In Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76 (Friends of KE), the NSW Land and Environment Court (LEC), found that a development consent granted for a function centre on land reserved for public recreation was invalid. The LEC has also confirmed that land reserved for “public recreation” must not be developed for a purpose which generally excludes the public.

The case highlights relevant considerations for developers and consent authorities alike when carrying out development in public reserves.

The facts

A local community association (the Association) challenged a decision of Newcastle City Council (Council) to grant development consent to a function centre (Function Centre) proposed on land reserved for “public recreation” (Reserve) under the Crown Lands Act 1989 (CL Act).

The Reserve was a subject of a Plan of Management (PoM) prepared under the CL Act and zoned 6(a) Open Space and Recreation under the Council’s local environmental plan. However, the Council and Crown Lands Trust (who were responsible for the management of the Reserve) (Reserve Trust) relied on the fact that the any development allowed by a PoM under the CL Act could be carried out within the 6(a) zone. In addition and relevantly, the PoM included “conference centres and commercial facilities that provide for public recreation” as an “additional purpose” to the reserved purpose of “public recreation” under section 114 of the CL Act. The Council and Reserve Trust were of the view that the Function Centre was captured by the “additional purpose” in the PoM.

The Association argued that, among other things, when adopting the “additional purposes” in the PoM, the Minister failed to take into account mandatory considerations and therefore the PoM was unlawful.

The grounds of challenge

In finding that the development consent was invalid, the LEC considered a number of grounds of challenge, including:

Was the Function Centre for the “reserved purpose” under the CL Act?

The Council and Reserve Trust argued that, despite any claim that the PoM was unlawful, there was no need to rely on the “additional purpose” because the Function Centre was for the reserved purpose being “public recreation”.

The LEC found that land can only be said to be used for “public recreation”, if it is “open to the public as of right, and is not a source of private profit“. As such, it was held that the Function Centre was not for the purposes of “public recreation”.

Therefore, for the Function Centre to be permissible, it was required to be an “additional purpose” which was validly adopted by the PoM.

Was the adoption of the “additional purpose” lawful?

The Association argued that the Minister failed to take into account mandatory considerations when adopting the PoM which authorised “additional purposes” under the CL Act.

The Association particularly relied on a Crown Lands legal advice which provided that the use of the Function Centre was permissible as an ancillary use and therefore did not require an additional purpose to be adopted. In addition, the Minister’s Statement of Reasons when adopting the PoM (SOR) did not make any mention of the power to adopt an additional purpose under the CLM Act nor any of the mandatory considerations under section 114(1C) of the CL Act which are to be considered by the Minister.

The Reserve Trust submitted that the PoM was to be construed objectively on its face and extrinsic evidence would only be admissible to aid in ascertaining the objective meaning of the PoM. Also, the SOR and advice were formulated years after the PoM was adopted and as such, no inference could be drawn from them as to what the Minister considered at the time he made his decision.

The LEC held that the totality of evidence supported an inference that the PoM was not drafted with the intention of adding an additional purpose. Consequently, the Minister could not have given the relevant matters under section 114(1C) of the CL Act “genuine consideration”. The LEC pointed out that while generally the failure to reference a matter is not conclusive, it was in this case in light of the erroneous legal advice and the lack of any material before the Minister which referenced the adoption of an additional purpose for the Reserve.

Therefore, the PoM was found to be invalid.

Does the additional purpose of “conference centres and commercial facilities that provide for public recreation” include Function Centres?

Despite finding that the PoM was invalid, the LEC also considered whether, in circumstances where the PoM was valid, the additional purpose of “conference centres and commercial facilities that provide for public recreation” include function centres.

The LEC held that a function centre is not a “conference centre” and secondly, the development did not provide for “public recreation”. The LEC agreed with the Association that the use of land for an exclusive purpose such as a wedding is incompatible with its use for public recreation, even if it is at times open to the public.

Conclusion

Friends of KE illustrates that where development on land reserved under the CL Act is proposed, developers and consent authorities alike should consider a number of issues. For example, what is the purpose of the reservation under the CL Act and can the development be said to be for that purpose? Is the development consistent with the adopted PoM and permissible under the land use zone? Further, does the adopted PoM authorise the reserved land to be used for any additional purposes? If so, does the proposed development fall within that “additional purpose”?

The case also highlights for decision makers, the importance of ensuring that there is sufficient documentary evidence to demonstrate that all mandatory considerations have been taken into account when exercising functions and making decisions. For example, when adopting a PoM that authorises an additional purpose, the Minister must ensure (and be able to demonstrate, if necessary) that all matters under section 114(1C) of the CL Act have been considered. This is particularly important where the decision is contentious and likely to be the subject of judicial review proceedings.