LAW861 FINAL ASSESSMENT 2019
(Please consult the Unit Guide for preliminary details)
Instructions:
This is a hypothetical situation. Whilst the law and policy, government bodies and locations are real the project proposal is fictitious.
The problem is broken down into three phases. Even though the whole assessment task is based upon the same scenario each phase takes place at a different time. You are basically following the project from its design through assessment, completion and beyond. It is advised that you complete the tasks for each phase independently.
Each phase is worth 15 marks, while the remaining 5 marks relate to structure, expression and referencing overall.
Your answer must be referenced. You do not need to include a bibliography.
Background:
Following victory in the NSW state election in 2019, the government decided that it had the support of the voters to expand its program of re-developing sports stadiums across the state.
Documents have emerged showing that the NSW government plans to re-develop the famous Sydney Cricket Ground (SCG) located in Moore Park, Sydney - https://www.scgt.nsw.gov.au.
The SCG is situated next door to the Allianz Stadium (also known as the Sydney Football Stadium). Construction on the redevelopment of Allianz Stadium is now in full swing following the decision of the Land and Environment Court in the case, Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20.
Phase 1
The body responsible for the re-development of the SCG is Infrastructure NSW - http://www.infrastructure.nsw.gov.au.
The capital investment value of the project is $700 million
You are a lawyer advising Infrastructure NSW on different points of the project.
Infrastructure NSW intends to follow the same process as was used for the re-development of Allianz stadium mentioned above.
Infrastructure NSW wants the project to be carried out as a staged development.
The first stage is be treated as a concept plan development application and will include demolition of the current stadium and the concept proposal for the new stadium (with the exception of heritage listed areas).
The second stage development application for the SCG will include the detailed design of a new stadium, as well as the construction details and environmental assessment requirements.
Infrastructure NSW want you to draft advice explaining how the project will operate as staged development under the Environmental Planning and Assessment Act 1979 (NSW). Infrastructure NSW is particularly concerned whether the impacts of the second stage of the development will influence whether the concept plan development application is approved.
Your advice should include - categorizing the project appropriately, explaining why it will be categorized that way; the relevant consent authority; provide an explanation of how a concept plan is assessed and approved; provide an explanation of the legislative process regarding development assessment and approval and how it applies to this project based upon the information you have, including public notification and environmental requirements all in accordance with the relevant provisions of the Act.
Phase 2
(7 months have passed since Phase 1. The concept plan was approved, and the project has moved to Stage 2 outlined above.)
The public nature of the project has prompted the NSW government to call for public submissions.
The official documentation of the project is on public display.
The documentation also includes an Environmental Impact Statement (EIS).
You are a lawyer for a public interest, environmental law organization. A community action group, Sydney City Climate Action, is your client.
Sydney City Climate Action is very concerned that the design of the re-developed SCG does not consider climate change adaptation. There is no reference to climate change in the EIS on public display. The climate impact that they are particularly concerned with is the vulnerability of spectators in and around the stadium to heat waves and urban heat island effects in the city of Sydney.
Your client has requested the following:
• Explain the role of EIS in this context – including the relevant statutory and regulatory process;
• They seek your assistance in drafting a submission to the NSW government outlining the legal reasons why the stadium design should include climate change adaptation considerations. As part of the submission you are expected to, explain how climate change can exacerbate urban heatwaves; identify and explain all relevant legal planning and development instruments and polices (such as, but not limited to, the NSW Climate Change Policy Framework) that will regulate climate change impacts for a project of this type in the Greater Sydney region.
Phase 3
(The public display period in Phase 2 has ended. Stage 2 of the project has been approved)
The development has been approved. Sydney City Climate Action is considering filing an application to challenge the approval in the Land and Environment Court.
The EIS accompanying the development did not include climate change even after the period of public display and public submissions.
You are asked to advice Infrastructure NSW on the potential legal proceedings.
In particular Infrastructure NSW has requested an overview of the relevant legal assessment process under the Environmental Planning and Assessment Act and whether the decision maker was obligated to consider and consequently refuse the development application due to climate change concerns. Your response must be drafted with reference to relevant law, regulations and case law.
You are also required to explain the relevant process under the Land and Environment Court Act and the Land and Environment Court Rules on the potential costs order that might apply to the type of case.