Hopkins v Tamworth Regional Council

Legislation Cited: Crown Land Management Act 2016 (NSW), ss 1.5, 1.15, 3.1, 3.13, 3.20, 3.21, 3.22, 3.23, Sch 7 cl 10A
Environmental Planning and Assessment Act 1979 (NSW), Pt 5, Div 5.1, s 1.4
Local Government Act 1993 (NSW), Ch 6 Pt 2, ss 25, 35, 36, 40, 46, 48, 47B, 48, 54A
State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), Div 12, ss 2.72, 2.73, 7.32
State Environmental Planning Policy Amendment (Miscellaneous) (No 2) 2022 (NSW), Sch 1[6]
Tamworth Local Environmental Plan 2010 (NSW)

Cases Cited: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 46
Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166
Hopkins v Tamworth Regional Council [2024] NSWLEC 142
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Save Little Manly Beach Foreshore Inc v Manly Council (No 2) [2013] NSWLEC 156

Category: Principal judgment

Parties: Benjamin Hopkins (Applicant)
Tamworth Regional Council (First Respondent)
Fleetwood Urban Pty Ltd (Second Respondent)

Representation: Counsel:
Self-represented (Applicant)
Dr J Smith (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Urban Legal (First Respondent)

File Number(s): 2024/420506

Publication restriction: Nil

Index

Index

Amended Summons 1 April 2025

Crown Land Management Act 2016 (NSW)

Local Government Act 1993 (NSW)

State Environmental Planning Policy (Transport and Infrastructure) (TISEPP) 2021 (NSW), as amended on 2 December 2022

Evidence

Chronology

Ground 4

Mr Hopkins’ submissions

Council’s submissions

Finding on ground 4

Ground 3

Mr Hopkins’ submissions

Council’s submissions on ground 3

Finding on ground 3

Ground 2

Mr Hopkins’ submissions

Council’s submissions on ground 2

Application of Chapter 6 Part 2 of the Local Government Act

Finding on ground 2

Mr Hopkins’ submissions in reply

Costs

Order

JUDGMENT

1. The Applicant (Mr Hopkins) has commenced judicial review proceedings in relation to the approval of the Tamworth Regional Skywalk project (Skywalk) at Oxley Park in Tamworth by the Tamworth Regional Council (Council).

2. The Skywalk consists of a combination of boardwalks, viewing platforms, and elevated walkways. It is intended to connect the Oxley Scenic Lookout with a proposed designated on-street car park. It will extend from the on-street car park and zigzag across the landscape to the Oxley Scenic Lookout.

3. The Skywalk will be mostly located on Lot 7300 DP 1152789, which is Crown land (Oxley Park). The Council is the Crown Land Manager of Oxley Park. A corner of the approved development, the on-street car park, will be located on Lot 1 DP 1108482, which is owned by the Council (Lot 1 Council Land). The Council has awarded a tender to build the Skywalk to Fleetwood Urban Pty Ltd (the Second Respondent) and work has commenced. Mr Hopkins’ application for an interlocutory injunction stopping work on the Skywalk was refused on 20 December 2024; Hopkins v Tamworth Regional Council [2024] NSWLEC 142.

4. The Second Respondent has filed a submitting appearance. Mr Hopkins represented himself in the proceedings. As the Applicant in judicial review proceedings Mr Hopkins bears the onus of establishing his case on the balance of probabilities.

5. The matter was originally set down for hearing on 5 June 2025. I allowed an oral application to be made without notice on that day by Mr Hopkins on the basis he was not ready to proceed and postponed the hearing to 12 June 2025 over the objections of the Council. At the end of the hearing on 12 June 2025 I granted leave to Mr Hopkins to file written submissions in reply limited to six pages with the opportunity for the Council to respond to identify matters it did not consider were in reply. Mr Hopkins filed submissions in reply dated 25 June 2025 numbering 62 paragraphs over eight pages. The Council’s further submission dated 28 June 2025 identified that in its view most of the paragraphs were not in reply as they raised new grounds or arguments not made by Mr Hopkins at the substantive hearing and submitted that these should not be permitted. For completeness I note that Mr Hopkins’ application to re-open his case heard on 8 August 2025 was dismissed.

Amended Summons 1 April 2025

6. The Amended Summons dated 1 April 2025 identified four grounds of judicial review. At the hearing on 12 June 2025 ground 1 was not pressed by Mr Hopkins. The three remaining grounds state as follows:

The decision maker was the Tamworth Regional Council (TRC).

The decision to be reviewed is the determination of the Skywalk REF on 30/07/2024 and the Council resolution 218/24 recorded in the Minutes of Ordinary Council on 13/08/2024 to accept the tender submitted by Fleetwood Urban Pty Ltd and affix of the Seal of Council to a contract for the “Design and Construction” of the Skywalk.

The precise terms of the “determination” are contained on page 48 of the REF in the Determining Authority Sign Off and the terms of “approval” are described by items (i), (ii), (iii), (iv), and (v) of Resolution 218/24 of the TRC Closed Council Reports in the Minutes from 13/08/2024.

The Applicant, Benjamin Hopkins, seeks relief from the whole of the decision - which includes both the determination of the environmental assessment and the approval of the activity through a provision of financial accommodation according to the scheme of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A) Division 5.1, subject to statutory preconditions governing the use and management of the particular community land in Oxley Park Crown reserve.

Grounds

2 Local Government Act 1993 (NSW) (LG Act) Chapter 6 Part 2 s 25, s 35, s 36, s 54A and 47B

The decision by the TRC to design and construct a Skywalk is in breach of s 35 of the LG Act 1993 in determining (30/07/2024) and approving (13/08/2024) the Skywalk without classifying (s 25), categorising (s 36, 36A, 36C), describing (s 54A), managing (s 44) and dealing with (s 45 and s 47B) the site of the proposed Skywalk, Oxley Park, in accordance with a lawful (s 40) Plan of Management for community land.

3 Crown Lands Management Act 2016 (NSW) (CLM Act) s 1.5(2)(a), s 1.15, s 3.20, 3.21, 3.22 and 3.23

The decision by the TRC to design and construct a Skywalk is not authorised by the CLM Act (s 1.15) and nor is it required under any other Act (s 1.5(2)(a)) and is therefore without lawful authority for a council manager of Crown land whose functions are set out in Division 3.4 of the Act.

4 State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) (TISEPP) clause 2.73(3) and the Environmental Planning and Assessment Act 1979 (NSW) section 4.1

The TRC erred in law in applying cl 2.73(3) of the TISEPP 2021 to the planning and environmental assessment of the Skywalk because the terms of cl 2. 73(3) cited in the REF were not in force on 30/07/2024 or 13/08/2024 when the activity was determined/approved and the terms of the TISEPP which were in force at that time were not assessed and are unauthorised by a lawful plan of management and classification of land made under the CLM Act and LG Act which apply to the site.

7. Extensive relief in the form of a number of declarations and orders were set out in the Amended Summons.

8. These are judicial review proceedings, meaning the Court is concerned with the legality of the decision, not its merits; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 46 at 35-36 (Brennan J).

Crown Land Management Act 2016 (NSW)

9. The following sections of the Crown Land Management Act 2016 (NSW) (CLM Act) were referred to in argument:

Part 1 Preliminary

Division 1.2 Interpretation

1.5 General definitions

(2) There is lawful authority for a person’s conduct or an activity for the purposes of this Act if it—

(a) is authorised or required by or under this Act or another Act

…

Division 1.4 Application of Act

1.15 Dealings with Crown land generally subject to Act

(1) Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act.

(2) However, this Act does not affect the operation of another Act to the extent that it—

(a) makes special provision for particular Crown land or any particular kind of Crown land, or

(b) authorises Crown land to be dealt with in any manner inconsistent with this Act.

…

Part 3 Management of Crown land

Division 3.1 Introduction

3.1 Responsibility for management of Crown land

(1) The person responsible for the care, control and management of particular dedicated or reserved Crown land is—

(a) for land with one Crown land manager—the Crown land manager

…

Division 3.4 Crown land managed by councils

3.20 Application of Division

(1) This Division applies in relation to any local council that is a Crown land manager of dedicated or reserved Crown land (a council manager).

Note.

See Division 4.2 in relation to the powers and other functions of councils in which Crown land is vested under that Division.

(2) This Division applies despite anything in the Local Government Act 1993.

(3) The regulations may make provision for or with respect to the modification of the provisions of the Local Government Act 1993 applicable under this Division to council managers.

3.21 Management in accordance with Local Government Act 1993

(1) A council manager is authorised to classify and manage its dedicated or reserved Crown land as if it were public land within the meaning of the Local Government Act 1993, subject to this Division.

Note.

The term public land (as defined by the Local Government Act 1993) excludes land to which this Act applies even if it is vested in or under the control of a local council. The Act also requires local councils to classify their public lands as either community land or operational land and manage the land accordingly.

(2) Accordingly, a council manager is also authorised to manage its dedicated or reserved Crown land as if it were community land or operational land, but only as permitted or required by this Division.

Note.

For example, requirements relating to reporting and plans of management will generally be as provided by the Local Government Act 1993 rather than this Act.

3.22 Functions of council managers

(1) Except as provided by subsection (2) or (3), a council manager of dedicated or reserved Crown land—

(a) must manage the land as if it were community land under the Local Government Act 1993, and

(b) has for that purpose all the functions that a local council has under that Act in relation to community land (including in relation to the leasing and licensing of community land).

(2) A council manager of dedicated or reserved Crown land that is a public reserve (as defined in the Local Government Act 1993)—

(a) must manage the land as a public reserve under that Act, and

(b) has for that purpose all the functions that a local council has under that Act in relation to a public reserve.

(3) A council manager of dedicated or reserved Crown land that is classified, with the written consent of the Minister under this section, as operational land under the Local Government Act 1993—

(a) must manage the land as if it were operational land under that Act, and

(b) has for that purpose all the functions that a local council has under that Act in relation to operational land.

…

3.23 Management of land as community land

(1) Application This section applies to a council manager that is required by this Division to manage dedicated or reserved Crown land as if it were community land under the Local Government Act 1993.

(2) Initial assignment of categories The council manager must, as soon as practicable after it becomes the manager of the dedicated or reserved Crown land (including because of the operation of Schedule 7), assign the land to one or more categories of community land referred to in section 36 of the Local Government Act 1993.

Note.

Section 36 (4) of the Local Government Act 1993 requires a draft plan of management for community land to categorise the land by reference to one or more of the following categories—

(a) a natural area,

(b) a sportsground,

(c) a park,

(d) an area of cultural significance,

(e) general community use.

It also enables land that is categorised as a natural area to be further categorised as bushland, wetland, escarpment, watercourse, foreshore or a category prescribed by the regulations under that Act (or a combination of these).

(3) The assigned category or categories must be those that the council considers to be the category or categories that are most closely related to the purposes for which the land is dedicated or reserved.

…

Schedule 7 Savings, transitional and other provisions

Part 2 Provisions consequent on enactment of this Act and Crown Land Legislation Amendment Act 2017

Division 4 Abolition, reconstitution and continuation of certain offices, bodies and other things

10A Continuation of certain managed reserve trusts for transitional period after repeal day

(6) In this clause—

continuation period means the period—

(a) commencing on the repeal day, and

(b) ending immediately before the transition day.

old reserve trust provisions means the following provisions of the Crown Lands Act 1989—

(a) section 92 (3) (a) and (b), (4), (6) (c) and (d), (6A) and (6B),

(b) section 95,

(c) section 96,

(d) section 97,

(e) section 97A,

(f) Division 7 of Part 5,

(g) section 121.

transitional trust land, in relation to a transitional reserve trust, means—

(a) any land in which the reserve trust had an estate in fee simple (including because of section 100 of the Crown Lands Act 1989) immediately before the repeal day, and

(b) any land acquired by the reserve trust under section 101 of that Act immediately before the repeal day, and

(c) any other land acquired by or vested in the reserve trust in its capacity as a trust (for example, land acquired or transferred under section 14 of the Cemeteries and Crematoria Act 2013) immediately before the repeal day, and

(d) any conditional Crown land vested in the reserve trust by operation of clause 7A.

Local Government Act 1993 (NSW)

10. The following sections of the Local Government Act 1993 (NSW) (LG Act) were referred to by the parties:

Chapter 6 What are the service functions of councils?

Part 2 Public land

Division 1 Classification and reclassification of public land

25 All public land must be classified

All public land must be classified in accordance with this Part.

…

Division 2 Use and management of community land

35 What governs the use and management of community land?

Community land is required to be used and managed in accordance with the following—

• the plan of management applying to the land

• any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land

• this Division.

36 Preparation of draft plans of management for community land

(1) A council must prepare a draft plan of management for community land.

(2) A draft plan of management may apply to one or more areas of community land, except as provided by this Division.

…

46 Leases, licences and other estates in respect of community land—generally

(1) A lease, licence or other estate in respect of community land—

(a) may be granted for the provision of public utilities and works associated with or ancillary to public utilities, or

(a1) may be granted for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider, or

(b) may be granted, in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate—

(i) for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or

(ii) for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or

…

(v) (Repealed)

…

but may not otherwise be granted.

…

47B Lease or licence in respect of natural area

(1) A lease, licence or other estate must not be granted, in respect of community land categorised as a natural area—

(a) to authorise the erection or use of a building or structure that is not a building or structure of a kind prescribed by this section or the regulations, or

(b) to authorise the erection or use of a building or structure that is not for a purpose prescribed by this section or the regulations.

(2) A lease, licence or instrument granting any other estate is void to the extent that its provisions are inconsistent with this section.

(3) In this section, erection of a building or structure includes rebuilding or replacement of a building or structure.

(4) The following buildings and structures are prescribed for the purposes of subsection (1)(a)—

(a) walkways,

(b) pathways,

(c) bridges,

(d) causeways,

(e) observation platforms,

(f) signs.

(5) The following purposes are prescribed for the purposes of subsection (1)(b)—

(a) information kiosks,

(b) refreshment kiosks (but not restaurants),

(c) work sheds or storage sheds required in connection with the maintenance of the land,

(d) toilets or rest rooms.

(6) Despite subsection (1), a lease, licence or other estate may be granted, in respect of community land categorised as a natural area, to authorise the erection or use of any building or structure necessary to enable a filming project to be carried out, subject to the conditions prescribed by subsection (7) and the regulations.

…

Division 3 Miscellaneous

48 Responsibility for certain public reserves

(1) Except as provided by section 2.22 of the Crown Land Management Act 2016, a council has the control of—

(a) public reserves that are not under the control of or vested in any other body or persons and are not held by a person under lease from the Crown, and

(b) public reserves that the Governor, by proclamation, places under the control of the council.

(2) If any doubt arises as to whether any land comes within the operation of this section, or as to the boundaries of a public reserve, the Governor may, by proclamation, determine the matter.

54A Community land to be described in common terms

Any public notice given by a council with respect to a parcel of community land must describe the land by reference to its common description (such as its address, or the name by which it is generally known) whether or not the notice also describes the land by reference to a more formal legal description.

11. ‘Public land’ is defined in the Dictionary as:

public land means any land (including a public reserve) vested in or under the control of the council, but does not include—

(a) a public road, or

(b) land to which the Crown Land Management Act 2016 applies, or

(c) a common, or

(d) a regional park under the National Parks and Wildlife Act 1974.

12. ‘Public reserve’ is defined in the Dictionary as:

public reserve means—

(a) a public park, or

…

(f) any land vested in the council, and declared to be a public reserve, under section 76 of the Crown Lands Act 1989, or

(g) Crown managed land that is dedicated or reserved—

(i) for public recreation or for a public cemetery, or

(ii) for a purpose that is declared to be a purpose that falls within the scope of this definition by means of an order published in the Gazette by the Minister administering the Crown Land Management Act 2016,

being Crown managed land in respect of which a council has been appointed as its Crown land manager under that Act or for which no Crown land manager has been appointed, or

…

and includes a public reserve of which a council has the control under section 344 of the Local Government Act 1919 or section 48 but does not include a common.

State Environmental Planning Policy (Transport and Infrastructure) (TISEPP) 2021 (NSW), as amended on 2 December 2022

13. The TISEPP at the date of the decision was as follows:

2.73 Development permitted without consent

…

(2) Development for any purpose may be carried out without consent –

…

(c) on Crown managed land, by or on behalf of –

(i) the Secretary, or

(ii) a Crown land manager of the land (or an administrator of the manager), or

(iii) the Ministerial Corporation, or

(iv) the Minister administering the Crown Land Management Act 2016,

…

if the development is for the purposes of implementing a plan of management adopted for the land under the Act referred to above in relation to the land or in accordance with the Local Government Act 1993 in relation to Crown managed land managed by a council.

(3) Any of the following development may be carried out by or on behalf of a public authority without consent on land owned or controlled by the public authority—

(a) development for any of the following purposes—

(i) roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges,

(ii) recreation areas and recreation facilities (outdoor), but not including grandstands,

(iii) visitor information centres, information boards and other information facilities,

(iv) lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard,

(v) landscaping, including landscape structures or features (such as art work) and irrigation systems,

(vi) amenities for people using the reserve, including toilets and change rooms,

…

Evidence

14. Mr Hopkins sought to tender two bundles of documents. The Council objected to most of the documents, primarily on the basis of lack of relevance to the grounds of review. The documents in the bundles that the Council did not object to were marked Exhibit A. The balance of the documents in the bundles were marked MFI 1. On the day of the hearing Mr Hopkins also sought to tender a third bundle of documents. This was also objected to by the Council on the ground of lack of relevance and was marked MFI 2. The documents marked MFI 1 and MFI 2 did not ultimately come into evidence.

15. Within Exhibit A Mr Hopkins referred to:

16. extracts of a gazette notice from 1888 which showed that Oxley Park had been reserved from sale and placed under the temporary control of the Borough Council of Tamworth being reserved for public recreation;

17. a screenshot from the Crown Land Manager Reserves Portal which highlighted Oxley Park;

18. an email to Mr Hopkins from an officer of Crown Lands within the NSW Department of Planning, Housing and Infrastructure dated 1 August 2024 stating that the Council continued to manage Oxley Park as Crown Land Manager after the board was abolished and that the Council had always been the manager of Oxley Park. An extract referred to in Mr Hopkins’ submissions follows:

In respect of Question 3), Tamworth Public Recreation (R6742) Reserve Trust – the board was dissolved and abolished on 30.6.2019 and Tamworth Regional Council continued to manage the reserve, as a crown land manager. This was as a result of the enactment of the Crown Land Management Act 2016, in accordance with Schedule 7, Part 2, Division 4, Section 10A of the Act.

Council has always been the manager of the reserve (R6742) and any changes have purely been in relation to legislative change.

Land reserved R6742 for Public Recreation – see attached gazette dated 14 July 1888 (there have been several additions to the reserve since then)

Reserve R6742 placed under the control of Borough Council of Tamworth (now Tamworth Regional Council) – see attached gazette dated 24 July 1888

Tamworth Public Recreation (R6742) Reserve Trust – reserve trust established on commencement of the Crown Lands Act 1989 (Schedule 9 Part 1 Sections 4 and 5)

16. Mr Hopkins also tendered a revised version of the Aboriginal Cultural Heritage Assessment for the Skywalk dated September 2024 which was a different version to that which was part of the Review of Environmental Factors (REF) dated July 2024. This became Exhibit B. I note the Council advised that there were three versions of the REF as it was refined over time. REF version 3 dated July 2024 was before the General Manager when he made his determination to accept the REF and the Council when it made its determination to award the tender.

17. Mr Hopkins considered there were two parts to the decision he was challenging. First, the General Manager’s acceptance of the REF. Secondly, the Council accepting the tender of Fleetwood Urban Pty Ltd for the construction of the Skywalk.

18. The REF stated in part:

| Crown Land Management Act 2016 and Local Government Act 1993 | Lot 7300 DP 1152789 is land identified as Crown Land, reserve land registration number R6742. The management type is Council Crown Land Manager, therefore making Tamworth Regional Council the determining authority. The purpose of the reserve is Public Recreation. The planning pathway has been assessed under Division 12 Parks and other public reserves of the Transport and Infrastructure SEPP (refer to section 3.2.1) |

19. The Council read an affidavit by its solicitor Ms Kliese dated 19 December 2024 which stated that she was instructed the Skywalk was primarily funded by State Government grant funds and to a lesser extent by the Council’s Regional Development Fund. Ms Kliese stated she was instructed of potential damage arising from delays to or termination of the contract between the Council and the Second Respondent. Ms Kliese also stated she was instructed a delay in completing the Skywalk would impact the community due to requiring parts of the site of the Skywalk to remain inaccessible and delaying the community’s enjoyment of the benefits of the Skywalk. Work on the Skywalk had commenced at the time of Ms Kliese swearing her affidavit according to her instructions.

20. The Council provided a court book which became Exhibit 1. Within Exhibit 1 it relied on:

21. REF (third version, dated 24 July 2024) for the Skywalk prepared by GeoLINK Consulting Pty Ltd including an Aboriginal Cultural Heritage Assessment dated April 2024. This was the version of the REF that was before the determining officer of the Council and was approved by the determining officer;

22. Tamworth Regional Council ordinary meeting minutes of 13 August 2024 identifying that the tender for the Skywalk would be determined in the meeting closed to the public;

23. Tamworth Regional Council ordinary meeting report for the tender for the Skywalk which inter alia recommended the Council accept the tender by Fleetwood Urban Pty Ltd, dated 13 August 2024.

24. The Council also referred to its Community Land Plan of Management dated 2021 made for the purposes of the LG Act (Plan of Management) which was part of Exhibit A.

Chronology

22. The Council prepared the following short chronology, none of which appeared to be disputed by Mr Hopkins.

| Date | Event | | 14 July 1888 | Public Reserve No. 6742 is reserved from sale for public recreation under the Crown Lands Act of 1884. | | 24 July 1888 | Public reserve number 6742 is placed under the control of the Borough Council of Tamworth (now the Council) | | 19 February 2007 | Lot 1 DP110842 (Lot 1 Council Land) is first registered on the land register, identifying the Council as the owner. | | 3 March 2023 | The NSW Government announces $14.3 million in funding for the Tamworth Regional Skywalk (the Skywalk) under the Regional Tourism Activation Fund. | | 24 July 2024 | GeoLINK Consulting Pty Ltd issues version 3 of the Review of Environmental Factors (the REF) for the Tamworth Regional Skywalk. | | 30 July 2024 | The Council’s General Manager, Paul Bennett, signs the REF Determining Authority Sign Off, allowing the Skywalk project to proceed subject to the relevant measures and conditions in the REF. | | 13 August 2024 | The Council resolves to accept the tender T028/2024 from Fleetwood Urban Pty Ltd (the Second Respondent) for the design and construction of the Skywalk submitted by Fleetwood Urban Pty Ltd (the Second Respondent) pursuant to Council Resolution 218/24. | | 11 October 2024 | The Review of Environmental Factors is published on the Council’s website. | | 7 November 2024 | Mr Hopkins commences these Class 4 proceedings by way of summons. |

23. The grounds of review will be dealt with in the order they were addressed by Mr Hopkins.

Ground 4

24. Ground 4 states:

State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) clause 2.73(3) and the Environmental Planning and Assessment Act 1979 (NSW) section 4.1

The TRC erred in law in applying cl 2.73(3) of the TISEPP 2021 to the planning and environmental assessment of the Skywalk because the terms of cl 2. 73(3) cited in the REF were not in force on 30/07/2024 or 13/08/2024 when the activity was determined/approved and the terms of the TISEPP which were in force at that time were not assessed and are unauthorised by a lawful plan of management and classification of land made under the CLM Act and LG Act which apply to the site

25. The terms of s 2.73(3) of the TISEPP, as extracted at page 10 of the REF version 3, were as follows (italics added):

(3) Any of the following development may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council--

(a) development for any of the following purposes—

(i) roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges,

(ii) recreation areas and recreation facilities (outdoor), but not including grandstands,

(iii) visitor information centres, information boards and other information facilities,

(iv) lighting, if light spill and artificial sky flow is minimised in accordance with the Lighting for Roads and Public Spaces Standard,

(v) landscaping, including landscape structures or features (such as art work) and irrigation systems,

(vi) amenities for people using the reserve, including toilets and change rooms,

(vii) food preparation and related facilities for people using the reserve,

(vii) maintenance depots,

(ix) portable lifeguard towers,

26. The TISEPP as in force on 30 July 2024 set out above in [13] had different wording from the words italicised above. The Council accepted that the incorrect earlier version of the section, prior to its amendment on 2 December 2022 pursuant to Sch 1[6] of the State Environmental Planning Policy Amendment (Miscellaneous) (No 2) 2022 (NSW), was set out in the REF.

Mr Hopkins’ submissions

27. As I understood Mr Hopkins’ oral submissions he made one principal argument in relation to ground 4 which focussed on s 2.73(3) of the TISEPP which was reflected in the substantive ground in the summons. He also appeared to possibly identify an issue which he considered arose in the context of s 2.72(2), which was not a matter articulated in the grounds in the summons. I consider that issue below to the extent I was able to understand the submission.

28. First, his principal argument referred to in ground 4 was that the inclusion of the wrong version of s 2.73(3) of the TISEPP in the REF was a material error. The wrong version of the TISEPP was referred to in the REF which was accepted by the Council’s delegate the General Manager. The terms of s 2.73(3) cited in the TISEPP were not then in force. Consequently the decision was made on a fundamental wrong premise. The development could not be permitted without consent as provided for by s 2.73(3).

29. Secondly, relying on the relief sought in order 7 as opposed to the ground specified in the summons Mr Hopkins appeared to submit that s 2.73(2)(c) applied to Oxley Park and required a plan of management to be in place under the LG Act. Order 7 stated:

… that the Court make a declaration that the [TISEPP] does not authorise the planning and assessment of infrastructure within the Crown reserve encompassing Oxley Park and Victoria Park, unless it satisfies the statutory conditions for planning and assessment in cl 2.73(2)(c)(ii) of the TISEPP 2021…

30. To the extent I could understand his oral submissions, Mr Hopkins submitted that a plan of management is a form of planning instrument, which is provided for under other acts not the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Reading the whole of Div 12 (Parks and other Public Reserves) in the TISEPP, development for any purpose may be carried out without consent in accordance with s 2.73. As Oxley Park is neither public reserve nor land owned or controlled by a public authority that element of the provision could not apply given the terms of the TISEPP s 2.73(3).

31. According to Mr Hopkins the consideration of s 2.73(2)(c)(ii) leads on to grounds 3 or 2 for the consideration, firstly, of the LG Act and, secondly, because the Council is a Crown Land Manager, the CLM Act. I consider the issue sought to be raised in relation to subs (2) is more readily understood in relation to those grounds, which I consider below.

Council’s submissions

32. In relation to Mr Hopkins’ principal argument, the three key amendments to the version of s 2.73(3) of the TISEPP as stated in the REF compared to those in force at the time of the determination of the REF on 30 July 2024 were:

33. a change in reference from ‘council’ to ‘public authority’;

34. the deletion of the requirement for the development to be carried out ‘on a public reserve’; and

35. a change from the relevant land being in the ‘control of or vested in the council*’* to being “owned or controlled by the public authority*”**.*

36. Importantly, there was no amendment to the description of the ‘development’ permitted without development consent for the purposes of s 2.73(3)(a)(i) of the TISEPP.

37. In relation to three identified amendments, the Council submitted that they do not, in the circumstance of the Skywalk and associated land, affect the relevant operation of the section to the activity, the conclusions reached in the REF or otherwise render the REF and associated decision invalid for the following reasons:

38. first, in relation to the change from “council” to “public authority”, the term public authority is defined in section 1.4(1) of the EPA Act to mean “a public or local authority constituted by or under an Act”. The Council is a local authority for the purposes of Part 2 of the LG Act hence this amendment has no effect on the REF of the operation of s 2.73(3) of the TISEPP to the subject activity;

39. secondly, the deletion of the requirement for the development to be carried out “on a public reserve*”* on one view expands the operation of s 2.73(3) to remove the restriction on the land to which the section applies. In any event, this amendment again does not have any effect on the conclusion of the REF or the determination;

40. thirdly, a change to the relevant land being in the ‘control of or vested in the council’ to being ‘owned or controlled by the public authority’ also does not have any effect on the conclusion of the REF or the determination. Oxley Park is Crown Land of which the Council is the Crown Land Manager with powers, rights and privileges over or in connection with the whole of that land pursuant to the provisions of the CLM Act; see ss 3.1(1)(a), 3.13(1)(a) and 3.20 of the CLM Act and for example Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166 at [22]-[23] and [65]-[66]. Lot 1 Council land is owned by the Council.

41. For the above reason, ground 4 of the Amended Summons is not material; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7] and would be dismissed.

42. If the assessment and determination in reliance on the REF or granting of the activity approval was infected by error, that error was immaterial and therefore not jurisdictional. The proof and content of materiality was described by the plurality of the High Court in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [30]-[32]. The Council was satisfied that the proposed activity was permissible without development consent pursuant to s 7.32(3) of the TISEPP and that subject to the proposed mitigation measure forming part of the activity there would not be a significant impact on the environment. Accordingly, there were sufficient grounds to justify the proposed activity. Mr Hopkins could not establish that the error he alleged could have made a difference to the decision that was made.

43. The Council did not address the second issue raised in oral submissions by Mr Hopkins as it was not clear that such an argument was to be raised given that the relevant subclause relied on was referred to in a prayer for relief, not the substantive ground where it would usually be located. As identified above the issues raised appear to be best dealt with in relation to later grounds in any event.

Finding on ground 4

38. I accept and adopt the Council’s submissions extracted above in [32]-[34] on the principal argument in ground 4 and find that there was no error in law in applying s 73(3) of the TISEPP material in the acceptance of the REF by the Council through its General Manager. Further, even if there was such an error, Mr Hopkins has not demonstrated that it was material as identified in the authorities referred to by the Council above, and for the reasons given about why that must be the case, in [35]-[36].

39. Ground 4 is not upheld.

Ground 3

40. Mr Hopkins’ submissions next dealt with ground 3 which stated:

3 Crown Lands Management (CLM) Act 2016 (NSW) s 1.5(2)(a), s 1.15, s 3.20, 3.21, 3.22 and 3.23

The decision by the TRC to design and construct a Skywalk is not authorised by the CLM Act (s 1.15) and nor is it required under any other Act (s 1.5(2)(a)) and is therefore without lawful authority for a council manager of Crown land whose functions are set out in Division 3.4 of the Act.

Mr Hopkins’ submissions

41. As I understood Mr Hopkins’ oral arguments, he accepted the Council is the Crown Land Manager for Oxley Park. He did not accept that the Council is the determining authority for the Skywalk because it is the Crown Land Manager, as stated in one section of the REF incorrectly in his view. Mr Hopkins otherwise accepted the Council was a determining authority for the purposes of the EPA Act.

42. Oxley Park is reserve 6742 and is transitional trust land for the purposes of Sch 7 of the CLM Act. The emailed letter dated 1 August 2024 from an officer of Crown Lands extracted above in [15] refers to Sch 7 Pt 2, Div 4, cl 10A of the CLM Act. The land continues to be managed as a transitional reserve trust under the CLM Act. Sch 7, cl 10A(6) had a definition of ‘transitional trust land’. Oxley Park is not land owned or controlled by the Council, or land owned or controlled by the public authority on trust land managed by a council, and also by virtue of Sch 7, cl 10A the land is not a public reserve for the purpose of the TISEPP.

43. Section 46 of the LG Act applies to the lease or licence of community land. Section 47B applies to the lease or licence of community land categorised as a natural area.

44. Oxley Park is a Crown reserve over which the Council is obliged to exercise care, control and management under the LG Act. All land which the Council has care, control and management of under the LG Act must be classified as required by s 25 of the LG Act. If classified as community land it must have a plan of management (I understand this to be a ground 2 issue).

45. Mr Hopkins accepted that the Council was the Crown Land Manager of Oxley Park for the purposes of the CLM Act. For the purposes of the EPA Act the control of Oxley Park came from its role as a local and determining authority not from its role as a Crown Land Manager. For the purposes of the TISEPP Oxley Park is Crown land, trust land which is not provided for in terms of the TISEPP.

46. The REF incorrectly identified the legal status of the Council in relation to Oxley Park and its management. Oxley Park is Crown land. The management type is council Crown Land Manager, therefore making the Council the determining authority. The purpose of the reserve is public recreation. The planning pathway has been assessed under Div 12 of the TISEPP. Therefore, the Council is the determining authority. It is not in dispute that the Council is the Crown Land Manager. The issue which was assessed and determined in the REF is whether the Council, being a Crown Land Manager, is therefore the determining authority for the purpose of the TISEPP.

47. The Council is the Crown Land Manager of Oxley Park but it is not the determining authority for the Skywalk because it is the Crown Land Manager. The Council is the determining authority for the Skywalk by virtue of the EPA Act. There is no basis for the statement in the REF (extracted in [18] above) that the Council is a determining authority because it is the Crown Land Manager. The control of the Council over the land arises separately from two different Acts. One control arises for the purposes of a development for which the Council is the determining authority by virtue of the EPA Act. The other control is a day‑to‑day management of the reserve which derives from the Council’s role as Crown Land Manager managing trust lands. The Council is not a determining authority by virtue of the TISEPP.

Council’s submissions on ground 3

48. Mr Hopkins’ ground 3 contended that the decision by the Council to design and construct the Skywalk was not ‘authorised’ by ss 1.15 and 1.5(2)(a) of the CLM Act and was otherwise ‘without lawful authority’.

49. It is noted that in Class 4 proceedings, the Court’s jurisdiction to hear and dispose of proceedings in relation to the operation of the CLM Act is limited to ss 10.32, 11.13 and 11.19 of that Act; Land and Environment Court Act 1979 (NSW), s 20(1)(df). Mr Hopkins did not rely on, or identify any issue arising under, those provisions.

50. In any event, in complete answer to Mr Hopkins’ ground 3, pursuant to s 1.15(2)(b), the CLM Act does not affect the operation of the EPA Act, to the extent that that Act permits the Skywalk (being land in the control of the Council as the Crown Land Manager) to be constructed and used pursuant to Part 5 of the EPA Act and s 2.73(3) of the TISEPP.

51. Further, and in the alternative, Mr Hopkins’ ground is not supported by the operation of Div 3.4 of the CLM Act (Crown Land managed by a Council). In this regard s 3.22(1)-(3) of that Act provides (emphasis added):

(1) Except as provided by subsection (2) or (3), a council manager of dedicated or reserved Crown land—

(a) must manage the land as if it were community land under the Local Government Act 1993, and

(b) has for that purpose all the functions that a local council has under that Act in relation to community land (including in relation to the leasing and licensing of community land).

(2) A council manager of dedicated or reserved Crown land that is a public reserve (as defined in the Local Government Act 1993)—

(a) must manage the land as a public reserve under that Act, and

(b) has for that purpose all the functions that a local council has under that Act in relation to a public reserve.

(3) A council manager of dedicated or reserved Crown land that is classified, with the written consent of the Minister under this section, as operational land under the Local Government Act 1993—

(a) must manage the land as if it were operational land under that Act, and

(b) has for that purpose all the functions that a local council has under that Act in relation to operational land.

…

52. For the purposes of s 3.22(2) of the CLM Act, Oxley Park is reserved as a ‘public reserve’. Accordingly, by operation of s 3.22(1) which excludes matters in s 3.22(2) of the CLM Act, the Council is not ‘required by this Division to manage dedicated or reserved Crown land as if it were community land under the Local Government Act*’**.* Consequently, s 3.23 (management of land as community land) has no application to Oxley Park.

53. In light of the above, the matters raised in ground 3 of the Amended Summons have no proper foundation or otherwise fall outside the Court’s jurisdiction and ground 3 should be dismissed.

Finding on ground 3

54. As the Council identified the Court has limited jurisdiction under the LEC Act to hear matters said to arise under the CLM Act. None of the sections referred to by Mr Hopkins to support his arguments are identified in s 20 of the LEC Act. On that basis alone this ground cannot be upheld.

55. In terms of the substantive argument in ground 3, Mr Hopkins’ construction of the CLM Act and the LG Act is not accepted for the entirety of the reasons given by the Council, as set out above in [48]-[52].

56. Further, that Mr Hopkins considered there was an error in the REF in attributing determining authority status to the Council by virtue of its status as a Crown Land Manager did not appear to have any legal consequence as Mr Hopkins otherwise accepted that the Council was the relevant determining authority for the purposes of the EPA Act, which must include decisions made under the TISEPP. Assuming that there was an error in the REF in the manner alleged by Mr Hopkins, about which I need make no finding, that error had no material relevance to the legal nature of what the Council did.

57. Ground 3 is not upheld.

Ground 2

58. Ground 2 stated:

Local Government (LG) Act 1993 (NSW) Chapter 6 Part 2 s 25, s 35, s 36, s 54A and 47B

The decision by the TRC to design and construct a Skywalk is in breach of s 35 of the LG Act 1993 in determining (30/07/2024) and approving (13/08/2024) the Skywalk without classifying (s 25), categorising (s 36, 36A, 36C), describing (s 54A), managing (s 44) and dealing with (s 45 and s 47B) the site of the proposed Skywalk, Oxley Park, in accordance with a lawful (s 40) Plan of Management for community land.

59. The Council directed the Court to the Council’s current Plan of Management which was part of Exhibit A. The Plan of Management relevantly states:

The Local Government Act… requires that Council prepare a Plan of Management for all land classified by the Act as Community Land. In addressing this requirement Council has adopted a strategy whereby a generic plan is being prepared. All of the Council owned open space will be initially addressed through this Plan of Management. Subsequently, individual plans will be developed where the nature and use of Community Land is anticipated to change, or where large scale development suggests a more specific management approach is necessary.

…

2.16 Roads and Civil Infrastructure

…

Where the location of a part necessitates the provision of infrastructure such as roads, footpaths… Council will ensure that all infrastructure is constructed in accordance with appropriate standards and that works will not:

● remove the ability of a particular park to continue to be used for informal outdoor enjoyment by the general public;

● detrimentally affect the water quality or catchment function; and

● compromise the safety of users of the park.

…

3.1 Access

Access to Community Land, where provided, will be safe for general purpose use.

Mr Hopkins’ submissions

60. Oxley Park is not a public reserve for the purpose of the LG Act. The Council had to comply with the LG Act and did not in determining to approve the Skywalk.

61. Oxley Park is not a public reserve for the purpose of the CLM Act. It is Crown Land which the Council is obliged to manage in accordance with the LG Act. All land which the Council has care, control and management of must be classified by virtue of s 25 of the LG Act. The Council can then undertake activities as provided by, for instance, ss 46 and 47B.

62. The Council does not have a plan of management for Oxley Park, which instrument is required by s 35 of the LG Act. Section 52 of the LG Act ensures that the controls imposed by s 35 will apply to development in Oxley Park. The ‘draft plan of management’ provided by the Council is a generalised plan of management that does not apply to the particular land nor make the categorisations of natural and built environment required by s 36.

Council’s submissions on ground 2

Application of Chapter 6 Part 2 of the Local Government Act

63. Mr Hopkins alleged that the Council’s decision to ‘sign off’ on the REF and accept the tender from the Second Respondent to construct the Skywalk breached s 35 of the LG Act*.*

64. Mr Hopkins’ ground was misconceived and proceeded on the erroneous assumption that the land the subject of the Skywalk is ‘community land’ within the meaning of the LG Act. Section 25 of the LG Act states that land can either be classified as ‘community’ land or ‘operational’ land. As identified in the REF the Skywalk is to be located predominately within Oxley Park and a small portion of Lot 1 Council Land (which provides for a small amount of car parking). Oxley Park is Crown land and Lot 1 Council Land is classified as ‘operational’ land.

65. Accordingly, s 35 and, more broadly, Ch 6 Pt 2 of the LG Act, concerning the use and management of ‘community’ land has no application, let alone being a relevant consideration to the Council’s decision under Part 5 of the EPA Act to ‘sign off’ on the REF and otherwise accept the tender from the Second Respondent.

66. Mr Hopkins’ submissions were otherwise misconceived in that the decision of the Council to determine the subject ‘activity’ was pursuant to the EPA Act not the LG Act.

67. The provisions of the LG Act as pleaded by Mr Hopkins do not apply. Further, in circumstances where the land is relevantly classified as ‘operational’ land, no Plan of Management is required pursuant to s 36 of the LG Act. In any event, even if the land was so classified, the Council’s adopted Plan of Management would apply and otherwise permit the subject civil infrastructure including roads and footpaths.

Finding on ground 2

68. For the above reasons given by the Council there was no breach of the LG Act when the Skywalk was approved. Further, sections 46 and 47B of the LG Act to which Mr Hopkins referred concerning the lease of community land have no application as Oxley Park is not community land. Ground 2 is not upheld.

Mr Hopkins’ submissions in reply

69. As referred to above in [5], Mr Hopkins was given leave to file written submissions in reply at the end of the hearing. The 62 paragraphs provided were not attributed to grounds 2, 3 or 4 and it was difficult to understand in some respects what Mr Hopkins was responding to in the Council’s submissions. My findings on what I can determine within Mr Hopkins’ reply submissions are as follows:

70. paragraphs 1-4 provide further background of Mr Hopkins’ understanding of how the CLM Act applies to the Council and how the Council comes to be Crown Land Manager. These matters were already referred to at length at the hearing;

71. paragraph 5 asserts Oxley Park is not a public reserve. It is both public land and land to which CLM Act applies. These matters were already referred to at the hearing;

72. paragraph 6 refers to Save Little Manly Beach Foreshore Inc v Manly Counci**l (No 2) [2013] NSWLEC 156. The relevance of that case is not apparent;

73. paragraph 7 describes the physical state of Oxley Park with the assertion that it is not a ‘park’. The relevance of this is not apparent;

74. paragraph 8 relates to ground 3 and the application of the CLM Act. These matters were already referred to at the hearing;

75. the relevance of paragraph 9 is unclear;

76. paragraphs 10-15 relate to ground 4 and these matters were already referred to at the hearing;

77. paragraphs 16-17 are not in reply and were already referred to in Mr Hopkins’ oral submissions at hearing;

78. the relevance of paragraph 18 as to the control of Oxley Park is not apparent;

79. paragraph 19 is not in reply;

80. paragraphs 20-22 relate to ground 2 and these matters were already referred to at the hearing;

81. paragraphs 23-25 are not in reply;

82. paragraph 26 provides background only and is not in reply;

83. paragraphs 27-33 are not in reply. Clause 6(2)(b) of Sched 7 of the LG Act identified for the first time was not referred to in Mr Hopkins’ amended summons or oral arguments;

84. paragraphs 34-40 are not in reply;

85. paragraphs 41-47, distinguishing Governor Phillip Park from Oxley Park, are irrelevant;

86. paragraphs 48-56 are not in reply, raising for first time an issue concerning application of the Tamworth Local Environmental Plan 2010 (NSW);

87. paragraphs 58-62 termed final submissions are not in reply.

88. It was not apparent how to incorporate any paragraphs from the submissions in reply into what has already been considered as they were repetitive, raised impermissibly new issues or relevance of the material was lacking.

Costs

71. Mr Hopkins has been unsuccessful and ordinarily would be ordered to pay the Council’s costs as is the usual order in such circumstances in Class 4 proceedings. I understand that Mr Hopkins wishes to submit that he has acted in the public interest. As this may be a relevant costs consideration I will provide an opportunity to the parties to address costs before ruling finally on these. To that end I will reserve costs in this judgment and discuss a timetable to deal with costs with the parties.

Order

72. The Court orders that:

73. The Applicant’s Amended Summons dated 1 April 2025 is dismissed.

74. Costs are reserved.

**********