Local Democracy Matters Incorporated v Infrastructure NSW

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

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 Specifically, the court considered whether the repealed section 89F of the EPA Act, which stipulated a minimum exhibition period of 30 days, was a "relocated" provision under clause 4A(2) of the *Environmental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

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for the Concept DA met the statutory requirements, interpreting the relevant transitional provisions to mean that the repealed section 89F did not apply in the manner contended by LDM.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

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