Newsletter 30 – Luna Park – Is it a case of Regulator Capture?

Luna Park’s ghost train’s fire provids the basis for a rethink of how Luna Park could continue to be one of Sydney’s icons.

It was back in 1998 that every conceivable Luna Park stakeholder came together and signed-off on a Plan of Management for Luna Park.

The messages from two of those stakeholders:

• The Government and
• The lessee of Luna Park, Luna Park Sydney Pty Ltd, the operator of Luna Park (related to Brookfield Multiplex),
  are contradictory and, increasingly, unsettling.

Luna Park Sydney previously announced its intention to develop land adjacent to Luna Park.

• The only land adjacent to Luna Park is the NSW Government’s railway siding.

The Premier announced that the NSW Liberals & Nationals Government will never sell off the land (railway corridor between Waverton (Berrys Bay) and Lavender Bay) and ensure it remains a community asset in the event it is not needed for railway use.

“Selling” off is a hallmark of the management of Luna Park

In 2002 the Government (Luna Park Reserve Trust) leased Luna Park to Luna Park Sydney

• the lease terms recognised and mandated compliance with the Plan of Management.

Luna Park Sydney then set about reducing the site by “selling”:

• the car park (to a Multiplex company) for $1 (valued in the accounts of the purchaser at $24m);
• hotel development site (to a Multiplex company) for $1;
• surrendering its lease over 540 square meters in return for a payment to it of $5m; and
• surrendering its lease over 494 square meters in return to a payment (by the owner, the Government) to it of $3.2m.

Special Treatment that transfers value from the community to Luna Park

1.Noise

In 1995 the noise from the newly installed big dipper became an issue. The Community mounted an action aimed to securing compliance with the laws relating to noise.

In that action the presiding judge said:

… I also accept that the area is now to a significant extent a residential area, and is becoming more so; and that it should not be assumed that Luna Park would be allowed to operate in ways that unreasonably interfere with the residential amenity of the area…

The outcome was that the park closed.

In 2005, following reopening of the park:

• the community instituted proceedings in relation to the noise from three rides that had been
  relocated to the northern end of the park adjacent to residences. In response Luna Park Sydney requested the Government to legislate to exempt Luna Park from the laws relating to excessive noise.
• In addition, Multiplex Developments Australia Pty Ltd requested the Government to:
  Retrospectivity is required to prevent the court in the current case awarding damages as a result of any noise impacts the court determines in the last 18 months of trading. It also prevents future damages claims from other residents taking action.
• The Government announced that it would be introducing the Luna Park Site Amendment (Noise Control) Bill.
• The Luna Park Site Amendment (Noise Control) Act 2005 was given Royal Assent on 19 October 2005 and was retrospective to 30 March 2004, the eve of the Park’s official re-opening’..

2. Special treatment that removes regulatory controls from Luna Park

2.1 The Hair Raiser ride

In late 2013 Luna Park Sydney constructed a 37-metre-high ride (the Hair Raiser). The Hair Raiser was built:

• without Development Approval;
• on an area of the Luna Park site (the Midway) where buildings of any description are prohibited; and
• in contravention of the height limits set by the Plan of Management.

The Department of Planning & Environment Assessment (the Department) gave notice of intention to seek the demolition and removal of the ride, and its associated structures, fixtures and fittings.

On 10 November 2014 Luna Park lodged Development Application DA 6800 (“DA 6800”) seeking approval for the ongoing use of the “Hair Raiser” ride at the Park. On 1 June 2015, DA 6800 was referred to and approved by the Planning Assessment Commission under Ministerial Delegation.

To date, there is still no Development Application or approval for the erection of this ride.

At the time Planning Minister Goward advised, the then local state member, Mrs Skinner:

For future rides where development consent is required, the Department will publicly exhibit any development application of this nature, and residents will be invited to make public submissions.

2.2 Lighting compliance

In November 2016, the Department of Planning issued an order requiring Luna Park to submit a compliance report relating to the lighting requirement of its Development Consents. Luna Park responded in the Land & Environment Court claiming consent conditions don’t apply after construction and the Minister’s order oversteps the mark.

In February 2017 the Planning Minister, The Hon Anthony Roberts MP, curiously withdrew its order.

2.3 Administrative Reversal of the Land & Environment Court decision

In 2017, Luna Park Sydney:

• argued that, unlike everyone else in NSW, it should not have to comply with the planning laws. The NSW Government disagreed.
• took the NSW Government to Court as it did not accept a ruling under the Environment Protection Act (EPA Act) that Luna Park required a construction certificate for any building or structure it wished to construct.

In July 2018, the Court dismissed the proceedings and awarded costs against Multiplex.

In October 2018, following a direct request from Luna Park, the Minister for Planning, launched a process to relax planning controls through categories of exempt and complying development within Luna Park. The Minister, following advocacy from Ms Felicity Wilson, local state member and against the judgement of the court and the wishes of residents, hastily approved the SEPP in early December 2018.

The SEPP made Luna Park Pty Ltd the consent authority.

2.4 The Government misled the public in favour of Luna Park

The Department of Planning and the Independent Planning Commission advised the SEPP provided a pathway for low impact rides which would have minimal impact on residents.

The NSW Government in its Media Release announcing the SEPP indicated that the new rides would have minimal impact.

Ms Frame said the Department today opened its consultation on a proposed simpler pathway for approving low impact rides and amusements as exempt and complying developments under the State Environmental Planning Policy (State Significant Precincts).

This proposed SEPP amendment has been given priority so that Luna Park can continue to operate effectively over the Christmas holidays – it’s limited in scope and the changes proposed will have minimal impacts. It simply means Luna Park can continue operating as it has since 2002,” Ms Frame said.

This concept that the rides and amusements deemed to be exempt would have minimal impact was also advised by the NSW Government Independent Planning Commission in its Media Release of 23 November 2018

Rides and amusements with minimal impacts would be deemed exempt development and would not require development approval before they are installed, modified or removed; while a council or accredited certifier could approve the installation, modification or removal of rides and amusements, if they comply with specific development criteria, under a streamlined approvals process.

Luna Park has introduced 9 new rides under the SEPP; 3 thrill rides and 6 children’s rides. The thrill rides include:

• The Boomerang: a roller coaster where riders experience a g force of up to 5.2 when the train re-enters the vertical loop at 45km/h. The Luna Park website advises:
  • The family roller coaster that keeps you coming back. It drops, twists, turns, and then does it all again- backwards! This is Australia’s first G-force G-rated coaster that has space not just for kids, but the whole family. You can scream together.
• The Sledgehammer. The Luna Park website advises
  • Sydney harbour, sea, sky, and screams all mesh into one as you swing and spin at the same time. 360°!!! Once you’re locked and loaded, the hammer drops and whacks you with its full fury, back and forth, spinning round and round, delivering G-forces that you didn’t even know existed. This one packs a punch.
• The Big Dipper a rollercoaster with a top speed in excess of 70km/h. The Luna Park website advises:
  • The Big Dipper returns, but not as you know it. It’s bigger, dippier, faster, higher and 360° loopier. It’s the world’s first inline seating launch rollercoaster, and Australia’s tallest and fastest multi-launch coaster.

These 3 thrill rides will have significant socially unacceptable impact on some 10,000 residents around Lavender Bay and are certainly not low impact rides as advised by the Department of Planning and the Independent Planning Commission.

The benefits to Multiplex included

• Expansion of building envelopes
• Increase in the height limits from 10 metres to 40 metres
• Massive reduction of planning controls

Ms Felicity Wilson was perceived by some to have become an advocate for Multiplex –

• She was once employed by the Property Council of Australia where Multiplex is a Corporate Partner.
• Her pre-selection was supported by Ms Chris McDiven, former wife of Ross McDiven, CEO, Brookfield Multiplex Group.

Questions to the NSW Government (F Wilson and the Premier)

Question 1

Given the decisions Re Sydney Harbour Collieries 1895 and the Gloucester Resources v Minister for Planning 2019 that held:

 it was a governmental “duty” to take the “greatest care to protect” public interests. The Court held that the government should prevent exploitation of the public domain concluded that the natural beauty of the harbour exceeded “monetary value” the notion of the public trust doctrine and the importance of its operation

will the Government reconsider the SEPP with a view to having it withdrawn. If not, will you help me understand the basis upon which the Government concluded the duty was discharged?

Question 2

Will the Government make the future clear:

• by making public the post 2004 amendments to the lease of the Luna Park site (noting that the lease entered in 2004 is on the public record by reason of its registration) the future of the land (railway corridor between Waverton (Berrys Bay) and Lavender Bay);
• by agreeing that it be transferred to the care and control of North Sydney Council when not required for the operations of the railway; and
• by requiring the Plan of Management be adhered to?