Local Democracy Matters Incorporated v Infrastructure NSW

Court of Appeal (NSW)|2019-03-15|Before: Leeming JA, Mr J, Ms J

Background events

On 24 November 2017 the New South Wales Government announced its intention to demolish and rebuild the Stadium.
On 4 April 2018 Infrastructure NSW requested the Secretary of the Department of Planning and Environment (Department) to specify the Secretary's Environmental Assessment Requirements (SEARS) for the preparation of an Environmental Impact Statement (EIS). The request was made pursuant to Sched 2, cl 3(1) of the EPA Regulation, which at the relevant time stated that: "Before preparing an environmental impact statement, the responsible person must make a written application to the Secretary for the environmental assessment requirements with respect to the proposed statement."
The EIS was required because s 4.12(8) of the EPA Act provides that: "A development application for State significant development … is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant …". The proposed development is a State significant development. [13]
On 3 May 2018 the Secretary issued the SEARS. They described the development as follows: "Staged development application for the redevelopment of Sydney Football Stadium including: • a concept proposal for the envelope of the new stadium and a maximum capacity of 45,000 seats, new retail and functional facilities, new playing pitch and ancillary entertainment facilities; and • concurrent Stage 1 works comprising demolition of the existing stadium to ground level only." (Emphasis in original.) The SEARS were placed on the Department's website as required by the EPA Regulation. [14]
Division 4.4 of the EPA Act applies to concept development applications and to consents granted on the determination of those applications. [15] Section 4.22 of the EPA Act provides as follows: "4.22 Concept development applications (cf previous s 83B) (1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications. (2) In the case of a staged development, the application may set out detailed proposals for the first stage of development. (3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application. (4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection. (5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications. Note. The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2))."

Legislation

LDM submitted that the exhibition period that applied at the relevant time was determined by cl 83 of the EPA Regulation. Clause 83 stated that: "For the purposes of section 89F(1)(a) of the [EPA] Act, the minimum submission period is to be 30 days". Clause 83 of the EPA Regulation was repealed as from 1 September 2018.
Section 89F(1) of the EPA Act provided at the relevant time as follows: "(1) As soon as practicable after a development application is made for consent to carry out State significant development, the Secretary must: (a) place the application and any accompanying information on public exhibition for a period (of not less than 30 days) prescribed by the regulations (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (b), and (b) cause notice of the application to be given and published in accordance with the regulations." Section 89F was repealed as from 1 March 2018 [22] and thus was not in force when the Concept DA was placed on public exhibition.
As has been noted, the respondents relied on s 2.22 and Sched 1 cl 9 of the EPA Act to support their contention that exhibition for 28 days satisfied the statutory requirements. Section 2.22(1), which came into force on 1 March 2018 in consequence of the enactment of the Environmental Planning and Assessment Act 2017 (NSW) (EPA Amendment Act 2017), provides as follows: "Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions".
Division 2 of Part 1 of Schedule 1 to the EPA Act is headed "Minimum public exhibition periods for development applications …". Schedule 1 [9] in Division 2 states as follows: "9 Application for development consent for State significant development (cf previous s 89F) 28 days."
Part 2 of Schedule 1 to the EPA Act is headed "General provisions". Schedule 1 [21] within Part 2 provides that the regulations may amend Part 1 of Schedule 1 to prescribe additional mandatory requirements for community participation or make other changes to Part 1.
LDM relied on cl 4A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (Transitional Regulation 2017), which relevantly provides as follows: "(2) A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to a provision of the Act that has been renumbered or relocated by the Environmental Planning and Assessment Amendment Act 2017 is taken to be a reference to the renumbered or relocated provision. Anything done or omitted to be done under any such provision of the Act before it was renumbered or relocated is taken to have been done or omitted under the provision as renumbered or relocated. (3) A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to any such renumbered or relocated provision of the Act is taken to include a reference to the provision before it was renumbered or relocated. (4) This clause is subject to any contrary intention in the provision in which a relevant reference occurs. (5) In this clause: relocated includes repealed and re-enacted, with or without modification. Note. See the concordance table of renumbered and relocated provisions at the end of historical notes to the in-force version of the Environmental Planning and Assessment Act 1979 on the NSW legislation website." Sub-clause (5) was added to cl 4A on 16 March 2018, fifteen days after the remainder of cl 4A came into force.

LDM's contentions

LDM submitted that cl 83 of the EPA Regulation, which was in force when the Concept DA was publicly exhibited, should be read as referring not to the repealed s 89F of the EPA Act but to Sched 1 [9] and [21] to the EPA Act. On this basis, the minimum period for public exhibition at the relevant time was 30 days rather than 28 days. Accordingly, so LDM argued, the Minister breached s 2.22(1) of the EPA Act by failing to comply with a "mandatory requirement[] for community participation".
Mr Lazarus, who presented this argument, submitted that the breach of s 2.22(1) of the EPA Act rendered the purported consent invalid by reason of s 4.60(2)(a) of the EPA Act. This provision applies to a development consent granted or purporting to be granted, by the Minister and states as follows: [23] "(2) The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows: (a) A requirement that a development application to carry out State significant development or designated development and its accompanying information be publicly exhibited for the minimum period of time. …" [24]
LDM contended that s 89F(1)(a) of the EPA Act was a "relocated" provision within the meaning of cl 4A(2) of the Transitional Regulation 2017. According to Mr Lazarus, s 89F(1)(a) was "relocated" to Sched 1 [9] and [21] of the EPA Act when the Amending Act 2017 came into force on 1 March 2018. The relocation occurred, so he argued, because Sched 1 [9] and [21] together perform the same function as s 89F performed prior to 1 March 2018. That is, Sched 1 [9] now specifies the minimum period for public exhibition of a relevant development application and Sched 1 [21] confers power to make regulations to prescribe additional mandatory requirements. These are the functions previously performed by the repealed s 89F(1)(a) of the EPA Act.
It follows on this argument that cl 83 of the EPA Regulation prescribes the minimum submission period to be 30 days for the purposes of Sched 1 [9] and [21] of the EPA Act. It seems to be implicit in the argument that cl 83 is effectively to be regarded as an exercise of the power in Sched 1 [21] to make regulations amending Part 1 of the Schedule to the EPA Act even though cl 83 is not in Part 1 of the Schedule and even though cl 83 predated the coming into force of Sched 1 [21].

Reasoning

Quite apart from the last-mentioned difficulties, there are at least two reasons why LDM's contention must be rejected. The first is that the Amending Act 2017 did not "relocate" the repealed s 89F(1)(a) of the EPA Act to Sched 1 [9] and [21] of the current EPA Act.
It is correct, as Mr Lazarus submitted, that the expanded definition of "relocated" in reg 4A(5) of the Transitional Regulation 2017 means that a provision in a repealed Act can be "relocated" to the amended Act, even if the provision is modified. But the expanded definition still requires that the relevant provision be "repealed and re-enacted", albeit with "modification". [25]
Schedule 1 [9] of the EPA Act can only be understood when read with s 2.22 and the relevant headings in Div 2 of Part 1 of Sched 1. Read in this way Sched 1 [9] specifies a minimum period of 28 days for the public exhibition of a development application for a State significant development.
Unlike the repealed s 89F(1)(a) of the EPA Act, Sched 1 [9] says nothing about when the development application must be placed on public exhibition and makes no reference to "accompanying information". Schedule 1 [9] does not address what is to happen during the submission period or the manner in which an amended development application is to be dealt with. These matters are, however, addressed in s 89F(2), (3) and (4), provisions that must be read with s 89F(1). It is difficult to see how Sched 1 [9] can simply be regarded as a re-enactment of s 89F(1)(a), even allowing for modifications.
Schedule 1 [21] confers a general power to amend the provisions in Part 1 of the Schedule to prescribe additional mandatory requirements for community participation or to make other changes to Part 1. As envisaged by s 2.22 of the EPA Act, Part 1 of Sched 1 deals with a range of community participation requirements. Thus the regulation making power is very much wider than the power conferred by s 89F(1)(a), which was confined to prescribing the minimum period for the public exhibition of an application in respect of a State significant development. Schedule 1 [21] is clearly not a re-enactment of the repealed s 89F(1)(a) of the EPA Act. Nor is Sched 1 [21] a modified version of s 89F(1)(a): it is a new provision with a different scope and purpose.
The second reason for rejecting LDM's submission is that its construction of cl 4A(2) and cl 83 is inconsistent with the intention of Parliament as expressed in the EPA Amendment Act 2017. Clause 4A(4) of the Transitional Regulation 2017 states that the clause is subject to any contrary intention "in the provision in which a relevant reference occurs". In the present context the provision in which a relevant reference occurs would seem to be cl 83 of the EPA Regulation.
Whatever the effect of cl 4A(4) of the Transitional Regulation 2017, general provisions in a transitional regulation cannot be construed in a manner which is inconsistent with an intention clearly expressed in the amending (and amended) legislation. Section 2.22 and Sched 1 [9] of the EPA Act are clearly intended to reduce the minimum period for the public exhibition of a State significant development application from 30 to 28 days, subject to the exercise (in the future) of the regulation making power conferred by Sched 1 [21].
Whatever may have been the reason for the failure to repeal cl 83 of the EPA Regulation on 1 March 2017, when the EPA Amendment Act 2017 took effect, to read the general language of cl 4A(2) of the Transitional Regulation 2017 as maintaining the pre-existing position would subvert the intention clearly expressed in s 2.22 and Sched 1 [9] of the EPA Act. The object of the amendments was to bring about a relatively modest but nonetheless significant change in the mandatory requirements applicable to the public exhibition of State significant development applications. The minimum period of public exhibition was to be reduced from 30 to 28 days.
This conclusion as to the intent of the amending legislation is supported by the Explanatory Memorandum accompanying the Environmental Planning and Assessment Amendment Bill 2017. The Explanatory Memorandum stated that the Bill: "enhances community participation (including by requiring planning authorities to prepare community participation plans according to specified community participation principles) and by revising and consolidating minimum public exhibition requirements…" (Emphasis added.) More specifically, the Explanatory Memorandum explained that the proposed Sched 1 to the EPA Act sets out: "the draft planning instruments and decisions that are to be placed on public exhibition and the requisite period of exhibition". (Emphasis added.)
We should record that Mr Lazarus sought to derive comfort from the "concordance table" of renumbered and relocated provisions referred to in the Note to cl 4A of the Transitional Regulation 2017. The table shows the provisions in force immediately before the commencement of the EPA Amendment Act 2017 and the corresponding decimal section numbers following the amendments. The provision corresponding to s 89F is said to be Sched 1 [9] (but not Sched 1 [21]).
The table is not part of the EPA Act. [26] In any event the table is for "the purposes of comparison" and says nothing about whether particular provisions in the amended EPA Act are "relocated" from the unamended version of the legislation.
Mr Lazarus also submitted that unless LDM's interpretation was adopted there would be no work for cl 83 of the EPA Regulation to do. There is of course no doubt that cl 83 had work to do before the repeal of s 89F. It is not clear why cl 83 remained in the EPA Regulation for six months after the repeal of s 89F. A possible reason is that the Transitional Regulation 2017 provided that if anything commenced under a repealed provision of the EPA Act was not completed immediately before the repeal the thing commenced could be completed. [27] It may have been thought that processes that had been commenced under s 89F could be completed under that provision, notwithstanding its repeal, and that cl 83 should remain in to accommodate that possibility.
In any event, whatever operation cl 83 may or may not have had after 1 March 2018, the failure to repeal cl 83 on that date cannot justify interpreting cl 4A(2) of the Transitional Regulation 2017 and Sched 1 [9] and [21] of the EPA Act in the manner contended for by LDM.
For these reasons the primary Judge was correct to conclude the Minister's actions in placing the Concept DA on public exhibition for 28 days did not involve a breach of any provision of the EPA Act.

Discretion

The notice of contention invited the Court, in the event that it upheld LDM's argument on the minimum period for public exhibition of the Concept DA, to exercise its discretion under s 9.46 of the EPA Act to refuse relief or, alternatively, to make an order pursuant to s 25B of the LEC Act specifying terms that would validate the consent. [28]
Having regard to the conclusion reached in relation to the minimum period of public exhibition of the Concept DA, it is not necessary to address the notice of contention. It is enough to say that if LDM's argument had been upheld there would be a strong argument for the exercise of the discretion, at least to the extent of withholding injunctive relief. Since the period for making submissions was advertised publicly as 28 days, it is difficult to see how anyone was disadvantaged by the Concept DA being placed on public exhibition for that period rather than 30 days. There was also evidence that submissions received after the 28 day period were taken into account in the decision-making process. While it is important to recognise that the obligation to place a Concept DA on public exhibition is a public duty imposed by Parliament, [29] that consideration is not necessarily determinative. [30]

Sydney LEP

LDM submitted in this Court, as it did before the primary Judge, that the evidence established that the Minister had not formed the opinion regarding design excellence required by cl 6.21(3) of the Sydney LEP.
Clause 6.21 relevantly provides as follows: "6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design."
It was common ground before the primary Judge that cl 6.21 applied to the Concept DA because it was an application for "development involving the erection of a new building" within the meaning of cl 6.21(2).

Primary Judgment

The primary Judge rejected LDM's contention essentially for the following reasons: [31] "The Applicants … submitted that the references relied on by the Minister do no more than allow a submission that he was made aware of the issues in subcl (4), not that he formed the necessary opinion he was required to by subcl (3). The Applicants bear the onus of proving that per [Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; 178 LGERA 411 at [58] (Tobias JA, Giles and Hodgson JJA agreeing)]. The passages extracted above show that the Minister was told about the requirement in cl 6.21(3) in relation to the concept proposal including expressly in relation to the building envelope for Stage 1 in the EIS. The Minister had before him ample consideration of relevant matters identified in subcl (4) relevant to the formation of an opinion about the design excellence of the stadium building envelope. All this material does give rise to the inference that he was able to and did form the opinion required by cl 6.21(3) in relation to the concept proposal. This material does more than draw the Minister's attention to relevant matters, as observed is generally necessary at [67] in Caroona. The Applicants have not discharged the onus of proof they bear of proving the negative, that he did not form such an opinion."

LDM's submissions

Mr Robertson SC, who presented LDM's argument in this ground of appeal, observed that it was common ground that cl 6.21(3) of the Sydney LEP required the Minister to form the opinion that the proposed development exhibited "design excellence". He identified the issue dividing the parties as purely one of fact, namely whether LDM had established on the evidence that the Minister had not formed the requisite opinion.
Mr Robertson accepted that LDM bore the onus of establishing that the Minister did not form the opinion as required by cl 6.21(3). He also accepted that cl 6.21(3) required only that the Minister form an opinion as to the design excellence of the concept proposal, not of any architectural or other plans that might be drawn up for the construction of the new stadium. Indeed Mr Robertson went further and acknowledged that there was material in the EIS, especially in Appendix D (entitled "Design Excellence Strategy"), that would have allowed the Minister to have formed the requisite opinion. He submitted, however, that although the evidence indicated that the Minister considered the material addressing design excellence, it did not establish that the Minister had actually formed the opinion that the Concept DA exhibited design excellence.
Mr Robertson relied on the absence of an express statement in the briefing note, Assessment Report or Notice of Decision that the Minister was required to form the opinion or had in fact formed the opinion. He pointed out that Preston CJ of the LEC gave judgment in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council (Uniting Church) [32] on 11 October 2018, after the Minister granted consent to the Concept DA. In Uniting Church his Honour construed cl 7.10 of the Parramatta Local Environmental Plan 2011 which is in substantially the same terms as cl 6.21 of the Sydney LEP. Preston CJ said this of cl 7.10: [33] "The conclusion that cl 7.10 can apply to concept proposals for the development of a site involving the erection of a building is not displaced by the requirement in cl 7.10(4) to have regard to certain matters in considering whether the proposed development exhibits design excellence. The requirement that the consent authority "must have regard to the following matters" in cl 7.10(4) is to be construed as a requirement to have regard to such of the matters in cl 7.10(4) as are of relevance to the development the subject of the development application (including a concept development application). The developments to which cl 7.10 applies, even though they all could be said to involve the erection of a building by reason of cl 7.10(2), nevertheless will differ from one another and have different likely impacts on the environment. The matters in cl 7.10(4) of relevance to a particular development the subject of a development application will therefore differ. If a matter is not of relevance to a particular development, the consent authority is not able to have regard to it. The consent authority does not breach its duty under cl 7.10(4) by not having regard to a matter that is not relevant to the development the subject of the development application." (Emphasis added.)
Mr Robertson submitted that the Minister and the Department misconstrued cl 6.21 of the Sydney LEP because they did not have the benefit of the decision in Uniting Church. Until Preston CJ delivered judgment, so Mr Robertson submitted, it was not generally recognised that a provision in the form of cl 6.21(3) of the Sydney LEP applied to a concept development application. It was therefore not surprising that all parties involved in the consent process had assumed that cl 6.21 of the Sydney LEP did not require the Minister to be satisfied of design excellence at the concept stage of the project and that formation of the necessary opinion could be postponed to Stage 2.

Reasoning

As Mr Beasley pointed out in his submissions, a "concept development application" as defined by s 4.22(1) of the EPA Act contemplates that the application will set out concept proposals for the site, but that detailed plans for the development of the site will be the subject of one or more subsequent development applications. Preston CJ recognised this in Uniting Church, when his Honour observed that a provision such as cl 6.21 of the Sydney LEP only requires the consent authority to have regard to matters that are relevant to the concept development application. It follows that in the present case the Minister had only to form an opinion as to design excellence by reference to matters relevant to the Concept DA. The Minister did not have to form an opinion about matters relevant only to a later stage of the development for which a separate consent was required.
It also follows that not all matters identified in cl 6.21(4) as bearing on design excellence are relevant to a concept development application. For example, cl 6.21(4)(a) refers to a high standard of architectural design, materials and detailing as a consideration relevant to design excellence. Since the Concept DA in the present case did little more than outline the envelope of the proposed new structure on the site, the matters identified in cl 6.21(4)(a) of the Sydney LEP had little significance for the opinion the Minister was required to form.
The material before the Minister included sections analysing whether the Concept DA exhibited design excellence. The EIS incorporated a table which addressed compliance with legislation and environmental planning instruments. The table specifically referred to cl 6.21 of the Sydney LEP and stated that: "The proposal provides a building envelope capable of achieving the highest standard of architectural, urban, landscape, and environmental design. A competitive design process will be undertaken, as outlined in Appendix D."
Annexure D to the EIS stated that the proposed concept design would exhibit design excellence "where applicable to the building envelope" as explained in the document. Annexure D summarised the approach to Stage 1 of the Concept DA: "The Stage 1 Concept Proposal will include concept plans for the stadium envelope. The proposed plans will: (a) meet the specifications for the Project set out in Part 1 as applicable to the stadium envelope; (b) exhibit design excellence in accordance with the requirements of clause 6.21(3) of the [Sydney LEP] and the matters listed in clause 6.21(4) as applicable to the stadium envelope. Clause 6.21(4) of the [Sydney LEP] is extracted in Attachment B. The matters that may be applicable to the stadium envelope include subclauses 4(d)(iii), (iv), (v), (vii), (ix), (x), (xi) and (xii); and (c) meet the requirements of the Urban Design Guidelines for the project as applicable to the stadium envelope" As can be seen, the summary identified the matters in cl 6.21(4) that could apply to the concept proposal insofar as it incorporated the proposed building envelope of the new stadium.
The EIS was prepared on behalf of the applicant for development consent. However, the Notice of Decision expressly adopted the findings and recommendations of the Assessment Report as the reasons for the Minister's decision. The Assessment Report like the EIS, considered whether the proposal exhibited design excellence.
The Executive Summary to the Assessment Report addressed the issue under the heading "Built form and urban design": "The existing [Stadium] has varying roof levels due to the shape of the roof and the masts on top. The Department notes that the building envelope of the new stadium would be taller and larger than the highest points of the existing stadium, especially along the northern and southern edges, to accommodate the additional functional parameters within the stadium structure. The setting of nearby heritage items, including the [Sydney Cricket Ground] and the Moore Park Heritage Conservation Area in general, would also be altered by the proposed stadium footprint. The Applicant's assessment has argued that the proposed building envelope would not have an unreasonable impact on the nearby residential areas, the heritage items and the parklands, both visually and in terms of overshadowing. The Department considers that additional visual impacts due to the additional height and footprint would not significantly impact on the available iconic views or solar access to residences in the locality or the public open spaces. The Department is also satisfied that the future building envelope would have negligible adverse impact on the setting or historic significance of nearby heritage items or archaeological resources. The Department notes that the detailed design of the future stadium is required to be finalised through a competitive design process and therefore must demonstrate design excellence. Any identified adverse visual impacts associated with the larger building envelope would need to be minimised during the future detailed design of the stadium and in accordance with the Applicant's Urban Design Guidelines (UDG) and Design Excellence Strategy, which was endorsed by the NSW Government Architect. Additionally, the Department considers that the proposed design of the stadium includes opportunities for creating public spaces around the stadium which improves publicly [sic] accessibility compared to the existing fenced stadium. The Department has recommended the following conditions, to ensure that the Stage 2 application achieves design excellence and minimises impacts on surrounding areas: • that a Design Competition be undertaken prior to the lodgement of the Stage 2 application • that the Stage 2 development application demonstrates design excellence and be consistent with the UDG • that the Stage 2 development application includes visual impact assessment, heritage impact assessment and solar access diagrams to demonstrate that the proposed enlarged building height and footprint does not unreasonably impact on the views available to the locality and does not overshadow or have adverse impacts on the SCG or the adjoining parklands • that the public spaces around the stadium maximise access and useability • that pedestrian connections through and around the site are maximised." (Emphasis added.)
Section 6.2.1 of the Assessment Report analysed "Design excellence" in detail. This section of the Assessment Report included the following passages: "To support the assessment framework of future development application(s) for the site, the Applicant's UDG outlines objectives and performance-based controls which future buildings and spaces should respond to. The intention is to guide the detailed design of the future Stage 2 development application(s) and to provide flexibility for the design of the stadium and ancillary buildings and spaces. Specifically, the UDG seeks to achieve: • integrate SFS into its parkland setting and reinforce the stadium's unique location • integrate with existing and proposed transport infrastructure and surrounding pedestrian paths • no design element that precludes the delivery of pedestrian links identified in the Moore Park Masterplan 2040 • support active transport uptake through the design and integration of the stadium into its surrounds • vehicular access and servicing requirements to both the SCG and Fox Studios through Paddington Lane • create an inviting space that stitches into its surrounding context • accommodate the functional requirements of a Tier 1 stadium within the loose fit envelope, located and oriented on-site to allow for external circulation and public domain spaces • a robust design for the public realm and open space integrating the future stadium to its context • facilitate a heightened event day experience for patrons • facilitate enhanced access and use of Moore Park and the surrounding areas • create multipurpose spaces, inviting entry points and event spaces that provides the public with new passive and active recreation opportunities to take advantage • high quality soft and hard landscape to extend the surrounding suburbs and context in to the stadium site • include a variety of permanent active tenants to promote the day to day use of the site • a high-quality stadium that satisfies the complex highly functional requirements of a Tier 1 stadium as well as create a unique and distinctive destination which responds to its setting • a stadium designed to be viewed in the round, from multiple locations and heights • the choice of materials responding to the immediate context and creation of a sustainable environment • the upgrade of the public domain, landscaping and access pathways to allow for integration of meaningful, yet playful interpretation of the site's cultural and heritage value. … The Department has reviewed the Applicant's EIS, RtS [response to submissions] and the community and public authority submissions in relation to the proposed built form. The Department notes that the concept design and UDG have been prepared in consultation with the GANSW [Government Architect of NSW] and with Cox Architects, to ensure the preliminary design is compatible with the desired future character of the precinct. The Department is satisfied that the UDG and the Design Excellence Strategy, as refined by the RtS, embody the principles of design excellence and are an appropriate tool to guide the future development of the precinct." (Emphasis added.)
The Assessment Report provided a detailed comparison between the roof heights of the existing Stadium and the proposed envelop of the new structure. The Visual Impact Assessment (VIA) assessed the visual impact of the proposal against relevant planning instruments by reference to six criteria, namely: "cultural landscape; height, bulk and scale; heritage; amenity; view sharing; and significant view corridors".
After recording the conclusions of the VIA in relation to each of these criteria, the Assessment Report concluded as follows: "The Department is satisfied that the building envelope does not represent a significant impact to the surrounding heritage landscape. The Department also considers there is an opportunity to incorporate design cues and other design elements in the Stage 2 design, to allow the detailed design to be sympathetic to and/or promote the heritage values of the site and surrounding area. As discussed [later], the design is required to demonstrate design excellence and it is anticipated that the final design of the stadium would be smaller than the proposed loose fit envelope."
Mr Robertson accepted that the material in the Assessment Report positively established that the Minister had taken the height and shape of the building envelope into account in forming an opinion that the proposed structure would not have an undue or disproportionate impact on the surrounding areas. But he submitted that this was not the same thing as forming an opinion as to the design excellence of the concept proposal.
The principal difficulty with this submission is that it rests on an artificial distinction between an assessment of impact on the one hand and design excellence on the other. As is clear from cl 6.21(4) of the Sydney LEP (and as the EIS noted) the impact a proposed building will have on the surrounding areas is an integral element of design excellence at the concept stage.
Mr Robertson's submission prompted the following exchange: "SACKVILLE AJA: Would your objection have been overcome if the Minister's determination had said 'The matters I have taken into account are also relevant to the issue of design excellence, and I have directed my mind to that question.' Would that be enough? ROBERTSON: No, you'd have to say 'I formed the opinion that it exhibits' - SACKVILLE AJA: 'I formed the opinion on the basis of the foregoing material that the concept plan has the requisite degree of design excellence.' That would be enough? ROBERTSON: 'Exhibits design excellence.' SACKVILLE AJA: That would be enough? ROBERTSON: Yes, that would be enough. SACKVILLE AJA: This entire dispute, so far as this is concerned, rests upon the absence of a single sentence. EMMETT AJA: A single sentence."
Mr Robertson later sought to modify his response by pointing to a passage in the EIS which he said indicated that the issue of design excellence could be deferred until Stage 2. Having regard to the passages from the EIS reproduced above, we do not think that the EIS can be read in this way. In any event, it is the analysis in the Assessment Report which is significant because the Minister adopted its findings and recommendations as his own reasons.
The primary Judge was prepared to infer that the Minister did form the opinion required by cl 6.21(3) as to the design excellence of the concept proposal. Although we consider that this inference is clearly open it is not necessary to go so far. It is enough to conclude that LDM did not establish that the Minister failed to form the requisite opinion as to the design excellence of the concept proposal.

SEPP 55

LDM's submissions on the issue of contamination centred on cl 7 of the SEPP 55. The object of SEPP 55 is stated in cl 2: "(1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land. (2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment: (a) by specifying when consent is required, and when it is not required, for remediation work, and (b) … (c) by requiring that a remediation work meet certain standards and notification requirements."
Clause 7(1) of SEPP 55 provides as follows: "A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose."
"Land" is defined in s 1.4(1) of the EPA Act to include "a building erected on the land". "Development" is defined in s 1.5(1) of the EPA Act to include the demolition of a building or work and the erection of a building. For the purposes of the EPA Act the "carrying out of development is the doing of the acts, matters or things referred to in [s 1.5(1)]" (s 1.5(3)).
SEPP 55 cl 4(1) provides that "contaminated land" has the same meaning as in Part 7A of the EPA Act. [34] Part 7A was repealed and re-enacted by the EPA Amendment Act 2017 as Sched 6 to the EPA Act. The relevant definition of "contaminated land" is now in Sched 6 [1], and is as follows: "contaminated land means land in, on or under which any substance is present at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment."

Assessment report

The Assessment Report devoted a section to "Contamination" as follows: "The EIS includes a Preliminary Site Investigation (PSI) which identifies that the main contamination risks are associated with previous filling works and the demolition of structures prior to the construction of the existing SFS. The previous laboratory testing results for samples obtained from adjacent sites indicate that the filling contained significant concentrations of polycyclic aromatic hydrocarbons (PAH) which are likely due to the presence of ash. Significant concentrations of heavy metals were also identified in selected samples. It is likely that, at the time of SFS construction, existing filling was mixed with natural soils, as segregation of materials to allow for more efficient disposal was not a major consideration in the 1980s. Groundwater is understood to be in the order of 3m below the current playing surface and, as it is used for irrigation purposes on both the SFS and SCG playing surfaces, is likely to be of high quality and not significantly contaminated. It should be noted, however, that further testing would be required to confirm the actual contaminant status of the groundwater on site. The PSI report recommended that prior to any further planning approval permitting the commencement of works that are likely to expose or disturb soils, a Detailed Site Investigation should be undertaken to fully characterise the contamination status of the site. However, on the basis of the investigation undertaken, the PSI report concluded that the risk of significant contamination being present, that prevents the redevelopment of the site without significant remediation, is low. EPA sought clarification that the demolition works including concrete crushing can be undertaken without disturbance of potentially contaminated soil and potentially contaminated fill material, and disturbance of the existing the Underground Petroleum Storage System under the stadium. In response, the Applicant reiterated that demolition works would be to ground level only. The Department has recommended conditions requiring further site investigations to be undertaken prior to the lodgement of the Stage 2 development application and appropriate remediation methods included if contamination is identified. The proposal is assessed as satisfactory with regard to contamination, subject to the implementation of the above conditions."
Appendix B to the Assessment Report addressed "Statutory Considerations". Appendix B summarised the position concerning SEPP 55 as follows: "State Environmental Planning Policy No. 55 - Remediation of Land SEPP 55 aims to ensure that potential contamination issues are considered in the determination of a development application. The EIS includes a contamination assessment for the site which concludes that there is the potential for contaminated material from previous filling works and building demolition prior to construction of the stadium in the 1980s. In addition, the EIS notes that the assessment did not identify the site as being at risk of containing acid sulfate soils. The Stage 1 works would involve demolition down to the existing slab level which largely avoids the potential for disturbance of contaminated material. The Department is satisfied that the Applicant has considered whether the land is contaminated and is also satisfied in its current state, for the land use proposed as part of Stage 1 of the proposed development. The Department has recommended conditions relating to ensure measures are in place should any unanticipated contamination be found during works. In order to be satisfied that the land is suitable for its final purpose, the Department has also recommended conditions relating to contamination assessment and remediation planning as part of the future Stage 2 development application."
As has been seen the conditions of consent for the Stage 1 works approved only the demolition of relevant structures to the slab or existing ground level. No works involving excavation, ground disturbance or changes to existing ground levels were permitted. [35] This was consistent with the EIS which sought consent to the demolition of existing buildings "down to existing slab level". [36]

The issue

It is common ground that if the Minister failed to comply with cl 7 of SEPP 55 he committed a jurisdictional error, thereby rendering the development consent invalid (subject to discretionary considerations). LDM did not pursue on the appeal all the arguments upon which it relied before the primary Judge to establish a breach of cl 7 of SEPP 55. However LDM did submit that the Minister failed to comply with cl 7 because he gave consideration only to whether the buildings to be demolished during Stage 1 of the proposed works were contaminated. Mr Robertson submitted that on the proper construction of cl 7 of SEPP 55 the Minister was obliged, before granting consent to the Concept DA, to consider whether the land on which the new stadium was to be constructed was contaminated and whether it required remediation for the project to be completed.
Mr Robertson contended that s 7(1)(b) and (c) of SEPP 55 required the Minister to consider the question of contamination by reference to the work involved in completing the project contemplated by the Concept DA. This contention rested in part on construing the word "land" in cl 7 to include the subsoil, which would necessarily be disturbed during Stage 2 of the project (when the new stadium is to be constructed). But it was central to his submission that the expression "suitable for the purpose for which development is proposed to be carried out" in cl 7(1)(b) and (c) of SEPP 55 referred to the purpose of redeveloping the Stadium, including the work required to construct a new stadium. While Stage 1 of the Concept DA was limited to demolition of existing buildings on the site, those works were just the first stage in carrying out the concept proposal to redevelop the Stadium. In short, the Concept DA sought consent to an integrated proposal for the rebuilding of the Stadium to be achieved in stages.

Primary Judgment

The primary Judge held that the subject of development consent was the land affected by the demolition of the Stadium and ancillary buildings down to a slab. Contrary to LDM's contentions, "land" for the purposes of cl 7 of SEPP 55 did not include the subsoil to be disturbed during construction of the new stadium. There was no evidence that any ground would be excavated during Stage 1, and in any event the conditions of consent did not permit excavation. [37]
The primary Judge accepted the Minister's submission that the purpose for which the development was proposed to be carried out was the demolition of the buildings approved in Stage 1 of the Concept DA. The purpose of Stage 2 was the construction of the new stadium but that had yet to be submitted or approved. [38] In her Honour's view, cl 7(1) of SEPP 55 was directed to the works for which approval was sought in the Concept DA. [39] Her Honour found that the Minister had complied with cl 7(1) because he had considered whether the land was suitable in its contaminated state for the purpose for which the development was to be carried out, namely the demolition work to be carried out during Stage 1 of the project. That question had been squarely addressed in the section of the Assessment Report considering compliance with SEPP 55. [40]

Reasoning

If each of the sub-paragraphs of cl 7(1) of SEPP 55 is read in isolation the construction proposed by Mr Robertson might be open. But cl 7 has to be construed in context. The context includes relevant provisions of the EPA Act.
Section 4.22(4) of the EPA Act expressly provides that a consent granted on the determination of a concept development application does not authorise the carrying out of development on any part of the site unless:

consent is subsequently granted to carry out development on that part of the site following a further development application, or
the concept development application also provided details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. Section 4.22(4) also provides that the terms of a consent granted on the determination of a concept development application are to reflect the operation of the subsection.

Clause 7(1) of SEPP 55 prohibits the carrying out of any development on land unless the requirements of sub-clause (a), (b) and (c) are satisfied. The expression "carrying out of development" is defined in s 1.5(3) of the EPA Act to mean "the doing of the acts … referred to in [s 1.5(1) of the EPA Act]". Section 1.5(1) defines "development" to mean any one of six acts, matters or things, one of which is "the demolition of a building or work".
The Concept DA sought to carry out only one form of development, namely the demolition of buildings to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works involved in Stage 1. Further development, in particular the construction of the new stadium, required a separate development application and the grant of consent by the Minister to that application. Before granting any such consent the Minister would have to take into account the matters and form the opinion required by the legislation and subordinate instruments.
The prohibition in the chapeau to cl 7(1) of SEPP 55 is directed to the grant of consent "to the carrying out of development on the land". In the present case the only consent sought for the carrying out of development was to the demolition of buildings to be carried out during Stage 1 of the project. In these circumstances the reference to "the carrying out of any development on the land" in the chapeau is therefore to the carrying out of the demolition work proposed in Stage 1 of the project.
Clause 7(1)(b) and (c) each use the expression "the purpose for which the development is proposed to be carried out". The development proposed to be carried out is the carrying out of demolition work during Stage 1 of the project. The purpose for which the demolition work is to be carried out is to ready the site for the next stage of the project - that is, the construction of the new stadium. As contemplated by s 4.22(1) of the EPA Act the next stage of the project will require detailed proposals for the site which will be the subject of a subsequent development application or applications. The Minister will therefore be required to assess the development application in relation to Stage 2 of the project by reference to the requirements specified in cl 7(1) of SEPP 55. It would be very odd if cl 7(1) required the same issues of contamination to be addressed at different times as the project moved through consecutive but separate stages.
This conclusion is consistent with the scheme established for concept development applications by s 4.22 of the EPA Act. It is also consistent with the object of SEPP 55 stated in cl 2. There is no risk of harm to human health or the environment if each stage of a concept proposal is subject to the rigorous requirements of SEPP 55.
LDM's written submissions rested entirely on the contention that the Minister had addressed the wrong question by limiting the consideration of contamination to the Stage 1 demolition works rather than the subsequent stages of the redevelopment of the Stadium. In his oral submissions Mr Robertson did not concede that if this Court rejected LDM's argument as to the construction of cl 7(1)(b) and (c) of SEPP 55 the Minister had not breached cl 7(1). However Mr Robertson did not advance any substantive argument to support a contention that even on the respondent's construction of cl 7(1) the Minister failed to comply with the requirements of cl 7(1).
In any event the Assessment Report addressed the issue of contamination in the sections extracted above. [41] The Assessment Report identified the main contamination risks associated with the proposed construction of the new stadium. It recommended that prior to any further planning approval a Detailed Site Investigation should be undertaken, although it assess as low the risk that significant contamination would be present such that redevelopment could not take place without significant remediation. Clarification had been sought that the demolition works could be undertaken without disturbing potentially contaminated soil and fill material, and the necessary assurance had been received. The Department assessed the proposal (that is, the Concept DA) as satisfactory subject to implementation of the recommended conditions.
The section of the Assessment Report dealing specifically with SEPP 55 recorded that the Department was satisfied that Infrastructure NSW had considered whether the land was contaminated and was also satisfied that the land use proposed for Stage 1 satisfied SEPP 55.
As has been seen, Sched 3 to the Development Consent imposed conditions of consent for the Stage 1 works. Condition A6 limited the works approved under Stage 1 to demolition of relevant structures to the slab or existing ground level. Condition A7 stated that no works involving excavation, ground disturbances or changes to existing ground levels were permitted.
Schedule 2 to the Development Consent set out conditions to be satisfied in future development applications. Conditions C23-C25 specified the detailed site investigations and assessment reports required for any future development application in relation to the site. Of course any such development application will require consent.
In our view the primary Judge correctly concluded that LDM had not established that the Minister failed to comply with the requirements of cl 7 of the SEPP 55 when granting consent to the Concept DA, including Stage 1 of the works.

Conclusion

For these reasons the Court made the orders dismissing LDM's appeal.
The question of costs remains to be resolved. The following directions should be made:
Direct the parties to file agreed short minutes of order as to costs within 14 days.
If the parties cannot agree, direct the respondents to file their proposed short minutes of order as to costs within 14 days, supported by brief written submissions.
Direct LDM to file its proposed short minutes of order as to costs within a further seven days, supported by brief written submissions.
Direct the respondents to file any brief written submissions in reply within a further seven days.

Endnotes

Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20 (Primary Judgment).
Land and Environment Court Act 1979 (NSW) (LEC Act), s 20(c).
Section 58(1) of the LEC Act provides that a party to proceedings in the Class 4 jurisdiction of the LEC who is dissatisfied with an order or decision may appeal to the Supreme Court against the order or decision. The powers of the Court on the hearing of the appeal are specified in s 58(2) of the LEC Act. An appeal from the LEC is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(f).
Section 4.38(1) of the EPA Act is reproduced at [32] below.
Section 4.22(1) of the EPA Act defines "concept development application": see at [19] below.
Clause 83 of the EPA Regulation is reproduced at [39] below.
Clause 6.21 of the Sydney LEP, insofar as relevant, is reproduced at [66] below.
Clause 7(1) of the SEPP 55 is reproduced at [88] below.
Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18.
Local Democracy Matters Incorporated v Infrastructure NSW (No 3) [2019] NSWLEC 22.
As to s 25B of the LEC Act see [63] below.
Section 9.46(1) of the EPA Act is reproduced at [5] above.
See EPA Act, s 4.36(1).
EPA Regulation, cl 85B(a).
EPA Act, s 4.21.
[2017] NSWCA 135; (2017) 222 LGERA 286 (Bay Simmer). Section 4.22(5) of the EPA Act was introduced by the Environmental Planning and Assessment Amendment (Staged Developments Applications) Act 2017 (NSW). The Explanatory Memorandum confirms that the object of the new provision was to overcome the effect of the decision in Bay Simmer.
Bay Simmer at [57]-[67] (Basten JA), [82]-[84] (Leeming JA).
Section 4.40 of the EPA Act is within Div 4.7 ("State Significant Development"). Section 4.40 expressly provides that s 4.15 of the EPA Act applies to the determination of a development application.
EPA Act, s 4.15(1)(a)(i).
These provisions are reproduced at [41]-[43] below.
EPA Regulation, cl 85B(g).
Environmental Planning and Assessment Amendment Act 2017 (NSW) (EPA Amendment Act 2017), Sched 2, Div 2.3 [14]. The EPA Amendment Act 2017 has been repealed by operation of s 30C of the Interpretation Act 1987 (NSW).
EPA Act, s 4.60(2).
See Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [194] (Jagot J).
Cf Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220 at 222 (Priestley JA, Kirby P and Hope JA agreeing), referring to s 25I of the Interpretation Act 1987 (NSW) (now repealed).
EPA Act, s 1.4(13).
Transitional Regulation 2017, cl 18.
Section 9.46 of the EPA Act is referred to at [5] above. Section 25B(1) of the LEC Act provides, among other things, that the Court may, instead of declaring a development consent invalid, specify terms compliance with which will validate the consent. Section 25B applies to a development consent granted by the Minister: s 25A(1)(a)(i).
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 (Kirby P) (Warringah Shire Council v Sedevcic); Botany Bay Council v Saab Corp Pty Ltd (2012) 82 NSWLR 171; [2011] NSWCA 308 at [156]-[157], [179] (Tobias AJA, Basten and Macfarlan JJA agreeing on this point).
Warringah Shire Council v Sedevcic at 340-341.
Primary Judgment at [139].
[2018] NSWLEC 158.
Uniting Church at [53].
See the repealed s 145A of the EPA Act.
See at [35] above.
Primary Judgment at [179].
Primary Judgment at [182].
Primary Judgment at [184].
Primary Judgment at [187]-[188]. See at [92] above.
See at [91]-[92] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2019

Environmental Planning and Assessment Amendment Act 2017(NSW)

Environmental Planning and Assessment (Staged Developments Applications) Act 2017(NSW)

Environmental Planning and Assessment Regulation 2000(NSW)

Environmental Planning and Assessment Act 2017(NSW)

Environmental Planning and Assessment Amendment (Staged Developments Applications) Act 2017(NSW)

a Property Trust (NSW) v Parramatta City Council [2008] NSWLEC 158 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 390 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Local Democracy Matters Inc (INC1700616) (Appellant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lend Lease Building Pty Ltd (Fourth Respondent - submitting appearance) Representation: Counsel: Mr TF Robertson SC / Mr J Lazarus (Appellant) Ms S Duggan SC / Ms J McKelvey (First Respondent) Mr MJ Astill (Second Respondent) Mr RC Beasley SC/ Ms ME Ellicott/ Mr MT Sherman (Third Respondent)

Solicitors: Stringybark Legal (Appellant) King & Wood Mallesons (First Respondent) Norton Rose Fulbright Australia (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent) File Number(s): 2019/74180 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 4 Citation: [2019] NSWLEC 20 Date of Decision: 6 March 2019 Before: Pain J File Number(s): 2019/ 39988

(2017) 222 LGERA 286

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (11)

Cases Cited (14)

Cited By (6)