East West Link: its future should be decided democratically

Guardian: East West Link: its future should be decided democratically. Andrew Herington. Sunday 28 September 2014

The rush to sign for political motives the contract on the largest infrastructure project in Victoria’s history ignores the best interests of the public

Opponents of the East-West Link. November’s Victorian election has already become a referendum on its future. Photograph: Julian Smith/AAP Image

In only five weeks the Napthine government will go into caretaker mode. Yet Monday’s cabinet meeting will consider approving the contract for the $8bn first stage of the East West Link.

This is despite a series of major issues that remain unresolved with no final design, no decision on the level of tolls and doubts over the planning approval.

The independent assessment committee recommended both ends of the tunnel needed major redesign. The minister for planning has given himself the absolute power to approve any changes or to stick with the original much-criticised flyovers. Similarly there has been no progress on the location of the vent stacks, a new interchange on Flemington Road or the recommended heritage listing for Royal Park. No commitment has been given to release the much-sough-tafter business case or the contract itself once it is signed.

Two court decisions will also be made on Monday that could tip the balance in the long-running campaign to stop this contract for the largest infrastructure project in Victoria’s history being signed so soon before the election.

At 9:30am the Victorian court of appeal will bring down its decision in the case brought by Brunswick resident, Anthony Murphy. He accuses the government of misleading conduct in keeping the business case secret. The three judges may order the case to be reheard if they find the original supreme court judge did not consider the business case and the legal implications.

However, the court has already found against an injunction to stop the contract being signed.

On Friday, the Murphy team headed by senior QC, Ron Merkel, applied for leave to appeal this decision to the high court. This hearing by high court Justice Susan Crennan will recommence at 11:30am on Monday to determine whether Denis Napthine can get out his pen. If she finds an injunction should be heard by the full high court, any signing will be deferred beyond 18 October.

A separate case brought by the Yarra and Moreland councils challenges the legal validity of planning minister Matthew Guy’s approval of the project. This will not be heard until December.

Any contract will be meaningless if there is no valid planning approval. The hearing will be complicated if there is a change of government and will provide grounds for the contract to be annulled.

The Coalition has abandoned plans to legislate a binding contract due to opposition from maverick independent MP Geoff Shaw. Any contract will be very uncertain due to the large number of issues that have been “kicked down the road” to be resolved later.

If a contract in some form is signed, but for various reasons becomes unenforceable, the preferred tenderer, Lend Lease and its partners could be eligible for compensation for its costs but not for future profits lost.

The court of appeal was told on Wednesday these costs so far are around $60m and are increasing at $1.34m a month. This is much less than the $500m compensation “poison pill” the Napthine government is planning to insert in the contracts to try to force any future Labor government to proceed with the project.

The November Victorian election has already become a referendum on the future of the East West Link. The submitted bids remain valid until December. If the Napthine government is returned, the $18bn tollway will be built.

If a new Daniel Andrews Labor government is elected, the tollway will not be built and the money will be redirected to public transport and other capital priorities. It’s a simple yes-no question.

The $1.5bn in road funding already received from the federal government can be redirected to Labor’s more modest road proposals to improve traffic flow on Hoddle Street, widen the Tullamarine freeway and build a new link from the Westgate freeway to Footscray Road.

The Coalition is currently heavily advertising its plans for a Melbourne Airport Link and other projects. However, no trains will run for a decade because of the massive financial commitment required for the East West Link. Advertising still highlights plans for a rail link to Avalon airport despite it having barely any passenger flights.

The Napthine government is under no obligation to sign the contract right now and it alone has control over what clauses it contains. The rush to sign the contract for political motives has given the commercial advantage to Lend Lease, and ignores the best interests of Victorians – irrespective of whether one thinks the tollway is good or bad. Even business groups in favour of the road must surely think twice in supporting penalty clauses that would put massive future costs for Victorians.

The East West Link has become a case study in how not to plan and build major infrastructure.

The current crisis is due to the flawed process, excessive secrecy and rushed deadlines that the Napthine government has imposed. It has failed miserably to demonstrate this is the best and most economic project.

The future reputation of the premier now hangs by a thread. It is time for the pen to be put down and the future of this project to be decided, democratically, at the imminent election.

Andrew Herington is a former Labor adviser who has been working with community groups opposing the East West Link.

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