Luna Park Sydney Pty Ltd v Minister for Planning

[2018] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:	Luna Park Sydney Pty Ltd v Minister for Planning [2018] NSWLEC 89
Hearing dates:	5 February 2018
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	Proceedings dismissed. See orders at [146]
Catchwords:	JUDICIAL REVIEW- staged development – distinction in question between consent for use of land and consent for works to enable that use – approvals encompassed only use of land – proceedings dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Luna Park Site Act 1991 State Environmental Planning Policy (State Significant Precincts) 2005 State Environmental Planning Policy (State and Regional Development) 2011 State Environmental Planning Policy No 56 – Sydney Harbour Foreshores and Tributaries
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 Bardsley-Smith v Penrith City Council, [2013] NSWCA 200 Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995) Street v Luna Park Sydney Pty Limited, [2009] NSWSC 1
Category:	Principal judgment
Parties:	Luna Park Sydney Pty Ltd (Applicant) Minister for Planning (First Respondent) McKenzie Group Consulting (NSW) Pty Ltd (Second Respondent)
Representation:	Counsel: Mr Adrian Galasso SC with Mr Stephen Free (Applicant) Ms Anna Mitchelmore (First Respondent)   Solicitors: Herbert Smith Freehills (Applicant) Legal Services, Department of Planning and Environment (First Respondent) Colin Biggers & Paisley Pty Ltd (Second Respondent)
File Number(s):	2017/116012
Publication restriction:	Nil

CONTENTS

Abbreviations

Judgment

Facts

Stage 1 Consent

Stage 2: Phases D and E Consents

Relevant legislation

Submissions

Applicant’s overall position

Minister’s overall position

Applicant’s submissions on Stage 1 Consent

Minister’s submissions on Stage 1 Consent

Applicant’s submissions in reply on Stage 1 Consent

Stage 2: Phase D

Applicant’s submissions on Phase D Consent

Minister’s submissions on Phase D Consent

Stage 2: Phase E

Applicant’s submissions on Phase E Consent

Minister’s submissions on Phase E Consent

Consideration

Stage 2: Phase D Consent

Stage 2: Phase E Consent

Overall Conclusion

Costs

Orders

Abbreviations

In this judgment many terms and documents of similar character are referred to after being initially defined and abbreviated for ease of reference. For convenience, this table sets out those abbreviations.

Abbreviation	Description
Applicant	Luna Park Sydney Pty Ltd
EPA Act	Environmental Planning and Assessment Act 1979
EPA Regulation	Environmental Planning and Assessment Regulation 2000
First Respondent	Minister for Planning
LEC Act	Land and Environment Court Act 1979
LPEC	Luna Park Entertainment Complex
Luna Park Act	Luna Park Site Act 1991
Masterplan DA	Stage 1 Masterplan DA as included in the Stage 1 SEE
Metro Edgley	Metro Edgley Pty Ltd
Phase D Consent	Consent subject to conditions for Phase D dated 21 January 2003
Phase D DA	DA 151-5-2002 submitted 22 May 2002 for car park and café/brasserie
Phase D SEE	Statement of Environmental Effects for Phase D
Phase E Consent	Consent subject to conditions for Phase E dated 21 January 2003
Phase E DA	DA 201-6-2002 submitted 20 June 2002 for “Luna Park Entertainment Complex”
Phase E SEE	Statement of Environmental Effects for Phase E
Proposal	Proposal to construct a new amusement ride identified as the ‘Flying Carousel’
Refusal Decision	Refusal to grant a construction certificate for ‘Flying Carousel’ dated 26 March 2017
Second Respondent	McKenzie Group Consulting (NSW) Pty Ltd, the Certifying Authority
SEPP 56	State Environmental Planning Policy No 56 – Sydney Harbour Foreshores and Tributaries
Stage 1 DA	Development Application 154-06-01 dated 22 June 2001
Stage 1 SEE	Statement of Environmental Effects for Stage 1 Masterplan & Stage 2 Phase C
Stage 1 Consent	Consent, subject to conditions, granted on 31 January 2002

Judgment

1. The iconic Luna Park Sydney sits on the water’s edge of Sydney Harbour at Milsons Point, almost in the shadow of the Harbour Bridge. Since 1935, the giant face at its entrance has been known to generations of Sydneysiders, as have the various closures and re-openings of the Park throughout the years.

2. This matter is a challenge brought by Luna Park Sydney Pty Ltd (the Applicant) to the decision, dated 21 March 2017, of McKenzie Group Consulting (NSW) Pty Ltd (the Second Respondent), in its capacity as a principal certifying authority, to refuse to grant a construction certificate in respect of the installation of a new amusement ride known as the ‘Flying Carousel’ in Luna Park (the Refusal Decision).

3. There is no right of merit appeal in respect of a decision by a certifying authority to refuse to issue a construction certificate (as opposed to a decision by as consent authority, such as a council: see s 109K(1) Environmental Planning and Assessment Act 1979 (EPA Act) – now s 8.16(1)). Consequently, the only avenue for challenging the Refusal Decision is through judicial review invoking the Court’s Class 4 jurisdiction under s 20(1)(e) of the Land and Environment Court Act 1979 (LEC Act), hence these proceedings came before the Court via that avenue.

4. The Second Respondent filed a submitting appearance and therefore did not appear at the hearing. The Minister for Planning, being the First Respondent, as the responsible consent authority pursuant to cl 9A and 5 of Schedule 6 to the State Environmental Planning Policy (State Significant Precincts) 2005, is therefore the only active contradictor in the proceedings.

Facts

5. In recognition of its heritage significance to New South Wales, on 12 October 1990, the Luna Park Site (the land identified in Schedule 1 of the Luna Park Site Act 1991 (NSW) (the Luna Park Act)) was vested in the Crown and the Luna Park Reserve Trust was established as trustee of the Luna Park Site.

6. On 4 July 1999, Metro Edgley Pty Ltd (Metro Edgley) was awarded the tender to lease the Luna Park Site and operate Luna Park. At that point in time, Luna Park had been closed since February 1996, but not until April 2004 would Sydneysiders see the Park reopen.

7. On 2 February 2001, development on the Luna Park Site was declared to be State Significant Development by virtue of cl 9 of the State Environmental Planning Policy No 56 – Sydney Harbour Foreshores and Tributaries (SEPP 56), with the Minister for Planning as the consent authority (cl 10).

Stage 1 Consent

8. On 22 June 2001, Metro Edgley submitted Development Application 154-06-01 (Stage 1 DA), seeking approval under s 80(4) of the EPA Act for a “Masterplan” for the Luna Park Site setting parameters around matters including land uses, building envelopes, access arrangements, noise levels and hours of operation. The Stage 1 DA was supported by a document referred to as the ‘Stage 1 Statement of Environmental Effects’ (Stage 1 SEE), and referred to the Stage 1 SEE as describing the development that was proposed to be carried out at Luna Park. Consent, subject to conditions, was granted on 31 January 2002 (the Stage 1 Consent). The Stage 1 SEE was also a statement of environmental effects for what was described as the ‘Stage 2 DA for Phase C’, which involved the erection of a strata office building on Glen Street.

9. It should be noted, merely for the sake of completeness, that prior to the Stage 1 DA being lodged, development consent had already been granted by North Sydney Council for the retention of, and alterations and additions to: (1) Coney Island (DA 427/00) – Phase A; and (2) the Crystal Palace (DA 427/00) – Phase B. Neither of those earlier consents are material to the issues before the Court in these proceedings.

Stage 2: Phases D and E Consents

10. On 22 May 2002, Metro Edgley submitted DA 151-5-2002 (Phase D DA), supported by a statement of environmental effects for Phase D (Phase D SEE), seeking approval under s 80(4) of the EPA Act for a carpark and a café/brasserie at the southern end of the Luna Park Site.

11. On 20 June 2002, Metro Edgley submitted DA 201-6-2002 (Phase E DA), supported by a statement of environmental effects for Phase E (Phase E SEE), seeking approval under s 80(4) of the EPA Act for the remainder of the “Luna Park Entertainment Complex” (LPEC), relating to the northern portion of the Luna Park Entertainment Precinct (but not including any works to the Coney Island or Crystal Palace buildings).

12. On 23 December 2002, an agreement for lease and sublease of the Luna Park Site was entered into by the Luna Park Reserve Trust, Metro Edgley and the Applicant.

13. On 21 January 2003, the Minister for Planning granted, subject to conditions, development consent in relation to the Phase D DA (Phase D Consent) and the Phase E DA (Phase E Consent).

14. Since 4 April 2004, when Luna Park re-opened to the public, the Applicant has occupied the Luna Park Site and operated Luna Park under arrangements with Metro Edgley.

15. On 17 March 2017, the Applicant lodged with the Second Respondent, a certifying authority, an application for a construction certificate in relation to “foundation footings and installation of amusement ride” for a ride known as the “Flying Carousel” (Proposal). The location of the development was described as the “Maloneys corner area” and as “part of Luna Park Entertainment Precinct”. It is the response to that Proposal which is the subject of these proceedings.

16. On 21 March 2017, the Second Respondent notified the Applicant of the Refusal Decision - that it had decided, pursuant to cl 142 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) to refuse to issue a construction certificate “on the grounds that the application does not satisfy Clause 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 as the works cannot be demonstrated as not inconsistent with the development consents as it was unclear whether the development consents authorise the installation of new rides”. It is this decision that is the subject of these proceedings.

Relevant legislation

17. All material events in this matter, including the impugned decision, the commencement of proceedings, and hearing of the matter, occurred prior to the commencement of the Environmental Planning and Assessment Amendment Act 2017 on 1 March 2018 and consequential changes to the numbering of sections in the EPA Act. As such, in this decision I will use the section numbering that applied prior to 1 March 2018. However, where helpful the new section numbering will also be referenced for ease of cross-referencing.

18. The former s 81A of the EPA Act relevantly provides:

81A   Effects of development consents and commencement of development

(1) Erection of buildings

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.

(2)  The erection of a building in accordance with a development consent must not be commenced until:

(a)  a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b)  the person having the benefit of the development consent has:

(i)  appointed a principal certifying authority for the building work, and

(ii)  notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

(b1)  the principal certifying authority has, no later than 2 days before the building work commences:

(i)  notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and

(ii)  notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(b2)  the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:

(i)  appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and

(ii)  notified the principal certifying authority of any such appointment, and

(iii)  unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(c)  the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.

…

(5) Regulations may provide for the issue of certificates

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

…

19. Crucially, s 81A(2)(a) provides that the erection of a building in accordance with a development consent cannot be commenced until a construction certificate has been issued by, inter alia, an accredited certifier.

20. ‘Building’, pursuant to s 4(1) of the EPA Act, “includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure”. In the context of the judgment, that which constitutes an amusement ride – such as the proposed Flying Carousel - is clearly a structure that falls within the definition of a building.

21. A construction certificate, according to s 109C(1)(b) of the EPA Act, is a certificate “to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A(5)”. The EPA Regulation, at cl 145, sets out the requirements for the issuing of a construction certificate (emphasis added):

145   Compliance with development consent and Building Code of Australia

(1)  A certifying authority must not issue a construction certificate for building work unless:

(a1)  the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and

(a)  the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and

(b)  the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

…

(3)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

22. At the time of the Stage 1 DA, s 80 of the EPA Act provided (with regard to staged development) (relevantly):

80 Determination

…

(4) Staged development

A development consent may be granted:

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)  A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

Submissions

Applicant’s overall position

23. The Applicant submitted that the Second Respondent made an error of law in failing to find that the Proposal was “not inconsistent” with the relevant development consents (that is, the Stage 1 Consent, the Phase D Consent and the Phase E Consent).

24. The Stage 1 Consent, the Applicant argued, provided consent for the introduction of new rides such as the Flying Carousel (that is, a ride which is an open, non-heritage ride located within the specified Ride and Amusement Zone). Further, the Applicant said, the Phase D Consent and the Phase E Consent were consistent with this construction and did not detract from the consent for such development granted in the Stage 1 Consent.

25. The Applicant submitted, with respect to s 80(4), that the version in effect at the time of the Stage 1 DA was not confined by the concept of staged development and authorised the granting of consent in various forms (citing Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [99] per Biscoe J).

Minister’s overall position

26. The Minister’s position was that the Second Respondent’s decision was correct. The Minister argued that notwithstanding that the Stage 1 DA and SEE proposed replacing/removing or moving open rides which were not of heritage significance in a designated area of the site without the need for further development consent and introducing such rides from time to time, the conditions of the Stage 1 Consent were not consistent with the Minister having authorised development with respect to that type of ride without the need to obtain development consent.

27. The Minister further argued that the Stage D and E DAs and SEEs related to detailed design of aspects of the Stage 1 DA and SEE, including with respect to rides, in the manner contemplated by the Stage 1 Consent, but that neither the Stage D Consent nor the Stage E Consent authorised removing/replacing, moving, or introducing open rides which were not of heritage significance without development consent.

28. The Stage 1 Consent is subject to a number of conditions, relevantly for present purposes:

85.   The Stage 1 development consent must be in accordance with Development Application No 154-06-01, submitted by Metro Edgley Pty Ltd, and “Development Application Statement of Environmental Effects to Minister for Urban Affairs and Planning”, including consultant reports, prepared by JBA Urban Planning Consultants Pty Ltd dated June 2001, drawings numbered MDA02-MDA08 dated June 2001, and amended drawings numbered SK276715A dated September 2001, prepared by Hassell Pty Ltd, as amended by the following conditions.

86. This consent is a staged consent in accordance with Section 80(4) of the Environmental Planning and Assessment Act 1979. Development consent is granted to:

(a)   Proposed land uses;

(b)   Building envelopes (note: modified by condition 91);

(c)   Parking numbers (note: modified by condition 105);

(d)   Vehicular and pedestrian access;

(e)   The public domain plan;

(f)   Hours of operations (note: modified by Condition 101); and

(g)   An external pedestrian link between Glen Street and the Luna Park Entertainment Complex.

87. Approval of Stage 1 development consent does not imply that any subsequent development application lodged in accordance with this Stage 1 development consent will necessarily be acceptable, as a full and thorough assessment under the provisions of the Environmental Planning and Assessment Act 1979 will be required at the time.

88.   No consent is granted or implied for the “River Caves Ride” and the drawing number MDA09 “Luna Park Concept Plan, prepared by Hassell. A detailed design of layout rides shall be the subject of a separate development application.

89.    ………

90.   No excavation, demolition or construction or the carrying out of any development (including all buildings, light-weight structures, rides and amusements, and landscaping) shall commence in relation to this Stage 1 development consent until a further development application(s) is approved and a construction certificate issued in respect of the buildings and works.

Note:   Development may however be carried out for the Stage 2 Development Consent (being the strata commercial office building on Glen Street) without the need to obtain further development consent.

…

94.   The following information shall be submitted with any subsequent development application in respect of the Stage 1 Development Consent envelopes: -

(a) - (f) …

(g)   all details of land upgrade and ride facilities for the proposed children’s ride area within the Playground to the north of Coney Island.

29. Further conditions, relevant to the issues but not necessary to set out in full, include:

1. Condition 101 provided for hours of operation, including for external rides and amusements.

2. Conditions 102 and 103 provided for noise level restrictions and required an acoustic plan of management for any subsequent development application.

3. Condition 104 required the operator to restrict the hours of operation or limit the operation of a ride if so instructed by the Director General.

Applicant’s submissions on Stage 1 Consent

Stage 1 SEE

30. The Stage 1 SEE included a “Stage 1 Masterplan DA” (Masterplan DA) which set out parameters around matters including land uses, building envelopes, noise levels, and hours of operation, and a “Stage 2 DA for Phase C” for the proposed strata building on Glen Street. The Applicant submitted that the Stage 1 SEE, and in particular the Masterplan DA, described the ongoing evolution of Luna Park as an amusement park, including the operation of both traditional and new rides throughout the park (noting, for example, Evidence Book [EB] p 381, and the Heritage Impact Statement at pp 530-591). For instance section 6.1 of the Stage 1 SEE states (EB, p 376) (inter alia):

An evolutionary process

This Stage 1 Masterplan DA continues Luna Park's evolution as an amusement park.

It builds upon Luna Park's foundations as a family and tourist destination by expanding its unique attractions to include modern facilities. Throughout its history Luna Park has evolved to keep pace with the changing times and to maintain its popularity. Luna Park's evolution will continue without altering its essential amusement park personality.

A greater range of entertainment and facilities

The fun ‘n’ games and loony appeal of Luna Park will be combined with a greater range of entertainment and commercial activities to broaden and strengthen the Park's commercial viability

31. The Applicant argued that section 6.6.1 of the Stage 1 SEE (EB, p 381), headed ‘Land Use’, which focuses on Land Use Design Principles which embrace “the evolution of its amusement park identity” illustrated that the application encompassed consent for new rides. The stated land use objectives, according to that section, include “to allow flexibility in the location of rides and the ongoing evolution of the Park.”

32. The Court’s attention was drawn to section 7 of the Stage 1 SEE, “The proposed masterplan development” (EB, pp 388-398), which stated that the Stage 1 DA sought “to gain an ‘umbrella approval’ for use of Luna Park and its various buildings and structures in the manner described”. Given the variety of uses that were expected to occur within Luna Park over a period of time, the Stage 1 SEE noted that “it is not appropriate to provide specific details relating to each possible use” and that “a set of generic parameters within which the anticipated uses of the site are most likely to occur” were provided instead.

33. Section 7.2.6 of the Stage 1 SEE, dealing with “Rides and Amusements”, stated, inter alia:

7.2.6 Rides and Amusements

Key rides and amusements which give Luna Park its fun park image will be retained (with the exception of the Big Dipper) and be supplemented with new attractions.

It is proposed that all public domain areas of the Entertainment Precinct and certain areas above building form a ‘Ride and Amusement Zone’, within which all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain further development consent. The extent of the “Ride and Amusement Zone” is shown on the Public Domain Plan (MDA06) at Appendix A. New open rides and amusements may also be provided within the Ride and Amusement Zone from time to time. This will allow flexibility in the location of rides and the ongoing evolution of Luna Park.

As previously stated, no rides of heritage significance will be replaced/removed without the separate consent of the Minister

…

34. Section 7.2.6 continued by listing existing rides and amusements and new rides to be maintained in the Ride and Amusement Zone (and stated that the list should be read in conjunction with Figure 21 which shows the proposed location of heritage rides), being: the Tumblebug, the Rotor, the Ferris Wheel, the Tango, a mechanical music collection, side shows, the Wild Mouse, dodgem cars, street entertainment, children’s rides, and carousel. (During the hearing it was clarified by counsel for the Applicant that the carousel referred to in this section of the Stage 1 SEE is not the Flying Carousel the subject of these proceedings).

35. The Applicant submitted this made it clear that, with respect to rides, approval was sought for a ‘Ride and Amusement Zone’, within which open rides and amusements that do not have heritage significance could be replaced, removed, or moved, and in which new open rides and amusements may be provided from time to time (Transcript, p 17). The Applicant argued that, in the context of the statement “[t]his will allow flexibility in the location of rides and the ongoing evolution of Luna Park”, “this” referred to a putative arrangement whereby consent was granted for existing rides and amusements to be moved, replaced and/or supplemented by new open rides and amusements within the Ride and Amusement Zone, without the need for further development consent, thereby allowing “flexibility in the location of rides and the ongoing evolution of Luna Park”.

36. This interpretation was bolstered, the Applicant contended, by the subsequent paragraph, “[a]s previously stated, no rides of heritage significance will be replaced/removed without the separate consent of the Minister”, thereby suggesting that it would be a heritage attribute that would trigger greater review, by way of further consent applications, whereas a proposal absent such a heritage characteristic would not trigger such a requirement.

37. The Applicant submitted that the “evolution” of Luna Park, as referred to in the Stage 1 SEE, was expressly tied to the introduction of new rides and amusements. In support of this contention, it noted section 2.4 of the Stage 1 SEE, detailing the history of Luna Park, which described evolution as “a key theme in Luna Park's history” and went on to state (EB, p 355):

[n]ew life has continued to be breathed into the Park through the renewal and updating of rides and attractions.

As a heritage place, it is the concept of Luna Park rather than the individual rides or structures that is of paramount value. The idea of a viable Luna Park, with new facilities and activities that preserve the Park's traditional personality, continues the Park's evolution and will help to ensure its enjoyment by future generations.

Stage 1 Consent

38. The Applicant contended that, as the Stage 1 Consent gave consent for the development described in the Stage 1 DA and the Stage 1 SEE, it necessarily included consent for the introduction of new rides of the kind described in section 7.2.6 of the Stage 1 SEE (open, non-heritage rides in the Ride and Amusement Zone). This was reinforced, it submitted, by condition 85 of the Stage 1 Consent which required that development be carried out in accordance with the Stage 1 DA, the Stage 1 SEE and drawings numbered MDA02-MDA08.

39. Further evidence of this, the Applicant argued, was found in condition 86 of the Stage 1 Consent, which stated that the consent was a staged consent in accordance with (the then) s 80(4) of the EPA Act and that consent was granted for, inter alia, “proposed land uses” and “the public domain plan”. The list of matters for which condition 86 provided consent, the Applicant said, mirrored the language and subheadings used in the Stage 1 SEE, and as such, the reference to “proposed land uses” should be understood as encompassing the development described in section 7.2.6 of the Stage 1 SEE, including the introduction of new open rides without further consent.

40. The Applicant noted Condition 90, which provided that :

No excavation, demolition or construction or the carrying out of any development (including all buildings, light-weight structures, rides and amusements and landscaping) shall commence in relation to this Stage 1 development consent until a further development application(s) is approved and a construction certificate issued in respect of the buildings and works.

41. The Applicant contended that this condition did not detract from its position. It argued that condition 90 was, in effect, a deferred commencement condition, such that the development for which consent is granted under the Stage 1 Consent cannot commence until a further development application has been approved and a construction certificate issued; rather than being a condition contemplated by s 80(5) of the EPA Act, that a specified part of the development must be the subject of another development consent.

42. The Applicant submitted that such a condition “reflect[ed] the integrated nature of the overall development contemplated for Luna Park. A subsequent development consent is a necessary precondition to development, but it does not follow that such a further consent must be the source of consent for the carrying out of development otherwise approved by the Stage 1 Consent itself”.

43. The Applicant drew a comparison between the “special treatment” of the children’s ride area in condition 94, which required “all details of land upgrade and ride facilities for the proposed children’s ride area within the Playground to the North of Coney Island” be “submitted with the subsequent development application”, and the ride and amusement zone which had no comparable condition.

Minister’s submissions on Stage 1 Consent

44. The Minister accepted that the Stage 1 SEE had proposed that within the Ride and Amusement Zone, “all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain the further development consent” and that “[n]ew open rides and amusements may also be provided within the Ride and Amusement Zone from time to time” (EB, p 390). However, the Minister rejected the Applicant’s contention that the Stage 1 Consent, having given consent for the development described in the Stage 1 DA and Stage 1 SEE, therefore consented to the introduction of new rides of the kind described in section 7.2.6 of the Stage 1 SEE (that is, open, non-heritage rides in the Ride and Amusement Zone). As counsel for the Minister noted “it is of course one thing to seek development consent with respect to certain uses of the land, but it is another thing as to whether or not in fact consent was granted with respect to that” (Transcript, p 44).

45. Similarly, the Minister acknowledged that the Ride and Amusement Zone was shown on drawing MDA 06, and that drawing was approved (in condition 85), however submitted that the terms of the approval did not sanction the statement “without the need to obtain further development consent” and that “[n]ew open rides and amusements may also be provided within the Ride and Amusement Zone from time to time” (Transcript, p 45).

46. The Minister submitted that whatever the Applicant sought in the Stage 1 SEE with respect to the Masterplan DA must be read subject to the Stage 1 conditions of consent. This, the Minister contended, was reflected by condition 85 to the Stage 1 Consent, which required the Stage 1 Consent to be in accordance with the Stage 1 DA, the Stage 1 SEE (including all consultant reports), and the drawings and amended drawings, “as amended by the following conditions”. That is, the Minister submitted, the Stage 1 Consent was “not a wholesale adoption of the material in the SEE or the drawings et cetera” (Transcript, p 49).

47. The Minister drew the Court’s attention to the Stage 1 SEE, which noted that the Applicant was seeking consent for a staged consent pursuant to s 80(4) of the EPA Act comprising two parts- the Stage 1 Masterplan and the Stage 2 Phase C DA for the detailed design of a strata office building. It then notes that "The detailed design of subsequent phases will be the subject of further stage 2 DAs to the minister” (EB, pp 343-344).

48. The Minister submitted that the notion of evolution in the context of the Stage 1 SEE was not limited to the evolving nature of the rides on site, but was rather referring to a broader evolution of the site, encompassing the range of development proposed accommodate new facilities, such as the Luna Circus and the brasserie, in addition to the rides, with a focus on commercial viability (Transcript, p 42).

Proposed land uses and further development consent

49. The Minister argued that, although condition 86 granted development consent to, inter alia, “proposed land uses”, subsequent conditions made it clear that further development applications were required with respect to those proposed uses, in a manner that is inconsistent with the Applicant’s contention that the consent authorised development of open, non-heritage, rides without further development consent.

50. For instance, the Minister submitted that many of the conditions stipulated details which were to be provided in subsequent development applications (citing conditions 88, 91, 94-95, 99-100, 103, 106, 109-112, 114-115, 117, and 120-136). By way of example, the Minister pointed to condition 88, which provided that no consent was granted or implied for the River Caves Ride and drawing number MDA09, the Luna Park Concept Plan, and that “a detailed design of layout rides shall be the subject of a separate development application”. Noting that drawing MDA09 set out “an indicative layout of the rides that were being proposed to be put in or relocated”, the Minister posited that condition 88 required that “the applicant will need to give the Minister a detailed design of layout rides pursuant to a separate development application. So notwithstanding the ride and amusement zone might have been approved, the detailed design has not been approved consistently with what the SEE said, the detailed design would be the subject of further DAs” (Transcript, p 50).

51. In addition, the Minister noted condition 87, which cautioned that approval of the Stage 1 Consent did not imply that any subsequent development application lodged in accordance with the Stage 1 Consent would necessarily be acceptable, “as a full and thorough assessment under the provisions of the [EPA Act] will be required at the time”.

Condition 90

52. Condition 90 provides (emphasis added by Minister):

90.   No excavation, demolition or construction or the carrying out of any development (including all buildings, light-weight structures, rides and amusements, and landscaping) shall commence in relation to this Stage 1 development consent until a further development application(s) is approved and a construction certificate issued in respect of the buildings and works.

Note:   Development may however be carried out for the Stage 2 Development Consent (being the strata commercial office building on Glen Street) without the need to obtain further development consent.

53. The Minister argued that the proper construction of condition 90, in accordance with its terms, precluded the Applicant from excavating, demolishing or constructing or carrying out development (which included rides and amusements) on Site unless it first obtained both development consent and a construction certificate for that development. The Minister contended that this interpretation was supported by the approach taken in the conditions identified at [50] above, which specify that details are to be provided in subsequent development applications, and by the advisory note to condition 90, which highlighted the distinction between the nature of the Stage 1 Consent and the Stage 2 Phase C Consent. Acknowledging that the note did not form part of the Stage 1 Consent, the Minister nonetheless posited that it was consistent with the intention otherwise disclosed by the terms of condition 90 and surrounding conditions that further development consents are required for works in accordance with the Masterplan DA.

Conditions 88 and 94

54. The Minister drew the Court’s attention to condition 88 of the Stage 1 Consent, which provides:

No consent is granted or implied for the “River Caves Ride” and the drawing number MDA09 “Luna Park Concept Plan[”], prepared by Hassell. A detailed design of layout rides shall be the subject of a separate development application.

55. The indicative plan in drawing number MDA09 included both existing rides (of heritage and non-heritage significance) and proposed new rides.

56. In addition, the Minister noted condition 94(g), which provides:

94.   The following information shall be submitted with any subsequent development application in respect of the Stage 1 Development Consent envelopes: -

(a) - (f) …

(g)   all details of land upgrade and ride facilities for the proposed children’s ride area within the Playground to the north of Coney Island.

57. The Minister argued that this treatment of rides in the children’s ride area at condition 94(g) (in contrast to rides in other areas of the Site) was not unique, when considered in conjunction with condition 88 as interpreted at [50] above, because both conditions sought details of all ride facilities. The Minister contended that what differentiated condition 94(g) from condition 88 was that such detail had to be provided in relation to the children’s ride area with “any subsequent development application” regardless of whether the Applicant sought approval for development in that area or not. In support of this interpretation, the Minister noted that, in conjunction with the Phase D DA, the Applicant sought to modify condition 94 so to relieve it from the requirement to provide the details required by paragraph (g) with that development application, as the Phase D DA did not deal with that area.

58. Similarly, as noted above at [50], the Minister took the position that although the Stage 1 Consent approved drawing number MDA06 (which marked out the area of the Ride and Amusement Zone), conditions 88 and 94(g) stipulated requirements with respect to the detailed design of rides in that Zone which were to be provided in subsequent development applications. The imposition of such conditions, the Minister argued, was inconsistent with the Applicant being granted a “free hand” as to the introduction and location of new rides in that zone without further development consent.

Acoustic plan of management

59. The Minister submitted that the noise anticipated to be generated by external rides and the patrons on them was a key concern in the submissions that objected to the Masterplan DA, and that the Department ultimately recommended that noise levels be mitigated with a number of measures, of which condition 103 was one (EB, p 700).

60. Condition 103 required a comprehensive Acoustic Plan of Management to accompany any subsequent development application. Such plans were required to, inter alia, provide “an independent assessment of noise generation in consideration when Luna Park in full operation, and addressing the layout and location of external rides, buildings and associated structures”. In order to do so, the Minister argued, the layout and location of external rides must be known. The Plan of Management was also to detail the noise control measures to be implemented as part of the development to control noise in the surrounding area, and the proposed relocation of external rides and activities, where necessary, as a method of noise mitigation (EB, p 878).

59. The Minister submitted that this was consistent “with noise management plans having to move with the development as new rides are sought, because it is only at that point that one can assess the park in full operation. And to the extent that you want to bring a new ride in and you may need to relocate existing external rides and activities, then the plan of management has to set out a proposed relocation” (Transcript, p 51).

60. The requirements of condition 103, the Minister argued, are therefore not consistent with the Applicant’s construction of the Stage 1 Consent by which it could replace open non-heritage rides anywhere in the Ride and Amusement Zone, move them around, or add them, without submitting a development application and comprehensive acoustic plan of management, as required by condition 103.

Applicant’s submissions in reply on Stage 1 Consent

63. The Applicant submitted that, with respect to the Minister’s argument that notwithstanding that the Stage 1 SEE and Stage 1 DA sought consent for the installation and relocation of new rides within the Ride and Amusement Zone, such consent was not granted, it was necessary to examine s 80 of the EPA Act as applied at the time:

80   Determination

…

(4)    Staged development

A development consent may be granted:

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)   A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

64. The Applicant argued that the consent was granted for the development for which the consent was sought (that is, including the replacement and moving of rides within the Ride and Amusement Zone), in accordance with s 80(4)(a) of the EPA Act.

65. The Applicant contended that the Minister’s argument relied on the proposition that the Stage 1 Consent was granted under s 80(4)(b), being that the Minister granted consent for the development sought, except for a specified part or aspect of that development, being the replacement and moving of rides within the Ride and Amusement Zone.

66. The Applicant argued that the “proposed land uses” for which consent had been granted in condition 86 must be read in the context of the documents that condition 85 required the development consent to be in accordance with and, in particular for present purposes, the Stage 1 DA, Stage 1 SEE, and map MDA06. The Applicant submitted that, in the context of those documents, the proposed land uses include the installation and relocation of new rides (being open, non-heritage rides) within the Ride and Amusement Zone.

67. In response to a hypothetical argument for the Minister that the Stage 1 Consent was an exercise of the power authorised under s 80(5), the Applicant contended that this power was not referred to in the Stage 1 Consent, that condition 86 does not refer to a staged development in accordance with s 80(5), and that condition 90 is not a condition of the kind provided for by s 80(5).

68. The Applicant argued that the language of condition 90 supports the Applicant’s position that it is a condition deferring commencement, rather than a condition of the kind envisaged by s 80(5). The Applicant argued that the matters identified in condition 90 as having such a deferred commencement (being “excavation, demolition or construction or the carrying out of any development (including all buildings, light-weight structures, rides and amusements, and landscaping)”) are “much broader that the matters which must occur in order to make commencement permissible”, being the approval of a further development application and a construction certificate issued in respect of the buildings and works. The Applicant argued that a construction certificate will only ever be issued, however, in respect of buildings. The Applicant further argued, with respect to the requirement for a development consent, that the condition reflected the terms of the application which specifically envisaged that need, for certain development (citing EB, pp 343-344, by way of example).

69. The Applicant submitted that, on the Minister’s construction of condition 90, everything within the Stage 1 DA which constituted development must be the subject of a further development application before it can commence. However, the Applicant contended, this was not reflected in the language of condition 90, which provides that no carrying out of any development shall commence in relation to the Stage 1 Consent until a further development application is approved (and construction certificate issued). The Applicant argued that this “language assumes that the Stage 1 consent does itself constitute consent to various forms of development”.

70. The further development applications and construction certificates referred to in condition 90, the Applicant contended, were those specifically contemplated in condition 91- the Luna Circus building, the Restaurant/Café complex, the carpark, and the Luna Circus Foyer.

71. The Applicant further submitted that the Minister’s interpretation of condition 90 was incongruous with other conditions of the Stage 1 Consent. For instance, condition 88, which explicitly excludes consent for the River Caves Ride. The Applicant argued that this would be superfluous if condition 90 operated to exclude consent for all rides and amusements.

72. Similarly, the Applicant contended that, with respect to condition 94(g), the imposition of an express requirement for a further development application in relation to all rides within the child’s ride area would be superfluous if condition 90 required all rides to be the subject of a further development application.

73. Condition 101, fixing the hours of operation, including for “external rides, amusements”, the Applicant posited, is consistent with the Stage 1 Consent authorising the installation and operation of rides and amusements without the need for a further development consent.

74. With respect to condition 103, the Applicant argued that the various requirements of the Acoustic Plan of Management which must be prepared to accompany any subsequent development application assume that there is already a general authority to install and relocate rides, and that the Acoustic Plan of Management would operate in that context. The Applicant contended that condition 103 must be read with condition 102, which governs noise emanating from internal spaces and buildings, whereas condition 103 governs noise generated externally (including external rides). The Applicant argued that this “plainly” contemplates that consent is being granted for the operation of the rides described in the SEE (including as described at 7.2.6) and a regime for managing noise.

75. The Applicant argued that condition 104, providing a mechanism whereby the director general may restrict the hours of operation of a particular ride, makes no sense unless there is otherwise authority to operate rides. It is highly unlikely, the Applicant said, that such a condition was intended to be enlivened only when there were subsequent consents to operate rides, as such a condition would more naturally be attached to those development consents.

Stage 2: Phase D

76. The Applicant posited that the Phase D SEE addressed the interaction between the various staged consents (EB, p 911):

The DA the subject of this application comprises the Stage 2 detailed design for the car park and cafe/brasserie buildings that were approved as part of the Stage 1 DA. The works included in this application comprise "Phase D" of the overall project.

A separate Stage 2 detailed design DA including all remaining works approved as part of the Stage 1 DA will be submitted to the Minister in the near future (these works will comprise "Phase E" of the project).

77. The Phase D Consent, granted on 21 January 2003, was subject to various conditions, relevantly:

1. Condition 1 provided that the Applicant must comply with the relevant terms and conditions of the Stage 1 Consent, except as amended by the Stage D Consent.

2. Condition 2 required that the development must be carried out in accordance with, inter alia, the Phase D DA and the Phase D SEE.

3. Condition 19, which stated:

Removal and storage of rides

19.   The Removal and storage of the existing rides including “spider”, “ranger”, “tumble bug”, “U drive” and “magic castle” to an alternative location is permitted only for the duration of excavation and construction works. Rides shall be installed to their final locations following completion of construction works.

Note:    The above condition is not intended to prevent the moving, changing, replacing, or relocation of rides from time to time.

4. Condition 21 provided that “outdoor events (including markets, exhibitions or performances) shall be managed within the operational restrictions set by the Stage 1 consent and the Luna Park Reserve Trust.” The note to this condition was “Depending on the nature of the event, other licences or approvals may also be required”.

5. Condition 38 provided that all lighting was to comply with the “Luna Park DA Lighting Strategy” and with relevant Australian Standards, and must “be designed to minimise light spill to adjoining residential”.

Applicant’s submissions on Phase D Consent

78. With respect to condition 19, the Applicant argued that the phrase “following completion of construction works” with respect to the installation of rides to their final locations provides “an inherent flexibility” (Transcript, p 29). The Applicant submitted that notwithstanding the explanatory notice to the Stage D Consent stating that ““Notes” included in the consent notice are advisory and do not form part of the approval”, the assumption underpinning the advice was that the moving, changing, replacing or relocation of rides from time to time is otherwise permissible (and this is not intended to be qualified by the requirement for rides to be installed to their “final locations”).

79. The Applicant further drew the Court’s attention to condition 21, which stated that “outdoor events (including markets, exhibitions or performances) shall be managed within the operational restrictions set by the Stage 1 consent and the Luna Park Reserve Trust.” The note to this condition was “Depending on the nature of the event, other licences or approvals may also be required”. This, the Applicant argued, was further evidence that the Stage 1 Consent “did grant approval to parameters for land use that include the ride and amusement zone” (Transcript, p 30).

80. The Applicant noted condition 38, which dealt with lighting and provided that all lighting was to comply with the “Luna Park DA Lighting Strategy” and with relevant Australian Standards, and must “be designed to minimise light spill to adjoining residential”. The Applicant asserted that this condition “makes reference to the overall strategy, although, [the Applicant] recognise[d] that in the application it constrained any approvals sought to the phase D development area” (Transcript, p 30).

Minister’s submissions on Phase D Consent

81. The Minister contended that the Phase D DA sought consent in respect of specific existing rides, of heritage and non-heritage significance, and the addition of a carousel, that it did not seek consent to replace any of the non-heritage rides with new rides, or to add new rides, from time to time, and that the Phase D Consent did not grant approval in that regard.

Condition 19

82. In response to the Applicant’s contentions in relation to the note to condition 19, the Minister drew the Court’s attention to the Department’s Planning Report, which noted that there had been five submissions objecting to the proposal in the Phase D DA about the removal and storage of rides, perceiving it as “a reduction of Luna Park’s legitimate use as a fun park complex”. The Department, referring to the statement in the Phase D SEE that “these rides are to be stored and relocated elsewhere within the Luna Park entertainment complex”, considered that storage should be “interpreted as the storage of rides during construction works, and is reinforced by the proposed Stage 2 consent condition” (EB, p 2502). It then stated (EB, p 2503):

It is considered that the storage or (sic) rides during construction is acceptable. It is further noted that nothing prevents the changing of rides from time to time in accordance with the typical long term operation of the fun park.

83. The Minister argued that the context of this comment indicated that it was addressing a separate issue to whether rides could be changed from time to time without submitting a development application, being the concern that the removal of rides without replacement would have an impact on the character of the Site, and that this was the context in which the note to condition 19 was drafted.

84. The Minister further submitted that, while the terms of the note accompanying condition 19 referred in addition to the moving, replacing and relocation of rides, it did so in contradistinction to the reference in the condition to the “final location” of rides, indicating that finality in the context of rides in an amusement park did not mean fixed for all time. In any event, the Minister submitted, the note does not form part of the development consent for Phase D (as noted above at [78]).

Stage 2: Phase E

85. Relevant conditions to the Phase E Consent for the purposes of this matter include:

1. condition 1: that except as amended by the Phase E Consent, the applicant was to comply with the Stage 1 Consent;

2. condition 2(a): that development shall be carried out in accordance with the Phase E DA, as described in, relevantly, the Phase E SEE;

3. condition 6: that a landscape plan for the Children’s Play Area, showing inter alia locations of rides, be submitted and approved prior to the issue of the construction certificate for any public domain or landscaping works;

4. condition 13:

Some elements not approved

13. No consent is granted or implied for:

(a) any externally fitted or applied signs other than those shown on the approved drawings or required by a condition;

(b) any fitout or use of the Wild Mouse and Luna Circus buildings other than in accordance with the approved documents; and

(c) the installation of any externally fitted telecommunications devices

Any proposed development involving the above matters shall be the subject of a separate application(s).

5. condition 33: compliance with the Stage 1 Consent, any conditions prescribed under the Liquor Administration Act, and the Acoustic Plan of Management was required.

Applicant’s submissions on Phase E Consent

86. The Applicant described Phase E as ‘the sweeper’ consent, in that it “pick[ed] up whatever was left” (Transcript, p 31).

87. The Applicant noted section 3.0 of the Phase E SEE, which described the “key aspects of the Phase E components of the Luna Park Entertainment Complex” which, it submitted, had been approved in the Stage 1 Consent, including (at EB, p 2609) (emphasis added by Applicant):

Midway, external rides, amusements and external entertainment within entertainment precinct

•   retention of Midway as a traditional street and focus of town park activity and use as the venue for a variety of outdoor performances;

•   at grade ride and amusement zone encompassing the Midway and area to the north of Coney Island (and including zones over the existing Big Dipper slab, Administration Building and Wild Mouse Building);

•   shaded rest areas adjacent to Crystal Palace and the Wild Mouse Buildings (facing water way);

•   hours of operation 10.00 am to 10.00 pm Sunday to Thursday; 10.00 am to 12.00 midnight Friday and Saturday; 10.00 to 12.00 midnight on Public Holidays and days preceding public holidays (except Good Friday and Easter Monday); and 10.00 am to 2.00 am (the following morning) on New Year’s Eve, Australia Day and not more than 4 other occasions per year in conjunction with public events or festivals;

•   existing and new open rides and amusements that do not have heritage significance may be replaced/removed or moved within the ride and amusement zone from time to time; and

•   temporary structures may, from time to time, be erected within the Midway to accommodate street performers, including platforms, awnings, tents and the like (associated with a particular function or event).

…

88. The Applicant argued that the statement “existing and new open rides and amusements that do not have heritage significance may be replaced/removed or moved within the ride and amusement zone from time to time” was not rejected by the Minister in any approval or other document (Transcript, pp 31-32). To the contrary, the Applicant noted, that there were elements of the Phase E SEE which were explicitly not approved, at condition 13:

Some elements not approved

13. No consent is granted or implied for:

(a) any externally fitted or applied signs other than those shown on the approved drawings or required by a condition;

(b) any fitout or use of the Wild Mouse and Luna Circus buildings other than in accordance with the approved documents; and

(c) the installation of any externally fitted telecommunications devices

Any proposed development involving the above matters shall be the subject of a separate application(s).

89. The Applicant drew the Court’s attention to section 4.3 of the Phase E SEE, which, it noted, addressed particular rides and amusements that were to be relocated, either in association with the Phase D works or separately.

90. The Applicant argued that the Phase E Consent (including the Phase E DA and SEE) was the conclusion of the staged development described in the Stage 1 DA and SEE and the Phases D and E DAs and SEEs, all of which were “plainly intended to operate as a package”. It argued that the conditions of each consent reflected this and operated accordingly, that the consents in combination covered the whole of the Luna Park Site and authorised the development described in the three DAs and SEEs. Further, the Applicant said, the conditions of the Phase D Consent and the Phase E Consent did not contemplate any further development applications being necessary to authorise the development contemplated to be carried out at Luna Park.

91. The Applicant submitted that the Phase D Consent and the Phase E Consent were both consistent with the interpretation that the three Approvals were intended to operate together as a package for the evolution of the Luna Park Site.

92. The Applicant further argued that the Phase E SEE was developed on the assumption that consent to introduce new rides within the ride and amusement zone had already been granted in the Stage 1 Consent. This was apparent, the Applicant submitted, from section 3.0 of the Phase E SEE. Consent was sought in the Phase E DA for development in relation to particular specified rides, including the Wild Mouse (a heritage ride), and rides within the children’s ride area.

Minister’s submissions on Phase E Consent

93. The Minister submitted that the Applicant’s interpretation, contained in the Phase E SEE (at EB, pp 2608-2611), of what the Stage 1 Consent granted, is not probative of the proper construction of the Stage 1 Consent. The Minister posited that to the extent that the approval of the Phase E DA incorporated the Phase E SEE, it did so with respect to the specified works to be carried out.

94. The Minister submitted that, in accordance with condition 88 of the Stage 1 Consent, the Phase E DA set out a detailed identification of the layout of the rides within the ride and amusement zone.

95. Of the rides identified in the Phase E SEE, the Minister submitted, only the Wild Mouse and Tango rides were listed in Figure 21 of the Stage 1 SEE as being of heritage significance; however, the Heritage Impact Statement that accompanied the Masterplan DA described the Tumble Bug and Spider as “traditional rides”, as it did with the Dodgem Cars (EB, p 542). The Minister noted that with the exception of the Dodgem Cars, the rides the subject of the Phase E SEE were existing open rides which were not of heritage significance.

93. The Minister took the Court to the Department’s Planning Report with respect to the Phase E DA, in which the Department observed that the main issues relating to the Phase E DA included design issues associated with the location of rides within the children’s play area, and the acoustic impacts of rides (EB, p 3484). The conditions to which the Phase E Consent was subsequently subject included condition 6, which required a Landscape Plan for the children’s play area showing the location of rides and detail of fencing etc “designed to assist in the screening of public views to and from the adjoining State Rail corridor”.

94. The Phase E Consent, at condition 33 required compliance with the recommended noise management strategy and annual review submitted with the Phase E DA. The report including the Noise Management Strategy (EB, p 2915), was prepared on the basis of historical records and computer modelling which incorporated the rides which were identified in the Phase E DA (EB, pp 2923-2925).

95. The Minister submitted that, as with the Phase D Consent, the Phase E Consent did not relevantly add to the scope of the Stage 1 Consent, in relation to the authorising of open rides of non-heritage significance to be installed and operated on the Luna Park site without further development consent. Rather, the Minister argued, the Phase E Consent authorised development to be carried out by reference to drawings which, as required by condition 88 and condition 94(g) of the Stage 1 Consent, showed the specific locations of the rides which the Applicant sought to operate in the area the subject of the Phase E DA. Further, the Minister posited, the Phase E DA did not seek consent to remove, move or replace any of the non-heritage rides, or to add new rides, from time to time, without development consent, and the Phase E Consent did not grant consent for development of that order.

Consideration

99. At the outset of its consideration, the Court confirms that in interpreting the Stage 1 Consent, the Phase D Consent and the Phase E Consent the Court must, with each successive consent, ensure that the task of interpretation is primarily led by the consents themselves. However, with each of these three consents under examination, the consents have expressly stated that each respective development consent is to be in accordance with both the relevant DA and the relevant SEE that led to the grant of each respective consent. Further, with each consent, when reference is made to the relevant SEE, there is express reference to the consultant reports and drawings (plans), as amended to identified dates, which, in effect, were incorporated into and formed part of each SEE, and by reference each Consent. The drafters of the consents adopted the approach that where a condition required specific detail of the parameters or scope of the works being approved, specific incorporation of identified drawings was necessary. Accordingly, with the Court being required to interpret the three consents, it necessarily follows that the Court was required to take into account provisions within the respective DAs, where relevant, and the respective SEEs, where relevant.

100. This approach to the interpretation of the three consents which the Court has adopted is consistent with a succession of authorities. Citing just one, in Bardsley-Smith v Penrith City Council, [2013] NSWCA 200, the Court of Appeal per Sackville AJA at [65]-[69] held as follows:

65. It will be recalled that the primary Judge concluded that the effect of Condition 1 is to incorporate in the Consent both the plans submitted by AMS and the information contained in the SEE accompanying the DA (see at [43] above). The task, as his Honour saw it, was therefore to construe the Consent to determine the purpose or purposes for which the Premises were to be used, taking into account the information in the plans and the SEE.

66.   In taking that approach, his Honour was correct. The general principle is that documents accompanying a development application are not to be taken as incorporated into the consent unless the incorporation is express or by necessary implication: Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213, at 222, per Wilcox J, approved in Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244, at 249, per Sheller JA; at 251-252, per Cole JA; see also Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, at [2]-[3], per Spigelman CJ; at [198]-[199], per Stein JA. The principle reflects the nature of a development consent, which enures for the benefit of subsequent occupiers and owners of the land and thus has an "in rem" quality: Woolworths Ltd v Pallas Newco, at [64]; Winn, at [4]. It would create obvious difficulties if subsequent owners or occupiers had to search a series of documents to ascertain the terms or proper construction of a development consent: Auburn Municipal Council v Szabo (1971) 67 LGRA 427, at 433-434, per Hope J; Woolworths v Campbells Cash and Carry, at 249.

67.   A mere reference in a consent to another document, such as the development application, will not usually be sufficient to incorporate that document into the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, at [45], per Meagher JA; at [157]-[158], per Ward JA; Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439, at [39], per Basten JA (with whom Spigelman CJ and McColl JA agreed). But if the development consent expressly incorporates another document or part of it, the terms of that document will be incorporated into the consent: Auburn Municipal Council v Szabo, at 434.

68.   Condition 1 to the Consent states that the development must be implemented substantially in accordance with:

•   the stamped approved plans;

•   the application form; and

•   any supporting information received with the application.

Condition 1 makes this requirement subject to the other conditions set out in the Consent.

69.   In accordance with the authorities to which I have referred, the plans, the application form and the supporting information received with the application can be taken into account in construing the Consent, provided that they are not inconsistent with the Consent itself. But it is not permissible to go further. In particular, it is not permissible to undertake the task of characterisation by reference to the correspondence between AMS's representative and the Council, nor to the Council's internal deliberations leading to the grant of the Consent.

101. In instances where it is clear on the face of a consent, in this instance the Stage 1 Consent, that the Stage 1 DA and the Stage 1 SEE were ‘amended’ by the imposition of conditions modifying that which was proposed in the DA and the SEE, then the final form of the approved development is that which is reflected in the Consent as specified. So where it was stated in condition 85 of the Stage 1 Consent that: “The Stage 1 development consent must be in accordance with [the Stage 1 DA] and [the Stage 1 SEE] … as amended by the following conditions” it is the package of conditions in the Stage 1 Consent which will prevail over passages in the Stage 1 DA and Stage 1 SEE should any inconsistencies in interpretation arise. In this respect the Court concurs with the Minister’s submissions as summarised above at [44] and [46] of this judgment.

102. These proceedings would have been avoided had there been better, more precise, expression in some of the documents that led to, and which were incorporated by reference into, the Stage 1 Consent. Compounding the ambiguity found in some of the initiating application documents, in particular the Stage 1 SEE, the Stage 1 Consent unfortunately similarly contributed to the resultant uncertainty.

103. In s 4 of the EPA Act, now s 1.5(1), the meaning of development includes ‘the use of land’. With ‘development’ embracing the use of land, in the context of a staged development, as in the case of Luna Park, definitional issues arise. In order to facilitate an understanding of these issues which have had to be examined in this judgment, the Court observes that the dichotomy between the ‘use of land’ and ‘works to enable the use of land’ is likely to be a key consideration when examining staged developments. Of necessity, this dichotomy will be returned to throughout this judgment. In the interests of clarity, the Court has endeavoured to precisely identify this distinction, where required, by referring to ‘use’ or ‘land use’ and ‘development works’ as the appropriate interpretative terms when analysing the various applications and consents in this case. The first terms embrace development when it is limited to the use of land; whereas the latter term embraces development in the works and construction sense.    

104. The Court is satisfied that the successive applications and consents for Luna Park were interlocking parts of a s 80(4) staged development approval process. Apart from the incorporated, Stage 2, Phase C component, the Stage 1 Consent, as the key “Masterplan” consent, essentially was directed at approving proposed land ‘uses’ and associated externalities (such as, citing just one example, access arrangements) rather than the ‘development’ (in the building/construction sense) required for those uses. With the word ‘development’ being defined in s 4 of the EPA Act as including ‘the use of land’, in order to try and ensure the distinction was apparent between that being approved (the uses) and that being foreshadowed for a subsequent stage (development for those uses), the conditions in the Stage 1 Consent had to clarify that “detailed design” would be required to be submitted for consideration in subsequent DAs. This approach was consistent with s 80(4)(b) as it then was.

105. The Court has concluded that the Stage 1 DA sought, and the Stage 1 Consent provided, ‘umbrella’ approval for the use of Luna Park in accordance with “a set of generic parameters within which the anticipated uses of the site are most likely to occur” – to quote from the clearest touchstone leading to this conclusion as found in section 7.2 of the Stage 1 SEE (EB, p 388). The concluding words of the clause reinforce this interpretation: “[t]hese parameters set out basic standards, indicate likely levels and intensity of usage and establish ‘ground rules’ to which uses of the site will conform”.

106. The foundation for ambiguity was laid when section 7.2.6 of the Stage 1 SEE (EB, p 390) stated: “.. all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain further development consent … New open rides and amusements may also be provided within the Ride and Amusement Zone from time to time” (emphasis added). This section can be read as being inconsistent with the introductory words to section 7.2. However, the Court considers that in the context of the proposed staging of consents, section 7.2.6 can be explained as confirming that further approval for land uses, as distinct from development works, would not be required. The Applicant’s submissions supporting a contrary approach are accordingly rejected.

107. In its letter of refusal dated 21 March 2017 the certifying authority Second Respondent, advised that its ground for refusal was that the application for the Flying Carousel could not satisfy cl 145 of the EPA Regulation as, in its opinion, the proposed works cannot be demonstrated to be “not inconsistent” with the development consents as “it is unclear whether the development consent authorises the installation of new rides”. The primary declaration sought by the Applicant is that this refusal is invalid in that it refused an application for a construction certificate for “foundation footings and the installation of an amusement ride known as the Flying Carousel”.

108. Reviewing the various documents before the Court, I have concluded that the Second Respondent quite properly formed the view that the development works, as distinct from the land use, of the proposed Flying Carousel cannot be demonstrated to be not inconsistent with Luna Park’s extant development consents. (This tortuous mode of expression reflects cl 145(1) of the EPA Regulation). The Second Respondent was quite correct to conclude that it was unclear whether the development consent(s), at that point in time, authorised the installation of new rides. The Second Respondent was, entirely properly, focussed on installation (that is, development works), as distinct from land use.

109. Although the Second Respondent’s letter made it clear that it was responding to the application in relation to the Flying Carousel, it is noted the Second Respondent’s refusal was expressed in terms that were more expansive, not specific to the Flying Carousel, but rather queried, generically, whether the “installation of new rides” are authorised by “the” development consent. In this context, the Court is aware that determining the legal position with respect to the Flying Carousel proposal is likely to concurrently provide guidance with respect to future new open ride proposals.

110. As the Second Respondent’s letter variously uses the singular and plural when referring to consent(s), the Court proceeds on the basis invited by the Applicant, that is, to consider three relevant consents, not just one. Those three consents are the Stage 1 Consent, the Phase D Consent and the Phase E Consent.

111. The Applicant, in the second declaration it seeks, specifies the three development consents, in relation to which it requests the Court to declare that the Flying Carousel construction certificate application is not inconsistent. It is with respect to those three consents that I have concluded that there is no basis to find that the necessary development consent for the development works for the Flying Carousel is in place, as distinct from the generic approval of the use of such new open rides, together with certain operational externalities. Therefore, the decision of the Second Respondent was the correct one.

112. With respect to the Stage 1 Consent, after the heading “Part 2 Stage 1 Development Consent Luna Park Entertainment Complex”, the following sub-heading states: “Conditions to be complied with prior to lodgement of a further development application(s)”. This heading confirms, inter alia, two things about the determination of the Stage 1 DA. First, starting with the basics, two trite observations: there has been approval of development subject to conditions; and secondly, it is anticipated that further associated development applications will be forthcoming. The decision I have had to make is to determine what has been approved and what awaits further approval. Without a shadow of doubt, this ‘unfortunate’ disputation which the Court has been called upon to resolve can be entirely attributed to poor drafting of the consents in question.

113. I say ‘unfortunate’ disputation, as the development consents for Luna Park need to be understood within the context of a long and troubled history which led to the Luna Park Act. With that Act, assented to on 29 September 1990, the State Legislature saw fit to express in the Act’s objects (at s 3) what is, in effect, a public interest desire: “The object of this Act is to return the Luna Park site to the people of New South Wales and to ensure that Luna Park and the associated harbour foreshore remain available and accessible for the enjoyment of the people of New South Wales”. Similarly instructive, by way of context, are the objectives of the North Sydney Local Environmental Plan 2001, as it then was, as quoted in the Stage 1 SEE, which in cl 9 sets out the objectives of the Luna Park zone which includes, inter alia, [to] “ensure that development reflects and continues Luna Park’s place in the social history of Sydney”. I have no doubt that all parties to these proceedings share a common desire to see those objectives achieved.

114. As said earlier, the Court accepts that the consent history for Luna Park sets up a staged structure, or approach, to obtaining approvals: first, a “masterplan” generic approval of proposals – in the broad dealing with land use, location and access – and then a second, detailed, level of approval to follow – which focusses more on the specifics and details of actual development and building works. An instance of detail in this second stage approach includes building specifications; another instance is the timing of commencement. For this approach to be workable, that which is approved at the first stage ought not be revisited when the second or detailed stage is under consideration. With a designated land use being approved at the first stage, that use is not intended to be revisited in the second stage. So, in the context of the proposed Flying Carousel (being a new open ride), it fell to the Court to decide whether all (use and works) or just some aspects (say, use and externalities) of such rides had been approved in the first stage, and so ought not be revisited, thereby identifying that which has not been approved, still requiring consent. I am satisfied that the use of Luna Park for a ride such as the proposed Flying Carousel had been approved, however the actual development of it had not – an approach allowable by s 80(4)(b) of the EPA Act.

115. The Court accepts that the consent process at the first stage was intended to give broad ‘use’ approval, inter alia, to the following: “all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain the further development consent” and that “[n]ew open rides and amusements may also be provided within the Ride and Amusement Zone from time to time” (section 7.2.6 of the Stage 1 SEE). The critical question was whether “new open rides and amusements” was a descriptor of just ‘use’ as distinct from development works. If the Court decided it was a descriptor of use, as it has so decided, then the Minister’s case would prevail; if it was descriptor of use and development, then the Applicant’s case would prevail.

116. The Court is satisfied that condition 85, whilst confirming that the development consent is to be in accordance with the Stage 1 DA and the Stage 1 SEE (which clearly foreshadows new open rides and amusements), nevertheless makes it clear the consent is to be subject to specified conditions and those conditions have, where apparent, amended aspect of the incorporated DA and SEE. The conditions then follow and those conditions provide the clarification, in the Court’s view, that it is ‘use’ rather than ‘development works’ that was approved.

117. Importantly, condition 86 lists in (a) to (g) the elements for which consent was granted. The Court is satisfied that the focus of the condition is on land use, the locational parameters of those uses, the hours of operation of those uses and access to those uses, all of which the Court characterises as ‘externalities’. Nowhere in that list of elements is there confirmation that the development works, to enable or facilitate those uses, has received consent.

118. The combination of conditions 87, 88 and 90 confirm, in the Court’s opinion, that further development consent is required for the actual development component of a proposal. Condition 87 makes it clear that there are further development applications “in accordance with the stage 1 development consent” anticipated and that there ought not be an assumption that such a subsequent DA “will necessarily be acceptable”, rather it will require “a full and thorough assessment under the provisions of the EPA Act”. Condition 88 states that “[a] detailed design of layout rides shall be the subject of a separate development application”. Then condition 90 makes it even clearer (when pared down to its essential words) : “No …. construction or the carrying out of any development (including buildings ….., rides and amusements, …) shall commence in relation to this stage 1 development consent until a further development application(s) is approved and a construction certificate issued in respect of the buildings and works” (emphasis added).

101. Counsel for the Applicant proffered an interpretation that condition 90 merely required further development applications, following the Stage 1 Consent, limited to the approval of the timing of the commencement of works. The argument focussed on the words “shall commence”, saying those words were indicative of an approach that all else was in place – approval of the proposed land uses (e.g. amusement rides) and approval of the development works enabling those uses – leaving just the obtaining of a construction certificate as the final step once the timing to embark upon that final step is approved by the development applications and consents envisaged in condition 90.

102. With due respect to the Applicant’s counsel’s effort to argue that condition 90 addresses only the need for further approvals addressing ‘timing’, that is, deferred commencements, the Court considers such an interpretation would be inconsistent with both conditions 87 and 88. Condition 87 confirms that with subsequent development applications “a full and thorough assessment under the provisions of the EPA Act will be required at the time”. As with other Stage 2 “Phase” applications, such as D and E, it is clear that a full SEE would be required to give meaning to that reference to a full and thorough assessment. If all that remains after the Stage 1 Consent, in the Applicant’s view, is a development application and approval for commencement, surely a full SEE focussed on the implication of commencement at one point in time, as distinct from another point in time, would be somewhat farcical. Therefore the SEE approach anticipated and required by condition 87 must be for more than determining timings, it must surely be focussed on the detailed design of actual development.

103. The inconsistency of the Applicant’s interpretation of condition 90 relating to timings only (deferred commencement), is also clear with respect to condition 88. Accepting that the consent for the use of rides and amusements was being granted in the Stage 1 Consent, condition 88 confirms that “A detailed design of layout rides shall be the subject of a separate development application”. The words ‘development application’ cannot be meant to refer simply to the need to obtain a construction certificate. Further, the second sentence in condition 88, referring as it does to ‘rides’ plural, cannot be taken to be a reference to the singular ‘River Caves Ride’, rather it is a reference to rides generally that may be located in accordance with the highly schematic sketch plan MDA09 Luna Park Concept Plan (noting however that condition 88 confirms that this plan itself has not been given final approval).

104. In essence, the two staged consent arrangement was directed at dealing with the proposed uses and associated primary externalities in the first stage of the approval process: that is, identifying the acceptable land uses (such as new modern rides); then identifying the acceptable location for these uses, by referring to building envelopes and the public domain plan (for example that shown in drawing MDA 06); then determining acceptable access routes dealing with the locational aspects for both pedestrians and vehicles; and then finally the hours for such land use activities. So when any subsequent development application was lodged, it was no longer in contention whether the use of the designated areas could be used for, say, new open rides and amusements. So with the Stage 1 Consent, Luna Park management had the assurance and certainty that new rides would be approved, provided the detailed development aspects underwent subsequent full and thorough assessment. Therefore the Court is satisfied that it was always within contemplation that “[t]he detailed design of subsequent phases will be the subject of further Stage 2 DAs to the Minister”.

105. None of the Applicant’s submissions with respect to the interpretation of condition 90 are persuasive. With reference to the Applicant’s supplementary submissions regarding this Condition, the flaw in its approach was a failure to understand that the Stage 1 Consent could, or did, permit land uses without approving the works enabling those uses, without undermining the operational externalities also addressed in that Consent. Whilst the Court observes that the language of the Stage 1 Consent could have been tighter in order to lessen ambiguity, reading the conditions in that Consent as a package leaves no doubt in the Court’s mind. The Court does not agree that the listing of some further required development applications in condition 91 for some identified components obviates the need for development DAs for other unspecified components, such as rides and amusements (which would include the proposed Flying Carousel).

106. Further, the Applicants submissions as to how one should read condition 90 in the context of conditions 101, 103 and 104 fails to appreciate that the intention and operative effect of those conditions is not negated if the Stage 1 Consent was limited to providing consent for ‘land uses’ but not development works. Yes, permission was given for the location in specific building envelopes so as to facilitate the operation of, inter alia, rides and amusements, but not for the actual building of them without further development applications and consents. The Court does not accept that any of the assumptions inherent in those conditions are undermined by this interpretation. In order for each of those conditions to be operative, actual installation of, say rides, is not necessary, as all that was required was for the proposed uses to be approved. As for the assertion that words in conditions 88 and 94(g) may be superfluous if the Applicant’s interpretation of condition 90 was not correct, in the instance of the River Caves Ride it may be that that particular ride, being specifically highlighted and therefore an exception, received neither use nor works consent via the Stage 1 Consent. Further, more generally, superfluous words may be an instance of repetitive drafting (admittedly undesirable, albeit frequently encountered). Alternatively, the drafter may have been attempting to adopt a ‘belts and braces’ approach with respect to certain components.

107. Having concluded, contrary to the Applicant’s submissions, that the Stage 1 Consent did not provide the requisite development consent for the Flying Carousel, the Court must now move to a close examination of the Phase D and Phase E Consents to determine whether either of these could be the required consent for the Flying Carousel’s development works. If either of these Consents were intended to embrace rides and amusements such as the proposed Flying Carousel, then there would be consistency with the Stage 1 Consent staged approval approach, with these later Consents being instances of the further development applications and consents for development works, as distinct from use, as envisaged in conditions 87, 88 and 90. In summary, the Court has concluded that, although these later Consents are consistent with the staged approval approach, the detail of what they approved does not embrace the Flying Carousel.

Stage 2: Phase D Consent

126. In circumstances where the Stage 1 Consent provided no approval for the development (works) of the Flying Carousel, it follows that if such consent were to be found, it would be found in the Phase D Consent or the Phase E Consent. The Court now turns to the Phase D Consent which is headed “Phase D: Car park and Café/Brasserie”. First, it is to be noted that in the introduction to the Phase D SEE, after describing what was approved in the Stage 1 Consent, in which the distinction between the (Stage 2) Phase C ‘detailed design’ for the strata office building is clearly highlighted as a distinction to the ‘Masterplan’ approved proposed land uses and associated externalities. With respect to the latter in the first paragraph on the second page of the Stage D SEE (EB, p 912), it is unambiguously stated: “Part 2 of Staged Development Consent 154-06-01 is referred to herein as the ‘Stage 1 DA’. Separate DAs are required in relation to the detailed design of the development approved as part of the Stage 1 DA”. This is just one instance of where the Applicant, in its own documentation, did not envisage or argue at that point in time that the Stage 1 Consent embraced consent for both the ‘use’ and the ‘development works’ of subsequent phases – such as rides and amusements – accepting, indeed proposing, that detailed design for development would be the subject of further or subsequent DAs.

127. Although the key words in the heading, identifying this Phase D Consent are ‘car park and café/brasserie’, a careful reading of the Phase D SEE reveals that it included an examination of more elements of the overall Luna Park Entertainment Complex being submitted for approval. Amongst those other elements included in the proposed Phase D works are references to rides and amusements, including a reference to a ‘new Carousel’.

128. With respect to the ‘new Carousel’ referred to in the Phase D SEE, it is necessary to clarify at the outset that this is not the ride identified as the ‘Flying Carousel’ which is the subject of these proceedings. This point had to be clarified during the hearing as the documentation variously refers to a ‘Carousel’ in the context of the children’s playground, which is evidently a mini version of a carousel, and another ride (presumably of an adult-scale) referred to as the ‘new Carousel’. This following passage from the transcript confirms the correct position (p 27(22-43)) (emphasis added):

GALASSO: The existing location of these rides is shown on the site survey plan. They're to be stored and relocated elsewhere within the Luna Park entertainment complex. The existing Rotor is to be relocated to adjacent to the western façade of the proposed car park building. A new carousel ride is also to be positioned in this location. So this is the recognition of the need to move existing rides, and move them elsewhere, which was part of the formulation and the contemplation in the original consent.

HIS HONOUR: Is that new carousel ride that they refer to there, the Flying Carousel that's the subject matter. …..

GALASSO: No.

HIS HONOUR: It's not?

GALASSO: No, no. One's the carousel. So, the carousel is the one with the old horses.

HIS HONOUR: The traditional.

GALASSO: The traditional carousel lollipop organ grinder ride. The Flying Carousel is a contemporary ride that's a separate thing altogether.

129. With respect to the Phase D Consent and the Phase D SEE, the Court can find nothing in the documentation that suggests that Phase D provided the requisite development consent for the proposed Flying Carousel. This Stage 2 Consent, and the documentation which led to it, support an interpretation which confirms the staged consent procedure adopted for the LPEC.

130. Condition 1 in the Phase D Consent clearly confirms the intention, indeed necessity, to ensure compliance with the already issued Stage 1 Consent for the redevelopment of the LPEC as a whole. Reinforcing the interpretation that the Phase D Consent was focused on approving detailed works/construction, condition 2 then lists the various plans and documents which provide the precise details, by reference to detailed drawings, of that which had already been approved – but limited to land use - pursuant to the Stage 1 Consent. In short, land use approval for the café/brasserie and car park is found in Stage 1 Consent (for instance, see condition 91) whilst approval for development works is found in the Phase D Consent.

131. Critically, there is absent from the Phase D Consent any particularity regarding development works of a ride or amusement identified by name or description as the Flying Carousel. There is no doubt that the use of the LPEC for new rides and amusements was approved by the Stage 1 Consent with generic references, but the document did not approve the associated works/construction.

132. First, in the chapeau to section 4.0 of the Phase D SEE, the words “[t]his Stage 2 detailed design DA seeks development consent for the following Phase D works” clarify what is included in that development application (EB, p 922). The sixth dot item materially states: “relocation of the existing “rotor” ride (currently located to the north of the existing 2 storey Luna Park administration building) to adjacent to the western façade of the proposed car park building and provision of a new Carousel ride in this location”. Secondly, in section 4.2 (EB, p 923), under the heading “Removal/relocation of rides/amusements”, proposals to remove five identified existing rides/amusements from their then extant location (which is explained as being shown on a Site Survey Plan prepared by Hassell Pty Ltd – being Appendix B to the Phase D SEE) with it being proposed to store these rides and for them to be “relocated elsewhere within Luna Park”. Repeating the explanation in section 4.0, section 4.2 then explains that the existing “rotor” which was then located to the north of the existing Luna Park administration building is to be relocated to [a site] adjacent to the western façade of the proposed car park building. This section 4.2 then states that “a new Carousel ride is also to be positioned in this location” – which the Court takes to be a reference to the area identified for relocating the rotor, that is, adjacent to the western façade of the proposed car park building.

133. Here we find specific rides mentioned, with requisite details provided, yet these references to the rotor and the ‘new Carousel’ do not extend to new rides and amusements and, most materially, not to the Flying Carousel the subject of these proceedings. These are the sections of the Phase D Consent where one might expect to see the inclusion of the Flying Carousel if it is embraced by the Phase D Consent. Silence on the subject is instructive. Further, in circumstances where detailed designs of other elements of the LPEC are provided by incorporation of listed drawings (condition 2) (EB, p 2564), the absence of any drawings relevant to a proposal for a Flying Carousel, is also instructive.

134. Focussing on the Phase D Consent in the context of the Applicant’s submissions on condition 19, this condition identified by name specific extant rides which are to be removed, stored and relocated. Materially, it does not refer to new open rides which would conceptually include the Flying Carousel. Where more general words referring to ‘rides’ appear, they are in a Note to the condition and so ought not to be taken to be referring to more than the nominated rides referred to in the condition itself.

135. The Court has accepted that the “new Carousel ride” as discussed in sections 4.0 and 4.2 in the Phase D SEE is different to the “Carousel” mentioned at various stages in the documentation being proposed for the children’s playground which appears, unsurprisingly, to be likely to be characterised by smaller versions of rides, such as the specified “Mini Ferris Wheel” as distinct from the “Ferris Wheel” referred to elsewhere in the documentation. Accordingly, the Court presumes that the “Carousel” proposed for the children’s playground is mini version of such a ride and that the “new Carousel” discussed elsewhere in the documentation is different. In neither instance are these other carousels to be taken for the “Flying Carousel” the subject of these Class 4 proceedings.

Stage 2: Phase E Consent

136. An analysis of the Phase E Consent confirms that it provides consent for the detailed design of a number of components within the LPEC. It is revealed, particularly by the incorporation of a multiplicity of drawings for proposed components, that the design details are provided for all that which comes within Phase E. So we see, inter alia, references to the Dodgem Building, the Luna Circus and the Wild Mouse, but we do not find reference to new open rides and amusements of non-heritage significance. Critically, we do not find the Flying Carousel in any of Phase E documentation, either specifically or generically.

137. For completeness, the Court notes that the Phase E Consent also addresses a range of ‘externality’ issues such as construction management, extending beyond the ‘externalities’ measures addressed in the Stage 1 Consent. (The Stage 2 Phase D Consent similarly included such provisions). As was confirmed by the Court of Appeal in Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135, a failure to consider and provide for construction-related impacts at some stage in a sequential approval process can be fatal to a staged development consent. In contrast to the circumstances in the Bay Simmer case, with respect to the staged approval process for the LPEC it was clear from the outset that a staged or sequential development was being proposed and that the externalities were addressed at a ‘broad parameter’ level with the Stage 1 Consent and at a more particular or specific level with subsequent Stage 2 “Phase” consents.

138. Corroboration of this interpretation is found in Appendix A to the Phase E SEE (EB, p 2674), prepared by JBA Urban Planning Consultants Pty Ltd, and titled “Stage 1 Development Consent Compliance Matrix”. In Table 1 of Appendix A, opposite condition 88, in the third column, the distinction between the two carousels and the Phase E and Phase D works are identified. The words in column 3 state: “The detailed Stage 2 DA for Phase E works includes a detailed layout of rides including the …Carousel”. Thirteen rides are identified, many of which are subsequently shown as proposals for the children’s playground. The column 3 words continue: “The detailed layout of the “Rotor”, “Ferris Wheel” and new “Carousel” rides form part of the Phase D works which are the subject of a separate application”.

139. This Appendix A provides further enlightenment via the response in column 3 to the Stage 1 Consent condition 90 – although again, unhelpfully, masked, by obfuscation. It will be recalled from the Court’s description above that condition 90 in the Stage 1 Consent states: “No excavation, demolition or construction or the carrying out of any development (including all buildings, light-weight structures, rides and amusements, and landscaping) shall commence in relation to Stage 1 development consent until a further development application(s) is approved and a construction certificate issued in respect of the buildings and works” (emphasis added). Masking the critical relevance, in column 2 the reminder that the word “development” in condition 90 relates to rides and amusements is omitted as none of the words within the brackets of the Stage 1 Consent condition 90 are set out. However, be that as it may, the response of the author of Appendix A is instructive in that in column 3 it is stated “Noted. This Phase E application satisfies this condition”. It is presumed that the assertion of satisfaction relates to Phase E itself being an instance of a further development application addressing the development approval requirement.

140. The Court rejects the Applicant’s propositions as to how it should interpret Condition 13 in the Phase E Consent, in the context of the Phase E SEE passage at EB p 2609 (para [87] above) that refers to extant rides and amusements. Merely because some components are excluded from consent by virtue of condition 13, does not meant that all else is approved. The paramount requirement of the Stage 1 Consent was that in subsequent Stage 2 phases, design details must be the subject of further development applications. I rhetorically ask: where are the design details of new open rides such as the Flying Carousel in the Phase E documentation? They do not exist.

141. However, the fundamental point is that irrespective of assertions that the Phase E application satisfies the staged development approval process, it nevertheless can only extend to that which it embraces. If Phase E fell short of including the requisite specific design details sufficient for development consent for new open rides and amusements of non-heritage significance, then it fails as an instrument of consent for such rides.

Overall Conclusion

142. In such circumstances, it is not a surprise that the principal certifying authority, the Second Respondent, formed the view that the Flying Carousel proposal “cannot be demonstrated as not inconsistent with the development consents as it was unclear whether the development consents authorise the installation of new rides” – hence the Refusal Decision.

143. In considering how to interpret the Stage 1 DA, the meaning of some parts of the Stage 1 SEE are clear, in contradistinction to other parts which are mired by contradiction. The SEE’s introduction (EB, p 343-44), after referring to the initial staged (masterplan) development approved on 23 October 2000 in DA 772/00, states that several core aspects of the proposal were subject to conditions or had been excluded from DA 772/00. The document then confirms; “[T]he proposal described in this report addresses these conditions and exclusions and seeks Minister’s consent for a revised Stage 1 Masterplan DA”. …Consent is now sought for a ‘staged consent’ pursuant to s 80(4) of the EPA Act. The staged DA comprises two parts”. Relevantly, the mode of describing the two parts are very, and tellingly, different. The first part, identified as “Stage 1 Masterplan DA”, commences with the words “for the following parameters”. Seven listed items follow, including “land uses” (emphasis added). By telling contrast, the second part, identified as “Stage 2 DA” commences with the words “for the detailed design of” and then identifies Phase C – Strata office building (Glen Street). So from the outset, we have an apparent distinction between ‘parameters’ in the first instance and ‘detailed design’ in the second. The very next sentence is a further touchstone: “the detailed design of subsequent phases will be the subject of further Stage 2 DAs to the Minister”.

144. The Court concludes that from those passages of the Stage 1 SEE there is an indication that a dual approach had been adopted: first, for some components, kept at the general “parameter” level, issues regarding uses to be permitted and various related externalities, like hours of operation, access etc were being approved. Secondly, with respect to other components where greater design details were being proffered, a different pathway was being followed, that is actual approval for use and development. This second pathway was to apply to the proposed office building in Glen Street when the Stage 1 Consent was given.

145. So given this dual approach being pursued in the Stage 1 SEE, the Court examined the question whether the Stage 1 Consent reflected what was sought, or did it deviate and reflect approval of a different approach? The Court has concluded that the Stage 1 Consent only encapsulated approval for that which was included in detailed design documentation, being the Stage 2 Phase C office building. Everything else approved were the “proposed land uses” (condition 86(a) of the Stage 1 Consent) and operational externalities, being those components listed in condition 86(b) to (g).

146. The Applicant sought to convince the Court that the Stage 1 Consent approved both land uses and the development works required for those uses. Further, the Applicant sought to convince the Court that “further development applications” referred to in condition 90 were only to be development applications identifying dates for the commencement of the uses once developed. The Court is satisfied that such an interpretation is erroneous. The Court does not accept that the Stage 1 Consent approved any development works, save for that identified in the paired, Stage 2, Phase C office building considered concurrently. The approach taken with respect to Phase C is itself indicative of the fact that there was always intended to be a sequential pathway. Approval for the identified land uses first (together with associated operational aspects); then consideration of detailed designs for the development works of those uses in staged phases; then, once consent is in place for each development component, the Applicant could proceed to obtain a construction certificate.

147. It might be asked by an observer of this sequential process, “what then was the purpose of the Stage 1 exercise if so much remained for subsequent approval?” Was there utility in this process? The answer the Court presumes is partly founded in the history of the Luna Park site. Cognizant of earlier court cases regarding the implications of the operations of Luna Park: Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995); and Street v Luna Park Sydney Pty Limited [2009] NSWSC 1, the Court can see in the process a rationale for resolving, first in time, the “uses” of Luna Park. This staged process resolves “up front” acceptable land uses, such as rides and amusements, being carried on at designated appropriate locations. This meant that prior to moving to the more expensive stages of preparing detailed designs for development, the staged approval process would have enabled the Applicant to gain the assurance – effectively a guarantee – that its proposed land uses were acceptable, and with the ‘externalities’ also addressed the associated interface issues with the broader neighbouring community were also “put to bed”. Externalities such as locational aspects were resolved via building envelopes; parking and access issues were resolved; and hours of operation were resolved. All these resolutions, in effect, would be intended to arrive at acceptable operational conditions in relation to external impacts, such as noise. In short, there was logic in the staged approval process established for Luna Park.

148. The unhappy drafting of many of the application documents and then the issued Consents paid too little regard to the invariable need to be clear, to avoid ambiguity. Quite possibly the “rot set in” when despite the clarity found in the section 1 introduction of the Stage 1 SEE (EB, p 343-4) wherein it was clearly stated that “the detailed design of subsequent phases will be the subject of further Stage 2 DAs to the Minister”, section 7.2.6 obfuscated the proposal by stating (EB, p 390) “..all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain the further development consent. …New open rides and amusements may also be provided within the Ride and Amusement Zone from time to time. This will allow flexibility in the location of rides and the ongoing evolution of Luna Park”.

149. The Court has concluded that the only sense to be made of these inconsistencies is to interpret the approved “development” the focus of the Stage 1 Consent as being the approval of the use of land as distinct from the development works to enable that land use. The Court sees the correlation between the Stage 1 Masterplan parameters in the Stage 1 SEE (EB, p 343) and condition 86(a) of the Stage 1 Consent (EB, p 873) as confirmation of the correctness of this interpretation. Sense prevails if the confusing words in section 7.2.6 of the Stage 1 SEE are interpreted as an instance of the word ‘development’ being intended to be a reference to the subset of development ‘use of land’. (This conclusion is, of course, aside from the clearly identified exception bound up in the Stage 1 Consent, being the Stage 2 Phase C consent component, which indisputably embraced both use and development works. That exception merely confirms the interpretation favoured by the Court).

150. The early days of town planning in Australia had generally proceeded on the basis of a clear distinction between permits/consent for use of land and permits/consent for the development of land. Perhaps once the definition of ‘development’ appeared in legislation defined as it now is in s 4 of the EPA Act (now s 1.5(1)), wherein the meaning of development included ‘the use of land’, there arose a heightened responsibility on those applying for, and those granting, consents, to ensure that in all documentation it was unambiguously clarified which component of development was being approved. This is particularly important with respect to the dichotomy between the use of land and works to enable that use of land which can arise in instances of staged development consents.

151. In this case, the Court has been required to examine two further Consents: the Phase D Consent and the Phase E Consent. As we know from the Stage 1 SEE (EB, p 344), the development component of subsequent stages – the Stage 2 phases – were intended to be dealt with in subsequent DAs as the words unambiguously foretold: “the detailed design of subsequent phases will be the subject of further Stage 2 DAs to the Minister”. Clearly, both the Phase D and Phase E DAs were of that character: proposals encapsulating detailed design for development. The land uses with respect to each of these Stage 2 Phases had already been approved within the broad “use” parameters of the Stage 1 Consent, so what was being approved in these Stage 2 Phases was detailed design for development of the approved “uses”. Characterising the proposed Flying Carousel as being within the “use” genre of “rides and amusements” the question was whether either of the Phase D or Phase E embraced the “detailed design” of the development works component of the approved uses. This question required a close examination of the documentation associated with these Phases: the respective DAs, SEEs and then the granted Consents. As confirmed earlier, the Court is satisfied that neither of these Consents permitted the development works required to construct the proposed Flying Carousel. In short, new rides and amusements, albeit with such land uses already approved within the Stage 1 Consent, require their detailed design to be the subject of Stage 2 DAs so as to obtain requisite Stage 2 consents.

152. In conclusion, a proper construction of the Stage 1 Consent confirms that the Consent did not confer the flexibility with respect to open rides of non-heritage significance that the Applicant sought. The Second Respondent was correct to consider the application did not satisfy cl 145(1)(a) of the EPA Regulation as the proposed works could not be demonstrated as ‘not inconsistent’ with the Stage 1 Consent. In short, the Stage 1 Consent still required a further development application to be lodged and approved by the issue of a further consent for actual works. Until such further consent was granted, it could not be demonstrated that the proposed works were not inconsistent. A lack of inconsistency, as required by cl 145(1)(a) of the EPA Regulation, could have been demonstrated if a further consent had been granted. If the Stage 2 Phase D or the Phase E Consents had embraced the Flying Carousel then the missing piece in the consent jigsaw would have provided the ‘lack of inconsistency’ required by the Second Respondent. The Court is satisfied that neither the Phase D nor Phase E Consents were focussed on approving the proposed Flying Carousel. Accordingly, absent that further consent, inconsistency was likely, therefore the Second Respondent’s refusal was correct.

153. Consequently, the Court declines to make the declarations and orders sought by the Applicant in its Summons.

Costs

154. In the circumstances where the Applicant has been entirely unsuccessful on its Summons, it is appropriate that the ordinary course be followed. The Applicant shall pay to the First Respondent the costs incurred by the First Respondent in the proceedings, on the ordinary basis, such costs to be paid within sixty days.

Orders

155. The Court orders:

1. The proceedings are dismissed.

2. The costs of the First Respondent shall be paid by the Applicant, as assessed or agreed, on the ordinary basis, with such payment to be made within sixty days.

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Decision last updated: 20 July 2018