May 12 - 18, 2024: Issue 625


Is Excising Public Land for Private profit now ok?: The Joey + Whale Beach restaurant Case coupled with spread of misinformation met with community resistance - minns government move to override  whole NSW community prompts 'something smells off' response 

Palm Beach has been headline news lately as a result of the application to change the hours of operation of the newly opened restaurant ‘The Joey’ (formerly The Boathouse) with even Premier Minns and two of his Ministers getting involved in the fracas and making statements which would be interpreted by most as siding with the proprietors.

However, there has been a considerable amount of misinformation and the situation is more complicated than the campaign being run by some 'news' outlets. The area on which The Joey is built is not part of Governor Phillip Park as it sits on the edge of Station Beach and protrudes into the waterways. It operates under a lease managed on behalf of the community by the Minister for Lands and Property. The adjacent land, which includes the landscaped area and carpark, is part of Governor Phillip Park and is Crown Land which Council manages under the required Plan of Management that applies to all Crown Land in New South Wales.

The Mean High Water Marks on the Ocean Beach and the Pittwater/Station Beach shoreline define the eastern and western boundaries of the park respectively. The southern park boundary is the northern public road reserve boundary of Beach Road. The northern park boundary is the southern boundary of Barrenjoey Headland, which is managed by the National Parks and Wildlife Service as part of Ku-ring-gai Chase National Park. 

Within its 25 hectare area, Governor Phillip Park includes the Palm Beach Golf Course, North Palm Beach Surf Life Saving Club, the premises in which The Dunes restaurant is sited, car parking areas, sand dunes, picnic and barbecue areas, and a children's playground.

In a NSW Government Media Release of Tuesday May 7 2024 ' Striking a better balance on later trading applications' it is stated:

'Under the proposed Environmental Planning and Assessment Amendment (Vibrancy Reforms) Bill 2024, approved by Cabinet on Monday April 6 2024, councils and consent authorities will have to consider a set of ‘Vibrancy Guidelines’ when assessing certain applications to extend operating hours. This change would apply to food and drink premises situated on land which is 500m or more away from a residential property.'

Minister for Music and the Night-time Economy The Hon. John Graham said, as part of this release:

"The recent example of Northern Beaches Council turning down The Joey at Palm Beach from extending its hours based on concerns from residents over 500m away – and separated by a 9-hole golf course – brought this issue into sharp focus.

“We have listened to the community as a whole and this proposed reform should send a clear signal to local authorities that they need to strike the right balance between legitimate concerns over local amenity and the imperative to encourage businesses to trade and communities everywhere in NSW to have more options after dark.''

For that same date, in the Land and Environment Court Lists available on Friday May 3rd:

Barrenjoey Boatshed Pty Ltd v NORTHERN BEACHES COUNCIL
Date: 07 May
Time: 9:00 am 

Case number: 2024/00116996
Listing type: Registrar Directions Hearing

The Hon. Paul Scully, the NSW Minister for Minister for Planning and Public Spaces, repeated the exact same statement on May 7 2024 at 6:08pm during his Second Reading Speech for the 'Environmental Planning and Assessment Amendment (Vibrancy Reforms) Bill 2024', which had been introduced minutes before into the NSW Parliament.

Then Law Council of Australia President, Fiona McLeod SC, stated in 2017:

"Australian politicians have traditionally, and quite correctly, been very careful to avoid any perception of attempting to influence the courts. This is a standard that should be upheld by every Member of Parliament," 

“Commenting on a matter that is currently before the courts could be perceived by members of the public as an attempt to influence the outcome and interfere with the court process.” 

No mention of the case, Listed in the Court, was made in the May 7 media release or during the NSW Parliament Second Reading Speech given by The Hon. Paul Scully - however, Pittwater Online contacted Minister Grahams' office on Tuesday May 8 to ascertain whether the Minister was aware the venue, which seeks to operate 7am to 11pm 7 days a week, is sited in a Crown Land Reserve set aside for the public's use, and whether it is appropriate for an incumbent Minister to speak about a matter listed in NSW courts.

No response had been received as this Issue goes to press, Sunday May 12, 2024.

The second query could well be ignored as although on Friday May 4, 2024 and Saturday May 4 the matter was listed, (Case number: 2024/00116996, Barrenjoey Boatshed Pty Ltd v NORTHERN BEACHES COUNCIL) it has now disappeared completely from the NSW Court and Tribunal Lists.

Although the NSW Ministerial Code of Conduct asserts in its preamble and first paragraph NSW government ministers are required to “pursue and be seen to pursue the best interests of the people” of this state to “the exclusion of any other interest”, Barrenjoey Boatshed Pty Ltd v NORTHERN BEACHES COUNCIL must have been withdrawn on Monday May 6 - for some reason - leaving the Ministers free to cite The Joey at Palm Beach as their 'example' for introducing an amendment in the May 7 announcement.   

The Environmental Planning and Assessment Amendment (Vibrancy Reforms) Bill 2024 is 'An Act to amend the Environmental Planning and Assessment Act 1979 to provide for the issuing of vibrancy guidelines, and the making of decisions about extended hours of operation for particular food and drink premises consistent with the guidelines.

The Amendment in the First Print reads:

Schedule 1[2] inserts proposed Schedule 8, Part 3. The proposed part provides that the Secretary of the Department of Planning and Environment (the Planning Secretary) may, after consultation with the 24-Hour Economy Commissioner under the 24-Hour Economy Commissioner Act 2023, issue guidelines (vibrancy guidelines). The vibrancy guidelines may provide for matters to be considered in determining extended hours of operation applications to enable venues to operate in a way that achieves their full social, business and cultural potential as part of the night-time economy. An extended hours of operation application includes—

(a) a development application that includes a proposal for extended hours of operation, and

(b) an application to modify a development consent to allow extended hours of operation.

The vibrancy guidelines must be considered by a consent authority in determining an extended hours of operation application.

Schedule 1[1] inserts a transitional provision that provides that proposed Schedule 8, Part 3 only applies to an extended hours of operation application made after the commencement of the proposed part. 

Under the Environmental Planning and Assessment Act 1979 'Crown Land' appears under the Definitions listed and in:

9.35   Relevant enforcement authorities who may give orders(cf previous ss 121B, 121C)

(3)  A development control order cannot be given in respect of the following land unless the written consent of the Minister has first been obtained—

(a)  vacant Crown land within the meaning of the Crown Lands Act 1989,

(b)  Crown managed land within the meaning of the Crown Land Management Act 2016,

(c)  a common within the meaning of the Commons Management Act 1989.

The Minister must not give consent in respect of vacant Crown land or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.

So, although Governor Phillip Park, has been set aside as a Crown Land reserve for Public Recreation, and for the public, a stroke of the pen from the Minister may change that, but that Act would still need to be referred to.

Under the Crown Land Management Act 2016 No 58 Current version for 23 February 2024 - 

Division 2.4 Use of dedicated or reserved Crown land

2.14 Additional purposes for dedicated or reserved Crown land

(1) The Minister may, by notice published in the Gazette, authorise dedicated or reserved Crown land to be used for one or more additional purposes.

(2) Before doing so, the Minister must be satisfied that the use of the dedicated or reserved Crown land for each additional purpose—

(a) would be in the public interest, and

(b) would not be likely to materially harm the use of the land for any of the purposes (an existing purpose) for which it is dedicated or reserved.

(3) Without limitation, the following considerations are relevant to the question of whether the use of dedicated or reserved Crown land for an additional purpose would not be likely to materially harm its use for an existing purpose—

(a) the proportion of the area of the land that may be affected by the additional purpose,

(b) if the activities to be conducted for the additional purpose will be intermittent, the frequency and duration of the impacts of those activities,

(c) the degree of permanence of likely harm and in particular whether that harm is irreversible,

(d) the current condition of the land,

(e) the geographical, environmental and social context of the land,

(f) any other considerations that may be prescribed by the regulations.

(4) An additional purpose does not limit any existing purpose.

2.15 Alteration of purpose for dedicated or reserved Crown land

(1) The Minister may, by notice published in the Gazette, alter one or more purposes for which Crown land is dedicated or reserved under this Part.

(2) Before doing so, the Minister must be satisfied that the use of the land for each altered purpose is—

(a) consistent with the objects of this Act, and

(b) in the public interest.

(3) To avoid doubt, a purpose replaced by an altered purpose ceases to have effect when the notice takes effect.

There was a recent L&E decision which allows another as yet to be built venue at Whale Beach to make use of the public car park that gives access to that beach for all, and was set aside for that purpose - as a public reserve for public recreation. The Decision imposed restricted hours/numbers during Summer – however, this private venture has been granted permission to excise public land for private profit in the view of residents - a permission which will ultimately exclude the public and change the nature of that public reserve area.

A similar view is held for the matter now being cited as an example - 'The Joey at Palm Beach'. This would change the very nature of this public recreation reserve and its use.

Furthermore, if the hours can be changed from just after dawn until late each night for 'The Joey' - would two other venues sited in the Crown Land also be entitled to the same extension of use?

Currently, although erroneously referred to in other 'news' reports and submissions to Council in support of the change as being allowed what 'The Joey' has been denied, the Dunes in the former Rangers Cottage, constructed and used during the camping era, has its hours limited to: 

Dining Room. Open 7 Days for Lunch from 1130am. Lunch | 12pm – 4pm
Sunday | Breakfast (9am – 10:30am). 
Sunday Evening 4pm-7pm for a $45 Seafood Paella Live Music. 

The Kiosk next door, and part of the same venue, is open 7 days a week from 9am to 4pm – however, the kitchen closes at 3pm to meet that closure time and the clearing out of patrons that can extend beyond that limit should they serve food until 4pm.

Residents opposed to 'The Joey' trading from dawn until the middle of the night all day every day state their main objections are Alienation of public land, Noise and unruly behaviour and that the Public support for this extension of hours is questionable.

Since 'The Joey' recently reopened those in the vicinity state they have witnessed several wedding receptions taking place. Residents state it is evident that those who operate “the Joey” intend to make it a venue for weddings and other functions, which extending the closing time until 11pm would support.

The proprietors of “The Joey” are heavily promoting on their website and elsewhere their capacity to accommodate, for 'exclusive use' 250 standing guests for cocktail parties - a document since modified as this exceeds the number of patrons allowed at the venue. That document still lists a 'minimum spend of $22,000.00' for Friday and Saturday events and wedding receptions and a 'minimum spend of $18,000.00' for Sunday to Thursday wedding receptions, and exclusive use of the venue from 5 until 10pm. 

Although 101 maths quickly adds up the potential millions to be made annually, the venue would effectively have been changed into a Function centre.

Further, the landscaped area outside “The Joey” is clearly marked as being for public use, which would be unsupportable while a wedding reception is in full swing.

Although 'The Joey' leases this land - due to the previous proprietors 'developing it by stealth' and installing tables, chairs, a coffee bar, and gardens that hedged off the area with greenery and stone berms, and then sought to formalise that excising of public land in 2017 through applying to increase the patron numbers to those now being hosted -  this is still Crown Land, public land for public recreation.

Council's 2017 report stated;

'These changes to the premises, to which there are no records of approval, authorisation or owners consent, are reflected in the plans provided to support the application as the “existing” situation, which demonstrate that the premises currently provide seating for approximately 213 people...'

The report found that;

 'with respect to capacity, the applicant has provided an amended statement to confirm that the application does not seek consent for the use of the front Licenced Area for seating associated with the café. However, the application seeks to endorse architectural drawings which demonstrate an existing seating area, with fixed seating for approximately 54 people. When visiting the site, the “existing” area is furnished in the same furniture as the remainder of the café, with the same lighting and decorations, and is located behind “The Boathouse” signage. The area is divided from the park by dense landscaping that is once again notably different from the character of the rest of the park, and despite written assurances from the applicant that the area is a public area that can be used by anyone visiting the park; the area obviously serves as a dedicated extension of the café use.'

coffee machine service counter installed on public land - photos taken March 10, 2011 - 'Carmels by the Sea' was sold in 2009

no parking left up the hill on the ocean side - same date

the front area prior to the lease being exchanged

The Conclusion stated; 

'...the application is ill-founded in that it is reliant upon development creep that has occurred since 2009, which lacks any formal authorisation or development consent and is in breach of the licence arrangement issued for the site'.

This was resolved when the land that had been excised was: 

As recommended by DLWC (Department of Land and Water Conservation)a commercial lease is to be developed between the lessee of Barrenjoey Boathouse and Council for an initial five year period for the area of land to the frontage of the building canopy. Any lease entered into should include: 

- Specific on-site parking for 12 vehicles related to businesses within the Barrenjoey premises. - Location of areas related to storage of equipment or services related to the operation and maintenance of the building to be specified by the lessee. 

- Maintenance of picnic tables, fencing, turfing and the like used specifically by the patrons of the businesses within the boathouse to be undertaken by the lessee. 

- The current lessees of the building have submitted a landscape plan for the area which council has adopted in this plan. And costs associated with the construction of works should be credited against the agreed lease fee. - Scale of the proposed operation.

- Area that the operation will occupy. 

- Area must be accessible to the general public at all times. 

- 15 % of the rental is to be allocated to the Public Reserve Management Fund State Government Fund to assist other reserve trust throughout the state. 

Whilst no parking for patrons of businesses within the boathouse is allocated within the park, Council has agreed to some temporary overflow parking during peak summer periods. This use will be monitored by Council in relation to its impact on the recreational use of the area.

Those who frequented the eatery during these years would also have seen a 'Public Access' sign had been installed after this 2017 shortly after these processes were taken. 

More recently, and just prior to Council refusing the extension of trading hours, the bulk of residents who live within proximity of 'The Joey' submitted objections due to the noise and effect on pubic space of a wedding reception hosted by the venue on Saturday March 9 2024, which had been preceded by a wedding reception held on Friday March 8 2024.

Prior to the 5pm start residents saw people on Station Beach south waiting for it to open drinking alcohol and using the golf course as a toilet. Once the reception commenced the volume of noise, including a loud bass, persisted until 10pm, despite a resident contacting the venue with a request for something without that 'doof doof', the thumping echo ricocheting around the hills and across the water, and into childrens' bedrooms at the south and east side of the homes further down the park where the golf greens end, continued. 

The patrons, which exceeded the amount permissible under the conditions of consent according to witnesses, were still inside the venue until 10:45/11pm, and after 5 solid hours and more of drinking, that commenced on Station beach prior to food being made available, arguments and, according to one witness, fights then broke out.

Residents have forwarded an invitation sent out for a 'The Joey' pre-opening celebration - pointing out this also breached the conditions of consent and, stating this set the tone for what could be expected past that point. It was also stated one of the new proprietors was working for the previous cohort when the public land was being set out for the benefit of The Boathouse - although they backed away from stating that gentleman was responsible for the 'modifications' the 2017 DA, under new owners, sought to formalise.

The invitation to the celebration shows this was held outside the trading hours under the conditions of consent:

The hours of operation outside of daylight saving for the venue are restricted to:

  • Monday to Saturday – 7.00am to 4.00pm
  • Sunday and Public Holidays – 7.00am to 4.00pm

The hours of operation during daylight saving are to be restricted to:

  • Monday to Thursday – 7.00am to 4.00pm
  • Friday and Saturday – 7.00am to 10.00pm
  • Sunday – 7.00am to 4.00pm

The impact on those directly impacted, who live on Barrenjoey and Waratah roads, prompted 26 objections to the application to extend the hours to be lodged with Council from March 10 to 13 on.

The acoustics of “The Joey”, due to its backing onto a golf course and being sited on the water, not only amplify music, it allows sound to travel a long distance, something that doesn't appear to be the case for the “Dunes” in Governor Phillip Park. 

If the evening use was confined to dining rather than holding private functions, this problem would be overcome. However, one patron who visited the venue with a group soon after it opened stated to Pittwater Online the music outside in the garden area was so loud they could not talk to each other - and this was daylight. A request to turn it down a little so they could hear each other was refused then too.

They won't be back.

Regarding how much public support is genuine, while 132 people provided one-liner support for the extended hours, analysis of those responses indicates either a connection with the proprietors or a naïve belief that the extended hours will benefit diners, rather than the venue becoming a function centre that can generate millions. 

Further, a substantial amount of those who indicated support for the proposal are from outside the area with addresses that include Avalon Beach, Clareville, Mona Vale, Bilgola Plateau, Scotland Island, Double Bay, Mosman, Cammeray, Earlwood, Rangeville and Boorowa. The impacts won't affect them - they don't live there.

Despite an independent planners recommendation that the changes be approved, a meeting was held on site with representatives of the various parties and objectors directly impacted and following that the Council’s Development Determination Panel (DDP) refused the application.

The Decision, which has to refer to that articulated in the Crown Land Management Act, also shed light on another aspect of the application made as the venue was getting ready to open - how quiet it is when you conduct an acoustic test, in part, during a Covid lockdown.

Reasons for Refusal were stated as:

1. Pursuant to Section 4.55(1A) of the Environmental Planning and Assessment Act 1979, the proposed development is not of minimal environmental impact.

Particulars: The increase in operating hours and the inevitable increase in functions, noise, traffic and other amenity issues resulting from these extended hours does not meet the requirement to be of minimal environmental impact.

2. Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the proposed development is not in the public interest.

Particulars: The proposed increase in operating hours is likely to result in unreasonable amenity impacts to nearby residential properties.

3. Pursuant to Section 4.15(1)(a)(iv) of the Environmental Planning and Assessment Act 1979, the proposed development has not provided sufficient information.

Particulars: No acoustic testing has been undertaken during functions since the recent re-opening of the venue. The testing in the Acoustic report submitted with the application occurred, in part, during Covid lockdowns.

Perhaps the recordings made by those directly impacted, over 500 metres away, on Saturday March 9, could be submitted by the proponents - those readings, made post-opening, could help.

However, with the now incumbent government introducing an amendment, and stating 'The recent example of Northern Beaches Council turning down The Joey at Palm Beach from extending its hours based on concerns from residents over 500m away...' not only dismisses what has occurred to those directly impacted, as these are not 'concerns' - these are what has been experienced - this could also exclude the many thousands of others of New South Wales people and overseas visitors who visit Governor Phillip Park enjoying what they came there for - peace, quietness, access to open space that is public land for public recreation, and being able to do so safely should post-event 'debates and fisticuffs' spread beyond the excised land and beach.

Is that 'in the public interest' or will a change benefit just a few? Those who objected suggested the author of the report which counted the one-liners and recommended approval contact them to ascertain if they would also support the venue being a function centre in the proposed extended hours and being unavailable for the community due to functions.

That query prompts others.

Moving a park into a 24 hour economy, so far from Sydney's CBD, could change the nature of this Crown Land reserve itself; will residents, the broader community and visitors be happy with that?

The use of Governor Phillip Park has changed over the decades since it was dedicated to the public for public use. It has hosted a camping area in the past - which accommodated hundreds of campers but excluded thousands of others from the broader community simply by allowing those permanent campsites - but could  be brought back again now when so many are already homeless and struggling to pay rising rents - that's how it helped 'the public interest' in the past.

Check any beach or dune along the peninsula - someone is shivering/living there.

The Crown Land Reserve hosts a market on the 4th Sunday of every month, is home to wildlife that live, breed and feed, some nocturnally, and the setoff point for events such as The Long Bloody Walk and other charitable fundraisers. Is now a great time to bring back Sandcastles on the Beach? - have 5000 people sitting in their cars on the one road in and one road out, waiting to find a spot for their vehicle.

And who should foot the costs for the changes this would require to the Governor Phillip Park Plan of Management - ratepayers? or should Council grab the opportunity it is currently using to facilitate dogs offleash throughout the park, but ostensibly on the beach, to add in the three venues being allowed to operate 16 to 17/7? 

Should wildlife that live in, breed in and feed nocturnally in this park be taken into consideration - an extension of trading hours will impact around half that night time feeding permanently - does a PoM need to include those species frequently photographed here or simply move straight to 'translocating them'?

Fortunately the incumbent government is moving speedily to dispel all these quandaries and introduce a slice of New York into a Crown Land garden alongside a National Park as, ''The Joey at Palm Beach' has presented an 'example of Northern Beaches Council turning down' something because it is 'not in the public interest', via the Crown Land Management Act 2016 No 58.

Residents state that something smells very off here. 

''Something reeks of something unpleasant - as though something has died.''

But with so many previous examples of governments at state and federal level introducing Bills and Amendments that have met policy changes or facilitated the continuance of our and our environments' demise, and the opposite on rare occasions, one final query remains - who will be first to make an extended hours of operation application after the commencement of the proposed part?

Palm Beach 1946. From NSW Government Printer series: Pittwater, courtesy NSW State Records and Archives. Item: FL3733992