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Taken for a ride? Development consent troubles for Luna Park

A recent decision of the Land and Environment Court has prevented the operators of the Luna Park amusement park from installing a new ride. Luna Park Sydney Pty Ltd (“Luna Park”) had their application for a construction certificate for a new “Flying Carousel” or “Swing Ride” knocked back by the certifier as the works “cannot be demonstrated as not inconsistent with the development consents as it was unclear whether the development consents authorise the installation of new rides”. Luna Park’s attempt to overturn this decision in Court failed, with Luna Park stating that this decision may jeopardise the ongoing operation of the park.

The case before the Land and Environmental Court was a Class 4 judicial review, as there is no right of a merit appeal regarding a decision made by a certifying authority. Luna Park submitted that the certifier made an error in law in saying that the construction of this new ride was not inconsistent with an existing development consent granted in 2003, the application of which stated “New open rides and amusements may also be provided within the Ride and Amusement Zone from time to time. This will allow flexibility in the location of rides and the ongoing evolution of Luna Park.”

The Minister for Planning, arguing against overturning the certifier’s position, stated that a Consent that approved the use of new rides did not provide approval for any new development works that would be required to construct those new rides. It was noted that an approval that allowed the use of new rides but did not allow the construction of new rides would appear to have no purpose. Molesworth J in his decision noted that one such purpose was to provide a guarantee that proposed land uses were accepted prior to moving to “the more expensive stages of preparing detailed design for development”.

The result of this decision is that Luna Park will be required to make a new development application where it wishes to perform works in order to replace, remove or relocate rides. Luna Park has a well-documented history of objections from neighbours living in the expensive Milsons Point suburb who are expected to prove an obstacle during the public consultation required in any new development application. The authority deciding the application will be required to consider all public objections made regarding a development application, although strong public objection will not necessarily prevent approval.

A likely result is that thrill-seekers will have to wait a while yet before any new amusements are built at Luna Park.

Alex Collie, Lawyer
Matthew Rafferty, Partner

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