Australians for Sustainable Development Inc v Minister for Planning, Lend Lease (Millers Point) Pty Ltd and Barangaroo Delivery Authority
EDO NSW, on behalf of Australians for Sustainable Development Inc, commenced proceedings to challenge two new approvals of the Minister for Planning in relation to development at Barangaroo. The proceedings were commenced in the Land and Environment Court on 26 November 2010 against the NSW Minister for Planning, Lend Lease (Millers Point) Pty Ltd and the Barangaroo Delivery Authority (BDA).
The approvals which were challenged related to the excavation of the building footprint and a car park for almost 900 cars (major project application MP 10_0023) and the early works for the headland park and northern cove, including use of the excavated fill from the car park for the public park (major project application MP 10_0047).
Part of the Barangaroo site and surrounds contain poisonous toxins from gas works that were once conducted in the area. Investigations by the Environment Protection Authority found that there are reasonable grounds to believe that the site was contaminated in such a way as to present a significant risk to human health and environment. Australians for Sustainable Development claimed that carrying out excavation works before cleaning up the source of the contamination posed a serious risk of these toxins flowing into Sydney Harbour.
The approvals were challenged on the following grounds: (1) the early works in relation to the northern headland are impermissible under current zoning; (2) failure to have an appropriate plan of remediation in compliance with the requirements of State Environment Planning Policy No 55 - Remediation of Land (SEPP 55) before carrying out the early works project; (3) failure to comply with SEPP 55 in relation to both projects, in particular, clauses 7(1) and 17(1) of SEPP 55; (4) erroneous or misleading information in the Director General's environmental assessment report for the basement car parking project that conditions of approval ensure appropriate remediation of contaminated land; and, (5) failure to consider principles of ecologically sustainable development, in particular, intergenerational equity, the precautionary principle, and conservation of biological diversity and ecological integrity, and cumulative impacts.
Australians for Sustainable Development sought declarations that the approvals were invalid and of no effect, an order quashing the project approvals, and an injunction restraining Lend Lease and BDA from undertaking the work provided for in the project approvals.
The matter was heard before the Land and Environment Court over 6 days in early February 2011. Two weeks after the decision, the Minister for Planning issued an order under s.75R of the Environmental Planning and Assessment Act 1979 to specify that SEPP 55 did not apply to the project approvals. This was a key ground of the case. Justice Biscoe delivered judgment on 10th March 2011 noting:
" I would have upheld Ground 2, rejected the other grounds and granted relief. However, on 2 March 2011, about two weeks after the completion of the hearing, there was an extraordinary development which spelt the dealth knell of Ground 2. The Minister made an order under s 75R (3A) of the EPA Act amending SEPP 55 by providing that cl 17 and a closely related provision, cl 8 (4), do not apply to these two projects. Accordingly, I must reject Ground 2 and dismiss the proceedings.
...The applicant would have achieved success in the proceedings but for the Minister's amendment to SEPP 55 made after the trial concluded. If the Minister wished to exclude these two developments from the application of cl 17 and cl 8 (4), he could have exercised his power to make the amendment at any time after the commencement of the proceedings, if not before. The amendment changed the law on which the case has been fought. The timing of the amendment, almost two weeks after the conclusion of the hearing, has not been explained. Because the amendment was not made in a timely way, considerable legal costs and resources have been wasted by the applicant in relation to Ground 2. Resources of the Court have also been wasted." [emphasis ours].
The judgment records the Courts significant criticism of the remediation plans for the site and agreement that plans that failed to adopt clear remediation goals were of concern.
As a result the Judge has made an order for the Applicant's costs to be paid by the Respondents and an indemnity costs order against the Minister for Planning. An opinion piece on the use of special legislation has been written by EDO NSW's Executive Director, Jeff Smith.