The NSW Land and Environment Court this week handed down its decision of Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76, finding against the proposed development of the King Edward Headland Reserve Newcastle as a function centre.  Justice Sheahan’s decision confirmed that land reserved for ‘public recreation’ must not be developed for a purpose that excludes the public.

His Honour declared that both the development consent for the function centre, kiosk, associated car parking and landscaping, and the Plan of Management for the King Edward Headland Reserve Newcastle, were invalid and of no effect.

The facts

In 2007, the Plan of Management (POM) for the King Edward Headland Reserve, was prepared and adopted in accordance with the Crown Lands Act 1989 (NSW) (CL Act) for the purpose of enabling the Reserve to be redeveloped to achieve broad social and economic outcomes.  The POM permitted ‘conference centres and commercial facilities that provide for public recreation’.  At the time, the land was zoned for ‘open space and recreation’ under the Newcastle Local Environmental Plan 2003 (NSW) (Newcastle LEP 2003) and was reserved under the CL Act for ‘public recreation’.

In 2010, Annie Street Commercial Pty Ltd, submitted a development application to build a function centre, public kiosk, ancillary car park and landscaping within the Reserve.  Newcastle City Council granted development consent in November 2011 on the basis that the development was permissible under the Newcastle LEP 2003 by way of the introduction of the POM.

The Friends of King Edward Park was formed as a local community association to resist the development application.  They subsequently commenced proceedings in the NSW Land and Environment Court against the Minister, Newcastle City Council, King Edward Park Reserve Trust and the developer.

The Friends of King Edward Park sought to have the POM declared invalid, and as a result, also sought a finding that the development consent was invalid as the development would not be otherwise permissible.

The issue

The Friends of King Edward Park Inc challenged the validity of the POM on the basis that:

  • the Minister did not consider mandatory matters when authorising the POM including compatibility with the declared purpose for the reserve and the public interest
  • the additional purpose of conference centres and commercial facilities as authorised by the POM was inconsistent with the reservation for ‘public recreation’, and
  • the proposed development (including a function centre, public kiosk, car parking and landscaping) did not meet the description of a ‘conference centre’ or ‘commercial facility’ that provides for public recreation.

The Friends of King Edward Park Inc also challenged the validity of the development consent (granted on 10 November 2011) claiming that Council had not validly exercised their power to grant the development consent on the basis that:

  • owner’s consent was not provided for the works in King Edward Park
  • no integrated approval was sought or obtained from the Mine Subsidence Board
  • Council failed to have regard to the heritage significance – failed to notify Aboriginal communities, failed to obtain a heritage impact statement, failed to consider the public interest of these potential impacts, and
  • Council failed to make further enquiries on certain matters, and subsequently fails for unreasonableness.

Decision

Whilst the Court recognised that the power to add ‘additional purposes’ to a POM under the CL Act is not limited to the purpose for which the land was originally reserved (i.e. a public recreation reservation), it held that the POM had not been drafted with the intention of adopting an ‘additional purpose’.  Rather, it was drafted to authorise a specific ‘use’ (i.e. a function centre).  As a consequence, the mandatory considerations such as compatibility with the declared purpose and public interest were not considered, and on this basis the Court held the POM to be invalid and of no effect.

The Court also held that development of a function centre is not a ‘conference centre’ nor is it a commercial facility providing for public recreation as the land would be used exclusively and privately for events such as weddings.  Justice Sheahan confirmed that even if the development was to be open to the public from time to time, the general exclusion of the public was incompatible with its reservation for public recreation.

As the POM was declared by the Court to be invalid, there was no other instrument declaring the development permissible within the reserved land and as such, the development was found prohibited within the zone and the development consent as a whole was found invalid.  The Court stated that it was unnecessary to address the applicant’s second ground as Council had no power to grant the consent based on the previous findings.

Practical implications

For developers proposing to build within land reserved under the CL Act for a specific purpose, including land reserved for public recreation, consideration should be given to the following:

  • understanding the purpose for which the land is reserved
  • ensuring that the development proposal is permissible within the reserved land in accordance with the  zoning and applicable POM’s
  • if ‘additional purposes’ are permissible within the reserved land, ensuring the development meets that description, and
  • specifically for land reserved for public recreation, the development must not be for a purpose that excludes the public.