Local Democracy Matters Incorporated v Infrastructure NSW

THE COURT: On 15 March 2019 the Court made orders dismissing an appeal from a decision of a Judge of the Land and Environment Court of New South Wales (LEC). The primary Judge (Pain J) dismissed a challenge by the appellant (LDM) to the grant of development consent by the third respondent (Minister) for work including the demolition of the Sydney Football Stadium at Moore Park (Stadium). [1] LDM brought the proceedings pursuant to s 9.45(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which allows any person to bring proceedings in the LEC for an order to remedy or restrain a breach of the EPA Act. Such proceedings are heard within the Class 4 jurisdiction of the LEC. [2]

LDM’s appeal to this Court was brought pursuant to s 58(1) of the LEC Act [3] . At the conclusion of argument on the appeal the Court made orders dismissing LDM’s appeal with reasons to be delivered later. These are our reasons for the orders.

On 6 December 2018 the Minister granted consent pursuant to s 4.38 of the EPA Act [4] to a “concept development application” [5] (Concept DA) submitted by the first respondent (Infrastructure NSW). The Concept DA sought consent for a concept proposal for the redevelopment of the Stadium and Stage 1 works comprising:

On 5 February 2019 LDM commenced the proceedings in the LEC. LDM’s further amended summons filed on 14 February 2019 named four respondents:

LDM sought a declaration that the Minister’s determination to grant consent to the concept plan and demolition of the Stadium was invalid and of no effect. LDM also sought an order pursuant to s 9.46(1) of the EPA Act restraining the respondents from taking any action or carrying out works in reliance on the Minister’s determination. Section 9.46(1) provides as follows:

LDM challenged the Minister’s determination on three grounds:

LDM’s application was given an expedited hearing in the LEC and was heard together with a separate application for judicial review of the Minister’s decision filed by Waverley Council. Lend Lease filed a submitting appearance but each of the other three respondents opposed the relief sought by the applicants and was separately represented at the hearing which occupied three hearing days from 20 to 22 February 2019.

The primary Judge reserved judgment at the conclusion of argument on 22 February 2019 but granted leave to both applicants to file motions seeking interlocutory orders restraining Lend Lease from further demolition work at the Stadium. Her Honour granted an interlocutory injunction at the conclusion of the hearing and in a judgment delivered on 26 February 2019 extended the injunction until 8 March 2019 or until further order. [9]

The primary Judge delivered judgment on 6 March 2019 dismissing both applications for judicial review and reserving costs.

Immediately after delivery of the Primary Judgment LDM filed a notice of appeal and a motion seeking suspension of the order dismissing the proceedings. LDM also sought an order temporarily restraining further demolition work at the Stadium. The primary Judge heard LDM’s motion on 7 March 2019 but in a judgment the following day dismissed LDM’s application for interim relief. [10]

The appeal in this Court was heard on an expedited basis on 15 March 2019. LDM essentially relied on the same three contentions rejected by the primary Judge. Grounds 1-4 of the notice of appeal relate to the minimum period of public exhibition. Ground 5 addresses the alleged failure of the Minister to form the requisite opinion concerning design excellence. Grounds 6-8 challenge the failure of the primary Judge to find that the Minister could not reasonably have been satisfied, having regard to the contamination, that the subject land would be suitable for the purpose for which development was proposed to be carried out.

Infrastructure NSW and the SCG Trust each filed a notice of contention seeking to uphold the primary Judge’s decision on grounds not relied upon by her Honour. They contended that if this Court determined that the consent was invalid, the Court should nonetheless make an order validating the consent pursuant to s 25B of the LEC Act. [11] Alternatively, they contended that the Court should decline to grant injunctive relief to LDM in the exercise of the discretion conferred by s 9.46(1) of the EPA Act. [12]

At the hearing of the appeal Mr Robertson SC appeared with Mr Lazarus for LDM. Mr Beasley SC appeared with Ms Ellicott and Mr Sherman for the Minister. Ms Duggan SC appeared with Ms McKelvey for Infrastructure NSW and Mr Astill for the SCG Trust.

Counsel co-operated to share the available time appropriately and to ensure that the hearing could conclude in a single day. Since there was considerable overlap among the respondents’ written submissions, Mr Beasley took primary responsibility for presenting argument on behalf of the three active respondents. Brief additional oral submissions were made by Ms Duggan and Mr Astill.

On 24 November 2017 the New South Wales Government announced its intention to demolish and rebuild the Stadium.

On 4 April 2018 Infrastructure NSW requested the Secretary of the Department of Planning and Environment (Department) to specify the Secretary’s Environmental Assessment Requirements (SEARS) for the preparation of an Environmental Impact Statement (EIS). The request was made pursuant to Sched 2, cl 3(1) of the EPA Regulation, which at the relevant time stated that:

The EIS was required because s 4.12(8) of the EPA Act provides that:

On 3 May 2018 the Secretary issued the SEARS. They described the development as follows:

Division 4.4 of the EPA Act applies to concept development applications and to consents granted on the determination of those applications. [15] Section 4.22 of the EPA Act provides as follows:

Section 4.22(1)-(4) of the EPA Act re-enact the repealed s 83B(1)-(4), except that:

There was no counterpart in the repealed s 83B to s 4.22(5) of the EPA Act. This provision was introduced to overcome the decision of this Court in Bay Simmer Investments Pty Ltd v New South Wales. [16] In that case the Court held that s 83B, when read with other provisions of the EPA Act as it then stood, required the Minister to consider the likely environmental impacts of the staged development, including the construction-related impacts, when determining whether to consent to the staged development application. Accordingly consideration of the environmental impacts of the construction phase could not be deferred until after consent had been granted to the concept proposal. [17]

Section 4.24(1) of the EPA Act states that the provisions of the Act relating to development applications and consents apply, unless otherwise provided, to a concept development application and a consent granted in such an application. By reason of ss 4.24(1) and 4.40, s 4.15 of the EPA Act applied to the Concept DA. [18] Section 4.15(1) sets out the matters that a consent authority is to take into consideration in determining a development application. The matters include the terms of any environmental planning instrument, including the Sydney LEP and SEPP 55. [19]

On or about 6 June 2018 Infrastructure NSW lodged the Concept DA (designated as SSDA 9249) for the redevelopment of the Stadium. The Concept DA was accompanied by the EIS, which described a staged development process comprising the concept proposal and an application for consent to Stage 1 consistent with the SEARS.

The EIS stated that the application comprised a State Significant Development Concept Development Application for the Stadium. It noted that the Minister was the consent authority for a State Significant Development Application made on behalf of a public authority, which in this case was Infrastructure NSW.

The EIS recorded that pursuant to s 4.22 of the EPA Act the Concept DA set out the concept proposal for the redevelopment of the Stadium, including:

The EIS also recorded that the Concept DA sought development consent pursuant to s 4.22(2) of the EPA Act for the carrying out of the detailed Stage 1 works comprising:

On 12 and 13 June 2018 notice of the Concept DA was published in newspapers.

Between 14 June 2018 and 11 July 2018 the Concept DA and EIS were publicly exhibited for a period of 28 days. According to the respondents, the period of 28 days conformed to the requirements of s 2.22 and Sched 1, [9] of the EPA Act. [20] A total of 726 submissions were received from 705 members of the public.

On 17 September 2018 Infrastructure NSW prepared a “Response to Submissions Report” (Response Report) addressing the submissions that had been made. The Response Report was placed on the Department’s website as required by the EPA Regulation. [21]

On 6 December 2018 the Department sent the Minister a briefing note requesting him to determine the Concept DA lodged by Infrastructure NSW. The briefing note recommended that the Minister consider the Assessment Report attached to the briefing note and adopt the Report’s findings and recommendations. The briefing note further recommended that the Minister grant consent to the concept proposal and Stage 1 works for the redevelopment of the Stadium. The briefing note also indicated that the Minister should agree that the Notice of Decision prepared by the Department accurately reflected the key reasons for the decision to grant consent.

The Assessment Report accompanying the briefing note examined the Concept DA in some detail. The Assessment Report addressed, among other topics, design excellence, building envelope location and visual impact.

On 6 December 2018 the Minister gave Development Consent to the Concept DA pursuant to s 4.38 of the EPA Act, subject to conditions specified in Schedules 2 and 3 to the consent. Section 4.38(1) of the EPA Act provides as follows:

The Development Consent described the Concept DA as follows:

Schedule 3 to the Development Consent set out the conditions of consent for the Stage 1 works. The “Terms of Consent” stated that the development could only be carried out in compliance with the conditions of consent and in accordance with specified approved plans. The approved plans included a “Site Analysis” (Plan SK21) and a plan showing the envelope for the proposed new stadium (Plan SK26), both of which are reproduced in Annexure A to this judgment. (It is convenient also to reproduce in Appendix A a plan prepared on 14 September 2018 entitled “Stage 1 Indicative Site Layout” (Plan SK35). Although not referred to in Schedule 3 to the development consent, Plan SK35 shows existing structures on the site and the contractors’ areas.)

Schedule 3 to the Development Consent included the following conditions under the heading “Limits of Consent”.

On 6 December 2018 the Minister signed a Notice of Decision recording his consent to the Concept DA. The Notice of Decision recorded the “Reasons for decision” as follows:

On 7 December 2018, the Notice of Decision, Instrument of Consent and the Assessment Report were published on the Department’s website.

As previously noted LDM commenced the proceedings in the LEC on 5 February 2019.

LDM submitted that the exhibition period that applied at the relevant time was determined by cl 83 of the EPA Regulation. Clause 83 stated that:

Section 89F(1) of the EPA Act provided at the relevant time as follows:

As has been noted, the respondents relied on s 2.22 and Sched 1 cl 9 of the EPA Act to support their contention that exhibition for 28 days satisfied the statutory requirements. Section 2.22(1), which came into force on 1 March 2018 in consequence of the enactment of the Environmental Planning and Assessment Act 2017 (NSW) (EPA Amendment Act 2017), provides as follows:

Division 2 of Part 1 of Schedule 1 to the EPA Act is headed “Minimum public exhibition periods for development applications …”. Schedule 1 [9] in Division 2 states as follows:

Part 2 of Schedule 1 to the EPA Act is headed “General provisions”. Schedule 1 [21] within Part 2 provides that the regulations may amend Part 1 of Schedule 1 to prescribe additional mandatory requirements for community participation or make other changes to Part 1.

LDM relied on cl 4A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (Transitional Regulation 2017), which relevantly provides as follows:

LDM submitted that cl 83 of the EPA Regulation, which was in force when the Concept DA was publicly exhibited, should be read as referring not to the repealed s 89F of the EPA Act but to Sched 1 [9] and [21] to the EPA Act. On this basis, the minimum period for public exhibition at the relevant time was 30 days rather than 28 days. Accordingly, so LDM argued, the Minister breached s 2.22(1) of the EPA Act by failing to comply with a “mandatory requirement[] for community participation”.

Mr Lazarus, who presented this argument, submitted that the breach of s 2.22(1) of the EPA Act rendered the purported consent invalid by reason of s 4.60(2)(a) of the EPA Act. This provision applies to a development consent granted or purporting to be granted, by the Minister and states as follows: [23]

LDM contended that s 89F(1)(a) of the EPA Act was a “relocated” provision within the meaning of cl 4A(2) of the Transitional Regulation 2017. According to Mr Lazarus, s 89F(1)(a) was “relocated” to Sched 1 [9] and [21] of the EPA Act when the Amending Act 2017 came into force on 1 March 2018. The relocation occurred, so he argued, because Sched 1 [9] and [21] together perform the same function as s 89F performed prior to 1 March 2018. That is, Sched 1 [9] now specifies the minimum period for public exhibition of a relevant development application and Sched 1 [21] confers power to make regulations to prescribe additional mandatory requirements. These are the functions previously performed by the repealed s 89F(1)(a) of the EPA Act.

It follows on this argument that cl 83 of the EPA Regulation prescribes the minimum submission period to be 30 days for the purposes of Sched 1 [9] and [21] of the EPA Act. It seems to be implicit in the argument that cl 83 is effectively to be regarded as an exercise of the power in Sched 1 [21] to make regulations amending Part 1 of the Schedule to the EPA Act even though cl 83 is not in Part 1 of the Schedule and even though cl 83 predated the coming into force of Sched 1 [21].

Quite apart from the last-mentioned difficulties, there are at least two reasons why LDM’s contention must be rejected. The first is that the Amending Act 2017 did not “relocate” the repealed s 89F(1)(a) of the EPA Act to Sched 1 [9] and [21] of the current EPA Act.

It is correct, as Mr Lazarus submitted, that the expanded definition of “relocated” in reg 4A(5) of the Transitional Regulation 2017 means that a provision in a repealed Act can be “relocated” to the amended Act, even if the provision is modified. But the expanded definition still requires that the relevant provision be “repealed and re-enacted”, albeit with “modification”. [25]

Schedule 1 [9] of the EPA Act can only be understood when read with s 2.22 and the relevant headings in Div 2 of Part 1 of Sched 1. Read in this way Sched 1 [9] specifies a minimum period of 28 days for the public exhibition of a development application for a State significant development.

Unlike the repealed s 89F(1)(a) of the EPA Act, Sched 1 [9] says nothing about when the development application must be placed on public exhibition and makes no reference to “accompanying information”. Schedule 1 [9] does not address what is to happen during the submission period or the manner in which an amended development application is to be dealt with. These matters are, however, addressed in s 89F(2), (3) and (4), provisions that must be read with s 89F(1). It is difficult to see how Sched 1 [9] can simply be regarded as a re-enactment of s 89F(1)(a), even allowing for modifications.

Schedule 1 [21] confers a general power to amend the provisions in Part 1 of the Schedule to prescribe additional mandatory requirements for community participation or to make other changes to Part 1. As envisaged by s 2.22 of the EPA Act, Part 1 of Sched 1 deals with a range of community participation requirements. Thus the regulation making power is very much wider than the power conferred by s 89F(1)(a), which was confined to prescribing the minimum period for the public exhibition of an application in respect of a State significant development. Schedule 1 [21] is clearly not a re-enactment of the repealed s 89F(1)(a) of the EPA Act. Nor is Sched 1 [21] a modified version of s 89F(1)(a): it is a new provision with a different scope and purpose.

The second reason for rejecting LDM’s submission is that its construction of cl 4A(2) and cl 83 is inconsistent with the intention of Parliament as expressed in the EPA Amendment Act 2017. Clause 4A(4) of the Transitional Regulation 2017 states that the clause is subject to any contrary intention “in the provision in which a relevant reference occurs”. In the present context the provision in which a relevant reference occurs would seem to be cl 83 of the EPA Regulation.

Whatever the effect of cl 4A(4) of the Transitional Regulation 2017, general provisions in a transitional regulation cannot be construed in a manner which is inconsistent with an intention clearly expressed in the amending (and amended) legislation. Section 2.22 and Sched 1 [9] of the EPA Act are clearly intended to reduce the minimum period for the public exhibition of a State significant development application from 30 to 28 days, subject to the exercise (in the future) of the regulation making power conferred by Sched 1 [21].

Whatever may have been the reason for the failure to repeal cl 83 of the EPA Regulation on 1 March 2017, when the EPA Amendment Act 2017 took effect, to read the general language of cl 4A(2) of the Transitional Regulation 2017 as maintaining the pre-existing position would subvert the intention clearly expressed in s 2.22 and Sched 1 [9] of the EPA Act. The object of the amendments was to bring about a relatively modest but nonetheless significant change in the mandatory requirements applicable to the public exhibition of State significant development applications. The minimum period of public exhibition was to be reduced from 30 to 28 days.

This conclusion as to the intent of the amending legislation is supported by the Explanatory Memorandum accompanying the Environmental Planning and Assessment Amendment Bill 2017. The Explanatory Memorandum stated that the Bill:

We should record that Mr Lazarus sought to derive comfort from the “concordance table” of renumbered and relocated provisions referred to in the Note to cl 4A of the Transitional Regulation 2017. The table shows the provisions in force immediately before the commencement of the EPA Amendment Act 2017 and the corresponding decimal section numbers following the amendments. The provision corresponding to s 89F is said to be Sched 1 [9] (but not Sched 1 [21]).

The table is not part of the EPA Act. [26] In any event the table is for “the purposes of comparison” and says nothing about whether particular provisions in the amended EPA Act are “relocated” from the unamended version of the legislation.

Mr Lazarus also submitted that unless LDM’s interpretation was adopted there would be no work for cl 83 of the EPA Regulation to do. There is of course no doubt that cl 83 had work to do before the repeal of s 89F. It is not clear why cl 83 remained in the EPA Regulation for six months after the repeal of s 89F. A possible reason is that the Transitional Regulation 2017 provided that if anything commenced under a repealed provision of the EPA Act was not completed immediately before the repeal the thing commenced could be completed. [27] It may have been thought that processes that had been commenced under s 89F could be completed under that provision, notwithstanding its repeal, and that cl 83 should remain in to accommodate that possibility.

In any event, whatever operation cl 83 may or may not have had after 1 March 2018, the failure to repeal cl 83 on that date cannot justify interpreting cl 4A(2) of the Transitional Regulation 2017 and Sched 1 [9] and [21] of the EPA Act in the manner contended for by LDM.

For these reasons the primary Judge was correct to conclude the Minister’s actions in placing the Concept DA on public exhibition for 28 days did not involve a breach of any provision of the EPA Act.

The notice of contention invited the Court, in the event that it upheld LDM’s argument on the minimum period for public exhibition of the Concept DA, to exercise its discretion under s 9.46 of the EPA Act to refuse relief or, alternatively, to make an order pursuant to s 25B of the LEC Act specifying terms that would validate the consent. [28]

Having regard to the conclusion reached in relation to the minimum period of public exhibition of the Concept DA, it is not necessary to address the notice of contention. It is enough to say that if LDM’s argument had been upheld there would be a strong argument for the exercise of the discretion, at least to the extent of withholding injunctive relief. Since the period for making submissions was advertised publicly as 28 days, it is difficult to see how anyone was disadvantaged by the Concept DA being placed on public exhibition for that period rather than 30 days. There was also evidence that submissions received after the 28 day period were taken into account in the decision-making process. While it is important to recognise that the obligation to place a Concept DA on public exhibition is a public duty imposed by Parliament, [29] that consideration is not necessarily determinative. [30]

LDM submitted in this Court, as it did before the primary Judge, that the evidence established that the Minister had not formed the opinion regarding design excellence required by cl 6.21(3) of the Sydney LEP.

Clause 6.21 relevantly provides as follows:

It was common ground before the primary Judge that cl 6.21 applied to the Concept DA because it was an application for “development involving the erection of a new building” within the meaning of cl 6.21(2).

The primary Judge rejected LDM’s contention essentially for the following reasons: [31]

Mr Robertson SC, who presented LDM’s argument in this ground of appeal, observed that it was common ground that cl 6.21(3) of the Sydney LEP required the Minister to form the opinion that the proposed development exhibited “design excellence”. He identified the issue dividing the parties as purely one of fact, namely whether LDM had established on the evidence that the Minister had not formed the requisite opinion.

Mr Robertson accepted that LDM bore the onus of establishing that the Minister did not form the opinion as required by cl 6.21(3). He also accepted that cl 6.21(3) required only that the Minister form an opinion as to the design excellence of the concept proposal, not of any architectural or other plans that might be drawn up for the construction of the new stadium. Indeed Mr Robertson went further and acknowledged that there was material in the EIS, especially in Appendix D (entitled “Design Excellence Strategy”), that would have allowed the Minister to have formed the requisite opinion. He submitted, however, that although the evidence indicated that the Minister considered the material addressing design excellence, it did not establish that the Minister had actually formed the opinion that the Concept DA exhibited design excellence.

Mr Robertson relied on the absence of an express statement in the briefing note, Assessment Report or Notice of Decision that the Minister was required to form the opinion or had in fact formed the opinion. He pointed out that Preston CJ of the LEC gave judgment in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council (Uniting Church) [32] on 11 October 2018, after the Minister granted consent to the Concept DA. In Uniting Church his Honour construed cl 7.10 of the Parramatta Local Environmental Plan 2011 which is in substantially the same terms as cl 6.21 of the Sydney LEP. Preston CJ said this of cl 7.10: [33]

Mr Robertson submitted that the Minister and the Department misconstrued cl 6.21 of the Sydney LEP because they did not have the benefit of the decision in Uniting Church. Until Preston CJ delivered judgment, so Mr Robertson submitted, it was not generally recognised that a provision in the form of cl 6.21(3) of the Sydney LEP applied to a concept development application. It was therefore not surprising that all parties involved in the consent process had assumed that cl 6.21 of the Sydney LEP did not require the Minister to be satisfied of design excellence at the concept stage of the project and that formation of the necessary opinion could be postponed to Stage 2.

As Mr Beasley pointed out in his submissions, a “concept development application” as defined by s 4.22(1) of the EPA Act contemplates that the application will set out concept proposals for the site, but that detailed plans for the development of the site will be the subject of one or more subsequent development applications. Preston CJ recognised this in Uniting Church, when his Honour observed that a provision such as cl 6.21 of the Sydney LEP only requires the consent authority to have regard to matters that are relevant to the concept development application. It follows that in the present case the Minister had only to form an opinion as to design excellence by reference to matters relevant to the Concept DA. The Minister did not have to form an opinion about matters relevant only to a later stage of the development for which a separate consent was required.

It also follows that not all matters identified in cl 6.21(4) as bearing on design excellence are relevant to a concept development application. For example, cl 6.21(4)(a) refers to a high standard of architectural design, materials and detailing as a consideration relevant to design excellence. Since the Concept DA in the present case did little more than outline the envelope of the proposed new structure on the site, the matters identified in cl 6.21(4)(a) of the Sydney LEP had little significance for the opinion the Minister was required to form.

The material before the Minister included sections analysing whether the Concept DA exhibited design excellence. The EIS incorporated a table which addressed compliance with legislation and environmental planning instruments. The table specifically referred to cl 6.21 of the Sydney LEP and stated that:

Annexure D to the EIS stated that the proposed concept design would exhibit design excellence “where applicable to the building envelope” as explained in the document. Annexure D summarised the approach to Stage 1 of the Concept DA:

The EIS was prepared on behalf of the applicant for development consent. However, the Notice of Decision expressly adopted the findings and recommendations of the Assessment Report as the reasons for the Minister’s decision. The Assessment Report like the EIS, considered whether the proposal exhibited design excellence.

The Executive Summary to the Assessment Report addressed the issue under the heading “Built form and urban design”:

Section 6.2.1 of the Assessment Report analysed “Design excellence” in detail. This section of the Assessment Report included the following passages:

The Assessment Report provided a detailed comparison between the roof heights of the existing Stadium and the proposed envelop of the new structure. The Visual Impact Assessment (VIA) assessed the visual impact of the proposal against relevant planning instruments by reference to six criteria, namely:

After recording the conclusions of the VIA in relation to each of these criteria, the Assessment Report concluded as follows:

Mr Robertson accepted that the material in the Assessment Report positively established that the Minister had taken the height and shape of the building envelope into account in forming an opinion that the proposed structure would not have an undue or disproportionate impact on the surrounding areas. But he submitted that this was not the same thing as forming an opinion as to the design excellence of the concept proposal.

The principal difficulty with this submission is that it rests on an artificial distinction between an assessment of impact on the one hand and design excellence on the other. As is clear from cl 6.21(4) of the Sydney LEP (and as the EIS noted) the impact a proposed building will have on the surrounding areas is an integral element of design excellence at the concept stage.

Mr Robertson’s submission prompted the following exchange:

Mr Robertson later sought to modify his response by pointing to a passage in the EIS which he said indicated that the issue of design excellence could be deferred until Stage 2. Having regard to the passages from the EIS reproduced above, we do not think that the EIS can be read in this way. In any event, it is the analysis in the Assessment Report which is significant because the Minister adopted its findings and recommendations as his own reasons.

The primary Judge was prepared to infer that the Minister did form the opinion required by cl 6.21(3) as to the design excellence of the concept proposal. Although we consider that this inference is clearly open it is not necessary to go so far. It is enough to conclude that LDM did not establish that the Minister failed to form the requisite opinion as to the design excellence of the concept proposal.

LDM’s submissions on the issue of contamination centred on cl 7 of the SEPP 55. The object of SEPP 55 is stated in cl 2:

Clause 7(1) of SEPP 55 provides as follows:

“Land” is defined in s 1.4(1) of the EPA Act to include “a building erected on the land”. “Development” is defined in s 1.5(1) of the EPA Act to include the demolition of a building or work and the erection of a building. For the purposes of the EPA Act the “carrying out of development is the doing of the acts, matters or things referred to in [s 1.5(1)]” (s 1.5(3)).

SEPP 55 cl 4(1) provides that “contaminated land” has the same meaning as in Part 7A of the EPA Act. [34] Part 7A was repealed and re-enacted by the EPA Amendment Act 2017 as Sched 6 to the EPA Act. The relevant definition of “contaminated land” is now in Sched 6 [1], and is as follows:

The Assessment Report devoted a section to “Contamination” as follows:

Appendix B to the Assessment Report addressed “Statutory Considerations”. Appendix B summarised the position concerning SEPP 55 as follows:

As has been seen the conditions of consent for the Stage 1 works approved only the demolition of relevant structures to the slab or existing ground level. No works involving excavation, ground disturbance or changes to existing ground levels were permitted. [35] This was consistent with the EIS which sought consent to the demolition of existing buildings “down to existing slab level”. [36]

It is common ground that if the Minister failed to comply with cl 7 of SEPP 55 he committed a jurisdictional error, thereby rendering the development consent invalid (subject to discretionary considerations). LDM did not pursue on the appeal all the arguments upon which it relied before the primary Judge to establish a breach of cl 7 of SEPP 55. However LDM did submit that the Minister failed to comply with cl 7 because he gave consideration only to whether the buildings to be demolished during Stage 1 of the proposed works were contaminated. Mr Robertson submitted that on the proper construction of cl 7 of SEPP 55 the Minister was obliged, before granting consent to the Concept DA, to consider whether the land on which the new stadium was to be constructed was contaminated and whether it required remediation for the project to be completed.

Mr Robertson contended that s 7(1)(b) and (c) of SEPP 55 required the Minister to consider the question of contamination by reference to the work involved in completing the project contemplated by the Concept DA. This contention rested in part on construing the word “land” in cl 7 to include the subsoil, which would necessarily be disturbed during Stage 2 of the project (when the new stadium is to be constructed). But it was central to his submission that the expression “suitable for the purpose for which development is proposed to be carried out” in cl 7(1)(b) and (c) of SEPP 55 referred to the purpose of redeveloping the Stadium, including the work required to construct a new stadium. While Stage 1 of the Concept DA was limited to demolition of existing buildings on the site, those works were just the first stage in carrying out the concept proposal to redevelop the Stadium. In short, the Concept DA sought consent to an integrated proposal for the rebuilding of the Stadium to be achieved in stages.

The primary Judge held that the subject of development consent was the land affected by the demolition of the Stadium and ancillary buildings down to a slab. Contrary to LDM’s contentions, “land” for the purposes of cl 7 of SEPP 55 did not include the subsoil to be disturbed during construction of the new stadium. There was no evidence that any ground would be excavated during Stage 1, and in any event the conditions of consent did not permit excavation. [37]

The primary Judge accepted the Minister’s submission that the purpose for which the development was proposed to be carried out was the demolition of the buildings approved in Stage 1 of the Concept DA. The purpose of Stage 2 was the construction of the new stadium but that had yet to be submitted or approved. [38] In her Honour’s view, cl 7(1) of SEPP 55 was directed to the works for which approval was sought in the Concept DA. [39] Her Honour found that the Minister had complied with cl 7(1) because he had considered whether the land was suitable in its contaminated state for the purpose for which the development was to be carried out, namely the demolition work to be carried out during Stage 1 of the project. That question had been squarely addressed in the section of the Assessment Report considering compliance with SEPP 55. [40]

If each of the sub-paragraphs of cl 7(1) of SEPP 55 is read in isolation the construction proposed by Mr Robertson might be open. But cl 7 has to be construed in context. The context includes relevant provisions of the EPA Act.

Section 4.22(4) of the EPA Act expressly provides that a consent granted on the determination of a concept development application does not authorise the carrying out of development on any part of the site unless:

Clause 7(1) of SEPP 55 prohibits the carrying out of any development on land unless the requirements of sub-clause (a), (b) and (c) are satisfied. The expression “carrying out of development” is defined in s 1.5(3) of the EPA Act to mean “the doing of the acts … referred to in [s 1.5(1) of the EPA Act]”. Section 1.5(1) defines “development” to mean any one of six acts, matters or things, one of which is “the demolition of a building or work”.

The Concept DA sought to carry out only one form of development, namely the demolition of buildings to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works involved in Stage 1. Further development, in particular the construction of the new stadium, required a separate development application and the grant of consent by the Minister to that application. Before granting any such consent the Minister would have to take into account the matters and form the opinion required by the legislation and subordinate instruments.

The prohibition in the chapeau to cl 7(1) of SEPP 55 is directed to the grant of consent “to the carrying out of development on the land”. In the present case the only consent sought for the carrying out of development was to the demolition of buildings to be carried out during Stage 1 of the project. In these circumstances the reference to “the carrying out of any development on the land” in the chapeau is therefore to the carrying out of the demolition work proposed in Stage 1 of the project.

Clause 7(1)(b) and (c) each use the expression “the purpose for which the development is proposed to be carried out”. The development proposed to be carried out is the carrying out of demolition work during Stage 1 of the project. The purpose for which the demolition work is to be carried out is to ready the site for the next stage of the project – that is, the construction of the new stadium. As contemplated by s 4.22(1) of the EPA Act the next stage of the project will require detailed proposals for the site which will be the subject of a subsequent development application or applications. The Minister will therefore be required to assess the development application in relation to Stage 2 of the project by reference to the requirements specified in cl 7(1) of SEPP 55. It would be very odd if cl 7(1) required the same issues of contamination to be addressed at different times as the project moved through consecutive but separate stages.

This conclusion is consistent with the scheme established for concept development applications by s 4.22 of the EPA Act. It is also consistent with the object of SEPP 55 stated in cl 2. There is no risk of harm to human health or the environment if each stage of a concept proposal is subject to the rigorous requirements of SEPP 55.

LDM’s written submissions rested entirely on the contention that the Minister had addressed the wrong question by limiting the consideration of contamination to the Stage 1 demolition works rather than the subsequent stages of the redevelopment of the Stadium. In his oral submissions Mr Robertson did not concede that if this Court rejected LDM’s argument as to the construction of cl 7(1)(b) and (c) of SEPP 55 the Minister had not breached cl 7(1). However Mr Robertson did not advance any substantive argument to support a contention that even on the respondent’s construction of cl 7(1) the Minister failed to comply with the requirements of cl 7(1).

In any event the Assessment Report addressed the issue of contamination in the sections extracted above. [41] The Assessment Report identified the main contamination risks associated with the proposed construction of the new stadium. It recommended that prior to any further planning approval a Detailed Site Investigation should be undertaken, although it assess as low the risk that significant contamination would be present such that redevelopment could not take place without significant remediation. Clarification had been sought that the demolition works could be undertaken without disturbing potentially contaminated soil and fill material, and the necessary assurance had been received. The Department assessed the proposal (that is, the Concept DA) as satisfactory subject to implementation of the recommended conditions.

The section of the Assessment Report dealing specifically with SEPP 55 recorded that the Department was satisfied that Infrastructure NSW had considered whether the land was contaminated and was also satisfied that the land use proposed for Stage 1 satisfied SEPP 55.

As has been seen, Sched 3 to the Development Consent imposed conditions of consent for the Stage 1 works. Condition A6 limited the works approved under Stage 1 to demolition of relevant structures to the slab or existing ground level. Condition A7 stated that no works involving excavation, ground disturbances or changes to existing ground levels were permitted.

Schedule 2 to the Development Consent set out conditions to be satisfied in future development applications. Conditions C23-C25 specified the detailed site investigations and assessment reports required for any future development application in relation to the site. Of course any such development application will require consent.

In our view the primary Judge correctly concluded that LDM had not established that the Minister failed to comply with the requirements of cl 7 of the SEPP 55 when granting consent to the Concept DA, including Stage 1 of the works.

For these reasons the Court made the orders dismissing LDM’s appeal.

The question of costs remains to be resolved. The following directions should be made: