20 January 2024

Appeal option remains open for Education Department over 'invalid' finding for Bungendore High School

| Claire Fenwicke
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Artist's impression of Bungendore High School's gymnasium from Turallo Terrace.

The timeline for when Bungendore High School will become a reality is yet again facing uncertainty. Photo: Artist’s impression / NSW Dept of Education.

NSW Government lawyers have given themselves until 13 March to decide whether they will appeal a court decision which found the Bungendore High School was planned around an invalid development consent.

Solicitors acting for the Education and Early Learning Minister filed a Notice of Intention to Appeal to the NSW Court of Appeal on 11 January.

This doesn’t mean an appeal has actually been lodged, just that the option has been reserved.

Save Bungendore Park Inc representatives have argued appeals are long and expensive processes and that this potential legal course just added to the delays and uncertainty surrounding the project.

“Even if they’re successful (a very big ‘if’), it could take up to a year to resolve,” a statement read.

“If DoE [Department of Education] loses that appeal, they will have wasted yet another year.

“Anyone who actually wants a high school built in Bungendore any time soon would know that the best thing to do right now is to stop gambling with Bungendore’s kids and to crack on with planning on a different site.”

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The government previously indicated it was working to fix the “error of process” identified by the NSW Land and Environment Court.

The court did not find that the site itself was the issue, but that owners’ consent from the Crown Lands Minister should have been sought prior to lodging the high school’s planning application in 2021.

A School Infrastructure NSW spokesperson said work was continuing with the Department of Planning, Housing and Infrastructure (DPHI) to ensure the process for securing a significant site development approval for the school was completed in “the most timely manner possible”.

“A number of options are being explored, and while there are no current plans to appeal the decision, the department has taken steps to reserve this option, which is standard legal process,” the spokesperson said.

“The department will continue to work with the DPHI to progress the statutory planning process for the new high school, and we will keep the community updated.”

Monaro MP Steve Whan has stood by his government’s commitment to deliver a permanent high school for Bungendore as soon as possible, blaming the former administration and lamenting the findings by the Land and Environment Court.

“The decision to overturn development consent was another disappointing step in this process beset by failures made under the former Liberal National government that have delayed the building of this much needed school,” he said.

“The former government’s secrecy around its planning for the new school failed to meet the community’s expectations, and I appreciate that School Infrastructure NSW has now apologised for its administrative error.”

Mr Whan also emphasised that there were no “current plans” to appeal the court’s decision.

“The court’s decision was about an error of process and not the merits of the plan for the school … the site selection process was subject to an independent review, and while the preferred site is not perfect, this location best meets the needs of local students,” he said.

“I expect the department will continue to work with the DPHI to progress the statutory planning process for the new high school and will keep the community updated.”

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It’s also been confirmed that the planned school will only be able to accommodate projected demand for 12 years, even after additional construction.

In correspondence seen by Region, a School Infrastructure NSW representative stated the school’s master plan guiding the development had been designed around projected enrolments to 2036.

“While the initial size of the school is for 450 students, the school’s core facilities – including the hall, library, administration and canteen – are sized to cater for up to 660 students,” a letter stated.

“Future expansion, if required, can therefore occur within the current Majara/Gibraltar Streets Precinct site acquired for the school. Any future expansion will not impact Mick Sherd Oval.”

A Save Bungendore Park Inc statement slammed the revelation.

“So what they’re proposing – at huge expense and huge cost to the town – is an interim solution. A band-aid fix. A temporary high school. Sustainability and long-term planning be damned,” it read.

“Chances are – if they ever actually get permission to build – the school won’t even be open for a decade before it’s no longer fit for purpose – and with zero room for further expansion.”

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savebungendorepark3:15 pm 23 Jan 24

It has been 1259 days since this plan was announced.

In that time, a site was chosen for the new Jerrabomberra High School, community consultation was undertaken, planning permission was obtained and construction was completed. It’s going to open for the start of the new term.

And in those 1259 days, what have they achieved in Bungendore? Nothing.

If this was the best site, why haven’t they been able to do anything with it?

The facts speak for themselves.

Greg Cameron3:40 pm 19 Jan 24

The Leeson Review said that QPRC proposed two alternative sites in preference to the Tarago road site, which its Bungendore Structure plan “identified for long term residential use”.

A high school located in a residential development would be commercially desirable for a land developer.

The Review said:

“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.

“This dual approach commenced in March 2020 when the due diligence processes started on Tarago Road and coincided with Council proposing two alternative sites in preference to the Tarago Road site – which its recently adopted Bungendore Structure Plan (February 2020) identified for long term residential use.”

savebungendorepark5:00 pm 19 Jan 24

That report is so full of omissions and contradictions that it’s difficult to take it seriously.

The author only spoke to two people – both public servants with a deep personal interest in the outcome of the report. The factual assertions in the report – many of which are incorrect – came from what she was told by those two people.

The author only reviewed those documents she was provided by those people. She criticised the “limited” written evidence available.

She never visited the site or spoke to anyone in Bungendore.

She was instructed to pretend that time was frozen in August 2020 and nothing has been learned since then.

Some of the conclusions are cut and pasted word for word from marketing materials prepared by the Department of Education.

Other conclusions were completely contradictory, like saying admitting she didn’t examine anything that happened after August 2020, but then making a “finding” that sites proposed after August 2020 were properly assessed…

In short, that report doesn’t have a shred of credibility.

Greg Cameron1:50 pm 22 Jan 24

The Tarago Road site – evaluated as better than the others – was evaluated as unsuitable for the new school. The Leeson Review said:

There were numerous substantive issues that cumulatively support the conclusion that the site was unsuitable for the new school. These were:
• Flooding – flood mapping in the Bungendore Structure Plan 2048 indicates a substantial portion of the site to be flood prone
• Adjoining land use – the site adjoins the waste transfer facility. This has a 500m buffer zone for odour that would sterilise development on a substantial portion of the site
• Water availability – reliance on adequate groundwater and extra bore holes
• Utilities – the site would need extensive sewer and electrical extension at significant investment
• Access – the site is isolated from existing pedestrian and cycle networks. Up to 800m of new road would be required to be constructed to access the site
• Location – the site is on the northwest fringe of Bungendore and distanced from central Bungendore and the primary school
• Environmental – potential threatened species and potential requirements for Commonwealth approvals
• Zoning and timing – the site requires rezoning to permit education purposes. Uncertainty of statutory planning timeframes

Greg Cameron7:58 am 19 Jan 24

“New Bungendore High School, Site Selection Process Review” was prepared for “School Infrastructure NSW” by Ms Dianne Leeson on December 1 2023 and can be seen at:


The key findings are:

1. The site selection process was rigorous and followed established School Infrastructure processes

2. Evaluation criteria based on School Infrastructure’s standard criteria were established and applied in a consistent manner across all sites considered including the preliminary search of government sites, the three submissions to the Expression of Interest (EOI) and to subsequently identified alternative potential sites

3. The EOI process appears to have been well managed by Advisory and Transactions, Property and Development NSW (PDNSW) consistent with its normal processes

4. Consideration by School Infrastructure of alternative sites concurrently with the Due Diligence process for the shortlisted EOI site (Tarago Road) was appropriate given the weaknesses and emerging issues with that site

5. Community and key stakeholder engagement could have been managed better, including greater transparency, once discussions commenced with Council on the Majara Gibraltar Sites Precinct (MGSP) investigation and due diligence.

6. The selected site is significantly superior to all the sites evaluated.

The Review is excellent. I support Steve Whan’s comments.

Maureen Elgood1:21 pm 19 Jan 24

This desktop review is really just an interview with the two prime movers in the switch to Bungendore Park. D&T handled the EOI process and, in their documents stated that Tarago Road site was ‘superior’ not ‘adequate’ as SINSW and the reviewer would like you to believe.

Greg Cameron3:22 pm 19 Jan 24

The Leeson Report said as follows:

“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. It is noted that “good” is described as “Complies with the specified requirements, some minor issues and weaknesses would be acceptable as offered” and “adequate” is described as “minimally compliant with the specified requirements, some risks and weaknesses possible to correct and make acceptable”. No criteria was rated as “Complies with the specified requirements and has desirable strengths and minimal risks or weaknesses”.

“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.

“This dual approach commenced in March 2020 when the due diligence processes started on Tarago Road and coincided with Council proposing two alternative sites in preference to the Tarago Road site – which its recently adopted Bungendore Structure Plan (February 2020) identified for long term residential use.

“The available documentation surrounding the formal finalisation of the Tarago Road due diligence process is limited but is referenced in an undated School Infrastructure Ministerial briefing note (DGS20/1481- noted by the Ministers office on the 26th June 2020) as having been concluded in early June.”

So – what this “Notice of Intent to Appeal” tells me is that SINSW tried to find a quick-fix for their “error in process” – and failed. Now they’re trying to buy time, to waste even more time in the Supreme Court. Could take another two years.
But if they said stop-the-shonk, and went FRESH START, with a new SSD on a new site (and there are several !) then we’d have a BHS to be proud of, built and ready by Feb 2026.
If not, then it’s —
Every day’s delay is now on DoE

savebungendorepark5:37 pm 18 Jan 24

One of the most disappointing things is the Government keeps claiming “our only priority is to build ASAP”, as if that justifies shockingly bad planning.

But even if it did, they’ve wasted so much time on the “quickest” option. If they had the guts to admit 12 months ago that they’d got it wrong, they might might actually be building by now.

Even starting the planning on a different site now would be quicker than trying to fight this through the Courts.

In five years time when they’ve still not achieved anything, will they claim they need to stick to the current plan “because that’s the quickest way”?

savebungendorepark4:48 pm 18 Jan 24

It’s surprising that Steve is referring to that so-called “independent” review.

That review was based on a carefully-managed process to provide limited information to the reviewer – who found there was a serious lack of documentation available to her. More importantly, it ignored everything we have learned since August 2020.

It was nothing more than a work of historical fiction.

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