Public support sought for Land and Environment Court challenge

The newly-released Central Coast 2036 Regional Plan shows the Arts and Entertainment Precinct as the former Gosford Public School site

Mr Matthew Fraser, the barrister representing the Gosford Waterfront Alliance in the Land and Environment Court (LEC), has called on the NSW Government and the Central Coast Council to immediately stop work on all projects on the Gosford School site and rezone the land.

According to Mr Frazer, the newly-released Central Coast Regional Plan referred to the public land bounded by the Central Coast Hwy and Georgiana Tce as an arts and entertainment precinct. The government’s intent, represented in its regional plan, should be honoured by the state and local government to ensure the waterfront land is used for the purpose shown in the fi nal document, he said. Mr Fraser said there was nothing stopping the Central Coast Council from getting behind the community by initiating a brand new gateway process to rezone the land for a cultural and recreational precinct. Mr Reynolds was a “fantastic and able person” according to Mr Fraser, but in his current role, he was “holding the whole area back”. “The state government has other sites available for office buildings, this area should be kept for the community,” Mr Fraser said.

He said he encouraged community members to make the trip to Sydney for the case. “The proceedings on November 1 and 2 will be in open court, so the public is encouraged to come along to Macquarie St so the Court knows there is a high level of public interest in the matter,” Mr Fraser said. He said he cautioned that even if he succeeds in persuading the court that the design excellence requirements in the Gosford Local Environment Plan were not met by Doma, the developer of the ATO building on part of the old Gosford Public School site could lodge another development application and start the process all over again. Mr Fraser said he would be arguing that: “It was irrational or manifestly unreasonable for the Joint Regional Planning Panel (JRPP) to be satisfi ed that the design met the LEC’s design excellence criteria.” At the very least, the barrister said, Doma should have to redesign the ATO building as a result of the action taken by the Gosford Waterfront Alliance. “The ideal outcome would be that the consent would be declared invalid on any of the grounds raised,”

He also said that it was important for the matter to be heard and could set a legal precedent. Mr Fraser will also argue that the JRPP did not properly explain how the panel came to the conclusions they did. “Existing case law doesn’t say they have to explain their reasons, so we will be trying to set a precedent, especially on the point of design excellence, that the JRPP should have explained its reasons for approving the design when it did not meet the requirements of the LEP,” he said.

Mr Fraser said the matter would be heard by a judge, as it was a judicial challenge, which involved identifying a legal defect in how the JRPP made its decision. He made it clear that it would be diffi cult to succeed and that the great majority of judicial challenges are unsuccessful. “Having said that, it is important for such matters to be heard so that bona fi de community organisations can have their concerns heard in the Land and Environment Court,” he said. According to the summons for the judicial review, Mr Fraser will argue that the JRPP did not conduct its merit assessment for design excellence in the manner required and “consequently did not form the requisite state of mind mandated … that the consent authority considers that the development exhibits design excellence” and thus did not have the power to grant consent; and that the JRPP also failed to have regard to all the matters specified as mandatory for consideration.

The summons said: “The exercise of the planning discretion by the JRPP in considering Part 8 of the Gosford Local Environment Plan was so devoid of plausible justifi cation and so irrational that no reasonable person could have granted planning consent, such that the exercise of the planning discretion miscarried andor amounted to an abuse of power.” The GWA case will also argue that the JRPP deferred assessment of the use of the former School of Arts building and surrounds to a future development application when the matter was essential for consideration prior to determination of the DA.

Interview, Oct 18, 2016 Matthew Fraser, Barrister JRPP determination, June 30, 2016 2016HCC009 Summons (judicial review), Aug 15, 2016 Land and Environment Court of NSW, Case number 16/245156 Jackie Pearson, journalist

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