Street v Luna Park Sydney Pty Ltd - [2009] NSWSC 1

No judgment structure available for this case.

Reported Decision:
223 FLR 125

New South Wales

Supreme Court

CITATION: Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2009] NSWSC 1

HEARING DATE(S): 4, 5, 7, 8, 12, 13, 14, 15, 25, 26, 27, 29 June, 15, 16, 17, 23, 24, 25, 26, 29, 30, 31 October, 1, 2 November, 3, 4, 5, 7, 13 December 2007

JUDGMENT DATE :
6 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: As to the Crown Lands claim: Crown Lands Act, s 114(2), is directed to the relevant Reserve Trust and not an operator or occupier. The Plan of Management does not exclude the operation of adult thrill rides in the Northern Extension.
As to the misrepresentation claims: the 2001 DA and the 2002 DA were not misleading or deceptive. Metro Edgley’s silence as to its intention to locate adult thrill rides in the Northern Extension became misleading on 13 May 2002. Metro Edgley’s relevant conduct was not “in trade and commerce”, and Metro Edgley owed the plaintiffs no relevant duty of care. Rejection of the Trade Practices claim against Metro Edgley is dispositive of the accessorial liability claims against Mr Hearne and Mr Doughty. In any event, injunctive relief would be refused on discretionary grounds.
In the case of Mr Billington and Ms Mather, the impugned conduct was not a causative factor in their decision to purchase their property, but even if it was they have not proved that they paid more than true market value so as to suffer damage.
In the case of Glen Eight, even if the impugned conduct was a causative factor in the decision to proceed with a residential conversion, disclosure on or after 13 May 2002 of an intention to locate adult thrill rides in the Northern Extension would not have deterred Glen Eight from proceeding with the conversion, and in any event damage has not been established, as it has not been proved that a commercial refurbishment would have been more beneficial than the residential conversion.
Order that the proceedings be dismissed.

CATCHWORDS: CROWN LANDS – Crown Reserves - whether Plan of Management binds only Reserve Trust or also binds occupiers – construction of Luna Park Plan of Management – standing of adjacent occupiers to claim injunction to enforce Plan of Management – discretionary considerations - TRADE PRACTICES – whether conduct was misleading and deceptive – whether conduct was “in trade and commerce” – whether conduct was causative factor in the relevant decision of the plaintiffs – whether injunctive relief should be refused on discretionary grounds – damages - NEGLIGENT MISREPRESENTATION – economic loss- whether developer owes purchasers or developers of adjoining land duty of care to avoid economic loss occasioned by inaccurate statements in development applications – whether breach of any such duty – whether any misrepresentation had causative effect on a relevant decision by a plaintiff – causation

LEGISLATION CITED: (CTH) Trade Practices Act 1974, ss 52, 80, 82, 87
(NSW) Crown Lands Act 1989, Part 5, ss 92, 114
(NSW) Environmental Planning & Assessment Act 1979, ss 28, 76, 79, 80
(NSW) Luna Park Site Act 1990
(NSW) Luna Park Site Amendment (Noise Control) Act 2005
(NSW) Luna Park Site Amendment Act 1997
North Sydney Local Environment Plan 2001, cl 42

CATEGORY: Principal judgment

CASES CITED: Australian Competition & Consumer Commission (ACCC) v Z-Tek Computer Pty Ltd (1997) 78 FCR 197
Barnes v Hay (1988) 12 NSWLR 337
Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Boyce v Paddington Borough Council [1903] 1 Ch 109
Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Henville v Walker (2001) 206 CLR 459
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124
Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017, 51,317
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054
Lam v Ausintel Investments Aust Pty Ltd (1989) 97 FLR 458; (1990) 12 ATPR 40-990
Lismore City Council v Stewart (1989) 18 NSWLR 718
Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268
OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500
Plimer v Roberts (1997) 80 FCR 303
San Sebastian Properties Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340
Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995)
Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552
Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 594
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 696
Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422
Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330
Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514
Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

PARTIES: Joan Street (first plaintiff)
Ros Dwyer (second plaintiff)
Michael Hesse (third plaintiff)
Glen Eight Pty Ltd (fourth plaintiff)
Susan Hesse (fifth plaintiff)
Robert Simkin (sixth plaintiff)
Glen Frederick Billington (seventh plaintiff)
Fiona Jeanette Billington (eighth plaintiff)
Luna Park Sydney Pty Ltd (first defendant)
Metro Edgley Pty Ltd (second defendant)
Peter Hearne (third defendant)
Warwick Doughty (fourth defendant)

FILE NUMBER(S): SC 2267/05

COUNSEL: Mr T Alexis SC w Ms P M Sibtain (plaintiffs)
Mr T G Parker SC w Mr J A Potts (first & second defendants)
Mr J R Clarke (third & fourth defendants)

SOLICITORS: Wise Legal (plaintiffs)
Clayton Utz (first & second defendants)
Esplins (third & fourth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 6 February, 2009

2267/05 Joan Paula Street & ors v Luna Park Sydney Pty Limited & ors

JUDGMENT

1.0 INTRODUCTION

1 HIS HONOUR: Since 1935, the clown face of Luna Park has been a feature of Milsons Point on the northern shores of Sydney Harbour. An amusement park has operated there ever since, albeit with some interruptions in the last 30 years. The park closed following the notorious ghost train fire in 1979. It reopened in 1981, to close again in 1988. Following its vesting in the Crown in 1990, it opened again as an amusement park in January 1995, when its attractions included a roller-coaster known as the “Big Dipper”, the noise generated by which so annoyed residents in the surrounding area that they brought proceedings to restrain it as a nuisance, which concluded with a judgment that restricted the operating times of the Big Dipper, with the consequence that the amusement park became commercially unviable, and operations ceased once again in February 1996.

2 On 12 March 1998, pursuant to (NSW) Crown Lands Act 1989, s 114, the Minister for Land & Water Conservation adopted a new plan of management in respect of the site. On 4 July 1999, following a competitive process, the second defendant Metro Edgley Pty Limited (“Metro Edgley”) was selected to redevelop Luna Park, and it then embarked on the process of obtaining Development Approval through a staged Development Application (“DA”) process, involving a Masterplan (Stage 1) DA lodged on 22 June 2001 and approved on 31 January 2002 (“the 2001 DA”), and subsequent Stage 2 DAs for the detail of various aspects (phases) of the development, including for Phase E (Stage 2 Detailed Design of the Luna Park Entertainment Complex)) lodged on 21 June 2002, to which the Minister gave consent on 21 January 2003 (“the 2002 DA”).

3 After the redevelopment, Luna Park reopened for trading on 4 April 2004. From 2 August 2004, the first defendant Luna Park Sydney Pty Limited (“LPS”) – in which Metro Edgley holds 50% of the shares – has occupied the Luna Park site and operated the amusement park and the rides and amusements, pursuant to arrangements between it and Metro Edgley. The third defendant Mr Peter Hearne and the fourth defendant Mr Warwick Doughty are currently directors of LPS, and were until 21 November 2002 directors of Metro Edgley.

4 The plaintiffs are owners and/or occupiers of properties in the vicinity of Luna Park (save that Mr and Mrs Hesse, who formerly owned and occupied such a property, have since sold and moved). Originally, on 5 April 2005, Ms Street, Ms Dwyer, Mr Hesse and Glen Eight Pty Ltd, instituted these proceedings against LPS, the operator of Luna Park, claiming injunctive relief and damages for nuisance, in respect of the emission of noise from certain thrill rides at Luna Park – both mechanical noise emanating from the machinery, and screaming from the patrons. Mrs Hesse, Mr Simkin, Mr Billington and Ms Mather were subsequently added as plaintiffs. The proceedings were set down for hearing to commence on 31 October 2005. However, on 19 October 2005, the (NSW) Luna Park Site Amendment (Noise Control) Act 2005 (“the Noise Amendment Act”) commenced, inserting in the (NSW) Luna Park Site Act 1990 provisions to the effect that the emission of noise from the Luna Park site did not and does not constitute a public or private nuisance. The hearing was thereupon vacated, and the plaintiffs reformulated their claim to join Metro Edgley, and to allege, in respect of the location and operation of thrill rides – in particular, but not only, one called “the Ranger” – in an area north of Coney Island, which had been added to the park site in December 1994 (“the Northern Extension”):

(1) contravention by LPS of Crown Lands Act , s 114 (which requires that land to which it applies be used only in accordance with a plan of management under that section) (“the Crown Lands claim”);

(2) misleading and deceptive conduct in contravention of (CTH) Trade Practices Act 1974, s 52, and negligent misrepresentation, by Metro Edgley, in connection with the 2001 DA and 2002 DA (“the Misrepresentation claims”); and
(3) negligent infliction of economic loss by both LPS and Metro Edgley on the owners of adjacent properties (“the Negligence claim”).

5 In interlocutory proceedings [Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230], it was held that although the Crown Lands claim was not barred by s 19A(1) of the Noise Amendment Act, the Negligence claim was not maintainable by reason of that section, and it was struck out. The plaintiffs were also permitted to join as additional defendants Mr Hearne and Mr Doughty, alleging that they were “persons involved” in the misleading and deceptive conduct of Metro Edgley, and claiming against them injunctive relief to require them to exercise their powers as directors of LPS so as to prevent operation of the relevant thrill rides.

6 The preparation for trial of the reformulated case, which included various interlocutory disputes about discovery and security for costs, occupied the parties for eighteen months, until the final hearing commenced on 4 June 2007. The trial itself occupied a total of 27 hearing days over a period of six months – twelve during June 2007, and another eleven (in two separate tranches) in October/November, concluding with a further four days in December 2007. In the subsequent preparation of this judgment, the comprehensive written and oral submissions of Mr Alexis SC and Ms Sibtain for the plaintiffs, Mr T G R Parker SC and Mr Potts for Metro Edgley and LPS, and Mr J R Clarke for Mr Hearne and Mr Doughty, have all been of great assistance.

7 The plaintiffs contend:

· That by locating and operating “adult thrill rides” in the Northern Extension, LPS is acting contrary to the 1998 Plan of Management and thereby contravening Crown Lands Act , s 114(2) (“the Crown Lands Act claim”). On this basis, all plaintiffs (other than Mr and Mrs Hesse, who no longer reside near Luna Park) seek a permanent injunction restraining LPS from operating thrill rides in the Northern Extension; and

Trade Practices Act

8 Broadly, the defendants contend:

· That the Crown Lands Act claim should fail: first , because the operation of rides in the Northern Extension is not a contravention by LPS of s 114(2); secondly , because the plaintiffs have no standing to claim this relief; and thirdly , because injunctive relief should be declined on discretionary grounds;

· That the Trade Practices claim should fail: first , because the relevant conduct was not misleading and deceptive; secondly, because the relevant conduct was not “in trade and commerce”; thirdly , because the relevant conduct was not a causative factor in the relevant decision of the plaintiffs (to purchase their properties or, in the case of Glen Eight, to proceed with a residential conversion); fourthly , because injunctive relief should be refused on discretionary grounds; and fifthly, because no damage was occasioned; and additionally that Mr Hearne and Mr Doughty were not knowingly concerned in the impugned conduct;

first,

secondly

thirdly

fourthly

fifthly

9 For the reasons that follow, I conclude:

· The Crown Lands Act claim fails, because the operation of rides in the Northern Extension is not a contravention by LPS of s 114(2), the section being directed to the relevant Reserve Trust and not an operator or occupier such as LPS, and the Plan in any event not excluding the operation of adult thrill rides in the Northern Extension.

· The Misrepresentation claims fail: the 2001 DA and the 2002 DA were not misleading or deceptive, although Metro Edgley’s silence as to its intention to locate adult thrill rides in the Northern Extension became misleading on 13 May 2002; additionally, as to the Trade Practices claim, the relevant conduct was not “in trade and commerce”, and as to the Negligent Misrepresentation claim, Metro Edgley owed the plaintiffs no relevant duty of care.

· Rejection of the Trade Practices claim against Metro Edgley is dispositive of the accessorial liability claims against Mr Hearne and Mr Doughty.

· In any event, injunctive relief should be refused in respect of the misrepresentation claims on discretionary grounds.

· In the case of Mr Billington and Ms Mather, the impugned conduct was not a causative factor in their decision to purchase their property, but even if it was they have not proved that they paid more than true market value so as to suffer damage.
· In the case of Glen Eight, even if the impugned conduct was a causative factor in the decision to proceed with a residential conversion, disclosure on or after 13 May 2002 of an intention to locate adult thrill rides in the Northern Extension would not have deterred Glen Eight from proceeding with the conversion, and in any event damage has not been established, as it has not been proved that a commercial refurbishment would have been more beneficial than the residential conversion.

10 This judgment is arranged as follows:

Section	Paras
1.0	INTRODUCTION	1 – 10
2.0	BACKGROUND
2.1	Luna Park Site History	11 – 14
2.2	The Plan of Management	15
2.3	The selection process	16 – 20
2.4	The detailed proposal	21 – 35
2.5	Ms Street	36
2.6	Glen Eight	37 – 48
2.7	The 2001 DA	49 – 51
2.8	Mr and Mrs Hesse	52 – 53
2.9	Mr Simkin and Ms Dwyer	54 – 55
2.10	The 13 May 2002 meeting	56 – 61
2.11	The 2002 DA	62 – 63
2.12	Mr Billington and Ms Mather	64 – 65
2.13	Reopening with thrill rides in Northern Extension	66 – 70
3.0	THE CROWN LANDS ACT CLAIM	71 – 81
3.1	Does s 114(2) bind an occupier under the Reserve Trust?	82 – 84
3.2	Does the Plan of Management exclude rides in the Northern Extension?	85 – 90
3.3	Is the operation of the Plan of Management overridden by the DAs?	91 – 95
3.4	Do the plaintiffs have standing?	96 – 102
3.5	Would injunctive relief be declined on discretionary grounds?	103 – 105
3.6	Conclusion on the Crown Lands Act claim	106
4.0	THE MISREPRESENTATION CLAIMS – LIABILITY	107 – 110
4.1	Misleading and deceptive conduct – the 2001 DA?	111 – 176
4.2	Misleading and deceptive conduct – the subsequent silence case?	177 – 191
4.3	Misleading and deceptive conduct – the 2002 DA?	192 – 207
4.4	Misleading and deceptive conduct – were Messrs Hearne and Doughty knowingly concerned?	208 – 209
4.5	The Trade Practices claim – was the conduct in Trade or Commerce?	210 – 225
4.6	The Trade Practices claim – legal causation	226 – 232
4.7	The Negligent Misrepresentation claim – did Metro Edgley owe the plaintiffs a duty of care?	233 – 264
4.8	Conclusion on the Misrepresentation Claims	265 – 266
5.0	THE MISREPRESENTATION CLAIMS – RELIEF	267
5.1	Injunctive relief	268 – 273
5.2	Damages – reliance and factual causation	274 – 280
5.2.1	Mr and Mrs Hesse	281 – 284
5.2.2	Ms Dwyer and Mr Simkin	285 – 290
5.2.3	Mr Billington and Ms Mather	291 – 296
5.2.4	Glen Eight	297 – 318
5.3	Damages – quantification – the individual plaintiffs	319 – 332
5.4	Damages – quantification – Glen Eight	333 – 342
5.5	Conclusion as to relief	343 – 346
6.0	CONCLUSION	347 – 365

2.0 BACKGROUND

2.1 Luna Park Site History

11 The Luna Park Site Act 1990 vested the Luna Park site in the Crown, terminated any leases relating to any part of it, deemed it to be dedicated under Crown Lands Act 1989 for the purposes of public recreation, public amusement and public entertainment, and established the Luna Park Reserve Trust, which was appointed trustee of the Reserve, and (pursuant to Crown Lands Act, s 92), became responsible for its care, control and management.

12 In 1992, the site was zoned 5(d) (“Special Uses – Public Recreation, Amusement and Entertainment”). In December 1994, part of the railway land to the north of the site was added to the Luna Park Reserve; this constituted what I have called the Northern Extension. The remainder of the railway land was retained as stabling yards.

13 The park re-opened in January 1995, featuring the “Big Dipper”. In September 1995, Hodgson J (as his Honour then was) gave judgment in Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995), restricting the operating hours of the Big Dipper, and the park ceased operations in February 1996. Also in 1996, the North Sydney Council – which was then the relevant consent authority for planning purposes – resolved that it would require a development application to be made each time a ride was proposed to be moved from or onto the Luna Park site.

14 In August 1997, a further area to the north of the site, north of the Northern Extension and between the railway stabling yards and Lavender Bay, known as “Lavender Green”, was added to the Reserve. In November 1997, the (NSW) Luna Park Site Amendment Act 1997 expanded the permitted uses of the Reserve – except for the area known as the Boardwalk/Foreshore, and Lavender Green – to include various entertainment-related uses and, in respect of the Clifftop area – which was to the east of the Northern Extension, but elevated above it on a cliff – hotels, shops, office accommodation, and other prescribed commercial uses.

2.2 The Plan of Management

15 On 12 March 1998, the Minister for Land and Water Conversation adopted the Luna Park Plan of Management, in respect of the Luna Park site. While it will be necessary to make more detailed reference to its contents later, it contained design and land use guidelines for the site, including:

· Enhancement of open space north of Coney Island;

· Building Envelopes, within which buildings may be developed and amusement rides located – there were no such envelopes in the Northern Extension;

· Upgrading and levelling undeveloped land north of Coney Island, to provide a landscaped setting for Coney Island and a location for temporary structures for outdoor functions;

· The reuse of existing rides and the possibility of future fun park rides which would not impinge upon the environmental amenity of the area, such rides (other than the Ferris Wheel) to be located within the building envelopes and (including the Big Dipper, if retained) to comply with the licensing requirements of the Environmental Protection Authority;

2.3 The selection process

16 Also in March 1998, the NSW Department of Public Works and Services (DPWS), on behalf of the Reserve Trust, issued a Call for Proposals to develop and open the Luna Park site. Section 2 (Information on the Luna Park Site) contained a description of the site as embracing three areas, the “foreshore/boardwalk area”, the “clifftop area” and “the amusement park”. It included sections 2.6 and 2.7 in the following terms:

2.6 The Amusement Park Area

The Amusement Park Area is presently situated on the level ground about 13 metres below the cliff top on the foreshore of Lavender Bay. This area can be accessed via the historical Luna Park Face, from the steps off Glen Street (at the northern end of the site) or from the public reserve (to the north of Luna Park) which leads to Lavender Bay Wharf.

Apart from the amusements and rides which are detailed in annexure 4, the major heritage items (Coney Island, Crystal Palace and the Luna Park Face and Towers) are located within this area. The area was completely refurbished in the early 1990s with Coney Island, Crystal Palace and the Luna Park Face restored to continue the theme of Luna Park.

2.7 The Playground (Outdoor Area)

The areas added to the Luna Park Reserve since 1990 to the north of Coney Island comprises a landscaped open space area. Under the Luna Park legislation, the northern most part must remain free of any permanent structures. This area blends with the adjoining public recreation reserve leading to Lavender Street Wharf and is best accessed from that wharf or from the foreshore timber boardwalk. There are no improvements within this site.

17 This was the first occasion on which the “landscaped open space area” north of Coney Island was referred to as a “playground”. That was more likely to have been intended to be a reference to Lavender Green, than to the Northern Extension between the railway land and Coney Island (where the thrill rides are now located), because the latter was at that time already occupied in part by stanchions supporting the northern loop of the Big Dipper.

18 Metro Edgley was incorporated on 28 April 1998. Mr Hearne was appointed Director and General Manager on 29 April. Mr Doughty was also appointed a Director. Their company Metro on George Pty Limited held 48% of the shareholding; Edgley International Pty Limited held 33.5%, Peter Murdoch held 3.5%, and Ceeteal Pty Limited – a syndicate of investors managed by the Winchester Financial Group – held 15%.

19 On 12 May 1998, Metro Edgley lodged with DPWS a proposal for the development of Luna Park. It was expressed to be a “flexible” proposal, and included two options – one retaining the Big Dipper, and the other removing it. The proposal included the construction of a café/brasserie at the southern end of the Luna Park site, where the children’s rides were then located; it envisaged that those rides would be relocated (but, at that stage, not to the Northern Extension):

It is our intention to relocate the children’s rides – now located at the existing park entrance near the Face – to the area of the grand plaza opposite the Crystal Palace. We feel this would be a more appropriate area because it will have better shelter from the elements than the current site and it would also be made more user friendly than the existing bitumen expanse by the inclusion of flower beds, seating and shade cover.

20 On 10 July 1998, Metro Edgley was advised that it had been short-listed to proceed to the next stage of the bid process. In October 1998, the DPWS released to the short-listed applicants a “Call for Detailed Proposals” for the next stage of the bidding process. One of the diagrams attached to it identified the general area north of Coney Island – including the Northern Extension – as “the Playground (Outdoor Area)”.

2.4 The detailed proposal

21 Metro Edgley lodged its detailed proposal, entitled “Turning the Lights Back On”, with DPWS on 22 December 1998. This detailed proposal involved a number of changes from the original proposal; one was that the children’s rides would be relocated “to the playground to the north of Coney Island”. It also proposed an “apartment style” hotel for the cliff top site.

22 On 4 July 1999, Metro Edgley was selected to redevelop Luna Park, and it took possession of the site in mid-July 1999.

23 On 12 August 1999, the Reserve Trust as lessor and Metro Edgley as lessee entered into a “Deed of Agreement for Lease and Sub-lease”, by which they agreed that the project would satisfy certain specified objectives by:

(i) Maintaining Coney Island and Crystal Palace in a condition as good as or better than their condition, as at the date of this deed;

(ii) Maintaining a reasonable level of rides and other amusement attractions at Luna Park but shall include (at all times) the Ferris Wheel, Rotor, Wild Mouse and Dodgems;

…

(v) Providing the Children’s Playground as specified in the proposal;

…

(vii) Developing and operating Luna Park in the manner envisaged in the proposal.

24 The lease obliged Metro Edgley to carry out works specified in Annexure A, including:

Children’s Rides

A safe enclosed children’s ride area will be constructed in the playground to the north of Coney Island. Many of the existing children’s rides will reused.

…

The Playground

The boardwalk past Coney Island leads to the playground. This will be the new home for the children’s rides, and with the refreshment kiosk, toilets and grass area will be oriented towards catering for families and young children.

The level grass area will also be used for temporary marquees for functions.

25 The reference in the Agreement for Lease to “the Children’s Playground” was the first use of that terminology. It was not defined, but must have contemplated the open space area north of Coney Island described as the “Playground (Outdoor Area)” in the Call for Detailed Proposals, where Metro Edgley’s response proposed to relocate the children’s rides.

26 Also on 12 August 1999, the Trust and Metro Edgley entered into an asset sale agreement, for the sale by the Trust and purchase by Metro Edgley of the rides and amusements then located at the park. Metro Edgley thereafter endeavoured to find a purchaser for various of the non-heritage amusement rides. From September 1999, Metro Edgley began to operate the park as a venue for corporate functions, and by the end of 1999 as an amusement park; it was open every weekend from 18 March 2000 until late January 2001, and daily during school holidays in April, July and September 2000 and January 2001.

27 On 10 October 1999, Metro Edgley lodged DA 316/00 with the North Sydney Council, seeking approval to dismantle and remove the Big Dipper. On 12 November 1999, Metro Edgley lodged DA 427/00 with the Council, seeking approval for internal alterations to the Crystal Palace, and alterations and additions to Coney Island – including the addition of a new section of building along its northern façade to include a kiosk, stores, toilets, function space, servery and deck, and landscaping. A “Statement of Environmental Effects” dated September 1999 and prepared by Hassell Pty Ltd accompanied this DA.

28 Also on 12 November 1999, Metro Edgley lodged with North Sydney Council a Masterplan and supporting documents, to enable Council to prepare a Development Control Plan as a basis for assessing subsequent development applications in respect of the Luna Park site. It referred to “rides and amusements” in almost precisely the same language as appeared in Annexure A to the 1999 Agreement for Lease – including the references to the “safe enclosed children’s ride area” and the “playground to the north of Coney Island”. But it also referred to the need for flexibility in the location of rides, so that “open rides that do not have heritage significance can be replaced and/or relocated in the entertainment precinct” – which was depicted as including the Northern Extension – and stated that the development “may upgrade land north of Coney Island to provide for outdoor functions, rides and temporary structures”, and that “building envelope controls do not apply to open rides”.

29 On 20 December, the Council granted consent to DA 316/00 (to dismantle and remove the Big Dipper), and on 27 March 2000, the Council granted conditional consent to DA 427/00 (alterations to Crystal Place and Coney Island.

30 On 26 April 2000, Metro Edgley lodged with the Council DA 772/00, a staged development application seeking approval for land uses, building envelopes, vehicular and pedestrian access arrangements, a public domain plan, hours of operation and other matters in connection with Luna Park. The accompanying Statement of Environmental Effects depicted an “entertainment precinct”, which was defined as the area “between the boardwalk/foreshore and the base of the cliff, where the fun park is located …”, and included the Northern Extension. Paragraph 7.2.7 was as follows:

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

It is proposed that all public domain areas of the Entertainment Precinct 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 the further development consent of council. 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 open rides of heritage significance will be replaced/removed without the separate consent of Council.

A more detailed description of the existing rides and amusements to be retained and new rides proposed, within the Ride and Amusement Zone follows.

…

Children’s rides

A safe enclosed children’s rides area will be constructed in the Playground to the north of Coney Island. It is anticipated that many of the existing children’s rides will be reused.

31 Although the text largely reflects that of Annexure A to the 1999 Agreement for Lease, there is the additional reference (as in the November 1999 Masterplan) to the proposed “Ride and Amusement Zone” – including that existing open rides and amusements without heritage significance may be replaced, removed or moved without the need for further development consent, and that new open rides and amusements may be provided within the zone from time to time.

32 On the same day, Metro Edgley also lodged two development applications 773/00 and 774/00, for alternative proposals for car parking to that proposed under DA 772/00. Council granted consent to DA 772/00 on 23 October 2000, but on conditions unacceptable to Metro Edgley, which did not proceed on that consent. Council refused consent to the applications for alternative car park configurations in DA 773/00 and 774/00.

33 On 2 February 2001, the Minister for Planning became the consent authority for the Luna Park site, upon its becoming designated as “State Significant Development”.

34 On 1 March 2001, Metro Edgley, Metro on George, Multiplex Constructions Pty Ltd, Ceeteal and another party entered into heads of agreement to finance the on-going redevelopment of Luna Park.

35 An offer to purchase the Big Dipper was received in April 2001, and Metro Edgley sold it to Dreamworld in mid-2001, following which it was dismantled and removed.

2.5 Ms Street

36 The first plaintiff Ms Joan Paula Street and her husband Mr Geoffrey John Pritchard purchased Unit X/6 Glen Street in May 1996, and have lived there since they took up occupation in June 1996. 6 Glen Street is located to the East of Luna Park, south of Coney Island and well south of the Northern Extension.

2.6 Glen Eight

37 The fourth plaintiff Glen Eight Pty Limited had purchased what was then a commercial office building at 8 Glen Street, Milsons Point, known as Yellow Pages House, by a put and call option entered into in December 1998, which was exercised on 13 January 2000. Glen Eight’s principals are John Roth, his brother Stanley Roth (a solicitor) and Mr George Revay (an architect); its shareholders at all material times were, as to 60%, Henroth Investments Pty Ltd (a company controlled by John and Stanley Roth), and, as to 40%, Platino Properties Pty Ltd (a company controlled by Mr Revay). Glen Eight has refurbished the building, now called the Azure, into 75 strata title residential apartments, of which most have since been sold, some before and some after operations at Luna Park recommenced in April 2004. Glen Eight still owns about 10 units in the block.

38 Mr Revay learnt in late 1998 that Yellow Pages House might be for sale. He and Messrs John and Stanley Roth inspected it. It was then subject to a lease to Telstra for a term expiring on 31 March 2003, with two options to renew, each of five years. Messrs Roth and Revay saw the building as a good investment opportunity, for two reasons: the first was that, on a commercial basis, it appeared to be under-rented and, with the lease permitting a market rent review after about five years, there would be a substantial increase in the rents; and the second was that it had potential for residential refurbishment, with commanding views over Lavender Bay and Sydney Harbour.

39 Having ascertained that Metro Edgley was one of the tenderers for the Luna Park site, Mr Revay organised a meeting, on 22 December 1998, with Mr Hearne and Mr Doughty, to try to ascertain what was proposed for the Luna Park site. Mr Revay told Mr Hearne and Mr Doughty that Glen Eight was buying Yellow Pages House and intended to submit a development application to convert it to residential use, and suggested that it was in everyone’s interest to cooperate. Mr Hearne and Mr Doughty said that they were unable at that stage to disclose any plans or details about the Luna Park proposal, but that they wanted to be good neighbours.

40 On 24 December, Henroth and Sydney Plaza Apartments entered into a put and call option to acquire Yellow Pages House, for $15 million, and Mr Revay wrote to the Reserve Trust, proposing an agreement in respect of future development of the Luna Park site; the Reserve Trust refused to enter into any such agreement. Mr Revay proceeded to develop plans for a residential conversion. On 13 May 1999 he wrote to Mr Hearne at Metro Edgley, proposing a meeting to discuss “matters of mutual interest” in relation to the development of Luna Park.

41 Mr Revay lodged a development application for residential conversion of Yellow Pages House on 10 June 1999. The Council did not deal with the DA within the stipulated time, and Mr Revay appealed from the deemed refusal to the Land & Environment Court. Mr Revay and the Messrs Roth say that they were seeking this approval without intending that if granted it would necessarily be implemented, but to enhance the value of the building by having in place a development approval which could later be implemented if appropriate.

42 On 24 June, Mr Revay sent a fax to Metro Edgley requesting a meeting; Mr Hearne replied on 25 June, declining to meet until after a decision on the tenders had been made by DPWS. However, on 18 October 1999, Mr Hearne and Mr Doughty met with Mr Revay, Mr Widdup and Mr Nicholas Rickard – consultants to Glen Eight. Mr Revay says that Mr Hearne made some statement about what was going to happen in respect of rides in the Northern Extension, but the essence of the meeting was one of “getting to know” each other.

43 Towards the end of 1999, Mr Revay attended a function in the administration building at Luna Park, where there were also a number of people from North Sydney Council. Some plans were displayed, including plans that showed no Big Dipper, but children’s rides in the Northern Extension. Mr Revay subsequently arranged to meet with Mr Hearne and this occurred shortly prior to the hearing of the Land & Environment Court of Appeal in December. Mr Revay asked what would be happening in the area in front of Yellow Pages House when the Big Dipper went, and Mr Hearne responded that there would be landscaping, picnic areas and some rides. In answer to the question “What sort of rides?”, Mr Hearne said “Something like those”, indicating the children’s rides.

44 On 13 January 2000, the purchase of Yellow Pages House, pursuant to the put and call option, was completed in the name of Glen Eight.

45 Glen Eight’s appeal to the Land & Environment Court was dismissed, but with an indication that if modified in some respects it might have some prospect. Mr Revay then redesigned the proposed residential conversion and, in March 2000, lodged a new development application with North Sydney Council. Subsequently, he had a conversation with Mr Hearne in which he indicated that the court had refused the application but that he was submitting a new DA, outlining the changes, and proposing that they should work together to achieve a good outcome, to which Mr Hearne responded that that was a good idea, and would send plans of “our building” and keep him posted. The reference to “our building” was to the building that became known as Milsons Landing, which Multiplex proposed to construct in the clifftop area, adjacent to Yellow Pages House.

46 On 29 May 2000, Mr Revay – having considered Metro Edgley’s DA 772/00 – wrote to Mr Hearne, seeking Metro Edgley’s agreement to reduce the proposed maximum height of Milsons Landing to RL 28.21 AHD, and in return offering to make no other objection to the DA; Mr Hearne responded on behalf of Metro Edgley, accepting this proposal.

47 Mr Revay’s new development application led to a further appeal to the Land & Environment Court. In connection with that appeal, Mr Rickard (on behalf of Glen Eight) sought to borrow from Metro Edgley a model of Luna Park for the purpose of use in the appeal.

48 The directors of Glen Eight were, at least to some extent, ambivalent as to whether to refurbish and retain Yellow Pages House for commercial purposes, or to proceed with a residential redevelopment. In April 2001 the lease still had a couple of years to run until 2003, and two five year options.

2.7 The 2001 DA

49 On 22 June 2001, Metro Edgley lodged the 2001 DA (DA 154/06/2001) with the Minister. The 2001 DA was a Stage 1 Development Application in respect of the Luna Park Entertainment Complex, although it also contained a Stage 2 Detailed Design DA for a strata commercial office building on the clifftop site, fronting Glen Street, to be known as Milsons Landing. While it will be necessary to refer to it in greater detail, it included statements to the following effect:

· removal of the Big Dipper was a deliberate and symbolic gesture of goodwill to the immediate residents of Milsons Point, with whom Luna Park would work to create a harmonious neighbourhood for all;

· in order to allow flexibility in the location of rides and the ongoing evolution of Luna Park, all public domain areas of the Entertainment Precinct and certain areas above buildings would form a ‘Ride and Amusement Zone’, within which all existing open rides and amusements not having heritage significance could be replaced and removed or moved, and new open rides and amusements could be provided, without the need for further development consent. The ‘Ride and Amusement Zone’ was depicted on an annexed plan (MDA06) as including the Northern Extension;

· a safe enclosed children’s rides area would be constructed in the Playground to the north of Coney Island;

50 The wording of the 2001 DA – in respect of rides, including children’s rides – reflected that of the previous DAs, and in turn of Annexure A in the 1999 Agreement for Lease. It included an indicative possible layout of the proposed development depicting children’s rides and nothing else in the Northern Extension (MDA09), which was expressly stated to be “for information only”.

51 The 2001 DA was placed on public exhibition from 6 July to 17 August 2001 at the offices of NSW Planning in Pyrmont and in the Sydney CBD, and also at the offices of North Sydney Council. On 31 January 2002, the Minister granted development consent for the 2001 DA, subject to conditions. Condition 88 expressly excluded from the approval drawing MDA09, and specified that a “detailed design of layout rides” should be the subject of a separate DA.

2.8 Mr and Mrs Hesse

52 In early June 2001, the third plaintiff Mr Michael John Hesse saw an advertisement in the Sydney Morning Herald for apartments for sale in the Colonnades Building at 30 Glen Street, Milsons Point. The Colonnades is situated to the north-east of the Northern Extension and comprises 133 apartments plus retail space, over 27 levels. On 25 June, his wife the fifth plaintiff Mrs Susan Hesse made by letter what was expressed to be a “final offer” for unit XX01 of $1.55 million, subject to a number of conditions, none of which related to the Luna Park site. On 26 June, she paid a deposit of $5,000.

53 On 30 June, Mrs Hesse saw an article in the Sydney Morning Herald about a development application for Luna Park, which alerted her to the 2001 DA (which had been lodged on 22 June, but did not go on public exhibition until 6 July). Mrs Hesse asked her husband to find out whether there was anything preventing the Northern Extension being used for rides. Mr Hesse inspected the 2001 DA at North Sydney Council, and reported to Mrs Hesse that there would be a playground for children on the Northern Extension, that nothing would block their views because of the height restrictions in place, and that as far as he could tell there would be a small ride, a mini-train and something for kids to jump on, but nothing likely to worry them. Following this they exchanged contracts, with Mrs Hesse as the named purchaser, on 25 July. Later, on 17 June 2005, Mrs Hesse transferred a 1/100th interest in the property to Mr Hesse.

2.9 Mr Simkin and Ms Dwyer

54 On 13 March 2002, the second plaintiff Ms Roslyn Elizabeth Dwyer and her husband the sixth plaintiff Mr Robert Simkin exchanged contracts for the purchase of Unit X, “The Cavill” at 6 Cliff Street, Milsons Point, for a price of $1,970,000.00. The Cavill comprises 12 luxury apartments over six levels plus a parking level, and is located to the east of Lavender Green, north of the Northern Extension. They moved in on 19 July 2002.

55 Mr Simkin and Ms Dwyer did not themselves read the 2001 DA, but they retained an experienced property consultant, Dr Hutcheson, to report on the proposed development of the Luna Park site. Dr Hutcheson inspected the 2001 DA at Council. He obtained and provided to his clients a copy of drawing MDA 09, and told them that there was going to be a children’s playground with children’s rides in the area just north of Coney Island.

2.10 The 13 May 2002 meeting

56 On 23 July 2001, Glen Eight received notice of the 2001 DA. As a result, Mr Rickard was directed to review the DA. He inspected it at North Sydney Council. His particular concern was the height of the Milsons Landing building that Metro Edgley proposed to build in close proximity to Yellow Pages House, and what if anything was to be placed in front of Yellow Pages House (on the Northern Extension). He formed the view, particularly from MDA09, that there would be no adverse impact on 8 Glen Street from what was proposed for the Northern Extension, whether 8 Glen Street was retained for commercial purposes or converted to residential use. He informed Mr Revay that the maximum height of the new Milsons Landing building would be at RL28 “and so that’s fine” – meaning that it complied with what had previously been agreed between Glen Eight and Metro Edgley – and that the proposed children’s rides in the Northern Extension would not be of any concern.

57 Mr Revay received plans of the Milsons Landing building from Metro Edgley and cross-checked them against his plans for the refurbishment of Yellow Pages House, for which by this stage development consent had been obtained. He was unconcerned. Mr Revay discussed these matters with Mr John Roth and Mr Stanley Roth, and concluded that Metro Edgley had adhered to the agreed RL for Milsons Landing. On 1 August 2001, Mr Revay wrote to Mr Hearne at Metro Edgley, thanking him for providing the plans and offering to write a letter to Council stating that Glen Eight had no objection.

58 In October and November 2001, the directors of Glen Eight learnt that the tenant wished to vacate Yellow Pages House, and perceived an opportunity to test the market for residential conversion. They conceived a plan of using the opportunity to construct a display apartment on one of the floors of 8 Glen Street and then marketing the residential conversion “off the plan”, with the benefit of that display apartment, to see whether the project was commercially viable. In a letter to the tenant’s property manager on 31 January 2002, Mr Stanley Roth indicated that whether Glen Eight decided to proceed immediately with a residential conversion or to defer it would depend on the success of their selling campaign. Thereafter, Mr Revay progressed the design for the residential conversion, and between March and May caused brochures, marketing plans and other marketing aides to be prepared. A display unit was built, the name of the building was changed to the Azure, and lawyers were retained to prepare contracts for sale.

59 Mr George Marton, of Intalink, was retained to prepare the marketing program for the Azure, with the assistance of Mr Tim Abbott who worked for Mr Revay at Platino. Mr Marton learnt that Multiplex was about to commence marketing and construction of the Milsons Landing building, and was keen to ascertain what they were proposing, as he thought it relevant to his marketing campaign. He sought to establish some cooperative arrangements for the mutual benefit of each, and for that purpose Mr Abbott organised a meeting on 22 March 2002 with Multiplex in its Kent Street offices. Mr Hearne was in attendance, along with representatives of Multiplex, including a Mr Driscoll and Mr Yeo. Some consensus was reached that Multiplex on the one hand and Glen Eight on the other would use the same “perspectivist” to draw a perspective – a firm called “Idrawfast” – and to create a photo-montage of the appearance of the Azure and Milsons Landing. These photo-montages were used in the marketing brochures for the Azure.

60 Arrangements were also made for a further meeting and/or inspection at Luna Park, to take place on 13 May 2002. There was considerable controversy as to how this meeting came to be arranged, and what occurred at it. Mr Hearne was at the meeting. Mr Marton and Mr Abbott attended on behalf of Glen Eight. Mr Marton and Mr Abbott say that they participated in order to obtain a better understanding of what Metro Edgley was proposing in relation to Luna Park, so as to be better informed when dealing with prospective purchasers. Mr Marton recalls that a poster-size version of MDA 09 was on display, depicting a number of small children’s rides in the Northern Extension, identified as “children’s rides”. He says that Mr Hearne described what was proposed for the Northern Extension as “rides for little kids”. Mr Abbott says that he heard Mr Hearne say that there would be children’s rides in front of the Azure building, and also landscaping and picnic areas for young families, and that he obtained a copy of MDA 09 from Mr Hearne at the meeting. Mr Marton conveyed what he was told to Mr Revay. Mr Abbott showed Mr Revay the drawing he obtained, and used the plan on the sales floor in the marketing office to show prospective purchasers. Mr Revay conveyed what he was told to Mr John Roth, adding that he did not think that the children’s rides would have a detrimental effect on a residential conversion.

61 On 24 May 2002, the marketing campaign for the Azure was launched with a cocktail party. There was substantial interest. Brochures for the Milsons Landing development were made available in the Azure sales and marketing office, and sales personnel for Multiplex in relation to Milsons Landing often used the Azure’s sales rooms. On the desk in the sales and marketing office in the Azure was a model of Milsons Landing borrowed from Metro Edgley, as well as a model of the Azure.

2.11 The 2002 DA

62 On 22 May 2002, Metro Edgley lodged DA 151/5/2002 with the Department of Planning, for the Stage 2 Detailed Design of the proposed car park and café/brasserie buildings, known as Phase D. It was notified and placed on public exhibition between about 21 June and 19 July 2002.

63 On 21 June 2002, Metro Edgley lodged the 2002 DA (DA 201/6/2002), for the Stage 2 Detailed Design of the Luna Park Entertainment Complex, known as Phase E. The 2002 DA was notified and placed on public exhibition from 12 July to 2 August 2002.

2.12 Mr Billington and Ms Mather

64 The seventh plaintiff Mr Glen Frederick Billington and his wife the eighth plaintiff Ms Fiona Jeanette Mather exchanged contracts for the purchase of an apartment at X01/12 Glen Street, Milsons Point on 15 October 2002. 12 Glen Street is located at about the northern extremity of the Northern Extension.

65 Mr Billington visited North Sydney Council twice, once on 18 September 2002 for two hours, when he read the 2001 and 2002 DAs, and a second time on 26 October 2002 for an hour and a half, to review them in further detail. He understood from the 2001 DA that there was to be a ride and amusement zone, which extended to the Northern Extension, and that MDA 09 was illustrative only. He thought that the 2002 DA was the more pertinent document. Mr Billington observed that in the 2002 DA the Ranger and the Octopus were depicted as being located in the Northern Extension, but says that he thought that they were children’s rides. He understood that if the 2002 DA was approved, nonetheless anyone with control of Luna Park could thereafter submit a new DA (including one that would locate large thrill rides in the Northern Extension). He accepted that he assumed the risk that some different and more adverse development might occur in the future, but thought that that would probably be some years away.

2.13 Reopening with thrill rides in the Northern Extension

66 Council considered the Phase D DA and the 2002 DA on 19 August 2002. NSW Planning assessed them between August and November 2002, and the Minister granted consent on 21 January 2003.

67 Meanwhile, on 21 November 2002, LPS was incorporated, with shareholdings Metro Edgley 50%, Metro on George Management Pty Ltd (owned by Mr Hearne and Mr Doughty) 34%, Edgley International 8%, and Ausland Holdings 8%. Mr Hearne ceased to be a Director and General Manager of Metro Edgley on 29 November 2002. On 23 December 2002, Metro Edgley and LPS entered into a “Deed of Agreement for Lease and Sub-lease” in respect of the Luna Park site, and on 25 March 2003, Metro Edgley and LPS entered into a “Luna Park Development Agreement”.

68 In early 2003, various rides and amusements were removed from Luna Park to allow for redevelopment of the site. Following completion of the redevelopment, Luna Park reopened for trading on 4 April 2004. The sub-lease to LPS commenced on 2 August 2004, and, on the same date, ownership of the rides and amusements was formally transferred from Metro Edgley to LPS pursuant to the Luna Park Development Agreement.

69 Since the park re-opened, rides called the Ranger and the Spider have been located and operated in the Northern Extension. The Ranger is a ride that swings its patrons in a pendulum motion from side to side, gradually approaching closer and closer to a 360-degree rotation, which it ultimately achieves. The hydraulics that drive it emit a screeching mechanical noise, and the patrons make ear-piercing screams. It is not seriously in dispute that it would not ordinarily fall within the description of a “children’s ride” in the context in which that term had been used. The Spider is a ride with a series of cars which spin as the ride progresses and gathers speed, each car spinning through 360 degrees. Again, it would not ordinarily be understood as a “children’s ride”.

70 On occasion, particularly during school holidays, the operators of Luna Park have brought into the Northern Extension, on a temporary basis, additional large thrill rides, including “the Extreme Machine” which involves patrons being lifted in a cage and then dropped, and the “Giant Bungee” or “Sling Shot”, which flings patrons into the air. All these thrill rides generate a high level of noise, in particular screams from their patrons.

3.0 THE CROWN LANDS ACT CLAIM

71 The plaintiffs (other than Mr and Mrs Hesse who, having moved from the neighbourhood, no longer assert standing) claim an injunction restraining LPS from locating and operating amusement rides (and in particular adult thrill rides) in the Northern Extension, on the footing that their location and operation in that area is in contravention of Crown Lands Act, s 114(2). The plaintiffs did not, in their submissions, ultimately press a case that they originally pleaded, to the effect that the Crown Lands Act somehow bound LPS to comply with the lease under which it occupies and operates Luna Park. Their case was ultimately based on the Plan of Management. They contend that the location and operation of thrill rides in the Northern Extension is outside the framework established by the Plan of Management, the intent of which was to enhance open space north of Coney Island by removing the Big Dipper stanchions, and locating rides only in the Midway and on the Waterfront within the designated building envelopes.

72 The Crown Lands Act, Part 5 (Dedication and Reservation of Land) provides, in Division 6 (Plans of Management), relevantly as follows:

112 Preparation of draft plan of management

(2) A reserve trust may with the Minister’s consent, and if the Minister so directs shall, prepare a draft plan of management for the reserve.

…

114 Adoption of plan of management

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

(1B) Without limiting the conditions that the Minister may impose under subsection (1A), the Minister may impose a condition requiring the reserve trust to indemnify the Crown against any liability or claim for compensation that may arise as a result of the reserve being used for the additional purpose specified in the plan.

…

(2) If a plan of management is adopted:

(3) If a plan of management is adopted authorising a reserve to be used for an additional purpose specified in the plan, the reserve may be used for the additional purpose specified in the plan.

73 By s 112A, “additional purpose” in relation to a reserve is defined to mean any purpose that is additional to the declared purpose of the reserve. By s 78, “reserve trust” is defined to mean a corporation constituted under Division 4 and appointed as trustee of a reserve or part of a reserve. In Division 4, s 92 provides that the Minister may establish and name a reserve trust and appoint it as trustee of any one of more specified reserves or any one or more parts of a reserve. A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee (s 92(5)). A reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of or in any way disposing of the whole or any part of the reserve except in accordance with Part 5 (s 100(2)).

74 The Luna Park Site Act provides that the land comprising the Luna Park site is vested or taken to have been vested in the Crown by the Act and to be land dedicated under the Crown Lands Act for the purposes of public recreation, public amusement and public entertainment (s 5); that the Crown Lands Act applies to and in respect of the land comprising the Luna Park site, except as provided by the Site Act or regulations under it (s 6); that upon commencement of the Act there is to be taken to have been established and named, under section 92 of the Crown Lands Act, a reserve trust under the name of the Luna Park Reserve Trust, which is to be taken to have been appointed, under that section, as trustee of the reserve consisting of the land comprising the Luna Park site (s 7); and that Reserve Trust is to be taken to have been directed by the Minister, under section 112 of the Crown Lands Act, to prepare a plan of management for the Luna Park Reserve, to include provision for a number of specified matters, including that there must be public access to the boardwalk/foreshore area at all times, and that the use of the Reserve must be limited to purposes sympathetic to the historic and community significance of the land comprising the site.

75 In the Plan of Management, to which reference has already been made, Part 3 (Design and Land Use Guidelines) contained the following:

3.1 BACKGROUND

These design and land use guidelines set the physical, urban design and land use framework for achieving the vision and meeting the goals for Luna Park. They reflect the preferred option for Luna Park as an amusement park supported by a range of other uses and as such are not prescriptive of development on the site.

The framework is based on extensive stakeholder consultation and is aimed at meeting stakeholder needs, gaining their support and achieving viability. It is intended to provide design flexibility for prospective operators, architects and designers. Rather than constraining creativities, the design and land use framework aims to assist in focussing design effort.

3.2 DESIGN AND LAND USE GUIDELINES

The guidelines are structured so that an objective is stated in column 1 and the actions to achieve it in column 2. Implementation by an operator/developer of Luna Park will be required under the guidance of the Luna Park Reserve Trust.

…

The first four guidelines relate to:

The subsequent three guidelines provide a framework for new interventions:

76 Objective 2.0 (Public Domain) was “To retain the existing primary spaces which structure the site, with the opportunity for access via new entrances”, and covered six guidelines, including “6. Enhance open space north of Coney Island”, and referred to Figure B and objective 6.0.

77 Objective 3.0 (Views and Vistas) was “To retain important existing views and vistas”, and referred to Figure C. Objective 5.0 (Building Envelopes) included:

To provide future development sites which complement the existing heritage features, public domain, views, vistas and service requirements. Building envelopes are contained within the framework set by the heritage features, public domain, views, vistas and service area requirements.

78 The related design guidelines included:

‘Building envelopes’ are the three-dimensional volumes within which buildings may be developed. New buildings should be designed within proposed building envelopes shown in Figure E. Minor decorative details only, such as flagpoles and architectural decoration may exceed the building height envelope.

No new building should have a ground area greater than the ground floor area (‘footprint’) of Coney Island. … Amusement rides may occupy 100% of the envelopes, if these rides are ‘open’ structures.

79 Objective 6.0 (The Design of Public Spaces) included “To provide a landscaped setting for Coney Island and location for temporary structures for outdoor functions”. The related guideline was:

Upgrade and level undeveloped land north of Coney Island to provide a landscaped setting for Coney Island, and location for temporary structures for outdoor functions.

80 Objective 7.0 (Land Uses) included “To allow for the reuse of existing rides and the possibility of future fun park rides which do not impinge upon the environmental amenity of the area”. The related design guideline was:

New fun park rides may be provided. Rides should be located within the building envelopes shown in Figure E, except the Ferris Wheel, which exceeds the envelope. Rides, including the Big Dipper, if retained, must comply with the licensing requirements of the Environmental Protection Authority (EPA).

81 Figure B (Public Domain) described the area north of Coney Island – both the Northern Extension and Lavender Green – as “Open Space North of Coney Island”. Figure C (Views and Vistas) identified a view from Glen Street to Lavender Bay, across the Rides Zone. Figure E (Building Envelopes) did not depict any envelope north of Coney Island. Figure H (Indicative Design Outcome) depicted the Northern Extension as partly paved but largely grassed and treed; but the covering text stated:

one possible interpretation

indicative only

3.1 Does s 114(2) bind an occupier under the Reserve Trust?

82 The first answer to the plaintiffs’ Crowns Lands claim is that Crown Lands Act, s 114(2)(b), is directed to the Reserve Trust, and not to third parties (including operators or occupiers under lease or licence from the trust).

83 This conclusion is informed, generally, by the context provided by Crown Lands Act, Part 5, as a whole, which in large part pertains to the constitution and affairs of reserve trusts to manage reserves, and the management of reserves by reserve trusts. More specifically, it is informed by the context provided by s 114 itself, which (by subsection (1A)) authorises the imposition of conditions on the reserve trust (and not others), extending (by subsection (1B)) to a condition requiring the reserve trust (and not others) to indemnify the Crown against liabilities arising from the use of the reserve for an additional purpose. And even more specifically, it is informed by the context provided by the remainder of s 114(2), in which sub-paragraph (a) is expressly directed (only) to the reserve trust. Although the passive voice is used in sub-paragraph (b) – as it is in sub-s (3) – the context is one of provisions pertaining to what reserve trusts may and may not do on and in respect of a reserve.

84 In this scheme, the function of a plan of management is to provide a means of authorising and instructing a reserve trustee to manage the reserve in a particular fashion and for particular purposes. While those purposes may include leasing or licensing the reserve or part of it to a third party, the plan of management is addressed to the reserve trustee, and not to any such third party. That the instant plan is directed to the trust is reflected in the following passage in the Executive Summary:

This plan of management … will play an important role in assisting the Luna Park Reserve Trust to oversee the activities of the leaseholders operating the park. The plan will also guide the Trust in relation to its duties in managing those parts of Luna Park which are not covered by lease arrangements.

3.2 Does the Plan of Management exclude rides in the Northern Extension?

85 The second reason for rejecting the plaintiffs’ claim based on Crown Lands Act, s 114(2), is that, regardless of to whom s 114(2) applies, and assuming that it and the plan of management apply to and bind LPS as well as the trustee, this plan of management does not exclude the location and operation of amusement rides, including adult thrill rides, in the Northern Extension.

86 The plan of management is replete with references that make clear that it is intended not to be a prescriptive document but to permit flexibility. Thus, in the Executive Summary:

The plan is unusual in that it does not detail all of the management and other actions on the site. Instead it is a largely strategic document establishing the direction for Luna Park through a framework of vision statement, goals and guidelines.

87 In Section 3 (Design and Land Use Guidelines), it is said:

These design and land use guidelines set the physical, urban design and land use framework for achieving the vision and meeting the goals for Luna Park. They reflect the preferred option for Luna Park as an amusement park supported by a range of other uses and as such are not prescriptive of development on the site.

… It is intended to provide design flexibility for prospective operators, architects and designers. Rather than constraining creativity, the design and land use framework aims to assist in focussing design efforts.

88 Similarly, in Section 4 (Trust and Leaseholder Responsibilities):

Following formal adoption of a plan of management by the Minister for Land & Water Conservation, the Reserve Trust will be responsible for its implementation. …

… The plan of management will play an important role in assisting the Luna Park Reserve Trust to oversee the activities of the leaseholders operating in the park. The plan will also guide the trust in relation to its duties in managing those parts of Luna Park which are not covered by lease arrangements.

89 The concept of “guidelines” is not one of inflexible prescriptive parameters.

90 That operation of amusement rides, including adult thrill rides, in the Northern Extension was not intended to be excluded by the plan of management is most clearly illustrated by the circumstance that it specifically contemplated as one possibility that the Big Dipper would remain in operation. Part of the Big Dipper occupied, and was supported by stanchions that stood in, the Northern Extension.

3.3 Is the operation of the Plan of Management overridden by the DAs?

91 The defendants submit that by operation of (NSW) Environmental Planning & Assessment Act 1979, s 28, and North Sydney Local Environment Plan 2001, cl 42, any operation that the plan of management would otherwise have in regulating development and land use at Luna Park is removed.

92 Environmental Planning & Assessment Act, s 28, provides as follows:

Suspension of laws etc by environmental planning instruments

(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3) A provision referred to in subsection (2) shall have effect according to its tenor, … .

93 North Sydney Local Environment Plan 2001, cl 42, is a provision of the type contemplated by s 28:

Suspension of covenants, agreements and similar

instruments

(1) Any covenant, agreement or similar instrument that affects development allowed by this plan does not apply to the extent (if any) necessary to allow the development.

(2) Nothing in subclause (1) affects the rights or interests of any public authority under any registered instrument.

94 While Environmental Planning & Assessment Act, s 28(1), includes in the definition of regulatory instrument “any Act, … rule, regulation …” as well as “agreement, covenant or instrument …”, subsection (3) gives effect according to its tenor to a provision in a planning instrument that provides “that a regulatory instrument specified in that environmental planning instrument” shall not apply or shall apply subject to modifications to relevant development. Clause 42 of the North Sydney Local Environment Plan specifies only any covenant, agreement or similar instrument, which is a narrower class than that described in Environmental Planning & Assessment Act, s 28(1). In particular, cl 42 does not include Acts, rules and regulations – they are not covenants, agreements or similar instruments.

95 Accordingly, the provisions to which reference has been made did not override any operation that the plan of management would otherwise have had in regulating development and land use at Luna Park.

3.4 Do the plaintiffs have standing?

96 If Crown Lands Act, s 114, otherwise had the effect of prohibiting the location and operation of amusement rides including adult thrill rides in the Northern Extension, the plaintiffs would have to show a sufficient special interest if they were to have standing to claim the permanent injunctive relief that they seek [Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 281]. The defendants submit that s 19A of the Site Act, introduced by the Noise Amendment Act – which prohibits any “civil proceedings (whether at law or in equity) … against any person with respect to the emission of noise from the Luna Park site” – has the effect of denying the plaintiffs any relevant standing, for two reasons: first, because if their sole basis for standing is the adverse effect of noise on the residential amenity of their properties, their claim is one “with respect to the emission of noise” within s 19A; and secondly, because even if the plaintiffs have standing, noise cannot be taken into account as a relevant discretionary factor.

97 In the context of an application by the defendants for orders striking out the Crown Lands claim [Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230], it was observed (at [41]) that while traditionally a relevant “special interest” had involved demonstrating that the conduct also infringed a private right of the plaintiff, or that the plaintiff suffered special damage [Boyce v Paddington Borough Council [1903] 1 Ch 109], all that was required was that the plaintiff have a sufficient special interest, greater than that of members of the general public, in the subject matter of the action, and the rule was a flexible one [Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552, 558; Batemans Bay, 265, 267]. In circumstances where the plaintiffs particularised the basis of their claim to standing as the “loss of amenity” occasioned to their properties by the contravention of the plan, and that such loss of amenity was not only exposure to noise but visual (on the theory that the Northern Extension should, according to the Plan of Management, be landscaped open space), their standing to claim injunctive relief did not depend on noise emission, and the proximity of their properties to Luna Park gave them a sufficient special interest, when compared to other members of the public, to give them standing. In this respect, it was said (at [43]):

In my opinion, the plaintiffs’ standing to claim the injunction that they seek does not depend on noise emission. Their properties are adjacent to and overlook Luna Park. That circumstance gives them a sufficient special interest, when compared to other members of the public, to allow them standing, because contravention of the Plan is liable to affect the amenity of their properties, whether or not it generates noise. Their interest in the regulation of activity on Luna Park in accordance with the Plan depends not merely upon the exposure of their properties to noise, but upon proximity and overview, and would subsist regardless of whether or not their properties were exposed to noise from Luna Park. While part of the inconvenience to them might be exposure to noise, that is neither essential to their standing, nor a material fact forming part of their cause of action for an injunction. It follows that the Injunction Claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1).

98 However, the defendants now submit that, as the evidence has now emerged, it is apparent that, to the extent that the location and operation of the rides in the Northern Extension has any substantial impact on any of the plaintiffs, it is limited to noise.

99 Although, in her first affidavit, Ms Street referred to overlooking the top of Coney Island to the Ranger and the Spider, she did not complain about any effect this had on her “visual amenity”; and while she referred in her second affidavit to the change in outlook from her apartment as a result of the installation of thrill rides, again she did not advance any complaint that it adversely impacted on her visual amenity. Neither Ms Dwyer nor Mr Simkin referred to any visual impact of the presence of the thrill rides. Nor did Mr Billington and Ms Mather. However, Glen Eight adduced evidence pertaining to the visual impact of the thrill rides. Although the defendants emphasised that this was contained only in the 2006 affidavits – subsequent to the strike out application to which reference has been made – and that there was no similar reference in the 2005 affidavits, I do not consider this significant: when the 2005 affidavits were made, the case was a “noise nuisance” case which depended upon and only upon proof of noise, and the absence of reference to impact on visual amenity is unsurprising; it would have been irrelevant.

100 Mr John Roth, a director of Glen Eight, described the position as follows:

The units on the lower levels of Azure facing west are especially affected by the visual impact from the Ranger as it is directly in front of the living area (and some bedrooms) of the apartments. The feeling I have had when I have been in the lower level apartments when the Ranger is operating and whirring around is a lack of privacy. I can distinguish riders in the carriages and presume that they can also see me.

Furthermore, it is quite disconcerting to watch the Ranger revolving past a living room on a regular basis during the ride’s operation.

101 Mr Revay, a principal of Glen Eight who is also an architect, gave this evidence in cross-examination:

…

102 Although I accept that the overwhelming impact of the thrill rides in the Northern Extension on the plaintiffs is the emission of noise, and that the visual impact is relatively slight, I would not deny the plaintiffs standing on that ground. There is a discernible difference between a view that overlooks a landscaped, grassed and treed parkland (as the plan of management represents) and one which overlooks a bituminous area on which stand amusement rides. The significance and impact of that difference may vary from person to person. But the proximity of the plaintiffs’ residences to the Luna Park site, and the circumstance that the Plan of Management described a layout and uses which gave their view and outlook particular characteristics, gives them a sufficient interest greater than that of members of the public generally, to confer standing on them.

3.5 Would injunctive relief be declined on discretionary grounds?

103 The defendants submit that having regard to the slight if any impact of the presence of the thrill rides on the amenity of the plaintiffs’ properties apart from noise, the public and heritage significance of the operation of Luna Park, and the impact on the Park’s revenue, injunctive relief should be declined as a matter of discretion. Against that, the plaintiffs submit that there is no evidence of hardship, no evidence that the rides in question (specifically the Ranger and the Spider) have any heritage significance, and a countervailing public interest in insisting on adherence to a Plan of Management which emerged from a process of consultation to control operations on a parcel of land of public significance.

Q. And you believed that out clause was effective and accordingly you did not believe that Glen Eight was obliged in 2002, despite the exchange of contracts to proceed with the residential development; that’s right, isn’t it?
A. No.

316 Although Mr Stanley Roth says that he considered it (and he is an experienced commercial lawyer), it does not appear that serious consideration was given, following discovery of the proposal to locate thrill rides in the Northern Extension, to the possibility of not proceeding with the residential conversion and rescinding. He did not discuss the specific clauses with Mr John Roth or Mr Revay, though he did discuss with them the view that there were so many exchanged contracts that there was nothing to do other than lodge an objection to the 2002 DA. Mr Roth’s concern at the reputational consequences for Glen Eight, and the difficulties that purchasers might cause, is belied by the absence of any apparent approach to purchasers to see whether, in light of the proposal to locate thrill rides outside their windows, they still wished to proceed. Indeed, his approach bespeaks an acceptance that the purchasers would wish to proceed, at the price they had agreed to pay, notwithstanding discovery of the proposal to locate and operate thrill rides in the Northern Extension.

317 Glen Eight had designed its building to minimise the impact of noise emanating from Luna Park. When it exchanged contracts with purchasers in June 2002, it knew that it had no commitment from the Trust or from Metro Edgley that there would not in the future be adverse development, potentially including adult thrill rides, in the Northern Extension. It knew that there was a risk of such development, albeit it thought at that stage a slight one. It had endeavoured to minimise that risk by positioning itself to object to adverse development at Luna Park, by obtaining its own development approval. When it learnt of the proposal to locate and operate thrill rides in the Northern Extension, its objection was based on the potential impact of that proposal, not on any claimed representation or expectation induced by Metro Edgley’s prior conduct. Although it objected, it did not – at least according to Mr Revay and Mr John Roth – then see it as a particularly significant issue.

318 I am prepared to accept that, when they decided in late 2001, having learnt that the tenant wished to vacate Yellow Pages House, to test the market for residential conversion by constructing a display apartment and marketing the residential conversion “off the plan”, to see whether the project was commercially viable, the directors of Glen Eight took into account as one factor the use of the Northern Extension proposed in the 2001 DA. However, given the history of the residential conversion DA; the construction of a display unit prior to May 2002; the recognition by Glen Eight that there was some – albeit it thought slight – risk of further adverse development in the Northern Extension; its acceptance that its ability to control adverse development depended on its status as a developer with DA consent to object; the circumstance that it did object to the 2002 DA but did not regard it as a large issue as the time; the presence in the contracts of clause 59.2; the absence of serious investigation of the possibility of rescinding under clause 59.2, and the inherent acceptance in that of the view that the purchasers would still probably wish to proceed at the prices negotiated; and the circumstances that the tenant was not asked to vacate until October 2002 and the building contract for the conversion not let until early 2003, I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion.

5.3 Damages – quantification – the individual plaintiffs

319 That the correct approach to the assessment of damages in the cases of the individual plaintiffs was the amount by which the price paid to acquire them exceeded their true value at the time of acquisition was argued and determined on an interlocutory application relating to the admissibility of certain valuation evidence [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588, [4]-[10]], and was thereafter accepted by the plaintiffs. Ms Dwyer and Mr Simkin exchanged contracts for the purchase of X/6 Cliff Street on 13 March 2002 for $1,970,000. Mrs Hesse exchanged contracts for the purchase of XX01/30 Glen Street on 25 July 2001 for $1,550,000. Mr Billington and Ms Mather exchanged contracts for the purchase of X01/12 Glen Street on 15 October 2002 for $695,000. The plaintiffs adduced the expert evidence of Mr Edmonds, valuer, to the effect that the true market value of these properties at the date of acquisition – assuming that the purchaser was aware that the developer of Luna Park would be relocating a number of larger rides as well as the children’s rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area – would have been less than the amounts actually paid: in the case of Ms Dwyer and Mr Simkin, a reduction of 11% or $216,700; in the case of Mr and Mrs Hesse a reduction of 14% or $217,000; and in the case of Mr Billington and Ms Mather, a reduction of 13% or $90,350.

320 Mr Edmonds reached these conclusions by the following process. First, he said that prima facie the appropriate methodology for ascertaining the retrospective market value – on the assumption that the hypothetical purchaser was aware that the developer would be relocating a number of the larger rides as well as the children’s rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area – was to assess the reduction on market value suffered by other properties as a consequence of the disclosure of potential adverse affectation similar to that to which the subject properties would be (on those assumptions) exposed. Secondly, because that assumption was hypothetical, there was no direct sales evidence that could be relied upon: although sales over the period from shortly before July 1999 to shortly after June 2001 (when the 2001 DA was lodged) could be expected to be of some assistance, they were for various reasons unhelpful or insufficient to permit any conclusion to be drawn as to the effect of uncertainty surrounding the redevelopment of Luna Park on the market value of the properties. Thirdly, sales after Luna Park reopened in April 2004 were irrelevant, as they were affected by the actual impact of thrill rides having been located in the Northern Extension, as distinct from knowledge of the risk or potential for that eventuality. Fourthly, exposure to noise generally had an adverse impact on real estate values.

321 Fifthly, a series of transactions relating to several properties affected by a proposal to widen the M2 Motorway in 1995 and 1996 provided evidence of a reduction of about 17% in the value of properties, already known to be in close proximity to a proposed motorway, as a result of the announcement of a new and more immediate proposal that if implemented would significantly increase their exposure, and this was supported by other data, pertaining to exposure to aircraft and road traffic noise, which suggested an adverse impact of about 12% on values. The M2 Motorway material involved a number of transactions whereby the Roads & Traffic Authority, having announced that an existing road reservation would be widened with the consequence that the subject properties would be more severely affected by noise than had previously been thought, offered to purchase the properties as if they were affected only by the original reservation and not by the new proposal, and then resold them as affected by the new proposal. The acquisition price (representing the value of the properties as affected only by the original reservation), if not agreed, was determined by a valuer.

322 Finally, having regard to the different relationships of each of the subject properties to Luna Park, the specific discounts for each – ranging between 11% and 14% – were derived.

323 The defendants did not adduce any valuation evidence to contradict that of Mr Edmonds, but they challenged his valuation methodology, and disputed that assumptions critical to his conclusions had been validated.

324 First, the defendants submitted that the prices paid by the plaintiffs were consistent with contemporaneous sales in the same buildings, and that it had not been proven that the other purchasers laboured under the same misapprehension as affected the plaintiffs. Mr Edmonds accepted that the plaintiffs’ purchases were “in line” with contemporaneous sales of comparable apartments in the same buildings, but he assumed that “the market” was as uninformed as the plaintiffs claimed to be – his hypothesis was that all purchasers in the market were affected by the same misapprehension as was entertained by the plaintiffs in respect of the future development of Luna Park.

325 It is true, as the defendants submit, that the plaintiffs did not call other purchasers to say that they were similarly uninformed. But the question is not, as the defendants pose it, “Why assume that everyone else assumed that there would never be anything else north of Coney Island, even though the zoning permitted it?” – the relevant questions are whether the other purchasers were aware of an extant proposal to locate and operate adult thrill rides in the Northern Extension (prior to July 2002) – and that the Ranger and the Spider were such rides (after mid-2002).

326 Mr Edmonds accepted that the fact that there were plans afoot to redevelop Luna Park from 1998, and the possibility that it might reopen as an amusement park, were in the public domain. He accepted also that the market would have recognised that there was potential for the Northern Extension to be used as an amusement park. Some of the comparable sales he noted pre-dated the 2001 DA, and so could not have been affected by any statement or non-disclosure in that DA. His reasons for discounting those sales as reliable evidence were unconvincing – in particular, he was compelled to concede in cross-examination that any effect of the 2000 Olympics had expired by late 2000.

327 However, as I have concluded that there was no extant proposal, at least until July 2001, to locate and operate adult thrill rides in the Northern Extension, it must follow that the market was unaware of any such proposal, even if purchasers had some general appreciation that Luna Park might reopen as an amusement park with rides. I am therefore prepared to accept that, at the time of the potential comparable sales, at least until the 2002 DA was exhibited, the market was unaware of any such proposal. I reach that conclusion, not on Mr Edmonds’ say so, but because the evidence in the case as a whole reveals no such proposal in circulation. That state of affairs (that the market was unaware of any proposal to locate and operate adult thrill rides in the Northern Extension) is to my mind not so significantly different from Mr Edmonds hypothesis (that the purchasers were unaware that the developer of Luna Park would be relocating a number of larger rides as well as the children’s rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area) as to invalidate Mr Edmonds’ opinion.

328 Next, the defendants submit that that Mr Edmonds merely assumed that potential noise affectation would have a market effect, and in the absence of any evidence that the potential for noise affectation (as distinct from actual exposure to noise) would have any such effect. However, Mr Edmonds’ examination of other case studies, including the M2 Motorway transactions, provides some evidence from which it is legitimate to conclude that the existence of a proposal for nearby development that will produce noise impact on a property will have an effect on the value of that property. It may well be that better evidence could have been provided by a comparison of sales in the subject buildings before and after the proposal became known (when the 2002 DA was exhibited), but the circumstance that Mr Edmonds used a different approach does not totally undermine his opinion – although it might have been relevant to its weight, had there been a contrary opinion against which to weigh it. In short, his opinion is built on weaker foundations that it might have been, but is not without foundation. It is true that his analysis of the M2 Motorway transaction involves assessment of the impact of the actual announcement of an intended road widening, rather than the presence of a risk; but knowledge of a proposal is the relevant comparator, because Metro Edgley’s conduct would have been misleading and deceptive only if it had failed to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension. Thus, although I was initially concerned that Mr Edmonds perceived no difference in the impact on market value of knowledge that there would be large thrill rides in the area on the one hand, and a mere risk that there might be on the other, ultimately this matters not: the material from which he derived his conclusions (the M2 Motorway transactions, Badgerys Creek Airport and Brisbane Airport) pertained to known proposals which would have an adverse noise impact, and that is the relevant comparator here.

329 While I accept that there are some difficulties with the analysis of the M2 Motorway transactions – the reliability of the exercise is affected by the circumstances that multiple properties and a State authority were involved, and the interposition of a valuer to determine the acquisition price if necessary – again those difficulties do not entirely undermine the utility of that material for the purpose of forming an opinion as to the impact on land value of a proposal that would involve exposure to noise – particularly in the context of the other material and studies referred to by Mr Edmonds in that context. It is also true that Mr Edmonds did not directly apply the 17% derived from the M2 motorway figures, but used a lesser discount which differs among the three subject properties. However, that is a legitimate application by a valuer of his judgment as to the differing impact of general considerations on the value of the three particular properties.

330 Accordingly, had Metro Edgley, by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, engaged in misleading and deceptive conduct, I would have concluded that Mr and Mrs Hesse, and Mr Simkin and Ms Dwyer, had suffered losses of $217,000 and $216,700 respectively.

331 Mr Billington and Ms Mather claim to have relied on the 2002 DA, and the relevant assumption in their case is not that there was a non-disclosure of a proposal to locate and operate adult thrill rides in the Northern Extension, but that they were unaware that the Ranger and the Spider were adult thrill rides. I have already concluded that the 2002 DA did not suggest otherwise, noting that Glen Eight recognised that the 2002 DA proposed the location of adult thrill rides – and specifically the Ranger – in the Northern Extension. The 2002 DA put into circulation what was previously unknown – that it was proposed to locate and operate the Ranger and the Octopus in the Northern Extension. I am therefore unable to be satisfied of the validity of the assumption that, after exhibition of the 2002 DA in July 2002, the market was unaware of a proposal to locate and operate adult thrill rides in the Northern Extension, or that the Ranger was an adult thrill ride. It follows that I am unpersuaded that the market after July 2002 was an uninformed one, and that sales after that date are not sound evidence of value. As Mr Edmonds accepted that Mr Billington and Ms Mather’s purchase was in line with contemporaneous sales, it has not been established that they paid above true market value.

332 Thus, even if Mr Billington and Ms Mather had, in purchasing their property, acted on the misapprehension that the 2002 DA proposal involved only Children’s rides in the Northern Extension, I am unpersuaded that they paid more than the true value of the property, and accordingly I do not accept that they suffered damage.

5.4 Damages – quantification – Glen Eight.

333 The basis of Glen Eight’s claim for damages was also considered in an interlocutory judgment [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 594]. Glen Eight claims that, had it proceeded with a commercial refurbishment rather than a residential redevelopment, in the events which have happened it would now be very much better off – by more than $10,000,000.

334 I do not accept that, as the defendants’ submissions appear to assume, in the present context damages are necessarily to be calculated by reference only to the situation as at the date on which the cause of action accrues without regard to subsequent developments; while the “rule” in Potts v Miller provides an often useful guideline for measuring damages, it is not universally appropriate and where, as Glen Eight claims in the present case, as a result of misleading and deceptive conduct, a plaintiff adopts course of action A, when it would otherwise have adopted course of action B, its damages should reflect the difference between its actual position in the events which have happened as a result of having adopted course A, and its hypothetical position had it adopted course B.

335 Mr Gower, accountant, calculated the position in which Glen Eight actually was (having proceeded with the residential conversion) and compared it with the position in which it would otherwise hypothetically have been (had it instead proceeded with a commercial refurbishment). He concluded that, calculated as at 6 June 2002 (but having regard to the events which had since transpired), the difference between the value to Glen Eight of Yellow Pages House on the hypothetical commercial refurbishment scenario, and on the actual residential scenario, was $10,359,000.

336 A crucial integer in this exercise was the hypothetical valuation of Yellow Pages House as at 2006 on the footing that it had undergone a commercial refurbishment, for which purpose Mr Gower used the opinion of the real estate valuer, Mr Edmonds, that on that scenario its current market value at 9 October 2006 was $30,800,000. Mr Edmonds reached that conclusion by capitalising the rental value of the property. For that purpose, he assumed that a single tenant would be found for the whole building (a tenancy of more than 6,000 sqm), and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases (which exceeded the then CPI).

337 It was essential to the validity of Mr Edmonds’ assumption – that a single tenant for the whole building could be found by 1 July 2003 – that a letting up period of 17 months would be available; he conceded that he could not have concluded that such a tenant could be found had any shorter period been available for letting. However, a 17 month letting up period was simply not available: from the time at which Glen Eight says it made its relevant decision (June 2002) there were only 12 months available until 1 July 2003. Mr Edmonds accepted that, if marketing were not to commence until June 2002, he could not say whether a tenant could have been obtained for the building by 1 July 2003.

338 Mr Edmonds also conceded that the market for commercial rents in Milsons Point at the relevant time was not healthy, and that demand was “lower than normal”; that finding a commercial tenant prepared to take the whole building would not have been an easy task; that he was not aware of any letting of 6,000 sqm or so in Milsons Point at or about the relevant time; that he could not name a single prospective tenant in the market at the relevant time (for the whole space); and that, even with the assumed (superficial) refurbishment, the building was not a high quality one. Yet the rent adopted by Mr Edmonds, of $315-$320 per square metre, was supported only by lease transactions of smaller tenancies (for which tenants would usually pay a higher per metre rent), in superior buildings (for which tenants would usually pay a higher per metre rent), and for shorter terms, without annual increases (for which tenants again would usually pay a higher per metre rent).

339 I am therefore quite unable to accept the hypothesis, upon which Mr Edmonds’ opinion depends, that Yellow Pages House could have been let to a single tenant from 1 July 2003 for a term of five years at a rent of $315-$320 per square metre with 4% annual increases without any incentives. His cross-examination demonstrated that hypothesis to be untenable.

340 While I do not accept that invalidation of an expert’s assumption necessarily results in total rejection of his or her final opinion, it requires close evaluation of the significance of the assumption, and its invalidity, to the ultimate opinion, and careful consideration of whether the evidence permits the court to reach a conclusion as to the effect of substituting an alternative hypothesis. Sometimes, that course may be aided by re-examination on alternative hypotheses. In this case, the hypothesis was fundamental – as Mr Edmonds conceded – and was the only relevant assumption he made. Once it is invalidated, there is nothing that permits substitution of an alternative letting up period, commencement date, term, number of tenants, rents or indexation. Indeed, Mr Edmonds conceded that if his hypothesis were not acceptable, then his reports said nothing else. Mr Edmonds’ fundamental assumption having been invalidated, his opinion in this respect is completely undermined.

341 There is therefore no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario. That in turn removes an essential integer from Mr Gower’s calculations. In the absence of any acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Yellow Pages House than the residential conversion scenario.

342 Accordingly, even if (contrary to my earlier conclusions) Metro Edgley’s misleading non-disclosure after 13 May 2002 until July 2002 of its proposal to locate and operate adult thrill rides in the Northern Extension was “in trade or commerce”, and Glen Eight would otherwise have abandoned the residential conversion and proceeded with a commercial refurbishment, I would nonetheless have been unsatisfied that Glen Eight had suffered damage as a result.

5.5 Conclusion as to relief

343 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension:

· Mr and Mrs Hesse would recover damages of $217,000, and
· Mr Simkin and Ms Dwyer would recover damages of $216,700.

344 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2002 DA to disclose that adult thrill rides such as the Ranger and the Octopus, as well as children’s rides, were to be located and operated in the Northern Extension, Mr Billington and Ms Mather would nonetheless not recover damages, because I am unpersuaded:

· that in purchasing their property, they acted on the misapprehension that the 2002 DA proposal involved only children’s rides in the Northern Extension, or
· that they paid more than the true value of their property.

345 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, or if the non-disclosure of that proposal to Glen Eight after 13 May 2002 were “in trade or commerce”, Glen Eight would nonetheless recover no damages, because:

· I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion; and

346 Mr Edmonds’ fundamental assumption – that a single tenant would be found for the whole building and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases – having been invalidated, there is no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, and I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Glen Eight than the residential conversion scenario.

6.0 CONCLUSION

347 My conclusions may be summarised as follows.

348 Crown Lands Act, s 114(2)(b), is directed to the relevant Reserve Trust, and not to third parties such as operators or occupiers under lease or licence from the trust. In any event, the Luna Park Plan of Management does not exclude the location and operation of amusement rides, including adult thrill rides, in the Northern Extension. Accordingly, the plaintiffs’ Crown Lands Act claim fails.

349 The 2001 DA did not seek consent for children’s rides in the Northern Extension, and did not contain or convey a representation to that effect. Metro Edgley did not, by lodging the 2001 DA, represent that, if it were approved, a safe enclosed children’s rides area would be constructed in the Northern Extension; or that children’s rides would be operated in that area. The purpose of the 2001 DA – to obtain planning approval from the relevant consent authority, not to inform potential purchasers and developers – was such that it could not reasonably be expected to disclose all the potential uses which Metro Edgley might contemplate for the future uses of Luna Park. Read fairly as a whole, the 2001 DA does not exclude the possibility that rides other than children’s rides would be located and operated in the Northern Extension. Moreover, the evidence does not establish that, when the 2001 DA was lodged, Metro Edgley had formed an intention to locate adult thrill rides in the Northern Extension, and Metro Edgley therefore did not engage in misleading and deceptive conduct by failing to disclose, in the context of a proposal to locate children’s rides in the Northern Extension, a proposal to locate adult thrill rides in that area. Accordingly, Metro Edgley did not engage in misleading or deceptive conduct by lodging the 2001 DA.

350 It was not misleading or deceptive for Metro Edgley to remain silent, in respect of its proposal to locate and operate thrill rides in the Northern Extension, from the time it first entertained it in July or August 2001, until it disclosed it in the 2002 DA. If any of the plaintiffs laboured under the misapprehension that Metro Edgley’s intention and proposal was to operate only children’s rides in the Northern Extension, that misapprehension arose from the combination of an imperfect reading of the 2001 DA, for a purpose which it was not intended to serve, and an erroneous assumption that any such proposal was, if not immutable, at least unlikely to change for many years.

351 However, Metro Edgley’s silence as to its proposal to locate adult thrill rides in the Northern Extension became misleading when, on 13 May 2002, it made a positive statement to Glen Eight that it proposed to use the Northern Extension for children’s rides, landscaping and picnic areas, without disclosing that it also intended to locate and operate adult thrill rides there.

352 The 2002 DA did not contain or convey a representation that, if it were approved, any particular activity would take place in the Northern Extension. It did not convey that the Ranger and the Octopus were of the same nature as the “Children’s Rides”. It was not misleading or deceptive in the respects alleged by the plaintiffs, and, in particular, for failing to disclose that adult thrill rides such as the Ranger and the Octopus, as well as children’s rides, were to be located and operated in the Northern Extension – it specifically proposed that the Ranger and the Octopus be located there.

353 The above conclusions in respect of the allegations of misleading and deceptive conduct in the 2001 DA and the 2002 DA are dispositive of the s 75B case against Mr Hearne and Mr Doughty, and it would not be fair to make an alternative finding against them or either of them based on the “subsequent silence” case, in circumstances where they legitimately treated it as not part of the case pleaded against them.

354 Metro Edgley’s conduct in lodging the 2001 DA and the 2002 DA was not “in trade or commerce”, because (1) the representations in the development applications were not directed towards persons who had a potential or actual trading or commercial dealing or transaction with Metro Edgley: there was no potential or actual trading or commercial dealing or relationship between Metro Edgley and the consent authority; and (2) even if the representations were considered to be directed to owners and occupiers of potentially affected properties, including Glen Eight, those owners and occupiers were not persons who had a potential or actual trading or commercial dealing or transaction with Metro Edgley. The development applications were not themselves a trading or commercial transaction, and that the purpose and object of the development applications was to obtain a permission which would enable Metro Edgley to carry on commercial activity, or that they formed part of the course of Metro Edgley’s dealings, which overall bore a trading or commercial character, is insufficient to make them an aspect of “trade or commerce”.

355 Nor was non-disclosure to Glen Eight on and after 13 May 2002 of the proposal to locate and operate adult thrill rides as well as children’s rides in the Northern Extension “in trade or commerce”. There was no relevant actual or potential trading or commercial relationship between Metro Edgley and Glen Eight, and the presentation of information at the meeting of 13 May 2002 did not take place in the context of any such transaction or relationship. The impugned conduct of Metro Edgley was not in trade or commerce.

356 Moreover, insofar as Metro Edgley made any representation to members of the public by lodging the 2001 DA and the 2002 DA, such representation was not made to nor received by the members of the public in their capacity as potential purchasers or redevelopers of property in the area of the Luna Park site, but only in their capacity as adjoining landholders who might wish to object to development at the Luna Park site. The losses claimed to have been suffered by the plaintiffs as potential purchasers or developers arising from decisions to purchase or redevelop were not suffered in a capacity related to that in which they received the information in the DAs, and were not in the relevant legal sense caused by Metro Edgley’s conduct; the plaintiffs are not entitled to a remedy under the Trade Practices Act in respect of them.

357 The plaintiffs’ Trade Practices claim therefore fails.

358 Metro Edgley owed no duty of care to the plaintiffs (as potential purchasers or developers of neighbouring properties) to avoid foreseeable risk of economic loss occasioned by inaccurate or misleading statements in the development applications. In any event, liability in negligence would not extend to assumptions made by the plaintiffs, only by implication from the express statements in the DAs, as to what would happen in the Northern Extension. The plaintiffs’ negligent misrepresentation claim therefore also fails.

359 Assuming that it were otherwise established that Metro Edgley had engaged in misleading and deceptive conduct as alleged, injunctive relief would nonetheless be declined as a matter of discretion. The injunctive relief sought is not to restrain the contravening conduct nor repetition of it, but to restrain conduct inconsistent with the state of affairs which the contravening conduct is alleged to have caused the plaintiffs to assume would exist. An injunction would be of dubious utility, because a perpetual injunction would be inappropriate as it would treat the use of Luna Park as perpetually frozen by the proposal in the 2001 DA, while an injunction which did not enure for the protection of purchasers from a plaintiff would not avert loss to the plaintiff; and because Metro Edgley does not operate the rides or the park, and it was not established that LPS was its agent. The plaintiffs’ claims being in respect of economic loss, which is prospective in the sense that it would not be incurred until resale, such loss, if established, is amenable to compensation by damages, which are an adequate and in this context quintessentially appropriate remedy.

360 Although Mr and Mrs Hesse’s assumption that there was a permanent restriction on rides being located in the Northern Extension was created by the plan of management, and not the 2001 DA, it does not follow that non-disclosure in the 2001 DA of any then existing proposal to locate and operate thrill rides in the Northern Extension would have been immaterial: they would have been disabused of their assumption had the 2001 DA disclosed a proposal to locate and operate, in the Northern Extension, in addition to children’s rides, adult thrill rides. Had they been informed of such a proposal, they would not have proceeded with their purchase. Had Ms Dwyer and Mr Simkin been made aware, before purchasing, of the existence of a proposal to locate and operate adult thrill rides in the Northern Extension, they too would not have proceeded with their purchase. If (contrary to my above conclusion) Metro Edgley had in trade or commerce engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, I would have concluded that Mr and Mrs Hesse, and Mr Simkin and Ms Dwyer, had suffered losses of $217,000 and $216,700 respectively.

361 However, I am unpersuaded that any belief that the “Ranger” or “Octopus” was a children’s ride influenced Mr Billington and Ms Mather’s decision to purchase, as Mr Billington well understood the differential noise impact of the Ranger and the Octopus on the one hand, and the children’s rides on the other, and Ms Mather relied on Mr Billington. Moreover, because I am not satisfied of the validity of Mr Edmonds’ assumption that, after exhibition of the 2002 DA, other purchasers were unaware of a proposal to locate and operate adult thrill rides in the Northern Extension, and thus that the market after July 2002 was an uninformed one, I am unpersuaded that Mr Billington and Ms Mather, whose purchase was in line with contemporaneous sales, paid above true market value. Accordingly, even if Mr Billington and Ms Mather had, in purchasing their property, acted on the misapprehension that the 2002 DA proposal involved only children’s rides in the Northern Extension, I am unpersuaded that they paid more than the true value of their property, and accordingly I do not accept that they suffered damage.

362 I am prepared to accept that, when they decided in late 2001, having learnt that the tenant wished to vacate Yellow Pages House, to test the market for residential conversion by constructing a display apartment and marketing the residential conversion “off the plan”, to see whether the project was commercially viable, the directors of Glen Eight took into account as one factor the use of the Northern Extension proposed in the 2001 DA. However, given the history of the residential conversion DA, the construction of a display unit prior to May 2002, the acceptance by Glen Eight that there was some – albeit it thought slight – risk of further adverse development in the Northern Extension and that its ability to control adverse development depended on its status as a developer with development consent to object, the circumstance that Glen Eight did – as it had envisaged – object to the 2002 DA but did not at the time regard it as a major issue, the presence in the contracts of clause 59.2 and the absence of serious investigation of the possibility of rescinding under clause 59.2, and the inherent acceptance in that of the view that the purchasers would still probably wish to proceed at the prices negotiated, I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion.

363 Moreover, Mr Edmonds’ fundamental assumption – that a single tenant would be found for the whole building and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases – having been invalidated, there is no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, which in turn removes an essential integer from Mr Gower’s calculations. In the absence of any acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Glen Eight than the residential conversion scenario. Accordingly, even if Glen Eight would have abandoned the residential conversion and proceeded with a commercial refurbishment had a proposal to locate and operate adult thrill rides in the Northern Extension been disclosed prior to July 2002, I would nonetheless have been unsatisfied that Glen Eight had suffered damage.

364 My formal order is, therefore, that the proceedings be dismissed.

365 Although it would ordinarily follow that the plaintiffs should pay the defendants’ costs, the parties have sought an opportunity to be heard on the question of costs, particularly in the light of the early history of the proceedings and the intervention of the Noise Amendment Act. Accordingly, I will hear counsel as to whether directions should be made for written submissions and/or a time appointed for oral argument.

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Citations

Street v Luna Park Sydney Pty Ltd [2009] NSWSC 1

Most Recent Citation

Luna Park Sydney Pty Ltd v Minister for Planning [2018] NSWLEC 89

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Statutory Material Cited

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Cited Sections

CITATION:	Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2009] NSWSC 1
HEARING DATE(S):	4, 5, 7, 8, 12, 13, 14, 15, 25, 26, 27, 29 June, 15, 16, 17, 23, 24, 25, 26, 29, 30, 31 October, 1, 2 November, 3, 4, 5, 7, 13 December 2007
JUDGMENT DATE :	6 February 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	As to the Crown Lands claim: Crown Lands Act, s 114(2), is directed to the relevant Reserve Trust and not an operator or occupier. The Plan of Management does not exclude the operation of adult thrill rides in the Northern Extension. As to the misrepresentation claims: the 2001 DA and the 2002 DA were not misleading or deceptive. Metro Edgley’s silence as to its intention to locate adult thrill rides in the Northern Extension became misleading on 13 May 2002. Metro Edgley’s relevant conduct was not “in trade and commerce”, and Metro Edgley owed the plaintiffs no relevant duty of care. Rejection of the Trade Practices claim against Metro Edgley is dispositive of the accessorial liability claims against Mr Hearne and Mr Doughty. In any event, injunctive relief would be refused on discretionary grounds. In the case of Mr Billington and Ms Mather, the impugned conduct was not a causative factor in their decision to purchase their property, but even if it was they have not proved that they paid more than true market value so as to suffer damage. In the case of Glen Eight, even if the impugned conduct was a causative factor in the decision to proceed with a residential conversion, disclosure on or after 13 May 2002 of an intention to locate adult thrill rides in the Northern Extension would not have deterred Glen Eight from proceeding with the conversion, and in any event damage has not been established, as it has not been proved that a commercial refurbishment would have been more beneficial than the residential conversion. Order that the proceedings be dismissed.
CATCHWORDS:	CROWN LANDS – Crown Reserves - whether Plan of Management binds only Reserve Trust or also binds occupiers – construction of Luna Park Plan of Management – standing of adjacent occupiers to claim injunction to enforce Plan of Management – discretionary considerations - TRADE PRACTICES – whether conduct was misleading and deceptive – whether conduct was “in trade and commerce” – whether conduct was causative factor in the relevant decision of the plaintiffs – whether injunctive relief should be refused on discretionary grounds – damages - NEGLIGENT MISREPRESENTATION – economic loss- whether developer owes purchasers or developers of adjoining land duty of care to avoid economic loss occasioned by inaccurate statements in development applications – whether breach of any such duty – whether any misrepresentation had causative effect on a relevant decision by a plaintiff – causation
LEGISLATION CITED:	(CTH) Trade Practices Act 1974, ss 52, 80, 82, 87 (NSW) Crown Lands Act 1989, Part 5, ss 92, 114 (NSW) Environmental Planning & Assessment Act 1979, ss 28, 76, 79, 80 (NSW) Luna Park Site Act 1990 (NSW) Luna Park Site Amendment (Noise Control) Act 2005 (NSW) Luna Park Site Amendment Act 1997 North Sydney Local Environment Plan 2001, cl 42
CATEGORY:	Principal judgment
CASES CITED:	Australian Competition & Consumer Commission (ACCC) v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Barnes v Hay (1988) 12 NSWLR 337 Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Boyce v Paddington Borough Council [1903] 1 Ch 109 Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Henville v Walker (2001) 206 CLR 459 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017, 51,317 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054 Lam v Ausintel Investments Aust Pty Ltd (1989) 97 FLR 458; (1990) 12 ATPR 40-990 Lismore City Council v Stewart (1989) 18 NSWLR 718 Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 Plimer v Roberts (1997) 80 FCR 303 San Sebastian Properties Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340 Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995) Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 594 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 696 Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422 Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
PARTIES:	Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) Robert Simkin (sixth plaintiff) Glen Frederick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)
FILE NUMBER(S):	SC 2267/05
COUNSEL:	Mr T Alexis SC w Ms P M Sibtain (plaintiffs) Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants)
SOLICITORS:	Wise Legal (plaintiffs) Clayton Utz (first & second defendants) Esplins (third & fourth defendants)