Lend Lease Developments Pty Ltd -v- Sydney City Council and Anor.

[1999] NSWLEC 138

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:         Lend Lease Developments Pty Ltd -V- Sydney City Council and Anor. [1999]  NSWLEC  138

PARTIES:

APPLICANT:
Lend Lease City Council

RESPONDENTS:
Sydney City Council and Anor.

CASE NUMBER:                10656     of           1998

KEY ISSUES:       Developmentappeal-Master Plan for Pyrmont Redevelopment requiring public access to two tennis courts to be provided in the residential estate—whether public dedication of courts should be required.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:              Bignold J

DATES OF HEARING:      28/04/99
EX TEMPORE DATE:       28/04/1999
REVISION DATE:              

APPEARANCES

APPLICANT:
Mr P. McEwen SC
SOLICITORS:
Norton Smith and Co.
FIRST RESPONDENT:
Mr S.B. Austin QC
SOLICITORS:
Blake Dawson Waldron
SECOND RESPONDENT:
Mr A. Gallasso, Barrister
SOLICITORS:
Christine Hanson

JUDGMENT:

IN THE LAND AND  Matter No. 10656 of 1998
ENVIRONMENT COURT OF  Coram: Bignold J.
NEW SOUTH WALES  28 April 1999

LEND LEASE DEVELOPMENTS PTY LIMITED

Applicant

v.

SYDNEY CITY COUNCIL

First Respondent

THE MINISTER FOR URBAN AFFIARS AND PLANNING

Second Respondent

JUDGMENT

1. In the series of appeals involving development known as the “Jackson Landing” development at Pyrmont, the parties have been able to reach a substantial degree of agreement on the matters in dispute as originally presented to the Court.  Ultimately, the Court is required to adjudicate on only one particular issue concerning the provision of two tennis courts within the overall planned residential complex. 

2. Those tennis courts are identified in the Master Plan adopted for the development of the area and it is clear from the terms of the Master Plan that the intent in relation to the provision of those two courts, is that there would be available to the public in the sense of being accessible to the public.

3. The Council’s principal contention is that the courts should be dedicated to the public.  This is opposed by the developer Lend Lease which contends that the courts should remain community property and form part of the community facilities of the overall planned residential estate. 

4. The Council's alternative contention if the Court is against its primary contention requiring dedication, is that a condition of consent should be imposed to guarantee equal opportunity for members of the public to use the courts, with that enjoyed by members of the Community Association (comprising the owners or occupiers of the various lots in the planned residential estate). 

5. Again, Lend Lease opposes such a condition and contends that a fair opportunity for public access would be achieved if equal opportunity of access to the courts by members of the public in common with members of the community association were available on six days a week but that on one day per week, namely Sunday, the courts be exclusively available to members of the community association. 

6. I should note that the Minister, who has actively participated in the hearing of this particular appeal relating to the community title subdivision application, expresses no firm opinion on the question of the dedication of the courts or the nature and degree of availability of members to the public of the use of the courts.  I should add in passing that this issue, (though ultimately the only issue in dispute) formed a somewhat minor part and played a somewhat minor role in the principal contentions originally opened up by the proceedings which was concerned with the question of the dedication to the public of considerable quantity of foreshore land contained within the estate and that the agreement entered into between the parties secures the dedication of the waterfront land to the Ministerial Corporation created by the Environmental Planning and Assessment Act 1979 (s 8). 

7. Having heard the competing arguments, I am satisfied that public access to the tennis courts as contemplated by the Master Plan will be adequately provided and vouchsafed by the proposed pattern of user and restrictions on user, as contended for by Lend Lease.  That is, that it will not be necessary for the land to be dedicated to the public and that public access on six days a week on an equal opportunity basis to that enjoyed by members of the Community Association is considered a reasonable solution in the circumstances of this case, and particularly in the context of the consideration of the use of two tennis courts within the overall context of what is a significant residential and commercial development contemplating some 1,500 residential units and of the aforesaid dedication of a large amount of waterfront land. 

8. Accordingly, on the only matter requiring adjudication, I have concluded that the proposal as propounded by Lend Lease is to be preferred to that sought by the Council in its relevant conditions of consent and that I am satisfied that that solution adequately gives effect to the principle and intent of the Master Plan and adequately divides the use and enjoyment of a recreational asset in private ownership between public users and private users. 

9. In coming to this conclusion and throughout this case, I would wish to acknowledge the assistance that I have been provided by Commissioner Dr Roseth pursuant to Land and Environment Court Act 1979 (s 37(1)).

10. In the light of my adjudication on the only matter in dispute, I invite the parties to bring in short minutes to give effect to that adjudication and to otherwise give effect to the inter partes agreements disposing of all the litigation currently before the Court.

11. The matter is stood over to my duty list on Friday morning