Newsletter 12 – Luna Park

Who decides what can be built – the Government or the lessee (Multiplex’s Luna Park)?

The question was put to the Land and Environment Court to decide.

Luna Park:

• is one of Sydney’s great icons (along with the Bridge and the Opera House);
• heritage significance caused the Government to declare it Crown Land and establish /appoint the Luna Park Reserve Trust as trustee of the Luna Park Site;
• significance was further recognised when in:
  • 2001 it was declared to be State Significant Development.
  • 2002 approval was given to Development Application seeking approval for a “Masterplan” for the Luna Park Site setting parameters around matters including land uses, building envelopes, access arrangements, noise levels and hours of operation – the Application was successful. The approval did not extend to “future” building and preserved the role of the Government in protecting Luna Park.

How did this question get to the Court?

In late 2014 Luna Park Sydney Pty Limited constructed a 37 metre-high ride called The Hair Raiser. It was built:

• without Development Approval;
• on an area of the Luna Park site (the Midway) where buildings of any description are prohibited. This prohibition is contained in the Plan of Management; and
• it contravened the height limits.

The NSW Government:

• noting that the ride had not been approved, gave notice of its intention to seek the demolition and removal of the ride, and its associated structures, fixtures and fittings.
• gave up – it advised:
  • future rides – where development consent is required, the Government will publicly exhibit any development application of this nature, and residents will be invited to make public submissions.
  • That it had indicated to Luna Park that it required consent for these activities, and we therefore believe there is a breach of the Act.

The Government decided to take no action

In 2016 a “tent” (with permanent foundations) appeared on Lavender Green (a part of the Luna Park site) – there is a prohibition against permanent structures on Lavender Green . See my previous Newsletter. A year later, the “tent” was still in place; the Government was asked if it had approved the construction of the “tent”.

The Government took no action- it just could not decide what to do about the “tent”

The Government said that it had not given approval but that its authority to approve buildings was being challenged by Luna Park.

In 2017:

• Luna Park made application for a construction certificate in relation to “foundation footings and installation of amusement ride” for a ride, The Flying Carousel. The Certifying Authority refused to certify the ride – “on the grounds that the works cannot be demonstrated as consistent with the development consents (in place).
• Luna Park challenged the decision of the Certifying Authority: it took issue with the Certifying Authority by alleging that it did not need Development Consent; it argued that an earlier consent form dated 2002 was sufficient.
• A key issue was whether or not Luna Park should be obtaining development consent when temporary structures are erected, including on Lavender Green.

The court disagreed with Luna Park; it held the 2002 consent:

• related to the use of the site (as an amusement park) – it simply set the parameters for the future use; and
• did not amount to an approval for building that would be designed in the future.

Put another way – proposals to relocate existing rides or build new rides must be the subject of new Development Applications.

The decision confirms the Government’s authority to ensure that Luna Park is preserved as an operating amusement park.

We have a right to expect the Government will protect Luna Park.

Now Luna Park is preparing a petition seeking exemption from the planning laws.