Posted on May 28, 2015 by Frances Tse
Plans of management could permit private function centres on Crown reserves
The Land and Environment Court in the recent case of Friends of King Edward Park Inc v Newcastle City Council (No 2)  NSWLEC 76 found that a commercial function centre proposed to be used for private events such as weddings, catering and conferences would have been permissible on Crown land that had been reserved for ‘public recreation’ if the plan of management (‘POM‘) had been properly made.
King Edward Headland Reserve (‘Reserve‘) was reserved in 2005 for the purpose of ‘public recreation’ under the Crown Lands Act 1989 (‘CL Act‘). It is situated in an elevated position with unobstructed views of the Pacific Ocean to the east and the south.
A development application was lodged in 2010 for a ‘function centre, associated parking, landscaping and kiosk’ on the Reserve. The proposed function centre was to be used for corporate and community functions as well as private social events such as weddings.
At the time the DA was lodged, the Reserve was zoned 6(a) Open Space and Recreation under the Newcastle Local Environmental Plan 2003. Under that zone, any development allowed by a plan of management under the Local Government Act 1993 or the CL Act was permissible with consent.
The POM under the CL Act applicable to the Reserve at the time specified that the ‘permissible uses’ on that land included ‘conference centres and commercial facilities that provide for public recreation.’
The Council argued that the plan of management made the proposed function centre permissible. Friends of King Edward Park, a local community association formed to resist the development, argued that the development was not permissible because (amongst other grounds) the POM was invalid.
The Court established that land reserved for public recreation:
- must be open to the public generally as a matter of right, although it is not necessary for all members of the public to have free access to all parts of the land at all times,
- must not be the source of private profit, and
- could be made available to a private interest which can make a profit from providing facilities to the public so long as those profits are devoted to the public purpose.
However, the Court went on to state that under the CL Act, a plan of management could be adopted which authorises the use of land for an ‘additional purpose’ which may be inconsistent with the purpose for which the land was originally reserved.
The Court ultimately found that the use of the Reserve for the function centre was not permissible because whilst the POM referred to conference centres and commercial facilities that provide for public recreation as ‘permissible uses’, the POM had not been properly made. The circumstances surrounding the way the POM was made revealed that it ‘was neither drafted, nor adopted, with the intention of adopting an “additional purpose”, and mandatory considerations…were not considered’.
This case highlights the fact that if the POM had been properly made, then the function centre would have been permissible on the Reserve.
However councils and reserve trustees should be aware that even if, on its face, an adopted plan of management permits use of reserved land for ‘additional purposes’, the use may still be challenged if a plan of management is found to be invalid on technical grounds.
The case can be found here.