Local Democracy Matters Incorporated v Infrastructure NSW - [2019] NSWCA 65

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Local Democracy Matters Incorporated v Infrastructure NSW [2019] NSWCA 65
Hearing dates: 15 March 2019
Date of orders: 15 March 2019
Decision date: 12 April 2019
Before: Leeming JA, Sackville AJA, Emmett AJA
Decision:
1.   Direct the parties to file agreed short minutes of order as to costs within 14 days.
2.   If the parties cannot agree, direct the respondents to file their proposed short minutes of order as to costs within 14 days, supported by brief written submissions.
3.   Direct LDM to file its proposed short minutes of order as to costs within a further seven days, supported by brief written submissions.
4.   Direct the respondents to file any brief written submissions in reply within a further seven days.

Catchwords:
ENVIRONMENT AND PLANNING – judicial review of decision by the Minister for Planning to grant consent to a concept development application (Concept DA) to redevelop the Sydney Football Stadium – Concept DA proposal included Stage 1 works involving the demolition of the existing Stadium to ground level – whether the Minister’s consent granted in contravention of mandatory requirements of the
Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)
ENVIRONMENT AND PLANNING – whether Concept DA had to be placed on public exhibition for a minimum of 28 days or 30 days – whether the repealed s 89F of the EPA Act providing for a minimum of 30 days was a “relocated” provision within the meaning of cl 4A(2) of the Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017 (NSW) – whether applicant discharged its onus of establishing that the Minister failed to form an opinion as to the design excellence of the proposal as required by cl 6.21(3) of the Sydney Local Environmental Plan – whether the applicant discharged the onus of establishing that the Minister failed to comply with cl 7 of SEPP 55, which prevents development on contaminated land unless the Minister is satisfied or certain matters
Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Environmental Planning and Assessment (Staged Developments Applications) Act 2017 (NSW)
Interpretation Act 1987 (NSW)
Land and Environment Court Act 1979 (NSW)
Supreme Court Act 1970 (NSW)

Environmental Planning and Assessment Amendment Bill 2017 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW)

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

State Environmental Planning Policy No 55 – Remediation of Land

Parramatta Local Environmental Plan 2011
Sydney Local Environmental Plan 2012
Cases Cited: Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220
Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135; (2017) 222 LGERA 286
Botany Bay Council v Saab Corp Pty Ltd (2012) 82 NSWLR 171; [2011] NSWCA 308
Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18
Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 65
Decision Date: 12 April 2019

CaseChat Overview and Summary

Local Democracy Matters Incorporated (LDM) sought judicial review of a decision by the Minister for Planning to grant consent to a concept development application (Concept DA) for the redevelopment of the Sydney Football Stadium. The Concept DA included Stage 1 works involving the demolition of the existing stadium. LDM contended that the Minister's consent was granted in contravention of mandatory requirements of the *Environmental Planning and Assessment Act 1979* (NSW) (EPA Act).

The primary legal issues before the Court of Appeal of New South Wales were whether the Concept DA had been placed on public exhibition for the mandatory minimum period, and whether the Minister had complied with specific provisions of the EPA Act and related regulations. Specifically, the court considered whether the repealed section 89F of the EPA Act, which stipulated a minimum exhibition period of 30 days, was a "relocated" provision under clause 4A(2) of the *Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017* (NSW). Furthermore, the court examined whether LDM had discharged its onus of proving that the Minister failed to form an opinion on the design excellence of the proposal as required by clause 6.21(3) of the Sydney Local Environmental Plan, and whether the Minister had complied with clause 7 of SEPP 55, which addresses development on contaminated land.

The Court of Appeal ultimately dismissed LDM's application. The court found that the exhibition period for the Concept DA met the statutory requirements, interpreting the relevant transitional provisions to mean that the repealed section 89F did not apply in the manner contended by LDM. The court also held that LDM had not discharged its onus of establishing that the Minister failed to form the requisite opinion on design excellence or that the Minister had failed to comply with the provisions of SEPP 55 concerning contaminated land.

The court directed the parties to file agreed short minutes of order as to costs within 14 days, with provisions for further submissions if agreement could not be reached.

Orders

Orders of the court

1. Direct the parties to file agreed short minutes of order as to costs within 14 days.

2. If the parties cannot agree, direct the respondents to file their proposed short minutes of order as to costs within 14 days, supported by brief written submissions.

3. Direct LDM to file its proposed short minutes of order as to costs within a further seven days, supported by brief written submissions.

4. Direct the respondents to file any brief written submissions in reply within a further seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Local Democracy Matters Incorporated v Infrastructure NSW [2019] NSWCA 65
Hearing dates:	15 March 2019
Date of orders:	15 March 2019
Decision date:	12 April 2019
Before:	Leeming JA, Sackville AJA, Emmett AJA
Decision:	1. Direct the parties to file agreed short minutes of order as to costs within 14 days. 2. If the parties cannot agree, direct the respondents to file their proposed short minutes of order as to costs within 14 days, supported by brief written submissions. 3. Direct LDM to file its proposed short minutes of order as to costs within a further seven days, supported by brief written submissions. 4. Direct the respondents to file any brief written submissions in reply within a further seven days.
Catchwords:	ENVIRONMENT AND PLANNING – judicial review of decision by the Minister for Planning to grant consent to a concept development application (Concept DA) to redevelop the Sydney Football Stadium – Concept DA proposal included Stage 1 works involving the demolition of the existing Stadium to ground level – whether the Minister’s consent granted in contravention of mandatory requirements of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) ENVIRONMENT AND PLANNING – whether Concept DA had to be placed on public exhibition for a minimum of 28 days or 30 days – whether the repealed s 89F of the EPA Act providing for a minimum of 30 days was a “relocated” provision within the meaning of cl 4A(2) of the Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017 (NSW) – whether applicant discharged its onus of establishing that the Minister failed to form an opinion as to the design excellence of the proposal as required by cl 6.21(3) of the Sydney Local Environmental Plan – whether the applicant discharged the onus of establishing that the Minister failed to comply with cl 7 of SEPP 55, which prevents development on contaminated land unless the Minister is satisfied or certain matters
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Amendment Act 2017 (NSW) Environmental Planning and Assessment (Staged Developments Applications) Act 2017 (NSW) Interpretation Act 1987 (NSW) Land and Environment Court Act 1979 (NSW) Supreme Court Act 1970 (NSW) Environmental Planning and Assessment Amendment Bill 2017 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) State Environmental Planning Policy No 55 – Remediation of Land Parramatta Local Environmental Plan 2011 Sydney Local Environmental Plan 2012
Cases Cited:	Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135; (2017) 222 LGERA 286 Botany Bay Council v Saab Corp Pty Ltd (2012) 82 NSWLR 171; [2011] NSWCA 308 Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18 Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW…