North Parramatta Residents Action Group v Infrastructure NSW

[2021] NSWLEC 60

Land and Environment Court

New South Wales

Medium Neutral Citation:

North Parramatta Residents Action Group v Infrastructure NSW [2021] NSWLEC 60

Hearing dates:

24 and 25 May 2021

Date of orders:

16 June 2021

Decision date:

16 June 2021

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [339]

Catchwords:

JUDICIAL REVIEW ‑ Minister grants development consent to Powerhouse Parramatta ‑ original development application proposes demolition of “Willow Grove” and “St George’s Terrace”, local heritage items listed in the Parramatta Local Environmental Plan 2011 ‑ development modified during environmental impact statement (EIS) submission and consideration process ‑ proposed demolition of “St George’s Terrace” abandoned ‑ final proposal envisages “Willow Grove” will be disassembled and re‑erected at another site ‑ North Parramatta Residents Action Group challenges validity of consent ‑ adequacy of EIS ‑ interaction between cl 7 of Sch 2 of the Environmental Planning and Assessment Regulation 2000 with the Secretary’s Environmental Assessment Requirements (SEARs) ‑ extent of requirement to examine feasible alternative sites ‑ extent of requirement to examine feasible alternative designs retaining “Willow Grove” ‑ whether EIS compliant with cl 7(1)(c) of the Regulation and with the SEARs ‑ if not compliant, was the EIS substantially compliant with the requirements of cl 7(1)(c) of the Regulation and with the SEARs - EIS substantially compliant ‑ Summons dismissed ‑ costs reserved

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 2.5, 4.39, 4.60 and 5.16

Environmental Planning and Assessment Regulation 2000, cll 3(8), 6, 7, 9 and 9(1) of Sch 2

Infrastructure NSW Act 2011

Land and Environment Court Act 1979, s 25

Parramatta Local Environmental Plan 2011

Cases Cited:

Botany Bay City Council v Minister for Planning (2006) 148 LGERA 251; [2006] NSWLEC 194

Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343

Helman v Byron Shire Council (1995) 87 LGERA 349

Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79

Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158

Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 403

Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Rosemount Estates Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 1

Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21

Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

Category:

Principal judgment

Parties:

North Parramatta Residents Action Group (Applicant)
Infrastructure NSW (First Respondent)
Minister for Planning and Public Spaces (Second Respondent)

Representation:

Counsel:
Mr T Hale SC/Ms P Hart, barrister (Applicant)
Mr R Lancaster SC/Mr T Boyle, barrister (First Respondent)
Mr R Beasley SC/Ms M O’Brien, barrister (Second Respondent)

Solicitors:
Stacks Champion (Applicant)
King & Wood Mallesons (First Respondent)
NSW Department of Planning, Industry and Environment (Second Respondent)

File Number(s):

81248 of 2021

Publication restriction:

No

TABLE OF CONTENTS

Preamble

Introduction to the decision

The project’s site

Ownership of the site

The project developer

The proceedings

The interlocutory application

The hearing

Representation

The Evidence

Introduction

Extracts from the documentary evidence

The Statement of Agreed Facts

A visual understanding of the proposal

Introduction

Image 1

Image 2

The plan

The Parramatta context air photo

A photograph of “Willow Grove”.

A description of “Willow Grove”

The design selection process

The present status of the project

Introduction

The contractual arrangements

The development assessment process

Introduction

The Secretary’s Environmental Assessment Requirements

The EIS process

Relevant statutory provisions

Matters for determination

Introduction

The primary matters for determination

The specific EIS compliance issues

The submissions for the Residents Action Group

Introduction

The documentary material to which Mr Hale referred

Introduction

The material in the EIS document proper

The Statement of Heritage Impact

The Design Excellence Report

Notice of Decision

Departmental Assessment Report

The RtS Report

Public submissions

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

The submissions for the proponent

Introduction

Mr Lancaster’s oral submissions

The proponent’s written submissions

The submissions for the Minister

Introduction

Mr Beasley's oral submissions

The written submissions for the Minister

The Resident Action Group’s submissions in reply

Consideration

Introduction

Is there an obligation to consider alternative sites?

The adequacy of the EIS in assessing alternative sites

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

Introduction

Discerning the objectives conflicting with the retention of “Willow Grove”

Conclusion

Costs

Orders

Annexure A

Judgment

Preamble

1. It is to be emphasised that this decision does not consider (and I am not legally permitted to consider) the merit of the site selected for the Powerhouse Parramatta or the design selected for the museum facility to be constructed on the site.

2. In particular, I am not permitted to consider any merit issues relating to whether or not “Willow Grove”, a local heritage item recognised in the Parramatta Local Environmental Plan 2011 (the PLEP 2011), should be retained on the site.

3. This decision only concerns the validity of the Environmental Impact Statement (EIS) relied upon by the Minister for Planning and Public Spaces (the Minister) to grant development consent to the construction of the Powerhouse Parramatta. The North Parramatta Residents Action Group (the Residents Action Group) challenges the validity of the EIS. The challenge is made because the Residents Action Group considers that the EIS did not meet the necessary statutory requirements and is, therefore, invalid. If the EIS is invalid, the Residents Action Group submits that the Minister’s development consent should then be held to be invalid.

Introduction to the decision

4. The Museum of Applied Arts and Sciences (the Museum) has its headquarters and primary exhibition spaces at the Powerhouse Museum on the south‑western fringe of Sydney's central business district. The Museum also has satellite operations at the Sydney Observatory at Observatory Hill and at the Museum’s Discovery Centre at Castle Hill in Sydney's north‑west. In 2015, the NSW Government announced a plan to relocate the Powerhouse Museum from its present site to Parramatta.

5. That plan has subsequently been revised so that what is now intended is that there will be established a major new element to the Museum, to be known as the Powerhouse Parramatta (the project), to be constructed on a site on the southern bank of the Parramatta River on the northern fringe of the Parramatta Central Business District (Parramatta CBD) and immediately to the east of Church Street, a major north‑south thoroughfare running through Parramatta’s central business district.

6. The project is State Significant Development, by virtue of it being for a cultural or educational development having a project value greater than $30 million. The Minister was the consent authority. Development consent was granted by the Minister for construction of the Powerhouse Parramatta on 11 February 2021.

The project’s site

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

Ownership of the site

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

The project developer

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

The proceedings

10. On 22 March 2021, the Residents Action Group commenced Class 4 proceedings challenging the validity of the development consent granted by the Minister for the carrying out of the project. The invalidity is said to arise as the EIS, the Residents Action Group says, is itself fatally flawed and cannot thus provide a proper foundation for the development application for the project.

11. The Summons commencing the Residents Action Group’s challenge to the Minister’s consent was subsequently amended by leave granted pursuant to a Notice of Motion filed on 20 May 2021. The application to rely on an Amended Summons was not opposed by either Infrastructure NSW or the Minister. The amendments made were, essentially, tidying up ones ‑ ones not involving amendments of substance or significance. As a consequence, it is sufficient for the purposes of providing context for these proceedings that the terms of the Amended Summons only be reproduced. The Amended Summons is in the following form:

Orders Sought

1   A declaration that the development consent granted by the Second Respondent on 11 February 2021 to the development application made by the First Respondent described in the Schedule is invalid and of no force or effect.

2   An order that the First Respondent be restrained from carrying out the development described in the Schedule on the land described in the Schedule.

3   An interlocutory order in terms of Order 2.

4   Such other order or orders as the Court may see fit to make.

Schedule

Application No:   SSD 10416

Applicant:   Infrastructure NSW

Consent Authority:    Minister for Planning and Public Spaces

Land:   30B, 34, 36‑38, 40, 42 and 44‑54 Phillip Street, Parramatta
Lot 1 DP 128474, Lot 1 DP 1247122 and Lot 2 DP 1247122

Development:    Powerhouse Parramatta development including:

●   removal of existing buildings and trees, relocation of Willow Grover and retention of St George’s Terrace;

●   construction of two buildings up to the RL 79.2 m, with a gross floor area of 24,516 m2 for museum and ancillary uses;

●   vehicle servicing, coach pick‑up/drop‑off facilities, bicycle parking and road amendments; and

●   public domain improvement including publicly accessible open spaces, landscaping and creation of a through‑site link.

Details of Decision

1   The decision maker was the Minister for Planning and Public Spaces.

2   The decision to be reviewed was the purported decision approving consent for the development application SSD‑10416 for the Powerhouse Parramatta development.

3   The Plaintiff seeks relief from the whole of the decision.

Grounds

1   On 11 February 2021, the Second Respondent (the Minister) granted consent to the development application (the DA) described in the Schedule to the Summons made by the First Respondent for the development of the Powerhouse Parramatta (the Development), more particularly described in the Schedule, on the land in Phillip Street, Parramatta known as “Willow Grove” (the Land), which Land is described in the Schedule.

2 The Development is State Significant Development pursuant to s 4.36 of the Environmental Planning & Assessment Act 1979 (the Act).

3   On the Land, the subject of the DA, there presently exists a heritage item under the Parramatta Local Environmental Plan 2011, being buildings and grounds known as “Willow Grove”.

4   The development, the subject of the DA, included the removal of heritage item, that is the removal of the existing buildings and trees known as “Willow Grove”.

5   Pursuant to s 4.12(8) of the Act, the DA was required to be accompanied by an Environmental Impact Statement (EIS) prepared by or on behalf of the First Respondent in the form prescribed by the Environmental Planning & Assessment Regulation 2000 (the Regulations) which, inter alia, required that the EIS comply with:

(a) clause 7 of Schedule 2 of the Regulations;

(b) the Planning Secretary’s environmental assessment requirements (SEARS) provided pursuant to clause 3 of Schedule 2 of the Regulations.

6   In breach of s 4.12(8) of the Act the DA was not accompanied by an EIS prepared in the form prescribed by the Regulations in that:

(a) the EIS did not comply with clause 7(1)(c) of Schedule 2 to the Regulations which requires the EIS to include an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure;

(b)   the EIS did not comply with the SEARS dated 10 February 2020 which required the EIS to demonstrate attempts to avoid and/or mitigate the impact on the heritage significance or cultural heritage values of the site and the surrounding heritage items and heritage conservation areas and to outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained “Willow Grove” and St George’s Terrace.

7   By reason thereof:

(a)   there was not an application for development consent within the meaning of a 4.12 of the Act capable of being determined by the grant of development consent pursuant to s 4.16 of the Act;

(b)   the purported development consent granted by the Second Respondent on 11 February 2021 is invalid and of no force and effect;

(c)   the Applicant is entitled to the relief sought.

The interlocutory application

12. A Notice of Motion filed by Infrastructure NSW came before me as the List Judge on 23 April 2021. That Notice of Motion relevantly sought:

1   ORDER, that the proceedings with case number 2021/00081248 be expedited;

13. In lieu of formally granting expedition, as proposed by the Infrastructure NSW, early hearing dates of 24 and 25 May 2021 (based on the parties’ agreed estimate of a two‑day hearing) were allocated with the Respondents explaining the desirability of an early decision (if possible) in light of the contractual timetable later set out.

The hearing

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

Representation

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

The Evidence

Introduction

16. The evidence was entirely documentary. Extensive documentation from the EIS process (including the EIS itself, together with its various appendices), the “Response to Submissions Report” (RtS Report) prepared as a result of the public exhibition, and other subsequent documents in the process of evolution of the development application addressing the terms of the project as originally propounded by Infrastructure NSW through to documents explaining its evolution to the form of the proposal to which the Minister granted development consent on 11 February 2021 were tendered.

17. Exhibit 3 comprised the Statement of Agreed Facts (at Tab 5 of the Court Book). The Statement of Facts, although originally headed as being the “First Respondent's Statement of Facts”, was tendered, without objection, as an agreed document (Transcript 24 May 2021, page 18, lines 41 and 42).

18. Exhibit 4 is the Summary Business Case, published on the Infrastructure NSW website.

19. Exhibit 21 (the Minister’s first exhibit) is a letter from the Department to the proponent setting out additional matters required to be addressed in the RtS Report.

20. On the morning of the second day of the hearing, Infrastructure NSW provided a comprehensive list of the documentary evidence which had been tendered to that time. The list is somewhat lengthy, but it is appropriate to reproduce it as Annexure A to this decision to provide a proper understanding of the range of material in evidence.

21. Two affidavits were read on behalf of Infrastructure NSW. The first of these affidavits was from Mr Tom Gellibrand. Mr Gellibrand is employed by Infrastructure NSW as its Head of Projects NSW. The second affidavit was from Ms Lisa Havilah. Ms Havilah holds the position of Chief Executive of the Museum. Neither of the deponents were required for cross‑examination.

22. It is also to be noted that I expressed to Mr Lancaster my concern that some of the elements in Mr Gellibrand’s affidavit (where he addressed the question of potential impacts on third parties if there was significant delay to the present proposed timetable of the project) involved speculation on Mr Gellibrand’s behalf. However, this aspect of his evidence would only require to be weighed on matters of discretion should I have concluded that any inadequacies in the EIS and the approval process warranted consideration of whether (and to what extent) it would be appropriate for the Court to intervene with respect to future progress of the project.

Extracts from the documentary evidence

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

The Statement of Agreed Facts

24. As earlier noted, a Statement of Agreed Facts became Exhibit 3. The Statement of Agreed Facts is reproduced below:

AGREED STATEMENT OF FACTS

The Parties

1   The Applicant is an association incorporated under the Associations Incorporation Act 2009 (NSW) and is able to sue.

2   The First Respondent is Infrastructure NSW (INSW), a NSW Government agency.

3   The Second Respondent is the Minister administering the Environment Assessment and Planning Act 1979 (NSW) (EPA Act) and is the relevant decision‑maker, the subject of these proceedings.

The Landowners

4   The site comprises three parcels of land, being Lots 1 and 2 in DP1247122 and Lot 1 in DP128474.

5   In April 2019, the Planning Ministerial Corporation became the registered proprietor of Lots 1 and 2 in DP1247122. The Planning Ministerial Corporation is a NSW Government agency which forms part of the Department of Planning, Industry and Environment (DPIE), subject to the control and direction of the Second Respondent.

6   In July 2019, Property NSW became the registered proprietor of Lot 1 in DP128474. Property NSW also forms part of the DPIE.

Details of Decision

7 The decision to be reviewed is the decision of the Second Respondent pursuant to section 4.38 of the EPA Act dated 11 February 2021 granting consent to the development of the Powerhouse Parramatta.

Background

8   On 26 February 2015, the then NSW Premier Mike Baird and the Deputy Premier Troy Grant announced the NSW Government's plan to move the Powerhouse Ultimo to Parramatta to establish a cultural institution within Western Sydney.

9   On 24 January 2019, Create NSW within the Department of Premier and Cabinet commenced an international design competition for the Powerhouse Parramatta.

10   On 8 May 2019, six international design teams were shortlisted by the Shortlisting Panel which concluded Stage 1 of the international design competition. The Shortlisting Panel was chaired by Naomi Milgrom AO and its members comprised a subset of the Stage 2 competition jury.

11   On 16 December 2019, the Minister for Arts, Don Harwin announced Moreau Kusunoki and Genton as the winner of Stage 2 of the international design competition.

12 Powerhouse Parramatta is State Significant Development under section 4.36 of the EPA Act as the development is specified in Schedule 1 of State Environmental Planning Policy (State and Regional Development) 2011.

13   Two parts of the Powerhouse Parramatta site, “Willow Grove” and St George’s Terrace, are locally listed heritage items under the Parramatta Local Environmental Plan 2011 (PLEP). These buildings are not subject to a state heritage listing.

14   A Request for Secretary's Environmental Assessment Requirements (SEARs) was made on 13 January 2020.

15   An Environmental Impact Statement (EIS) was prepared on 2 June 2020.

16   From 10 June 2020 to 21 July 2020, the EIS for the development was publicly exhibited for an extended period of 42 days.

17   On 31 July 2020 the Secretary provided to INSW the submissions received during the exhibition period and made a written request to INSW that it provide a written response to those submissions.

18   On 8 October 2020, INSW submitted its initial Response to Submissions (RtS). The RtS was notified to Council and relevant agencies and made publicly available on the DPIE's major project website on 8 October 2020.

19   From October 2020 to 21 December 2020 further submissions were made by agencies and the public in relation to material contained in the RtS.

20   On 2 November 2020, INSW provided a response to a request for information from the OPIE in relation to the retention of St George’s Terrace. A copy of this response was made publicly available on the DPIE's major project website on 16 November 2020 and identified as "RFI 1".

21   On 27 November 2020, the OPIE made a written request to INSW to provide a response to the issues identified in further public and public authority submissions to the RtS on the DPIE's major project website.

22   On 30 November 2020, INSW provided a response to the issues identified in further public and public authority submissions on the RtS. A copy of this response was made publicly available on the DPIE's major project website on 3 December 2020 and identified as "RFI 2".

23   On 21 December 2020, the OPIE made a written request to INSW to provide a consolidated response to all submissions received by the public, Council and agencies in response to the RtS.

24   On 19 January 2021, INSW provided a response to the submissions by the public, Council and agencies on the RtS.

25   On 20 January 2021, INSW provided an additional supplementary response to the matters raised in relation to the RtS and requests for additional information by the DPIE. The responses of 19 January and 20 January 2021 made publicly available on the DPIE's major project website on 21 January 2021 and both identified as "RFI 3".

26   In February 2021 OPIE published its Assessment Report.

Planning Minister's Decision

27   On 11 February 2021, the Second Respondent granted development consent to Powerhouse Parramatta.

28 The Minister's reasons for the decision, contained in the Notice of Decision were issued on 11 February 2021.

29 The Minister's Notice of Decision expressly adopts the Assessment Report as forming part of its reasons for determination.

25. As can be seen, the primary utility of the above document is its chronological setting out of the various steps in the process from the initial policy determinations of the NSW Government (for the originally proposed complete relocation of the Museum from its present site at Ultimo to the selected site on the banks of the Parramatta River) to the granting by the Minister in February 2021 of development consent to the project now involving the establishment of Powerhouse Parramatta but with the retention of the current Museum facility at Ultimo.

A visual understanding of the proposal

Introduction

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

Image 1

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

I

Image 2

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

The plan

29. It is next appropriate to reproduce a plan of the site (Exhibit A‑1, folio 278), one which shows, relevantly, the following:

1. In outline, the rectangular footprints of the two major buildings depicted in the first of the above images. These outlines show the orientation of the proposed buildings and, although proposed to be constructed some four metres above ground level, the walkway between the two major buildings; and

2. As a solid black footprint, the location and dimensions of “Willow Grove”.

30. As can be seen on the below plan, the majority of the footprint of “Willow Grove” is within the space identified to provide the later discussed connectivity (by the Civic Link) between the Phillip Street frontage and the riverbank walkway. As can also be seen, portions of the footprint of “Willow Grove” are also within the footprints of the two major buildings proposed for the project.

The Parramatta context air photo

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

A photograph of “Willow Grove”.

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

A description of “Willow Grove”

33. In addition to the photograph reproduced immediately above, it is also appropriate to reproduce a brief description of “Willow Grove” (including elements of its history) to provide a word picture to assist in providing an understanding why the Residents Action Group has mounted these judicial review proceedings.

34. However, it is important, in this context, to note that this decision addresses only issues of compliance or otherwise with mandated statutory processes and does not address (and I am not permitted to address) merit matters relating to the proposed deconstruction and removal of “Willow Grove” from the site or of the merits of the design of the project.

35. The brief description of “Willow Grove” is in the following terms (Exhibit A‑1, folio 36):

Willow Grove is an item of local significance for historical, aesthetic and representative reasons. It was built in the 1870s as a private villa and later became a maternity hospital called Estella. “Willow Grove” is one of four remaining buildings of its type in the Parramatta Council area. It is a good example of a Victorian Italianate two‑storey villa, readily identifiable as part of historic building stock and strongly contributing to the streetscape in spite of its large setback, partly through its notable fence. It has been subject to alterations at the rear of the house which include the introduction of an auditorium and enclosed courtyard. Mature trees on the “Willow Grove” site are also considered to have local heritage significance in association with the building.

The design selection process

36. An international design competition was run to select designers for the project.

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

• Naomi Milgrom AO (Jury chair), Business Leader, Philanthropist

• Kim Crestani, City Architect, City of Parramatta Council

• David Gianotten, Managing Partner ‑ Architect, OMA

• Lisa Havilah, Chief Executive, Powerhouse

• Wendy Lewin FRAIA, Principal, Wendy Lewin Architect

• David Riches, (former) Head of Projects, Infrastructure NSW

• Jeanne Gang, Founder and Principal, Studio Gang

38. The entrants were whittled down to a second‑stage group of six potential design teams. These six design teams were then invited to submit a more substantial project proposal for consideration by the jury.

39. At the conclusion of this second‑stage process, the jury selected an architectural consortium of Moreau Kusunoki (France) and Genton (Australia) to provide a final preferred design.

40. The NSW Government accepted the jury's recommendation of these preferred designers and announced, on 16 December 2019, that the project would proceed ‑ based on seeking development consent for the project as a State Significant Development.

The present status of the project

Introduction

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

The contractual arrangements

42. Three principal contracts are proposed to form the legal basis for delivery of the project. These contracts are as follows:

1. The Early Works contract was entered into by Infrastructure NSW on 26 February 2021. It encompasses preliminary site preparation works, with these works being presently ongoing (affidavit of Mr Gellibrand of June 2021).

2. The Ancillary Works contract is to follow on from the completion of the Early Works contract. The deconstruction and removal of “Willow Grove” is an element of the works to be carried out pursuant to this contract. This contract has yet been entered into. This contract was envisaged to have its activities commence on or shortly after 12 April 2021. This contract was originally to be completed in July 2021. However, Infrastructure NSW gave an undertaking that no deconstruction work on “Willow Grove” would commence prior to 21 June 2021 to enable the Resident Action Group’s challenge to the EIS to be heard and determined.

3. The Main Works contract is the primary contract for the major construction activities necessary for the erection and fitout of the project. As at the time of the hearing of these proceedings, tender bids have been sought for this contract; preliminary assessment and a shortlist of potential tenderers selected; but no final contractor selection has occurred (and, self‑evidently, no contract has been entered into). The projected timeline for delivery of the project necessitates that completion of the tender assessment process, and entry into a contract with the selected tenderer, needs to be completed in the comparatively near future if the proposed delivery date for the project is to be achieved.

The development assessment process

Introduction

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

The Secretary’s Environmental Assessment Requirements

44. On 10 February 2020, in response to a request to be provided with the Planning Secretary’s Environmental Assessment Requirements (SEARs) (such requirements being necessary by virtue of the operation of s 5.16 of the EPA Act), the SEARs were provided to Infrastructure NSW as the proponent of the project.

45. It will later be necessary to consider the terms of some of the elements of the SEARs and also the interrelationship between the SEARs and the operation of cl 7 of Sch 2 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Between them, the SEARs and cl 7 of Sch 2 of the Regulation set the framework for the matters which are required to be addressed by the EIS which is mandated to be submitted with the development application for the project. It is appropriate to set out relevant elements of Sections 3, 4, 5 and 6 of the SEARs. These were in the following terms:

3. Built form, heritage and urban design

The EIS shall:

●   outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained Willow Grove and the St George’s Terrace

4. Integration with surrounding area

The EIS shall demonstrate how the proposal:

●   will be designed and staged to integrate with the future development of surrounding sites and the wider redevelopment of Parramatta including Civic Link, River Square, River foreshore and the future laneway to Church Street

●   will address public accessibility, connectivity and major events at Civic Link, River Square and the River foreshore

5. Public domain

The EIS shall:

…

●   address how the public domain responds and contributes to existing and planned future public spaces in Parramatta, including Civic Link, River foreshore and River Square and supports pedestrian and cycle movements in, around and through the site

6. Heritage and Archaeology

The EIS shall include:

●   a Statement of Heritage Impact (SOHI), prepared by a suitably qualified heritage consultant in accordance with the guidelines in the NSW Heritage Manual. The SOHI is to address the impacts of the proposal on the heritage significance of the site and adjacent areas, and is to:

‑   identify all heritage items (state and local and potential) and conservation areas within and near the site, including built heritage, landscapes and archaeology, include detailed mapping of these items and an assessment of why the items and site(s) are of heritage significance

‑   assess the impacts of the proposal on the heritage significance of these items and conservation areas, including visual and physical impacts, vibration, demolition, archaeological disturbance, altered historical arrangements and access, visual amenity, landscape and vistas, setting, and curtilage (as relevant)

‑   address compliance with any relevant Conservation Management Plan, addressing any proposed adaptive reuse and measures to minimise impacts on the building

‑   demonstrate attempts to avoid and/or mitigate the impact on the heritage significance or cultural heritage values of the site and the surrounding heritage items heritage conservation areas

‑   demonstrate engagement with appropriate local stakeholders.

The EIS process

46. The EIS for the project was prepared by Ethos Urban. The development application and the EIS, and a range of other supporting documents, were placed on public exhibition for a period of 42 days commencing on 10 June 2020 and concluding on 21 July 2020. A total of 1,303 submissions were made in response to the documents placed on public exhibition. A Response to Submissions Report (the RtS Report) was prepared after consideration of these submissions.

47. The RtS Report was also exhibited on the departmental website. Some 383 further submissions were made with respect to its contents. In response, a Supplementary RtS Report was also prepared. This Supplementary RtS Report itself attracted four further submissions.

48. It will be later necessary to address the EIS; other exhibited documents supporting the development application; and the RtS Report and what followed from it.

49. However, for present purposes, it is sufficient to note that, after consideration of the development application, its supporting documentation and the material arising from the public exhibition process together with a Departmental Assessment Report, on 11 February 2021, the Minister granted development consent to the project subject to conditions.

Relevant statutory provisions

50. Although there are references to provisions of the EPA Act and the Court Act, it is not necessary to reproduce their terms. However, several clauses from “Schedule 2 Environmental impact statements” to the Regulation do require to be reproduced for a proper understanding of what follows. The relevant elements of these clauses from Schedule 2 are in the following terms:

3   Environmental assessment requirements

(1)   Before preparing an environmental impact statement, the responsible person must make a written application to the Planning Secretary for the environmental assessment requirements with respect to the proposed statement.

(2)   …

(3)   ...

(4)   …

(4A)   …

(4B)   …

(5)   The Planning Secretary is to notify the responsible person and (where relevant) the responsible authority in writing within the required time of the environmental assessment requirements. The Planning Secretary may modify those requirements by further notice in writing.

6   Form of environmental impact statement

An environmental impact statement must contain the following information—

(a)   the name, address and professional qualifications of the person by whom the statement is prepared,

(b)   the name and address of the responsible person,

(c)   the address of the land—

(i)   in respect of which the development application is to be made, or

(ii)   on which the activity or infrastructure to which the statement relates is to be carried out,

(d)   a description of the development, activity or infrastructure to which the statement relates,

(e)   an assessment by the person by whom the statement is prepared of the environmental impact of the development, activity or infrastructure to which the statement relates, dealing with the matters referred to in this Schedule,

(f)   a declaration by the person by whom the statement is prepared to the effect that—

(i)   the statement has been prepared in accordance with this Schedule, and

(ii)   the statement contains all available information that is relevant to the environmental assessment of the development, activity or infrastructure to which the statement relates, and

(iii)   that the information contained in the statement is neither false nor misleading.

7   Content of environmental impact statement

(1)   An environmental impact statement must also include each of the following—

(a)   a summary of the environmental impact statement,

(b)   a statement of the objectives of the development, activity or infrastructure,

(c)   an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure,

(d)   an analysis of the development, activity or infrastructure, including—

(i)   a full description of the development, activity or infrastructure, and

(ii)   a general description of the environment likely to be affected by the development, activity or infrastructure, together with a detailed description of those aspects of the environment that are likely to be significantly affected, and

(iii)   the likely impact on the environment of the development, activity or infrastructure, and

(iv)   a full description of the measures proposed to mitigate any adverse effects of the development, activity or infrastructure on the environment, and

(v)   a list of any approvals that must be obtained under any other Act or law before the development, activity or infrastructure may lawfully be carried out,

(e)   a compilation (in a single section of the environmental impact statement) of the measures referred to in item (d)(iv),

(f)   the reasons justifying the carrying out of the development, activity or infrastructure in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development set out in subclause (4).

(2)   Subclause (1) is subject to the environmental assessment requirements that relate to the environmental impact statement.

…

9   Documents forming part of environmental impact statement

(1)   Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.

Matters for determination

Introduction

51. It is now appropriate to set out the matters requiring to be determined in these proceedings. Given the significant volume of material needing to be considered; the constrained time available for the hearing because of the early allocation of hearing dates; and the time pressures for addressing the first of the primary matters for determination set out below, this decision is confined to addressing those compliance issues.

52. This meant that the potential consequences of a finding that there had not been compliance, or substantial compliance, was deferred to a subsequent hearing if that became necessary as the outcome of this decision.

The primary matters for determination

53. The primary matters for determination in these proceedings are:

1. Did the EIS comply, or substantially comply, with the requirements of cl 7 of Sch 2 of the Regulation and to the SEARs (as those requirements worked together)? and

2. If the EIS did not comply, or substantially comply, with those requirements, what should be the consequence for the project of such non‑compliance?

54. It is to be observed that the second of the above identified primary issues potentially gives rise to subsidiary considerations concerning:

1. The effect of s 4.60 of the EPA Act; and

2. Matters of discretion addressing the tension between the remedy sought by the Residents Action Group in its Amended Summons, on one hand, and the potential to invoke the power of the Court pursuant to s 25 of the Land and Environment Court Act 1979 (the Court Act) to permit the addressing of the defects found and their rectification in a fashion which would permit the project to continue (with the potential that there might be some delay in doing so), but with the continuation not requiring any major intervention with the project's design (as would be the consequence of the relief that is sought by the Residents Action Group).

The specific EIS compliance issues

55. The EIS compliance issues involve matters of statutory construction of the elements of cl 7 of Sch 2 of the Regulation and, depending on the resolution of those issues of construction, the extent to which the EIS, and the documents which evolved from it, actually satisfied what was required by Sch 2 of the Regulation and by the relevant terms of the SEARs working together.

56. The construction issue primarily involves determining what is required by cl 7(1)(c); and how that provision is required to work together with Section 3 of the SEARs as a consequence of the operation of cl 7(2) of the schedule.

57. After discerning an understanding of these points of construction, what is then required is consideration of what is the relevant factual material from the evidence said by Infrastructure NSW to satisfy each element. Having done so, I am required to determine whether this material leads to the conclusion that there was compliance or substantial compliance for those elements of the EIS (and, subsequently, of the entire EIS) as required.

58. In my later consideration of these matters, it will be appropriate to interleave consideration of the regulation construction issues and the matters arising from the evidence as to the adequacy or otherwise of those requirements being addressed.

The submissions for the Residents Action Group

Introduction

59. I have earlier noted that Mr Hale had provided written submissions outlining the case advanced on behalf of the Residents Action Group. Mr Hale's oral submissions expanded on that written material.

60. I propose to address the case advanced for the Residents Action Group by:

1. Summarising the approach outlined by Mr Hale in his oral submissions (including the statutory construction of cl 7(1)(c) upon which he relied); and

2. Setting out the material to which Mr Hale took me from the documentary evidence (providing, as appropriate, an explanation of what Mr Hale drew to my attention concerning the extract); and

3. Addressing Mr Hale's written and oral submissions concerning what he submitted should be the legal consequences flowing from the defects which he said were able to be discerned from the material to which he had taken me.

61. In the context of this proposal, Mr Hale submitted that there was a particular importance for this EIS process because (Transcript 24 May 2021, page 5, lines 27 to 35):

So the Planning Ministerial Corporation is the landowner and the Minister is the consent authority; that is, the applicant is a public authority. This is not being critical but it’s a matter of fact that the only involvement in the decision‑making process external to government, the Minister, and Infrastructure NSW is the EIS process and the public exhibition of the EIS and the objections made by the public and other agencies and this is why we contend it is so important that the EIS fully informs the public on, amongst other things, the alternatives, and the alternatives are the alternatives to a development which involves the demolition of “Willow Grove”.

62. Mr Hale took me to a wide variety of elements of the documentary evidence said by him to demonstrate that, although the EIS process at its various stages, had assumed that “Willow Grove” would not be permitted to be retained, no proper or sufficient justification had been provided for this. I observe that the material that I set out in this section is referenced following the same order as was adopted by Mr Hale when taking me to this material.

63. Although the initial proposal was simply for the demolition of “Willow Grove” but had now morphed to its deconstruction and re‑erection at another location, he submitted that nowhere in the EIS documentation was there an examination of alternatives which would permit the retention of “Willow Grove” where it is now located.

64. The broad foundational basis, Mr Hale submitted, was that the necessity to examine this would disclose a fundamental flaw in the EIS process, rendering it invalid by its failure to satisfy what was required by a proper reading of the terms of cl 7(1)(c) and the opening elements of Section 3 of the SEARs.

65. I have earlier set out the terms of cl 7(1)(c). The position advanced for the Residents Action Group is that this provision requires consideration of:

1. First, whether there were any feasible alternative sites and, if there were, why they were rejected; then

2. The examination of feasible alternatives to the carrying out of the development on the site, having regard to the objectives of the development.

66. In this context, Mr Hale submitted that this required a broad examination and not one confined to the development preferred by the proponent (Transcript 24 May 2021, page 7, lines 25 to 30):

We would contend the meaning of “feasible” is something that’s capable of being done, achievable in a practical sense. What is implicit in (c) is that the alternatives will not in fact be the preferred option of the developer because the preferred option is the development propounded and the subject of the development application.

67. He submitted that, read together properly, that which was required to be addressed through the EIS process was an explicit examination of alternative sites in the vicinity of the Parramatta CBD for carrying out the project and, if creation of a Powerhouse Parramatta was to be constructed on the site selected for the project, whether its design could feasibly incorporate retention of “Willow Grove”.

68. In particular, he submitted that the interaction between cl 7(1)(c) and Section 3 of the SEARs mandated that the EIS was required to incorporate an analysis of alternative schemes encompassing designs which could have retained “Willow Grove”.

69. With respect to what was said to be the necessity to examine alternative sites, Mr Hale observed that the decision to have the project located on the chosen site was one made in 2016 (that being before the preparation of the EIS) and that, as a consequence, the EIS was required (on the Residents Action Group’s construction of cl 7(1)(c)) to consider alternatives to that site. Because of the necessity to examine alternative sites, the failure of the EIS process to do so meant that this process was flawed because adequate and complete information was not available to members of the public in a fashion that would permit a proper basis upon which to make submissions concerning the proposed development.

70. The second (and specific) aspect of the complaint about the inadequacy of considering feasible alternatives for designs on the site was that the design competition and judging process did not encompass any specific requirement to consider designs that enabled the retention of “Willow Grove”. The position was, he submitted, that those advancing proposals for consideration in this process merely had to consider heritage aspects of the site in preparing their submissions to the competition.

71. The overall broad thrust of his submissions, as I understood them, was that, at best, lip service had been given to addressing these matters and that no detail was provided anywhere in the documentation that could support a conclusion that these issues had been addressed in a fashion that complied with what had been mandated by cl 7(1)(c) and/or the SEARs working together.

The documentary material to which Mr Hale referred

Introduction

72. During the course of his oral submissions, Mr Hale took me through a wide range of the documentary evidence. That to which he took me not only comprised the primary EIS documents, but also elements of the supporting documentation accompanying it ‑ documents, for reasons earlier noted, that were incorporated as part of the EIS, by virtue of cl 9 of the Regulation.

73. Mr Hale also took me to elements of a number of submissions addressing the EIS that had been made during the public exhibition process. These submissions (a sample of those relevant on this point, as I understood him), he submitted, made it clear that the defects in the EIS process alleged by the Residents Action Group were ones that had adequately put the Minister (and those advising him in the decision‑making process) on notice of the nature of the deficiencies that had been identified in the Residents Action Group’s complaints that were the basis of these proceedings. This, he submitted, provided a proper basis upon which the relief sought by the Residents Action Group should be granted.

The material in the EIS document proper

74. In the Executive Summary of the EIS (Exhibit A‑1, folio 10), Mr Hale drew attention to the fact that the application expressly sought approval for “demolition of existing buildings including the existing Riverbank Carpark, ‘Willow Grove’, ‘St George’s Terrace’ and all other existing structures located on the site.” This was then repeated in the body of the EIS as an element of the overview of the proposed development.

75. Mr Hale then took me to “1.3 Objectives of the Development” (Exhibit A‑1, folio 15). These objectives were in the following terms:

The objectives of the development are to:

●   Create a world class new museum for the communities of NSW that enables the delivery of an ambitious, dynamic and constantly changing program that provides new levels of access to Powerhouse Collections

●   Support the delivery of a dynamic and active museum precinct, that will present multiple concurrent activities including exhibitions, events, and community and education programs. Each space is to play a distinct role in the precinct, and when working together, create a 24‑hour precinct embedded into the City.

●   Ensure the development is agile and adaptable, providing flexible consolidated facilities across both back of house and public facing areas that permit changes in the daily program and allow for the multiple uses of space.

●   Provide a precinct that has multiple entry points and can be approached and connected from all sides, so that visitors and local communities will be encouraged to walk through.

●   Create 24/7 pedestrian movement from Phillip Street through to the Parramatta River foreshore. As part of this, a centralised circulation corridor is to be emphasised for intuitive wayfinding and visual activation at the termination of Parramatta’s ‘Civic Link’.

●   Produce a design that is engaging and relevant to diverse communities including spaces that support diverse abilities and Australian Aboriginal and Torres Strait Islander connections and continuing practices in applied arts and sciences.

●   Provide operational efficiency for high levels of production and to maximise public facing programming, including total acoustic and light isolation of each space to support high levels of concurrent activity.

●   Provide public domain areas that support gathering, dwelling and cultural events across a range of scales, from informal passive recreation to site‑wide precinct events.

●   Promote sustainable design principles including energy conservation, reduction of waste, water usage reduction, and materials from sustainable sources.

●   Take advantage of the site’s highly accessible location by prioritising active and sustainable modes of transport and ensuring that pedestrian activity across the whole of the precinct is prioritised.

76. Mr Hale proposed that I should regard the first two of the above points as being of greater significance, but also drew my attention to the fifth and to the final one of these objectives.

77. Mr Hale then continued by taking me through matters set out in 1.4 Analysis of Alternatives in the EIS. This is an element of some significance in the way the case on behalf of the Residents Action Group was mounted. It is necessary to reproduce it in full. It commenced at page 15 of the EIS and concluded at the top of page 17. This portion of the EIS is in the following terms:

1.4   Analysis of alternatives

Three Section 3 primary options have been considered in responding to the identified strategic need and objectives of the project. The options outlined below are generally aligned with those described in the Business Case Summary published by Infrastructure NSW on their website, as well as other significant research and development that has informed the proposed development.

Option 1 ‑ The ‘do nothing’ scenario

The ‘do nothing’ scenario considers retaining the existing site in situ and electing not to construct the proposed Powerhouse Parramatta. Whilst this outcome would retain all existing buildings including local heritage on the site, this outcome would also fail to realise the strategic need for the proposal, as discussed above, and would ben inconsistent with the NSW Government’s strategic planning policies. It would also negatively impact the ongoing operation of the Powerhouse, which has been increasingly straining to meet its obligations to display, conserve, maintain, secure and operationally manage its collections. The Business Case Summary argues that, without fundamental change, this position is expected to deteriorate further. The proposed development represents the opportunity to provide increased access to the Powerhouse Collection with a purpose‑built facility that can address the challenges and constraints provided by existing facilities. It has the potential to deliver world‑class opportunities for education and research, alongside exhibition space, and space for social and digital interaction and exchange. It will generate a range of regional and local benefits that cannot be achieved through continuing to utilise the site for the purposes of carparking and disused or underutilised retail and commercial buildings. This scenario would represent a missed opportunity, and as such electing to do nothing is not a preferred or supportable option.

Option 2 ‑ Alternative location

Option 2 considers whether the proposed new institution could be delivered in an alternative location. The riverside site has been found to be the best and most appropriate location for the delivery of the Powerhouse Parramatta both at a regional and local scale and was ultimately selected as the favoured location with the NSW Government announcing its acquisition from City of Parramatta Council in April 2016.

Powerhouse Parramatta will be the first major, world class cultural institution to be established in Western Sydney. It will provide unprecedented access to the Powerhouse Collection alongside cultural, science and lifelong learning programs setting a new benchmark in cultural participation by the diverse and growing communities of Western Sydney. It signifies substantial investment in the Parramatta CBD that is the economic anchor to the GPOP economic corridor and the wider development of the Central River City that is fundamental to Sydney’s metropolitan planning future. At a local scale, it is also a key fixture of the developing culture and arts precinct within the Parramatta centre and will generate a range of localised benefits including activating the river frontage and supporting the growth of the night‑time economy through increased expenditure outside of typical work hours. The site is uniquely positioned in a central point of the Parramatta CBD’s interface with the Parramatta River, providing an opportunity for the new facility to act as the focal point for community interaction and culture in a landmark position. It benefits from excellent proximity to existing and planned public transport services and as well as enhanced pedestrian access via Parramatta’s new Civic Link. This site is, therefore, strategically located to maximise regional and local benefits and achieve key strategies for the development of Sydney a metropolis of three cities, which would not be realised in an alternative location.

Option 3 ‑ The Powerhouse Parramatta (the project)

The proposed development is the outcome of a two‑stage international design competition, whereby both local and global architectural and landscape architecture firms critically analysed the design alternatives for the Powerhouse Parramatta and surrounding public domain. The Stage 1 competition attracted 74 expressions of interest involving 529 individual firms from 20 countries. Stage 2 was an intensive design period for the six shortlisted teams:

●   AL_A (UK) and Architectus (Australia)

●   Bernardes Architecture (Brazil) and Scale Architecture (Australia)

●   BVN Architecture (Australia) and Carlo Ratti Associati (Italy)

●   CHROFI (Australia) with Reko Rennie (Australia)

●   Moreau Kusunoki (France) and Genton (Australia)

●   Steven Holl Architects (United States) and Conrad Gargett (Australia)

The competition was run in accordance with the procurement requirements of the NSW Government and was formally endorsed by the Australian Institute of Architects. The competition brief informing the shortlisted teams requested that design teams consider aspects of heritage and cultural significance within their submissions, including local heritage items. Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council’s vision for a Parramatta Civic Link, and the design excellence requirements of the Parramatta LEP.

The Stage 2 entries were critically analysed by a Jury comprised of members with experience in architecture, urban design, museum design, business and cultural institutions operation, and included government representatives as well as a representative from City of Parramatta Council. The Jury was unanimous in its decision on the final chosen concept and recognised that the Stage 2 concept design made clear that it was not possible to achieve the design ambitions and connectivity while retaining local heritage items. Whilst the retention of heritage was considered carefully during the jury process, it was ultimately confirmed that the winning design would reflect and engage with the multiple histories of the site including its Indigenous histories and that the proposed design represented the best possible outcome for the site and for the delivery of Powerhouse Parramatta.

78. With respect to the “Alternative location” element in that which is set out above, Mr Hale submitted that, although the first paragraph indicated that there had been some analysis or consideration of alternatives, none of that was set out in any detail or adequately discussed in the EIS.

79. He drew attention to the concluding elements of the second paragraph of this portion of the EIS as a summary of the reasoning for rejecting alternative sites. He observed that this had necessitated consideration of alternative sites, “but we simply do not know what they are, and we are not, or the reasonable reader of the EIS is not in any way, in a position to make an evaluation, nor indeed is the decision maker” (Transcript 24 May 2021, page 15, lines 8 to 10).

80. He submitted that there was a necessity for that information to be contained in the EIS; exposed to the public, providing an opportunity to express alternative views; and to enable the decision‑maker to be able to consider such views and determine whether the preferred location was, in fact, the best location for the proposed development.

81. Mr Hale then turned to the discussion of Option 3, the option which examines the project. He drew specific attention to the sentence in the second substantive paragraph that:

The competition brief informing the shortlisted teams requested that design teams consider aspects of heritage and cultural significance within their submissions, including local heritage items.

82. He then pointed to an element in the final full paragraph on this topic, specifically the sentence which says:

The jury was unanimous in its decision on the final chosen concept and recognised that the Stage 2 concept design made clear that it was not possible to achieve the design ambitions and con activity while retaining local heritage items.

83. His submission, with respect to this latter sentence was (Transcript 24 May 2021, page 15, lines 35 to 43):

Where is it? And your Honour won’t find it; what the alternative designs were, why it was not able to achieve those objectives, connectivity with retaining local heritage items. Whilst the retention of heritage was considered carefully during the jury process, it was ultimately confirmed that the winning design would reflect and engage with the multiple histories of the site including the Indigenous histories and that the proposed design represented the best possible outcome of the site and the delivery of Powerhouse Parramatta. What were the alternatives other than of course, the finalist entries that were not chosen?

84. As I understood his overall submissions, the complaint about this element of the EIS was emblematic of the overall tenor of the case advanced on behalf of the Residents Action Group, namely, that the EIS did not provide a compliant foundation base upon which the Minister could have decided to grant development consent. The next matter to be noted, from Mr Hale's references to elements of the EIS, is the description of “Willow Grove” at 2.1.4 of the EIS. I have earlier reproduced this element from the EIS as providing the appropriate description of this heritage item.

85. After noting that a consultancy (Advisian) had been retained to prepare the Statement of Heritage Impact (SHI) (this document being Appendix G to the EIS), Mr Hale then took me to “6.2.2 Post Settlement Heritage” in the EIS, an element which commences by dealing with heritage on the site. It is not necessary to reproduce the entirety of this section. It is sufficient to set out, from the transcript, the two sentences in this section addressed by Mr Hale and his commentary concerning each of them (Transcript 24 May 2021, page 16, lines 25 to 33):

You will see that in the third line  under Heritage on the Site, “The competition brief requested that design teams consider aspects of heritage within their submissions, including local heritage items”. There’s no direct reference to consideration of retaining “Willow Grove” or anything of that kind. It’s in those broad terms. Then we go to the third‑last paragraph. “The submitted concept designs made it clear that it was not possible to deliver”. Again, why that would be the case is not stated. Presumably it means because none of the architectural teams included a concept which contained Willow Grove, it follows that the retention of “Willow Grove” was not possible.

86. As Mr Hale observed, the EIS notes that the heritage assessment by Advisian confirmed that:

●   The demolition of “Willow Grove” and St George’s Terrace would have a significant physical and visual impact on the heritage significance of the heritage items, resulting in a total irreversible loss of the conservation values including significant fabric and the visual setting.

●   The removal of vegetation on the site within the within the “Willow Grove” curtilage will also impact the cultural significance of this place and its garden setting.

87. The next element of the EIS to which he took me was Table 16, a table entitled “Environmental Risk Assessment”. This table was the final element of matters in the main body of the EIS to which Mr Hale took me. He recorded, for the transcript, the two particular elements of the table to which he took me. The convenient way to understand the nature of the complaints made on behalf of the Residents Action Group concerning these elements is to set out the transcript extract which encompasses the relevant portions of the material and Mr Hale's comments concerning them (Transcript 24 May 2021, page 17, lines 19 to 47):

Next is p 136, which is a table where you will see the Environment Table 16, Environmental Risk Assessment, post‑settlement heritage, the first dot‑point. Potential environmental impacts, demolition of heritage items. First dot‑point:

“The redevelopment of the site will necessitate the demolition of “Willow Grove” and St George’s Terrace, being local heritage items. Alternative options were considered as part of the competitive design process, and it was concluded these items could not be retained on the site”.

Where’s that? Where’s the information? The next item is 140, which deals with mitigation measures re heritage, concerning heritage. Your Honour will see under Heritage, again it’s a Heritage Interpretation Plan. At 143 to 144 is the conclusions and justification. You will see at the very top of the page, “The EIS has been prepared to assess the impacts”. It refers to the SEARs. Then there is a series of dot‑points, which is introduced by having regard to the various matters. “The carrying out of the project is justified for the following reasons”. Then we have the fourth dot‑point.

“The cultural impact of the demolition of “Willow Grove” will be mitigated through the implementation of Heritage Interpretation measures and, on balance, is outweighed by the significant positive cultural impacts associated with the delivery of a world‑leading cultural institution.”

Again, the balance that one would expect, that we contend a balance which fails to alert the reader of what the alternatives are. At 144, the final paragraph, “Given the planning merits described above, it is recommended that the application is approved”.

88. In the “Conclusions and Justification” section of the EIS (Exhibit A‑1, folio 143), Mr Hale noted the following (emphasis added):

Having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development, the carrying out of the project is justified for the following reasons:

●   the proposed development is suitable for the site that is ideally located within the Parramatta CBD and has excellent access to existing and planned public transport connections, connections to other culture and arts and civic institutions within a wider precinct, and is at the focal point of a number of key urban connections including the future Civic Link;

●   the proposed development is permissible with consent and meets the requirements of the relevant statutory planning controls, including being well within the maximum permitted height and floor space parameters and, therefore, the planned capacity for the site;

●   the design of Powerhouse Parramatta is the result of a two‑stage international competitive design process in accordance with an Design Excellence Strategy approved by DPIE and endorsed by the NSW Government Architect and Council, and demonstrates design excellence having regard to the factors identified in Clause 7.10 of the Parramatta LEP;

●   the cultural impact of the demolition of the “Willow Grove” and St George’s Terrace local heritage items will be mitigated through the implementation of heritage interpretation measures, and on balance is outweighed by the significant positive cultural impacts associated with the delivery of a world‑leading cultural institution that will make its own unique and important contribution to the cultural heritage of Parramatta, particularly through a major focus on highlighting Aboriginal culture, art, science and technology;

●   the proposal includes a full description of adequate and appropriate measures proposed, developed based on detailed technical assessment carried out in accordance with the Secretary’s Environmental Assessment Requirements, in order to mitigate any adverse impacts of the development on the environment;

●   the proposed development will provide extensive social and economic benefits including supporting significant jobs during the construction and operational phases, improving the level of visitation and tourism expenditure within the local and regional area, improving life‑long education outcomes for students and supporting long term social and economic wellbeing, and providing new cultural and entertainment opportunities during both day and night and diversifying the local night‑time economy;

●   the development will utilise the unparalleled position of the Powerhouse to undertake programmatic interpretation of the heritage on the site and connect people to local histories, as well as more broadly addressing the multiple histories of the site pre and post‑contact, to minimise and mitigate the loss of heritage on the site;

●   the project has been informed by pre‑lodgement community consultation and establishes a framework for ongoing consultation and engagement with the community through the detailed design, construction and operational phases of the development; and

● the proposal is consistent with the principles of ecological sustainable development as defined by Schedule 2(7)(4) of the Environmental Planning and Assessment Regulation 2000, and will support the delivery of an ecologically sustainable development.

Given the planning merits described above, and the significant benefits associated with the proposed development, it is recommended that the application be approved.

The Statement of Heritage Impact

89. The first of the supporting documents to which Mr Hale took me was Appendix G to the EIS, the SHI, prepared by Advisian. This document was in Exhibit A‑2 at folios 753 to 856.

90. In the Summary of Findings in this report, three of the elements were specifically pointed to by Mr Hale. These were the first, third and fifth of those at folios 762 and 763. These were in the following terms:

Summary of Findings

Heritage items and archaeological sites

●   The demolition of the heritage items “Willow Grove (and potential archaeological site)” and the “St George’s Terrace (and potential archaeological site)” located at the site would have a major physical and visual impact on heritage significance of those items. The demolition would result in the total irreversible loss of the conservation values that constitute heritage significance, including significant fabric and the visual setting. Statutory delisting of these heritage items from Schedule 5 of the LEP would be a separate process managed by the City of Parramatta Council.

…

●   It is considered that some of the existing trees at the “Willow Grove (and potential archaeological site)” contribute to heritage significance. No mature trees within the established landscape of the heritage item would be retained.

…

●   Comparative analysis concluded that the “Willow Grove (and potential archaeological site)” and the “St George’s Terrace (and potential archaeological site)” are the only examples of their type located in the core of the Parramatta CBD. The demolition of these heritage items would have a major impact on the representation of these respective architectural styles in the Phillip Street streetscape and Parramatta CBD townscape.

91. Mr Hale took me to the chronology of development of the site (Exhibit A‑2, folios 774 to 776), a chronology which sets out relevant dates concerning “Willow Grove”, together with a brief explanation for them. He then took me to folio 779, which sets out a more detailed description of the history of “Willow Grove”. At folio 780, the SHI then includes the photo of “Willow Grove”, followed by the extract for the PLEP 2011's entry on the State Heritage Inventory. It is unnecessary, for present purposes, to reproduce this inventory entry.

92. Mr Hale then took me to the Assessment of Significance at folios 802 to 804 (commencing with the significance assessment criteria from the NSW Heritage Office’s guideline). It is not necessary to repeat the details of this assessment process, it is sufficient to reproduce the Statement of Significance at 6.2.1.2. This document was based on the assessment prepared by Advisian and from the 2017 Conservation Management Plan for “Willow Grove”. The Statement of Significance is in the following terms (Exhibit A‑2, folio 804):

Statement of Significance

Based on the above Assessment of Significance, the Statement of Significance for the “Willow Grove (and potential archaeological site)” from its CMP, which updates the LEP entry, is as follows:

“‘Willow Grove’, Victorian Italianate villa located at 34 Phillip Street is of significance for the local area for historical, aesthetic, research, rarity and representativeness values. Built c.1870s, it is a good example of a Victorian Italianate two‑storey villa, readily identifiable as part of historic building stock and strongly contributing to the streetscape in spite of its large setback, partly through its notable fence, although the front fence has been relocated due to the widening of Phillip Street.

‘Willow Grove’ is rare example of one of the earliest notable Victorian style houses within the Parramatta region, most notably and within the Parramatta Central Business District (CBD).

There is the possibility of uncovering archaeological information that relates to European occupation of the site prior to the construction of ‘Willow Grove’. Documentary evidence suggests that a small wooden cottage once stood to the north east of the cottage within the courtyard and/or along the boundary.

The established vegetation and notable mature Cupressus spp. provide a picturesque garden setting to the Villa and the garden planting is in good condition.”

93. A diagram at folio 820, Mr Hale noted, recorded that the original built element of “Willow Grove” was of high heritage significance, with the gardens between the built form and Phillip Street being shaded of slightly less (but nonetheless high) significance elements. The “Willow Grove” site elements to the rear of the primary building (including more recently built structures) are noted as having moderate or little significance (with the elements closest to the rear of the site having this latter characterisation).

94. Folio 822, he noted, recorded that the proposal (at that time) contemplated demolition of “Willow Grove”.

95. Mr Hale then took me to folio 831 where Advisian had set out material under the heading “9.3 Options Analysis”. To understand what Mr Hale said were the defects of this analysis, it is appropriate, first, to set out the relevant portion of this element of the SHI (including portion of a statement by the Minister for the Arts made in Parliament on 25 February 2020) before setting out the relevant extract from the transcript of Mr Hale's submissions concerning this. First, the relevant portions of folios 831 and 832 were in the following terms (emphasis added):

9.3 Options Analysis

It is considered that no alternatives schemes were considered during the design process which could have retained the “Willow Grove (and potential archaeological site)” and the “St George’s Terrace (and potential archaeological site)”. For further detail, refer to the Design Excellence Report13 which addresses SEARs Issue No. 3.

9.3.1 Options Description

Alternative locations

Alternative locations for the proposal were considered prior to the NSW Government’s acquisition of the site from the City of Parramatta Council. It is understood that the site was selected given the following:

●   central location within the Parramatta CBD, part of the metropolitan centre comprising the core of Sydney’s Central City.

●   iconic location on the banks of the Parramatta River.

●   ability to integrate with the future Parramatta Civic Link which is a green, pedestrianised public space and cultural route through the heart of the Parramatta CBD to the Parramatta River.

●   physical and spatial characteristics capable of accommodating the functional requirements of the proposal.

Alternative designs

The Powerhouse Precinct at Parramatta International Design Competition was a two‑stage process which began with an open Expression of Interest. The competition’s objective was to identify and select an outstanding design team and concept design for the Powerhouse Parramatta. All finalist design teams in the competition were asked to consider aspects of heritage and cultural significance within their submissions, including local heritage items. Other considerations included the activation of transport and pedestrian access consistent with the City of Parramatta Council’s vision for a Parramatta Civic Link. The competition was run in accordance with the procurement requirements of the NSW Government and was formally endorsed by the Australian Institute of Architects. In addition, the competition was managed by independent competition specialists Malcolm Reading Consultants.

The preferred option

The proposal was selected as the preferred option as it would maximise social and cultural outcomes for the community and would be consistent with key NSW Government policies and strategies.

283. As a consequence, the selection criteria that led to the adoption by the NSW Government of the site can be stated, in a fashion equivalent to that earlier set out as derived from Mr Hale's quarry analogy, as being:

1. What was intended to be delivered was a world‑class museum facility;

2. The location for the museum had to be consistent with the Greater Sydney Commission's Central City District Plan for Parramatta;

3. The museum must be within Parramatta’s CBD; and

4. The museum must be on the banks of the Parramatta River.

287. No potentially feasible alternative site has been identified by the Residents Action Group that would satisfy these criteria and thus, on its case, as being necessary to be examined during the EIS process.

288. There is no other evidence in these proceedings that would point to any such other potentially feasible alternative site that satisfied the criteria founded on the strategic planning work undertaken by the Greater Sydney Commission.

289. The consequence of this is that, in light of the relevant site specification criteria, the potential scope for site selection was limited solely to the site which is the subject of the EIS.

290. If there was a mandated requirement on those preparing the EIS on behalf of the proponent to consider alternative sites, I am satisfied that this obligation was met because there were no such alternative sites, as a matter of fact, for the reasons explained above. As a consequence, the EIS complied, or substantially complied, with what was required to be addressed by it in this regard.

291. In addition, although not necessary for consideration at the point of determining whether the EIS itself properly satisfied the necessary tests to be regarded as a valid EIS, it is appropriate to note that the consultation process undertaken after site selection had been made did result in a number of public submissions proposing alternative sites, with the proponent providing a response to those alternative sites. An example of this material, material referred to in the proponent’s written submissions at paragraphs 56 and 59, can be seen in the Consultation Summary Report of May 2020 (Exhibit A‑5, folio 2034). This material formed part of the material provided to the Minister for the purposes of his making his determination decision.

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

Introduction

292. As can be seen from my summary of the submissions made by Mr Hale on behalf of the Residents Action Group, the primary complaint made is that the EIS did not address, in what was submitted to be the necessary and compliant form, the option of retaining “Willow Grove” on site, whilst otherwise achieving the proponent’s objectives set for the establishment of the Powerhouse Parramatta on the site.

293. In this context, it is appropriate to set out again the terms of cl 7(1)(c) and the two relevant elements of Section 3 of the SEARs. The first of these is:

7   Content of environmental impact statement

(1)   An environmental impact statement must also include each of the following—

(a)   …

(b)   …

(c)   an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure,

294. The relevant elements of Section 3 of the SEARs were:

3. Built form, heritage and urban design

The EIS shall:

●   outline the design process which informed the proposal including justification and analysis of the benefits and impacts of the proposal and any alternative schemes considered, including any designs which could have retained Willow Grove and the St George’s Terrace

●   …

●   give specific consideration to the overall site layout, open spaces, interface with the public domain (including River Square, Civic Link and River foreshore), through site links, laneways, street interfaces, facades, massing, setbacks, building articulation, solar access and overshadowing, materials, colours, signage or signage envelopes

295. For present purposes, given that I have earlier explained why, as a matter of proper construction, alternative sites were not required to be considered and, if I was incorrect and they were required to be considered, there were no such alternative sites, this stage of my consideration is necessarily confined to the chosen design for the project on the site on the southern bank of the Parramatta River immediately adjacent to the Parramatta CBD and whether there were feasible alternative designs having regard to the proponent’s objectives for the project.

296. For this purpose, cl 7(1)(c) is to be read as requiring an examination of feasible alternative designs to the extent that this might be qualified by Section 3 of the SEARs (by virtue of the operation of cl 7(2) of the schedule).

297. In this context, it is clear that its objectives for the purposes of understanding what is required by cl 7(1)(c) are the proponent’s objectives for the proposed development. I will to turn, shortly, to consideration of those objectives.

298. However, it is also appropriate to note that, within the confines of this consideration concerning the development of the Powerhouse Parramatta on the site, the complaint made by the Residents Action Group and the submissions by Mr Hale in explanation of, and giving support to, this complaint related to the initial position of the EIS to propose the demolition of “Willow Grove” and not the subsequent evolution of the proposed project as approved, being to deconstruct “Willow Grove” and to re‑erect on an alternative location (one yet to be selected). However, Residents Action Group does not accept that this is a acceptable resolution of its concerns. The Residents Action Group’s complaint focused on what was said to be the inadequacy of examining feasible alternatives which would retain “Willow Grove” on the site yet achieve the proponent’s objectives for the proposed development.

299. In this context, as I understood the position advanced by Mr Hale, the defects in the original EIS were such that whatever followed thereafter was defective. In summary, if the original EIS process was fatally flawed, those flaws could not be cured by any subsequent parts of the process leading to the Minister’s decision to grant development consent to the project.

300. I have earlier summarised what Mr Hale submitted was the necessary legal matrix within which such an analysis must be undertaken.

Discerning the objectives conflicting with the retention of “Willow Grove”

301. I note, at the outset, that, at one point, Mr Hale observed that what required to be considered for these purposes was whether or not all or part of “Willow Grove” could have been retained on the site. However, as can be seen from the plan reproduced at [30], the location of the proposed two major buildings on the site, together with the element of the Civic Link connecting Phillip Street to the proposed public plaza and to the southern bank of the Parramatta River, would render any partial retention impossible in the context of the design for the project selected by the jury and the subject of the EIS.

302. The SEARs also included, in Section 4, the requirement that:

The EIS shall demonstrate how the proposal:

●   will be designed and staged to integrate with the future development of surrounding sites and with the wider redevelopment of Parramatta, including Civic Link, River Square, River foreshore and the future laneway to Church Street

●   will address public accessibility, connectivity and major events at Civic Link, River Square and the River foreshore.

●   addresses amenity impacts, visual and view impacts, servicing and loading arrangements, pedestrian connectivity and activation of public spaces (Exhibit A‑1, folio 182).

303. In the main body of the EIS, at “6.2.2 Post Settlement Heritage”, the EIS noted the importance of the Civic Link, saying:

The site for the Powerhouse Parramatta was selected because of its unique location occupying a central and prominent area of foreshore in the Parramatta River at the northern edge of the CBD, positioned as the terminus of the Civic Link.

304. As Mr Lancaster noted, this section then says, relevantly, at folio 93:

The submitted concept designs made clear that it was not possible to deliver on the design ambitions of the brief and deliver connectivity, whilst also retaining local heritage items.

305. I have also noted earlier Mr Lancaster’s drawing to my attention elements of the EIS under the heading “Public Interest”. The second and third of those bullet‑points cited the Civic Link as being an element supporting the public interest under the heading “Benefits of the project”.

306. In the course of taking me through the EIS proper, Mr Lancaster concluded by referring to “9.0 Conclusions and justification”. He noted that he had emphasised connectivity. In this context, it is appropriate to quote the first of the reasons set out as justifying the project. This was in the following terms (Exhibit A‑1, folio 143):

The proposed development is suitable for the site that is ideally located within the Parramatta CBD and has excellent access to existing and planned public transport connections, connections to other cultural and arts and civic institutions within a wider precinct, and is at the focal point of a number of key urban connections including the future Civic Link.

307. The EIS’ Appendix B is entitled “Architectural Plans and Design Report”. Appendix B’s introduction, under the heading “Design Outcome”, commences, relevantly, with the following (Exhibit A‑1, folio 265):

The key urban relationships driving the site are its relationship with the City and Parramatta River, laneway connections and its integration with the surrounding public domain. The design outcome celebrates its urban condition and embraces its natural context.

The public domain within and surrounding Powerhouse Parramatta is designed to enhance connectivity through porosity. There are primary circulation axes north‑south created by the continuation of the Civic Link to the water’s edge of the Parramatta River.

308. This element of the “Design Outcome” section then describes the Civic Link as being:

… the continuation of the city's vision for a continuous pedestrian path from the heart of the city to the water’s edge which is preserved and enhanced through a Civic Portal framing views from the city towards the nature of Parramatta River.

309. The Architectural Design Report then has, at folio 269, a short section and an illustrative plan under the heading “RELATIONSHIP TO THE CITY AND THE RIVER”. The section reads:

The building and its public domain will facilitate a stronger connection between the city and Parramatta River through the creation of a key cultural destination at the riverine end of the proposed Civic Link.

The site forms the northern anchor to the future Civic Link, which traverses the Parramatta CBD from Parramatta Square and Railway Station through the future retail pedestrianised strip.

The positioning of the site on the banks of the Parramatta River and at the northern fringe of Parramatta conclude the proposed Civic Link at the site of Powerhouse Parramatta linking Parramatta Square with the riverfront.

310. The diagram showing the path of the Civic Link (from folio 269) is reproduced below:

311. At folio 275, under the heading “Public Domain”, there is a discussion, inter alia, under the heading “PEDESTRIAN CONNECTIVITY”. With respect to the Civic Link, the Design Report says under this heading:

The Civic Link is a north‑south pedestrian link, located between Church Street and Wilde Avenue along the alignment of Horwood Place. It provides the future primary access route between Parramatta Train Station and Powerhouse Parramatta and establishes a strong, physical, visual and symbolic connection between the city and Parramatta River. The Civic Link is the heart of the precinct, the transition between the urban grain of the city and the engagement of Parramatta River.

312. A schematic diagram (folio 275) shows how this is to work (with the Civic Link between the footprints of the two major built elements of the project). This diagram is reproduced below.

313. Under the heading “Urban Integration”, the Design Report says, relevantly, at folio 277, under the heading “Long Term Civic Integration”:

Upon completion, Powerhouse Parramatta will integrate into the surrounding public domain with a number of additions to the ecosystem of Parramatta's public space network. These include:

Civic Link

The north south Civic Link runs through the heart of the site, meeting with the Parramatta River, and will serve as the primary pedestrian connection between Powerhouse Parramatta and Parramatta train station to the south. The primary circulation is consolidated and located alongside the eastern façade of the Western building. Powerhouse Parramatta has a highly legible and visible public circulation that connects directly with Civic Link.

City of Parramatta's Civic Link is defined in the Civic Link Framework Plan 2017 as a green, pedestrianised public space and cultural spine that connects public life in the heart of Parramatta CBD through the site to the Parramatta River. The link is anchored at both ends by Parramatta Square (and train station) and the site (and Parramatta River) and is divided into 5 unique character areas. The Civic Link extends across four city blocks in the heart of the Parramatta CBD.

314. Appendix D, in the table headed “Demonstration of design excellence”, addressed the topic of how the development approaches pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network. The table said, relevantly:

Powerhouse Parramatta is tightly interwoven with the existing network of pedestrian routes. Pedestrian connections into the site will be further reinforced once the Civic Link and the Riverfront approach are developed in line with the Parramatta CBD Pedestrian Strategy 2017 and other corresponding frameworks.

315. It is to be noted that the competition brief specifically drew together, by inference, the potential incompatibility of the retention of “Willow Grove” and establishment of the Civic Link saying (Exhibit A‑2, folio 599):

To enable the best museum outcome and support the Civic Link, we are requesting that all submissions consider the removal of “Willow Grove” should it be required.

316. Appendix F to the EIS is the Transport Impact Assessment. It is in Exhibit A‑2, at folio 669 to 746. None of the advocates made reference to this document.

317. However, the Transport Impact Assessment contains a section explaining the importance of the Civic Link for the Powerhouse Parramatta project. This appears at folio 712 under the heading “5.3 Pedestrians”. It is in the following terms:

The majority of pedestrians are expected to enter the Powerhouse Parramatta site from the south by the entry point on Philip Street opposite Horwood Place. This access point will form part of the future pedestrian connection known as Civic Link ‑ a green, pedestrianised public space that provides a direct connection from Parramatta transport interchange through to the Parramatta River (to be delivered by City of Parramatta Council). The link will ultimately be approximately 490 m long running along the existing Horwood Place alignment and connecting the Powerhouse Parramatta with key sites in the Parramatta CBD such as Parramatta Square, the future Metro station as well as the existing transport interchange. This project will significantly improve pedestrian access to the Powerhouse Parramatta.

The design of the Powerhouse Parramatta makes provision for the Civic Link connection by providing a 12 m wide pedestrianised space between the eastern and western buildings of the site. This will align with a relocated pedestrian (zebra) crossing on Philip Street, which will facilitate safe access for pedestrians travelling along Civic Link into the Powerhouse Parramatta.

318. I have earlier noted that Mr Lancaster drew attention to the second bullet‑point under the heading “Site conditions” at folio 31 of the RtS Report. This bullet‑point is in the following terms:

The Civic Link identified by Council in 2017, which foresees converting Horwood place to a landscape pedestrian and cycle only link, which will ultimately connect through to Parramatta Square and Parramatta Railway Station. This major pedestrian thoroughfare is expected to accommodate significant pedestrian and cycling traffic, and directly aligns with Willow Grove. This link presents a significant opportunity for the site and greater Parramatta through providing an important connection from the centre of the Parramatta CBD to the Parramatta River, with the site acting as the northern anchor and complementing Parramatta Square at the commencement of the link.

319. The statement that the Civic Link “directly aligns with Willow Grove” is the closest in all the material which I have read comes to expressly setting out the incompatibility of the Civic Link with the retention of “Willow Grove”.

320. In this context, I had an exchange with Mr Lancaster concerning the diagram appearing at folio 32 in the RtS Report. This diagram is one showing the location of “Willow Grove” and the footprint of the two major buildings proposed for the site (a more easily reproduced plan to the same effect is at [30]). My exchange with Mr Lancaster on how this diagram should be understood in the context of the relationship between “Willow Grove” and the Civic Link as discussed above, was in the following terms (Transcript 25 May 2021, page 11, line 29 to page 12, line 28):

HIS HONOUR: If we move from 32 and take you to the diagram in the middle of the page, it's a little different to understand given that the building at least as I read it, the building that you have described as being parallel to Parramatta River appears to still overlay part of St George’s Terrace in the bottom right‑hand corner, if I understand it properly.

LANCASTER: Yes.

HIS HONOUR: But that’s not the point that I take you to ‑ do I understand correctly that where the above‑ground linkage is shown between the two buildings that the grey shading immediately underneath it is Willow Grove?

LANCASTER: I think it does tend to indicate that, your Honour, but the approved plans give a more specific and in my submission the most accurate identification of where the footprint of Willow Grove is compared to the approved building and as I invited your Honour to‑‑

HIS HONOUR: Well, that’s not what I was going to take to. I've now lost the word that I ‑ in the second dot point in p 31, in the second sentence, commences, “This major pedestrian thoroughfare”, I'm assuming that the use of the words “aligns with Willow Grove” is what is represented on 32 going through the grey shaded area which is what I assumed whether precisely accurately or not depicts Willow Grove in the middle of that pedestrian throughfares. Is that a correct understanding of what - how I am said to read this document?

LANCASTER: Yes, your Honour. The references to Civic Link that I’ve been taking your Honour to, it - it - it—

HIS HONOUR: Yes, I understand that but—

LANCASTER: Well, it’s a link that goes directly over the floor area.

HIS HONOUR: Floor plate of Willow Grove. And that is what - that is how I am to read the word “aligns” in the bullet‑point to which I’ve taken you?

LANCASTER: Yes, passes over the footprint of - yes.

HIS HONOUR: That’s all right. I’m just wanting to make sure I understand what precisely what it is you’re saying to moe and not to be taken that I’m agreeing with it—

LANCASTER: No, your Honour, no.

HIS HONOUR: ‑‑merely that I’m understanding it obviously at this time in the proceedings.

LANCASTER: Yes. No, your Honour should take it that all my references to Civic Link includes a pedestrian thoroughfare that is inconsistent with the maintenance of Willow Grove in place.

321. It is clear from this, and from all the other material which I set out in this analysis, that retention of “Willow Grove” is simply completely incompatible with the construction of the northern portion of the Civic Link through the site – the Civic Link’s construction being a fundamental element of the proponent’s objectives for the project.

322. There are numerous further mentions of the Civic Link and the desirability of pedestrian connectivity in documentation in evidence as part of or supporting the EIS.

323. I have earlier set out material to which Mr Lancaster had adverted during the course of his submissions, where the emphasis was placed in various elements of the documents on connectivity through the site as part of the linkages to the Parramatta River.

324. I do not consider it necessary to extract every further reference to the Civic Link and to the functional importance of the northern element of the Civic Link in creating connectivity through the site. It is clear from the multitude of references that are made to this, in addition to the specific (and sufficient for present purposes) matters which I have set out above, that it is to be concluded that the incorporation of a continuous, linear pedestrian pathway from the proposed Parramatta Civic Square to the Parramatta River, in the fashion depicted in the diagram reproduced above at [310], is a fundamental element necessary to be implemented to achieve the fifth objective for the development set out at folio 15 of Exhibit A‑1 in the EIS proper. This objective is appropriate to be repeated:

Create 24/7 pedestrian movement from Phillip Street through to the Parramatta River foreshore. As part of this, a centralised circulation corridor is to be emphasised for intuitive wayfinding and visual activation at the termination of Parramatta's Civic Link.

325. All of the above material which I have extracted (together with other references to the Civic Link and to pedestrian connectivity through the site) make the importance of this direct north‑south linear corridor, including the portion through the site, clearly to be seen as being an essential design element for the future of the Parramatta CBD.

326. Unfortunately, as shown early on in this decision, on the plan at [30], virtually the entirety of the built form of “Willow Grove” stands directly across the location of the north‑south running Civic Link. “Willow Grove” therefore stands as a physical barrier to the achievement of this objective for Powerhouse Parramatta. As a consequence, this means that there is no feasible alternative which would permit retention of “Willow Grove”, having regard to the objectives of the project.

327. This means that, for the purposes of the language of cl 7(1)(c), retention of “Willow Grove” is not a feasible alternative, having regard to the proponent’s objectives for the project.

328. To the extent that the SEARs influence how the cl 7(1)(c) consideration is to be undertaken, Section 4 of the SEARs, earlier quoted, emphasises the consideration required to be given to the Civic Link and, by virtue of cl 7(2), this adds emphasis to the matters which I have extracted that demonstrate the importance of the Civic Link element as the reason why retention of “Willow Grove” could not be regarded as a feasible alternative, having regard to the proponent’s objectives of the project.

329. Although it is to be acknowledged that “Willow Grove” has not been expressly discussed in the context of the Civic Link, the design incompatibility of “Willow Grove” with the Civic Link, given the location of “Willow Grove”, straddling and blocking portion of the Civic Link’s route, meant that there was no necessity to examine the retention of “Willow Grove” as a potential feasible alternative to be incorporated in the design, given its incompatibility with the significance of the Civic Link element (an element not confined to the site but, in future, to extend across the entirety of the Parramatta CBD).

330. I have explained why the EIS and the relevant incorporated documents demonstrate that there are no feasible alternative designs for the project which would permit the retention of “Willow Grove” on the site, whilst achieving the objectives for the proposal set by the proponent.

331. However, drawing that conclusion is not the end of the matter. It is still necessary to consider whether, taken overall, the EIS satisfies the second proposition in Schaffer, at page 31, that:

2.   The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council (at 278)).

332. I have set out material from the Design Report which makes it clear that the conclusion that there was no feasible alternative consistent with the proponent’s objectives which would permit the retention of “Willow Grove” on the site. That material was not isolated documentation in a single appendix to the EIS. The multitude of references to the Civic Link and/or connectivity elements of the proposed design enables an understanding of the importance of providing the completion of the Civic Link as the primary element of connectivity through the site to the southern bank of the Parramatta River as an essential (and not discretionary) element of the proponent’s objectives for the project.

333. There is sufficient discussion in the EIS itself, in the discussion of the three options (Exhibit A‑1, folios 15 and 16) to provide an appropriate cue to the importance of the Civic Link completion through the site and/or broader issues of connectivity. These cues are sufficient, I am satisfied, to alert those reading the EIS during its period of public display (and the Minister as the decision‑maker) of the importance of this objective and how it was to be fulfilled. Alerting readers to this aspect of the proponent’s objectives for the project in the fashion provided in the EIS and its supporting incorporated documents sufficiently alerts a reader to the issue. The multitude of further elements in the EIS and its incorporated documents, starting in time with Exhibit 4, provide, when taken together, a comprehensive and easily understandable exposition of why retention of “Willow Grove” was an impossibility.

334. However, there is nothing in any of the material to which I have been taken, or from my own examination of other material in the evidence concerning the Civic Link and/or connectivity commentary, which expressly and bluntly puts the proposition that it is necessary to remove “Willow Grove” from the site because it is incompatible with the Civic Link and, thus, with the proponent’s objective of connectivity through the site to the southern bank of the Parramatta River.

335. Whilst, perhaps, such an express statement might have been desirable to be included, its absence does not stand as a barrier to concluding that the EIS substantially complies in the areas about which the Residents Action Group makes complaint.

Conclusion

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

• there was no obligation imposed on the proponent by cl 7(1)(c) of Sch 2 of the Regulation to investigate alternative sites for the Powerhouse Parramatta; and

• however, if I am wrong in reaching this conclusion, there was no feasible alternative site consistent with the proponent’s objectives for the project; and

• a proper consideration of the proponent’s objectives for the Powerhouse Parramatta project makes it clear that the extension of the Civic Link through the site made removal of “Willow Grove” necessary. As a consequence, there was no feasible alternative design for the project which could have retained “Willow Grove” on the site, having regard to the proponent's objectives for the project.

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

Costs

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

Orders

339. The orders of the Court, therefore, are:

1. The Amended Summons is dismissed;

2. Costs are reserved; and

3. The exhibits are returned.

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Annexure A

Exhibit A

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

Exhibit B1: (formerly known as “SM2” - Volume 1 of 2)

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

Exhibit C: (formerly known as “SM3” - Volume 1 of 1)

1	Notice of Decision - Tab 1 - page 1	1-6
2	Notice of State Significant Development Determination dated 11 February 2021 - Tab 2 - page 7	7-8
3	State Significant Development Assessment - February 2011 - Tab 3 - page 9	9-122
4	Development Consent Tab 4 - page 123	123-156
5	Letter to NSW Planning, Industry & Environment dated 8 February 2021 - Independent Flooding Assessment - Tab 5 - page 157	157-226

Exhibit D: (formerly known as “Volume 6”)

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

Exhibit 1 (formerly known as volume 4 or SM4)

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

Exhibit 2 (formerly known as volume 5 or SM5)

1	Exhibit to Affidavit of Tom Gellibrand	1-881
2	Affidavit of Tom Gellibrand, sworn 6 May 2021- Tab 1 - page 1-21 - marked as read	1-21
3	Affidavit of Lisa Havilah, affirmed 7 May 2021 - Tab 2 - page 905-914 - marked as read	903-914

Exhibit 3

1 Statement of Facts (Court Book) 109-112

Exhibit 4

1 Business Case dated April 2018

Exhibit 21

1 Letter from DPIE to Infrastructure NSW dated 19 August 2020

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I certify that this and the ?? preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Moore.

………….……………………………….

Associate

16 June 2021

Decision last updated: 16 June 2021