North Parramatta Residents' Action Group Inc v Infrastructure New South Wales

North Parramatta Residents' Action Group Inc v Infrastructure New South Wales - [2021] NSWCA 128 - NSWCA 2021 case summary — Zoe

Judgment

BASTEN JA: On Wednesday 16 June 2021 the Land and Environment Court delivered a judgment in the matter of North Parramatta Residents' Action Group v Infrastructure NSW [2021] NSWLEC 60, making an order that proceedings commenced by the Residents' Action Group be dismissed. On Tuesday, 22 June 2021 (that is, on the fourth working day after the judgment was delivered) the Residents' Action Group filed a notice of appeal. On the same day, it sought an interim or interlocutory injunction restraining Infrastructure NSW from commencing any physical work on the site of a development known as "Powerhouse Parramatta", pending the determination of the appeal. An undertaking given by Infrastructure NSW in the Land and Environment Court not to commence such work "prior to" Monday, 21 June 2021 had expired.
Infrastructure NSW declined to give any further undertaking and resisted the proposed injunction. As a result, it was necessary for this Court to sit immediately to consider the appellant's application.
The underlying proceedings involved a challenge to the validity of the development consent granted for the construction of Powerhouse Parramatta, consent for the development having been granted by the Minister on 11 February 2021. The Residents' Action Group challenged the consent on the basis that the Environmental Impact Statement (EIS) which had been prepared by the proponent, Infrastructure NSW, was legally flawed, with the consequence that, a valid EIS being an essential precondition to the grant of development consent, the development consent itself was invalid.
The Residents' Action Group asserted that the EIS had not adequately addressed the proposal to demolish a heritage property known as "Willow Grove". As presently envisaged, the project included the "disassembly" of "Willow Grove", a sandstock brick house built in about 1870, and its reconstruction at a different location, yet to be determined.
An inquiry was made of counsel appearing for Infrastructure NSW as to whether its opposition to any form of injunction would be maintained in circumstances where the Court could offer three possible hearing dates involving delays of seven days, 10 days and 14 days respectively. Opposition was maintained.
In the circumstances, to list the matter for hearing on 29 June 2021 appeared to be inappropriate, given that the speedy resolution of the case would be better served by the Court having available to it full written submissions from both parties. (It was not clear that the Minister, although a respondent, intended to take an active role in the appeal.) Accordingly, the matter was fixed for hearing on 2 July 2021. On the basis that the proposed development concerned a project announced in 2015 (some six years ago) and that development consent had only been granted on 11 February 2021, a delay of 14 days in listing the appeal for final hearing involved a significant element of expedition. Yet, if no injunction were issued, it was clear that the building the subject of the appellant's concern would be "disassembled" and removed in the meantime, thus destroying the subject matter of the proceedings, as viewed by the appellant.
On the assumption that an injunction might be granted, Infrastructure NSW sought to have conditions imposed, one condition identified orally by senior counsel was that the injunction not extend to the removal of what were described as non-heritage elements of the building, namely additions made in the 1970s or 1980s. Counsel also indicated that there might be financial consequences to the government if removal of the building were delayed pending hearing of the appeal.
The Court was not prepared to impose conditions in the absence of any clear articulation of the conditions, evidence as to how they would operate, and evidence as to the need for such conditions. Accordingly, rather than providing an interlocutory injunction pending determination of the appeal, the Court granted an interim injunction to allow Infrastructure NSW to put on evidence (and the appellant to respond). A further hearing was listed for 2:15pm on Friday June 25. Directions were given for the filing of evidence.
Infrastructure NSW filed two affidavits in compliance with directions given on 22 June, namely by 5.00pm on Wednesday 23 June. The first was prepared by the head of Projects New South Wales for Infrastructure NSW and filed in the Land and Environment Court. The affidavit was dated 6 May 2021. Further, more current information, was supplied by the second affidavit, affirmed by Tom Kennedy, a town planner engaged on behalf of Infrastructure NSW to manage the development application and other activities including the delivery of works at the site of the proposed development. The annexures to the affidavits totalled 972 pages; there was no index to either. No notice of motion or other formulation of the proposed conditions was provided.
The Residents' Action Group filed three largely inconsequential affidavits in reply by 5.00pm the following day.
One hour before the hearing, the solicitors for Infrastructure NSW emailed to my chambers an unfiled notice of motion and a further affidavit, purporting to be by way of reply (for which leave was required) but in fact identifying the material supporting the proposed conditions. The conditions were as follows: "Until the determination of the appeal or earlier further order, the First Respondent, INSW, its employees, contractors and agents, be restrained from commencing any physical work on the Willow Grove building except for: (a) any physical works on, including the demolition of, the glazed courtyard, patio, side entry, auditorium, storage and servery identified as being of 'little' or 'intrusive' significance in Figure 3-1 and 3-2 of the Relocation Framework and Methodology Plan approved by the Secretary on 18 June 2021. Figure 3-1 and 3-2 are reproduced in Annexure A to this order; and (b) removal of asbestos within the ceiling space of the Willow Grove building by specialist contractors."
The annexure contained a plan of Willow Grove identifying what was described as "significant fabric" on the ground floor and on the first floor. In the course of the hearing, the plan was identified as an annexure to Mr Kennedy's affidavit.
At the conclusion of the hearing, the Court made the following orders: 1. With respect to the notice of motion filed by the first respondent seeking imposition of conditions on the interim injunction granted on 22 June 2021, the motion is dismissed. 2. The first respondent is to pay the appellant's costs of the motion. Reasons were reserved.
The primary factors to be considered in relation to the proposed conditions were (i) the public interest in preserving Willow Grove intact prior to the resolution of the appeal, and (ii) any prejudice which may result to the respondent if the proposed conditions are not imposed.
With respect to (i), there was reason to give weight to the public interest in preserving the property pending determination of the appeal. As stated in the judgment below at [111], the Departmental Assessment Report noted that following the public exhibition of the EIS, "[t]he Department received 1,311 submissions, comprising seven from public authorities, and one from Council and 1,303 submissions from the public (including 27 special interest groups) comprising 1,244 objections, 24 comments and 35 in support of the proposal." In addition to submissions in response to the EIS, the proponent submitted a response to the submissions (RtS) which included a proposal to relocate Willow Grove. That in turn resulted in 383 submissions, including five from public authorities, one from Council and 377 objections from the public.
The Departmental Assessment Report also recorded that Parramatta City Council, whilst supporting the proposal, suggested there was a necessity to "undertake further design developments to attempt to retain 'Willow Grove' and 'St George's Terrace' on the site or address the social and cultural impact of their removal": Judgment at [115]. The Departmental Assessment Report also identified 85.6% of the submissions on the EIS raising adverse heritage impacts in respect of Willow Grove, whilst 91.5% of the submissions in response to the RtS report also addressed that topic: Judgment at [116]. The National Trust also raised concerns: Judgment at [119].
The interim injunction was granted on the basis that, in the brief time available to assess the lengthy judgment of the Land and Environment Court, it was not possible to conclude that the appeal was hopeless or unarguable and that in issue of genuine public interest was engaged. No further submissions have been put on that question.
With respect to (ii), the prejudice to Infrastructure NSW, two questions arise, namely (a) the effect of removing the parts of the building said to involve little or no heritage value, or even to intrude upon heritage values, and (b) the urgency in taking those steps.
With respect to the first matter, there was no clear evidence as to the effect of the proposed demolition activities. It was no doubt true that they were to be carried out in accordance with plans created for the purposes of the development consent and in accordance with the conditions of that consent which had resulted from consideration of the EIS. It may be that those steps would ultimately be taken if Willow Grove were to be preserved onsite as part of the new development. However, that question was not addressed in the evidence to which the Court was taken.
With respect to the second matter, there is no doubt that Infrastructure NSW is reluctant to countenance any further delay in pursuing the project.
Mr Gellibrand stated that the disassembly of Willow Grove was the subject of a contract known as the "Ancillary Works Contract" which had been executed on 28 April 2021. He stated, that in accordance with the terms of the contract, the principal was required to issue a "Notice to Proceed" to the contractor on or before a date 120 days after the contract date, or terminate the contract. That period will expire on 27 August 2021. The principal was also required to pay an amount of $10,000 for each whole calendar month from the date of the contract until the date of issue of the notice. Mr Kennedy affirmed that, at 9:07am on 21 June 2021, "knowing that the undertaking had expired and that no steps had been taken by the appellant to appeal … or seek any extension to the undertaking", he gave instructions for the notice to proceed to be issued. That notice was apparently issued immediately, and work physically commenced on that day.
Mr Kennedy stated that the main works contract had yet to be awarded. He described how the "elements of little or intrusive significance" would be "decoupled" from the heritage building "by a combination of hand cutting, saw cutting and unbolting." Once physically separated, those elements were to be "demolished by use of an excavator." Mr Kennedy also noted that there was probably asbestos in the ceiling of the heritage component of the building, which would need to be removed.
There was no submission that a contractual penalty applied as a result of the injunction now under consideration. The only financial detriment identified in the affidavits was a statement by Mr Gellibrand that the main works contract had not been awarded and that delay might lead tenderers to increase their prices.
There is a real difficulty in understanding the timing of the steps taken so far and any temporal effect of not imposing the conditions. First, the action of Mr Kennedy in issuing the notice to proceed to the contractor immediately the undertaking expired, well within the 28 day period for lodging an appeal and without inquiry as to whether an appeal was being considered, called for some explanation. If there were an explanation for the haste with which the step was taken, it was not provided. If adverse consequences were to flow from the taking of that step, which is not clear, they would not influence the outcome of the present application.
Secondly, there was no evidence as to the expected time which would be taken to complete the disassembly and remove Willow Grove, or how that period would be affected by the inability to demolish elements with no heritage significance immediately. Indeed, there was no evidence as to how long the activities proposed in the conditions would themselves take.
In these circumstances, the prejudicial effects of not imposing the proposed conditions were at best speculative and of unknown significance. For these reasons, the Court was not persuaded that the imposition of the proposed conditions was warranted on the evidence to which the Court was taken.
One lesson which emerged from the current exercise was the need for the parties to ensure that, if voluminous documentation is to be relied upon in the course of the appeal, it will be properly indexed, and for there to be a bundle of core documents provided in advance. The parties are urged to consult as to the contents of such a core bundle. Given the brief time available for preparation of the hearing of the appeal, it is appropriate to give a formal direction to that effect, in the following terms: 1. Direct that the parties consult as to: 1. documents to be included in a core bundle to be provided in hard copy to the Court; 2. documents to be provided electronically, and 3. preparation of an index to the materials to be provided both in hard copy and electronically. 1. Direct that the core bundle and the material to be supplied in electronic form, together with the appropriate indices, be provided to the Court by 5pm on Wednesday, 30 June 2021. That direction is to the same effect as the direction given on 22 June 2021, par 4(iii).

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