Fooled again by a system that stinks

The CUB story hotted up a couple of years back, when Australand's Brendan Crottie suddenly zipped up and walked away just as months of negotiations with Clover Moore's people looked like achieving coitus. That left Foster's, owner of the six-hectare Broadway site, clutching the arm of the Planning Minister, Frank Sartor, for admission to his ever-growing Part 3A harem. Sartor obliged, declaring the CUB project to have "regional planning significance" and to be therefore worthy of his gaze.

The site was bought by the Singapore-based Fraser group's Dr Stanley Quek (ex-Greencliff Developments) mid-last year. Nine months on, Sartor approved Fraser's "concept plan" to drop a dozen towers onto the site. Half a block from Central station, the towers would go from 40 storeys on Broadway to lowish around the Chippendale boundaries, accommodating 2800 residents, 1690 apartments, 4800 workers and 2300 cars.

That was February. The proposal, significantly higher and denser than the City of Sydney's preferred option, looked like a done deal. Except for the Anvil Hill coalmine ruling. That decision, from November, obliged the minister at least to consider global warming before making approvals. The Anvil Hill challenge had been launched by a student, Peter Gray. In March, another student, Chippendale local Matthew Drake-Brockman, supported by the Greens, lodged a case against the CUB approval.

The minister's decision, argued Drake-Brockman, was invalid on three grounds. The first two were technicalities relating to timing and box-ticking during the approval process. But the third was serious; that the minister had breached his obligation to consider ecologically sustainable development.

In particular, said Drake-Brockman, the minister had applied neither the "precautionary principle" nor the principle of "inter-generational equity" regarding greenhouse gas emissions. An expert report by Trevor Lee, from Energy Partners in Canberra, quantified these as half a million tonnes in embodied CO2 and a further 21,331 tonnes a year, making CUB responsible for 0.45 per cent of emissions from the entire City of Sydney area.

The judge was unimpressed. She said the Lee report dealt only with absolute emissions, with no "net" figure that might allow comparison either with the site's previous, industrial life or with other possible forms of accommodation for the 7600 people concerned. (Needless to say, Lee had not been briefed to answer these questions.) And in any case, Jagot noted for the record, the courts do not make merit decisions. They just uphold the law. Just follow orders.

She was right, on all counts. We tend to think of the courts much as children think of parents, or maybe (these days) teachers, as ultimate moral arbiters to whom, when pushed, we can appeal. In fact, the courts have no moral role. This should be repeated loudly under bright lights to all starry-eyed law hopefuls. The law is not only an ass, it's an amoral ass, with no interest in fairness, rightness or (much less) goodness. Even a bad law must be upheld by the courts.

And so it is here. The NSW Planning Act is more heavily amended than a Proustian manuscript, only where Proust strove for precision, the act just gets sloppier, like an old labrador no one can bear to put down.

What's really disturbing is that the moral leadership, the judgment about right and wrong that we expect from the courts, actually comes from Parliament. Our Parliament, our own comfortable nest of liars and spinners; the very same Parliament that has crafted for us a planning system described even by Jagot as "polycentric, value-laden and subjective", with "no absolute standard or outcome" and no definition of what "ecologically sustainable" means. Hardly surprising that the judgment went the minister's way; to breach so stretchy and droopy a statute is virtually impossible.

Hardly surprising, either, that grassroots opposition gets sidelined into subjectivity and self-interest. Chippendale residents are there, by and large, because they like cities. They're neither stupid nor intransigent nor luddite; they know development must happen and that sustainability demands density. But when governments deliberately fudge both the making and the application of law in order to confound both short- and long-term public interest, they feel betrayed and resentful. Sentiments guaranteed to bring out the smallest, most self-interested behaviour patterns.

It comes down to that undervalued yet priceless civic lubricant; trust. Trust is the lymph of the body politic; cleansing, draining, fighting infection. When it's working, we scarcely know it exists. But when trust fails, oedema sets in, with governments and lobby groups alike hardening into a cynicism that generally gets worse, not better, over time. Gallstones and bile following.

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