The site of the former bowling club in King Edward Park. Picture: Ryan Osland
FOR groups such as the Friends of King Edward Park that have been fighting for years to keep Crown land reserves in public hands, it is a relief to see an improved public awareness of the wholesale government sell-off of public assets.
Locally, this can be seen by the determination of this government to open the rail corridor for development, and to spot rezone inner Newcastle for high rise.
Statewide, it has been reported that Government Property NSW, which was formed in 2012, has sold $1billion worth of its $300billion real estate portfolio of public property in just two years. This includes hospitals, office blocks, heritage buildings and an island.
In 2010, a proposal to build a 450-capacity function centre and car park in King Edward Park was approved by the State’s Land and Property Management Authority, and its agents promoted it to Newcastle City Council.
This land is dedicated under s87 of the Crown Lands Act for public recreation and, under the local council environment plan (LEP) as 6a (open space) and RE1, which forbids its use for function centres.
The proposal met with strong public opposition because of its failure to comply with a NSW Government Plan of Management, which was published in 2007 after consultation with interested parties.
The community had expressed the desire for public open space and the respect of heritage. Accordingly, the plan recommended caution as regards commercial development and included certain constraints and conditions that seemed to ensure an acceptable degree of free public access. These were sadly lacking in the application.
The headland reserve occupies 6400squaremetres of very desirable public land enclosed within King Edward Park.
For the purpose of the lease it was valued at $750,000, with an estimated leasing income of $24,000 per annum, of which $6000 per annum would return to Newcastle council. This might appear to be an attractive proposition for a privately owned and operated 450-capacity function centre complete with ceremonial lawns and car park.
Our group has argued the case through two appearances in the Land and Environment Court.
The first was in 2013 when it was summoned to defend a Newcastle council claim for the Security of Costs.
Presiding Judge Biscoe, in finding for our group, said it was seeking to enforce public law obligations on the minister and the council.
He observed that the proceedings had been brought to preserve the park and the reserve for its dedicated purpose of public recreation. He noted our attempt to protect the environment and heritage, which were of significant value and importance, and because the litigation concerned a public park and a reserve dedicated for public recreation, it affected a significant section of the public beyond the members of our group.
The second appearance before Justice Terry Sheehan was in March 2014. Arguments were made that the plan of management did not validly include permission for a function centre, and that a function centre contravened s112a of the Crown Lands Act, which states that the use of the land must be consistent with the dedication.
The act defines “public recreation” as being accessible to the general public as of right, and not to be used for private profit.
Judge Biscoe had previously noted that if our arguments were upheld, this case would “affect all the dispositions of Crown land reserves in the state”.
Our group wondered whether it was these words that motivated an amendment to s34a of the Crown Lands Act which greatly increased the powers of the minister in the disposal of Crown land, and a White Paper that weakened the act’s capacity to protect Crown lands.
But what of the local environment plan (RE1) that forbade its use for a function centre?
In June 2011, Newcastle council refused an application to spot-rezone the reserve to allow a function centre. But then, without community consultation, the site was rezoned in June 2012 that made an exception of that site to allow a function centre.
The NSW upper house inquiry into planning decisions in Newcastle, which released its report recently, noted: “The committee questions why the reserve was spot rezoned given that the council had earlier rejected a proposal to rezone the land. We are significantly concerned about the lack of consultation and information to the community on this matter.”
With the King Edward headland reserve we are witnessing a test case, which could determine the fate of Crown land reserves throughout the state and the value we place on them for future generations.
Kim Ostinga is president of Friends of King Edward Park