Greens MP for Newtown Jenny Leong, Greens candidate for Vaucluse Megan McEwin and Local Democracy Matters spokesperson Chris Maltby. Photo: Wendy Bacon

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By Wendy Bacon

UPDATE
Waverley Council rejected a Liberal rescission motion on Thursday evening and voted for legal action aimed at stopping Infrastructure NSW’s (INSW) plan to demolish the Sydney Football Stadium at Moore Park. This means there will now be two legal actions.

Also on Thursday, City of Sydney Mayor Clover Moore, Waverley Mayor John Wakefield and Randwick Mayor Kathy Nielsen called on the Chair of the Community Consultative Committee (CCC) to cancel Thursday’s evening meeting on three grounds. The CCC Chairperson Margie Harvie has a conflict of interest as she promotes her past work for Lendlease on her website; it is unprecedented and improper to begin a committee that has not yet been established with an ‘extraordinary meeting’; and the committee is being established under a consent which is considered invalid by stakeholders in the project. This last matter is now before NSW Land and Environment Court.

After this week, Sydney Cricket and Sports Ground Trust (SCSGT) Chairperson Tony Shepherd’s boast to the Sunday Telegraph that the bulldozers would begin work in the first two weeks of January looks like wishful thinking and political propaganda. Four weeks later, there are no bulldozers in sight and the SCSGT finds itself in court.

City Hub first revealed CCC Chairperson’s conflict of interest in our earlier reports on the battle to save the stadium from destruction. If normal principles of democratic accountability are followed, it is hard to see how the CCC Chairperson will not have to stand down as it is clear that large sections of the community and major stakeholders do not perceive her to be an ‘independent’ and ‘impartial’ as required by NSW Department of Planning and Environment (DPE) guidelines. If she digs in, she will do further damage to her reputation as a credible professional community engagement facilitator. The purpose of the Committee is to improve community relations with the project. So far the actions of DPE and their selected Chairperson have only served to exacerbate cynicism about the NSW government’s planning processes. The undermining of project’s conditions and failure to properly establish the meeting looks like collusion between DPE, the CCC Chairperson and the project’s proponent Infrastructure NSW. This comes as no surprise given that, as previously reported by City Hub, the head of DPE is also on the Board of INSW. Another INSW Board person is a director of a Lendlease subsidiary. DPE and INSW will encourage Harvie to override the Mayor’s powerful objection and tough it out. The DPE does not regard a conflict of interest of this kind as a problem. It was aware of her advertised connections with Lendlease but does not consider this to be a problem.

BEGINS

All was quiet at Sydney Stadium on Tuesday when community group Local Democracy Matters backed by the NSW Greens MP Jenny Leong gathered outside its gates to announce that it was taking legal action in a last-ditch attempt to block demolition of the Sydney Stadium.

The Gladys Berejiklian government was expected to begin demolition as early as Friday.

It seemed like the battle to stop destruction might be lost. Despite legal advice from two senior counsel that the Planning Minister Anthony Roberts’ consent was invalid, only Waverley Council voted to go to court – but had so far not been able to get another Council to join it in legal action. As the days passed, Infrastructure NSW moved inexorably forward, getting all the reports required by NSW Planning approved and published on its website. The pathway to demolition was clearing.

Then came a game changer. A community group would take action.

“We think that the local community, perhaps with some crowdfunding, has a pretty good chance of legal success,” said Local Democracy Matters spokesperson Chris Maltby at the meeting with residents and media outside the stadium.

Inadequate consideration of design excellence and contamination, as well as a waste of scarce funds that are needed for local schools and public transport, inspired the group’s initiative.

Twenty-four hours later and the situation seems very different. Local Democracy Matters case will be heard in the NSW Land and Environment Court on February 20. A lawyer for Stadium contractor Lendlease told the NSW Land and Environment that the company will not begin heavy demolition before February 23, and even that date could be ‘fluid’. By then the NSW state election will only be a month away. Local Democracy Matters supporters who crowded into the small court were relieved not only that the court agreed to give them an expedited hearing but that the stadium will remain in place until then.

In with the wrecking ball

“We’ve watched the LNP government knocking down trees and wrecking communities and now coming in here with a wrecking ball just weeks from the State election,” Leong told the media on Tuesday. “These are the government’s own laws. We are having to see communities stand up in the legal system because of their [LNP government] arrogance and complete disregard for the community.”

Labor Opposition leader Michael Daley has warned against demolition, stating that a government led by him would not supply $730 million to rebuild the stadium.

There is more at stake than waste of resources and unnecessary environmental risk.

It was also about the “rule of law”.

Waverley Council’s Labor Mayor John Wakefield made this point strongly when arguing for legal action at a Council meeting in January.

“When actions are unlawful, we have a duty to our community to uphold the law.”

Speaking yesterday to City Hub from Walgett where the Barwon River bed is 53oC and has run dry, Greens Planning spokesperson and planning lawyer David Shoebridge MP made a similar point.

“When highly regarded planning lawyers have found that the consent is invalid, it’s disturbing that the legal system makes it so hard to get a case before a judge. The demolition is a massive waste of resources but this community legal action is also about holding the government to account.”

Waverley Council may yet join the action. It wrote to the Minister for Planning Anthony Roberts about its independent legal advice that the Stadium approval was invalid. At a meeting on Tuesday night, Labor and Greens Councillors passed a motion stating that his response had failed to address the legal issues. They voted to seek an injunction to stop work. Liberal Councillors immediately put in a rescission motion that will be debated next week. This is the second time Liberal Councillors have done this to stymie action by the demoncratically elected Council.

Randwick Council voted against taking action on the grounds of financial risk but will publish parts of its legal advice explaining why the consent to destroy the stadium is invalid. The Greens candidate for Vaucluse, Councillor Megan McEwin also has a motion before Woollahra Council to join the legal action. This will be debated on Monday night.

The Minister for Planning had not bothered to seek independent advice about the validity of his approval. His advisor John McGowan told City Hub two weeks ago that he had read the independent legal pieces of advice received by Councils. He said the Minister didn’t need to seek external advice as he trusted the Department’s assessment. Now that action has been taken, the Minister for Planning, Infrastructure NSW and Lendlease have all briefed external lawyers and raised no objections in court to the case being heard.

Meanwhile, Infrastructure NSW (INSW) and Lendlease are moving as fast as they can to swing the wrecking balls on February 23. To meet that deadline, they must fulfil a number of conditions of approval. A key condition is a requirement that a Community Consultative Committee (CCC) be established and ”functioning” before demolition can begin. CCCs are supported to enhance transparency and be a conduit to the affected community, including those oppose the project. They are supposed to be consulted, provided with information and offer advice. The code of conduct for the Chairpersons state that they are to be independent and impartial.

Only three businss days after the Minister granted project approval on December 6, the DPE chose Margaret Harvie as its ‘Independent’ chair for the Stadium Committee.

Harvie did inform the Department that Lendlease has been a client but the Department saw that as no obstacle to her appointment. Her connection with Lendlease is advertised on her website.

Together, the Department and Harvie then set the tightest possible time framework for recruiting and selecting the CCC. A minimum 28-day period, with no exlusions for public holidays over Christmas, was set for applications from members of the community. Requests for extensions of time from members of the community were rejected. As soon as the deadline passed, Harvie quickly made her recommendations to the Department which finalised the selection. The chosen applicants were then invited to join the committee. A process that can take up to a month took a week. In order to meet with the conditions, all that remained was to actually have a meeting.

According to NSW Planning’s own Community Consultation guidelines, an ordinary meeting requires four weeks’ notice.

Potentially invalid ‘extraordinary’meeting

With the election looming, that was too long, so INSW found a way around that. IT would ask Harvie to call an extraordinary CCC meeting.

This was not just an ‘extraordinary’ meeting. It was also an extraordinary tactic, unheard of in meeting practice. It’s hard to see how you can have an extraordinary meeting before the committee has even been formally constituted. To be properly engaged, each member has to sign a code of conduct which requires agreement to confidentiality on some matters. Some invited members do not agree that confidentiality is compatible with representing the community, so they intended to object to this clause at the first meeting.

City Hub asked Harvie questions about these processes. She did not respond but forwarded the questions to the Department of Planning, which ‘liaised’ with the Chair and provided answers. A Department spokesperson told City Hub that INSW had requested the extraordinary meeting two weeks ago. In order words, as soon as the Committee members were selected, INSW made the request. Harvie considered the request and agreed. The meeting was called for Thursday night this week.

The Department’s code of conduct for Independent Chairs allowed them to talk to the media. City Hub has asked Harvie why she forwards questions to the Department but has received no explanation. This also conveys an impression of lack of independence.

But with the validity of the approval before the courts, should the CCC be meeting at all? The NSW Planning spokesperson said that the NSW government is confident that the consent if valid but isn’t that beside the point if the Chair is supposed to be ‘independent’ and ‘impartial’?

Not only Harvie’s independence but also her impartiality is now on the line.

Randwick and Waverley Council have raised serious concerns about the independence of the CCC chair and the notion that an extraordinary CCC meeting can be held before the Committee is established. The City of Sydney also has serious concerns.

This story was updated after answers were received from DPE and three Mayors issued their statement calling for the CCC meeting not to proceed. City Hub sent questions to the Leader of the Opposition Michael Daley asking him if he supported the community legal action but received no answer.

Wendy Bacon is a past Professor of Journalism at UTS.She blogs at wendybacon.com .