Friends of Gardiner Park Inc v Bayside Council - [2022] NSWLEC 22 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Friends of Gardiner Park Inc v Bayside Council

[2022] NSWLEC 22

Land and Environment Court (NSW)|2022-03-11|Before: Preston CJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-03-11

Before

Preston CJ

Catchwords

[2007] NSWLEC 114 Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439
[2018] NSWCA 240 Palm Beach Protection Group v Northern Beaches Council [2020] NSWLEC 156 Jean-Francois Clin v Water Lilly & Co Ltd [2021] JPL 1210
M Astill (First Respondent) Submitting appearance (Second Respondent)

Source

Original judgment source is linked above.

Catchwords

[2007] NSWLEC 114 Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439[2018] NSWCA 240 Palm Beach Protection Group v Northern Beaches Council [2020] NSWLEC 156 Jean-Francois Clin v Water Lilly & Co Ltd [2021] JPL 1210M Astill (First Respondent) Submitting appearance (Second Respondent)

Judgment (17 paragraphs)

[1]

A Council's upgrade of sports fields is challenged

Gardiner Park is a heritage-listed park in the suburb of Banksia. Bayside Council (the Council) wished to upgrade the sports fields in the park, including by replacing a grass-turfed field with a synthetic-turfed field and improving the stormwater drainage system in the park.
There was a process under the applicable planning law for the Council to apply for, assess and approve this upgrade of the sports fields in the park. A question raised by these judicial review proceedings, brought by a community action group, Friends of Gardiner Park Inc (the Friends), is whether the Council has followed the proper legal process.
The Friends contended that the Council did not follow the proper legal process in three respects. First, the Council assessed and approved the activity of the sports fields upgrade under one part of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), Part 5, which the Friends contended did not apply, rather than under another part, Part 4, which the Friends contended did apply. The Friends contended that there were aspects of the activity that involved the demolition of buildings for which development consent under Part 4 was required. Second, the Council's assessment of the heritage impacts of the activity of the sports fields upgrade miscarried because the Council focused only on the potential impacts on certain structures or features in the park that were of heritage value rather than considering the potential impacts on the heritage significance of the park as a whole. Third, the Council modified the activity in certain respects but instead of assessing under Part 5 of the EPA Act the environmental impacts of the modified activity, the Council focused only on the particular modifications of the activity. The Friends contended that the first error led to a breach of s 4.2 of the EPA Act and the second and third errors led to a breach of s 5.5 of the EPA Act.

[2]

The activity and its approval and carrying out

Gardiner Park is a public reserve under the control of or vested in the Council. Gardiner Park has been identified as a heritage item (I79) under Rockdale Local Environment Plan 2011 (RLEP).
The Council wished to upgrade the sports facilities within Gardiner Park. This included works to "upgrade the existing turfed sports fields at Gardiner Park, Banksia, and replace the existing soccer field with a synthetic pitch and associated infrastructure" (the activity). Key features of the activity included: "- Installation of two standard football fields, Field One surfaced with synthetic turf and Field Two with grass turf - Ground levelling works for both pitches - Removal of one synthetic cricket pitch - Surfacing of the ambulance driveway entering from Wolli Creek Road and installation of a locked gate at the start of the playing surface - Installation of associated in-ground drainage for both fields including installation of a stormwater detention basin near northern end of Field Two - Installation of 2m wide paved path on the northern and southern side of Field One, with a wider area to allow for coach/technical area on southern side - Installation of a 1.2m high perimeter chain-link wire fence around Field One - Installation of a 6m high ball barrier chain-link wire fence behind goal at the western and eastern ends of Field One and at southern end of Field Two - Raising of the synthetic field in accordance with the flood study information to avoid damage to the proposed synthetic field."
The upgrading of the sports fields in the park necessitated upgrading of the stormwater drainage system in the park. The existing stormwater drainage system included a main stormwater pipe, connected to stormwater pits, running through the park from Atkinson Street and Atkinson Lane in the north to Gardiner Avenue in the south. When the sports fields were originally constructed, the level of the fields was raised over the existing stormwater pipe through the placement of fill to provide cover to the pipe and achieve the desired finished surface levels of the sports fields. The proposed upgrading of the sports fields would involve installation of inground drainage for both fields and a stormwater detention basin in the northern end of the proposed Field Two (to be surfaced with grass turf) and raising of the proposed Field One (to be surfaced with synthetic turf) to avoid damage to the synthetic field.
The upgrading of the sports fields originally proposed "demolition" of certain works or structures. The Demolition Plan prepared by Cardno dated 2 September 2020 noted three items as being demolished in whole or part. First, it was proposed to "partially demolish steps to allow new path connection", referring to a set of concrete steps with metal handrails, constructed in 2016. The partial demolition involved removing the lowest landing and a few steps leading to that landing and the associated handrails as they would be covered by fill placed to raise the level of Field One (the synthetic-turfed field). Second, it was proposed to "demolish cricket pitch", referring to the concrete-based, synthetic-turfed cricket pitch on what would become Field Two (the grass-turfed field). Excavation of the trench to lay a new main stormwater pipe to replace the existing main stormwater pipe would require removal of at least the western end of the cricket pitch, although the pitch was proposed to be removed in any event to make the whole of the field turfed with grass. Third, it was proposed to "demolish approx 118m of concrete stormwater pipe", referring to a section of the existing main stormwater pipe running through the park. This section ran from, in the north-west, an existing stormwater pit later designated as Pit A-2, to another existing stormwater pit in the south-east, later designated Pit A-8.
The Demolition Plan was equivocal in respect of a fourth item, the two stormwater drainage pits A-2 and A-8. It was proposed to install a new main stormwater pipe, along a different route than the existing stormwater pipe, which would be connected to the existing stormwater system at or near Pit A-2 in the north-west and Pit A-8 in the south-east. This would involve disconnection of the existing stormwater pipe at these two pits and connection of the new stormwater pipe at the pits. It was not clear whether these existing pits were to be removed and replaced with new pits or reused by sealing the holes for the old pipe and cutting new holes to enable connection of the new pipe. As constructed, the latter approach was undertaken.
The Council engaged an environmental consultant, AECOM Australia Pty Ltd, to prepare a Review of Environmental Factors (REF) to assess the environmental impacts of the proposed activity of the sports fields upgrade. The REF was dated 26 October 2020. The REF described the activity and key features of the activity in the way I have earlier set out. The REF described the need for the upgrade. The REF noted that there has been an increased demand for and usage of sports fields in the local government area. The sports fields in Gardiner Park are within a floodway and experience ponding during wet weather, making the fields unusable for the public during these times. The Council wished to increase the availability of these sports fields by reducing the downtime associated with flooding impacts, thereby maximising the current capacity of the fields throughout the year. The provision of a synthetic-turfed field would provide greater drainage and usage during wet weather and require less maintenance during the year, particularly during the winter months.
The REF considered the environmental impacts of the activity in the following categories: traffic access and parking; noise and vibration; non-Aboriginal heritage; landscape character and visual amenity; surface water and flooding; biodiversity; and soils and contamination, geology and hydrology. The REF appended a number of subject-specific assessment reports, including a Heritage Impact Statement (HIS) by Sue Rosen Associates dated May 2020 (Appendix F) and a flood assessment by WMA Water dated September 2020 (Appendix I). The Executive Summary of the REF concluded in relation to heritage: "- Gardiner Park is listed as local heritage item I79 on the Rockdale LEP. Construction of the proposed has the potential to impact on elements of the listing if not mitigated, including WWII slit trenches, the sandstone retaining walls and heritage garden along the western and southern boundaries of the site and mature trees in the corners of the sports fields. - The installation of synthetic turf, recessive fencing, and sympathetic pedestrian pathways would have no impact on the identified significances of Gardiner Park under any of the significance criterion and as a site of public recreation and organised sports."
The Executive Summary's overall conclusion was that: "The proposal will provide social benefit to the local community by providing improved recreational facilities for the community. A number of potential environmental impacts from the proposal have been avoided or reduced during the design developments and there is unlikely to be significant impacts on the environment. The proposal as described in the REF best meets the project objectives. Safeguards and management measures as detailed in this REF would minimise potential design and construction impacts. Impacts and measures would be refined further during procurement of the proposal."
On 27 October 2020, after considering a report by Council officers entitled "Bayside Council Environmental Assessment" of the Gardiner Park Sports Facilities Upgrade and the REF, the Council determined to proceed with the activity. The determination was made by Ms Clare Harley, Manager Strategic Planning and Mr Peter Barber, Director City Futures. The determination dated 27 October 2020 was entitled "Environmental Determination under Section 5.5 in relation to Gardiner Park Sporting Facilities Upgrade" (the first determination). The first determination was in the following terms: "It is considered, on the basis of the Review of Environmental Factors for Gardiner Park Sporting Facilities Upgrade (dated 27 October 2020) and attached to this approval, that the environmental impacts associated with the proposal have been adequately assessed and that by adopting the safeguards identified in this assessment, the undertaking of the proposed works is not likely to significantly affect the environment. Consequently the project may proceed subject to implementation of the safeguard measures. An Environmental Impact Statement under section 5.7 of the Environmental Planning and Assessment Act 1979 is not required."
On 30 October 2020, the Council entered into a contract with Polytan Asia Pacific Pty Ltd (Polytan), a company that supplies and installs synthetic turf fields, to carry out the activity.
Polytan commenced carrying out works at the park from about 16 November 2020 and continued through January 2021.
By February 2021, the Council was considering modifying the activity in three main respects: the Wolli Creek Road ambulance driveway, the stone retaining walls near the south-eastern boundary, and the existing stormwater pipe. The modification to the approved works was as follows: "1. Wolli Creek Road ambulance driveway - Reduce the size of the trucks entering the site via the ambulance driveway to a maximum of 20 tonne trucks; - Employ traffic controllers to coordinate traffic at this driveway. 2. Stone retaining walls near south-eastern boundary - Excavate trench 1.8m wide behind and along approximately 75m of the depression era stone block wall at south-eastern side of Field 1 (between Pit F-2 and A-7); - Excavate down to base level of wall; - Lay proposed stormwater piping in trench; - Fill trench with no-fines concrete mass structure to an approximate height of 1.6m; - Backfill trench and lay fill to create proposed batter from a stone retaining wall up to the playing surface. Cover batter with turf. 3. Existing stormwater pipe (Pit A-2 to Pit A-8) - Delete demolition of the approximately 118m of 600mm subsurface concrete stormwater plans - Decommission pipe and preserve in situ: - Install a plastic cover to the inlet pipe at junction with the existing downstream retention pit (next to Pit A-8); - Form up internal wall of the downstream pipe and install sandbags in front to hold the stabilised sand mix during pumping and curing; - Pump stabilised sand mix from Pit A-2 (upstream) into pipe. Stabilised sand mix to be premixed slurry containing sand and 0.5%-1% cement to allow easy removal in future if required; - Where the pipe has subsided mass fill with concrete to approximately 300mm above; - Block off outlet pipe at Pit A-2 by providing a wall cover; - Install new 600mm outlet pipe at eastern corner of Pit A-2. Connect into approved stormwater piping system; - Construction of new Pit A-8 adjacent to the existing downstream retention pit. Connect to existing 600mm pipe; - Install new 600mm inlet pipe from approved stormwater piping system into new Pit A-8; - New stormwater system will drain via Pit A-8 into existing Brick retention pit and out via concrete outlet pipe."
The Council engaged Sue Rosen Associates to assess the heritage impact of these modifications to the approved works. Sue Rosen Associates prepared an Addendum dated 12 February 2021 to the HIS.
The Council officers prepared a report entitled "Bayside Council Environmental Assessment" on the "Modification of Proposed Works for Gardiner Park". The environmental assessment assessed the potential impacts under three headings: traffic and transport; non-Aboriginal heritage; and drainage.
In relation to traffic and transport, the environmental assessment noted that it was proposed to change the type of truck, from a tip truck and trailer combination (known as a truck and dog) to a single tip truck. This would increase the number of trucks required to transport soil from the site from the previously proposed maximum of 15-16 trucks a day to a new maximum of 23-25 trucks a day. However, it was now proposed to dispose of less soil offsite, by using more soil in the batters and around the field. Reducing the amount of material to be disposed of offsite will reduce the total truck movements by 100 trucks during the busy construction traffic period. The net increase in truck movements as a result of using smaller trucks, less the reduction in material leaving the site, would be 150 trucks, giving a total of 650 movements over the month during which this component of the activity would take place. This equated to about 7 additional movements a day.
The environmental assessment found that the changed volume in trucks would be acceptable in the context of the overall volume of traffic on local roads, and the impact in terms of noise, safety, visual impact and the like was considered to also be minimal and acceptable. Manoeuvring movements through local streets and into the park would be simplified as a result of the ease of entering the site with smaller trucks. A traffic controller would also be in place. The environmental assessment therefore considered that overall there would be no substantial change to the impact of truck movements during construction and the change did not result in the impact exceeding "the less than significant impact threshold" (presumably a reference to s 5.7 of the EPA Act). The environmental assessment proposed recommended new mitigation measures for traffic and transport.
In relation to non-Aboriginal heritage, the environmental assessment referred to the Addendum prepared by Sue Rosen Associates and concluded that, based on that expert advice, "with all due care and practical protective measures installed for the duration of works, there is considered to be no significant impact to the heritage fabric, setting, or heritage significance of the site. The change does not result in the impact exceeding the less than significant impact threshold." The environmental assessment proposed four new mitigation measures.
In relation to drainage, the environmental assessment noted that the proposed amendment to levels and connections of pipes and pits for stormwater drainage to provide adequate drainage for the site was a different arrangement. Nevertheless, the function remained the same and there was no change in impact. The environmental assessment noted that the change in the method of backfilling over the pipe behind the original stone wall (using mass concrete) was an improvement in terms of structural stability.
The Council, after considering the environmental assessment and the Addendum to the HIS, approved the modification of the activity on 15 February 2021. The same two council officers approved the modification on the Council's behalf, Ms Clare Harley and Mr Peter Barber. The approval was entitled "Environmental Determination under Section 5.5, Gardiner Park - Proposed Modification to Approval dated 27/10/20" (the second determination). The second determination is in the following terms: "It is considered that the environmental impacts associated with modifications to proposed activity at Gardiner Park have been assessed to the fullest extent possible and the safeguards incorporated in the proposed activity result in it [being] unlikely to significantly affect the environment. Consequently the project may proceed subject to implementation of the safeguard measures. An Environmental Impact Statement under section 5.7 of the Environmental Planning and Assessment Act 1979 is not required."
After approval of the modification of the activity, works were recommenced in February 2021 to carry out the modified activity, including installing the new main stormwater pipe. The new stormwater pipe was connected to the existing pits by cutting a hole in the wall of each existing pit and inserting the new pipe into the hole and sealing the connection between the new pipe and pit. In March 2021, works included placing fill to raise the level of the proposed synthetic field, installing the new main stormwater pipe and levelling the synthetic field. In April and May 2021, works included carrying out irrigation works, continuing stormwater works and placing soil on the grass-turfed field. In June and July 2021, works included placing topsoil on the natural field ready for turfing, pouring concrete for pedestrian pathways, continuing irrigation works and finalising stormwater works. By February 2022, the Council considered that the works for the activity of the sports fields upgrade had been completed.
In relation to the items that had originally been proposed to be demolished, none of the four items of the pitch, steps, pipe or pits had been removed from the park. The cricket pitch was left in situ and covered by soil and turf. The lower landing and steps to the landing and associated handrails were left in situ but covered with soil and then a concrete pedestrian pathway connected the balance of the steps with the raised Field One. The existing stormwater pipe was left in situ, although its connection to Pits A-2 and A-8 were severed and grout inserted in either end of the existing pipe. The existing stormwater Pits A-2 and A-8 were also left in situ, with the new stormwater drainage pipe connected to each pit.

[4]

The Friends' argument of breach of Part 4 of the EPA Act

The Friends argued that the originally proposed demolition of the pitch, steps, pipe and pits required development consent under Part 4 of the EPA Act. As an activity under Part 5 of the EPA Act does not include "any act, matter or thing for which development consent under Part 4 is required" (s 5.1(1)(g)), the consequence was that the originally proposed sports fields upgrade was not an activity that could be assessed and approved by the Council under Part 5. The Council in carrying out the sports fields upgrade without first obtaining development consent under Part 4 breached s 4.2 of the EPA Act.
The Friends developed this argument in a series of steps. First, the Friends relied on the Demolition Plan that expressly noted that the pitch, steps and pipe were to be demolished and, by identifying Pits A-2 and A-8 as a "proposed pit", impliedly noted that these pits would also be demolished and replaced with new pits.
The second step in the Friends' argument was that demolition of a building or work required development consent under RLEP. Clause 2.7 of RLEP provides generally that: "The demolition of a building or work may be carried out only with development consent."
Clause 5.10(2)(a) of RLEP provides particularly in relation to heritage items: "Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area,…"
The third step in the Friends' argument was that the proposed demolition of the pitch, steps, pipe and pits all fell within the ambit of cl 2.7 and the demolition of the pitch also fell within the ambit of cl 5.10(2)(a). Each of the pitch, steps, pipe and pits was a "building" or alternatively a "work". A "building" is defined in the Dictionary to RLEP as having the same meaning as in the EPA Act. A building is defined in s 1.4(1) of the EPA Act to include "part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure)…". The word "structure" is not defined in the EPA Act. The Friends contended that it bears its ordinary meaning of "something built or constructed; a building, bridge, dam, framework, etc; anything composed of parts arranged together in some way" (Macquarie Dictionary). The Friends submitted that the pitch, steps, pipe and pits are built up of component parts and are structures and therefore buildings. Alternatively, the pitch, steps, pipe and pits are works.
Next, the Friends submitted that the pitch, steps, pipe and pits were originally proposed to be demolished. The Friends submitted that the word "demolish" in cl 2.7 and cl 5.10 of RLEP bears its defined meaning in the Dictionary to the RLEP of: "in relation to a heritage item or an Aboriginal object, or a building, work, relic or tree within a heritage conservation area, means wholly or partly destroy, dismantle or deface the heritage item, Aboriginal object or building, work, relic or tree."
The Demolition Plan expressly noted that each of the pitch, steps, pipe and pits were to be demolished - they were each to be dismantled and removed from the park. The Friends submitted that the Demolition Plan implied that the pits were also to be demolished in that the proposed pits were to be installed in place of the existing pits, implying the dismantling and removal of the existing pits.
In these circumstances, the Friends submitted that cl 2.7 of RLEP required development consent for the demolition of the pitch, steps, pipe and pits.
The Friends originally submitted that development consent was also required by cl 5.10(2)(a) of RLEP for the demolition of the pitch, steps, pipe and pits, but in oral argument narrowed this submission to apply only to the pitch. The relevant object of the action of demolition in cl 5.10(2)(a) is "a heritage item". In the present case, the heritage item was Gardiner Park, not the pitch, steps, pipe and pits. The relevant inquiry required by cl 5.10(2)(a) is whether the demolition of the pitch, steps, pipe or pits involved demolition of the heritage item of the park. The Friends accepted that this may be difficult to establish for the steps, pipe and pits as their demolition would not affect the heritage significance of the park. The Friends nevertheless still argued that demolition of the pitch may affect the heritage significance of the park because the removal of the cricket pitch affected the ability of the field to be used for cricket, a sport which had historically been played in the park.
Having established that development consent was required to demolish the pitch, steps, pipe and pits, the fourth step in the Friends' argument was that this requirement for development consent was not negated by the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). Two provisions of the Infrastructure SEPP do provide that specified development may be carried out without consent, cl 65(3) and cl 111(1), but the Friends submitted that these provisions did not apply to the demolition of the pitch, steps, pipe and pits.
Starting with cl 65(3) of the Infrastructure SEPP, the Friends accepted that cl 65(3) can operate to allow certain development to be carried out by the Council on the public reserve without development consent. Clause 65(3) provides: "Any of the following development may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council - (a) development for any of the following purposes - (i) roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges, (ii) recreation areas and recreation facilities (outdoor), but not including grandstands, (iii) visitor information centres, information boards and other information facilities, (iv) lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard, (v) landscaping, including landscape structures or features (such as art work) and irrigation systems, (vi) amenities for people using the reserve, including toilets and change rooms, (vii) food preparation and related facilities for people using the reserve, (viii) maintenance depots, (ix) portable lifeguard towers, (b) environmental management works, (c) demolition of buildings (other than any building that is, or is part of, a State or local heritage item or is within a heritage conservation area).."
The Friends accepted that the sports fields upgrade was carried out by or on behalf of the Council and on a public reserve under the control of or vested in the Council. The Friends also accepted that the sports fields upgrade could be considered to be development for the purpose of "recreation areas", one of the purposes specified in paragraph (a). Clause 5(1) of the Infrastructure SEPP provides that: "A word or expression used in this Policy has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Policy". The phrase "recreation area" is defined in the Standard Instrument to mean: "a place used for outdoor recreation that is normally open to the public, and includes - (a) a children's playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor)."
Gardiner Park is such a place used for outdoor recreation that is normally open to the public and includes a children's playground, an area used for community sporting activities and a public park, reserve or garden or the like, as well as ancillary buildings.
Nevertheless, the Friends argued that the development specified in paragraphs (a), (b) and (c) of cl 65(3) of the Infrastructure SEPP are mutually exclusive, so that development involving "demolition of buildings" in paragraph (c) is excluded from development for a purpose specified in paragraph (a), including development for the purpose of recreation areas in subparagraph (a)(ii).
The Friends submitted that as the sports fields upgrade involved the demolition of buildings, cl 65(3) of the Infrastructure SEPP could only operate to allow this development to be carried out without consent if paragraph (c) applied. The Friends accepted that the demolition of the pitch, steps, pipe and pits did involve "demolition of buildings" within the opening phrase of paragraph (c) but contended that such demolition also fell within the exclusion in the bracketed phrase in paragraph (c). The demolition of the pitch, steps, pipe and pits involved demolition of buildings that are part of a local heritage item, Gardiner Park, as they are all located in the park. The demolition of these buildings therefore falls within the exclusion in paragraph (c), rendering the paragraph inapplicable to exempt the demolition of these buildings from the requirements in cl 2.7 and cl 5.10 of RLEP to obtain development consent.
The Friends submitted that cl 111 of the Infrastructure SEPP also did not relieve the Council from the requirements in cl 2.7 and cl 5.10 of RLEP to obtain development consent for the sports fields upgrade. Clause 111 provides: "(1) Development for the purpose of stormwater management systems may be carried out by or on behalf of a public authority without consent on any land. (2) A reference in this clause to development for the purpose of stormwater management systems includes a reference to development for any of the following purposes if the development is in connection with a stormwater management system: (a) construction works, (b) routine maintenance works, including maintenance dredging to remove sediment build-up in a stormwater canal or at exit points into natural waterways that affects the efficiency of the stormwater management system, (c) environmental management works, (d) buildings, including buildings containing amenities for staff, that have a height of not more than 12m above ground level (existing)."
The Friends noted that in its terms, cl 111 only permits development "for the purpose of stormwater management systems" to be carried out without consent. In the present case, the development is for a different purpose, being the purpose of recreation area. The Council's reliance on cl 65(3)(a) as permitting the sports fields upgrade to be carried out without consent is predicated on that development being for the purpose of recreation area. The Friends submitted that any stormwater management works undertaken as part of the sports fields upgrade are subservient to, and are subsumed by, the dominant purpose of recreation area. The sports fields upgrade cannot be characterised as being development for the purpose of stormwater management systems, so that cl 111 did not exempt the development from the requirements in cl 2.7 and cl 5.10 of RLEP to obtain development consent.
The fifth step in the Friends' argument was that the requirements in cl 2.7 and cl 5.10 of RLEP to obtain development consent for the demolition of the pitch, steps, pipe and pits, which were not negated by cl 65(3) or cl 111(1) of the Infrastructure SEPP, meant that the sports fields upgrade could not be "an activity" under Part 5 of the EPA Act. An activity is defined in s 5.1(1) of the EPA Act to include relevantly the use of land (paragraph (a)), the erection of a building (paragraph (c)), the carrying out of a work (paragraph (d)) and the demolition of a building or work (paragraph (e)) - all acts, matters or things that the sports fields upgrade involved - but does not include importantly "any act, matter or thing for which development consent under Part 4 is required or has been obtained" (paragraph (g)). The Friends submitted that the demolition of the pitch, steps, pipe and pits fell within this exclusion in paragraph (g). This caused not only the demolition of those buildings or works to be excluded from being an activity, but also the other acts, matters or things involved in the sports fields upgrade of the use of land, the erection of a building and the carrying out of a work to be excluded. No part of the sports fields upgrade was an activity under Part 5.
The final step in the Friends' argument was that this led to the Council breaching the EPA Act. The Council breached s 4.2(1) of the EPA Act by carrying out the development of the sports fields upgrade without first obtaining development consent. The Council's assessment and approval of the sports fields upgrade under s 5.5 of the EPA Act was legally ineffective, as Part 5 of the EPA Act did not apply.

[5]

The Council's argument of no breach of Part 4 of the EPA Act

The Council contested that the sports fields upgrade required development consent under Part 4 of the EPA Act. The Council contended that cl 65(3) and cl 111(1) of the Infrastructure SEPP operated to permit the Council to carry out the sports fields upgrade without consent. These provisions of the Infrastructure SEPP prevail over cl 2.7 and cl 5.10 of RLEP insofar as there is any inconsistency. Thus, even if cl 2.7 and cl 5.10 of RLEP did operate to require development consent for the demolition of the pitch, steps, pipe or pits, cl 65(3) and cl 111(1) of the Infrastructure SEPP operated to permit not only the demolition of such items but more generally the carrying out of the sports fields upgrade without consent.
The Council's argument therefore started with the provisions of the Infrastructure SEPP that it contended permitted the carrying out of the sports fields upgrade without consent. Clause 65(3) permits certain development to be carried out by or on behalf of a council on a public reserve under the control of or vested in the council. In the present case, it was common ground that the sports fields upgrade was carried out by or on behalf of the Council and on a public reserve under the control of or vested in the Council. The development that cl 65(3) permits to be carried out without consent is "any of the following development". The "following development" to which cl 65(3) refers falls into three categories: development for any of the purposes specified in paragraph (a); environmental management works in paragraph (b); and demolition of buildings, other than a building that is, or is part of, a State or local heritage item or within a heritage conservation area, in paragraph (c).
The Council noted that cl 65(3) permits "any of" these developments in paragraphs (a), (b) or (c) to be carried out without consent. By this language, the three paragraphs of cl 65(3) are inclusive not mutually exclusive. In order for development to be permitted to be carried out without consent, it is sufficient if the development falls within any one of these categories of development in paragraphs (a), (b) or (c). It matters not whether the development might fall within more than one of these three categories, only that it falls in at least one category.
Relevantly here, if the sports fields upgrade can be categorised as being development for the purpose of recreation area, within subparagraph (a)(ii), it may be carried out without consent irrespective of whether that development might involve demolition of buildings that could potentially also fall within paragraph (c).
The Council submitted that it is not contested that the sports fields upgrade is development for the purpose of recreation area, as that purpose is defined in the Standard Instrument. The sports fields upgrade involved the carrying out of development in three of the defined senses of development: the erection of a building, the carrying out of a work and the demolition of a building or work. The purpose of that development is to enable Gardiner Park to be used as a recreation area, that is as a place used for outdoor recreation that is normally open to the public, including a children's playground, an area for community sporting activities and a public park, reserve, garden or the like, as well as any ancillary building. The preparatory demolition of any building or work to enable the erection of a building and the carrying out of a work is to be categorised as being for the purpose of recreation area as much as the subsequent erection of a building or the carrying out of the work is for that purpose.
In this way, the sports fields upgrade is properly to be categorised as being development for the purpose of recreation area, within subparagraph (a)(ii). Clause 65(3)(a) of the Infrastructure SEPP permitted the sports fields upgrade to be carried out by the Council without consent.
In these circumstances, the Council submitted, it was irrelevant whether the sports fields upgrade could or could not be categorised as being development falling within paragraph (c). If the sports fields upgrade did involve the development of "demolition of buildings", and did not involve demolition of a building falling within the excluded buildings in the bracketed phrase, the sports fields upgrade would be permitted to be carried out without consent by paragraph (c), as well as by paragraph (a). If the sports fields upgrade did not involve "demolition of buildings" at all or involved demolition of a building falling within the excluded buildings in the bracketed phrase, the sports fields upgrade could not be carried out without consent by paragraph (c), but this would leave untouched the operation of paragraph (a) to permit the sports fields upgrade to be carried out without consent as development for the purpose of recreation area.
The Council submitted that, in addition to cl 65(3) of the Infrastructure SEPP, cl 111(1) of the Infrastructure SEPP permitted the carrying out without consent of those works that could be categorised as being development for the purpose of stormwater management systems. A "stormwater management system" is defined in cl 110 of the Infrastructure SEPP to include "(a) works for the collection, detention, harvesting, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations)." Development for the purpose of stormwater management systems includes: "development for any of the following purposes if the development is in connection with a stormwater management system - (a) construction works, … (d) buildings, including buildings containing amenities for staff, that have a height of not more than 12m above ground level (existing)": cl 111(2) of the Infrastructure SEPP.
The term "construction works" is defined in cl 5(3) of the Infrastructure SEPP to include demolition.
The Council noted that the sports fields upgrade involved the installation of inground drainage for both fields and the functional replacement of the existing main stormwater pipe with a new main stormwater pipe. The originally proposed demolition of a section of the existing stormwater pipe and its replacement with a new stormwater pipe and the connection of the new stormwater pipe to the existing stormwater pits involved development for the purpose of stormwater management systems.
The Council submitted that any demolition of the existing stormwater pipe or stormwater pits (if that were to occur) would be "construction works" and be for the purpose of stormwater management systems, by cl 5(3) and cl 111(2) of the Infrastructure SEPP. Such development may be carried out by the Council without consent by cl 111(1) of the Infrastructure SEPP. It matters not whether such development could also be said to be for the purpose of recreation area under cl 65(3)(a)(ii); cl 111(1) operates to permit the development by reason of it being for the purpose of stormwater management systems. Clause 111(1) provides specific authority for carrying out the components of the development that are for the purpose of stormwater management systems.
The Council submitted, therefore, that cl 65(3) of the Infrastructure SEPP permitted the whole development, including any demolition of a building or work, for the purpose of recreation area and cl 111(1) of the Infrastructure SEPP permitted components of the development for the purpose of stormwater management systems, to be carried out without consent. Those provisions of the Infrastructure SEPP prevailed over any provisions of RLEP, such as cl 2.7 and cl 5.10, that might have required development consent to be obtained for such development. In these circumstances, it is unnecessary to decide whether any provisions of RLEP would have required development consent to be obtained for the sports fields upgrade.
In any event, however, the Council submitted that it did not breach s 4.2 of the EPA Act in carrying out the sports fields upgrade. A person can only breach s 4.2 by carrying out development that an environmental planning instrument provides may not be carried out except with development consent. This focuses attention on the development that the Council actually carried out, not the development that it had originally proposed to carry out or the development it had approved to be carried out. The breach of s 4.2 claimed by the Friends arises from the alleged demolition of the pitch, steps, pipe and pits. The Friends claimed that any such demolition breached cl 2.7 and cl 5.10 of RLEP. The Council submitted that it could only breach cl 2.7 and cl 5.10 if the development it actually carried out involved the demolition of a building or work (cl 2.7) or demolition of a heritage item (cl 5.10). The development actually carried out by the Council did neither.
Although the Council had originally proposed to remove the pitch, steps, pipe and pits and determined to do so, the Council later decided to leave these items in situ and cover them. The cricket pitch was covered with soil and the field turfed with grass. The lower landing and steps leading to that landing and the associated hand rails were covered by soil and a new concrete pedestrian pathway laid to connect with the higher landings and steps. The existing stormwater pipe was left in situ, although its connection to stormwater pits A-2 and A-8 was severed and the ends of the pipe were filled with grout. As far as the stormwater pits themselves, it was not clear that they had originally been proposed to be removed - the Demolition Plan is equivocal on this - but in any event the pits were left in situ and reused for the new stormwater drainage system. The new main stormwater pipe was connected to pits A-2 and A-8 in place of the old main stormwater pipe.
The Council submitted that none of these actions in relation to the pitch, steps, pipe or pits amounted to demolition. To leave in place and cover with soil or concrete the pitch, steps and pipe is not to demolish the pitch, steps or pipe. To leave the pits in place and disconnect the existing stormwater pipe and connect the new stormwater pipe to the pits also does not involve demolishing the pits.
This is true irrespective of whether demolition is understood in its ordinary sense or in the sense defined in RLEP in relation to heritage items. The ordinary meaning of "demolish" is "to throw or pull down (a building etc); reduce to ruins; to put an end to; destroy; ruin utterly" (Macquarie Dictionary). The Council's actions did not demolish the pitch, steps, pipe or pits in this sense. The defined meaning of "demolish" in RLEP, which only applies in relation to a heritage item or a building or work within a heritage conservation area, is to "wholly or partly destroy, dismantle or deface" the heritage item or the building or work in a heritage conservation area. This definition does not apply to the pitch, steps, pipe or pits as none of them is a heritage item or is within a heritage conservation area. In any event, however, the Council's actions did not wholly or partly destroy, dismantle or deface the pitch, steps, pipe or pits.
The consequence, the Council submitted, was that the Council's actions did not involve the "demolition" of a building or work, contrary to cl 2.7 of RLEP, or the "demolishing" of a heritage item, contrary to cl 5.10 of RLEP.
Although not dispositive of the applicability of cl 2.7 of RLEP, the Council further submitted that the pitch, steps, pipe and pits cannot properly be described as a building, as that term is defined in the EPA Act. It matters not whether the pitch, steps, pipe or pits might be able to be described as structures, they are not buildings: Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 at [92]-[98] and [137]. The Council accepted that the pitch, steps, pipe and pits might be able to be described as works. The Council also accepted that the concrete steps might be able to be described as a building or otherwise as a work.
The Council submitted that cl 5.10 of RLEP also was not applicable for the further reason that the Council's actions in relation to the pitch, steps, pipe and pits, even if they could be said to involve demolition, did not involve demolishing a heritage item. The pitch, steps, pipe and pits themselves are not heritage items, rather Gardiner Park as a whole is the heritage item listed under RLEP. The Council's actions in relation to the pitch, steps, pipe and pits cannot be described as involving demolishing the heritage item of Gardiner Park. The Council's actions cannot be described as wholly or partly destroying, dismantling or defacing Gardiner Park.
For these reasons, the Council submitted that, in carrying out the sports fields upgrade, it did not breach s 4.2 of the EPA Act by contravening cl 2.7 or cl 5.10 of RLEP.

[6]

No breach of Part 4 of the EPA Act

The Friends have not established that the Council breached s 4.2 of the EPA Act in carrying out the sports fields upgrade. The proscription in s 4.2 on a person carrying out development on land without obtaining development consent is conditioned on an environmental planning instrument providing that that development may not be carried out except with development consent. Although s 4.2 refers to "an environmental planning instrument" providing that specified development may not be carried out except with development consent, this is to be understood as referring to the result of the operation of all of the relevant environmental planning instruments. A local environmental plan, such as RLEP, may provide that specified development may not be carried out except with development consent, but a State environmental planning policy, such as the Infrastructure SEPP, may provide otherwise that the specified development may be carried out without consent. If the State environmental planning policy prevails over the local environmental plan to the extent of any inconsistency, as cl 8(1) of the Infrastructure SEPP provides, there will be no environmental planning instrument that provides that the specified development may not be carried out except with development consent.
This means in the present case that cl 2.7 and cl 5.10 of RLEP do not provide that the specified development of demolition of a building or work (cl 2.7) or demolishing a heritage item (cl 5.10) may not be carried out except with development consent if cl 65(3) or cl 111(1) apply to permit the carrying out of that specified development without consent. Those latter provisions of the Infrastructure SEPP prevail over the former provisions of RLEP to the extent of any inconsistency.
The first inquiry, therefore, in order to determine whether the Council breached s 4.2 of the EPA Act in carrying out the sports fields upgrade is to ascertain whether an environmental planning instrument provides that that development, or any component of that development, may not be carried out except with development consent. This involves ascertaining whether cl 65(3) or cl 111(1) of the Infrastructure SEPP permitted that development, or any component of that development, to be carried out without consent. If so, the development or component of the development could be carried out without consent, regardless of what cl 2.7 or cl 5.10 of RLEP might provide. The provisions of the Infrastructure SEPP prevail over the provisions of RLEP to permit the carrying out of the development without consent.
I find that the sports fields upgrade carried out by the Council was permitted without consent by cl 65(3)(a) of the Infrastructure SEPP. The sports fields upgrade was carried out by or on behalf of the Council at Gardiner Park which is a public reserve under the control of or vested in the Council.
The carrying out of the sports fields upgrade involved the doing of acts, matters or things referred to in three of the defined senses of "development", being the erection of a building, the carrying out of a work and the demolition of a building or work: see s 1.5(1) and (3) of the EPA Act.
The purpose for which the development in any of those senses was carried out could properly be characterised as being for "recreation area". The expression "recreation area" used in cl 65(3)(a)(ii) of the Infrastructure SEPP has the same meaning as it has in the Standard Instrument. That meaning is: "a place used for outdoor recreation that is normally open to the public, and includes - (a) a children's playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor)."
The three types of excluded recreation facility referred to in this definition are themselves defined, but none of them applied to the sports fields upgrade carried out by the Council. The sports fields upgrade squarely fell within this definition of recreation area.
Insofar as the sports fields upgrade did involve the erection of a building, the carrying out of a work and the demolition of a building or work, each of those types of development was for the purpose of recreation area. The sports fields upgrade was, therefore, development for the purpose of recreation area within cl 65(3)(a)(ii) of the Infrastructure SEPP.
This conclusion is not displaced even if the sports fields upgrade could also be seen to involve demolition of buildings falling within cl 65(3)(c) of the Infrastructure SEPP. The categories of development in paragraphs (a), (b) and (c) of cl 65(3) are not mutually exclusive. The carrying out of environmental management works (within paragraph (b)) or the demolition of buildings (within paragraph (c)) can also be development for any of the purposes referred to in paragraph (a). The carrying out of development is defined in s 1.5(3) to be the doing of the acts, matters or things referred to in the definition of "development" in s 1.5(1), including the carrying out of a work and the demolition of a building or work. Accordingly, the carrying out of environmental management works and the demolition of buildings involve the carrying out of development.
The carrying out of these types of development on land can be for a purpose. In planning law, the purpose is the end to which land is seen to serve. It describes the character which is imparted to the land on which the development is carried out: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]. For the operation of cl 65(3)(a), the purpose for which the development is carried out needs to be one of the purposes specified in paragraph (a). If the development can be seen to be carried out for one of these purposes, cl 65(3)(a) operates to permit the development to be carried out without consent.
The carrying out of environmental management works or the demolition of buildings, being two ways in which development may be carried out, can also not be for a purpose at all. This is particularly evident with the demolition of buildings. A building on land may be demolished as an end in itself, and not as part of the carrying out of development for a purpose. If the development carried out only involved the carrying out of environmental management works or the demolition of buildings, and not as part of the carrying out of a development for any purpose, the development could not fall within paragraph (a), but it still could fall within paragraph (b) or (c) respectively.
This points to the utility of the inclusion of paragraphs (b) and (c) in addition to paragraph (a) in cl 65(3). Any development for one of the purposes specified in paragraph (a), including the carrying out of a work or the demolition of a building, will be permitted to be carried out without consent by operation of cl 65(3)(a). Any development not for any of the purposes specified in paragraph (a) will be permitted to be carried out without consent if the development involves the carrying out of environmental management works (so that it is permitted by cl 65(3)(b)) or the demolition of buildings, not being a building that is, or is part of, a State or local heritage item or is within a heritage conservation area (so that it is permitted by cl 65(3)(c)). In the present case, the carrying out of the sports fields upgrade, including the demolition of the buildings or works (if any), was for the purpose of recreation area and hence was permitted without consent by cl 65(3)(a). It was not necessary, in order for any demolition of buildings or works to be permitted without consent, for such demolition to fall within paragraph (c).
Hence, it mattered not whether there was "demolition of buildings" within the opening phrase of paragraph (c) or demolition of "any building that is, or is part of, a State or local heritage item or is within a heritage conservation area" within the exclusion in the bracketed phrase in paragraph (c).
This conclusion that the sports fields upgrade was permitted to be carried out without consent by cl 65(3)(a) of the Infrastructure SEPP is sufficient to establish that no environmental planning instrument provides that this development may not be carried out except with development consent. Clause 65(3) of the Infrastructure SEPP prevails over any provision of RLEP that might require development consent to be obtained to carry out the development.
Clause 111(1) of the Infrastructure SEPP will also have this effect of permitting certain development to be carried out without consent, although to a more limited extent. Clause 111(1) permits development for the purpose of stormwater management systems to be carried out by or on behalf of a public authority, such as the Council, without consent. The sports fields upgrade did involve, in part, construction works, including demolition, as that term is defined in cl 5(3) of the Infrastructure SEPP. These construction works included the functional replacement of the existing stormwater pipe with the new stormwater pipe and the connection of the new stormwater pipe to the existing stormwater pits. Those construction works were for the purpose of stormwater management systems, as defined in cl 110 of the Infrastructure SEPP.
The construction works can still be seen to be for that purpose of stormwater management systems regardless of whether they were undertaken in the carrying out of development for the purpose of recreation area. The characterisation of the purpose of development may differ depending on the legislative context and the purpose for which the characterisation is undertaken. Commonly, the characterisation of the purpose of development is undertaken in order to determine the permissibility of the development under the Land Use Table in a local environmental plan or as an existing use. In that legislative context, there may be a need to inquire if there are two or more purposes and, if so, whether one purpose is subservient to, and subsumed by, another purpose: see Chamwell Pty Ltd v Strathfield Council at [27]-[44].
In other legislative contexts, however, this inquiry may not be needed. It may be sufficient if the development can be seen to be for a specified purpose irrespective of whether it could be seen to be for any other purpose. This is the context of cl 111 of the Infrastructure SEPP. The clause permits development for a specified purpose, that of stormwater management systems, to be carried out without consent. All that is required is that the development be able to be characterised as being for that specified purpose. If so, the development cannot lose that characterisation as being for that specified purpose even if it is also for another purpose; it remains as development for the specified purpose.
This operation of cl 111(1) of the Infrastructure SEPP is, however, limited. It only permits the components of the development that can be characterised as being for the purpose of stormwater management systems to be carried out without consent. In the present case, cl 111(1) only permitted the upgrading of the drainage and stormwater management system in the park to be carried out without consent, not the other works to upgrade the sports fields in the park. Clause 111(1), therefore, did not operate to permit all of the sports fields upgrade to be carried out without consent.
A second reason for finding that the Council did not breach s 4.2 of the EPA Act is that the development that the Council in fact carried out did not breach either cl 2.7 or cl 5.10 of the RLEP in any event. In order for the Council to have breached these provisions of RLEP, if they applied, the Council would have needed to "demolish" a building or work (cl 2.7) or a heritage item (cl 5.10). I find that the Council's actions in relation to the pitch, steps, pipe or pits did neither.
As the Council submitted, s 4.2 of the EPA Act can only be breached by the Council carrying out development without obtaining development consent that an environmental planning instrument specifies may not be carried out except with development consent. The focus is on what the Council actually did, not what it had proposed to do or what it had approved to do. It matters not whether the Council had proposed and approved the demolition of any building or work or heritage item, only whether the Council did in fact demolish a building or work or heritage item.
I find that the Council's actions in covering the cricket pitch with soil and grass turf, covering the lower landing and concrete steps to the landing with soil and laying a concrete pedestrian path, covering the existing stormwater pipe with soil and disconnecting it from the stormwater pits, and changing the connections with the stormwater pits from the existing stormwater pipe to the new stormwater pipe did not constitute demolition of the pitch, steps, pipe or pits either in the ordinary meaning of "demolish" or its defined meaning in RLEP. I accept the Council's submissions in this regard. There can be no breach of cl 2.7 of RLEP in these circumstances.
Even more so, those actions in relation to the pitch, steps, pipe or pits did not constitute demolition of the heritage item of Gardiner Park, as they did not involve wholly or partly destroying, dismantling or defacing Gardiner Park within the defined meaning of "demolish" in relation to a heritage item. The question of whether or not "demolition" of a heritage item is involved is a question of fact and degree, and is to be assessed on a quantitative basis by reference to the extent of the demolition of the heritage item: Jean-Francois Clin v Water Lilly & Co Ltd [2021] JPL 1210; [2021] EWCA Civ 136 at [76]. This is not to say that only the whole of a heritage item can be demolished; the definition clearly allows for part of a heritage item to be demolished. It is to say, however, that the extent of the physical action in relation to the heritage item will influence whether there can be said to be the required destroying, dismantling or defacing of the heritage item, in order for that action to constitute demolition of the heritage item. In this case, the covering of one cricket pitch in a large park with soil and turf cannot be said to involve destroying, dismantling or defacing the park. There was no breach of cl 5.10 of RLEP.
For these reasons, the Friends have not established that the Council in carrying out the sports fields upgrade breached s 4.2 of the EPA Act. The Council was not required to obtain development consent under Part 4 of the EPA Act before carrying out the sports fields upgrade. Ground 1 has not been established.

[8]

The Friends' argument of inadequate environmental assessment

While ground 1 contended that the sports fields upgrade should have been assessed and approved under Part 4 of the EPA Act, grounds 2 and 3 accepted that the sports fields upgrade needed to be assessed under Part 5 of the EPA Act but contended that such assessment had miscarried.
Ground 2 contended that the Council's assessment of the heritage impacts of the activity of the sports fields upgrade miscarried, in breach of s 5.5(1) of the EPA Act. Ground 3 contended that the Council's assessment of the modification of the activity of the sports field upgrade miscarried, also in breach of s 5.5(1) of the EPA Act.
Section 5.5(1) of the EPA Act provides: "For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity."
The Friends noted that s 5.5(1) is pivotal to the proper working of Part 5: Palm Beach Protection Group v Northern Beaches Council [2020] NSWLEC 156 at [260]. The Friends contended that the Council failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity of the sporting field upgrade by misconstruing and misapplying the heritage listing of Gardiner Park. The whole of the park was listed as a heritage item under RLEP. The Council was obliged to consider the impact of the activity of the sports fields upgrade on the heritage significance of the park as a whole. The Friends contended that the Council did not do so, instead limiting its consideration only to certain features or structures in the park that were considered to be of heritage significance. The Friends gave some examples that they said demonstrated this limitation in consideration.
In section 8.1 of the HIS, dealing with the infrastructure SEPP, the activity was stated to be of "minimal heritage impact and does not involve the demolition of work that is part of the Gardiner Park heritage item". Section 8.3 of the HIS, dealing with Rockdale Development Control Plan 2011 (Rockdale DCP), found that the activity "has no impact on specific heritage structures, their curtilage or setting".
The REF, although noting that Gardiner Park was listed as heritage item I79 on RLEP, stated that the heritage listing includes four items: "- The sandstone retaining walls at the entrance to the park at Wolli Creek Road and along the eastern boundary - Sandstone steps - Heritage garden - Landscaping and mature trees (a notable tree includes Lophostemon confertus (Brush Box) on the perimeter of the field"
The general notes to the civil drawings under the heading of "Heritage", recorded: "HE1: Many existing features on the site are heritage listed. Heritage items include, but are not limited to stone paths, trees, perimeter walls etc."
In the Council's environmental assessment of the activity, the Council officers noted the potential of the construction activities "to cause harm to the specific heritage features of Gardiner Park", but considered this potential to be "moderate as the proposed works would be confined to the sporting fields and access driveway, an area of Gardiner Park which has undergone substantial disturbance, modification and period maintenance since its establishment."
Later, the environmental assessment noted that: "Unless safeguards are implemented, there is potential for vibration generating works to impact on the sandstone retaining walls and heritage garden along the western and southern boundaries of the site. Vibration monitoring would be undertaken where vibration generating plant cannot be located outside the minimum working distance for cosmetic damage to the heritage item. Construction of the synthetic field may require trimming of mature trees in the corners of the sporting fields. These trees form part of the Gardiner Park heritage listing and their modification, to be overseen by a qualified arborist, poses a minor impact to the Gardiner Park listing."
To mitigate these potential impacts of construction activities, the Council's environmental assessment recommended safeguards, including: "HER2 Vibration: Plant and equipment will be selected to minimise the vibration generated near heritage structures during construction. HER3 Vibration: Vibration monitoring near to the heritage items (and the perimeter/ retaining walls in particular) will be undertaken during vibration generating works to ensure that levels remain below the threshold for potential damage to heritage structures."
The Friends submitted that these examples demonstrate that the Council misconstrued and misapplied the heritage listing of Gardiner Park in assessing and making the first determination to proceed with the activity. The Council failed to consider the potential impacts of the activity on the park as a whole, including retaining the existing urban landscape and topography of the park, which are significant heritage considerations and make up the heritage listing of the park as a whole.
In these circumstances, the Friends submitted that the Council had failed in its duty under s 5.5(1) of the EPA Act to consider all matters affecting or likely to affect the environment (in this case, the heritage significance of the park) to the fullest extent reasonably possible.

[9]

The Council's argument of adequate environmental assessment

The Council contested that it had misconstrued or misapplied the heritage listing of the park or that its consideration of the impacts of the activity on the heritage significance of the park was in breach of s 5.5(1) of the EPA Act.
The Council submitted that the factual premise on which ground 2 was based was not correct. The material before the Council clearly recognised that Gardiner Park was listed as a heritage item and assessed the impact of the activity on the park as whole, as well as on certain features and structures that contribute to the heritage significance of the park.
The Council gave many examples of this holistic assessment of the heritage impacts of the activity. I will refer to some of these examples.
The REF, in the Executive Summary under the heading of "non-Aboriginal heritage", found: "- Gardiner Park is listed as local heritage item I79 on the Rockdale LEP. Construction of the proposal has the potential to impact on elements of the listing if not mitigated, including WWII slit trenches, the sandstone retaining walls and heritage garden along the western and southern boundaries of the site, and mature trees in the corners of the sports fields. - The installation of synthetic turf, recessive fencing, and sympathetic pedestrian pathways would have no impact on the identified significances of Gardiner Park under any of the significance criterion and as a site of public recreation and organised sports."
In section 4.2.2, ostensibly on the Heritage Act 1977, the REF noted: "Gardiner Park and several bordering lots including 23 Gardiner Avenue are listed under the Rockdale LEP as general heritage item 179. The heritage values of the Park have been taken into account during the design process and the upgrade is not anticipated to affect the heritage value of the park. Impacts to the heritage value of the park are discussed further in Section 0 [sic] and 6.9."
In section 6.2.3 and Table 6-6, within section 6.2 on noise and vibration, the REF assessed the impact of construction activities, particularly vibration intensive works, on structures of heritage significance in the park. The REF recommended: "- Vibration monitoring near to the heritage items (and the perimeter/retaining walls in particular) during vibration generating works to ensure that levels remain below the threshold for potential damage to heritage structures."
Section 6.3 of the REF is a comprehensive assessment of non-Aboriginal heritage in and around the park and in particular the heritage listing of the park. Section 6.3.2 on the existing environment recorded, as the Friends have earlier noted, that the heritage listing of the park includes the sandstone retaining walls at the entrance to the park at Wolli Creek Road and along the eastern boundary, sandstone steps, heritage garden and landscaping and mature trees on the perimeter of the field, but the identification of these items is inclusive, not exhaustive.
This section of the REF recorded that Gardiner Park had been assessed by the Conservation Management Plan (CMP) as being significant under all seven assessment criteria of the Heritage Council of NSW, as noted in Table 6-8. Whilst the comments on the application of these criteria referred to particular structures or features, such as the 1930s stonework throughout the park, they more generally referred to the park's value to the local community and broader sporting community, for the park's contribution to amenity as an established open space and a public landscape.
Section 6.3.3 of the REF assessed the potential impacts of both the construction and operation of the sports fields upgrade. The subsection on the impact of construction activities understandably focused on the impact on specific heritage features or structures of the construction activities. The identified impacts included those to which the Friends have earlier referred. The subsection on the impact of operation was more general in its assessment, drawing on the HIS. It found: "The HIS concluded that in regard to the Park, the installation of synthetic turf, recessive fencing, and sympathetic pedestrian pathways would have no impact on the identified significances of Gardiner Park under any of the significance criterion and as a site of public recreation and organized sports. The proposal would have minimal-to-no impact on the layout of the park and supports the historic use of the park by the community, thus ensuring its ongoing significance. The introduction of low fencing around the synthetic playing surface would protect against incursion and damage, and the high fencing at the goal ends will protect the public and adjoining properties and are consistent with the use of the sporting ground. The introduction of new infrastructure has been limited to one synthetic field, with the second field being returfed as an open grassed field. This would ensure that the Park retains a level of versatility in its use for general public recreation and community events. The introduction of pathways to/around Field One have been limited to preserve as much green space as possible. The addition of a high chain-link fence behind the two goal areas will be in a recessive colour to minimize its visual impact to the heritage listing."
Section 6.3.4 and Table 6-9 recorded the safeguards and management measures, including to minimise and monitor for vibration impacts.
Section 6.11 of the REF assessed the socio-economic impacts of the activity, including on the heritage value of the park. The REF found in section 6.11.1: "The park retains considerable stonework, brick structures and substantial plantings from the 1930s. All of this early infrastructure greatly contributes to the distinguishing landscape character of Gardiner Park. The Heritage Impact Statement (Sue Rosen Associates, 2020) determined that the proposal would have minimal-to-no heritage impact on the layout of the park and supports its historic use by the community for sporting and public recreation, thus ensuring its ongoing significance."
In section 6.11.2, the REF assessed the socio-economic impacts of construction activities on the heritage value of the park, concluding: "The construction works have the potential to impact heritage structures such as the sandstone walls, mature trees, and WWII slit trenches. This infrastructure contributes to the distinguishing landscape character and heritage value of Gardiner Park. However, the Heritage Impact Statement (Sue Rosen Associates, 2020) determined that the proposal would not impact the heritage value of the park."
The REF assessed the potential socio-economic impacts of the operation as: "The main objectives of the proposal are to provide improved long-term recreational facilities for the community. Accordingly, the proposal would have positive social outcomes. The proposal would result in a minor loss of available passive recreation land as fencing of the new synthetic playing fields would restrict uses such as dog walking. In addition, as these facilities are intended to provide for organised recreational activities (particularly soccer) they may become less available for passive and informal recreational activities as the facilities are booked by sporting groups. A synthetic cricket pitch would also no longer be available at Gardiner Park. Overall, the proposal would not result in any significantly negative socio-economic impacts but will result in positive social outcomes through improved recreational facilities."
Appendix A to the REF included a "Clause 228(2) Checklist". This refers to cl 228 of the Environmental Planning and Assessment Regulation 2000 which prescribed the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment under s 5.5 and s 5.7 of the EPA Act. Amongst the factors and impacts considered in the checklist were: Factor Impact a) Any environmental impact on a community? The proposal is not expected to have a negative impact on the community. Gardiner Park is a locally listed heritage item that serves as a place of recreation for many community groups and residents in the area. The upgrade of two fields, one grass and one synthetic, would increase the usability of the park to meet the demands of the growing population and make it more accessible during wet weather. d) Any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality? The proposal would provide improved recreational facilities at Gardiner Park. Gardiner Park serves as a place of recreation for many community groups and residents in the area. The upgrade of two fields, one grass and one synthetic, will increase the recreational value of the local area. However, there would be temporary impacts associated with dust, noise and visual amenity duration construction. The proposal will also require minimal vegetation trimming. e) Any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations? Gardiner Park is a locally listed heritage item that serves as a place of recreation for many community groups and residents in the area. The upgrade of two fields, one grass and one synthetic, would pose no significant impacts to the heritage value of the park as a result of the proposal.

[10]

The REF annexed the HIS by Sue Rosen Associates dated May 2020. Material portions of that study were extracted or paraphrased in the REF. I will not repeat those parts that have already been referred to. Some other parts are, however, worth referring to.
In section 2.3 on heritage status, the HIS noted that Gardiner Park is a listed heritage item and included an extract from the Heritage Map Sheet showing the park. Section 4.1 of the HIS described in words and photographs the physical evidence of the heritage significance of the park. Section 5 described the archaeological potential of the park. Section 6 assessed the heritage significance of the park. It noted the park had been assessed by the CMP as being significant under all seven assessment criteria and summarised that assessment of significance. The HIS then set out this statement of significance: "Gardiner Park is of considerable value to its local community and the City of Rockdale as one of the earlier sites dedicated for public recreation in the Rockdale LGA and retains its original 1913 area as well as an additional allotment. The park area is integrally associated with early residential subdivisions within the suburbs of Arncliffe and Banksia and, though not generally prominent owing to its geographic context, it provides an important landscape focus within its local neighbourhood. Gardiner Park retains important layout and fabric from earlier formative phases including fabric that attests to the extremely difficult economic environment of the 1930s Great Depression when hundreds of unemployed men were given Government support to undertake substantial construction projects for the benefit of the community. The park retains considerable stonework, brick structures and substantial plantings from the 1930s. All of this early fabric greatly contributes to the distinguishing landscape character of Gardiner Park. The park continues to be regularly used for both organised sports, including cricket and football, and informal recreation as was originally intended maintaining a known continuity of use of almost 80 years."
Section 7 of the HIS described the activity. Section 8 assessed the heritage impact of the activity by reference to the provisions of the Infrastructure SEPP, RLEP (cl 5.10) and Rockdale DCP, as well as the CMP. In section 8.2 on RLEP, the HIS stated it "assesses the extent of impacts on the significance of the heritage item (Gardiner Park) and heritage items in the vicinity." In section 8.3 on Rockdale DCP, the HIS stated that it "assesses the proposal against the conservation policies of the CMP and is compliant with them" and that "the proposal has no impact on specific heritage structures, their curtilage or setting. The works are reversible and are appropriate for the continued historic use of the sporting ground."
In relation to control 5 in Rockdale DCP that "development of a heritage item…does not have a negative impact upon the heritage significance of the item", the HIS stated: "Compliant. As the item's chief significance lies in its community use for social, recreational and sporting activities, the synthetic playing field will have no impact on the Park's capacity to demonstrate that significance. The installation of a perimeter fences [sic] and behind the goal posts is consistent with such use. The above-ground works will be reversible."
In section 8.3.2 on the CMP, the HIS addressed the issue of whether the activity was compliant with CMP policy 52 that the park should not be exclusively used for one code of sport: "CMP policy 52 recognises that while the park makes provision for specific sporting codes and events, that it should be managed in such a way that avoids the perception that it [is] exclusively used by any one code of sport or community organization: In managing Gardiner Park ensure that it remains inclusive of the whole community and all recreational user groups and prevent the perception that the park belongs exclusively to any one group. The proposal provides one dedicated synthetic football field and one grass field. While this requires the removal of the synthetic cricket pitch, public records note that the grounds have been used for only approximately 5 competitive cricket matches during the 19/20 summer season and is not patronized by a local cricket club or association as their home ground. Gardiner Park has had a long-standing winter user agreement with Banksia Tigers Football Club, who use the field as their home ground. Versatility will be preserved at the field as Field Two will continue to be an open grassed area, which will enable use of the space by the community for general recreation and for outdoor community events. New services, infrastructure and facilities will need to be installed from time to time at Gardiner Park; the installation of synthetic playing surfaces is such an example to enable the park to be viably utilised by sporting organisations. The underpinning aim of such works should be to install renewals and upgrades which complement and enhance the social value of the park, while maintaining, if not improving, its aesthetic values."
Section 9 of the HIS summarised the assessment of heritage impact: "The proposal has been assessed against the significance identified in the 2013 Conservation Management Plan (updated 2015) commissioned by Rockdale Council and Council's LEP and DCP. This assessment has concluded that in regard to the Park: The installation of synthetic turf, recessive fencing, and sympathetic pedestrian pathways will have no impact on the identified significances of Gardiner Park under any of the significance criterion and as a site of public recreation and organized sports. The key significances with most potential to be affected by the proposal: - Criterion (c) Aesthetic related to its origins in the late 19th century as a park and its development across the 20th century; and - Criterion (d) Social related to its use [as] a community and sporting facility will not be negatively impacted by either the installation of synthetic turf or fences, which draw on the essential elements, but does not replicate, designs common in the late 19th or early 20th century for football or cricket ovals. The addition of a high chain-link fence behind the two goal areas will be in a recessive colour to minimize its visual impact, while protecting visitors during games. It is also concluded that there will be no impact on the Park's capacity to demonstrate elements associated with any of the other criterion. … The installation of a larger stormwater drainage pipe under the middle of the playing surface has a low likelihood to disturb significant sub-surface structures or foundations as the traditional use as an open recreation space means it has avoided built development. While the WWII slit trenches are inside the area of potential impact from the proposed works, they have long been infilled and covered by the playing surface. It is considered unlikely that any ground levelling works will dig deep enough to disturb any remains of their previous form. This being said, contractors performing the works should be made aware of the location of the slit trenches, and precautions should be taken to ensure that if any remains or relics of previous usage are located, they can be appropriately managed. Likewise, where excavation in or around any of the 1940s embankments."
Section 10 of the HIS set out conclusions and recommendations, including: "The proposal will have minimal-to-no impact on the layout of the park and supports the historic use of the park by the community, thus ensuring its ongoing significance. The introduction of low fencing around the synthetic playing surface will protect against incursion and damage by motor bikes and dogs, and the high fencing at the goal ends will protect the public and are consistent with the use of the sporting ground. The introduction of new infrastructure has been limited to one synthetic field, with the second field being left as an open grassed area. This will ensure that the Park retains a level of versatility in its use for general public recreation and community events. The introduction of pathways to/around Field One have been limited to preserve as much green space as possible."
The REF and annexed HIS were summarised in and appended to the Council's environmental assessment. The Council's environmental assessment specifically stated: "The Gardiner Park REF has been examined and is accepted by Bayside Council."
The Council's environmental assessment summarised the impact of the activity on the environment in Table 1 and the relative level of environmental impact (negligible, minor or moderate or above) in Table 2. The summary in Table 1 is drawn from and to a large extent paraphrases the assessment of heritage impact in the REF and HIF. This is evident in the summary of the impact of construction and operation of the activity on non-Aboriginal heritage and the recommended safeguards.
On the impacts of construction on non-Aboriginal heritage, the Council's environmental assessment noted: "Construction activities would result in disturbance of the ground's surface through excavation of the sporting fields in the locally listed Gardiner Park. Construction works would generally be carried out in areas which have previously been disturbed as a result of excavation and/or reclamation/filling activities at both sites. The potential to cause harm to the specific heritage features of Gardiner Park is considered moderate as the proposed works would be confined to the sporting fields and access driveway, an area of Gardiner Park which has undergone substantial disturbance, modification and periodic maintenance since its establishment. The installation of a larger stormwater drainage pipe under the middle of the playing surface has a low likelihood of disturbing any subsurface structures or foundations as its ongoing uses and recreation space has meant it has avoided built development in the past. While the WWII slit trenches are inside the area of potential impact from the proposed works, they have long been infilled and covered by the playing surface. It is considered unlikely that any ground levelling works will excavate deep enough to disturb any remains of the previous form, however, excavation is proposed to occur for the installation of upgraded stormwater pipes in this area to a depth of 450mm. Unless safeguards are implemented, there is potential for vibration generating works to impact on the sandstone retaining walls and heritage garden along the west and southern boundaries of the site. Vibration monitoring would be undertaken where vibration generating plant cannot be located outside the minimum working distance for cosmetic damage to the heritage item. Construction of the synthetic field may required the trimming of mature trees in the corners of the sports fields. These trees form part of the Gardiner Park heritage listing and their modification, to be overseen by a qualified arborist, poses a minor impact to the heritage park listing. As outlined in the CMP all Council staff and contractors involved in the construction work should be briefed on the possibility of relics being present and advised of their legal responsibility. This is particularly important around the location of the WWII trenches."
On the impacts of operation on non-Aboriginal heritage, the Council's environmental assessment noted: "The Heritage Impact Statement concluded that in regard to the Park, the installation of synthetic turf, recessive fencing, and sympathetic pedestrian pathways will have no impact on the identified significances of Gardiner Park under any of the significance criterion and as a site of public recreation and organized sports. The proposal would have minimal-to-no impact on the layout of the park and supports the historic use of the park by the community, thus ensuring its ongoing significance. The introduction of low fencing around the synthetic playing surface would protect against incursion and damage, and the high fencing of the goal ends will protect the public and adjoining properties and are consistent with the use of the sporting ground. The introduction of new infrastructure has been limited to one synthetic field, with the second field being returfed as an open grassed field. This would ensure that the Park retains a level of versatility in its use for general public recreation and community events. The introduction of pathways to/around Field One have been limited to preserve as much green space as possible. The addition of a high chain-link fence behind the two goal areas will be in a recessive colour to minimize its visual impact to the heritage listing. … Negligible long term impacts."
The Council also referenced the CMP itself, but the relevant discussion of Gardiner Park in the CMP is picked up in the discussion in the HIS and the REF earlier referred to.
Having regard to all of this material, the Council submitted that the Friends' claim in ground 2 that the Council misconstrued or misapplied the heritage listing of Gardiner Park in its assessment of the impacts of the activity on the heritage significances of the park is not made out.

[13]

The Friends' argument of no assessment of the modified activity

Ground 3 contended that the Council failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the modified activity, in breach of s 5.5(1) of the EPA Act.
The Friends contended that the duty in s 5.5(1) is ongoing (see Palm Beach Protection Group Inc v Northern Beaches Council at [260]), requiring assessment of the environmental impact not only of the activity of the sports fields upgrade as originally proposed and approved on 27 October 2020, but also of that activity as it was later modified on 15 February 2021. The object of the assessment required by s 5.5(1) was the modified activity as a whole, not just the individual modifications to the activity.
The Friends submitted that the Council, in its second determination on 15 February 2021, assessed the environmental impacts only of the modifications and not the modified activity. The Friends noted that the Council's environmental assessment described the activity being assessed as "Modification to Approved Works", by which the Council was seeking to modify the originally approved works in three respects involving the Wolli Creek Road ambulance driveway, the stone retaining walls near the south eastern boundary and the existing stormwater pipe. The Council's environmental assessment expressly stated (in bold) that: "This assessment is confined to the proposed Modification to the activity approved [on] 27th October 2020."
That confinement of the assessment to the proposed modification was evident in the later section headed "Modification Assessment", which assessed the environmental impacts of the modification under the subheadings of "Traffic and Transport", "Non-Aboriginal heritage" and "Drainage".
The Friends noted that the Council could have been exempted from the duty under s 5.5(1) to assess the environmental impacts of the modified activity by the operation of s 5.4 of the EPA Act. That section provides: "Sections 5.5 and 5.7 do not apply to or in respect of the following (despite the terms of those sections) - (a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact, (b) a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister, (c) an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Division."
The only relevant exemption in this case is in paragraph (a). The environmental impact of the activity as originally proposed had been assessed in making the first determination on 27 October 2020. In order for the exemption in paragraph (a) to apply, the modification of that activity must reduce the overall environmental impact of the activity. The Friends submitted that the modification in this case did not reduce the overall environmental impact of the activity, so that the exemption in s 5.4(a) did not apply. The Friends submitted that the Council's environmental assessment of the modification found that the overall environmental impact of the activity did not change, so that it could not be said that the modification of the activity will reduce the overall environmental impact of the activity.
The Friends noted that the Council's environmental assessment found that the proposed modification would cause no change (the language varied depending on the impact being considered) on the impacts of traffic and transport, non-Aboriginal heritage and drainage.
As to the impact on traffic and transport, one modification was to reduce the size of the trucks entering the park via the Wolli Creek Road ambulance driveway from the approved tip truck and trailer combination (known as a truck and dog) to a single tip truck. This would increase the number of trucks required to transport the fill from the site from 15-16 trucks a day to 23-25 trucks a day. Another modification, however, was to reduce the quantity of soil to be disposed of off-site, by using more soil in the batters and around the field. This would reduce the number of truck movements by 100 trucks during the busy construction traffic period. The net increase in truck movements as a result of using smaller trucks, less the reduction in soil leaving the site, was 150 trucks, giving a total of 650 movements over the month during which this component of the activity would take place. This equated to about an additional 7 movements per day.
The Council's environmental assessment found that: "The changed volume in trucks is acceptable in the context of the overall volume of traffic on local roads and impact in terms of noise, safety, visual impact and the like is therefore considered to also be minimal and acceptable. Manoeuvring movements through local streets and into the park will be simplified as a result of the ease of entering the site with small trucks. A traffic controller will also be in place."
The Council's environmental assessment concluded: "It is considered overall that there is no substantial change to the impact of truck movements during construction and the change does not result in the impact exceeding the less than significant impact threshold."
The Council's environmental assessment proposed new mitigation measures to manage the impact of an increase in truck movements.
The Friends submitted that this assessment of the impacts of the modification on traffic and transport found that there would be a net increase in truck movements but "no substantial change to the impact of truck movements". These findings, and the new mitigation measures proposed to manage the impact of increased truck movements, are not consistent with the modification reducing the overall environmental impact of the activity.
As to the impact on non-Aboriginal heritage, the proposed modifications included rearranging the proposed stormwater drainage system and retaining the existing major stormwater pipe in place, as well as providing additional support by a no-fines concrete mass structure to relieve the retention load from the stone retaining wall, while allowing water to drain out and away. The Council's environmental assessment found that these modifications would have no significant impact: "Based on the expert advice provided through Sue Rosen Associates, with all due care and practical protective measures installed for the duration of the works, there is considered to be no significant impact to the heritage fabric, setting, or heritage significance of the site. The change does not result in the impact exceeding the less than significant impact threshold."
The Council's environmental assessment proposed four new mitigation measures to protect the stone driveway pillars at the Wolli Creek Road entrance, the existing stormwater pipe, and the depression-era rock border near pit A-2.
The Friends submitted that this assessment of the impacts of the modification on heritage found that the modifications "did not change the overall assessment" of the environmental impacts of the original activity, but this did not involve a reduction in the overall environmental impact of the activity. Equally, the recommendation for new mitigation measures to manage the potential heritage impacts of the modifications was inconsistent with the modifications reducing the overall environmental impact of the activity.
In relation to the impact on drainage, the Council's environmental assessment found that the proposed rearranging of the stormwater management system and retaining the existing stormwater pipe in place involved a different arrangement but "the function remains the same and there is no change in impact". The other modification involving "the change in the method of backfilling of the pipe behind the original stone wall (ie using mass concrete) is an improvement in terms of structural stability".
The Friends submitted that this assessment of the modification to the drainage system found "no change in impact", which could not be considered to be a reduction in impact. Only the change in the method of backfilling over the pipe was an improvement in terms of structural stability, but that was not a relevant reduction in the overall environmental impact of the activity.
The Friends submitted, based on the Council's environmental assessment, that there is no evidence that the Council formed the opinion that the modified activity would reduce the overall environmental impact of the activity. In this circumstance, s 5.4 of the EPA Act did not apply to exempt the Council from assessing the environmental impact of the modified activity under s 5.5(1) of the EPA Act.

[14]

The Council's argument of assessment of the modified activity

The Council contested that it did not assess the environmental impact of the modified activity, in accordance with s 5.5(1) of the EPA Act, but even if it were to be found that it did not do so, it was not required to do so by s 5.4(1) of the EPA Act.
The Council submitted that the Council's environmental assessment, which was approved on 15 February 2021, expressly stated that it was an assessment under s 5.5 of the EPA Act. The determination was headed "Environmental Determination under Section 5.5". The terms of the determination pick up the language of s 5.5, finding that "the environmental impacts associated with modifications to proposed activity at Gardiner Park have been assessed to the fullest extent possible." The terms of the determination also reveal that the Council considered whether the modified activity was likely to significantly affect the environment so as to require an environmental impact statement under s 5.7 of the Act, finding that "the safeguards incorporated in the proposed activity result in it [being] unlikely to significantly affect the environment" and that "an Environmental Impact Statement under s 5.7 of the Environmental Planning and Assessment Act 1979 is not required."
The Council referred to the structure and content of the Council's environmental assessment. The environmental assessment described, in the "Background" section, the activity and its key features and referred to the REF and appendices assessing the environmental impact of the activity. At the conclusion of the Council's environmental assessment, relevant documents were listed, including the REF and appendices including the HIS, as well as the Council's environmental assessment of the activity dated 27 October 2020. The Council submitted that this earlier environmental assessment of the activity was thereby incorporated into the Council's environmental assessment of the modification to the activity.
The Council's environmental assessment described the proposed modification to the approved activity in the section "Modification to Approved Works". It noted that the proposed modification to the approved activity was referred to Sue Rosen Associates, who had assessed the heritage impacts of the activity in the HIS, for their assessment. Sue Rosen Associates issued on 12 February 2021 an Addendum to the HIS. The Addendum appended the HIS. The Addendum, read together with the HIS, assessed the heritage impacts not only of the modification but also of the modified activity.
The Council's environmental assessment summarised the findings and recommendations in the Addendum, including: "After consideration of the proposed works and review by Heritage Consultants it is considered the proposed Modifications do not change the overall assessment of the original proposal approved 27th October 2020 and the Gardiner Park REF is still a relevant assessment of the proposed activity. All safeguards and mitigation measures of the 2020 approval remain. However, there are a number of additional safeguards/mitigation measures that are required to be applied arising from the proposed Modification."
The Council noted that the section "Modification Assessment" did assess the environmental impacts of the modifications, but submitted that in doing so, it assessed the modified activity itself. This was evident with the assessment of the impact of the change in truck size and movements. What was being assessed was not simply the impact of the net increase in truck movements, but rather the impact of the total number of trucks of a smaller size that would result from the modification of the activity, having regard to the context of the overall volume of traffic on local roads, and manoeuvring movements through local roads and into the park, as well as in terms of noise, safety, visual amenity and the like.
This assessment of the modified activity was also evident with the assessment of heritage impacts. Whilst the Addendum to the HIS did address the proposed modifications, the assessment was not limited to the impact of those modifications but considered the impact of the modified activity as well. The conclusion in the Addendum that the proposed modifications "further mitigate impact to the heritage fabric at the site" necessarily entailed a comparative assessment of the heritage impact of the activity and the heritage impact of the modified activity. The conclusion stated in the Addendum, and reproduced in the Council's environmental assessment, that "there is considered to be no impact to the heritage fabric, setting, or heritage significance of the site" also indicated an assessment of the impact of the modified activity on the site (Gardiner Park) as a whole.
The Council's environmental assessment of the change in arrangements for stormwater drainage necessarily considered the resultant changed arrangements for the modified activity, finding that "although the arrangement is different, the function remains the same and there is no change in impact."
In these circumstances, the Council submitted that the Friends have not established that the Council failed to assess the environmental impact of the modified activity as required by s 5.5(1) of the EPA Act.
In the alternative, the Council submitted that the Friends have not established that s 5.4 of the EPA Act did not operate to make s 5.5(1) not apply to the modification of the activity. The Council noted that the Friends framed their challenge to be that the Council did not form the requisite opinion that the modification of the activity will reduce its overall environmental impact. The Council submitted that the Friends bear the onus of proving that fact. The Council submitted that the Friends have not done so.
The Friends' reliance on selective statements in the Council's environmental assessment on the lack of change in individual impacts is insufficient to discharge this onus. The Council noted that s 5.4(1) refers to a reduction in the overall environmental impact of an activity, not a reduction in individual impacts. The Council submitted that the Friends' argument that the modification of the activity did not reduce its environmental impact is not made out on a fair reading of the Council's environmental assessment as a whole and in context, including the incorporated documents of the REF and its appendices and the HIS and the Addendum to the HIS.

[15]

No breach of s 5.5 of the EPA Act for the modified activity

I find that the Friends have not established that the Council breached s 5.5(1) of the EPA Act by failing to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the modified activity. The question of whether the Council assessed the environmental impact of the modified activity, as required by s 5.5(1), rather than assessing only the environmental impacts of the modification of the activity, is one of fact. The Friends have selected certain statements in the Council's environmental assessment that refer to the environmental impact of one modification or another as establishing that the Council did only assess the environmental impact of the modification of the activity, rather than the modified activity as a whole. I agree with the Council's submission, however, that when regard is had to the whole of the Council's environmental assessment, including the incorporated and referenced documents, the Council can be seen to have assessed the environmental impact of the modified activity. I adopt the Council's analysis of the Council's environmental assessment, summarised above, that establishes that the Council undertook an assessment under s 5.5(1) of the EPA of the modified activity.
That assessment of the environmental impact of the modified activity included a particular assessment of the environmental impacts of various modifications, but that particular assessment did not circumscribe the scope of the assessment of the environmental impact of the modified activity. Indeed, the assessment of the environmental impact of particular modifications was the means by which the environmental impact of the activity as so modified was able to be assessed. This is evident with the traffic and transport impacts, where the impact of trucks and traffic generated by the activity as modified was assessed; the heritage impacts, where the impacts of the activity as modified on the heritage fabric, setting and heritage significance of the site was assessed; and the stormwater drainage impacts, where the impacts of the different stormwater drainage system for the modified activity was assessed.
It was not necessary, in order for the Council to assess the environmental impacts of the modified activity under s 5.5(1) of the EPA Act for the Council to have produced a Review of Environmental Factors as it had done in order to assess the environmental impacts of the original activity. At the time of the Council's determination on 15 February 2021, there was no prescribed form or document for the environmental impact assessment undertaken under s 5.5(1) of the EPA Act and cl 228 of the Environmental Planning and Assessment Regulation as there would have been if the activity was likely to significantly affect the environment, which would have required an environmental impact statement under s 5.7 of the EPA Act. The compilation of documents assessing the environmental impact of the modified activity in this case, being the Council's environmental assessment approved on 15 February 2021 and the incorporated or appended documents including the REF, the HIS and the Council's environmental assessment of the activity dated 27 October 2020 and the Addendum to the HIS, sufficed as an assessment of the environmental impact of the modified activity for the purposes of s 5.5(1). As the Council submitted, when these documents are read as a whole and in context, the Friends' argument that the Council did not consider the environmental impact of the modified activity as required by s 5.5(1) is not made out.
This conclusion makes it unnecessary to determine whether, if the Council had failed to consider the environmental impacts of the modified activity as required by s 5.5(1), the Council was exempted from doing so by the operation of s 5.4 of the EPA Act. I will only make a few comments on the operation of s 5.4.
Section 5.4 operates to cause s 5.5 and s 5.7 of the EPA Act not to apply to "(a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact". The operation of s 5.4 is conditioned on the existence of the objective fact that the modification will reduce the overall environmental impact of the activity, not on the determining authority's satisfaction of that fact.
In this regard, the basis of the Friends' challenge to the operation of s 5.4(1) in this case is unsound. The operation of s 5.4(1) did not depend on the Council forming the positive opinion of satisfaction that the modification of the activity will not reduce its overall environmental impact. Instead, s 5.4 will operate to make s 5.5(1) not apply if the modification of the activity will reduce its overall environmental impact as a matter of fact.
The onus of establishing whether that fact exists or does not exist rests on the person claiming that s 5.4 does or does not operate in the circumstances. Here, that person is the Friends. The Friends claim that s 5.4 did not operate to relieve the Council from performing the duty under s 5.5(1) to assess the environmental impact of the modified activity. That is an element in their claim that the Council breached s 5.5(1).
The discharge of this onus required the Friends to establish that the modification of the activity will not reduce its overall environmental impact. The Friends sought to discharge this onus by relying on the Council's environmental assessment of the modification of the activity. That is one way of doing so. The Friends could also have led other evidence to establish that the modification of the activity will not reduce its overall environment impact. The Council equally could have led other evidence to establish that the modification of the activity will reduce its environmental impact.
As I have earlier said, it is unnecessary for me to determine whether the evidence that was tendered of the Council's environmental assessment of the modification of the activity established that the modification of the activity will or will not reduce its overall environmental impact. It matters not whether s 5.4 operated to relieve the Council from performing the duty under s 5.5 to assess the environmental impact of the modified activity because I have found that the Friends have not established that the Council failed to perform the duty under s 5.5(1) to assess the environmental impact of the modified activity.
For these reasons, ground 3 is not established.

Friends of Gardiner Park Inc v Bayside Council

At a glance

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Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)

Cited By (1)