Dear friends of KEP, I have tried to keep this short but failed because I see it as very important. Your response may well affect the future of the Headland Reserve and possibly other Crown Land Reserves.
It is to inform you that we have been advised by Mr. Robertson SC to accept an offer of Mediation re the Headland Reserve from the Crown Solicitor acting for the Minister. The Department of Lands (trustees), the Council and the developer will all be represented.
We have been briefed by our Solicitor and are busily preparing for the session at a date to be determined. This letter to you is an important part of the process for we must decide what is our bottom line-or walk away point. Members’ views are necessary in determining this so I encourage you to please respond. Other valued recipients of this email are also welcome to contribute.
At the end of this letter is an outline of the mediation process, by Alex Kennedy a Law student whom we are lucky to have working with us. A brief summary of events to remind you of the issues might be useful.
The Headland Reserve sits entirely within King Edward Park and for the most part has been dedicated for public recreation since 10 March 1894. Newcastle City bowling club was built on the site at the end of the nineteenth century and comprised a club house, service shed, and three bowling rinks. There was never a space for parking, so the frequent references to an existing car park are incorrect.
On 23 December 2005 following the lapse of the Bowling Club Lease (which was only issued in 1963) the Minister, under s.87 of the CL Act reserved the land for the public purpose of public recreation and he appointed trustees and manager for the Headland Reserve. Land such as the Headland Reserve which is reserved for public recreation has an additional legal dimension – For the land to be used for public recreation, two conditions must be fulfilled. The land must be open to the public generally as of right and it must not be used for private profit (Robertson SC October 2011)
The 2007 Plan of Management includes a summary of a workshop in August 2006 attended by community groups (Newcastle East and Cooks Hill) the Dept. of Lands and the NCC and is summarised as follows
“ The workshop participants did not endorse in any way the redevelopment of the reserve; many of the participants were strongly opposed to any form of development. However, the process was valuable because it brought into focus both the opportunities and likely opposition to the inclusion of commercial activities in the redevelopment of the Reserve.”
The DA for the function centre, car park, and public kiosk was advertised on the 28December 2010 and, passed by the Council toward the end of 2011. There was strong protest based on alienation of the public and failure to comply with the 2007 Plan of Management. The plan of management indicated, verbally and diagrammatically, that the public should have free access to the perimeters of the Reserve, something completely ignored by the DA which virtually occupied all of the southern boundary. The POM, also indicated a much smaller construct and stipulated equal use of the Reserve between the public and the commercial development- not honoured by the DA
By way of compensation, before consenting to the DA, the NCC added a pathway outside the Headland Reserve, through the Park, as an amendment and a condition to be constructed at the developer’s cost.
Next a Land and Environment Court case was brought by the FKEP to contest the commercial use of dedicated public recreational space in this manner, and the insertion of the path through the Park without appropriate consideration.( MSB, Geotec, heritage etc.)
A preliminary hearing by the L&E court earlier this year was in response to Council’s application for Security of Costs (nearly$80,000) against us. Council’s argument was based on the grounds that the DA was being contested for local (NIMBY) concerns. They lost. The judgment stated that the applicant (FKEP) brought the matter because of public interest, and was seeking to enforce public law obligations on the Council and the Minister.
Next, the council received a section 96 application from the developer to remove the pathway from the DA. The developer argued that to allow the public access to the south of the building would be a security risk. Also to allow the public into this area would adversely affect the privacy of the guests at the function centre. The application was defeated resoundingly in Council, and supported only by ex-Councillor Buman. It was notable that the S.96 was strongly supported by Council Officers who actually inserted a few arguments of their own in support, as though acting as advocates for the developer.
In August, we held a very successful Public Meeting (under the chairmanship of Dr. Bernie Curran) that many of you attended. Talks outlining the very significant heritage were given by historians Gionni Di Gravio and Ann Hardy, Architects Richard Leplastrier and Peter Stutchbury. Dr. John Lewer outlined our position for the FKEP.
These resolutions were passed unanimously.
- 1. This community meeting endorses the cultural, historical and geographical significance of King Edward Park and its environs including the Headland Reserve and supports the application that the park be listed on the NSW Heritage Register.
- 2. That all necessary steps be taken to allow public access to the Headland Reserve while awaiting the outcome of the Land and Environment Court’s decision.
And a further resolution from the floor….this meeting strongly supports the King Edward Park Headland Reserve being retained as open space for the recreation of the people of Newcastle.
This brings you up to date. It doesn’t really seem like all that much for a hell of a lot of work by a handful of wonderful people.
I need to know, on behalf of your committee who will be negotiating for you, what your cut-off point is when it comes to the public amenity of the Headland Reserve. What do you want the Headland to be in 10, 20, 50 years- time, for the next few generations? Drop me a line please. It doesn’t have to be lengthy.
In the meantime, this ain’t cheap. We are eternally grateful for our Legal team and their generosity in supporting a community battle, but costs have included surveyor’s fees that came in nearly $2000 dollars above their quote ( up43%), and an excellent Geotec report (which went easy on us). Our funds are very low, so I hope we can rely on your support at the next fundraiser we manage to put on. Any donations in support are gratefully received.
Best Wishes. Kim
Mediation process. Alex Kennedy.
Mediation is really a negotiation with, in this case, a Court official offering to act as mediator or facilitator. We expect to be represented at the mediation by our solicitor and our junior barrister. The usual process is that each party is invited to discuss the issues in dispute and then there is an opportunity to bargain for an outcome acceptable to all parties. Obviously, in this process concessions are likely to have to be made on all sides.
Some further information about the mediation: the cost of the mediator is covered by the Court. There is some additional cost with having the Junior Barrister there but his fees are capped. The mediation is a confidential process so that what is said in the mediation is not released to the media or discussed in Court if the case does not settle.