23 January 2024

Review finds Bungendore High School location at Majara 'significantly superior' to other options

| Claire Fenwicke
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Member for Monaro John Barilaro with NSW Minister for Education Sarah Mitchell at the site of the Bungendore High School

Then-Monaro MP John Barliaro announced the Bungendore High School site in August 2020 – it’s been the subject of controversy ever since. Photo: Michael Weaver.

An independent review has declared that while there were some flaws with the site selection process for Bungendore High School, overall, the Majara location is “superior to the other sites considered”.

School Infrastructure NSW commissioned former NSW public service senior executive and urban planner Dianne Leeson to review the site selection process around the hotly contested permanent high school.

She was to examine whether “appropriate and robust” site selection processes had been adopted and executed, covering the period from late 2018 to when the Majara and Gibraltar Streets Precinct (MGSP) was announced as the chosen location in August 2020.

Her review did not examine the final business case, subsequent formal site acquisition processes for the selected site or concept plan changes.

READ ALSO Appeal option remains open for Education Department over ‘invalid’ finding for Bungendore High School

The review noted an initial search of the NSW Government’s property register had failed to turn up any potential government or council-owned sites that “adequately” met School Infrastructure’s 22 criteria for a site.

A public EOI process was then held to help shortlist a site before any due diligence or detailed site investigations were undertaken.

“The EOI evaluation report rated Tarago Road the better site relative to the others but was itself only rated ‘good’ or ‘adequate’ across the non-price scoring indicators,” the report noted.

“Given the modest rating of the Tarago Road site, the decision by School Infrastructure to concurrently undertake the due diligence process and consider alternative sites that might be more suitable was, in my view, highly appropriate.”

Issues indicating the Tarago Road site wasn’t suitable for the new school included the flood-prone nature of the site, proximity to a waste transfer facility, water availability, lack of accessible utilities, distance from central Bungendore and the primary school, zoning issues, potentially threatened species, and possible need for Commonwealth approvals.

Examination of alternative sites began in March 2020. The MGSP site chosen five months later.

This site met 14 of the 15 essential criteria and three of the six desirable criteria.

Table showing Bungendore High School site selection criteria

Bungendore High School site selection criteria. Photo: School Infrastructure NSW.

“Significant advantages” of the site included co-location with the primary school, being centrally located, “superior connectivity” for students, and well situated to serve current and future residential subdivisions identified in the Bungendore Structure Plan.

The report noted the criteria that hadn’t been met were “agreed to be minor”: legal issues, single allotment, regular shape and cleared site.

Overall, Ms Leeson found the site selection was “rigorous”, evaluation criteria were established and applied consistently, the expressions of interest (EOI) process had been well managed, consideration of alternative sites was “appropriate”, and the selected site was “significantly superior to all the sites evaluated”.

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Her only criticism was around community and key stakeholder engagement, stating there could have been greater transparency and that communication could have been “managed better”.

Ms Leeson noted there was “little documentation” covering the period from mid-March 2020 until the MGSP site announcement.

“The strong community reaction to the announcement and media coverage strongly suggests there had been little or no transparency and engagement with the broader community as due diligence works and discussions/negotiations with Council took place – although it is noted that some consultation had occurred with sporting groups that utilise Sherd Oval,” the report stated.

“This conclusion is supported by the lack of documentation regarding this period.”

Ms Leeson noted that while there might have been commercial-in-confidence matters or other sensitivities, they shouldn’t necessarily “preclude some form of community engagement”.

“This appears to be the only weakness in School Infrastructure’s approach to site selection.”

Save Bungendore Park Inc’s legal action in the NSW Land and Environment found the high school had been planned around an invalid development consent.

In a statement, the group questioned why the review only considered issues up to August 2020 and why only School Infrastructure’s chief executive and current Monaro MP Steve Whan were interviewed as part of the process.

“The report is full of further factual errors and irrelevancies. We could list them but – really, who cares? The mere fact that the author was told to pretend time has stood still since August 2020 says enough,” it stated.

“The fact that the whole plan was illegal from the start? Hey, they didn’t know that in August 2020. Who cares!”

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They need to get on and build the school. The site will work well regardless of the naysayers and nimbus.

Greg Cameron7:51 am 27 Jan 24

On December 13 2023, the Land and Environment Court determined that development approval for the high school was invalid because the Department of Education (DOE) failed to satisfy the requirements of the “Crown Land Management Act 2016”.

Education Minister Prue Car is currently considering the government’s next step. If her legal advice is that construction can re-start quickly, that will be the best outcome.
For the reasons explained by Minister Car and Member for Monaro Steve Whan, the Minns Labor government supports the chosen site. The Coalition opposition also supports the chosen site.

Since there is bi-partisan political support in Parliament for the chosen site, Parliament can legislate to remove any impediment that may exist to re-starting construction immediately. A bill can be drafted for introduction when Parliament resumes, should the legal options being examined by Minister Car not guarantee an immediate re-start.

It would be helpful if the Coalition is urging Labor to proceed immediately.

Greg Cameron1:49 pm 26 Jan 24

It is because the verdict of the Land and Environment Court on December 13 2023 was that development approval of the “Majara Gibraltar Site Precinct” (MGSP) for Bungendore High School was invalid. The Department of Education (DOE) had failed to satisfy the requirements of the “Crown Land Management Act 2016” (CLM Act). Building the high school does not change ownership of the MGSP site. It changes the use of the land in question. The Minister for Lands is responsible for the CLM Act.

Education Minister Prue Car is currently considering the government’s next step. If her legal advice is that construction can re-start quickly, that will be the best outcome.

For the reasons explained by Minister Car and Member for Monaro Steve Whan, the Minns Labor government supports the MGSP site. The Coalition opposition also supports the MGSP site.

Since there is bi-partisan political support in Parliament for the MGSP site, Parliament can legislate to remove any impediment that may exist to re-starting construction immediately. A bill can be drafted for introduction into Parliament on February 6, should the legal options being examined by Minister Car not guarantee an immediate re-start.

It would be helpful if the Coalition opposition is urging the government to proceed immediately.

Greg Cameron10:04 am 25 Jan 24

The site meets 14 of the 15 essential criteria and three of the six desirable criteria. Bi-partisan political support means that Parliament can make a law that enables the project to re-start immediately.

Contrary to what some might say; the court did not find the development illegal. They found that the development consent was invalid.

To be clear and contrary to those who would tell you that the development is/was “illegal”:

The court found that the government’s development consent for the build was invalid. This does not call into question the suitability of the site (it is suitable) or the impact on the park (we are not “losing” the park).

savebungendorepark10:41 am 24 Jan 24

The fact that the planned development was found by a Court to be illegal, and almost four years later we’re no closer to a school speaks for itself.

The Department of Education set the terms of reference for this report.

The only two people the review was allowed to speak to were senior public servants with a deep personal interest in the outcome. The local MP was not part of the process so it’s unclear why he was interviewed.

The only documents the author was allowed to look at were the documents provided to her by those two people.

She was writing about a place she had never visited and about people she had never spoken to.

She admits that the documentation available was “limited”. So this supposed report is basically a report of unsupported claims made in an interview with the Project Director and the CEO of School Infrastructure, which the author seems to have accepted as gospel.

The author was instructed to pretend that time was frozen in August 2020 and nothing has been learned since then. All of the issues with the site – like toxic lead contamination and Crown land law – could conveniently be ignored with that little fiction.

Some of the conclusions were literally cut and pasted, without question, from the marketing materials published by the Department of Education. Or were completely contradictory, like saying she didn’t examine anything that happened after August 2020, but then still somehow making a “finding” that sites proposed after August 2020 were properly assessed…

As a work of historical fiction it makes for dull reading and an unreliable account of events that happened four years ago. As a rational basis for making decisions in 2024 it is utterly irrelevant and lacking credibility.

Greg Cameron8:14 am 24 Jan 24

Development of the high school has been delayed because the Minister for Planning did not seek consent from the Minister for Land and Water.

Riotact reported on December 14 2023:

In her reasons, NSW Land and Environment Court Judge Dr Sarah Pritchard SC determined seeking consent from the Minister for Land and Water (who administers the Crown and Land Management Act) was a “jurisdictional prerequisite to the exercise of the function to determine the development application”.

The second respondent [Minister for Planning] did not obtain consent from the Minister administering the CLM Act to carry out development on certain parts of the land the subject of the development application, being dedicated Crown land,” Judge Pritchard wrote.

Clause 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) did not remove the need for consent from the minister administering the CLM Act.

“Accordingly, the development consent is invalid.”

Judge Pritchard determined the failure to obtain consent was not a “technical breach” and thus also decided not to use the court’s discretion to make an order of conditional validity of the development consent.

Greg Cameron7:21 pm 23 Jan 24

The report’s introduction said:

“The purpose of this report is to provide an independent review of the new Bungendore High School site selection process.

“It has been commissioned by School Infrastructure NSW. It has been undertaken prior to granting of planning approval and detailed commencement of construction procurement to review whether appropriate and robust site selection processes were adopted and executed.”

The selected is the best site and the land is owned by the people of NSW.

There is no better use of this public land than by children for their education.

“ Her review did not examine the final business case, subsequent formal site acquisition processes for the selected site or concept plan changes.”

The items not examined speak volumes. The process was shonky from the start. Now the town is being deprived of a park, and students at both schools are being deprived of a reasonable education (see NAPLAN).

NAPLAN shows trend improvement across all subjects for primary students and is not useful for HS given its only operated for one year.

Also we aren’t loosing a park.

Greg Cameron9:51 am 23 Jan 24

The previous government’s “lack of consultation” over the “Majara Gibraltar Sites Precinct” (MGSP) cost the community dearly in terms of delay. It is highly likely that the Department of Education’s failure to seek the consent of the Minister responsible for crown lands would have been discovered if the process was better handled politically. However, it was clear that none of the sites investigated were satisfactory and that it was appropriate to investigate the MGSP site on land already owned by the people of NSW. To have delayed the construction of the school on the basis of a legal technicality is reprehensible. I urge Minister Car to proceed without further delay on building the school. Comments that the Department of Education is incapable of selecting the best site for a school are to be dismissed. On a positive note, the temporary high school is performing brilliantly.

savebungendorepark11:51 am 24 Jan 24

Greg, that “legal technicality” is the special protection given to Crown land – which in the case of Bungendore Park has been in place since 1884. It’s there to protect the land from exactly the sort of land grab by dodgy politicians and officials which we’ve seen here.

The laws are there for a very important reason and this fiasco shows just how important they are.

Greg Cameron12:19 pm 25 Jan 24

The land’s ownership is unchanged. It is the land’s use that is being changed. The land will be used for educating children in the best manner achievable. There is no more important use.

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