OPINION Use of public land is under state scrutiny

Jacquie Svenson is a Newcastle solicitor who teaches at the University of Newcastle legal centre.
Nanjing Night Net

THE Newcastle community is already fighting in the Land and Environment Court to prevent private development on an iconic piece of its Crown land heritage, in the form of a challenge to a wedding reception centre on King Edward Headland Reserve.

And now, as soon as the state government gets the numbers, the NSW upper house will debate legislation that, if passed in its current form, could fundamentally change the way you and I enjoy public land in NSW.

The Crown Lands Amendment (Multiple Land Use) Bill 2013, already passed in the Lower House, will give the government power to lease or license for any use it likes land that’s earmarked for public recreation, as long as it will not “materially harm” the public recreational use. And whether it does that will be a question solely for the Minister for Crown Lands.

The change will also give the minister the power to cure any current uses on public recreational land that are for a different purpose, but won’t “materially harm” that use. And if you want to bring a challenge to a private use as part of a planning challenge, you’ll have to give the Crown six months’ notice beforehand. Tricky when the limitation period on planning matters in the Land and Environment Court is three months at most.

At present the NSW government can only grant a private lease on public recreational land if it is in the public interest to do so, and “due regard” has been had to the principles of Crown land management.

To date, at least, it has mostly had too much political good sense to do so.

However, the tabling of this legislation suggests an alarming trend towards curing incompatibility with public use in the interests of income to the state, rather than addressing and preventing wrong use for the good of the people of NSW.

Much of the land affected would have been swallowed up long ago by development if it weren’t for protection under the Crown Lands Act.

The legislation has been expressly stated as being to prevent the perceived result of a Court of Appeal case (Goomallee) that, perhaps rudely, applied the NSW government’s own law to prevent grazing on public recreational land because grazing was “not” public recreation, nor was it “in furtherance of or incidental to” it.

Previously, the general legal consensus had been that secondary uses were lawful as long as they were not “inconsistent” with the use; so grazing was fine as long as, for example, you didn’t mind camping among a few sheep.

Goomallee meant that, unless the sheep themselves were camping, grazing would not be allowed there. As a result of Goomallee, suddenly all the leases the government has granted on public recreational land that weren’t for the purpose of public recreational land (and going by its reaction, there must be a few) are in the spotlight – and on the hotplate.

In fact the legislation will take the management of public recreational land back to a much lower watermark than “inconsistency” before Goomallee. Really, the excuse for the legislation – to cure current leases that are potentially unlawful after Goomallee – seems to be a bit of a storm in a teacup: many of the examples of the “8000” interests given in the minister’s second reading speech (the CWA halls, the Men’s Sheds, the libraries and community halls) probably could be characterised as, or as “ancillary to” or “in furtherance of”, public recreation. So they are not under threat from the case. As for the preschools, council chambers and Rural Fires Service and Marine Rescue facilities, there aren’t 8000 of those; wouldn’t it be simpler and less Machiavellian to gazette an additional purpose for those reserves, in accordance with the transparent and publicly accountable process under the Crown Lands Act?

These are ‘‘Ma and Pa’’ uses that most Australians would want to protect even though they are on recreational land. But passing legislation of this breadth and impact just to regularise those situations is major overkill.

It has to be speculated: the real purpose of the bill is to protect the lease rents and licence fees for private uses on public land that have been quietly adding to Treasury’s coffers for decades. Exclusive wedding reception centre on one of the best views in NSW, anyone?

King Edward Park headland reserve

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