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Bid to protect controversial Warragamba Dam wall raising from legal challenges

The ability of a growing number of concerned groups to legally challenge the raising of the Warragamba Dam wall would be all but removed under a push by the government entity behind the controversial project.

The state’s top planning bureaucrat, Jim Betts, said his department was reviewing a request by WaterNSW to have Planning Minister Rob Stokes declare the $1.6 billion plan a piece of critical state significant infrastructure, making it an essential project for the state.

The government wants to raise the wall of Sydney’s biggest reservoir by as much as 17 metres to prevent floods causing widespread damage to communities in the Hawkesbury Nepean Valley.

The project is currently classified as state significant infrastructure, but under state planning laws the right for third parties to have the legality of certain decisions for critical infrastructure challenged in a court can only occur with ministerial approval.

Independent upper house MP Justin Field, who raised the WaterNSW application with Mr Betts and Mr Stokes during a parliamentary hearing this week, said the right of interested parties to seek a judicial review should be retained in light of the widespread concern surrounding the plan.

“There’s so much controversy around this project, and it’s not just community groups, it’s clear the insurance industry has problems with it, as well as federal and state agencies,” Mr Field said.

The plan to raise the wall has been the subject of mounting heritage and environmental concerns, with the Insurance Council of Australia last month dropping its support for the project following concerns for hundreds of Indigenous sites.

Harry Burkitt, a campaigner with the Colong Foundation, said attempting to elevate the project to critical state significant infrastructure was a “clear admission” that the dam project would not proceed if proper assessment processes were followed.

In a statement on Wednesday, WaterNSW said the request to declare the dam critical state significant infrastructure was made in early 2017.

“The Critical State Significant Infrastructure declaration request has not been finalised. CSSI projects are subject to Ministerial approvals in accordance with the EP&A Act 1979,” the statement said.

Minister for Western Sydney Stuart Ayres, who is overseeing the project, told a budget estimates hearing on Wednesday an environmental impact study was being undertaken to allow people to understand the effects of the project.

“This is an intensive exercise by multiple government agencies, to get to a point ... where we show very, very clearly what the environmental impact will be of creating a flood mitigation wall at Warragamba, that will temporarily hold water back in the event of a flood,” he said.

He defended the plan as part of a variety of options canvassed for saving the lives and properties of tens of thousands of people who live downstream.

He also labelled those who focused on the environmental impact of the dam over the benefits of residents of the Hawkesbury-Nepean Valley as “extremists” who “neglect one side of the ledger”, and said green groups were trying to use biodiversity offsets to make the project unviable.

“If our environmental groups, lobby government, lobby government agencies ... to utilise biodiversity as a mechanism of creating an inflated price for raising the dam, that is a clear attempt to lift the price of the dam to make it harder for the government,” he said.

He said groups such as the Colong Foundation were engaged in “clear attempts” to delay the project: “Whether it’s a GIPA (government information request), whether it’s an inquiry, while these are all incredibly important processes, and processes that are representing our democratic society, they do have an impact on time.”

In response, Mr Burkitt told the Herald the group was working with flood experts, institutional investors, Traditional Owners, local government and the insurance industry in seeking alternatives for effective flood mitigation.

“Quite simply, we are doing the job that a competent and responsible minister would have done before launching a multi-million dollar attack on a work heritage site,” he said.

By Angus Thompson

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