North Parramatta Residents Action Group v Infrastructure NSW

Land and Environment Court (NSW)|2021-05-25|Before: Moore J, Ms P

Solicitors: Stacks Champion (Applicant) King & Wood Mallesons (First Respondent) NSW Department of Planning, Industry and Environment (Second Respondent) File Number(s): 81248 of 2021 Publication restriction: No

TABLE OF CONTENTS Preamble Introduction to the decision The project's site Ownership of the site The project developer The proceedings The interlocutory application The hearing Representation The Evidence Introduction Extracts from the documentary evidence The Statement of Agreed Facts A visual understanding of the proposal Introduction Image 1 Image 2 The plan The Parramatta context air photo A photograph of "Willow Grove". A description of "Willow Grove" The design selection process The present status of the project Introduction The contractual arrangements The development assessment process Introduction The Secretary's Environmental Assessment Requirements The EIS process Relevant statutory provisions Matters for determination Introduction The primary matters for determination The specific EIS compliance issues The submissions for the Residents Action Group Introduction The documentary material to which Mr Hale referred Introduction The material in the EIS document proper The Statement of Heritage Impact The Design Excellence Report Notice of Decision Departmental Assessment Report The RtS Report Public submissions Mr Hale's submissions on the legal framework for consideration of the EIS The submissions for the proponent Introduction Mr Lancaster's oral submissions The proponent's written submissions The submissions for the Minister Introduction Mr Beasley's oral submissions The written submissions for the Minister The Resident Action Group's submissions in reply Consideration Introduction Is there an obligation to consider alternative sites? The adequacy of the EIS in assessing alternative sites Are there feasible design alternatives to the selected design in the context of cl 7(1)(c) and the SEARs working together? Introduction Discerning the objectives conflicting with the retention of "Willow Grove" Conclusion Costs Orders Annexure A

Preamble

It is to be emphasised that this decision does not consider (and I am not legally permitted to consider) the merit of the site selected for the Powerhouse Parramatta or the design selected for the museum facility to be constructed on the site.
In particular, I am not permitted to consider any merit issues relating to whether or not "Willow Grove", a local heritage item recognised in the Parramatta Local Environmental Plan 2011 (the PLEP 2011), should be retained on the site.
This decision only concerns the validity of the Environmental Impact Statement (EIS) relied upon by the Minister for Planning and Public Spaces (the Minister) to grant development consent to the construction of the Powerhouse Parramatta. The North Parramatta Residents Action Group (the Residents Action Group) challenges the validity of the EIS. The challenge is made because the Residents Action Group considers that the EIS did not meet the necessary statutory requirements and is, therefore, invalid. If the EIS is invalid, the Residents Action Group submits that the Minister's development consent should then be held to be invalid.

Introduction to the decision

The Museum of Applied Arts and Sciences (the Museum) has its headquarters and primary exhibition spaces at the Powerhouse Museum on the south‑western fringe of Sydney's central business district. The Museum also has satellite operations at the Sydney Observatory at Observatory Hill and at the Museum's Discovery Centre at Castle Hill in Sydney's north‑west. In 2015, the NSW Government announced a plan to relocate the Powerhouse Museum from its present site to Parramatta.
That plan has subsequently been revised so that what is now intended is that there will be established a major new element to the Museum, to be known as the Powerhouse Parramatta (the project), to be constructed on a site on the southern bank of the Parramatta River on the northern fringe of the Parramatta Central Business District (Parramatta CBD) and immediately to the east of Church Street, a major north‑south thoroughfare running through Parramatta's central business district.
The project is State Significant Development, by virtue of it being for a cultural or educational development having a project value greater than $30 million. The Minister was the consent authority. Development consent was granted by the Minister for construction of the Powerhouse Parramatta on 11 February 2021.

The project's site

The project's site has an area of 19,438 square metres. Located on the site are two items of heritage identified in the PLEP 2011. These two heritage items are known as "Willow Grove" and St George's Terrace. It was originally envisaged that each of these heritage items would be demolished to make way for the carrying out of the project. Following revisions to the project design, in response to submissions that retention of the heritage items would be appropriate, "St George's Terrace" is now to be incorporated into the project, whilst it is proposed that the heritage structure of "Willow Grove" will be disassembled from its present location on the site and reassembled at a site yet to be determined.

Ownership of the site

The site is partially owned by Infrastructure NSW, an entity established by Infrastructure NSW Act 2011, and partially owned by the Ministerial Planning Corporation, an entity established pursuant to s 2.5 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

The project developer

Infrastructure NSW is the statutory corporation which has been designated as the authority to manage and deliver the project by the NSW Government.

The proceedings

On 22 March 2021, the Residents Action Group commenced Class 4 proceedings challenging the validity of the development consent granted by the Minister for the carrying out of the project. The invalidity is said to arise as the EIS, the Residents Action Group says, is itself fatally flawed and cannot thus provide a proper foundation for the development application for the project.
The Summons commencing the Residents Action Group's challenge to the Minister's consent was subsequently amended by leave granted pursuant to a Notice of Motion filed on 20 May 2021. The application to rely on an Amended Summons was not opposed by either Infrastructure NSW or the Minister. The amendments made were, essentially, tidying up ones ‑ ones not involving amendments of substance or significance. As a consequence, it is sufficient for the purposes of providing context for these proceedings that the terms of the Amended Summons only be reproduced. The Amended Summons is in the following form: Orders Sought 1 A declaration that the development consent granted by the Second Respondent on 11 February 2021 to the development application made by the First Respondent described in the Schedule is invalid and of no force or effect. 2 An order that the First Respondent be restrained from carrying out the development described in the Schedule on the land described in the Schedule. 3 An interlocutory order in terms of Order 2. 4 Such other order or orders as the Court may see fit to make. Schedule Application No: SSD 10416 Applicant: Infrastructure NSW Consent Authority: Minister for Planning and Public Spaces Land: 30B, 34, 36‑38, 40, 42 and 44‑54 Phillip Street, Parramatta Lot 1 DP 128474, Lot 1 DP 1247122 and Lot 2 DP 1247122 Development: Powerhouse Parramatta development including: ● removal of existing buildings and trees, relocation of Willow Grover and retention of St George's Terrace; ● construction of two buildings up to the RL 79.2 m, with a gross floor area of 24,516 m2 for museum and ancillary uses; ● vehicle servicing, coach pick‑up/drop‑off facilities, bicycle parking and road amendments; and ● public domain improvement including publicly accessible open spaces, landscaping and creation of a through‑site link. Details of Decision 1 The decision maker was the Minister for Planning and Public Spaces. 2 The decision to be reviewed was the purported decision approving consent for the development application SSD‑10416 for the Powerhouse Parramatta development. 3 The Plaintiff seeks relief from the whole of the decision. Grounds 1 On 11 February 2021, the Second Respondent (the Minister) granted consent to the development application (the DA) described in the Schedule to the Summons made by the First Respondent for the development of the Powerhouse Parramatta (the Development), more particularly described in the Schedule, on the land in Phillip Street, Parramatta known as "Willow Grove" (the Land), which Land is described in the Schedule. 2 The Development is State Significant Development pursuant to s 4.36 of the Environmental Planning & Assessment Act 1979 (the Act). 3 On the Land, the subject of the DA, there presently exists a heritage item under the Parramatta Local Environmental Plan 2011, being buildings and grounds known as "Willow Grove". 4 The development, the subject of the DA, included the removal of heritage item, that is the removal of the existing buildings and trees known as "Willow Grove". 5 Pursuant to s 4.12(8) of the Act, the DA was required to be accompanied by an Environmental Impact Statement (EIS) prepared by or on behalf of the First Respondent in the form prescribed by the Environmental Planning & Assessment Regulation 2000 (the Regulations) which, inter alia, required that the EIS comply with: (a) clause 7 of Schedule 2 of the Regulations; (b) the Planning Secretary's environmental assessment requirements (SEARS) provided pursuant to clause 3 of Schedule 2 of the Regulations. 6 In breach of s 4.12(8) of the Act the DA was not accompanied by an EIS prepared in the form prescribed by the Regulations in that: (a) the EIS did not comply with clause 7(1)(c) of Schedule 2 to the Regulations which requires the EIS to include an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure; (b) the EIS did not comply with the SEARS dated 10 February 2020 which required the EIS to demonstrate attempts to avoid and/or mitigate the impact on the heritage significance or cultural heritage values of the site and the surrounding heritage items and heritage conservation areas and to outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained "Willow Grove" and St George's Terrace. 7 By reason thereof: (a) there was not an application for development consent within the meaning of a 4.12 of the Act capable of being determined by the grant of development consent pursuant to s 4.16 of the Act; (b) the purported development consent granted by the Second Respondent on 11 February 2021 is invalid and of no force and effect; (c) the Applicant is entitled to the relief sought.

The interlocutory application

A Notice of Motion filed by Infrastructure NSW came before me as the List Judge on 23 April 2021. That Notice of Motion relevantly sought: 1 ORDER, that the proceedings with case number 2021/00081248 be expedited;
In lieu of formally granting expedition, as proposed by the Infrastructure NSW, early hearing dates of 24 and 25 May 2021 (based on the parties' agreed estimate of a two‑day hearing) were allocated with the Respondents explaining the desirability of an early decision (if possible) in light of the contractual timetable later set out.

The hearing

As foreshadowed at the interlocutory hearing, the hearings were held, efficiently, on 24 and 25 May 2021. The legal representatives of the parties were present in the courtroom with additional physical attendance limited to the permitted capacity of Court 1A. This public attendance was in accordance with the terms of the COVID‑19 Pandemic Policy, as applicable at the time of the hearing. Because of the potential public interest in the subject matter of the proceedings, the proceedings were live‑streamed on the Court's YouTube channel.

Representation

The Residents Action Group was represented by Mr T Hale SC and Ms P Hart, barrister. Infrastructure NSW was represented by Mr R Lancaster SC and Mr T Boyle, barrister. The Minister was represented by Mr R Beasley SC and Ms M O'Brien, barrister. The advocates provided helpful written submissions on behalf of each of the parties to the proceedings.

Introduction

The evidence was entirely documentary. Extensive documentation from the EIS process (including the EIS itself, together with its various appendices), the "Response to Submissions Report" (RtS Report) prepared as a result of the public exhibition, and other subsequent documents in the process of evolution of the development application addressing the terms of the project as originally propounded by Infrastructure NSW through to documents explaining its evolution to the form of the proposal to which the Minister granted development consent on 11 February 2021 were tendered.
Exhibit 3 comprised the Statement of Agreed Facts (at Tab 5 of the Court Book). The Statement of Facts, although originally headed as being the "First Respondent's Statement of Facts", was tendered, without objection, as an agreed document (Transcript 24 May 2021, page 18, lines 41 and 42).
Exhibit 4 is the Summary Business Case, published on the Infrastructure NSW website.
Exhibit 21 (the Minister's first exhibit) is a letter from the Department to the proponent setting out additional matters required to be addressed in the RtS Report.
On the morning of the second day of the hearing, Infrastructure NSW provided a comprehensive list of the documentary evidence which had been tendered to that time. The list is somewhat lengthy, but it is appropriate to reproduce it as Annexure A to this decision to provide a proper understanding of the range of material in evidence.
Two affidavits were read on behalf of Infrastructure NSW. The first of these affidavits was from Mr Tom Gellibrand. Mr Gellibrand is employed by Infrastructure NSW as its Head of Projects NSW. The second affidavit was from Ms Lisa Havilah. Ms Havilah holds the position of Chief Executive of the Museum. Neither of the deponents were required for cross‑examination.
It is also to be noted that I expressed to Mr Lancaster my concern that some of the elements in Mr Gellibrand's affidavit (where he addressed the question of potential impacts on third parties if there was significant delay to the present proposed timetable of the project) involved speculation on Mr Gellibrand's behalf. However, this aspect of his evidence would only require to be weighed on matters of discretion should I have concluded that any inadequacies in the EIS and the approval process warranted consideration of whether (and to what extent) it would be appropriate for the Court to intervene with respect to future progress of the project.

Extracts from the documentary evidence

Because of the way the parties have argued their positions and because of the extensive range of documentary material in evidence, it will be necessary to reproduce a considerable number of elements from that documentary evidence (some of which will be lengthy).

The Statement of Agreed Facts

As earlier noted, a Statement of Agreed Facts became Exhibit 3. The Statement of Agreed Facts is reproduced below: AGREED STATEMENT OF FACTS 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 (INSW), a NSW Government agency. 3 The Second Respondent is the Minister administering the Environment Assessment and Planning Act 1979 (NSW) (EPA Act) and is the relevant decision‑maker, the subject of these proceedings. The Landowners 4 The site comprises three parcels of land, being Lots 1 and 2 in DP1247122 and Lot 1 in DP128474. 5 In April 2019, the Planning Ministerial Corporation became the registered proprietor of Lots 1 and 2 in DP1247122. The Planning Ministerial Corporation is a NSW Government agency which forms part of the Department of Planning, Industry and Environment (DPIE), subject to the control and direction of the Second Respondent. 6 In July 2019, Property NSW became the registered proprietor of Lot 1 in DP128474. Property NSW also forms part of the DPIE. Details of Decision 7 The decision to be reviewed is the decision of the Second Respondent pursuant to section 4.38 of the EPA Act dated 11 February 2021 granting consent to the development of the Powerhouse Parramatta. Background 8 On 26 February 2015, the then NSW Premier Mike Baird and the Deputy Premier Troy Grant announced the NSW Government's plan to move the Powerhouse Ultimo to Parramatta to establish a cultural institution within Western Sydney. 9 On 24 January 2019, Create NSW within the Department of Premier and Cabinet commenced an international design competition for the Powerhouse Parramatta. 10 On 8 May 2019, six international design teams were shortlisted by the Shortlisting Panel which concluded Stage 1 of the international design competition. The Shortlisting Panel was chaired by Naomi Milgrom AO and its members comprised a subset of the Stage 2 competition jury. 11 On 16 December 2019, the Minister for Arts, Don Harwin announced Moreau Kusunoki and Genton as the winner of Stage 2 of the international design competition. 12 Powerhouse Parramatta is State Significant Development under section 4.36 of the EPA Act as the development is specified in Schedule 1 of State Environmental Planning Policy (State and Regional Development) 2011. 13 Two parts of the Powerhouse Parramatta site, "Willow Grove" and St George's Terrace, are locally listed heritage items under the Parramatta Local Environmental Plan 2011 (PLEP). These buildings are not subject to a state heritage listing. 14 A Request for Secretary's Environmental Assessment Requirements (SEARs) was made on 13 January 2020. 15 An Environmental Impact Statement (EIS) was prepared on 2 June 2020. 16 From 10 June 2020 to 21 July 2020, the EIS for the development was publicly exhibited for an extended period of 42 days. 17 On 31 July 2020 the Secretary provided to INSW the submissions received during the exhibition period and made a written request to INSW that it provide a written response to those submissions. 18 On 8 October 2020, INSW submitted its initial Response to Submissions (RtS). The RtS was notified to Council and relevant agencies and made publicly available on the DPIE's major project website on 8 October 2020. 19 From October 2020 to 21 December 2020 further submissions were made by agencies and the public in relation to material contained in the RtS. 20 On 2 November 2020, INSW provided a response to a request for information from the OPIE in relation to the retention of St George's Terrace. A copy of this response was made publicly available on the DPIE's major project website on 16 November 2020 and identified as "RFI 1". 21 On 27 November 2020, the OPIE made a written request to INSW to provide a response to the issues identified in further public and public authority submissions to the RtS on the DPIE's major project website. 22 On 30 November 2020, INSW provided a response to the issues identified in further public and public authority submissions on the RtS. A copy of this response was made publicly available on the DPIE's major project website on 3 December 2020 and identified as "RFI 2". 23 On 21 December 2020, the OPIE made a written request to INSW to provide a consolidated response to all submissions received by the public, Council and agencies in response to the RtS. 24 On 19 January 2021, INSW provided a response to the submissions by the public, Council and agencies on the RtS. 25 On 20 January 2021, INSW provided an additional supplementary response to the matters raised in relation to the RtS and requests for additional information by the DPIE. The responses of 19 January and 20 January 2021 made publicly available on the DPIE's major project website on 21 January 2021 and both identified as "RFI 3". 26 In February 2021 OPIE published its Assessment Report. Planning Minister's Decision 27 On 11 February 2021, the Second Respondent granted development consent to Powerhouse Parramatta. 28 The Minister's reasons for the decision, contained in the Notice of Decision were issued on 11 February 2021. 29 The Minister's Notice of Decision expressly adopts the Assessment Report as forming part of its reasons for determination.
As can be seen, the primary utility of the above document is its chronological setting out of the various steps in the process from the initial policy determinations of the NSW Government (for the originally proposed complete relocation of the Museum from its present site at Ultimo to the selected site on the banks of the Parramatta River) to the granting by the Minister in February 2021 of development consent to the project now involving the establishment of Powerhouse Parramatta but with the retention of the current Museum facility at Ultimo.

Introduction

As will become obvious from my setting out of the submissions made on behalf of each of the parties, extensive extracts are necessary to be reproduced from a wide range of the documentary material in the evidence. Those extracts provide, when understood together, a broad word picture of the physical elements proposed for the project and the objectives sought to be achieved. A comprehensive word picture is also painted of "Willow Grove" in one of those extracts later reproduced. However, I consider it appropriate to incorporate, at this point, two architectural images, a plan of the site, an air photo showing the site's Parramatta context and a photograph of "Willow Grove". Between them, they provide a visual introduction, one which gives context to all the descriptive material from the evidence that is later extracted and analysed (either in the submissions on behalf the parties or in my consideration of them).

Image 1

The first image is one which appeared on the cover of the EIS (and was also used as a cover image on various appendices to that document with different identifying text). It provides a photographic artist's interpretation (presented obliquely, looking south‑west toward the project) of the two major built‑form elements proposed to be erected on the site. I

Image 2

The second image is one appearing in the evidence at Exhibit A‑1, folio 278. It is an architectural schematic depicting the location of the element of the design providing ground level connectivity from the Phillip Street frontage of the site (on the northern edge of the Parramatta CBD) between the two proposed major built elements of the project and thence to the Parramatta River foreshore and its east‑west running walkway along the banks of the river.

The plan

It is next appropriate to reproduce a plan of the site (Exhibit A‑1, folio 278), one which shows, relevantly, the following: 1. In outline, the rectangular footprints of the two major buildings depicted in the first of the above images. These outlines show the orientation of the proposed buildings and, although proposed to be constructed some four metres above ground level, the walkway between the two major buildings; and 2. As a solid black footprint, the location and dimensions of "Willow Grove".
As can be seen on the below plan, the majority of the footprint of "Willow Grove" is within the space identified to provide the later discussed connectivity (by the Civic Link) between the Phillip Street frontage and the riverbank walkway. As can also be seen, portions of the footprint of "Willow Grove" are also within the footprints of the two major buildings proposed for the project.

The Parramatta context air photo

Although somewhat dark, the air photo reproduced below shows the site in its broader Parramatta context. The air photo is from Exhibit A‑2 at folio 543:

A photograph of "Willow Grove".

The final element appropriate to be reproduced for providing appropriate visual context for matters requiring consideration in these proceedings is a contemporary photograph of "Willow Grove". This photograph is taken from the south, looking at the primary presentation of "Willow Grove" when viewed into the site from Phillip Street. This photograph is in the evidence at Exhibit A‑1, folio 29:

A description of "Willow Grove"

In addition to the photograph reproduced immediately above, it is also appropriate to reproduce a brief description of "Willow Grove" (including elements of its history) to provide a word picture to assist in providing an understanding why the Residents Action Group has mounted these judicial review proceedings.
However, it is important, in this context, to note that this decision addresses only issues of compliance or otherwise with mandated statutory processes and does not address (and I am not permitted to address) merit matters relating to the proposed deconstruction and removal of "Willow Grove" from the site or of the merits of the design of the project.
The brief description of "Willow Grove" is in the following terms (Exhibit A‑1, folio 36): Willow Grove is an item of local significance for historical, aesthetic and representative reasons. It was built in the 1870s as a private villa and later became a maternity hospital called Estella. "Willow Grove" is one of four remaining buildings of its type in the Parramatta Council area. It is a good example of a Victorian Italianate two‑storey villa, readily identifiable as part of historic building stock and strongly contributing to the streetscape in spite of its large setback, partly through its notable fence. It has been subject to alterations at the rear of the house which include the introduction of an auditorium and enclosed courtyard. Mature trees on the "Willow Grove" site are also considered to have local heritage significance in association with the building.

The design selection process

An international design competition was run to select designers for the project.
The design selection process was a two stage one. There was, at the first stage, an international design competition. Some 240 entries were received in response to this. These entries were considered by a jury comprising:

Naomi Milgrom AO (Jury chair), Business Leader, Philanthropist
Kim Crestani, City Architect, City of Parramatta Council
David Gianotten, Managing Partner ‑ Architect, OMA
Lisa Havilah, Chief Executive, Powerhouse
Wendy Lewin FRAIA, Principal, Wendy Lewin Architect
David Riches, (former) Head of Projects, Infrastructure NSW
Jeanne Gang, Founder and Principal, Studio Gang

The entrants were whittled down to a second‑stage group of six potential design teams. These six design teams were then invited to submit a more substantial project proposal for consideration by the jury.
At the conclusion of this second‑stage process, the jury selected an architectural consortium of Moreau Kusunoki (France) and Genton (Australia) to provide a final preferred design.
The NSW Government accepted the jury's recommendation of these preferred designers and announced, on 16 December 2019, that the project would proceed ‑ based on seeking development consent for the project as a State Significant Development.

Introduction

It is appropriate, at this point, to note two aspects of the present state of the project. These are the current and proposed contractual arrangements to effect the delivery of the project and, second, the current and proposed works' staging pursuant to those current or future contracts to effect delivery of the project by the proposed completion date for opening and commencement of public access to exhibitions to be mounted at the proposed facility.

The contractual arrangements

Three principal contracts are proposed to form the legal basis for delivery of the project. These contracts are as follows: 1. The Early Works contract was entered into by Infrastructure NSW on 26 February 2021. It encompasses preliminary site preparation works, with these works being presently ongoing (affidavit of Mr Gellibrand of June 2021). 2. The Ancillary Works contract is to follow on from the completion of the Early Works contract. The deconstruction and removal of "Willow Grove" is an element of the works to be carried out pursuant to this contract. This contract has yet been entered into. This contract was envisaged to have its activities commence on or shortly after 12 April 2021. This contract was originally to be completed in July 2021. However, Infrastructure NSW gave an undertaking that no deconstruction work on "Willow Grove" would commence prior to 21 June 2021 to enable the Resident Action Group's challenge to the EIS to be heard and determined. 3. The Main Works contract is the primary contract for the major construction activities necessary for the erection and fitout of the project. As at the time of the hearing of these proceedings, tender bids have been sought for this contract; preliminary assessment and a shortlist of potential tenderers selected; but no final contractor selection has occurred (and, self‑evidently, no contract has been entered into). The projected timeline for delivery of the project necessitates that completion of the tender assessment process, and entry into a contract with the selected tenderer, needs to be completed in the comparatively near future if the proposed delivery date for the project is to be achieved.

Introduction

Because the project is State Significant Development, s 4.39 of the EPA Act requires that the application for development consent be accompanied by an EIS.

The Secretary's Environmental Assessment Requirements

On 10 February 2020, in response to a request to be provided with the Planning Secretary's Environmental Assessment Requirements (SEARs) (such requirements being necessary by virtue of the operation of s 5.16 of the EPA Act), the SEARs were provided to Infrastructure NSW as the proponent of the project.
It will later be necessary to consider the terms of some of the elements of the SEARs and also the interrelationship between the SEARs and the operation of cl 7 of Sch 2 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Between them, the SEARs and cl 7 of Sch 2 of the Regulation set the framework for the matters which are required to be addressed by the EIS which is mandated to be submitted with the development application for the project. It is appropriate to set out relevant elements of Sections 3, 4, 5 and 6 of the SEARs. These were in the following terms: 3. Built form, heritage and urban design The EIS shall: ● outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained Willow Grove and the St George's Terrace 4. Integration with surrounding area The EIS shall demonstrate how the proposal: ● will be designed and staged to integrate with the future development of surrounding sites and the wider redevelopment of Parramatta including Civic Link, River Square, River foreshore and the future laneway to Church Street ● will address public accessibility, connectivity and major events at Civic Link, River Square and the River foreshore 5. Public domain The EIS shall: … ● address how the public domain responds and contributes to existing and planned future public spaces in Parramatta, including Civic Link, River foreshore and River Square and supports pedestrian and cycle movements in, around and through the site 6. Heritage and Archaeology The EIS shall include: ● a Statement of Heritage Impact (SOHI), prepared by a suitably qualified heritage consultant in accordance with the guidelines in the NSW Heritage Manual. The SOHI is to address the impacts of the proposal on the heritage significance of the site and adjacent areas, and is to: ‑ identify all heritage items (state and local and potential) and conservation areas within and near the site, including built heritage, landscapes and archaeology, include detailed mapping of these items and an assessment of why the items and site(s) are of heritage significance ‑ assess the impacts of the proposal on the heritage significance of these items and conservation areas, including visual and physical impacts, vibration, demolition, archaeological disturbance, altered historical arrangements and access, visual amenity, landscape and vistas, setting, and curtilage (as relevant) ‑ address compliance with any relevant Conservation Management Plan, addressing any proposed adaptive reuse and measures to minimise impacts on the building ‑ demonstrate attempts to avoid and/or mitigate the impact on the heritage significance or cultural heritage values of the site and the surrounding heritage items heritage conservation areas ‑ demonstrate engagement with appropriate local stakeholders.

The EIS process

The EIS for the project was prepared by Ethos Urban. The development application and the EIS, and a range of other supporting documents, were placed on public exhibition for a period of 42 days commencing on 10 June 2020 and concluding on 21 July 2020. A total of 1,303 submissions were made in response to the documents placed on public exhibition. A Response to Submissions Report (the RtS Report) was prepared after consideration of these submissions.
The RtS Report was also exhibited on the departmental website. Some 383 further submissions were made with respect to its contents. In response, a Supplementary RtS Report was also prepared. This Supplementary RtS Report itself attracted four further submissions.
It will be later necessary to address the EIS; other exhibited documents supporting the development application; and the RtS Report and what followed from it.
However, for present purposes, it is sufficient to note that, after consideration of the development application, its supporting documentation and the material arising from the public exhibition process together with a Departmental Assessment Report, on 11 February 2021, the Minister granted development consent to the project subject to conditions.

Relevant statutory provisions

Although there are references to provisions of the EPA Act and the Court Act, it is not necessary to reproduce their terms. However, several clauses from "Schedule 2 Environmental impact statements" to the Regulation do require to be reproduced for a proper understanding of what follows. The relevant elements of these clauses from Schedule 2 are in the following terms: 3 Environmental assessment requirements (1) Before preparing an environmental impact statement, the responsible person must make a written application to the Planning Secretary for the environmental assessment requirements with respect to the proposed statement. (2) … (3) ... (4) … (4A) … (4B) … (5) The Planning Secretary is to notify the responsible person and (where relevant) the responsible authority in writing within the required time of the environmental assessment requirements. The Planning Secretary may modify those requirements by further notice in writing. 6 Form of environmental impact statement An environmental impact statement must contain the following information - (a) the name, address and professional qualifications of the person by whom the statement is prepared, (b) the name and address of the responsible person, (c) the address of the land - (i) in respect of which the development application is to be made, or (ii) on which the activity or infrastructure to which the statement relates is to be carried out, (d) a description of the development, activity or infrastructure to which the statement relates, (e) an assessment by the person by whom the statement is prepared of the environmental impact of the development, activity or infrastructure to which the statement relates, dealing with the matters referred to in this Schedule, (f) a declaration by the person by whom the statement is prepared to the effect that - (i) the statement has been prepared in accordance with this Schedule, and (ii) the statement contains all available information that is relevant to the environmental assessment of the development, activity or infrastructure to which the statement relates, and (iii) that the information contained in the statement is neither false nor misleading. 7 Content of environmental impact statement (1) An environmental impact statement must also include each of the following - (a) a summary of the environmental impact statement, (b) a statement of the objectives of the development, activity or infrastructure, (c) an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure, (d) an analysis of the development, activity or infrastructure, including - (i) a full description of the development, activity or infrastructure, and (ii) a general description of the environment likely to be affected by the development, activity or infrastructure, together with a detailed description of those aspects of the environment that are likely to be significantly affected, and (iii) the likely impact on the environment of the development, activity or infrastructure, and (iv) a full description of the measures proposed to mitigate any adverse effects of the development, activity or infrastructure on the environment, and (v) a list of any approvals that must be obtained under any other Act or law before the development, activity or infrastructure may lawfully be carried out, (e) a compilation (in a single section of the environmental impact statement) of the measures referred to in item (d)(iv), (f) the reasons justifying the carrying out of the development, activity or infrastructure in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development set out in subclause (4). (2) Subclause (1) is subject to the environmental assessment requirements that relate to the environmental impact statement. … 9 Documents forming part of environmental impact statement (1) Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.

Introduction

It is now appropriate to set out the matters requiring to be determined in these proceedings. Given the significant volume of material needing to be considered; the constrained time available for the hearing because of the early allocation of hearing dates; and the time pressures for addressing the first of the primary matters for determination set out below, this decision is confined to addressing those compliance issues.
This meant that the potential consequences of a finding that there had not been compliance, or substantial compliance, was deferred to a subsequent hearing if that became necessary as the outcome of this decision.

The primary matters for determination

The primary matters for determination in these proceedings are: 1. Did the EIS comply, or substantially comply, with the requirements of cl 7 of Sch 2 of the Regulation and to the SEARs (as those requirements worked together)? and 2. If the EIS did not comply, or substantially comply, with those requirements, what should be the consequence for the project of such non‑compliance?
It is to be observed that the second of the above identified primary issues potentially gives rise to subsidiary considerations concerning: 1. The effect of s 4.60 of the EPA Act; and 2. Matters of discretion addressing the tension between the remedy sought by the Residents Action Group in its Amended Summons, on one hand, and the potential to invoke the power of the Court pursuant to s 25 of the Land and Environment Court Act 1979 (the Court Act) to permit the addressing of the defects found and their rectification in a fashion which would permit the project to continue (with the potential that there might be some delay in doing so), but with the continuation not requiring any major intervention with the project's design (as would be the consequence of the relief that is sought by the Residents Action Group).

The specific EIS compliance issues

The EIS compliance issues involve matters of statutory construction of the elements of cl 7 of Sch 2 of the Regulation and, depending on the resolution of those issues of construction, the extent to which the EIS, and the documents which evolved from it, actually satisfied what was required by Sch 2 of the Regulation and by the relevant terms of the SEARs working together.
The construction issue primarily involves determining what is required by cl 7(1)(c); and how that provision is required to work together with Section 3 of the SEARs as a consequence of the operation of cl 7(2) of the schedule.
After discerning an understanding of these points of construction, what is then required is consideration of what is the relevant factual material from the evidence said by Infrastructure NSW to satisfy each element. Having done so, I am required to determine whether this material leads to the conclusion that there was compliance or substantial compliance for those elements of the EIS (and, subsequently, of the entire EIS) as required.
In my later consideration of these matters, it will be appropriate to interleave consideration of the regulation construction issues and the matters arising from the evidence as to the adequacy or otherwise of those requirements being addressed.

Introduction

I have earlier noted that Mr Hale had provided written submissions outlining the case advanced on behalf of the Residents Action Group. Mr Hale's oral submissions expanded on that written material.
I propose to address the case advanced for the Residents Action Group by: 1. Summarising the approach outlined by Mr Hale in his oral submissions (including the statutory construction of cl 7(1)(c) upon which he relied); and 2. Setting out the material to which Mr Hale took me from the documentary evidence (providing, as appropriate, an explanation of what Mr Hale drew to my attention concerning the extract); and 3. Addressing Mr Hale's written and oral submissions concerning what he submitted should be the legal consequences flowing from the defects which he said were able to be discerned from the material to which he had taken me.
In the context of this proposal, Mr Hale submitted that there was a particular importance for this EIS process because (Transcript 24 May 2021, page 5, lines 27 to 35): So the Planning Ministerial Corporation is the landowner and the Minister is the consent authority; that is, the applicant is a public authority. This is not being critical but it's a matter of fact that the only involvement in the decision‑making process external to government, the Minister, and Infrastructure NSW is the EIS process and the public exhibition of the EIS and the objections made by the public and other agencies and this is why we contend it is so important that the EIS fully informs the public on, amongst other things, the alternatives, and the alternatives are the alternatives to a development which involves the demolition of "Willow Grove".
Mr Hale took me to a wide variety of elements of the documentary evidence said by him to demonstrate that, although the EIS process at its various stages, had assumed that "Willow Grove" would not be permitted to be retained, no proper or sufficient justification had been provided for this. I observe that the material that I set out in this section is referenced following the same order as was adopted by Mr Hale when taking me to this material.
Although the initial proposal was simply for the demolition of "Willow Grove" but had now morphed to its deconstruction and re‑erection at another location, he submitted that nowhere in the EIS documentation was there an examination of alternatives which would permit the retention of "Willow Grove" where it is now located.
The broad foundational basis, Mr Hale submitted, was that the necessity to examine this would disclose a fundamental flaw in the EIS process, rendering it invalid by its failure to satisfy what was required by a proper reading of the terms of cl 7(1)(c) and the opening elements of Section 3 of the SEARs.
I have earlier set out the terms of cl 7(1)(c). The position advanced for the Residents Action Group is that this provision requires consideration of: 1. First, whether there were any feasible alternative sites and, if there were, why they were rejected; then 2. The examination of feasible alternatives to the carrying out of the development on the site, having regard to the objectives of the development.
In this context, Mr Hale submitted that this required a broad examination and not one confined to the development preferred by the proponent (Transcript 24 May 2021, page 7, lines 25 to 30): We would contend the meaning of "feasible" is something that's capable of being done, achievable in a practical sense. What is implicit in (c) is that the alternatives will not in fact be the preferred option of the developer because the preferred option is the development propounded and the subject of the development application.
He submitted that, read together properly, that which was required to be addressed through the EIS process was an explicit examination of alternative sites in the vicinity of the Parramatta CBD for carrying out the project and, if creation of a Powerhouse Parramatta was to be constructed on the site selected for the project, whether its design could feasibly incorporate retention of "Willow Grove".
In particular, he submitted that the interaction between cl 7(1)(c) and Section 3 of the SEARs mandated that the EIS was required to incorporate an analysis of alternative schemes encompassing designs which could have retained "Willow Grove".
With respect to what was said to be the necessity to examine alternative sites, Mr Hale observed that the decision to have the project located on the chosen site was one made in 2016 (that being before the preparation of the EIS) and that, as a consequence, the EIS was required (on the Residents Action Group's construction of cl 7(1)(c)) to consider alternatives to that site. Because of the necessity to examine alternative sites, the failure of the EIS process to do so meant that this process was flawed because adequate and complete information was not available to members of the public in a fashion that would permit a proper basis upon which to make submissions concerning the proposed development.
The second (and specific) aspect of the complaint about the inadequacy of considering feasible alternatives for designs on the site was that the design competition and judging process did not encompass any specific requirement to consider designs that enabled the retention of "Willow Grove". The position was, he submitted, that those advancing proposals for consideration in this process merely had to consider heritage aspects of the site in preparing their submissions to the competition.
The overall broad thrust of his submissions, as I understood them, was that, at best, lip service had been given to addressing these matters and that no detail was provided anywhere in the documentation that could support a conclusion that these issues had been addressed in a fashion that complied with what had been mandated by cl 7(1)(c) and/or the SEARs working together.

Introduction

During the course of his oral submissions, Mr Hale took me through a wide range of the documentary evidence. That to which he took me not only comprised the primary EIS documents, but also elements of the supporting documentation accompanying it ‑ documents, for reasons earlier noted, that were incorporated as part of the EIS, by virtue of cl 9 of the Regulation.
Mr Hale also took me to elements of a number of submissions addressing the EIS that had been made during the public exhibition process. These submissions (a sample of those relevant on this point, as I understood him), he submitted, made it clear that the defects in the EIS process alleged by the Residents Action Group were ones that had adequately put the Minister (and those advising him in the decision‑making process) on notice of the nature of the deficiencies that had been identified in the Residents Action Group's complaints that were the basis of these proceedings. This, he submitted, provided a proper basis upon which the relief sought by the Residents Action Group should be granted.

The material in the EIS document proper

In the Executive Summary of the EIS (Exhibit A‑1, folio 10), Mr Hale drew attention to the fact that the application expressly sought approval for "demolition of existing buildings including the existing Riverbank Carpark, 'Willow Grove', 'St George's Terrace' and all other existing structures located on the site." This was then repeated in the body of the EIS as an element of the overview of the proposed development.
Mr Hale then took me to "1.3 Objectives of the Development" (Exhibit A‑1, folio 15). These objectives were in the following terms: The objectives of the development are to: ● Create a world class new museum for the communities of NSW that enables the delivery of an ambitious, dynamic and constantly changing program that provides new levels of access to Powerhouse Collections ● Support the delivery of a dynamic and active museum precinct, that will present multiple concurrent activities including exhibitions, events, and community and education programs. Each space is to play a distinct role in the precinct, and when working together, create a 24‑hour precinct embedded into the City. ● Ensure the development is agile and adaptable, providing flexible consolidated facilities across both back of house and public facing areas that permit changes in the daily program and allow for the multiple uses of space. ● Provide a precinct that has multiple entry points and can be approached and connected from all sides, so that visitors and local communities will be encouraged to walk through. ● Create 24/7 pedestrian movement from Phillip Street through to the Parramatta River foreshore. As part of this, a centralised circulation corridor is to be emphasised for intuitive wayfinding and visual activation at the termination of Parramatta's 'Civic Link'. ● Produce a design that is engaging and relevant to diverse communities including spaces that support diverse abilities and Australian Aboriginal and Torres Strait Islander connections and continuing practices in applied arts and sciences. ● Provide operational efficiency for high levels of production and to maximise public facing programming, including total acoustic and light isolation of each space to support high levels of concurrent activity. ● Provide public domain areas that support gathering, dwelling and cultural events across a range of scales, from informal passive recreation to site‑wide precinct events. ● Promote sustainable design principles including energy conservation, reduction of waste, water usage reduction, and materials from sustainable sources. ● Take advantage of the site's highly accessible location by prioritising active and sustainable modes of transport and ensuring that pedestrian activity across the whole of the precinct is prioritised.
Mr Hale proposed that I should regard the first two of the above points as being of greater significance, but also drew my attention to the fifth and to the final one of these objectives.
Mr Hale then continued by taking me through matters set out in 1.4 Analysis of Alternatives in the EIS. This is an element of some significance in the way the case on behalf of the Residents Action Group was mounted. It is necessary to reproduce it in full. It commenced at page 15 of the EIS and concluded at the top of page 17. This portion of the EIS is in the following terms: 1.4 Analysis of alternatives Three Section 3 primary options have been considered in responding to the identified strategic need and objectives of the project. The options outlined below are generally aligned with those described in the Business Case Summary published by Infrastructure NSW on their website, as well as other significant research and development that has informed the proposed development. Option 1 ‑ The 'do nothing' scenario The 'do nothing' scenario considers retaining the existing site in situ and electing not to construct the proposed Powerhouse Parramatta. Whilst this outcome would retain all existing buildings including local heritage on the site, this outcome would also fail to realise the strategic need for the proposal, as discussed above, and would ben inconsistent with the NSW Government's strategic planning policies. It would also negatively impact the ongoing operation of the Powerhouse, which has been increasingly straining to meet its obligations to display, conserve, maintain, secure and operationally manage its collections. The Business Case Summary argues that, without fundamental change, this position is expected to deteriorate further. The proposed development represents the opportunity to provide increased access to the Powerhouse Collection with a purpose‑built facility that can address the challenges and constraints provided by existing facilities. It has the potential to deliver world‑class opportunities for education and research, alongside exhibition space, and space for social and digital interaction and exchange. It will generate a range of regional and local benefits that cannot be achieved through continuing to utilise the site for the purposes of carparking and disused or underutilised retail and commercial buildings. This scenario would represent a missed opportunity, and as such electing to do nothing is not a preferred or supportable option. Option 2 ‑ Alternative location Option 2 considers whether the proposed new institution could be delivered in an alternative location. The riverside site has been found to be the best and most appropriate location for the delivery of the Powerhouse Parramatta both at a regional and local scale and was ultimately selected as the favoured location with the NSW Government announcing its acquisition from City of Parramatta Council in April 2016. Powerhouse Parramatta will be the first major, world class cultural institution to be established in Western Sydney. It will provide unprecedented access to the Powerhouse Collection alongside cultural, science and lifelong learning programs setting a new benchmark in cultural participation by the diverse and growing communities of Western Sydney. It signifies substantial investment in the Parramatta CBD that is the economic anchor to the GPOP economic corridor and the wider development of the Central River City that is fundamental to Sydney's metropolitan planning future. At a local scale, it is also a key fixture of the developing culture and arts precinct within the Parramatta centre and will generate a range of localised benefits including activating the river frontage and supporting the growth of the night‑time economy through increased expenditure outside of typical work hours. The site is uniquely positioned in a central point of the Parramatta CBD's interface with the Parramatta River, providing an opportunity for the new facility to act as the focal point for community interaction and culture in a landmark position. It benefits from excellent proximity to existing and planned public transport services and as well as enhanced pedestrian access via Parramatta's new Civic Link. This site is, therefore, strategically located to maximise regional and local benefits and achieve key strategies for the development of Sydney a metropolis of three cities, which would not be realised in an alternative location. Option 3 ‑ The Powerhouse Parramatta (the project) The proposed development is the outcome of a two‑stage international design competition, whereby both local and global architectural and landscape architecture firms critically analysed the design alternatives for the Powerhouse Parramatta and surrounding public domain. The Stage 1 competition attracted 74 expressions of interest involving 529 individual firms from 20 countries. Stage 2 was an intensive design period for the six shortlisted teams: ● AL_A (UK) and Architectus (Australia) ● Bernardes Architecture (Brazil) and Scale Architecture (Australia) ● BVN Architecture (Australia) and Carlo Ratti Associati (Italy) ● CHROFI (Australia) with Reko Rennie (Australia) ● Moreau Kusunoki (France) and Genton (Australia) ● Steven Holl Architects (United States) and Conrad Gargett (Australia) The competition was run in accordance with the procurement requirements of the NSW Government and was formally endorsed by the Australian Institute of Architects. The competition brief informing the shortlisted teams requested that design teams consider aspects of heritage and cultural significance within their submissions, including local heritage items. Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council's vision for a Parramatta Civic Link, and the design excellence requirements of the Parramatta LEP. The Stage 2 entries were critically analysed by a Jury comprised of members with experience in architecture, urban design, museum design, business and cultural institutions operation, and included government representatives as well as a representative from City of Parramatta Council. The Jury was unanimous in its decision on the final chosen concept and recognised that the Stage 2 concept design made clear that it was not possible to achieve the design ambitions and connectivity while retaining local heritage items. Whilst the retention of heritage was considered carefully during the jury process, it was ultimately confirmed that the winning design would reflect and engage with the multiple histories of the site including its Indigenous histories and that the proposed design represented the best possible outcome for the site and for the delivery of Powerhouse Parramatta.
With respect to the "Alternative location" element in that which is set out above, Mr Hale submitted that, although the first paragraph indicated that there had been some analysis or consideration of alternatives, none of that was set out in any detail or adequately discussed in the EIS.
He drew attention to the concluding elements of the second paragraph of this portion of the EIS as a summary of the reasoning for rejecting alternative sites. He observed that this had necessitated consideration of alternative sites, "but we simply do not know what they are, and we are not, or the reasonable reader of the EIS is not in any way, in a position to make an evaluation, nor indeed is the decision maker" (Transcript 24 May 2021, page 15, lines 8 to 10).
He submitted that there was a necessity for that information to be contained in the EIS; exposed to the public, providing an opportunity to express alternative views; and to enable the decision‑maker to be able to consider such views and determine whether the preferred location was, in fact, the best location for the proposed development.
Mr Hale then turned to the discussion of Option 3, the option which examines the project. He drew specific attention to the sentence in the second substantive paragraph that: The competition brief informing the shortlisted teams requested that design teams consider aspects of heritage and cultural significance within their submissions, including local heritage items.
He then pointed to an element in the final full paragraph on this topic, specifically the sentence which says: The jury was unanimous in its decision on the final chosen concept and recognised that the Stage 2 concept design made clear that it was not possible to achieve the design ambitions and con activity while retaining local heritage items.
His submission, with respect to this latter sentence was (Transcript 24 May 2021, page 15, lines 35 to 43): Where is it? And your Honour won't find it; what the alternative designs were, why it was not able to achieve those objectives, connectivity with retaining local heritage items. Whilst the retention of heritage was considered carefully during the jury process, it was ultimately confirmed that the winning design would reflect and engage with the multiple histories of the site including the Indigenous histories and that the proposed design represented the best possible outcome of the site and the delivery of Powerhouse Parramatta. What were the alternatives other than of course, the finalist entries that were not chosen?
As I understood his overall submissions, the complaint about this element of the EIS was emblematic of the overall tenor of the case advanced on behalf of the Residents Action Group, namely, that the EIS did not provide a compliant foundation base upon which the Minister could have decided to grant development consent. The next matter to be noted, from Mr Hale's references to elements of the EIS, is the description of "Willow Grove" at 2.1.4 of the EIS. I have earlier reproduced this element from the EIS as providing the appropriate description of this heritage item.
After noting that a consultancy (Advisian) had been retained to prepare the Statement of Heritage Impact (SHI) (this document being Appendix G to the EIS), Mr Hale then took me to "6.2.2 Post Settlement Heritage" in the EIS, an element which commences by dealing with heritage on the site. It is not necessary to reproduce the entirety of this section. It is sufficient to set out, from the transcript, the two sentences in this section addressed by Mr Hale and his commentary concerning each of them (Transcript 24 May 2021, page 16, lines 25 to 33): You will see that in the third line under Heritage on the Site, "The competition brief requested that design teams consider aspects of heritage within their submissions, including local heritage items". There's no direct reference to consideration of retaining "Willow Grove" or anything of that kind. It's in those broad terms. Then we go to the third‑last paragraph. "The submitted concept designs made it clear that it was not possible to deliver". Again, why that would be the case is not stated. Presumably it means because none of the architectural teams included a concept which contained Willow Grove, it follows that the retention of "Willow Grove" was not possible.
As Mr Hale observed, the EIS notes that the heritage assessment by Advisian confirmed that: ● The demolition of "Willow Grove" and St George's Terrace would have a significant physical and visual impact on the heritage significance of the heritage items, resulting in a total irreversible loss of the conservation values including significant fabric and the visual setting. ● The removal of vegetation on the site within the within the "Willow Grove" curtilage will also impact the cultural significance of this place and its garden setting.
The next element of the EIS to which he took me was Table 16, a table entitled "Environmental Risk Assessment". This table was the final element of matters in the main body of the EIS to which Mr Hale took me. He recorded, for the transcript, the two particular elements of the table to which he took me. The convenient way to understand the nature of the complaints made on behalf of the Residents Action Group concerning these elements is to set out the transcript extract which encompasses the relevant portions of the material and Mr Hale's comments concerning them (Transcript 24 May 2021, page 17, lines 19 to 47): Next is p 136, which is a table where you will see the Environment Table 16, Environmental Risk Assessment, post‑settlement heritage, the first dot‑point. Potential environmental impacts, demolition of heritage items. First dot‑point: "The redevelopment of the site will necessitate the demolition of "Willow Grove" and St George's Terrace, being local heritage items. Alternative options were considered as part of the competitive design process, and it was concluded these items could not be retained on the site". Where's that? Where's the information? The next item is 140, which deals with mitigation measures re heritage, concerning heritage. Your Honour will see under Heritage, again it's a Heritage Interpretation Plan. At 143 to 144 is the conclusions and justification. You will see at the very top of the page, "The EIS has been prepared to assess the impacts". It refers to the SEARs. Then there is a series of dot‑points, which is introduced by having regard to the various matters. "The carrying out of the project is justified for the following reasons". Then we have the fourth dot‑point. "The cultural impact of the demolition of "Willow Grove" will be mitigated through the implementation of Heritage Interpretation measures and, on balance, is outweighed by the significant positive cultural impacts associated with the delivery of a world‑leading cultural institution." Again, the balance that one would expect, that we contend a balance which fails to alert the reader of what the alternatives are. At 144, the final paragraph, "Given the planning merits described above, it is recommended that the application is approved".
In the "Conclusions and Justification" section of the EIS (Exhibit A‑1, folio 143), Mr Hale noted the following (emphasis added): Having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development, the carrying out of the project is justified for the following reasons: ● the proposed development is suitable for the site that is ideally located within the Parramatta CBD and has excellent access to existing and planned public transport connections, connections to other culture and arts and civic institutions within a wider precinct, and is at the focal point of a number of key urban connections including the future Civic Link; ● the proposed development is permissible with consent and meets the requirements of the relevant statutory planning controls, including being well within the maximum permitted height and floor space parameters and, therefore, the planned capacity for the site; ● the design of Powerhouse Parramatta is the result of a two‑stage international competitive design process in accordance with an Design Excellence Strategy approved by DPIE and endorsed by the NSW Government Architect and Council, and demonstrates design excellence having regard to the factors identified in Clause 7.10 of the Parramatta LEP; ● the cultural impact of the demolition of the "Willow Grove" and St George's Terrace local heritage items will be mitigated through the implementation of heritage interpretation measures, and on balance is outweighed by the significant positive cultural impacts associated with the delivery of a world‑leading cultural institution that will make its own unique and important contribution to the cultural heritage of Parramatta, particularly through a major focus on highlighting Aboriginal culture, art, science and technology; ● the proposal includes a full description of adequate and appropriate measures proposed, developed based on detailed technical assessment carried out in accordance with the Secretary's Environmental Assessment Requirements, in order to mitigate any adverse impacts of the development on the environment; ● the proposed development will provide extensive social and economic benefits including supporting significant jobs during the construction and operational phases, improving the level of visitation and tourism expenditure within the local and regional area, improving life‑long education outcomes for students and supporting long term social and economic wellbeing, and providing new cultural and entertainment opportunities during both day and night and diversifying the local night‑time economy; ● the development will utilise the unparalleled position of the Powerhouse to undertake programmatic interpretation of the heritage on the site and connect people to local histories, as well as more broadly addressing the multiple histories of the site pre and post‑contact, to minimise and mitigate the loss of heritage on the site; ● the project has been informed by pre‑lodgement community consultation and establishes a framework for ongoing consultation and engagement with the community through the detailed design, construction and operational phases of the development; and ● the proposal is consistent with the principles of ecological sustainable development as defined by Schedule 2(7)(4) of the Environmental Planning and Assessment Regulation 2000, and will support the delivery of an ecologically sustainable development. Given the planning merits described above, and the significant benefits associated with the proposed development, it is recommended that the application be approved.

The Statement of Heritage Impact

The first of the supporting documents to which Mr Hale took me was Appendix G to the EIS, the SHI, prepared by Advisian. This document was in Exhibit A‑2 at folios 753 to 856.
In the Summary of Findings in this report, three of the elements were specifically pointed to by Mr Hale. These were the first, third and fifth of those at folios 762 and 763. These were in the following terms: Summary of Findings Heritage items and archaeological sites ● The demolition of the heritage items "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)" located at the site would have a major physical and visual impact on heritage significance of those items. The demolition would result in the total irreversible loss of the conservation values that constitute heritage significance, including significant fabric and the visual setting. Statutory delisting of these heritage items from Schedule 5 of the LEP would be a separate process managed by the City of Parramatta Council. … ● It is considered that some of the existing trees at the "Willow Grove (and potential archaeological site)" contribute to heritage significance. No mature trees within the established landscape of the heritage item would be retained. … ● Comparative analysis concluded that the "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)" are the only examples of their type located in the core of the Parramatta CBD. The demolition of these heritage items would have a major impact on the representation of these respective architectural styles in the Phillip Street streetscape and Parramatta CBD townscape.
Mr Hale took me to the chronology of development of the site (Exhibit A‑2, folios 774 to 776), a chronology which sets out relevant dates concerning "Willow Grove", together with a brief explanation for them. He then took me to folio 779, which sets out a more detailed description of the history of "Willow Grove". At folio 780, the SHI then includes the photo of "Willow Grove", followed by the extract for the PLEP 2011's entry on the State Heritage Inventory. It is unnecessary, for present purposes, to reproduce this inventory entry.
Mr Hale then took me to the Assessment of Significance at folios 802 to 804 (commencing with the significance assessment criteria from the NSW Heritage Office's guideline). It is not necessary to repeat the details of this assessment process, it is sufficient to reproduce the Statement of Significance at 6.2.1.2. This document was based on the assessment prepared by Advisian and from the 2017 Conservation Management Plan for "Willow Grove". The Statement of Significance is in the following terms (Exhibit A‑2, folio 804): Statement of Significance Based on the above Assessment of Significance, the Statement of Significance for the "Willow Grove (and potential archaeological site)" from its CMP, which updates the LEP entry, is as follows: "'Willow Grove', Victorian Italianate villa located at 34 Phillip Street is of significance for the local area for historical, aesthetic, research, rarity and representativeness values. Built c.1870s, it is a good example of a Victorian Italianate two‑storey villa, readily identifiable as part of historic building stock and strongly contributing to the streetscape in spite of its large setback, partly through its notable fence, although the front fence has been relocated due to the widening of Phillip Street. 'Willow Grove' is rare example of one of the earliest notable Victorian style houses within the Parramatta region, most notably and within the Parramatta Central Business District (CBD). There is the possibility of uncovering archaeological information that relates to European occupation of the site prior to the construction of 'Willow Grove'. Documentary evidence suggests that a small wooden cottage once stood to the north east of the cottage within the courtyard and/or along the boundary. The established vegetation and notable mature Cupressus spp. provide a picturesque garden setting to the Villa and the garden planting is in good condition."
A diagram at folio 820, Mr Hale noted, recorded that the original built element of "Willow Grove" was of high heritage significance, with the gardens between the built form and Phillip Street being shaded of slightly less (but nonetheless high) significance elements. The "Willow Grove" site elements to the rear of the primary building (including more recently built structures) are noted as having moderate or little significance (with the elements closest to the rear of the site having this latter characterisation).
Folio 822, he noted, recorded that the proposal (at that time) contemplated demolition of "Willow Grove".
Mr Hale then took me to folio 831 where Advisian had set out material under the heading "9.3 Options Analysis". To understand what Mr Hale said were the defects of this analysis, it is appropriate, first, to set out the relevant portion of this element of the SHI (including portion of a statement by the Minister for the Arts made in Parliament on 25 February 2020) before setting out the relevant extract from the transcript of Mr Hale's submissions concerning this. First, the relevant portions of folios 831 and 832 were in the following terms (emphasis added): 9.3 Options Analysis It is considered that no alternatives schemes were considered during the design process which could have retained the "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)". For further detail, refer to the Design Excellence Report13 which addresses SEARs Issue No. 3. 9.3.1 Options Description Alternative locations Alternative locations for the proposal were considered prior to the NSW Government's acquisition of the site from the City of Parramatta Council. It is understood that the site was selected given the following: ● central location within the Parramatta CBD, part of the metropolitan centre comprising the core of Sydney's Central City. ● iconic location on the banks of the Parramatta River. ● ability to integrate with the future Parramatta Civic Link which is a green, pedestrianised public space and cultural route through the heart of the Parramatta CBD to the Parramatta River. ● physical and spatial characteristics capable of accommodating the functional requirements of the proposal. Alternative designs The Powerhouse Precinct at Parramatta International Design Competition was a two‑stage process which began with an open Expression of Interest. The competition's objective was to identify and select an outstanding design team and concept design for the Powerhouse Parramatta. All finalist design teams in the competition were asked to consider aspects of heritage and cultural significance within their submissions, including local heritage items. Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council's vision for a Parramatta Civic Link. The competition was run in accordance with the procurement requirements of the NSW Government and was formally endorsed by the Australian Institute of Architects. In addition, the competition was managed by independent competition specialists Malcolm Reading Consultants. The preferred option The proposal was selected as the preferred option as it would maximise social and cultural outcomes for the community and would be consistent with key NSW Government policies and strategies. The NSW Minister for the Arts noted the following in Parliament on 25 February 2020: "The Government understands its importance to the community and the international design competition for the new Powerhouse Parramatta focused on developing concept designs to get the best outcome for the people of New South Wales. All finalist design teams in the Powerhouse Parramatta international design competition were asked to consider aspects of heritage and cultural significance within their submissions, including the local heritage buildings … Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council's vision for a Civic Link. While the retention of heritage was considered carefully during the judging process, the jury was unanimous in its decision on the final chosen concept. The winning design will reflect and engage with the multiple histories of the site, including its Indigenous histories. These histories will be considered and interpreted through the next stage of the design process. The New South Wales Government is working closely with the City of Parramatta Council to ensure the new museum will be the anchor of a new and vibrant Parramatta arts and cultural precinct. The Government is proud of its decision to build an iconic, fit‑for‑purpose museum in western Sydney that will be recognised around the world for the excellent institution it will be." Using a high level of design excellence criteria, the Powerhouse Parramatta is expected to be a landmark development, responding to its context and setting. It is considered that the detailed design would ensure a practical resolution of heritage, architectural and landscape design matters for Parramatta. 9.4 Summary of Heritage Impact Assessment 9.4.1 Heritage items located on the site This section describes the impact of the proposal to heritage items located on the site. The impact of the proposal on the heritage significance of the "Willow Grove (and potential archaeological site)" and "St George's Terrace (and potential archaeological site)" is summarised below in accordance with the following considerations outlined in the NSW Heritage Office's Statements of Heritage Impact (2002) guidelines. The following aspects of the proposal respect or enhance the heritage significance of the item or conservation area for the following reasons: The proposal would require the demolition of the "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)". However, it is considered that significant fabric from demolished heritage items would be salvaged, archived, re‑used and/or interpreted at the site to contribute to the cultural significance of the place. Interpretation of the "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)" would recognise their heritage significance and acknowledge the changing quality of relationships between people and place within urban and cultural landscapes. The proposed forms of interpretation are described in Section 7.2. In addition, it is recommended that the detailed design ought to interpret the heritage significance of the site in accordance with the City of Parramatta draft Heritage Interpretation Guidelines 2017. The following aspects of the proposal could detrimentally impact on heritage significance. The reasons are explained as well as the measures to be taken to minimise impacts: Demolition of existing buildings and structures The demolition of the "Willow Grove (and potential archaeological site)" and the "St George's Terrace (and potential archaeological site)" would have a major physical and visual impact on the heritage significance of these heritage items (Figure 9‑1). The demolition would result in the total irreversible loss of the conservation values that constitute heritage significance, including significant fabric and the visual setting. Finally, the proposal would result in statutory delisting of these heritage items. Section 8 describes the potential community sense of loss and loss of social and cultural connections between people and place as a result of demolition of the heritage items. These connections would be explored through opportunities for interpretation. Considering the nature and scale of the impact of demolition, the design would contribute to the cultural significance of the place through an urban design and landscape approach. As a leader in the collection and interpretation of social history and the built environment, Powerhouse Parramatta would be uniquely placed to undertake programmatic interpretation of these heritage items and their social histories. Removal of trees and vegetation The landscape design indicates that existing trees and vegetation at the site would be removed to accommodate the built form of the proposal (Figure 9‑2). As part of the strategy for a 'welcome to country gateway', the landscape design proposes the use of indigenous species. In addition, the mature Monterey Cypress located in the front garden of the "Willow Grove (and potential archaeological site)", whilst not directly impacted by the built form of the proposal, would obstruct construction of the proposal as well as the Parramatta Civic Link axis through the site. The tree would be removed. Finally, the existing trees along the foreshore of the Parramatta River would be removed to accommodate levelling of the area for flood storage. It is considered that some of the existing trees at the "Willow Grove (and potential archaeological site)" contribute to heritage significance, as described in the CMP. As a result, the removal of existing trees and vegetation at the site would detrimentally impact on the cultural significance of the place with regard to its garden setting.
Mr Hale's submissions concerning the above material was in the following terms (Transcript 24 May 2021, page 20, lines 11 to 34): "It is considered…potential archaeological site." Query what is meant, "No design alternatives were considered which could have retained." It rather indicates that there were alternatives that were considered but were not ones which could have retained "Willow Grove". It's very unspecific. Then you see, "For further detail refer to the design excellence report," which is appendix D which I'll come to shortly. Options description, "In the alternative…given the following," again using the phrase, "It is understood, does the author know." Presumably had some instruction. Then alternative designs, "The Powerhouse precinct…teams were asked" ‑ elsewhere it's referred to "requested" I think, but ‑ "asked to consider aspects of heritage and cultural significance." Well, how did they take them into account? Was there consideration of alternatives or not? We just really know. Then the second paragraph, "The jury selected…place making opportunities," and then there's the reference to the "do nothing." Over the page at 832, the preferred option, "The proposal selected was the preferred option." Presumably that's the jury, and then the reference to what the Minister said in the third line , "All finalists design…and cultural significance." No one's extends to suggest being asked to consider "Willow Grove" specifically and there your Honour sees in the second paragraph the reference to Civic Link, and then, "Using a high…landscape design matters," and then the summary the heritage impact.
The final matter in the SHI to which Mr Hale took me was, at folio 836, a paragraph which was in the following terms: Comparative analysis "Willow Grove (and potential archaeological site)" A comparative analysis for the "Willow Grove (and potential archaeological site)" was undertaken in the CMP prepared for the heritage item. The analysis identified that the item is "rare as one of the last remaining grand villas that is retained within the central part of the Parramatta City Centre." The CMP also identified the following comparative examples located outside the Parramatta CBD in the surrounding suburbs of the Parramatta area: ● "Comfort Lodge" at 62 Prospect Street, Rosehill. ● "Camden" at 60 Prospect Street, Rosehill. ● "Norfolk House and potential archaeological site" at 465‑473 Church Street, North Parramatta. ● "Tara (also known as Ellengowan)" at 153 George Street, Parramatta. It is considered that the "Willow Grove (and potential archaeological site)" is the only Victorian Italianate residence located in the core of the Parramatta CBD, with another comparative example being a Victorian architectural style house (c.1897) located at 41 Hunter Street, Parramatta. Therefore, the demolition of the "Willow Grove (and potential archaeological site)" would have a major impact on the representation of this architectural style in the Phillip Street streetscape and Parramatta CBD townscape.
Mr Hale concluded his taking me through the elements of the SHI, commenting (Transcript 24 May 2021, page 20, lines 39 to 41): That's the relevant part of the heritage report which doesn't itself consider alternatives, but it refers to options, the option analysis.

The Design Excellence Report

The next document to which Mr Hale drew attention was the Design Excellence Report (Appendix D, Exhibit A‑2, folios 435 to 454). There were also a number of appendices to this document, including the Design Competition Brief. It is unnecessary to address them in any detail at this time. It is sufficient to note that, for present purposes, both Mr Hale and Mr Lancaster took me to an air photo, at folio 543, showing the project's precinct in its Parramatta context. This air photo was earlier reproduced at [31].
Mr Hale noted that the overview of the proposed development recorded that the demolition of "Willow Grove", amongst other structures, formed part of the design and that the assessment requirements mandated consideration of Section 3 of the SEARs (folio 443).
He then noted the competition jury structure and the two stages leading to the selection of Moreau Kusunoki (France) and Genton (Australia) from the six shortlisted design teams. Mr Hale pointed to the fact that, under the heading "Design Concept for Stage 2", there is no reference at this point to a design which might permit "Willow Grove" to be retained (Transcript 24 May 2021, page 21, lines 24 and 25).
With respect to the jury's conclusion report, at folio 446, he pointed to the fact that there was no reference to heritage in those conclusions and that "we can see from the other passages I've taken your Honour to that each of those who submitted, each suggested a clean site, as it were" (Transcript 24 May 2021, page 21, lines 28 to 30).
Finally, with respect to this Appendix, Mr Hale drew my attention to nine "Design Alternatives", particularly to the third and fourth paragraphs at folio 453, these paragraphs being in the following terms: DESIGN ALTERNATIVES … The competition brief requested design teams consider aspects of heritage and cultural significance within their submissions, including local items. Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council's vision for a Parramatta Civic Link. The submitted concept designs made clear that it is not possible to deliver on the design ambitions of the brief and deliver connectivity while retaining local heritage items. While the retention of heritage was considered carefully during the judging process, the Jury was unanimous in its decision on the final chosen concept. …
Mr Hale's general concluding submission concerning the Design Excellence Report was (Transcript 24 May 2021, page 21, lines 43 to 46): So to the extent, as I submitted in opening, to the extent that there was consideration of heritage, it was only to the extent that it was that those who submitted were requested to consider it. We do not know what if any consideration there was as to designs which might retain the "Willow Grove".

Notice of Decision

The next documents to which Mr Hale took me were the Notice of Decision and the Departmental Assessment Report (in Exhibit C).
He first pointed to folio 2 of the Notice of Decision, a page headed "Attachment 1 Consideration of Community Views". The second paragraph at the head of the page describes the nature of the material dealt with in the table on that page and the following two folios. This introductory paragraph is as follows: The key issues raised by the community (including in submissions) and considered in the Department's Assessment Report and by the decision maker include design excellence, built form, heritage, flooding, public domain, landscaping and tree removal and traffic and parking. Other issues are addressed in detail in the Department's Assessment Report.
The first of the issues dealt with in the subsequent table is entitled "Heritage impacts and site selection". The relevant elements of the consideration of this topic (as relating to "Willow Grove") are contained in the first three points under the heading "Assessment". These three points are in the following terms: Assessment ● The site contains two locally listed heritage items, "Willow Grove" and St George's Terrace. The application proposes to dismantle and relocate "Willow Grove" and reconstruct it on an alternative site and retain (alter and partly demolish) St George's Terrace. ● The Applicant prepared an Analysis of Alternatives for the relocation of Willow Grove, which concluded: ‑ retention of "Willow Grove" in its current location would severely compromise the development of the site and delivery of public benefits ‑ the site is the only appropriate site for the development ‑ the proposal has been the subject of an international design competition, achieves design excellence and represents the best outcome. ● The Department considers, on‑balance, the dismantling and relocation of "Willow Grove" is acceptable given the significance of the site and public benefits the proposal will deliver for Parramatta and Western Sydney and as: ‑ heritage fabric / significance of will be preserved subject to the preparation of a detailed methodology for works and consultation with stakeholders and the community ‑ careful selection of a relocation site w ill be carried out in consultation with stakeholders and the community to relocate "Willow Grove" and establish an appropriate setting ‑ it will allow for "Willow Grove" to be adaptively re‑used and increase public accessibility to the building.
In an exchange with me concerning the fact that, as can be seen above, what was contained in this analysis no longer advocated simple demolition of "Willow Grove" but its deconstruction and re‑erection at an alternative site, I enquired of Mr Hale as to how this change had evolved. For present purposes, his response was (Transcript 24 May 2021, page 25, lines 22 to 36): Now, what ultimately did happen we'll say in SM2 is there were a number of suggested changes and more information which did receive certain responses. It wasn't part of the EIS, which is why the respondents refer to supplementary documents, but at the end of the day, for relevant purposes, being our argument that the alternatives were not considered in the EIS as required, namely the alternative site and alternative design. What subsequently occurred did not in any way affect what we propound in our submissions. The fact that "Willow Grove" is proposed to be demolished and therefore relocated somewhere else doesn't affect our argument that the alternative sites and alternative design was never the subject of proper consideration.
The document to which Mr Hale referred at the commencement of the above extract (SM2) had, relevantly, been tendered as Exhibit B‑1.
Mr Hale's criticism of the above reproduced extract was that (Transcript 24 May 2021, page 26, lines 6 to 10): What this does demonstrate, even up to this point, taking account of the changes, the issue is it is the subject site is the only appropriate site ‑ your Honour hears what we've said ‑ and there is no proposal which has been considered which would enable the retention.

Departmental Assessment Report

The next element in Exhibit C was the Departmental Assessment Report. Mr Hale made reference to what was at folio 13 which set out the public exhibition period and detail of the submissions received in response to it. This was in the following terms: Community engagement The Department of Planning, Industry and Environment (the Department) publicly exhibited the Environmental Impact Statement (EIS) for an extended period between 10 June 2020 and 21 July 2020 (42 days). The 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. On 8 October 2020, the Applicant submitted its Response to Submissions (RtS) which included confirmation that the existing Powerhouse museum would be retained at Ultimo. In addition, the proposal was amended to retain St George's Terrace and relocate "Willow Grove" within the Parramatta area, instead of demolishing them. It also provided additional information and included other amendments to the proposal including reducing the floor area and the number of serviced apartments, increasing open space and building setbacks. Amendments were also made to the design of the building, undercroft and public domain. The RtS was notified to Council and relevant agencies and made publicly available on the Department's website. The Department received 383 submissions on the RtS including five from public authorities, one from Council and 377 objections from the public. The Applicant also submitted additional information and responses to the issues raised in submission in November and December 2020 and January 2021. Collectively these responses form the Applicant's Supplementary RtS (SRtS). Council provided its conditional support to the proposal. However, it raised concerns about heritage impacts, flooding, public domain, the design and use of the undercroft, the design of the Civic Link (a landscaped pedestrian and cycle link connecting Parramatta River to Parramatta Railway Station, identified in Council's Civic Link Framework Plan) and provision of pick‑up/drop‑off facilities on George Khattar Lane. The key concerns raised in the public submission relate to heritage impacts and relocation of Willow Grove, flooding, design and visual impacts, traffic and car parking.
In the Executive Summary of this document, at folio 14, the Department notes that it considered the proposal was acceptable and listed a range of reasons for this. The element addressing "Willow Grove", to which Mr Hale took me, is in the following terms: ● while the Department appreciates the concerns raised about the impact of the proposal on the locally heritage listed Willow Grove, the Department accepts that Willow Grove cannot be retained in its current location without significantly compromising the delivery of the museum, the competition winning design and the provision of public open space and public domain upgrades. The Department also considers the revised proposal would appropriately mitigate heritage impacts on "Willow Grove" as it: ‑ would preserve the heritage fabric and significance of the building and fence, subject to a detailed methodology for deconstruction and relocation ‑ would reconstruct the building on a new site within the Parramatta LGA, to be selected in consultation with key stakeholders and the community ‑ would allow the building to be adaptively re‑used with increased public access
This Executive Summary includes, in its conclusion, the following comment concerning "Willow Grove" to which Mr Hale took me (folio 15): While the Department appreciates the concerns raised about the impact of the proposal on Willow Grove, the Department's assessment concludes the proposal is acceptable as the retention of "Willow Grove" would significantly compromise fundamental aspects of the proposal, potentially reducing its size, function and associated social and cultural benefits for Parramatta and Western Sydney. Further, the Department supports "Willow Grove" being relocated rather than demolished and is satisfied the potential heritage impacts of its relocation can be appropriately mitigated and managed to an acceptable level. The issues raised by public authorities, Council and the community have been addressed in the proposal, the Department's assessment report or by recommended conditions of consent. For these reasons, the Department concludes that the proposal is in the public interest and is approvable, subject to conditions.
In the body of the Departmental Assessment Report, at folio 37, a summary was given of not only the numbers of submissions to the EIS, but also those made to the RtS Report and the further SRtS Report. The RtS Report is dated 8 October 2020, whilst the SRtS Report responses are recorded as being published between 2 November 2000, 20 and 29 January 2021.
Mr Hale noted that the document recorded, at folio 40, that Parramatta City Council supported the proposal but suggested that there was a necessity to "undertake further design development to attempt to retain "Willow Grove" and "St George's Terrace" on the site or address the social and cultural impact of their removal".
Mr Hale observed that, in the table at folio 44, of the list of issues raised in response to the EIS and to the RtS Report, 85.6% of submissions on the EIS raised adverse heritage impact/impact on "Willow Grove", whilst 91.5% of the submissions in response to the RtS Report also addressed this topic. This, Mr Hale proposed (Transcript 24 May 2021, page 26, lines 44 to 49): So far as the EIS is concerned 85.6% raise that as an issue and in relation to the RTS it's 91.5%, which comes back to my point that it always was the principle issue but obviously enough that was no real objection from those within the Parramatta City Council area to Powerhouse being moved to Parramatta. It was always a question of the location and the design to the extent to which it's on the proposed site.
Mr Hale noted that the proponent's response to these submissions proposed amendments to the proposal with the relevant element being noted (at folio 45) as being dismantle and relocate "Willow Grove" rather than demolish the building.
In "6 Assessment of the Departmental Assessment Report", at "6.4 Heritage", Mr Hale took me to a number of elements. The first was at folio 54: Public submissions raised concern about the heritage impacts of the proposal, particularly its impact on Willow Grove and its setting. Concern was also raised ab out the proposed relocation of Willow Grove including its disassembly, reconstruction and the proposed site selection methodology.
Mr Hale noted that the broad thrust of the objections concerning "Willow Grove" were set out in the second paragraph, at folio 56, this being in the following terms: Objections were raised by the National Trust, other special interest groups and over 85% of the EIS public submissions about heritage impacts of the proposal. 93.5% of RtS submissions objected to the relocation of Willow Grove, key concerns include: ● the application does not include any options analysis ● the development should be amended to retain and incorporate "Willow Grove" ● adverse heritage impact due to relocation to a new site and dislocation from its landscape and river‑side setting ● loss of heritage significance and fabric due to dismantling and reconstructing the building. Heritage NSW did not comment on the relocation of Willow Grove, noting it is a local heritage item managed under the PLEP controls.
The proponent's response (folio 56) to these concerns was in the following terms: In response to the concerns raised, the Applicant stated that the design of the proposal has been informed by the opportunities and constraints of the site, the physical requirements of the development and a best‑practice design excellence process. The culmination of these factors has meant there is no potential to retain "Willow Grove" on the site and meet the objectives of the development to create a world class museum of an appropriate size for its purpose, as well as open space, public domain and the northern termination of Civic Link. The Applicant also provided additional information on the alternative options considered to justify the relocation of Willow Grove.
Mr Hale took me to two elements of the "Options Analysis", being those addressing the possibility of an alternative site (Option 2) and retention of "Willow Grove" and "St George's Terrace" within the development (Option 3). These elements (folios 56 and 57) are in the following terms: Option 2 ‑ Develop an Alternative Site The Applicant considers there is not a suitable alternative site for the development as: ● the site is uniquely positioned at a central point of the CBD's interface with the Parramatta River, ensuring the development acts as a focal point for community interaction and culture in a landmark position ● the site would allow the proposal to positively contribute to the growth of the cultural precinct in Parramatta, complementing the existing civic uses already cluster[ed] [sic] by the river, including Western Sydney Stadium, Riverside and Roxy Theatres ● the site has excellent access to existing and planned public transport, services and enhanced pedestrian access via the Civic Link through Parramatta ● the Government announced its decision to purchase the site for the museum in April 2016 following a detailed site selection assessment. The assessment was based on a range of criteria including size, existing conditions, location and opportunities to deliver expanded benefits in conjunction with other civic projects. Option 3 ‑ Retention of "Willow Grove" and St George's Terrace within the Development While the proposal has been amended to include retention of St George's Terrace, the Applicant considers the retention of "Willow Grove" within the development is not possible without significant adverse impacts on the vital positive aspects of the proposal, specifically: ● the achievement of sufficiently sized floorplate to achieve the functional objectives of the Powerhouse ● the delivery of a line ar, uninterrupted and sufficiently sized Civic Link connection through the site to connect the CBD with the river foreshore ● the provision of an entry plaza on Phillip Street that supports arrivals and departures from the CBD ● the development of buildings that comply with the relevant flood planning requirements and provide ground floors that can withstand riverine flood events and overland flow flood events ● the delivery of significant areas of open space and public domain in accordance with Council's vision for a new riverside park at the termination of the Civic Link. In addition, the cumulation of the following site conditions and constraints has influenced the footprints and scale of the development on the site and the retention of "Willow Grove" is not compatible in this context: ● a carriageway easement exists over the site's western boundary shared with 330 Church Street ● due to the RE1 Public Recreation land‑use zoning and flooding restrictions, it is not possible to relocate the proposed buildings further north, closer to the river ● noting the significant fall in land across the site, existing levels have been used wherever possible ● the retention and incorporation of "St George's Terrace" into the development.
Option 4 addressed the proposal and concluded that, relevantly, Options 2 and 3 were inappropriate.
Folios 58 and 59 addressed the Department's assessment of matters, relevantly, concerning "Willow Grove". This element of the document was in the following terms (Figure 25, noted in the first bullet‑point of this section, has earlier been reproduced at [29]): Department's Assessment The Department has carefully considered the advice provided by Council, community opposition to both the demolition and relocation of "Willow Grove" and the Applicant's response. After careful consideration of the site and the proposal, the Department is satisfied that the Applicant has demonstrated that "Willow Grove" cannot be retained on site as: ● the retention of "Willow Grove" in its current location (Figure 25) would significantly compromise the proposed development of the site and the delivery of public benefits, noting it: ‑ would require a significant reduction in size and amendments to the layout of the Eastern and Western Buildings, which would compromise the design integrity of the buildings and usability/functionality of exhibition spaces intended to draw large crowds and host exhibitions of large scale ‑ would likely require generous setback around "Willow Grove" to establish an appropriate setting, which would further impact on the development of proposed buildings and spaces ‑ is not possible to relocate the Western or Eastern Buildings in alternative locations on the site without compromising the provisions of open spaces, flood mitigation measures, the retention of St George's Terrace or existing access easements ‑ would prevent the realisation of the Civic Link connecting the CBD to Parramatta River foreshore ● the site is an appropriate site for the proposed development as it provides for a landmark cultural facility at the termination of Civic Link, within an emerging cultural precinct along Parramatta River with excellent access to existing and future public transport links. The Department also notes Council's comments that there is no other appropriate alternative location for the development within Parramatta ● the proposed development was the subject of an international design competition and the final design was selected by an independent Design Competition Jury and endorsed by the DIP. The Department has concluded the proposal achieves design excellence (Section 6.2) and the proposal results in significant public benefits including the creation of a cultural facility, 15,000 m2 of new public domain and open space including the northern portion of Civic Link within the site and retention and re‑use of St George's Terrace. The Department acknowledges the demolition of Willow Grove, as originally proposed, would have adverse and irreversible heritage impacts. However, the Department considers the relocation of "Willow Grove" and the front fence is preferable to demolition and on balance is acceptable given the significance of the site and public benefits the proposal would deliver for Parramatta and Western Sydney. The Department therefore considers that the Applicant's proposal to dismantle and relocate "Willow Grove" to an alternate site is appropriate as: ● it will preserve the heritage fabric and significance of the building, subject to a detailed methodology for deconstruction and relocation, in consultation with key stakeholders and the community ● the careful selection of a new site, in consultation with Council and key stakeholders, that either has similar characteristics to the current site, or is complementary, provides an opportunity to preserve the character of the building and establish an appropriate new setting ● it will allow for "Willow Grove" to be adaptively re‑used and increase public accessibility to the building, which is a desirable outcome in the consideration of heritage preservation ● it will be subject to a CMP to maintain and preserve the building ● the Applicant has committed to prepare and implement a Heritage Interpretation Strategy (HIS) for the site, which would include consideration of Willow Grove, its archaeology and the history of the site overall (Section 6.8). The Department accepts that the proposed relocation of "Willow Grove" is necessary in view of the above and in the context of the significant economic, social and cultural benefits the proposal would provide for the community, Parramatta and Western Sydney. The Department acknowledges the relocation of "Willow Grove" would separate the heritage item from its original setting and that the physical location of "Willow Grove" forms part of its history. Notwithstanding this, the Department considers the relocation of "Willow Grove" from its original setting is, on‑balance, acceptable as: ● the only alternative to relocating "Willow Grove" is its complete demolition. In this context, the heritage impact of separating it from its setting is outweighed by ensuring its survival on an alternative site within the Parramatta LGA ● the relocation of "Willow Grove" and the front fence presents an opportunity to provide for a new, sympathetic setting, noting the existing setting of "Willow Grove" has been significantly and negatively impacted in modern times, by: ‑ the expansive Riverbank Car Park, which has severed its connection to the river ‑ the erection of tall buildings in close proximity to the item ‑ use of surrounding land for surface car parking The Department considers, subject to conditions requiring the implementation of the Applicant's proposed mitigation measures, "Willow Grove" and the front fence can be dismantled and reassembled on a new site without having a significant impact on its heritage significance. To further safeguard the heritage item, the Department recommends the following additional conditions: ● the preparation of a Relocation Framework and Methodology Plan (RFMP), in consultation with Council, NSW Heritage, the local community and other key stakeholders, including: ‑ a detailed site selection assessment to establish the new setting for Willow Grove ‑ the methodology for the dismantling and relocation of "Willow Grove" and its front fence to Phillip Street ‑ consideration of the heritage impacts ‑ relocation program and timeframe for reconstruction ‑ future use of the building ● prior to the commencement of any dismantling and relocation works the Applicant shall undertake photographic archival recording of the building, fence and its context ● all works must occur under the supervision of heritage specialists in accordance with the approved RFMP ● preparation and implementation of a HIS as discussed at Section 6.8. In conclusion, the Department appreciates the views expressed in public submissions about the relocation of "Willow Grove" and has considered the likely heritage impacts associated with the proposal. The Department acknowledges that the relocation of "Willow Grove" from its current setting would result in heritage impacts. However, the Department considers preserving "Willow Grove" is more important that protecting its original setting as it has been compromised by surrounding development. Further, the Department accepts that if "Willow Grove" was to be retained on the site it would compromise the proposal and its intended function. The Department is also satisfied that a robust RFMP can be prepared to avoid and minimise impacts to the building during relocation. The Department accepts that the proposed relocation of "Willow Grove" is necessary in view of the above and in the context of the significant public benefit the proposal would provide for the community. The Department's assessment therefore concludes the relocation is on‑balance acceptable subject to conditions.

The RtS Report

Mr Hale next took me to Exhibit B‑1, the folder containing the RtS Report.
I here interpose that folio 1 of this exhibit was a letter of 31 July 2020 to the proponent which said, inter alia: The Department requests that you provide your response to submissions after considering the Department's forthcoming letter. You are requested to provide a response within two months.
I raised with Mr Hale the fact that I did not appear to have the further letter to which reference was made in the material which had been tendered. Mr Beasley subsequently tendered this letter, one addressed to the proponent from the Department's Director Key Sites Assessments and dated 19 August 2020. It became Exhibit 21 (the first exhibit for the Minister). In a schedule attached to the letter, the first item under the heading "Heritage and Archaeology" is relevant in my overall consideration of the issues. This was in the following terms: Schedule 1 ‑ Department's Key Issues Heritage and Archaeology 1. Further consideration should be given to how the proposal could address the objections raised in public submissions about the proposed demolition of "Willow Grove" and St George's Terrace. This should include: a) further justification for the removal of the heritage items b) a comprehensive analysis of alternative options (in addition to the design competition entries) which would allow the objectives of the Powerhouse Parramatta project to be realised while retaining heritage (in part or in full) and the benefits/disadvantages of each option c) opportunities for heritage interpretation.
Mr Hale next took me to Appendix F to the RtS Report. Appendix F was the Addendum Statement of Heritage Impact. This document was also prepared by Advisian. The first element of this document to which Mr Hale took me was at folio 282 under the heading "2.3 Options for potential relocation". Mr Hale observed, before taking me to the detail of the document, that (Transcript 24 May 2021, page 27, lines 41 to 43): Options for potential relocation, and 283 ‑ perhaps the point I should be making is that the reports, these additional reports, don't address the key questions which we raise about alternative sites, alternative design.
He pointed out that, in "2.6 Other considerations" and "2.7 Conclusion", as I understood him, did not address, in any fashion, justification for demolition of "Willow Grove".

Public submissions

Mr Hale had tendered a folder containing a limited number of the objections which had been lodged during the public consultation period for the EIS (these were contained in Exhibit D). These documents comprised:

a submission from Ms Julie Owens MP, Federal Member for Parramatta;
a submission from the National Trust (New South Wales);
a submission from the National Trust, Parramatta Regional Branch; and
a submission from the Powerhouse Museum Alliance (the Alliance). The first element of this submission was one which addressed flooding risks (this submission was supported by a report from Molino Stewart Pty Ltd, environment and natural hazards consultants, and was accompanied by a commentary on this issue, on behalf of the Alliance. The second element of this submission was one which specifically addressed heritage impacts and issues including the failure to consider alternative locations for Powerhouse Parramatta.

Mr Hale took me to the relevant points of these submissions where concerns were raised by each of these objections that there had been inadequate consideration of the heritage values of "Willow Grove" and, in this context, the lack of options for alternative sites for the project which would not involve demolition of "Willow Grove". The various objections criticised the EIS process and the document itself.
It is not necessary to set out any of the elements from the submissions which were cited by Mr Hale. It is sufficient to note that they were submissions which cogently set out the concerns held by the objector, or the objecting organisation, to the matters noted immediately above.
Having set out the factual bases in support of the Residents Action Group's case, Mr Hale then turned to address what he submitted were the relevant legal principles engaged for consideration of; drawing conclusions about the compliance by; and the invalidity causing deficiencies revealed in, the Minister's granting of development consent in March 2021 on the basis of the documentation presented to him.

Mr Hale's submissions on the legal framework for consideration of the EIS

The basis for the challenge on behalf of the Residents Action Group was succinctly summarised in paragraphs 51 to 53 of the written submissions on its behalf. These paragraphs were in the following terms: 51. The DA was required "to be accompanied by an Environmental Impact Statement prepared by or on behalf of the Applicant in the form prescribed by the regulations". 52. If the development application was not accompanied by an EIS which complied, or substantially complied, with the regulation, no development application within the meaning of the Act has been made. The application is ineffective and incomplete. It cannot provide a foundation for a lawful development consent. The consent authority has no power to determine the development application. Any development application granted is void and of no effect. 53. The statutory purpose of an EIS is to bring matters to the attention of the public in order that the consequences of the proposed development can be properly understood by the public. It is to ensure that the consent authority has the benefit of the views of objectors. It involves notions akin to natural justice or procedural fairness.
Mr Hale introduced the discussion of these matters by referring to the decision of Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (Schaffer), summarising the six propositions developed by her Honour from earlier authority. These six propositions are in the following terms: 1. An environmental impact statement must be sufficiently specific to direct a intelligent and informed mind to the possible environmental consequences of the proposed development (per Cripps J in Prineas (at 417)). 2. The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council (at 278)). 3. The environmental impact statement is not required to be perfect. It need not cover every topic or explore every avenue (per Cripps J in Prineas (at 417) and per Hutley JA on appeal (at 163)). 4. The environmental impact statement must not be superficial, subjective or non-informative (per Cripps J in Prineas (at 417)). 5. It should be comprehensive in its treatment of subject matter and objective in its approach (per Cripps J in Prineas (at 417)). 6. Changes to the proposed development may be made between the exhibition of the environmental impact statement and the decision of the decision-maker but not so as to result in a completely different proposal (per Stein J in Golden (at 108)).
The written submissions for the Residents Action Group then said, at paragraph 55: 55 The practical application of these principles can be seen in Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 (Jarasius).
Mr Hale submitted that the element of the Court of Appeal's decision in Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160 (Prineas Court of Appeal), which had been relied upon by the Respondents, needed to be viewed in light of what he submitted was changed legislative circumstances since that decision (Transcript 24 May 2021, page 33, line 48 to page 34, line 1).
Essentially, as I understood Mr Hale's written and, particularly, oral submissions, the complaint concerning the process for this EIS was that insufficient and/or inadequate information was provided by an EIS to enable members of the community to be informed appropriately, in the fashion required for the EIS of all relevant matters. In this context, as earlier outlined, Mr Hale had submitted that these defects related to why the site had been chosen for the project without examining the possibility of alternative sites and, in the context of selecting the site, why alternative designs which did not require the demolition of "Willow Grove" had not been considered adequately (or at all). With respect to this latter position, it was Mr Hale's submission that such consideration, and an adequate explanation for the outcomes of such consideration, when undertaken was required to be set out in the EIS documentation. Mr Hale next took me to the decision of Hemmings J in Jarasius at, first, page 98 where his Honour said, with respect to the decision of Cripps J in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 403 (Prineas LEC) that: … a requirement of the Director to the determining authority to address matters which he considered ought to be considered cannot be ignored by the determining authority and they must be addressed in the environmental impact statement. It is not open to the determining authority to decline to address such requirements on its perception of their utility and reasonableness.
Mr Hale then took me to page 100 of his Honour's decision, where it was noted that there were a number of areas in which the EIS in those proceedings was established, on the evidence, to be inadequate.
This illustrated, Mr Hale said, what he submitted was the practical approach taken by Hemmings J in those proceedings (Transcript 24 May 2021, page 34, line 43) to reaching an appropriate degree of understanding as to the deficiencies of the EIS that was in contest in those proceedings.
It was my understanding of Mr Hale's submissions that taking such an approach to the matters here in contest would lead to a similar conclusion - namely, that there were significant, relevant information deficiencies in the material that had been provided in the EIS for the Powerhouse Parramatta project.
Mr Hale next took me back to the decision in Prineas Court of Appeal, commencing with a short passage from Hutley JA at page 163 where his Honour said: It would not be too much to say that it is almost impossible to conceive and EIS which literally complies with everything which the regulations require.
He then took me to a further sentence, shortly after the above quotation, where his Honour observed that the EIS there being challenged represented a genuine attempt to comply with the rigorous demands of the regulations.
Mr Hale then turned to the comments by his Honour, at the foot of page 164 and the top of page 165, concerning the requirement of a proponent to address the obligations under the then applicable regulatory requirement. This was said by his Honour, on page 165, to be in the following terms: The obligation to state feasible alternatives is, at highest, an obligation to discuss what the proponent believes may be considered feasible alternatives.
Mr Hale submitted, with respect to this approach, that subsequent decisions had, as I understood him, refined and altered the way that this should be considered. In this regard, he said (Transcript 24 May 2021, page 35, lines 24 to 26): That, at that particular time, was to be understood where the issue of jurisdictional fact had not been considered and applied in the way that it presently is.
Mr Hale then took me to the decision of the Court of Appeal in Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343 (Davis), where Preston CJ (Beasley P and Ward JA agreeing) wrote, at [36]: The statutory requirements for an EIS or SIS to accompany a development application have been held to be jurisdictional facts; they are essential preconditions that must be satisfied in order to enliven the power of the consent authority to determine a development application for designated development or development that is on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, as the case may be: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55.
The point, Mr Hale submitted, was that the requirement for a valid EIS to accompany a development application (as was here the position) was a jurisdictional fact (Transcript 24 May 2021, page 35, lines 37 and 38).
At this point, it is appropriate to note that it is not in contest that the principles applying to addressing requirements for the preparation of an EIS are, relevantly, the same as those required for the preparation of a Species Impact Statement.
In this context, Mr Hale next took me to the decision of Spigelman CJ (Mason P and Meagher JA agreeing) in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 (Timbarra) as providing the foundation for the observations made by Preston CJ cited above. At [94], Spigelman CJ described the role of a Species Impact Statement as playing such a significant role in the legislative scheme that it is appropriate to describe it as an essential condition. Mr Hale relied on the reasoning by the Chief Justice, commencing at [88], as leading to the conclusion, also in [94], that the necessity to determine whether or not there was a need for a Species Impact Statement comprised a jurisdictional fact which the Court below had needed to determine. Summarising what was to be drawn from the propositions in the various authorities discussed above, Mr Hale put that, in light of the authorities to which he had referred, it was necessary for me to determine in these proceedings whether or not the EIS substantially complied with the requirements imposed on those preparing the document by the requirements in Sch 2 of the Regulation and the SEARs (Transcript 24 May 2021, page 36, lines 8 to 10). As I understood him, it was the Residents Action Group's position that I could not be so satisfied.
He then turned to matters of discretion - matters deferred for later consideration if required.

Introduction

As with Mr Hale, Mr Lancaster had provided written submissions. Mr Lancaster's written submissions outlined the case in reply advanced by the proponent. Mr Lancaster's oral submissions also expanded on the written material which had been provided.
As with the case advanced before the Residents Action Group, I propose to address that advanced by the proponent by: 1. Summarising the approach outlined by Mr Lancaster in his oral submissions (including the statutory construction of cl 7(1)(c) advanced in response to that proposed by Mr Hale); and 2. Setting out the material to which Mr Lancaster took me from the documentary evidence (providing, as appropriate, an explanation of what Mr Lancaster proposed I should derive from it); and 3. Addressing Mr Hale's written and oral submissions concerning how the legal consequences proposed the Residents Action Group were not properly founded in the material to which Mr Lancaster took me and were not founded by reference to the authorities which I was required to consider.

Mr Lancaster's oral submissions

Mr Lancaster noted that the two complaints on behalf of the Residents Action Group were that alternative sites for the proposal had not been considered and that alternative designs that might retain "Willow Grove" had also not being considered. His summary of the position advanced by the proponent was encapsulated when he submitted (Transcript 24 May 2021, page 37, lines 31 to 37): As I said, our case is, on a fair reading of the EIS materials, both of those topics are adequately addressed, and there is no doubt whatsoever that the function of the EIS was comprehensively and accurately performed in the case' namely to inform the public so that they might make submissions about it, and to inform the decision maker in due course, that is the Minister, of the relevant environmental effects and potential environmental effects that are involved in the proposal.
The first document to which Mr Lancaster took me was the approved plans of the project (Exhibit C, folio 185). The first plan to which he took me was entitled "Site Demolition Plan". This plan showed the location of "Willow Grove" in its context of the present buildings on the site. Relevantly, he next took me to the "Ground Level Plan", one which showed the elements of the design creating undercroft areas which would accommodate potential flooding of the Parramatta River. He pointed to the fact that there was no connection between the two major buildings at ground level. He noted that (Transcript 24 May 2021, page 38, lines 23 to 35): Yes, and I'll take your Honour in a moment to something that shows that, where that is. But for present purposes, looking at the ground level plan, if your Honour could flick back to the site demolition plan your Honour will see that the east‑west building, in its location is directly over the location of the "Willow Grove" building. As some of the passages in the EIS that I'll come to take your Honour to show, there were a number of constraints and opportunities that were regarded as vital in the design brief and in the selection of the winning design as to, on the one hand, set back from the riverfront, and on the other hand location set back from Phillip Street, the opportunity for there to be a pedestrian through passage and public plaza for those various uses, and I'll come to the detail of that in due course.
He then took me to the "Level 2 Plan", one which identified, at that level, the connection between the two buildings, with major presentation spaces located in each building at that level.
He next submitted that the EIS was not merely the June 2020 document and its annexures, but also included the RtS Report and the additional materials and information provided by the proponent to the Department for assessment by the Minister (Transcript 24 May 2021, page 39, lines 4 to 8). In this regard, he cited the decision of Lloyd J in Botany Bay City Council v Minister for Planning (2006) 148 LGERA 251; [2006] NSWLEC 194 (Botany Bay), at [38]. He submitted that the process, particularly for State Significant Development, operates in a fashion that enables responses to public submissions being made by modification to the development as originally proposed.
At this point, Mr Hale agreed when I proposed to him that the Residents Action Group's case was not that the subsequent material could not be taken into account, but was more fundamental than that ‑ being that the EIS document which went on display was so inadequate that the process could not be regarded as having started validly.
In this context, Mr Lancaster noted that the issue of alternative sites, and an alternative design which retained "Willow Grove", were the "subject of many hundreds of submissions, perhaps more than a thousand submissions and objections from the public and, on any view, the EIS must be taken to have fulfilled its function of alerting both the general public, any other readers of the application, the Department for its assessment purposes and the Minister in his determination to the environmental impact issues raised by the proposal" (Transcript 24 May 2021, page 42, lines 2 to 8).
Because of the extent of complaint on these matters, Mr Lancaster submitted that, even if the EIS itself was defective in some fashion, there had been a close assessment of "Willow Grove" and the proposed development's impact on it, resulting in approval being granted after those matters had been considered.
Mr Lancaster then turned to the question of interpretation of cl 7 of Sch 2 of the Regulation. When doing so he referred to the written submissions for the proponent at paragraphs 24 to 29. It is appropriate, at this point, to reproduce those paragraphs: 24 All the words of a statute are to be given work or some operation: see, for example, project Blue Sky at [71]. The same is true of delegated legislation like the Regulation: Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389 at 398, [1996] HCA 36. Nevertheless, the applicant here, for example at AOS [24], ignores entirely several key aspects of cl 7(1)(c). 25 The applicant ignores that cl 7(1)(c) only requires that an EIS contain an analysis of "any feasible alternatives to the carrying out of the development", not some consideration of "alternatives" at large. 26 Likewise, the applicant ignores that the concept of "feasibility" in the clause is to have "regard to its objectives", that is, the objectives of the development. 27 Further, the applicant ignores that the "alternatives" required to be considered are alternatives to the "carrying out of the development", limiting the alternatives to the site the subject of the application for the reasons explained below. 28 Nowhere does the AOS grapple with the objectives which underpinned this development. The objectives of the development are very clearly set out in Section 1.3 the EIS [EB SM1 Vol 1 15] and the proper application of cl 7 requires that those objectives to be taken into account when assessing whether there are "any feasible alternatives" to the proposed development. What is instead advanced by the applicant is a review of the materials in a bid to demonstrate that the "issues" as identified and articulated by the applicant and without consideration of the objectives were dealt with briefly by the EIS and its appendices. That does not, however, align consistently with either the language of cl 7(1)(c) of Sch 2 of the Regulation or the authorities (such as Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 (Nessdee) and Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 (Rosemount LEC)). By reason of its adoption of a mistaken interpretation of cl 7 of the Regulation, the applicant seeks to apply a wrong and irrelevant standard to its scrutiny of the contents of the EIS. 29 Furthermore, the obligation in relation to feasible alternatives is limited to what a proponent believes may be considered feasible alternatives (Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160 (Prineas) at 164‑165 per Hutley JA (Samuels and Priestley JJA agreeing)). The materials before the decision‑maker, and in particular the contents of the EIS, do not provide any basis to conclude that INSW as the proponent believed or considered that there were any feasible alternatives in respect of the site of the development (if that be the correct test, which is disputed), or in respect of the design of the development on the riverbank site insofar as it affected "Willow Grove". The obligation imposed by cl 7(1)(c) is that the EIS contain an analysis of what the proponent believes may be considered feasible alternatives.
In his oral submissions, Mr Lancaster expanded on the portion of the proponent's written submissions set out above. He said, with respect to cl 7(1)(c), that it (Transcript 24 May 2021, page 42, lines 33 to 46): … requires an analysis of any feasible alternative to the carrying out of the development, skipping over a few words, having regard to its objectives. In other words, to the objectives of the development. Consideration of the objectives is not something one does after any other stage in the process but rather the obligation is one that only has content in the context of the objectives of the development. The applicant asserts this deficiency in the EIS but can't point to any material in EIS that identifies any feasible alternative having regard to the objectives either in terms of sites or in terms of designs that retain Willow Grove and that's a sufficient answer to the claim in that proposition in my submission and that's because the Court of Appeal in Prineas said feasible alternatives aren't what the applicant might think are potential feasible alternatives. Feasible alternatives are those that the proponent regards as feasible alternatives …
Mr Lancaster then took me to the decision of the Court of Appeal in Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160 (Prineas Court of Appeal), at page 165, where Hutley JA said: … The obligation to state feasible alternatives is, at highest, an obligation to discuss what the proponent believes may be considered feasible alternatives. An issue can arise as to the bona fides of the belief, but apart from this, the E.I.S. does not fail to comply under this head if particular alternatives conjured up by the opponents of the project have been ignored.
Mr Lancaster submitted that the Residents Action Group could not identify any alternative site, which, in the eyes of the proponent, would need to be addressed as a result of the operation of cl 7(1)(c).
Mr Lancaster then turned to the submissions made by Mr Hale concerning Timbarra and Davis, acknowledging that there was agreement that I was to determine whether the requirements of cl 7(1)(c) had been satisfied. However, he submitted that (Transcript 24 May 2021, page 43, line 42 to page 44, line 3): But the question is whether the proponent ‑ whether there are any feasible alternatives, having regard to the objectives, that either existed or that were analysed, and that question is to be determined by regard to the proponent's consideration of feasibility. That's what Prineas stands for. So Prineas is on all fours with what's said to be the different modern approach to jurisdictional fact. In fact, it deals with a much more discrete question. It deals with the specific question at issue here, what does the requirement to address feasible alternatives mean? Answer, according to Prineas, those alternatives the proponent believes are feasible and this Court then determines the question does the EIS deal with all the alternatives that the proponent considers feasible? And in our submission there's no reason to answer that question no, and the applicant hasn't put forward any reason to answer that question no.
Mr Lancaster then advanced two propositions with respect to Mr Hale's submission that there was an obligation to examine alternative sites. The first proposition was that there were no alternative sites identified by the proponent as being feasible for the project. Further, he proposed that what was required was consideration of the carrying out of the development on the site, in respect to which the application had been made, having regard to the nature of that development.
Mr Lancaster then submitted that to read the provision in the fashion proposed for the Residents Action Group would impose an impossible and absurd burden on the proponent. At this point, I suggested that the use of the word "feasible" as the qualification to the word "alternatives" meant that I understood Mr Hale's case to be that this required examination of potential alternative locations at Parramatta. I put to Mr Lancaster that I also understood Mr Hale's case to be that it was the responsibility of the proponent to demonstrate that there were no feasible alternatives in Parramatta, not an obligation on the Residents Action Group to demonstrate that there were. Mr Lancaster's response to this was (Transcript 24 May 2021, page 46, lines 3 to 8): No, that's not the obligation. The obligation is to include in the EIS an analysis of any feasible alternatives to the carrying out of the development having regard to its objectives. So if my friend is asserting a deficiency in the EIS he has to show what the deficiency is. He has to show that there was a feasible alternative in the eyes of the proponent that was not dealt with in the EIS and he hasn't even tried to discharge that burden.
Mr Lancaster then turned to the SEARs, proposing that Section 3 of the SEARs, by virtue of cl 7(2), set the maximum extent of the obligation placed on the proponent by cl 7(1)(c) and that it would not be appropriate to read that clause as imposing a more extensive or demanding obligation than arose from Section 3 of the SEARs.
After completing his submissions concerning the role of the EIS in the statutory framework, Mr Lancaster then turned to address the objectives set by the proponent for the proposed development. He commenced by doing so with respect to, first, the issue of connectivity which I had raised with him earlier. In this regard, he put that "Willow Grove" could not be retained because to retain it would act as a barrier to achievement of a number of the objectives set for the project. He submitted (Transcript 24 May 2021, page 47, line 44 to page 48, line 24): LANCASTER: Your Honour asked in particular about connectivity and I will give a more detailed review of the materials than the applicant did about that issue but for present purposes connectivity as a design principle came to have a very important part in the non‑retention of "Willow Grove" and it was regarded, and I'll take your Honour to the documents, as consistent with the objectives of the proposal in respect of issues that might together be referred to as connectivity. The fourth bullet‑point for example of the objectives is to provide a precinct that has multiple entry points to encourage walking through and that and the fifth bullet‑point‑‑ HIS HONOUR: I understand, and that it seems to me is at least mandated by 4 and much of 5 of the SEARs. LANCASTER: Yes, quite. This is dealt with expressly in documentary references that I'll come to but your Honour's quite correct with respect, this is the necessary perspective from which the question of feasible alternatives must be addressed and the EIS ‑ there can't be any real doubt that the EIS adequately has substantially complied with the requirement to address feasible alternatives from the perspective of the objectives of the development. Just looking at the floor plan that I took your Honour to earlier, it would be impossible to have that second building in anything like the configuration that it has been approved with if "Willow Grove" was retained and likewise these fourth and fifth bullet‑points, and we'd also say the tenth bullet‑point, that is the final one in the list, are also connectivity objectives that simply couldn't be achieved if "Willow Grove" had been retained in place but as I said it's not so much what you or I with respect think about this, it's what the EIS refers to and the EIS documents certainly bring these kind of considerations to bear. The museum precinct simply couldn't operate in the way it was described in the objectives with the retention of the "Willow Grove" building.
Mr Lancaster then turned to the Business Case Summary (Exhibit 4). In response to a question from me concerning the locational requirements set out in that document, Mr Lancaster said (Transcript 24 May 2021, page 50, lines 39 to 42): Yes. The whole strategic planning framework imposes quite demanding locational requirements for the Powerhouse Parramatta, and indeed the identification for many years of this as the appropriate site speaks volumes as to the absence of any feasible alternative site in Parramatta.
In response to a further enquiry from me, asking whether those strategic planning requirements precluded any alternative sites, Mr Lancaster responded (Transcript 24 May 2021, page 51, lines 2 to 6): That's right. Therefore the EIS cannot be deficient for failing to address any feasible alternatives in terms of location because there is one appropriate location having regard to the business case that's been accepted by the government to the strategic planning framework that has been developed by the government and notwithstanding‑‑
Mr Lancaster then took me to "1.4 Analysis of alternatives in the EIS" (Exhibit A‑1, folios 15 and 16). This portion of the EIS has earlier been reproduced in full. Mr Lancaster submitted that this portion of the EIS itself was a sufficient and complete response to the complaints made by the Residents Action Group concerning the adequacy of the EIS.
Mr Lancaster next took me through the first and second options in this portion of the EIS. It is not necessary to detail his submissions in this regard, save to note that the final sentence in "Option 2 ‑ Alternative location", Mr Lancaster submitted, constituted a clear indication that, from the proponent's perspective, there were no feasible alternatives to the site. This sentence was in the following terms: This site is, therefore, strategically located to maximise regional and local benefits and achieve key strategies for the development of Sydney, a metropolis of three cities, which would not be realised in an alternative location.
In the discussion of "Option 3 ‑ The Powerhouse Parramatta", Mr Lancaster drew attention to the sentence in the final paragraph which noted that: The jury was unanimous in its decision on the final chosen concept and recognised that the Stage 2 concept design made it clear that it was not possible to achieve the design ambitions and connectivity while retaining local heritage items.
Mr Lancaster submitted that this provided support to the proponent's view that there were no such alternative sites.
Mr Lancaster then turned to address the terms of the SEARs. He proposed that, on a correct reading of Section 3 of the SEARs, the design selection process had satisfied it. Mr Lancaster proposed that, by its discussion of the jury and competition process, the first required element of Section 3 of the SEARs had been satisfied by that jury and competition process and that the case advanced by the Residents Action Group sought to impose much too demanding a test on what the SEARs required to be included within the EIS.
He submitted that the element of the EIS at 5.5.2, dealing with achievement of design excellence, contributed to satisfaction of Section 3 of the SEARs.
Mr Lancaster next took me to "6.1.3 Connectivity and activation". In this context, it is appropriate to reproduce the introductory paragraph of this section, together with the element immediately following this, being a paragraph dealing with the Civic Link (Exhibit A‑1, folio 90): Powerhouse Parramatta has also been designed as a porous and accessible destination within the Parramatta CBD that serves as a seamless continuation of the surrounding streetscape and public domain. It integrates with its surroundings from all approaches and has been designed with consideration of both existing and potential future connections: ● Civic Link ‑the planned Civic Link connecting the Parramatta CBD to Parramatta River has been a key influence in the layout of the site and design of the built form. The Civic Link continues through and terminates at the site, ensuring the proposed development delivers a key component of this new pedestrianised and landscaped connection.
Mr Lancaster addressed the role of the Civic Link (Transcript 25 May 2021, page 3, line 44 to page 4, line 5): The Civic Link is identified as a key influence on the layout of the site and the design of the built form, the river foreshore and its significance is referred to, laneways are addressed and that would of course include the Civic Link itself, and as your Honour can see from figure 72 that that is the link from through the middle of the site, as it were, between the two buildings from Phillip Street, down to the river front park area. So, those important design considerations were all necessary for the design to take into account and evidently provide material supporting principle for the non‑retention of "Willow Grove" and more information in support of the findings in the EIS that it's just not possible to retain "Willow Grove" while meeting those sorts of objectives.
He next drew attention to the discussion in the EIS of post settlement heritage (Exhibit A‑1, folio 93). He drew particular attention, under the heading "Heritage on the site", to the sentence which read: The submitted concept designs made clear that it was not possible to deliver on the design ambitions of the brief and deliver connectivity, whilst also retaining local heritage items.
The next matter addressed by Mr Lancaster in the EIS was in "6.22 Public Interest" (Exhibit A‑1, folio 134), where eight bullet‑points were listed as demonstrating why the project was in the public interest. Mr Lancaster particularly drew attention to the third, fourth and fifth of these points, these being in the following terms: ● activates the site and surrounds, providing new cultural and entertainment opportunities during both day and night and diversifying the local night‑time economy; ● provides a high‑quality built form and landscape design that achieves design excellence, caters for different users and uses, is cognisant with the significance of the proposal for the Powerhouse Parramatta, and recognises the site's location is the terminus of the city's cultural infrastructure along the Civic Link at the intersection of a number of key urban movement connections; ● considers and integrates with other projects occurring in the surrounding area, including the future Civic Link, Parramatta light rail, and future laneway connections to adjoining land.
Mr Lancaster then drew attention to elements in the Environmental Risk Assessment which referenced the necessity for demolition of "Willow Grove" (and "St George's Terrace") and that alternative options were considered as part of the competitive design process but it had been concluded that these items could not be retained on the site.
With respect to the main body of the EIS proper, Mr Lancaster took me to "9.0 Conclusion and justification". He said (Transcript 25 May 2021, page 4, lines 45 to 50): And then on p 143 of the document, the conclusion and justification. This is of course is the high level or broad conclusion and justification supporting the whole of the project. It sets out the essential reasons for the proposed approval of the project. And again, it emphasises connectivity, accessibility in the way that I've addressed your Honour. In the fourth of the bullet‑points, there's express reference to "Willow Grove" in that context.
Mr Lancaster then turned to Appendix D, the Design Excellence Report (Exhibit A‑2, commencing at folio 435). He noted that, from folios 444 to 446, there was a summary of the design competition process and the report from the jury as to its conclusions.
Under the heading "9 Design Alternatives", Mr Lancaster drew attention to the paragraphs which read (Exhibit A‑2, folio 453): The competition brief requested design teams to consider aspects of heritage and cultural significance within their submissions, including local heritage items. Other considerations included the activation of transport and pedestrian access consistent with the city of Parramatta Council's vision for a Parramatta Civic Link. The submitted concept designs made clear that it is not possible to deliver on the design ambitions of the brief and deliver connectivity while retaining local heritage items.
Mr Lancaster noted the Design Excellence Report included the International Design Competition Stage 2 Design Brief (this being the brief put to the six competition finalists). The details required to be addressed by these contestants commenced at folio 574. Mr Lancaster drew attention to several of the specific elements and noting that, at folio 599, contestants were asked to address the potential removal of "Willow Grove".
Mr Lancaster expressly drew attention to the final paragraph of folio 599, under the heading "2.10 Heritage and cultural significance: the site", a paragraph which reads: To enable the best museum outcome and support the Civic Link, we are requesting that all submissions consider the removal of Willow Grove, should it be required.
With respect to an earlier question I had raised concerning the potentiality for cantilevering over "Willow Grove", Mr Lancaster submitted that the design brief specifications rendered this inappropriate, saying (Transcript 25 May 2021, page 7, lines 6 to 13): Now, that is a number of the relevant considerations in answer to your Honour's analogy with the church of Macquarie Street because the design brief involved the provision of column‑free floorplates, for obvious reasons, for the new museum location. It was simply not apt to have some step process which dramatically cut down on the available floorplate to make available to exhibition space in some novel design that somehow preserved the building and the airspace above Willow Grove, which is a central part of the design brief because they were designing a new museum and a new cultural precinct.
Mr Lancaster next moved on to the SHI (Exhibit A‑2 at folios 753 to 856). He particularly drew attention to "9.3 Options Analysis" in this document. It is appropriate to set out three of the matters to which Mr Lancaster drew attention. The first was the introductory statement, one noting that no alternative schemes were considered during the design process which could have retained "Willow Grove". He next drew attention to "9.3.1 Options Description", setting out what Advisian understood was the basis for selection of the site. These were: ● Central location within the Parramatta CBD, part of the metropolitan centre comprising the core of Sydney central city. ● Iconic location on the banks of the Parramatta River. ● Ability to integrate with the future Parramatta Civic Link which is a green, pedestrianised public space and cultural route through the heart of the Parramatta CBD to the Parramatta River. ● Physical and spatial characteristics capable of accommodating the functional requirements of the proposal.
These points, Mr Lancaster submitted, would clearly satisfy any requirement to explain why alternative sites were not feasible (Transcript 25 May 2021, page 8, lines 34 and 35): They ‑ it clearly satisfies any requirement, of which we deny, of course, as to explaining why alternative sites were not feasible.
He first took me to the material in the RtS Report (Exhibit B‑1, folio 9) which set out a summary of the design changes effected as a consequence of the public submission process. He then took me through the detailed description of the key amendments to the process. It is unnecessary to set out any detail of these amendments.
Mr Lancaster then took me to "5.0 Clarification, additional information, and further assessment" in the RtS Report (at folio 30), particularly the element at "5.2 'Willow Grove' and 'St George's Terrace'", where it notes: DPIE and Council have requested further information and justification on the proposed demolition of Willow Grove and St George's Terrace, including an analysis of options that would allow the objectives of the Powerhouse Parramatta project continue while retaining the heritage items (in part or in full) and the advantages and disadvantages of each.
Then follows a discussion of "Willow Grove" to which Mr Lancaster took me in Section 5.2.1. Under the Proponent's response, the RtS Report says: While the amended proposal has enabled the retention of St George's Terrace (discussed further below, the proposed development ensures that Willow Grove cannot be retained on the site. This outcome has been informed by several factors culminating from the opportunities and constraints of the site, the physical requirements of the development, and the endorsed and best practice design process. The culmination of these factors has meant there is no potential to retain the existing building on the site, either in part or full in situ while meeting the objectives the Parramatta project. Those objectives include to create a world‑class new museum; provide a public domain in the context of the River foreshore setting; creating 24/7 pedestrian movement from Phillip Street through to the River foreshore; and the establishment of a centralised circulation corridor connecting Pacific link as further set out in section 1.3 of the EIS and discussed further below.
With respect to this paragraph and matters following from it, Mr Lancaster submitted (Transcript 25 May 2021, page 10, lines 19 to 47): Again, one couldn't ask for a clearer indication that the proponent thought there were no feasible alternatives that involved a different design that involved the retention of Willow Grove in place. And then those objectives are then set out explicitly, "Create a world class new museum," and that goes to the adequate floor plate submission I made a little earlier, "Provide a public domain in the context of the river foreshore setting," and that goes to the point I addressed your Honour earlier of this being a precinct that one travels through rather than around. And, "Pedestrian movement from Phillip Street through to the river, through to Civic Link," which your Honour's seen in the documents. And over on p 31, again, the design process is outlined as per para 3 of the SEARs. The third of those paragraphs says: "Of the six resultant competition entries, only one submitted entry identified the retention of Willow Grove and St George's Terrace, but the scheme did not achieve the remaining project objectives to the same extent as the winning scheme. The submitted competition schemes therefore made it clear that it was not possible to achieve the objectives of the Powerhouse Parramatta project while retaining the heritage item. Accordingly, while the retention of heritage was considered carefully during the judging process, the jury was unanimous in the decision on the final chosen concept." And, your Honour, that satisfies para 3 of the SEARs. And even if cl 7 of ‑ 7(1)(c) of the regulation imposed something over and above para 3, which your Honour knows we say it doesn't, but even if it did, that ‑ it also satisfies cl 7 of the regulation.
Mr Lancaster submitted that the second bullet‑point under the heading "Site conditions" in the RtS Report (at folio 31) addressed connectivity and the use of the site as a thoroughfare. It is not necessary to reproduce this here ‑ however, I will later return to it.
Mr Lancaster then took me, in this section of the RtS Report, to discussion under the heading "Design and Heritage integrity" at folio 33. The relevant elements of this section of the RtS Report were, in Mr Lancaster's submission, in the following terms: In view of the above, the retention of Willow Grove cannot be achieved without compromising the vital positive aspects of the project and, specifically: The achievement of sufficiently sized floor plate to achieve the functional requirements for the new proposed museum. The delivery of a linear, uninterrupted, and sufficiently sized Civic Link connection through the site to connect the CBD with the River foreshore.
With respect to the above extract, Mr Lancaster submitted (Transcript 25 May 2021, page 12, lines 32 to 50): There's an important section on design and heritage integrity and I say it's important because again, to use your Honour's expression from yesterday, this is granular explanation of why Willow Grove cannot be retained in place without compromising, to use the expression of the document, "vital positive aspects of the project". The first of those is the floor plate consideration that I've referred your Honour to. The second is the delivery of a linear uninterrupted sufficiently sized civil link and that's the point your Honour just asked about. The next is an entry plaza where possible on Phillip Street. The next is the development of buildings that comply with the flood planning level and the next is the delivery of significant open space so a precinct that can be used rather than traversed around. That is as much as one could ask reasonably in my respectful submission for a granular explanation of why the project objectives are simply inconsistent with the retention of Willow Grove and they've each independently but certainly taken together, a clear demonstration that the proponent considered there were no feasible alternatives of we're speaking in the language of cl 71C of the regulation.
Mr Lancaster next took me to the portion of the RtS Report dealing with mitigation measures. It is not necessary to detail any of the material contained in this portion of the document.
At the conclusion of his taking me through material in the RtS Report, Mr Lancaster next turned to material in Exhibit 1, a folder of supplementary material tendered on behalf of the proponent. The first document to which he took me was entitled "Consultation Summary Report". This document, dated May 2020, had been prepared by a consultancy known as Aurecon. This document was Appendix Q to the original EIS. The first element of this document to which Mr Lancaster took me was Table 4, "Issues Summary", commencing at folio 34 of the exhibit. The table identifies, under the primary issue heading of "Location", the second subissue, being entitled "Investigation into alternative sites".
It is clear from the introductory remarks before the table that the list of alternative sites there set out was derived from the community feedback undertaken from a range of elements of the public consultation process undertaken by Aurecon. With respect to each of the alternative sites identified under the heading "Detail", there is a response from the proponent. For present purposes, it is not necessary to reproduce all of this material. With respect to this table, Mr Lancaster relevantly submitted (Transcript 25 May 2021, page 14, lines 8 to 13): At p 34, there's a table which sets out an issues summary, and I wanted to take your Honour to this, in completeness on our answer to the suggestion that the EIS had to set out alternative sites, because even if it's the case, which of course we deny, that there was a legal requirement to identify alternative sites, the EIS did so and it did so in terms that make it clear that there were no feasible alternatives, from the proponent's perspective.
After an exchange with me about the breadth of this material and its timing (a discussion which it is not necessary to reproduce), Mr Lancaster then made submissions concerning how this material should be regarded in the context of the case advanced on behalf of the Residents Action Group, proposing that there was a necessity for the EIS to explore alternative sites on the basis of the construction it advanced for cl 7(1)(c). This element of Mr Lancaster's submissions was in the following terms (Transcript 25 May 2021, page 15, lines 20 to 43): Part of the problem, in our respectful submission, with my friend's suggestion that alternative locations have to be tested is what reason is there, if there is an obligation to set out alternative locations, to limit it to the Parramatta region? It shows that the exercise needs to involve making up words in the provision to say, alternative locations in the Parramatta region or in the locality or in New South Wales, or in any other confined geographical area. That's one of the reasons, as a matter of proper construction, cl 7(1)(c) simply can't be directed to alternative sites at all, because you need to supplement the regulation with additional words to make any sense of what the obligation, is or to give a specific geographical application, and it, at p 34, in May 2020, sets out objectives saying, well, you can put it in North Parramatta, you should leave it where it is, you could use the site of the Parramatta gaol, you could put it where the Parramatta swimming pool precinct is, or you could put it out at Castle Hill, where there's an existing storage facility for the museum. But it's clearly apparent from all of the materials I've taken your Honour to the proponent didn't think there was any feasible alternative, but nevertheless, the EIS materials do refer to those contentions and do refer to the response to the contentions and, accordingly, comply or substantially comply with the alternative sites obligation, even if contrary to our primary submission, your Honour finds that such an obligation exists, that there is compliance with it, substantial compliance with it, in any event.
The second document in Exhibit 1 to which Mr Lancaster took me was a letter written by Ethos Urban (by inference, a planning consultancy) to the Planning Secretary. The letter was dated 20 January 2021 and is described as: This letter is prepared on behalf of Infrastructure NSW in response to the matters raised in relation to the Response to Submissions and further Requests for Additional Information for SSD DA 10416 by the Department of Planning, Industry and Environment (DPIE).
The second topic dealt with in this letter is an "Analysis of alternatives". The discussion is introduced by a paragraph in the following terms: Sections 1.4 of the EIS and 5.2 of the Response to Submissions Report addressed the alternatives for the proposed development and identified how the retention of Willow Grove in situ or in part on the site could not be achieved while meeting objectives of the project. Section 1.2 of the EIS addressed the strategic need for Powerhouse Parramatta, which is supported by a range of strategies and plans as an important hub for culture, science, innovation and the arts.
Under "Option 3 Retention of 'Willow Grove' and 'St George's Terrace'", the letter says, relevantly (at folio 189): The retention of Willow Grove in conjunction with St George's Terrace and the proposed Powerhouse Parramatta project would result in an unsuitable outcome that would undermine the achievement of the project objectives, particularly providing a functional ground plane and building capable of accommodating the Powerhouse programming, realising the Civil Link central circulation corridor, and addressing the constraints of the site.
The letter then reproduced the second bullet‑point under the heading "Site conditions", at folio 31 of the RtS Report. The full text of this bullet‑point is later reproduced in my consideration of the issues relating to alternative designs as raised on behalf of the Residents Action Group.
Mr Lancaster then drew attention to the second bullet‑point under the heading "Design and heritage integrity" in this letter, at folio 190. The introduction to this section, and the bullet‑point to which Mr Lancaster drew attention, were in the following terms: In view of the above, the retention of Willow Grove cannot be achieved without compromising the vital positive aspects of the project and specifically: The delivery of a linear, uninterrupted, and sufficiently sized Civic Link connection through the site to connect the CBD with the River foreshore.
Mr Lancaster, at this point, turned from the documentary material back to his written submissions. He noted that these submissions, at paragraphs 59 to 65, addressed what the proponent considered were the relevant elements of the documentary evidence (a list of this material having been set out in paragraph 58 of the written submissions). It is unnecessary to reproduce these elements of the written submissions; it is sufficient, in light of all of that which I have reproduced above, to quote Mr Lancaster's short, summarising submission concerning how this material should be regarded. He put (Transcript 25 May 2021, page 17, lines 24 to 33): For the reasons we put forward in paras 59 to 65, all of which I've addressed orally in the course of taking your Honour through the documents, we say on the basis of a fair reading of all EIS materials, that is the whole of the EIS in a global way, as the authorities require, the EIS substantially compliance, which is sufficient, with the relevant obligations imposed by cl 7.1(c), and by paras 3 and 6 of the SEARs. And accordingly, your Honour would reject the applicant's case in that regard. The applicant's case as presented in oral argument involves the error, we suggest, of reading in additional and extraordinarily demanding requirements for the EIS, misconstruing both cl 7 and the SEARs.
The next matter addressed by Mr Lancaster to which it is appropriate to return concerns the objector material tendered by Mr Hale (Exhibit D). It is unnecessary, in light of the conclusion which I have reached that the EIS substantially complies with the relevant requirements in the Regulation and in the SEARs, to detail any of the contingent submissions which Mr Lancaster made that the totality of the material before the Minister was sufficient to enable him to make a properly informed and valid decision about the development application for the project. It is sufficient, to illustrate this point, to set out a further short extract from Mr Lancaster's submissions (Transcript 25 May 2021, page 21, lines 15 to 24): We submit to your Honour that, even if there are deficiencies of the type alleged by the applicant in these proceedings, it can't be said that there is no EIS within the meaning of the Environmental Planning Assessment Act or the regulations: it means, at the highest, there's a non‑compliant EIS, but not that there's no EIS as referred to; it doesn't become a jurisdictional point, let alone can it be said there's no development application for the purpose of the EP and A Act. As I addressed your Honour briefly, yesterday, to indicate that EIS is an accompanying document, it's not part of the development application, so the contention that there is no development application within the meaning of the Act cannot be sustained.

The proponent's written submissions

The proponent's written submissions observed, at paragraph 11(c), that the site was "also consistent with other NSW Government strategies, such as the Greater Sydney Commission's A Metropolis of Three Cities and Central City District Plan". Attention was drawn to the strategic planning framework as set out in the EIS in this regard (Section 5.3, Exhibit A‑1, folio 74).
The proponent's written submissions proposed that the Residents Action Group had adopted a mistaken interpretation of cl 7 and thus, as a consequence, sought to apply a wrong and irrelevant standard to its scrutiny of the contents of the EIS (citing Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 and Rosemount Estates Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 1) as to how the clause should be considered. It was submitted that the obligation to examine feasible alternatives was limited to what a proponent believes may be considered feasible alternatives (citing Prineas Court of Appeal at 164‑165).
The proponent's written submissions also explained why there was no requirement to undertake an analysis of alternative sites. After explaining (at paragraphs 31 to 34) why there was no such statutory requirement, it was submitted for the proponent that such an approach would be so entirely impractical as to demonstrate the implausibility of the approach advanced for the Residents Action Group in this regard (paragraph 35 of the proponent's written submissions).
It was submitted that, in the context of the present controversy, the EIS was not merely the original document, but extended to the various supplementary reports and responses to submissions which addressed and elaborated on the initial EIS (citing Botany Bay at [35] to [40]). Expanding on this approach, the proponent's written submissions said, at paragraph 46: 46 That approach reflects, quite appropriately, a focus on matters of substance and a due appreciation of the role an EIS plays. As set out above, a key aspect of the purpose of an EIS is to aid a decision‑maker in the appreciation of the actual and potential environmental effects of the proposed development. Where supplementary information furthers that purpose and is made available to the public (as contemplated by cl 82 of the Regulation), there is no principled reason to exclude it from a consideration of the adequacy or sufficiency of an EIS.
Taking all of this material together (the proponent's submissions having listed, at paragraph 47, the material said to comprise the totality of the EIS documentation), the written submissions then explained why I should be satisfied that all matters required to be traversed by the EIS were addressed sufficiently. The submissions proposed that there were a number of propositions to which I should have regard in my consideration of the adequacy of the EIS. These were set out at paragraph 49 of the proponent's written submissions in the following terms: 49 When considering the numerous relevant references in the EIS to the topics alleged by the applicant not to be sufficiently addressed, set out below, INSW respectfully submits that the Court ought to keep in mind the following considerations established by relevant authorities: a) An EIS does not need to be perfect and cover all topics, rather it is to be comprehensive and objective in its approach and be sufficiently specific to direct one to the possible environmental consequences: Schaffer at 31. b) Furthermore, as addressed above, the obligation to deal with feasible alternatives is, at highest, an obligation to discuss what the proponent believes to be feasible alternatives and an EIS which does not deal with alternatives conjured up by opponents to the development does not thereby fail to comply with this requirement: Prineas at 164‑165.
The written submissions then addressed, at paragraph 53, the fact that the EIS had (Exhibit A‑1, folios 15 to 17) addressed the three options set out in the body of the EIS (these three options were earlier set out in full). The submission made in this regard, was in the following terms: 53 Although the EIS was not required to do so, Option 2 expressly addressed the very question of "whether the proposed new institution could be delivered in an alternative location". It stated that it could not, because the riverside site "has been found to be the best and most appropriate location for the delivery of the Powerhouse Parramatta both at a regional and local scale and was ultimately selected as the favoured location with the NSW Government announcing its acquisition from City of Parramatta Council in April 2016". It set out further reasons why the institution could not be delivered in an alternative location. It noted that (emphasis added): The site is uniquely positioned in a central point of the Parramatta CBD's interface with the Parramatta River, providing an opportunity for the new facility to act as the focal point for community interaction and culture in a landmark position. It benefits from excellent proximity to existing and planned public transport services and as well as enhanced pedestrian access via Parramatta's new Civic Link. This site is, therefore, strategically located to maximise regional and local benefits and achieve key strategies for the development of Sydney a metropolis of three cities, which would not be realised in an alternative location. [EB SM1 Vol 1 16]
With respect to the other sites discussed in the proponent's material, these other locations were "not located in the Parramatta CBD and could not create pedestrian movement from Phillip Street to the foreshore, nor would they be embedded into the CBD and create a centrally located cultural precinct, as per the objectives of this development" (written submissions, paragraph 56).
As a consequence, it was submitted that (paragraph 57): 57 INSW was simply not required by cl 7(1)(c) to analyse non‑feasible alternatives (Prineas at 164‑165) and it is not to the point that the applicant disagrees with this analysis, nor that it considers that feasible alternatives exist: Nessdee at [119], Rosemount LEC at 34.
The final, additional, relevant matter to be noted from the proponent's written submissions was to be seen in paragraph 64, where it was said that: The applicant's claims are not available to it in the context of judicial review, being in truth a complaint about the merits of the decision‑making process, which was engaged in.

Introduction

Mr Beasley took me to only limited further evidentiary references, generally adopting instead Mr Lancaster's submissions as to what were relevant evidentiary elements relied upon by both Respondents. He also adopted the oral submissions that had been made by Mr Lancaster concerning the statutory construction issues.

Mr Beasley's oral submissions

In addition, Mr Beasley made short oral submissions to supplement those made by Mr Lancaster.
Mr Beasley set out how he understood the Resident Action Group's case with respect to cl 7(1)(c). In this regard, he submitted that it was flawed because (Transcript 25 May 2021, page 28, lines 23 to 41): So what the applicant ‑ I think Mr Lancaster described this as a three‑step approach which is flawed, but what the applicant's case is in relation to construction of 7(1)(c) seems to be this; that first of all the requirement of 7(1)(c) is that the EIS must include an analysis of feasible alternatives, and of course missing from that is the words, "Having regard to the objectives of the development. The applicant then goes on to put its construction point this way; "This must involve an analysis or assessment first of possible alternatives, and then (2) an analysis of assessments of which of those alternatives are feasible." Now, in our submission, your Honour, there's nothing in the language deployed by parliament in cl 7(1)(c) that makes that analysis remotely correct. It's not incumbent on anyone who's lodging a DA for consideration to which cl 7(1)(c) applies to raise possible alternatives in the first place and then somehow deal with whatever alternatives are feasible, uninformed by the language of the section, including the words, "Having regard to its objectives." So in our submission, your Honour, you would reject that construction of cl 7(1)(c).
He then submitted that: 1. The words in cl 7(1)(c), "carrying out of the development", are clearly confined to the project on the site identified for it; 2. Clause 7(1)(c) is subject to cl 7(2). The proposition advanced for the Residents Action Group - that the combined operation of cl 7(1)(c) and Section 3 of the SEARs requires an analysis of alternative sites - ignores the operation of cl 7(2). As a consequence, all Section 3 of the SEARs requires is a consideration of alternative designs for the project and does not require consideration of alternative sites.
He further submitted, if some consideration of alternative sites was required (a position which he did not concede for reasons noted above), that (Transcript 25 May 2021, page 29, lines 35 to 42): There are no feasibly alternative locations identified in the EIS and the supporting material. There are none identified by the applicant in any submission it's made, and there's none identified in the evidence, accepting that most of the evidence is in fact the EIS and the supporting materials. All the evidence points to the first respondent indicating, in what must be taken to be its bona fide opinion, that (1) there are no alternative feasible sites for this development, having regard to its objectives, and (2) that there's no alternative designs that would retain "Willow Grove" having regard to its objectives.
Mr Beasley then took me through a limited range of the material, to which I had been taken by Mr Lancaster, in order to make a range of observations in support of the propositions which Mr Lancaster had advanced. His submissions in this regard were succinct but comprehensive. It is unnecessary to repeat them in any detail.
The final matter to which he took me was the element of the RtS Report (Exhibit B‑1, folio 30) dealing with "Willow Grove" at 5.1. He drew particular attention to the third sentence of this element of the RtS Report, a sentence in the following terms: The culmination of these factors has meant there is no potential to retain the existing building on the site either in part or full in situ while meeting the objectives of the Parramatta project.
He noted that the objectives for the project were contained in the sentence following the above extract, a sentence appropriate to be repeated here: Those objectives include to create a world class new museum; provide a public domain in the context of the river foreshore setting; creating 24/7 pedestrian movement from Phillip Street through to the river foreshore; and the establishment of a centralised circulation corridor connecting to Civic Link as further set out in Section 1.3 of the EIS and discussed further below.
He then submitted that the appropriate understanding of the obligation imposed on the EIS was to inform those reading the material of the issues arising from, and conclusions to be drawn about, matters relevant to cl 7(1)(c) (Transcript 25 May 2021, page 32, lines 4 to 9): Now, that directs, in our submission, a reasonably intelligent and full mind that there are no feasible alternatives to the design of this development, if it's going to have regard to its objectives and meet those objectives whilst retaining "Willow Grove". That's all that's needed in the EIS, your Honour, for substantial compliance. So, in our submission, the EIS does sufficiently comply. In fact, it fully complies with all the requirements of cl 1C and the SEARS.

The written submissions for the Minister

The Minister's written submissions emphasised the statement of Cripps J in Prineas LEC as being the appropriate standard to test the adequacy of the EIS, being: … but, in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision‑maker and members of the public and the Department of environment and planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations.
The test laid down by Cripps J in Prineas LEC was one of substantial compliance rather than perfection. In this context, the Minister's submissions then set out the six principles propounded by Pearlman J in Schaffer, these being (also earlier reproduced at [134]): 1. An environmental impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possib/e environmental consequences of the proposed development (per Cripps J. in Prineas at 417). 2. The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council (at 278). 3. The environmental impact statement is not required to be perfect. It need not cover every topic or explore every avenue (per Cripps J in Prineas (at 417) and per Hutley JA on appeal (at 163). 4. The environmental impact statement must not be superficial, subjective or non‑informative (per Cripps J in Prineas (at 417). 5. It should be comprehensive in its treatment of subject matter and objective in its approach (per Cripps J in Prineas (at 417). 6. Changes to the proposed development may be made between the exhibition of the environmental impact statement and the decision of the decision‑maker but not so as to result in a completely different proposal (per Stein J in Golden (at 108).
Then, noting that these principles had been approved by the Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349, the Minister submitted that there was no obligation to analyse alternative sites on a proper understanding of the statutory obligations placed on the proponent. This was summarised at paragraph 37 of the Minister's written submissions in the following terms: 37. The position that the EIS must, as a matter of necessity, analyse alternative sites for the development has no textual basis in the Regulations, the SEARS or the EP&A Act. The Regulations require the EIS to analyse "feasible alternatives to the carrying out of the development … having regard to its objectives…" The SEARs state thatthe EIS shall "outline the design process... including...any alternative schemes considered". There is no requirement that the EIS must analyse "alternative sites". That cl 7(1)(c) of Schedule 2 of the Regulations does not import an obligation to analyse alternative sites is also supported by s 4.15(1)(c) of the EP&A Act which requires the consent authority to take into consideration the suitability of the site for development.
Mr Beasley drew attention to the fact that, in the RtS Report at page 11, it said, with respect to site selection: This included a site selection assessment which concluded that the Riverbank site in Parramatta was the preferred site for the new museum, based on a range of criteria including size, existing conditions, location and opportunities to deliver expanded benefits in conjunction with other civic projects (i.e. the Parramatta River foreshore and the Civic Link).
The Minister's written submissions addressed the question of any obligation to consider alternative designs, saying, at paragraph 47: … to the extent that the regulations and the SEARs imposed an obligation on the proponent to consider alternative designs, the Minister's submission is that INSW complied with this obligation. This is because either: (1), there were no feasible alternatives within the meaning of cl 7(1)(c); or (2) the analysis contained in the EIS was sufficient to comply with cl 7(1)(c).
The Minister's submissions drew attention to the fact that the Design Excellence Report in Appendix D to the EIS (Exhibit A‑2, folio 435) noted that, in addition to the competition brief requesting consideration of local heritage items, other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council's vision for a Parramatta Civic Link.
The Minister's submissions noted that, in the RtS Report at Section 5.2, under the heading "Design Process" (Exhibit B‑1, folio 31), concerning the six design competition finalists: Of the six resultant competition entries, only one submitted entry identified the retention of "Willow Grove" and St George's Terrace, but the scheme did not achieve the remaining project objectives to the same extent as the winning scheme. The submitted competition schemes, therefore, made it clear that it was not possible to achieve the objectives of the powerhouse Parramatta project while retaining the heritage items.
The Minister submitted, in this context, that there was nothing in the evidence which pointed to a feasible design that would see the retention of "Willow Grove", given the project's objectives (paragraph 53 of the written submissions).
Finally, with respect to the extent of compliance, the Minister's written submissions said, at paragraph 59: 59 Substantial compliance must be determined in light of the purpose of environmental assessment, which is to alert the decision‑maker and the public to the inherent problems the proposal, to encourage public participation and to ensure that the decision‑maker takes a hard look at what is proposed [citations omitted]. There is no evidence at all that the Minister, as decision‑maker, was in any way mislead, misinformed or not fully informed by the EIS.

The Resident Action Group's submissions in reply

Mr Hale commenced by taking me to one of the objectives of the EPA Act, this being contained in s 1.3(j), a provision in the following terms: 1.3 Objects of Act The objects of this Act are as follows - … (j) to provide increased opportunity for community participation in environmental planning and assessment.
He proposed that it was appropriate to (Transcript 25 May 2021, page 33, lines 9 to 11): … construe the particular provisions of the regulations in a beneficial manner, which gives effect to increasing or involvement of the community rather than limiting the involvement of the community.
Mr Hale then returned to the question of construction of cl 7(1)(c). He confirmed it was common ground that that which was to be considered was the project on the proposed site. He submitted that the clause required analysis of the feasible alternatives to the carrying out of the proposed development, including a similar development but at a different location.
He expanded on this proposition by analogy with respect to a development application for a quarry, proposing that consideration of not carrying out such a development at a nominated site necessarily involved examination of feasible alternative sites. In this context, I set out the following exchange which I had with Mr Hale (Transcript 25 May 2021, page 34, lines 21 to 29): HIS HONOUR: Where it would not be satisfied by other sites that might be six hours' drive from delivering the sand. So do you accept that that is a necessary element of the qualification that I have to determine what the objectives are by having regard to the various documents in the present purposes, and then the test in 7(c) requires the having regard to those objectives. HALE: Well, for the reasons I'll come to, we would say no, because it comes to a matter of matter of construction, which comes to the second aspect of construction for which we contend.
Mr Hale submitted that, in this context, it was necessary to identify feasible alternatives (encompassing feasible alternative sites), as exemplified by the quarry analysis to which he took me. That, he said, was one that is (Transcript 25 May 2021, page 34, lines 45 to 48): And that, in a sense, is free of the consideration of the objectives, but when it comes to the analysis ‑ and that is the analysis for the purposes of the EIS, to inform the readers, to inform the decision maker ‑ those feasible alternatives will be analysed, having regard to the objectives.
He submitted that this process was necessary in order to permit the public (including objectors) to understand the rationale for the particular proposed development. He summarised the contrast between the case advanced on behalf of the Residents Action Group and the approach he submitted was taken for the Respondents as being one where the Respondents had, as their objective, to build the project on the identified site and that, having regard to this as the objective of the proposed development, was to conclude that that is the only feasible development having regard to that objective. This, he submitted, was the limiting nature of the construction for which the Respondents contended.
This approach, he proposed, was too constraining and would limit consideration of alternatives which might permit the retention of "Willow Grove". He submitted, returning to the example of the quarry, that it was necessary to look at how the SEARs should be regarded in light of the approach he advanced. He referred to cl 3(8) in Sch 2 to the Regulation. This provision is in the following terms: 3 Environmental assessment requirements … (8) The responsible person must ensure that an environmental impact statement complies with any environmental assessment requirements that have been provided in writing to the person in accordance with this clause.
He drew attention to the difference between the mandatory requirement of this provision when compared to the obligation which had arisen in Botany Bay when what was then required was merely "to have regard to" rather than the mandating of compliance. Mr Hale acknowledged that cl 7(1) was subject to the requirement in cl 7(2), but he submitted that the interrelationship between the general requirements of cl 7(1), in conjunction with the SEARs, was (Transcript 25 May 2021, page 36, lines 33 to 45): The difference of approach, in our submission, the way one reads the regulations is that the SEARs adds an element of consideration over and above that which appears in cl 7. It adds it in circumstances where the specifics of the particular development are known, at least in general terms, by the secretary and is adding additional matters particular to the particular development. The general requirements are in cl 7. The approach of the respondents, as we understand it, is that one reads the combined effect of cl 3(8) and cl 7(2) as enabling the SEARs to limit the approach or limit the operation of cl 7. We say it means that it expands the operation of cl 7 by requiring the responsible person to ensure that the EIS complies with those SEARs.
The consequence was that the analysis in the EIS, he submitted, required consideration of alternative designs, including those which could have retained "Willow Grove" on the site. This was necessary, he submitted, to ensure that there was proper availability of information to the community concerning all feasible alternatives. This encompassed, he submitted, not only potential developments on an alternative site, but also potential developments on the proposed site which would retain "Willow Grove". This also encompassed examining why it was said that the selected site was the most suitable and the project was the most suitable design. This had to be assessed in the context of an examination that would permit the community to submit that alternative sites were appropriate to be considered.
This element of his submissions was effectively summarised by him when he advanced the submission that (Transcript 25 May 2021, page 37, lines 34 to 45): …, there's no doubt that the propounded site is regarded by the proponent and, no doubt, the EIS as the preferred site and that needs to be the subject of consideration. A fundamental complaint is the level of generality with which the EIS addresses these matters. At such a high level of generality, it could hardly be regarded as analysis of the feasible alternatives if those alternatives are not identified in a way that people might understand and using the example of an alternative design, one would anticipate, if there was an alternative design which is regarded as not the most suitable but it was referred to in the EIS, one might imagine architects who might have something to say about that and say why the assumptions made are in error.
Mr Hale then turned to address what he submitted was the approach taken by the Respondents to that which had been set out in the decision in Prineas Court of Appeal.
In this regard, he took me to the passage in the decision of Hutley JA, at page 165, where his Honour wrote, relevantly: The obligation to state feasible alternatives is, at highest, an obligation to discuss what the proponent believes may be considered feasible alternatives. An issue can arise as to the bona fides of the belief, but apart from this, the EIS does not fail to comply under this head if particular alternatives conjured up by the opponents of the project have been ignored.
In this context, Mr Hale submitted that there were alternative sites to be considered and there was no basis to assume that none of these were feasible, including designs which could retain "Willow Grove". He said (Transcript 25 May 2021, page 38, lines 36 to 39): … there should be a design which in fact retains "Willow Grove". We're not here talking about fanciful alternatives. We are talking about alternatives which are at the very heart of the matter. The very heart of the controversy from the outset.
He submitted that, in light of the subsequent decisions in Timbarra and Davis, the relevant test should now be that the selection of feasible alternatives would not lie with the proponent but would be what "a reasonable person in the position of the proponent would have considered may be considered feasible" (Transcript 25 May 2021, page 39, lines 4 and 5).
Mr Hale then addressed the extent to which subsequent information supplementary to the EIS could be regarded as potentially curing any defects. In this regard, he returned to the decision of Lloyd J in Botany Bay, a decision in which his Honour set out the then applicable provisions concerning preparation of an EIS derived from the EPA Act and the Regulation.
Mr Hale took me through chronological elements of Exhibit 3, including the various response documents. He noted that it was possible that I might take the view that publication of the additional response material by the First Respondent, rather than by those responsible for preparing the EIS, might not be a breach of such severity that it would lead to the invalidity of the EIS. He expressly submitted that the additional documents did not form part of the EIS (Transcript 25 May 2021, page 42, lines 36 and 37).
Mr Hale then addressed the question of what should be the parameters for considering whether or not there had been substantial compliance, even if there had not been strict compliance.
Having addressed those matters of a structural nature concerning this decision‑making process, Mr Hale then turned to the facts concerning the project to which, he submitted, the decision‑making requirements should be applied. He pointed to the fact that the site had been identified as the appropriate site for the project and was acquired for this purpose by the NSW Government prior to the preparation of the EIS. He submitted that this explains why alternative sites were not considered and a decision was taken not to identify those alternative sites (Transcript 25 May 2021, page 44, lines 25 to 27).
He took me to further material in the EIS documentation which made it clear, he submitted, that there had been some consideration of alternative sites, but that this should have been provided for in the EIS but was not. He summarised the position, saying (Transcript 25 May 2021, page 44, line 46 to page 45, line 1): One of the points of distinction between the applicant's position and that of the respondents, the applicant says it is the basis of that assessment is required to be made under the regulations to come within the description of analysis of feasible sites, and it just wasn't there. That's so far as the alternative sites is concerned, probably the main difference in the arguments between us.
I then put the following proposition to Mr Hale (Transcript 25 May 2021, page 46, lines 2 to 7): Your position is that there were alternatives and they haven't dealt with them. Mr Lancaster and Mr Beazley's position, at least as I understand it, is that taking everything in its context, there was no such alternative and therefore, there was nothing that was mandated to be considered, even if there was a requirement to consider locations which they reject does not arise from cl 71(c).
Mr Hale responded to this by submitting that the evidence did not disclose that there were no feasible alternatives ‑ there were such alternatives considered, but the proponent had decided that, in its view, the site was the best and most appropriate one for the project. No proper explanation was provided, he said, for this position when such an explanation was required.
With respect to the six designs selected for further consideration, Mr Hale noted that one of them had proposed the retention of "Willow Grove". On this point, he submitted (Transcript 25 May 2021, page 46, lines 43 to 47): So, the high point we really get in relation to alternative designs is to say that one of the competitors sought the retention, but it was considered not to be as good as the others. So, it clearly was feasible, cannot be said that It wasn't feasible, and it should have been included.
It is appropriate to conclude this summary of Mr Hale's broad submissions in reply by setting out his concluding submissions prior to his turning briefly to the question of relief. His concluding submissions (Transcript 25 May 2021, page 47, lines 7 to 25) were in the following terms: So, for these reasons on such a significant issue, and this has always been the issue of the Powerhouse Parramatta, was there was no analysis, no adequate analysis which came within the requirements of cl 7. As we say from the outset, clearly enough, the complaint has never been about bringing the Powerhouse to Parramatta or that the Powerhouse Parramatta shouldn't be, be within Parramatta, it was always about the impact upon "Willow Grove" and the alternatives were always the two other of the issues of alternative site or alternatives design. We submit that this was a material breach and there was not substantial compliance and therefore there was a failure of the application to have the necessary accompanying document. It is submitted, well, even if there was a breach, the issue had always been ventilated, the department knew what it was doing, and therefore there was no material breach, but we simply do not know what the consequences would have been if there had been compliance and the alternatives were set out in the EIS in a way that enabled the intelligent person to appreciate what the alternatives were and be able to make submissions based up on why the alternatives should be preferred than the present, with that then what was proposed.
Mr Hale then turned, briefly, to the question of relief, a question which, as earlier noted, I had deferred for further submissions depending on the conclusion I reached in this phase of the proceedings.

Introduction

First, it is to be observed that, although a "do nothing" option is potentially engaged for consideration by cl 7(1)(c), the Residents Action Group has not suggested that it would not be appropriate for the NSW Government to construct a world‑class museum in Western Sydney, a museum associated with the Museum at Ultimo.
As earlier indicated, the Residents Action Group and the Respondents differ on several issues of construction as to how cl 7(1)(c) and the provisions of the SEARs work together and, as a result, how the obligations falling on those preparing the EIS for the proponent are framed. Only then does the question arise for consideration of how the evidence is to be understood in the particular relevant context. The issues requiring determination, in the context of these constructional differences, are: 1. Was the EIS required to assess potential alternative sites for the Powerhouse Parramatta facility; 2. If it was required, did the EIS comply, or substantially comply, with any obligation to consider alternative sites; 3. How is the obligation in cl 7(1)(c) requiring the EIS to conduct an "analysis of any feasible alternatives to the carrying out of the development … having regard to its objectives" to be understood; 4. In light of the answer to (3), did the EIS comply, or substantially comply, with the requirements of the clause and the SEARs working together in this regard; and 5. Depending on the answer to (4), what further steps required to be addressed in considering the timing for, and design of, the project unnecessary?

Is there an obligation to consider alternative sites?

It is clearly common ground between the parties that the EIS did not address alternative sites to that on the southern bank of the Parramatta River. This site had been selected by the NSW Government as the appropriate location for the construction of the Powerhouse Parramatta (whether in replacement for the current Powerhouse at Ultimo or, as now, a new museum to be operated in conjunction with retention of the Powerhouse at Ultimo being immaterial for present purposes) prior to the EIS process. What is in contest is whether, on the proper construction of cl 7(1)(c), there was a requirement that the EIS should examine possible alternative sites and, if such sites as might be discovered were ones feasible for the location of the Powerhouse Parramatta, why the selected site was appropriate to be preferred.
The necessary approach to, and restrictions on, undertaking this construction task can be set out succinctly.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute is to be ascertained by examining the context in which the language of those provisions is used and seeking to give effect to the purpose and language of the provisions.
Although, in Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9, the High Court explained that the notional incorporation of additional words, if necessary for a proper and coherent understanding of a statutory provision, was permissible, there is no such necessity here arising. Both these principles apply in this instance. However, I am satisfied that the language of cl 7(1)(c) does not warrant importing any expansionary or qualifying words.
I have earlier set out Mr Lancaster's submissions, at [164] and [165], [199] to [201] and [210], as to why he proposed that a proper understanding of cl 7(1)(c) could not encompass imposing an obligation on the proponent to consider alternative sites. Although put in a fashion which was, perhaps, a trifle expansive, his submissions are to be preferred to those of Mr Hale on this point.
Accepting, for present purposes only, that the nature of the project could be described, in broad terms, as being a world‑class museum to be established in Western Sydney as an adjunct to the Museum at Ultimo, even putting the project at that level of generality shows that the requirement to examine alternative sites for feasibility for such a project could only arise from a forced interpretation of the provision.
Unless there are refining criteria (set by the proponent) as the objectives for the project that are more narrowly focused, alternative sites which would require to be examined on the construction advanced by Mr Hale would potentially be numerous and involve significant time and cost in examining them across the significant area of Western Sydney (even if confined to those in some general but undefined proximity to the Parramatta CBD). This would arise in circumstances where the proponent's objectives for the proposal, given that those are set out in the EIS (at Exhibit A‑1, folio 15) and earlier reproduced, render such an assessment of alternative sites futile. As discussed in the next section of this decision, a section which contains discussion of the outcome that would necessarily follow if the potential for alternative sites was required to be assessed against the proponent's objectives for the proposed development, no potential alternative was available to be discerned.

The adequacy of the EIS in assessing alternative sites

If, contrary to the conclusion explained above, there was an obligation for the EIS to consider alternative sites, I now turn to consider whether, as a matter of fact in the present context, there were any such alternative sites.
I have earlier set out the objectives for the project as they are set out in the EIS. Only one of those objectives can be seen to be inconsistent with the retention of "Willow Grove" on the site, whilst others could play only some part in supporting the conclusion that the retention of "Willow Grove" was incompatible with those objectives. I put the proposition in this fashion because, as I understood what Mr Hale had advanced, the Resident Action Group's fundamental proposition was that the EIS, from the beginning, did not examine feasible alternatives consistent with the project's objectives which would have retained "Willow Grove" and that this prevented the EIS from being compliant or substantially compliant.
That failure from the beginning, Mr Hale had submitted, meant that the EIS process lacked a proper foundation, with the consequence being that it was a document not capable of supporting the Ministerial determination to grant development consent to the project in the form that was submitted to the Minister (together with all the supporting documentation) for approval.
In addressing this, consistent with the analogy to which Mr Hale took me concerning an EIS for a hypothetical quarry, it is necessary to define the parameters applicable for the project. Mr Hale's quarry analogy, operating at a high level of generality, would require consideration of locations defined by the availability of the necessary material resource and a requirement that the resource, when won, was able to be delivered to its consumers within a nominated time period. Further viewed in such a fashion, potential locations for Mr Hale's hypothetical quarry to be considered in the hypothetical EIS would be defined by identifying all locations where the relevant resource was located and then determining which of those locations fell within the nominated delivery‑time radius from potential customers. Finally viewed in that fashion, those preparing the EIS for the proponent of the hypothetical quarry would need to examine any alternatives to the proponent's identified site that met those two criteria.
Mr Hale's submission, by analogy, is that the equivalent criteria here applicable, as I understood him, were: 1. What was intended to be delivered was a world‑class museum facility; 2. It was to be delivered in Western Sydney; and 3. The location in western Sydney was required to be in some general proximity to the Parramatta CBD.
When viewed in this fashion, Mr Hale submitted that that those preparing the EIS for the proponent were obliged: 1. To consider other potentially available sites meeting these criteria; 2. To analyse such sites as well as the site chosen by the proponent; 3. To do so having regard to all the obligations mandated for such consideration in Sch 2 of the Regulation and all matters required in the SEARs operating as required by Sch 2(7)(2) with those more general requirements; and 4. To explain why each such alternative site was not appropriate to be selected.
Having summarised the position advanced for the Residents Action Group, it is now necessary to consider, in the context of the focus of the EIS for the project being confined to the selected site on the banks of the Parramatta River, whether the framework for site identification proposed by Mr Hale was the appropriate one in the present circumstances. In this context, two preliminary observations are appropriate to be made: 1. First, documents, other than the EIS document proper, can be incorporated by reference in that main document as being part of the EIS. This is as a consequence of the operation of cl 9(1) of Sch 2 to the Regulation, a provision in the following terms: 9 Documents forming part of environmental impact statements (1) Any document adopted or referred to by an environmental impact statement is taken to form part of the statement. 1. Second, a list of sites potentially meeting the high‑level site selection criteria proposed by Mr Hale was in evidence. The document in which the list appears (Appendix Q to the EIS) was a document incorporated into, and forming part of, the EIS by virtue of cl 9(1) of Sch 2.
The proponent had prepared a business case for submission to the NSW Government for the purpose of proposing broad design options for consideration for the Powerhouse Parramatta at the site which is the subject of these proceedings. A document entitled "Final Business Case Summary" has been tendered ‑ becoming Exhibit 4.
Although Exhibit 4 is a summary of the business case rather than the business case itself, the terms of the summary document are to be taken as being incorporated in the EIS itself. Although the business case proper is not in evidence, I am satisfied that I can infer, for purposes here relevant, that what is contained in Exhibit 4, although in summary form, accurately represents what was dealt with in the full business case. For that reason, I am satisfied that I can draw relevant conclusions for present purposes from what is contained in Exhibit 4 as representing what was incorporated by reference into the EIS.
The Business Case Summary was the first in time included by reference in the EIS in the fashion discussed above. This document is referred to in the text of the EIS at Exhibit A‑1, folio 10. It is to be noted that I was informed by Mr Beasley that Exhibit 4 had been published on the proponent's website. Although Mr Hale had, a little earlier than the time of that advice from Mr Beasley, expressed doubt that Exhibit 4 had been made available publicly, he did not challenge Mr Beasley's advice once it had been given.
The Final Business Case Summary describes its own provenance in the following terms (taken from page 2, the first page of text): About this report … The Business Case for the Powerhouse Museum in Western Sydney project was prepared between April and December 2017 by the Cultural Infrastructure Program Management Office (CIPMO) within the Arts, Screen and Culture Division of the NSW Government's Department of Planning and Environment. This Business Case Summary has been prepared by Infrastructure NSW, the NSW Government's independent infrastructure advisory agency.
There are four passages in Exhibit 4 which are relevant in the present site selection context.
The first of the passages describes the nature of the document and is on page 2 of the document. This passage is in the following terms: About this report This document summarises the Final Business Case (the Business Case) for the proposed relocation of the Powerhouse to Parramatta. The Powerhouse Museum in Western Sydney project ("the project") entails relocating the core functions of the Museum of Applied Arts and Sciences (MAAS) from Ultimo to the Riverbank site in Parramatta. It involves decommissioning the existing Museum and collection storage, and creating a new MAAS headquarters focused on STEAM (Science, Technology, Engineering, Arts and Mathematics) exhibits and new collection storage facilities at Castle Hill.
The second passage is also on page 2, under the heading "Summary", and is in the following terms (emphasis added): Summary High quality cultural facilities attract visitors to NSW, improve educational outcomes and help drive urban renewal and regional development. They can improve the quality of people's lives ‑ their education and the character of the communities and neighbourhoods in which they live. These factors informed the Government's strategic decision in 2015 to relocate the Powerhouse Museum to Parramatta. The transformation of Parramatta into Sydney's second CBD is central to the Government's vision for a Metropolis of Three Cities, and that vision depends significantly for its success on the provision of high quality social and cultural infrastructure. The relocated Powerhouse Museum is intended to be the anchor for arts and culture for Greater Parramatta and the Central City District more broadly. The Business Case takes as its starting point the Government's decision to locate the Powerhouse Museum on the Riverbank site in Parramatta. It then assesses three options for that Museum, each offering different levels of functionality and quantities of floor‑space.
The third passage is on page 4 and is under the heading "Problem description". It is in the following terms: Problem description … The Greater Sydney Region Plan Metropolis of 3 Cities identifies the relocated Museum as one of the key projects that will drive the transformation of Greater Parramatta. The Greater Sydney Commission's Central City District Plan states that "a new museum on the banks of Parramatta River will be the anchor for arts and culture for the District. It has potential to deliver world‑class opportunities for education and research, alongside exhibition space, and space for social and digital interaction and exchange.
The final passage is on page 6 and is under the heading "Powerhouse Museum in Western Sydney: project description". It is in the following terms (emphasis added): Powerhouse Museum in Western Sydney: project description … In line with Government policy, all three options for the Museum contemplated in the Business Case involve its being located on the Riverbank site in central Parramatta. The NSW Government has entered into a Heads of Agreement (HOA) with the City of Parramatta Council which secures the site for the Museum. The HOA sets out a framework for the cooperative development of the Parramatta River foreshore through the development not only of the Museum but through potentially significant works to the Riverside Theatres to create a vibrant cultural precinct.
Although the Business Case and the Final Business Case Summary are documents prepared during or after 2017 (but prior to the EIS process), they provide an appropriate historical basis for understanding the determination to select the site on the banks of the Parramatta River as the location for the Powerhouse Parramatta.
Although the above extracts from the Final Business Case Summary are reproduced in the order in which they appear in Exhibit 4, their relevance for present purposes commences with the passage from the document under the heading "Problem description", set out at Exhibit 4, page 4. This makes it clear that the planning context in which the NSW Government had selected the site here being considered arose from the broader strategic planning work undertaken by the Greater Sydney Commission. This work, as can be seen from the element highlighted from the "Problem description" extract, makes it clear that the new museum's site was to be one located on the banks of the Parramatta River.
The next relevant passage from the Final Business Case Summary document is that earlier set out second ‑ being under the heading "Summary". The emphasis in the second paragraph of that extract makes it clear, by necessary inference, that the NSW Government has adopted, as the appropriate policy foundation, the work described as having been undertaken by the Greater Sydney Commission. The second emphasised element of that extract makes it clear that the NSW Government's decision to locate the Powerhouse Parramatta was founded on this policy approach.
As a consequence, the selection criteria that led to the adoption by the NSW Government of the site can be stated, in a fashion equivalent to that earlier set out as derived from Mr Hale's quarry analogy, as being: 1. What was intended to be delivered was a world‑class museum facility; 2. The location for the museum had to be consistent with the Greater Sydney Commission's Central City District Plan for Parramatta; 3. The museum must be within Parramatta's CBD; and 4. The museum must be on the banks of the Parramatta River.
No potentially feasible alternative site has been identified by the Residents Action Group that would satisfy these criteria and thus, on its case, as being necessary to be examined during the EIS process.
There is no other evidence in these proceedings that would point to any such other potentially feasible alternative site that satisfied the criteria founded on the strategic planning work undertaken by the Greater Sydney Commission.
The consequence of this is that, in light of the relevant site specification criteria, the potential scope for site selection was limited solely to the site which is the subject of the EIS.
If there was a mandated requirement on those preparing the EIS on behalf of the proponent to consider alternative sites, I am satisfied that this obligation was met because there were no such alternative sites, as a matter of fact, for the reasons explained above. As a consequence, the EIS complied, or substantially complied, with what was required to be addressed by it in this regard.
In addition, although not necessary for consideration at the point of determining whether the EIS itself properly satisfied the necessary tests to be regarded as a valid EIS, it is appropriate to note that the consultation process undertaken after site selection had been made did result in a number of public submissions proposing alternative sites, with the proponent providing a response to those alternative sites. An example of this material, material referred to in the proponent's written submissions at paragraphs 56 and 59, can be seen in the Consultation Summary Report of May 2020 (Exhibit A‑5, folio 2034). This material formed part of the material provided to the Minister for the purposes of his making his determination decision.

Are there feasible design alternatives to the selected design in the context of cl 7(1)(c) and the SEARs working together?

Introduction

As can be seen from my summary of the submissions made by Mr Hale on behalf of the Residents Action Group, the primary complaint made is that the EIS did not address, in what was submitted to be the necessary and compliant form, the option of retaining "Willow Grove" on site, whilst otherwise achieving the proponent's objectives set for the establishment of the Powerhouse Parramatta on the site.
In this context, it is appropriate to set out again the terms of cl 7(1)(c) and the two relevant elements of Section 3 of the SEARs. The first of these is: 7 Content of environmental impact statement (1) An environmental impact statement must also include each of the following - (a) … (b) … (c) an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure,
The relevant elements of Section 3 of the SEARs were: 3. Built form, heritage and urban design The EIS shall: ● outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained Willow Grove and the St George's Terrace ● … ● give specific consideration to the overall site layout, open spaces, interface with the public domain (including River Square, Civic Link and River foreshore), through site links, laneways, street interfaces, facades, massing, setbacks, building articulation, solar access and overshadowing, materials, colours, signage or signage envelopes
For present purposes, given that I have earlier explained why, as a matter of proper construction, alternative sites were not required to be considered and, if I was incorrect and they were required to be considered, there were no such alternative sites, this stage of my consideration is necessarily confined to the chosen design for the project on the site on the southern bank of the Parramatta River immediately adjacent to the Parramatta CBD and whether there were feasible alternative designs having regard to the proponent's objectives for the project.
For this purpose, cl 7(1)(c) is to be read as requiring an examination of feasible alternative designs to the extent that this might be qualified by Section 3 of the SEARs (by virtue of the operation of cl 7(2) of the schedule).
In this context, it is clear that its objectives for the purposes of understanding what is required by cl 7(1)(c) are the proponent's objectives for the proposed development. I will to turn, shortly, to consideration of those objectives.
However, it is also appropriate to note that, within the confines of this consideration concerning the development of the Powerhouse Parramatta on the site, the complaint made by the Residents Action Group and the submissions by Mr Hale in explanation of, and giving support to, this complaint related to the initial position of the EIS to propose the demolition of "Willow Grove" and not the subsequent evolution of the proposed project as approved, being to deconstruct "Willow Grove" and to re‑erect on an alternative location (one yet to be selected). However, Residents Action Group does not accept that this is a acceptable resolution of its concerns. The Residents Action Group's complaint focused on what was said to be the inadequacy of examining feasible alternatives which would retain "Willow Grove" on the site yet achieve the proponent's objectives for the proposed development.
In this context, as I understood the position advanced by Mr Hale, the defects in the original EIS were such that whatever followed thereafter was defective. In summary, if the original EIS process was fatally flawed, those flaws could not be cured by any subsequent parts of the process leading to the Minister's decision to grant development consent to the project.
I have earlier summarised what Mr Hale submitted was the necessary legal matrix within which such an analysis must be undertaken.

Discerning the objectives conflicting with the retention of "Willow Grove"

I note, at the outset, that, at one point, Mr Hale observed that what required to be considered for these purposes was whether or not all or part of "Willow Grove" could have been retained on the site. However, as can be seen from the plan reproduced at [30], the location of the proposed two major buildings on the site, together with the element of the Civic Link connecting Phillip Street to the proposed public plaza and to the southern bank of the Parramatta River, would render any partial retention impossible in the context of the design for the project selected by the jury and the subject of the EIS.
The SEARs also included, in Section 4, the requirement that: The EIS shall demonstrate how the proposal: ● will be designed and staged to integrate with the future development of surrounding sites and with the wider redevelopment of Parramatta, including Civic Link, River Square, River foreshore and the future laneway to Church Street ● will address public accessibility, connectivity and major events at Civic Link, River Square and the River foreshore. ● addresses amenity impacts, visual and view impacts, servicing and loading arrangements, pedestrian connectivity and activation of public spaces (Exhibit A‑1, folio 182).
In the main body of the EIS, at "6.2.2 Post Settlement Heritage", the EIS noted the importance of the Civic Link, saying: The site for the Powerhouse Parramatta was selected because of its unique location occupying a central and prominent area of foreshore in the Parramatta River at the northern edge of the CBD, positioned as the terminus of the Civic Link.
As Mr Lancaster noted, this section then says, relevantly, at folio 93: The submitted concept designs made clear that it was not possible to deliver on the design ambitions of the brief and deliver connectivity, whilst also retaining local heritage items.
I have also noted earlier Mr Lancaster's drawing to my attention elements of the EIS under the heading "Public Interest". The second and third of those bullet‑points cited the Civic Link as being an element supporting the public interest under the heading "Benefits of the project".
In the course of taking me through the EIS proper, Mr Lancaster concluded by referring to "9.0 Conclusions and justification". He noted that he had emphasised connectivity. In this context, it is appropriate to quote the first of the reasons set out as justifying the project. This was in the following terms (Exhibit A‑1, folio 143): The proposed development is suitable for the site that is ideally located within the Parramatta CBD and has excellent access to existing and planned public transport connections, connections to other cultural and arts and civic institutions within a wider precinct, and is at the focal point of a number of key urban connections including the future Civic Link.
The EIS' Appendix B is entitled "Architectural Plans and Design Report". Appendix B's introduction, under the heading "Design Outcome", commences, relevantly, with the following (Exhibit A‑1, folio 265): The key urban relationships driving the site are its relationship with the City and Parramatta River, laneway connections and its integration with the surrounding public domain. The design outcome celebrates its urban condition and embraces its natural context. The public domain within and surrounding Powerhouse Parramatta is designed to enhance connectivity through porosity. There are primary circulation axes north‑south created by the continuation of the Civic Link to the water's edge of the Parramatta River.
This element of the "Design Outcome" section then describes the Civic Link as being: … the continuation of the city's vision for a continuous pedestrian path from the heart of the city to the water's edge which is preserved and enhanced through a Civic Portal framing views from the city towards the nature of Parramatta River.
The Architectural Design Report then has, at folio 269, a short section and an illustrative plan under the heading "RELATIONSHIP TO THE CITY AND THE RIVER". The section reads: The building and its public domain will facilitate a stronger connection between the city and Parramatta River through the creation of a key cultural destination at the riverine end of the proposed Civic Link. The site forms the northern anchor to the future Civic Link, which traverses the Parramatta CBD from Parramatta Square and Railway Station through the future retail pedestrianised strip. The positioning of the site on the banks of the Parramatta River and at the northern fringe of Parramatta conclude the proposed Civic Link at the site of Powerhouse Parramatta linking Parramatta Square with the riverfront.
The diagram showing the path of the Civic Link (from folio 269) is reproduced below:
At folio 275, under the heading "Public Domain", there is a discussion, inter alia, under the heading "PEDESTRIAN CONNECTIVITY". With respect to the Civic Link, the Design Report says under this heading: The Civic Link is a north‑south pedestrian link, located between Church Street and Wilde Avenue along the alignment of Horwood Place. It provides the future primary access route between Parramatta Train Station and Powerhouse Parramatta and establishes a strong, physical, visual and symbolic connection between the city and Parramatta River. The Civic Link is the heart of the precinct, the transition between the urban grain of the city and the engagement of Parramatta River.
A schematic diagram (folio 275) shows how this is to work (with the Civic Link between the footprints of the two major built elements of the project). This diagram is reproduced below.
Under the heading "Urban Integration", the Design Report says, relevantly, at folio 277, under the heading "Long Term Civic Integration": Upon completion, Powerhouse Parramatta will integrate into the surrounding public domain with a number of additions to the ecosystem of Parramatta's public space network. These include: Civic Link The north south Civic Link runs through the heart of the site, meeting with the Parramatta River, and will serve as the primary pedestrian connection between Powerhouse Parramatta and Parramatta train station to the south. The primary circulation is consolidated and located alongside the eastern façade of the Western building. Powerhouse Parramatta has a highly legible and visible public circulation that connects directly with Civic Link. City of Parramatta's Civic Link is defined in the Civic Link Framework Plan 2017 as a green, pedestrianised public space and cultural spine that connects public life in the heart of Parramatta CBD through the site to the Parramatta River. The link is anchored at both ends by Parramatta Square (and train station) and the site (and Parramatta River) and is divided into 5 unique character areas. The Civic Link extends across four city blocks in the heart of the Parramatta CBD.
Appendix D, in the table headed "Demonstration of design excellence", addressed the topic of how the development approaches pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network. The table said, relevantly: Powerhouse Parramatta is tightly interwoven with the existing network of pedestrian routes. Pedestrian connections into the site will be further reinforced once the Civic Link and the Riverfront approach are developed in line with the Parramatta CBD Pedestrian Strategy 2017 and other corresponding frameworks.
It is to be noted that the competition brief specifically drew together, by inference, the potential incompatibility of the retention of "Willow Grove" and establishment of the Civic Link saying (Exhibit A‑2, folio 599): To enable the best museum outcome and support the Civic Link, we are requesting that all submissions consider the removal of "Willow Grove" should it be required.
Appendix F to the EIS is the Transport Impact Assessment. It is in Exhibit A‑2, at folio 669 to 746. None of the advocates made reference to this document.
However, the Transport Impact Assessment contains a section explaining the importance of the Civic Link for the Powerhouse Parramatta project. This appears at folio 712 under the heading "5.3 Pedestrians". It is in the following terms: The majority of pedestrians are expected to enter the Powerhouse Parramatta site from the south by the entry point on Philip Street opposite Horwood Place. This access point will form part of the future pedestrian connection known as Civic Link ‑ a green, pedestrianised public space that provides a direct connection from Parramatta transport interchange through to the Parramatta River (to be delivered by City of Parramatta Council). The link will ultimately be approximately 490 m long running along the existing Horwood Place alignment and connecting the Powerhouse Parramatta with key sites in the Parramatta CBD such as Parramatta Square, the future Metro station as well as the existing transport interchange. This project will significantly improve pedestrian access to the Powerhouse Parramatta. The design of the Powerhouse Parramatta makes provision for the Civic Link connection by providing a 12 m wide pedestrianised space between the eastern and western buildings of the site. This will align with a relocated pedestrian (zebra) crossing on Philip Street, which will facilitate safe access for pedestrians travelling along Civic Link into the Powerhouse Parramatta.
I have earlier noted that Mr Lancaster drew attention to the second bullet‑point under the heading "Site conditions" at folio 31 of the RtS Report. This bullet‑point is in the following terms: The Civic Link identified by Council in 2017, which foresees converting Horwood place to a landscape pedestrian and cycle only link, which will ultimately connect through to Parramatta Square and Parramatta Railway Station. This major pedestrian thoroughfare is expected to accommodate significant pedestrian and cycling traffic, and directly aligns with Willow Grove. This link presents a significant opportunity for the site and greater Parramatta through providing an important connection from the centre of the Parramatta CBD to the Parramatta River, with the site acting as the northern anchor and complementing Parramatta Square at the commencement of the link.
The statement that the Civic Link "directly aligns with Willow Grove" is the closest in all the material which I have read comes to expressly setting out the incompatibility of the Civic Link with the retention of "Willow Grove".
In this context, I had an exchange with Mr Lancaster concerning the diagram appearing at folio 32 in the RtS Report. This diagram is one showing the location of "Willow Grove" and the footprint of the two major buildings proposed for the site (a more easily reproduced plan to the same effect is at [30]). My exchange with Mr Lancaster on how this diagram should be understood in the context of the relationship between "Willow Grove" and the Civic Link as discussed above, was in the following terms (Transcript 25 May 2021, page 11, line 29 to page 12, line 28): HIS HONOUR: If we move from 32 and take you to the diagram in the middle of the page, it's a little different to understand given that the building at least as I read it, the building that you have described as being parallel to Parramatta River appears to still overlay part of St George's Terrace in the bottom right‑hand corner, if I understand it properly. LANCASTER: Yes. HIS HONOUR: But that's not the point that I take you to ‑ do I understand correctly that where the above‑ground linkage is shown between the two buildings that the grey shading immediately underneath it is Willow Grove? LANCASTER: I think it does tend to indicate that, your Honour, but the approved plans give a more specific and in my submission the most accurate identification of where the footprint of Willow Grove is compared to the approved building and as I invited your Honour to‑‑ HIS HONOUR: Well, that's not what I was going to take to. I've now lost the word that I ‑ in the second dot point in p 31, in the second sentence, commences, "This major pedestrian thoroughfare", I'm assuming that the use of the words "aligns with Willow Grove" is what is represented on 32 going through the grey shaded area which is what I assumed whether precisely accurately or not depicts Willow Grove in the middle of that pedestrian throughfares. Is that a correct understanding of what - how I am said to read this document? LANCASTER: Yes, your Honour. The references to Civic Link that I've been taking your Honour to, it - it - it - HIS HONOUR: Yes, I understand that but - LANCASTER: Well, it's a link that goes directly over the floor area. HIS HONOUR: Floor plate of Willow Grove. And that is what - that is how I am to read the word "aligns" in the bullet‑point to which I've taken you? LANCASTER: Yes, passes over the footprint of - yes. HIS HONOUR: That's all right. I'm just wanting to make sure I understand what precisely what it is you're saying to moe and not to be taken that I'm agreeing with it - LANCASTER: No, your Honour, no. HIS HONOUR: ‑‑merely that I'm understanding it obviously at this time in the proceedings. LANCASTER: Yes. No, your Honour should take it that all my references to Civic Link includes a pedestrian thoroughfare that is inconsistent with the maintenance of Willow Grove in place.
It is clear from this, and from all the other material which I set out in this analysis, that retention of "Willow Grove" is simply completely incompatible with the construction of the northern portion of the Civic Link through the site - the Civic Link's construction being a fundamental element of the proponent's objectives for the project.
There are numerous further mentions of the Civic Link and the desirability of pedestrian connectivity in documentation in evidence as part of or supporting the EIS.
I have earlier set out material to which Mr Lancaster had adverted during the course of his submissions, where the emphasis was placed in various elements of the documents on connectivity through the site as part of the linkages to the Parramatta River.
I do not consider it necessary to extract every further reference to the Civic Link and to the functional importance of the northern element of the Civic Link in creating connectivity through the site. It is clear from the multitude of references that are made to this, in addition to the specific (and sufficient for present purposes) matters which I have set out above, that it is to be concluded that the incorporation of a continuous, linear pedestrian pathway from the proposed Parramatta Civic Square to the Parramatta River, in the fashion depicted in the diagram reproduced above at [310], is a fundamental element necessary to be implemented to achieve the fifth objective for the development set out at folio 15 of Exhibit A‑1 in the EIS proper. This objective is appropriate to be repeated: Create 24/7 pedestrian movement from Phillip Street through to the Parramatta River foreshore. As part of this, a centralised circulation corridor is to be emphasised for intuitive wayfinding and visual activation at the termination of Parramatta's Civic Link.
All of the above material which I have extracted (together with other references to the Civic Link and to pedestrian connectivity through the site) make the importance of this direct north‑south linear corridor, including the portion through the site, clearly to be seen as being an essential design element for the future of the Parramatta CBD.
Unfortunately, as shown early on in this decision, on the plan at [30], virtually the entirety of the built form of "Willow Grove" stands directly across the location of the north‑south running Civic Link. "Willow Grove" therefore stands as a physical barrier to the achievement of this objective for Powerhouse Parramatta. As a consequence, this means that there is no feasible alternative which would permit retention of "Willow Grove", having regard to the objectives of the project.
This means that, for the purposes of the language of cl 7(1)(c), retention of "Willow Grove" is not a feasible alternative, having regard to the proponent's objectives for the project.
To the extent that the SEARs influence how the cl 7(1)(c) consideration is to be undertaken, Section 4 of the SEARs, earlier quoted, emphasises the consideration required to be given to the Civic Link and, by virtue of cl 7(2), this adds emphasis to the matters which I have extracted that demonstrate the importance of the Civic Link element as the reason why retention of "Willow Grove" could not be regarded as a feasible alternative, having regard to the proponent's objectives of the project.
Although it is to be acknowledged that "Willow Grove" has not been expressly discussed in the context of the Civic Link, the design incompatibility of "Willow Grove" with the Civic Link, given the location of "Willow Grove", straddling and blocking portion of the Civic Link's route, meant that there was no necessity to examine the retention of "Willow Grove" as a potential feasible alternative to be incorporated in the design, given its incompatibility with the significance of the Civic Link element (an element not confined to the site but, in future, to extend across the entirety of the Parramatta CBD).
I have explained why the EIS and the relevant incorporated documents demonstrate that there are no feasible alternative designs for the project which would permit the retention of "Willow Grove" on the site, whilst achieving the objectives for the proposal set by the proponent.
However, drawing that conclusion is not the end of the matter. It is still necessary to consider whether, taken overall, the EIS satisfies the second proposition in Schaffer, at page 31, that: 2. The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council (at 278)).
I have set out material from the Design Report which makes it clear that the conclusion that there was no feasible alternative consistent with the proponent's objectives which would permit the retention of "Willow Grove" on the site. That material was not isolated documentation in a single appendix to the EIS. The multitude of references to the Civic Link and/or connectivity elements of the proposed design enables an understanding of the importance of providing the completion of the Civic Link as the primary element of connectivity through the site to the southern bank of the Parramatta River as an essential (and not discretionary) element of the proponent's objectives for the project.
There is sufficient discussion in the EIS itself, in the discussion of the three options (Exhibit A‑1, folios 15 and 16) to provide an appropriate cue to the importance of the Civic Link completion through the site and/or broader issues of connectivity. These cues are sufficient, I am satisfied, to alert those reading the EIS during its period of public display (and the Minister as the decision‑maker) of the importance of this objective and how it was to be fulfilled. Alerting readers to this aspect of the proponent's objectives for the project in the fashion provided in the EIS and its supporting incorporated documents sufficiently alerts a reader to the issue. The multitude of further elements in the EIS and its incorporated documents, starting in time with Exhibit 4, provide, when taken together, a comprehensive and easily understandable exposition of why retention of "Willow Grove" was an impossibility.
However, there is nothing in any of the material to which I have been taken, or from my own examination of other material in the evidence concerning the Civic Link and/or connectivity commentary, which expressly and bluntly puts the proposition that it is necessary to remove "Willow Grove" from the site because it is incompatible with the Civic Link and, thus, with the proponent's objective of connectivity through the site to the southern bank of the Parramatta River.
Whilst, perhaps, such an express statement might have been desirable to be included, its absence does not stand as a barrier to concluding that the EIS substantially complies in the areas about which the Residents Action Group makes complaint.

Conclusion

My conclusions, as can be seen at the appropriate points in this lengthy decision, can be summarised as follows:

there was no obligation imposed on the proponent by cl 7(1)(c) of Sch 2 of the Regulation to investigate alternative sites for the Powerhouse Parramatta; and
however, if I am wrong in reaching this conclusion, there was no feasible alternative site consistent with the proponent's objectives for the project; and
a proper consideration of the proponent's objectives for the Powerhouse Parramatta project makes it clear that the extension of the Civic Link through the site made removal of "Willow Grove" necessary. As a consequence, there was no feasible alternative design for the project which could have retained "Willow Grove" on the site, having regard to the proponent's objectives for the project.

With respect to this final element of my conclusions, although there is no express statement setting out the necessity for removal of "Willow Grove" in explicit terms, I am satisfied that the material contained in the EIS, and its incorporated supporting documents, addresses this matter with sufficient particularity that I can conclude that the EIS substantially complies with all relevant requirements for it and that, therefore, the Residents Action Group's challenge to the EIS must fail.

Costs

As a consequence of the constrained time available for the hearing of the substantive issues in contention (because of the necessity for there to be a timely determination of those substantive issues), the question of costs of the proceedings was not addressed during the hearing, thus making it appropriate that costs be reserved.

Orders

The orders of the Court, therefore, are: 1. The Amended Summons is dismissed; 2. Costs are reserved; and 3. The exhibits are returned.

Annexure A Exhibit A Environmental Impact Statement Exhibit A1 (formerly SM1 - Volume 1 of 6) Appendix A - Secretary's Environmental Assessment Requirements - page 179 Appendix AA - Crime Prevention Through Environmental Design Report - page 191 Appendix B - Architectural Plans and Design Report - page 217 Appendix B - Architectural Design Report page 259 Appendix BB - Operational Waste Management Plan - page 291 Appendix C - Landscape Architectural Plans (low res) - page 327 Appendix C - Landscape Architectural Plans - page 335 Appendix C - Landscape Architectural Design Report - page 343 Exhibit A2 (formerly known as SM1 - Volume 2 of 6) Appendix CC - Access Review - page 413 Appendix D - Design Excellence Report - page 435 Appendix DD - Fire Engineering Statement - page 661 Appendix E - Site Survey - page 663 Appendix EE - Structural Statement - page 665 Appendix F - Transport Impact Assessment - page 669 Appendix FF - Signage Assessment - page 747 Appendix G - Statement of Heritage Impact - page 753 Appendix GG - Building Code of Australia Assessment page 857 Exhibit A3 (formerly known as SM1 - Volume 3 of 6) 1 Appendix H - Aboriginal Cultural Heritage Assessment Report - page 867 1-2666 Appendix I - Archaeological Research Design - page 993 Appendix J - Arboricultural Impact Assessment - page 1111 Appendix K - Biodiversity Development Assessment Report Waiver Request - page 1147 Exhibit A4 (formerly known as SM1 - Volume 4 of 6) Appendix L - Detailed Site Investigation - page 1227 Appendix M - Remedial Action Plan - page 1587 Appendix N - Acid Sulphate Soil Management Plan - page 1659 Exhibit A5 (formerly known as SM1 - Volume 5 of 6) Appendix O - Flood Risk and Stormwater Management Report - page 1695 Appendix P - Infrastructure Services Strategy - page 1841 Appendix Q - Stakeholder Consultation Report - page 2015 Appendix R - Preliminary Construction Management Plan - page 2077 Appendix S - Geotechnical Desktop Assessment - page 2125 Exhibit A6 (formerly known as SM1 - Volume 6 of 6) Appendix T - Air Quality Impact Assessment - page 2175 Appendix U - Ecologically Sustainable Development Report - page 2201 Appendix V - Visual and View Impact Assessment - page 2219 Appendix W - Wind Impact Assessment - page 2389 Appendix X - Reflectivity Report - page 2423 Appendix Y - Social and Economic Impact Assessment - page 2453 Appendix Z - Noise and Vibration Impact Assessment - page 2561

Exhibit B1: (formerly known as "SM2" - Volume 1 of 2) 1 Letter to Tom Kennedy, Infrastructure NSW dated 31 July 2020 1-2 Tab 1 - page 1 Powerhouse Parramatta - Response to Submissions Report Tab 2 - page 3 Appendix A - Detailed Response to Agency Submissions and Department of Planning, Infrastructure and Environment letter - page 61 Appendix B - Revised Architectural Plans and Design Report - page 117 Appendix C - Revised landscape plans and Design Report - page 173 Appendix D - Addendum Consultation Outcomes Report - page 201 Appendix E - Design Integrity Report - page 261 Appendix F - Addendum Statement of Heritage Impact - page 273 Appendix G - Heritage Interpretation Strategy - page 295 Exhibit B2: (formerly known as "SM2" - Volume 2 of 2 Appendix H - Addendum Historical Archaeological Impact Assessment Report - page 329 3-664 2 Appendix I - Addendum Aboriginal Cultural Heritage Assessment Report - page 355 Appendix J - Flood Risk and Stormwater Management Addendum - page 379 Appendix K - Revised Transport Assessment - page 519 Appendix L - Addendum Reflectivity Assessment - page 603 Appendix M - Addendum View and Visual Impact Assessment - page 607 Appendix N - Addendum Structural Engineering Statement - page 611 Appendix O - Revised ESD Statement - page 615 Appendix P - Addendum CPTED Assessment - page 635 Appendix Q - Addendum Noise and Vibration Assessment - page 655 Appendix R - Addendum Accessibility Statement - page 659 Appendix S - Revised BDAR Waiver - page 661

Exhibit C: (formerly known as "SM3" - Volume 1 of 1) 1 Notice of Decision - Tab 1 - page 1 1-6 2 Notice of State Significant Development Determination dated 11 February 2021 - Tab 2 - page 7 7-8 3 State Significant Development Assessment - February 2011 - Tab 3 - page 9 9-122 4 Development Consent Tab 4 - page 123 123-156 5 Letter to NSW Planning, Industry & Environment dated 8 February 2021 - Independent Flooding Assessment - Tab 5 - page 157 157-226

Exhibit D: (formerly known as "Volume 6") 1 Objection from Federal Member for Parramatta - Tab 1 - page 1-6 1-6 2 Objection from National Trust, head office - Tab 2 - page 7-16 7-16 3 Objection from National Trust, Parramatta office - Tab 3 - page 17-22 17-22 4 Objection from Powerhouse Museum Alliance Tab 4 page 23-74 23-74 5 Objection from Kylie Winkworth 63-74 6 Objection from National Trust, head office, dated 21 July 2020 75-95 7 Objection from National Trust, Parramatta Regional Branch, undated 96-105

Exhibit 1 (formerly known as volume 4 or SM4) 1 Request for SEARS (excluding Attachment A comprising plans and sections, elevations and elevation north) - Tab 1 - page 1-14 1-13 2 App Q - Stakeholder Consultation Report - Tab 2 - page 15-75 14-75 3 Letter from DPIE to Infrastructure NSW, dated 27 November 2020 - Tab 3 - page 76 76 4 Letter from DPIE to Infrastructure NSW, dated 21 December 2020 - Tab 4 - page 77-79 77-79 5 RFI 2 - Response to further submissions, dated 27 November 2020 - Tab 5 - page 80-105 80-105 6 RF3 - Jan 19 Letter Response (including Attachments 1 and 2 up to page 78 inclusive, excluding Attachments 3 to 5) - Tab 6 - page 106-187 106-187 7 RFI3 - Letter Response 20 January 2021 (excluding attachment) - Tab 7 - page188-192 188-192 8 Letter from Ethos Urban to DPIE, dated 2 November 2020 - Tab 8 - page 193-200 193-200

Exhibit 2 (formerly known as volume 5 or SM5) 1 Exhibit to Affidavit of Tom Gellibrand 1-881 2 Affidavit of Tom Gellibrand, sworn 6 May 2021- Tab 1 - page 1-21 - marked as read 1-21 3 Affidavit of Lisa Havilah, affirmed 7 May 2021 - Tab 2 - page 905-914 - marked as read 903-914

Exhibit 3 1 Statement of Facts (Court Book) 109-112

Exhibit 21 1 Letter from DPIE to Infrastructure NSW dated 19 August 2020

I certify that this and the ?? preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Moore. ………….………………………………. Associate 16 June 2021 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2021

Environment Assessment and Planning Act 1979(NSW)

(2006) 148 LGERA 251

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