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Stephens, David: “A cynical abuse of process”: summary of Heritage Guardians’ submission to the National Capital Authority consultation on the “early works” approval application from the Australian War Memorial

David Stephens*

‘”A cynical abuse of process”: summary of Heritage Guardians’ submission to the National Capital Authority consultation on the “early works” approval application from the Australian War Memorial’, Honest History, 23 May 2021

Contents

Introduction

Works application approvals and the role of the National Capital Authority

Why the early works application should not be dealt with in isolation from the main works applications

We are being played for mugs by this rort

The National Capital Authority should consider each Early Works Package simultaneously with its associated Main Works Package

Why the Memorial is using the ‘early works’ ploy: ‘salami slicing’ or progressive approvals creating inevitability

It is difficult to compare the early works approval application with the relevant National Capital Authority documentation

Arguments against the prospective main works applications, covering the whole project

Conclusion

Appendices

***

Introduction

This submission was lodged on 30 April 2021. (The submission includes links to sources and evidence.) It was one of 599 submissions lodged, which was a record for the NCA. The NCA does not expect to complete its consultation report until the end of June. Meanwhile, public submissions are being posted (subject to the agreement of the submitters) on the NCA website and just one of the first 150 posted – just one – was in favour of the project.

This ‘early works’ approval (EWA) application to the NCA includes the demolition of Anzac Hall, the removal of most of the mature eucalyptus trees in the grounds of the Memorial, and a large excavation to the south of the Memorial’s main entrance.

Works application approvals and the role of the National Capital Authority

The NCA is responsible under the relevant legislation for ‘works approval’, but key definitions (‘early works’, ‘major works’, even ‘works’ itself) are vague and flexible. The Authority has wide discretion.

The Authority will ‘make an assessment of whether a [works approval] proposal is consistent with the National Capital Plan’ in relation to ‘adverse impacts’ on a number of values (see under sub-heading, ‘Arguments against the prospective main works applications, covering the whole project’, below).[1]

Why the early works application should not be dealt with in isolation from the main works applications

‘The Early Works Packages within this WA [works application]’, according to the Memorial’s consultants, Knight Frank, ‘are to adequately prepare the three works sites of the New Southern Entrance, Anzac Hall and Glazed Link and Bean Building Extension and Central Energy Plant for construction’.

What lies beneath that bland statement, ‘adequately prepare’, becomes glaringly obvious in the list of works covered by the EW ‘Packages’.

The incongruity of the bolded items is obvious: the destruction of an award-winning building less than 20 years old is set alongside the erection of a fence; the excavation of hundreds of square metres of historic earth is mentioned in the same breath as knocking up a new door and pathway.

We are being played for mugs by this rort

The NCA – and Canberrans and Australians – are played for mugs by this stuff. It is a cynical abuse of process to bundle fundamental aspects of a project – works without the completion of which the project could not proceed – with minor site preparation.

This is no more than a rort to seek approval for irreversible works – which will inevitably lead to massive permanent changes to the Memorial – at the same time as getting a tick for temporary modifications to improve access for or protect the safety of construction workers.

‘The Early Works will be undertaken to enable the major new build elements of the Development Project defined as the following Main Works Packages’:

The Main Works Packages will come to the NCA progressively, commencing in June or July this year. Comparison between the two tables above reveals the integral relationship between the key early works and the main works. A failure to demolish Anzac Hall under EWP3 or perform the bulk excavation under EWP4 would be catastrophic to the whole project. It would stop in its tracks; MWP1 and MWP3 could not happen. EWP3 and EWP4 are not ‘site preparation’; they include essential works.

Further, MWP1, 2 and 3 all depend on the destruction of those 116 or more trees around the front of the building, to the east of the Bean Building and behind Anzac Hall. Again, the tree-felling is not site preparation but essential work, intricately connected to the future construction.

The National Capital Authority should consider each Early Works Package simultaneously with its associated Main Works Package

Heritage Guardians believes that, rather than play along with the ‘early works’ rort, the NCA should consider each Early Works Package simultaneously with its associated Main Works Package:

In 2019, the NCA approved carparking associated with the Memorial redevelopment on the basis that the carparking was ‘not physically connected to the larger redevelopment project and is therefore able to be considered as a separate project’. While the Authority did not use the term at the time, the carparking was clearly ‘early works’ associated with the larger project.

The Authority, however, cannot use the same argument in dealing with the current early works application:

Why the Memorial is using the ‘early works’ ploy: ‘salami slicing’ or progressive approvals creating inevitability

The Memorial is encouraging the NCA to indulge in ‘salami slicing’, a rorting or gaming of an approvals process, where the approving authority progressively approves works of such importance and so inter-connected that it will be impossible not to approve the whole project when applications for further components are made. Indeed, the early approvals in such cases make no sense unless it is assumed that later approvals will follow.

The NCA should recognise that these so-called early works – the demolition, the big excavation, the mass tree-felling – are irreversible and fundamental and should not be dealt with in isolation from what is meant to happen in the future. Approval of these early works makes further consultation irrelevant and redundant.

The NCA claims that its decision on one approval – such as the carparking case and other minor elements of the project already approved – does not affect its decision on future related approvals. This is implausible, especially when the Authority has had continuous representation since 2018 on the Interdepartmental Committee overseeing the Memorial project and when its Chief Planner is not only its representative on the IDC but carries, with his staff, the Authority’s delegated powers to deal with works approval applications, like the current one from the Memorial. (Accountability remains, of course, with the Authority.)

None of this work – and none of the NCA approvals where they have applied or will apply – makes any sense unless it is assumed that the big project will go ahead. The NCA should halt the salami slicing and defer consideration of these massively important so-called ‘early works’ (and the hoardings, paths, gateways and other relative trivia caught up in the application) till the relevant main works applications come forward.

It is difficult to compare the early works approval application with the relevant National Capital Authority documentation

The early works application makes no sense, even in its own terms. Knight Frank on behalf of the Memorial insists that the early works application is not concerned with design matters relevant to the National Capital Plan – and thus to the work of the NCA in assessing consistency against the Plan. Instead, Knight Frank says the application is ‘in compliance with NCA requirements for demolition and excavation works applications’.

Asked by Heritage Guardians what these requirements were, the NCA nominated the Planning Principles and Precinct Codes of the National Capital Plan. Yet, the Principles and Codes contain only sparse mention of demolition, excavation, and tree-felling, certainly not enough to assess whether the Memorial’s application measures up. In any case, the application makes no explicit attempt to show the early works are compliant with the Principles or Codes.

In sum, the early works application contains insufficient evidence for public commenters – or the NCA – to make an assessment against relevant criteria. The application is confused and confusing, if not deliberately misleading. The Memorial is going through the motions because it has to; the NCA is constrained by the previous approval history of the project.

Arguments against the prospective main works applications, covering the whole project

Given that consideration of the early works application threatens to make further assessment of the Memorial project redundant – allowing the early works to go ahead makes the whole project a fait accompli – the Heritage Guardians submission takes the opportunity to put arguments relevant to the main works in the project. The National Capital Plan says an assessment has to be made regarding adverse impacts under various headings and the submission does this.

Conclusion

The NCA should defer consideration of the ‘early works’ until it has received major works approval applications from the Memorial for the rest of the project. It should then consider all the components as a single package.

Appendices

Appendix 1 of the submission addresses what Heritage Guardians sees as serious problems in the NCA consultation process. Appendix 2 offers evidence that the War Memorial is taking the NCA part of the approval process less than seriously.

* David Stephens is editor of the Honest History website and convener of the Heritage Guardians group.

Endnote

[1] Note, however, this advice from the Authority provided to Heritage Guardians after our submission was lodged:

The [National Capital] Plan sets out that proposals have to be consistent with certain matters and not inconsistent with other matters. Generally the provision for proposals to be consistent with certain matters requires compliance with more prescriptive matters, for example permitted land uses and maximum height limits. Generally the provision for proposals to be not inconsistent are matters where flexibility and less prescription may assist in achieving the desired outcome of the Plan – such as development should command high standards of urban design, sustainability, architecture and social inclusion. (Emphasis added.)

This advice contrasts with the advice in the NCA’s public documentation, including its website page on the current consultation, that the Authority will assess proposals for consistency with the National Capital Plan.

The Authority’s public advice is misleading. More importantly, ‘consistent with’ and ‘not inconsistent with’ carry different standards of proof.