Port Macquarie: United Cinemas CEO flags court battle should $31M development be refused by
The owner of a proposed multi-million-dollar Port Macquarie cinema complex, which has been recommended for refusal by Port Macquarie-Hastings Council, will appeal the DA in the NSW Land and Environment Court if it doesn’t proceed.
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A $31 million development earmarked for a vacant block of land adjacent to Port Macquarie Kmart could end up in the Land and Environment Court if it fails to gain the approval of the NSW Northern Regional Planning Panel (NRPP) this week.
A two-year tug-of-war between the community, Port Macquarie-Hastings Council and United Cinemas Australia over the mixed-use development, which includes nine cinemas screens, indoor bowling facility and retail premises, will go before the panel this Thursday for consideration.
A report has been provided to the NRPP by Port Macquarie-Hastings Council recommending that the DA be refused, based on its inability to address off-street parking concerns and failure to provide adequate legal material by the adjoining landowner, Kmart, for consent to use their property for on-site parking.
However United Cinemas Australia CEO Sam Mustaca refutes the reasoning behind the Council’s recommendations for refusal, saying an in-principle agreement exists with Kmart and that a letter stating this was provided to the Council.
“We have put in a letter from the adjoining owner Kmart that we’re in full agreement for a reciprocal rights car park between the Kmart site and our site, so that the two sites will work as a joint development which was always envisaged by the council in the masterplan,” Mr Mustaca said.
“We’ve got agreements between ourselves in that nature, but council want us to put an easement in place on their [Kmart] land, and an easement in place on our land for these reciprocal rights.
“MPG, the owners of the Kmart site, are happy to do that, we’re happy to do that, but we’re not going to put an easement between each other unless I have an approval.
“We’ve asked council to give us consent condition that prior to occupation of our building an easement is formally put into place and details of what the mechanics of that easement are going to be.
“We’ve given that letter to Council, and they’re saying that that’s ambiguous or not good enough.
“Well, in a court of law, they will completely lose when a judge says and agrees that you can’t do a chicken before the egg. The chicken being the DA and the egg being the easement.
“You can’t have an easement for a DA that’s not approved. All that’s going to happen here is that we’re going to waste taxpayers money and we’re going to end up in court over it.”
There are three formal reasons for refusal outlined by council in the report to the NRPP.
The report states that the “the objectives of Port Macquarie-Hastings Development Control Plan 2013 are not satisfied,” and that “inadequate provision has been made for off-street parking commensurate with volume and turnover of traffic likely to be generated by the development.”
It also states that there are inadequate legal arrangements or certainty for the provision of off-street car parking to meet the demands of the development including the use of the adjoining site – lot 21, 19 Warlters Street, Port Macquarie [Kmart].
“The variations proposed to the provisions of the Development Control Plans (DCP) in regards to recommended vehicle access points from Warlters Street are not considered acceptable, and the relevant objectives are unable to be satisfied.
“The variation does amount to an adverse impact and significance to justify refusal of the application.”
About 291 submissions were received during three exhibition phases that the Port Macquarie-Hastings Council put on for community input.
It led to a number of amendments over the two year period, which commenced when the DA was initially lodged in December.
These included a reduction in building heights and gross floor area, revised signage, changes to architectural treatment and basement car parking layout, and improved pedestrian access.
While the report acknowledged that many of these amendments satisfied the Council’s DCP, it was not enough to justify a recommendation for approval.
A council spokesman said the recommendation in the report and reasons behind these are the council’s position, and that they would await the outcome of the NRPP on Thursday.
Mr Mustaca said should that outcome not go his way, he’ll appeal the matter to the Land and Environment Court.
“These guys are about to waste $150-$200,000 in taxpayers money,” he said.
The Northern Regional Planning Panel will discuss the DA on Thursday.
The meeting will be held via a teleconference and the public are able to register to listen.