A community action group has launched a legal challenge against the NSW independent Planning and Assessment Commission’s (PAC) approval of the Wilkinson Eyre-designed Crown casino tower in Barangaroo.
In a statement on 2 August, Crown Resorts announced it had been served with legal proceedings from a group calling themselves the Millers Point Fund Incorporated, which is challenging the validity of the decision made by the PAC. Crown Sydney Property has been named as a respondent along with developer Lend Lease, the NSW Minister for Planning, and government agencies the Barangaroo Delivery Authority and the Sydney Harbour Foreshore Authority.
The Millers Point Fund Incorporated is a volunteer-run organization made up of local residents who are concerned about the development of Barangaroo, particularly in relation to access to public land. Its main spokesperson is former City of Sydney chief planner and councillor John McInerney.
The casino tower was originally proposed to be located on a pier in the harbour. In 2013, the NSW parliament legislated that the tower be relocated onto land. Lend Lease and Crown then proposed to site the casino tower on a part of the foreshore previously slated for a public park.
In approving the tower proposal in June 2016, the PAC acknowledged the “serious concerns from the community, design professionals and local councils about the siting of the Crown Sydney [tower],” but conceded that “it had no power to direct relocation or to change the associated legislation and, therefore, accepted that the Crown Sydney Hotel Resort would remain in the location mapped.”
The solicitor representing Millers Point Fund Incorporated said the PAC’s decision is “an error of law and it’s very significant.”
“Had the PAC understood its legal powers properly or exercised its legal powers properly, then it would have understood that that legislation doesn’t constrain its powers to make a proper planning decision on the merit,” Sue Higginson, CEO and principal solicitor of Environmental Defenders Office NSW, told ArchitectureAU.
“The PAC has determined parliament made the decision about where the building should go, rather than the PAC having an open mind and making a planning decision on the merit,” Higginson continued.
“The legal term that’s used is the PAC has fettered its discretion and, in terms of traditional administrative law, that is a legal error.
“Our client is asking the court to determine whether in fact the PAC has made a legal error and if so, we say, the ramification of the error is that it’s an invalid decision and that the decision will have no effect.”
Environmental Defenders Office NSW also explained, “In its legal challenge, our client says 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 argue 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 1992.
“Our client says that the provisions of the Casino Control Act 1992 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 1992, our client says, the PAC breached the law by not properly exercising its planning law powers.”
Crown Resorts said it would vigorously defend the allegations.
The case is due to be heard in the Land and Environment Court of NSW on 26 August.