Protect Our Parks Incorporated v Wollongong City Council and Ors

Land and Environment Court (NSW)|2016-06-21|Before: Moore J, Ms J

TABLE OF CONTENTS Introduction - paragraph 1 The proceedings - paragraph 7 Participation in the proceedings - paragraph 9 The evidence - paragraph 10 The existing development consents - paragraph 13 The role of the Council - paragraph 15 The planning documents requiring consideration - paragraph 16 Relevant provisions of the LEP - paragraph 20 Relevant provisions of the DCP - paragraph 23 The Plans of Management - paragraph 26 The Council's assessment process - paragraph 32 Ground 1 - the proposed development is prohibited - paragraph 56 The nature of the dedication - paragraph 58 Is Stuart Park a "recreation area"? - paragraph 61 Are Skydive's activities a "recreation facility (outdoor)" - paragraph 67 Conclusion on Skydive's activities - paragraph 69 Conclusion on Ground 1 - paragraph 70 Ground 2 - paragraph 72 Ground 3 - failure to consider the Stuart Park Plan of Management - paragraph 73 The proper role for the Stuart Park Plan of Management - paragraph 87 Conclusion on Ground 3 - paragraph 89 Ground 4 - misleading notification - paragraph 91 Conclusion - paragraph 139 Future progress of the matter - paragraph 141

Introduction

Stuart Park at North Wollongong is a Crown reserve for which the appointed trustee and trust manager is Wollongong City Council (the Council). The Council is the First Respondent in these proceedings.
Since the late 1990s, the Third Respondent, Skydive the Beach and Beyond Sydney Wollongong Pty Ltd (Skydive) has had a commercial relationship with the Council to use the park as part of its skydiving activities. These activities comprise a commercial tourism enterprise.

The proceedings

These judicial review proceedings have been brought by Protect Our Parks Incorporated (the Applicant) to challenge the granting of the development consent by the Council to the Second Respondent. The Applicant originally challenged the development consent on four grounds but, at the commencement of the hearing, Mr Robertson, senior counsel for the Applicant, advised that he had informed Mr Lancaster, senior counsel for Skydive, that the Applicant no longer pressed one of the grounds, Ground 2, originally pleaded (being one founded on what were said to be mandatory obligations arising from the provisions of the Crown Lands Act 1989 (the Crown Lands Act)).
The three remaining grounds can be summarised, shortly, as: 1. Properly characterised, the proposed development is prohibited; 2. … (not pressed); 3. The Council failed to consider a relevant mandatory matter (a Plan of Management currently in force for Stuart Park made under the Crown Lands Act), a plan which does not permit new commercial buildings to be constructed in Stuart Park; and/or 4. When the development application was amended to alter the location of the proposed building from that identified in the original development application, the re-advertisement by the Council of the amended application was deficient in its description of the amended application, with this description being sufficiently inaccurate as not to comply with the process mandated by a combination of s 79A(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and Appendix 1 - Public Notification and Advertising Procedures of the Wollongong Development Control Plan 2009 (the DCP) so as to vitiate the subsequent Council process leading to the granting of the development consent.

Participation in the proceedings

I have earlier noted the appearance of Mr Robertson SC for the Applicant (with him, Ms Walker, barrister) and Mr Lancaster SC for Skydive. The First and Second Respondents have both entered submitting appearances save as to costs.

The evidence

It is appropriate to note that the tendered evidence (the Court Book and two folders of additional documents) incorporated a Statement of Reasons sought from the Council pursuant to Pt 59 r 9 of the Uniform Civil Procedure Rules 2005 (the UCPR). The Statement of Reasons was signed by Mr Mark Riordan, the Council's Manager Development Assessment & Certification.
Mr Riordan had determined and approved the development application under delegated authority after it had been considered by the Council's Independent Hearing and Assessment Panel (the IHAP). Mr Riordan's Statement of Reasons was supported by a range of annexures which had formed part of the documentary material upon which he had relied in forming the opinion that it was appropriate to grant development consent subject to conditions.
Documents tracing the history of the creation of Stuart Park as a Crown reserve for recreation and the appointment and continuing role of the Council as the trustee and manager of the reserve were also tendered.

The existing development consents

Skydive currently holds a number of existing development consents relating to its activities within Stuart Park. As an element of the determination of the challenged development consent, the Council has required Skydive to consolidate regulation of all its permitted activities at Stuart Park to this challenged development consent.
As a consequence, the conditions attached to this development consent required the preparation (and endorsement by the Council) of a Plan of Management for Skydive's activities in Stuart Park; a range of limiting conditions on the activities of Skydive at Stuart Park including numerical controls on the activities (Mr Lancaster submitted that, properly understood, these conditions may act as minor restrictions on the present scope of Skydive's activities but certainly could not be regarded as expansionary of them); and the surrender of the other existing development consents held by Skydive for Stuart Park activities.

The role of the Council

The Council has two roles which arise for consideration in varying aspects in these proceedings. The first is the Council's conventional role as the consent authority pursuant to the EP&A Act. Its second role is as the trustee and manager of Stuart Park pursuant to the provisions of the Crown Lands Act.

The planning documents requiring consideration

There are a number of documents that provide the planning framework requiring my consideration in these proceedings. Those documents are: 1. Wollongong Local Environmental Plan 2009 (the LEP); 2. Appendix 1 of the DCP; 3. The Stuart Park Plan of Management 2000; 4. The City Foreshore Plan of Management; and 5. The Blue Mile Master Plan.
It is to be observed that the Stuart Park Plan of Management is a statutory plan pursuant to the Crown Lands Act, as it was adopted by the relevant Minister on 25 November 2000.
The City Foreshore Plan of Management was adopted by the Council on 29 January 2008 and forwarded to the Minister for consideration of adoption. However, the plan has not been adopted and given effect as a statutory plan and therefore has only the status of a strategic planning policy adopted by the Council (a position requiring further consideration).
The Blue Mile Master Plan has also been adopted by the Council but is not a statutory document.

Relevant provisions of the LEP

Stuart Park is zoned RE1 Public Recreation in the Land Use Table of the LEP. The LEP is a document based on the Standard Instrument template and, consequently, includes the usual four provisions concerning each zone set out in the Land Use Table (these provisions being the objectives for the zone; development permitted without consent; development permitted with consent; and development that is prohibited in the zone).
It is appropriate to set out the provisions concerning the RE1 zone in full: Zone RE1 Public Recreation 1 Objectives of zone To enable land to be used for public open space or recreational purposes. To provide a range of recreational settings and activities and compatible land uses. To protect and enhance the natural environment for recreational purposes. To cater for the development of a wide range of uses and facilities within open spaces for the benefit of the community. 2 Permitted without consent Nil 3 Permitted with consent Boat sheds; Camping grounds; Caravan parks; Child care centres; Community facilities; Environmental facilities; Environmental protection works; Extensive agriculture; Helipads; Information and education facilities; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreational facilities (outdoor); Respite day care centres; Restaurants or cafes; Roads; Signage; Take away food and drink premises; Water recreation structures 4 Prohibited Any development not specified in item 2 or 3
There are also two definitions contained in the dictionary to the LEP that are also relevant in these proceedings. They are the definitions of "recreation area" and "recreation facility (outdoor)". Those definitions are in the following terms: recreation area means a place used for outdoor recreation that is normally open to the public, and includes: (a) a children's playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor). recreation facility (outdoor) means a building or place (other than a recreation area) used predominantly for outdoor recreation, whether or not operated for the purposes of gain, including a golf course, golf driving range, mini-golf centre, tennis court, paint-ball centre, lawn bowling green, outdoor swimming pool, equestrian centre, skate board ramp, go-kart track, rifle range, water-ski centre or any other building or place of a like character used for outdoor recreation (including any ancillary buildings), but does not include an entertainment facility or a recreation facility (major).

Relevant provisions of the DCP

The only relevant provisions of the DCP arising in these proceedings are those relating to advertisement of development proposals.
It is unnecessary at this point to set out, in extensive detail, the requirements for the advertisement of various classes of development. It is sufficient to note that the original development application required notification, with that notification being treated by the Council as requiring to be notified by all three notification types set out in the matrix in cl 13 of Appendix 1 to the DCP.
Similarly, by virtue of the fact that the amended development application (in the form giving rise to the consent now being challenged) was not a minor amendment to the original proposal, the amended application was re-advertised in a similar fashion.

The Plans of Management

I have earlier noted that the difference in status between the Stuart Park Plan of Management on one hand and the City Foreshore Plan of Management and the Blue Mile Master Plan on the other. In addition to matters of status, however, there is also one significant difference in content, a difference that brings into play a critical aspect of these proceedings.
The Stuart Park Plan of Management contains, under the heading "Issue: Commercial developments", the following statement: No new permanent buildings will be permitted within Stuart Park to cater for commercial operations. (Exhibit B Tab 4 Page 50)
There is no contest that no equivalent prohibitory statement is contained in either the City Foreshore Plan of Management or the Blue Mile Master Plan.
On 20 August 2015, the Applicant's solicitors wrote to the Council seeking information concerning the status of the Stuart Park Plan of Management and of the City Foreshore Plan of Management.
By e-mail of 26 August 2015, the Council's General Counsel responded, advising that the City Foreshore Plan of Management had not been adopted by the Minister pursuant to s 114 of the Crown Lands Act nor had the Stuart Park Plan of Management been cancelled by the Minister.
The consequence of this is that the adoption by the Minister on 25 November 2000 of the Stuart Park Plan of Management and the non-adoption of the City Foreshore Plan of Management by the Minister means that the Stuart Park Plan of Management is the only valid Plan of Management in force at this time pursuant to the Crown Lands Act.

The Council's assessment process

The Council's assessment process culminated with the determination, on 9 March 2015, of the amended development application being granted development consent subject to conditions. As earlier noted, this function of determination was executed pursuant to delegated authority. The decision to grant development consent was made by Mr Mark Riordan, the Council's Manager Development Assessment and Certification.
As earlier noted, Mr Riordan is the author of the Statement of Reasons provided pursuant to the UCPR. In [4] of the Statement of Reasons, Mr Riordan sets out the documents to which he had had regard in making his determination. It is appropriate, initially, to note that the 11 specific documents or plans to which reference is made (together with the more global notation that he had had regard to the State Environmental Planning Policies referred to in the two assessment reports cited) do not include the Stuart Park Plan of Management.
The initial assessment report was prepared by Mr Nigel Lamb, described in the Statement of Reasons as Council's Development Project Officer. His initial assessment report was prepared for the 4 November 2014 meeting of the Council's IHAP. A copy of Mr Lamb's initial report was annexed to the Statement of Reasons. It is unnecessary to deal with this report in detail. However, it is appropriate to note that:

it makes no mention of the Stuart Park Plan of Management; and
in s 2.10, dealing with the public interest as required by s 79C(1)(e) of the EP&A Act, the report discusses both the Blue Mile Master Plan and the City Foreshore Plan of Management in some detail.

Mr Lamb's report notes, in his introduction to this section of the report: The public interest in this case is considered to be served through satisfying the principles of ecologically sustainable development and ensuring consistency of the proposal with the relevant strategic planning documents applicable to the site. In this instance, relevant strategic planning documents are the Blue Mile Master Plan and the City Foreshore Plan of Management. These are each addressed below.
Mr Lamb recommended that the original proposal be approved. His report also attached a copy of the Blue Mile Master Plan and of the City Foreshore Plan of Management but did not attach a copy of the Stuart Park Plan of Management.
The IHAP considered the application on 4 November 2014. The recommendations from the meeting are at Attachment C to the Statement of Reasons. The Panel concluded that it was of the view that the proposed development is inappropriately located and that the Applicant should consider alternative locations within the park. The Panel then set out five matters that should be considered by the Applicant in contemplating an alternative location.
The Panel also observed that it was of the view that the Applicant should also address the location and quantum of any additional car-parking required to service the development and any changes to existing infrastructure such as the location of existing cycle ways.
Finally, the Panel recommended that, should the application be amended, it should be referred back to the Panel.
Skydive responded by proposing an alternative location somewhat to the north-west of the previously proposed location. It is this revised location that was the subject of the subsequently granted consent.
Mr Lamb prepared an addendum report for consideration by the IHAP for its meeting of 21 January 2015. It is unnecessary to consider the detail of this addendum report but it is appropriate to note that, as with the earlier report, the Blue Mile Master Plan and the City Foreshore Plan of Management are referenced extensively, including further discussion in the section of the addendum report dealing with s 79C(1)(e) of the EP&A Act but there is no mention of the Stuart Park Plan of Management anywhere in the document.
Page 12 of the addendum report deals with the issue of continuing use by Skydive of the central parking area that currently exists in Stuart Park and, in this context, the lack of need to proceed with demolition of part of this car-park. However, this report does note that draft condition 31 requires that two accessible spaces be line-marked within the existing adjacent car-park.
At p 16 of the addendum report, Mr Lamb notes: The revised application was renotified in accordance with Council's notification policy to adjoining properties as well as in The Advertiser between 3 December and 17 December 2014. Fourteen submissions were received.
The addendum report then set out the issues identified in those submissions together with Mr Lamb's comments on each of them.
In his commentary, Mr Lamb dealt with these submissions under a range of headings, one of which was "Operational Concerns Including Parking". The concern relevant to these proceedings were in the following terms: At present, the site plan does not indicate an adequate parking facility for disabled parking that is distinct from bus-loading/unloading or an emergency bay.
Mr Lamb's comment was, as earlier noted, concerning draft condition 31 relating to accessible car-parking spaces. The second, potentially relevant, aspect under this heading was in the following terms: The allocated bus parking area will entail a bus traversing a public car-park 16-20 times a day and could pose a risk to park users, especially young children.
Mr Lamb's comment was as follows: Bus movements generated by the business are approximately one-two an hour and are not considered to pose a significant public safety risk. The car-park is free of visual obstructions and is a low speed environment.
Mr Lamb's comment did not address the question of whether or not there was to be an allocated bus parking area in this car-park.
The IHAP considered the revised proposal on 20 January 2015. By a majority vote, the Panel supported the amended application subject to the provision of an Operational Plan of Management that addressed a range of issues set out in the Panel's report. The Panel noted that: Provided these issues are addressed to the satisfaction of council officers, the application does not need to be referred back to IHAP.
Following this position being adopted by the Panel, Mr Lamb prepared a document headed "Section 79C Assessment Report Dated 4 March 2015". This document addressed the various matters raised by the Panel at its January meeting.
The application was then considered by Mr Riordan in his capacity as the Council's Manager Development Assessment & Certification as he held delegation to determine the application.
All of the above discussed documents were amongst the 11 documents nominated by Mr Riordan as having been considered by him when he determined to grant development consent on 9 March 2015. Mr Riordan also noted that he had had regard to the State Environmental Planning Policies referred to in Mr Lamb's two assessment reports.
Mr Riordan also observed that he was in attendance at the two meetings of the IHAP when it considered the initial application and, subsequently, the amended application. In his Statement of Reasons, Mr Riordan says: I had regard to the matters that were discussed at the Panel meetings when determining the development application.
Finally, the two critical paragraphs in Mr Riordan's Statement of Reasons are those contained in [7] and [8]. These are in the following terms: 7 I carefully considered Mr Lamb's assessment of the development application against each of the matters required to be considered under s 79C of the Environmental Planning and Assessment Act 1979 contained in the assessment report (Annexure A), addendum report dated 20 January 2015 (Annexure B) and addendum report dated 4 March 2015 (Annexure E). I was satisfied that those reports had adequately considered each of the matters in s 79C of the Act. Based on the material before me at the time of making my decision, I independently satisfied myself that the development application was satisfactory having regard to the heads of consideration under s 79C(1) of the Act, provisions of the Wollongong Local Environmental Plan 2009, Wollongong Development Control Plan 2009 and all other relevant council plans and policies. 8 When reviewing the assessment report and addendum report I had regard to objectors' concerns about the development application as summarised in those reports. I was satisfied that the objectors' concerns had been adequately addressed in those reports and where relevant by amendments to the development application or by conditions of consent.
Following these paragraphs, Mr Riordan then described (in [9] to [13] of his Statement) the remaining matters he considered as part of determining the application and granting development consent subject to conditions.

Ground 1 - the proposed development is prohibited

In the Government Gazette of Tuesday, 29 September 1885, the land now known as Stuart Park (which the Gazette noted had been purchased for the purposes of a public park at Wollongong) was declared to be subject to the provision of the Public Parks Act 1884 and known as Stuart Park. In the Government Gazette of 10 September 1920, the Council of the Municipality of Wollongong was appointed as the trustee of Stuart Park pursuant to the provisions of the Public Parks Act 1912. In the Government Gazette of 10 June 1994, the name of the trust manager for Stuart Park was declared to be Wollongong City Council.
The Court Book contained an Agreed Statement of Facts. Relevant amongst the matters agreed are: 1. Stuart Park is and was at all material times a Crown reserve taken to have been dedicated for public recreation under s 80 of the Crown Lands Act 1989 and is a public park. 2. The First Respondent manages the affairs of the reserve trust which is the trustee of Stuart Park. 3. Since 1999, Skydive has been using areas within Stuart Park as its drop zone for its commercial recreational skydiving business. Since 2009, Skydive (and its related entities) have occupied the building described as the "caretaker's cottage" within Stuart Park for activities associated with its skydiving activities.

The nature of the dedication

I have earlier noted the agreement between the parties that Stuart Park is to be regarded as a Crown reserve taken to have been dedicated for public recreation under s 80 of the Crown Lands Act. The terms of s 80 of the Crown Lands Act are, relevantly, contained in s 80(1), a provision that reads: The Minister may, by notification in the Gazette, dedicate Crown land for a public purpose.
The term "public purpose" is defined in s 3 of the Crown Lands Act in the following terms: Public purpose, in relation to a provision of this Act, means any purpose for the time being declared by the Minister, by notification in the Gazette, to be a public purpose for the purposes of that provision.
"Public recreation", being the purpose for which Stuart Park has been dedicated, is not a term defined in the Crown Lands Act. Equally, it is not a term defined in the LEP.

Is Stuart Park a "recreation area"?

However, the Applicant submits that, for the purpose of the earlier set out definition of "recreation facility (outdoor)" Stuart Park should be regarded as a "recreation area" as defined in the LEP. The consequence of such conclusion (if adopted), the Applicant describes as follows: The first element of the definition [of recreation facility (outdoor)] requires that the use must be carried on in a building or place "other than a recreation area". This element does not depend on whether or not the use itself is a recreation area, because the identification of a building or place as a recreation area is anterior to the description of the purpose of the use. Rather, the building or place where the use is proposed to be carried out must not be a "recreation area".
As a consequence, it is necessary to consider, in the first instance, whether or not Stuart Park should be regarded as a "recreation area" by its declaration pursuant to s 80 of the Local Government Act as dedicated for "public recreation".
In this context, it is appropriate to note, as earlier set out, that Stuart Park is zoned RE1 Public Recreation in the Land Use Table of the LEP with the four objectives of the zone setting out what is sought to be achieved by uses permitted to be undertaken within the zone. Clause 3 of the relevant element of the Land Use Table sets out a wide range of activities permitted with consent in the zone as being consistent with (in broad) those objectives. Amongst those permitted activities are those of "recreation areas" (pressed by the Applicant as being appropriate for Stuart Park) and "recreation facilities (outdoor)" (pressed by Skydive and accepted by the Council as being able to accommodate its proposed development, permissibly, within Stuart Park).
Viewed through the proper process of characterisation discussed by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400, the broad purpose to which each of these permitted uses is to serve is that of "public recreation". At that level of generality, it is clear that the zoning for "public recreation" is clearly appropriate as a reflection of the generality of that term as being the purpose for which the land has been dedicated.
In rejecting the Applicant's contention that, in effect, the dedication created Stuart Park as a "recreation area", Skydive submitted, at [7] of its written submissions: A "recreation facility (outdoor)" is a type of land use, which is permitted in the RE1 Public Recreation Zone with consent; Within the meaning of the LEP, the term "recreation area" is not a reference to a type of zoning, nor a reference to a particular area of land. This is made clear by the inclusion of the term "recreation area" in the list of permitted uses in the RE1 Public Recreation Zone. Rather, a "recreation area" is a reference to a type of land use, which is permitted in the RE1 Public Recreation Zone with consent. Accordingly, it is a misuse of the term to say that the Building is within a "recreation area" as that term is defined in the LEP.
Skydive's position is to be preferred to that advanced on behalf of the Applicant. It is clear that, in a proper Chamwell analysis, subject to proper assessment, each of the various uses permitted in (3) of the Land Use Table element for the RE1 Public Recreation Zone is capable of serving the purpose of public recreation, the purpose for which Stuart Park has been dedicated - a dedication recognised, at the appropriate level of generality, in its zoning.

Are Skydive's activities a "recreation facility (outdoor)"

Skydive's activities are described in the affidavit of Mr Bocaut (a principal of Skydive) as not including general management functions of the business but do include pre-jump reception, induction and training and post-jump debriefing. Skydive also conducts other jump related activities at Stuart Park but, according to Mr Bocaut, does not undertake other business activities such as accounting, aircraft maintenance, the call centre, management, marketing and rostering at this location. Such activities are carried out at other premises in the Wollongong area.
On the question of how Skydive's proposed development should be regarded as fitting within the LEP's definition of "recreation facility (outdoor)", Skydive submitted [Footnotes omitted]: 11 … (a) Skydiving is an activity which takes place outdoors and for a recreational purpose; (b) Skydiving is not dissimilar in character to the activities to which the definition of "recreation facility (outdoor)" specifically refers, such as an equestrian centre, skateboard ramp, go-kart track, rifle range and water-ski centre, and this list of examples is not exhaustive; (c) The LEP specifically provides that an activity is not precluded from being a "recreation facility (outdoor)" because it is carried out "for gain". The LEP also specifically provides that "ancillary buildings" are included in the definition of "recreation facility (outdoor)". As such, neither of the following facts exclude the Building from the definition of "recreation facility (outdoor)": (i) the Third Respondent's activities are of a commercial nature; and (ii) the Building facilitate skydiving, whether or not one thinks that it necessarily forms part of that activity; and (iii) in fact, the Building and the briefing and preparation activities that occur within it (see (e) below) are integral to the safe and well organised participation of people in the skydiving activity. (d) The predominant purpose of the Building, being to assist the Third Respondent to continue to carry out commercial recreational skydiving operations within Stuart Park; (e) The specific activities to be carried out within the Building, including the following: (i) customer check-in, including by providing a place for customers to arrive, pay and complete all the necessary paperwork to enable them to skydive; (ii) safety briefings; (iii) staff and diving instructor amenities; (iv) dive preparation, including where customers put on safety equipment; (v) production of dive videos; and (vi) packing and storage of safety equipment. (f) Administrative activities relevant to the Third Respondent's broader commercial operations will continue to be carried out at separate premises, and are not proposed to be moved to Stuart Park. 12 Having regard to the matters set out above, the Building comfortably and naturally falls within the definition of "recreation facility (outdoor)" and is permitted development within the RE1 Public Recreation Zone.

Conclusion on Skydive's activities

It is clear that Skydive's activities in the existing building and drop zone and (as proposed for the new development) comprise activities capable of falling within the ambit of "recreation facility (outdoor)" - including use of a building where that use is ancillary to the outdoor elements of Skydive's activities. It is clear that it was open to the Council so to conclude.

Conclusion on Ground 1

The consequences of this, it seems to me, are:

Stuart Park is not mandated to be regarded as a "recreation area" merely by its dedication for "public recreation" pursuant to the Crown Lands Act; and,
properly understood, the use by Skydive of portion of Stuart Park as a drop zone is an activity capable of falling within the defined use "recreation facility (outdoor)";
Skydive's proposed development, being for the purposes of constructing a building ancillary to the carrying out of the skydiving activities, is also capable of falling within the scope of the defined use of "recreation facility (outdoor)" and is thus permissible with development consent; and
it was open to the Council to deal with the development application on this basis.

It therefore follows that this ground fails.

Ground 3 - failure to consider the Stuart Park Plan of Management

The third ground advanced by the Applicant concerns the failure of Mr Riordan to have regard to the Stuart Park Plan of Management in reaching his determination to grant development consent on 9 March 2015. I have earlier set out the range of documents that were listed by Mr Riordan in his Statement of Reasons for decision. As there observed, those documents did not include the Stuart Park Plan of Management.
I have also set out [7] and [8] of Mr Riordan's reasons for decision. Relevant in the context of this aspect of the Applicant's objections to the development consent are the concluding words of [7] where Mr Riordan says that he has had regard to "all other relevant council plans and policies".
In this context, it seems to me that in assessing whether or not Mr Riordan was obliged to have regard to the Stuart Park Plan of Management as a relevant mandatory consideration in his decision-making process, it matters not whether Mr Riordan was unaware of the Stuart Park Plan of Management or was aware of it but considered that it was not relevant. This issue can be dealt with in comparatively short compass.
The Applicant's complaint, in essence, is that the requirement in s 79C(1)(e) of the EP&A Act requiring Mr Riordan to have regard to the public interest mandated that he have regard to the provisions of the Stuart Park Plan of Management in his consideration of Skydive's amended development application. It is certainly clear that the role of a consent authority in assessing matters under this provision is broad (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195 at [81]). However, the breadth of mandated consideration is clearly narrower than the scope of factors addressing the public interest than those that may be taken into account in an assessment.
In the Applicant's written submissions, it was noted that: Pursuant to section 100 of the Crown Lands Act 1989, the reserve trust is deemed to be the owner of the land under Part 5 of the Act. However deemed title which Part 5 of the Crown Lands Act creates is plainly for its purposes alone (citation omitted). It does not constitute the reserve trust as the owner of the land for the purposes of the EPA Act, much less the Council which is merely the reserve trust manager appointed under section 95 of the Crown Lands Act.
This is clearly correct and is, in fact, reflected in the fact that owner's consent for the purposes of Skydive's development application has not purported to be given by the Council but has been given by the relevant Crown authority.
The applicant's written submissions also said, at [43]: Stuart Park POM is a statutory instrument, although not an instrument made under the EPA Act. It is an instrument pivotal to the public interest, because it embodies the management intent for the land which has been enshrined under Part 5 of the CL Act. It is in the public interest that decisions made in respect of public land under different regimes should not contradict each other.
The written submissions of the Applicant, on this ground, concluded with the submission that: Given that the Stuart Park POM mandated that no new commercial building should be constructed in Stuart Park, there is a real possibility that the Delegate might have made a different decision if you take in the Stuart Park POM into consideration.
The three documents prepared by Mr Lamb throughout the process, particularly the second document prepared for the IHAP in its consideration of the amended application deal with the public interest by referencing the Blue Mile Plan and the Foreshore Plan.
The Introduction to the Wollongong City Foreshore Plan of Management says, amongst other things: This plan of management is for the Foreshore of the "City Centre". The Wollongong City Centre foreshore includes part of the Wollongong Golf Course, City Beach, the Harbour, North Beach, and Stuart Park. The Wollongong City Foreshore Plan of Management (POM) will replace two existing plans of management, the Plan of Management for Stuart Park, North Beach Reserve and North Wollongong (adopted in 2000) and the plan of Management for City Beach (adopted in 1995). The idea for the City Foreshore POM has been borne out of work on the Wollongong City Centre Strategy and the Wollongong City Foreshore Precinct Master Plan (MP) which is known as the BLUE MILE Master Plan. Wollongong is changing and developing a reputation as a world class travel destination and strong driving force in Australia's regional economy. The POM and the MP will guide future changes to the city foreshore for the benefit of all.
It is to be observed that, whilst the Wollongong City Foreshore Plan of Management was in evidence, the Wollongong City Foreshore Precinct Master Plan, known as the BLUE MILE Master Plan, was not tendered. However, it is reasonable to assume that this document forms part of the strategic planning documents of the Council consistent with what has been set out above from the Introduction to the Wollongong City Foreshore Plan of Management.
The specific section of the second report by Mr Lamb dealing with the public interest makes it clear, at some length, that he has appropriately addressed those two documents. Mr Lamb's consideration, overall, is replete with references to these documents in a fashion that makes it clear that he considered that these documents (and only these documents) contained the relevant strategic planning framework for this application.
Indeed, as Mr Lancaster pointed out, the Foreshore Plan itself notes that it is the express intention of the Council that the Stuart Park Plan of Management be superseded.
For the purposes of assessment pursuant to the EP&A Act of a development proposal, it is sufficient that the relevant Council plans and policies called into play by that Act are considered. That the Foreshore Plan has not been adopted pursuant to the Crown Lands Act and the Stuart Park Plan, in effect, so repealed, does not mean that the Foreshore Plan cannot be regarded as the appropriate adopted policy of the Council (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87]).

The proper role for the Stuart Park Plan of Management

At [22] to [26] of his affidavit, Mr Bocaut acknowledges that he is aware that there is an inconsistency between this proposed development and the requirements of the Stuart Park Plan of Management. He acknowledges that this inconsistency will need to be resolved before Skydive can act on any approval granted by the Council. He also notes that a number of other matters will need to be resolved, including that of the terms of Skydive's lease of the proposed building.
It is clear that Skydive is aware that its proposed development is incompatible with the Stuart Park Plan of Management. This clearly engages questions of compliance with the Crown Lands Act. However, breaches of that Act, in a context such as this, do not lie within the jurisdiction of this Court. The Crown Lands Act is not an Act identified in the Land and Environment Court Act 1979 for such purposes as are here engaged. Any action to restrain a breach of that Act, at least initially, lies elsewhere.

Conclusion on Ground 3

It was not necessary for the Council to consider the Stuart Park Plan of Management in exercising its function as the consent authority under the EP&A Act to Skydive's development application. This role is quite separate from any role the Council has under the Crown Lands Act with respect to Stuart Park.
This ground fails.

Ground 4 - misleading notification

Ground 4 advanced by the Applicant was predicated on the basis that the proposed development was "specified development" within the meaning of s 79A(2) of the EP&A Act, a provision in the following terms: 79A Public participation - advertised development and other notifiable development (1) ... (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application. (3) ....
The relevant portion of the DCP calling up by this statutory provision is Appendix 1: Public Notification and Advertising Procedures. Clause 1.4 of Appendix 1 is headed "Applications for which notification/advertising is required prior to determination". This provision, in cl 1.4.1, references the matrix table in cl 13 of the Appendix as the location where a list of developments and the extent of notification for them is required, are listed. The table is annotated by ticks, crosses and bullets. The relevant marking appears in each of the three columns specifying a method of notification. These columns are headed:

Adjoining Land;
Written Notice (Neighbouring Properties in Proximity to the Site); and
Newspaper Advertisement.

A tick in the relevant column shows that notification is required; a cross in the column indicates that it is not required; and a bullet-point indicates that notification is at the discretion of the Manager Development Assessment and Certification Division or Area Development Manager in the Development Assessment and Certification Division of the Council.
"Recreation areas" and "recreation facility (outdoor)" both appear in the matrix but with different notification requirements. For "recreation areas", notification is only required, in the general portion of the matrix, to adjoining landholders or occupiers. For "recreation facilities (outdoor)", notification is required across all three categories.
They do, however, both share common notification periods (14 calendar days commencing on the day after the first notice published in the notification letter or newspaper).
As the amended application no longer required consideration of a Voluntary Planning Agreement for the provision of car-parking, the additional requirement for an extended period of advertising set out under the heading "Applications Requiring Specific Advertising/Notification" did not have to be satisfied.
The distinction between the characterisation of the proposed development as a "recreation area" or a "recreation facility (outdoor)" is irrelevant for the purposes of considering the standard of notification required for notification to "adjoining land".
However, given that I have concluded that Skydive's proposed development is to be characterised properly as being for a "recreation facility (outdoor)", the applicable advertising requirements of the DCP are those set out in the matrix for such a development.
Clause 1.6 of the Appendix is entitled "How will an application be notified?" This provision, cl 1.6.1, reads: Council will send a written notice of the subject development application to any affected property owner and occupant where, in the opinion of council, the enjoyment of their land may be adversely affected by the proposed development.
It also provides, in cll 1.6.2 and 1.6.3, the following: Generally, written notification of an application will be limited to directly adjoining property owners and occupants. However, certain applications will be notified to adjoining property owners/occupants as well as neighbouring property owners and occupants within the immediate locality. The determination as to whether neighbouring property owners are also notified of a development proposal will be in general accordance with Table 1 in s 13 of this DCP chapter. In exceptional circumstances, this decision will be at the discretion of the responsible assessing officer in consultation with the Manager or Area Manager of the Development Assessment and Certification Division.
Part 2 of the Appendix is entitled "General Notification Requirements".
The first element, cl 2.1, is entitled "Notification Letter" and cl 2.1.1 deals with what the notification letter will include. It sets out a variety of matters that will be included in what is described as the "standard notification letter". This list clearly specifies what is to be incorporated for the purposes of written notification for either the first or second column of the matrix in cl 13 of the Appendix. There are two matters contained in the list of items mandated for incorporation in the notification letter that are called up for consideration in these proceedings. The first is in cl 2.1.1(e), a provision that reads: A brief description of the proposed development, namely, the key components of the application.
The second is the requirement in cl 2.1.1(f) requiring the incorporation of: A brief statement that the application and any supporting documentation is available for viewing at Council's administration building, during regular office hours or online via Council's online DA web-tracking system.
For the purposes of this consideration, the first of these positions is said, by the Applicant, not to have been satisfied in a sufficiently material aspect so as to vitiate the notification. As to the second element, it is proposed on behalf of the Third Respondent that the availability of this information, whether by physical attendance or by Internet access, cures any deficiency that might arise from the earlier requirement.
The requirements for a newspaper advertisement is contained in cl 2.3 of the Appendix. The terms of the relevant element (cl 2.3.1) are: The requirements for local newspaper advertisement of any development application or other application shall be in accordance with Table 1 in s 13 of this chapter.
There is nothing in Table 1 in cl 13 of the Appendix that specifies what detail is required in any newspaper advertisement. The table merely requires, where a tick appears in that column, that there be such an advertisement.
It is clear, from the terms of the advertisement that appeared in The Advertiser of Wednesday, 3 December 2014 under the heading "Development Proposals" (which included advertisement of the amended proposal the subject of these proceedings amongst three proposals under that heading) that the Council did not consider that the advertising requirements encompassed the same matters as set out in cl 2.1.1 of the Appendix. Whilst the advertisement appeared to satisfy the provisions of cl 2.1.1(a), part of (b), (c) (d), (e) - although the adequacy of this is contested, (f), (g) - in part, and (l), there is nothing in the advertisement that would satisfy cl 2.1.1(h), (i), (j), (k) or (m). Absent any specific requirement for such advertisements arising from cl 2.3.1 and Table 1, nothing turns on this.
A copy of the Council's notification letter is in evidence at Exhibit C Tab 16 folios 324 and 325. Folios 326 to 350 set out a list of those to whom notification letters were sent. It is clear that those on the list, from approximately two-thirds of the way down folio 343 through to folio 350, are likely to have been notified, either because they commented on the original development application or because the Council had some other broader policy reason for including them (as it is obvious from the addresses that they are not likely to fall within the classes of person mandated by the first or second column in the matrix at cl 13 to the Appendix).
Setting aside, for now, consideration of cl 2.1.1(e), the notification letter appears to satisfy all of the requirements of cl 2.1.1 with the exception of the fact that, for 2.1.1(g) there is only notification of the closing date of the exhibition period but there is no setting out of the dates of the totality of the exhibition period. However, given that the date of the letter is 1 December 2014 and that the mandated exhibition period ran from the day after the first notice published in the notification letter or newspaper with the submission period being 15 days, nothing arises from this.
Returning to cl 2.1.1(e), it requires that the notification letter include "a brief description of the proposed development, namely, the key components of the application".
The notification letter purports to satisfy this requirement by describing the development proposal in the following terms: Construction of a new administration building for Skydive The Beach -renotified - amendments to location and design of building.
The relevant portion of the Applicant's explanation for this ground in its pleadings is contained in [40] of the grounds in the Amended Summons of 23 October 2015. The relevant paragraph reads: The notification letter of 1 December 2014 was misleading in that it omitted to mention that the amended proposal included demolition of the existing amenities block.
It is not disputed by Skydive (and is clear from the approved development application site plan) that construction of the proposed new administration building will necessitate demolition of two council buildings presently erected in Stuart Park and falling partially within the footprint of the proposed new administration building. The site plan identifies these as "existing public toilet building to be demolished shown red dotted" and "existing council works admin building to be demolished shown red dotted".
Although it is not possible to estimate the footprint of the first of these buildings, the second would appear to comprise a building with a footprint of at least 20% of the footprint of the proposed new building (although it is not proposed that the two footprints will entirely coincide). It is, however, clear that both these buildings are intended to be demolished and that it is reasonable to infer that they are not insubstantial, transient structures.
It is clear from Mr Lamb's assessment report for the IHAP meeting in January 2015 that this demolition is necessary as part of the site preparation for the proposal. Mr Lamb says that: Demolition is detailed in draft conditions 39, 42 and 43 in Attachment 7 (the draft conditions of developed consent provided for the Panel's consideration).
In his analysis of the factors required by s 79C(1) of the EP&A Act, Mr Lamb dealt with the requirements of s 79C(1)(b), relevantly under the heading "Public Domain" saying: The proposed building footprint is situated on a part of Stuart Park already occupied by amenities buildings which are to be demolished and thus the proposal does not unduly restrict the opportunity for other recreational activities in the park.
In considering the public submissions made concerning the amended application, when dealing with intensification of commercial use of the park and monopolisation of use of a large area of the park, Mr Lamb said, inter alia: The building footprint, taking into account the removal of the amenities buildings and cottage, does not result in a loss of public open space.
The cottage, in this context, is not the building currently occupied by Skydive but is the second of the buildings proposed to be demolished, being identified on the site plan as the council works' administration building.
A further matter in the public submissions, under the heading other issues, was summarised as being: It is unclear where the users of the present council works' administration building will be relocated to, and again at whose expense?
Mr Lamb's response to this was: The relocation of the council's works' staff who currently occupy the old cricket change rooms is not considered to be a significant issue in regard to this application. It is most likely that a temporary demountable building will be used for this purpose.
The Applicant's summary of argument on this ground, read, relevantly: 52. This notice was misleading in the way described by Rolfe J in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 per Rolfe AJA at 101-2 (approved in Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137 at [110]): Problems will arise… if the notice, as it must do, directs members of the public to where and when all the relevant information may be inspected, but by the giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected, so that it is unnecessary for them to accept the notice's invitation to inspect the relevant information …. 'Misleading' is a word of pejorative connotation, but for present purposes it probably means little more than failing to fully advice members of the public, through the public notification of the draft local environmental plan, or by making a limited statement lulling them into a false sense of security. 53. A failure to substantially comply with the requirement of notification leads to invalidity of the resultant consent, because it a requirement to which Parliament has attached importance (Smith v Wyong Shire Council (2003) 132 LGERA 148 at [59]-[63]) It is not necessary to prove that any particular person was misled. It is sufficient that there is a possibility that someone might have been reassured by the notice so as not to take the trouble to read the exhibited material (El Cheikh v Hurstville City Council (2002) 121 LGERA 293 at [34]). 54. In the present case, it is more than possible that someone might have been concerned about the loss of the public amenities block, if they had been aware of it, but that they were misled by the notification of the Amended Proposal into believing that the only consequence of the amendment was the relocation of the Proposal from one part of Stuart Park to another.
Skydive's written submissions on this point were in the following terms: 40. … The Third Respondent submits that the Notifications were not misleading and complied with section 79A of the EP&A Act having regard to the following: (a) Section 79A of the EP&A Act and the DCP required the letter and newspaper advertisement to contain "A brief description of the proposed development, namely the key components of the application;" (b) The Amended Development Application was described as "Construction of a new administration building for Sky Dive the Beach (sic) - Re-notified - amendments to location and design of building"; (c) The change in location and design of the Building were the key components of the Amended Application, and the Notifications therefore contained the required "… brief description of the proposed development, namely the key components of the application;" (e) The demolition of the existing amenities buildings are not a key component of the Amended Application, particularly as (i) The demolition of the amenities buildings is a step in the construction of the Building, and it not a key aspect of the Building itself; (ii) The demolition of a building is not development which in and of itself requires notification under clause 1 3, paragraph 13 of Appendix 1 of the DCP; and (iii) as noted by Condition 56 of the Consent, the Building is to include new public toilets. It therefore cannot be said that the public amenities within Stuart Park will be lost. Rather, the Consent facilities the renewal and replacement of those facilities. (f) The decision of Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, which is referred to by the Applicant, related to the failure of a notification to inform the public of the range of commercial and industrial uses which the rezoning would permit. This omission is of a fundamentally different character to that complained of by the Applicant in these Proceedings; (g) The Notifications directed the public to the First Respondent's website and office, if they wished to view the plans and other documents relevant to Amended Application; (h) The documents available on the First Respondent's website and at its offices during the Second Notification Period included, amongst other documents: (i) The plans at pages 563 and 564 of the Evidence Book, which show the buildings that are to be demolished in red; (ii) The letter at page 550 of the Evidence Book discusses the demolition of the amenities buildings, including at pages 551 and 554 of the Evidence Book. (i) These documents made it clear that the existing amenities buildings were being demolished, and the public made submissions on the demolition of these buildings, including as evidenced by the submission of John and Caleela Riggall, which refers to the demolition of the amenities buildings; and (j) It follows that, as the public were provided with adequate and accurate information regarding the nature of the Amended Application, including in relation to the demolition of the amenities buildings.
During the course of his oral submissions, Mr Lancaster expanded on the reasons why he said that there was no request to expand on the description of the proposed development in order to render it compliant with cl .1.1(e) of the Appendix. These four reasons can be summarised as: 1. Demolition is not notifiable; 2. Directing people to the website was an appropriate supplementation of the notified information; 3. At least one objector had been aware of the proposed demolition and made submissions concerning it; and 4. Relocation necessarily encompassed demolition.
With respect to this final point, I had the following exchange with Mr Lancaster (Transcript June 21 page 74 line 28 to page 75 line 45): LANCASTER: The fourth factor that I rely on in answer to this ground is one I mentioned yesterday. There is no freestanding obligation to notify, under the regulations and the DCP, in respect of demolition. In this specific statutory and regulatory context, that is a relevant factor that informs your Honour's assessment of reasonableness and adequacy of the notification. In other words, it would have been entirely compliant with the notification policy if there'd been a separate DA for demolition and it wasn't notified. Now, I say the text of what was notified included, as a necessary implication, that something would be demolished, because you can't change location or design without it, but‑‑ HIS HONOUR: You can. You can put it in the paddock, you could put it in the middle of the drop zone, for example, which is just grass. I mean, there's vast swathes of Stuart Park, aren't there, where you could put this building which wouldn't involve demolition of anything other than some blades of grass. LANCASTER: That's true, but the text of the notification says "amendments to location and design of building". HIS HONOUR: But that doesn't necessarily imply - I understand your point that you put to me that there is no obligation to notify demolition. That's a separate issue. But to the extent that amendments to location and design - they're anodyne. They don't imply demolition of anything. They may, but they don't necessarily. LANCASTER: Can I pick up on the "may". There are probably two categories of notional readers of the ad. One is somebody who had followed the first application and who was otherwise interested, and who looked at this and said "amendment to location and design of building" - that person would at that point be put on inquiry because the question of demolition had come up as an issue in the earlier application process, and that person has a more particular interest, having followed the progress of the application. So that person can be taken to have been adequately notified. Then there's the person who might have been totally unaware of prior proposals, who's reading this advertisement for the first time, and who sees the words "amendment to location and design of building". So that person wouldn't be presumed to know that the building used to be suggested in another location, and the person who didn't know that would infer, in my submission, that there must be some demolition involved, if you're moving the location and changing the building. HIS HONOUR: It implies that the building is to be moved and it implies that it is to be differently designed, but if this is Mr A P Herbert's officious bystander, Albert Haddock, who reads this advertisement for the first time - Mr Haddock being, let us say, a busybody resident of Broken Hill who knows nothing about Stuart Park - then all he or Albertina Haddock, to be gender neutral about it, is going to take from that advertisement is that there is a proposal for construction of a new administrative building for Skydive the Beach, that it has been re-notified, therefore there has been some earlier proposal, and it is now proposed to move the location and change the design. There is nothing in that language that would cause anybody coming upon that advertisement for the first time, would there be, that would infer demolition of anything except perhaps some blades of grass, unless they went to the website? LANCASTER: Certainly yes, if they went to website, but if they just read the words that are there "amendments to location and design of building", that officious but unknowing bystander would perhaps take from it that there's an existing building that's been changed in its location or its design. HIS HONOUR: It's a new building. That is clear from the language. There is a proposed new building. The proposed new building is to be shifted somewhere else, and it's to look different, but not necessarily that it's going to demolish anything in that process. LANCASTER: I don't put it as highly as a conclusion that that person must reach on reading it, but I do say that it's sufficient to have called attention to somebody interested in the development of that area to that being within the range of development that was likely to take place.
The proposition that in relocating a proposed building to a point elsewhere within Stuart Park, a park with an area well in excess of 20 hectares (much of which can be seen from the air photos in evidence to be open grasslands) would automatically require demolition of one or more existing structures within the park is clearly untenable.
Each of the other bases proposed as demonstrating that mention of demolition was not required also provides no proper reason why I could conclude that this element of the notification required by the matrix in cl 13 was satisfied.
The mere fact that a development application proposing only demolition, by the non-inclusion of that term in the matrix in cl 13 of the Appendix, does not mean that, in the context of some wider development proposal, demolition might not be an important element of understanding the true nature of the complete project.
Demolition of the two council structures is an essential precursor element necessary to permit the relocation of the proposed administration building to the site that has now been selected for it. In this context, the lack of identification of demolition means that the description of the proposed development is defective in a material aspect.
In Gales Holdings Pty Limited v Minister for Infrastructure and Planning [2006] NSWCA 388, Tobias JA said, with respect to a notice required under the EP&A Act, the following: 110 The appellant then set out the principles developed to determine whether the obligation to give a public notice pursuant to s66(1)(a) of the EPA Act had miscarried. Those principles, which I accept as accurate and which were not disputed, are stated in the appellant's submissions in the following terms: (a) A public notice that is misleading is invalid and not a public notice as required by s66(1)(a): El Cheikh v Hurstville City Council (2002) 121 LGERA 293 at 297-298 [12] applying Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 at 101-102 per Rolfe AJA; (b) 'Misleading' is a word of pejorative connotation but for present purposes probably means little more than failing fully to advise members of the public, through public notification of the exhibition of the draft plan, or by making a limited statement lulling them into a false sense of security: Litevale at 102; (c) Where one document expressly or impliedly refers to another document, then regard should be had to the latter document when determining whether the former is misleading: El Cheikh at 301-302 [33]; (d) The reasonable person the subject of the relevant test is a person with no knowledge of planning law and the relevant provisions of the LEP: Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 357.
Those principles are equally relevant to this notice, mandated as it is by the provisions of the EP&A Act and the DCP. All four propositions are here relevant as applied in the context of this notification and the mandated matters attached to the notification.
Further, the incorporation of a reference to further information being available on the website is, itself, mandated by the terms of cl 2.1.1(f) of the Appendix. This mandated requirement is clearly, from the nature of the provision itself, designed to enable supplementary information to be able to be obtained by an interested person. It is separate from the essential building blocks of information about the proposed development contained in the earlier provisions of the clause.
Finally, the fact that the particular objecting submission to which I was taken had demonstrated that the authors were aware of the demolition is no answer to the inadequacy of description of the development proposal.
It is clear from Mr Lamb's analysis prepared for the 20 January 2015 meeting of the IHAP that the demolition aspect of the proposed development was, itself, a matter of some controversy. Whether or not there might have been further addressing of this issue in submissions made as a consequence of notification or additional submissions received as a consequence of the description of the proposed development including reference to demolition would involve inappropriate speculation.
It is sufficient to note that demolition was, to some extent, a matter of controversy to those who did choose to submit. This fact is, at its highest for Skydive, neutral and cannot be regarded as demonstrating the lack of necessity for an adequate description of the proposed development.
A notice which is inadequate in a material respect is no notice at all (Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638).
In this instance, the mere adoption of the description of the proposed development in terms then omitted a significant and material element, namely, the proposal to demolish the existing amenities block and the Council's works administration facility means that the requirements of cl 2.1.1(e) of the Appendix to the DCP were not satisfied with respect to the notification letters which were distributed in satisfaction of the first and second columns of the matrix in cl 13 of the Appendix.
The absence of specificity of content needed to satisfy the newspaper advertisement requirements is, in my opinion, irrelevant. I have so concluded because it is reasonable to expect that the description of the proposed development mandated for notification letters would reasonably be expected to be the same as that which would be sufficient and compliant for the purposes of the notification letter. As a consequence, the newspaper advertisement should also be regarded as deficient and invalid.
It therefore follows that this ground succeeds.

Conclusion

I have concluded, in short, that: 1. The Applicant's first ground, that the development is prohibited, is unsuccessful as, properly characterised, the proposed development should be regarded as an ancillary building supporting use by Skydive of portion of the park as a "recreation facility (outdoor)"; 2. The Applicant's ground proposing that Mr Riordan failed to have regard to a mandatory relevant consideration, namely, the Stuart Park Plan of Management, is without foundation and that, if construction of development of the nature approved were to proceed, any remedy with respect to any breach of that Plan of Management would lie elsewhere; but 3. The notification of the amended development proposal was defective in a material respect in that the description of the proposed development failed to refer to an essential element of the proposed development - namely, that demolition of an existing council works' administration building and an existing amenities block were not adverted to in the notification.
As a defect in a material respect of a notice means that there is no notice, it therefore follows that the fourth ground pleaded by the Applicant succeeds.

Future progress of the matter

As discussed briefly with Mr Robertson and Mr Lancaster at the conclusion of the hearing, I deferred hearing submissions on what might be the consequences if the Applicant were to succeed on one or more grounds and to defer consideration of the question of costs, whatever the eventuality.
It therefore is necessary for there to be a supplementary hearing dealing with these matters. It would be my expectation that such a hearing might not need to be lengthy and could be accommodated in a period before an ordinary court day if it were to commence at 8.30 am. The parties are to confer and advise my Associate any mutually convenient dates for and an agreed procedural timetable leading up to such a hearing prior to the end of September. If the parties are unable to agree on possible dates and a timetable by the close of business on Thursday 11 August, the matter is listed for mention before me at 9.00am on Friday 12 August.

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: 04 August 2016

(2003) 132 LGERA 148

(2002) 121 LGERA 293

At a glance

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Judgment (25 paragraphs)

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Cases Cited (10)

Cited By (1)