BY WENDY BACON
The NSW Land and Environment has ordered construction company Lendlease not to begin demolishing the Sydney Football Stadium until March 8.
The order is a setback for the Gladys Berejiklian government, which is desperate to get the roof off the stadium before the election on March 23. With the Labor opposition, Greens, local Councils and most NSW citizens opposed to splurging $730 million on tearing down one stadium and building another, disappearing the roof would help neutralise the issue by making destruction appear inevitable.
Justice Nicola Pain found that demolition of the stadium was “imminent” and that it was in the “public interest” to delay demolition for two weeks. By then, she will have decided the case taken by Waverly Council and local community group Local Democracy Matters who have argued that the Minister for Planning Anthony Robert’s consent to Stage 1 works was invalid.
Outside the court, Local Democracy Matters spokesperson Chris Maltby told journalists, “The main issue is: Can the government be expected to uphold it own planning laws? If they come up with rules that they expect the rest of us to follow then really they should follow them themselves…this is really about the highest planning authority in the state and whether they’re actually following their own process.”
Judge finds the case raises serious legal questions
Justice Pain’s reasons for granting the injunction leave no doubt that the decision to take legal proceedings was justified. She finds that Waverley Council and Democracy Matters have raised serious questions for her to consider and that there is a prima facie case that the Minister’s consent is invalid.
Sandra Duggan, senior counsel for INSW, vigorously argued against the injunction. She maintained that the challengers should provide evidence that there would be “irreparable damage” if the roof were removed.
Justice Pain rejected the argument that the applicants should be expected to call an engineer, when the facts were in the hands of INSW. She found that if the roof came off, any reversal would require “additional time and costs” to restore the situation and that “whether it is impossible is unknown”.
Although Lendlease refused to give an undertaking not to demolish the stadium, it did not oppose the injunction. INSW argued that because both Waverley Council and Local Democracy Matters declined to give an undertaking for damages and because Lendlease could potentially claim $ 46,000 a day for delay, the injunction should be refused.
Again, Justice Pain disagreed, concluding that this was a case in which an injunction should be granted on ”public interest” grounds without an undertaking. She did not find that a claim from Lendlease for delay was inevitable or payable.
It emerged during the case that INSW was always aware that a legal challenge could occur. The contract with Lendlease would allow the government to terminate the Stage 1 works for a cost of no more than approximately $1 million plus the cost of work done. This suggests that a post-election cancellation of the project by an incoming Labor government would be relatively straightforward.
In what seemed to be a last-ditch argument, Duggan argued that the impending demolition was irrelevant because the case is about the validity of the Minister’s consent, not the stadium. She even suggested that the political issue of the merits of the stadium had been already resolved by a parliamentary inquiry.
Local Democracy Matters barrister Tim Robertson SC and Waverley Council’s barrister Philip Clay SC argued that the stadium was the subject matter of the proceedings and could therefore never be irrelevant.
When Justice Pain suggested that Duggan was “splitting hairs”, it was obvious that she was unimpressed by the argument. So it was no surprise that she agreed with the applicants’ barristers that you cannot separate the stadium from the consent to demolish it.
She accepted that Waverley Council and Local Democracy Matters had acted properly and without delay in bringing the proceedings with “no benefit directly from the proceedings if successful”.
Hidden contamination report surfaces
Rather than accept INSW’s position that the stadium controversy was irrelevant, Justie Pain found that the stadium redevelopment “generated considerable public interest and controversy is clear from the amount of material placed before me”.
The case against the Minister alleges three breaches, each of which is relevant to consent for a major State project of “public importance”. The first breach is whether the consultation period was shorter than it should have been; the second is whether site contamination was properly considered, and the third is whether the Minister failed to consider whether ”design excellence” was exhibited by the proposal as required.
A compelling moment during the hearing came during arguments about whether the Department of Planning had properly followed an environmental regulation called SEPP 55 that regulates contamination land. It became clear from the evidence that has emerged during the case that INSW and Planning were aware of a report that showed the presence of carcinogens in the groundwater and soil on the site before the end of the short 28-day consultation process. That report was not provided to the public. This led Robertson SC to suggest that the report had been ‘suppressed’. Duggan SC indignantly accused him of playing to the gallery without evidence. To City Hub’s reporter and one suspects most others in the crowded court, it appeared that Robertson was drawing the attention of the court to important evidence of ‘public interest’ that INSW preferred to remain hidden.
The only witness in the case was Head of INSW Projects Director David Riches. He was asked to produce the contract between INSW and Lendlease to the court. Initially, he left out the schedules to the contract that contains important information. Asked why he did this, he told Clay SC that he had been advised by his lawyers to do that.
Justice Pain must now resolve complex legal arguments about the alleged breaches. It’s difficult to predict the outcome. Since December, the NSW government has known that senior counsel Robertson and Clay viewed the consent as invalid. It’s fortunate that Waverley Council and Local Democracy Matters exercised their civic duty to ensure the Minister complies with the law, especially in a case of such public importance. As he left the court, Chris Maltby’s first words were to thank the barristers without whose work a case like this could never have happened.
Wendy Bacon is a past Professor of Journalism at UTS. She blogs at Wendybacon.com