Friends of King Edward Park Inc v Newcastle City Council (No 2)

[2015] NSWLEC 76

Land and Environment Court

New South Wales

Medium Neutral Citation:

Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76

Hearing dates:

24 – 26 March 2014; agreed late tender 1 April 2014; further written submissions 4 and 11 April; 30 June; 29 July; 1, 8 and 14 August, 2014

Date of orders:

11 May 2015

Decision date:

11 May 2015

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

(1) The Court declares that the Development Consent granted to Development Application No. 2010/1735 dated 10 November 2011 for a function centre, kiosk, associated car parking and landscaping at 1 Ordnance Street Newcastle NSW 2300, is invalid and of no effect;
(2) The Court declares that the Plan of Management for the King Edward Headland Reserve, Newcastle, adopted in September 2007 by the Minister responsible for such plans, is invalid and of no effect, and that development of the land known as King Edward Headland Reserve at Lot 3109 in DP 755247 for the purposes of “function centre” is not permissible, as it was not authorized by a valid Plan of Management;
(3) The Court orders that the Fourth Respondent, by itself, its servants and agents, be restrained from taking any step to use the subject land for any purpose other than public recreation;
(4) The Court orders that the first and second Respondents pay the Applicant’s costs of the proceedings, on a party-party basis, as agreed, or as assessed according to law, unless, within 21 days, any party seeks an order in different terms;
(5) All exhibits are returned.

Catchwords:

CROWN LANDS: challenge to development consent granted for the development of a “function centre” on land reserved for public recreation under the Crown Lands Act 1989 (“CL Act”) – “function centre” permissible in the relevant zone, only if authorised by a Plan of Management (“POM”) adopted by the Minister pursuant to the CL Act – POM purported to authorise the use of the land for “conference centres” and “commercial facilities that provide for public recreation” – whether the POM lawfully authorised those uses – failure to consider mandatory considerations – scope of power to adopt “additional purposes” – purpose for which land reserved for public recreation can be used – severance of invalid provisions in POM – costs.

DEVELOPMENT CONSENT: development consent granted for impermissible purpose – declaration made of the consent’s invalidity – injunction restricting the proponent’s reliance on the consent.

Legislation Cited:

Aboriginal Land Rights Act 1983
Crown Lands Consolidation Act 1961
Crown Lands Act 1989
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
National Parks and Wildlife Act 1974
Newcastle Local Environmental Plan 2003
Newcastle Local Environmental Plan 2012
Newcastle Development Control Plan 2005
Land and Environment Court Act 1979
Local Government Act 1919
Local Government Act 1993
State Environmental Planning Policy No 4 – Development Without Consent and Miscellaneous Exempt and Complying Development
Warringah Local Environmental Plan 1985

Cases Cited:

Attorney-General for New South Wales v Cooma Municipal Council (1962) 8 LGRA 111
Attorney- General v Corporation of Sunderland (1876) LR 2 Ch D 634
Baiada v Waste Recycling NSW [1999] NSWCA 139; 130 LGERA 52
Bat Advocacy NSW Inc. v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59; 180 LGERA 99
Calardu Warrawong (Home Starters) Pty Ltd v Wollongong City Council [2008] NSWLEC 265
Chamwell Pty Ltd v Strathfield Council (“Chamwell”) [2007] NSWLEC 114; 151 LGERA 400
Clark v Wollongong City Council (No 2) [2008] NSWLEC 226
Clyne v Cardiff (1965) 65 SR(NSW) 213
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185
Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113
Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554
Jolly v Yorketown District Council (1968) 119 CLR 347
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Maitland City Council v Anambah Homes [2005] NSWCA 455; 64 NSWLR 695
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358; 84 NSWLR 219
Parramatta City Council v Hale (1982) 47 LGRA 319
Pitty v Bega Valley Shire Council [2012] NSWLEC 242; 191 LGERA 204
Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86
Tickner v Chapman (1995) 57 FCR 451; 89 LGERA 1
The Owners Strata Plan 432 v Seddon [2015] NSWLEC 69
Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419
Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710; 73 LGRA 379
Woolworths Ltd v Commissioner of Police [2013] WASC 413

Category:

Principal judgment

Parties:

Friends of King Edward Park Inc (Applicant)
Newcastle City Council (First Respondent)
King Edward Park Reserve Trust (Second Respondent)
Minister for Primary Industries (Third Respondent - Submitting)
Annie Street Commercial Pty Ltd (Fourth Respondent – Submitting)

Representation:

Counsel:

Mr T Robertson SC, with Mr J Lazarus, barrister (Applicant)
Mr A Shearer (First Respondent)
Mr C Birch SC, with Ms S Ross, barrister (Second Respondent)
(Third and Fourth Respondents submitting)

Solicitors:

University of Newcastle Legal Centre (Applicant)
Newcastle City Council Legal Services (First Respondent)
New South Wales Crown Solicitor (Second Respondent)
New South Wales Crown Solicitor (Third Respondent)
Cantle Carmichael Lawyers (Fourth Respondent)

File Number(s):

40089 of 2012

Judgment

A: Introduction

1. This case concerns proposals, and a consent granted, for the development and use of a prominent coastal headland in Newcastle, for the purpose of erecting a commercial “function centre”, with an associated kiosk.

2. The subject site has been reserved from sale for the purpose of “public recreation”, under s 87 of the Crown Lands Act 1989 (“CL Act”).

3. In the context of a security for costs application, Biscoe J held that this case had elements sufficient to attract the “public interest litigation” exception: Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113.

4. The applicant is a local community association formed in early 2011 to resist the subject development (Exhibit C1, tab 1, fol 2). It is represented by Mr T Robertson SC and Mr J Lazarus of counsel.

5. The applicant’s proceedings sought both declaratory and injunctive relief, in terms to which I will return ([193] below).

6. However, in view of assurances given to the Court by Council, both orally, and in its written submissions, that “there is no threat pointed to that the Council will not abide by any determination of the Court” (Tp151, LL19 – 20), injunctive relief is now pressed against only the proponent of the project.

7. The four respondents to the proceedings were the relevant local consent authority, Newcastle City Council (first respondent – “Council”), a crown lands trust responsible for the relevant reserve (second respondent – “Trust”), the NSW government Minister responsible for Crown lands (third respondent – “Minister”), and the proponent of the subject development (fourth respondent – “proponent”).

8. Of those four respondents, two – the Minister, and the proponent – have filed submitting appearances (on 23 October 2013, and 10 May 2012, respectively), save as to costs. The active respondents at the hearing were, therefore, only the Council, and the Trust.

9. At the heart of the proceedings is a challenge by the applicant association to a development consent (“DC” 2010/1735) granted by Council to the proponent company.

10. The applicant claims that the challenged DC is invalid because “function centres” are not permitted, with or without consent, on the subject land, under the relevant Local Environment Plan (“LEP”).

11. Additionally/alternatively, the applicant claims that the DC is invalid, as the Council did not comply with a number of procedural requirements when granting it.

12. The Crown Solicitor represents both the Trust and the Minister, but negotiations among the parties, led to (1) the Minister’s relatively late submitting appearance, save as to costs, and (2) to the decision, by the Trust, to play only a limited role in the proceedings.

13. At the hearing, the Trust was represented by Mr C Birch SC and Ms S Ross of counsel, and the Council by Mr A Shearer of counsel.

14. The hearing proceeded by way of submissions, both written and oral, on a myriad of documents, namely:

• a “court book” comprising 8 folders (Exhibits F1 to F8), which comprised a number of affidavits and other documentary material; plus

• a supplementary Council bundle (Exhibit C1);

• voluminous plans (Exhibit F11);

• a notice to produce issued to the Minister by the applicant, and documents produced in response to it (Exhibit F10);

• correspondence between the solicitors for the Trust and Minister on the one hand and for the applicant on the other, regarding that notice to produce (Exhibit T1);

• a Statement of Reasons (“SOR” – Exhibit F9), provided by the Trust and Minister, in respect to the decision to adopt the relevant Plan of Management for the subject reserve (“POM”); and

• a draft expert report (Exhibit F12).

15. Judgment was reserved after three full days of oral submissions (24 to 26 March 2014), but some rather unhelpful disputation ensued about supplementary written submissions, and substantially delayed work on this reserved judgment by some five months, until August 2014.

The Development Site

16. In opening the applicant’s case, Mr Robertson noted (Tp2, L39 – p3, L3) that the uses to which public land can be put, and the extent to which public land may be “privatised”, remain matters of continuing public controversy.

17. In this case, the subject site is, Mr Robertson says, a “most significant vantage point” for the Hunter coast, and “part of the lungs and breathing space of the City of Newcastle”. He also argues that it has high aboriginal and other heritage significance, including as the site of some of the nation’s “earliest coal shafts”. The existence of those shafts also raises questions regarding the geotechnical stability of the development site.

18. The primary location of the proposed development is a crown land reserve (the “King Edward Headland Reserve”, Reserve No. 1011189 – “the Reserve”), which is managed by the State Government (via the respondent trust), and is situated wholly within another crown land reserve (“King Edward Park” – “the Park”), which is a large public space (38 ha), managed by the respondent Council. Both of these areas of land are reserved for “public recreation”, under the CL Act – the Park since 1894, and the Reserve, in its own right, since 2005.

19. Both the Park and the Reserve were, at the relevant times, zoned 6(a) Open Space and Recreation under the now-replaced Newcastle Local Environmental Plan 2003 (“the 2003 LEP” – see Exhibit F3, tab 30, fol 719). The replacement (2012) LEP, made on 15 June 2012, amended some relevant 2003 LEP provisions, but was not considered by the parties to be relevant to the proceedings.

20. Under the 6(a) zoning table, “function centres”, is an innominate prohibited purpose, as such centres are not listed as permitted with or without consent. However, “any development allowed by a [POM] under the Local Government Act 1993 [(“LG Act”)] or the [CL Act]”, is permitted with consent. The hearing proceeded on the basis that the Council relied on the relevant POM for its alleged power to grant the DC.

21. That POM was adopted for the subject land, by the Minister, on the 7 September 2007. It noted (Exhibit F1, tab 12, fol 133) the limited range of uses permitted in Zone 6(a), especially the exclusion, for example, of commercial premises suitable for use for wedding receptions. The POM (fol 134) expressly sought to expand the permissible uses within the 6(a) zone by proposing “that the following additional uses be approved”:

Conference centres and commercial facilities that provide for public recreation.

The Challenges

22. The applicant primarily seeks declarations that the POM and the DC are invalid, on the basis of a number of grounds explained below.

23. If the POM is found to be invalid, it follows that the Council had no power to grant the DC.

24. The Trust’s case focussed on defending the validity of the POM, and, if it be found in any way invalid, the severance of those parts of the POM found to be so.

25. The Council made no submissions regarding these issues, but defended its consent.

26. Even if the Council were found to have the power to grant the DC, it was submitted that the Council did not validly exercise that power, breaching a number of provisions of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

27. Those alleged breaches largely arose out of an amendment to the original DA, which amendment added a draft condition requiring the provision of a contentious public pathway along the southern perimeter of the site.

28. These challenges form the secondary component of the applicant’s case. It was said that this pathway proposal constituted a significant alteration to the original proposal, mandating the re-consideration of a number of issues arising out of the proposal, and necessitating the taking of a number of procedural steps, such as re-advertising the proposal, and obtaining fresh approval from the Mines Subsidence Board (“MSB”).

29. Neither the Council nor the Trust sought to contradict the substance of these secondary claims.

30. However, the Council argued that, should the applicant be successful in its claims, the offending pathway condition could and should be severed from the consent, leaving the remainder intact.

31. Additionally/alternatively, Council argued that the applicant should be refused relief on discretionary grounds.

32. Many issues remained in dispute among the parties. Apart from all the process technicalities at the heart of the challenges, the issues which loomed largest were mines subsidence, public access to public lands, heritage impact (in respect of both the site’s rich mining history and its aboriginal significance), and the public safety of the parklands, and especially of the pathway.

33. While questions of discretion must be considered, if the challenge succeeds, the parties appeared content for all questions of costs to be reserved (but see now [366]).

34. In Mr Robertson’s summary of the case (Tp2, LL1 – 22), Council has granted DC for a private function centre “from which the public would be excluded” (c.f. a public kiosk), raising, apart from the question of the validity of the DC, questions of:

1. construction of the site-specific POM for the Reserve;

2. the Minister’s power to make a POM, which adds purposes to those for which the land was reserved; and

3. whether such added purposes are “consistent with or compatible with” the purpose of reservation, or “can subtract from that purpose”.

B: Relevant History

35. Given the complex factual history surrounding the subject site, I now set out a brief chronology of major relevant events for ease of reference:

10.03.1894   King Edward Park dedicated

08.05.1894   Council appointed trustee

19.03.1963   Revocation of the dedication for public recreation of Portion 3109 (within the Park)

21.10.1980   “King Edward Park Group” (the reserve, rotunda, fountain etc.) listed on the National Estate (Exhibit F6, tab 36)

02.08.1997   “Yi Ran Na Li” (“Place of Falling Rocks”) recorded on the National Park & Wildlife Service’s register

25.02.1998   King Edward Park placed on the National Heritage Trust Register

08.08.2003   The Park, in “The Hill” Heritage Conservation Area (Exhibit F3, tab 30, fol 794, and tab 32), included in Newcastle LEP’s Heritage list, as of “State” significance (Exhibit F3, tab 30, fol 791)

23.12.2005   Portion 3109 becomes King Edward Headland Reserve (R1011189), with the King Edward Headland Reserve Trust as trustee (Exhibit F3, tab 28, fol 676)

25.05.2007   Draft POM for Reserve on display

04.07.2007    Park included in State Heritage Register

07.09.2007 Adoption of POM for Reserve

14.12.2010    Development Application (“DA”) and Statement of Environmental Effects (“SEE”) lodged with Council, for “function centre, kiosk and associated carparking and landscaping” on Reserve (Exhibit F5, tab 34, and Exhibit F6, tab 37)

02.06.2011   Amended DA and an addendum to the SEE lodged (Exhibit F7, tab 40)

11.10.2011   Revised plan, and possible pathway options, put forward by the Proponent, discussed (See Exhibit F7, tab 43, fol 2433)

01.11.2011   Memo to Councillors re legal advice, and assessment of pathway options (Exhibit C1, tab 12, fols 279 – 80)

08 – 10.11.2011   Amended DA approved, and determination issued – subject to conditions, including 1.1a and 3.28

10.02.2012   These Class 4 proceedings commenced

23.05.2012   A s 96(1A) modification application lodged, to delete 3.28 and the pathway (Exhibit F8, tab 48)

10 – 17.07.2012   Modification application refused, and determination issued

36. Before coming to the relevant statutory framework, and the main issues for decision, I will now flesh out the complex factual history of the site, dating back to the early 19th century.

Pre – DA background of the development site

37. The Reserve comprises Lot 3109 DP 744247, which is a 0.65 ha “in-holding” of the larger 38 ha King Edward Park (Lot 7004 DP 1077043).

38. It occupies the north eastern corner of the Park, and has a frontage to Ordnance Street to its north of around 117 m. The Pacific Ocean is directly to the east of the site, and, to its west, is “The Hills” residential district.

39. The topography of the Reserve is generally flat, but the land immediately to its east slopes downwards towards the ocean, and to King Edward Park to the south.

40. Given its elevated position, unobstructed views of the Pacific Ocean are enjoyed from its eastern and southern boundaries (see aerial photo at fol 2098).

41. The land’s first documented use was for coal mining. First mined in the early 19th century (fol 2177), with the use of convict labour, it is thought that the early mine was the “genesis” for Newcastle’s most historic, and its original, “main street” (fol 2177).

42. A mine shaft is known to have been worked on the site between 1814 and 1830. It is now known as “the Bowling Green Shaft”, and is “associated with some of the earliest coal mining ventures in Australian history” (fol 2188).

43. Following cessation of the use of the Bowling Green Shaft for mining, in around 1830, “there [were] no other documented use[s] of the area until the late 1880’s and early 1890’s”, but there is some anecdotal evidence that the mine shaft was used as a night soil depot by Newcastle City Council between 1887 and 1888 (fol 2188).

44. An archaeological report annexed to the Statement of Environmental Effects (“SEE”) for the development highlighted (at fol 2189) the historical significance of the convict era mining undertaken on the site:

The potential archaeological remains on the study site of an early 19th century government mine shaft are considered to be of State and potentially National significance. The study site may contain archaeological relics associated with early government mining procedures and techniques. Vested in these remains, exists the potential for rare, scientific evidence of coal mining in the early days of the colony; in this way, the site is of significance in the evolution and pattern of the cultural history of Newcastle and the State.

45. In 1889, a bowling club with an associated caretaker’s cottage was established on the site (fol 2178). As noted above ([35]), King Edward Park was formally dedicated for “public recreation” five years later. The club operated pursuant to a special purpose lease under the Crown Lands Consolidation Act 1961 (Tp14, LL15 – 18).

45. Land immediately adjacent to and south-east of the site played a role in Australia’s coastal defences during World War Two. It housed two coastal fortification buildings, which were used for a searchlight, a gun intended to engage ships or submarines, and an associated generator (see the Pells report – [160] below).

46. In 1963, the dedication of King Edward Park was partially revoked, only to see the Park “reserved” in 2005, but the partial revocation in 1963 removed that part of the Park comprising the Bowling Club from the dedication (see chronology in [35] above). However, the land continued to be used as a bowling club for some of the 1960s, and has not been used for any other purpose since that time. Improvements on the site fell into disrepair.

47. In an apparent desire to properly utilise this pristine site, so that its potential could be fully realised, and further deterioration could be prevented, the state government explored ideas to put the land to a new use, and, in 2005, the land was reserved from sale for public recreation, and a reserve trust was established to manage it (Tp14, LL20 – 26, and see chronology – [35] above).

48. In 2007, the Crown Lands Department engaged an independent consultant, to prepare a draft POM for the Reserve. That plan was placed on exhibition, and public submissions were made in respect to it. Following discussions between those who made submissions and the drafter, amendments were made to it, and it was submitted to the Minister, who adopted it on 7 September 2007 (Tp14, LL28 – 38). The SEE stated that the “POM clearly identifies the Site as a place for public recreation which provides for …the development of a new significant commercial building that takes advantage of the location relative to the coast and the Newcastle CBD” (fol 2089).

49. A Development Application (“DA” – no 10/0308 – fol 2089) was approved in June 2010, and the derelict buildings on the site were demolished.

50. The DA at the centre of this case was then approved on the 10 November 2011.

The DA for the subject development

52. The DA, approved in late 2011, and its accompanying SEE, were lodged with the Council on 14 December 2010 (see [35] above), in the name of the Proponent, Annie Street Commercial Pty Ltd.

53. The subject development was described, in the SEE, as “function centre, associated parking, landscaping and kiosk”.

54. The proposed function centre was to comprise two floors, largely constructed over the footprint of the old bowling club. Both levels include south and east facing balconies to take advantage of the views over the ocean and King Edward Park. Survey plans revealed that the function centre would have a total footprint of 1044 sqm, with an upper floor footprint of 805 sqm.

55. The SEE provided that the proposed function centre was to be used for corporate and community functions, as well as private social events (such as weddings), and small business meetings, and the SEE said that it would “not operate as a restaurant or bar that is open to the general public” (fol 2105). The reason for this was stated (fol 2105) as:

function centres…cannot operate effectively where a competing public use (eg. a kiosk or café) is operating simultaneously and therefore negatively impacts on the service that is being offered to function goers. This creates conflicts which undermine the effective operation of the function centre, such as impacts on privacy during private social events such as weddings and birthday parties.

56. In contrast, the kiosk and its associated outdoor dining area were to be located at the south western corner of the site, and to be open to the public generally (Tp32, LL30 – 36). The kiosk would also serve as a public viewing location, providing views over King Edward Park, the headlands and the ocean (fol 2104). A facebrick drinking fountain, which is listed as a heritage item in the 2003 LEP, was proposed to be relocated to accommodate the structure.

57. The former bowling greens were to be retained, as “ceremonial lawns” to be used in conjunction with formal functions (fol 2107). These would be open to the public generally, except when being used for private functions/ceremonies.

58. Pedestrian access into and around the site was to be facilitated by a “range of different pathways”, which would be “provided within the site, including timber boardwalks leading from Ordnance Street to the building” (fol 2108). A second “public entry path” was to be located along the “southern edge of the car park leading to the proposed buildings from King Edward Park”, connecting with a covered walkway running along the northern edge of the proposed function centre, and leading to a public viewing platform at the east of the site (fols 2107 – 2108).

59. Vehicular access to the site would be obtained from York Drive to the west, through King Edward Park. That entrance would lead to an onsite car park containing 40 spaces, in an area previously occupied by the bowling club car park (fol 2092). Part of the vehicular entrance/exit off York Drive, and associated landscaping is within King Edward Park. Nineteen parallel car parks were also provided off Ordnance Street, wholly within King Edward Park (see approved plan – fol 109).

The Mines Subsidence Issue

60. It was common ground that the Reserve, given its rich mining history (see [41] above), was at all material times within a mine subsidence district. The proposed development was, therefore, “Integrated Development, pursuant to the provisions of Section 91 of the EPA Act”, requiring an approval from the MSB under s 15 of the Mines Subsidence Compensation Act 1961 (“MSC Act” – fol 2090, and see [90] below).

61. The SEE noted that various coal seams lie under the site, and that “convict mining took place within these seams” (fol 2092). Accordingly, the “steeper parts of the site may be affected by lower strength foundation materials”, but “the majority of the site (i.e. the level areas) are unlikely to be affected by slope instability” (fol 2092).

62. A mine subsidence report was annexed to the SEE (fol 2215). The report stated that the site had been impacted by various mine subsidence events in the past (fol 2223), and found that “the site could be subject to [future] sinkhole and trough subsidence as a consequence of mining undertaken on and around the site” (fol 2223). The report concluded (at fol 2224):

Several coal seams underlie the site. Convict workings from the early 1800’s are estimated to be within 20m of the surface, with a shaft (Bowling Green Shaft) being present onsite. Several seams may have been mined below the site and in the area to the north of the site in what is expected to be either the Nobby’s, Dudley Seam, and / or the lower split of the Dudley Seam. The extent of the convict workings beneath the site is unknown. These workings could result in sinkhole subsidence at the site or deep foundations could encounter caved zones which may require them to be drilled deeper. The shaft associated with these workings could also result in a sinkhole;

AA Co workings in the Yard and Dudley (Dirty) Seams are unlikely to exist beneath the site;

The Borehole Seam has been mined by the AA Co at a depth of about 100m. Several trough subsidence events – ‘creeps’ due to pillar failure have occurred in the area between 1906 and 1908, with the site being just within the limit of the 1st creep. Future trough subsidence could occur from these workings; however, potential trough subsidence impacts have been taken into account by the MSB by putting height and length restrictions on buildings in the area;

The Bowling Green shaft associated with the convict workings should be found, so that the building is not located over it and capped to support anticipated traffic loadings;

Boreholes should be drilled to below the convict workings to provide data for assessing the potential for future subsidence at the site and foundations. One borehole should be drilled to below the base of the Bowling Green shaft to help assess the depth of mining;

Mitigation for sinkhole subsidence consisting of grouting and / or structural measures may be necessary. The structure should be designed to be repairable if trough subsidence does occur.

Heritage Issues

63. The Statement of Heritage Impact (“SHI”) annexed to the SEE stated that “the [Reserve] is listed as a [heritage] item in the Newcastle LEP [as part of the King Edward Park group] and is scheduled as State significant, however it is not listed on the State Heritage Register” (fol 2186).

64. The site is located in The Hill Heritage conservation area. To its north is the James Fletcher Hospital, and to its south is the “Shepherds Hill Defence Group Military Installation”, both of which are listed on the State Heritage Register (fols 2181, 2186). The report noted that the site cannot be seen from the James Fletcher Hospital, and that the Shepherds Hill “fort” is “a reasonable distance from the development site” (fol 2181).

65. That heritage report concluded that there were “no aspects of the development considered to be detrimental to adjacent listed heritage items or The Hill Heritage Conservation Area” (fol 2126). It provided that the “following aspects of the proposal respect and enhance adjacent listed heritage items and the Hill Heritage Conservation Area” (fol 2185):

The proposal maintains the existing recreational use of the site;

The development maintains a similar bulk and scale of the previous building particularly when viewed from surrounding areas;

The overall design of the site maintains the existing layout of the bowling greens;

The development preserves the 1918 memorial fence to Ordnance Street, the two stone gate posts and the timber flagpole;

The landscaping preserves the layout of the bowling greens, drinking fountain and pathways;

The development preserves the eastern end of the site thereby maintaining the views of the ocean that made the site an important place to Aborigines;

The development is separated from the surrounding Hill Heritage Conservation Area and State listed heritage items by some distance and natural obstructions such as the topography;

The development has removed a dilapidated building to date, with the new building providing a re-invigorated use of the site as a Function Centre;

The colour scheme and materials selection for the development is relatively neutral, with darker colours for the body of the building, highlighted by the use of timber, polished concrete and travertine cladding.

66. In addition to its colonial significance, the site also holds significant indigenous cultural value.

67. It comprises the “southern-end of Yirinali”, also known as “the place of falling rocks”, which is of cultural significance to the Awabakal people. The SEE stated that there will be no impact to this area, as the development would occur over the footprint of the former bowling club, and that “no significant new areas of disturbance will occur” (fol 2096). The SHI said that this place of cultural significance would remain unaffected by the development because (fol 2177):

The proposed development maintains much of the existing physical arrangement of the site in its present form. The importance of the eastern end of the site and the adjacent cliff tops will remain unaffected by the proposed development.

68. Having now discussed the history of the site, and the details of the proposed development, I turn to set out the provisions relevant to the DA and its assessment.

C: Relevant Statutory Provisions

Environmental Planning and Assessment Act 1979

69. Section 78A of the EPA Act provides a procedure to be followed to obtain DC, and allows for regulations to be made, which would “specify other things that are required to be submitted with a [DA]”.

70. Section 79A(2) provides for notification/advertising of a DA for “specified development (other than designated development or advertised development) ... in accordance with the provisions of a development control plan”.

71. Section 79C(1) provides for matters which must be considered during the assessment/determination of a DA, and s 80 provides for a DA to (1) be granted “either unconditionally or subject to conditions”, including as to “deferred commencement”, or (2) grant consent to only a “specified part or aspect of that development”, or (3) be refused. The section goes on to allow for restrictions to be placed on determination of [DAs] for designated development, and for the regulations to “specify other matters of a procedural nature that are to be complied with before a [DA] may be determined”.

72. Section 91(1) provides for approval of “integrated development”, being:

development (not being State significant development or complying development) that, in order for it to be carried out, requires [DC] and one or more of the following approvals:

Act	Provision	Approval
...
Mine Subsidence Compensation Act 1961	s 15	approval to alter or erect improvements within a mine subsidence district or to subdivide land therein.”

73. Section 91A(2) provides:

(2)   Before granting [DC] to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant [DC].

74. Section 103 provides:

103 Revocation or regrant of [DCs] after order of Court

(1) This section applies to a [DC] granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.

(2) The consent authority may revoke a [DC] to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.

(3)   However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the [DC] to which this section applies and grant a new [DC] with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a [DC] is referred to as a "regrant" of the consent.

(4)   No preliminary steps need be taken with regard to the regrant of a [DC] under this section, other than those that are required to secure compliance with those terms.

(5)   Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to [DCs] regranted under this section.

75. Section 104 provides:

104 Appeals and other provisions relating to [DCs] after order of Court

(1) A [DC] declared to be valid under section 25C of the Land and Environment Court Act 1979:

(a)   is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and

(b)   is operative as from the date the [DC] originally took effect or purported to take effect, unless the Court otherwise orders.

(2) A [DC] declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:

(a)   is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and

(b)   takes effect from the date of the declaration or another date specified by the Court.

Land and Environment Court Act 1979

76. Section 25B of the “Court Act” provides:

25B Orders for conditional validity of [DCs]

(1)   The Court may, instead of declaring or determining that a [DC] to which this Division applies is invalid, whether in whole or in part, make an order:

(a)   suspending the operation of the consent in whole or in part, and

(b)   specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)   Terms may include (without limitation):

(a)   terms requiring the carrying out again of steps already carried out, or

(b)   terms requiring the carrying out of steps not already commenced or carried out, or

(c)   terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

77. Section 25C provides:

25C Orders for validity of [DCs]

(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant [DC] be regranted with alterations, the Court may make an order:

(a)   declaring that the terms have been substantially complied with, and

(b)   declaring that the consent is valid, and

(c)   revoking the order of suspension.

(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the [DC] has been regranted with alterations as referred to in section 103 of the [EPA Act], the Court may make an order:

(a)   declaring that the terms have been complied with, and

(b)   declaring that the [DC] has been validly regranted, and

(c)   declaring that the suspended [DC] has been revoked, and

(d)   revoking the order of suspension.

78. Section 25E provides:

25E Duty of Court

It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a [DC] to which this Division applies is invalid, whether in whole or in part.

Environmental Planning and Assessment Regulation 2000

79. Clause 49(1) of the EPA Regulation provides that a DA may be made:

“(a)   by the owner of the land to which the [DA] relates, or

(b)   by any other person, with the consent in writing of the owner of that land.”

80. Clause 55 sets out a procedure for amending a DA, and relevantly includes:

“(3)   If the [DA] is for:

(a)   development for which concurrence is required, as referred to in section 79B of the Act, or

(b)   integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.”

Newcastle Local Environmental Plan 2003

81. The subject site was zoned 6(a) Open Space and Recreation Zone under the 2003 LEP, at the time the relevant DA was made. In that zone, development identified under cl 13 of the LEP did not require consent.

82. It was not contended in the present case that the subject development fell under cl 13, but cl 4 of the zoning table provided that development for the following purposes was permissible only with consent (emphasis mine):

camping grounds or caravan parks

childcare centres

clearing

clubs

community facilities

convenience shops

dwellings

dwelling-houses

eco-generating works

eco-tourism facilities

environmental facilities

flood works

helipads

home employment

marinas

passenger terminals

places of assembly

recreation areas

recreation facilities

restaurants

tree removal

utility undertakings

Any development allowed by a [POM] under the Local

Government Act 1993 or [CL Act].

Demolition.

Subdivision

83. All other development was prohibited in the zone (cl 5).

84. Clause 27(1) of the 2003 LEP provided:

27 Heritage assessment

(1)   In assessing a [DA] to carry out work on a heritage item or within a heritage conservation area, the consent authority shall have regard to the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or the heritage conservation area.

85. Clause 31 provided:

Before granting consent for development that is likely to have an impact on a place of Aboriginal heritage significance or that will be carried out on an archaeological site of a relic that has Aboriginal heritage significance, the consent authority shall:

(a)   consider a heritage impact statement, which addresses the heritage impact of the proposed development, and

(b)   notify local Aboriginal communities and the Director-General of National Parks and Wildlife of the proposed development and take into consideration any comments received in response within 28 days from the date of notification

86. The following relevant definitions were contained at cl 37:

heritage conservation area means an area of land that is shown edged with a heavy black broken line on the zoning map and described in Part 2 of Schedule 6.

heritage impact statement means a document prepared by a suitably qualified person consisting of:

(a)   a statement addressing the heritage significance of a particular heritage item or heritage conservation area, or of a building, work, archaeological site, relic, tree or place within a heritage conservation area, and

(b)   an assessment of the impact that the proposed development will have on that heritage significance, and

(c)   recommendations for appropriate measures to minimise that impact.

heritage item means:

(a)   a building, work, archaeological site or place specified in the inventory of heritage items included in Part 1 of Schedule 6, or

(b)   a place described in the National Parks and Wildlife Service Sites Register as a place of Aboriginal heritage significance.

heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value to the community of the City of Newcastle.

87. The following items are listed under Sch 6 of the 2003 LEP as heritage items:

Suburb	Item name	Address	Property description	Significance
The Hill	King Edward Park Group (includes public reserve, drinking fountain and rotunda)	3 Ordnance Street	Pt DP 54152	State
The Hill	King Edward Park Group (Bogey Hole) Public Baths	3 Ordnance Street	Pt DP 54152	State
The Hill	Obelisk	3 Ordnance Street	Pt DP 54152	Local

Newcastle Development Control Plan 2005

88. Clause 3.1.1 of the DCP relevantly provided:

The kinds of development listed below will be advertised and notified to adjacent landowners in accordance with this plan, in addition to any

development, which is required to be advertised and/or notified by the [EPA Act] and Regulations.

Development involving a heritage item, including demolition

Non-residential uses in or adjacent to residential or rural-residential areas (not including home employment)

…

Council will notify adjoining owners and occupiers in accordance with Schedule 1 where it is of the opinion that the use or enjoyment of their land may be detrimentally affected by the proposal.

…

Consideration of [DAs] will have regard to any representations which may be made by adjoining owners/occupiers and other interested persons in response to public notification procedures.

89. Clause 3.1.8 provided:

Notification of amended [DAs] where the development is substantially unchanged

Amended applications will be notified/advertised in the same manner as the original application and to each person who made a submission to the original application.

If a [DA] is amended and

Council has notified/advertised the original application, and

Council is of the opinion that the amended application differs only in minor respects from the original application, and does not result in a greater environmental impact,

Council may decide to dispense with further notification/advertising in relation to the amended application at the discretion of the officer responsible for the management of development assessment.

Mines Subsidence Compensation Act 1961

90. Under the MSC Act ,”improvement” is defined at s 4 as:

Improvement includes any building or work erected or constructed on land; any formed road, street, path, walk or drive-way; any pipeline, water, sewer, telephone, gas or other service main, whether above or below the surface of the land.

91. Section 15 provides for proclamation and revocation of mines subsidence districts, and for the alteration or erection of “improvements” within subsidence districts to be approved or refused, by the MSB, and for the Board’s approval to be subject to conditions, which may relate “to the class or nature of improvements, the height, weight, type of material, number of storeys and method of construction of any improvements within the district. Such conditions may vary according to the location, class or nature of such improvements”.

92. Section 15 also includes these subsections:

(3A)   Any approval given under the foregoing provisions of this section shall be void if the erection, alteration or subdivision to which it refers is not commenced within 2 years after the date of the approval:

Provided that the Board may if good cause be shown grant an extension or renewal of such approval.

(3AA)   For the purposes of subsection (3A), the alteration or erection of improvements on land or the subdivision (involving physical work) of land is commenced when building, engineering or construction work relating to that alteration, erection or subdivision is physically commenced on the land.

...

(6)   Where the approval of any person under the [EPA Act] is required for the erection or alteration of an improvement within a mine subsidence district or for the subdivision of any land therein, the Board may refuse an application for its approval to such erection, alteration or subdivision if the applicant for the approval has not produced to the Board the approval of that person to the erection, alteration or subdivision.

...

93. As the permissibility of the proposal is predicated on the POM, the validity of which is challenged, it is necessary to discuss the statutory regime under which the POM was made, namely the CL Act.

Crown Lands Act 1989

94. The CL Act regulates the management of state owned land. The objects of the Act are set out at s 10 as follows:

The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for:

(a)   a proper assessment of Crown land,

(b)   the management of Crown land having regard to the principles of Crown land management contained in this Act,

(c)   the proper development and conservation of Crown land having regard to those principles,

(d)   the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with,

(e)   the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and

(f)   the collection, recording and dissemination of information in relation to Crown land.

95. “Crown Land” is defined at s 3 of the Act as:

… land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a)   land dedicated for a public purpose, or

(b)   land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

(The effect of this definition is that land which is dedicated for public recreation is not “crown land” for the purposes of the Act.)

96. The CL Act regulates the management of Crown Land by limiting the manner in which crown land can be dealt with, i.e. it must be dealt with only in accordance with the Act.

97. Section 34 sets out the powers of the Minister with respect to Crown Land, relevantly:

(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:

(a)   sell, lease, exchange or otherwise dispose of or deal with Crown land, or

(b)   grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown.

…

(6)   This section does not authorise the sale of Crown land which is reserved for a public purpose.

98. Section 34A sets out the power of the Minister with respect to “Crown Reserves”, as distinct from “Crown Land”. Crown Reserves are defined (s 33A) as “land that is, or is part of, a reserve within the meaning of Part 5”. A “reserve” under part 5 is defined as “…land which is dedicated or reserved under this Act…”. Section 34A provides (some emphasis mine):

34A Special provisions relating to Minister’s powers over Crown reserves

(1)   Despite any other provision of this Act, the Minister may grant a lease, licence or permit in respect of, or an easement or right-of-way over, a Crown reserve for the purposes of any facility or infrastructure or for any other purpose the Minister thinks fit. Any such lease, licence, permit, easement or right-of-way is referred to in this section as a relevant interest.

(2)   The following provisions apply in relation to the granting of a relevant interest:

(a)   the Minister is to consult the following persons or bodies before granting the relevant interest:

(i) the person or body managing the affairs of the reserve trust (if any) appointed under Part 5 as trustee of the Crown reserve that is the subject of the relevant interest,

(ii)   if the Crown reserve is being used or occupied by, or is being administered by, a government agency-the Minister to whom that agency is responsible,

(b)   if the Crown reserve is to be used or occupied under the relevant interest for any purpose other than the declared purpose (as defined in section 112A) of the reserve-the Minister is to specify, by notice published in the Gazette, the purposes for which the Crown reserve is to be used or occupied under the relevant interest,

(c)   the Minister is not to grant the relevant interest unless the Minister:

(i)   is satisfied that it is in the public interest to grant the instrument, and

(ii)   has had due regard to the principles of Crown land management.

(3)   Failure to comply with subsection (2) (a) does not affect the validity of the relevant interest concerned.

(4)   The proceeds from a relevant interest are to be applied as directed by the Minister.

99. Where land has been dedicated or reserved for a particular purpose, the use of the land for some other purpose is not authorised: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) (“Goomallee”) [2012] NSWCA 358; 84 NSWLR 219, per Basten JA (at [37]).

100. However, it is sufficient in this respect that the activities to be carried out on the land be in furtherance of, or incidental to, the relevant public purpose: Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419.

101. Part 5 of the CL Act provides for the creation of “Crown Reserves”; Div 2 deals with the dedication of crown land for public recreation, and Div 3 provides for the reservation of crown land.

102. The Minister may dedicate crown land by notification in the gazette, and the dedication takes effect on the date of publication (s 80). A dedication may be revoked upon publication of a notice of revocation (s 84).

103. As noted above, once crown land is dedicated, it ceases to be “crown land” (s 3). Land is not to be dedicated unless the Minister is satisfied that it has been assessed in accordance with Part 3 of the Act, and unless he is satisfied that it is in the public interest to dedicate the land, absent assessment. In dedicating land, the Minister must have due regard to the principles of crown land management.

104. Section 87 of Div 3 of Part 5 states that the Minister may “reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose”, such reservation taking effect on the publication of a notification in the Gazette.

105. Section 92(1) provides that a Minister can “establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve”. A reserve trust is “charged”, by s 92(5), with the “care, control and management of any reserve” of which it is appointed trustee.

106. As I have already noted ([81] above), both the Headland Reserve and the Park are zoned 6(a) Open Space and Recreation in the LEP. By virtue of that zone’s land use table (found at cl 16(2) of the LEP), “function centres” are prohibited development, unless allowed by a POM under the LGA 1993 or the CL Act.

107. The DA at issue in this matter, therefore, relies on the POM for the Headland Reserve.

Plans of Management approved under the CL Act

108. Section 112 of the CL Act relevantly provides that (emphasis mine):

(1) The Minister may cause a draft [POM] to be prepared for a reserve (other than a Crown cemetery within the meaning of the Cemeteries and Crematoria Act 2013), including a draft plan that would, if adopted, authorise the reserve to be used for an additional purpose.

(2)   A reserve trust (other than a Crown cemetery trust within the meaning of the Cemeteries and Crematoria Act 2013) may with the Minister’s consent, and if the Minister so directs shall, prepare a draft [POM] for the reserve.

…

(5)   Without limiting subsection (4), the Minister may, in directing a reserve trust to prepare a draft [POM], direct the reserve trust to consider including an additional purpose as part of the draft plan.

(6)   If, in relation to a draft [POM] prepared by a reserve trust, the reserve trust proposes that the reserve is to be used for an additional purpose, the reserve trust is to advise the Minister of the proposal.

...

(8)   In the case of a reserve that is being used or occupied by, or is being administered by, a government agency, the Minister may not cause, or direct, to be prepared a draft [POM] that would, if adopted, authorise the reserve to be used for an additional purpose unless the Minister has consulted with the Minister to whom that agency is responsible.

(9)   Failure to comply with subsection (8) does not affect the validity of the draft plan if adopted by the Minister under section 114.

109. Section 112A provides the following relevant definitions of “additional purpose” and “declared purpose”:

additional purpose, in relation to a reserve, means any purpose that is additional to:

(a)   the declared purpose of the reserve, or

(b)   any purpose authorised by the Minister under section 121A in relation to the reserve.

declared purpose, in relation to land comprising a reserve, means the public purpose for which the land has been dedicated or reserved under this Part, and includes any purpose or use permitted under, or in connection with, the declared purpose.

110. Section 114 provides (inter alia):

(1A)   In the case of a [POM] that authorises a reserve to be used for an additional purpose, the Minister may, without limiting subsection (1), adopt the plan subject to the reserve trust complying with such conditions as the Minister thinks fit to impose.

...

(1C)   In determining whether to adopt a [POM] that authorises a reserve to be used for an additional purpose, the Minister is to have regard to the following:

(a)   the declared purpose of the reserve,

(b)   the compatibility of the proposed additional purpose with the declared purpose,

(c)   the principles of Crown land management,

(d)   the public interest.

111. Aside from the adoption of a POM, a Minister may authorise an additional purpose by publication in the Gazette, pursuant to s 121A, which provides:

(1)   In this section, declared purpose has the same meaning as in section 112A.

(2) The Minister may, by order published in the Gazette, authorise a reserve specified in the order to be used for a purpose that is additional to the declared purpose of the reserve.

(3) The Minister may not authorise a reserve to be used for any such additional purpose unless the Minister is satisfied that:

(a)   the additional purpose is compatible with the declared purpose of the reserve, and

(b)   the use of the reserve for the additional purpose is consistent with the principles of Crown land management, and

(c)   it is in the public interest for the reserve to be used for the additional purpose.

D: The Plan of Management

112. As noted in the chronology above ([35]), a draft POM was publicly exhibited on the 25 May 2007, and adopted on the 7 September 2007.

113. The purpose and outcome of, and the uses permissible under, that POM were outlined at page one of the draft (Exhibit F1, tab 12, fol 112) as follows:

Purpose of Plan   The purpose of the [POM] is to enable the Reserve to be redeveloped to achieve broad social and economic outcomes in keeping with the vision of the Newcastle Coastline Management Plan.

Outcomes   The purpose of the [POM] is to clearly define the King Edward Headland Reserve as a place for public recreation which provides for:

1.   The removal of all unwanted structures and buildings while retaining the form of the former bowling greens.

2.   The creation of a modern landscaped park which provides a high level of pedestrian access, plantings and areas of lawn which echo the former use as a bowling club, park furniture, shade structures, signage and public art, and vantage points to maximize views of the Newcastle coastline.

3.   The development of a future significant commercial building that takes advantage of the location relative to the coast and the Newcastle CBD.

Permissible Uses    Uses permissible in a 6(a) zone of the Newcastle LEP 2003 plus conference centres and commercial facilities that provide for public recreation.

114. Under s 1.4, which addressed issues arising from the public exhibition of the draft plan, it was noted that the community held diverse views regarding the future development of the site. It was said (fol 118):

However, development can be justified in terms of providing a basis for the protection of an environmental, heritage, and recreational asset of the Crown. Commercial use of the site should provide an ongoing source of revenue to the Trust and prevent the Reserve from becoming an on-going target for further vandalism as well as a public liability.

115. Under s 2.5, titled “Management Issues”, one issue was defined as (fol 126):

3.   In view of the degraded condition of the Reserve, redevelopment to enable the Reserve to be used and enjoyed by the community on a long-term sustainable basis. Redevelopment has to be considered because of the capital costs involved in providing public facilities and the ongoing need for revenue to maintain+ these improvements.

116. At 3.6 the relevant planning controls under the LEP were discussed. The table of permitted uses under the 6(a) zone was set out in full, and it was then said (fol 133):

The 6(a) zoning does not overly restrict he commercial use of the land although commercial premises (for example a building used for wedding receptions) are excluded. The forms of development relevant to development within the King Edward Headland Reserve from the above table include childcare centres, clubs, community facilities, recreation areas, recreation facilities and restaurants. Demolition and subdivision require consent although these are usually ancillary aspects of development. The LEP also contains provisions relating to development in the vicinity of a heritage item that also require careful consideration.

117. It was then expressly said (Exhibit F1, tab 12, fol 134):

It is proposed in this [POM] that the following additional uses be approved:

“Conference centres and commercial facilities that provide for public recreation.”

118. Under the heading “Strategies and Actions” (fol 140), two dot points relevantly provided:

Consider the viability and demand for any potential commercial or cultural activities on existing activities within the Reserve.

Approve commercial activities that are compatible with the use of the Reserve.

119. The POM included an indicative concept plan, which gave an example of the type of development the POM envisaged taking place on the site. The key elements of this indicative plan were described (at fol 143) as:

6   Provision of a space for a future building which could be one or two storeys in height suitable for restaurant/reception/function venue with a footprint of approximately 875m².

120. It was then said (at fol 145), that the development on the site “could be designed to include some or all of the following functions”:

Restaurant/Bar

Reception/Conference Facilities

Kiosk

Community Facilities

121. The site plan depicting the indicative development (at fol 146) shows, in pink, a “1 or 2 storey development envelope (Restaurant/Reception Venue)”.

E: The Development Application and Modification Processes

122. The majority of the applicant’s grounds of challenge relate to the failure of the Council to follow the correct procedure when granting consent, so I will now set out in detail the sequence of events which led up to the granting of this consent, in its operative, modified form.

123. The DA was lodged on the 14 December 2010.

124. The DA was then publicly exhibited from the 29 December 2010 to 3 February 2011. During that time a large number of submissions were received, many of them made by persons who were or became members of the applicant association.

125. A number of common themes can be drawn out from those negative submissions:

• The footprint of the development being almost double that formerly occupied by the bowling club, the development is too bulky and destroys the aesthetically pleasing headland (Exhibit C1, fol 15);

• The exclusion of the public from a large proportion of the area, the limited access afforded to the public, and the alienation of public space (Exhibit C1, fol 17);

• Alleged failures to comply with the POM (Exhibit C1, fol 23); and

• Heritage and Cultural Issues (Exhibit C1, fol 91).

126. Largely in response to those submissions, and to (1) issues raised by Council officers during their assessment of the proposal, (2) the “general terms of approval” of the MSB, and (3) the recommendations of the Office of Environment and Heritage, an amended DA and SEE were lodged on the 2 June 2011.

127. The amendments made involved, among other things (Exhibit F7, fol 2289):

• A reduction in the overall footprint of the function centre from 1057 to 868 sqm.

• An increase in the overall footprint of the kiosk from 40 to 60 sqm.

• The removal of the proposed Taxi Zone on Ordnance Street, and its replacement by the extension of the proposed angle parking.

128. The amended DA was again publicly exhibited from 10 June 2011 to 26 July 2011, and further public submissions were made in response. Again, many of these were from members of the applicant.

129. Importantly, complaints about the alienation of public space were reiterated.

130. A pro forma objection letter (Exhibit C1, fol 164), which was available to the public during this second exhibition period, included the following:

The building occupies the southern boundary with two stories encroaching into the Park to dominate the skyline. The intended walkways and terraces allowing the public uninterrupted views of the park and coastline have been omitted in favour of the function centre patrons and operators. This is contrary to the [POM] that stipulated a setback.

Pathways connecting the coastal walks are non-existent and the development actually forms a barrier between Fletcher Park and King Edward Park. This is also contrary to the [POM].

131. Concerns regarding the lack of a pathway “connecting the coastal walks” were repeated in many of the submissions (see, for example, Exhibit C1, fols 172 and 179).

132. In response to these concerns, the applicant wrote to the Council on the 11 October 2011 with two proposed options (Exhibit F7, fol 2433): Option 1 involved the provision of a gravel path around the southern boundary at the level of the ground floor, connecting the existent stairs to the east of the site with the proposed kiosk, and the second option involved repairing an existing path to the south of the site at a lower contour level.

133. On that same day, the Development Application Committee (“DAC”) of Council formally resolved to allow amendment to the DA, to add a path across the southern boundary of the site (in the form of Option 1). This was in response to notice given of a foreshadowed motion (by Councillor Osbourne) that the development be refused, on the ground that it “does not sufficiently provide for public access across the site … and does not address the land lock nature of the headland reserve” (Exhibit F7, fols 2527 – 2528).

134. The DAC also resolved to defer determination of the DA pending the circulation and consideration of legal advice drafted by the applicant’s counsel, Mr Robertson, in respect of the legality of the development. In response to this advice, Council sought legal advice from the department of crown lands in respect of the validity of the POM.

135. Contrary to the foreshadowed motion, the Planners Report tabled at that meeting made the following comments in respect of the provision of a pathway across the southern boundary (Exhibit F7, fol 2455):

The pedestrian path shown around the southern perimeter of the site on the indicative concept plan within the [POM] has not been provided for the following reasons:

Topography of the site (changes in grade);

Soil instability and the need for retaining works;

Safety and security issues;

The location of already disturbed areas of the site along the southern boundary; and

The desire to maintain and interpret a large portion of the former bowling greens.

These reasons are considered valid and the intention of the POM to provide pedestrian access through the site with specific vantage points has been achieved without the need for this southern perimeter path. It should be noted that the current proposal reflects that which was presented to and supported by the Department of Lands during the Expression of Interest process.

136. In response to the amendment, EJE architecture, on behalf of the Proponent, prepared a site plan showing the proposed pathway along the southern perimeter of the site, titled ‘Drawing A1101 – Revision A’, and dated 27 October 2011.

137. On 1 November 2011, an internal “memo” was forwarded to all Councillors in respect of the DA. That Memo (Exhibit C1, fol 277 – 280) summarised the Crown legal advice Council had received, as follows (at 277):

The [POM] (POM) has been validly made and adopted and is sufficient to authorise the proposed use.

The proposed use is consistent with and ancillary to the underlying Reserve purpose gazetted in accordance with the [CL Act] and there is no need to adopt an additional purpose for the Reserve as the POM specifically permits the additional use of ‘Conference Centre’.

The proposed use is consistent with the zoning under the LEP (restaurants, clubs etc) which necessarily involves some form of private tenure, noting that the Courts have recognised that a public reserve can be used for private profit.

Access to the Reserve over part King Edward Park can and will be simply addressed by the grant of a Sec 34A ([CL Act]]) licence by the Minister for Lands to the proponent.

138. The Memo also addressed (at 279) the addition of the pathway, discussed at the previous DAC meeting:

The discussions recorded in the Minutes of the DAC meeting of 11 October 2011 note that Councillors had discussed the provision of a public access pathway around the southern side of the building with the applicant during the Councillor Inspection of the same date. It is understood that the applicant has agreed to provide, at their cost, a public access path as discussed with Councillors.

In response to these discussions the applicant has submitted a plan reflecting “Option 1” as referred to in the DAC minutes (page 3). This plan is attached as Attachment 2. Council Officers have reviewed this proposal and considered it against the relevant planning policies. Council Officers are satisfied that the proposed public access pathway is consistent with State Environmental Planning Policy 71 – Coastal Protection, the Heritage Places Strategic Plan and Plans of Management – King Edward Park and section 79(C) of the [EPA Act].

Councillors are advised that any works associated with this pathway will need to be further considered by the NSW Heritage Branch as part of any approvals required under the Heritage Act, 1977. This is addressed under Section 6 of the Draft Schedule of Conditions contained in the recommended conditions of consent in Attachment B of the Council report to the DAC meeting of 11 October 2011.

In considering this public access path proposal Council is able to either:

Determine the application as previously proposed without the inclusion of the pathway, noting that the Crown Lands Division support;

or,

Amend the draft conditions of consent during the debate at the DAC meeting.

139. The DAC met again to consider the DA on 8 November 2011.

140. At that meeting, Councillors adopted the second option outlined in the memo, resolving to approve, subject to a number of conditions. The council minutes recorded the following amendments in respect of the added pathway (Exhibit F7, fol 2535):

Council as Reserve Trust Manager of King Edward Park, Park Register No. CR29, CR170100, consents to the amendment to [DAs] 10/1735 to include construction of a public access pathway within King Edward Park generally as shown on Drawing A1101 – Revision A prepared by EJE Architecture dated 27.10.2011.

The Applicant construct at its cost, to the satisfaction of Council, a public access pathway generally as shown on Drawing A1101 – Revision A, prepared by EJE Architecture, dated 27.10.2011, within Lot 3109 DP 755247 and within King Edward Park. Full details of the public access pathway are to be provided to the Principal Certifying Authority prior to the issue of a construction certificate. Construction of the public access pathway to be completed prior to issue of any Occupation Certificate for the development.

The width of the public access pathway be changed from 1.2 metre to 2.4 metre.

3.16 No construction works, or storage of building equipment or materials, occurring outside of the ‘Construction’ and ‘Repair of Existing Fabric’ zones, with the exception of works required to construct the public access pathway shown on Drawing A1101 – revision A, prepared by EJE Architecture, dated 27.10.2011.

Table 1.1a be updated to reflect the revised drawings Public Access and Coloured perspectives Drawing A607 Revision H and A609 Revision C, prepared by EJE Architecture, dated 27.10.2011 and a note be added to the Table 1.1a to ensure that this plan takes precedence.

141. Two days later, on 10 November 2011, the Council issued a Notice of Determination (Exhibit F1, tab 11), which included the conditions in respect of the inclusion of the pathway and reflected the Council’s resolution.

142. The “pathway condition” was condition 3.28, which said (fol 80):

The applicant constructing at its cost, to the satisfaction of Council, a public access pathway generally as shown on Drawing A1101 – Revision A, prepared by EJE Architecture, dated 27.10.2011, within Lot 3109 DP 755247 and within King Edward Park, with such pathway being a minimum 2.4 metres wide. Full details of the public access pathway are to be provided to the Principal Certifying Authority prior to the issue of any Construction Certificate. Construction of the public access pathway is to be completed prior to the issue of any Occupation Certificate for the development.

143. The “reason” for it was said (fol 80) to be:

To provide improved public access to and around the site.

144. On 10 February 2012, these proceedings were commenced (see [35] above, and [192] below). As already noted, the applicant’s challenges to the granting of the DC primarily involve legal issues arising from the inclusion of the pathway.

145. On 23 May 2012, following the commencement of these proceedings, the Proponent lodged a s 96A modification application, which sought to remove the conditions requiring the construction of the pathway (1.1a, and 3.28 – Exhibit F8, tab 48).

146. It was said, in a letter lodged with the s 96 application, that such removal was justified on the basis that (Exhibit F8, fol 2538):

Sufficient public access opportunities already exist within and around the site ... ;

Access to the southern / less visible side of the building should be restricted for security purposes ... ;

Access to the southern side of the building reduces privacy for patrons attending functions ... ;

The modified development will comply with the PoM ... ; and

The modification will result in a reduction of environmental impacts associated with the construction of the pathway ... .

147. The s 96 application was publicly notified, with the formal exhibition period closing on 12 June 2012. A “Public Voice” was held on the last day of exhibition. Thirty-four public submissions were received during the exhibition period, and 8 were received after the period closed. Members of the applicant were again among those who made submissions opposing the removal of the pathway, and their concerns were voiced at the public meeting.

148. The issues raised in those public submissions were summarised in the planners report tabled at the DAC, on 10 July 2012, as follows (Exhibit F8, fol 2554):

The pathway is integral to the DA and without it, the DA would never have been supported.

Councillors required the pathway at the insistence of the public.

Councillors should hold to that decision in the interest of the public.

The pathway provides public quality (in terms of public access and ocean views) as outlined in, and required by, the [POM].

The pathway allows for connection with the Bathers Way proposal.

Believed to be unacceptable that commercial viability of the function centre and lack of privacy for the function centre take precedence over public access.

Same opportunities for public access and ocean views cannot be provided anywhere else on the site.

The pathway is the least the developer can provide as compensation for loss of public land and without the pathway the development would be totally commercial.

149. That report also confirmed that Council officers were “aware” of presentations made by two members of the applicant at the “Public Voice”, which “encouraged Councillors to continue the requirement for the pathway”.

150. It is convenient to set out here the following exchange between a member of the applicant, Dr Ostinga, and Councillor Nelmes, at the “Public Voice” (Exhibit C1, fols 408 – 409):

Councillor Nuatali Nelmes

Quite frankly I find it quite limiting and I am mindful that we have been taken to the Land and Environment Court because of the pathway and I thought that was a good win for the Friends of King Edward Park for access and around the back of the proposed function centre. Like I said on the night of the [DA] I think that the pathway is good and I think that it was a good middle ground to resolving the access issues that were raised by Friends of King Edward Park and I think it was a really valid concern that you have put to us in the past and have again put to us tonight. But I guess the problem I have is that a lot of the Court action hinges around on that pathway so I am confused as to if you do want it or don’t want it because it seems to be good tonight but not good for other reasons.

Dr Ostinga

I have to be careful how I answer that question of course but my understanding is that we are here tonight to discuss Section 96 and for whatever other reasons the pathway is there or not there, we are here to discuss whether the pathway should be disappeared through the motivation of Section 96. Now that’s all I’m arguing tonight and I think frankly that that really is all that should occupy the minds of the consent body. Whether it is appropriate to keep or disqualify the pathway through the application of Section 96.

I cannot comment on the Court proceedings except to say this, that I was asked to give evidence in Court and that’s for everybody to see and I believe that it was along the lines from memory that the pathway was appreciated. If that is indeed all we are going to get and that’s basically all that I can really say about the matter. It’s difficult, the other thing perhaps I might say is that when the Court discusses the pathway it discusses it in terms of the general, all of the considerations. It is not being discussed as a single isolated subject although aspects of it were certainly discussed in that matter during Interlocutory Hearings.

Councillor Nelmes

Just so I’m, clear, Friends of King Edward Park are supportive of keeping the pathway as it was in the previous determination. Is that correct?

Dr Ostinga

Friends of King Edward Park are supporting the rejection of this Section 96 Application. I think I can say that with confidence.

Councillor Nelmes

So does that mean you support the pathway or don’t support the pathway?

Dr Ostinga

Well I’ve already answered that question; I support the pathway, if that’s all we are going to get. If we are going to remove the pathway and say well, we’re going to remove it because you have plenty, because you don’t really need it, then we would most strongly not support that context.

151. Despite these submissions, the report recommended the approval of the application, referring to the earlier report tabled at the first DAC meeting, in support of the claim that even without the pathway the development was still compliant with the POM (fol 2553).

152. It was further said (at fol 2564):

Impact on Adjoining Open Space

The proposed development without the pathway will not impact on the useable public open space adjoining the east, south or west.

Views of the ocean and adjacent park that were previously blocked by the former bowling club building would still be appreciated from within the site without the need for the pathway.

153. The Councillors did not agree with that report, and resolved, at the DAC meeting on 10 July 2012, that “the application be refused pursuant to Section 79C(1)(e) of the [EPA Act], as removal of the pathway is contrary to the public interest” (fol 2568).

154. Council then sent a notice of determination to the Proponent, informing it of the refusal of the modification application, on the basis that “removal of the pathway is contrary to the public interest” (Exhibit C1, fol 413).

155. At the Ordinary Council Meeting on 25 June 2013, following confidential discussion of legal advice received in respect of these proceedings, the Council adopted the following resolution, according to the minutes (Exhibit C1, fol 454):

With respect to item 2, Council resolved that condition of a consent to DA 2010/1735 number 3.28 (the pathway condition) is not essential to the consent and Council has no objection to the Court severing that condition from the consent if the Court finds the pathway condition is invalid.

Council instruct the General Manager and Council’s legal representatives to take the course which they determine will most appropriately limit the Council’s future role and potential exposure to adverse costs orders in these proceedings.

156. In these proceedings, the applicant has maintained its legal challenge to the validity of the consent, on the basis that the pathway condition is itself invalid.

157. Council’s position is that the condition was “unnecessary on planning grounds”, is “not an essential condition of the consent”, and that it may be severed from the consent, if found by the Court to be invalid.

158. Having set out the procedural history surrounding the making of the POM and the granting of the challenged DC, I will now set out the affidavit evidence relied upon by the parties. No deponents were required for cross-examination.

F: Expert Evidence

159. The applicant relied on the expert evidence of Dr Philip Pells (civil engineer), Darren Robson (surveyor) and Andrew Monger (photographer), which focussed on the contentious pathway. Each swore one affidavit in the proceedings, but neither active respondent adduced any expert evidence in reply.

Dr Pells

160. Dr Philip Pells is a civil engineer, with nearly 40 years’ experience, who specialises in geotechnical assessment (Pells, par 2).

161. He swore one affidavit, on 31 October 2012, to which was annexed his expert report (Exhibit F2, fol 208), and a draft of that report was also tendered by the applicant, by arrangement, after the hearing had concluded, and became Exhibit F12 (Tp194, L18).

162. Pells was instructed to provide his opinion on (1) engineering/safety issues arising from the placement of the pathway in its proposed location, (2) any engineering works that may be required to render the path safe for pedestrians, and (3) any other matters which he believed ought to be raised in respect of the path (fol 212).

282. It was submitted by Mr Robertson, that, even if the POM was drafted with the intention of adding an additional purpose, and/or consideration was given to the s 114(1C) factors in so doing, the addition of an additional purpose for “conference centres and commercial facilities that provide for public recreation” is, nevertheless, unlawful, because such a purpose is inconsistent with the reserved purpose of “public recreation”, and hence is not an “additional purpose” as defined under the Act (see [109] above).

283. Mr Robertson submitted (opening subs, par 21):

… a purpose cannot be an “additional purpose” within the meaning of s.112A [see [109] above] if it is inconsistent with, contradicts or negates the purpose for which the land is reserved just as the grant of a license under s.34 of the CL Act is limited to the purpose for which the land is reserved: see [Goomallee] at [22] – [37]. Additional is used in the sense of supplementary: Macquarie 5th ed. One purpose which is added to another does not subtract from the latter, and it does not replace it. The land must still be available to satisfy the declared purpose, which it could not do if it is consumed by the additional purpose. For reasons given above, “conference centres” or “commercial facilities” contradict the declared purpose of the Reserve for “public recreation”.

284. The applicant’s argument invites the Court to accept the proposition that the exercise of the power to add an additional purpose to reserved land through the adoption of a POM (s 114(1A) – see [110] above) is constrained by the purpose for which the land was originally reserved.

Goomallee

285. Goomallee is certainly relevant here, to the extent that it was determined in that case that the powers to deal with land under s 34, are constrained by the reserved purpose. However, Goomallee is not authority for the proposition that all the Minister’s powers under the Act are restrained by the reserved purpose of particular land, even though it does say that the Minister’s powers to deal with land “may” be so constrained (at [20] per Basten JA).

286. Whether such a constraint arises depends in a particular case on the construction of the provision there in question, but, in fairness to the applicant’s argument, I should deal with Goomallee in more detail.

287. A five-judge bench of the Court of Appeal (Beazley, McColl, Basten, and Macfarlan JJA, and Sackville AJA) was dealing with an Aboriginal land claim made under s 36(1) of the Aboriginal Land Rights Act1983.

288. The land the subject of the claim had been reserved from sale under the CL Act for the purpose of public recreation. When the claim was made, it was being used for private grazing, pursuant to a licence granted by the Minister under s 34 of the CL Act (set out above at [97]).

289. The Minister argued that the land was not “claimable Crown Land”, as it was being otherwise “lawfully used or occupied”. The Land Council submitted that the land was not being so used, as the licence granted under s 34 was invalid because it permitted the use of the land for purposes other than “public recreation”.

290. Biscoe J had found, at first instance, in favour of the Land Council. Basten JA, with whom the other Judges in the Court of Appeal agreed (Sackville AJA with “one qualification”), dismissed the appeal against His Honour’s decision.

291. Basten JA defined the central issue on appeal (at [5]):

The issue, as identified in this court, was whether, to be lawful, the use and occupation must be (a) for, or incidental to, the purpose of the reservation or (b) merely not inconsistent with, or not incompatible with, that purpose. The Minister contended that the primary judge had erroneously adopted the more stringent test (a) and that, applying (b), grazing not being incompatible with public recreation, the use or occupation permitted by the licence was lawful.

292. The Court determined that the Crown could not authorise the use of land reserved for public recreation, unless that use was incidental to, or for the purpose of “public recreation”.

293. Basten JA rejected the Minister’s submission that the test of “incompatibility” was appropriate, as it was necessary to “reconcile” concurrent powers granted under the Act, which may conflict ([19]). He held that the preferred operation of the Act was that “it confers a broad range of powers on the Minister, the exercise of any one of which, with respect to particular land, may foreclose the exercise of the others” ([20]).

294. His Honour also rejected the Minister’s application of the “incompatibility” test, on the basis that it conflated “use” with “purpose”. Stating that the adoption of a test which determines the power of the Minister to grant a license (sic?) under s 34 by reference to the “use” of the land is misconceived, where the land was reserved for a “purpose”, rather than a “use”. He said (at [26]):

However, the scope of the power to grant the license did not depend on the use of the land, actual or potential, under the license. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used. To define a power by reference to purpose is quite a different exercise to defining a power by reference to permitted activity. The Minister’s submission erroneously conflated purpose and activity, as restraints on power.

295. His Honour went on to state ([27] – [29]) that, even if he applied the test of incompatibility, “grazing”, as permitted in the license, was incompatible with the purpose for which the land was reserved, and would nevertheless be unlawful. The rights and obligations conferred by the license were incompatible with the use of the land for public recreation. For instance, the holder was required to enclose the land with the provision of gates, for use by authorised persons only, and the license contained no reference to the use of the land for public recreation, nor public access.

296. Basten JA went on ([30]) to discuss some authorities that addressed the scope of the Ministers power to deal with land reserved for public purposes, including Rutledge (above at [215]), which established that:

It may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose”.

297. His Honour then cited (at [31]) the following passage from Attorney-General for New South Wales v Cooma Municipal Council (1963) 63 SR (NSW) 287; (1962) 8 LGRA 111 (per Brereton J at 294; 118):

To my mind the dedication of land ‘for purposes of public recreation’ necessarily involves the use of such land by the public for their recreation; land used by an individual or a council to manufacture or provide entertainment media for some subsequent enjoyment by the public or to disseminate information as to where recreation may be found is not land used for public recreation. It is obviously not necessary that the public must at all times have access to all parts of the land; indeed the type of recreation provided on it may require the exclusion of the public from parts of it, but any restriction upon the public's access to the whole of the area for the purpose of recreation can be justified only on the basis that it is in the interest of the public and to provide for their recreation within the area that they are so excluded from part of it.

298. Sackville AJA’s “one qualification” (at [43] and [44]) was that he did not think it necessary to determine whether the Minster was correct in submitting that the “incompatibility test” was the appropriate test, because the license granted would fail it in any event. He cited, with approval, the following from Rutledge, per Windeyer J (with whom Dixon CJ, Fullagar and Kitto JJ agreed), at 88 ([215] above):

In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park … two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit.

299. He added (at [47]):

as Windeyer J acknowledged in ... Rutledge at 88, it is not necessary for all members of the public to have free access to all parts of the land so reserved at all times. But it is hardly consistent with the reservation of land for public recreation that the holder of a grazing license is obliged to fence the land in a manner that may well deny the public ready access to it and, moreover, is entitled to use the land in ways that have nothing to do with public recreation in order to derive private profit.

Is Goomallee Distinguishable?

300. The Trust sought to distinguish Goomallee, stating that it “has no bearing on this issue and concerned specific statutory provisions in that case” (closing outline, par 1; and see Tp160, L12 – p161, L21).

301. Mr Birch submitted that Basten JA’s finding that the Minister’s power to grant a license under s 34 of the CL Act was constrained by the terms on which the land was reserved, turns on the particular wording of s 34 (Tp161, L36 – p162, L21):

Section 34 doesn’t contain any provision which might suggest it could override or effect the original reservation of land. And in that regard it’s for example, in complete contrast with s 34A which commences by saying, “Despite any other provision of this act the Minister may do the things hereunder”. So 34A’s a clear provision which does give precedence over the others. The question is really this, does s 114 and indeed does the provision in the [CL Act]]…give pre-eminence to whatever is added as an additional purpose in a [POM] over whatever the declared purpose may have been? And the answer to that is yes, it clearly does. Firstly, it’s clearly addressing the adding of purposes beyond the declared purpose, that’s the very thing that it seeks to do. It clearly contemplates the possibility that the additional purpose could be incompatible with the declared purpose, that’s the very thing that it seeks to do. It clearly contemplates the possibility that the additional purpose could be incompatible with the declared purpose and I’ve already explained to your Honour why the fact that incompatibility will not be a reason for rejecting an additional purpose if one’s concerned with 114. So this division unlike s 34, is expressly concerned with alteration to the use or purpose of the land beyond the original declared purpose.

Section 114(3) ... is plainly demonstrating the way 114 will take precedence over other provisions of the act once one has gone down the path of this particular provision to create an additional purpose. So for those reasons the decision in Giumelli (sic) has nothing to say, nothing directly to say in any event about the outcome in this particular case.

302. I agree with this submission.

303. On a proper reading, Goomallee is authority for the simple proposition that the exercise of one power under the CL Act may constrain the exercise of another power under it, and whether one power does so depends on the terms of the provision(s) in question. The incompatibility test was rejected outright, because it was propounded on the premise that powers that could be exercised inconsistently need to be reconciled.

304. One power may operate to limit and restrain the extent to which another power may be used. The question, therefore, is:

Does the reservation of the land for a public purpose, on its proper construction, operate to restrain the ability to add an additional purpose to the reservation under s 114?

305. For the reasons that follow, I believe the power to adopt an “additional purpose” under s 114 is not so constrained.

Q3: Is the exercise of the power granted by s 114 constrained by the reserved purpose?

306. It was submitted by the Trust (closing outline par 1) that the CL Act “clearly evinces a legislative intention to permit additional purposes adopted in a [POM] under s 114 to extend beyond public recreation and which may even be inconsistent with the public recreation purpose”.

307. I am of the opinion that, on a proper construction of s 114, the power to add an additional purpose is unconstrained by the purpose for which the land is originally reserved.

308. The Trust submitted that, if the applicant’s construction were adopted, the power to adopt an additional purpose under s 114 would be rendered otiose (see [110] above). I agree with that submission.

309. The Trust pointed to the definition of “declared purpose” in s 112A (see [109] above), which is “broad”, and would cover, in this case, “not just public recreation but any purpose or use permitted under or in connection with public recreation” (Tp158, LL19 – 26). It was submitted (Tp158, LL4 – 17) that it is impossible to conceive of an “additional purpose” that would be compatible with, or not inconsistent with, or did not “subtract from”, public recreation, which would fall outside this definition of declared purpose.

310. Accordingly, if Mr Robertson’s submission were adopted, the definition of “additional purpose” under s 112A, and the power to adopt one through a POM under s 114, would be rendered otiose, because any purpose which is “compatible” or “not inconsistent” with the declared purpose would fall under the definition of “declared purpose”. I agree with the Trust’s submission (par 1) in this regard.

311. An even more compelling basis for rejecting the construction propounded by the applicant is revealed when one compares the Minister’s power to adopt a POM through gazettal, as opposed to through the adoption of a POM (see [111] above).

312. Under s 121A(3)(a) ([111] above), the Minister may not authorise a reserve to be used for an additional purpose, “unless the Minister is satisfied that…the additional purpose is compatible with the declared purpose ...”. This prohibits the Minister from adopting an “additional purpose”, through publication in the Gazette, which, in the Minister’s opinion, is not compatible with the “declared purpose”.

313. Contrastingly, s 114(1C)(b) states that, when adopting an “additional purpose” through the adoption of a POM, the Minister must have “regard to” only the compatibility of the “declared purpose” with the proposed “additional purpose”.

314. In my opinion, this is a strong indication of Parliament’s intention to confer a wide and unfettered power on the Minister to adopt an “additional purpose” through a POM. The Trust submitted (Tp159, LL26 – 40):

If we take compatibility for example, and your Honour just compares that back with 121A, 121A is effectively a prohibition on the Minister authorising an additional purpose that is incompatible with the declared purpose. 114(1)(c), a much weaker restriction altogether. The Minister merely has to have regard to compatibility. There is no prohibition on the Minister authorising an additional purpose under 114(1)(c) that is incompatible if he has had regard to compatibility. Indeed, it's distinctly possible the Minister could decide to permit something that is incompatible with the declared purpose because, for example, public interest or principles of Crown land management could hypothetically be so much advanced by the particular additional purpose in question that that is a preponderant reason which in the Minister's opinion permits an incompatible additional purpose to be adopted. So one can see from the way the Act has been structured there is clearly not intended to be any prohibition where one goes down the path of 114 on incompatibility, only in 121.

315. I agree with this submission.

316. The weight of this argument alone convinces me that the power to adopt an “additional purpose” under s 114 should not be restricted to purposes which are not inconsistent with, or do not “contradict or negate, the purpose for which the land was reserved” (applicant’s opening subs, par 21).

317. Had there been an intention to restrict the ability of the Minister to adopt an additional purpose under s 114, in the manner propounded by Mr Robertson, the wording of that provision, or the definition of “additional purpose” would have said so, as it does in s 121A.

318. Therefore, the applicant’s second ground of challenge must fail – the power under s 114 to adopt an “additional purpose” is not limited to purposes that are not inconsistent with, or do not negate/contradict the “declared purpose”.

Q4: Does the additional purpose of “conference centres and commercial facilities that provide for public recreation” include “function centres”?

319. It was submitted (applicant’s subs, par 17) that, even if I found that the additional purpose of “commercial facilities that provide for public recreation” was lawfully adopted under the POM, and, therefore, permissible in the 6(a) zone, the development as proposed simply does not meet that description. Firstly, a function centre is not a “conference centre”, and secondly, the proposal does not “provide for public recreation”.

320. Specifically, it was submitted that the use of the land for an “exclusive purpose such as a wedding is incompatible with its use for public recreation”: Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 189 – 190 (par 19). “In order for land to be used for public recreation, the land must be open to the public generally as of right, and it must not be a source of private profit”: subs par 17, and see Rutledge, at 88 ([215] above). The proposal does not satisfy either of those conditions, because the public will not have access to the function centre as of right, and it will be a source of private profit (par 18).

321. Neither respondent argued against Mr Robertson on this issue, and I too agree with him.

322. As is clear from the authorities discussed earlier, the use of land for private functions such as weddings, is “inimical” to its use for public recreation, even if it is, at times, open to the public (see [55] – [56] above). As is clear from the SEE, it is contemplated that the public will be excluded from the function centre in this case, and from other parts of the land generally. The development is, therefore, not a “commercial facility that provides for public recreation”.

323. The question remains to be determined whether it can be described as a “conference centre”.

324. Mr Robertson submitted at (Tp93, LL42 – 44):

What was consented to by the council was not a conference centre, it was a function centre and the further details showed that it would be used principally for weddings.

325. As expressed in the SEE, the building was to be used for events which went beyond conferences, such as weddings. In my opinion, for a building to be a conference centre, its use must be restricted to conferences, and the like. If used for purposes outside that use, it ceases to be a conference centre, and becomes a broader type of building, namely a function centre.

326. I agree, therefore, with the submission of Mr Robertson that the development as approved is not use of the land for a purpose of either a conference centre, or a commercial facility for public recreation. As such, even if the POM did lawfully authorise those additional purposes, the development as approved did not fall under either.

327. That brings me, finally in this section of this judgment, to consider the pathway.

Q5: Was that part of the pathway contained wholly within King Edward Park permissible?

328. As discussed above (at [59], and [172]), the DC approved work in King Edward Park, as distinct from the Reserve, namely, the construction of 19 right angled car spaces along the Ordnance Street frontage, together with a car park entrance and exit driveways, and associated landscaping.

329. The applicant claims that these works are prohibited in King Edward Park, as function centres are not permissible in the 6(a) Zone (see [82] – [83] above). Nor is there a POM in respect of the Park, as distinct from the Reserve, which could authorise the works (applicant’s subs, pars 25 – 26). Hence, the development includes approval of development which is prohibited within the zone, and the consent as a whole is invalid.

328. Neither the Council, nor the Trust sought to contradict this claim.

329. As the proposed works in King Edward Park “serve the end of enabling” the function centre to be carried on, those works are ancillary to the use of the land for the purpose of a function centre, and that is their purpose; Chamwell. As such a use is impermissible in the 6(a) Zone, those works are prohibited.

330. It follows that the DC purporting to grant consent to those works is invalid.

Conclusion on permissibility of the development

333. Having determined that development for the purpose of “function centre” in both the Reserve and the Park was prohibited, I find that the Council had no power to grant the consent.

334. As a consequence of this finding, it is unnecessary to address the applicant’s secondary grounds, which attack the Council’s assessment of the application (see [201] above), and flowed from the late inclusion of the contentious public pathway in the approved project.

335. Nor is it necessary to address the Council’s argument that condition 3.28, requiring the inclusion of the pathway, was severable from the consent.

336. The only issues left, therefore, for determination in this matter are the severability of parts of the POM, and questions of discretion, and of relief.

Severance

337. The Trust submitted that, even if the POM did not lawfully authorise additional “uses”, this would only invalidate that part of the POM authorising the “use”, and would leave the remainder intact (par 47). (Mr Birch’s submissions do not apply the Chamwell distinction between “use” and “purpose”, and it would seem to me, with respect, that he was here referring more to “purpose”, than to “use”.)

338. The Trust wishes to preserve the POM, absent the purported additional purposes, so as to save it the cost and expense associated with drafting a completely new document (Tp156), and the applicant did not take issue with this position (Tp156).

339. The issue remains, however, whether and how severance can be practically achieved.

340. The following exchange took place on the third day of the hearing between Messrs Birch and Robertson (Tp156, L27 – Tp157, L16):

BIRCH:

...

Now, in this opening, Mr Robertson indicated that he didn't think that the applicant would be arguing that severance was not available. In other words, he was accepting, as I understood it, that severance would be available to save the [POM] without additional purposes. I can understand he may well take that course because if the [POM] survives without additional purposes, then he would probably still win his case if all his other arguments were accepted, but it would be important to my client not to have to go and create a whole fresh [POM] from scratch, even without the additional purposes.

ROBERTSON: My friend is correct in his understanding of our position, your Honour. If we get to the point of severance in the [POM], then effectively we've won the case because the [DC] would be prohibited. Insofar as the method of severance is concerned, given our acceptance at severance, in theory, is possible, it will be a matter for my friend to put forward a plan in a severed form because the Court can't legislate when severing and there will need to be some rewriting, so I just mention that. And it's not a task that should be left to your Honour to do. I think it's appropriate that my friend should put forward an amended document and then we can say yay or nay to it. That's how I anticipate the matter could be dealt with. That is, left to after judgment.

HIS HONOUR: Yes.

BIRCH: Your Honour, that's probably a convenient course. In our opening written submission we indicated what we thought would be the words that would be severed, but there is more than one possible finding that your Honour could make about what the [POM] means, and it could be that the best course is for your Honour to indicate, through a judgment, if you get to that point, what your view is, if any portion of the [POM] it considered to be invalid and then the parties can bring forth some form of formal order that would then give effect to it.

ROBERTSON: I can tell your Honour now that the matter of greatest concern to us is the indicative concept plan. Of course it indicates a use of the building on the land, which we say is not open, and so that plan would either need to be struck out or some alteration to the wording on it be undertaken. It would only be alteration to the wording, I think, and not to the actual design elements. I don't think the design elements are would be affected at all if the plan were solely restricted to public recreation purposes.

341. In its opening written submissions, the Trust (at par 46) submitted that, “even if the Minister did fail to take into consideration the section 114(1C) factors (which is denied), the [POM] is not invalid in toto. It is invalid only to the extent that the [POM] seeks to authorise the additional uses”.

342. Part D of those written submissions (pars 47 – 61) dealt with the issue of severance, and the salient parts of those submissions are discussed below.

343. It is common ground that a POM is an “instrument” for the purposes of the Interpretation Act 1987, s 32 of which provides:

32   Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1)   An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2)   If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a)   it shall be a valid provision to the extent to which it is not in excess of that power, and

(b)   the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3)   This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

344. Maitland City Council v Anambah Homes [2005] NSWCA 455; 64 NSWLR 695 (per Tobias JA, with Spigelman CJ and Ipp JA agreeing) cited (at [166]) the following passage from the judgment of Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86, with respect to the test for severance under s 32:

Provisions such as s 32 are to be approached consistently with the principles of interpretation enunciated by Dixon J in Bank of New South Wales v The Commonwealth. The court is required to have regard to the intention of the legislature, but if it appears that severance of an ultra vires portion of a regulation … results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as s 32, severance cannot be effected. This is because the residue would operate differently to the apparent intention of the legislature.

345. The question the Court must, therefore, ask itself is whether severance of those portions of the POM that purport to add, as an additional purpose, “conference centres and commercial facilities that provide for public recreation”, would result in the remainder of the POM operating differently from the manner in which the whole would have operated. In other words, to what extent can the objectives/management outcomes of the POM be achieved within the constraints imposed by the dedicated purpose of the reserve of public recreation.

346. As I noted above, it was common ground between the parties that “it may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose”: see Rutledge.

347. This restriction on the use of land reserved for a public purpose under the CL Act for commercial uses is explicitly recognised in the POM (at Exhibit F1, tab 12, fol 129).

348. Unfortunately for the Trust, I am of the opinion that removal of those parts of the POM which purport to permit the use of the land for “conference centres” and “commercial facilities that provide for public recreation” would completely alter the manner in which the POM would operate.

349. When the POM is read in its entirety, it becomes clear that the entire purpose behind it was to permit the use of the land for the purpose of a commercial facility. The “vision statement” on which the POM was “based”, and which was “intended to guide the Reserve Trust in its decision making process” (fol 136), provided (fol 136, par 3.12):

To develop the King Edward Headland Reserve for recreation and commercial purposes to serve the recreation and cultural needs of the Newcastle and Hunter Region Community.

350. In addition, one of the outcomes of the plan is listed on its front page as “The development of a future significant commercial building that takes advantage of the location relative to the coast and the Newcastle CBD”. Further, under the heading of “Purpose of the [POM]” (at fol 116), it was said that “The purpose of the [POM] is to bring forward a Concept Plan for the Reserve…”.

351. Significantly, the public submissions received in response to the exhibition of the POM were largely opposed to such development of the site, but it was said that development can be justified (fol 118):

... in terms of providing a basis for the protection of an environmental, heritage, and recreational asset of the Crown. Commercial use of the site should provide an ongoing source of revenue to the Trust and prevent the Reserve from becoming an on-going target for further vandalism as well as a public liability.

352. Further (at fol 126, at par 2.5), under the heading “Management Issues”, it was said that there “are three key management issues that the Trust must address in them (sic) Management of the Reserve”. One of those “Management Issues” was, relevantly:

3.   In view of the degraded condition of the Reserve, redevelopment to enable the Reserve to be used and enjoyed by the community on a long-term sustainable basis. Redevelopment has to be considered because of the capital costs involved in providing public facilities and the ongoing need for revenue to maintain+ (sic) these improvements.

353. The resolution of this “Management Issue” is premised on the development of commercial facilities on the site. Absent authorisation of the use of the site in that manner in the POM, this issue cannot be dealt with.

354. In my opinion, this indicates that the POM was drafted with the clear intention of permitting the use of the land for commercial premises. Removal of references to the additional purposes, and most significantly the concept plan, undermines the intended effect of the POM. In fact, one would struggle to determine what the impact of a POM would be if those provisions, which purport to permit the use of the land for commercial facilities that provide for public recreation and conference centres, were removed.

355. Thus, in my opinion, the POM would operate in an entirely different manner if those affected parts are removed, and, accordingly, I consider that they cannot be severed.

356. The entire POM must, therefore, be found to be invalid.

J: Discretionary Considerations, Relief, Costs, and Orders

Discretion

357. The Council asserted that there were two discretionary bases upon which the applicant should be refused relief. Both went to those grounds attacking the Council’s assessment of the DA and the pathway conditions, and, therefore, cannot impugn the applicant’s entitlement to relief on the basis of its primary grounds (see [199] above). It is, accordingly, not necessary for me to determine those issues, but I will set out the Council’s claim in brief.

358. First, it was said that relief should be denied on the basis of futility (Tp147, L3). Even if the Court found that the Council had failed to take into account various considerations, and/or to undertake various consultations with approval bodies, in respect of the pathway, such failures would have made no difference to the Council’s determination to grant consent: Woolworths Ltd v Commissioner of Police [2013] WASC 413, at [129], and see Council’s subs, pars 35 – 36. (Tpp147 – 150.)

359. The second discretionary matter “concerns the contradictory positions of the applicant in relation to the pathway” (par 37). More particularly, it is asserted that, in circumstances where the pathway condition was included in the DA in response to complaints made by members of the applicant association, and then its removal by way of a s 96 modification application was opposed (see [150] above), the applicant should not now be entitled to relief on the basis that the DC is invalid because of the inclusion of the pathway condition (pars 37 – 38). Mr Shearer complained that “the maintenance of the pathway grounds is nothing short of hypocrisy by the applicant in these proceedings” (Tp150, L43), and that (Tp159, L48 – p160, L1):

For an applicant to seek a pathway, get a pathway, advocate for its retention then challenge the pathway in Court is, to use a euphemism, not an appropriate cause (sic).

360. As I have found that the development was impermissible, there is no need for me to determine whether the Council made errors in respect of its treatment of the DA, and the pathway condition in particular.

Relief

361. Both the Council and the Trust submitted that the injunctive relief sought by the applicant in Order 5 of its further amended summons (see [193] above) was neither necessary nor appropriate, because there was nothing to suggest that the Council and the Trust would not abide by any determination of this Court as to the lawfulness of the development (Trust’s closing subs par 12, and Council’s subs pars 39 – 40).

362. On the basis of these submissions that those respondents would abide by any determination of the Court, the applicant did not press the injunction it sought against them (Tp151, LL26 – 29).

363. The Council also submitted that, dependent on my determination, I should consider granting an order of “conditional validity” (subs par 41), pursuant to Division 3 Part 3 of the Land and Environment Court Act 1979 (NSW), as opposed to declaring the consent wholly invalid (see [76] – [78] above).

364. Given my finding that the DC authorised development for a prohibited purpose, such orders are inappropriate, as there was no power to grant the consent. (See my decisions in Calardu Warrawong (Home Starters) Pty Ltd v Wollongong City Council [2008] NSWLEC 265, and Clark v Wollongong City Council (No 2) [2008] NSWLEC 226.)

Costs

365. The applicant submitted (par 68) that costs should “follow the event”, but the Council and the Trust submitted that, in the “event” that the applicant is successful, costs should be reserved, so that they may be heard on the question, following consideration of my findings (Trust closing subs, par 13, and Council’s subs, par 42).

366. This Court would normally make a costs order in favour of an applicant who had such success, as the applicant has here, on all the relief it pressed. However, in order to afford time for all parties to consider their positions in light of my findings, I will make an order for costs in favour of the applicant, on a self-executing basis.

Orders

367. The Orders of the Court are, therefore:

1. The Court declares that the Development Consent granted to Development Application No. 2010/1735 dated 10 November 2011 for a function centre, kiosk, associated car parking and landscaping at 1 Ordnance Street Newcastle NSW 2300, is invalid and of no effect;

2. The Court declares that the Plan of Management for the King Edward Headland Reserve, Newcastle, adopted in September 2007 by the Minister responsible for such plans, is invalid and of no effect, and that development of the land known as King Edward Headland Reserve at Lot 3109 in DP 755247 for the purposes of “function centre” is not permissible, as it was not authorized by a valid Plan of Management;

3. The Court orders that the Fourth Respondent, by itself, its servants and agents, be restrained from taking any step to use the subject land for any purpose other than public recreation;

4. The Court orders that the first and second Respondents pay the Applicant’s costs of the proceedings, on a party-party basis, as agreed, or as assessed according to law, unless, within 21 days, any party seeks an order in different terms;

5. All exhibits are returned.

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Decision last updated: 11 May 2015