Millers Point Fund Inc v Lendlease Millers Point Pty Ltd & others - EDO NSW

Millers Point Fund Inc v Lendlease Millers Point Pty Ltd & others – Crown Casino at Barangaroo

We acted for a community group, Millers Point Fund Inc, in its challenge to decisions by the NSW Planning Assessment Commission (PAC) on the Crown Casino development at Barangaroo in Sydney.

This was a complex case that related to the approvals process, and subsequent modifications, through which the casino came to be located on land that had been set aside as public parkland. The community group argued that the PAC did not apply the law properly when approving the casino’s location. 

Background on the approvals process
The Barangaroo development site’s Concept Plan was first approved in 2007, and was modified many times after approval. The Concept Plan set out the general layout, land use and size of the buildings and other parts of the redevelopment of the Barangaroo site.

The Concept Plan preserved an area on the foreshore of Sydney Harbour as a publicly accessible park.

However, on 28 June 2016, the PAC approved a modification to the Concept Plan (MOD 8) in which one of the proposed buildings – described as a ‘landmark building’ on a pier in the Harbour – was moved onto the foreshore area designated for the public park. Under this version of the Concept Plan the park was moved between the landmark building and Hickson Road, away from the waterfront. The scale of the landmark building was also increased, and it was approved for use as a casino.

On the same day, the PAC approved a separate State Significant Development application for the Crown Sydney Hotel Resort on the site of the landmark building.

Many members of the community objected to placing the proposed Crown Sydney Hotel Resort on what had previously been set aside as publicly accessible parkland on the harbour foreshore. City of Sydney Council argued strongly that the Crown Hotel Resort Sydney should be pushed back to Hickson Road, to allow the park to remain on the foreshore.

In response, the PAC said that it was sympathetic to these views but the NSW Parliament had effectively determined the location of the Crown Sydney Hotel Resort when it passed amendments to the Casino Control Act 1992 in 2013. These amendments allowed for a casino licence on the area of the waterfront where the Crown Sydney Hotel Resort was approved by the PAC under MOD 8. 

The case
In its legal challenge, our client said that both decisions – to approve the modifications to the Concept Plan, and to grant development consent to the Crown Sydney Hotel Resort building – were invalid. They argued that the PAC was required under law to decide whether or not to approve the location of the Crown Sydney Building by reference to the Environmental Planning and Assessment Act 1979, untainted (or in legal terms ‘unfettered’) by the location determined under the Casino Control Act.

Our client said that the provisions of the Casino Control Act only relate to licensing of a casino: they are not intended to override any of the planning law controls for physically building a casino.

By tying itself to the location specified under the Casino Control Act, our client said the PAC breached the law by not properly exercising its planning law powers. 

On 23 December 2016, the Land and Environment Court delivered its judgment upholding the State Significant Development consent and modification to the Concept Plan, allowing the Casino to be built on the foreshore at the site. Read the judgment.

Costs decision confirms the public interest
In cases such as this, it is usual for the losing party to be ordered to pay the other sides’ legal costs.

We argued that Millers Point Fund should not have to pay the other parties’ costs because the case was brought in the public interest. The Court agreed, ruling that the matter could be characterised as public interest litigation because:

  • it concerned a broad sector of the community beyond local residents;
  • it involved public law obligations;
  • the prime motivation for initiating the proceedings was to enforce public law obligations regarding the development of public land; and
  • the applicant had no pecuniary interest in the proceedings.

As a result, each party to the proceedings will pay their own legal costs.

We are grateful to barristers Michael Hall SC, Mark Seymour, Craig Lenehan and Jane Taylor for their assistance in this matter.