Issues

Liability | Governance | Health and Safety | Planning |The Problem | The Solution

Issues of Governance

Governance is a broad term concerned with the way in which decisions are made. Governance refers to important issues including:

• What laws apply?
• Who is responsible for ensuring that these matters are observed and enforced?

In NSW, decisions about building and land use development are made using a series of checklists known as State Environmental Planning Policies or SEPPs. SEPPs are lists of conditions that ensure that developments are appropriate to the surrounding area, and they also lay out the terms of use that apply to the development, and the responsibility that is given to all who are involved with the development.

Governance is a big issue for FSA because the existing rules do not adequately account for the protection of the public interest or public health and safety.

What terms of use apply?

Prior to the Fox Studios Australia development, the land it now occupies was leased to the Royal Agricultural Society of NSW under the Crown Lands and RAS Agricultural Acts. The Royal Agricultural Society used this public land for the Easter Show until x date, when it moved to the Sydney Olympic Park at Homebush. For the duration of their tenancy, the Royal Agricultural Society used the site under the guidance of several other laws and regulations, including the EPA Act, POEO Act, State Environment Planning Policy 33, Local Environment Planning, Regional Environmental Planning and it was also required to comply with an EPA licence. Sydney Showground was viewed as Hazardous and Offensive Development and regulated under SEPP 33 as 'scheduled premises'.

Under these laws and regulations 'filming' could not be undertaken on the site, and wastes (animal and chemical) were managed under strict conditions.

When the decision to allow Fox Studios Australia to use the RAS showgrounds, these laws and regulations were effectively removed by the creation of a new planning policy specifically for the Fox Studios Australia. Fox Studios requested an "unfettered production environment", and in practice this meant:

• Changing the site from a 'designated development' to a 'non-designated development' - removing the need for licencing by the EPA, and eliminating the right of 'third parties' (members of the public) to take matters to the Land and Environment Court of NSW;
• Taking development control away from local government by the creation of a new State Environment Planning Policy (SEPP 47) which took development consent away from local government.
  

SEPP 47 made it permissible for the site to become a Film Studio and to bypass the usual local government Development Application process. The site became a “non-designated development”, with the sole consent authority being the Minister for Urban Affairs and Planning (now the Minister for Planning).

See the details of SEPP 47>>

Who Is Responsible?
If the laws are not clear about the matter of responsibility for complying with regulations or meeting conditions, many other things become unclear. This includes the matter of compensation for those affected by operations on the FSA site (see our discussion of liability)

• Businesses who operate on the FSA site are responsible for meeting the requirements of all applicable laws.
• Fox Studios Australia is responsible for ensuring that the businesses to whom it sub-lets premises are aware of the terms under which they may operate on the FSA site.
• The Department of Environment and Climate Change are responsible for ensuring that the terms of any licencing under the EPA Act have been met.
• The Centennial and Moore Park Trust are responsible for ensuring that the terms of the lease for the Sydney Showground are met, under the Crown Lands Act.
• The fact that the site is still Crown Land makes the minister for Primary Industry responsible for the use that the site is put to, and the impact of activities undertaken on the site.
• The Department of Premier and Cabinet is responsible for the management of the Centennial and Moore Park Trust.
• The use of SEPP 47 makes the minister for planning responsible for the impact of the development of the FSA site.

What is the role of WorkCover?
Due to the fact that the FSA site is on Crown Land, WorkCover cannot access the site without a specific invitation. The only way that WorkCover can become involved in its usual capacity is to be made aware of a substantial breach of particular regulations. WorkCover can be alerted by members of the public, or by workers on the site, however

To date, it has been assumed that SEPP 47 is a legitimate use of state government planning powers (see the ruling of A Pearlman), however the practical implications of this planning policy have not been put to the test.

The questions raised by the communities of Centennial and Moore Park regarding any incident that threatens public health and safety as a result of operations at FSA are:

• Who will compensate those affected by operations at FSA?
• What emergency contingency plans have been put in place in the event of a fire, explosion or chemical spill?

These questions are looked at in more detail in our discussion of liability and compensation issues.

The timeline of events outlines the unfolding of the health and safety provides an extensive listing of incidents and correspondence regarding the activities of tenants and subtenants on the FSA site.

See more details of the health and safety issues in our timeline of events at FSA