By Wendy Bacon
Following the defeat of a Liberal party rescission motion on Monday, Waverley Council has finally been able to push ahead with urgent legal moves against the approval of the demolition of Sydney Football Stadium.
At its third attempt, Waverley Council had a quorum with nine councillors present. The rescission motion was narrowly defeated by five Labor and Green Councillors against four Liberal Councillors.
Waverley Council has now written to the Minister for Planning Anthony Roberts advising him that it has received legal advice that his approval of work on the Sydney Football Stadium was invalid because it failed to consider “design excellence” according to the City of Sydney’s Local Environment Plan (LEP). This was required by the Department of Planning’s own Secretary Environment Assessment guidelines (SEARS).
City Hub contacted the Minister’s office to ask if Minister Roberts had sought advice on whether there was an error. A spokesperson for the Minister, John Macgowan, said that the Minister’s office has read all three advices from senior counsels and had been advised by the DPE internal legal counsel that they were not correct. He told City Hub that Waverley Council was advised of this before Christmas.
Design excellence criteria ignored
Asked why it was not necessary to follow the Secretary of Planning’s requirement to consider “design excellence”, he said that the application and approval “was only about demolition” and that the “concept proposal” for the stadium had only been included at all “as a way of getting greater transparency”.
City Hub’s reporter was surprised by this answer because the Department’s assessment report and the Minister’s approval contain a large amount of material relevant to the Concept Design approval as required SEARS. More detail will be required for the Stage 2 application.
Waverley Council is only requesting that the Minister obtain a barrister’s advice refuting its own advice. But the Minister will not comply with that request. Instead, Macgowan said that Roberts is relying only on the Department’s own counsel. Since the Department’s own lawyers approved the original decision, it ‘s unlikely that they will now provide counter advice that it was wrong.
Macgowan said that the NSW government was not “prepared to play the issue out in the media” and that it would be “decided before a judge”. External barristers will only be briefed if the matter goes to court.
Macgowan also said that if Labor Opposition Leader Michael Daley becomes Premier, the current level of transparency would be lost and NSW would return to the days of Part 3A when only the Minister’s signature and no Environmental Impact Statement (EIS) was required for the approval of State Significant developments.
While the NSW LNP government has allowed EIS for major developments, as City Hub has often reported, residents and Councils have found these processes to be a farce because political decisions are made behind closed doors and all objections to EIS are simply rejected by the Planning Department.
If Waverley Council’s advice is right, a decision in its favour could reopen the approval process and delay demolition until after the election. If Labor Opposition wins, Leader Michael Daley has said a Labor government would not proceed with the demolition but would refurbish the stadium.
Waverley Council will only take the matter to court with another Council on board. This puts the ball in the court of the City of Sydney and Randwick councils.
Waverley Mayor John Wakefield told City Hub, “I am arranging meetings/phone calls with the other mayors”.
Randwick Council has five Labor Councillors, three Greens, four Liberals and three independents. On numbers, it would appear possible that if its own lawyers consider Waverley’s senior counsel’s advice is sound, Randwick could join the action.
That leaves the City of Sydney (COS), which is the most significant stakeholder. COS Lord Mayor Clover Moore firmly rejected taking legal action when she was asked by City Hub about its position two weeks ago. But her answer referred to “damages” as well as “costs”, which Mayor Wakefield told Council would not be involved as no injunction is being sought. City Hub submitted more questions to the Lord Mayor but her position is the same: “The Lord Mayor remains opposed to the wasteful stadium demolition. However, even without an injunction, there is still no guarantee that City of Sydney ratepayers would not be exposed to significant financial risk if a court hearing was delayed or took longer than anticipated”.
Spokesperson for the community group Keep Sydney Beautiful Maria Bradley told City Hub that people in the City of Sydney have a right to “fully understand the implications the Sydney Football Stadium redevelopment will have on them. No information has been provided on how Busby’s Bore will be impacted, how toxic materials and dust will be moved safely or the impacts of demolition/construction trucks on arterial roads. …Given there are no damages in a legal action, we urge the COS to represent their constituents and join Waverley council in this legal action. Why wouldn’t they?”
The Chippendale Residents Interest Group has also written to COS Councillor Philip Thalis requesting that the issue be reconsidered by a meeting of Councillors “given the wider public interest, and that time is of the essence”.
Thin grounds for Liberal rescission
When the Waverley Liberal Councillors’ rescission motion was finally debated this week, the grounds were surprisingly thin. Their main argument was that the request that the Minister respond within a short time was unfair during the holiday period. As Mayor Wakefield pointed out, the Minister had taken just two days to consider his Department’s advice to approve the project.
After the meeting, the Liberal councillors spoke with City Hub and expressed the strong view that legal action was not justified because the Sydney Football Stadium does not impact the residents of Waverley. They denied that Waverley Council was a stakeholder.
Mayor Wakefield responded: “The Department of Planning identifies Waverley as a significant stakeholder. Moore Park Rd is a major arterial road for residents and businesses as well as visitors to Waverley. It is the main access road for Waverley to access the Harbour Bridge, and is one of two main roads to access the airport and points west of Waverley. It is also important for access to the Sydney CBD.The stadium can clearly be seen from Waverley, Bondi Junction particularly. It’s in everyone’s interest that the laws of the land are upheld.”
There is clearly a debatable legal issue at stake that could have implications for future developments as well as the Stadium. It would be unfortunate if an invalid decision were allowed to stand, given that 99% of submissions from Councils and residents so strongly objected to the stadium project.
But it’s not only the political and legal process that is moving slowly. Despite the government’s gung-ho political rhetoric at the beginning of January, progess on the ground is slow. As February approaches, when City Hub visited this week, there were still hundreds of stadium seats in place. The Community Consultative Committee (CCC) which needs to be functioning before demolition can begin is still not in place. The CCC must also sight plans for an acoustic shed, which must fully enclose concrete crushers, also before demolition begins.
Philip Cox’s stadium is not yet dust.
Wendy Bacon was previously the Professor of Journalism at UTS.