the media attention that the case generated delivered a serendipity. At the conclusion of the hearing the Chief Operating Officer of Frasers approached me and asked if we could convene a meeting of representatives of the local community, ourselves and the Frasers CEO.
 
About two weeks later we met in a coffee shop in Chippendale. The CEO told us that he was unwilling to negotiate with us on the Floor Space Ratio (FSR), which determines the number of apartments they could build, but he was willing to listen to our ideas on sustainability measures that could be introduced and that he would introduce as many measures that he could to reduce GHG emissions
 
The developer followed up by engaging consultants from the Institute of Sustainable Futures at UTS to work up an ESD plan and have publicly committed both to the City of Sydney and in the media that they would aim to develop a 6 green star precinct - a new precinct rating scheme under consideration by the Green Building Council. It would be a first in Australia if delivered.
 
The new precinct is to be powered by gas-powered tri-generation. Complementary initiatives include: design efficiency, green rooftops, smart metering and solar powered public spaces - 100% carbon neutrality is being targeted.
 
Non-potable water will be supplied through on-site rainwater capture, waste water recycling and sewer mining. Mains water will only be supplied for potable uses.
 
Car spaces will not be attached to the title of apartments but will be made available and rented as required. This innovative approach is to encourage people to dispense with their car (and the cost of a space). Frasers have also agreed to supply car share membership with apartment purchases and dedicated spaces to ensure convenient parking spaces for car share vehicles.
 

Postscript
I wrote the above article for Greenmail, the Greens NSW quarterly membership  publication, which was published in March 2009. Since the original story was published the new Minister for Planning, Kristina Kenneally, has approved a revision to the original concept plan. This added around 20,000 metres of extra floor space to what I already consider to be an over development of the site. Incidentally this is estimated to be worth in excess of $160M to the developer.

But the upside to this latest chapter in a long saga is that the Minister has incorporated a condition into the consent that requires the developer to provide tri-generation of power (initially gas fired) to the site and full recycling of black water and grey water together with rainwater harvesting that can be supplemented by sewer mining.
Now it definitely looks like we didn’t lose
 
 
You can read the EDO summary of the case at:
 
http://www.edo.org.au/edonsw/site/pdf/casesum/seminar_cub_case_summary.pdf
 
For the serious legal buffs – here is the case:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2007/777.html?query=title(drake%20brockman%20%20and%20%20minister)