Development of Crown Land Reserved as Public Recreation Land
A decision of the NSW Land & Environment Court handed down on 11 May 2015 has considered what can be developed on Crown land reserved for ‘public recreation’.
Friends of King Edward Park Inc v Newcastle City Council (No 2)  NSWLEC 76 provides important guidance on the following:
- the use of Crown land reserved for ‘public recreation’;
- the mandatory matters under the Crown Lands Act 1989 (NSW) (Crown Lands Act) to be considered by the NSW Minister responsible for Crown lands (Minister), for the purposes of adopting a plan of management authorising an ‘additional purpose’;
- the power to add an additional purpose to an existing reserve by a plan of management under the Crown Lands Act; and
- whether the use of land as a ‘function centre’ could be considered to be use of the land for the additional purposes of ‘conference centres’ and ‘commercial facilities that provide for public recreation’.
The case concerned a development application and subsequent development consent for the development and use as a function centre of a Crown land reserve in Newcastle known as the ‘King Edward Headland Reserve’ (Reserve). The Reserve is situated within King Edward Park and was reserved from sale for the purposes of ‘public recreation’ under the Crown Lands Act in 2005.
The Reserve was at the relevant time zoned ‘6(a) Open Space and Recreation’ under the Newcastle Local Environment Plan 2003 (LEP) (which was replaced in 2012). Under this zoning, function centres were a prohibited purpose as they were not listed as permitted with or without consent. However, the LEP further provided that any development allowed by a plan of management under the Local Government Act 1993 (NSW) or the Crown Lands Act was permitted with consent.
A plan of management for the Reserve adopted by the Minister in September 2007 (Plan of Management) expressly authorised the use of the land for ‘conference centres’ and ‘commercial facilities that provide for public recreation’.
A development application for the development of an old bowling club site on the Reserve for a ‘function centre, kiosk, associated car-parking and landscaping’ was lodged by Annie Street Commercial Pty Ltd in December 2010 and approved by Newcastle City Council in November 2011 (Development Consent). The statement of environmental effects lodged with the development application provided that the function centre would be used for corporate functions, small business meetings and private social events (such as weddings) and not as a restaurant or bar that would be open to the general public.
The applicant to the Court, Friends of King Edward Park Inc, was a local community association formed to resist the development application in early 2011 (Applicant). The Applicant challenged the validity of the Development Consent.
- Was the proposed development within the reserved purpose, being public recreation?
After a review of the relevant case law, Justice Sheahan concluded it was clearly established that land can be said to be used for ‘public recreation’ only if it is open to the public as of right and is not a source of private profit.
Justice Sheahan noted that the proposed function centre would not be open to the public, as of right, and would be a source of private profit. Accordingly, the proposed use was not for the declared purpose of the Reserve, being ‘public recreation’.
- Did the Plan of Management add an additional purpose for the use of the Reserve?
For the additional purposes of ‘conference centres’ and ‘commercial facilities that provide for public recreation’ to be added to the use of the Reserve, they had to have been validly adopted by the Plan of Management. In order to have been validly adopted by the Plan of Management, the Minister was required to have regard to the four specific matters set out in section 114(1C) of the Crown Lands Act. Section 114(1C) provides that, in determining whether to adopt a plan of management that authorises a reserve to be used for an additional purpose, the Minister must have regard to the declared purpose of the reserve, the compatibility of the proposed additional purpose with the declared purpose, the principles of Crown land management and the public interest.
After reviewing the common law requirements of a decision maker in considering mandatory relevant matters, and considering the evidence submitted by the parties, Justice Sheahan concluded the Minister did not take into consideration the section 114(1C) matters and that the Plan of Management was neither drafted, nor adopted, with the intention of adopting an additional purpose.
- Could the Plan of Management have an additional purpose different from the declared purpose of the Reserve?
Given the established authority that the exercise of one power under the Crown Lands Act may constrain the exercise of another power under that Act, Justice Sheahan questioned whether the reservation of the Reserve for a public purpose, on its construction, operates to restrain the ability to add an additional purpose under section 114(1C).
Justice Sheahan determined that, on a proper construction of section 114, the power to add an additional purpose was not constrained by the purpose for which land is originally reserved. Justice Sheahan reasoned that as, when adopting an additional purpose through the adoption of a plan of management, the Minister must have ‘regard to’ only the compatibility of the proposed additional purpose with the declared purpose, the Act was intended to confer a wide and unfettered power on the Minister to adopt an additional purpose through a plan of management.
- Did the proposed development fit within the additional purpose in the Plan of Management?
Justice Sheahan determined that the proposed development was not a ‘commercial facility that provides for public recreation’ because the use of land for private functions (such as weddings) is ‘inimical’ to its use for public recreation, even if it is at times open to the public.
Justice Sheahan further determined that, for a building to be a conference centre, its use must be restricted to conferences and the like. If the building is also used for purposes outside that use, it ceases to be a conference centre and becomes a broader type of building (ie. a function centre).
The Court declared that the Plan of Management was invalid and of no effect. Accordingly, the Court further declared that the Development Consent was invalid and of no effect.
In the reasons for judgment, Justice Sheahan indicated that even if the Plan of Management was valid, the proposed development was not within the additional purposes in the Plan of Management.
For Local Councils and Crown land trusts managing land reserved under the Crown Lands Act proposing to adopt a plan of management, consideration should be given to ensure that:
- any uses to be permitted on the Crown reserve are permitted under, or in connection with, the declared purpose of the Crown reserve; and
- where an additional purpose is proposed to be adopted by a plan of management, the requirements of the Crown Lands Act are complied with and all mandatory matters are given ‘genuine consideration’ in an ‘active intellectual process’.
This will require more than formal references to the matters listed in section 114(1C) in the plan of management and will preferably be evidence contemporaneous with the consideration by the Minister for the adoption of the plan of management.
For consent authorities considering development proposals on Crown reserves, consideration should be given to ensure that:
- a clear understanding is held of the declared purpose of the Crown reserve including any purpose or use that is permitted under, or in connection with, the declared purpose;
- where the declared purpose of the Crown reserve is ‘public recreation’ (ie. the land has been reserved for public recreation), the development must not be for a purpose that excludes the public as of right or a source of private profit;
- the development is permitted on the Crown reserve by the applicable zoning table or any adopted plan of management; and
- if an additional purpose has been adopted or authorised for the Crown reserve and the development seeks to be permitted to use the reserve for that purpose, the proposed development meets the description of the additional purpose.
Christopher Conolly, Partner