Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW

Local Democracy Matters Incorporated (INC 1700616) (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent)

Waverley Council (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent) Representation: Matter No 19/39988

COUNSEL: T Robertson SC and J Lazarus (Applicant) S Duggan SC and J McKelvey (First Respondent) M Astill (Second Respondent) R Beasley SC and M Ellicott with M Sherman (Third Respondent) Submitting appearance (Fourth Respondent)

SOLICITORS: Stringybark Legal (Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent)

COUNSEL: P Clay SC and M Hall (Applicant) S Duggan SC and J McKelvey (First Respondent) M Astill (Second Respondent) R Beasley SC and M Ellicott with M Sherman (Third Respondent) Submitting appearance (Fourth Respondent)

SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent) File Number(s): 19/39988; 19/43610

TABLE OF CONTENTS Agreed statement of facts Environmental Planning and Assessment Act 1979 (as in force at 1 March 2018) Environmental Planning and Assessment Act 1979 (as in force at 28 February 2018) Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Act Regulation 2000 (as in force at 1 March 2018) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Interpretation Act 1987 Key events Summary of evidence Extracts of key documents Environmental Impact Statement (EIS) part of SSD application SFS Response to submissions - September 2018 Department of Planning and Environment Assessment Report - December 2018 Briefing note for the determination of SSD 9249 Notice of Minister's decision to grant consent dated 6 December 2018 Development consent for SSD 9249 Managing Land Contamination - Planning Guidelines - SEPP 55 - Remediation of Land (Contamination Guidelines) Applicants' affidavit evidence Respondents' affidavit evidence Ground 1 - alleged failure to exhibit DA for 30 days (LDM) LDM's submissions Respondents' submissions Finding on Ground 1 Ground 2 - failure to consider mandatory requirements of cl 6.21 of SLEP 2012 design excellence (LDM / Waverley Council) LDM's submissions Council's submissions Respondents' submissions Finding on Ground 2 Construction of design excellence provision cl 6.21 References to cl 6.21(3) obligations in evidence Evidence of consideration of cl 6.21(4) matters Ground 3 - breach of State Environmental Planning Policy 55 - Remediation of Land (LDM) State Environmental Planning Policy No 55 - Remediation of Land LDM's submissions Clause 7(1) Clause 7(2) Clause 7(3) Minister's submissions SCG Trust's submissions Finding on Ground 3 Application of cl 7(1) Application of cl 7(2)(3) Conclusion Orders

Judgment

1. The Applicants Local Democracy Matters Incorporated (LDM) and Waverley Council (the Council) challenge in separate judicial review proceedings the decision of the Third Respondent the Minister for Planning (Minister) to grant development consent for a concept proposal and Stage 1 demolition of the Sydney Football Stadium (SFS) at 40-44 Driver Avenue Moore Park on 6 December 2018. Both matters can be considered in one judgment. An order was made on 13 February 2019 that any evidence admitted in one matter is evidence in the other matter.
2. Declarations of invalidity of the development consent granted by the Minister under the Environmental Planning and Assessment Act 1979 (EPA Act) and consequential orders are sought in both amended summonses. Work on the project has commenced. Orders requiring reinstatement are not pressed.

Agreed statement of facts

1. An agreed statement of facts filed in court on 20 February 2019 provided as follows: The Parties 1 The Applicant is an association incorporated under the Associations Incorporation Act 2009 (NSW), and is able to sue. 2 The First Respondent is Infrastructure NSW, a body corporate constituted under the Infrastructure NSW Act, 2011. 3 The Second Respondent is the Sydney Cricket and Sports Ground Trust and is the sole Crown land manager pursuant to the Crown Land Management Act 2016 of the land located at 40 - 44 Driver Avenue Moore Park (Part Lot 1528 and Part Lot 1530 DP 752011, and Lot 1 DP 205794 (the subject land) the land on which the Sydney Football Stadium (Stadium) stands. 4 The Third Respondent is the Minister administering the Environment Assessment and Planning Act 1979 (NSW) (EPA Act) and is the relevant decision-maker, in respect of the decision the subject of these proceedings. 5 The Fourth Respondent is Lend Lease Building Ply Ltd, ACN 000 098 162, a corporation duly incorporated, which has been contracted to carry out the demolition of the Stadium. Details of Decision 6 The decision to be reviewed is the decision of the Third Respondent pursuant to s 4.38 of the EPA Act granting development consent to the demoliti0n of the Stadium and surrounding buildings, and a concept approval for a new stadium, on 6 December 2018. Background 7 The Stadium was completed in 1988. 8 In 2012, the NSW Government released the NSW Stadia Strategy. 9 On 24 November 2017 the NSW Government announced its intention to demolish the Stadium and replace it with a new stadium (Stadium Project). 10 On 12 April 2018, Premier Gladys Berejiklian MP signed a Project Authorisation Order nominating the demolition and rebuilding of Allianz Stadium as a major infrastructure project and declaring that Infrastructure NSW (INSW) assumes the responsibility of all the Second Respondent's functions in relation to the Stadium Project. 11 On 4 April 2018 INSW lodged a request to the Secretary of the Department of Planning and Environment seeking the issue of the Secretary's Environmental Assessment Requirements (SEARs) for the Stadium Project. That request was placed on the Department of Planning and Environment's major projects web site (MP Web Site) on 5 April, 2018. 12 On 12 April 2018 a planning focus meeting was held with key government agencies and local government representatives. 13 On 3 May 2018 SEARs were issued and placed on the MP Web Site. 14 In June 2018 an Environmental Impact Statement (EIS) was completed. 15 On 12 and 13 June 2018, public exhibition notices were placed in the Sydney Morning Herald, the Daily Telegraph, Southern Courier and Wentworth Courier. 16 Between 14 June 2018 and 11 July 2018 the proposal was publicly exhibited for 28 days. 17 The EIS was placed on the MP Web Site on 14 June, 2018 and remains on the MP Web Site. 18 On 13 September 2018 INSW published its Response to Submissions Report. The report was placed on the MP Web Site on 17 September, 2018 and remains on the MP Web Site. 19 In December 2018 the Department of Planning published its Assessment Report. That report was placed on the MP Web Site on 7 December, 2018 and remains on the MP Web Site. Planning Minister's Decision 20 On 6 December 2018, the Minister determined to approve the demolition and concept plan with conditions (Consent). 21 The Minister's reasons for the decision, contained in the Notice of Decision was signed by the Minister on 6 December, placed on the MP Web Site on 7 December, 2018 and remains on the MP Web Site. 22 The Minister's Notice of Decision expressly adopts the SSD 9249 Signed Assessment Report as forming part of its reasons for determination.
2. The Fourth Respondent Lendlease Building Pty Ltd (Lendlease) has filed a submitting appearance.

Environmental Planning and Assessment Act 1979 (as in force at 1 March 2018)

1. Relevant sections of the EPA Act as in force on 1 March 2018 provide: Part 1 Preliminary … 1.3 Objects of Act (cf previous s 5) The objects of this Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 1.4 Definitions (cf previous s 4) … building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. … land includes: (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land. … 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following: (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). … Part 2 Planning administration … Division 2.6 Community participation … 2.22 Mandatory community participation requirements (1) 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. (2) Those mandatory requirements for community participation include any other forms of community participation that are set out in a community participation plan under this Division and that are identified in that plan as mandatory requirements. [in effect from 1 March 2018] … Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. ... (6) Definitions In this section: (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and ... 4.19 Consent for erection of building authorises use of building (cf previous s 81A) A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued. … Division 4.4 Concept development applications 4.21 Application of this Division (cf previous s 83A) This Division applies to concept development applications and to consents granted on the determination of those applications. 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. [Bay Simmer amendment - made 14 August 2017] 4.23 Concept development applications as alternative to DCP required by environmental planning instruments (cf previous s 83C) (1) An environmental planning instrument cannot require the making of a concept development application before development is carried out. (2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a concept development application in respect of that land. (3) Any such concept development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations. 4.24 Status of concept development applications and consents (cf previous s 83D) (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a concept development application and a development consent granted on the determination of any such application. (2) While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a concept development application. … Division 4.7 State significant development 4.36 Development that is State significant development (cf previous s 89C) (1) For the purposes of this Act, State significant development is development that is declared under this section to be State significant development. (2) A State environmental planning policy may declare any development, or any class or description of development, to be State significant development. (3) The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development. (4) A State environmental planning policy that declares State significant development may extend the provisions of the policy relating to that development to State significant development declared under subsection (3). 4.37 Staged State significant development (cf previous s 89D) If a concept development application is made in respect of State significant development: (a) the consent authority may determine that a subsequent stage of the development is to be determined by the relevant council as consent authority, and (b) that stage of the development ceases to be State significant development and that council becomes the consent authority for that stage of the development. 4.38 Consent for State significant development (cf previous s 89E) (1) The consent authority is to determine a development application in respect of State significant development by: (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application. … 4.39 Regulations - State significant development (cf previous s 89G) In addition to any other matters for or with respect to which regulations may be made under this Part, the regulations may make provision for or with respect to the procedures and other matters concerning State significant development, including the following: (a) the environmental impact statements to accompany development applications in respect of State significant development, (b) the requirements for the preparation of those environmental impact statements, including consultation requirements with respect to government agencies and other affected persons, (c) the making of orders under section 4.36 (3) declaring specified development to be State significant development, (d) the making of information publicly available relating to development applications in respect of State significant development and the determination of those applications, (e) requiring applicants to provide responses to submissions made on development applications in respect of State significant development. 4.40 Evaluation of development application (s 4.15) (cf previous s 89H) Section 4.15 applies, subject to this Division, to the determination of the development application. ... 4.43 This Division prevails (cf previous s 89L) The provisions of this Division, the regulations under this Division and any other provisions of or made under this Act with respect to State significant development prevail to the extent of any inconsistency with any other provisions of or made under this Act relating to development to which this Part applies. … Division 4.10 Miscellaneous Part 4 provisions … 4.60 Non-compliance with certain provisions regarding State significant development (cf previous s 102) (1) This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section. (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. (b) A requirement that a development application to carry out development, being development, other than State significant development or designated development, to which some or all of the provisions of sections 4.25, 4.27, 86, 4.30 (1) and 4.44, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 3.18 (4), as then in force, be publicly exhibited for the minimum period of time. (c) (Repealed) … 4.64 Regulations - Part 4 (cf previous s 105) (1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following: (a) any matter that is necessary or convenient to be done before making a development application, … (g) the notification and advertising of development applications (and proposed development), … Part 9 Implementation and enforcement … Division 9.5 Civil enforcement proceedings … 9.45 Restraint etc of breaches of this Act (cf previous s 123) (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) (Repealed) 9.46 Orders of the Court (cf previous s 124) (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979. … Part 10 Miscellaneous … 10.13 Regulations (cf previous s 157) (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to: (a) any function conferred by this Act on any person, or … (g) the documents to be provided to, and the matters to be notified to, a consent authority, council or certifier under this Act. (1A) The regulations may create offences punishable by a monetary penalty not exceeding $110,000. (2) A provision of a regulation may: (a) apply generally or be limited in its application by reference to specified exceptions or factors, (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. (3) A regulation may apply, adopt or incorporate any publication as in force from time to time. … Schedule 1 Community participation requirements Part 1 Mandatory community participation requirements … Division 2 Minimum public exhibition periods for development applications and other matters ... 9 Application for development consent for State significant development (cf previous s 89F) 28 days. ... Division 4 Mandatory notification requirements for applications and decisions … 20 Public notification of certain decisions and reasons for the decisions (1) This clause applies to the following decisions: (a) the determination by the Minister (or the Independent Planning Commission) of an application for State significant infrastructure, (b) the determination by the Minister (or the Independent Planning Commission) of a request for a modification of an approval for State significant infrastructure (being a request that was publicly exhibited), (c) the determination by a consent authority of an application for development consent, (d) the determination by a consent authority of an application for the modification of a development consent (being an application that was publicly exhibited), (e) the granting of an approval, or the decision to carry out development, by a determining authority where an environmental impact statement was publicly exhibited under Division 5.1. (2) The mandatory notification requirement in relation to a decision to which this clause applies is public notification of: (a) the decision, and (b) the date of the decision, and (c) the reasons for the decision (having regard to any statutory requirements applying to the decision), and (d) how community views were taken into account in making the decision. Part 2 General provisions 21 Additional or revised mandatory public exhibition and notification requirements The regulations may amend Part 1 of this Schedule: (a) to prescribe additional mandatory requirements for community participation, or (b) to make other changes to that Part. ... Historical notes ... Concordance table For the purposes of comparison, this table shows provisions of this Act as in force immediately before the commencement of the Environmental Planning and Assessment Amendment Act 2017 and the corresponding decimal section numbers following amendment by that Act: … Old provision New provision … Sec 89F Schedule 1 cl 9

Environmental Planning and Assessment Act 1979 (as in force at 28 February 2018)

1. Section 89F of the EPA Act as in force on 28 February 2018 provided as follows: Part 4 Development assessment … Division 4.1 State significant development … 89F Public participation (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. (2) During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them. (3) During the submission period, any person may make written submissions to the Minister with respect to the development application. A submission by way of objection must set out the grounds of the objection. (4) If: (a) a development application for State significant development is amended, or substituted, or withdrawn and later replaced before it has been determined by the Minister, and (b) the Secretary has complied with subsection (1) in relation to the original application, compliance with subsection (1) in relation to the amended, substituted or later application is not required, unless the Secretary determines that the amended, substituted or later application substantially differs from the original application and the environmental impact of the development concerned has not been reduced by the changes proposed in the amended, substituted or later application.
2. This section was repealed on 1 March 2018 by the Environmental Planning and Assessment Amendment Act 2017 (Amendment Act).

Environmental Planning and Assessment Amendment Act 2017

1. Relevant clauses of the now repealed Amendment Act provided: Schedule 2 Amendment of Environmental Planning and Assessment Act 1979 No 203 - Planning administration ... 2.3 Consequential and statutory revision amendments relating to community participation [1] Section 4 (1) … community participation plan means a community participation plan prepared and published under Division 2.6. … [14] Section 89F Public participation Omit the section. … Schedule 13 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Part 1 Preliminary … 2 Commencement This Regulation commences on the commencement of Schedule 13 to the Environmental Planning and Assessment Amendment Act 2017. Note. See section 10.16 of the Act for provisions relating to the making of this Regulation and the application to this Regulation of provisions of the Interpretation Act 1987 and the Subordinate Legislation Act 1989. … Part 2 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2017 … 5 Interpretation of transferred provisions not affected by transfer The provisions of Schedules 1, 2 and 3 are, to the extent that as a result of the amending Act they re-enact provisions of the Act, transferred provisions to which section 30A of the Interpretation Act 1987 applies.

Environmental Planning and Assessment Act Regulation 2000 (as in force at 1 March 2018)

1. Clause 83 of the Environmental Planning and Assessment Act Regulation 2000 (EPA Regulation) provided: Division 6 Public participation - State significant development 83 Public exhibition period For the purposes of section 89F (1) (a) of the Act, the minimum submission period is to be 30 days.
2. Clause 83 was repealed on 1 September 2018.

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017

1. Relevant clauses of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transitional Regulation) provide: Part 1 Preliminary … 3 Definitions (1) In this Regulation: the Act means the Environmental Planning and Assessment Act 1979. (2) Notes included in this Regulation do not form part of this Regulation. … Part 2 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2017 … 4A Interpretation - renumbered or relocated provisions of Act (1) In this clause: document means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument. (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. 5 Interpretation of transferred provisions not affected by transfer The provisions of Schedules 1, 2 and 3 are, to the extent that as a result of the amending Act they re-enact provisions of the Act, transferred provisions to which section 30A of the Interpretation Act 1987 applies. … [in force from 1 March 2018 except for subcl (5) from 16 March 2018]

Interpretation Act 1987

1. Section 30A of the Interpretation Act 1987 provides: Part 4 Amendments and repeals … 30A Transferred provisions (1) This section applies where a provision is transferred from an Act or statutory rule to another Act and an Act states that the provision is a transferred provision to which this section applies. (2) The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. (3) This section applies whether or not the provision is modified, but has effect subject to any such modification.

Key events

1. The parties' agreed chronology is as follows: AGREED CHRONOLOGY Date Event 24 November 2017 The NSW Government announced its intention to demolish and rebuild the stadium at Moore Park. 4 April 2018 Request for SEARs lodged by INSW. 12 April 2018 The Department of Planning convened a planning focus meeting with key government agencies and representatives of local government. 3 May 2018 The Secretary's Environmental Assessment Requirements (SEARs) were issued and placed on MP Web Site. June 2018 EIS completed. 12 and 13 June 2018 Public exhibition notices in newspapers. 14 June 2018 Between 14 June 2018 and 11 July 2018 the proposal was publicly exhibited for 28 days. 14 June 2018 EIS placed on MP Web Site. 13 September 2018 On 13 September 2018, Infrastructure NSW published their Response to Submissions Report. 17 September 2018 Infrastructure NSW Response to Submissions Report placed on MP Web Site. December 2018 The Department of Planning published its Assessment Report. 6 December 2018 The Minister for Planning gave consent to SSD 9249 and issued a Notice of Decision which incorporated the Department of Planning Assessment Report published in December 2018. 7 December 2018 The Notice of Decision, instrument of consent and Department of Planning Assessment Report were published on the MP Web Site.

1. The amended summonses identified three grounds of review which if proved, the Applicants submitted, give rise to invalidity of the development consent as follows: 1. failure to exhibit the proposal for 30 days (LDM); 2. failure to consider the mandatory requirements of cl 6.21 of Sydney Local Environmental Plan 2012 (SLEP) (LDM and the Council); and 3. breach of the State Environmental Planning Policy No 55-Remediation of Land (SEPP 55) (LDM).

Summary of evidence

1. The Applicants tendered the following evidence: 1. Exhibit A, the evidence book (four volumes); 2. Exhibit B, the court book; 3. Exhibit C, a supplementary tender bundle; and 4. Exhibit D, "Schedule 41 - SFSR Stage 1 Lump Sum" to the contract between Infrastructure NSW (INSW) and Lendlease dated 7 December 2018.
2. The Respondents tendered Ex 1, a supplementary tender bundle.

Extracts of key documents

1. The parties referred extensively to the documents related to the decision of the Minister to grant development consent under challenge. It is necessary to set out some of that material in relation to design excellence and contamination given the nature of Grounds 2 and 3.

Environmental Impact Statement (EIS) part of SSD application

1. The main report of the EIS provides: Executive Summary … Overview of the Project The Development Application is made in respect of the Concept Proposal and detailed Stage 1 works for the redevelopment of the Sydney Football Stadium. The Concept Proposal for the redevelopment of the Sydney Football Stadium includes: • Land use. • Maximum building envelope. • Maximum stadium capacity of 45,000 seats (55,000 patrons in concert mode) and 1,500 staff. • Urban Design Guidelines and Design Excellence Strategy to guide the detailed design. • General functional parameters for the design and operation of the new stadium, including: − Range of general admission seating, members areas, premium box/terrace, function/lounge and corporate suite options; − Administration offices; − New roof with 100% drip-line coverage of all permanent seating; − Flood lighting, stadium video screens and other ancillary fittings; − Food and beverage offerings; − Facilities for team, media, administration and amenity such as changing rooms, media rooms and stadium; and − Provision for ancillary uses within the stadium and surrounds. … The detailed Stage 1 demolition works comprise the following: … • Make good of the site suitable for construction of the new stadium (subject to separate Stage 2 application). … Planning Context This EIS has been prepared in accordance with the requirements of the EP&A Act and Regulation, and Section 6.0 of the EIS considers all applicable legislation in detail. Pursuant to clause 8A of State Environmental Planning Policy (State and Regional Development) 2011, the Minister for Planning is the consent authority for a State Significant Development Application made by or on behalf of a public authority. This application is made by Infrastructure NSW, who are a public authority. The Sydney Local Environmental Plan 2012 applies to the site, with the proposed development being permissible with consent and consistent with the SP1 Special Activities - Recreation Facility (Major) zoning. The LEP does not impose any building height or floor space ratio controls. This Concept Proposal is prepared in satisfaction of clause 7.20, which requires the preparation of a site-specific development control plan (fulfilled by a Concept DA in accordance with section 4.23 of the EP&A Act) for development with a site area of more than 5,000m2 or with a building height of more than 25 metres. A Design Excellence Strategy accompanies this EIS which sets out how the detailed design which will be the subject of a future Stage 2 Development Application will achieve design excellence in accordance with clause 6.21 of the LEP, and this strategy has been endorsed by the NSW Government Architect. … 1.2 Secretary's Environmental Assessment Requirements … Table 1 Reference to information in EIS and appendices to address Secretary's requirements Requirement Reference … Key Issues - Concept Proposal EIS Appendix The EIS must address the following specific matters:
2. Statutory and Strategic Context - including: Address the statutory provisions contained in all relevant environmental planning instruments, including: … • Sydney Local Environmental Plan 2012; and … …
3. Design Excellence Section 5.1 and 6.4 Appendix C-section 7 • Describe the design process leading to the Concept Proposal. • Provide design quality guidelines for the future built form and integration of landscape design. Section 5.1 and 6.4 Appendix C-section 8 • Provide a Design Excellence Strategy, developed in consultation with, and to the satisfaction of, the Government Architect NSW, for the future stages of the development which demonstrates how design excellence will be achieved. This strategy should set out: o the design process leading to the Concept Proposal; o the type and details of the competitive design excellence processes proposed to be undertaken, in accordance with clause 6.21 of the Sydney LEP, and clear rationale for this process having regard to established design excellence policy context and best practice; Section 5.1 and 6.4.3 Appendix D o a method setting out how the proposed design excellence, public domain and landscape excellence process will be implemented as part of the planning process; and o details of the method for the incorporation of sustainability into design. 5 Built Form and Urban Design Section 6.4.3 Appendix D • Outline consultation with the Government Architect NSW and how the feedback has been incorporated into the Concept Proposal; Appendix G-section 8.5.3 • Provide a detailed justification for the building envelope, supported by an urban design analysis, to justify that the proposed built envelope location and design are based on careful consideration of the benefits and potential impacts in the context of the immediate locality and the broader Sydney CBD area; Section 6.4 Appendix C-section 7 • Provide appropriate design guidelines and development parameters within the context of the locality, including but not limited to: o site analysis; o site layout; o gross floor area; Section 5.1 and 6.4 Appendix C-sections 7, 89 and appendices o building footprints; o height and massing of the building envelopes; and o open spaces, landscaping, green infrastructure and tree planting to improve amenity and reduce urban heat island effect; • "Demonstrate how the design of the development will be integrated into the City of Sydney and fit within the context of the site and the existing and future desired character of Moore Park area, including the adjacent Sydney Cricket Ground; and Section 6.4 Appendix C-section 7 • Provide an in indicative building and landscape design showing a possible built form within the proposed building envelope. Section 6.4 Appendix C- Appendices

… 2.0 Project Objectives and Strategic Need … 2.3 Objectives of the Development The objectives of the project are to: … • Support the realisation of a Tier 1 rectangular stadium at Moore Park by: … − Creating a publicly accessible entertainment and recreational facility; − Building a stadium integrated with its surrounds including Centennial and Moore Parks and the surrounding residential and business areas; and … • Demonstrate excellence in environmental sustainability; and … 3.0 Site Analysis … 3.2.7 Contamination Douglas and Partners (Appendix S) have identified that there is the potential for the site to have been contaminated by previous filling works and the demolition of buildings on the site prior to the construction of the stadium in the 1980s. It is possible that when the stadium was constructed, existing soils that contained concentrations of contaminants may have been mixed with natural soils to allow for the most efficient disposal of materials. This is consistent with soil samples tested during the development of nearby buildings including the Sheridan Building, ARDC and Bradman-Noble Stand. Further detailed investigation will be undertaken as part of the Stage 2 detailed design and planning process. The site is not identified as being significantly contaminated under the Contaminated Lands Management Act 1997. … 5.0 Description of the Development … 5.1 Concept Proposal The Concept Proposal for the new Sydney Football Stadium seeks to establish the broad principles for the construction of a new stadium, including principles for detailed design, planning and operation. Specifically, Concept Approval is sought for the following: • Maximum building envelope; • Maximum stadium capacity of 45,000 seats (55,000 patrons in concert mode) and 1,500 staff. • Urban Design Guidelines which will establish the principles for the detailed design of the new stadium, including the building architecture and public domain and landscape architecture; • Design Excellence Strategy for the detailed design of the new stadium (Stage 2); • Use of the site as a "recreation facility (major)" with ancillary uses; and • Outline of the staging of the development. A maximum "loose fit" building envelope has been established which sets out the maximum physical size of the future stadium, whilst providing flexibility to allow for a range of design solutions in the delivery of the new stadium (Appendix C). The Urban Design Guidelines prepared by SJB Urban Design (Appendix C) provide the overarching framework for the design and functionality of the stadium within the site and landscape, whilst the Design Excellence Strategy (Appendix D) sets out the process to ensure that the future stadium design delivers a high-quality development. The Concept Proposal also sets out broad principles for stadium operations and land uses, and includes details of the intended project staging. Further details are set out in the following sections. 5.1.1 Building Envelope This application seeks consent for a maximum building envelope which is defined via horizontal and vertical planes. The building envelope sets the maximum parameters within which the future detailed stadium design will be required to be contained within. The footprint and sectional representations of the maximum building envelope are reproduced in Figures 32 and 33, and detailed further at Appendix C. The maximum building envelope sets a maximum building height of RL 85.00 m AHD which applies across the horizontal maximum footprint. The building envelope has been informed by, and developed in conjunction with, the development of a reference design prepared by Cox Architecture (the architect firm responsible for the existing SFS) that incorporates all of the functional and operational requirements of a Tier 1 stadium with a seated capacity of 45,000 persons (55,000 for concerts). The building envelope arising from this reference design process has been enlarged to provide a "loose-fit" maximum building envelope that would accommodate not only the reference design, but also other possible architectural and structural design responses to the functional brief for the stadium. This approach ensures that the maximum building envelope can accommodate a range of design options to be explored through the competitive design excellence and detailed design processes. This approach establishes a maximum building envelope for which approval is sought at the Concept Proposal stage and which forms the "worst-case" basis for the environmental assessment in this EIS and supporting documentation. The final detailed building envelope, including compliance with the maximum building envelope, will be detailed further in the Stage 2 Development Application. … 5.1.3 Urban Design Guidelines Urban Design Guidelines have been prepared by SJB Urban Design (Appendix C) in order to set out (at Section 8 of that document) the guidelines for the future detailed design of the new stadium and public realm. The document set out principles and more detailed guidelines for the following aspects of design: • Key moves and design intent; • Access and movement; • Building height and massing • Public realm and open space; • Security and safety; • Activation; • Wayfinding, signage and interpretation; • Architectural expression; • Sustainability; and • Cultural and heritage significance. … Stadium Design The new stadium will deliver a high-quality user and fan experience, commensurate with the intended role of the new stadium as one of only three Tier 1 stadia within NSW. The stadium will have up to 45,000 seats configured around a new rectangular playing pitch, with 100% drip-line roof coverage for all seats and a 360-degree pedestrian circulation zone within the stadium structure. A range of seating types will be provided, including general admission, active supporter zones, members seating and corporate seating to ensure that the stadium meets the requirements of current and future patrons. In concert mode, additional standing capacity for 10,000 patrons would be provided in the field of play. A 360-degree oculus will be provided for internal patron circulation within the stadium structure, maximising accessibility and distribution of crowds and reducing potential pinch-points. Lifts and vertical circulation will be provided to meet modern design and accessibility standards to allow for equitable access throughout the stadium and to provide access to a range of seating types. … 5.1.4 Design Excellence Process A Design Excellence Strategy has been prepared by Infrastructure NSW in collaboration with, and endorsed by, the NSW Government Architect's Office (Appendix D) to ensure that the future stadium achieves design excellence by following a competitive design process in accordance with the City of Sydney Council's Competitive Design Policy (2013). … The successful design consortia will be appointed as the lead architect for the project and will retain responsibility for the development of documentation to support the Stage 2 Development Application. The winning designer will be required to work with an experienced stadium designer. The Panel will retain an ongoing role to ensure that the design integrity of the winning scheme from the design alternatives process is maintained throughout the design development process in order to ensure that design excellence is maintained. This process will involve a series of presentations to, and issuing of advice by, the Panel at key design development milestones. … 6.1 Environmental Planning and Assessment Act 1979 & Regulation 2000 … Table 4 Objects of the EP&A Act Section 1.3: … (g) to promote good design and amenity of the built environment, 6.3 Compliance with Legislation and Environmental Planning Instruments Table 7 Compliance with relevant environmental planning instruments … SEPP 55 - Remediation Draft SEPP 55 - Clause 7 of SEPP 55 specifies that a consent authority must not consent to the carrying out of any development on land unless it has considered whether land is contaminated and if the land is contaminated, it is satisfied that the land is/can be suitable for the proposed development. Further discussion has been included in Section 6.17 of the EIS. The construction methodology for the future stadium involves the demolition of land up to the slab, which will facilitate further site testing to occur on site and (if required) and addressed as part of a separate and future application for bulk earthworks and the construction of the stadium. The Explanation of Intended Effect for the Draft Remediation of Land SEPP (Draft SEPP 55) makes clear that transitional provisions will be included such that the existing provisions of SEPP 55 will continue to apply to all Development Applications made before Draft SEPP 55 commences. Notwithstanding this, and as discussed in Section 6.17 of the EIS, the site is suitable for the demolition of the existing stadium structure down to existing slab level with no ground disturbance, whilst the Phase 1 Contamination Assessment confirms that the site is expected to be suitable for the proposed use but that further detailed site investigation will be required to accompany the Stage 2 Development Application to confirm any further measures required to be implemented. … City of Sydney Plans and Policies Sydney Local Environmental Plan 2012 Cl. 1.2 - Aims of the plan - … • It has been designed with consideration of the amenity of surrounding land, and will be designed to mitigate or minimise any potential impacts on amenity throughout the staged delivery process. • It will be the subject of a competitive architectural design process to ensure the future detailed design of the stadium and surrounds exhibits design excellence and reflects its context. • It will be designed with consideration of the Heritage Interpretation Strategy prepared by Curio, with works being conducted in accordance with the detailed heritage and archaeological assessments prepared by Curio Projects. … Cl. 6.21 - Design excellence - 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. … 6.4 Built Form and Urban Design 6.4.1 Building Envelope, Built Form and Public Domain Preparation of the Urban Design Guidelines (Appendix C) by SJB Urban Design has been informed by an appreciation of the site and surrounds, community and stakeholder feedback received during the pre-lodgement consultation, and understanding of the functional requirements of the future stadium and benchmarking of aspects of the stadium experience against best-practice examples of stadia in Australian and internationally. This approach has facilitated the development of principles for the future built form and public realm which will ensure that the stadium provides for an international-standard facility which is grounded in an understanding of the constraints and opportunities of the local place. The Guidelines address and outline principles across the spectrum of design considerations, including; access and movement, building height and massing, public realm and open space, security and safety, activation, wayfinding/ signage/ interpretation, architectural expression, sustainability and cultural and heritage significance. These considerations will form the basis for the briefing and assessment of the design excellence process, outlined in Section 4.1.3. … 6.4.3 Design Excellence As outlined in Section 5.1.4, in order to ensure that the future stadium achieves design excellence, this application seeks endorsement for an invited competitive design alternatives process that will apply to the detailed design that will be the subject of the Stage 2 DA. This process is outlined in the Design Excellence Strategy provided at Appendix D, which has been developed in consultation with, and to the satisfaction of, the NSW Government Architect and provides details of how design excellence will be addressed at each stage of the planning and development process to ensure a high quality architectural and public domain outcome. The design excellence provisions of clause 6.21 of Sydney LEP 2012 apply to development involving the construction of a new building, as well as external alterations to an existing building, and seek to deliver the highest standard of architecture and urban design. The Concept Proposal and detailed Stage 1 demolition component do not seek development consent for the construction of a new building - these provisions will apply instead to the Stage 2 Development Application. Clause 6.21(5) requires a competitive design process to be held if the proposed development has a CIV over $100 million (amongst other triggers), and clause 6.21(4) outlines the factors that are required to be considered by the consent authority in determining whether a development achieves design excellence through the competitive design process. … 6.17 Ground Contamination A Preliminary Site Investigation report has been prepared by Douglas Partners (Appendix S) which comprises a desktop assessment of the potential for ground contamination within the site of the proposed stadium prepared in accordance with the requirements of State Environmental Planning Policy No.55 - Remediation of Land. The assessment draws upon previous contamination information gathered within the SCSGT precinct, including from soil testing obtained from the construction of the Sheridan Building, Bradman Noble Stand and ARDC building. As outlined in Section 3.2.5, there is the potential for some contamination beneath the site associated with previous filling and demolition of prior structures on the site prior to the construction of the current SFS in the 1980s. Based upon analysis of the nearby sites for which detailed investigation has been undertaken, key potential contaminants include polycyclic aromatic hydrocarbons (PAHs) which is likely to be due to the presence of cinder, ash and slag as well as concentrations of heavy metals such as lead, mercury and zinc. In addition, there are two underground storage tanks (USTs) which are located along the eastern site boundary used for petrol and diesel storage for on-site maintenance vehicles and equipment, and pool chemicals are also stored on-site for maintenance of the member's swimming pool. The land use on the site will not change as a result of the Concept Proposal, with the continuation of the stadium use. The Preliminary Site Investigation report has adopted standards for contamination in accordance with the "National Environment Protection (Assessment of Site Contamination) Measure, Schedule B1 - Guideline on Investigation Levels for Soil and Groundwater" (NEPC, 2013) which provides assessment levels for various soil, groundwater and vapour contaminants and as detailed further at Appendix S. The Stage 1 Demolition scope for which development consent is sought as part of this application involves the demolition of the existing slab down to slab level only. Accordingly, no soil will be disturbed and accordingly no contamination impacts are expected to arise as a result of those detailed works for which consent is sought. A Detailed Site Investigation (Phase 2) will be undertaken and submitted with the Stage 2 Development Application, and a Remedial Action Plan (RAP) will be developed as required in order to confirm the nature and extent of contamination present within the site and to establish protocols for the classification and management of any contamination which may be present. This requirement is outlined in the Mitigation Measures included at Section 8.0. In light of the above. Subject to undertaking these further investigations, Douglas Partners conclude that the site either is, or can be made, suitable for the future proposed use of the site. …

1. Appendix S to the EIS contains the Report on Preliminary Site Investigation (Contamination) (PSI Report) from which the following passages are extracted: … 6. Previous Investigations The following investigations that include a contamination component have been undertaken by Douglas Partners: • Project 44417 (2006): Waste classification testing during development of the Victor Trumper Stand at the SCG. This included the analysis of eight soil samples. This testing was somewhat remote from the SFS site. • Project 44783 (2007): Waste classification testing for the Sheridan Building development. This included the analysis of four soil samples. This testing was immediately to the north-west of the SFS. • Project 45867 (2009): Waste classification testing for the Noble and Bradman Stands at the SCG. This included the analysis of 12 soil samples. This testing was to the north-west of the SFS. • Project 84811 (2015): Waste classification testing for the Australian Rugby Development Centre building. This included the analysis of 12 soil samples. This testing was to the north-west of the SFS. The previous investigations encountered filling to depths of between 0.7 m and 7.4 m. The filling was typically sandy, with varying proportions of sandstone, silt, clay, gravel, cinder, ash, slag and building rubble (metal, bricks, ceramic fragments, glass and wood). The laboratory analysis undertaken on samples obtained during these previous investigations is summarised in Table D1 in Appendix D. The analysis indicated: • Significant concentrations of polycyclic aromatic hydrocarbons (PAHs) including Benzo(a)pyrene in 21 samples which is likely to be due to the presence of cinder, ash and slag in the samples; and • Significant concentrations heavy metals including Lead (2 samples), Mercury (1 sample) and Zinc (2 samples) Longer-chain hydrocarbons were also detected in seven samples however these concentrations were relatively low. Analysis of groundwater quality has not been undertaken on the site by Douglas Partners to date. … 9. Preliminary Conceptual Site Model … The human receptors to soil contamination are likely to be the staff, athletes and visitors to the redeveloped site. Construction personnel, nearby workers/visitors/residents and the general public may also be receptors during the construction phase of the redevelopment project. The ecological receptors are likely to be limited to the flora and fauna that grow/live on the adjacent sites. The area is not known to be ecologically significant. … 10. Conclusions and Recommendations On the basis of the results of this Preliminary Site Investigation, the main contamination risks are considered to be associated with previous filling works and the demolition of structures prior to the construction of the current stadium. The previous laboratory testing results for samples obtained from adjacent sites indicate that the filling contained significant concentrations of PAHs which are likely dur 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 3 m 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 testing will be required to confirm the actual contaminant status of the groundwater on site. Prior to any 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, if such characterisation is required. However, on the basis of the investigation undertaken to date it is considered that the risk of significant contamination being present, that prevents the redevelopment of the site without significant remediation, is low. Subject to the further investigations specified, we expect that the site either is or can be made suitable for the proposed use. If required, on site containment of contaminated soils could readily be achieved where technically possible (e.g. for non-!eachable PAHs, non-leachab!e metals, asbestos etc.} and off-site disposal where containment is not feasible. Further details on the contaminant status of the soil and groundwater will be required before developing remediation options further, if such remediation is required. Any materials required to be removed from the site will need to be classified in accordance with the current Waste Classification Guidelines (NSW EPA, 2014). …

SFS Response to submissions - September 2018

1. The Department of Environment and Planning (Department) prepared a "Response to Submissions" (RTS) in relation to those submissions received from the Department, local and State government agencies and the general public during the public exhibition of the SSD DA for the staged redevelopment of the SFS. Parts of the report are extracted below: SFS Response to Submissions (SSD9249) Response to Submissions Report September 2018 … 2.0 Public Exhibition and Submissions 2.2.2 Analysis of Issues Raised … Table 2 Summary of public submissions by issue raised … Issue Tag - Building envelope Issue Description - Comments relating to the scale of the building envelope and associated visual, wind and overshadowing impacts, and assurances that the future stadium will be designed and constructed to fit within the building envelope. Response Summary - • The proposal will not result in adverse environmental impacts, as detailed in the Visual Impact Assessment, Shadow Diagrams and Wind Design Principles provided with the publicly exhibited EIS and the Addendum Visual Impact Assessment accompanying this report. • Should the Concept Proposal be approved, the detailed Stage 2 Development Application must not be inconsistent with this consent pursuant to the requirements of Section 4.24 of the Environmental Planning and Assessment Act 1979 (EP&A Act). Reference to Information - • Sections 5.1 and 6.4 of EIS • Section 4.2 of RTS • Section 16 of RTS Attachment 3 … Attachment 1 - Detailed Response to Agency Submissions … 1.8 City of Sydney … No Extract Response … … … Design Excellence Strategy Structure and terminology Provision 1.2 of the City of Sydney Competitive Design Policy does not operate to restrict the inclusions of matters within a Design Excellence Strategy. COS29 Parts 1, 2 and 3.2 of the Design Excellence Strategy are outside of the scope of the matters required for inclusion in a Design Excellence Strategy prepared in accordance with Provision 1.2 of the City of Sydney Competitive Design Policy (the Policy). Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs. Part 1 and 2 is information that would be included in a Competitive Design Process Brief. The following comments are limited to Part 3 of the Strategy which address the relevant matters as stated at provision 1.2 of the City of Sydney Competitive Design Policy (the Policy). Design integrity process Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments COS30 Section 3.2 of the Strategy titled Design Integrity Process states the continuation of the role of the assessment panel (Selection Panel) following the competitive process through the design development phase. As noted above (under structure and terminology), this process sits outside the scope of the matters required in a strategy. made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs. The Strategy should confirm and clarify the proposed Design Integrity Process is in addition to and does not override the requirements of the design integrity provisions at provision 5.1 of the Policy. The provision of a Design Integrity Panel is seen as a positive commitment that will ensure the maintenance of design integrity throughout the process. The provisions of Section 5.2 of the Policy only require the convening of a Design Integrity Assessment prior to the lodgement of the Stage 2 application. The process proposed in Appendix D- Design Excellence Strategy section 3.2 allows for ongoing interaction with the competition jury to ensure maintenance of the integrity of the design throughout all stages. COS31 Urban Design Guidelines Noted. The Design Excellence Strategy indicates that the future designs submitted as part of the competitive design process will be assessed against the Urban Design Guidelines prepared by SJB Architects (along with the requirements of Sydney LEP 2012 and the principles outlined in the Government Architect's "Better Place - An Integrated Design Policy for the Built Environment of New South Wales). Accordingly, Attachment A contains the City's recommended changes to the Urban Design Guidelines. … … …

… 1.10 NSW Government Architect's Office NSW Government Architect's Office Design Excellence No Extract Response GA1 In general, we support the proposed Design Excellence Strategy, however we note that achieving design excellence for this project will rely on the skill and innovation capabilities of the design team in responding to the design guidelines and the opportunities of the site. We encourage the proponent to consider approaching emerging or new design practices with a reputation for innovation in design and delivery. Noted. … … …

... Attachment 3 - Summary and Response to Issues Raised in Public Submissions … 20. Design excellence Issue Raised - The design excellence approach will be dictated by budget and will result in a mediocre building. Proponent's Response - The Design Excellence Strategy included at Appendix D of the EIS has been endorsed by the NSW Government Architect as being a suitable approach to achieve design excellence. Issue Raised - No modification s should be made after the design excellence competition to ensure that cost-cutting does not occur Proponent's Response - The Design Excellence Strategy included at Appendix D of the EIS has been endorsed by the NSW Government Architect includes design integrity measures to ensure that the design competition scheme is delivered. …

1. A supplementary response to submissions was also prepared by the Department and referred to by the parties which has not been extracted.

Department of Planning and Environment Assessment Report - December 2018

1. This report provided an assessment of the SSD application lodged by INSW seeking approval for the redevelopment of the SFS. The Department relied on this report in its briefing to the Minister to determine the application. Parts of the report are extracted below: ... 2. Project … 2.2 Concept Plan The building envelope has been informed by, and developed in conjunction with, the development of a reference design prepared by Cox Architecture (the architect firm responsible for the existing SFS) that incorporates all of the functional and operational requirements of a Tier l stadium with a seated capacity of 45,000 persons (55,000 for concert mode with 10,000 additional standing capacity in the field of play). The building envelope arising from this reference design process has been enlarged to provide a "loose-fit" maximum building envelope that would accommodate not only the reference design, but also other possible architectural and structural design responses to the functional brief for the stadium. The final detailed building envelope, including compliance with the maximum building envelope, would be detailed further in the Stage 2 Development Application. The proposed building envelope would be located closer to the Driver Avenue frontage, than the existing footprint, and would have a larger footprint than the existing stadium to accommodate the functional parameters. This would require the demolition of the adjoining Sheridan, Waratahs, Roosters and Cricket NSW buildings. The overall proposed envelope would also be higher than the existing stadium. … 2.5 Design Excellence A Design Excellence Strategy has been prepared by the Applicant in collaboration with the NSW Government Architect (GANSW) to ensure that the future stadium achieves design excellence by following a competitive design process in accordance with the City of Sydney Council's Competitive Design Policy (2013). This strategy has been endorsed by GANSW. In addition, the Urban Design Guidelines for the Concept Plan include measures to guide the detailed design in a variety of areas. … Statutory Context … 4.2 Permissibility The site is identified as being located within the SPl Special Activities zone that is designated for Recreation Facility (Major) under the Sydney Local Environmental Plan 207 2 (SLEP). The proposed stadium is classified as a recreation facility (major) and is permissible with consent within the zone. The proposed stadium is also expected to incorporate a range of ancillary uses such as food and drink premises, a function centre and kiosks which would operate during stadium operations with the potential for some facilities to operate independently during non-event periods. These uses are ancillary and subordinate to the primary use of the site as a stadium. … 4.4 Mandatory Matters for Consideration 4.4.1 Environmental planning instruments … Table 2 (g) to promote good design and amenity of the built environment, • The proposal provides Urban Design and Public Realm Guidelines which establish the framework for the future detailed design of the stadium to promote good design and amenity. The detailed design of the new stadium would be the subject of a competitive architectural and landscape architecture design process. • The Concept Proposal promotes good design being consistent with the submitted urban design principles as detailed in Section 6 … 6. Assessment … 6.2 Built form and urban design (Concept Proposal) … The Department considers that the following aspects of the Concept Proposal are the key assessment issues in determining the appropriateness of the built form and spaces in this prominent location: • design excellence • building envelope location • public realm and permeability • visual impacts • overshadowing • landscaping. … The proposal would include a 360-degree oculus or a ring-road within the stadium structure to accommodate the services. The built form would be complimented by new urban plazas which would be accessible to the public. The future building envelope would include the opportunity for ground level tenancies. … 6.2.1 Design excellence … The future stadium design would need to demonstrate design excellence in accordance with the requirements of clause 6.21 of the SLEP. These provisions require that the Applicant would be required to undertake a competitive design process for the detailed stadium design in accordance with SLEP and architectural design competition procedures approved by the Planning Secretary. In response to the above requirements, the Applicant's EIS includes a Design Excellence Strategy in addition to the UDG, which has been prepared in collaboration with, and endorsed by, the GANSW to ensure that the future stadium achieves design excellence by following a competitive design process in accordance with the City of Sydney Council's Competitive Design Policy (2013). The Design Excellence Strategy indicates that a competitive design process would need to be undertaken prior to the lodgement of the future application(s), with the Design Competition Jury typically retained as a Design Integrity Panel (DIP) for the life of the project, to ensure key design elements are retained and design excellence is delivered through the development. 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: … The Applicant's RtS and amended UDG acknowledged the issues raised in the public submissions and indicated that the loose fit envelope provides the maximum envelope for the site. As described in the Design Excellence Strategy, the design of the stadium would be through a competitive design competition and the matters raised in the submissions would be incorporated in the Stage 2 detailed design. Figure 18 identifies the development of the proposed architectural expression through the design excellence process. Figure 18 I The design excellence process in Stage l (left) and Stage 2 (right) (Source: Applicant's RtS) The GANSW reviewed the Applicant's RtS and advised that the urban design principles for the built form should demonstrate innovation by including more details in relation to specific frameworks for the proposed public spaces, details of levels of access, increased permeability, wayfinding strategies, landscaping opportunities and sustainability. However, GANSW indicated that the principles can be refined and detailed during the design competition process and be assessed in detail in the Stage 2. Council raised concerns that the proposed design competition does not meet the objectives of the competitive design processes in the SLEP. The Department has reviewed the Applicant's EIS, RtS 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 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. The Design Excellence Strategy provides an opportunity to further develop the planned goals through competitive process and the Stage 2 Detailed Design Development Application process would allow for further consultation and input. This would allow for a holistic and detailed approach to functional elements of the new stadium, as well as general design philosophies compatible with the surrounding context and character of the area. The Department considers that the location size and importance of the site warrants adherence to a design excellence process, and the establishment of a DIP (comprising experienced architects and other qualified professionals) is an appropriate mechanism to ensure that future buildings on the site achieve the highest possible standard of design. The Department also notes that future development application(s) and the design of the stadium would be subject to future public exhibition and consultation. The Department has recommended the following conditions to ensure that the future detailed design is aligned with the concept design and that a high standard of design is delivered: • a design competition process to be undertaken prior to the lodgement of the Stage 2 application • the Stage 2 development application to demonstrate design excellence and be consistent with the UDG • the Stage 2 development application to include visual impact assessment, heritage impact assessment and solar access diagrams to demonstrate that the proposed enlarged building height and footprint does not unreasonable impact on the views available to the locality and does not overshadow or have adverse impacts on the SCG or the adjoining parklands (details discussed below) • the public spaces around the stadium to be identified and strategies for use of these spaces be provided to allow community engagement within the site on event and non-event days • strategies for pedestrian connections and the suitability of such connections to be provided to allow access through the site without impacting on the amenity of the surrounding residents and business owners. 6.2.2 Building Envelope location and footprint The proposed relocation of the stadium building envelope closer to Moore Park Road and Driver Avenue, would require the demolition of many of the existing ancillary facilities within the site. The Applicant's EIS notes that the provision of a larger stadium footprint would ensure that the new stadium can meet necessary modern stadium design standards, including strict security, access and international competition requirements; ensure that the optimum amount of stadium seating can be accommodated within the new stands; allows for the inclusion of ancillary ground floor tenancies and the establishment of the sporting, tourist and entertainment precinct and provide scope for innovation in the facade design as part of the competitive design process. Council raised concerns that the building footprint is too large to include satisfactory public areas as proposed in the UDG. The Department has carefully assessed the proposed location of the building envelope with a larger footprint. The Department notes that while the existing stadium has a smaller footprint, it does not accommodate the required functionalities of a Tier l stadium. Further, the site boundary is currently fenced and does not allow for any public activities or community engagement on non-event days. While the footprint of the stadium is proposed to be increased, the UDG does not propose a fenced boundary for the site, specifically to Moore Park Road and Driver Avenue. The open spaces around the stadium have been identified for public congregation with a range of opportunities and activities that would be identified in detail in the Stage 2 development application (Figure 19). The Department considers that this would provide a strong street-edge to Moore Park Road and Driver Avenue allowing the future stadium to better engage with the public realm, activating the street and creating an environment in which ground level uses are viable seven days a week. It would also result in the creation of the two public areas, indicated in Figure 20, that would provide for a high standard of design and functionality and increase the appeal of the sporting, tourist and entertainment precinct for public. … 6.2.4 Visual impact The height and footprint of the proposed envelope is larger than the current stadium. The roof height of the existing stadium varies due to its shape and the existing masts which form an integral part of the physical fabric of the stadium. The approximate height of the saddle shaped roof awning of the existing stadium varies between RL 54m - RL 78.9m AHD whereas the masts vary in height between RL 59m AHD- RL 84.9m AHD. The proposed maximum height of the loose fit envelope would be at RL 85m AHD. A comparison of the heights is provided below (Figure 24). … The Department agrees with the Applicant's conclusions in the assessment of the proposed visual impact assessment. The Department is satisfied that the management of potential visual impacts for any Stage 2 can be suitably mitigated, subject to the appropriate design which would be guided by the design competition and the UDG. The Department has recommended conditions of consent requiring that the Stage 2 development application be supported by a Visual and View Impact Assessment to ensure that the future stadium design does not have unreasonable impact on the views available to the private and the public areas. 6.2.5 Overshadowing … The Department has assessed the shadow diagrams and is satisfied that the proposed stadium envelope would have negligible impacts on SCG and the surrounding parklands. A condition of consent requires that the Stage 2 application be supported by solar access diagrams to demonstrate that the proposed stadium would not overshadow the playfield of SCG, the adjoining parklands any residences. 6.3 Heritage … 6.3.2 Heritage impacts (Concept Proposal) … 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 in Section 6.2, 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. 6.7.3 Contamination 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. … 6.8 Summary of Department's consideration of submissions … Table 10 Built Form and Design Excellence • The Department has undertaken a comprehensive assessment of the built form and urban design principles in Section 6. The Department is satisfied that the building design envelope is appropriate for the site, with the Design Excellence Strategy providing an opportunity to develop the detailed design at Stage 2. • Conditions of consent require the preparation of the detailed design of the future stadium in accordance with the provisions of Council's competitive design policy (Section 6.2.1). … 8. Recommendation It is recommended that the Minister for Planning: • considers the findings and recommendations; • accepts and adopts all of the findings and recommendations in this report as the reasons for making the decision to grant consent to the application; • agrees with the key reasons for approval listed in the notice of decision (see Appendix C); • grants consent/approval for the application in respect of SSD 9249; and • signs the attached development consent and recommended condition of consent (see Appendix D). 9. Determination … 10. Appendices … Appendix A - List of Documents The following supporting documents and supporting information to this assessment report can be found on the Department of Planning and Environment's website as follows. l. Environmental Impact Statement 2. Submissions http://majorprojects.planning.nsw.gov.au/index.pl?action=view_job&job_ID=9249 3. Applicant's Response to Submissions http://majorprojects.planning.nsw.gov.au/index.pl?action=view_job&job_id=9249 4. Applicant's Supplementary Response to Submissions http://majorprojects.planning.nsw.gov.au/indexpl?action=view_job&iob_id=9249 Appendix B - Statutory Considerations … 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 l 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 l 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. Sydney Local Environmental Plan (SLEP) 2012 … SLEP Department Comment /Assessment … … Clause 6.21 Design excellence Urban Design Guidelines have been prepared for this proposal, along with a Design Excellence Strategy to achieve design excellence through a competitive process. The Stage 2 Detailed Design development application will also involve further consultation on design. This will achieve the objectives and outcomes of the clause.

Briefing note for the determination of SSD 9249

1. The Department's briefing note to the Minister for Planning to determine the SSD application for the redevelopment of the SFS is extracted below: Determination of the Concept proposal and Stage 1 works for the Redevelopment of the Sydney Football Stadium (SSD 9249) at Moore Park Purpose: To request the Minister for Planning determine a State significant development (SSD) application lodged by Infrastructure New South Wales (the Applicant) for the redevelopment of the Sydney Football Stadium (SFS), comprising a Concept proposal and Stage 1 Early Works at Moore Park, subject to recommended conditions. Analysis: The Department has assessed the merits of the proposal and considered the key issues associated with the project. The Department is satisfied the impacts of the proposed development and issues raised in the submissions have been addressed in the Environmental Impact Statement (EIS), Response to Submissions (RtS) and Supplementary Response to Submissions (SRtS) and can be adequately managed through the recommended conditions. The Department has finalised its assessment of the proposal and recommends the application be approved, subject to conditions. Approval deadline: To ensure timely determination of the State significant development application to reduce overall assessment timeframes. Recommendations 1. Consider the environmental assessment report (Tab A). 2. Accept and adopt the findings and recommendations of the environmental assessment report, with the exception of the following recommendations which were not accepted: 3. Grant consent to Concept Proposal and Stage 1 works for the redevelopment of the Sydney Football Stadium by signing the attached instrument (Tab B). 4. Agree that the Notice of Decision accurately reflects the key reasons for the decision (Tab C), or provide any additional reasons for making this decision: 5. Note that should the concept Proposal and Stage 1 works be approved, a subsequent Stage 2 application will need to be lodged by the Applicant for the construction and operation of any new stadium. … The applicant has argued that a larger building envelope is needed to accommodate the additional functional parameters and to meet modern standards within the stadium. The future detailed design of the stadium is subject to a competitive design process and will be requir4ed to demonstrate design excellence. The Department considers that the proposed building envelope would not have an unreasonable impact on the nearby residential areas, the parklands and the adjoining heritage items, either visually or in terms of overshadowing. …

Notice of Minister's decision to grant consent dated 6 December 2018

1. Parts of the Minister's notice of decision made pursuant to s 2.22 and cl 20 of Sch 1 of the EPA Act is extracted below: Decision The Minister for Planning has, under section 4.38 of the Environmental Planning and Assessment Act 1979 (the Act) granted consent to the development application subject to the recommended conditions. A copy of the development consent and conditions is available here. A copy of the Department of Planning and Environment's Assessment Report is available here. Date of decision Reasons for decision The following matters were taken into consideration in making this decision: • the relevant matters listed in section 4.15 of the Act and the additional matters listed in the statutory context section of the Department's Assessment Report; • the prescribed matters under the Environmental Planning and Assessment Regulation 2000; • the objects of the Act; • all information submitted to the Department during the assessment of the development application and information considered in the Department's Assessment Report; • the findings and recommendations in the Department's Assessment Report; and • the views of the community about the project (see Attachment 1). The findings and recommendations set out in the Department's Assessment Report were accepted and adopted as the reasons for making this decision. The key reasons for granting consent to the development application are as follows: … Attachment 1 - Consideration of Community Views Issue Consideration … … Assessment • The Department has undertaken a comprehensive assessment of the built form and urban design principles in Section 6. The Department is satisfied that the building envelope is appropriate for the site, the overall context and the functional parameters of the proposed future stadium. • The application is supported by a Design Excellence Strategy which provides for further opportunity to develop the detailed design at Stage 2 and contribute positively to the built environment. Built form and Urban Design • The loose fit envelope is considered appropriate as it minimises overshadowing impacts on the Sydney Cricket Ground (SCG) field and Moore Park East while providing flexibility to accommodate functional requirements of the future stadium. • the height and footprint of the loose fit building envelope is much larger than the existing stadium and would result in adverse visual impacts on the locality and the wider region as well as environmental amenity impacts including overshadowing of adjoining parklands • The concept design and Urban Design Guidelines have been prepared in consultation with the Government Architect NSW and Cox Architects, to ensure the preliminary design in compatible with the future character of the area. • the proposed design competition does not meet the design intent or objectives in the Sydney Local Environmental Plan 2012 (SLEP) • The Department's assessment of the visual impacts concludes that although there would be additional impacts of the future stadium on sensitive receivers, parklands and heritage items in the surrounding area, the impact is reasonable, given the scale of the proposal. The proposed envelope would not detrimentally impact on iconic views or result in complete loss of public or private views. Further design development would assist in reducing any negative visual impact in the locality. • detailed design of the stadium has not been provided for a full assessment of the impacts • The detailed design and operational parameters of the stadium would be assessed in a future Stage 2 application which would be informed by the Design guidelines established under the Concept Proposal. • the capacity of the future stadium is unknown • The Department notes that the stadium would be designed to host a maximum of 45,000 patrons for all events except concert events where a maximum of 55,000 patrons would be permitted. • the design does not include sufficient information regarding the integration with Driver Avenue and Moore Park • The Department considers that the opportunities for integration of the stadium with the adjoining parklands can be further explored in the Stage 2 application, Urban Design Guidelines and the suitability of such connections be established prior to detailed design. • pedestrian connections with the adjoining properties to the east may result in a number of adverse impacts including, traffic, noise and antisocial behaviour. Conditions • The future development application is to demonstrate design excellence. • The future development application to undertake a "design alternatives" competition process in accordance with the City of Sydney Competitive Design Policy and be supported by a Design Integrity Assessment. …

Development consent for SSD 9249

1. The development consent for the proposal made pursuant to s 4.38 of the EPA Act provides: As the Minister for Planning: (a) I approve the Development Application referred to in Schedule 1, subject to the conditions specified in Schedule 2 and Schedule 3. (b) Pursuant to section 4.37 of the Environmental Planning and Assessment Act 1979, I determine that any subsequent stage of the development not being for the purpose of a recreational facility with a capital investment value in excess of $30 million is to be determined by the relevant authority and that stage of the development ceases to be State significant development. These conditions are required to: • prevent, minimise, or offset adverse environmental impacts; • set standards and performance measures for acceptable environmental performance; • require regular monitoring and reporting; and • provide for the ongoing environmental management of the development … SCHEDULE 1 Concept development application for the redevelopment of Sydney Football Stadium including: • A Concept Proposal comprising: ◦ a maximum building envelope for the stadium including basement and a roof over all permanent seating; ◦ maximum stadium capacity of 45,000 seats (55,000 patrons in concert mode); ◦ member areas, premium box/terrace, function lounge and corporate suite operations; ◦ flood lighting, stadium video screens and ancillary fittings; ◦ team, media and administration facilities, food and beverage areas; ◦ new playing pitch and provision for ancillary uses; ◦ public domain works and landscaping; and ◦ identification of the existing Moore Park Carpark 1 (MP1) as the demolition and construction compound. • Concurrent Stage 1 works comprising: ◦ demolition of the existing stadium including the existing Sheridan, Roosters, Waratahs, Cricket NSW Administration Building and Indoor Wickets to ground level (existing slab level); ◦ removal of 26 trees; and ◦ use of the existing MP1 as the demolition compound. … DEFINITIONS … Construction - All physical works to enable development, including but not limited to the demolition and removal of buildings, the carrying out of works for the purposes of the development, and erection of buildings including the acoustic enclosure / shed to the concrete crusher and other infrastructure permitted by this consent, but excluding the following: • building and road dilapidation surveys; • investigative drilling, investigative excavation or Archaeological Salvage; • establishing temporary site offices (in locations identified by the conditions of this consent); • installation of environmental impact mitigation measures, fencing, enabling works; and • minor adjustments to services or utilities. … SCHEDULE 2 CONDITIONS OF CONSENT FOR CONCEPT DEVELOPMENT APPLICATION PART A ADMINISTRATIVE CONDITIONS … Terms of Consent A2. The development may only be carried out: … b) in accordance with all written directions of the Planning Secretary authorised by this consent; … d) in accordance with the approved plans in the table below: … Limits of consent A6. This approval does not allow any components of the Concept Proposal, to be carried out without further approval or consent being obtained from the relevant consent authority, except the "Concurrent Stage 1 works", identified in Schedule 1 of this development and in accordance with the list of plans approved under Schedule 3 condition A2. … PART B CONDITIONS TO BE SATISFIED PRIOR TO LODGEMENT OF FUTURE DEVELOPMENT APPLICATIONS Planning Secretary's Environmental Assessment Requirements B1. Prior to the lodgement of future Development Application(s) related to this consent the Applicant must seek Planning Secretary's Environmental Assessment Requirements (SEARs). Community Consultative Committee B2. The Community Consultative Committee (CCC), required by Schedule 3 condition B9, must be operative and functional prior to the lodgement of the future development application for the detailed design and operation of the stadium on the Site. Competitive Design Process B3. Prior to lodgement of the future development application, the Applicant will undertake a "design alternatives" competitive process in accordance with clause 4.1 of City of Sydney Competitive Design Policy (City of Sydney, 2013) and the approach outlined in the SFS Design Excellence Strategy provided as Appendix D of the EIS. B4. Prior to the lodgement of the future development application a Competitive Design Alternatives Report must be prepared, as described by the SFS Design Excellence Strategy at Appendix D of the EIS including the following: a) each of the design alternatives considered; b) an assessment of the design merits of each alternative; c) the rationale for the choice of preferred design and clearly demonstrate how this best exhibits design excellence in accordance with the provisions of Clause 6.21(4) of the Sydney Local Environmental Plan 2012 and the approved SFS Design Excellence Strategy at Appendix D of the EIS; d) demonstrate how this design and the overall site layout is consistent with the Sydney Football Stadium Urban Design Guidelines; and e) a copy of the brief issued to the architectural firms. B5. The Competitive Design Alternatives Report must be signed by the members of the assessment panel responsible for selecting the winning design through the Competitive Design Process. B6. Prior to the lodgement of the future application, the Competitive Design Alternatives Report must: a) be presented to the CCC; b) be submitted to the Planning Secretary for endorsement at least six weeks prior to lodgement of the development application, unless otherwise agreed by the Planning Secretary; and c) include evidence of any feedback provided by the CCC as a result of the presentation. B7. Prior to the lodgement of the future development application the designer of the winning scheme (as chosen via the "competitive design process") is to be appointed as the Design Architect to: a) prepare a Development Application for the preferred design; and b) prepare the design drawings for the contract documentation. Note: The winning architect may work in association with other architectural practices but is to retain a leadership role over design decisions. B8. Prior to the lodgement of the future development application, a Design Integrity Assessment Panel (DIAP) must be established. The members of the DIAP must comprise of the members of the assessment panel responsible for selecting the winning design through the Competitive Design Process. B9. Any reports endorsed by the DIAP, prior to the lodgement of a future development application, must be presented to the CCC and be referenced in any minutes. … PART C CONDITIONS TO BE SATISFIED IN FUTURE DEVELOPMENT APPLICATIONS Design Excellence and Urban Design Guidelines … C1 The future development application must demonstrate design excellence having regard to the following matters: a) a high standard of architectural design, materials and detailing appropriate to the building type and location; b) the form and external appearance of the proposed development to improve the quality and amenity of the public domain; c) how the proposed development addresses the following matters: i) any heritage and archaeological issues and streetscape constraints or opportunities; ii) an increased appreciation and integration of heritage values of the site into the design and operation of the development; iii) the bulk, massing and modulation of buildings within the approved envelope including street frontage heights; iv) environmental impacts such as acoustic privacy, solar access to adjoining buildings and public spaces, noise, wind impacts on surrounding areas and reflectivity; v) the achievement of the principles of ecologically sustainable development; vi) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network; vii) the impact on, and any proposed improvements to, the public domain; viii) achieving appropriate interfaces at ground level between the building and the public domain; ix) innovation in design and delivery; x) future proofing the development so that it can adapt to foreseeable changes in events, patronage, transport, access etc; and xi) excellence and integration of landscape design. C2. The future development application must be supported by a Design Integrity Assessment (DIA) to inform whether the proposal is equivalent to or is an improvement upon the design excellence qualities of the winning competition scheme. The DIA must be prepared, and the DIA report signed by the members of DIAP required by Schedule 2, condition B8. C3. Details of the presentation of the DIA report to CCC, as required by Schedule 2 condition B9, and feedback as a result of the presentation, must be submitted as part of the future development application. … C5. The building envelope of the stadium proposed in the future development application must be consistent with the approved plans listed in Schedule 2, condition A2. C6. The building envelope of the stadium proposed as part of the future development application is restricted to a maximum height of RL 85m Australian Height Datum (AHD) and a maximum depth of RL 39.3m AHD. C7. The future development application must include details addressing the following strategies (but not be limited to) outlined in Section 8.4 of the Sydney Football Stadium Urban Design Guidelines in relation to: a) the public activities and associated design elements within the four "open spaces" Driver Avenue Terraces, Moore Park Road Plaza, Oatley Road Place and Sydney Live Plaza; b) separation of commercial activities integrated within the stadium structure and the identified public spaces Moore Park Road Plaza and Oatley Road Place so that these areas can be predominantly used for public purposes; … Visual Impact Assessment C13. The future development application must be supported by a Visual Impact Assessment Report to identify and assess all impacts of the proposed stadium on the visual catchment of the Site. The Visual Impact Assessment must be based on the identified view locations in the Visual Impact Assessment Report and Addendum prepared by Ethos Urban dated June 2018 and September 2018 The Visual Impact Assessment report must consider the impact of the future stadium design on the settings, view lines and heritage significance of the Sydney Cricket Ground (SCG) Members Stand and Lady Members Stand and include appropriate management and mitigation measures to minimise adverse visual impacts (where relevant). Solar Access C14. The future development application must be supported by solar access diagrams to address whether adequate solar access is provided, between 9am and 3pm during winter solstice, to the SCG playing field (immediately south of the proposed building footprint) and all other adjoining buildings including the public open spaces adjoining the site at Moore Park. Community use of the Sydney Football Stadium Site C15. The future development application must address the details of the proposed public and community uses of the Site in accordance with the Sydney Football Stadium Urban Design Guidelines - "Pubic Realm and Open Spaces". This should include (but not be limited to) opportunities for: a) community access to the identified public areas on event and non-event days; b) dedicated spaces with activities for the community; c) enhancement of the public domain and open spaces within the site and integration of the uses with the design of the stadium; and d) additional features / facilities that form part of the site and the stadium and can be shared with the community on non-event days. Moore Park Masterplan 2040 - Stadium Implementation Plan C16. The future development application must include a strategy of physical works and / or implementation plans and programmes to address how the development can contribute to the delivery of the identified principles, moves, opportunities and strategies of the Moore Park Masterplan 2040. The strategy and the implementation plan must be based on the conclusions of the review of the Moore Park Masterplan 2040 and the consultation required by Schedule 2 condition B12 and B13. … Contamination, Site Investigations and Remedial Action Plan C23. The future development application must be accompanied by detailed environmental site investigations to identify contaminants of potential concern and any potential sources of contamination within the ground, groundwater and infrastructure beneath the site. These investigations must be completed in line with the NSW Sampling Design Guidelines (EPA, 1995). These investigations must include a consideration of contaminated soils, fill etc. and groundwater as appropriate and identify any contaminants of potential concern. The record of these investigations is to be accompanied by Phase 2 Environmental Site Assessment report detailing the contaminants of potential concern and any potential sources of contamination within the ground, groundwater and infrastructure beneath the site and recommending the process to manage or resolve potential contamination risks. C24. The Phase 2 Environmental Site Assessment report is to be reviewed by an EPA accredited Site Auditor to confirm the adequacy of the investigations to date, the required unexpected finds protocol, the proposed approach to managing or resolving potential contamination risks and/or to confirm the suitability of the proposed land use. C25. If the Phase 2 Environmental Site Assessment report recommends that remediation of the site is required, then a detailed Remedial Action Plan (RAP) must be provided as part of the future development application for the design and construction of the stadium. The RAP is to be prepared in accordance with the Guidelines for Consultants Reporting on Contaminated Sites (EPA, 2011). The RAP must be approved by an EPA accredited site auditor and submitted as a part of the future development application for consideration by the Department and EPA. … SCHEDULE 3 CONDITIONS OF CONSENT FOR STAGE 1 WORKS PART A ADMINISTRATIVE CONDITIONS … Limits of Consent … A6. The works approved under Stage 1 of this development consent involves demolition of the relevant structures to the slab or the existing ground level only. A7. No works involving excavation, ground disturbance or changes to the existing ground level or grade are permitted under this development consent. …

Managing Land Contamination - Planning Guidelines - SEPP 55 - Remediation of Land (Contamination Guidelines)

1. The Contamination Guidelines are the "contaminated land planning guidelines" referred to in SEPP 55 and relevantly provide: 1. Introduction 1.1 Purpose In some situations, the use of land can result in its contamination by chemicals, posing a risk to human health or the environment and precluding later development of a site for particular uses. The purpose of these Guidelines is to establish "best practice" for managing land contamination through the planning and development control process. The Guidelines explain what needs to be done to show that planning functions have been carried out in good faith. Obviously they cannot provide a definitive answer in all cases, so planning authorities will also need to exercise their judgement … 3. What information is needed to make a decision … 3.2 Initial Evaluation by the Planning Authority An initial evaluation is essential to determine whether contamination is an issue and whether sufficient information is available to carry out a planning function in good faith. The purpose of the initial evaluation is for the planning authority, before a planning function is exercised, to determine whether land contamination is relevant to the decision being made and whether further information is required from the proponent … 3.2.1 Suggested Checklist for Initial Evaluation … Table 1. Some Activities that may Cause Contamination • acid/alkali plant and formulation • agricultural/horticultural activities • airports • asbestos production and disposal • chemicals manufacture and formulation • defence works • drum re-conditioning works • dry cleaning establishments … 3.5.2 Stage 1 - Preliminary Investigation The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination. Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established. A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences. Where the preliminary investigation shows a history of non-contaminating activities at a site and, in the absence of other contrary evidence, there will be no need for further investigation. … If there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way. …

Applicants' affidavit evidence

1. Mr Maltby treasurer, public officer and nominated spokesperson for LDM swore an affidavit dated 5 February 2019. I note that this affidavit was read in support of LDM's application for expedition of the hearing which was granted. Mr Maltby attested that LDM was incorporated in early 2017 to represent residents' concerns over the proposed amalgamations of local councils and issues of democracy and participation more generally. Mr Maltby stated that the objects of LDM are to protect local democracy in the Woollahra, Waverley and Randwick local government areas and to encourage civic advocacy in support of local democracy amongst all residents in these local government areas.
2. Mr Maltby stated that the demolition of the SFS and construction of a new stadium affects residents of the Woollahra, Waverley and Randwick local government areas as the significantly larger stadium will be visible from all local government areas. Further the development will impact on residents of neighbouring local government areas through the loss of open space and amenity. Mr Maltby stated that the decision to demolish a 45,000 seat stadium to make way for a new 45,000 seat stadium at a potential total cost of $674 million lacks merit. Design excellence and planning for the remediation of land are important issues for LDM's members and matters of public interest. Mr Maltby stated that LDM's view is shared by the almost 218,000 people who signed the Change.org online petition started by columnist Peter Fitzsimons. A screenshot of the Change.org petition taken on 4 February 2019 was annexed to his affidavit. A personal submission Mr Maltby made objecting to the proposal during the exhibition period is annexed to the affidavit. This was one of the 673 objections to the proposal made as referred to in the "Notice of Decision" dated 6 December 2018 annexed to Mr Maltby's affidavit.
3. Mr Maltby stated that LDM has been aware since at least 20 December 2018 that senior counsel's legal advice was available which stated that the decision to demolish the SFS had been made invalidly. Councillors of City of Sydney, Woollahra, Waverley and Randwick Councils had access to the legal advice. Waverley Council moved to pursue legal action at its meeting of 20 December 2018 however that meeting did not gain a quorum and was held over until 7 January 2019. Minutes of these meetings record the Waverley Council's decision to take legal action if the Minister for Planning had not made a satisfactory response to the shortcomings of the development consent by 14 January 2019 conditional upon at least one further council resolving to join as a co-applicant in any such proceedings. A quorum was not achieved until the meeting of 21 January 2019. On 29 January 2019 Randwick City Council resolved not to join Waverley Council in initiating legal proceedings. On 2 February 2019 LDM convened a meeting to discuss the available legal advice and Randwick Council's decision. On 3 February 2019 LDM convened another meeting and determined to commence legal proceedings seeking to challenge the validity of the Minister's determination. The minutes of the above meetings are annexed to Mr Maltby's affidavit.
4. Mr Maltby attested that he is aware that "soft stripping" off the site has begun. He visited the site on the afternoon of 4 February 2019 to observe the state of the stadium. The SFS and surrounding buildings appeared intact. Mr Maltby estimated from visual observation that possibly 50 percent of the stadium seating has been removed. Photos taken by Mr Maltby on 4 February 2019 showing the interior of the stadium are annexed to his affidavit.
5. Mr Maltby stated that condition B9 of Sch 3 of the development consent dated 6 December 2018 does not permit any demolition activity (other than the "soft stripping" referred to above) until the Community Consultative Committee is functioning in accordance with the "Community Consultative Committee Guidelines: State Significant Projects 2016". Mr Maltby believed that the initial meeting of the Committee occurred on 7 February 2019.
6. Mr Monks director of Waverley Futures swore an affidavit dated 8 February 2019. Extracts of Waverley Council meetings held on 12 December 2017, 15 May 2018 and 16 October 2018 are annexed to his affidavit. Mr Monks stated that these indicate that the Council has constantly expressed concerns regarding the impacts of the proposal on open space, local traffic congestion, public transport capacity and long term effect on public land. Letters to the Minister for Sports and the Department reflecting these concerns are annexed to his affidavit. The minutes of the sequence of Waverley Council meetings preceding the Council's decision to commence legal proceedings are also annexed to his affidavit.
7. Mr Monks stated that on 6 February 2019 a representative of Lendlease stated words to the effect, without undertaking, that presently "the hard demolition is slated for late February".

Respondents' affidavit evidence

1. Mr Riches executive program director of the INSW (the First Respondent) affirmed an affidavit dated 15 February 2019. Mr Riches is the head of Projects NSW which is mandated to procure and deliver major capital works projects. He is currently responsible for the SFS redevelopment. Mr Riches described the series of community consultation sessions INSW initiated with members of the community and key stakeholders regarding the SFS redevelopment. He also described the various key stakeholder meetings he attended regarding the redevelopment. Mr Riches stated that he attended the first meeting of the Community Consultative Committee on 7 February 2019 which was held in response to conditions B2 (Sch 2) and B9 (Sch 3) of the development consent.
2. The contract between INSW and Lendlease for demolition of the SFS dated 7 December 2018 (the Contract) is annexed to Mr Riches' affidavit. This Contract provides for bulk excavation, piling and foundation works for the new stadium for which INSW is responsible for obtaining development consent. The Contract also includes the provision of design management by Lendlease to assist in finalising the design of the new stadium.
3. Mr Riches stated that on 30 January 2019 a Crown certificate for the SFS redevelopment was issued. This was required before any soft strip work could commence on the site. Mr Riches stated that Lendlease is required under the Contract to assist INSW to complete the design and make an offer to INSW for the construction of the new stadium by 30 May 2019 (the Stage 2 Offer). Works comprising bulk excavation, piling and foundations are intended to be completed by 30 June 2020. The construction of the new stadium is to be completed by the date specified in the Stage 2 Offer. Under the "Master Program" Mr Riches prepared for the SFS development, construction is intended to be completed by the end of 2021. Stadium events are targeted to recommence by March 2022.
4. Mr Riches stated that under the Contract, if a legal challenge occurs to the approval for the project which relates to a matter which is outside the reasonable control of the contractor, Lendlease is entitled to claim an extension of time to the Contract program and delay costs. INSW would be liable to pay $46,000 to Lendlease per day pursuant to Item 48A2 of the Contract Information attached to the Contract for each day of delay to the works until such time as INSW issues a notice to recommence works on the site.
5. Mr Riches was cross-examined by the Council on the Contract between INSW and Lendlease dated 7 December 2018. Mr Riches stated that he was involved in the negotiation of the terms of the Contract. He confirmed that the completion date for the Stage 1 works in the Contract is 30 June 2020. Mr Riches confirmed that the Minister signed the development consent on 6 December 2018, that the above Contract was executed on 7 December 2018 and Lendlease is required to make its offer for the Stage 2 works by 31 May 2019. The Council asked Mr Riches whether Lendlease is bound under the Contract to offer a specific amount for the Stage 2 works. Mr Riches stated that Lendlease was bound to offer a specific amount for design and preliminaries but not for the construction itself. Further Mr Riches stated that INSW could terminate the Stage 1 works Contract if it rejected Lendlease's offer. In that situation Lendlease would be entitled to payment for the work done to date and the preliminaries.
6. Mr Riches was also cross-examined on the operation of cl 50 of the Contract which outlines the conditions upon which Lendlease can claim an extension of time for completing the works. Clause 50.8 states that the "Principal may, in its absolute discretion but without any obligation to do so, extend any Contractual Completion Date or Stage 1 Completion Date … as applicable at any time and for any reason, whether or not the Contractor has claimed an extension of time". Mr Riches confirmed that under cl 50 a judgment is made as to whether the ultimate completion date is affected by the delay in respect for which the delay claim is made.
7. Mr Riches was also cross-examined on cl 12A of the Contract which is titled "Planning Approval (Stage 2)" and contemplates amendment to the Stage 1 approval. Mr Riches stated that at the time of the execution of the Contract INSW anticipated that it may submit a modification to the Stage 1 planning consent to seek approval for the concept design and the inclusion of excavation and civil works which were not included in the first stage approval.
8. Mr Riches confirmed that for Lendlease to make a Stage 2 offer there needs to be a final design for the construction of the stadium. He stated that the design competition process occurred in August/September in 2018.
9. Clause 26A.6 of the contract states that the "Contractor must, within 15 Business Days after the Date of Contract and at least 40 Business Days before first mobilising to the Site, prepare and submit an Environmental Management Plan to the Principal under clause 32A.3". Regarding this clause Mr Riches stated that "mobilising to the Site" means the commencement of work on site. As to whether an environmental management plan had been provided to INSW within 15 days of the date of the Contract, Mr Riches stated that he could not answer this and that it would have been provided to INSW's project director.
10. Mr Riches was asked about whether there was any specific arrangement between INSW and the Sydney Cricket and Sports Ground Trust (SCG Trust) in relation to any costs that INSW may incur as a consequence of the demolition and construction of the stadium. Mr Riches stated that there is not, apart from the fact that the scope of the work within the pricing schedules excludes SCG Trust members' facilities.
11. Mr Riches was also asked about the Busby Bore (the Bore). He confirmed that the Bore is a State heritage item. Sydney Water consented to the carrying out of investigative works in relation to the Bore and the heritage section of the Department provided a certificate under s 57 of the Heritage Act 1977 for the carrying out of investigative work. Mr Riches stated that investigative work has been carried out and the physical exclusion zone for the Bore has been identified.
12. Mr Riches confirmed that Standard GC21 in the Contract states that in certain circumstances of termination INSW may be obliged to pay Lendlease two percent of the remaining value of the Contract less amounts unpaid to Lendlease at that time.
13. Mr Riches was cross-examined by LDM about whether he knew that the Department was informed about additional contamination assessment being undertaken by Douglas Partners on behalf of INSW. Mr Riches stated that he had no knowledge of this. Mr Riches stated that he is INSW's executive program director which means that he oversees a range of projects across NSW. He has general oversight of the SFS redevelopment and does not manage the project on a day-to-day basis. Mr Riches stated that people working directly on the project only reported to him about matters of significance. As to whether Mr Riches believed that INSW's receipt of questions from the Department concerning the application was a matter of significance, Mr Riches stated that this was part of the normal course of business and as such would have been dealt with at project level.
14. Mr Riches was asked about the meeting he stated he attended in his affidavit dated 15 February 2019 with the Department and Mr Kennedy of GTK Consulting. Mr Riches stated that he did not recall the detail of the discussions at this meeting. He stated that he did not recall whether he gave any reports to the Department at this meeting. Mr Riches was also asked whether he had discussions about remediation before the grant of the Consent on 6 December 2018. He stated that he only had general discussions regarding the preparation of documentation required to be submitted with the Stage 2 planning application. Mr Riches stated that he was not personally aware that Douglas Partners had produced a remediation action plan but that his staff would have been aware.

Ground 1 - alleged failure to exhibit DA for 30 days (LDM)

1. The Minister's reasons and the Department of Planning and Environment Assessment Report dated December 2018 (Department Assessment Report) both state that the proposal was publicly exhibited for 28 days between 14 June and 11 July 2018. The parties agree that the period of public exhibition was 28 days. The amended summons stated: 1 The proposal was exhibited for 28 days between 14 June and 11 July 2018. However the exhibition period that applied at that time was fixed by cl 83 of the Environment Planning and Assessment Regulation 2000 (EPA Regulation) (since repealed) which required a minimum submission period of 30 days. Particulars a. The development application was for State significant development (SSD) under Div 4.7 of the EPA Act. b. As such, at all material times cl.83 of the EPA Regulation provided for a minimum submission period of 30 days, which varied the 28 day period that Schedule 1, cl 9 of the EPA Act otherwise provided for. c. The minimum 30 day time period requirement was mandatory, having regard in particular to s.4.60(2)(a) of the EPA Act. d. The DA and supporting documentation was publicly exhibited for 28 days, rather than 30 days. e. In the premises, the Consent is invalid and of no effect.

LDM's submissions

1. LDM submitted that the time for the exhibition period that applied in June 2018 was fixed by cl 83 of the EPA Regulation which has since been repealed. It specified 30 days as the minimum submission period "for the purposes of s 89F(1)(a) of the Act". This must be read as a reference to Sch 1.9 to the EPA Act per cl 4A(2) and (3) of the Transitional Regulation as s 89F(1)(a) was repealed on 1 March 2018. In 2018 the EPA Act was renumbered and the community participation provisions were re-allocated to s 2.22 and Sch 1 to the Act.
2. While Sch 1.9 provides for a period of 28 days for exhibiting a state significant development (SSD) application, that period can be varied by regulation (Sch 1.21), as it was by cl 83 of the EPA Regulation. Contrary to the narrow construction contended for by the Respondents, the power to make other changes in the EPA Regulation is broadly expressed.
3. No issue of the implied repeal of cl 83 arises as the EPA Act expressly authorises an inconsistent regulation (Pearce & Geddes, Delegated Legislation in Australia (5th ed, 2017, LexisNexis Butterworths) at [19.8]. The specific regulation-making power in ss 4.39 (concerning SSD) and 4.64(1)(g) (concerning notification of development applications (DA)) have no consistency limitation, unlike former s 157 (now s 10.13). In any event there is no inconsistency.
4. Clauses 9 and 21 of Sch 1 are a re-enactment of the former s 89F within the meaning of cl 5 of the Transitional Regulation. "Re-enact" is not defined but a fair reading shows that the concept is not limited to where a provision has been relocated or renumbered in relevantly identical terms.
5. Clause 4A(3) of the Transitional Regulation is critical in this case and provides that a reference in a document (defined by cl 4A(1) and (2)) to any renumbered or relocated provision, issued or made before or after the commencement of this clause) is taken to include a reference to the provision before it was renumbered or relocated.
6. It can therefore be stated that: 1. section 89F(1)(a) does two things, identifies 30 days as the minimum period for public exhibition and allows the regulations to specify a longer period; 2. section 89F(1)(a) has been relocated and renumbered by it being split into two new provisions: cll 9 and 21 of Sch 1 to the Act; 3. Division 2 of Sch 1 to the Act, which contains cl 9, is headed "Minimum public exhibition periods for development applications" [emphasis added] and so clearly contemplates additional requirements being made; 4. clause 9 of Sch 1 to the Act itself refers to the former s 89F ("cf previous s 89F"); 5. the "concordance table" in the historical notes to the Act which "shows provisions of this Act as in force immediately before the commencement of the Amendment Act and the corresponding decimal section numbers following amendment by that Act" specifies Sch 1.9 (which specifies 28 days) as the corresponding decimal section number for previous s 89F. Although not forming part of the Act per s 1.4(13), the table may still be used as extrinsic material in the circumstances specified in s 34 of the Interpretation Act; 6. clause 21 of Sch 1 performs the same essential function as the former s 89F(1)(a), namely to extend the period for public exhibition beyond the statutory minimum; 7. "relocation" can include with amendment (modification) per cl 4A(5) of the Transitional Regulation; and 8. when cl 83 was removed with effect from 1 September 2018, other clauses in Div 6 of the EPA Regulation were amended by replacing references to s 89F(1)(g) of the Act with references to s 4.64(1)(g).
7. Section 89F is a transferred provision within the meaning of cl 5 of the Transitional Regulation. In addition, cl 4A(4) provides that the clause which concerns the interpretation of renumbered or relocated provisions of the Act is subject to any contrary intention in the provision in which a relevant reference occurs.
8. The Minister incorrectly submitted that "amend" in Sch 1.21 of the EPA Act only encompasses a prospective variation to the 28 day exhibition period effected by the regulations. While cl 83 was in effect prior to the enactment of Sch 1 the schedule does apply to cl 83.
9. It follows that the community consultation period was truncated, in breach of the Act. Such provisions are mandatory, hence the heading to Pt 1 of Sch 1 "Mandatory community participation requirements" and the reference in cl 21 of Sch 1 to the Act prescribing "additional mandatory requirements for community participation". Most importantly, s 4.60(2)(a), which by subs (1) applies only to Ministerial consents, provides that the only requirements of the Act that are mandatory in connection with the validity of a development consent include the requirement that a DA to carry out SSD and its accompanying information be publicly exhibited for the minimum period of time.
10. That late submissions were considered is irrelevant because there may have been many objectors who decided not to make a submission at all because they were only able to do so outside the truncated period per Curac v Shoalhaven Shire Council (1993) 81 LGERA 124 at 130. The operation of an earlier provision in Pt 3A (s 75X(5)) (now repealed) in similar terms was described by Jagot J in Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [184]: ... as an expression of Parliament's intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3)… [the environmental assessment must be made publicly available for 30 days].

Respondents' submissions

1. The Minister submitted in par 1 of its points of defence as follows: i. the Environmental Planning and Assessment Amendment Act 2017 (NSW) (Amending Act) amended the minimum exhibition period requirements with respect to State significant development which were previously contained in s 89F of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and cl 83 of the Environmental Planning and Assessment Regulation 2000 (NSW) (read together), and repealed s 89F; ii. from the commencement of the Amending Act on 1 March 2018, by reason of s 2.22 read together with Schedule 1.9 of the EP&A Act, the applicable minimum exhibition period with respect to State significant development was fixed at 28 days; iii. cl 83 of the Environmental Planning and Assessment Regulation 2000 (NSW) did not operate to "vary" the 28 day period fixed in Schedule 1.9 pursuant to Schedule 1.22.
2. The Amendment Act expressly repealed s 89F of the EPA Act (see Sch 2.1(1) to the Amendment Act, which relevantly states "Omit Parts 2 and 2A"). Read together, s 2.22 and Sch 1.9 of the EPA Act did not in terms re-enact the community participation requirements in s 89F of the EPA Act and cl 83 of the EPA Regulation. Rather, they amended and revised those provisions.
3. Section 2.22(1) provides that "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". The Note to this subsection relevantly states that "The mandatory requirements include public exhibition for a minimum period ...".
4. Division 2 of Pt 1 of Sch 1 of the Act is headed "minimum public exhibition periods for development applications and other matters". Sch 1.9 states: 9 Application for development consent for State significant development (cf previous s 89F) 28 days.
5. This may be contrasted with other numerous provisions of the Amendment Act which simply renumbered and relocated provisions of the Act. By way of example, ss 77, 77A, 78 and 78A were renumbered and relocated as (respectively) ss 4.9, 4.10, 4.11 and 4.12 but remained unchanged in substance.
6. LDM submitted that "[a]lthough Schedule 1.9 provides for a period of 28 days for exhibiting an SSD application, that period can be varied by regulation (Schedule 1.21), as it was by cl 83 of the Regulations". Schedule 1.21 provides that the regulations "may amend Part 1 of this Schedule: (a) to prescribe additional mandatory requirements for community participation, or (b) to make other changes to that Part".
7. However, read in context, this does not assist LDM. Clause 83 of the EPA Regulation did not operate to amend Sch 1.21 as contended. There is nothing in the language of the clause to suggest that it "amended" Sch 1.21. Clause 83 was a provision that existed in that form prior to the enactment of Sch 1.21, and as at the time of the exhibition period, referred to a provision (s 89F(1)(a)) which had been repealed and amended by the Amendment Act. In terms, as it stood at the time of the exhibition period, cl 83 did not refer to or purport to vary the specific provision for a 28 day consultation period. In the circumstances, cl 83 was inapplicable.
8. Further, s 2.22(1) read together with Sch 1.9 evince a clear legislative intention that Parliament intended to "revise" the minimum public exhibition period for SSD to be 28 days.
9. This is reinforced by the explanatory note to the Environmental Planning and Assessment Amendment Bill 2017 which states, inter alia (emphasis added): 1. Under the heading "Overview of Bill" on page 1, that the Bill "(c) 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". 2. Relevantly, that "Schedule 2.1[1] and [2] revise and consolidate community participation requirements..." and that "Proposed Schedule 1 to the principal Act sets out the draft planning instruments and decisions that are to be placed on public exhibition and the requisite period of exhibition".
10. To read Sch 1.21 as, in effect, over-riding the effect of the amendments by reverting to the previous stipulated exhibition period in cl 83 would not accord with this intention. It is submitted that Sch 1.21 is intended to provide for prospective variation of the provisions of Sch 1 to provide for additional mandatory requirements or other amendments, not to pre-existing consultation periods expressly revised by the Amendment Act. Moreover, Sch 1.21 permits the EPA Regulation to amend Sch 1, not to make a regulation which is inconsistent with and so overrides the provisions of Sch 1.
11. These submissions were adopted by INSW.
12. In addition, the SCG Trust submitted that s 89F(1)(a) did not require two things but only one. It permitted a regulation to prescribe a period of exhibition provided that such prescription was not less than 30 days. After 1 March 2018 the Amendment Act repealed s 89F. On and from that date there were no "purposes of s 89F(1)(a)" as that provision no longer existed. Clause 9 of Sch 1 came into force and prescribed 28 days as the period of public exhibition. Clause 83 of the EPA Regulation is inconsistent with this period. Section 10.13 (formerly s 157) provides that a regulation cannot be inconsistent with the Act. Clause 83 had no application after 1 March 2018.
13. Clauses 9 and 21 are not a re-enactment of s 89F. The Amendment Act effected a comprehensive renumbering of all the provisions of the EPA Act. It did this by repealing and re-enacting the various Parts of the EPA Act with fresh number for the provisions in each Part. In many (if not the majority of) cases the wording of the provision did not change.
14. The SCG Trust submitted that it is those cases to which cl 5 of Sch 13 and thus s 30A of the Interpretation Act apply so as to have the effect that the old provision effectively remained in force over the period of the repeal and re-enactment. Therefore had cl 9 of Sch 1 been a re-enactment of s 89F then its repeal and re-enactment would have had no effect on the continued authorisation and construction of cl 83.
15. Clause 9 is not a re-enactment of s 89F because it is materially different. Section 89F did not prescribe any period itself (with the proviso that whatever period is set in the regulations it must not be less than 30 days) but cl 9 does. There is no substantial identity of function between the two provisions per Albury City Council v North Albury Shopping Centre Pty Limited (1985) 1 NSWLR 220 at 222 (Albury City Council) (Priestley JA with Kirby P and Hope JA agreeing at 223).
16. Alternatively if cl 9 is a re-enactment of s 89F it was clearly modified such that the period of 28 days was set. Therefore pursuant to s 30A(3) of the Interpretation Act, s 89F would only continue to have effect as modified by cl 9. The modification is to require public exhibition for 28 days.

Finding on Ground 1

1. The first issue to resolve is whether s 89F(1)(a) continued in effect after 1 March 2018 as that largely determines whether cl 83 had work to do after that date, an exercise in statutory construction. Rules of statutory construction are well known although not always easily applied. In Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council [2018] NSWLEC 26 I stated at [61]-[62]: … Principles of statutory construction require the words of a statute to be considered in their context per Project Blue Sky at [381]-[382] where McHugh, Gummow, Kirby and Hayne JJ stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision." Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 11 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ). In Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at 46-47 (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy.
2. The focus of s 89F(1)(a) was primarily to place an obligation on the Secretary of the Department to place a DA for SSD on public exhibition. The SCG Trust's construction of s 89F(1)(a) as otherwise only doing one thing of enabling the regulations to prescribe the period for public exhibition of a DA which must not be less than 30 days is correct. The section does not have two separate and distinct aspects, contrary to LDM's submissions. That is clear from the plain and ordinary meaning of the text particularly the inclusion of the words "not less than 30 days" in parentheses after the word period as a qualifying factor for the period of public notification to be specified in a regulation.
3. Concerning statutory context, if the two operative provisions (cll 9 and 21 of Sch 1 to the EPA Act) LDM contended for applied there would have been no need for cl 83 at all. A separate period of 30 days would not need to have been specified as occurred in cl 83.
4. That finding is important as it informs what occurred in the course of the changes to the EPA Act resulting from the Amendment Act and the Transitional Regulation. The Amendment Act and Transitional Regulation resulted in the version of the EPA Act as at 1 March 2018 which is the focus of these proceedings. Clause 5 of Pt 2 of Sch 13 of the Amendment Act and cl 5 of the Transitional Regulation are in identical terms and state that to the extent the Amendment Act re-enacts provisions of the EPA Act s 30A of the Interpretation Act applies to the transferred provisions. There is no definition of "re-enact" in either instrument.
5. When s 89F was repealed effective from 1 March 2018 s 2.22 "Mandatory community participation requirements" was introduced. It states in subs (1) that Pt 1 of Sch 1 sets out the mandatory requirements for community participation by planning authorities for various planning functions. Div 2 of Pt 1 of Sch 1 specifies the minimum public exhibition period for development applications. Clause 9 states the period for SSD is 28 days.
6. Clause 4A(3) of the Transitional Regulation concerns the construction of renumbered or relocated provisions and was relied on by LDM. "Relocated" is defined in subcl (5) as including repealed and re-enacted with or without modification. LDM submitted that s 89F(1)(a) was relocated in light of the broad and inclusive definition of relocated in subcl (5). Section 89F did not prescribe any period, rather it specified a minimum period for the regulations as I found above in [79]. Further, given that s 89F(1)(a) expressly stated a minimum period of 30 days cl 9 of Sch 1 cannot be regarded as a re-enactment of s 89F(1) as it refers to 28 days as the SCG Trust submitted.
7. Further, as the SCG Trust submitted cl 5 of Sch 13 to the Amendment Act stated that the provisions in Schs 1, 2 and 3 are re-enacted transfer provisions to which s 30A of the Interpretation Act applies. Clause 5 of Sch 13 and s 30A of the Interpretation Act apply with the effect that the old provision remains in force over the period of the repeal and re-enactment. Because cl 9 is not a re-enactment of s 89F, s 30A of the Interpretation Act concerning the operation of transferred provisions does not apply.
8. I also note that according to cl 2.3[14] of Sch 2 to the Amendment Act s 89F was omitted.
9. Further, in the historical notes to the EPA Act a number of other provisions were repealed. A number of different provisions are identified as being amended. A clear difference in the treatment of different sections is apparent.
10. The combination of these findings leads me to conclude that s 89F(1) was not repealed and re-enacted as referred to in cl 4A(3) of the Transitional Regulation but was simply repealed. As the SCG Trust submitted, consequently there were no purposes (functions) of s 89F(1)(a) remaining after its repeal from 1 March 2018 so that cl 83 of the EPA Regulation had no functions as from that date. That was a factor referred to by Priestley JA in Albury City Council at 222 as the SCG Trust submitted. In that case a substantial identity of function was found between the old and new provisions of the act in question.
11. LDM prayed in aid the concordance table found after the historical notes of the EPA Act on the basis that it can be considered to inform construction as provided for by s 34 of the Interpretation Act. The concordance table refers to Sch 1.9 in relation to cl 89F(1)(a) not Sch 1.21. LDM submitted the application of Sch 1.21 also impliedly gave effect to s 89F. Assuming the concordance table can be referred to as an extrinsic aid to construction, there is nothing expressly in the Act to support that submission nor in the concordance table.
12. In the same vein the phrase "(cf previous s 89F)" appears next to the heading of s 1.9. It provides useful context in highlighting the change from the period specified in s 89F(1)(a) but connotes nothing more as an aid to construction.
13. I also agree with the Minister's submission set out in [68]-[71] above as to why cl 83 did not amend Sch 1.9 pursuant to Sch 1.21. It must follow that I do not accept LDM's submission in [54] above that the EPA Act authorised in cl 83 an inconsistent regulation relying on s 4.39 and s 4.64(1)(g). I note that s 10.13 does specify that regulations must not be inconsistent with the Act.
14. I agree with the Minister's submission that the effect of LDM's approach imputes to the legislature an intention that despite the express amendment to the 28 day exhibition period provided for in s 2.22 and Sch 1.9 the legislature immediately intended to revert back to the 30 day period in cl 83 of the EPA Regulation. Such an intention is not supported by the legislative scheme analysed above.
15. LDM has not established Ground 1.

Ground 2 - failure to consider mandatory requirements of cl 6.21 of SLEP 2012 design excellence (LDM / Waverley Council)

1. Ground 2 of LDM's amended summons stated: 2 The Minister failed to form the opinion regarding design excellence required by cl 6.21(3) of the Sydney Local Environment Plan 2012 (SLEP), and failed to have regard to the mandatory relevant considerations specified by cl 6.21(4). Particulars a. Clause 6.21(2) of the SLEP relevantly provides that cl 6.21 applies to development involving the erection of a new building or external alterations to a building on land to which the SLEP applies. b. The subject land is within the boundaries of the City of Sydney, and hence is on land to which the SLEP applies. c. The DA concerned "development involving the erection of a building" within the meaning of cl 6.21 because the DA included a concept proposal for a building envelope for a new stadium on the subject land. d. In determining the DA, the Minister failed to form the opinion regarding design excellence required by cl 6.21(3) of the SLEP, and failed to have regard to the mandatory relevant considerations specified by cl 6.21(4). e. In the premises, the Consent is invalid and of no effect.
2. The Minister must comply with s 4.15 in assessing the concept DA and apply where relevant any environmental planning instrument. It is accepted that cl 6.21 of the SLEP applied to the Minister's decision to approve the proposal. Clause 6.21 provides: Division 4 Design excellence 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. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than: (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital investment value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) development for which the applicant has chosen such a process. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (7) A building demonstrating design excellence: (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of: (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) Nothing in this clause permits a consent authority to grant development consent to the following development: (a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or (b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or (c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan. (9) In this clause: building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. capital investment value has the same meaning as in the Environmental Planning and Assessment Regulation 2000. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy.
3. Subclauses (6), (7) and (8) have no role to play in this case.

LDM's submissions

1. LDM submitted that the concept DA is for a development that involves the erection of a new building as referred to in cl 6.21(4). Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 (Uniting Church) is directly on point. The Minister did not form the required opinion or have regard to relevant matters as there is no indication that he did in the Minister's reasons for decision. There is no such expression of opinion in the Department Assessment Report. The EIS which supported the concept DA identified the design excellence provisions of cl 6.21 of the SLEP and stated that the concept proposal and detailed Stage 1 demolition component did not seek development consent for the construction of a new building and that cl 6.21 would apply to the Stage 2 DA. The design competition required by cl 6.21(5) would apply to Stage 2. The scheme approved by the Minister was for a design excellence scheme to be applied to the future Stage 2 application. The Minister did not form the mandatory opinion that the concept DA achieved design excellence as required by cl 6.21.
2. There is no doubt that from information in the EIS, in particular the "Urban Design Guidelines" (Appendix C) and the "Visual Impact Assessment" (Appendix H), an argument can be mounted that consideration was given to design excellence. However that is not sufficient. The duty imposed by cl 6.21 is upon the consent authority to consider whether the development exhibits design excellence and to have regard to those matters stated in subcl (4) which are relevant to the concept development proposal, in order to form the opinion in subcl (3) that the proposal does or does not as the case may be, exhibit design excellence per Uniting Church at [53]. For example, subcl (4)(b) requires a consent authority to have regard to whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain. Neither form nor external appearance are fully described at this stage, but the building envelope sets the parameters (not the outer parameters as asserted in the EIS) of the building of which erection will be approved in Stage 2. It should be possible to assess whether a building of that bulk was likely to improve the quality and amenity of the public domain, although other aspects of form and external appearance are unknown. Likewise subcl (4)(c) requires the consent authority to consider whether the proposed development detrimentally impacts on view corridors. Some attention was paid to this question in the visual impact assessment, making it clear that even at the concept proposal stage the impact of a development of that bulk on view corridors and the public domain was capable of assessment to determine whether the concept proposal exhibited design excellence.
3. The concept DA was capable of assessment to determine whether it exhibited design excellence. Clause 6.21 requires more than an assessment of impact which is what the EIS and supporting material is largely directed to. Subclause (3) imposes a jurisdictional requirement that development consent not be granted unless in the opinion of the consent authority the proposed development exhibits design excellence. Absent the formation of that opinion consent cannot be granted because the Minister lacked the requisite power.
4. The Minister adopted the Department Assessment Report's findings and recommendations and nowhere in that report or the notice of decision does the Minister express the opinion required by cl 6.21(3). While many of the impacts referred to as capable of being minimised, managed or offset to an acceptable level are referred to, in cl 6.21 they are to be considered for the purposes of that clause concerning whether the proposal delivers the "highest standard of architectural, urban and landscape design" per cl 6.21(1). The conditions imposed concerning design excellence are intended to enable the Stage 2 application to meet the requirements of cl 6.21(1). The applicant for development consent and the Department considered it was unnecessary to reach an opinion that the concept proposal exhibited design excellence. Rather that was a matter able to be deferred to Stage 2 of the proposed development by requiring a strategy which would require design excellence to be considered.
5. Consequently the Minister did not form a positive opinion that the proposal did in fact exhibit design excellence as he was required to do by cl 6.21. The existence of that mental state was an essential pre-condition to the exercise of the power to grant development consent, see Franklins Ltd v Penrith City Council [1999] NSWCA 134 (Franklins) at [28], Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 (Hortis) at [28] and Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 (Moorebank 2018) at [134].
6. In the absence of any express statement in any of the decision-making documents indicating the formation of such an opinion, the Minister is left in the invidious position of having to persuade the Court to draw the inference that such an opinion was formed by reference to various statements evidencing consideration of design excellence matters generally strewn throughout the relevant documents. It is, however, necessary to bear in mind the observation of Tobias JA in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 (Caroona) at [64] (with Giles and Hodgson JJA agreeing at [1] and [2] respectively) to the effect that it is normally insufficient to merely point to material before the decision-maker which demonstrates no more than that they were aware of the issues relevant to their decision or which, if taken into account, would satisfy the relevant precondition.
7. Contrary to par 44 of the Minister's submissions, the fact that the Minister might have undertaken consideration of each of the relevant matters in cl 6.21(4) (which was not conceded) does not support the drawing of any inference as to whether the Minister actually formed the positive opinion that the proposal before him exhibited design excellence. The obligation in cl 6.21(3) may be "expressed at a high level of generality" and the considerations set out in cl 6.21(4) may be "closely tethered" to the requirement to form the requisite opinion in cl 6.21(3). However they are separate obligations both of which must be satisfied prior to the valid grant of a development consent.
8. Further LDM submitted that s 4.24(2) of the EPA Act provides that the determination of any further DA in respect of the site cannot be inconsistent with the development consent for the concept proposals for the development of the site. According to Preston CJ at [44] in Uniting Church, this means that the approved building envelope fixes the envelope within which any building can be erected. This is a powerful reason for considering design excellence at the concept proposal stage.

Council's submissions

1. The Council submitted that s 4.22 of the EPA Act makes provision for a concept DA which is an application that sets out concept proposals for the development of a site and for which detailed proposals for the site are to be the subject of a subsequent DA. According to s 4.22(4) development consent granted to the determination of a concept DA does not authorise the carrying out of the development. The Council submitted that a concept plan is not simply a notional first step. Relying on Preston CJ's observations in Uniting Church, the Council stated that a concept plan establishes the location of the development, the relationship of that development with its neighbours, the envelope, height and setbacks from boundaries inter alia. The design excellence provisions of the concept plan therefore concern the validity of the development consent for demolition. Without demolition being permissibly founded on the approval of the concept plan, demolition alone is not permissible.
2. The Council submitted that the importance of the concept plan is further highlighted through the fact that in this case a concept plan can satisfy the requirement for a development control plan (DCP). Clause 7.20(2) of the SLEP states that if the site area the subject of development is outside Central Sydney and is more than 5,000 square metres, development consent must not be granted unless a DCP has been prepared for the land. Section 4.23 of the EPA Act provides that if an EPI requires the preparation of a DCP before development can be carried out, that obligation can be satisfied by the making and approval of a concept DA. Further cl 7.19 of the SLEP requires that the consent authority only approve demolition if the land is the subject of a site specific DCP or is satisfied that the land will be comprehensively redeveloped under an existing development consent relating to the site or under the development consent the subject of consideration.
3. The Council submitted that evaluating design excellence for the purposes of cl 6.21(3) of the SLEP requires more than an assessment of impacts per Uniting Church and Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129 at [48]-[50].
4. The Council referred to Appendix D (Design Excellence Strategy) of the EIS which states that the "proposed concept design will exhibit design excellence …" and the "proposed plans will … exhibit design excellence in accordance with the requirements of clause 6.21(3) of the SLEP and the matters listed in clause 6.21(4) …" The Council submitted that this document makes no conclusion about the plans nor any analysis of what is required to be analysed and considered under cl 6.21 of the SLEP. Further the Council referred to the SFS "Response to Submissions Attachment 1 - Detailed Response to Agency Submissions" (Design Excellence Strategy) and submitted that there is nothing in that extract that assists the Respondents in demonstrating that the Minister assessed design excellence in the concept proposal and formed the opinion required by cl 6.21 that the proposed development exhibited design excellence. Further the SFS "Response to Submissions Attachment 1 - Detailed Response to Agency Submissions" (NSW Government Architect's Office) extracted at [23] above states "we note that achieving design excellence for this project will rely on the skill and innovation capabilities of the design team in responding to the design guidelines and the opportunities of the site", to which INSW responded "noted". The Council submitted that this translates to INSW stating that it will achieve design excellence in the future and no attention was given to design excellence in the concept proposal. This is further demonstrated in the SFS "Response to Submissions Attachment 3 - Summary and Response to Issues Raised in Public Submissions" which states that the "Design Excellence Strategy included at Appendix D of the EIS has been endorsed by the NSW Government Architect as being a suitable approach to achieve design excellence".

Respondents' submissions

1. The Minister submitted that the Minister did form the required opinion about design excellence required by cl 6.21(3). Subclause (4) identifies matters to which regard must be had. The requirement is to have regard to such matters as are of relevance to the development the subject of a development application per Uniting Church at [53]. The same observation was made of concept development applications at [54].
2. The extent to which a matter is relevant under cl 6.21(4) is informed by the nature of a concept DA, described in cl 4.22(1) of Div 4.4 of the EPA Act. A concept DA does not authorise the carrying out of development on any part of the site concerned unless development consent is subsequently granted to carry out development on that part of the site following a further DA in respect of that part of the site per s 4.22(4)(a).
3. Under subs (5) when considering the likely impact of the development the subject of a concept DA, the consent authority need only consider the likely impact of the concept proposals and any first stage of development if included, not the likely impact of subsequent DAs.
4. In this case, the concept proposal established the outer parameters and overarching concept for the site, including the stadium envelope and land uses and set out the planning and development framework to inform the Stage 2 development for the site. The final detailed design was to be determined at Stage 2. In the circumstances of this case, the Minister submits that any assessment required by cl 6.21 necessarily needed to be conducted with a high degree of generality and flexibility.
5. The Applicants bear the onus of proof of demonstrating on the balance of probabilities that the Minister failed to reach the requisite state of satisfaction per SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] (Heerey, Branson and Emmett JJ). The Minister's reasons should not be construed with an eye to legal error per Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-2 (Brennan CJ and Toohey, McHugh and Gummow JJ).
6. As Pepper J observed in 4nature Incorporated v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121 at [149], not all failures to advert to a particular matter for consideration in a statement of reasons will immediately result in a conclusion that it has not been taken into account or that a necessary mental state has not been reached. Whether the inference can be drawn, and if so, its strength, will depend on the surrounding facts and circumstances, including the material before the decision-maker informing and evidencing the decision-making process, and the statutory context within which the decision was made (see, eg, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] and [70] (Gummow J)).
7. Further the Court should not lightly infer that the Minister has overlooked or failed to reach a statutory state of satisfaction: see, eg, Parramatta City Council v Hale (1982) 47 LGRA 319 at 345 (Moffitt P), cited with approval in Currey v Sutherland Shire Council (1998) 100 LGERA 365 (Currey) at 373 (Stein JA), Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88, at 202 (Giles JA) and Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 at [37] (McClellan J).
8. The material in the Department Assessment Report and the documents referred to demonstrate that design excellence was considered at this stage of the assessment insofar as it was relevant to do so. It is apparent from a fair reading of these references that the Department Assessment Report drew a distinction between matters pertinent to the assessment of design excellence insofar as relevant to the concept proposal (supported by, for instance, the various references to the "building envelope" in that context) and more detailed design which would need to be considered as part of the Stage 2 development assessment, informed by the guidelines established at the concept proposal stage.
9. That the Department Assessment Report contemplated that, in summary, the "detailed design and operational parameters of the stadium" would be assessed in a future Stage 2 application which would be "informed by the Design guidelines established under the Concept Proposal" (as extracted at 27) is entirely consistent with the formation of a state of satisfaction, to the extent relevant for the purposes of the concept proposal, that the proposal exhibited design excellence. Indeed, it reflects the reality that the concept proposal sets the parameters for future more detailed assessment pursuant to cl 6.21(3) and that this assessment will need to be undertaken in more detail in the future for the Stage 2 DA by reference to the more detailed design. This reflects the staged process contemplated by s 4.22 of the EPA Act.
10. The Minister also referred to various references in the EIS and Department Assessment Report to show that the Minister considered the factors prescribed by cl 6.21(4).

Finding on Ground 2

1. It is useful to outline the scheme of the EPA Act as it applies to SSD and concept DAs before considering cl 6.21 of the SLEP. Both are the subject of separate divisions under Pt 4 of the EPA Act. Division 4.4 provides for concept DAs which are described in s 4.22(1). A concept DA sets out concept proposals for development of a site for which detailed proposals for the site or separate parts of the site are to be the subject of subsequent DAs. Section 4.15 applies to the consideration of concept DAs as specified in s 4.22(5). In what is known as the Bay Simmer amendment, made after Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135, under subs (5) a consent authority considering the likely impact of the development the subject of a concept development application need only consider the likely impact of the concept proposals and, if applicable, any first stage of development included in the application, here the Stage 1 demolition works. A consent authority does not need to consider the likely impact of carrying out development that may be the subject of subsequent applications. A concept DA can be made in satisfaction of a requirement in an environmental planning instrument of a DCP before a particular development is carried out on land, under s 4.23(2). Under s 4.24(2) the determination of any further DA in respect of the site must not be inconsistent with the concept proposal consented to.
2. The importance of the concept proposal for this location was highlighted in the Council's submissions at [105] above which identified that under the SLEP cl 7.20 provides that development consent must not be given to a new building in specific locations unless a DCP has been prepared for the land. A similar provision applies to demolition in cl 7.19.
3. Division 4.7 considers SSD which can be identified in accordance with s 4.36. Section 4.37 provides that where a concept DA is made for SSD later stages can be determined by the relevant local council if a consent authority so determines. Regulations may make provision for procedures and other matters concerning SSD. Section 4.15 applies to the assessment of SSD, subject to Div 4.7 per s 4.40. Under s 4.43, Div 4.7 and any regulations made under it concerning SSD prevail to the extent of any inconsistency with any other provisions made under the EPA Act relating to development under Pt 4.
4. The parties are in agreement that cl 6.21(3) had to be complied with by the Minister, it being a mandatory provision requiring a consent authority to be satisfied of design excellence, before development consent to the concept DA could be granted. The Applicants emphasise that cl 6.21(3) is jurisdictional so that failing to comply with it means that the Minister had no power to grant development consent. The concept DA required a building envelope to be approved for the stadium development that would be the subject of the later Stage 2 DA. As stated in Uniting Church at [36]-[40] a concept DA is a DA under the EPA Act and seeks consent for development, as defined in s 1.5(1) of the EPA Act. Clause 6.21 applied as the concept plan was found to be for development involving the erection of a new building, as stated in subcl (2) per Uniting Church at [50]-[51]. That case considered an identical provision to cl 6.21 of the SLEP in the Parramatta Local Environmental Plan 2011. Preston CJ upheld in a s 56A appeal the decision of Commissioner O'Neill regarding her assessment of design excellence in relation to a DA for a concept plan for a building envelope.
5. Subclause (4) to the extent that it is relevant must also apply so that a consent authority must have regard to the specified matters where relevant in considering whether design excellence is demonstrated by a development as also identified in Uniting Church at [53]-[54]. The parties agree that Uniting Church represents the applicable law.
6. I do not understand the Applicants to argue that subcl (5) applied to the concept and Stage 1 demolition DA. It provides that development consent for a building must not be granted for certain specified development unless a competitive design process has been held. Subclause (5) will apply to the Stage 2 DA as that will be for a stadium building. The concept DA approval sets up a process for the holding of a competitive design competition for that future building. "Competitive design process" is defined in cl 6.21(9). There is a lot of discussion in the EIS and related material and the Department Assessment Report about the design competition process to be held for Stage 2, as the Applicants emphasised. Conditions B3-B9 in Part B of the development consent to be satisfied prior to lodgement of a future development application refer to aspects of that process. The Applicants submitted that the focus of design excellence consideration in the EIS, the Department Assessment Report and consequently by the Minister was directed to the forthcoming Stage 2 DA, which I note does engage subcl (5), and not the building envelope the subject of the concept DA. The extracts from these documents set out above do consider the process for the Stage 2 development extensively but not exclusively, as I will discuss below.
7. At issue is whether the Applicants have discharged the onus of proof they bear of establishing that the Minister did not arrive at the necessary state of satisfaction about design excellence required by s 6.21(3) before granting development consent to the concept proposal and Stage 1 demolition DA. A pertinent authority in relation to onus of proof and its application in broadly similar circumstances is found in Caroona. Tobias JA (with Giles and Hodgson JJA agreeing at [1] and [2] respectively) stated: [58] However, the correct and only relevant question was that posed by the primary judge at [60] of his reasons, namely, has the appellant established that the Minister failed to form the requisite mental state of satisfaction for the purposes of s 114(6). This required the appellant to establish a negative. However, his Honour went further and made a positive finding of fact that was strictly unnecessary for the purpose of disposing of the issue that had been pleaded at paras 9 and 9A of the appellant's Amended Points of Claim (see [11] above). … [61] The third error of law, based upon what his Honour said at [69] of his reasons, was predicated upon the proposition that it was not sufficient to show that a state of mental satisfaction had been reached or a consideration taken into account by simply referring to the provision or the items which, if the decision-maker had turned his mind to the issue, may have justified a state of satisfaction. Reliance was placed upon the decisions of this court in Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 375; Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [30] and [35]; Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 at [40], [41] and [54]. … [63] As to the third alleged error, his Honour did not say that it was sufficient as a matter of law under s 114(6) to simply set out the section. He did not confine himself in his reasoning process to the fact that the section was attached to the Ministerial Briefing. Rather, he relied upon a conglomeration of facts to which reference was made by his Honour at [65] (see [40] above) and which he considered sufficient to justify the drawing of a positive inference that the Minister had formed the relevant mental state of satisfaction. [64] The authorities relied upon and to which reference has been made at [61] above support the proposition (which is really one of fact, not law) that where it is necessary to establish affirmatively that a decision-maker held a particular state of mind or took into account a specific pre-condition to the exercise of power, it is normally insufficient to merely point to material before the decision-maker which demonstrates no more than that he or she was aware of the issues relevant to his or her decision or which, if taken into account, would satisfy the relevant pre-condition. … [67] As the appellant has failed to establish that there was no evidence capable of supporting the primary judge's inference that the Minister did form the relevant mental state of satisfaction, it must logically and inevitably follow that it has failed to establish, the onus being upon it, that the Minister did not form that mental state of satisfaction. In fact, the appellant did not really attempt to directly prove that negative proposition except by way of the following collateral attack. … [72] As was submitted on behalf of CMA, for the appellant to succeed as a matter of law in establishing that the Minister did not turn his mind to the requirements of s 114(6), it was necessary to demonstrate that the evidence could only compel one conclusion, namely, that the Minister did not turn his mind to the requirements of s 114(6) or, if he did, he did not hold the necessary mental state of satisfaction. In other words, in order to establish that the primary judge had erred in law in failing to find that the Minister did not form the relevant mental state of satisfaction required by s 114(6), the appellant had to convince this Court that the only finding available to his Honour was that the Minister did not consider that issue.
8. Caroona concerned a challenge to an exploration licence granted by the relevant minister on the basis a mandatory consideration of finding that special circumstances existed was not satisfied before the grant of the licence. At first instance the Land and Environment Court (LEC) held that there was sufficient evidence to establish such a finding by the Minister. That finding was not overturned on appeal where the question posed was whether there was no evidence to support the primary judge's finding that the Minister was satisfied that special circumstances existed as required.
9. The Minister's reasons for his decision to approve the concept DA are set out above in the notice of decision in [27] which he signed. The Minister adopted the findings and recommendations of the Department Assessment Report, as he is entitled to do per Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 (Moorebank 2015) at [155] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 30-31 (Gibbs CJ), 65-6 (Brennan J). His reasons state that he took into consideration relevant matters under s 4.15 of the EPA Act and other matters listed in the statutory context of the Department Assessment Report which refers specifically to cl 6.21 of SLEP, prescribed matters in the EPA Regulation, the objects of the EPA Act, all information submitted to the Department during the assessment of the DA and the information in the Department Assessment Report which attached the EIS inter alia and the views of the community. He did not in his reasons make an express statement concerning the formation of an opinion of satisfaction about design excellence required by cl 6.21(3), nor did the Department Assessment Report. The absence of such a statement is really why this ground of review has been raised. As set out above at [25] and [26] and the Department records in its briefing note to the Minister that a process to achieve design excellence for Stage 2 will be required as part of the approval process and states that the building envelope will not have unacceptable impacts on nearby residential areas, parklands and adjoining heritage items, either visually or in terms of overshadowing. The Department Assessment Report states that "the Department has considered the EIS, the issues raised in submissions and the [RTS] and [SRTS]".
10. I agree with the Minister that whether he formed the requisite state of satisfaction in relation to subcl (3) must be considered in light of all the documents and information incorporated by reference to the Minister's reasons for decision. It must also be considered in light of the nature of the concept proposal before him as INSW submitted. Each concept proposal will inevitably be different. The concept proposal in Uniting Church in Australia Property Trust (NSW) v Parramatta City Council required the consideration of overshadowing, a matter in cl 6.21(4)(d)(vii), only. The consideration required for the SFS concept proposal was more complex because of the nature of what was proposed both in the concept proposal and subsequently with the Stage 2 DA. As reflected in the EIS at s 5.1.1 "Building Envelope" the concept proposal sought a maximum building envelope informed by a reference design that incorporates the functional and operational aspects of a Tier 1 stadium and which enables a range of design options to be explored through the competitive design process (extracted above in [18]). The subject of the concept proposal reflects a complicated and significant design process for the new SFS which requires an overall building envelope and guidance on how it is to be filled.

Construction of design excellence provision cl 6.21

1. Design excellence is not defined in the SLEP. Subclause (1) identifies the objective of the clause as delivery of the highest standard of architectural, urban and landscape design. The opinion in subcl (3) must be informed by matters where relevant in subcl (4). LDM submitted that assessment of impacts of the concept proposal was insufficient to satisfy cl 6.21 because it called for a consideration of design excellence not just an assessment of impact and how they would be minimised. As the Minister submitted the matters identified in subcl (4) are in several instances framed in terms of their impact. A clear example is subcl (4)(d)(vii) which refers to environmental impacts including overshadowing and solar access. Consideration of impacts may well be directed to design excellence considerations.
2. In addition LDM submitted that the opinion in subcl (3) had to be formed as a matter separate to consideration of those matters in subcl (4). The Minister's submission was that the requirement to form an opinion that a proposed design exhibits design excellence in cl 6.21(3) must be informed by the matters of relevance in subcl (4). Consequently if a consent authority has undertaken the required consideration of each of the relevant matters in cl 6.21(4) then that consideration can support a conclusion that the proposed development exhibits design excellence. Given that satisfaction of subcl (3) cannot be arrived at without consideration of subcl (4) matters there is strength in that submission. As I identify in the next section that there is evidence supporting consideration of cl 6.21(3) by the Minister I do not need to resolve finally this issue of statutory construction. Whether the Minister's submission is correct will depend on the particular circumstances for a decision and whether an inference of satisfaction arises.

References to cl 6.21(3) obligations in evidence

1. Clause 6.21(3) of SLEP is referred to expressly in Appendix D in the EIS in relation to Stage 1 of the SSDA, extracted at [21] above.
2. The various documents including the SEARs, EIS including the "Design Excellence Strategy" (extracted at [18] above), "Response to Submissions" (extracted at [23] above) and "Department Assessment Report" (extracted at [25] above) squarely address the requirement in cl 6.21 for satisfaction in relation to design excellence for the concept proposal.
3. In terms of the substance of the requirement in cl 6.21(3), as part of the SEARs, the proponent was required to, inter alia, "provide a detailed justification for the building envelope, to justify that the proposed built envelope location and design are based on careful consideration of the benefits and potential impacts in the context of the immediate locality and the broader Sydney CBD area" (as extracted in the EIS at s 1.2 at [18] above).
4. In the EIS: 1. Under the heading "5.1.3 Urban Design Guidelines" (extracted at [18] above) it stated that urban design guidelines had been prepared in order to set out the guidelines for the "future detailed design" of the new stadium and public realm, including consideration under the heading "Stadium design" of design elements relevant to the concept proposal stage; 2. Urban Design Guidelines were attached at Appendix C; 3. it was stated at s 6.3 extracted at [18 above] that "[t]he 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"; 4. a Design Excellence Strategy prepared by INSW in consultation with the NSW Government Architect's Office was attached at Appendix D. The Design Excellence Strategy relevantly stated at s 2.1.1 extracted at [21] above that "[t]he proposed concept plan will exhibit design excellence where applicable to the stadium envelope as set out below in this Strategy". Further the proposed plans included in the Stage 1 Concept Proposal will "meet the specifications for the Project set out in Part 1 as applicable to the stadium envelope" and would "exhibit design excellence in accordance with the requirements of cl 6.21(3) of the SLEP and the matters listed in clause 6.21(4) as applicable to the stadium envelope" noting that "the matters that may be applicable to the stadium envelope include subclauses 4(d)(iii), (iv), (v), (vii). (ix), (xi) and (xii)" and would "meet the requirements of the Urban Design Guidelines for the project as applicable to the stadium envelope";
5. Matters relevant to "design excellence" were addressed and considered in the Response to Submissions. For example, s 2.22 of the RTS extracted at [23] above describes in a row titled "Building envelope" an issue raised during the submissions as "[c]omments relating to the scale of the building envelope and associated visual, wind and overshadowing impacts, and assurances that the future stadium envelope will be designed and constructed to fit within the building envelope". Under "Response summary", the response noted that "[t]he proposal will not result in adverse environmental impacts, as detailed in the Visual Impact Assessment, Shadow Diagrams and Wind Design Principles".
6. In the Department Assessment Report extracted at [25] above: 1. under heading 2.5 "Design Excellence" the Report noted that a "Design Excellence Strategy" had been prepared by [INSW] in collaboration with the NSW Government Architect to ensure that the future stadium achieves design excellence by following a competitive design process in accordance with the City of Sydney's Competitive Design Policy. It also noted that the urban design guidelines for the concept proposal include measures to guide the detailed design in a number of areas; 2. "design excellence" was addressed at s 6.2.1. In this section, the Department set out consideration of design excellence insofar as it was relevant to the Concept Proposal, and also described the framework to be followed to guide the detailed design of the project. The Report noted that the urban design guidelines outlined objectives and performance-based criteria which future buildings and spaces should respond to, noting that "[t]he intention is to guide the detailed design". The report then turned to an analysis of various matters relevant to design excellence, including submissions received from Council and the public. Following consideration of these submissions, the Department noted that it had "reviewed the Applicant's EIS, RTS and the community and public authority submissions in relation to the proposed built form" and noted that "the concept design and UDG have been prepared in consultation with the GANSW and with Cox Architects, to ensure the preliminary design is compatible with the desired future character of the precinct". The Department then expressed its satisfaction that the "Urban Design Guidelines" and "Design Excellence Strategy", as refined by the RTS, "embody the principles of design excellence and are an [sic] appropriate to guide the future development of the project". It stated that the Design Excellence Strategy provided an opportunity to "further develop the planned goals through competitive process"; 3. further addressed the issue of "Built Form and Design Excellence" at s 8.6, noting that the Department had undertaken a comprehensive assessment of the built form and urban design principles in s 6. The Department Assessment Report relevantly noted that "[t]he Department has undertaken a comprehensive assessment of the built form and urban design principles in Section 6" and that the Department is "satisfied that the building design envelope is appropriate for the site, with the Design Excellence Strategy providing an opportunity to develop the detailed design at Stage 2".

Evidence of consideration of cl 6.21(4) matters

1. Only those factors in subcl (4) relevant to a concept plan need be considered in forming an opinion about design excellence of the concept proposal. There is extensive material in the evidence book in the EIS addressing all the criteria in subcl (4) some of which require consideration at a more general level given the consideration by the Minister of a concept proposal. As the Minister submitted, such an approach is supported by s 4.22(5) of the EPA Act. I have included above in the extracts of key documents in relation to the EIS (at [18] above), the "Responses to Submissions" (at [23] above) and the "Department Assessment Report" (at [25] above) key passages referred to by the parties. These are not all the relevant passages to which I was referred during the hearing by the Minister in particular. The Applicants' selection of material was far more selective and did not fairly reflect the extent of consideration of design excellence in relation to the concept proposal as well as the process for assessing the Stage 2 DA. This was demonstrated in the summary of the Council's submissions in [107] above.
2. The material in the EIS prepared for the proponent, the Response to Submissions and the Department Assessment Report to which the Court was referred is voluminous. To set out all the material identified by the Minister as relevant to the consideration of design excellence in relation to the subcl (4) matters relevant to the building envelope would have taken many more pages of this judgment and required substantial time to produce when time is of the essence in its finalisation. The Minister provided a useful table identifying in the evidence all of the material relied on to support a submission that design excellence relevant to the stadium building envelope was considered. I have exhibited that table as Annexure A to this judgment. I have considered all the material referred to therein and am satisfied that the relevant factors referred to in cl 6.21(4) as they apply to the building envelope for which development consent is sought in the concept plan were the subject of consideration in the EIS, the public consultation process to the extent they were identified and in the Department Assessment Report. In particular cl 6.21(4)(c) whether the proposed development detrimentally impacts on view corridors; subcl (d)(i) concerning suitability of the land for the development; subcl (d)(ii) the existing and proposed uses and use mix; subcl (d)(iii) any heritage issues and streetscape constraints; subcl (d)(v) the bulk, massing and modulation of buildings; subcl (d)(vi) street frontage heights; subcl (d)(vii) overshadowing and solar access, visual and acoustic privacy; subcl (d)(viii) achievement of ecologically sustainable development; subcl (d)(ix) pedestrian, cycle, vehicular and service access and circulation requirements; subcl (d)(x) impact on the public domain; and subcl (d)(xii) achieving appropriate interfaces at ground level between the building and the public domain, are all considered in the EIS, the Department Assessment Report and responses to public submissions made to the extent such issues were raised.
3. Material relevant to subcl (4)(a) concerning architectural design, materials and detailing appropriate to the building type was in the evidence, to the extent this could be considered at a concept proposal stage. As the Minister identified, the subclause refers to "will be achieved" so that consideration is prospective. Subcl 4(b) refers to form and external appearance of the proposed building, improving the public domain and has limited relevance to the concept proposal. As Ex A to the judgment identifies there was extensive material before the Minister in relation to these matters. The EIS, response to public submissions and Department Assessment Report considered this matter nevertheless. Characterisation of the EIS process as impact assessment only and not an assessment of design excellence in relation to the stadium envelope is inaccurate when the material is viewed as a whole.
4. As already identified above, there is no express statement in any of the material that the Minister or someone on his behalf was satisfied for the purposes of cl 6.21(3) that the concept proposal exhibited design excellence. As the Minister submitted a fair reading of all the material is necessary and not with an eye tuned to the detection of legal error per Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272 to determine if such an opinion can be inferred. The Applicants essentially 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 at [58]. 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.
5. In Hortis the Court of Appeal declined to uphold the appeal against the finding of the trial judge that the council had failed to be satisfied of a jurisdictional matter when granting development consent in circumstances where there was no evidence it was before the council at the time development consent was granted. In Hortis, Gyles JA reviewed Currey and Franklins at [23]-[28]. The circumstances of this case are unlike Franklins where there was no evidence that the key provision in a local environmental plan which had to be satisfied before development consent could be granted was before a council or had been considered by it at the time development consent was granted. Similarly in Currey there was no reference to the requirement for satisfaction of a clause in a local environmental plan concerning the foreshore building line in a council officer's report which simply referred to the provision. This matter is quite different to these cases.
6. The authority of Parramatta City Council v Hale relied on by the Minister in [114] above does apply in the circumstances of this case also informed by Pepper J's observations in 4nature Incorporated v Centennial Springvale Pty Ltd in [113] above, which were not overturned on appeal.
7. That conditions of development consent were imposed which require the holding of a competitive design process (conditions B3-B9 Part B Sch 2) and any future stage 2 DA to demonstrate design excellence as required by subcl (5) (conditions C1-C5 Part C) does not ground an inference that the Minister deferred his entire consideration of design excellence to Stage 2.
8. The Applicants LDM and Waverley Council have not established Ground 2.

Ground 3 - breach of State Environmental Planning Policy 55 - Remediation of Land (LDM)

1. Ground 3 of LDM's amended summons stated: 3 In granting the Consent, the Minister failed to comply with the requirements of cl.7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55). Particulars a. Clause 7(1) of SEPP 55 was engaged because the DA involved "the carrying out of any development on land". b. The Minister failed to consider whether the subject land was contaminated, in breach of cl 7(1)(a) of SEPP 55. (not pressed at hearing) c. Alternatively, the Minister was not satisfied, or alternatively could not reasonably have been satisfied, that the subject land would be suitable in its contaminated state, or would be suitable after remediation, for the purpose for which the development was proposed to be carried out, contrary to cl 7(1)(b) of SEPP 55. d. The Minister was not satisfied, or alternatively could not reasonably have been satisfied, that the subject land would be remediated to be made suitable for the purpose for which the development was proposed to be carried out, contrary to cl 7(1)(c) of SEPP 55. e. Clause 7(2) was engaged because: i. at the time the Consent was granted, development for a purpose referred to in Table 1 to the Managing Land Contamination Planning Guidelines SEPP 55 - Remediation of Land (the Guidelines), namely "agricultural/horticultural activities" and "defence works", was known to have been carried out on the Land, within the meaning of cl 7(4)(b) of SEPP 55; and ii. the DA was an application for consent to carry out development that would involve a change of use of such land, in that land that was used for the purposes of commercial offices, open space and parking is now proposed to be used as an (enlarged) sports stadium, and also for the reason that additional retail uses are proposed to be developed. f. The Minister failed to consider a report specifying the findings of a preliminary investigation of the subject land carried out in accordance with the Guidelines, in breach of cl 7(2) of SEPP 55, in that there was no, or no adequate, contamination investigation of the subject land, as distinct from adjoining sites. g. Having formed the view that the findings of the preliminary investigation warranted a detailed investigation, the Minister failed to require the applicant for development consent to carry out and report on a detailed investigation as referred to in the Guidelines prior to the grant of consent, in breach of cl 7(3) of SEPP 55, or alternatively his decision not to require a detailed investigation to be carried out prior to the grant of consent was manifestly or legally unreasonable. h. The Minister could not validly defer consideration of these fundamental contamination assessments until stage 2. i. In the premises, the Consent is invalid and of no effect.

State Environmental Planning Policy No 55 - Remediation of Land

1. Relevant clauses of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) provide: 2 Object of this Policy (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 a remediation work, and (b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and (c) by requiring that a remediation work meet certain standards and notification requirements. ... 4 Definitions (1) In this Policy: … contaminated land has the same meaning as it has in Part 7A of the Act. [NB: Part 7A of the EPA Act, now Sch 6 to the Act, states that "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".] … 7 Contamination and remediation to be considered in determining development application (1) 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. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). …
2. As summarised above at [19], a report on contamination was included in the EIS (PSI Report). Extracts from the PSI Report are set out which refer to investigations undertaken on adjoining land identifying that as a result of work undertaken on adjoining land contamination may be present. The PSI Report concluded that on the basis of the investigations undertaken to date the risk of significant contamination being present that would prevent the redevelopment of the site without significant remediation was low. Subject to further investigations, the PSI Report concluded that the site was or could be made suitable for the proposed stadium use. The Department Assessment Report extracted at [25] above noted the findings of the PSI Report and that the Environment Protection Authority sought clarification that the demolition works including concrete crushing could be undertaken without disturbance of potentially contaminated soil and potentially contaminated fill material (to which INSW stated that demolition works would be to ground level only). The Department concluded that the proposal was satisfactory with regard to contamination, subject to conditions requiring further site investigations to be undertaken prior to the lodgement of the Stage 2 DA and appropriate remediation methods included if contamination is identified. Conditions 23-25 of the development consent are relevant to contamination and are extracted above at [28]. According to these conditions the Stage 2 DA must be accompanied by detailed environmental site investigations and a Phase 2 environmental site assessment report. If this report recommends that remediation of the site is required, then a detailed remedial action plan (RAP) must be provided as part of the future DA for the design and construction of the stadium. Relevant parts of the Contamination Guidelines are extracted above at [29].

Clause 7(1)

1. LDM submitted that while it may be true that the demolition component of the DA engaged cl 7(1) of SEPP 55 (because it involved "the carrying out of any development on the land"), it would be a misconstruction of cl 7(1) to interpret the suitability requirements in cl 7(1)(b) and (c) as being confined to the Stage 1 (demolition) works. The demolition is not in the context of a concept DA an end in itself. That follows as a matter of logic not only because the two applications (Stage 1 works and concept DA) were combined pursuant to s 4.37 of the EPA Act but even more importantly because it is undeniable as a matter of fact that the purpose of the demolition works was to enable the subject land to be used to construct a new stadium and for ancillary uses. The demolition works were part of the concept DA which was for the redevelopment of the existing SFS comprising the concept proposal and Stage 1 works.
2. LDM submitted that although "land" as defined by s 1.4(1) of the EPA Act includes "a building erected on the land" the "land" is not limited to the building contrary to the SCG Trust's submissions. In any event there is no warrant in the text, purpose or structure of SEPP 55 for confining the requisite consideration of contamination issues to matters occurring below ground level. Clause 7(1) is concerned with "any development on land" and that has a wider application than just the existing stadium building. Moreover the demolition is not of a building occupying a stratum of airspace. It is evident that works will envelope MP1 (the car park site), will include storage and recycling of waste materials and will involve the removal of services, some of which are likely to be buried, together with significant erosion and sediment control works.
3. Clause 7(1)(b) of SEPP 55 was not complied with contrary to the Minister's submission that it was. There is no record in the Department Assessment Report, expressly adopted by the Minister as his reasons for the determination, of the formation of the requisite state of satisfaction referred to in cl 7(1)(b). Moreover the Minister was required to either form the view that the land was suitable in its contaminated state (and therefore did not require remediation) or that it would require remediation, in which case he was required to be satisfied that the land would be remediated before the land was used for that purpose, per cl 7(1)(c). That is, it is an "either/or" proposition in the sense that the Minister must form a view as to whether the land requires remediation or not and if he failed to do so then he did not comply with the requirements of cl 7(1). In light of the contamination material before him which equivocated as to whether remediation was required, he was not equipped to answer the question raised by cl 7(1)(b), and was therefore equally unable to address the cl 7(1)(c) issue. This is evident by the incorrect view expressed in the EIS and the Department Assessment Report that the only matter to be considered was whether the land was suitable for the proposed Stage 1 works.

Clause 7(2)

1. LDM submitted that the DA was an application for consent to carry out development that would involve a change of use on any of the land as specified in subcl (4) so that cl 7(2) applied. The word "involve" should be interpreted in the broad sense as approved by Preston CJ in Uniting Church. That is, the DA included "development involving the erection of a new building" within the meaning of cl 6.21(2) of the SLEP and therefore the development for which development consent was applied for in this case "would involve a change of use" on the relevant land within the meaning of cl 7(2) of SEPP 55. As submitted above the demolition works are not an end in themselves and the nature of the DA as a combined application supports the conclusion that cl 7(2) is engaged in the circumstances of this case. The purpose of the demolition works is to effect a change of use of the land from commercial office, open space and parking to a sports stadium. This is because the proposed stadium envelope will consume much of the land on which these non-stadium activities are presently taking place. Accordingly the carrying out of that development "would involve a change of use" of that land.
2. The distinction between subcl (1) "purpose" and subcl (2) "use" is important. "Use" refers to actual uses not the purpose of the use. What might be an appropriate approach to questions of characterisation of uses for the purposes of permissibility (or even existing use rights) is not necessarily applicable in the case of the contamination assessments required under SEPP 55. For example, roads and carparks might be characterised as ancillary uses to a supermarket (or a residential development) for the purpose of permissibility but to change such a use of land to a more sensitive land use for the purposes of consideration of contamination might well require a different approach. Further SEPP 55 does not use the standard instrument (or model provisions) definitions which suggests that a "purpose" approach to the construction of a "change of use" is inappropriate. The approach of the Court of Appeal in Moorebank 2018 to the issue of the proper construction of the words "the inclusion of the land in that zone" in cl 6(1) of SEPP 55 supports the conclusion that a technical planning approach to interpretation of the "change of use" of land in SEPP 55 should be eschewed.
3. Accordingly cl 7(2) is engaged because the current (pre-demolition) uses of the subject land are proposed to change, being subsumed within the new larger stadium, and MP1 is to be used for construction activities. Not only are the various commercial and other buildings to be demolished to make way for the new larger stadium but there is also the replacement of the large car park (MP1), even only temporarily, with a construction compound and waste recycling area. Therefore there will be a "change of use" from commercial buildings to a major recreational facility (the stadium).
4. LDM submitted that even if the Minister's approach is adopted there is no reason why all of the existing uses of the subject land should be considered to be "ancillary" to the existing stadium (recreational facility) use. For example the cricket wickets and the Cricket NSW Administration Building could hardly be said to be an ancillary use to the stadium, in circumstances where the stadium itself is not used for cricket. Another of the buildings to be demolished, the Sheridan Building, is used for unrelated purposes including medical facilities. In any event the various sports buildings would be characterised as commercial office buildings not as public recreation (major).
5. LDM rejected the Minister's submission that there is a distinction between a report which purports to be a Stage 1 assessment but is deficient and where (as in Moorebank 2015) no attempt was made to conduct such an investigation. Preston CJ emphasised that unless a report that complies with the Contamination Guidelines was before the consent authority there was no power to grant development consent.

Clause 7(3)

1. LDM submitted that the Minister had a discretion whether to require INSW to carry out a detailed investigation if it considered the findings of the preliminary investigation warranted such an investigation. However in light of the findings in the PSI to the effect that a detailed investigation was required (which the Minister made a condition of consent), the Minister had a duty to require INSW to carry out the detailed site investigation (DSI) prior to determining the application and not to defer it until a subsequent stage of the project as that was required by subcl (3).
2. If required, the detailed investigation must be carried out prior to the grant of development consent. This is clear firstly from the objects of the SEPP ("by specifying certain considerations that are relevant ... in determining development applications" per cl 2(2)(b)) and from the heading to cl 7 ("Contamination and remediation to be considered in determining development application"). Second, figure 3 on p 27 of the Contamination Guidelines shows the detailed investigation being carried out several steps in the decision-making chain prior to the grant of development consent. Third, to permit the critical contamination assessments the subject of a DSI to be deferred until after the grant of development consent would likely result in a poor decision-making outcome and would be impermissible as a matter of general principle in any event, Weal v Bathurst City Council at [93]-[97], Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-6 and S J Connolly Pty Ltd v Ballina Shire Council (2010) 175 LGERA 408; [2010] NSWLEC 151 at [73].
3. LDM made lengthy oral and written submissions summarised at pars 51-53 seeking to demonstrate that the PSI Report was not carried out in accordance with the Contamination Guidelines and therefore cl 7(2) and (3) of SEPP 55 were not complied with. It submitted that the criticisms of material in Moorebank 2015 apply to this case in that contamination studies had sampled soils on adjoining sites rather than the site the subject of the DA. The PSI Report noted four previous investigations of soil contamination on land adjoining the site. Sampling and analysis of the site had been deferred, purportedly because of the existing stadium, although that could not have impeded soil and groundwater investigations elsewhere on the site. In accordance with [100]-[101] in Moorebank 2015, since analysis underpinning the PSI Report was undertaken for different purposes on different land it did not comply with the Guidelines. Criticism of the groundwater assessment was also made at pars 59-66 on the basis that a sediment basin was proposed which would require excavation.
4. Having concluded that the site was likely to be contaminated, the contamination consultant (Douglas Partners) was required by the Contamination Guidelines to carry out sampling and analysis to confirm and support any conclusion reached from the site history appraisal. The PSI Report equivocated however on whether remediation was required and did not undertake the necessary follow up. Consistent with Preston CJ's finding in Moorebank 2015 at [106], the absence of appropriate findings of the PSI Report deprived the Minister from being able to discharge his duty under cl 7(3) to consider whether the findings of the PSI warranted requiring INSW to carry out a detailed investigation. The Minister could not defer that question by requiring a DSI for the future Stage 2 DA.
5. The EIS asked the wrong question, failed to address the correct question and the Department adopted the same wrong approach in advising the Minister about the application of cl 7.

Minister's submissions

1. The Minister submitted that properly construed in light of s 4.22(4) of the EPA Act, neither cl 7(1)(b) or (c) nor (2) and therefore (3) of SEPP 55 applied to the extent the development consent approved the concept proposal as distinct from the proposal for concurrent Stage 1 works.
2. Further cl 7(1) of SEPP 55 has limited application and cl 7(2) of SEPP 55 is not engaged, in circumstances where the Stage 1 works described in the DA relevantly involved the demolition of buildings to the ground (or existing slab) level. In the case of cl 7(1)(b), the land was suitable for the limited purpose for which the development was proposed to be carried out. In the case of cl 7(2), the relevant development did not involve a change of use and the subclause was not engaged. As the definition of "development" in s 1.5(1)(a) and (e) of the EPA Act makes clear, "the use of land" and "the demolition of a building or work" are distinct forms of development. Without more, demolition does not involve a change of the use of land. This is further supported by s 4.19 of the EPA Act which provides that consent for the erection of a building authorises uses; there is no analogous provision relating to demolition. As the EIS noted in relation to the concept proposal at large "[t]he land use on the site will not change as a result of the Concept Proposal, with the continuation of stadium use" (at s 6.17). The development consent did not involve a change of use from car parking, open space and commercial office buildings to a stadium by approving an envelope which consumed much of the land on which non-stadium activities are presently taking place.
3. In any case, and regardless of the proper construction of cl 7(1) and (2) of SEPP 55, the Minister was provided with a PSI Report, and denies that he did not consider all relevant matters and form all requisite opinions under cl 7(1) and (2). The PSI Report provided as part of the concept DA accords with the requirements for a Stage 1 preliminary investigation in s 3.5.2 of the Contamination Guidelines and answers the description of the document required by cl 7(2) per Moorebank 2015 at [57].
4. The Minister was not required to obtain a detailed investigation report under cl 7(3) of SEPP 55 before granting development consent in respect of Stage 1 works because such a requirement did not arise on the terms of cl 7(3). Further such a requirement would be inconsistent with the scheme established by s 4.22 of the EPA Act and the Contamination Guidelines, which expressly contemplate that a detailed investigation report may be obtained after a concept proposal. This is not a case like Moorebank 2015 where consideration of the results of a contamination assessment was deferred until after the consent authority arrived at its decision.

SCG Trust's submissions

1. The SCG Trust submitted that SEPP 55 does not apply where the land proposed to be developed comprises a building only. The "land" referred to in the chapeau of cl 7(1) is the same as the land referred to in cl 7(1)(a), (b), and (c) and is the land in respect of which a development consent would authorise the carrying out of development. The EPA Act defines "carrying out development" in s 1.5(3) by reference to s 1.5(1). Only demolition is relevant in this case.
2. Clause 7(2) of SEPP 55 is limited to consents "to carry out development". Demolition does not involve a change of use so cl 7(2) is not relevant. Demolition is unlike the construction of a building development consent which does permit its use under s 4.19 of the EPA Act. The concept approval does not permit any change in use. Prior to the redevelopment and after it will be used for the purposes authorised under s 14 of the Sydney Cricket and Sports Ground Act 1978 (SCG Act). Section 14 provides: 14 Trust may authorise use of scheduled lands The Trust may allow the scheduled lands, or any part thereof, to be used by such persons, clubs, associations, leagues or unions at such times and on such terms and conditions as the Trust may think fit and proper for or in connection with cricket, football or tennis or any other game, or for or in connection with athletic sports or public amusement, or for or in connection with any other purpose whatever which the Minister may approve.
3. Clause 7 has a narrower focus than cl 6, which is concerned with land proposed to be rezoned. Land to be rezoned generally includes the whole of any parcel of land unlimited in height or depth.
4. The only development the consent authorises is demolition, the express effect of s 4.22(4). Clause 7 is only engaged by virtue of the Stage 1 works being demolition. Development consent for a concept DA only does not authorise the carrying out of development.
5. The question as to the land to which a development consent applies is a question of fact per Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [91], [94] (Preston CJ of LEC with Basten and Leeming JJA agreeing at [5] and [41] respectively) and People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at [187] (Ward JA with Meagher JA and Payne JA agreeing at [7] and [206]-[208] respectively). These authorities indicate that the EPA Act and instruments made under it are generally not concerned with cadastral title boundaries, mining tenement boundaries or other statutory or artificial delineations but rather with land proposed to be actually used or developed. Further, "land" in the EPA Act is defined to include a building. Therefore the only "land" in respect of which development being demolition is authorised to be carried out is the existing SFS, that is the building itself. This is clear from conditions A6 and A7 in Sch 3 to the development consent.
6. LDM construes "land" in cl 7 of SEPP 55 as something much broader than that land. Moorebank 2015 and Moorebank 2018 have no application. The evidence of contamination is on other land.
7. SEPP 55 and the Contamination Guidelines are concerned with contaminated soil and groundwater. SEPP 55 has no application in relation to the development the subject of the development consent because it does not involve land relevant to that subject matter. The land to which the development consent applies is a building. The SFS building for which development consent has been granted to demolish is land within the meaning of that term in the EPA Act but is not land of the nature that SEPP 55 addresses.
8. In the alternative, as a matter of construction, cl 7 can apply and the required state of satisfaction would be reached immediately as the buildings are not contaminated in the SEPP 55 sense. That no testing or further study would be required is confirmed by figure 3 of the Contamination Guidelines.

Finding on Ground 3

1. The outcome of this ground depends on the construction of cl 7 of SEPP 55 in light of the Minister approving a concept proposal as provided for in s 4.22(1) enabling work in the nature of demolition only. The demolition approved in the concept proposal consent is to slab only. That is clear from the approved plans and the conditions of consent. Condition A7 of Sch 3 to the development consent for staged works prohibits any work which excavates, causes ground disturbance or changes to the existing ground level or grade.
2. But for the Stage 1 demolition works cl 7 would not apply to the concept proposal consent granted by the Minister, as LDM correctly agreed during the hearing. At issue is whether subcll (b) and hence (c) of cl 7(1) were complied with by the Minister. Also in issue is whether subcll (2) and (3) apply at all to the Minister's determination. LDM does not dispute that the Minister complied with cl 7(1)(a) when considering the DA for SSD. The PSI Report included in the EIS and statements in the Department Assessment Report show that contamination was considered. That particular in the amended summons was not pressed.
3. Considering the statutory construction of cl 7 generally, LDM relied heavily on Moorebank 2015. The factual circumstances were quite different and the application of cl 7 was directed to different questions in that case to those that arise here. Moorebank 2015 concerned a challenge to the validity of development consent for the construction of a marina and related facilities on grounds that the consent authority had failed to comply with cl 7 of SEPP 55. There was no dispute that the development was on specified land and gave rise to a change of use of land from extractive industry to a proposed marina if the DA was approved. Moorebank 2015 held that satisfaction of cl 7(1), (2) and (3) was "jurisdictional" in the sense that they are "preconditions to a valid exercise of the power to determine the development application by granting consent" per [189]. The key issue to which the judgment was largely directed was the lack of the necessary report on contamination required by cl 7(1), (2) and (3). There was no dispute that cl 7(1)(b), (c) and subcll (2) and(3) applied.
4. Preston CJ in Moorebank 2015 held at [3] and [199] that the consent authority failed to comply with cl 7 and therefore breached the EPA Act, invalidating the consent. His Honour held at [45] that cl 7 of SEPP 55 establishes two sets of preconditions to the exercise of the power under s 80(1) of the former EPA Act (now s 4.16(1)) by a consent authority to determine a DA for consent to carry out development on land. These requirements are outlined as follows: 46. First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of "a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines". … 58. Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose.
5. Preston CJ made findings about the requirements cl 7 imposed for preparing the necessary report on contamination including that: 1. to enable the consent authority to determine whether a detailed investigation is warranted, the applicant must provide to the consent authority "a report specifying the findings of the preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines", at [57]. The report must state in explicit terms and with clarity and precision what are the matters found or ascertained from the preliminary investigation of the land concerning the potential for site contamination, at [106]; 2. the report must be readily discernible as a single entity even though it may be made up of one or more documents or parts of documents, at [82], [104]; 3. the Contamination Guidelines require a detailed appraisal of the site's history and a conclusion needs to be reached from that site history appraisal as to whether potentially contaminating activities carried out on the land in the past have had an impact on the land. If so, sampling and analysis will be required to confirm and support the conclusion reached from the site history appraisal. The sampling and analysis has to be undertaken for the purpose of cl 7 of SEPP 55 in accordance with the Contamination Guidelines; it is not any sampling and analysis for any other purpose that will suffice, at [102];
6. In Moorebank 2015 there had been no investigation of the contamination of the portion of the site on which the marina development was proposed to be carried out as it was still being used for extractive industry activities, at [95]. There had been a contamination investigation on adjoining land and contamination of the development site could be investigated on the cessation of the extractive industry activities per [96]. Preston CJ held that the few statements in the EIS noting the current extractive industry activities being carried out on the land did not constitute a "detailed appraisal of the site's history" in accordance with the Contamination Guidelines per [100]. Further the sampling and analysis in the EIS were for different purposes and not in accordance with the Contamination Guidelines per [101].
7. LDM's lengthy submissions relying on Moorebank 2015 focussed extensively on the type of report that was required on the assumption that cl 7(1)(b) and (c) and cl 7(2) and (3) applied to submit that no such report was prepared as part of the EIS or anywhere else. The PSI Report was criticised as only considering adjoining land not the stadium land as is clear from the extract in [19] above. Submissions were made that compliance with the Contamination Guidelines required soil sampling and testing of the stadium area to be undertaken. The PSI Report did not contain that information. Similar criticisms were made in Moorebank 2015. The threshold question however, which is largely a matter of statutory construction, is whether and how the subclauses of cl 7 applied at all in the circumstances of this case to the Minister's determination. Moorebank 2015 cannot provide much assistance on the statutory construction issues arising concerning the application of subcll (1), (2) and (3) of cl 7. The DA in issue was not a concept DA with a staged development envisaged as is the case here.

Application of cl 7(1)

1. The focus of cl 7(1) is the development of land as identified in the chapeau which states that a consent authority must not consent to the carrying out of development on land unless matters in subcll (a), (b) and (c) have been complied with. The land to be developed is key to the application of the subclause. Land is not defined in the SEPP. "Land" is defined in s 1.4 of the EPA Act to include "(d) a building erected on the land". The only development that can occur under the development consent is the demolition of the stadium and ancillary buildings down to a slab. That was the land considered for the purposes of subcl (1)(a) in the PSI Report that was in the EIS, as identified in the parts extracted above at [19]. The carpark MP1 is to become a demolition compound, clearly an ancillary use to the demolition authorised by the development consent. While assertions were made by LDM that ground under MP 1 would be excavated there is no evidence for that and it is not permitted by the consent conditions.
2. The conclusion was reached in the PSI Report that the possibility of contamination of the soil under the stadium existed, as emphasised by LDM. Given that finding of possible contamination, consideration of the application of cl 7(1)(b) arises. A consent authority must not consent to carrying out development on land unless, under subcl (b), if land is contaminated it is satisfied the land is suitable in its contaminated state for the purpose for which development is proposed to be carried out.
3. A key issue in relation to the application of cl 7(1)(b) is the meaning of "for the purpose for which the development [of land] is proposed to be carried out" meaning the land in the chapeau, in relation to whether the land is suitable in its contaminated state for the purpose for which the development is proposed to be carried out. LDM submitted the purpose of the demolition is the rebuilding of the stadium and relied on references in the EIS to the detailed Stage 1 demolition works making good the site suitable for construction of the new stadium which is the subject of a separate Stage 2 application (see "Executive Summary" as extracted above at [18]). Descriptions of the proposal in the Department Assessment Report were also relied on.
4. The Minister submitted the purpose is demolition that being the subject of the Stage 1 application made with the concept DA for which consent has been granted. As the Minister submitted the only development on the land that will be carried out under the development consent is the demolition of buildings approved in Stage 1. That is in accordance with the scheme for concept DAs set out in s 4.22 of the EPA Act. The Minister was only required to consider and achieve satisfaction in relation to contamination for the purposes of cl 7(1)(b) in relation to the Stage 1 works. The PSI Report was directed to that issue. To the extent that development consent was granted for the concept proposal that part of the development consent did not authorise the carrying out of development on any part of the land as a result of s 4.22(4)(a) and was not therefore subject to cl 7(1). I agree with the Minister that the purpose of the Stage 2 DA is the construction of the SFS, which has yet to be submitted or approved. The PSI Report was sufficient for the purposes of cl 7(1)(b) for the Stage 1 works.
5. Considering other arguments made by LDM, "contaminated land" is defined in the Dictionary to the EPA Act as having the same meaning as in Pt 7A of the Act (now Sch 6 to the Act) which defines "contaminated land" as "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". That phrase is not referred to in cl 7. LDM's reliance on that phrase to construe cl 7 was intended to support the submission that land must include underground as well as above ground. Given my approach to statutory construction set out above that does not assist in the construction of cl 7(1)(b) in the absence of reference to contaminated land in the clause.
6. As LDM submitted, the application of cl 7 is not limited in scope by s 4.22(5) (the Bay Simmer amendment) which refers to assessment under s 4.15. Importantly however cl 7 is being considered here in the context of a concept proposal consent which only allows limited development to occur. The focus of application of cl 7(1) must be to what is lawfully approved in this process and that is the relevant purpose of development in cl 7(1)(b). Consequently I do not accept LDM's argument that the purpose of the demolition is the stadium development as a whole in considering the application of cl 7 to the concept proposal and Stage 1 works.
7. I accept the Minister's submissions that land in the context of the approved DA is the stadium building and other related buildings which are to be demolished to slab and is the land to which cl 7(1)(a) and (b) are directed in this case.
8. In circumstances where the Stage 1 PSI Report had recognised the potential for contamination, as the Minister was advised of this in the EIS and by the Department Assessment Report he did consider whether the land was suitable in its contaminated state for the purpose for which the development was proposed to be carried out. The proposed development involves the demolition of buildings to slab level in order to prepare the site for further development that will be the subject of a later DA. It is not as suggested by LDM to enable the land to be used for a major recreation facility and ancillary uses as there is no development consent for these at present.
9. The EIS squarely addressed the question that was required to be answered by cl 7(l)(b) at s 6.3 extracted at [18] above: ... the site is suitable for the demolition of the existing stadium structure down to existing slab level with no ground disturbance, whilst the Phase 1 Contamination Assessment confirms that the site is expected to be suitable for the proposed use but that further detailed site investigation will be required to accompany the Stage 2 Development Application to confirm any further measures required to be implemented.
10. This is further supported by the EIS at s 6.17 extracted at [18] above: The Stage 1 Demolition scope for which development consent is sought as part of this application involves the demolition of the existing slab down to slab level only. Accordingly, no soil will be disturbed and accordingly no contamination impacts are expected to arise as a result of those detailed works for which consent is sought.
11. Having referred to the assessment offered in the EIS, the Department Assessment Report concluded at Appendix B that "[t]he 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 Minister adopted that assessment which was open to him having regard to the conclusions of the PSI Report and the scope of the Stage 1 works.
12. In the alternative the Minister submitted that the PSI Report satisfied cl 7(1)(b). It is not necessary to consider that argument in light of my finding immediately above.

Application of cl 7(2), (3)

1. Under cl 7(2) consent to carry out development that involves a change of use of any land specified in subcl (4) must not be determined unless a report specifying the findings of a preliminary investigation of the land concerned which complies with the Contamination Guidelines has been carried out. Subclause (4)(b) refers to land on which development for a purpose referred to in Table 1 in the Contamination Guidelines is known to have been carried out. As the PSI Report in the EIS records, the land was used formerly for defence uses and agriculture, both of which appear in Table 1.
2. The application of cl 7(2) hinges on there being a change of use of land. Whether that occurs in relation to the concept and Stage 1 demolition consent is disputed. I accept the Minister's submission that cl 7(2) was not engaged because the Minister did not determine an application for development consent that would involve a change of use on any land specified in subcl (4). The Stage 1 works are for demolition of the existing stadium and other buildings to slab level and ancillary works on the MP1 carpark area. This was identified in numerous plans annexed to the EIS to which the Court was directed by LDM. The new stadium footprint will subsume all the demolished buildings. The definition of development in s 1.5(1)(a) and (e) of the EPA Act distinguishes between "use of land" and "demolition of a building or work" as distinct forms of development. Demolition alone does not involve a change of use of land. This approach is supported by s 4.19 of the EPA Act which states that consent for the erection of a building authorises its use. There is no similar provision relating to demolition.
3. LDM submitted that subcl (2) should be construed differently to subcl (1) as subcl (2) does not refer to purpose. It is not referring to a change of use in a planning sense but in regard to actual use. LDM submitted that Moorebank 2018 supported such an approach. The Court of Appeal considered cl 6 and the requirements for the inclusion of land in a particular zone which permits a change of use. As the SCG Trust submitted the consideration of land in that context is likely to be broader than in cl 7. If the focus is on actual use of land for demolition it is difficult to conclude that the development approved gave rise to a change of use of the land as I have found it to apply in relation to cl 7(1) at [179] above.
4. LDM submitted that cl 7 should be construed in light of cl 6.21(2) of SLEP concerning the word "involve" in the phrase "development involving the erection of a new building". No statutory construction principle requires or supports that being done where the context for each instrument is quite different and the wording is not identical.
5. Although not strictly arising given my finding that demolition does not give rise to a change of use in the context of this consent, I note that LDM submitted that there was a change of use of stadium land as summarised above in [153]-[154] because the current use of the site includes commercial uses outside the stadium in buildings such as the Sheridan building and the occupation by Cricket NSW which does not use the stadium. I do not accept that characterisation of the use of land around the stadium building for the reasons given by the Minister. The Minister submitted that as the EIS noted at s 6.17 (extracted above at [18]) in relation to the concept proposal at large "[t]he land use on the site will not change as a result of the Concept Proposal, with the continuation of the stadium use". This characterisation of land use is entirely consistent with established authority such as Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Preston CJ) at [27] (Chamwell). The consent did not involve a change of use from car parking, open space and commercial buildings to a stadium by approving an envelope which consumed much of the land on which non-stadium activities are presently taking place. This is because: 1. the existing ancillary buildings and indoor wickets and associated facilities are an aspect of the existing stadium (or recreation facility) use. To characterise these parts of the site as "car parking" and "commercial office buildings" is to proceed at an impermissibly specific level of generality on the reasoning in Chamwell. As the EIS at s 3.2.1 noted at pp 235-40 of volume 1 of Ex A, these ancillary buildings and facilities are used by the tenants and venue members of the SCG and SFS; 2. there is no evidence to suggest that the "ancillary uses" referred to by LDM would represent a departure from the existing use of the site. For example retail outlets presently operate on the site. 3. neither the Stage 1 works nor the concept proposal have sought consent for a change of use on the land specified in cl 7(4) and the terms of the development consent do not approve a change in use.
6. The terms of s 14 of the SCG Act referred to by the SCG Trust as extracted in [165] above also support the Minister's approach that there is no change in the use of land as a consequence of the concept consent.
7. As cl 7(2) is not engaged neither is cl 7(3) as it tasks the applicant for development with carrying out an investigation and preparing a report if subcl (2) is engaged. As the Minister submitted it is clear from the Department Assessment Report and conditions of development consent that the Minister deferred consideration of a Stage 2 detailed investigation report for the purpose of cl 7(3) by requiring that "future development application must be accompanied by detailed environmental site investigations to identify contaminants of potential concern and any potential sources of contamination within the ground, groundwater and infrastructure beneath the site" and that the record of investigations be accompanied by a Phase 2 environmental site assessment (per conditions C23-25 of the development consent extracted above at [28]). This course of action was entirely consistent with both s 4.22 of the EPA Act and the Contamination Guidelines for several reasons: 1. the Minister was only required to consider contamination in respect of the Stage 1 works and reached the view based on the PSI Report, that the land was suitable in its current state for the purpose of that development because of the limited nature of the Stage 1 works. A detailed investigation was unnecessary for the purposes of the demolition that was to be carried out within the meaning of s 4.22(4) as a result of the terms of the consent issued by the Minister; 2. the Contamination Guidelines themselves make clear that the purpose of the preliminary investigation is to "determine whether land contamination is relevant to the decision being made" at s 3.2 extracted at [29] above. They provide at s 3.5.2 that if "there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way". That is precisely what occurred here; there was sufficient information to satisfy the Minister that the Stage 1 works could proceed notwithstanding any contamination; and 3. the Contamination Guidelines themselves contemplate the deferral of a Stage 2 detailed investigation to a later stage of a staged da. The Contamination Guidelines do not mandate that detailed sampling be undertaken as soon as a likelihood of contamination is recognised. They expressly provide that at s 3.5.2 as extracted at [29] above: Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences.
8. The Minister correctly submitted that this is not a case like Moorebank 2015 where consideration of the results of a contamination assessment was deferred until after the consent authority arrived at its decision. Here the results of the Stage 2 investigation will be considered at the point that the investigation becomes relevant to the assessment required under cl 7. That is, when the consent authority is considering the suitability of the land for the purpose of a development which might involve contamination risks through the disturbance of soil.
9. The Minister's alternative argument that cl 7(2) was satisfied by the PSI Report in any event need not be considered.
10. A slightly different basis for why cl 7 did not apply at all was submitted by the SCG Trust to the effect that no land which engages SEPP 55 is the subject of the concept approval nor is there a change of use of land for the purposes of cl 7(2). That argument is set out in full above at [164]-[170]. There is substantial merit in it and is an alternative basis for finding that there was no failure by the Minister to comply with cl 7 when he granted development consent.
11. LDM has not established Ground 3.

Conclusion

1. As the Applicants have been unsuccessful in their judicial review proceedings their respective amended summons should be dismissed. My decision is not related in any way to the merits of the redevelopment of the SFS which cannot be the subject of these judicial review proceedings.
2. I have not heard any submissions on costs. The usual order in judicial review proceedings is that costs follow the event so that an unsuccessful applicant would pay the costs of other parties where there is no disentitling conduct. A timetable for the consideration of costs will be discussed with the parties.

Orders

1. The orders in both proceedings are as follows: In proceedings 19/39988: 1. The Applicant's amended summons dated 6 February 2019 is dismissed. 2. Costs are reserved. In proceedings 19/43610: 1. The Applicant's summons dated 8 February 2019 is dismissed. 2. Costs are reserved.

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