Phase one answer.

Students are to draft a submission in relation to a major project that is under assessment by the NSW government. The submission is to be based upon a scenario provided by the Convenor. The scenario will require the student to research the discrete and relevant areas of Planning Law and where relevant Environmental Law. The relevant areas of law will be drawn from the modules covered through the entire unit. The primary emphasis should be on a critical evaluation of Planning Law and an analytical approach to the issues being considered. Students will be assessed on the basis of their understanding and identification of the relevant legal principles, analysis and evaluation of the issues, quality and depth of research, critical and interdisciplinary approach, organisation, structure and proper referencing style. Clarity of expression, presentation of argument, responsiveness to question will also be taken into account. Students must consult the prescribed reading materials. Howeve

Phase one answer
The New South Wales Government project to redevelop Sydney Cricket Ground (SCG) is a State
Significant Development (SSD) kind of project. The project falls within the category of an SSD
because of its source of funding which is fully paid by the government. The development
involves construction of a large recreational facility that exceeds the set minimum capital
requirements for the investment since it is worthy $700 million. The project will bring a high
economic value to the state of NSW due to its huge economic impact.1
Once a project is classified into a development category, the next step is always determining the
consent authority for purposes of making applications, assessments, evaluation and approvals of
the development.2 Since the project of reconstructing SCG is an SSD type of project, it
application will have to be consented to by the Independent Planning Commission (IPC).3
Criteria for settling on IPC as the consent authority is premised on the fact that SCG
development project has not been rejected more than 25 times by the people of Sydney. The
project is also fully funded on political will by the NSW government through the support of
voters.4
The SCG development is a special type of an SSD since it is not in a single development project
but staged into three phases of development.5 When commencing the first stage of development
for a staged SSD, Concept development application is the first requirement under the
Environmental Planning and Assessment Act 1979 (EPAA). The Concept development
application has to be prepared well. The application must have the concept proposal for the re-
development of the SCG. Concept development application is a must and very important step
when handling a staged SSD.6 The Concept development application outlines in details the
concept proposals of separate parts of the site in the initial stage of development. The concept
development application is also used as an attachment to the subsequent applications for the
subsequent stages of development.7
1 Environmental Planning and Assessment Act No 203 1979 s 4.36
2 Ibid s 4.5
3 Ibid s 4.6
4 NSW Government, Independent Planning Commission Website, about us, https://www.ipcn.nsw.gov.au/about-us
(accessed 23 May 2019)
5 Environmental Planning and Assessment Act No 203 1979 s 4.37
6 Ibid s 4.22(2)
7 Environmental Planning and Assessment Act No 203 1979 s 4.22 (1)

Infrastructure NSW has to make an application for a staged SSD Starting first by Concept
development application to the relevant consent authority which is the IPC.8 After consent has
been granted by IPC, the Infrastructure NSW will have to wait for project commencement
authorization since this is the first stage. The project can only commence without authorization if
the consent was given for a subsequent stage or phase after an application for consent to proceed
to the next phase has been made.9 Infrastructure NSW may also proceed without authorization
where the Concept development application provided all the necessary required details of the
SSD and that the consent given during that time of the application for initial phase did not
specify or provide for need to have further subsequent consents.10
When making a determination for consent during the first stage, the consent authority has to
consider the impact of the concept proposal and any other developments within the first stage
that have been included in the concept proposal. Impact of the subsequent stages of development
is not put into consideration at the first stage hence cannot be based on to hinder or bar concept
proposal approval.11
According to environmental planning instruments, concept development application should be
made upon commencement of the development project.12 Environmental planning instruments
consist of the State Environmental Planning Policies (SEPPs) and Local Environmental Plans
(LEPs). In instances where development is yet to begin, the environmental planning instruments
require the party carrying out the development in this case the Infrastructure NSW to prepare a
Development Control Plan (DCP). However the requirement of having a DCP can be waived
where a concept development application is available for that particular SSD project.13 The
condition for the above waiver is that the concept development application has to bear details
that would have been present in the DCP as required by the environmental planning instruments
or regulations.14
8 Ibid s 2.9
9 Ibid s 4.22(4)(a)
10 Ibid s 4.22(4)(b)
11 Ibid s 4.22(5)
12 Ibid s 4.23 (1)
13 Ibid s 4.23 (2)
14 Environmental Planning and Assessment Act No 203 1979 s 4.23(3)

The consent for the initial concept proposal at the first stage remains in force till the end of all
the stages of the SSD. Subsequent consents for subsequent stages should be consistent with the
consent for the concept proposal. Any further development applications have to be in line with
the first concept proposal.15 The above consistency requirement obligation does not affect
necessary modifications made in accordance with EPAA on an initial consent granted.16
IPC may determine that a subsequent consent be granted by a relevant council as the consent
authority. 17Upon the relevant council granting consent for a second stage or any subsequent
stage, the SSD will cease being an SSD and the council will be the new consent authority for that
particular stage of development and any other subsequent stages.18
A consent authority may make one of the three decisions upon application for consent. The
authority may after evaluation and assessment decide to refuse the consent, grant the consent
with necessary modifications to the initial concept proposal or grant a conditional consent with
attached requirements to be fulfilled.19 Refusal of the consent will occur in instances where the
development is wholly prohibited by an environmental planning instrument.20 In case the
development is partly prohibited and partly acceptable by the environmental planning
instruments, consent may be granted.21
Before making an application for SSD consent, the Infrastructure NSW must ensure that all the
regulations providing for the following requirements have been adhered to; the application must
have an attached environment impact statement that has been made within consultation
framework with relevant agencies, and the affected persons. The information concerning the
application and approval of the SSD must be made public through proper channels of public
notification. The body responsible for redevelopment of SCG has to provide responses to various
submissions filed by public bodies and agencies.22
15 Ibid s 4.24(2)
16 Ibid s 4.24(3)
17 Ibid s 4.37 (a)
18 Ibid s 4.37(b)
19 Ibid s 4.38(1)(a)(b)
20 Ibid s 4.38(2)
21 Ibid s 4.38(3)
22 Environmental Planning and Assessment Act No 203 1979 s 4.39 (a-e)

Evaluation has to be carried out by the consent authority before approval of the SSD. In
evaluating the SSDs the consent authority will have to consider provisions of the relevant
environmental planning instruments which includes; the provisions of any instrument stating the
requirements for public consultation that has been brought to the attention of the consent
authority. The instrument requiring public consultation will only be by-passed if the planning
secretary has informed the consent authority that the application of the said instrument is yet to
commence due to deferment.23
The consent authority will also consider Provisions of any environmental planning instrument
relating to a DCP, any planning agreement, entered into pursuant to section 7.4 of the EPA or
any draft planning agreements to be entered into under the same section of the EPA.24 The
consent authority must consider any regulations affecting the land that holds the relevant
project.25 The authority will put into consideration the environmental impact for both the built
and the natural environments, social and economic impacts within a particular locality.26
Other factors that the consent authority will consider for evaluation is the suitability of the site
for the project and any submissions made in accordance with the EPA or regulations.27 Public
interest is a key criterion of evaluation and compliance with non-discretionary standards
contained in various environmental planning instruments. Such standards are mandatory hence
cited as non-discretionary within various instruments providing for them.28
After evaluation, the SSD application must be approved under special environmental regulations.
One of such approval is by the Environmental Protection License under chapter 3 of the
Protection of the Environment Operations Act 1997 for specified purposes stated in section 43 of
the same Act.29 Once the above approvals are made in the initial concept proposal, there is no
need for renewal.30
Phase two answer
23 Ibid s 4.15 (1)(a)(ii)
24 Ibid s 4.15 (1) (a)(iii)(iiia)
25 Ibid s 4.15 (1)(a)(v)
26 Ibid s 4.15 (1)(b)
27 Ibid s 4.15(1)(c)(d)
28 Ibid s 4.15 (1)(e), (2)(6)(b)
29Environmental Planning and Assessment Acts s 4.42(1)(e), (2)
30 Ibid s 4.42(2)

Environmental Impact Statement (EIS) is a very important public document that each mega
project has to prepare when having a proposal to carry out a development project of a certain
piece of land. The information availed to the public through the EIS includes the impacts that the
project will cause on the environment. The document explains mitigation measures that the
project the developers will put in place as they continue with development to remedy the effects
as a result of the project.31
Several factors are considered when preparing an EIS. Those factors include; impact on the
community; transformation of the locality, impact on the ecosystem, building aesthetic effects,
anthropological, architectural, archaeological, cultural, historical, scientific or social significance
effects. The EIS considers the other special value for present and future generations. Impact on
the habitat including endangering of land, air and aquatic species is an area of consideration in an
EIS.32
The other areas of consideration include long-term effects on the environment such as
environmental degradation, increased risk to the safety of the environment, reduced beneficial
usefulness of the environment, environmental pollution, waste disposal problems, increased
demand of natural resources due to shortage, coastal hazards, projected climate change
conditions, cumulative environmental effects among others.33
The main role of EIS is to create awareness to the public concerning the proposed project and its
environmental impacts. The EIS also contains possible mitigation measures to remedy or reduce
the cumulative environmental impacts that the project will cause to the locality. The EIS forms
part of the basis for granting consent to a development project by the minister or the relevant
consent authority. Authorities grant consent on an informed perspective after going through a
well prepared EIS. The EIS finally offers an opportunity to public interest groups and
environmental Organisations to make relevant submissions of their views on further mitigation
31 Draft Environmental Impact Assessment Guidance Series June 2017;
www.planning.nsw.gov.au/~/media/Files/DPE/Guidelines/guideline-4-draft-preparing-an-environmental-impact-
statement-2017-06.ashx
32 Environmental Planning and Assessment Regulation 2000 r 228(2)(a-g)
33 Environmental Planning and Assessment Regulation 2000 r 228(2)(h-p)

measures to protect the environment. The body in charge of the development has to give a
satisfactory response to those submissions.34
SUBMISSION BY SYDNEY CLIMATE CHANGE ACTION (SCCA)
SCCA objects to the contents of the EIS that was prepared by the Infrastructure NSW for its
SCG re-development project. The EIS does not put into consideration the climate change impact.
The design of the project is not suitable for adaptation of the current climate change patterns in
Sydney. Due to the above omission of a very important aspect of the environment, it is our
submission as SCCA and on behalf of the Sydney people that the development project approval
be nullified should it fail to consider our views and concerns.
We would like to draw to your attention the two life costing risks and consequences that may
arise if the project proceeds with the climate change impact omission in its EIS.
i. Spectators seating in the SCG will be vulnerable to heat waves which are harmful to
their health while cheering cricket matches in the stadium
ii. The project will result to exacerbated heatwave contribution to the microclimate of
Sydney city called the Urban Heat Island (UHI) effect.
The NSW State Government has put a policy framework in place on how it is intending to
handle climate change impact on the environment. The policy outlines the steps to be taken in
protecting the environment whether land, air or aquatic life. Any development project should be
carried out bearing in mind that policy framework.35 The NSW Government State Heat Wave
Sub-plan 2018 defined heatwave to mean a period of abnormally hot temperatures during the
day and low temperatures during the night that could last a couple of days.36 The period can last
for almost three days. Heatwaves effects can become more dangerous depending on their
intensity. The consequences of heatwaves are dire to the health of individuals and include body
dehydration during daytime.37
34 Guideline for an EIS Moorebak Intermodal Terminal Project Sydney, NSW 2011
http://www.environment.gov.au/epbc/notices/assessments/2011/6086/2011-6086-draft-eis-guidlines.pdf
35 NSW Climate Change Policy Framework
https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Climate-change/nsw-climate-
change-policy-framework-160618.pdf
36 NSW Government, Office of Environment and Heritage, Heatwaves Climate change Impact snapshot pp 4
file:///C:/Users/user/Downloads/Heatwaves%20Climate%20Change%20Impact%20Snapshot.pdf
37 New South Wales State Government Heat Wave Sub-plan 2018 Glossary of terms

Failure to address spectators’ vulnerability to heatwaves while in the stadium
Infrastructure NSW design of the SCG does not factor in the possibility of spectators being
exposed to heat waves. Very hot environment is very dangerous to human beings and can result
to emergency hospital admissions and increased mortality rates. The hot air is also a source of
discomfort and can dehydrate the body causing headache and dizziness38
Failure to address the possibility to exacerbate Urban Heat Island (UHI) in the Sydney city
The EIS fails to mention how the project developer is going to handle the exacerbated UHI in the
microclimate of the Sydney city. According to NSW and ACT Regional Climate Modelling
(NARCLIM) projection, the temperature of Sydney will continue rising due to climate change
resulting from urbanization. The EIS prepared by the Infrastructure NSW has not mentioned the
possibility of such risk and the relevant mitigation factors. The EIS has therefore failed to fulfill
its main purpose to the public.39
This submission issues a serious warning and a reminder to the Infrastructure NSW to prepare
satisfactory responses to the above raised critical issues. Should the company fail to make their
responses within reasonable time and amend its EIS to reflect the above raised issues including
the design of the SCG and mitigating factors to the exacerbated heat waves, we will initiate a
suite in the NSW Land and Environment Court seeking to nullify the approval of SCG re-
development and declaring the project unlawful for failure to protect the environment.
Phase three answer
from the facts of the above scenario, the development application was not supposed to be
approved by the consent authority due to the failure of Infrastructure NSW to include crucial
38 Heatwaves affecting NSW and the ACT: recent trends, future projections and associated impacts on human
health; NARCLIM Technical Note 5 p 45 Users/user/Downloads/Heatwaves%20%20NARCliM%20%20Technical
%20Note%205.pdf
39 Evans JP, Ji F, Lee C, Smith P, Argüeso D and Fita L (2014) Design of a regional climate modelling projection
ensemble experiment – NARCLIM (PDF 1.43 MB). Geosci Model Dev., 7, 621–629.

aspects of climate change impact that may cause heat wave to the spectators and the exacerbate
heat wave to the microclimate of Sydney city. SCCA therefore may file an application
challenging the development consent and seeking for its invalidation as discussed below.
SCCA is likely to institute a suite in the NSW Land and Environment Court (LEC) seeking to
invalidate the project approval. In the suite they will be citing breach of EPAA 1979 and EPAR
2000 provisions. The matter of SCCA falls within class 4 and 5 proceedings in LEC.40 The
court may uphold the development consent depending on the merits of the case or invalidate the
consent. Where the development consent was nullified in the first instance, upon appeal by the
aggrieved party, the court has the power to grant development consent.41
In the case of Pridel Investment pty ltd v Coffs Harbour City Council,42 the applicant appealed to
the LEC against the council’s decision of refusing to grant the development consent for the
project. Commissioner Dixon of the LEC court found out that there was inadequate assessment
of the risk associated to coastal processes hence the council’s refusal to grant consent for
development application was upheld.
The court may also decide to make orders directing compliance with some terms which will
make the consent valid. An order for compliance to certain terms makes the validity
conditional.43 Conditional validity will require the project developer to re-do certain steps already
done, carry out the omitted steps or require the developer to initiate totally different steps from
the previous ones.44Any aggrieved party to class 4 proceedings can appeal to the Supreme Court
against the order or decision made by LEC first instance court.45 Aggrieved parties cannot appeal
against a decision making an order as to costs, interlocutory order or any decision made with
consent of parties.46
Where the instituted matter challenges a public authority’s decision, the court may review the
decision by making an order directing the public authority to furnish the challenging party with
40 Land and Environment Court Act No 204 1979 s 20, 21
41 Land and Environment Court Act No 204 1979 s 25D
42 Pridel Investment pty ltd v Coffs Harbour City Council (2017) NSWLEC 1042
43 Land and Environment Court Act No 204 1979 s 25B(1)
44 Land and Environment Court Act No 204 1979 s 25B(2)
45 Land and Environment Court Act No 204 1979 s 58(1)
46 Land and Environment Court Act No 204 1979 s 58(3)

documents stating and explaining the authority’s findings on the subject matter. The authority
will also have to furnish evidence on which the findings were based on, authority’s
understanding of the relevant applicable laws and the rationale that the decision was based on.47
The LEC’s review of the authority’s decision was illustrated in the case of Wollar Progress
Association Incorporation v Wilpinjong Coal pty ltd.48 the above case was a judicial review case
where the applicant wanted the court to review the decisions of NSW Planning Assessment
Commission (PAC) approving a coal mining project. The applicant was claiming PAC failed to
observe some of the relevant SEPPs and that Environmental impact of the project was not well
assessed. LEC however dismissed the case with reasons that the applicant failed to properly
prove that PAC did not consider mandatory requirements.
Costs
In terms of costs LEC has discretion of determining costs by making appropriate rules that may
determine how the costs will be awarded. The court may decide to order the losing party to pay
costs of suits to the wining party where it is proved that the matter is a public interest matter. 49In
any public interest matter the court will compel the applicant to deposit security of costs for the
respondent.50
References
Pridel Investment pty ltd v Coffs Harbour City Council (2017) NSWLEC 1042
Wollar Progress Association Incorporation v Wilpinjong Coal pty ltd (2018) NSWLEC 92
Environmental Planning and Assessment Regulation 2000
47 Land and Environment Court Rules 2007 r 4.3(a)(b)
48 Wollar Progress Association Incorporation v Wilpinjong Coal pty ltd (2018) NSWLEC 92
49 Land and Environment Court Rules 2007 r 4.2(1)
50 Land and Environment Court Rules 2007 r 4.2(2)

Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007
Land and Environment Court Act No 204 1979
New South Wales State Government Heat Wave Sub-plan 2018 Glossary of terms
Evans JP, Ji F, Lee C, Smith P, Argüeso D and Fita L, Design of a regional climate modelling
projection ensemble experiment. (Geosci Model Dev., 2014) 621–629.
NSW Government, 2012a, Regional Action Plan for Western Sydney and the Blue Mountains.
http://www.2021.nsw.gov.au/regions/western-sydney-blue-mountains NSW Government. 2012b.
Regional Action Plan for Northern Beaches http: //www.2021.nsw.gov.au/regions/northern-
beaches NSW Government, 2012c.
Regional Action Plan for South Western Sydney, http://www.2021.nsw.gov.au/regions/south-
western-sydney
Heatwaves affecting NSW and the ACT: recent trends, future projections and associated impacts
on human health; NARCLIM Technical Note 5 p 45 Users/user/Downloads/Heatwaves
%20%20NARCliM%20%20Technical%20Note%205.pdf
Guideline for an EIS Moorebak Intermodal Terminal Project Sydney, NSW 2011
http://www.environment.gov.au/epbc/notices/assessments/2011/6086/2011-6086-draft-eis-
guidlines.pdf
NSW Climate Change Policy Framework
https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Climate-
change/nsw-climate-change-policy-framework-160618.pdf

NSW Government, Office of Environment and Heritage, Heatwaves Climate change Impact
snapshot pp 4 file:///C:/Users/user/Downloads/Heatwaves%20Climate%20Change%20Impact
%20Snapshot.pdf
Draft Environmental Impact Assessment Guidance Series June 2017;
www.planning.nsw.gov.au/~/media/Files/DPE/Guidelines/guideline-4-draft-preparing-an-
environmental-impact-statement-2017-06.ashx
NSW Government, Independent Planning Commission Website, about us,
https://www.ipcn.nsw.gov.au/about-us (accessed 23 May 2019)