Friends of King Edward Park Inc v Newcastle City Council

The First and Second Respondents' Position(s)

1. In its "Statement of Issues", filed 18 October 2013, the Council stated that it wished to take no further active role in the proceedings, other than making the following submissions (par 11): i. If the Court finds condition 3.28 ["the pathway condition"] of the DA 2010/1735 invalid as a matter of law, the [Council] will make submissions as [to] the severability of that condition. ii. If the Court finds DA 2010/1735 invalid as a matter of law, the [Council] will make submissions as to the relief sought by the Applicant against Council. It will be submitted that the relief sought by the Applicant is neither appropriate nor necessary. iii. Costs.
2. The Trust, in its "Statement of Position", also filed in Court on the 18 October 2013, stated its challenges to the applicant's claims, other than for costs, in these terms: the allegation in paragraph [28] of the Amended Points of Claim that 'There is no [POM] made under the CL Act for King Edward Park', but not the remainder of the allegation in paragraph [28] of the Amended Points of Claim that 'if there is [a POM], it does not allow for a function centre or the works within the Park'; the validity of the [POM] dated 7 September 2007 (paragraphs [57] and [58] of the Amended Points of Claim); and paragraph [3] of the Further Amended Summons dated 15 May 2013 which seeks a declaration that the [POM] is invalid and of no effect.
3. The applicant claims (outline subs par 6) that it follows, from the confined positions taken by the Council and the Trust, that the Trust is the only party defending the validity of the POM, and that "there is no effective contradictor in relation to the vast majority of the grounds of challenge raised by the applicant to the grant of consent", namely, those "secondary grounds" (see [201] above).
4. Despite this, the applicant must establish, on the balance of probabilities, the grounds which, it says, entitle it to the relief sought: Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47, at [50] - [52].

Introduction

1. It is logical that the Court, before turning to address any of the applicant's secondary grounds, which go to the Council's exercise of any POM-based power, should determine whether the POM lawfully authorised the development.

Primary Grounds - Is the development permissible?

1. The applicant submits, firstly, that the power to adopt an "additional purpose" was not properly exercised, because the Minister did not turn his mind to the mandatory matters listed in s 114(1C) of the CL Act ([110] above).
2. This failure was, the applicant says, brought about by a misapprehension that it was unnecessary to adopt an "additional purpose" to authorise the "use" of the Reserve for a "function centre/commercial premises that provides for public recreation" under the POM. It is common ground that an additional purpose was required to authorise the use.
3. Secondly, the applicant says that, even if the Minister did take into account the mandatory considerations, the purpose could not lawfully be adopted, because it did not fall within the meaning of "additional purpose" as defined in the Act. A purpose cannot be "additional" if it is directly inconsistent with, or "subtracts from", the declared purpose of the Reserve, which is "public recreation". A use which excludes the public from the site conflicts with, and hinders, its enjoyment for "public recreation".
4. Thirdly, even if the additional purpose of "commercial facilities that provide for public recreation" was lawfully adopted, the use of (part of) the Reserve as a "function centre" does not meet that description, and is, therefore, prohibited. (The Trust did not seek to contradict this claim.)
5. Fourthly, and unrelated to the POM for the Reserve, it was submitted that ancillary works proposed to be undertaken on the Park are prohibited, as there is no POM in respect of the Park authorising such works in the 6(a) zone.
6. The Trust also submitted that, should I find that the POM is invalid to the extent that it unlawfully adopted an additional purpose, those parts of the POM which add that purpose ought be severed, leaving the remainder of the POM intact.
7. I will deal with each of those claims in turn.

To what uses may land reserved for "Public Recreation" be put?

1. It is necessary to discuss, at the outset, some cases, to which I was referred, which dictate the uses to which land reserved for public recreation may be put.

Rutledge

1. In its outline of opening submissions, the Trust submitted (par 36), on the basis of Council of the Municipality of Randwick v Rutledge ("Rutledge") [1959] HCA 63; 102 CLR 54 at 88, and 92-93, per Windeyer J, that: The test as to whether or not a purpose is for public recreation is whether or not the land is open to the public generally as a matter of right and whether or not the land is to be a source of private profit. It is accepted that it may be that that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose.
2. Rutledge involved land now occupied by the Randwick Race Course.
3. In 1863, a grant of land was made by the Crown, for the purpose of public recreation, to trustees who were empowered at their discretion, to permit the land (at 63) "to be used (1) a race course, (2) a racecourse training ground, (3) a cricket ground, (4) as rifle butts, and (5) for any other amusement or purpose declared by the Governor in Council". The grant also authorised the trustees to grant to the Australian Jockey Club ("the Club") the exclusive right to use and occupy the land, upon such terms as they saw fit, for periods not exceeding seven years.
4. Under the Australian Jockey Club Act 1873, the trustees were given the power to grant 21 year leases to the Club. At the time the proceedings were heard, the club had had enjoyment of the land pursuant to two consecutive 21 year leases, commencing in 1947. The Club used the land for the purposes of a racecourse, to which the general public were permitted entrance upon payment of a fee. The land was also used extensively for the training of racehorses.
5. The dispute before the High Court arose out of an attempt by the appellant Council to levy rates upon the land in 1957. The respondents asserted that the land was exempt from rating, by reason of s 132(1)(c) of the Local Government Act 1919 ("1919 LG Act"), which provided: (1) All land in a municipality or shire (whether the property of the Crown or not) shall be rateable except: … (c) land which is vested in the Crown or in a public body or in trustees and is used for a public reserve
6. Section 4 of the 1919 LG Act defined "public reserve", as follows: In this Act, unless inconsistent with the context or subject matter, 'Public reserve' means public park and any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature, but does not include a common.
7. The majority (Dixon CJ, Fullagar, Kitto , and Windeyer JJ), held (headnote, at 55) that the land was not exempt from rating, pursuant to s 132, because, the land was not dedicated as, nor used for purposes which made it, a "public reserve", as defined under s 4 of the LG Act. Menzies J reached the same conclusion, for different reasons, finding (headnote, at 55) that, although the land was dedicated for the purpose of a public reserve, it was not used as such, and, therefore, fell outside the operation of s 132.
8. Windeyer J, with whom Dixon CJ and Kitto J agreed, framed the issue before the Court (at 69) in these terms: The critical question, therefore, is whether the racecourse is "used as a public reserve" within the meaning of the Act.
9. In reaching the conclusion that the racecourse was not so used, His Honour said (at 70): The term "public reserve" - and the word "reserve" alone, when not controlled by a definition or a context indicative of a different sense - have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right.
10. He further said (at 88 - 89): In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the Act contemplates (see, in addition to the definition, ss. 344-355) - and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As to the first: It is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or for any similar sufficient reason. It is not incompatible with a place being dedicated for public recreation and enjoyment that its use be regulated, and that persons using it must use it having regard to the particular form of recreation and enjoyment which takes place there - whether, for example, it be a golf links, tennis court, ocean beach, zoological gardens or rifle range. It is not incompatible with a public park or reserve that at particular times, as for example at night, the public are wholly excluded. And it is not necessarily incompatible with a place being a place for public recreation and enjoyment that certain persons are allowed access at times when the general public is excluded or are allowed into parts where the general public cannot go - for example research students may have special advantages in a public library, scientists in a public museum and so on. But, as Walsh J. said in the Supreme Court, "the enjoyment of special privileges by members of the club, differing in kind from any which the general public enjoy, is to be regarded as a material consideration in ascertaining whether the land is used for public purposes" ... As to the second requirement, that the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserve, provided that the moneys thus obtained are all devoted to its maintenance. Walsh J. referred to this also as a material consideration. It is more than that. It must always - or nearly always - be a decisive consideration. The general obligation of trustees of public parks and reserves to apply to their maintenance and improvement all moneys paid by the public for the right to enjoy them is recognized by the [1919 LG Act] , s. 352; and it lies at the root of decisions to be mentioned.

Simon University

1. The applicant took me also to some cases, which it says, support its claim that land designated to provide for "public recreation", does not permit uses which exclude the general public for private gain. One such case was Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710; 73 LGRA 379, to which Mr Robertson referred as the "Simon University" case.
2. Simon University involved licences granted by the Minister to a third party, for the purpose of that third party carrying on a private university within the Sydney Harbour National Park. Under ss 151 and 152 of the National Parks and Wildlife Act 1974 ("NPW Act"), the Minister was empowered to grant leases and licences for several specified purposes within national parks. By operation of State Environmental Planning Policy No 4 - Development Without Consent and Miscellaneous Exempt and Complying Development ("SEPP"), in force at the time, any development authorised under the NPW Act was permissible without consent in the zone.
3. The appellant's sole ground of appeal was that the licences granted authorised a use for a purpose which was not permitted under the NPW Act (see 380).
4. Relevantly, the provisions on which the Minister relied to grant the licences were ss 151(1)(f) and 152(1): 151(1) The Minister may - (f) grant licences to occupy or use lands within a national park, historic site, nature reserve or state game reserve. 152(1) The Director may grant licences to carry on trades, businesses or occupations within a national park or historic site.
5. Gleeson CJ framed the sole issue before the Court of Appeal as follows (at 382): The question in the present case is whether the use for which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act.
6. The appellant's argument, which was accepted by His Honour, was summarised (at 383 - citations omitted): The appellant submitted that, although the licensing powers in question are not as closely confined as the powers of leasing granted by s 151 they are, nevertheless, not at large. They are controlled by the nature and scope of the legislation conferring them, and are to be understood as powers to advance the objects of that legislation: ... Those objects are to be deduced from the long title to the Act, the scheme of the legislation, and specific provisions such as s 8 (which identifies various powers and functions of the Director) and s 72 (which states the objectives of a [POM] of a national park). This argument was supported by reference to a line of authority, in a cognate area of law, which establishes that local councils which are given the control and management of public parks may only erect upon them improvements whose purpose is to promote or is ancillary to the use and enjoyment of the land in question as a public park or for public recreation: ...
7. The Chief Justice added (at 384): … The respondents' second submission was that, in the somewhat unusual circumstances of the present case, a conclusion that the grant of the licences in question could not be regarded as promoting, or as being ancillary to, the use of the land in question as a park, is not warranted and it was reasonably open to the Minister and the Director to regard their actions as serving the objects of the Act. In this connection it is important to bear in mind the distinction, earlier noted, between the purpose of a particular use of land and the motives of those who permit the use or engage in it. The motives of the Minister and the Director, in granting licences to the School, no doubt included saving, or raising, money, and the motive of the School was presumably to find a convenient location in which to carry on its educational business pending the establishment of permanent facilities. I regard these matters as irrelevant, just as I consider the fact that the School is intending to operate at a profit is irrelevant. It cannot be the case that the use of a national park is impermissible if it returns a profit to the user. The grant of power to licence the carrying on of businesses within a national park obviously contemplates that the licensee may seek private gain from the activity in question. Adam Smith explained why the pursuit of private profit is not inconsistent with public benefit and the point does not require elaboration. Many businesses are carried on in national parks with a view to profit.
8. His Honour rejected an argument put by the Minister that the use did promote, or was ancillary to, the enjoyment of the park by the public, because funds paid by the school to the Minister for the enjoyment of the land could be used to improve the development of the park. He said (at 385): An analysis of what is involved shows that it is not the School's use of the land or the building that is claimed to promote, or to be ancillary to, the enjoyment of the park by the public; it is the price which the School has been and will be prepared to pay for that use, which will in turn provide financial assistance for the improvement of the building and the development of the park, that is relied upon. That is not a permissible approach to the problem. It is the use of the land that is to be judged by reference to the objects of the Act, not the motives which lie behind the decision to permit that use.
9. Both Kirby P and Samuels JA delivered separate judgments, but came to the same conclusion, Samuels JA for different reasons.

Willoughby

1. Another case to which I was taken was Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19, which involved the Minister's approval of a lease to a company for a single storey building in a state recreation area ("SRA") in Middle Harbour, Sydney (headnote at 19 - 20).
2. Under s 47B of the NPW Act, the Minister was empowered to reserve land as a SRA, for the purpose of public recreation and enjoyment. Under s 47I, lands within a SRA could not be leased unless the trustees charged with the "care control and management" of the area obtained the consent of the Minister.
3. The land was zoned 6(d), under the Warringah LEP 1985, and development under the NPW Act was permissible without consent. The Court found that the lease granted to the lessee the right to conduct commercial operations on the land, including relevantly (at 22) "Catered Functions, eg, Weddings".
4. The applicant argued that the Minister did not have the power to grant a lease authorising such a use, because "the power to grant leases in a [SRA] is limited to a purpose which is to promote or is ancillary to the use and enjoyment of land as a State recreation area", excluding any purpose which is not for public recreation and enjoyment (at 25). Stein J paraphrased the applicant's submission as follows (at 25): He submits that the use of the land for purposes such as catered functions necessarily excludes the public from the land being used for the private functions and is inimical to the purpose of a State recreation area which is to permit recreation and enjoyment.
5. Stein J agreed with this submission, finding that the purposes for which a lease could be granted under the NPW Act could not be inimical to the purpose of the SRA. In so concluding, His Honour made the following remarks at (pp26 - 27): The National Parks and Wildlife Act does not expressly set forth the purposes for which a lease may be granted within a [SRA]. The power of leasing will therefore be controlled by the purpose and scope of the legislation. They are powers which must advance and be consistent with the objects of the statute. The purposes will be limited to those which promote and are ancillary to the use and enjoyment of the land as a [SRA]: see [Simon University] ... … It is patent that the principal purpose of a State recreation area is that of public recreation and enjoyment of the land comprising the area. It follows that any purpose which is not for public recreation or enjoyment, or which will ipso facto inhibit or exclude public recreation and enjoyment, is not permissible. While it is necessary to determine the question on the basis of the particular statute, it may be observed that the principles enunciated by the authorities concerning the use of land as a public park or for public recreation are of assistance: see, eg. ... [Rutledge] ... … In my opinion the councils' submission is right. The use of the land (including the use of the built facility for catered functions, such as weddings), necessarily excludes the public from the land which is used for a private function. Such a use is inimical to the purpose of the State recreation area because it is not one for public recreation and enjoyment. It is not to the point to say (as the respondents claim) that the area will, at all times, be kept open to members of the public. If, for example, the facility catered for a sit-down wedding reception for around 100 people, then the whole of the tea room area would be occupied and members of the public would necessarily be excluded. Such a use, as a function or reception centre, even on an intermittent basis, is inconsistent with the use of the area for public recreation and enjoyment. Indeed, it is the antithesis of it. Such a use as discussed above and contemplated by cl 12.9 of the lease is, in my opinion, impermissible.
6. For those reasons, His Honour concluded (at 28) that the "lease purported to grant the right to use the land for a purpose or purposes not permitted by the [NPW Act]". The development [was] therefore prohibited under the [LEP] and contravene[d] s 76(3) of the EPA Act".

Conclusion drawn from these cases

1. These cases clearly establish the principle 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.
2. As the proposed function centre in the present case will not be open to the public, as of right, and will be a source of private profit, the proposed use is not for the declared purpose of the reserve, namely "public recreation".
3. It follows that, for the proposal to be for a permissible purpose, an additional purpose must have been validly adopted by the POM, and the Court must now address that issue, upon which the applicant submits the negative.
4. The Trust now accepts that the assertion that there is/was no need for an additional purpose to be adopted through the POM is contrary to a long line of legal authority.

Q1: Did the Minister take into account the matters referred to in s 114(1C) of the CL Act?

1. Section 114(1C) (set out above at [110]), provides that if an additional purpose is to be added through the adoption of a POM, four matters must be considered. They are: 1. the declared purpose of the Reserve - in this case, "public recreation"; 2. the compatibility of the additional purpose with that declared purpose; 3. the principles of crown land management; and 4. the public interest.
2. Although not specifically pleaded, it became clear at the hearing that the applicant's challenge on this ground was premised on the assertion that the POM was never drafted with the intention of adding an additional purpose.
3. Accordingly, the applicant argued that the Minister did not turn his mind to the s 114(1C) considerations in context. The applicant submitted (subs par 22): In any event, the POM did not validly authorise the use of the Reserve for additional purposes because the Minister did not, before determining to adopt the [POM] have regard to the mandatory matters referred to in s.114(1C) of the CL Act. There is no evidence that the Minister turned his mind to this question, or that he was even aware that it was intended that the Plan should include an additional purpose to the declared purpose for the Reserve.
4. In support of the inference that the Minister did not turn his mind to the s 114(1C) matters, the applicant relied upon (i) the wording of the POM itself, (ii) some legal advice produced by an officer of the Crown Lands Department (Exhibit C1, fol 283), (iii) a SOR provided (Exhibit F9), and (iv) a bundle of documents produced by the Minister in response to a notice to produce (Exhibit F10).
5. The Crown Lands legal advice to which I adverted above (see [137]), was provided to Council in 2011, and is in evidence (Exhibit C1, fol 283 - 284). Relevantly, it said: … the convention centre and kiosk will only occupy some 15% of the area of the Reserve and that the centre is to be constructed on a portion of the Reserve of similar size to the curtilage of recently demolished dilapidated former bowling club premises and will be built partly over the foundations of those former premises. Whilst the Convention Centre will generally be a facility for hire, the kiosk will be open to all Reserve users and must be regarded as a significant enhancement to the existing level of recreational amenity. The Convention Centre and kiosk will be co-staffed. The kiosk to some extent will be dependent on staff, storage and cooking facilities located in the Convention Centre. Furthermore, the enhanced recreational amenity and maintenance provided by the kiosk and parkland redevelopment is dependent upon the ability to establish the conference centre within the reserve. It is accordingly my advice that the proposed use for Convention Centre and kiosk of the type and extent envisaged in the DA currently before Council is a permissible ancillary use of the Recreation Reserve … It is not necessary to form a view as to whether or not Mr Robertson is correct in his interpretation of the plan on this aspect because there was (and is) no need for any such "additional purpose" to be adopted. This is because the use as a convention centre having been specifically referred to as a "permitted use" under the relevant [POM] adopted by the then minister on 7 September 2007 attains the status of a development permissible with consent under the LEP (refer relevant excerpt below). This permissibility under the applicable [EPA Act] zoning when combined with the other relevant facts detailed by me in paragraph 3 above provide a justifiable and compelling basis for regarding the use of "convention centre" as consistent with the gazetted public purpose of "public recreation" applicable under the [CL Act] to the subject Reserve.
6. It was argued that the terminology of the POM, and the SOR provided regarding its adoption, support the inference that it was never drafted with the intention that its adoption would create an "additional purpose", consistent with the legal advice referred to above, which referred to the adoption of the term "use", as opposed to "purpose", and made no explicit mention of the power to adopt an additional purpose under the CL Act, or to any of the s 114(1C) considerations.
7. Mr Robertson said (Tp77, L46 - p78, L6): This is the Crown Lands advice "The PRM (sic) has been validly made and adopted and is sufficient to authorise the proposed use". The word "use" is used deliberately. It doesn't mean purpose, it means use and the point is made very clearly by the author of the Crown Lands Office advice. The reason that is significant is that our argument in this case is that you couldn't put commercial facilities in the public recreation reserve unless you added what is called an additional purpose to the reservation. They are using "use" as distinct from purpose because they never added an additional purpose. They never added additional purpose because they believed, no doubt in good faith that they could do commercial facilities in public reserves without having to go to that extent.
8. He later added (Tp99, L45 - p100, L9): ... you can't use land reserved for public recreation for a non public recreation purpose. Whether it's profitable or not, whether it's commercial or not, doesn't matter. There's no authority to use it for a non public recreation purpose and this is not for the purpose of public recreation, weddings or conferences or functions in some form or another, all of which are private. The public are excluded from it. The fundamental characteristic of public recreation area is one to which the public have access as of right. This plan was made on, undoubtedly, a false legal premise and you can see that false legal premise infecting Mr O'Keefe's advice and Mr O'Keefe's advice uses the same language and terminology as the [POM]. Even though it was four years later, he uses the same language and it's quite clear that the [POM] reflects a world view, under towed within the Department of Lands, about use of such land and that worldview is conflict to authority.
9. In his written submissions in reply (par 22), Mr Robertson submitted: …it is difficult to see how a decision-maker could rationally take into consideration the relevant factors, and make them the "focal point" of the decision, in the absence of the slightest advertence to the relevant statute. Just as mere advertence to a statutory formula does not establish consideration of relevant matters, the absence of any such reference provides a sound basis for the inference that those matters were not considered.
10. The applicant also relied on the SOR (Exhibit F9) provided by the Minister, and purporting to "provide reasons for the decision to draft and gazette the 2007 [POM] for King Edward Headland Reserve". The applicant submitted that the documents produced reveal no evidence to suggest the Minister turned his mind to the matters in s 114(1C), or even to the question of whether an additional purpose was being adopted through the POM. Mr Robertson submitted (subs in reply, par 23, citations omitted): It is fatal to the [Trust's] case that there is no reference to the authorisation of additional purposes, or to any of the four factors, expressly or implicitly, in the Minister's [SOR]. A failure to include reference to a matter in a [SOR] may justify the inference that, as a matter of fact, the matter was not taken into account; it can be accepted as evidence that no finding, evidence or reason that was of any significance to the decision has been omitted from that document: ...
11. The applicant also relied on a notice to produce, and documents produced by the Minister in response (Exhibit F10), to support the negative proposition, namely, that the Minister did not consider the factors listed in s 114(1C): see Baiada v Waste Recycling NSW [1999] NSWCA 139; 130 LGERA 52, at [54] - [57], and my recent discussion of that case in The Owners Strata Plan 432 v Seddon [2015] NSWLEC 69, at [420] - [422].
12. However, the Trust tendered copies of some correspondence between its legal representatives and the applicant's (Exhibit T1), which indicated that one of the departmental files regarding the POM had gone missing, and that, accordingly, it could not "state conclusively which documents (if any), other than those listed in Annexure A, are 'materials on the departmental file'".
13. The Trust submitted that the Court should place little weight on the legal advice and the SOR. The POM is to be construed objectively on its face, and "extrinsic evidence would only be admissible on the construction of the issue to the extent that it is permissible under one of the relevant exceptions to aid in ascertaining the objective meaning of the POM" (closing subs, par 3).
14. Further, both the SOR, and the advice were formulated years after the POM was adopted, and, therefore, no inference could be drawn from them as to what was considered by the Minister at the time he decided to adopt it (closing subs, par 7).
15. At the hearing, Mr Birch appeared to resile from these submissions, stating (Tp168, LL11 - 23): Now of course it's a different question to the construction issue here, what we are concerned with is determining whether one can infer from the [POM] that the Minister has had regard to those three things and I accept that intrinsic (sic) material would be generally available in that regard. The applicant relies upon the [SOR] which was prepared in 2012 well after the [POM] was adopted and it said that in the [SOR] one does not find all of those four issues adverted to. Now there is some authorities that say that if the briefing notes to a Minister do not refer to a matter that one might infer that the Minister did not have regard to that matter. As a general proposition that's undoubtedly a process of inference available to your Honour…
16. It was said by the Trust (see [249] above), that the applicant's submission that the language of the POM suggests that it was not intended that an additional purpose be added is misconceived, because (closing subs par 4): Nothing in the [CL Act] demands that the POM adopt or use the language of the [CL Act]. In other words the POM may authorise an "additional purpose" even if it does not use that phrase provided the intention objectively ascertained is sufficiently clear.
17. On the contrary, it was said that the POM was replete with references to the mandatory considerations under s 114(1C). The Trust submitted (opening subs, pars 42 - 43): 42. The [Trust] denies that the Minister failed to have regard to the relevant considerations pursuant to section 114(1C) of the [CL Act]. 43. There are references in the [POM] and the [SOR] that demonstrate consideration by the Minister of the specified matters, including but not limited to: (a) see Annexure A to these submissions which is a non-exhaustive list of relevant considerations as contained in the [POM]; and (b) paragraphs [2(a), [4], [5], [6], [13], [32] - [38], [44] - [46], [48] - [50], [51] - [52] and [53] - [58] of the [SOR].
18. Annexure A to the Trust's outline of submissions was a table which provided a list of references, and extracts from the POM, which it says show that the s 114(1C) matters were considered.
19. Mr Birch said (Tp168, LL23 - 31): Where you have a [POM] the Minister has signed which clearly within it has advertence to the relevant factor then it really doesn't matter two hoots what a [SOR] prepared by somebody five years later says if the document itself shows there was advertence to something then your Honour would conclude that it was adverted to, and if it was omitted from the [SOR] it just shows how inadequate the [SOR] was when it was prepared. It doesn't allow you to infer that the thing wasn't adverted to which is all that really matters in this particular case.
20. The applicant criticised this approach, stating that the CL Act demands a "degree of formality" when a POM is adopted, purporting to add an additional purpose, because of specific provisions/obligations which are engaged in that process (Tp90). The satisfaction of the requirements of this process cannot be evidenced by "hen picking" phrases from the POM. Mr Robertson submitted (Tp86, LL38 -47, and p100, LL13 - 29): It is not something that happens by a side wind. It is not something that can be inferred, if you like, by what became known as the mosaic approach to evidence, by hen picking words or phrases in a document and suggesting that if you collate them, put them all together, there emerges a statutory Act on the part of a Minister or senior government official which would not otherwise have appeared from these documents. That is not an approach that can be properly taken when you are dealing with Crown land. Yet, you will find that is the only argument that the Crown will be presenting to you in this case to support the proposition that the Minister added an additional purpose to the purpose for which this land was reserved. … There's some submission by the Crown that you can cherry pick these various statements and put them, shake them up, put them in a box, shake them up and you can reform them and, once reformed, you can see that the divisions of s 114 have been satisfied by having regard to those matters and, therefore, you can infer that the Minister took an additional purpose into account when he was deciding to approve the [POM]. In fact, what is happening in this [POM], is what happens with every [POM] on every piece of Crown land. They are simply performing their duty under the [CL Act]] to have regard to the principles of Crown land management in s 11 of the Act and those principles are the same that are considered or the Minister has directed to consider when an additional purpose is applied to the adoption of a [POM]. The fact that there has been consideration of those principles in making this [POM], does not mean that the Minister had in mind an additional purpose when he was determining to adopt the plan.
21. In his submissions in reply, Mr Robertson added (par 24): … the statutory power that the Minister was purporting to exercise was the power to adopt a [POM] that authorises a reserve to be used for an additional purpose (CL Act, s.114). The Act made detailed provision for the highly formal process by which "additional purposes" would be authorised in ss.112-114 (ie preparation, consultation, public participation, consideration of submissions, consideration of mandatory matters, adoption). It would frustrate those processes if the object of authorising additional purposes was not clear on the face of the draft POM. Notably, there was a requirement that any such purpose was to be "specified in the plan" (s.114(3)). "Specified" cannot mean merely a description of the effect of adding a purpose: it must be "an unambiguous identification" of the purpose: Clyne v Cardiff (1965) 65 SR(NSW) 213 at 217- 218, 222; Jolly v Yorketown District Council (1968) 119 CLR 347 at 351 ("state in explicit terms"), at 352 ("to give not by inference but by direct statement"). That is, there had to be a highly specific reference in the plan to the additional purposes purported to be authorised by the plan, with "unambiguous clarity": Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569 - 570.
22. Mr Birch replied (Tp156, LL9 - 17): There are four matters. We accept that they are mandatory issues to which the Minister had to have regard, and we need to establish that. We will do it in this fashion. It will be my contention the [POM] itself contains considerable background material indicating what has been considered and taken into account, and when we properly work our way through the [POM], it will be my submission that it can be seen that the Minister has had regard to the four criteria. That involves, in part, what Mr Robertson called the mosaic argument. Your Honour shouldn't be deterred by labels like that imposed by my opponent.

Consideration of Q1 - the s 114(1C) issue

1. I have concluded that the Minister did not take into consideration the s 114(1C) matters, and my reasons follow.
2. The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman ("Tickner") (1995) 57 FCR 451; 89 LGERA 1 at 462). More "than a mere formalistic reference" to the relevant considerations is required (see my decision in Pitty v Bega Valley Shire Council [2012] NSWLEC 242; 191 LGERA 204).
3. Importantly, ignorance of matters which are relevant to the determination of a decision, will not absolve the determining authority from its obligation to consider those matters: Parramatta City Council v Hale (1982) 47 LGRA 319, per Moffit P at p 340. Moffit P relevantly added (at 345 - 346): … Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. … A conclusion by a court finding a breach of s 90 by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn. … As in any case, civil or criminal, the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person's or body's state of mind should be resolved by a consideration of the whole of the relevant evidence … An inference that an act was done with a particular state of mind or lack of it may be drawn from the totality of twenty events, although each event standing alone may be possible of explanation with a state of mind otherwise. Circumstantial evidence is admitted not because it provides the ultimate inference contended for but because with other evidence it may support such inference.
4. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts ("Bat Advocacy") [2011] FCAFC 59; 180 LGERA 99, the Full Federal Court (Emmett, McKerracher and Foster JJ) held (at [44]): The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see [Tickner] at 462; 89 LGERA 1 at 12 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [105]). … The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. … Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [58]-[59]).
5. The totality of the evidence supports the inference that the POM was not drafted with the intention of adding an additional purpose. Consequently, the Minister could not have given the matters referred to in s 114(1C), "genuine consideration": Tickner at 462.
6. The wording of the POM does not illustrate any real intellectual engagement with the s 114(1C) matters, nor make any explicit reference to the adoption of an "additional purpose". There is a failure to make reference to these matters also in the SOR (Exhibit F9).
7. Although a failure to reference a matter is not conclusive (see [269] above), such failure here, in conjunction with erroneous legal advice (see [248] above), and the lack of any material before the Minister which adverted to the adoption of an additional purpose, or the relevant considerations (Exhibit F10), to my mind, warrants the negative inference being drawn.
8. The POM does not refer to the adoption of an "additional purpose"; rather, it refers to the adoption of additional "uses" of the land, namely "conference centres and commercial facilities that provide for public recreation" (see [113] above). Nowhere does the document refer to the adoption of an "additional purpose".
9. Given the fact that the circumstances through which a Minister may adopt an additional purpose are strictly prescribed by the CL Act, a failure to make mention of the adoption of an "additional purpose" in the POM, the very power the Trust now asserts was exercised through it, weighs heavily against the inference that the POM was drafted with the intention of adding an additional purpose. Reference to the word "use" as opposed to "purpose" is made more significant by the distinction drawn between the two concepts in planning law: (see Chamwell Pty Ltd v Strathfield Council ("Chamwell") [2007] NSWLEC 114; 151 LGERA 400.)
10. Reference to the word "use" as opposed to "purpose", is consistent with the erroneous legal advice, which stated that there was no need to adopt an "additional purpose" because, by virtue of the LEP in force, the use was permissible, as it was a "permitted use" under the POM (see [248] above).
11. These observations are further supported by the lack of any reference in the SOR to the adoption of an "additional purpose" or to any of the 114(1C) considerations: Bat Advocacy, at [46].
12. As a consequence of this misguided approach to the drafting of the POM, the four matters in s 114(1C) were never given "genuine consideration". When read as a whole, the POM does not show any real and genuine engagement with the s 114(1C) issues. I reject the Trust's attempt, in Annexure A to its opening submissions, to illustrate the necessary consideration by isolating a particular consideration, and then pointing to various extracts in the POM which make reference to that matter.
13. The Minister was never under the impression that the matters required consideration, nor was there any material before him which would have drawn his attention to them. The extracts provided, although making reference to the considerations, do not do so in context, nor do they illustrate any proper consideration of the issues. Bare reference is insufficient (see [267] above). For instance, the extracts provided with respect to "the compatibility of the proposed additional purpose with the declared purpose" (Trust's opening subs, Annexure A, p1B), which drew attention to the asserted desirability of redevelopment of the site for commercial uses, which would maximise the enjoyment of the space for public recreation, and assist in the maintenance of the site, as it would "provide an ongoing source of revenue to the Trust" and prevent the reserve from being a target of vandalism.
14. Although these are matters which could go to the issue of compatibility between an "additional purpose" (which authorised use for commercial facilities for a public purpose), and the "declared purpose" ("public recreation"), they were not considered in that context. The extracts from the various parts of the POM, included in Annexure A, namely, those parts addressing the concerns raised in the pubic submissions, "key management" issues, and the design principles which guided the adoption of the indicative concept plan, did not relate to that issue. The issue was raised in those various contexts, and it cannot be said that the Minister turned his mind specifically to the compatibility of the "additional purpose" with the declared purpose of the reserve. He, therefore, did not give "genuine consideration" to the relevant matters: Bat Advocacy, at [44].
15. The applicant must succeed on this ground. The POM was neither drafted, nor adopted, with the intention of adopting an "additional purpose", and mandatory considerations engaged under s 114(1C) were not considered.
16. In case I am wrong in this conclusion, I will now consider a second question:

Q2: Is the additional purpose of "conference centres and commercial facilities that provide for public recreation" an "additional purpose" that can be lawfully approved by the Minister pursuant to the CL Act?

1. It was submitted by Mr Robertson, that, even if the POM was drafted with the intention of adding an additional purpose, and/or consideration was given to the s 114(1C) factors in so doing, the addition of an additional purpose for "conference centres and commercial facilities that provide for public recreation" is, nevertheless, unlawful, because such a purpose is inconsistent with the reserved purpose of "public recreation", and hence is not an "additional purpose" as defined under the Act (see [109] above).
2. Mr Robertson submitted (opening subs, par 21): … a purpose cannot be an "additional purpose" within the meaning of s.112A [see [109] above] if it is inconsistent with, contradicts or negates the purpose for which the land is reserved just as the grant of a license under s.34 of the CL Act is limited to the purpose for which the land is reserved: see [Goomallee] at [22] - [37]. Additional is used in the sense of supplementary: Macquarie 5th ed. One purpose which is added to another does not subtract from the latter, and it does not replace it. The land must still be available to satisfy the declared purpose, which it could not do if it is consumed by the additional purpose. For reasons given above, "conference centres" or "commercial facilities" contradict the declared purpose of the Reserve for "public recreation".
3. The applicant's argument invites the Court to accept the proposition that the exercise of the power to add an additional purpose to reserved land through the adoption of a POM (s 114(1A) - see [110] above) is constrained by the purpose for which the land was originally reserved.

Goomallee

1. Goomallee is certainly relevant here, to the extent that it was determined in that case that the powers to deal with land under s 34, are constrained by the reserved purpose. However, Goomallee is not authority for the proposition that all the Minister's powers under the Act are restrained by the reserved purpose of particular land, even though it does say that the Minister's powers to deal with land "may" be so constrained (at [20] per Basten JA).
2. Whether such a constraint arises depends in a particular case on the construction of the provision there in question, but, in fairness to the applicant's argument, I should deal with Goomallee in more detail.
3. A five-judge bench of the Court of Appeal (Beazley, McColl, Basten, and Macfarlan JJA, and Sackville AJA) was dealing with an Aboriginal land claim made under s 36(1) of the Aboriginal Land Rights Act 1983.
4. The land the subject of the claim had been reserved from sale under the CL Act for the purpose of public recreation. When the claim was made, it was being used for private grazing, pursuant to a licence granted by the Minister under s 34 of the CL Act (set out above at [97]).
5. The Minister argued that the land was not "claimable Crown Land", as it was being otherwise "lawfully used or occupied". The Land Council submitted that the land was not being so used, as the licence granted under s 34 was invalid because it permitted the use of the land for purposes other than "public recreation".
6. Biscoe J had found, at first instance, in favour of the Land Council. Basten JA, with whom the other Judges in the Court of Appeal agreed (Sackville AJA with "one qualification"), dismissed the appeal against His Honour's decision.
7. Basten JA defined the central issue on appeal (at [5]): The issue, as identified in this court, was whether, to be lawful, the use and occupation must be (a) for, or incidental to, the purpose of the reservation or (b) merely not inconsistent with, or not incompatible with, that purpose. The Minister contended that the primary judge had erroneously adopted the more stringent test (a) and that, applying (b), grazing not being incompatible with public recreation, the use or occupation permitted by the licence was lawful.
8. The Court determined that the Crown could not authorise the use of land reserved for public recreation, unless that use was incidental to, or for the purpose of "public recreation".
9. Basten JA rejected the Minister's submission that the test of "incompatibility" was appropriate, as it was necessary to "reconcile" concurrent powers granted under the Act, which may conflict ([19]). He held that the preferred operation of the Act was that "it confers a broad range of powers on the Minister, the exercise of any one of which, with respect to particular land, may foreclose the exercise of the others" ([20]).
10. His Honour also rejected the Minister's application of the "incompatibility" test, on the basis that it conflated "use" with "purpose". Stating that the adoption of a test which determines the power of the Minister to grant a license (sic?) under s 34 by reference to the "use" of the land is misconceived, where the land was reserved for a "purpose", rather than a "use". He said (at [26]): However, the scope of the power to grant the license did not depend on the use of the land, actual or potential, under the license. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used. To define a power by reference to purpose is quite a different exercise to defining a power by reference to permitted activity. The Minister's submission erroneously conflated purpose and activity, as restraints on power.
11. His Honour went on to state ([27] - [29]) that, even if he applied the test of incompatibility, "grazing", as permitted in the license, was incompatible with the purpose for which the land was reserved, and would nevertheless be unlawful. The rights and obligations conferred by the license were incompatible with the use of the land for public recreation. For instance, the holder was required to enclose the land with the provision of gates, for use by authorised persons only, and the license contained no reference to the use of the land for public recreation, nor public access.
12. Basten JA went on ([30]) to discuss some authorities that addressed the scope of the Ministers power to deal with land reserved for public purposes, including Rutledge (above at [215]), which established that: It may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose".
13. His Honour then cited (at [31]) the following passage from Attorney-General for New South Wales v Cooma Municipal Council (1963) 63 SR (NSW) 287; (1962) 8 LGRA 111 (per Brereton J at 294; 118): To my mind the dedication of land 'for purposes of public recreation' necessarily involves the use of such land by the public for their recreation; land used by an individual or a council to manufacture or provide entertainment media for some subsequent enjoyment by the public or to disseminate information as to where recreation may be found is not land used for public recreation. It is obviously not necessary that the public must at all times have access to all parts of the land; indeed the type of recreation provided on it may require the exclusion of the public from parts of it, but any restriction upon the public's access to the whole of the area for the purpose of recreation can be justified only on the basis that it is in the interest of the public and to provide for their recreation within the area that they are so excluded from part of it.
14. Sackville AJA's "one qualification" (at [43] and [44]) was that he did not think it necessary to determine whether the Minster was correct in submitting that the "incompatibility test" was the appropriate test, because the license granted would fail it in any event. He cited, with approval, the following from Rutledge, per Windeyer J (with whom Dixon CJ, Fullagar and Kitto JJ agreed), at 88 ([215] above): In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park … two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit.
15. He added (at [47]): as Windeyer J acknowledged in ... Rutledge at 88, it is not necessary for all members of the public to have free access to all parts of the land so reserved at all times. But it is hardly consistent with the reservation of land for public recreation that the holder of a grazing license is obliged to fence the land in a manner that may well deny the public ready access to it and, moreover, is entitled to use the land in ways that have nothing to do with public recreation in order to derive private profit.

Is Goomallee Distinguishable?

1. The Trust sought to distinguish Goomallee, stating that it "has no bearing on this issue and concerned specific statutory provisions in that case" (closing outline, par 1; and see Tp160, L12 - p161, L21).
2. Mr Birch submitted that Basten JA's finding that the Minister's power to grant a license under s 34 of the CL Act was constrained by the terms on which the land was reserved, turns on the particular wording of s 34 (Tp161, L36 - p162, L21): Section 34 doesn't contain any provision which might suggest it could override or effect the original reservation of land. And in that regard it's for example, in complete contrast with s 34A which commences by saying, "Despite any other provision of this act the Minister may do the things hereunder". So 34A's a clear provision which does give precedence over the others. The question is really this, does s 114 and indeed does the provision in the [CL Act]]…give pre-eminence to whatever is added as an additional purpose in a [POM] over whatever the declared purpose may have been? And the answer to that is yes, it clearly does. Firstly, it's clearly addressing the adding of purposes beyond the declared purpose, that's the very thing that it seeks to do. It clearly contemplates the possibility that the additional purpose could be incompatible with the declared purpose, that's the very thing that it seeks to do. It clearly contemplates the possibility that the additional purpose could be incompatible with the declared purpose and I've already explained to your Honour why the fact that incompatibility will not be a reason for rejecting an additional purpose if one's concerned with 114. So this division unlike s 34, is expressly concerned with alteration to the use or purpose of the land beyond the original declared purpose. Section 114(3) ... is plainly demonstrating the way 114 will take precedence over other provisions of the act once one has gone down the path of this particular provision to create an additional purpose. So for those reasons the decision in Giumelli (sic) has nothing to say, nothing directly to say in any event about the outcome in this particular case.
3. I agree with this submission.
4. On a proper reading, Goomallee is authority for the simple proposition that the exercise of one power under the CL Act may constrain the exercise of another power under it, and whether one power does so depends on the terms of the provision(s) in question. The incompatibility test was rejected outright, because it was propounded on the premise that powers that could be exercised inconsistently need to be reconciled.
5. One power may operate to limit and restrain the extent to which another power may be used. The question, therefore, is: Does the reservation of the land for a public purpose, on its proper construction, operate to restrain the ability to add an additional purpose to the reservation under s 114?
6. For the reasons that follow, I believe the power to adopt an "additional purpose" under s 114 is not so constrained.

Q3: Is the exercise of the power granted by s 114 constrained by the reserved purpose?

1. It was submitted by the Trust (closing outline par 1) that the CL Act "clearly evinces a legislative intention to permit additional purposes adopted in a [POM] under s 114 to extend beyond public recreation and which may even be inconsistent with the public recreation purpose".
2. I am of the opinion that, on a proper construction of s 114, the power to add an additional purpose is unconstrained by the purpose for which the land is originally reserved.
3. The Trust submitted that, if the applicant's construction were adopted, the power to adopt an additional purpose under s 114 would be rendered otiose (see [110] above). I agree with that submission.
4. The Trust pointed to the definition of "declared purpose" in s 112A (see [109] above), which is "broad", and would cover, in this case, "not just public recreation but any purpose or use permitted under or in connection with public recreation" (Tp158, LL19 - 26). It was submitted (Tp158, LL4 - 17) that it is impossible to conceive of an "additional purpose" that would be compatible with, or not inconsistent with, or did not "subtract from", public recreation, which would fall outside this definition of declared purpose.
5. Accordingly, if Mr Robertson's submission were adopted, the definition of "additional purpose" under s 112A, and the power to adopt one through a POM under s 114, would be rendered otiose, because any purpose which is "compatible" or "not inconsistent" with the declared purpose would fall under the definition of "declared purpose". I agree with the Trust's submission (par 1) in this regard.
6. An even more compelling basis for rejecting the construction propounded by the applicant is revealed when one compares the Minister's power to adopt a POM through gazettal, as opposed to through the adoption of a POM (see [111] above).
7. Under s 121A(3)(a) ([111] above), the Minister may not authorise a reserve to be used for an additional purpose, "unless the Minister is satisfied that…the additional purpose is compatible with the declared purpose ...". This prohibits the Minister from adopting an "additional purpose", through publication in the Gazette, which, in the Minister's opinion, is not compatible with the "declared purpose".
8. Contrastingly, s 114(1C)(b) states that, when adopting an "additional purpose" through the adoption of a POM, the Minister must have "regard to" only the compatibility of the "declared purpose" with the proposed "additional purpose".
9. In my opinion, this is a strong indication of Parliament's intention to confer a wide and unfettered power on the Minister to adopt an "additional purpose" through a POM. The Trust submitted (Tp159, LL26 - 40): If we take compatibility for example, and your Honour just compares that back with 121A, 121A is effectively a prohibition on the Minister authorising an additional purpose that is incompatible with the declared purpose. 114(1)(c), a much weaker restriction altogether. The Minister merely has to have regard to compatibility. There is no prohibition on the Minister authorising an additional purpose under 114(1)(c) that is incompatible if he has had regard to compatibility. Indeed, it's distinctly possible the Minister could decide to permit something that is incompatible with the declared purpose because, for example, public interest or principles of Crown land management could hypothetically be so much advanced by the particular additional purpose in question that that is a preponderant reason which in the Minister's opinion permits an incompatible additional purpose to be adopted. So one can see from the way the Act has been structured there is clearly not intended to be any prohibition where one goes down the path of 114 on incompatibility, only in 121.
10. I agree with this submission.
11. The weight of this argument alone convinces me that the power to adopt an "additional purpose" under s 114 should not be restricted to purposes which are not inconsistent with, or do not "contradict or negate, the purpose for which the land was reserved" (applicant's opening subs, par 21).
12. Had there been an intention to restrict the ability of the Minister to adopt an additional purpose under s 114, in the manner propounded by Mr Robertson, the wording of that provision, or the definition of "additional purpose" would have said so, as it does in s 121A.
13. Therefore, the applicant's second ground of challenge must fail - the power under s 114 to adopt an "additional purpose" is not limited to purposes that are not inconsistent with, or do not negate/contradict the "declared purpose".

Q4: Does the additional purpose of "conference centres and commercial facilities that provide for public recreation" include "function centres"?

1. It was submitted (applicant's subs, par 17) that, even if I found that the additional purpose of "commercial facilities that provide for public recreation" was lawfully adopted under the POM, and, therefore, permissible in the 6(a) zone, the development as proposed simply does not meet that description. Firstly, a function centre is not a "conference centre", and secondly, the proposal does not "provide for public recreation".
2. Specifically, it was submitted that the use of the land for an "exclusive purpose such as a wedding is incompatible with its use for public recreation": Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 189 - 190 (par 19). "In order for land to be used for public recreation, the land must be open to the public generally as of right, and it must not be a source of private profit": subs par 17, and see Rutledge, at 88 ([215] above). The proposal does not satisfy either of those conditions, because the public will not have access to the function centre as of right, and it will be a source of private profit (par 18).
3. Neither respondent argued against Mr Robertson on this issue, and I too agree with him.
4. As is clear from the authorities discussed earlier, 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 (see [55] - [56] above). As is clear from the SEE, it is contemplated that the public will be excluded from the function centre in this case, and from other parts of the land generally. The development is, therefore, not a "commercial facility that provides for public recreation".
5. The question remains to be determined whether it can be described as a "conference centre".
6. Mr Robertson submitted at (Tp93, LL42 - 44): What was consented to by the council was not a conference centre, it was a function centre and the further details showed that it would be used principally for weddings.
7. As expressed in the SEE, the building was to be used for events which went beyond conferences, such as weddings. In my opinion, for a building to be a conference centre, its use must be restricted to conferences, and the like. If used for purposes outside that use, it ceases to be a conference centre, and becomes a broader type of building, namely a function centre.
8. I agree, therefore, with the submission of Mr Robertson that the development as approved is not use of the land for a purpose of either a conference centre, or a commercial facility for public recreation. As such, even if the POM did lawfully authorise those additional purposes, the development as approved did not fall under either.
9. That brings me, finally in this section of this judgment, to consider the pathway.

Q5: Was that part of the pathway contained wholly within King Edward Park permissible?

1. As discussed above (at [59], and [172]), the DC approved work in King Edward Park, as distinct from the Reserve, namely, the construction of 19 right angled car spaces along the Ordnance Street frontage, together with a car park entrance and exit driveways, and associated landscaping.
2. The applicant claims that these works are prohibited in King Edward Park, as function centres are not permissible in the 6(a) Zone (see [82] - [83] above). Nor is there a POM in respect of the Park, as distinct from the Reserve, which could authorise the works (applicant's subs, pars 25 - 26). Hence, the development includes approval of development which is prohibited within the zone, and the consent as a whole is invalid.
3. Neither the Council, nor the Trust sought to contradict this claim.
4. As the proposed works in King Edward Park "serve the end of enabling" the function centre to be carried on, those works are ancillary to the use of the land for the purpose of a function centre, and that is their purpose; Chamwell. As such a use is impermissible in the 6(a) Zone, those works are prohibited.
5. It follows that the DC purporting to grant consent to those works is invalid.

Conclusion on permissibility of the development

1. Having determined that development for the purpose of "function centre" in both the Reserve and the Park was prohibited, I find that the Council had no power to grant the consent.
2. As a consequence of this finding, it is unnecessary to address the applicant's secondary grounds, which attack the Council's assessment of the application (see [201] above), and flowed from the late inclusion of the contentious public pathway in the approved project.
3. Nor is it necessary to address the Council's argument that condition 3.28, requiring the inclusion of the pathway, was severable from the consent.
4. The only issues left, therefore, for determination in this matter are the severability of parts of the POM, and questions of discretion, and of relief.

Severance

1. The Trust submitted that, even if the POM did not lawfully authorise additional "uses", this would only invalidate that part of the POM authorising the "use", and would leave the remainder intact (par 47). (Mr Birch's submissions do not apply the Chamwell distinction between "use" and "purpose", and it would seem to me, with respect, that he was here referring more to "purpose", than to "use".)
2. The Trust wishes to preserve the POM, absent the purported additional purposes, so as to save it the cost and expense associated with drafting a completely new document (Tp156), and the applicant did not take issue with this position (Tp156).
3. The issue remains, however, whether and how severance can be practically achieved.
4. The following exchange took place on the third day of the hearing between Messrs Birch and Robertson (Tp156, L27 - Tp157, L16): BIRCH: ... Now, in this opening, Mr Robertson indicated that he didn't think that the applicant would be arguing that severance was not available. In other words, he was accepting, as I understood it, that severance would be available to save the [POM] without additional purposes. I can understand he may well take that course because if the [POM] survives without additional purposes, then he would probably still win his case if all his other arguments were accepted, but it would be important to my client not to have to go and create a whole fresh [POM] from scratch, even without the additional purposes. ROBERTSON: My friend is correct in his understanding of our position, your Honour. If we get to the point of severance in the [POM], then effectively we've won the case because the [DC] would be prohibited. Insofar as the method of severance is concerned, given our acceptance at severance, in theory, is possible, it will be a matter for my friend to put forward a plan in a severed form because the Court can't legislate when severing and there will need to be some rewriting, so I just mention that. And it's not a task that should be left to your Honour to do. I think it's appropriate that my friend should put forward an amended document and then we can say yay or nay to it. That's how I anticipate the matter could be dealt with. That is, left to after judgment. HIS HONOUR: Yes. BIRCH: Your Honour, that's probably a convenient course. In our opening written submission we indicated what we thought would be the words that would be severed, but there is more than one possible finding that your Honour could make about what the [POM] means, and it could be that the best course is for your Honour to indicate, through a judgment, if you get to that point, what your view is, if any portion of the [POM] it considered to be invalid and then the parties can bring forth some form of formal order that would then give effect to it. ROBERTSON: I can tell your Honour now that the matter of greatest concern to us is the indicative concept plan. Of course it indicates a use of the building on the land, which we say is not open, and so that plan would either need to be struck out or some alteration to the wording on it be undertaken. It would only be alteration to the wording, I think, and not to the actual design elements. I don't think the design elements are would be affected at all if the plan were solely restricted to public recreation purposes.
5. In its opening written submissions, the Trust (at par 46) submitted that, "even if the Minister did fail to take into consideration the section 114(1C) factors (which is denied), the [POM] is not invalid in toto. It is invalid only to the extent that the [POM] seeks to authorise the additional uses".
6. Part D of those written submissions (pars 47 - 61) dealt with the issue of severance, and the salient parts of those submissions are discussed below.
7. It is common ground that a POM is an "instrument" for the purposes of the Interpretation Act 1987, s 32 of which provides: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
8. Maitland City Council v Anambah Homes [2005] NSWCA 455; 64 NSWLR 695 (per Tobias JA, with Spigelman CJ and Ipp JA agreeing) cited (at [166]) the following passage from the judgment of Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86, with respect to the test for severance under s 32: Provisions such as s 32 are to be approached consistently with the principles of interpretation enunciated by Dixon J in Bank of New South Wales v The Commonwealth. The court is required to have regard to the intention of the legislature, but if it appears that severance of an ultra vires portion of a regulation … results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as s 32, severance cannot be effected. This is because the residue would operate differently to the apparent intention of the legislature.
9. The question the Court must, therefore, ask itself is whether severance of those portions of the POM that purport to add, as an additional purpose, "conference centres and commercial facilities that provide for public recreation", would result in the remainder of the POM operating differently from the manner in which the whole would have operated. In other words, to what extent can the objectives/management outcomes of the POM be achieved within the constraints imposed by the dedicated purpose of the reserve of public recreation.
10. As I noted above, it was common ground between the parties that "it may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose": see Rutledge.
11. This restriction on the use of land reserved for a public purpose under the CL Act for commercial uses is explicitly recognised in the POM (at Exhibit F1, tab 12, fol 129).
12. Unfortunately for the Trust, I am of the opinion that removal of those parts of the POM which purport to permit the use of the land for "conference centres" and "commercial facilities that provide for public recreation" would completely alter the manner in which the POM would operate.
13. When the POM is read in its entirety, it becomes clear that the entire purpose behind it was to permit the use of the land for the purpose of a commercial facility. The "vision statement" on which the POM was "based", and which was "intended to guide the Reserve Trust in its decision making process" (fol 136), provided (fol 136, par 3.12): To develop the King Edward Headland Reserve for recreation and commercial purposes to serve the recreation and cultural needs of the Newcastle and Hunter Region Community.
14. In addition, one of the outcomes of the plan is listed on its front page as "The development of a future significant commercial building that takes advantage of the location relative to the coast and the Newcastle CBD". Further, under the heading of "Purpose of the [POM]" (at fol 116), it was said that "The purpose of the [POM] is to bring forward a Concept Plan for the Reserve…".
15. Significantly, the public submissions received in response to the exhibition of the POM were largely opposed to such development of the site, but it was said that development can be justified (fol 118): ... in terms of providing a basis for the protection of an environmental, heritage, and recreational asset of the Crown. Commercial use of the site should provide an ongoing source of revenue to the Trust and prevent the Reserve from becoming an on-going target for further vandalism as well as a public liability.
16. Further (at fol 126, at par 2.5), under the heading "Management Issues", it was said that there "are three key management issues that the Trust must address in them (sic) Management of the Reserve". One of those "Management Issues" was, relevantly: 3. In view of the degraded condition of the Reserve, redevelopment to enable the Reserve to be used and enjoyed by the community on a long-term sustainable basis. Redevelopment has to be considered because of the capital costs involved in providing public facilities and the ongoing need for revenue to maintain+ (sic) these improvements.
17. The resolution of this "Management Issue" is premised on the development of commercial facilities on the site. Absent authorisation of the use of the site in that manner in the POM, this issue cannot be dealt with.
18. In my opinion, this indicates that the POM was drafted with the clear intention of permitting the use of the land for commercial premises. Removal of references to the additional purposes, and most significantly the concept plan, undermines the intended effect of the POM. In fact, one would struggle to determine what the impact of a POM would be if those provisions, which purport to permit the use of the land for commercial facilities that provide for public recreation and conference centres, were removed.
19. Thus, in my opinion, the POM would operate in an entirely different manner if those affected parts are removed, and, accordingly, I consider that they cannot be severed.
20. The entire POM must, therefore, be found to be invalid.

J: Discretionary Considerations, Relief, Costs, and Orders

Discretion

1. The Council asserted that there were two discretionary bases upon which the applicant should be refused relief. Both went to those grounds attacking the Council's assessment of the DA and the pathway conditions, and, therefore, cannot impugn the applicant's entitlement to relief on the basis of its primary grounds (see [199] above). It is, accordingly, not necessary for me to determine those issues, but I will set out the Council's claim in brief.
2. First, it was said that relief should be denied on the basis of futility (Tp147, L3). Even if the Court found that the Council had failed to take into account various considerations, and/or to undertake various consultations with approval bodies, in respect of the pathway, such failures would have made no difference to the Council's determination to grant consent: Woolworths Ltd v Commissioner of Police [2013] WASC 413, at [129], and see Council's subs, pars 35 - 36. (Tpp147 - 150.)
3. The second discretionary matter "concerns the contradictory positions of the applicant in relation to the pathway" (par 37). More particularly, it is asserted that, in circumstances where the pathway condition was included in the DA in response to complaints made by members of the applicant association, and then its removal by way of a s 96 modification application was opposed (see [150] above), the applicant should not now be entitled to relief on the basis that the DC is invalid because of the inclusion of the pathway condition (pars 37 - 38). Mr Shearer complained that "the maintenance of the pathway grounds is nothing short of hypocrisy by the applicant in these proceedings" (Tp150, L43), and that (Tp159, L48 - p160, L1): For an applicant to seek a pathway, get a pathway, advocate for its retention then challenge the pathway in Court is, to use a euphemism, not an appropriate cause (sic).
4. As I have found that the development was impermissible, there is no need for me to determine whether the Council made errors in respect of its treatment of the DA, and the pathway condition in particular.

Relief

1. Both the Council and the Trust submitted that the injunctive relief sought by the applicant in Order 5 of its further amended summons (see [193] above) was neither necessary nor appropriate, because there was nothing to suggest that the Council and the Trust would not abide by any determination of this Court as to the lawfulness of the development (Trust's closing subs par 12, and Council's subs pars 39 - 40).
2. On the basis of these submissions that those respondents would abide by any determination of the Court, the applicant did not press the injunction it sought against them (Tp151, LL26 - 29).
3. The Council also submitted that, dependent on my determination, I should consider granting an order of "conditional validity" (subs par 41), pursuant to Division 3 Part 3 of the Land and Environment Court Act 1979 (NSW), as opposed to declaring the consent wholly invalid (see [76] - [78] above).
4. Given my finding that the DC authorised development for a prohibited purpose, such orders are inappropriate, as there was no power to grant the consent. (See my decisions in Calardu Warrawong (Home Starters) Pty Ltd v Wollongong City Council [2008] NSWLEC 265, and Clark v Wollongong City Council (No 2) [2008] NSWLEC 226.)

Costs

1. The applicant submitted (par 68) that costs should "follow the event", but the Council and the Trust submitted that, in the "event" that the applicant is successful, costs should be reserved, so that they may be heard on the question, following consideration of my findings (Trust closing subs, par 13, and Council's subs, par 42).
2. This Court would normally make a costs order in favour of an applicant who had such success, as the applicant has here, on all the relief it pressed. However, in order to afford time for all parties to consider their positions in light of my findings, I will make an order for costs in favour of the applicant, on a self-executing basis.

Orders

1. The Orders of the Court are, therefore: 1. The Court declares that the Development Consent granted to Development Application No. 2010/1735 dated 10 November 2011 for a function centre, kiosk, associated car parking and landscaping at 1 Ordnance Street Newcastle NSW 2300, is invalid and of no effect; 2. The Court declares that the Plan of Management for the King Edward Headland Reserve, Newcastle, adopted in September 2007 by the Minister responsible for such plans, is invalid and of no effect, and that development of the land known as King Edward Headland Reserve at Lot 3109 in DP 755247 for the purposes of "function centre" is not permissible, as it was not authorized by a valid Plan of Management; 3. The Court orders that the Fourth Respondent, by itself, its servants and agents, be restrained from taking any step to use the subject land for any purpose other than public recreation; 4. The Court orders that the first and second Respondents pay the Applicant's costs of the proceedings, on a party-party basis, as agreed, or as assessed according to law, unless, within 21 days, any party seeks an order in different terms; 5. All exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2015