Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20
The Minister for Planning (the Minister) has granted development consent to a concept development application including Stage 1 demolition of the Sydney Football Stadium (SFS). The application was determined as State significant development.
The application authorised the demolition of the existing stadium and ancillary buildings down to the slab.
Both Local Democracy Matters Incorporated (Local Democracy Matters) and Waverley Council sought to have the decision to demolish the SFS overturned.
Local Democracy Matters was incorporated in early 2017 to residents’ concerns over the proposed amalgamations of local councils and issues of democracy and participation more generally. Local Democracy Matters bought the proceedings because it was concerned about the visual impact from a significantly larger stadium aend because of the loss of open space and amenity.
They also thought that the demolition of a 45,000 seat stadium to make way for a new 45,000 seat stadium at a cost of $674 million lacked merit.
Waverley Council brought the proceeding because concerns regarding the impacts of the proposal on open space, local traffic congestion, public transport capacity and long term effect on public land.
The challenges were brought as separate judicial review proceedings but were considered in on judgement.
The matters were expedited because the demolition of the SFS was underway. The Court had previously granted an injunction preventing the ‘hard demolition’ of the SFS until the outcome of the decision.
The matters were heard before Her Honour Justice Nicola Pain of the Land and Environment Court of New South Wales.
There were three grounds of challenge:
Failure to exhibit the development application for 30 days
The proposal was exhibited for 28 days between 14 June and 11 July 2018. Local Democracy Matters argued that the minimum submission period fixed by clause 83 (since repealed) of the Environmental Planning and Assessment Regulation 2000 required a minimum submission period of 30 days.
Clause 83 was repealed on 1 March 2018.
Local Democracy Matters argued that despite its repeal the provision setting the minimum submission period continued to apply and that the failure to exhibit for at least 30 days invalidated the consent.
The Minister submitted that from 1 March 2018 the minimum exhibition period was 28 days.
Her Honour held that relevant period was 28 days, so the relevant ground was not established.
Failure to consider the mandatory requirements relating to design excellence
The development application was a concept development application which set out concept proposals for the development of the site and Stage 1 being the demolition of the existing stadium and ancillary buildings down to the slab.
Local Democracy Matters argued that in determining the concept development application the Minister failed to consider clause 6.21 (Design excellence) of Sydney Local Environmental Plan 2012 (S LEP).
Local Democracy Matters argued that clause 6.21(3) required the Minister to form the opinion that the proposed development exhibits design excellence having regard to the matters set out in clause 6.21(4) of the S LEP and that by failing to form that opinion the Minister had no power to grant consent to the development application.
The Council also argued that the approach adopted was the development will exhibit design excellence in the future and that was not what was required by either the S LEP or the provisions of section 4.22 of the Environmental Planning and Assessment Act 1979 which deal with concept development applications.
In response the Minister argued that the Minister did form the requisite opinion about design excellence required by clause 6.21(3) and that is for the applicant who bears the onus of proof in demonstrating on the balance of probabilities that the Minister failed to reach the requisite state of satisfaction.
Her Honour found that even though there was no express statement concerning the formation of an opinion of satisfaction about design excellence required by clause 6.21(3) the evidence before the decision-maker meant that the applicant did not discharge the onus of proving that the Minister had not formed such an opinion.
In response to the argument that the Minister had deferred consideration of design excellence to a future stage, Her Honour found that the conditions imposed which required the holding of a competitive design process and that any future stages must demonstrate design excellence, did not support that argument.
On those basis the relevant ground was not established.
Failure to comply with the requirements of SEPP 55
Clause 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) requires that consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated and that if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
Local Democracy Matters argued that the Minster was not, or could not reasonably be satisfied that the subject land would be suitable for the intended use. That the Minister had failed to consider the findings of a preliminary investigation and that having formed the view that a preliminary investigation warranted a detailed investigation, failed to require the applicant to carry out a detailed investigation as referred to in the Guidelines under the SEPP.
The preliminary site investigation which accompanied the development application concluded that the on the basis of investigations the risk of significant contamination being present what would prevent the redevelopment of the site without significant remediation was low. Based on advice the Department of Planning and Environment recommended that further site investigations be undertaken prior to the lodgement of the Stage 2 DA. If required the Stage 2 DA must be accompanied by detailed environmental site investigations and a phase 2 environmental assessment report.
The Minister argued that in the context of concept development application the relevant provisions of SEPP 55 did not apply, beyond the obligation to consider them in the context of the Stage 1 works.
The Minister also argued that he did consider all the relevant matters and form the requisite opinions required by SEPP 55.
Her Honour found that the requirements of SEPP 55 need to be understood in the context of the particular development application, in this case a concept development application.
The only development that the application authorised was the demolition of the existing buildings down to the slab. Future development to enable the land to be used for a major recreation facility and ancillary uses will need to be assessed in those subsequent applications.
It was open to the Minster to adopt the assessment having regard to the preliminary site investigation and the Stage 1 works. For that reason the relevant ground was not established.
For those reasons the challenge failed before the Land and Environment Court. Local Democracy Matters subsequently appealed the decision of the Land and Environment Court to the Court of Appeal. The matter was dealt with as an expedited matter. Ultimately the Court of Appeal dismissed the appeal paving the way for the demolition of the SFS.
At the time of publication the Court of Appeal’s reasons for decision were not available.
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