Newsletter 71 – Conserving Rare Open Space

North Sydney has one of the most constrained parkland and recreation area ratios in metropolitan Sydney — approximately 550 residents per hectare of open space.
By comparison, Ku-ring-gai has around 84 residents per hectare, Willoughby 216, and Mosman 170, highlighting the significant shortfall in accessible parkland available to North Sydney residents.

Recently, we have:

• Lost Waverton Bowling Club to a land rights claim;

• Lost large part of Cammeray Golf Course to Transport for NSW (TfNSW);

to push ahead with its ongoing road-building agenda;

• been watching TfNSW carving up Bradfield Park North and Central for a bike track; and

• Witnessed the continuing alienation of Bradfield Park South by TfNSW for a works depot.

On top of all this, a large part of Bradfield Park South continues to be occupied by TfNSW.

• Why?

• Is TfNSW taking over a large part of Bradfield Park South for a permanent maintenance compound or is it planing a bus terminal?

Bradfield Park is:

• held by North Sydney Council under the terms of a trust for public parks and for public recreation and for the purposes of public parks and public recreation.

• classified as ‘community land’ and that classification can’t be changed because it is subject to a trust.

North Sydney Council is self-constrained by the Bradfield Park Plan of Management which it put in place in 2014. Plans of Management provide guidelines for the effective short and long-term management of all land owned by Council or under Council’s control.

Bradfield Park comprises three parts:

• North – the section south down to the Burton Street tunnel.

• Central – the section between the Burton Street tunnel and Fitzroy Street tunnel.

• South – the section between Fitzroy Street tunnel and the harbour.

Some History

When it comes to Bradfield Park South it has been:

• 1787 – Taken by the Crown under by Letters Patent.

• 1824 – Granted by the Crown to James Milson.

• 1922 – Resumed by the NSW Government to facilitate the building of the Harbour Bridge.

• 1939 – Vested by the NSW Government in North Sydney Council as compensation for the disruption caused by the building of the Bridge.

• 1987 – Resumed (part) by the NSW Government and leased to the Joint Venture building the road tunnel with an obligation to return it to North Sydney Council in June 2022.

James Milson sold off the land leaving Milsons Point to evolve into a thriving community and transport hub.

The 1922 Resumption

To facilitate the building of the Sydney Harbour Bridge and the northern approach, the State Government resumed land at Milsons Point by relying on the:

• Public Works Act 1912

• Sydney Harbour Bridge Act 1922

• Sydney Harbour Bridge (Administration) Act 1932

The devastation of the Milson Point community seemed total – but more was to come.

The 1939 Vesting

To compensate the residents of Milsons Point for the “disruption” caused by the construction of the Sydney Harbour Bridge, the State Government vested a part of the resumed land (Trust Land) in the Municipal Council of North Sydney upon trust for parks and recreation purposes – the documentation for this includes the:

• the record of the Legislative Council on 13 and 14 February 1935; and

• the record of the Legislative Assembly dated 5 March 1935, and

• a Proclamation dated 19 March 1939.

The 1939 Proclamation provided, that the Trust Land (today known as Bradfield Park) be vested ..

in the Council of the Municipality of North Sydney for an estate in fee simple upon trust for public parks and for public recreation and for the purposes of public parks and public recreation.

The 1987 ‘temporary’ Vesting of Trust Land (part of Bradfield Park South)

On 26 May 1987 it was reported to the Legislative Council that:

The Sydney Harbour Tunnel Company, to be owned jointly by Transfield and Kumagai will be established to raise funds, design, construct, own, and operate the tunnel. Land will be leased by the Commissioner for Main Roads to the Sydney Harbour Tunnel Joint Venture

• • • • Note: The parties to the Joint Venture were Transfield (SHTJV) Pty. Limited and Kumagai Gumi Co., Ltd (Tunnel Company).

Tunnel Company.

On expiration of a thirty-year lease in 2022 (extended to 2023), the tunnel will
transfer from private to government ownership.

Subsequently, the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 (the Joint Venture Act) was enacted vesting part of the Trust Land in the Commissioner for Main Roads (now TfNSW)

Note:

• The tunnel land was leased to the Tunnel Company pursuant to the Joint Venture Act.
• The lease that was executed expired in June 2023.
• By reason of the expiration of the lease, section 13 (the return of the land) is now in play.

The vesting was of a part of Bradfield Park South. The burning question is, which part?

The land ‘vested’ is defined in Schedule 3 of the Joint Venture Act as:

All that piece or parcel of land shown by distinctive colouring, edging or hatching on the plan entitled “Plan of Land Required for Proposed Sydney Harbour Tunnel”, and numbered 0000 412 SS 0586, a copy of which is sealed with the seal of the Commissioner and deposited in the office of the Department of Main Roads. TfNSW has provided a monochrome copy the “Plan of Land Required for Proposed Sydney Harbour Tunnel”.

There is a problem.

The Joint Venture Act provides:

12   Vesting of land etc in the Commissioner (for Main Roads)

(1)  On the date of assent to this Act, the land shown:

(a)  coloured yellow, or

(b)  hatched green with green edging,

on the plan referred to in Schedule 3 vests in the Commissioner for an estate in fee simple,

freed and discharged from any trusts, obligations, estates, interests, contracts, charges,

rates, rights-of-way or other easements existing immediately before that date.

Obviously, the colouring (yellow and green) is critical to the identification of the boundaries.

As the Plan is a copy that is not in colour, it is not presently possible to identify land shown:

(a)  coloured yellow, or

(b)  hatched green with green edging,

I’m pressing TfNSW to provide a copy that’s in colour.

The Joint Venture Act makes it clear that the land was taken ‘temporarily’ with an intention that it be returned. It provides for the Revesting of land in previous owners

(1)  The .. land .. shall not be disposed of otherwise than in the manner prescribed by this section.

(2)  The Governor may by proclamation .. declare that any part of the land .. shall be revested in the person in whom that part of the land was vested immediately before the land was so vested in the Commissioner.

(4)  Upon publication of a proclamation ..the land described in the proclamation shall vest in the person specified therein for an estate in fee simple, subject to all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way and other easements then existing.

TfNSW chooses to continue to occupy part of Bradfield Park South. The challenge the community faces are to determine:

• is the occupied land, the part vested in 1987, and
• in any event, when will it be returned to North Sydney Council.

Let’s face it, Bradfield Park South, on the Harbour foreshore and overlooking the Opera House, is iconic – it is, in fact within the World Heritage classified Sydney Opera House’s Buffer Zone

Remember, it was given to the North Sydney Council as compensation for the disruption caused by the construction of the Bridge and the northern approach.

So, for how much longer will North Sydney Council tolerate TfNSW to use Bradfield Park South as a work area?

To be candid, I think North Sydney Council should do more than wait for TfNSW, it should mount a campaign to get back that part of Bradfield Park South that was taken “temporarily” in 1987.