Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW - [2019] NSWLEC 20

Land and Environment Court

New South Wales

Medium Neutral Citation: Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20
Hearing dates: 20-22 February 2019
Date of orders: 06 March 2019
Decision date: 06 March 2019
Jurisdiction: Class 4
Before: Pain J
Decision:
See [204] of judgment

Catchwords: Judicial review – challenge to Minister for Planning’s grant of development consent to concept development application including Stage 1 demolition of Sydney Football Stadium – no failure to comply with mandatory public exhibition period – no failure to comply with Sydney Local Environmental Plan 2012 concerning design excellence – no failure to comply with State Environmental Planning Policy 55 Remediation of Land
Legislation Cited: Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 3, 4A, 5
Environmental Planning and Assessment Act 1979 ss 1.3, 1.4, 1.5, 2.22, 4.2, 4.9, 4.10, 4.11, 4.12, 4.15, 4.16, 4.19, 4.21, 4.22, 4.23, 4.24, 4.36, 4.37, 4.38, 4.39, 4.40, 4.41, 4.43, 4.60, 4.64, 9.44, 9.45, 9.46, 10.13, Sch 1
Environmental Planning and Assessment Amendment Act 2017 Sch 13
Environmental Planning and Assessment Amendment Bill 2017
Environmental Planning and Assessment Regulation 2000 cl 83
Heritage Act 1977 s 57
Interpretation Act 1987 s 30A
Land and Environment Court Act 1979 s 56A
Parramatta Local Environmental Plan 2011
State Environmental Planning Policy No 55—Remediation of Land cll 2, 4, 7
Sydney Cricket and Sports Ground Act 1978 s 14
Sydney Local Environmental Plan 2012 cll 6.21, 7.19, 7.20
Cases Cited:
4nature Incorporated v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
Albury City Council v North Albury Shopping Centre Pty Limited (1985) 1 NSWLR 220

Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135
Cameron v Nambucca Shire Council (1997) 95 LGERA 268
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Curac v Shoalhaven Shire Council (1993) 81 LGERA 124
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Franklins Ltd v Penrith City Council [1999] NSWCA 134
Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81
Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council [2018] NSWLEC 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304
Parramatta City Council v Hale (1982) 47 LGRA 319
People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46
S J Connolly Pty Ltd v Ballina Shire Council (2010) 175 LGERA 408; [2010] NSWLEC 151
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396
Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158
Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Texts Cited: Pearce & Geddes, Delegated Legislation in Australia (5th ed, 2017, LexisNexis Butterworths)
Category: Principal judgment
Parties:
Matter No 19/39988

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

Matter No 19/43610
Waverley Council (Applicant)
Infrastructure NSW (First Respondent)
Sydney Cricket and Sports Ground Trust (Second Respondent)
Minister for Planning (Third Respondent)
Lendlease Building Pty Ltd (Fourth Respondent)
Representation:
Matter No 19/39988

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

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

Matter No 19/43610

COUNSEL:
P Clay SC and M Hall (Applicant)
S Duggan SC and J McKelvey (First Respondent)
M Astill (Second Respondent)
R Beasley SC and M Ellicott with M Sherman (Third Respondent)
Submitting appearance (Fourth Respondent)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
King & Wood Mallesons (First Respondent)
Norton Rose Fullbright (Second Respondent)
Department of Planning (Third Respondent)
Herbert Smith Freehills (Fourth Respondent)

File Number(s): 19/39988; 19/43610

TABLE OF CONTENTS

Agreed statement of facts

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

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

Environmental Planning and Assessment Amendment Act 2017

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

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

Interpretation Act 1987

Key events

Summary of evidence

Extracts of key documents

Environmental Impact Statement (EIS) part of SSD application
SFS Response to submissions – September 2018
Department of Planning and Environment Assessment Report – December 2018
Briefing note for the determination of SSD 9249
Notice of Minister’s decision to grant consent dated 6 December 2018
Development consent for SSD 9249
Managing Land Contamination – Planning Guidelines – SEPP 55 – Remediation of Land (Contamination Guidelines)

Applicants’ affidavit evidence

Respondents’ affidavit evidence

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

LDM’s submissions
Respondents’ submissions

Finding on Ground 1

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

LDM’s submissions
Council’s submissions
Respondents’ submissions

Finding on Ground 2

Construction of design excellence provision cl 6.21
References to cl 6.21(3) obligations in evidence
Evidence of consideration of cl 6.21(4) matters

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

State Environmental Planning Policy No 55—Remediation of Land
LDM’s submissions
Clause 7(1)
Clause 7(2)
Clause 7(3)

Minister’s submissions
SCG Trust’s submissions

Finding on Ground 3

Application of cl 7(1)
Application of cl 7(2)(3)

Conclusion

Orders

Judgment

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

Agreed statement of facts

An agreed statement of facts filed in court on 20 February 2019 provided as follows:

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

The Fourth Respondent Lendlease Building Pty Ltd (Lendlease) has filed a submitting appearance.

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

Relevant sections of the EPA Act as in force on 1 March 2018 provide:

Part 1 Preliminary
…
1.3 Objects of Act (cf previous s 5)
The objects of this Act are as follows:
(a)   to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,
(b)   to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c)   to promote the orderly and economic use and development of land,
(d)   to promote the delivery and maintenance of affordable housing,
(e)   to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f)   to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g)   to promote good design and amenity of the built environment,
(h)   to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i)   to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j)   to provide increased opportunity for community participation in environmental planning and assessment.
1.4 Definitions (cf previous s 4)
…
building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.
…
land includes:
(a)   the sea or an arm of the sea,
(b)   a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and
(c)   a river, stream or watercourse, whether tidal or non-tidal, and
(d)   a building erected on the land.
…
1.5 Meaning of “development” (cf previous s 4)
(1)   For the purposes of this Act, development is any of the following:
(a)   the use of land,
(b)   the subdivision of land,
(c)   the erection of a building,
(d)   the carrying out of a work,
(e)   the demolition of a building or work,
(f)   any other act, matter or thing that may be controlled by an environmental planning instrument.

(2)   However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).
(3)   For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).
…
Part 2 Planning administration
…
Division 2.6 Community participation
…
2.22 Mandatory community participation requirements
(1)   Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions.
(2)   Those mandatory requirements for community participation include any other forms of community participation that are set out in a community participation plan under this Division and that are identified in that plan as mandatory requirements.
[in effect from 1 March 2018]
…
Part 4 Development assessment and consent
…
Division 4.3 Development that needs consent (except complying development)
…
4.15 Evaluation (cf previous s 79C)
(1)   Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a)   the provisions of:
(i)   any environmental planning instrument, and
(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii)   any development control plan, and
(iiia)   any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v)   (Repealed)
that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)   the suitability of the site for the development,
(d)   any submissions made in accordance with this Act or the regulations,
(e)   the public interest.
...

(6) Definitions
In this section:
(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

...
4.19 Consent for erection of building authorises use of building (cf previous s 81A)
A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued.
…
Division 4.4 Concept development applications
4.21 Application of this Division (cf previous s 83A)
This Division applies to concept development applications and to consents granted on the determination of those applications.
4.22 Concept development applications (cf previous s 83B)
(1)   For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.
(2)   In the case of a staged development, the application may set out detailed proposals for the first stage of development.
(3)   A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.
(4)   If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:
(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or
(b)   the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.
(5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.
[Bay Simmer amendment – made 14 August 2017]
4.23 Concept development applications as alternative to DCP required by environmental planning instruments (cf previous s 83C)
(1) An environmental planning instrument cannot require the making of a concept development application before development is carried out.
(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a concept development application in respect of that land.

(3)   Any such concept development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
4.24 Status of concept development applications and consents (cf previous s 83D)
(1)   The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a concept development application and a development consent granted on the determination of any such application.
(2)   While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.
(3)   Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a concept development application.
…
Division 4.7 State significant development
4.36 Development that is State significant development (cf previous s 89C)
(1)   For the purposes of this Act, State significant development is development that is declared under this section to be State significant development.
(2)   A State environmental planning policy may declare any development, or any class or description of development, to be State significant development.
(3) The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development.
(4)   A State environmental planning policy that declares State significant development may extend the provisions of the policy relating to that development to State significant development declared under subsection (3).
4.37 Staged State significant development (cf previous s 89D)
If a concept development application is made in respect of State significant development:
(a)   the consent authority may determine that a subsequent stage of the development is to be determined by the relevant council as consent authority, and
(b)   that stage of the development ceases to be State significant development and that council becomes the consent authority for that stage of the development.
4.38 Consent for State significant development (cf previous s 89E)
(1)   The consent authority is to determine a development application in respect of State significant development by:
(a)   granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or
(b)   refusing consent to the application.

…
4.39 Regulations—State significant development (cf previous s 89G)
In addition to any other matters for or with respect to which regulations may be made under this Part, the regulations may make provision for or with respect to the procedures and other matters concerning State significant development, including the following:
(a)   the environmental impact statements to accompany development applications in respect of State significant development,
(b)   the requirements for the preparation of those environmental impact statements, including consultation requirements with respect to government agencies and other affected persons,
(c) the making of orders under section 4.36 (3) declaring specified development to be State significant development,
(d)   the making of information publicly available relating to development applications in respect of State significant development and the determination of those applications,
(e)   requiring applicants to provide responses to submissions made on development applications in respect of State significant development.
4.40 Evaluation of development application (s 4.15) (cf previous s 89H)
Section 4.15 applies, subject to this Division, to the determination of the development application.
...
4.43 This Division prevails (cf previous s 89L)
The provisions of this Division, the regulations under this Division and any other provisions of or made under this Act with respect to State significant development prevail to the extent of any inconsistency with any other provisions of or made under this Act relating to development to which this Part applies.
…
Division 4.10 Miscellaneous Part 4 provisions
…
4.60 Non-compliance with certain provisions regarding State significant development (cf previous s 102)
(1)   This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.
(2)   The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:
(a)   A requirement that a development application to carry out State significant development or designated development and its accompanying information be publicly exhibited for the minimum period of time.
(b)   A requirement that a development application to carry out development, being development, other than State significant development or designated development, to which some or all of the provisions of sections 4.25, 4.27, 86, 4.30 (1) and 4.44, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 3.18 (4), as then in force, be publicly exhibited for the minimum period of time.
(c)   (Repealed)

…
4.64 Regulations—Part 4 (cf previous s 105)
(1)   In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:
(a)   any matter that is necessary or convenient to be done before making a development application,
…
(g)   the notification and advertising of development applications (and proposed development),

…
Part 9 Implementation and enforcement
…
Division 9.5 Civil enforcement proceedings
…
9.45 Restraint etc of breaches of this Act (cf previous s 123)
(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4)   (Repealed)
9.46 Orders of the Court (cf previous s 124)
(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
…
Part 10 Miscellaneous
…
10.13 Regulations (cf previous s 157)
(1)   The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:
(a)   any function conferred by this Act on any person, or
…
(g)   the documents to be provided to, and the matters to be notified to, a consent authority, council or certifier under this Act.

(1A)   The regulations may create offences punishable by a monetary penalty not exceeding $110,000.
(2)   A provision of a regulation may:
(a)   apply generally or be limited in its application by reference to specified exceptions or factors,
(b)   apply differently according to different factors of a specified kind, or
(c)   authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.

(3)   A regulation may apply, adopt or incorporate any publication as in force from time to time.
…
Schedule 1 Community participation requirements
Part 1 Mandatory community participation requirements
…
Division 2 Minimum public exhibition periods for development applications and other matters
...
9 Application for development consent for State significant development (cf previous s 89F)
28 days.
...
Division 4 Mandatory notification requirements for applications and decisions
…
20 Public notification of certain decisions and reasons for the decisions
(1)   This clause applies to the following decisions:
(a)   the determination by the Minister (or the Independent Planning Commission) of an application for State significant infrastructure,
(b)   the determination by the Minister (or the Independent Planning Commission) of a request for a modification of an approval for State significant infrastructure (being a request that was publicly exhibited),
(c)   the determination by a consent authority of an application for development consent,
(d)   the determination by a consent authority of an application for the modification of a development consent (being an application that was publicly exhibited),
(e)   the granting of an approval, or the decision to carry out development, by a determining authority where an environmental impact statement was publicly exhibited under Division 5.1.

(2)   The mandatory notification requirement in relation to a decision to which this clause applies is public notification of:
(a)   the decision, and
(b)   the date of the decision, and
(c)   the reasons for the decision (having regard to any statutory requirements applying to the decision), and
(d)   how community views were taken into account in making the decision.

Part 2 General provisions
21 Additional or revised mandatory public exhibition and notification requirements
The regulations may amend Part 1 of this Schedule:
(a) to prescribe additional mandatory requirements for community participation, or
(b) to make other changes to that Part.
...
Historical notes
...
Concordance table
For the purposes of comparison, this table shows provisions of this Act as in force immediately before the commencement of the Environmental Planning and Assessment Amendment Act 2017 and the corresponding decimal section numbers following amendment by that Act:
…
Old provision New provision
…
Sec 89F Schedule 1 cl 9

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

Section 89F of the EPA Act as in force on 28 February 2018 provided as follows:

Part 4 Development assessment
…
Division 4.1 State significant development
…
89F Public participation
(1)   As soon as practicable after a development application is made for consent to carry out State significant development, the Secretary must:
(a)   place the application and any accompanying information on public exhibition for a period (of not less than 30 days) prescribed by the regulations (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (b), and
(b)   cause notice of the application to be given and published in accordance with the regulations.

(2)   During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.
(3)   During the submission period, any person may make written submissions to the Minister with respect to the development application. A submission by way of objection must set out the grounds of the objection.
(4)   If:
(a)   a development application for State significant development is amended, or substituted, or withdrawn and later replaced before it has been determined by the Minister, and
(b)   the Secretary has complied with subsection (1) in relation to the original application,
compliance with subsection (1) in relation to the amended, substituted or later application is not required, unless the Secretary determines that the amended, substituted or later application substantially differs from the original application and the environmental impact of the development concerned has not been reduced by the changes proposed in the amended, substituted or later application.

This section was repealed on 1 March 2018 by the Environmental Planning and Assessment Amendment Act 2017 (Amendment Act).

Environmental Planning and Assessment Amendment Act 2017

Relevant clauses of the now repealed Amendment Act provided:

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

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

Clause 83 of the Environmental Planning and Assessment Act Regulation 2000 (EPA Regulation) provided:

Division 6 Public participation—State significant development
83 Public exhibition period
For the purposes of section 89F (1) (a) of the Act, the minimum submission period is to be 30 days.

Clause 83 was repealed on 1 September 2018.

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

Relevant clauses of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transitional Regulation) provide:

Part 1 Preliminary
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3 Definitions
(1)   In this Regulation:
the Act means the Environmental Planning and Assessment Act1979.
(2)   Notes included in this Regulation do not form part of this Regulation.
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Part 2 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2017
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4A Interpretation—renumbered or relocated provisions of Act
(1)   In this clause:
document means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument.
(2)   A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to a provision of the Act that has been renumbered or relocated by the Environmental Planning and Assessment Amendment Act 2017 is taken to be a reference to the renumbered or relocated provision. Anything done or omitted to be done under any such provision of the Act before it was renumbered or relocated is taken to have been done or omitted under the provision as renumbered or relocated.
(3)   A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to any such renumbered or relocated provision of the Act is taken to include a reference to the provision before it was renumbered or relocated.
(4)   This clause is subject to any contrary intention in the provision in which a relevant reference occurs.
(5)   In this clause:
relocated includes repealed and re-enacted, with or without modification.
Note. See the concordance table of renumbered and relocated provisions at the end of historical notes to the in-force version of the Environmental Planning and Assessment Act 1979 on the NSW legislation website.
5 Interpretation of transferred provisions not affected by transfer
The provisions of Schedules 1, 2 and 3 are, to the extent that as a result of the amending Act they re-enact provisions of the Act, transferred provisions to which section 30A of the Interpretation Act 1987 applies.
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[in force from 1 March 2018 except for subcl (5) from 16 March 2018]

Interpretation Act 1987

Section 30A of the Interpretation Act 1987 provides:

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

Key events

The parties’ agreed chronology is as follows:

AGREED CHRONOLOGY

Date

Event

24 November 2017

The NSW Government announced its intention to demolish and rebuild the stadium at Moore Park.

4 April 2018

Request for SEARs lodged by INSW.

12 April 2018

The Department of Planning convened a planning focus meeting with key government agencies and representatives of local government.

3 May 2018

The Secretary's Environmental Assessment Requirements (SEARs) were issued and placed on MP Web Site.

June 2018

EIS completed.

12 and 13 June 2018

Public exhibition notices in newspapers.

14 June 2018

Between 14 June 2018 and 11 July 2018 the proposal was publicly exhibited for 28 days.

14 June 2018

EIS placed on MP Web Site.

13 September 2018

On 13 September 2018, Infrastructure NSW

published their Response to Submissions Report.

17 September 2018

Infrastructure NSW Response to Submissions Report placed on MP Web Site.

December 2018

The Department of Planning published its Assessment Report.

6 December 2018

The Minister for Planning gave consent to SSD 9249 and issued a Notice of Decision which incorporated the Department of Planning Assessment Report published in December 2018.

7 December 2018

The Notice of Decision, instrument of consent and Department of Planning Assessment Report were published on the MP Web Site.

The amended summonses identified three grounds of review which if proved, the Applicants submitted, give rise to invalidity of the development consent as follows:

failure to exhibit the proposal for 30 days (LDM);

failure to consider the mandatory requirements of cl 6.21 of Sydney Local Environmental Plan 2012 (SLEP) (LDM and the Council); and

breach of the State Environmental Planning Policy No 55–Remediation of Land (SEPP 55) (LDM).

Summary of evidence

The Applicants tendered the following evidence:

Exhibit A, the evidence book (four volumes);

Exhibit B, the court book;

Exhibit C, a supplementary tender bundle; and

Exhibit D, “Schedule 41 – SFSR Stage 1 Lump Sum” to the contract between Infrastructure NSW (INSW) and Lendlease dated 7 December 2018.

The Respondents tendered Ex 1, a supplementary tender bundle.

Extracts of key documents

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

Environmental Impact Statement (EIS) part of SSD application

The main report of the EIS provides:

Executive Summary
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Overview of the Project
The Development Application is made in respect of the Concept Proposal and detailed Stage 1 works for the redevelopment of the Sydney Football Stadium. The Concept Proposal for the redevelopment of the Sydney Football Stadium includes:
•   Land use.
•   Maximum building envelope.
•   Maximum stadium capacity of 45,000 seats (55,000 patrons in concert mode) and 1,500 staff.
•   Urban Design Guidelines and Design Excellence Strategy to guide the detailed design.
•   General functional parameters for the design and operation of the new stadium, including:
−   Range of general admission seating, members areas, premium box/terrace, function/lounge and corporate suite options;
−   Administration offices;
−   New roof with 100% drip-line coverage of all permanent seating;
−   Flood lighting, stadium video screens and other ancillary fittings;
−   Food and beverage offerings;
−   Facilities for team, media, administration and amenity such as changing rooms, media rooms and stadium; and
−   Provision for ancillary uses within the stadium and surrounds.

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The detailed Stage 1 demolition works comprise the following:
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•   Make good of the site suitable for construction of the new stadium (subject to separate Stage 2 application).
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Planning Context
This EIS has been prepared in accordance with the requirements of the EP&A Act and Regulation, and Section 6.0 of the EIS considers all applicable legislation in detail.
Pursuant to clause 8A of State Environmental Planning Policy (State and Regional Development) 2011, the Minister for Planning is the consent authority for a State Significant Development Application made by or on behalf of a public authority. This application is made by Infrastructure NSW, who are a public authority.
The Sydney Local Environmental Plan 2012 applies to the site, with the proposed development being permissible with consent and consistent with the SP1 Special Activities – Recreation Facility (Major) zoning. The LEP does not impose any building height or floor space ratio controls. This Concept Proposal is prepared in satisfaction of clause 7.20, which requires the preparation of a site-specific development control plan (fulfilled by a Concept DA in accordance with section 4.23 of the EP&A Act) for development with a site area of more than 5,000m2 or with a building height of more than 25 metres. A Design Excellence Strategy accompanies this EIS which sets out how the detailed design which will be the subject of a future Stage 2 Development Application will achieve design excellence in accordance with clause 6.21 of the LEP, and this strategy has been endorsed by the NSW Government Architect.
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1.2 Secretary’s Environmental Assessment Requirements
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Table 1 Reference to information in EIS and appendices to address Secretary’s requirements

Requirement

Reference

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Key Issues – Concept Proposal

EIS

Appendix

The EIS must address the following specific matters:

1. Statutory and Strategic Context – including:

Address the statutory provisions contained in all relevant environmental planning instruments, including:

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•   Sydney Local Environmental Plan 2012; and

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4. Design Excellence

•   Describe the design process leading to the Concept Proposal.

Section 5.1 and 6.4

Appendix C-section 7

•   Provide design quality guidelines for the future built form and integration of landscape design.

Section 5.1 and 6.4

Appendix C-section 8

•   Provide a Design Excellence Strategy, developed in consultation with, and to the satisfaction of, the Government Architect NSW, for the future stages of the development which demonstrates how design excellence will be achieved. This strategy should set out:

     o   the design process leading to the Concept Proposal;

     o   the type and details of the competitive design excellence processes proposed to be undertaken, in accordance with clause 6.21 of the Sydney LEP, and clear rationale for this process having regard to established design excellence policy context and best practice;

     o   a method setting out how the proposed design excellence, public domain and landscape excellence process will be implemented as part of the planning process; and

     o   details of the method for the incorporation of sustainability into design.

Section 5.1 and 6.4.3

Appendix D

5 Built Form and Urban Design

•   Outline consultation with the Government Architect NSW and how the feedback has been incorporated into the Concept Proposal;

Section 6.4.3

Appendix D

Appendix G-section 8.5.3

•   Provide a detailed justification for the building envelope, supported by an urban design analysis, to justify that the proposed built envelope location and design are based on careful consideration of the benefits and potential impacts in the context of the immediate locality and the broader Sydney CBD area;

Section 6.4

Appendix C-section 7

•   Provide appropriate design guidelines and development parameters within the context of the locality, including but not limited to:

o   site analysis;

     o   site layout;

     o   gross floor area;

     o   building footprints;

     o   height and massing of the building envelopes; and

     o   open spaces, landscaping, green infrastructure and tree planting to improve amenity and reduce urban heat island effect;

Section 5.1 and 6.4

Appendix C-sections 7, 89 and appendices

•   “Demonstrate how the design of the development will be integrated into the City of Sydney and fit within the context of the site and the existing and future desired character of Moore Park area, including the adjacent Sydney Cricket Ground; and

Section 6.4

Appendix C-section 7

•   Provide an in indicative building and landscape design showing a possible built form within the proposed building envelope.

Section 6.4

Appendix C-

Appendices

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

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6.17 Ground Contamination
A Preliminary Site Investigation report has been prepared by Douglas Partners (Appendix S) which comprises a desktop assessment of the potential for ground contamination within the site of the proposed stadium prepared in accordance with the requirements of State Environmental Planning Policy No.55 – Remediation of Land. The assessment draws upon previous contamination information gathered within the SCSGT precinct, including from soil testing obtained from the construction of the Sheridan Building, Bradman Noble Stand and ARDC building. As outlined in Section 3.2.5, there is the potential for some contamination beneath the site associated with previous filling and demolition of prior structures on the site prior to the construction of the current SFS in the 1980s. Based upon analysis of the nearby sites for which detailed investigation has been undertaken, key potential contaminants include polycyclic aromatic hydrocarbons (PAHs) which is likely to be due to the presence of cinder, ash and slag as well as concentrations of heavy metals such as lead, mercury and zinc. In addition, there are two underground storage tanks (USTs) which are located along the eastern site boundary used for petrol and diesel storage for on-site maintenance vehicles and equipment, and pool chemicals are also stored on-site for maintenance of the member’s swimming pool.
The land use on the site will not change as a result of the Concept Proposal, with the continuation of the stadium use. The Preliminary Site Investigation report has adopted standards for contamination in accordance with the “National Environment Protection (Assessment of Site Contamination) Measure, Schedule B1 – Guideline on Investigation Levels for Soil and Groundwater” (NEPC, 2013) which provides assessment levels for various soil, groundwater and vapour contaminants and as detailed further at Appendix S.
The Stage 1 Demolition scope for which development consent is sought as part of this application involves the demolition of the existing slab down to slab level only. Accordingly, no soil will be disturbed and accordingly no contamination impacts are expected to arise as a result of those detailed works for which consent is sought.
A Detailed Site Investigation (Phase 2) will be undertaken and submitted with the Stage 2 Development Application, and a Remedial Action Plan (RAP) will be developed as required in order to confirm the nature and extent of contamination present within the site and to establish protocols for the classification and management of any contamination which may be present. This requirement is outlined in the Mitigation Measures included at Section 8.0. In light of the above. Subject to undertaking these further investigations, Douglas Partners conclude that the site either is, or can be made, suitable for the future proposed use of the site.
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Appendix S to the EIS contains the Report on Preliminary Site Investigation (Contamination) (PSI Report) from which the following passages are extracted:

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6. Previous Investigations
The following investigations that include a contamination component have been undertaken by Douglas Partners:
•   Project 44417 (2006): Waste classification testing during development of the Victor Trumper Stand at the SCG. This included the analysis of eight soil samples. This testing was somewhat remote from the SFS site.
•   Project 44783 (2007): Waste classification testing for the Sheridan Building development. This included the analysis of four soil samples. This testing was immediately to the north-west of the SFS.
•   Project 45867 (2009): Waste classification testing for the Noble and Bradman Stands at the SCG. This included the analysis of 12 soil samples. This testing was to the north-west of the SFS.
•   Project 84811 (2015): Waste classification testing for the Australian Rugby Development Centre building. This included the analysis of 12 soil samples. This testing was to the north-west of the SFS.
The previous investigations encountered filling to depths of between 0.7 m and 7.4 m. The filling was typically sandy, with varying proportions of sandstone, silt, clay, gravel, cinder, ash, slag and building rubble (metal, bricks, ceramic fragments, glass and wood).
The laboratory analysis undertaken on samples obtained during these previous investigations is summarised in Table D1 in Appendix D. The analysis indicated:
•   Significant concentrations of polycyclic aromatic hydrocarbons (PAHs) including Benzo(a)pyrene in 21 samples which is likely to be due to the presence of cinder, ash and slag in the samples; and
•   Significant concentrations heavy metals including Lead (2 samples), Mercury (1 sample) and Zinc (2 samples)
Longer-chain hydrocarbons were also detected in seven samples however these concentrations were relatively low.
Analysis of groundwater quality has not been undertaken on the site by Douglas Partners to date.
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9. Preliminary Conceptual Site Model
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The human receptors to soil contamination are likely to be the staff, athletes and visitors to the redeveloped site. Construction personnel, nearby workers/visitors/residents and the general public may also be receptors during the construction phase of the redevelopment project. The ecological receptors are likely to be limited to the flora and fauna that grow/live on the adjacent sites. The area is not known to be ecologically significant.
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10. Conclusions and Recommendations
On the basis of the results of this Preliminary Site Investigation, the main contamination risks are considered to be associated with previous filling works and the demolition of structures prior to the construction of the current stadium. The previous laboratory testing results for samples obtained from adjacent sites indicate that the filling contained significant concentrations of PAHs which are likely dur to the presence of ash. Significant concentrations of heavy metals were also identified in selected samples. It is likely that, at the time of SFS construction, existing filling was mixed with natural soils as segregation of materials to allow for more efficient disposal was not a major consideration in the 1980s.
Groundwater is understood to be in the order of 3 m below the current playing surface and, as it is used for irrigation purposes on both the SFS and SCG playing surfaces, is likely to be of high quality and not significantly contaminated. It should be noted, however, that testing will be required to confirm the actual contaminant status of the groundwater on site.
Prior to any planning approval permitting the commencement of works that are likely to expose or disturb soils, a Detailed Site Investigation should be undertaken to fully characterise the contamination status of the site, if such characterisation is required. However, on the basis of the investigation undertaken to date it is considered that the risk of significant contamination being present, that prevents the redevelopment of the site without significant remediation, is low. Subject to the further investigations specified, we expect that the site either is or can be made suitable for the proposed use.
If required, on site containment of contaminated soils could readily be achieved where technically possible (e.g. for non-!eachable PAHs, non-leachab!e metals, asbestos etc.} and off-site disposal where containment is not feasible. Further details on the contaminant status of the soil and groundwater will be required before developing remediation options further, if such remediation is required.
Any materials required to be removed from the site will need to be classified in accordance with the current Waste Classification Guidelines (NSW EPA, 2014).
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Appendix C to the EIS “Urban Design Guidelines” includes a landscape concept plan, shadow diagrams, concept envelope plans, Stage 1 demolition plan, and public art strategy.
Appendix D to the EIS is the Design Excellence Strategy:

APPENDIX D
Design Excellence Strategy
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2. Design Excellence
2.1 SFS Redevelopment and Design Excellence
The project site is located within the City of Sydney Local Government Area. Statutory approvals will be sought for the project under the Environmental Planning and Assessment Act 1979, as State Significant Development (SSD). A staged SSD process will be undertaken that includes:
Stage 1 – Concept Proposal for the stadium envelope and supporting retail and functional uses as well as development consent for the carrying out of early works comprising demolition of the existing facility and associated structures.
Stage 2 – detailed design, construction and operation of the stadium and supporting business, retail and functional uses.
Requirements in relation to design excellence from the following documents will be relevant to the SFS Redevelopment:
•   Better Placed- An Integrated Design Policy for the Built Environment of New South Wales, Government Architect NSW, September 2017
•   NSW State Design Review Panel- Design Review for State Significant Projects- pilot program, Government Architect NSW, December 2017
•   Sydney Local Environmental Plan, 2012
•   City of Sydney Competitive Design Policy, City of Sydney, 2013
The predominant statutory requirement in relation to design excellence for the SFS project are outlined in the Sydney Local Environmental Plan, 2012 (SLEP). Under the SLEP a competitive design process is required to be undertaken in accordance with City of Sydney Competitive Design Policy. The policy provides for the hosting of the “architectural design competitions” or “the preparation of design alternatives on a competitive basis.”
Infrastructure NSW (INSW) is committed to the achievement of design excellence for the SFS Redevelopment.
2.1.1 Stage 1 SSDA
The proposed concept design will exhibit design excellence where applicable to the stadium envelope as set out below in this Strategy.
The Stage 1 Concept Proposal will include concept plans for the stadium envelope. The proposed plans will:
(a)   meet the specifications for the Project set out in Part 1 as applicable to the stadium envelope;
(b)   exhibit design excellence in accordance with the requirements of clause 6.21(3) of the SLEP and the matters listed in clause 6.21(4) as applicable to the stadium envelope. Clause 6.21(4) of the SLEP is extracted in Attachment B. The matters that may be applicable to the stadium envelope include subclauses 4(d)(iii), (iv), (v), (vii), (ix), (x), (xi) and (xii); and
(c)   meet the requirements of the Urban Design Guidelines for the project as applicable to the stadium envelope
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2.1.2 Stage 2 SSDA
Clause 6.21(5) of the SLEP provides that development consent must not be granted to development to which this clause applies unless a competitive design process has been held in relation to the proposed development. For the purposes of this clause, proposed development includes development having a capital investment value of more than $100,000,000. The proposed development will exceed this threshold.
Prior to the lodgement of the Stage 2 development application, the Applicant will undertake a “design alternatives” competitive process in accordance with clause 4.1 of the Competitive Design Policy.
INSW will develop a design for a stadium bowl that meets the requirements and constraints for the Project outlined in Part 1. This bowl will form the basis of the Concept development application “envelope” enabling 3 suitably qualified design consortia consisting of architects and landscape architects to develop integrated concepts for the external design (façade, roof and structure) and the public domain on a competitive basis.
The winning Competitor will form the lead designer for the competition elements and retain responsibility for the development of documentation to support the Stage 2 SSDA. The winning Competitor will be required to collaborate with a stadium designer to ensure consistent quality across the project with stadium designer responsible for development of the functional architectural requirements of the stadium bowl. Where the winning competition team includes other design professions, such as landscape architecture, these firms will also form part of the lead design team for the duration of the project.
Subject to the approval of the Consent Authority, the competitive design is to be undertaken in accordance with Part 3 of this Strategy. The Stage 2 development application will then seek consent for the detailed design for the Project in accordance with the outcome of the competitive design process.
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A list of the appendices to the EIS follows:

A – Secretary’s Environmental Assessment Requirements

B – Site Survey

C – Urban Design Guidelines (including Landscape Concept Plan, Shadow Diagrams, Concept Envelope Plans, Stage 1 Demolition Plan and Public Art Strategy

D – Design Excellence Strategy

E – Construction (Demolition) Management Plan (Stage 1 Works)

F – Arboricultural Impact Assessment

G – Consultation Outcomes Report

H – Visual Impact Assessment

I – Wind Considerations for Stadium Design

J – Transport Impact Assessment (including Construction, Traffic and Pedestrian Management Plan)

K – Noise and Vibration Assessment

L – Heritage Impact Statement

M – Archaeological Assessment

N – Environmentally Sustainable Design Strategy and Statement for Demolition

O – Social and Economic Impact Statement

P – Stormwater and Flooding Report

Q – Biodiversity Development Assessment Report

R – Security Principles Report Intelligent Risks

S – Phase 1 Contamination Assessment

T – Groundwater Assessment Report

U – Infrastructure Management Strategy

SFS Response to submissions – September 2018

The Department of Environment and Planning (Department) prepared a “Response to Submissions” (RTS) in relation to those submissions received from the Department, local and State government agencies and the general public during the public exhibition of the SSD DA for the staged redevelopment of the SFS. Parts of the report are extracted below:

SFS Response to Submissions (SSD9249)
Response to Submissions Report
September 2018
…
2.0 Public Exhibition and Submissions
2.2.2 Analysis of Issues Raised
…
Table 2 Summary of public submissions by issue raised
…
Issue Tag – Building envelope
Issue Description – Comments relating to the scale of the building envelope and associated visual, wind and overshadowing impacts, and assurances that the future stadium will be designed and constructed to fit within the building envelope.
Response Summary –
•   The proposal will not result in adverse environmental impacts, as detailed in the Visual Impact Assessment, Shadow Diagrams and Wind Design Principles provided with the publicly exhibited EIS and the Addendum Visual Impact Assessment accompanying this report.
• Should the Concept Proposal be approved, the detailed Stage 2 Development Application must not be inconsistent with this consent pursuant to the requirements of Section 4.24 of the Environmental Planning and Assessment Act 1979 (EP&A Act).
Reference to Information –
•   Sections 5.1 and 6.4 of EIS
• Section 4.2 of RTS
•   Section 16 of RTS
Attachment 3
…
Attachment 1 – Detailed Response to Agency Submissions
…
1.8 City of Sydney
…

No

Extract

Response

…

…

…

Design Excellence Strategy

COS29

Structure and terminology

Parts 1, 2 and 3.2 of the Design Excellence Strategy are outside of the scope of the matters required for inclusion in a Design Excellence Strategy prepared in accordance with Provision 1.2 of the City of Sydney Competitive Design Policy (the Policy).

Part 1 and 2 is information that would be included in a Competitive Design Process Brief. The following comments are limited to Part 3 of the Strategy which address the relevant matters as stated at provision 1.2 of the City of Sydney Competitive Design Policy (the Policy).

Provision 1.2 of the City of Sydney Competitive Design Policy does not operate to restrict the inclusions of matters within a Design Excellence Strategy.

Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs.

COS30

Design integrity process

Section 3.2 of the Strategy titled Design Integrity Process states the continuation of the role of the assessment panel (Selection Panel) following the competitive process through the design development phase. As noted above (under structure and terminology), this process sits outside the scope of the matters required in a strategy.

The Strategy should confirm and clarify the proposed Design Integrity Process is in addition to and does not override the requirements of the design integrity provisions at provision 5.1 of the Policy.

Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments

made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs.

The provision of a Design Integrity Panel is seen as a positive commitment that will ensure the maintenance of design integrity throughout the process. The provisions of Section 5.2 of the Policy only require the convening of a Design Integrity Assessment prior to the lodgement of the Stage 2 application. The process proposed in Appendix D- Design Excellence Strategy section 3.2 allows for ongoing interaction with the competition jury to ensure maintenance of the integrity of the design throughout all stages.

COS31

Urban Design Guidelines

The Design Excellence Strategy indicates that the future designs submitted as part of the competitive design process will be assessed against the Urban Design Guidelines prepared by SJB Architects (along with the requirements of Sydney LEP 2012 and the principles outlined in the Government Architect’s “Better Place – An Integrated Design Policy for the Built Environment of New South Wales). Accordingly, Attachment A contains the City’s recommended changes to the Urban Design Guidelines.

Noted.

…

…

…

…

1.10 NSW Government Architect’s Office

NSW Government Architect’s Office

Design Excellence

No

Extract

Response

GA1

In general, we support the proposed Design Excellence Strategy, however we note that achieving design excellence for this project will rely on the skill and innovation capabilities of the design team in responding to the design guidelines and the opportunities of the site. We encourage the proponent to consider approaching emerging or new design practices with a reputation for innovation in design and delivery.

Noted.

…

…

…

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

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

Department of Planning and Environment Assessment Report – December 2018

This report provided an assessment of the SSD application lodged by INSW seeking approval for the redevelopment of the SFS. The Department relied on this report in its briefing to the Minister to determine the application. Parts of the report are extracted below:

...
2. Project
…
2.2 Concept Plan
The building envelope has been informed by, and developed in conjunction with, the development of a reference design prepared by Cox Architecture (the architect firm responsible for the existing SFS) that incorporates all of the functional and operational requirements of a Tier l stadium with a seated capacity of 45,000 persons (55,000 for concert mode with 10,000 additional standing capacity in the field of play).

The distinction between subcl (1) “purpose” and subcl (2) “use” is important. “Use” refers to actual uses not the purpose of the use. What might be an appropriate approach to questions of characterisation of uses for the purposes of permissibility (or even existing use rights) is not necessarily applicable in the case of the contamination assessments required under SEPP 55. For example, roads and carparks might be characterised as ancillary uses to a supermarket (or a residential development) for the purpose of permissibility but to change such a use of land to a more sensitive land use for the purposes of consideration of contamination might well require a different approach. Further SEPP 55 does not use the standard instrument (or model provisions) definitions which suggests that a “purpose” approach to the construction of a “change of use” is inappropriate. The approach of the Court of Appeal in Moorebank 2018 to the issue of the proper construction of the words “the inclusion of the land in that zone” in cl 6(1) of SEPP 55 supports the conclusion that a technical planning approach to interpretation of the “change of use” of land in SEPP 55 should be eschewed.
Accordingly cl 7(2) is engaged because the current (pre-demolition) uses of the subject land are proposed to change, being subsumed within the new larger stadium, and MP1 is to be used for construction activities. Not only are the various commercial and other buildings to be demolished to make way for the new larger stadium but there is also the replacement of the large car park (MP1), even only temporarily, with a construction compound and waste recycling area. Therefore there will be a “change of use” from commercial buildings to a major recreational facility (the stadium).
LDM submitted that even if the Minister's approach is adopted there is no reason why all of the existing uses of the subject land should be considered to be “ancillary” to the existing stadium (recreational facility) use. For example the cricket wickets and the Cricket NSW Administration Building could hardly be said to be an ancillary use to the stadium, in circumstances where the stadium itself is not used for cricket. Another of the buildings to be demolished, the Sheridan Building, is used for unrelated purposes including medical facilities. In any event the various sports buildings would be characterised as commercial office buildings not as public recreation (major).
LDM rejected the Minister’s submission that there is a distinction between a report which purports to be a Stage 1 assessment but is deficient and where (as in Moorebank 2015) no attempt was made to conduct such an investigation. Preston CJ emphasised that unless a report that complies with the Contamination Guidelines was before the consent authority there was no power to grant development consent.

Clause 7(3)

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

Minister’s submissions

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

SCG Trust’s submissions

The SCG Trust submitted that SEPP 55 does not apply where the land proposed to be developed comprises a building only. The “land” referred to in the chapeau of cl 7(1) is the same as the land referred to in cl 7(1)(a), (b), and (c) and is the land in respect of which a development consent would authorise the carrying out of development. The EPA Act defines “carrying out development” in s 1.5(3) by reference to s 1.5(1). Only demolition is relevant in this case.
Clause 7(2) of SEPP 55 is limited to consents “to carry out development”. Demolition does not involve a change of use so cl 7(2) is not relevant. Demolition is unlike the construction of a building development consent which does permit its use under s 4.19 of the EPA Act. The concept approval does not permit any change in use. Prior to the redevelopment and after it will be used for the purposes authorised under s 14 of the Sydney Cricket and Sports Ground Act 1978 (SCG Act). Section 14 provides:

14 Trust may authorise use of scheduled lands
The Trust may allow the scheduled lands, or any part thereof, to be used by such persons, clubs, associations, leagues or unions at such times and on such terms and conditions as the Trust may think fit and proper for or in connection with cricket, football or tennis or any other game, or for or in connection with athletic sports or public amusement, or for or in connection with any other purpose whatever which the Minister may approve.

Clause 7 has a narrower focus than cl 6, which is concerned with land proposed to be rezoned. Land to be rezoned generally includes the whole of any parcel of land unlimited in height or depth.
The only development the consent authorises is demolition, the express effect of s 4.22(4). Clause 7 is only engaged by virtue of the Stage 1 works being demolition. Development consent for a concept DA only does not authorise the carrying out of development.
The question as to the land to which a development consent applies is a question of fact per Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [91], [94] (Preston CJ of LEC with Basten and Leeming JJA agreeing at [5] and [41] respectively) and People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at [187] (Ward JA with Meagher JA and Payne JA agreeing at [7] and [206]-[208] respectively). These authorities indicate that the EPA Act and instruments made under it are generally not concerned with cadastral title boundaries, mining tenement boundaries or other statutory or artificial delineations but rather with land proposed to be actually used or developed. Further, “land” in the EPA Act is defined to include a building. Therefore the only “land” in respect of which development being demolition is authorised to be carried out is the existing SFS, that is the building itself. This is clear from conditions A6 and A7 in Sch 3 to the development consent.
LDM construes “land” in cl 7 of SEPP 55 as something much broader than that land. Moorebank 2015 and Moorebank 2018 have no application. The evidence of contamination is on other land.
SEPP 55 and the Contamination Guidelines are concerned with contaminated soil and groundwater. SEPP 55 has no application in relation to the development the subject of the development consent because it does not involve land relevant to that subject matter. The land to which the development consent applies is a building. The SFS building for which development consent has been granted to demolish is land within the meaning of that term in the EPA Act but is not land of the nature that SEPP 55 addresses.
In the alternative, as a matter of construction, cl 7 can apply and the required state of satisfaction would be reached immediately as the buildings are not contaminated in the SEPP 55 sense. That no testing or further study would be required is confirmed by figure 3 of the Contamination Guidelines.

Finding on Ground 3

The outcome of this ground depends on the construction of cl 7 of SEPP 55 in light of the Minister approving a concept proposal as provided for in s 4.22(1) enabling work in the nature of demolition only. The demolition approved in the concept proposal consent is to slab only. That is clear from the approved plans and the conditions of consent. Condition A7 of Sch 3 to the development consent for staged works prohibits any work which excavates, causes ground disturbance or changes to the existing ground level or grade.
But for the Stage 1 demolition works cl 7 would not apply to the concept proposal consent granted by the Minister, as LDM correctly agreed during the hearing. At issue is whether subcll (b) and hence (c) of cl 7(1) were complied with by the Minister. Also in issue is whether subcll (2) and (3) apply at all to the Minister’s determination. LDM does not dispute that the Minister complied with cl 7(1)(a) when considering the DA for SSD. The PSI Report included in the EIS and statements in the Department Assessment Report show that contamination was considered. That particular in the amended summons was not pressed.
Considering the statutory construction of cl 7 generally, LDM relied heavily on Moorebank 2015. The factual circumstances were quite different and the application of cl 7 was directed to different questions in that case to those that arise here. Moorebank 2015 concerned a challenge to the validity of development consent for the construction of a marina and related facilities on grounds that the consent authority had failed to comply with cl 7 of SEPP 55. There was no dispute that the development was on specified land and gave rise to a change of use of land from extractive industry to a proposed marina if the DA was approved. Moorebank 2015 held that satisfaction of cl 7(1), (2) and (3) was “jurisdictional” in the sense that they are “preconditions to a valid exercise of the power to determine the development application by granting consent” per [189]. The key issue to which the judgment was largely directed was the lack of the necessary report on contamination required by cl 7(1), (2) and (3). There was no dispute that cl 7(1)(b), (c) and subcll (2) and(3) applied.
Preston CJ in Moorebank 2015 held at [3] and [199] that the consent authority failed to comply with cl 7 and therefore breached the EPA Act, invalidating the consent. His Honour held at [45] that cl 7 of SEPP 55 establishes two sets of preconditions to the exercise of the power under s 80(1) of the former EPA Act (now s 4.16(1)) by a consent authority to determine a DA for consent to carry out development on land. These requirements are outlined as follows:

46. First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of “a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.
…
58. Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose.

Preston CJ made findings about the requirements cl 7 imposed for preparing the necessary report on contamination including that:

to enable the consent authority to determine whether a detailed investigation is warranted, the applicant must provide to the consent authority “a report specifying the findings of the preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”, at [57]. The report must state in explicit terms and with clarity and precision what are the matters found or ascertained from the preliminary investigation of the land concerning the potential for site contamination, at [106];

the report must be readily discernible as a single entity even though it may be made up of one or more documents or parts of documents, at [82], [104];

the Contamination Guidelines require a detailed appraisal of the site’s history and a conclusion needs to be reached from that site history appraisal as to whether potentially contaminating activities carried out on the land in the past have had an impact on the land. If so, sampling and analysis will be required to confirm and support the conclusion reached from the site history appraisal. The sampling and analysis has to be undertaken for the purpose of cl 7 of SEPP 55 in accordance with the Contamination Guidelines; it is not any sampling and analysis for any other purpose that will suffice, at [102];

In Moorebank 2015 there had been no investigation of the contamination of the portion of the site on which the marina development was proposed to be carried out as it was still being used for extractive industry activities, at [95]. There had been a contamination investigation on adjoining land and contamination of the development site could be investigated on the cessation of the extractive industry activities per [96]. Preston CJ held that the few statements in the EIS noting the current extractive industry activities being carried out on the land did not constitute a “detailed appraisal of the site’s history” in accordance with the Contamination Guidelines per [100]. Further the sampling and analysis in the EIS were for different purposes and not in accordance with the Contamination Guidelines per [101].
LDM’s lengthy submissions relying on Moorebank 2015 focussed extensively on the type of report that was required on the assumption that cl 7(1)(b) and (c) and cl 7(2) and (3) applied to submit that no such report was prepared as part of the EIS or anywhere else. The PSI Report was criticised as only considering adjoining land not the stadium land as is clear from the extract in [19] above. Submissions were made that compliance with the Contamination Guidelines required soil sampling and testing of the stadium area to be undertaken. The PSI Report did not contain that information. Similar criticisms were made in Moorebank 2015. The threshold question however, which is largely a matter of statutory construction, is whether and how the subclauses of cl 7 applied at all in the circumstances of this case to the Minister’s determination. Moorebank 2015 cannot provide much assistance on the statutory construction issues arising concerning the application of subcll (1), (2) and (3) of cl 7. The DA in issue was not a concept DA with a staged development envisaged as is the case here.

Application of cl 7(1)

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

... the site is suitable for the demolition of the existing stadium structure down to existing slab level with no ground disturbance, whilst the Phase 1 Contamination Assessment confirms that the site is expected to be suitable for the proposed use but that further detailed site investigation will be required to accompany the Stage 2 Development Application to confirm any further measures required to be implemented.

This is further supported by the EIS at s 6.17 extracted at [18] above:

The Stage 1 Demolition scope for which development consent is sought as part of this application involves the demolition of the existing slab down to slab level only. Accordingly, no soil will be disturbed and accordingly no contamination impacts are expected to arise as a result of those detailed works for which consent is sought.

Having referred to the assessment offered in the EIS, the Department Assessment Report concluded at Appendix B that “[t]he Department is satisfied that the Applicant has considered whether the land is contaminated and is also satisfied in its current state, for the land use proposed as part of Stage 1 of the proposed development”. The Minister adopted that assessment which was open to him having regard to the conclusions of the PSI Report and the scope of the Stage 1 works.
In the alternative the Minister submitted that the PSI Report satisfied cl 7(1)(b). It is not necessary to consider that argument in light of my finding immediately above.

Application of cl 7(2), (3)

Under cl 7(2) consent to carry out development that involves a change of use of any land specified in subcl (4) must not be determined unless a report specifying the findings of a preliminary investigation of the land concerned which complies with the Contamination Guidelines has been carried out. Subclause (4)(b) refers to land on which development for a purpose referred to in Table 1 in the Contamination Guidelines is known to have been carried out. As the PSI Report in the EIS records, the land was used formerly for defence uses and agriculture, both of which appear in Table 1.
The application of cl 7(2) hinges on there being a change of use of land. Whether that occurs in relation to the concept and Stage 1 demolition consent is disputed. I accept the Minister’s submission that cl 7(2) was not engaged because the Minister did not determine an application for development consent that would involve a change of use on any land specified in subcl (4). The Stage 1 works are for demolition of the existing stadium and other buildings to slab level and ancillary works on the MP1 carpark area. This was identified in numerous plans annexed to the EIS to which the Court was directed by LDM. The new stadium footprint will subsume all the demolished buildings. The definition of development in s 1.5(1)(a) and (e) of the EPA Act distinguishes between “use of land” and “demolition of a building or work” as distinct forms of development. Demolition alone does not involve a change of use of land. This approach is supported by s 4.19 of the EPA Act which states that consent for the erection of a building authorises its use. There is no similar provision relating to demolition.
LDM submitted that subcl (2) should be construed differently to subcl (1) as subcl (2) does not refer to purpose. It is not referring to a change of use in a planning sense but in regard to actual use. LDM submitted that Moorebank 2018 supported such an approach. The Court of Appeal considered cl 6 and the requirements for the inclusion of land in a particular zone which permits a change of use. As the SCG Trust submitted the consideration of land in that context is likely to be broader than in cl 7. If the focus is on actual use of land for demolition it is difficult to conclude that the development approved gave rise to a change of use of the land as I have found it to apply in relation to cl 7(1) at [179] above.
LDM submitted that cl 7 should be construed in light of cl 6.21(2) of SLEP concerning the word “involve” in the phrase “development involving the erection of a new building”. No statutory construction principle requires or supports that being done where the context for each instrument is quite different and the wording is not identical.
Although not strictly arising given my finding that demolition does not give rise to a change of use in the context of this consent, I note that LDM submitted that there was a change of use of stadium land as summarised above in [153]-[154] because the current use of the site includes commercial uses outside the stadium in buildings such as the Sheridan building and the occupation by Cricket NSW which does not use the stadium. I do not accept that characterisation of the use of land around the stadium building for the reasons given by the Minister. The Minister submitted that as the EIS noted at s 6.17 (extracted above at [18]) in relation to the concept proposal at large “[t]he land use on the site will not change as a result of the Concept Proposal, with the continuation of the stadium use”. This characterisation of land use is entirely consistent with established authority such as Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Preston CJ) at [27] (Chamwell). The consent did not involve a change of use from car parking, open space and commercial buildings to a stadium by approving an envelope which consumed much of the land on which non-stadium activities are presently taking place. This is because:

the existing ancillary buildings and indoor wickets and associated facilities are an aspect of the existing stadium (or recreation facility) use. To characterise these parts of the site as “car parking” and “commercial office buildings” is to proceed at an impermissibly specific level of generality on the reasoning in Chamwell. As the EIS at s 3.2.1 noted at pp 235-40 of volume 1 of Ex A, these ancillary buildings and facilities are used by the tenants and venue members of the SCG and SFS;

there is no evidence to suggest that the “ancillary uses” referred to by LDM would represent a departure from the existing use of the site. For example retail outlets presently operate on the site.

neither the Stage 1 works nor the concept proposal have sought consent for a change of use on the land specified in cl 7(4) and the terms of the development consent do not approve a change in use.

The terms of s 14 of the SCG Act referred to by the SCG Trust as extracted in [165] above also support the Minister’s approach that there is no change in the use of land as a consequence of the concept consent.
As cl 7(2) is not engaged neither is cl 7(3) as it tasks the applicant for development with carrying out an investigation and preparing a report if subcl (2) is engaged. As the Minister submitted it is clear from the Department Assessment Report and conditions of development consent that the Minister deferred consideration of a Stage 2 detailed investigation report for the purpose of cl 7(3) by requiring that “future development application must be accompanied by detailed environmental site investigations to identify contaminants of potential concern and any potential sources of contamination within the ground, groundwater and infrastructure beneath the site” and that the record of investigations be accompanied by a Phase 2 environmental site assessment (per conditions C23-25 of the development consent extracted above at [28]). This course of action was entirely consistent with both s 4.22 of the EPA Act and the Contamination Guidelines for several reasons:

the Minister was only required to consider contamination in respect of the Stage 1 works and reached the view based on the PSI Report, that the land was suitable in its current state for the purpose of that development because of the limited nature of the Stage 1 works. A detailed investigation was unnecessary for the purposes of the demolition that was to be carried out within the meaning of s 4.22(4) as a result of the terms of the consent issued by the Minister;

the Contamination Guidelines themselves make clear that the purpose of the preliminary investigation is to “determine whether land contamination is relevant to the decision being made” at s 3.2 extracted at [29] above. They provide at s 3.5.2 that if “there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way”. That is precisely what occurred here; there was sufficient information to satisfy the Minister that the Stage 1 works could proceed notwithstanding any contamination; and

the Contamination Guidelines themselves contemplate the deferral of a Stage 2 detailed investigation to a later stage of a staged da. The Contamination Guidelines do not mandate that detailed sampling be undertaken as soon as a likelihood of contamination is recognised. They expressly provide that at s 3.5.2 as extracted at [29] above:

Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences.

The Minister correctly submitted that this is not a case like Moorebank 2015 where consideration of the results of a contamination assessment was deferred until after the consent authority arrived at its decision. Here the results of the Stage 2 investigation will be considered at the point that the investigation becomes relevant to the assessment required under cl 7. That is, when the consent authority is considering the suitability of the land for the purpose of a development which might involve contamination risks through the disturbance of soil.
The Minister’s alternative argument that cl 7(2) was satisfied by the PSI Report in any event need not be considered.
A slightly different basis for why cl 7 did not apply at all was submitted by the SCG Trust to the effect that no land which engages SEPP 55 is the subject of the concept approval nor is there a change of use of land for the purposes of cl 7(2). That argument is set out in full above at [164]-[170]. There is substantial merit in it and is an alternative basis for finding that there was no failure by the Minister to comply with cl 7 when he granted development consent.
LDM has not established Ground 3.

Conclusion

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

Orders

The orders in both proceedings are as follows:

In proceedings 19/39988:

The Applicant’s amended summons dated 6 February 2019 is dismissed.
Costs are reserved.

In proceedings 19/43610:

The Applicant’s summons dated 8 February 2019 is dismissed.
Costs are reserved.

**********

Decision last updated: 07 March 2019

Medium Neutral Citation:	Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20
Hearing dates:	20-22 February 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [204] of judgment
Catchwords:	Judicial review – challenge to Minister for Planning’s grant of development consent to concept development application including Stage 1 demolition of Sydney Football Stadium – no failure to comply with mandatory public exhibition period – no failure to comply with Sydney Local Environmental Plan 2012 concerning design excellence – no failure to comply with State Environmental Planning Policy 55 Remediation of Land
Legislation Cited:	Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 3, 4A, 5 Environmental Planning and Assessment Act 1979 ss 1.3, 1.4, 1.5, 2.22, 4.2, 4.9, 4.10, 4.11, 4.12, 4.15, 4.16, 4.19, 4.21, 4.22, 4.23, 4.24, 4.36, 4.37, 4.38, 4.39, 4.40, 4.41, 4.43, 4.60, 4.64, 9.44, 9.45, 9.46, 10.13, Sch 1 Environmental Planning and Assessment Amendment Act 2017 Sch 13 Environmental Planning and Assessment Amendment Bill 2017 Environmental Planning and Assessment Regulation 2000 cl 83 Heritage Act 1977 s 57 Interpretation Act 1987 s 30A Land and Environment Court Act 1979 s 56A Parramatta Local Environmental Plan 2011 State Environmental Planning Policy No 55—Remediation of Land cll 2, 4, 7 Sydney Cricket and Sports Ground Act 1978 s 14 Sydney Local Environmental Plan 2012 cll 6.21, 7.19, 7.20
Cases Cited:	4nature Incorporated v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121 Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Albury City Council v North Albury Shopping Centre Pty Limited (1985) 1 NSWLR 220 Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Curac v Shoalhaven Shire Council (1993) 81 LGERA 124 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Franklins Ltd v Penrith City Council [1999] NSWCA 134 Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council [2018] NSWLEC 26 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 Parramatta City Council v Hale (1982) 47 LGRA 319 People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 S J Connolly Pty Ltd v Ballina Shire Council (2010) 175 LGERA 408; [2010] NSWLEC 151 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Texts Cited:	Pearce & Geddes, Delegated Legislation in Australia (5th ed, 2017, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Matter No 19/39988 Local Democracy Matters Incorporated (INC 1700616) (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent) Matter No 19/43610 Waverley Council (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent)
Representation:	Matter No 19/39988 COUNSEL: T Robertson SC and J Lazarus (Applicant) S Duggan SC and J McKelvey (First Respondent) M Astill (Second Respondent) R Beasley SC and M Ellicott with M Sherman (Third Respondent) Submitting appearance (Fourth Respondent) SOLICITORS: Stringybark Legal (Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Matter No 19/43610 COUNSEL: P Clay SC and M Hall (Applicant) S Duggan SC and J McKelvey (First Respondent) M Astill (Second Respondent) R Beasley SC and M Ellicott with M Sherman (Third Respondent) Submitting appearance (Fourth Respondent) SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent)
File Number(s):	19/39988; 19/43610

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

Requirement	Reference
…
Key Issues – Concept Proposal	EIS	Appendix
The EIS must address the following specific matters: 1. Statutory and Strategic Context – including: Address the statutory provisions contained in all relevant environmental planning instruments, including: … • Sydney Local Environmental Plan 2012; and …
…
4. Design Excellence • Describe the design process leading to the Concept Proposal.	Section 5.1 and 6.4	Appendix C-section 7
• Provide design quality guidelines for the future built form and integration of landscape design.	Section 5.1 and 6.4	Appendix C-section 8
• Provide a Design Excellence Strategy, developed in consultation with, and to the satisfaction of, the Government Architect NSW, for the future stages of the development which demonstrates how design excellence will be achieved. This strategy should set out: o the design process leading to the Concept Proposal; o the type and details of the competitive design excellence processes proposed to be undertaken, in accordance with clause 6.21 of the Sydney LEP, and clear rationale for this process having regard to established design excellence policy context and best practice; o a method setting out how the proposed design excellence, public domain and landscape excellence process will be implemented as part of the planning process; and o details of the method for the incorporation of sustainability into design.	Section 5.1 and 6.4.3	Appendix D
5 Built Form and Urban Design • Outline consultation with the Government Architect NSW and how the feedback has been incorporated into the Concept Proposal;	Section 6.4.3	Appendix D Appendix G-section 8.5.3
• Provide a detailed justification for the building envelope, supported by an urban design analysis, to justify that the proposed built envelope location and design are based on careful consideration of the benefits and potential impacts in the context of the immediate locality and the broader Sydney CBD area;	Section 6.4	Appendix C-section 7
• Provide appropriate design guidelines and development parameters within the context of the locality, including but not limited to: o site analysis; o site layout; o gross floor area; o building footprints; o height and massing of the building envelopes; and o open spaces, landscaping, green infrastructure and tree planting to improve amenity and reduce urban heat island effect;	Section 5.1 and 6.4	Appendix C-sections 7, 89 and appendices
• “Demonstrate how the design of the development will be integrated into the City of Sydney and fit within the context of the site and the existing and future desired character of Moore Park area, including the adjacent Sydney Cricket Ground; and	Section 6.4	Appendix C-section 7
• Provide an in indicative building and landscape design showing a possible built form within the proposed building envelope.	Section 6.4	Appendix C- Appendices

No	Extract	Response
…	…	…
Design Excellence Strategy
COS29	Structure and terminology Parts 1, 2 and 3.2 of the Design Excellence Strategy are outside of the scope of the matters required for inclusion in a Design Excellence Strategy prepared in accordance with Provision 1.2 of the City of Sydney Competitive Design Policy (the Policy). Part 1 and 2 is information that would be included in a Competitive Design Process Brief. The following comments are limited to Part 3 of the Strategy which address the relevant matters as stated at provision 1.2 of the City of Sydney Competitive Design Policy (the Policy).	Provision 1.2 of the City of Sydney Competitive Design Policy does not operate to restrict the inclusions of matters within a Design Excellence Strategy. Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs.
COS30	Design integrity process Section 3.2 of the Strategy titled Design Integrity Process states the continuation of the role of the assessment panel (Selection Panel) following the competitive process through the design development phase. As noted above (under structure and terminology), this process sits outside the scope of the matters required in a strategy. The Strategy should confirm and clarify the proposed Design Integrity Process is in addition to and does not override the requirements of the design integrity provisions at provision 5.1 of the Policy.	Appendix D- Design Excellence Strategy of the exhibited EIS addresses comments made by Government Architect NSW and has been developed to the satisfaction of Government Architect NSW as required by the SEARs. The provision of a Design Integrity Panel is seen as a positive commitment that will ensure the maintenance of design integrity throughout the process. The provisions of Section 5.2 of the Policy only require the convening of a Design Integrity Assessment prior to the lodgement of the Stage 2 application. The process proposed in Appendix D- Design Excellence Strategy section 3.2 allows for ongoing interaction with the competition jury to ensure maintenance of the integrity of the design throughout all stages.
COS31	Urban Design Guidelines The Design Excellence Strategy indicates that the future designs submitted as part of the competitive design process will be assessed against the Urban Design Guidelines prepared by SJB Architects (along with the requirements of Sydney LEP 2012 and the principles outlined in the Government Architect’s “Better Place – An Integrated Design Policy for the Built Environment of New South Wales). Accordingly, Attachment A contains the City’s recommended changes to the Urban Design Guidelines.	Noted.
…	…	…

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