Stadium may be headed for court

By Wendy Bacon 

Waverley Council voted to take legal action to stop demolition of the Sydney Football Stadium unless the Minister for Planning, Anthony Roberts, informs it about what action he will take to address concerns about the validity of his project approval by 10am on Monday January 14.

Council passed this motion on Monday night, but Liberal Councillors have put in a rescission motion, which will be debated this Friday evening.

The motion states that Waverley Council, which is a “significant stakeholder,” has received legal advice that raises questions about whether the Minister’s consent for demolition and redevelopment has been issued correctly, “especially in relation to design excellence of the concept application” as required by the City of Sydney’s Local Environment Plan.

Waverley Council Mayor John Wakefield said today, “I have not drawn any conclusion about malicious intent on the part of the Minister, rather that an error has occurred from the rush”. The motion states that the failure to comply with requirements will have an “adverse impact on Waverley’s residents and businesses”.

If legal action is to be taken, it’s important that it be done as soon as possible to limit potential damages. The rush by Department of Planning bureaucrats to approve the project before Christmas was likely designed to take advantage of the holiday period when decision-making tends to be put on hold.

Waverley Council has 12 Councillors, seven of whom are Labor or Greens and five of whom are Liberals. The Council first tried to consider this matter on December 20 but there was no quorum due to the holidays. If there is no quorum on Friday night, the meeting will need to reconvene on another date.

However, if Liberals do not show up on Friday, other Councillors and community groups would interpret this as a politically motivated undermining of their own rescission motion.

The motion includes a rider stating that Council will not take action unless one other Council agrees to join the action. Randwick Council is understood to be considering the possibility of joining.

City Hub put questions to the Lord Mayor Clover Moore, who stated that, “We strongly agree that the demolition and rebuild is a wasteful project and that the process has been flawed. …  Unfortunately – the City is not the consent authority for the Moore Park Showgrounds, Fox Studios or the Sydney Sports Stadiums sites for works over $10 million. The State Government has twice changed legislation to give the NSW Minister for Planning sweeping powers to determine development applications for the sites, including under a Labor Government in 2005. 

“Our legal staff analysed the advice sent to us from the NSW Labor Party but they believe if the City were to launch proceedings using that advice in the Courts, it could leave our organisation (and therefore City ratepayers) liable for substantial costs and damages. We cannot expose our ratepayers to that level of risk on a planning matter in which we have no authority.”

The Mayor stated that she strongly encourages the Labor party to take action and that “staff are closing monitoring the situation”.

The monitoring will presumably include holding Infrastructure NSW (INSW) strictly accountable for meeting every condition of approval.

The planning approval states that demolition of the Sydney Football Stadium cannot begin until a Community Consultative Committee (CCC) is “functional” and a number of documents including the Construction Environment Management Plan are submitted to City of Sydney and the Department of Planning. The Consultative Committee must function according to Department of Planning guidelines for State Significant projects, including ones relating to the appointment of an “Independent Chair”.

The Minister approved the concept plan and demolition on December 6. In response to questions, a Department of Planning spokesperson stated that a shortlist selected from its panel of chairpersons was issued and Ms Margie Harvie was appointed by December 11. This whole process took less than three business days.

Ms Harvie’s solid experience as a community engagement professional is substantiated by her company’s website plancom.com.au. She has a long interest in planning matters, and in 2016, she was the fifth candidate for the Sydney Matters team led by City of Sydney Councillor Angela Vithoulkas.

One of the matters that the Department was required to consider was “conflict of interest”.

One of the first observations that City Hub made from the client list on her website is that Lendlease is included twice, both as a construction company and a developer. Since Lendlease is now in control of the Sydney Football Stadium and will be attending the meetings of the Committee, it is difficult to see how this would not lead to a perception of bias.

City Hub put questions to both Ms Harvie and the Department of Planning about the issue of “perceived bias”. She referred the questions to the Department which issued a single response.

The Department provided City Hub with this statement. “The Department’s considerations included the suitability of the candidate, including seeking advice about any relevant pecuniary or non-pecuniary interests. The Department is aware of PlanCom’s [of which Margaret Harvie is a Director] previous work with Lendlease. The Department is satisfied that the previous work undertaken by PlanCom does not preclude Ms Harvie from being an independent chair for the SFS CCC. Ms Harvie has significant experience and expertise in community engagement with a substantial government and non-government client base within the State and across Australia. The Department considers that this experience and her expertise makes Ms Harvie an eminently suitable independent chair.”

So it seems that senior staff of the Department of Planning consider that “conflict of interest” matters can be dissolved if accompanied by an otherwise strong CV. How it assesses ‘independence’is not clear. But most people in the community would expect it to convey an independence from parties with a pecuniary interest. Waverley Mayor John Wakefield says, “I would expect the Community Committee would be run by people with no connection to a vested interest”.

When added to the presence of the Secretary of Planning Carolyn McNally and Lendlease subsidiary director Alise Tansey on the Infrastructure NSW Board (reported last week) and overwhelming local opposition to the project, the Department’s attitude will reinforce community anger that it has been shut out of the process.

Keep Sydney Beautiful spokesperson Maria Bradley said, “You’d hope that there’d be people on the panel with relevant experience to prevent the need for a choice that compromises the committee. There are plenty of professional and other people with community facilitation and committee experience who could be available.“

But the appointment of the Independent Chair is characteristic of the unseemly rush that occurred every step of the way with this project. The aim is to tear down as much of the structure of the Stadium as possible before the election – and hope that Gladys Berejiklian is re-elected.

This week the Sunday Telegraph quoted Sydney Cricket Ground Trust’s Tony Shepherd as being “very pleased” with progress on the project and reported that bulldozers were moving in. Senior government figures have also given the impression that demolition is beginning but this is designed to make the community believe demolition is a fait accompli. Under the conditions of the approval, no ground can be broken so it is hard to see why bulldozers would be used to prepare the site.

Labor opposition Leader Michael Daley and local Sydney MP Alex Greenwich both wrote to the Premier this week asking her to halt the demolition and confirm that demolition would not occur before the Consultative Committee is functional. Greens MP have also called for a halt to demolition.

Notice for applications from CCC representatives must be advertised for a minimum of 28 days. The Department began advertising the process on December 18 with a deadline of January 16. That’s exactly 28 days with no allowance made for any public holidays. A spokesperson for INSW stated that advertisements had been placed in Newscorp local papers Wentworth Courier and Southern Courier and approximately 10,000 project updates that included information about the CCC have been distributed in the local community.

But residents, even some living very close to the site, and groups in the local government areas affected by the project have been complaining including to the Department of Planning that they have not received any information.

One resident left a message on the author’s facebook page: “Didn’t receive any information on it. It’s obviously not appropriate to rush consultation through during a peak holiday period and service shut down period”. He lives in social housing that does not receive the Southern Courier. Surry Hills, Alexandria, Chippendale and Erskineville residents complained about no notification. Formal letters from residents and a community group have lodged complaints with the Dpartment of Planning about the lack of notice.

Filmmaker Pat Fiske, an Eastern suburbs resident, who has had a longterm interest in development issues, posted a comment that she had received no information at all in December.

President of Friends of Erskineville Andrew Chuter posted a comment that there was a second ad on page 31 of the January 9th edition of the Wentworth Courier. This is merely one week before the deadline. Neither the Wentworth Courier or Southern Courier is distributed in Erkineville and other suburbs within the City of Sydney LGA. “I don’t feel I was properly informed,” he wrote.”( Many residents in this area are concerned about the impact of the project on already congested and dangerous truck traffic due to other projects and WestConnex as well as being opposed on other grounds.)

While Lendlease is now in the possession of the site, no structural demolition is allowed to occur until Infrastructure NSW lodges a Construction Management Environmental Plan and other documents with the Department of Planning and City of Sydney, which will then have the opportunity to provide feedback. That’s assuming, the Department of Planning holds INSW to the conditions of approval.

Wendy Bacon is a past Professor of Journalism at UTS. You can read more stories on her blog at wendybacon.com