Reported Decision : 223 FLR 125 New South Wales Supreme Court CITATION : Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2009] NSWSC 1 HEARING DATE(S) : 4, 5, 7, 8, 12, 13, 14, 15, 25, 26, 27, 29 June, 15, 16, 17, 23, 24, 25, 26, 29, 30, 31 October, 1, 2 November, 3, 4, 5, 7, 13 December 2007 JUDGMENT DATE : 6 February 2009 JURISDICTION : Equity Division JUDGMENT OF : Brereton J As to the Crown Lands claim: Crown Lands Act, s 114(2), is directed to the relevant Reserve Trust and not an operator or occupier. The Plan of Management does not exclude the operation of adult thrill rides in the Northern Extension. As to the misrepresentation claims: the 2001 DA and the 2002 DA were not misleading or deceptive. Metro Edgley's silence as to its intention to locate adult thrill rides in the Northern Extension became misleading on 13 May 2002. Metro Edgley's relevant conduct was not "in trade and commerce", and Metro Edgley owed the plaintiffs no relevant duty of care. Rejection of the Trade Practices claim against Metro Edgley is dispositive of the accessorial liability claims against Mr Hearne and Mr Doughty. In any event, injunctive relief would be refused on discretionary grounds. DECISION : In the case of Mr Billington and Ms Mather, the impugned conduct was not a causative factor in their decision to purchase their property, but even if it was they have not proved that they paid more than true market value so as to suffer damage. In the case of Glen Eight, even if the impugned conduct was a causative factor in the decision to proceed with a residential conversion, disclosure on or after 13 May 2002 of an intention to locate adult thrill rides in the Northern Extension would not have deterred Glen Eight from proceeding with the conversion, and in any event damage has not been established, as it has not been proved that a commercial refurbishment would have been more beneficial than the residential conversion. Order that the proceedings be dismissed. CATCHWORDS : CROWN LANDS – Crown Reserves - whether Plan of Management binds only Reserve Trust or also binds occupiers – construction of Luna Park Plan of Management – standing of adjacent occupiers to claim injunction to enforce Plan of Management – discretionary considerations - TRADE PRACTICES – whether conduct was misleading and deceptive – whether conduct was "in trade and commerce" – whether conduct was causative factor in the relevant decision of the plaintiffs – whether injunctive relief should be refused on discretionary grounds – damages - NEGLIGENT MISREPRESENTATION – economic loss- whether developer owes purchasers or developers of adjoining land duty of care to avoid economic loss occasioned by inaccurate statements in development applications – whether breach of any such duty – whether any misrepresentation had causative effect on a relevant decision by a plaintiff – causation (CTH) Trade Practices Act 1974, ss 52, 80, 82, 87 (NSW) Crown Lands Act 1989, Part 5, ss 92, 114 (NSW) Environmental Planning & Assessment Act 1979, ss 28, 76, 79, 80 LEGISLATION CITED : (NSW) Luna Park Site Act 1990 (NSW) Luna Park Site Amendment (Noise Control) Act 2005 (NSW) Luna Park Site Amendment Act 1997 North Sydney Local Environment Plan 2001, cl 42 CATEGORY : Principal judgment Australian Competition & Consumer Commission (ACCC) v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Barnes v Hay (1988) 12 NSWLR 337 Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Boyce v Paddington Borough Council [1903] 1 Ch 109 Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Henville v Walker (2001) 206 CLR 459 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017, 51,317 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 CASES CITED : Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054 Lam v Ausintel Investments Aust Pty Ltd (1989) 97 FLR 458; (1990) 12 ATPR 40-990 Lismore City Council v Stewart (1989) 18 NSWLR 718 Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 Plimer v Roberts (1997) 80 FCR 303 San Sebastian Properties Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340 Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995) Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 594 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 696 Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422 Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) PARTIES : Robert Simkin (sixth plaintiff) Glen Frederick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant) FILE NUMBER(S) : SC 2267/05 Mr T Alexis SC w Ms P M Sibtain (plaintiffs) COUNSEL : Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants) Wise Legal (plaintiffs) SOLICITORS : Clayton Utz (first & second defendants) Esplins (third & fourth defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Friday 6 February, 2009 2267/05 Joan Paula Street & ors v Luna Park Sydney Pty Limited & ors JUDGMENT 1.0 INTRODUCTION 1 HIS HONOUR: Since 1935, the clown face of Luna Park has been a feature of Milsons Point on the northern shores of Sydney Harbour. An amusement park has operated there ever since, albeit with some interruptions in the last 30 years. The park closed following the notorious ghost train fire in 1979. It reopened in 1981, to close again in 1988. Following its vesting in the Crown in 1990, it opened again as an amusement park in January 1995, when its attractions included a roller-coaster known as the "Big Dipper", the noise generated by which so annoyed residents in the surrounding area that they brought proceedings to restrain it as a nuisance, which concluded with a judgment that restricted the operating times of the Big Dipper, with the consequence that the amusement park became commercially unviable, and operations ceased once again in February 1996. 2 On 12 March 1998, pursuant to (NSW) Crown Lands Act 1989, s 114, the Minister for Land & Water Conservation adopted a new plan of management in respect of the site. On 4 July 1999, following a competitive process, the second defendant Metro Edgley Pty Limited ("Metro Edgley") was selected to redevelop Luna Park, and it then embarked on the process of obtaining Development Approval through a staged Development Application ("DA") process, involving a Masterplan (Stage 1) DA lodged on 22 June 2001 and approved on 31 January 2002 ("the 2001 DA"), and subsequent Stage 2 DAs for the detail of various aspects (phases) of the development, including for Phase E (Stage 2 Detailed Design of the Luna Park Entertainment Complex)) lodged on 21 June 2002, to which the Minister gave consent on 21 January 2003 ("the 2002 DA"). 3 After the redevelopment, Luna Park reopened for trading on 4 April 2004. From 2 August 2004, the first defendant Luna Park Sydney Pty Limited ("LPS") – in which Metro Edgley holds 50% of the shares – has occupied the Luna Park site and operated the amusement park and the rides and amusements, pursuant to arrangements between it and Metro Edgley. The third defendant Mr Peter Hearne and the fourth defendant Mr Warwick Doughty are currently directors of LPS, and were until 21 November 2002 directors of Metro Edgley. 4 The plaintiffs are owners and/or occupiers of properties in the vicinity of Luna Park (save that Mr and Mrs Hesse, who formerly owned and occupied such a property, have since sold and moved). Originally, on 5 April 2005, Ms Street, Ms Dwyer, Mr Hesse and Glen Eight Pty Ltd, instituted these proceedings against LPS, the operator of Luna Park, claiming injunctive relief and damages for nuisance, in respect of the emission of noise from certain thrill rides at Luna Park – both mechanical noise emanating from the machinery, and screaming from the patrons. Mrs Hesse, Mr Simkin, Mr Billington and Ms Mather were subsequently added as plaintiffs. The proceedings were set down for hearing to commence on 31 October 2005. However, on 19 October 2005, the (NSW) Luna Park Site Amendment (Noise Control) Act 2005 ("the Noise Amendment Act") commenced, inserting in the (NSW) Luna Park Site Act 1990 provisions to the effect that the emission of noise from the Luna Park site did not and does not constitute a public or private nuisance. The hearing was thereupon vacated, and the plaintiffs reformulated their claim to join Metro Edgley, and to allege, in respect of the location and operation of thrill rides – in particular, but not only, one called "the Ranger" – in an area north of Coney Island, which had been added to the park site in December 1994 ("the Northern Extension"): (1) contravention by LPS of Crown Lands Act , s 114 (which requires that land to which it applies be used only in accordance with a plan of management under that section) ("the Crown Lands claim"); (2) misleading and deceptive conduct in contravention of (CTH) Trade Practices Act 1974, s 52, and negligent misrepresentation, by Metro Edgley, in connection with the 2001 DA and 2002 DA ("the Misrepresentation claims"); and (3) negligent infliction of economic loss by both LPS and Metro Edgley on the owners of adjacent properties ("the Negligence claim"). 5 In interlocutory proceedings [Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230], it was held that although the Crown Lands claim was not barred by s 19A(1) of the Noise Amendment Act, the Negligence claim was not maintainable by reason of that section, and it was struck out. The plaintiffs were also permitted to join as additional defendants Mr Hearne and Mr Doughty, alleging that they were "persons involved" in the misleading and deceptive conduct of Metro Edgley, and claiming against them injunctive relief to require them to exercise their powers as directors of LPS so as to prevent operation of the relevant thrill rides. 6 The preparation for trial of the reformulated case, which included various interlocutory disputes about discovery and security for costs, occupied the parties for eighteen months, until the final hearing commenced on 4 June 2007. The trial itself occupied a total of 27 hearing days over a period of six months – twelve during June 2007, and another eleven (in two separate tranches) in October/November, concluding with a further four days in December 2007. In the subsequent preparation of this judgment, the comprehensive written and oral submissions of Mr Alexis SC and Ms Sibtain for the plaintiffs, Mr T G R Parker SC and Mr Potts for Metro Edgley and LPS, and Mr J R Clarke for Mr Hearne and Mr Doughty, have all been of great assistance. 7 The plaintiffs contend: · That by locating and operating "adult thrill rides" in the Northern Extension, LPS is acting contrary to the 1998 Plan of Management and thereby contravening Crown Lands Act , s 114(2) ("the Crown Lands Act claim"). On this basis, all plaintiffs (other than Mr and Mrs Hesse, who no longer reside near Luna Park) seek a permanent injunction restraining LPS from operating thrill rides in the Northern Extension; and · That in lodging the 2001 DA and the 2002 DA, and by otherwise remaining silent as to any intention to locate and operate thrill rides in the Northern Extension: (1) Metro Edgley in trade or commerce engaged in misleading and deceptive conduct in contravention of Trade Practices Act , which was relied upon by the second to eighth plaintiffs who thereby suffered damage, and that Mr Hearne and Mr Doughty aided, abetted, counselled or procured or were knowingly concerned in that conduct ("the Trade Practices claim"); and (2) alternatively, Metro Edgley made negligent misrepresentations which were relied upon by the second to eighth plaintiffs, who thereby suffered damage ("the Negligent Misrepresentation claim"). Mr and Mrs Hesse, Ms Dwyer and Mr Simkin, and Mr Billington and Ms Mather claim that they proceeded to purchase their properties in reliance on a misapprehension, said to have been created by the impugned conduct, that only children's rides would be located in the Northern Extension, and paid more than the properties were worth if affected by a proposal to operate adult thrill rides in the Northern Extension; and Glen Eight claims that it proceeded to convert its property to a residential apartment block when, had it known of any proposal to operate adult thrill rides in the Northern Extension, it would instead have retained it for commercial uses following a refurbishment and that the result would, in the events that have happened, been more beneficial. On these bases, the plaintiffs other than Ms Street seek injunctive relief under Trade Practices Act , s 80, restraining LPS (as Metro Edgley's alleged agent) from operating, and the other defendants from causing or permitting to be operated, thrill rides in the Northern Extension, and, alternatively, damages under Trade Practices Act , s 82 or s 87(2)(d). 8 Broadly, the defendants contend: · That the Crown Lands Act claim should fail: first , because the operation of rides in the Northern Extension is not a contravention by LPS of s 114(2); secondly , because the plaintiffs have no standing to claim this relief; and thirdly , because injunctive relief should be declined on discretionary grounds; · That the Trade Practices claim should fail: first , because the relevant conduct was not misleading and deceptive; secondly, because the relevant conduct was not "in trade and commerce"; thirdly , because the relevant conduct was not a causative factor in the relevant decision of the plaintiffs (to purchase their properties or, in the case of Glen Eight, to proceed with a residential conversion); fourthly , because injunctive relief should be refused on discretionary grounds; and fifthly, because no damage was occasioned; and additionally that Mr Hearne and Mr Doughty were not knowingly concerned in the impugned conduct; · That the Negligent Misrepresentation claim should fail: first, because Metro Edgley owed the plaintiffs no duty of care; secondly , because there was no breach of any such duty; thirdly , because any misrepresentation had no causative effect on a relevant decision by a plaintiff; fourthly , because injunctive relief is not available for negligent misrepresentation, and fifthly , because no damage was occasioned. 9 For the reasons that follow, I conclude: · The Crown Lands Act claim fails, because the operation of rides in the Northern Extension is not a contravention by LPS of s 114(2), the section being directed to the relevant Reserve Trust and not an operator or occupier such as LPS, and the Plan in any event not excluding the operation of adult thrill rides in the Northern Extension. · The Misrepresentation claims fail: the 2001 DA and the 2002 DA were not misleading or deceptive, although Metro Edgley's silence as to its intention to locate adult thrill rides in the Northern Extension became misleading on 13 May 2002; additionally, as to the Trade Practices claim, the relevant conduct was not "in trade and commerce", and as to the Negligent Misrepresentation claim, Metro Edgley owed the plaintiffs no relevant duty of care. · Rejection of the Trade Practices claim against Metro Edgley is dispositive of the accessorial liability claims against Mr Hearne and Mr Doughty. · In any event, injunctive relief should be refused in respect of the misrepresentation claims on discretionary grounds. · In the case of Mr Billington and Ms Mather, the impugned conduct was not a causative factor in their decision to purchase their property, but even if it was they have not proved that they paid more than true market value so as to suffer damage. · In the case of Glen Eight, even if the impugned conduct was a causative factor in the decision to proceed with a residential conversion, disclosure on or after 13 May 2002 of an intention to locate adult thrill rides in the Northern Extension would not have deterred Glen Eight from proceeding with the conversion, and in any event damage has not been established, as it has not been proved that a commercial refurbishment would have been more beneficial than the residential conversion. 10 This judgment is arranged as follows: Section Paras 1.0 INTRODUCTION 1 – 10 2.0 BACKGROUND 2.1 Luna Park Site History 11 – 14 2.2 The Plan of Management 15 2.3 The selection process 16 – 20 2.4 The detailed proposal 21 – 35 2.5 Ms Street 36 2.6 Glen Eight 37 – 48 2.7 The 2001 DA 49 – 51 2.8 Mr and Mrs Hesse 52 – 53 2.9 Mr Simkin and Ms Dwyer 54 – 55 2.10 The 13 May 2002 meeting 56 – 61 2.11 The 2002 DA 62 – 63 2.12 Mr Billington and Ms Mather 64 – 65 2.13 Reopening with thrill rides in Northern Extension 66 – 70 3.0 THE CROWN LANDS ACT CLAIM 71 – 81 3.1 Does s 114(2) bind an occupier under the Reserve Trust? 82 – 84 3.2 Does the Plan of Management exclude rides in the Northern Extension? 85 – 90 3.3 Is the operation of the Plan of Management overridden by the DAs? 91 – 95 3.4 Do the plaintiffs have standing? 96 – 102 3.5 Would injunctive relief be declined on discretionary grounds? 103 – 105 3.6 Conclusion on the Crown Lands Act claim 106 4.0 THE MISREPRESENTATION CLAIMS – LIABILITY 107 – 110 4.1 Misleading and deceptive conduct – the 2001 DA? 111 – 176 4.2 Misleading and deceptive conduct – the subsequent silence case? 177 – 191 4.3 Misleading and deceptive conduct – the 2002 DA? 192 – 207 4.4 Misleading and deceptive conduct – were Messrs Hearne and Doughty knowingly concerned? 208 – 209 4.5 The Trade Practices claim – was the conduct in Trade or Commerce? 210 – 225 4.6 The Trade Practices claim – legal causation 226 – 232 4.7 The Negligent Misrepresentation claim – did Metro Edgley owe the plaintiffs a duty of care? 233 – 264 4.8 Conclusion on the Misrepresentation Claims 265 – 266 5.0 THE MISREPRESENTATION CLAIMS – RELIEF 267 5.1 Injunctive relief 268 – 273 5.2 Damages – reliance and factual causation 274 – 280 5.2.1 Mr and Mrs Hesse 281 – 284 5.2.2 Ms Dwyer and Mr Simkin 285 – 290 5.2.3 Mr Billington and Ms Mather 291 – 296 5.2.4 Glen Eight 297 – 318 5.3 Damages – quantification – the individual plaintiffs 319 – 332 5.4 Damages – quantification – Glen Eight 333 – 342 5.5 Conclusion as to relief 343 – 346 6.0 CONCLUSION 347 – 365 2.0 BACKGROUND 2.1 Luna Park Site History 11 The Luna Park Site Act 1990 vested the Luna Park site in the Crown, terminated any leases relating to any part of it, deemed it to be dedicated under Crown Lands Act 1989 for the purposes of public recreation, public amusement and public entertainment, and established the Luna Park Reserve Trust, which was appointed trustee of the Reserve, and (pursuant to Crown Lands Act, s 92), became responsible for its care, control and management. 12 In 1992, the site was zoned 5(d) ("Special Uses – Public Recreation, Amusement and Entertainment"). In December 1994, part of the railway land to the north of the site was added to the Luna Park Reserve; this constituted what I have called the Northern Extension. The remainder of the railway land was retained as stabling yards. 13 The park re-opened in January 1995, featuring the "Big Dipper". In September 1995, Hodgson J (as his Honour then was) gave judgment in Seidler v Luna Park Reserve Trust (NSWSC, unreported, Hodgson J, 21 September 1995), restricting the operating hours of the Big Dipper, and the park ceased operations in February 1996. Also in 1996, the North Sydney Council – which was then the relevant consent authority for planning purposes – resolved that it would require a development application to be made each time a ride was proposed to be moved from or onto the Luna Park site. 14 In August 1997, a further area to the north of the site, north of the Northern Extension and between the railway stabling yards and Lavender Bay, known as "Lavender Green", was added to the Reserve. In November 1997, the (NSW) Luna Park Site Amendment Act 1997 expanded the permitted uses of the Reserve – except for the area known as the Boardwalk/Foreshore, and Lavender Green – to include various entertainment-related uses and, in respect of the Clifftop area – which was to the east of the Northern Extension, but elevated above it on a cliff – hotels, shops, office accommodation, and other prescribed commercial uses. 2.2 The Plan of Management 15 On 12 March 1998, the Minister for Land and Water Conversation adopted the Luna Park Plan of Management, in respect of the Luna Park site. While it will be necessary to make more detailed reference to its contents later, it contained design and land use guidelines for the site, including: · Enhancement of open space north of Coney Island; · Building Envelopes, within which buildings may be developed and amusement rides located – there were no such envelopes in the Northern Extension; · Upgrading and levelling undeveloped land north of Coney Island, to provide a landscaped setting for Coney Island and a location for temporary structures for outdoor functions; · The reuse of existing rides and the possibility of future fun park rides which would not impinge upon the environmental amenity of the area, such rides (other than the Ferris Wheel) to be located within the building envelopes and (including the Big Dipper, if retained) to comply with the licensing requirements of the Environmental Protection Authority; · The development of the cliff-top area for commercial facilities such as hotels, shops and office accommodation, to help financially support the Reserve Trust. 2.3 The selection process 16 Also in March 1998, the NSW Department of Public Works and Services (DPWS), on behalf of the Reserve Trust, issued a Call for Proposals to develop and open the Luna Park site. Section 2 (Information on the Luna Park Site) contained a description of the site as embracing three areas, the "foreshore/boardwalk area", the "clifftop area" and "the amusement park". It included sections 2.6 and 2.7 in the following terms: 2.6 The Amusement Park Area The Amusement Park Area is presently situated on the level ground about 13 metres below the cliff top on the foreshore of Lavender Bay. This area can be accessed via the historical Luna Park Face, from the steps off Glen Street (at the northern end of the site) or from the public reserve (to the north of Luna Park) which leads to Lavender Bay Wharf. Apart from the amusements and rides which are detailed in annexure 4, the major heritage items (Coney Island, Crystal Palace and the Luna Park Face and Towers) are located within this area. The area was completely refurbished in the early 1990s with Coney Island, Crystal Palace and the Luna Park Face restored to continue the theme of Luna Park. 2.7 The Playground (Outdoor Area) The areas added to the Luna Park Reserve since 1990 to the north of Coney Island comprises a landscaped open space area. Under the Luna Park legislation, the northern most part must remain free of any permanent structures. This area blends with the adjoining public recreation reserve leading to Lavender Street Wharf and is best accessed from that wharf or from the foreshore timber boardwalk. There are no improvements within this site. 17 This was the first occasion on which the "landscaped open space area" north of Coney Island was referred to as a "playground". That was more likely to have been intended to be a reference to Lavender Green, than to the Northern Extension between the railway land and Coney Island (where the thrill rides are now located), because the latter was at that time already occupied in part by stanchions supporting the northern loop of the Big Dipper. 18 Metro Edgley was incorporated on 28 April 1998. Mr Hearne was appointed Director and General Manager on 29 April. Mr Doughty was also appointed a Director. Their company Metro on George Pty Limited held 48% of the shareholding; Edgley International Pty Limited held 33.5%, Peter Murdoch held 3.5%, and Ceeteal Pty Limited – a syndicate of investors managed by the Winchester Financial Group – held 15%. 19 On 12 May 1998, Metro Edgley lodged with DPWS a proposal for the development of Luna Park. It was expressed to be a "flexible" proposal, and included two options – one retaining the Big Dipper, and the other removing it. The proposal included the construction of a café/brasserie at the southern end of the Luna Park site, where the children's rides were then located; it envisaged that those rides would be relocated (but, at that stage, not to the Northern Extension): It is our intention to relocate the children's rides – now located at the existing park entrance near the Face – to the area of the grand plaza opposite the Crystal Palace. We feel this would be a more appropriate area because it will have better shelter from the elements than the current site and it would also be made more user friendly than the existing bitumen expanse by the inclusion of flower beds, seating and shade cover. 20 On 10 July 1998, Metro Edgley was advised that it had been short-listed to proceed to the next stage of the bid process. In October 1998, the DPWS released to the short-listed applicants a "Call for Detailed Proposals" for the next stage of the bidding process. One of the diagrams attached to it identified the general area north of Coney Island – including the Northern Extension – as "the Playground (Outdoor Area)". 2.4 The detailed proposal 21 Metro Edgley lodged its detailed proposal, entitled "Turning the Lights Back On", with DPWS on 22 December 1998. This detailed proposal involved a number of changes from the original proposal; one was that the children's rides would be relocated "to the playground to the north of Coney Island". It also proposed an "apartment style" hotel for the cliff top site. 22 On 4 July 1999, Metro Edgley was selected to redevelop Luna Park, and it took possession of the site in mid-July 1999. 23 On 12 August 1999, the Reserve Trust as lessor and Metro Edgley as lessee entered into a "Deed of Agreement for Lease and Sub-lease", by which they agreed that the project would satisfy certain specified objectives by: (i) Maintaining Coney Island and Crystal Palace in a condition as good as or better than their condition, as at the date of this deed; (ii) Maintaining a reasonable level of rides and other amusement attractions at Luna Park but shall include (at all times) the Ferris Wheel, Rotor, Wild Mouse and Dodgems; … (v) Providing the Children's Playground as specified in the proposal; … (vii) Developing and operating Luna Park in the manner envisaged in the proposal. 24 The lease obliged Metro Edgley to carry out works specified in Annexure A, including: Children's Rides A safe enclosed children's ride area will be constructed in the playground to the north of Coney Island. Many of the existing children's rides will reused. … The Playground The boardwalk past Coney Island leads to the playground. This will be the new home for the children's rides, and with the refreshment kiosk, toilets and grass area will be oriented towards catering for families and young children. The level grass area will also be used for temporary marquees for functions. 25 The reference in the Agreement for Lease to "the Children's Playground" was the first use of that terminology. It was not defined, but must have contemplated the open space area north of Coney Island described as the "Playground (Outdoor Area)" in the Call for Detailed Proposals, where Metro Edgley's response proposed to relocate the children's rides. 26 Also on 12 August 1999, the Trust and Metro Edgley entered into an asset sale agreement, for the sale by the Trust and purchase by Metro Edgley of the rides and amusements then located at the park. Metro Edgley thereafter endeavoured to find a purchaser for various of the non-heritage amusement rides. From September 1999, Metro Edgley began to operate the park as a venue for corporate functions, and by the end of 1999 as an amusement park; it was open every weekend from 18 March 2000 until late January 2001, and daily during school holidays in April, July and September 2000 and January 2001. 27 On 10 October 1999, Metro Edgley lodged DA 316/00 with the North Sydney Council, seeking approval to dismantle and remove the Big Dipper. On 12 November 1999, Metro Edgley lodged DA 427/00 with the Council, seeking approval for internal alterations to the Crystal Palace, and alterations and additions to Coney Island – including the addition of a new section of building along its northern façade to include a kiosk, stores, toilets, function space, servery and deck, and landscaping. A "Statement of Environmental Effects" dated September 1999 and prepared by Hassell Pty Ltd accompanied this DA. 28 Also on 12 November 1999, Metro Edgley lodged with North Sydney Council a Masterplan and supporting documents, to enable Council to prepare a Development Control Plan as a basis for assessing subsequent development applications in respect of the Luna Park site. It referred to "rides and amusements" in almost precisely the same language as appeared in Annexure A to the 1999 Agreement for Lease – including the references to the "safe enclosed children's ride area" and the "playground to the north of Coney Island". But it also referred to the need for flexibility in the location of rides, so that "open rides that do not have heritage significance can be replaced and/or relocated in the entertainment precinct" – which was depicted as including the Northern Extension – and stated that the development "may upgrade land north of Coney Island to provide for outdoor functions, rides and temporary structures", and that "building envelope controls do not apply to open rides". 29 On 20 December, the Council granted consent to DA 316/00 (to dismantle and remove the Big Dipper), and on 27 March 2000, the Council granted conditional consent to DA 427/00 (alterations to Crystal Place and Coney Island. 30 On 26 April 2000, Metro Edgley lodged with the Council DA 772/00, a staged development application seeking approval for land uses, building envelopes, vehicular and pedestrian access arrangements, a public domain plan, hours of operation and other matters in connection with Luna Park. The accompanying Statement of Environmental Effects depicted an "entertainment precinct", which was defined as the area "between the boardwalk/foreshore and the base of the cliff, where the fun park is located …", and included the Northern Extension. Paragraph 7.2.7 was as follows: Key rides and amusements which give Luna Park its fun park image will be retained (with the exception of the Big Dipper) and supplemented with new attractions. It is proposed that all public domain areas of the Entertainment Precinct form a 'Ride and Amusement Zone', within which all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain the further development consent of council. 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. As previously stated, no open rides of heritage significance will be replaced/removed without the separate consent of Council. A more detailed description of the existing rides and amusements to be retained and new rides proposed, within the Ride and Amusement Zone follows. … Children's rides A safe enclosed children's rides area will be constructed in the Playground to the north of Coney Island. It is anticipated that many of the existing children's rides will be reused. 31 Although the text largely reflects that of Annexure A to the 1999 Agreement for Lease, there is the additional reference (as in the November 1999 Masterplan) to the proposed "Ride and Amusement Zone" – including that existing open rides and amusements without heritage significance may be replaced, removed or moved without the need for further development consent, and that new open rides and amusements may be provided within the zone from time to time. 32 On the same day, Metro Edgley also lodged two development applications 773/00 and 774/00, for alternative proposals for car parking to that proposed under DA 772/00. Council granted consent to DA 772/00 on 23 October 2000, but on conditions unacceptable to Metro Edgley, which did not proceed on that consent. Council refused consent to the applications for alternative car park configurations in DA 773/00 and 774/00. 33 On 2 February 2001, the Minister for Planning became the consent authority for the Luna Park site, upon its becoming designated as "State Significant Development". 34 On 1 March 2001, Metro Edgley, Metro on George, Multiplex Constructions Pty Ltd, Ceeteal and another party entered into heads of agreement to finance the on-going redevelopment of Luna Park. 35 An offer to purchase the Big Dipper was received in April 2001, and Metro Edgley sold it to Dreamworld in mid-2001, following which it was dismantled and removed. 2.5 Ms Street 36 The first plaintiff Ms Joan Paula Street and her husband Mr Geoffrey John Pritchard purchased Unit X/6 Glen Street in May 1996, and have lived there since they took up occupation in June 1996. 6 Glen Street is located to the East of Luna Park, south of Coney Island and well south of the Northern Extension. 2.6 Glen Eight 37 The fourth plaintiff Glen Eight Pty Limited had purchased what was then a commercial office building at 8 Glen Street, Milsons Point, known as Yellow Pages House, by a put and call option entered into in December 1998, which was exercised on 13 January 2000. Glen Eight's principals are John Roth, his brother Stanley Roth (a solicitor) and Mr George Revay (an architect); its shareholders at all material times were, as to 60%, Henroth Investments Pty Ltd (a company controlled by John and Stanley Roth), and, as to 40%, Platino Properties Pty Ltd (a company controlled by Mr Revay). Glen Eight has refurbished the building, now called the Azure, into 75 strata title residential apartments, of which most have since been sold, some before and some after operations at Luna Park recommenced in April 2004. Glen Eight still owns about 10 units in the block. 38 Mr Revay learnt in late 1998 that Yellow Pages House might be for sale. He and Messrs John and Stanley Roth inspected it. It was then subject to a lease to Telstra for a term expiring on 31 March 2003, with two options to renew, each of five years. Messrs Roth and Revay saw the building as a good investment opportunity, for two reasons: the first was that, on a commercial basis, it appeared to be under-rented and, with the lease permitting a market rent review after about five years, there would be a substantial increase in the rents; and the second was that it had potential for residential refurbishment, with commanding views over Lavender Bay and Sydney Harbour. 39 Having ascertained that Metro Edgley was one of the tenderers for the Luna Park site, Mr Revay organised a meeting, on 22 December 1998, with Mr Hearne and Mr Doughty, to try to ascertain what was proposed for the Luna Park site. Mr Revay told Mr Hearne and Mr Doughty that Glen Eight was buying Yellow Pages House and intended to submit a development application to convert it to residential use, and suggested that it was in everyone's interest to cooperate. Mr Hearne and Mr Doughty said that they were unable at that stage to disclose any plans or details about the Luna Park proposal, but that they wanted to be good neighbours. 40 On 24 December, Henroth and Sydney Plaza Apartments entered into a put and call option to acquire Yellow Pages House, for $15 million, and Mr Revay wrote to the Reserve Trust, proposing an agreement in respect of future development of the Luna Park site; the Reserve Trust refused to enter into any such agreement. Mr Revay proceeded to develop plans for a residential conversion. On 13 May 1999 he wrote to Mr Hearne at Metro Edgley, proposing a meeting to discuss "matters of mutual interest" in relation to the development of Luna Park. 41 Mr Revay lodged a development application for residential conversion of Yellow Pages House on 10 June 1999. The Council did not deal with the DA within the stipulated time, and Mr Revay appealed from the deemed refusal to the Land & Environment Court. Mr Revay and the Messrs Roth say that they were seeking this approval without intending that if granted it would necessarily be implemented, but to enhance the value of the building by having in place a development approval which could later be implemented if appropriate. 42 On 24 June, Mr Revay sent a fax to Metro Edgley requesting a meeting; Mr Hearne replied on 25 June, declining to meet until after a decision on the tenders had been made by DPWS. However, on 18 October 1999, Mr Hearne and Mr Doughty met with Mr Revay, Mr Widdup and Mr Nicholas Rickard – consultants to Glen Eight. Mr Revay says that Mr Hearne made some statement about what was going to happen in respect of rides in the Northern Extension, but the essence of the meeting was one of "getting to know" each other. 43 Towards the end of 1999, Mr Revay attended a function in the administration building at Luna Park, where there were also a number of people from North Sydney Council. Some plans were displayed, including plans that showed no Big Dipper, but children's rides in the Northern Extension. Mr Revay subsequently arranged to meet with Mr Hearne and this occurred shortly prior to the hearing of the Land & Environment Court of Appeal in December. Mr Revay asked what would be happening in the area in front of Yellow Pages House when the Big Dipper went, and Mr Hearne responded that there would be landscaping, picnic areas and some rides. In answer to the question "What sort of rides?", Mr Hearne said "Something like those", indicating the children's rides. 44 On 13 January 2000, the purchase of Yellow Pages House, pursuant to the put and call option, was completed in the name of Glen Eight. 45 Glen Eight's appeal to the Land & Environment Court was dismissed, but with an indication that if modified in some respects it might have some prospect. Mr Revay then redesigned the proposed residential conversion and, in March 2000, lodged a new development application with North Sydney Council. Subsequently, he had a conversation with Mr Hearne in which he indicated that the court had refused the application but that he was submitting a new DA, outlining the changes, and proposing that they should work together to achieve a good outcome, to which Mr Hearne responded that that was a good idea, and would send plans of "our building" and keep him posted. The reference to "our building" was to the building that became known as Milsons Landing, which Multiplex proposed to construct in the clifftop area, adjacent to Yellow Pages House. 46 On 29 May 2000, Mr Revay – having considered Metro Edgley's DA 772/00 – wrote to Mr Hearne, seeking Metro Edgley's agreement to reduce the proposed maximum height of Milsons Landing to RL 28.21 AHD, and in return offering to make no other objection to the DA; Mr Hearne responded on behalf of Metro Edgley, accepting this proposal. 47 Mr Revay's new development application led to a further appeal to the Land & Environment Court. In connection with that appeal, Mr Rickard (on behalf of Glen Eight) sought to borrow from Metro Edgley a model of Luna Park for the purpose of use in the appeal. 48 The directors of Glen Eight were, at least to some extent, ambivalent as to whether to refurbish and retain Yellow Pages House for commercial purposes, or to proceed with a residential redevelopment. In April 2001 the lease still had a couple of years to run until 2003, and two five year options. 2.7 The 2001 DA 49 On 22 June 2001, Metro Edgley lodged the 2001 DA (DA 154/06/2001) with the Minister. The 2001 DA was a Stage 1 Development Application in respect of the Luna Park Entertainment Complex, although it also contained a Stage 2 Detailed Design DA for a strata commercial office building on the clifftop site, fronting Glen Street, to be known as Milsons Landing. While it will be necessary to refer to it in greater detail, it included statements to the following effect: · removal of the Big Dipper was a deliberate and symbolic gesture of goodwill to the immediate residents of Milsons Point, with whom Luna Park would work to create a harmonious neighbourhood for all; · in order to allow flexibility in the location of rides and the ongoing evolution of Luna Park, all public domain areas of the Entertainment Precinct and certain areas above buildings would form a 'Ride and Amusement Zone', within which all existing open rides and amusements not having heritage significance could be replaced and removed or moved, and new open rides and amusements could be provided, without the need for further development consent. The 'Ride and Amusement Zone' was depicted on an annexed plan (MDA06) as including the Northern Extension; · a safe enclosed children's rides area would be constructed in the Playground to the north of Coney Island; · (in an attached expert heritage report) the Spider, Ranger and Octopus rides would be removed, and a new park to the north of Coney Island will create a more open playground for children's rides and family picnics. 50 The wording of the 2001 DA – in respect of rides, including children's rides – reflected that of the previous DAs, and in turn of Annexure A in the 1999 Agreement for Lease. It included an indicative possible layout of the proposed development depicting children's rides and nothing else in the Northern Extension (MDA09), which was expressly stated to be "for information only". 51 The 2001 DA was placed on public exhibition from 6 July to 17 August 2001 at the offices of NSW Planning in Pyrmont and in the Sydney CBD, and also at the offices of North Sydney Council. On 31 January 2002, the Minister granted development consent for the 2001 DA, subject to conditions. Condition 88 expressly excluded from the approval drawing MDA09, and specified that a "detailed design of layout rides" should be the subject of a separate DA. 2.8 Mr and Mrs Hesse 52 In early June 2001, the third plaintiff Mr Michael John Hesse saw an advertisement in the Sydney Morning Herald for apartments for sale in the Colonnades Building at 30 Glen Street, Milsons Point. The Colonnades is situated to the north-east of the Northern Extension and comprises 133 apartments plus retail space, over 27 levels. On 25 June, his wife the fifth plaintiff Mrs Susan Hesse made by letter what was expressed to be a "final offer" for unit XX01 of $1.55 million, subject to a number of conditions, none of which related to the Luna Park site. On 26 June, she paid a deposit of $5,000. 53 On 30 June, Mrs Hesse saw an article in the Sydney Morning Herald about a development application for Luna Park, which alerted her to the 2001 DA (which had been lodged on 22 June, but did not go on public exhibition until 6 July). Mrs Hesse asked her husband to find out whether there was anything preventing the Northern Extension being used for rides. Mr Hesse inspected the 2001 DA at North Sydney Council, and reported to Mrs Hesse that there would be a playground for children on the Northern Extension, that nothing would block their views because of the height restrictions in place, and that as far as he could tell there would be a small ride, a mini-train and something for kids to jump on, but nothing likely to worry them. Following this they exchanged contracts, with Mrs Hesse as the named purchaser, on 25 July. Later, on 17 June 2005, Mrs Hesse transferred a 1/100th interest in the property to Mr Hesse. 2.9 Mr Simkin and Ms Dwyer 54 On 13 March 2002, the second plaintiff Ms Roslyn Elizabeth Dwyer and her husband the sixth plaintiff Mr Robert Simkin exchanged contracts for the purchase of Unit X, "The Cavill" at 6 Cliff Street, Milsons Point, for a price of $1,970,000.00. The Cavill comprises 12 luxury apartments over six levels plus a parking level, and is located to the east of Lavender Green, north of the Northern Extension. They moved in on 19 July 2002. 55 Mr Simkin and Ms Dwyer did not themselves read the 2001 DA, but they retained an experienced property consultant, Dr Hutcheson, to report on the proposed development of the Luna Park site. Dr Hutcheson inspected the 2001 DA at Council. He obtained and provided to his clients a copy of drawing MDA 09, and told them that there was going to be a children's playground with children's rides in the area just north of Coney Island. 2.10 The 13 May 2002 meeting 56 On 23 July 2001, Glen Eight received notice of the 2001 DA. As a result, Mr Rickard was directed to review the DA. He inspected it at North Sydney Council. His particular concern was the height of the Milsons Landing building that Metro Edgley proposed to build in close proximity to Yellow Pages House, and what if anything was to be placed in front of Yellow Pages House (on the Northern Extension). He formed the view, particularly from MDA09, that there would be no adverse impact on 8 Glen Street from what was proposed for the Northern Extension, whether 8 Glen Street was retained for commercial purposes or converted to residential use. He informed Mr Revay that the maximum height of the new Milsons Landing building would be at RL28 "and so that's fine" – meaning that it complied with what had previously been agreed between Glen Eight and Metro Edgley – and that the proposed children's rides in the Northern Extension would not be of any concern. 57 Mr Revay received plans of the Milsons Landing building from Metro Edgley and cross-checked them against his plans for the refurbishment of Yellow Pages House, for which by this stage development consent had been obtained. He was unconcerned. Mr Revay discussed these matters with Mr John Roth and Mr Stanley Roth, and concluded that Metro Edgley had adhered to the agreed RL for Milsons Landing. On 1 August 2001, Mr Revay wrote to Mr Hearne at Metro Edgley, thanking him for providing the plans and offering to write a letter to Council stating that Glen Eight had no objection. 58 In October and November 2001, the directors of Glen Eight learnt that the tenant wished to vacate Yellow Pages House, and perceived an opportunity to test the market for residential conversion. They conceived a plan of using the opportunity to construct a display apartment on one of the floors of 8 Glen Street and then marketing the residential conversion "off the plan", with the benefit of that display apartment, to see whether the project was commercially viable. In a letter to the tenant's property manager on 31 January 2002, Mr Stanley Roth indicated that whether Glen Eight decided to proceed immediately with a residential conversion or to defer it would depend on the success of their selling campaign. Thereafter, Mr Revay progressed the design for the residential conversion, and between March and May caused brochures, marketing plans and other marketing aides to be prepared. A display unit was built, the name of the building was changed to the Azure, and lawyers were retained to prepare contracts for sale. 59 Mr George Marton, of Intalink, was retained to prepare the marketing program for the Azure, with the assistance of Mr Tim Abbott who worked for Mr Revay at Platino. Mr Marton learnt that Multiplex was about to commence marketing and construction of the Milsons Landing building, and was keen to ascertain what they were proposing, as he thought it relevant to his marketing campaign. He sought to establish some cooperative arrangements for the mutual benefit of each, and for that purpose Mr Abbott organised a meeting on 22 March 2002 with Multiplex in its Kent Street offices. Mr Hearne was in attendance, along with representatives of Multiplex, including a Mr Driscoll and Mr Yeo. Some consensus was reached that Multiplex on the one hand and Glen Eight on the other would use the same "perspectivist" to draw a perspective – a firm called "Idrawfast" – and to create a photo-montage of the appearance of the Azure and Milsons Landing. These photo-montages were used in the marketing brochures for the Azure. 60 Arrangements were also made for a further meeting and/or inspection at Luna Park, to take place on 13 May 2002. There was considerable controversy as to how this meeting came to be arranged, and what occurred at it. Mr Hearne was at the meeting. Mr Marton and Mr Abbott attended on behalf of Glen Eight. Mr Marton and Mr Abbott say that they participated in order to obtain a better understanding of what Metro Edgley was proposing in relation to Luna Park, so as to be better informed when dealing with prospective purchasers. Mr Marton recalls that a poster-size version of MDA 09 was on display, depicting a number of small children's rides in the Northern Extension, identified as "children's rides". He says that Mr Hearne described what was proposed for the Northern Extension as "rides for little kids". Mr Abbott says that he heard Mr Hearne say that there would be children's rides in front of the Azure building, and also landscaping and picnic areas for young families, and that he obtained a copy of MDA 09 from Mr Hearne at the meeting. Mr Marton conveyed what he was told to Mr Revay. Mr Abbott showed Mr Revay the drawing he obtained, and used the plan on the sales floor in the marketing office to show prospective purchasers. Mr Revay conveyed what he was told to Mr John Roth, adding that he did not think that the children's rides would have a detrimental effect on a residential conversion. 61 On 24 May 2002, the marketing campaign for the Azure was launched with a cocktail party. There was substantial interest. Brochures for the Milsons Landing development were made available in the Azure sales and marketing office, and sales personnel for Multiplex in relation to Milsons Landing often used the Azure's sales rooms. On the desk in the sales and marketing office in the Azure was a model of Milsons Landing borrowed from Metro Edgley, as well as a model of the Azure. 2.11 The 2002 DA 62 On 22 May 2002, Metro Edgley lodged DA 151/5/2002 with the Department of Planning, for the Stage 2 Detailed Design of the proposed car park and café/brasserie buildings, known as Phase D. It was notified and placed on public exhibition between about 21 June and 19 July 2002. 63 On 21 June 2002, Metro Edgley lodged the 2002 DA (DA 201/6/2002), for the Stage 2 Detailed Design of the Luna Park Entertainment Complex, known as Phase E. The 2002 DA was notified and placed on public exhibition from 12 July to 2 August 2002. 2.12 Mr Billington and Ms Mather 64 The seventh plaintiff Mr Glen Frederick Billington and his wife the eighth plaintiff Ms Fiona Jeanette Mather exchanged contracts for the purchase of an apartment at X01/12 Glen Street, Milsons Point on 15 October 2002. 12 Glen Street is located at about the northern extremity of the Northern Extension. 65 Mr Billington visited North Sydney Council twice, once on 18 September 2002 for two hours, when he read the 2001 and 2002 DAs, and a second time on 26 October 2002 for an hour and a half, to review them in further detail. He understood from the 2001 DA that there was to be a ride and amusement zone, which extended to the Northern Extension, and that MDA 09 was illustrative only. He thought that the 2002 DA was the more pertinent document. Mr Billington observed that in the 2002 DA the Ranger and the Octopus were depicted as being located in the Northern Extension, but says that he thought that they were children's rides. He understood that if the 2002 DA was approved, nonetheless anyone with control of Luna Park could thereafter submit a new DA (including one that would locate large thrill rides in the Northern Extension). He accepted that he assumed the risk that some different and more adverse development might occur in the future, but thought that that would probably be some years away. 2.13 Reopening with thrill rides in the Northern Extension 66 Council considered the Phase D DA and the 2002 DA on 19 August 2002. NSW Planning assessed them between August and November 2002, and the Minister granted consent on 21 January 2003. 67 Meanwhile, on 21 November 2002, LPS was incorporated, with shareholdings Metro Edgley 50%, Metro on George Management Pty Ltd (owned by Mr Hearne and Mr Doughty) 34%, Edgley International 8%, and Ausland Holdings 8%. Mr Hearne ceased to be a Director and General Manager of Metro Edgley on 29 November 2002. On 23 December 2002, Metro Edgley and LPS entered into a "Deed of Agreement for Lease and Sub-lease" in respect of the Luna Park site, and on 25 March 2003, Metro Edgley and LPS entered into a "Luna Park Development Agreement". 68 In early 2003, various rides and amusements were removed from Luna Park to allow for redevelopment of the site. Following completion of the redevelopment, Luna Park reopened for trading on 4 April 2004. The sub-lease to LPS commenced on 2 August 2004, and, on the same date, ownership of the rides and amusements was formally transferred from Metro Edgley to LPS pursuant to the Luna Park Development Agreement. 69 Since the park re-opened, rides called the Ranger and the Spider have been located and operated in the Northern Extension. The Ranger is a ride that swings its patrons in a pendulum motion from side to side, gradually approaching closer and closer to a 360-degree rotation, which it ultimately achieves. The hydraulics that drive it emit a screeching mechanical noise, and the patrons make ear-piercing screams. It is not seriously in dispute that it would not ordinarily fall within the description of a "children's ride" in the context in which that term had been used. The Spider is a ride with a series of cars which spin as the ride progresses and gathers speed, each car spinning through 360 degrees. Again, it would not ordinarily be understood as a "children's ride". 70 On occasion, particularly during school holidays, the operators of Luna Park have brought into the Northern Extension, on a temporary basis, additional large thrill rides, including "the Extreme Machine" which involves patrons being lifted in a cage and then dropped, and the "Giant Bungee" or "Sling Shot", which flings patrons into the air. All these thrill rides generate a high level of noise, in particular screams from their patrons. 3.0 THE CROWN LANDS ACT CLAIM 71 The plaintiffs (other than Mr and Mrs Hesse who, having moved from the neighbourhood, no longer assert standing) claim an injunction restraining LPS from locating and operating amusement rides (and in particular adult thrill rides) in the Northern Extension, on the footing that their location and operation in that area is in contravention of Crown Lands Act, s 114(2). The plaintiffs did not, in their submissions, ultimately press a case that they originally pleaded, to the effect that the Crown Lands Act somehow bound LPS to comply with the lease under which it occupies and operates Luna Park. Their case was ultimately based on the Plan of Management. They contend that the location and operation of thrill rides in the Northern Extension is outside the framework established by the Plan of Management, the intent of which was to enhance open space north of Coney Island by removing the Big Dipper stanchions, and locating rides only in the Midway and on the Waterfront within the designated building envelopes. 72 The Crown Lands Act, Part 5 (Dedication and Reservation of Land) provides, in Division 6 (Plans of Management), relevantly as follows: 112 Preparation of draft plan of management (1) The Minister may cause a draft plan of management to be prepared for a reserve, including a draft plan that would, if adopted, authorise the reserve to be used for an additional purpose. (2) A reserve trust may with the Minister's consent, and if the Minister so directs shall, prepare a draft plan of management for the reserve. … 114 Adoption of plan of management (1) The Minister may adopt a plan of management for a reserve without alteration or with such alterations as the Minister thinks fit. (1A) In the case of a plan of management that authorises a reserve to be used for an additional purpose, the Minister may, without limiting subsection (1), adopt the plan subject to the reserve trust complying with such conditions as the Minister thinks fit to impose. (1B) Without limiting the conditions that the Minister may impose under subsection (1A), the Minister may impose a condition requiring the reserve trust to indemnify the Crown against any liability or claim for compensation that may arise as a result of the reserve being used for the additional purpose specified in the plan. … (2) If a plan of management is adopted: (a) the reserve trust shall carry out and give effect to it, and (b) no operations may be undertaken on or in relation to the reserve unless they are in accordance with the plan. (3) If a plan of management is adopted authorising a reserve to be used for an additional purpose specified in the plan, the reserve may be used for the additional purpose specified in the plan. 73 By s 112A, "additional purpose" in relation to a reserve is defined to mean any purpose that is additional to the declared purpose of the reserve. By s 78, "reserve trust" is defined to mean a corporation constituted under Division 4 and appointed as trustee of a reserve or part of a reserve. In Division 4, s 92 provides that the Minister may establish and name a reserve trust and appoint it as trustee of any one of more specified reserves or any one or more parts of a reserve. A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee (s 92(5)). A reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of or in any way disposing of the whole or any part of the reserve except in accordance with Part 5 (s 100(2)). 74 The Luna Park Site Act provides that the land comprising the Luna Park site is vested or taken to have been vested in the Crown by the Act and to be land dedicated under the Crown Lands Act for the purposes of public recreation, public amusement and public entertainment (s 5); that the Crown Lands Act applies to and in respect of the land comprising the Luna Park site, except as provided by the Site Act or regulations under it (s 6); that upon commencement of the Act there is to be taken to have been established and named, under section 92 of the Crown Lands Act, a reserve trust under the name of the Luna Park Reserve Trust, which is to be taken to have been appointed, under that section, as trustee of the reserve consisting of the land comprising the Luna Park site (s 7); and that Reserve Trust is to be taken to have been directed by the Minister, under section 112 of the Crown Lands Act, to prepare a plan of management for the Luna Park Reserve, to include provision for a number of specified matters, including that there must be public access to the boardwalk/foreshore area at all times, and that the use of the Reserve must be limited to purposes sympathetic to the historic and community significance of the land comprising the site. 75 In the Plan of Management, to which reference has already been made, Part 3 (Design and Land Use Guidelines) contained the following: 3.1 BACKGROUND These design and land use guidelines set the physical, urban design and land use framework for achieving the vision and meeting the goals for Luna Park. They reflect the preferred option for Luna Park as an amusement park supported by a range of other uses and as such are not prescriptive of development on the site. The framework is based on extensive stakeholder consultation and is aimed at meeting stakeholder needs, gaining their support and achieving viability. It is intended to provide design flexibility for prospective operators, architects and designers. Rather than constraining creativities, the design and land use framework aims to assist in focussing design effort. 3.2 DESIGN AND LAND USE GUIDELINES The guidelines are structured so that an objective is stated in column 1 and the actions to achieve it in column 2. Implementation by an operator/developer of Luna Park will be required under the guidance of the Luna Park Reserve Trust. … The first four guidelines relate to: · heritage; · public domain; · views and vistas; and · service areas. The subsequent three guidelines provide a framework for new interventions: · building envelopes; · design of public spaces; and · land uses. 76 Objective 2.0 (Public Domain) was "To retain the existing primary spaces which structure the site, with the opportunity for access via new entrances", and covered six guidelines, including "6. Enhance open space north of Coney Island", and referred to Figure B and objective 6.0. 77 Objective 3.0 (Views and Vistas) was "To retain important existing views and vistas", and referred to Figure C. Objective 5.0 (Building Envelopes) included: To provide future development sites which complement the existing heritage features, public domain, views, vistas and service requirements. Building envelopes are contained within the framework set by the heritage features, public domain, views, vistas and service area requirements. 78 The related design guidelines included: 'Building envelopes' are the three-dimensional volumes within which buildings may be developed. New buildings should be designed within proposed building envelopes shown in Figure E. Minor decorative details only, such as flagpoles and architectural decoration may exceed the building height envelope. No new building should have a ground area greater than the ground floor area ('footprint') of Coney Island. … Amusement rides may occupy 100% of the envelopes, if these rides are 'open' structures. 79 Objective 6.0 (The Design of Public Spaces) included "To provide a landscaped setting for Coney Island and location for temporary structures for outdoor functions". The related guideline was: Upgrade and level undeveloped land north of Coney Island to provide a landscaped setting for Coney Island, and location for temporary structures for outdoor functions. 80 Objective 7.0 (Land Uses) included "To allow for the reuse of existing rides and the possibility of future fun park rides which do not impinge upon the environmental amenity of the area". The related design guideline was: New fun park rides may be provided. Rides should be located within the building envelopes shown in Figure E, except the Ferris Wheel, which exceeds the envelope. Rides, including the Big Dipper, if retained, must comply with the licensing requirements of the Environmental Protection Authority (EPA). 81 Figure B (Public Domain) described the area north of Coney Island – both the Northern Extension and Lavender Green – as "Open Space North of Coney Island". Figure C (Views and Vistas) identified a view from Glen Street to Lavender Bay, across the Rides Zone. Figure E (Building Envelopes) did not depict any envelope north of Coney Island. Figure H (Indicative Design Outcome) depicted the Northern Extension as partly paved but largely grassed and treed; but the covering text stated: Figure H illustrates one possible interpretation of the design guidelines. It is indicative only . 3.1 Does s 114(2) bind an occupier under the Reserve Trust? 82 The first answer to the plaintiffs' Crowns Lands claim is that Crown Lands Act, s 114(2)(b), is directed to the Reserve Trust, and not to third parties (including operators or occupiers under lease or licence from the trust). 83 This conclusion is informed, generally, by the context provided by Crown Lands Act, Part 5, as a whole, which in large part pertains to the constitution and affairs of reserve trusts to manage reserves, and the management of reserves by reserve trusts. More specifically, it is informed by the context provided by s 114 itself, which (by subsection (1A)) authorises the imposition of conditions on the reserve trust (and not others), extending (by subsection (1B)) to a condition requiring the reserve trust (and not others) to indemnify the Crown against liabilities arising from the use of the reserve for an additional purpose. And even more specifically, it is informed by the context provided by the remainder of s 114(2), in which sub-paragraph (a) is expressly directed (only) to the reserve trust. Although the passive voice is used in sub-paragraph (b) – as it is in sub-s (3) – the context is one of provisions pertaining to what reserve trusts may and may not do on and in respect of a reserve. 84 In this scheme, the function of a plan of management is to provide a means of authorising and instructing a reserve trustee to manage the reserve in a particular fashion and for particular purposes. While those purposes may include leasing or licensing the reserve or part of it to a third party, the plan of management is addressed to the reserve trustee, and not to any such third party. That the instant plan is directed to the trust is reflected in the following passage in the Executive Summary: This plan of management … will play an important role in assisting the Luna Park Reserve Trust to oversee the activities of the leaseholders operating the park. The plan will also guide the Trust in relation to its duties in managing those parts of Luna Park which are not covered by lease arrangements. 3.2 Does the Plan of Management exclude rides in the Northern Extension? 85 The second reason for rejecting the plaintiffs' claim based on Crown Lands Act, s 114(2), is that, regardless of to whom s 114(2) applies, and assuming that it and the plan of management apply to and bind LPS as well as the trustee, this plan of management does not exclude the location and operation of amusement rides, including adult thrill rides, in the Northern Extension. 86 The plan of management is replete with references that make clear that it is intended not to be a prescriptive document but to permit flexibility. Thus, in the Executive Summary: The plan is unusual in that it does not detail all of the management and other actions on the site. Instead it is a largely strategic document establishing the direction for Luna Park through a framework of vision statement, goals and guidelines. 87 In Section 3 (Design and Land Use Guidelines), it is said: These design and land use guidelines set the physical, urban design and land use framework for achieving the vision and meeting the goals for Luna Park. They reflect the preferred option for Luna Park as an amusement park supported by a range of other uses and as such are not prescriptive of development on the site. … It is intended to provide design flexibility for prospective operators, architects and designers. Rather than constraining creativity, the design and land use framework aims to assist in focussing design efforts. 88 Similarly, in Section 4 (Trust and Leaseholder Responsibilities): Following formal adoption of a plan of management by the Minister for Land & Water Conservation, the Reserve Trust will be responsible for its implementation. … … The plan of management will play an important role in assisting the Luna Park Reserve Trust to oversee the activities of the leaseholders operating in the park. The plan will also guide the trust in relation to its duties in managing those parts of Luna Park which are not covered by lease arrangements. 89 The concept of "guidelines" is not one of inflexible prescriptive parameters. 90 That operation of amusement rides, including adult thrill rides, in the Northern Extension was not intended to be excluded by the plan of management is most clearly illustrated by the circumstance that it specifically contemplated as one possibility that the Big Dipper would remain in operation. Part of the Big Dipper occupied, and was supported by stanchions that stood in, the Northern Extension. 3.3 Is the operation of the Plan of Management overridden by the DAs? 91 The defendants submit that by operation of (NSW) Environmental Planning & Assessment Act 1979, s 28, and North Sydney Local Environment Plan 2001, cl 42, any operation that the plan of management would otherwise have in regulating development and land use at Luna Park is removed. 92 Environmental Planning & Assessment Act, s 28, provides as follows: Suspension of laws etc by environmental planning instruments (1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. (2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument. (3) A provision referred to in subsection (2) shall have effect according to its tenor, … . 93 North Sydney Local Environment Plan 2001, cl 42, is a provision of the type contemplated by s 28: Suspension of covenants, agreements and similar instruments (1) Any covenant, agreement or similar instrument that affects development allowed by this plan does not apply to the extent (if any) necessary to allow the development. (2) Nothing in subclause (1) affects the rights or interests of any public authority under any registered instrument. 94 While Environmental Planning & Assessment Act, s 28(1), includes in the definition of regulatory instrument "any Act, … rule, regulation …" as well as "agreement, covenant or instrument …", subsection (3) gives effect according to its tenor to a provision in a planning instrument that provides "that a regulatory instrument specified in that environmental planning instrument" shall not apply or shall apply subject to modifications to relevant development. Clause 42 of the North Sydney Local Environment Plan specifies only any covenant, agreement or similar instrument, which is a narrower class than that described in Environmental Planning & Assessment Act, s 28(1). In particular, cl 42 does not include Acts, rules and regulations – they are not covenants, agreements or similar instruments. 95 Accordingly, the provisions to which reference has been made did not override any operation that the plan of management would otherwise have had in regulating development and land use at Luna Park. 3.4 Do the plaintiffs have standing? 96 If Crown Lands Act, s 114, otherwise had the effect of prohibiting the location and operation of amusement rides including adult thrill rides in the Northern Extension, the plaintiffs would have to show a sufficient special interest if they were to have standing to claim the permanent injunctive relief that they seek [Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 281]. The defendants submit that s 19A of the Site Act, introduced by the Noise Amendment Act – which prohibits any "civil proceedings (whether at law or in equity) … against any person with respect to the emission of noise from the Luna Park site" – has the effect of denying the plaintiffs any relevant standing, for two reasons: first, because if their sole basis for standing is the adverse effect of noise on the residential amenity of their properties, their claim is one "with respect to the emission of noise" within s 19A; and secondly, because even if the plaintiffs have standing, noise cannot be taken into account as a relevant discretionary factor. 97 In the context of an application by the defendants for orders striking out the Crown Lands claim [Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230], it was observed (at [41]) that while traditionally a relevant "special interest" had involved demonstrating that the conduct also infringed a private right of the plaintiff, or that the plaintiff suffered special damage [Boyce v Paddington Borough Council [1903] 1 Ch 109], all that was required was that the plaintiff have a sufficient special interest, greater than that of members of the general public, in the subject matter of the action, and the rule was a flexible one [Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552, 558; Batemans Bay, 265, 267]. In circumstances where the plaintiffs particularised the basis of their claim to standing as the "loss of amenity" occasioned to their properties by the contravention of the plan, and that such loss of amenity was not only exposure to noise but visual (on the theory that the Northern Extension should, according to the Plan of Management, be landscaped open space), their standing to claim injunctive relief did not depend on noise emission, and the proximity of their properties to Luna Park gave them a sufficient special interest, when compared to other members of the public, to give them standing. In this respect, it was said (at [43]): In my opinion, the plaintiffs' standing to claim the injunction that they seek does not depend on noise emission. Their properties are adjacent to and overlook Luna Park. That circumstance gives them a sufficient special interest, when compared to other members of the public, to allow them standing, because contravention of the Plan is liable to affect the amenity of their properties, whether or not it generates noise. Their interest in the regulation of activity on Luna Park in accordance with the Plan depends not merely upon the exposure of their properties to noise, but upon proximity and overview, and would subsist regardless of whether or not their properties were exposed to noise from Luna Park. While part of the inconvenience to them might be exposure to noise, that is neither essential to their standing, nor a material fact forming part of their cause of action for an injunction. It follows that the Injunction Claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1). 98 However, the defendants now submit that, as the evidence has now emerged, it is apparent that, to the extent that the location and operation of the rides in the Northern Extension has any substantial impact on any of the plaintiffs, it is limited to noise. 99 Although, in her first affidavit, Ms Street referred to overlooking the top of Coney Island to the Ranger and the Spider, she did not complain about any effect this had on her "visual amenity"; and while she referred in her second affidavit to the change in outlook from her apartment as a result of the installation of thrill rides, again she did not advance any complaint that it adversely impacted on her visual amenity. Neither Ms Dwyer nor Mr Simkin referred to any visual impact of the presence of the thrill rides. Nor did Mr Billington and Ms Mather. However, Glen Eight adduced evidence pertaining to the visual impact of the thrill rides. Although the defendants emphasised that this was contained only in the 2006 affidavits – subsequent to the strike out application to which reference has been made – and that there was no similar reference in the 2005 affidavits, I do not consider this significant: when the 2005 affidavits were made, the case was a "noise nuisance" case which depended upon and only upon proof of noise, and the absence of reference to impact on visual amenity is unsurprising; it would have been irrelevant. 100 Mr John Roth, a director of Glen Eight, described the position as follows: The units on the lower levels of Azure facing west are especially affected by the visual impact from the Ranger as it is directly in front of the living area (and some bedrooms) of the apartments. The feeling I have had when I have been in the lower level apartments when the Ranger is operating and whirring around is a lack of privacy. I can distinguish riders in the carriages and presume that they can also see me. Furthermore, it is quite disconcerting to watch the Ranger revolving past a living room on a regular basis during the ride's operation. 101 Mr Revay, a principal of Glen Eight who is also an architect, gave this evidence in cross-examination: Q. Yes, what were the things apart from noise that you thought were going to interfere with the sale of the Azure apartments when you made your affidavit in May 2005? A. Well, the – significantly – significant interference to the sale of the Azure apartments at that time was the noise. And minimal – – Q. Well, excluding noise now. A. If we excluded noise there was minimal interference to the apartments from the so-called children's playground, which originally I thought was going to be landscaped, was now like a bituminous tarmac and there was no landscaping in the area and the fact that the Ranger stood still. Q. Well, I've understood – A. Those things were not attractive but they were not significant problems for us. They were minor problems. … Q. Now, are you saying that in May 2005 you thought that the visual affect of the playground including the Ranger would have a substantial adverse affect on the sale of the Azure apartments? A. No. Q. Or some of them, apart from noise? A. No. Q. That was your belief then, was it? A. That was my belief then. Q. And does it remain your belief? A. It does. 102 Although I accept that the overwhelming impact of the thrill rides in the Northern Extension on the plaintiffs is the emission of noise, and that the visual impact is relatively slight, I would not deny the plaintiffs standing on that ground. There is a discernible difference between a view that overlooks a landscaped, grassed and treed parkland (as the plan of management represents) and one which overlooks a bituminous area on which stand amusement rides. The significance and impact of that difference may vary from person to person. But the proximity of the plaintiffs' residences to the Luna Park site, and the circumstance that the Plan of Management described a layout and uses which gave their view and outlook particular characteristics, gives them a sufficient interest greater than that of members of the public generally, to confer standing on them. 3.5 Would injunctive relief be declined on discretionary grounds? 103 The defendants submit that having regard to the slight if any impact of the presence of the thrill rides on the amenity of the plaintiffs' properties apart from noise, the public and heritage significance of the operation of Luna Park, and the impact on the Park's revenue, injunctive relief should be declined as a matter of discretion. Against that, the plaintiffs submit that there is no evidence of hardship, no evidence that the rides in question (specifically the Ranger and the Spider) have any heritage significance, and a countervailing public interest in insisting on adherence to a Plan of Management which emerged from a process of consultation to control operations on a parcel of land of public significance. 104 I accept that, on the Crown Lands claim, it would be impermissible to take into account the noise occasioned by the thrill rides as a relevant discretionary factor. If the emission of noise were invoked as a reason for exercising the discretion to grant an injunction to restrain a breach of s 114, the proceedings would then become proceedings with respect to the emission of noise, barred by s 19A of the Site Act [see Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588, [22]-[23]]. 105 Nonetheless, had the Plan of Management excluded the operation of amusement rides in the Northern Extension and required that that area be landscaped parkland, and bound the defendants, I would not have declined relief on discretionary grounds. While it is relevant to have regard to the apparent disproportion between the likely financial impact on LPS of injunctive relief against the relatively minor detriment to the plaintiffs (apart from the impact of noise) from the location and operation of the rides in the Northern Extension, where the law imposes restrictions on the ability of a landowner to develop property, it does not readily permit the landowner to breach those restrictions – notwithstanding that the result would occasion little adverse impact to neighbours while conferring great benefit on the landowner. This is reflected in the approach of the court to the enforcement and modification of restrictive covenants. Where, as here, the Plan of Management emerged from a consultative process which purported to take into account the interests of residents, disproportion between the great burden of injunctive relief on LPS and its slight benefit to the plaintiffs (apart from questions of noise), would not justify declining injunctive relief, if the plaintiffs were otherwise entitled to it. 3.6 Conclusion on the Crown Lands claim 106 Crown Lands Act, s 114(2)(b), is directed to the Reserve Trust, and not to third parties (including operators or occupiers under lease or licence from the trust). In any event, the Plan of Management does not exclude the location and operation of amusement rides, including adult thrill rides, in the Northern Extension. Accordingly, the Crown Lands Act claim fails. 4.0 THE MISREPRESENTATION CLAIMS 107 The Trade Practices claim and the Negligent Misrepresentation claim have many common elements, including in particular the conduct said to be misleading (or to contain or convey the misrepresentations), as well as the issues of reliance and damage. 108 As to the 2001 DA, the plaintiffs plead that in it, Metro Edgley represented (a) that development consent was being sought for a safe enclosed children's rides area to be constructed in the playground to the north of Coney Island; and (b) that development consent was being sought for children's rides to be operated in an area to the north of Coney Island. They further plead that by lodging the 2001 DA, Metro Edgley represented that, if the 2001 DA was approved (c) a safe enclosed children's rides area would be constructed in the playground to the north of Coney Island; and (d) children's rides would be operated in an area to the north of Coney Island. They then plead that those representations were misleading and deceptive or likely to mislead or deceive, because "the Ranger, the Spider and other thrill rides [which were not children's rides] were to be operated in the area to the north of Coney Island during the approved opening hours of Luna Park". The plaintiffs further plead that the representations were "with respect to future matters" and that Metro Edgley did not have reasonable grounds for making them. 109 Glen Eight (but not the other plaintiffs) additionally alleges that representations (c) and (d) were made "from about June 2001 and continuously until about July 2002". 110 As to the 2002 DA, the plaintiffs plead that in it, Metro Edgley made representations (a) that development consent was being sought for a new children's playground to the north of Coney Island; (b) that children's rides would be operated in the children's playground; and (c) that the "Ranger" was a children's ride of the same character as the "U-Drive", the "Carousel", the "Space Shuttle", the "Magic Castle" and the "Mini-Ferris Wheel". They further plead that by lodging the 2002 DA with the Minister, Metro Edgley represented that, if the 2002 DA was approved (d) a new children's playground would be constructed to the north of Coney Island; (e) children's rides would be operated in the children's playground; (f) the children's rides would operate during "children's hours"; and (g) the "Ranger" was a children's ride of the same character as the "U-Drive", the "Carousel", the "Space Shuttle", the "Magic Castle" and the "Mini-Ferris Wheel" and would operate in the children's playground. The plaintiffs plead that those representations were misleading and deceptive or likely to mislead or deceive, because the "Ranger", the "Spider" and other thrill rides were to be operated in the Northern Extension during the approved opening hours of Luna Park and were not "children's rides" (and, that they were representations with respect to future matters, for making which Metro Edgley did not have reasonable grounds). 4.1 Misleading and deceptive conduct – the 2001 DA? 111 In considering whether the alleged representations were conveyed, the whole of the context, and the whole of the contents of the document, are relevant [Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, [40], [109]]. The 2001 DA, lodged by Metro Edgley with the Minister on or about 22 June 2001, was described as "Stage 1 Masterplan DA and Stage 2 DA for Phase C". It followed Metro Edgley's dissatisfaction with the conditions that had been attached to Council consent to DA 772/00. In the below extracts, italics represent my emphasis of the most significant parts: Several core aspects of Metro Edgley's masterplan proposal (including parking and building envelopes) were subject to conditions or were excluded from Council's consent for DA 772/00. The proposal described in this report addresses these conditions and exclusions and seeks the Minister's consent for a revised Stage 1 Masterplan DA. Unlike the proposal for DA 772/00, this DA excludes the two cliff top areas near the corner of Northcliff and Dind Streets (Lots 1259 and 1260) which may be the subject of separate DAs to the Minister at a later date. Consent is now sought for a 'staged consent' pursuant to section 80(4) of the Environmental Planning & Assessment Act 1979 (the EP&A Act). The staged DA comprises two parts: 1. Stage 1 Masterplan DA for the following parameters: – land uses; – building envelope; – 50 on-site car parking spaces for Luna Park accessed via Paul Street plus 48 on-site spaces for Luna Commercial (accessed via Glen Street); – vehicular and pedestrian access arrangements; – public domain plan; – noise levels; and – hours of operation. 2. Stage 2 DA for the detailed design of: – phase C – strata office building (Glen Street). … This report should be read in conjunction with the following supporting documentation. Appendix A and B are included in this volume (Volume 1). Appendices C to K are included in a separate Volume (Volume 2) to this report: · Masterplan Architectural Drawings No. MDA02 to MDA09 and dated June 2001 prepared by Hassell Pty Ltd (and an overlay of the plan of management building envelopes) included in Appendix A ; … · Heritage Impact Statement prepared by Heritage Consultants, Godden Mackay Logan included in Appendix E ; · Acoustic Report prepared by RFA Acoustic Consultants included in Appendix F ; … 112 In Part 6.0 (Design Strategy), section 6.1 (Elements of the Vision) included the following: The vision for Luna Park is built upon the following core elements. An evolutionary process This Stage 1 Masterplan DA continues Luna Park's evolution as an amusement park. It builds upon Luna Park's foundations as a family and tourist destination by expanding its unique attractions to include modern facilities. Throughout its history Luna Park has evolved to keep pace with the changing times and to maintain its popularity. Luna Park's evolution will continue without altering its essential amusement park personality . A greater range of entertainment and activities The fun 'n' games and loony appeal of Luna Park will be combined with a greater range of entertainment and commercial activities to broaden and strengthen the Park's commercial viability. … A good neighbour Removal of the Big Dipper, which is underway, is a deliberate and symbolic gesture of goodwill to the immediate residents of Milsons Point. Luna Park will work with these residents to create a harmonious neighbourhood for all . 113 Part 7 (The Proposed Masterplan Development) relevantly contained the following: This section describes the proposed masterplan development. It is based on plans and information provided by HASSELL Pty Ltd and Metro Edgley Pty Ltd. Appendix A provides reduced copy of Masterplan Drawings No. MDA01 to MDA09 and dated June 2001 and illustrative design material, showing indicative design concepts for the detailed design of the development all prepared by HASSELL Pty Ltd. 7.1 Overview The Stage 1 Masterplan DA seeks the minister's consent for the following parameters: · land uses; · building envelopes; · 500 on-site car parking spaces for Luna Park accessed via Paul Street plus 48 on-site spaces for Luna commercial (accessed via Glen Street); · vehicular and pedestrian access arrangements; · public domain plan (including the "Rides and Amusement Zone)); · noise levels; and · hours of operation. The Stage 2 detailed design of Coney Island (Phase A) and Crystal Palace (Phase B) has been approved. The Stage 2 detailed design of the Strata Office building (Phase C) is described at Section 8.0. The proposed masterplan development is described in detail below. 7.2 Land use, buildings and structures This Stage 1 Masterplan DA seeks approval for the use of Luna Park and its various buildings and structures for a range of 'generic' entertainment and amusement activities, including (but not limited to) functions, conferences, public and private gala events, entertainment events, performance events, sports events and exhibitions. The application seeks to gain an 'umbrella' approval for use of Luna Park and its various buildings and structures in the manner described. As a wide variety of uses are expected to occur within the Park over an extended period of time, it is not appropriate to provide specific details relating to each possible use. Instead, a set of generic parameters within which the anticipated uses of the site are most likely to occur is provided . These parameters set out basic standards, indicate likely levels and intensity of usage and establish 'ground rules' to which uses of the site will conform. A more detailed description of the proposed use of the various Luna Park buildings, structures and spaces is provided below. The key land uses, buildings, structures and spaces are identified on Architectural Drawing No. MDA02 included in Appendix A. … 7.2.6 Rides and amusements Key rides and amusements which give Luna Park its fun park image will be retained (with the exception of the Big Dipper) and be supplemented with new attractions . It is proposed that all public domain areas of the Entertainment Precinct and certain areas above building form a 'Ride and Amusement Zone', within which all existing open rides and amusements that do not have heritage significance may be replaced/removed or moved without the need to obtain the further development consent. The extent of the 'Ride and Amusement Zone' is shown on the Public Domain Plan (MDA06) at Appendix A. 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 . As previously stated, no rides of heritage significance will be replaced/removed without the separate consent of the Minister. A more detailed description of the existing rides and amusements to be retained, and new rides proposed, within the Ride and Amusement Zone follows. This list should be read in conjunction with Figure 21 which shows the proposed location of heritage rides to be retained (and in some instances relocated). 114 There followed a description of rides and amusements under the headings "Tumblebug", "Rotor", "Ferris Wheel", "Tango", "Mechanical music collection", "Side Shows", "Wild Mouse and Dodgem Cars", "Street entertainment", "Children's rides" and "Carousel". There is no reference to the Ranger, or any other adult thrill ride. Of the "Children's rides", it was said: Children's rides A safe enclosed children's rides area will be constructed in the Playground to the north of Coney Island . It is anticipated that many of the existing children's rides will be reused. 115 Plan MDA06 (Public Domain/Rides & Amusement Zones Concept Plan) depicted "hard paving – at grade ride and amusement zone location" over an area ranging from the Face through the Midway and extending north of Coney Island to include the Northern Extension. 116 Section 7.4 (Building envelopes) contained the following: The proposed building envelopes for the various new buildings and structures proposed by this DA are illustrated on Architectural Drawings No. MDA01 to MDA09 included in Appendix A. An overlay of the Plan of Management envelopes is also included (to allow for ease of comparison). 117 Section 7.8 (Public domain plan) included the following: The Public Domain Plan for the Stage 1 masterplan development is illustrated on Architectural Drawing No. MDA06 included in Appendix A. This plan also shows the 'Rides and Amusement Zone' (refer Section 7.2.6 for more information). As illustrated in Appendix A, the public domain proposal for the site comprises a range of hard and soft landscape areas. The heritage fig trees are not affected by this DA. Landscape enhancement is proposed on land to the north of Coney Island . A significant area of publicly accessible space will be provided within the Strata Office building (accessed from Glen Street), at the top of the proposed stair link to the Park. Shaded rest areas and outdoor seating areas are to be introduced within the amusement park. 118 Section 7.9 (Noise) relevantly included the following: The Luna Park Site Act 1990 (as amended) and its associated Plan of Management 1998 dictate that the Park is to continue in its operation as 'a viable and successful amusement park …', 'to allow for the re-use of existing rides …' and particularly those heritage listed rides such as the Wild Mouse. However noise levels from these rides; especially the cries, screams and laughter of patrons on the ride; will exceed the 60dBA set by Council. This should be recognised in any condition of consent related to noise . This Stage 1 Masterplan DA proposes that during the approved hours of operation for the rides, a noise limit be set that allows for noise emissions that are generated by happy patrons enjoying the rides as they have done since the park's opening in 1935. Good management practices will be employed to encourage patrons to behave responsibly and quietly when leaving the Park, but such management practices cannot (and should not) be enforced to make patrons quiet while on rides. Such practices would include directing all patrons to leave via the Luna Park Face late at night. 119 The DA proposed hours of operation for external rides and amusements from 10am to 10pm Sunday to Thursday and 10am to 12 midnight Fridays and Saturdays. 120 Plan MDA09 (Luna Park Concept Plan), which was marked "For Information Only", depicted various rides located between "the Face" and Coney Island, consistent with the description in section 7.2.6; and in the Northern Extension it contained some sketchings, marked "Children's Rides". 121 Appendix E, the Heritage Impact Statement prepared by Heritage Consultants, Godden Mackay Logan, was contained in Volume 2. Section 2.5 (Metro Edgley scheme) gave an outline of "the current Metro Edgley scheme for Luna Park" to retain and improve existing buildings and the majority of rides and amusements. It contained the following: There are a series of changes proposed to the Midway, which include the removal of the Big Dipper , the construction of the Luna Circus and removal of the existing Midway structures. The Luna Circus has been designed to assist in defining the Midway as a lively public space. The design for the Wild Mouse façade and the new café and restaurant to the south of Crystal Palace will be transparent to allow views from the Midway to the Harbour. The centre of the Midway will be an open promenade, which will provide views along the Park to both Coney Island and the Face. Some existing rides, including the Rotor and UFO, will be relocated. The Spider, Ranger and Octopus rides will be removed . 122 In Part 3 (Overall Metro Edgley proposal) appears the following: 3.2.2 Public Spaces The Midway is the traditional heart of Luna Park, and provides changing vistas in each direction along the route. A series of smaller public spaces opening off either side of the Midway will provide the opportunity for the fun park activities associated with Luna Park. A new park to the north of Coney Island will extend the activity, creating a more open Playground for children's rides and family picnics . 123 Figure 3.1 (Luna Park – Heritage Aspects of the Metro Edgley project) was based on MDA09 and depicted children's rides in the Northern Extension, with the additional annotation "Children's rides: relocated, remain as traditional activity". 124 Section 3.3 (Coney Island) was as follows: Coney Island is to be retained in all its classic fun park glory. Alterations and additions have been approved by North Sydney Council for the northern side of Coney Island, with the interior of the existing heritage building remaining unchanged. The alterations and additions of the northern side of the building will enable more interaction between Coney Island and the Children's Playground to the north. 125 Also in Volume 2 was Appendix F, the Acoustic Report prepared by RFA Acoustic Consultants. It noted that an important component in the revitalisation proposal for Luna Park would be a noise management strategy designed to facilitate the control of potential for noise nuisance from Luna Park. It observed that the development plan included a number of components, including "children's rides", and reported that the most significant environmental noise sources had been observed to be: 1. The roller coaster when running – mostly occupant noise 2. Noise from patrons whilst on the rides 3. The Wild Mouse when running – significant mechanical noise with occupant noise 4. The Ranger 5. Noise from guests whilst in the park, engaged in animated conversation and partying 6. Mechanical noise associated with some of the rides. Noise generated by the Octopus has not been identifiable as a dominant noise source. It is likely that the mechanical noise from Octopus is comparable with that of the Ranger . 126 Table 2 tabulated existing Luna Park source sound power levels, showing the Roller Coaster at 120-125dBA, patron noise ranging between 85-125 depending on the crowd size, the Wild Mouse at 117, the Ranger at 113, the Tango at 112, the Spider at 112, the Octopus at 105, and "kiddies rides" at 85. In listing outdoor noise sources included within the redevelopment, it did not refer to the Ranger or the Octopus (presumably on the understanding that they were to be removed). The conclusion included the following: The report identifies, and seeks to quantify, the potential impact associated with the major noise producing sources that will be present when Luna Park is redeveloped. The investigation concludes that noise associated with the facilities can be maintained at levels that are acceptable for both Luna Park site and its immediate environs. The report offers technical explanation for the vigorous community complaint generated during the recent previous operation of Luna Park, primarily associated with the roller coaster. The report also notes that, while some relatively noisy heritage amusement attractions will remain as part of the revitalised operation, these are an intrinsic component of Luna Park. The report concludes that, with appropriate management, these attractions will be a positive and essential facet of the revitalised Luna Park development . 127 The Minister's consent, given on 31 January 2002, included the following: 85. The Stage 1 development consent must be in accordance with Development Application No 154-06-01, submitted by Metro Edgley Pty Ltd, and 'Development Application Statement of Environmental Effects to Minister for Urban Affairs and Planning', including consultant reports, prepared by JBA Urban Planning consultants Pty Ltd dated June 2001, drawings numbered MDA01-MDA08 dated June 2001, and amended drawings numbered SK276715A dated 20 September 2001, prepared by Hassell Pty ltd, as amended by the following conditions. … 87. Approval of the Stage 1 development consent does not imply that any subsequent development application lodged in accordance with this Stage 1 development consent will necessarily be acceptable, as a full and thorough assessment under the provisions of the Environmental Planning and Assessment Act 1979 will be required at the time. 88. No consent is granted or implied for the 'River Caves Ride' and the drawing number MDA09 'Luna Park Concept Plan', prepared by Hassell. A detailed design of layout rides shall be the subject of a separate development application . 128 Did Metro Edgley, by lodging the 2001 DA, make the representations alleged? 129 Representations (a) and (b), as pleaded (see [108] above), relate to the scope or subject matter of the DA. As the defendants submit, it is difficult to see how these alleged representations can go anywhere: the scope of the consent sought by the 2001 DA is a matter of construction of that DA; either the DA did or did not seek consent for children's rides in the Northern Extension; if it did, then the representation was true; if it did not, then the representation was not made. Because the scope of the consent sought in the DA is a matter of construction of the DA, it cannot be falsified by the DA itself. An application for consent cannot misrepresent the nature of the consent it seeks. The pleading seeks to attribute the character of a representation to conduct that is not representational. 130 In any event, the 2001 DA did not seek consent for children's rides in the Northern Extension, and did not contain or convey a representation to that effect. The 2001 DA invoked a staged development approval process under Environmental Planning & Assessment Act, s 80(4) and (5), comprising a Stage 1 (masterplan) development application and subsequent Stage 2 development applications for the detailed design of the several phases of the proposed development. The Stage 1 (masterplan) development application (in the 2001 DA) sought consent for a number of ground rules to govern subsequent envisaged Stage 2 applications. It did not seek approval for specific works and activity, but for a set of rules, in respect of land uses, building envelopes, on site car parking, vehicular and pedestrian access, public domain plan (including the ride and amusement zone), noise levels and hours of operation. Relevantly, it sought approval for the concept of a Rides and Amusement Zone, within which rides could be placed. Section 7 of the DA, together with plan MDA06, defined the nature and scope of the consent being sought, which included the Northern Extension within the Rides and Amusement Zone. The DA did not seek approval for the location or operation of particular rides, a children's playground, or a zone for children's rides. Although MDA09 accompanied the DA, it was "for information only", not for approval; it represented no more than one possible configuration, consistent with the ground rules for which approval was sought (as appears from the reference, in the introduction to section 7.0, to "indicative design concepts", as well as from the title of drawing MDA09 "Luna Park Concept Plan (For Information Only)" – unlike MDA06, which described the Rides and Amusement Zone, for which approval was sought. 131 Accordingly, the representations (a) and (b) were not contained in, nor conveyed by, the 2001 DA. 132 Representations (c) and (d), as pleaded (see [108] above), pertain to the layout and operation of the Northern Extension, if consent were given. On its face, and as the pleading itself alleged, they are representations as to future matters, namely what would happen in the future in the event of consent being granted. 133 Lodging a development application does not import a representation that the applicant will undertake the development in question if consent is granted. A development application is an application for permission – or consent – to do something that otherwise would be prohibited by law [Environmental Planning & Assessment Act 1979, ss 76A, 76B]. The lodging of a development application conveys no commitment on the part of the applicant to proceed with the development if consent is granted. A consent may (and often if not usually does) involve the imposition of conditions, which may or may not be acceptable to the applicant. It is open to the applicant to amend the application, or withdraw it, or (notwithstanding having obtained consent) to submit another development application for a different development, or to do nothing at all. The granting of development consent, let alone the making of a development application, does not involve any obligation to implement the consent, nor any representation that, if consent is granted, it will be implemented. Lodging a DA involves no more than applying for permission to do something that would otherwise be prohibited, which if consent is granted the applicant may or may not ultimately choose to do. 134 I am therefore quite unable to accept that by lodging the 2001 DA, Metro Edgley represented that, if the 2001 DA was approved, a safe enclosed children's rides area would be constructed in the playground to the north of Coney Island; or that children's rides would be operated in that area. The statements contained in the DA were not representations as to what would happen if the DA were approved, but (at the highest) a description of the scope of activity for which permission was sought. 135 However, the plaintiffs contended that the pleaded representations were representations as to Metro Edgley's then intent or proposals – that is, representations of a present state of mind, rather than as to future matters. There was considerable debate as to whether it was open on the pleadings for the plaintiffs to contend that the deceptive conduct on which they relied was a misrepresentation of Metro Edgley's intentions at the time of lodgement of the development application. The representations were not pleaded as representations of intention. However, the basis on which they were said to be misleading and deceptive was particularised as the circumstance that "adult thrill rides were to be operated in the area to the north of Coney Island". 136 In opening, and in their closing submissions, the plaintiffs' counsel elaborated that their case was that the express references to children's rides were misleading, because they would have induced in the reader the erroneous state of mind that there would be a children's ride area containing children's rides and nothing else in the Northern Extension, whereas adult thrill rides were to be operated in that area. Thus in the course of his opening, Mr Alexis SC said: So, what follows of course is that insofar as this development application was seeking approval for land use in relation to only children's rides north of Coney Island, there is no reference to any thrill rides or large existing rides being located or operated to the north of Coney Island. There is no reference to the Ranger and no reference to the Spider. It would be our contention that any reference to the Ranger or the Spider or other thrill rides would be quite antipathetic to what is put in relation to the rides proposed for the north of Coney Island because it is supposed to be a safe and enclosed children's ride area in a playground. … When one looks at these plans, one gets into mind what is said on page 49: A more detailed description of the existing rides and amusements to be retained, and new rides proposed … Each of those rides is set out and there is not a word about a thrill ride. We then come back to page 54 which speaks about the public domain plan, paragraph 7.8, and it tells us that the public domain plan is illustrated on MDA06. Your Honour sees that 'this plan also shows the 'rides and amusement zone' … as illustrated in Appendix A, the public domain proposal for the site comprises a range of hard and soft landscape areas. The heritage fig trees are not affected by this DA'. Then there is a reference to the noise and without taking your Honour through it in detail, the point seems to be in the last paragraph that some good management practice would be employed to encourage patrons to behave responsibly and quietly when leaving the park late at night. If one was to consider noise which historically had been a problem in relation to patrons enjoying themselves on thrill rides, one would have expected to see reference to this dealing with noise. … Again these are references to 'a major noise source … and other things'. Then it says over on page 89: 'outdoor noise sources …', and we travel through the rides referred to and your Honour sees half way down the children's rides but no reference to the Ranger or the Spider or the rides noted by the acoustic consultant as providing a previously existing source of noise. … So, your Honour, we have here a plain expression with respect to the location and operation of the large existing rides in addition to the very popular children's rides being located, relocated to an area immediately north of Coney Island. Now, when one simply looks at this document [the Winchester memorandum] which of course was information that was provided to a target market of investors and one seeks to contrast it against the development application, one sees that both documents were identical in the sense that they both contained the pull out plan which identified the children's rides north of Coney Island. The development application made plain in the text the children's rides were proposed to the north of Coney Island. What the development application did not do and what this memorandum made plain to prospective investors was that in addition to the very popular children's rides, there would be the larger existing rides located in that area as well. 137 I am mindful that counsel for the defendants made significant forensic judgments based on the pleading as it stood, but ultimately, reading the pleading as a whole – especially the framing of the particular to paragraph 4.3 (that thrill rides "were to be operated") – and having regard to the plaintiffs' opening, it does not give an unduly or unfairly generous construction to the relevant parts of the pleading to read them as alleging that the misleading and deceptive conduct lay in failing to disclose, in the context of an announcement in the 2001 DA of a proposal to locate children's rides in the Northern Extension, the existence of a proposal to locate adult thrill rides there. Treating the pleading as the plaintiff would have it – alleging that the misleading and deceptive character of the 2001 DA lay in its non-disclosure of an extant proposal (at the time of its lodgement) to locate thrill rides in the Northern Extension, when express reference was made to children's rides in that area – involves no injustice to the defendants, as reading the relevant paragraphs of the pleading together, that is clearly enough what was intended. In other words, the plaintiffs' case was that, having embarked on the territory of the potential use of the Northern Extension for children's rides, it was misleading or deceptive to refrain from disclosing a proposal to locate and operate adult thrill rides there. 138 However, there are multiple reasons why the 2001 DA was not misleading and deceptive in that way. 139 The first is that the purpose of a DA is such that it cannot reasonably be expected that it will disclose potential uses of the site other than that for which approval is sought. Whether a DA is misleading by omitting reference to a proposed use must be judged in the light of the legal purpose of a DA, which is to obtain permission for a specified use or activity which would be otherwise unlawful. Obligations in connection with development applications to undertake notification of and consultation with neighbours, and public exhibition, are imposed, not on the applicant, but on the consent authority [Environmental Planning and Assessment Act, ss 79, 79A, 79B]. Moreover, those obligations to notify and exhibit a development application and consult are imposed for the purpose of allowing neighbours to object to the proposal and have their representations taken into account in the development approval process, not for the purpose of permitting potential purchasers or developers to inform their commercial decisions by reference to what is proposed in the development application. The legal purpose of a DA does not include advising potential purchasers and developers of proposals for the use of the subject land so as to inform their decisions. 140 The plaintiffs' submission – that "a DA is no different from any statement as to future conduct. It can only be a statement as to present intention to do an act, which might change. The question is, at the time the representation was made, did the Defendant have a reasonable basis for making the representation" – is incorrect, for four reasons: (1) a DA is not a representation as to future conduct, but an application for permission, which does not involve any representation that the activity for which permission is sought will be conducted; (2) nor is it a statement as to present intention to conduct the activity for which permission is sought – as is illustrated by Glen Eight's own DA for residential conversion, which it made without necessarily intending to implement it, but to "test the water"; (3) a representation as to present intention is not a representation as to future conduct; and (4) in respect of a representation as to present intention, no question of reasonable basis arises, the question is simply whether or not the intention was then held. 141 Thus, the purpose of the 2001 DA was not to represent what activity would take place on the Luna Park site, but to seek permission for certain parameters for development. Its legal purpose was such that it could not reasonably be expected to disclose all the potential uses which Metro Edgley might contemplate in the future for Luna Park; it only had to refer to those uses for which approval was then sought. This is all the moreso given that it was a Stage 1 Masterplan in a staged development process, which necessarily contemplated further DAs for the conduct of specific activities. 142 The second is that, read fairly as a whole, the 2001 DA does not exclude the possibility that rides other than children's rides would be located in the Northern Extension. The 2001 DA was prepared and lodged for a specific purpose, namely as part of an application for staged development consent by Metro Edgley for the Luna Park site. When regard is had to the whole of the 2001 DA, bearing in mind that it was a Stage 1 masterplan DA, it did not convey even an intention, let alone a commitment, to operate children's rides, to the exclusion of adult thrill rides, in the Northern Extension. As has already been pointed out, it proposed a "ride and amusement zone" covering the public domain areas of the entertainment precinct, within which all existing open rides and amusements not having heritage significance could be replaced, removed or moved without the need for further development consent. That zone was shown on MDA06 as including the Northern Extension. The description of the children's rides area did not exclude all other activity from the Northern Extension; it was proposed that they would be "in" that area, but not necessarily exclusively occupy it. There was plain reference to the need for "flexibility in the location of rides", and permission was expressly sought for an arrangement that would permit rides to be added, substituted and moved throughout the "rides and amusement zone", which included the Northern Extension. The stated objective of extending the amusement park area to provide additional opportunities for rides, the reference to the need for flexibility in the location of rides, the concept of a Rides and Amusement Zone (including the Northern Extension) within which all existing open rides without heritage significance may be replaced, removed or moved without the need for further development consent and new open rides may be provided from time to time, together convey the possibility that rides of any description might be placed in the Northern Extension. The proposal to locate children's rides in that area did not exclude the possibility that something else might be located there: the 2001 DA did not propose that only children's rides be located in the Northern Extension; it proposed that children's rides, in an enclosed area, would occupy part of that area, which remained part of the Rides and Amusement Zone, in which other rides could be relocated and which was to be subject to a further (stage 2) DA. If the statement about children's rides stood on its own, absence of the word "only" might well not have saved it; but appears not on its own but in the context of the proposed Rides and Amusement Zone extending into the Northern Extension. 143 The third is that the evidence does not establish that, when the 2001 DA was lodged, Metro Edgley had any proposal to locate adult thrill rides in the Northern Extension. The plaintiffs attempted to sustain an inference to the contrary from the accumulation of a number of matters: · Metro Edgley was in increasing financial difficulty and its viability depended on obtaining a development consent for Luna Park; · Metro Edgley knew that noise generated by amusement rides was an issue which would attract objections and thus impact on its ability to gain development consent; · by September 2000, Metro Edgley had decided not to sell but to retain the "thrill rides" including the Ranger for relocation in the redeveloped Luna Park; · by late 2000, Metro Edgley was arguing that the park could not operate under existing noise controls, in support of which it used an acoustic report which referred, inter alia, to the Ranger; this would only have been relevant if there were an intention to retain the Ranger; · simultaneously with its decision to retain the thrill rides, Metro Edgley decided to change the proposed use of the cliff top site from serviced apartments (residential) to strata offices (commercial); · by the time of the 2001 DA, the only available site for their location and operation was the Northern Extension; · in August 2001, the Winchester Group issued an Information Memorandum for fundraising purposes which expressly stated that a number of the larger existing rides as well as the popular children's rides would be relocated to the Northern Extension, and there is no evidence to suggest that this was a decision made after lodgement of the 2001 DA on 22 June 2001 but before issue of the Information Memorandum in August. 144 I accept that Metro Edgley's viability depended upon obtaining development consent, that delay in doing so was causing it increasing financial pressures and difficulties, that the revenue generated by rides was perceived as one means of ameliorating this, and that Metro Edgley and its officers were well aware that the noise generated by rides was an issue which would potentially attract objections and further delay or frustrate its endeavours to obtain a development approval which would permit the commercially viable operation of the park. However, I do not accept that the more probable explanation of the evidence is that by June 2001 Metro Edgley had decided to retain the thrill rides and locate them in the Northern Extension. For the reasons that follow – which address the main matters invoked by the plaintiffs in this respect, but does not purport to refer to every note on which they placed reliance – I consider that while retention of some of the thrill rides was a possibility in Metro Edgley's mind by June 2001, it had made no firm decision which rides it would retain, nor where they would be located, except that such as were retained would be located somewhere in the Rides and Amusement Zone described in the 2001 DA. 145 Even before it finalised the purchase of the rides from the Reserve Trust, Metro Edgley had decided to sell of them – including the Ranger, the Flying Saucer (also known as the UFO), the Octopus (also known as the Polyp), the Whirly Wheel (also known as the Mini Ferris Wheel), the Merry-Go-Round (also known as the Carousel), and the Big Dipper (also known as the Roller Coaster) – and by late July 1999 was consulting Mr Terry Cartlidge, of Leisure & Recreation Australia Pty Limited, whom it subsequently retained to find purchasers for the rides. At least at that stage, it is plain that it was Metro Edgley's intention to sell the thrill rides, which were then located in the south eastern corner of the park, by January 2000. 146 As at August 1999, the proposed use of the cliff top site, on which Milsons Landing was later built, was as an apartment hotel, as reflected in the Agreement for Lease. 147 From September 1999, Metro Edgley operated Luna Park as a venue for corporate functions. 148 The rides were advertised for sale in October 1999. In the same month, Metro Edgley received an offer to purchase the Ranger, and a sale agreement was prepared. An offer was also received in respect of another thrill ride, the Octopus. However, the sale of neither of these proceeded (although one of the children's rides – the train – was sold in about November 1999). 149 Luna Park was opened to the public between 6pm and 1am on New Year's Eve 1999, and between 8 January and 30 January 2000. Metro Edgley formed the intention to open the park each weekend that year, and Luna Park was advertised for reopening on weekends and public holidays for the remainder of 2000. The rides were retained and maintained for that purpose, and initial plans to remove the Big Dipper did not proceed in January 2000. The park opened every weekend (and daily in school holiday periods) between 18 March 2000 and 28 January 2001. On 28 January 2000, Metro Edgley instructed Mr Cartlidge that negotiations to sell all the rides originally identified for sale should continue, but with a timetable to commence dismantling or removal in early February 2001. Metro Edgley's intention remained to sell the thrill rides in due course once the park closed for redevelopment, but to exploit them in the meantime. 150 The operation of certain of the rides – and in particular the Ranger, then located in the south eastern corner of the park – during this period attracted complaints from some neighbours, but was financially a success for Metro Edgley, at a time when its plan were being delayed, jeopardising its commercial viability. 151 In March 2000, Metro Edgley's architects Hassell Pty Ltd prepared plans for a Stage 1 Development Application for approval for land uses, building envelopes, parking numbers, hours of operation and certain other aspects, including a "Public Domain Concept Plan" which depicted the Northern Extension as "hard paving". The DA (772/00) was lodged on 24 April, accompanied by the two alternative carpark DAs (773/00 and 774/00). The DA proposed a Rides and Amusement Zone within which existing non-heritage rides could be replaced or removed without further approval. 152 A draft "Client Brief" of 19 April 2000 contained, under the heading "Amusement Park": To maintain the integrity of Luna Park it will first of all be necessary to maintain and enhance the traditional and heritage rides while at the same time providing the space and infrastructure to introduce new rides to the Park, especially at school holiday time. The following rides will be retained: Tumble Bug, Ferris Wheel, Tango, Rotor, Dodgems, Wild Mouse and Coney Island. The following rides will be introduced to Luna Park: River Caves, Carousel and Central Plaza Slippery Dip. It will also be necessary to provide hard stand areas particularly to the north of Coney Island to accommodate portable rides from time to time . 153 This is the single strongest piece of evidence favouring the plaintiffs' case; but it indicates only a contemplation that from time to time – for example during school holidays – portable rides might be accommodated in the Northern Extension, and that for that purpose it would be necessary to pave that area (unlike other possible locations for such rides south of Coney Island, which were already hard paved). This is entirely consistent with the concept of a Rides and Amusement Zone within which rides could be relocated, extending to the Northern Extension. The Ranger was still on the market for sale. 154 In July 2000, in connection with raising finance for the project, the Winchester Group issued its first Equity Information Memorandum, which stated: All of the key rides and amusements (except the Big Dipper) which give Luna Park its fun park image, will be retained and supplemented with new attractions. These include Coney Island, the Wild Mouse, Dodgem Cars, Tumble Bug, Rotor, Ferris Wheel and Tango. 155 This did not refer to the thrill rides – such as the Ranger, the Spider or the Octopus, which were not heritage rides; the rides to which it does refer were listed in the 2001 DA with locations elsewhere than in the Northern Extension. It does not support any inference that there was an intention to retain the thrill rides and locate them in the Northern Extension. 156 At a Development Control Group meeting – comprising representatives of Metro Edgley (including Mr Hearne and Mr Doughty), Multiplex and the Winchester Group – on 31 July 2000, consideration was given to investigating whether the cliff top site could be used for strata offices rather than serviced apartments. But at another such meeting on 7 August, it was proposed to change the serviced apartments to residential use. 157 During 2000 Metro Edgley undertook maintenance work on some of the thrill rides. Contrary to the plaintiffs' submissions, this does not bespeak an intention to retain those rides permanently for use in the redeveloped park; it is at least as consistent with their maintenance for continued use during 2000, and for sale in good condition at the end of that period. 158 In August 2000, Metro Edgley learned of a possibility of swapping the Ranger for another operator's Wild Mouse ride over the long school vacation. Metro Edgley also considered the possibility of hiring rides to other operators, in order to gain increased revenue rather than using them only on weekends at Luna Park. Instructions were given to Mr Cartlidge (emphasis added): In respect of the other rides [than the Big Dipper] such as the Octopus, Flyer Saucer, Ranger and Merry-Go-Round, I have to advise that we are now withdrawing them for sale until further notice. It is disappointing that no sales have been realised in the twelve months they have been on the market but at this time it is now in our interests to retain them. 159 While, as the defendants submit, that does not necessarily involve permanent retention, I accept that from this point retention of some or all of the thrill rides for operation in the redeveloped park was at least a possibility so far as Metro Edgley was concerned. However, it does not mean that Metro Edgley then had to address where those rides would be located in a reopened Luna Park. They were then in the south-eastern corner, and the plan for a carpark in that area (which would require relocation of the rides) had not yet been developed. And there was already the general concept of a Rides and Amusement Zone within which rides might be relocated from time to time. 160 By 20 September 2000, instructions were being given for the preparation of draft plans for strata offices for Milsons Landing. Although the plaintiffs suggest that the coincidence of this with the decision to take the thrill rides off the market is telling – because thrill rides located in the Northern Extension would be inimical to a residential or serviced apartment use of Milsons Landing – that submission is deprived of much force by the circumstance that strata offices had been considered as an alternative to serviced apartments as early as 31 July 2000, when the rides were still on the market, before residential use was considered. 161 In October 2000, action was taken to renew the WorkCover certificates in respect of some of the rides (which were due for renewal), until January 2001. As these rides were being used at weekends and during vacations pending redevelopment, such certificates had to be renewed. Their renewal to January 2001 says nothing of any intention permanently to retain the thrill rides. 162 In a letter to the Reserve Trust of 24 November 2000, Mr Hearne observed that it now appeared that the park when operating normally could not comply with the proposed 65dBA noise limit. It is true that the supporting acoustic report refers, inter alia, to the Ranger, but it did so to support the argument against such a condition, on the basis that Luna Park never had and could not operate within such a limit. It does not follow that it reveals an intention to retain the Ranger – indeed it enclosed a draft response to North Sydney Council, asserting that the Ranger created no greater problem than any other item normally operating in the Park. Nonetheless, I accept that retention of some thrill rides was by this stage a possibility. 163 In December 2000, Mr Terrey of Metro Edgley sent an email stating that some of the rides – including the Ranger, the Spider and the Octopus – "maybe available for a twelve month period from early 2001". In December 2000 and early 2001, Metro Edgley received an offer from a Mr Wittingslow to lease the Ranger for a 15 month period, and a conversation between Mr Hearne and Mr Wittingslow suggested a possibility of a sale upon completion of the lease. Subsequently, an offer to lease the Ranger, for a 15 month period from 1 February 2001, was received, and a draft agreement was prepared, which provided for the return and re-erection of the ride at Luna Park at the end of the lease. While this is consistent with an intention to retain the Ranger at Luna Park on re-opening, it is also consistent with a desire on the part of Metro Edgley to obtain revenue from the amusement rides by leasing them if they could not be sold, and not having yet finally determined which rides it would ultimately retain for operation in the park when it reopened, and in particular whether or not it would retain the Ranger; in any event it does not suggest that any decision to relocate such rides as might be retained had been made. 164 On 30 January 2001, Mr Hearne "agreed that all rides need to be maintained and continue to be in registration" and "stated that we should pursue all avenues to generate income from our rides in off-site locations", and that a possible list was to be prepared. On 2 February 2001 Metro Edgley sent a letter to the Royal Agricultural Society stating "we are flexible as to the arrangements and how these rides may be utilised by interested parties". Again, all this is consistent with Metro Edgley having in mind the possibility of retaining some or all of the thrill rides, but having made no final determination as to which if any would be used in Luna Park when it reopened. It does not support any inference that there had been consideration of their relocation. 165 On 1 April 2001, Mr Cartlidge advised that some of the rides should be removed before any work started on the Big Dipper, and thus that the Ranger, the Spider and the Children's Rides should be placed in storage. Recognition of the possibility that some of the existing rides might have to be removed and placed in storage before the Big Dipper could be dismantled does not mean that it had been determined ultimately that those rides would be permanently retained, or where they would be located. (In fact, neither the Ranger nor the Spider was ultimately removed for the dismantling of the Big Dipper). 166 By 5 April, Mr Hearne had formulated the proposal to construct a carpark in the south-eastern corner of the park, in the area occupied by the Tumble Bug, Ranger and Spider. Although the plaintiffs submit that it must then have been obvious that the Northern Extension was the only place to which they could be relocated, that assumes at least a decision to retain specific rides and attention to where they could and would be located, which the evidence does not establish had yet occurred. 167 In the course of preparation of the 2001 DA, consideration was given to proposing a condition that permitted noise from traditional rides during approved operating hours up to 80 dBA. This reflected the historical noise level generated by rides, including the Ranger, at the park; it does not necessarily mean that there had been a decision to retain the Ranger, let alone to locate it in the Northern Extension. A draft acoustics report dated 28 May 2001, prepared in connection with the 2001 DA, observed: It is instructive to note that, of the three noisiest rides sources identified in 7.2, two will be eliminated from the site under the redevelopment plan. 168 The two rides in question must have been the Rollercoaster and the Ranger. This sentence was not included in the final version of the acoustics report contained in Annexure F to 2001 DA. The plaintiffs submit that its removal from the final version shows that the Ranger was not eliminated from the redevelopment plans, but as on any view it remained the case that the Rollercoaster was to be removed, and as in the final version a list of outdoor noise sources included in the redevelopment did not include the Ranger or the Rollercoaster, it is difficult to give this much significance. 169 Because the 2001 DA was a Stage 1 Development Application, it was unnecessary for any final decision to be made, when it was lodged on 22 June 2001, as to the intended location of all rides. As has already been pointed out, it did not seek approval for the location of specific rides, seeking to maintain flexibility by allowing for existing and new rides to be moved around in the proposed Rides and Amusement Zone, and although including an indicative possible layout of the proposed development (MDA09), approval was not sought (nor given) for it and it was expressly stated to be "for information only". The new proposal for a carpark in the south-eastern corner meant that the rides located there, including the Ranger, would have to be moved. The 2001 DA proposed that the Rotor and the Tumble Bug would be relocated to sites south of Coney Island. The main part of the DA was silent as to the Spider, the Ranger and the Octopus, although the Heritage Impact Statement annexed to it stated that they were to be removed. But assuming, as I am inclined to think, that retention of the Ranger was at least a possibility at this stage, it does not follow that a decision as to its ultimate location was then called for, beyond the idea that it would be somewhere in the proposed Rides and Amusement Zone – which included, but was not limited to, the Northern Extension. 170 Metro Edgley's architects Hassell Pty Limited, who drafted the DA and prepared the plans in it, produced on subpoena a document entitled "Power Requirements and Location of Rides" which records the "new location" of the Ranger (and the Octopus) as north of Coney Island. It is undated, and while it appears in the bundle of documents produced sequentially after the Heritage Plan dated 19 April 2001, there is nothing that enables its date to be fixed, save that it was faxed by Mr Hearne to Hassells on 14 March 2002; I am unpersuaded that it was generated before July 2001 at the earliest. 171 While I bear in mind that, where Metro Edgley's relevant officers have not given evidence, the court is entitled to be bold in drawing adverse inferences where there is some basis for them, to my mind the more probable explanation of the evidence before the court in this respect is that, while from about September 2000 retention of some or all of the thrill rides for use in the redeveloped park was a possibility, no decision had been made on the subject, and no consideration was given to their location if retained (it being unnecessary to advert to the topic until the carpark was proposed for the south-eastern corner in April 2001); in the course of preparation of the 2001 DA in May and June 2001, some attention was given to relocation of certain of the rides then in the south-eastern corner, and there was some vacillation as to whether or not the Ranger, the Spider and the Octopus would be retained; but in any event, given the concept of Rides and Amusement Zone, it was unnecessary to consider in any further detail where they might be relocated if retained. 172 This view is fortified by events that occurred after lodgement of the 2001 DA. On 2 July 2001, at a Metro Edgley management meeting at which Mr Hearne and Mr Doughty were present, it was agreed that a separate meeting would be held on 5 July to discuss the proposed layout of all rides, which would enable preparation of a maintenance program to be completed prior to the park's reopening. This is the first reference, in the many volumes of minutes produced, that contemplates a decision as to the location of all rides in the redeveloped park. Although the plaintiffs submitted that "layout" was different from "location", there is no substance in this. Not only is there is no evidence that prior to this time Metro Edgley had determined which rides would be retained in the redeveloped Luna Park, or where they would be located in it; this is positive evidence that the location of the rides within the proposed Rides and Amusement Zone was to be considered on 5 July. There is no record of the 5 July meeting, but in August 2001, the Winchester Group – in order to assist raising finance for the project – prepared a second "Equity Information Memorandum", which stated: A number of the larger existing rides as well as the very popular children's rides will be relocated to an area immediately to the north of Coney Island. 173 That memorandum is the first clear indication of a proposal to locate thrill rides in the Northern Extension. It was drafted during July/August 2001, after the lodgement of the 2001 DA. On 17 August 2001, a plan – which appears to be an amended version of MDA09 – was prepared, showing the addition of the Spider on the Big Dipper slab to the south of Coney Island, and hand-drawn circles in the Northern Extension, which do not appear to correspond to any particular rides but suggest consideration of the availability of space for rides in the Northern Extension. And on 8 October 2001, Mr Hearne confirmed that "current plans have all existing rides, plus a new Carousel to remain as rides attractions". There is nothing to suggest that these plans predated July 2001; it is more likely (given the context of the minutes in which the note appears) that this was a recent decision. 174 By August 2001, Metro Edgley had formed an intention to locate adult thrill rides – in particular, the Ranger and the Octopus and possibly the Spider – in the Northern Extension. However, there is no basis for concluding on the probabilities that prior to July 2001 Metro Edgley had decided to locate large thrill rides such as the Ranger, the Spider or the Octopus in the Northern Extension. Contrary to the plaintiffs' submission that there is no evidence to suggest that this was a decision made after lodgement of the 2001 DA on 22 June 2001 but before issue of the Information Memorandum in August, the minutes of 2 July and the subsequent Winchester Memorandum, in the context of the course of Metro Edgley's dealings with the rides, point quite strongly to that decision having been made at or following the meeting proposed for 5 July 2001. I therefore do not accept that Metro Edgley had any such proposal when it lodged the 2001 DA on 22 June 2001; at the highest, retention of some of the thrill rides was a possibility, but their future location was undecided, beyond that they would be in the Rides and Amusement Zone, disclosed in the 2001 DA, which included but was not limited to the Northern Extension. 175 Accordingly: · The pleaded representations were not conveyed by lodgement of the 2001 DA; · The purpose of the 2001 DA was such that it could not reasonably be expected to disclose all the potential uses to which Metro Edgley might in the future put Luna Park; · Read fairly as a whole, the 2001 DA does not exclude the possibility that rides other than children's rides would be located in the Northern Extension; · The evidence does not establish that, when the 2001 DA was lodged, Metro Edgley then proposed to locate adult thrill rides in the Northern Extension; · Metro Edgley therefore did not engage in misleading and deceptive conduct lay by failing to disclose a proposal to locate adult thrill rides in the Northern Extension, in the context that a proposal to locate children's rides in that area was disclosed. 176 Accordingly, Metro Edgley did not engage in misleading or deceptive conduct by lodging the 2001 DA. In order to be misled by the 2001 DA in the manner for which the plaintiffs contend, it would be necessary to read it selectively (disregarding the reference to the Rides and Amusement Zone), and divorced from its purpose and context (as a Stage One application for permission to conduct certain activity). 4.2 Misleading and deceptive conduct – the subsequent silence case? 177 Glen Eight alleges that "from about June 2001 and continuously to July 2002" Metro Edgley represented to it that a safe enclosed children's rides area would be constructed in the "playground" to the north of Coney Island, and that children's rides would be operated in that area if the 2001 DA was approved and following its approval. This "continuing" representation is said to arise from Metro Edgley's silence after June 2001 and its failure to inform Glen Eight that the Ranger and Spider and other thrill rides would be operating in the Northern Extension, when Metro Edgley knew that Glen Eight was working towards the development and marketing of the Azure in the belief or assumption that children's rides would be operated in that area, and Metro Edgley knew that belief or assumption to be false. It is said that Glen Eight had a legitimate and reasonable expectation that Metro Edgley would correct any misleading or deceptive representations made in the 2001 DA and that Metro Edgley had a corresponding obligation to do so. The representations are said to be misleading or deceptive because the Ranger, the Spider and other thrill rides were to be operated in the Northern Extension and were not children's rides. 178 An application by the plaintiffs, on the eighth day of the hearing, to amend by inserting an allegation pertaining to a specific representation said to have been made by Mr Hearne on behalf of Metro Edgley at the meeting on 13 May 2002 was rejected [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 696]. However, in refusing leave to amend, it was acknowledged (at [12]) that evidence of the positive representations allegedly made at the 13 May 2002 meeting was potentially relevant, as providing context for the alleged non-disclosure, and perhaps accentuating any obligation that there might have been to make a disclosure. 179 It is not in doubt that silence, or non-disclosure, may constitute misleading or deceptive conduct. This in Lam v Ausintel Investments Aust Pty Ltd (1989) 97 FLR 458; (1990) 12 ATPR 40-990, Gleeson CJ said: Where parties are dealing at arms' length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice. It would normally only be if there were an obligation of full disclosure that a different result would follow. That could occur, for example, by reason of some feature of the relationship between the parties, or because previous communications between them gave rise to a duty to add to or correct earlier information. 180 Moreover, the circumstances in which silence may be misleading or deceptive are not limited to those where there is a legal obligation to make disclosure, such as in the context of fiduciary and like relationships [cf Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84, 88]. However, silence or non-disclosure will generally constitute misleading and deceptive conduct only where the applicant is reasonably entitled in all the circumstances to expect that the respondent will make a positive disclosure [Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) ¶46-054, 53,195 (French J); Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97, 114 (Hill J); Demagogue v Ramensky]. 181 Glen Eight argued that such an expectation arose in this case from the accumulation of a number of matters, namely: · That there was a history of communications between Metro Edgley and Glen Eight, including co-operation between Glen Eight and Metro Edgley in respect of marketing and construction of the Azure and Milsons Landing and an understanding that they would be "good neighbours" to achieve a mutually beneficial outcome; · That Mr Hearne was aware that Glen Eight was redeveloping Yellow Pages House into luxury apartments, and as at 13 May 2002 was about to launch on the market; · That as at 13 May 2002, Mr Hearne knew what Metro Edgley was proposing to do (especially in respect of the Northern Extension) and must have realised that, unless he informed Mr Revay, Mr Revay could and would not know; · That during the meeting of 13 May 2002, a specific request was made on behalf of Glen Eight for information about what was happening at Luna Park; · That Mr Hearne's response referred to a plan which indicated children's rides in the Northern Extension and made no reference to adult thrill rides; · That disclosure of the intention to locate and operate thrill rides in the Northern Extension would have been adverse to the Milsons Landing development. 182 The starting point for the alleged "continuing representation" is the 2001 DA. For reasons already explained, it did not convey a representation that Metro Edgley proposed to locate and operate only children's rides in the Northern Extension. Accordingly, there was nothing requiring subsequent correction in that respect at that stage. 183 I have found, above, however, that by July or August 2001, Metro Edgley had formed an intention to locate thrill rides in the Northern Extension. It does not follow that it was reasonable to expect that Metro Edgley would thereupon disclose that intention. Generally speaking, a landowner is under no obligation to inform neighbouring owners and occupiers of proposals that the landowner might from time to time entertain or adopt as to the use of its land, however adverse those proposals might be, and the neighbouring owners and occupiers have no reasonable expectation that they will be informed of such proposals – except as required if a development application is made. Even if (contrary to my conclusion above) lodgement of a DA conveyed a representation to the effect that it described the applicant's then current proposed use of the subject land, it could not convey that that proposal was immutable, or that the applicant would not in the future amend it or make some further or different application. If, having lodged a development application, the applicant formulates an alternative concept for use of the land, it does not thereupon become obliged to inform neighbouring owners and occupiers that it is contemplating, or even has decided to prosecute, an alternative application – if an alternative application were to be prosecuted, the time for informing neighbours would be the time of notification and exhibition of that application. Neighbouring owners and occupiers are not reasonably entitled to expect disclosure of proposals that might adversely affect their land before that point. And if that is so in respect of neighbouring owners and occupiers, it is all the more strongly so in respect of the remoter class of prospective purchasers or developers. 184 I do not see how knowledge that a neighbouring owner or occupier (a fortiori the remoter classes of prospective purchasers or developers) is acting on a particular assumption about what the landowner will do can affect this – unless the landowner is implicated in the creation of the assumption, or there is some special relationship (such as a fiduciary one) between the parties. 185 In my view, therefore, having lodged the 2001 DA, Metro Edgley was entitled to contemplate other uses of the Luna Park site, and to formulate and develop proposals for those alternative uses, and its neighbours – let alone prospective purchasers and developers – were not reasonably entitled to expect that if Metro Edgley formulated some such proposal, they would be informed of, except to the extent necessary in any subsequent DA. 186 Accordingly, although I accept that, by August 2001, Metro Edgley had formed the intention to locate and operate thrill rides in the Northern Extension, Metro Edgley was not obliged to inform neighbouring owners and occupiers owners of those proposals, even though they might prove adverse to the economic interests of those neighbours, unless and until disclosure was required for the purposes of any relevant development application, and even then only to the extent that the DA process required disclosure. I therefore do not accept that it was misleading or deceptive for Metro Edgley to remain silent in respect of the proposal to locate and operate thrill rides in the Northern Extension after it formulated that intention in August 2001. If any of the plaintiffs laboured under the misapprehension that Metro Edgley's intention and proposal was to operate only children's rides in the Northern Extension, that misapprehension arose from the combination of an imperfect reading of the 2001 DA, for a purpose which it was not intended to serve, and an erroneous assumption that the proposal was, if not immutable, at least unlikely to change for many years. 187 Did the 13 May 2002 meeting alter the position? In circumstances where Mr Hearne did not give evidence to deny it, and Mr Yeo's evidence to the contrary was diminished by his peripheral involvement, I accept the version of the meeting of 13 May 2002 given by Glen Eight's witnesses. Accordingly, I accept that at that meeting: · a poster-size version of MDA 09 was on display, depicting a number of small children's rides in the Northern Extension, identified as "children's rides"; · Mr Hearne described what was proposed for the Northern Extension as "rides for little kids", landscaping and picnic areas for young families. 188 Glen Eight had already formed the belief that that was what was proposed for the Northern Extension, based on the 2001 DA; accordingly, what Mr Hearne said did not alter Glen Eight's assumption. But on this occasion, what had previously been put to the consent authority as an application for development consent was now put to an audience that included Glen Eight as a statement of what was proposed for the Northern Extension. In this different context, when Metro Edgley had – as I have concluded – formulated an intention also to locate some adult thrill rides in the Northern Extension, its positive statement that it proposed to use the Northern Extension for children's rides, landscaping and picnic areas was only half the truth, where – having embarked on informing the audience of what was proposed – there was a reasonable expectation that the whole truth would be told. Metro Edgley's silence as to its proposal about adult thrill rides in the Northern Extension was rendered misleading when it made a positive statement to Glen Eight that it intended to use the area for children's rides. 189 It is true that it was not even then Metro Edgley's immutable intention to locate and operate the Ranger and the Octopus. Notwithstanding that the 2002 DA depicted the Ranger and the Octopus located in the Northern Extension, minutes of a Metro Edgley meeting on 24 June 2002 record that Mr Hearne was looking into a deal involving leasing the Ranger for 15 months until September 2003, in return for the lessee refurbishing and reinstalling the ride at no cost to Metro Edgley. A Metro Edgley meeting of 15 July 2002 contemplated the possibility of selling the Ranger and purchasing a smaller replacement ride. Minutes of a meeting of 22 July 2002 record that the proposed leasing deal for the Ranger "will not proceed", and minutes of a meeting of 2 September 2002 record an offer to purchase the Ranger, in return for a fee to refurbish the Wild Mouse, and that an advertisement would be placed offering the Ranger, the Octopus and the Carousel for sale. The sale of the Ranger was mentioned at meetings of 9 September and 23 September 2002. Offers for the Octopus were discussed on 14 and 21 October 2002, following which it was ultimately sold on 21 October. The "contra-deal" involving the Ranger was discussed on 5 December 2002, when the minutes also record "Location of rides in park discussed – this will depend on final DA conditions". 190 But notwithstanding the possibility that the Ranger might yet be sold, Metro Edgley's then intent was that (at least unless it were sold) it be located in the Northern Extension. The possibility that that proposal might not be implemented was not such as to dispel the misleading character of its non-disclosure in the context of announcement of a proposal to locate and operate children's rides in the Northern Extension. 191 Accordingly, Metro Edgley's silence as to its proposal to locate adult thrill rides in the Northern Extension became misleading when, on 13 May 2002, it made a positive statement to Glen Eight that it proposed to use the Northern Extension for children's rides, landscaping and picnic areas, without disclosing that it also intended to locate and operate adult thrill rides there. 4.3 Misleading and Deceptive Conduct – the 2002 DA? 192 The 2002 DA was entitled "Stage 2 Development Application Statement of Environmental Effects to Minister for Urban Affairs & Planning – Phase E: Luna Park Entertainment Complex". Section 1 (Introduction) included the following: This report is submitted to the Minister for Urban Affairs & Planning (the Minister) in support of a development application (DA) seeking consent for the Stage 2 Detailed Design of the Luna Park Entertainment Complex at 1 Olympic Drive, Milsons Point. The Luna Park Entertainment Complex is the subject of a Staged Development Consent that was granted pursuant to s 80(4) of the Environmental Planning & Assessment Act, 1979 (the EP&A Act) by the Minister on 31 January 2002 (reference DA 154-06-01). Prior to the approval of Staged Development Consent 154-06-01, North Sydney Council (the Council) had previously granted conditional development consent to a new building to the north of Coney Island and alterations to Crystal Palace (DA 427/00 which was approved on 27 March 2000). Council approved a section 96 application to modify this consent (specifically the condition related to noise) on 15 September 2000. The approved Coney Island and Crystal Palace works now comprise phases A and B (respectively) of the overall Luna Park Entertainment Complex Development. Development Consent DA 154-06/01, which is structured in two parts, approved the following aspects of the Luna Park Entertainment Complex. Part 1 Stage 2 Development Consent for Strata Commercial Office Building fronting Glen Street, Milsons Point · Development of a strata commercial office building on Glen Street. Part 2 Stage 1 Development Consent Luna Park Entertainment Complex · Proposed land uses; · Building envelope; · Parking numbers; · Vehicular and pedestrian access; · Public domain plan · Hours of operation; and · An external pedestrian link between Glen Street and the Luna Park Entertainment Complex. The works approved under Part 1 of Development Consent 154-06-01 which relate to the Stage 2 detailed design of the strata office building to be constructed on the cliff top at the Glen Street frontage of the site, comprise phase C of the overall project. Part 2 of Staged Development Consent 154-06-01 is referred to herein as the "Stage 1 DA". Separate DAs are required in relation to the detailed design of the development approved as part of the Stage 1 DA. The DA the subject of this application comprises the Stage 2 Detailed Design for the Luna Circus, Dodgems (including Luna Circus Foyer & Bar), Wild Mouse and Administration Buildings that were approved as part of the Stage 1 DA. The works included in this application comprise "Phase E" of the overall project. A separate Stage 2 detailed design DA relating to the car park and café/brasserie buildings was submitted to the Minister in May 2002 (these works comprise "Phase D" of the project). The Phase E works to which this Stage 2 detailed design DA relate comprise: … · alterations and additions to the support structure for the former "Big Dipper" ride to accommodate the "Dodgem Car" ride at ground level and the "Tumble Bug" and "Spider" rides/amusements at first floor level, and to provide access to the new 2 storey Luna Circus Foyer & Bar Building accommodating foyer and backstage amenities area (referred to herein as the "Dodgems Building"); … · establishment of a new children's playground (accommodating the "U-Drive", "Octopus", "Ranger", "Carousel", "Space Shuttle", "Magic Castle" and "mini Ferris Wheel" rides/amusements) ; … … This detailed Stage 2 DA proposes that the public pedestrian link be relocated such that it "lands" within the Luna Park Entertainment Complex at the eastern end of Coney Island ( ie within the new Children's Playground ). … … 193 Section 2.0 (The Phase E site) described the land the subject of the DA as forming part of the Luna Park reserve. It included: This DA relates to the Stage 2 detailed design of the Luna Circus, Dodgems (including Luna Circus Foyer & Bar), Wild Mouse and Administration Buildings approved under the Stage 1 DA. It also relates to the provision of a public pedestrian link between Glen Street and Luna Park and to the establishment of a new Children's Playground to the north of Coney Island . 194 Section 3.0 (The Approved Stage 1 Development for Phase E Works) summarised the effect of the existing Stage 1 DA approval, including the following: Children's ride area · Construction of a safe, enclosed children's ride area to the north of Coney Island, re-using many of the existing on site children's rides . Midway, external rides, amusements and external entertainment within entertainment precinct · Retention of Midway as a traditional street and focus of town park activity and use as the venue for a variety of outdoor performances; · At grade ride and amusement zone encompassing the Midway and area to the north of Coney Island (and including zones over the existing Big Dipper slab, Administration Building and Wild Mouse Building ; … · hours of operation 10.00 am to 10.00 pm Sunday to Thursday; 10.00 am to 12.00 midnight Friday and Saturday; 10.00 to 12.00 midnight on Public Holidays and days preceding public holidays (except Good Friday and Easter Monday; and 10.00 am to 2.00 am (the following morning on New Years Eve, Australia Day and not more than 4 other occasions per year in conjunction with public events or festivals; · existing and new open rides and amusements that do not have heritage significance may be replaced/removed or moved within the ride and amusement zone from time to time ; and … 195 Section 4.0 (The Proposed Development) included relevantly the following: This Stage 2 detailed design DA seeks development consent for the following Phase E works: The Phase E works to which this Stage 2 detailed design DA relate comprise: … · establishment of a new children's playground (accommodating the "U-Drive", "Octopus", "Ranger", "Carousel", "Space Shuttle", "Magic Castle" and "Mini Ferris Wheel" rides/amusements ); … The proposed development is illustrated on the following architectural Drawings: dated June 2002 prepared by Hassell Pty Ltd as numbered in the drawing schedule included at Appendix E. … A detailed description of the proposed works follows. … 4.3 Rides/amusements The DA that has been submitted to the Minister in relation to the proposed Phase D works (ie the construction of the car park and café/brasserie buildings) includes the removal of the existing "Spider", "Tumble Bug", "Ranger", "U Drive" and "Magic Castle" rides/amusements that currently occupy the Phase D site (refer Site Survey Plan prepared by Hassell Pty Ltd included at Appendix B). These rides are to be stored and relocated elsewhere within the Luna Park Entertainment Complex . … This Phase E application includes the relocation of the following rides/amusements that are to be removed to accommodate the Phase D works : · The "Spider" and the "Tumble Bug" are to be relocated to the top of the former big dipper slab; and · The "Ranger", "U Drive" and "Magic Castle" rides/amusements are to be relocated to within the new Children's Playground . In addition to the above, the Phase E application proposed relocation/retention of the following rides/amusements within the site: … · the "Octopus", "Carousel", "Space Shuttle" and "Mini Ferris Wheel" are to be located within the new Children's Playground . 196 In Section 4.8 (The Midway and Public Domain) appeared the following: Details of proposed fencing are shown on architectural Drawing No MP-DA-06F included at Appendix E. Details of the proposed layout of rides and upgrade of the Children's playground to the north of Coney Island are shown on Architectural Drawing No MP-DA-06F . 197 In Section 5.0 (Consistency with Stage 1 DA Consent) it was stated that the detailed Stage 2 DA for the Phase E buildings was generally consistent with the relevant aspects of the Stage 1 consent, but detailed design resolution of the proposed Phase E Luna Circus Building had resulted in amendments to the approved Stage 1 DA envelope for that building, and in addition it was sought to amend the location of the proposed public pedestrian link between Glen Street and Luna Park: This detailed Stage 2 DA proposes that the public pedestrian link be repositioned such that it "lands" at ground level within the new Children's Playground to the west of Coney Island . 198 It was said that the Stage 2 DA did not amend in any way the approved Stage 1 DA land uses, public domain plan or hours of operation. 199 In Appendix E, the "Phase E Key Plan & Precinct Plan" denoted the Northern Extension as "Children's Rides". So did plan MP-DA-06F referred to in the body of the DA (Phase E Ground Level Paving & Fencing Plan), but it also clearly showed that area as paved, and occupied by a number of large rides – including specifically the Ranger – as well as smaller rides, as did the "Phase E Master Plan". Many others of the appended plans also denoted the Northern Extension as "Children's Rides", but included representations of the footprint of the "Ranger", the "Octopus" and the "U Drive". 200 Did Metro Edgley, by lodging the 2002 DA, make the representations alleged? 201 What has already been said in respect of the representations allegedly conveyed by the 2001 DA applies equally to the representations allegedly contained in or conveyed by the 2002 DA (see par [110] above) (a) that development consent was being sought for a new children's playground to the north of Coney Island, (b) that children's rides would be operated in the children's playground, (d) that a new children's playground would be constructed to the north of Coney Island, (e) that children's rides would be operated in the children's playground, and (f) that children's rides would operate during children's hours. For reasons already advanced (see [133]-[134] above), lodgement of a DA does not convey a representation that the applicant is going to undertake the proposed development, nor even that it currently intends to do so; it is an application for permission to do something which, if granted, the proponent may or may not ultimately choose to do. Accordingly, lodgement of the 2002 DA did not convey a representation that if it were approved, any particular activity would take place in the Northern Extension. 202 Moreover, as to alleged representation (f), there is nothing to that effect in the 2002 DA: the express reference to the operating hours of external rides and amusements set out above – 10.00 am to 10.00pm Sunday to Thursday, and 10.00am to 12.00 midnight Fridays and Saturdays and public holidays – contained no qualification or modification in respect of "Children's Rides". 203 The gravamen of the plaintiffs' complaint in respect of the 2002 DA – and ultimately, it was only on behalf of the seventh and eighth plaintiffs, Mr Billington and Ms Mather, that a case of reliance on the 2002 DA was advanced – is the alleged representation that the Ranger was a children's ride, of the same character as the U-Drive, the Carousel, the Space Shuttle, the Magic Castle and the Mini Ferris Wheel, and the non-disclosure that adult thrill rides, including the Ranger, as well as children's rides, were to be located and operated in the Northern Extension. 204 The 2002 DA plainly sought approval for the location and operation of the Ranger and the Octopus in the Northern Extension. The real question is whether the 2002 DA, read as a whole, would have deceived the reader into thinking that these were "children's rides". The suggestion that it would do so depends primarily on statements in the 2002 DA to the effect that those rides were to be located in the "Children's Playground", and on drawings attached to the 2002 DA, which depict the "Ranger" and the "Octopus" in the Northern Extension – where the words "Children's Rides" also appear. However, on pages 2 and 16, and in the attached plans and drawings, the Ranger and the Octopus are clearly identified as rides to be located in the Northern Extension, to be known as the Children's Playground; on the plans, they are depicted as significantly larger than most of the other rides to be located in that area. In my view, the drawings and the denotation of the area as "Children's Rides" do not convey that the Ranger and the Octopus were necessarily rides of the same nature as the other – children's – rides to be located there. 205 When the 2002 DA was lodged and exhibited, the Ranger and the Octopus were located on site at Luna Park. They had operated at the park while the park was in operation until January 2001. Anyone familiar with the "Children's Rides" must also have been familiar with "the Ranger" and "the Octopus". If the relevant audience is neighbouring owners and occupiers, then to the extent that they understood what was referred to by the "Children's Rides", they must also have understood what was "the Ranger". 206 Moreover, the 2002 DA included a noise report, which distinguished between the Ranger, the Octopus and the children's rides as to the amount of noise each generated, showing that the Ranger was approximately 7.5 times louder than the "Children's Rides". A reader of the whole document could not have misapprehended that the Ranger was of the same character, in terms of noise emission – as the Children's Rides. The document must be read as a whole, and read as a whole it made apparent that the Ranger was very much noisier than the "Children's Rides". 207 Accordingly, in my view, the 2002 DA did not convey that the Ranger and the Octopus were of the same nature as the "Children's Rides", and was not misleading or deceptive in the respects alleged by the plaintiffs – including in particular for failing to disclose that adult thrill rides such as the Ranger and the Octopus, as well as Children's rides, were to be located and operated in the Northern Extension; it specifically proposed, and sought consent for, the location and operation of the Ranger and the Octopus in the Northern Extension. 4.4 Misleading and deceptive conduct – were Messrs Hearne and Doughty knowingly concerned? 208 The plaintiffs allege that Mr Hearne and Mr Doughty were knowingly concerned (or otherwise "involved") in the allegedly misleading and deceptive conduct of Metro Edgley, in respect of the lodgement of the 2001 DA, and the lodgement of the 2002 DA. (No such allegation is pleaded in respect of the alleged deception by silence between June 2001 and until July 2002, an application for leave to amend in that respect having been refused on the eighth day of the trial, including on the ground that such amendment would have raised against them for the first time allegations arising out of the 13 May 2002 meeting, in circumstances where, in opening, their counsel had made clear that they did not regard it as part of the then pleaded case against them [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 696, [2], [13]-[14]]). 209 The conclusions already reached in respect of the allegations of misleading and deceptive conduct in the 2001 DA and the 2002 DA are dispositive of the s 75B case against Mr Hearne and Mr Doughty. It would not be fair to make an alternative finding against them or either of them based on the "silence" case, in circumstances where they legitimately treated it as not part of the case against them. 4.5 The Trade Practices claim – was the conduct in trade or commerce? 210 The defendants submitted that the impugned conduct of Metro Edgley was not "in trade or commerce" and thus could not have been in contravention of Trade Practices Act, s 52. The plaintiffs submitted that the 2001 and 2002 development applications were lodged with the relevant consent authority in the course of dealings by Metro Edgley which of their very nature bore a trading and commercial nature, having as their object the gaining of permission to further a commercial enterprise at Luna Park. 211 The phrase "in trade or commerce" in Trade Practices Act, s 52, limits the scope of its operation to conduct "which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character" [Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 603]. The section is concerned with the conduct of a corporation towards persons (whether or not consumers) with whom it has or may have dealings in the course of carrying on its trading or commercial activities, which dealings of their nature bear a trading or commercial nature [Concrete Constructions, 604]. It does not encompass all conduct in the course of the myriad activities which, though not themselves of a trading or commercial character, are undertaken by a corporation in the course of or as incidental to its trading or commercial business [Concrete Constructions, 602-603]. Conduct in the course of business activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing does not of itself constitute conduct "in trade or commerce" for the purposes of s 52 [Concrete Constructions, 604]. 212 In Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422, the applicant Village alleged that the respondents contravened s 52 by representations made in relation to noise forecasts for projected flight paths for the Canberra Airport. Finn J, in a judgment upheld in the Full Court [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330], said (at [61]-[62]): The representations in question were all made in the context of a planning application having been made to re-zone Tralee — an application which CIA openly and repeatedly opposed. Its opposition was consistent with its own business interests and took the form of community consultation and representation for the purpose of informing and influencing public, political and governmental opinion. By virtue of the provisions of the Airports Act (and especially s 71), CIA had a necessary and ongoing interest in aircraft noise and its incidence. It sought to engage community interest not only in the subject of noise exposure as a matter of public concern but also in its specific opposition to the Tralee development. In both respects it was engaging in what properly should be described as political activity, but especially so in relation to the latter. The re-zoning application highlighted both conflicting private interests and conflicting public interests. Those conflicts could only be resolved by governmental action. In seeking, directly or indirectly, to contrive or influence outcomes by representations made in public debate, or in the processes of informing the public, CIA was engaging in activities of a political, not of a commercial or trading, character. And this was not the less so because its activities were informed by a degree of self-interest. Altruism is often a stranger to political action. It is notable that the impugned representations were not made in circumstances in which it could properly be said that CIA was promoting, directly or indirectly, the services provided by the airport. It was, nonetheless, acting to protect its business. As I earlier indicated, action so taken is not for that reason alone in trade or commerce. It would be surprising if the legislature had intended the contrary to be the case in the Trade Practices Act . Corporations engage directly and indirectly in public and political debate on a myriad of matters that do or might impact actually or prospectively on their own interests. While all such debate will not be beyond the reach of s 52 of the Trade Practices Act : see eg Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; much will be as it will not be directed at consumers (actual or potential), or will not be an incident of an activity which bears a trading or commercial character. 213 In the Full Court appeal [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330], it was said (at [52]): It is true that this variation, if approved by the minister, might have contributed to CIA being able to prolong and perhaps expand its operations at Canberra Airport (by minimising the likelihood that planning approval would be granted for a residential development under the flight path for the airport). But the fact that the representations were made as part of an application or campaign designed to prolong and expand CIA's operations at Canberra Airport is not enough, of itself, to justify concluding that the representations were made in the course of a commercial transaction or dealing. It is plainly essential to maintaining the operations of a construction company that a foreman give instructions to a worker to carry out building activities. But, as Concrete Constructions decides, the fact that the foreman's instructions are in the interests of a corporation, or even essential to its operations, does not necessarily mean that the transaction or dealing is in trade or commerce. The conduct must have occurred in the course of a trading or commercial relationship or otherwise to bear a trading or commercial character. 214 Later, their Honours concluded (at [59]): Each of the three alternative formulations by Mr Hodgekiss suffers from the same defect as the first. The fact that conduct has the purpose or effect (or both) of maintaining or protecting a business is not, of itself, enough to ensure that the conduct is in trade or commerce. Similarly, acts necessary to obtain a licence or authority to conduct the corporation's business may be in trade or commerce, although we think this would be unusual. The question is whether the conduct falls within the central conception of trade or commerce as explained in Concrete Constructions . In the present case the conduct alleged against CIA did not. 215 Thus the touchstone of conduct being "in trade or commerce" is that the corporation's conduct be towards persons, whether or not consumers, with whom the corporation has or may have dealings of a trading or commercial character, and that the conduct be in the course of the corporation carrying on its trading or commercial activities. It tends significantly in favour of a conclusion that the corporation was acting in trade or commerce that there is a potential or actual trading or commercial dealing or transaction between the corporation and the person to whom the conduct is directed [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422 [62] (Finn J)]. On the other hand, it tends against conduct being "in trade or commerce" if there is no trading or commercial dealing or relationship between the person engaging in the relevant conduct and the person to whom it was directed [Plimer v Roberts (1997) 80 FCR 303, 307]. While promotional activities in relation to or for the purposes of the supply of goods or services to actual or potential consumers bear a trading or commercial character [Concrete Constructions, 604], actions for the purpose of establishing, maintaining or protecting a business are not for that reason alone in trade or commerce [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422, [62] (Finn J)], and the fact that conduct has as its purpose or effect or both the maintenance or protection or a business is insufficient to make the conduct in trade or commerce [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330, [59] (Full Court)]. Promotional activities not directed at persons having a potential or actual trading or commercial dealing or transaction with the corporation are not in trade or commerce [Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; (2004) 134 FCR 422, [62] (Finn J)]. 216 There are circumstances in which representations to a regulatory authority for the purpose of securing the performance of its statutory functions can be in trade or commerce [Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595; Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521; Village v Canberra Airport [2004] FCA 133; (2004) 134 FCR 422, 438 [58]]. In Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169, the Full Federal Court held that it was arguable (for the purposes of surviving a summary dismissal application) that a statement made by a company to the ACCC in the course of seeking consent to the sale of one of its businesses might be "in trade or commerce", where the obtaining of consent was part of an overall sale transaction, the sale itself being indisputably in trade or commerce. However, as Mr Clarke submitted, it is at least equally arguable that what was involved were representations to the ACCC as regulator, and not to the applicant in trade or commerce. 217 In the present case, the specific activity or transaction in which the impugned conduct took place was: · the lodgement of the 2001 and 2002 development applications with the Minister as consent authority for approval; and · the presentation of information about the Luna Park proposal to Glen Eight and others on 13 May 2002. 218 There was no potential or actual trading or commercial dealing or relationship between Metro Edgley and the Minister; the relationship between planning authority and applicant for planning approval is not of a trading or commercial character. The fact that a fee was payable in respect of the development applications does not make the activity of lodging a DA a commercial one (any more than filing proceedings in a court is made commercial by the exaction of a filing fee) [cf Lismore City Council v Stewart (1989) 18 NSWLR 718, 725-726 (the charging of a fee by a local government for a s 149 certificate does not create a contract between the applicant and the council); Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675 (the same applies in respect of a fee charged for processing a development application). In distinction from Dresna v Misu – in which the representations to the ACCC were at least arguably commercial because they were potentially an element in an overall sale transaction the approval of which was sought – the present case did not involve the approval of any commercial transaction or dealing: there was no commercial or trading transaction that required approval; what Metro Edgley sought was permission to develop land. And even if the representations in the DAs were regarded as directed to owners and occupiers or potential purchasers or developers of nearby properties, those are not persons with whom Metro Edgley had an actual or potential trading or commercial relationship; their actual or potential relationship was that of owners or occupiers of adjacent land, which of itself involves no element of trade or commerce. 219 It remains to consider whether any contravening conduct constituted by non-disclosure after June 2001 until about July 2002 – and in particular at the meeting on 13 May 2002 – was "in trade or commerce". 220 It will be remembered that the impugned conduct in this respect is Metro Edgley's silence after June 2001, in the context of knowledge that Glen Eight was working towards the development and marketing of its building "The Azure" on the assumption that children's rides would be operated in the relevant area, and had a legitimate and reasonable expectation that Metro Edgley "would correct any misleading or deceptive representations made in the 2001 DA". It is apparent that the starting point for this part of Glen Eight's case is the 2001 DA. If (as above concluded) the lodgement of that DA was not itself in trade or commerce, it is difficult to see how any continuation of the representations it allegedly conveyed by a failure to "correct" them could be in trade or commerce. 221 But was there otherwise anything of a trading or commercial character in the actual or potential relationship between Metro Edgley and Glen Eight? 222 At no stage was there a potential or actual trading or commercial transaction or relationship between Glen Eight and Metro Edgley; their relationship was of a different character. Underlying all the communications between Glen Eight and Metro Edgley was an interest on the part of Glen Eight in ascertaining what Metro Edgley proposed to do at Luna Park, because of the potential impact of development of Luna Park on its building, and an interest on the part of Metro Edgley in minimising opposition to its plans. 223 In the correspondence in mid-2000 about the proposed height of the Milsons Landing Building, which Multiplex was constructing on the clifftop site, Mr Revay sought agreement to a reduced proposed height of Milsons Landing, in return for which Glen Eight would not object to Metro Edgley's scheme, and Metro Edgley accepted that proposal. That was an arrangement between adjoining landowners in respect of an aspect of the development of the Luna Park site, but it involved no element of trade or commerce between them. Thereafter, there were no further dealings between Metro Edgley and Glen Eight. Each progressed its respective DA. Glen Eight had some inchoate dealings in respect of Milsons Landing with Multiplex who was building it, but not with Metro Edgley, and those dealings, such as they were, related to the facilitation of the building works: they represented an arrangement between adjoining occupiers for their mutual convenience, but involved no element of trade or commerce between them. 224 Accepting Mr Revay's version of the 13 May 2002 meeting, nonetheless the provision of information to adjoining landowners and occupiers in connection with the proposed activity of the Luna Park site (for the purpose of allaying their concerns, or deterring them from objecting) does not have a trading or commercial character. The information was not presented in the context of any actual or proposed trading or commercial transaction or relationship between Metro Edgley and Glen Eight (or any other participant). Metro Edgley's relevant conduct was for the purpose of mitigating objections to its proposals, so as to facilitate their approval by the consent authority; this was not activity in the field of trade or commerce, but quasi-political advocacy to influence community opinion as to how a planning power should be exercised by a consent authority. 225 Accordingly, Metro Edgley's conduct in lodging the 2001 DA and the 2002 DA, and non-disclosure of any proposal to locate and operate adult thrill rides as well as children's rides in the Northern Extension, was not in trade or commerce. The representations in the development applications were not directed towards persons who had a potential or actual trading or commercial dealing or transaction with Metro Edgley. There was no potential or actual trading or commercial dealing or relationship between Metro Edgley and the Minister. To the extent that the impugned conduct was directed to owners and occupiers of potentially affected properties, including Glen Eight, they were not persons who had a potential or actual trading or commercial dealing or relationship with Metro Edgley. It is insufficient that the development applications formed part of the course of Metro Edgley's dealings, which overall bore a trading or commercial character. Nor is it sufficient that the purpose and object of the development applications was to obtain permission that would enable it to carry on commercial activity. There was no relevant actual or potential trading or commercial relationship between Metro Edgley and Glen Eight, and the presentation of information at the meeting of 13 May 2002 did not take place in the context of any such transaction or relationship. The impugned conduct of Metro Edgley was not in trade or commerce. 4.6 The Trade Practices claim – legal causation 226 Mr Clarke advanced a further basis for concluding that the plaintiffs were not entitled to relief for contravention of Trade Practices Act, s 52, namely that it (and ss 82 and 87) were directed at providing a remedy only in respect of conduct directed at individuals or a section of the public, including the plaintiffs, intended to be acted on by them, in a manner consistent with the purpose for which the representations were made to them, and that the statements in the 2001 DA and the 2002 DA were not directed at the plaintiffs. This is sometimes referred to as legal – as distinct from factual – causation. 227 In Barnes v Hay (1988) 12 NSWLR 337, Mahoney JA explained that a decision on a question of causation involves a normative decision as to whether, for the purposes of the case, the precedent act for which the defendant is responsible should be seen as causal of the plaintiff's loss, which evaluation is made by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law. In Henville v Walker, McHugh J (at 491-2, [98]-[103]) referred with approval to that observation, in explaining that where damage occurs because a person has acted to his or her detriment by reason of misleading conduct in the form of a statement made by the defendant, that conduct will not be regarded as causally connected with the detriment if it is no more than the reason why the person acted to his or her detriment, unless the purpose of the legal norm that the defendant has breached is to prevent persons suffering detriment in circumstances of the kind that occurred. 228 Thus, in such a case, the test of causation involves normative analysis, requiring attention to the purpose of the legal norm [Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124, [497] (McDougall J)]. This is illustrated by the following example, given by McHugh J in Henville v Walker (at 492-3, [103]-[104]): If a broker negligently advises a client to retain shares because they are a good investment, the broker will be liable for the loss sustained in retaining those shares. But if, having received that advice, the client decides to buy more shares, the broker will not be liable for the further losses unless the terms of the original retainer imposed a duty on the broker to advise in respect of further purchases. If Mr Henville had purchased the View Street land merely because he had heard that Mr Walker was claiming that there was a big demand for quality home units, a difficult question of causation would arise. Its answer would depend on the purpose of ss 52 and 82 of the Act. Are they intended to provide a remedy for any person who acts to his or her detriment after hearing of a false or misleading statement made in trade or commerce? Or are they directed to providing a remedy only in respect of conduct that is directed at individuals or a section of the public? 229 In Ingot, McDougall J said (at [1112]): In general terms, the object of the relevant provisions of the Corporations Law was to protect those contemplating investments in offers of securities to which those parts of the Law applied. The means adopted included both requirements of disclosure and the imposition of liability, civil and criminal, for some cases of inadequate disclosure. Any test of causation that did not recognise those objects and take account of the statutory scheme would be inadequate. But it by no means follows that attention to the objects and mechanics of the statutory scheme requires the test of causation to take into account those who might rely on the prospectus or other offering document to make investments beyond the scope of the document, or other than in the securities offered: at least, where the document was not communicated to such persons with the intention or expectation that it might be relied upon for that wider purpose. [1113] Section 2 of the Trade Practices Act states its object as being 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection'. There is no equivalent express statement in the Fair Trading Act , but, as Gleeson CJ pointed out in Tambree at 191 [30], the same questions arise in considering whether loss or damage has been suffered 'by' contravening conduct. Further, as his Honour said at 191 [31], it is necessary to have regard to the relevant aspect of trade or commerce that attracts the operation of the statute. On the assumption that the Fair Trading Act is in principle applicable, the aspect of trade or commerce involved is the offering of securities; in which case, the purposes to which I have referred in the preceding paragraph again suggest themselves as indicative of the relevant norm. Again, it is not apparent why the relevant norm requires the question of causation to be answered in such a way that it would protect those who did not rely on the prospectus for its obvious or intended purpose. 230 A person who receives and relies upon a misrepresentation in his or her capacity as a member of a section of the public to whom it was directed (in particular as a consumer) is a person whom it was intended should act upon the representation, and so has a remedy. But the object of the Trade Practices Act – to promote competition and fair trading and protect consumers – does not require that any person who purports to rely on misleading or deceptive conduct have an action under s 82 or s 87. Sections 52 and 82 are directed at providing a remedy only for individuals or a section of the public in respect of conduct that is directed at them [Ingot, [1111]]. 231 The purpose of the development applications was to obtain permission for the conduct of certain activity at the Luna Park site. Insofar as it was foreseeable that the DAs would be placed on public exhibition and might be read by members of the public, the purpose of such public exhibition was to inform neighbours of the proposed development, so that if they wished they might exercise their rights under the planning legislation to object. It was not to inform potential purchasers and developers of future uses of the subject land. That this is so is apparent from the circumstance that the development application could be amended, and further applications in respect of the same land made, from time to time. Any loss suffered by the plaintiffs as potential purchasers, investors or developers was unrelated to the capacity in which they were intended to receive – if at all – the information contained in or conveyed by the DAs (that is, as adjoining land owners, for the purpose of enabling them to decide whether or not to exercise their right of objection). No plaintiff communicated to Metro Edgley his, her or its intention to purchase or redevelop property based on the contents of the 2001 DA or the 2002 DA, nor that they intended to use the information contained in those DAs not just for the purposes for which it was lodged with the consent authority (to obtain planning approval), but for the wider purpose of informing their decisions to purchase or redevelop properties [cf Ingot, [1121]]. 232 Insofar as Metro Edgley made any representation to members of the public by lodging the 2001 DA and the 2002 DA, such representation was not made to, nor received by, the members of the public in their capacity as potential purchasers or redevelopers of property in the area of the Luna Park site, but only in their capacity as adjoining landholders who might wish to object to development at the Luna Park site. The losses claimed to have been suffered by the plaintiffs as potential purchasers or developers arising from decisions to purchase or redevelop were not suffered in a capacity related to that in which they received the information in the DAs, and were not in the relevant legal sense caused by Metro Edgley's conduct. The plaintiffs are not entitled to a remedy under the Trade Practices Act in respect of them. 4.7 The Negligent Misrepresentation claim – did Metro Edgley owe the plaintiffs a duty of care? 233 The plaintiffs contend that Metro Edgley owed a duty to the class of persons who might read and reasonably rely upon the accuracy of statements and drawings contained in the 2001 DA and the 2002 DA respectively, including prospective purchasers and developers of properties adjacent to Luna Park, to take reasonable care to avoid foreseeable risk of economic loss caused by inaccurate or misleading or deceptive statements and drawings concerning the development of Luna Park. (No case in negligent misrepresentation was pleaded in respect of the silence case, arising from the non-disclosure after July 2001, and in particular from 13 May 2002, of the proposal to locate thrill rides in the Northern Extension). Metro Edgley admits that it knew that the 2001 DA and the 2002 DA were likely to be examined or considered by the owners and/or occupiers of apartments or buildings or properties adjoining or neighbouring Luna Park or persons otherwise with an interest in the development of Luna Park, and could be read and considered by persons who were considering the purchase or development of property adjacent to Luna Park, but disputes that it owed any such duty of care. 234 Damages for pure economic loss are not recoverable if all that is shown is that the defendant's carelessness was a cause of the loss, and that the loss was reasonably foreseeable. The High Court of Australia has considered the circumstances in which the law will impose a duty of care to avoid foreseeable economic loss in a number of cases. 235 In San Sebastian Properties Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340, developers claimed damages against the Sydney City Council and the State Planning Authority for loss suffered as a result of their reliance upon representations in the plan and documents relating to a scheme for the redevelopment of Woolloomooloo in reliance on which they had purchased land in the expectation of profitable redevelopment, in circumstances where the scheme was abandoned and the land lost value. The High Court concluded that the developers had failed to establish that the alleged representations were made, but that if they had done so, the developers would nevertheless also have had to establish that the Authority and the Council made the representations with the intention of inducing members of the class of developers to act in reliance on them. The Court observed that, in the absence of contrary indication, it would not be inferred that a plan intended as a guide to future development contained an assurance that it would be applied continuously and inflexibly, and that the general interest of an Australian local authority in encouraging development in its area was not enough to support the existence of a duty of care on the part of the Authority in relation to statements made in the plan so as to make it liable for negligent misstatement. Gibbs CJ, Mason, Wilson and Dawson JJ said (at 756-7): In Evatt and Shaddock the misstatement on which the plaintiff relied was made in response to a request — in the case of Evatt for information and advice, and in the case of Shaddock for information alone, although the distinction between information and advice is an unnecessary and often difficult one to draw; … . But there is no convincing reason for confining the liability to instances of negligent misstatement made by way of response to a request by the plaintiff for information or advice. The existence of an antecedent request for information or advice certainly assists in demonstrating reliance, which is a cornerstone of liability for negligent misstatement. However, such a request is by no means essential, though it has been suggested that instances of liability for misstatement volunteered negligently will be "rare" … . The maker of a statement may come under a duty to take care through a combination of circumstances or in various ways, in the absence of a request by the recipient. The author, though volunteering information or advice, may be known to possess, or profess to possess, skill and competence in the area which is the subject of the communication. He may warrant the correctness of what he says or assume responsibility for its correctness. He may invite the recipient to act on the basis of the information or advice, or intend to induce the recipient to act in a particular way. He may actually have an interest in the recipient so acting. The appellants submit that where A engages in conduct which is intended to cause B or a class of persons to act in a particular manner, A comes under a duty of care to B or any member of the class who is induced to act in that manner. Alternatively the appellants submit that A comes under a duty of care where he has an interest in inducing such action. … The two decisions provide support for the proposition that, where a statement is made for the purpose of inducing the plaintiff, or the members of a limited class including the plaintiff, to commit themselves financially upon the basis that the statement is true, and the plaintiff acts in reliance on the statement, the law will impose a duty of care on the maker of the statement. This proposition is rather different from the appellants' first submission. The deficiency in that submission may be expressed by saying that it is necessary not only that A intends that B or members of a class of persons should act or refrain from acting in a particular way, but also that A makes the statement with the intention of inducing B or members of that class, in reliance on the statement, to act or refrain from acting in the particular way, in circumstances where A should realise that economic loss may be suffered if the statement is not true. In cases where the defendant intends the statement to operate as a direct inducement to action, the reasonableness of the reliance will not be a critical factor, although in other cases the defendant's appreciation of the reasonableness of reliance will be relevant. The appellants' alternative proposition derives from the American Restatement of the Law of Torts (2d), at 552, which speaks of the liability of a person who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, for pecuniary loss caused to them by their justifiable reliance on the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. … In Australia the general interest which a local authority has in promoting or encouraging the development of its area would not ordinarily be classified as a "pecuniary interest". We do not consider that a general interest of this kind is enough to support the existence of a duty of care on the part of an authority in relation to statements made in development plans so as to make the authority liable for negligent misstatement in accordance with the appellants' alternative proposition. It follows then that if the appellants' case is to succeed they must establish at least, amongst other things, (1) that the alleged representation was made, and (2) that the Authority and the Council made the representation with the intention of inducing members of the class of developers to act in reliance on the representation . 236 In Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, a financier claimed damages from the auditors of a borrower corporation in respect of transactions into which the financier claimed it had entered in reliance upon the auditors report. It was alleged that the financier was a member of a class of persons whom the auditors foresaw or ought reasonably have foreseen might reasonably rely on the audit report. The High Court affirmed the conclusion that the statement of claim did not disclose a cause of action in negligence against the auditors. Brennan CJ said that in actions for negligence occasioning economic loss in consequence of a negligent misstatement, foresight or reasonable foreseeability that a member of a class might rely on the statement and thereby suffer loss had never been sufficient to support recovery, and that it was necessary for a plaintiff to prove (1) that the defendant knew or ought to have known that the information or advice would be communicated to the plaintiff (either individually or as a member of an identified class), (2) that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the relevant kind, and (3) that it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk incurring economic loss if it were incorrect. His Honour said (at 252): The uniform course of authority shows that mere foreseeability of the possibility that a statement made or advice given by A to B might be communicated to a class of which C is a member and that C might enter into some transaction as the result thereof and suffer financial loss in that transaction is not sufficient to impose on A a duty of care owed to C in the making of the statement or the giving of the advice. In some situations, a plaintiff who has suffered pure economic loss by entering into a transaction in reliance on a statement made or advice given by a defendant may be entitled to recover without proving that the plaintiff sought the information and advice. But, in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and that it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making the statement or giving the advice. 237 Dawson J said that for a duty of care to arise in cases of pure economic loss, in addition to foreseeability of harm, a special relationship described as one of proximity between the parties was required. 238 Toohey and Gaudron JJ said that whether there was a duty of care to take reasonable steps to avoid another's economic loss depended on whether there was a special relationship of proximity, which was found only in special categories of cases, and for which purpose reliance involved more than that the plaintiff relied on the statement in question as the basis for acting or not acting in a particular way, but a reasonable expectation that due care would be exercised in relation to it. Assumption of responsibility involved assuming responsibility for providing information or advice in circumstances where it was or ought reasonably be known that it would or may be acted on for a serious purpose and that loss may be suffered if it proved inaccurate. Their Honours accepted that there may be liability even where the statement was made neither with the intention that it be acted upon nor pursuant to a professional or contractual obligation, or the information was conveyed or became available to someone other than the person who requested it, but that such situations gave rise to a relationship of proximity only if the provider had some special expertise or knowledge or some special means of acquiring information not available to the recipient, and it was reasonable for the recipient to act on it without further enquiry. 239 McHugh J said that an auditor was not liable to members of a class for pure economic loss caused by negligent misstatement merely because he knew or ought to have known that they would rely on them, in circumstances where he had neither assumed responsibility to those persons nor intended to induce them to rely on the audit. Moreover, public interest would not justify imposing a duty of care where the law already imposed civil and criminal sanctions on auditors for breach of statutory duty. His Honour said (at 289): In the end, the most powerful point for holding that auditors owe a duty of care in cases like the present is that investors and creditors suffer their losses because they have relied, as the auditor knew or ought reasonably to have known they would, on his or her report, and the auditor has made that report carelessly. As against that, however, is the fact that the auditor did not invite or intend them to rely on it and they have paid nothing to the auditor for the preparation of the work. They require the auditor to compensate them for the loss that arose from their self-induced reliance, but they were not prepared to pay for the auditor's work. 240 Gummow J said (at 298-9): Then there is the matter of the interrelation between contract and tort. The existence or content of the obligations owed by A to B might be excluded or limited, subject to any particular overriding policy considerations or statutory provision, by the terms of the contract between A and B. Why then should A bear a greater responsibility to C, subject only to the defence of contributory negligence on the part of C? C is a party with whom there has been no dealing in respect of the subject matter of the contract. 241 In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, Gleeson CJ, Gummow, Hayne and Heydon JJ observed that the vulnerability of the plaintiff had emerged as an important requirement in cases where a duty of care to avoid economic loss had been recognised (at [23]): 'Vulnerability', in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, 'vulnerability' is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. So, in Perre , the plaintiffs could do nothing to protect themselves from the economic consequences to them of the defendant's negligence in sowing a crop which caused the quarantining of the plaintiffs' land. In Hill v Van Erp , the intended beneficiary depended entirely upon the solicitor performing the client's retainer properly and the beneficiary could do nothing to ensure that this was done. But in Esanda Finance Corp Ltd v Peat Marwick Hungerfords , the financier could itself have made inquiries about the financial position of the company to which it was to lend money, rather than depend upon the auditor's certification of the accounts of the company. In other cases of pure economic loss ( Bryan v Maloney is an example) reference has been made to notions of assumption of responsibility and known reliance. The negligent misstatement cases like Mutual Life & Citizens' Assurance Co Ltd v Evatt and Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) can be seen as cases in which a central plank in the plaintiff's allegation that the defendant owed it a duty of care is the contention that the defendant knew that the plaintiff would rely on the accuracy of the information the defendant provided. And it may be, as Professor Stapleton has suggested, that these cases, too, can be explained by reference to notions of vulnerability. 242 These cases establish that it is insufficient, to support imposition a duty of care to avoid foreseeable risk of economic loss occasioned by inaccurate or misleading statements, that the plaintiff suffers loss because it has relied (as the defendant knew or ought reasonably to have known it would) on the defendant's careless statement. It is necessary, in addition, either: · that the defendant intended the plaintiff to rely on it [ San Sebastian ; Esanda (McHugh J)] – or, at the very least knew or ought reasonably have known that it would be communicated to the plaintiff for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the relevant kind in reliance on it and thereby risk incurring of economic loss if it should be inaccurate or misleading [ Esanda (Brennan CJ)]; or · that there be a "special relationship of proximity", involving "vulnerability" on the part of the plaintiff (in the sense that the plaintiff is unable to protect itself from the consequences of a defendant's carelessness), and/or "assumption of responsibility" on the part of the defendant. 243 The plaintiffs submit that a duty of care arose, substantially for the following reasons: · Foreseeability of reliance. Metro Edgley admittedly knew that the DAs could be read and considered by persons who were considering purchasing or developing adjacent properties, into which class all the plaintiffs fell. Metro Edgley also knew that those classes of persons depended on the accuracy of the information in the DA provided to them during the exhibition period to inform a decision as to whether or not to purchase or develop relevant properties; · Assumption of responsibility. Metro Edgley made a commitment to government, as part of the basis on which they won the bid, to work with the community throughout the development application and construction phases and into the operational stage, including to be a "good neighbour", and thereafter, purported to acknowledge that obligation on many occasions. Given these undertakings to be a "good neighbour", it was reasonable for the plaintiffs to rely on the statements in the DAs, as they contained the most comprehensive information then available. · Vulnerability. The nature of operations at Luna Park and its effect on the amenity of the precinct, coupled with Metro Edgley's "special knowledge" of what was proposed, and its "undertakings" created a "special relationship" between Metro Edgley and the plaintiffs, and additionally the dealings between Metro Edgley and Glen Eight contributed to the existence of a "special relationship" with Glen Eight. 244 For the following reasons, however, I do not accept that Metro Edgley owed the plaintiffs generally, or Glen Eight in particular, any such duty of care. 245 Metro Edgley did not supply the information contained in the Development Applications to the plaintiffs in response to requests by the plaintiffs for information. While a plaintiff who has suffered pure economic loss by entering into a transaction in reliance on a statement made by a defendant may be entitled to recover without proving that the plaintiff sought the information, liability is rarely imposed in such circumstances. Indeed, Metro Edgley did not supply that information to the plaintiffs at all, but to a third party (the consent authority). While that circumstance also does not absolutely preclude the recognition of a duty of care, it tells against it, not least because recognition of a duty would permit the plaintiffs to obtain the benefit of the information without paying for it, and to outflank any contractual or other limitation, protection or disclaimer available to the maker as against the addressee. The applicant does not control the process of exhibition. While Metro Edgley could protect itself vis-a-vis the consent authority (including by amending or withdrawing or replacing its application), it had no control over the public exhibition process (which was in the hands of the consent authority), and thus no ability to protect itself vis-a-vis the class of suggested potential plaintiffs. 246 While, as the plaintiffs emphasise, Metro Edgley admitted on the pleadings that it knew that the DAs could be read and considered by persons who were considering purchasing or developing adjacent properties, the cases to which reference has been made establish that mere knowledge that a statement made to the addressee could be passed on to and relied on by third parties is insufficient to impose on the maker a duty of care in respect of the accuracy of the statement. Metro Edgley's admission that it knew that the Development Application could be read and considered by persons considering the purchase or development of adjacent property by potential purchasers or developers is quite insufficient to found the alleged duty of care, owed to those potential purchasers or developers, in respect of the accuracy of its contents. 247 As is pointed out Brennan CJ in Esanda, knowledge that the information would be communicated to the plaintiff (or a class that included the plaintiff) for a purpose that would very likely lead the plaintiff to enter into the relevant transaction in reliance on the information – as distinct from mere foreseeability – is required. I do not accept that Metro Edgley also knew that potential purchasers or developers depended on the accuracy of the information in the DA provided to them during the exhibition period to inform a decision as to whether or not to purchase or develop relevant properties – or that the information would be communicated to them or relied upon by them for the purpose of informing a decision about purchasing or development. The nature of a development application – an application for permission to carry out on land activity that would otherwise be prohibited – is important in this context. While it is foreseeable that the application will be placed on public exhibition, the purpose of such exhibition is in order that members of the relevant part of the public (in particular, neighbouring landowners) may decide whether or not to exercise any right of objection that they might have. A development application is an application to a consent authority, for the purpose of obtaining consent; it is exhibited for the purpose of obtaining comment from interested parties as to whether or not consent should be granted, but not for the purpose of informing potential purchasers or developers of matters relevant to a decision whether or not to proceed with their plans. At the very highest, an applicant for development approval might expect that neighbouring landowners might rely on the application for the purpose of deciding whether or not to exercise any right of objection, but that is far removed from intending that a potential purchaser or developer rely on it for the purpose of informing a decision to purchase or develop. 248 This is not affected by any "undertaking" to "be a good neighbour" or consult with residents. It is noteworthy that the "undertakings" relied on by the plaintiffs were expressed as commitments to the community or residents. Thus the circular distributed in the neighbourhood in about July 1999 by the Department of Land & Water Conservation, entitled "Luna Park – Turning the Lights Back On" and headed "The Future of Luna Park – How to Find Out More", explained that Metro Edgley had been selected to operate Luna Park and what would now happen, provided some outline of the Metro Edgley proposal, and, relevantly, contained the following: Who makes the decisions about the development proposals for the amusement area and the cliff top sites? The State Government made a commitment that a new Luna Park must be a good neighbour and that the best people to make decisions about the development proposals would be the North Sydney Council. Metro Edgley has also made a commitment to work with the community throughout the development application and construction phases and into the operational stage. 249 The Development Application lodged by Metro Edgley in March 2000 (DA 772/00) – which was not pursued because of unacceptable conditions – asserted: Stakeholder participation has played an important role in defining the preferred future use of Luna Park. Consultation with residents, the general public and other stakeholders since the Park's closure in 1996 has resulted in a preferred option for Luna Park to remain as an amusement park, with the sensitive introduction of new uses to ensure its viability. Preparation of staged DA 1 recognises the roles of these participants and the need for on-going consultation throughout the development process. 250 The key stakeholders listed included "local residents". 251 The 2001 DA, in section 2.1 "The Process To Date" stated: The Luna Park Plan of Management identifies a preferred option for Luna Park's future use, determined in consultation with residents, the general public and other stakeholders . 252 In the 2001 DA, section 6.1 included the following: A good neighbour Removal of the Big Dipper, which is underway, is a deliberate and symbolic gesture of goodwill to the immediate residents of Milsons Point . Luna Park will work with these residents to create a harmonious neighbourhood for all. 253 A handwritten note prepared by Mr Hearne entitled "Stakeholders + key messages + action" referred to "an interim Luna Park community consultation committee" and identified as relevant messages "when will Big Dipper go", "when will building works start", "when will park be completed", and "working with Council and community". 254 Even if Metro Edgley's statements, to government and the consent authority, to the effect that it would be a "good neighbour" and consult with residents and/or the community, can be elevated to the status of "undertakings", at the highest they were undertakings to the Department and the Minister, not to the "community" or the "residents". In any event, they were not promises to use reasonable care to ensure that there was nothing misleading or deceptive in any relevant development application, nor assurances that the contents of any such application could be relied upon for a purpose foreign to that for which they were intended. Moreover, the relevant class of potential plaintiffs – potential purchasers and developers – does not coincide with that of "residents" or "the community", but potentially includes many who have no existing connection with the neighbourhood. 255 Nor can I accept that there was a "special relationship" or "vulnerability" between the plaintiffs and Metro Edgley, by reason that Metro Edgley (1) ought to have appreciated from the large scale nature of its proposed amusement park development and its close geographical proximity to the class of persons that included the plaintiffs, that any development would inevitably affect the amenity of the plaintiffs' properties; and (2) had "special knowledge" which could not otherwise be obtained by the plaintiffs who had little or no control over what was proposed or what information was provided to them. The principle of "autonomy of the individual", referred to by McHugh J in Perre v Apand Pty Ltd (1999) 198 CLR 180, McHugh J (at 220 [105]) as one of five considerations relevant to determining whether a duty exists in a cases of pure economic loss, namely – the others being reasonable foreseeability of loss, indeterminacy of liability, vulnerability to risk, and knowledge of the risk and its magnitude – provides an important starting point. In Woolcock v CDG, his Honour elaborated that generally, a person owes no duty to prevent economic loss to another, even though he or she intends to cause economic loss [at [78]]: This particular immunity from liability reflects the common law's concern with the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action. Thus, as long as a person is legitimately protecting or pursuing his or her commercial interests, the common law does not require that person to be concerned with the effect of his or her conduct on the economic interests of other persons . (Emphasis added). 256 Similarly, in Woolcock, Gleeson CJ, Gummow, Hayne and Heydon JJ said (at 529-30): Claims for damages for pure economic loss present peculiar difficulty. Competition is the hallmark of most forms of commercial activity in Australia. As Brennan J said in Bryan v Maloney [(1995) 182 CLR 609 at 632]: If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition, sterilise many contracts and, in the well-known dictum of Chief Judge Cardozo, expose defendants to potential liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'. That is why damages for pure economic loss are not recoverable if all that is shown is that the defendant's negligence was a cause of the loss and the loss was reasonably foreseeable. 257 Often, the carrying out of development, or the existence of a proposal to carry out a development, on land, will have a potentially adverse impact on the value of other nearby land, and thereby occasion economic loss to neighbouring landowners. Neither the foreseeability of that loss, nor the geographical propinquity of the properties, nor both together, suffice to impose on the developer a duty not to occasion such loss by proposing or carrying out the development. The scale of the proposed development, and the obviousness of the potential impact, makes no difference to this. A neighbour's proposal to build a multistorey home unit building in an area dominated by single dwelling houses on substantial lots is likely detrimentally to affect the value of the neighbouring lots, but no duty of care prevents the neighbour from advancing or implementing the proposal. Nor does the circumstance that only the developer knows what it is proposing to do, and the neighbouring owners have no way of discovering it, give rise to any such duty. The developer is legitimately pursuing its commercial interests, and to impose a duty of care in this context would destroy commercial endeavour. 258 If no duty, then, prevents the advancement or implementation of the proposal, then a fortiori no duty of care to avoid foreseeable risk of economic loss caused by inaccurate or misleading or deceptive statements in the associated development application is owed to existing neighbours – let alone to the wider and more imprecise class of potential purchasers and developers – and particularly in connection with a purpose foreign to that for which the development application was made. If the plaintiffs wished to ascertain what Metro Edgley's proposals were, they could have – rather than relying, for a purpose unintended by it authors, on a Development Application not addressed to them – made their own direct enquiries, as Mr Hutcheson and Mr Revay indeed did. The plaintiffs were not, in the relevant sense, vulnerable. 259 As to Glen Eight, it has already been explained that the communications between Glen Eight and Metro Edgley were founded in an interest on the part of Glen Eight in ascertaining what Metro Edgley proposed to do at Luna Park, because of the potential impact of development of Luna Park on its building, and an interest on the part of Metro Edgley in minimising opposition to its plans. While there was occasional reference to co-operation for mutual benefit, it was incidental, and not much came of it. Glen Eight knew from the outset of its interest in Yellow Pages House that there was a risk of adverse development on the Luna Park site. To address that risk, Glen Eight sought – without success – a commitment from the Reserve Trust to limit the height of any building to the west of Yellow Pages House and, in addition, to position itself to object to developments subsequently proposed at Luna Park, by obtaining its own development approval for residential conversion. Mr John Roth understood that Glen Eight's only protection against development adverse to Yellow Pages House was the possibility of objecting through the usual planning processes, and that it was in order to position itself to sustain such objections that it had sought to obtain the prior development approval. He recognised that it was always possible that, despite any such objection, there might be a proposal for redevelopment adverse to Glen Eight's proposed residential conversion, which might be approved. He accepted that by proceeding without having obtained any agreement with the Reserve Trust to limit development of Luna Park, some commercial risk was assumed. Mr Revay, acknowledging that the current intention of an adjoining owner could change, explained that the critical judgment was the likelihood of adverse future development being proposed, and, if proposed, approved; and that Glen Eight had made a calculated judgment, from the available information, as to what was likely to occur. 260 Metro Edgley and Glen Eight were adjoining landowners or occupiers with competing commercial interests in respect of the development of Luna Park, which each respectively sought to advance. Glen Eight knew that it was assuming an element of risk. Metro Edgley did not, in connection with the DAs, assume responsibility for advising or informing Glen Eight of its proposals, and Glen Eight did not rely on Metro Edgley to do so. There was no such "special relationship" or "vulnerability" as could found a duty of care between them in respect of statements as to Metro Edgley's proposals for Luna Park – particularly those made in the DAs, which were addressed to the consent authority and not to Glen Eight.. 261 There is even greater reason to decline to impose liability in negligence where, as here, the asserted misrepresentations are not express. In the judgment of the Court of Appeal in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268, Glass JA said (at 308E-309C): It can be seen that the information or advice sued upon stands at many removes from any information or advice contained in the study. Only steps 1 and 3 answer that description. Stage 6 is reached by obtaining 2 by implication out of 1, 4 by implication out of 3, 5 by implication out of 4 and 6 by implication from 2 and 5. The information allegedly imparted thus stands at fourth remove from the express language of the study. It can be seen that no information capable of being proved false was imparted unless the study when recommending floor space ratios was simultaneously giving an assurance that largely commercial development to something like the maximum density would be permitted. It was put to us by Mr Wilcox QC, leading counsel for the plaintiffs, that developers would read the recommended floor space ratios knowing that the study was a 'document prepared for the real world' in which 'market forces would push it in the direction that commercial considerations dictated' so that a 'developer would reasonably expect that … he could get something of the order of magnitude' of the maximum figures shown. But the nature of the submission demonstrates that the information said to be imparted depends in large degree upon the expectations of developers due to factors not mentioned in the study documents. In many branches of the law there is a distinction between express statement and implications and inferences not included in what is expressed. … I consider that a similar demarcation line between what is expressed and what may be inferred from the express language has an important part in the law of negligent misrepresentation as a direct consequence of the way the liability has been formulated. I would take it to be fundamental that a defendant, being aware that the plaintiff intends to rely on the accuracy of information given, cannot assume responsibility for its accuracy, cannot know that he is being trusted to give accurate information and cannot let it be known that he is willing to exercise reasonable care that his information is accurate except with respect to information expressly imparted by him to the plaintiff. Conduct which is tantamount to the giving of express information, … will suffice but movement beyond that point will not, I believe, satisfy the requirements of principle. 262 Hutley JA said (at 281B-C): The documents, … nowhere state that the plan is feasible of implementation. This is a matter of inference which the court is asked to find was drawn by the developer. There is no decision, except Shaddock , which permits recovery for inferred statements. That case represents the outer limit of inference. For myself, I would be most reluctant to extend it. As I read the judgments, the failure of the council to say anything was treated as equivalent to a positive denial of the existence of a road widening scheme. I am prepared to accept that Mr Baker drew it according to his understanding of the term, but that is not sufficient. The requirement is that the court finds that for all practical purposes, the statement is in the document so that the appellants can be taken as saying that the plan is feasible, and feasible as understood by Mr Baker. Of course, their denial that they intended to say what it is alleged they inferentially said is not decisive. The question is: What must their words mean in the proper context? 263 Here, the asserted misrepresentations conveyed by the DAs were not express, but involve implying, from the statements in the DAs about children's rides in the Northern Extension, the conclusion that – at least for the foreseeable future – only children's rides would be located and operated in that area. In the context of land use, which is liable to change, such an implication is far from self-evident. Consistent with the dicta of Glass and Hutley JJA in San Sebastian, the law of negligence does not impose liability in connection with such an implication. 264 Accordingly, Metro Edgley owed no duty of care to the plaintiffs (as potential purchasers or developers of neighbouring properties) to avoid foreseeable risk of economic loss occasioned by inaccurate or misleading statements in the development applications. In any event, liability would not extend to the assumptions made by the plaintiffs, only by implication from the express statements in the DAs, as to what would happen in the Northern Extension. The plaintiffs' negligent misrepresentation claim must therefore fail. 4.8 Conclusion on the Misrepresentation Claims 265 The Trade Practices Act claim fails because: · Neither the 2001 DA nor the 2002 DA contained or conveyed any relevant misrepresentation. Their lodgement with the consent authority was not misleading or deceptive conduct. Nor was it "in trade or commerce". Moreover, any statement contained in them was not made to nor received by members of the public in their capacity as potential purchasers or redevelopers of property in the area of the Luna Park site, but only in their capacity as adjoining landholders who might wish to object to development at the Luna Park site, and the plaintiffs are not entitled to a remedy under the Trade Practices Act in respect of them. · Although it was misleading for Metro Edgley on and after 13 May 2002 until exhibition of the 2002 DA not to disclose to Glen Eight its proposal to locate and operate adult thrill rides in the Northern Extension in the context of its express statement that it proposed to locate and operate children's rides there, that conduct was not in trade or commerce. 266 As to the Negligent Misrepresentation claim: · Neither the 2001 DA nor the 2002 DA contained or conveyed any relevant misrepresentation. · Metro Edgley owed no duty of care to potential purchasers or developers of neighbouring properties in connection with statements made in the development applications. · No negligent misrepresentation case was pleaded in respect of non-disclosure to Glen Eight on and after 13 May 2002, but the relationship between Metro Edgley and Glen Eight was not such as to give rise to a duty of care to avoid occasioning economic loss by misstatements of intentions as to future development of Luna Park. 5.0 THE MISREPRESENTATION CLAIMS – RELIEF 267 The plaintiffs claim, pursuant to Trade Practices Act, ss 80 and/or 87, an order restraining Metro Edgley and LPS from locating and operating thrill rides in the Northern Extension, and Messrs Hearne and Doughty from causing or permitting LPS to do so; and, alternatively, damages pursuant to Trade Practices Act, s 80 and/or 87, and at common law for negligence. 5.1 Injunctive Relief 268 The injunctive relief sought is not to restrain the contravening conduct (said to be constituted by the making of the alleged misrepresentations or non-disclosures in the development applications), nor repetition of that conduct, but to restrain conduct inconsistent with the state of affairs which the conduct is alleged to have caused the plaintiffs to assume would exist. 269 Although the context and content of Trade Practices Act, s 80, suggests that its primary focus is the restraint of conduct contravening provisions of the Act, since the 1983 amendment it empowers the court to grant injunctions on such terms as it determines to be appropriate, and it is clear enough now that orders other than injunctions restraining contravening conduct are authorised [s 80(5)] – although the discretion to grant relief is confined by reference to the scope and purpose of the Act [OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500], so that the injunction must at least have a relationship with contravention of the Act [ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, 267 (Gummow J)], in that there must be a "sufficient nexus" between the contravention and the injunction granted [Australian Competition & Consumer Commission (ACCC) v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 (Merkel J)]. While it is true that injunctions to hold relevant defendants to the representations made are not unknown in equity – where, for example, injunctive relief may be granted in aid of an equitable estoppel – s 52 is directed at the making of, not the failure to honour, misrepresentations [Henville v Walker, 502 [132]], and just as awards of damages for contraventions of s 52 are based on the principle that the plaintiff is to be compensated for the difference between the position in which it is and the position in which it would have been but for the deceptive conduct, so too in the grant of injunctive relief the focus is on the restraint of contravening conduct, rather than the making good of erroneous assumptions said to have been caused by it. 270 The loss claimed by the various plaintiffs in the present case is economic: it is said to be occasioned by their having paid more for their properties than their true value – or, in the case of Glen Eight, the lost opportunity of an alternative development, resulting in reduced cash flows. Such loss, if established, is amenable to compensation by damages. Damages are an adequate remedy, and it would not be unjust to leave the plaintiffs to a remedy in damages, where the claim has had to be framed as one for exclusively economic loss – because of the Noise Amendment Act, the plain intent of which was to deprive adjoining owners and occupiers from a remedy for noise emission from Luna Park. Indeed, it might be said that in such a case, damages are the quintessentially appropriate remedy. 271 Moreover, injunctive relief to freeze forever further development of the Luna Park Site would be inappropriate. An injunction could be supported, at most, only for so long as the relevant plaintiff continued to hold his her or its property; if a plaintiff were to choose to sell, there would be no basis for its continuation thereafter. Yet an injunction that did not enure for the protection of purchasers from a plaintiff – who therefore would pay a price based on the property affected by noise – would not prevent the potential loss on sale. For this reason, there would be little utility in an injunction limited to the period during which the relevant plaintiff held the property. 272 Finally, Metro Edgley no longer has any direct interest in the Luna Park site – LPS is the lessee and the operator. The plaintiffs' assertion that LPS operates the rides as agent for Metro Edgley was not substantiated by evidence. As Metro Edgley does not operate the rides or the park, there would be no utility in granting injunctive relief against it. 273 Accordingly, assuming that it were otherwise established that Metro Edgley had engaged in misleading and deceptive conduct as alleged, injunctive relief would have nonetheless been declined as a matter of discretion to grant, because there would be little utility in such relief, and because damages are an adequate and the appropriate remedy for economic loss in the present context. 5.2 Damages – reliance and factual causation 274 The plaintiffs' claims for damages under Trade Practices Act, s 82, proceed on two distinct bases: · As to Mr and Mrs Hesse, Ms Dwyer and Mr Simkin, and Mr Billington and Ms Mather (the individual plaintiffs), that because of their (claimed) reliance on the (allegedly) misleading and deceptive conduct of Metro Edgley, they purchased their properties, which they would otherwise not have purchased, and in doing so paid a price that exceeded the true value of those properties at the time of acquisition; · As to Glen Eight, that because of its (claimed) reliance on the (allegedly) misleading and deceptive conduct of Metro Edgley, it lost the opportunity of undertaking a commercial refurbishment of Yellow Pages House, which in the events that have happened would have been more economically beneficial to it than the residential redevelopment with which it proceeded. 275 A person who suffers loss or damage by conduct of another done in contravention of Trade Practices Act s 52 may recover the amount of the loss or damage by action against the other or against any person involved in the contravention [Trade Practices Act, s 82(1)]. This involves a notion of causation [Wardley Australia Ltd v State of Western Australia (Rothwells Loan Case) (1992) 175 CLR 514, 525]. Although it is often put in terms of reliance on the misrepresentation, ss 52 and 82 are concerned with misleading and deceptive conduct, and the true issue is whether the conduct occasioned the relevant loss. Section 82 provides remedy to a person who has in fact been mislead and deceived by relying on the conduct of the respondent [Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR ¶41-017, 51,317]. What this really involves is that the applicant's action (or inaction) was attributable to its erroneous belief or assumption, created by the contravening conduct. 276 Similar notions inform liability for damages for negligent misrepresentation. 277 In this context, the critical question is whether, but for the contravening conduct, the applicant would have taken the reliant action [Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413, 425-6 [19]; Henville v Walker (2001) 206 CLR 459, 495 [110]]. Thus, in order to recover damages, an applicant must show, inter alia, that but for the contravening conduct (or the negligent misrepresentation), the applicant would not have acted, or refrained from acting, and that as a result its circumstances would have been more advantageous than those which obtain as a result of the reliant action or inaction [Henville v Walker, 495 [110]]. 278 This requires consideration and comparison of the events that have happened, with what would have happened had there been no contravening conduct, and ordinarily involves a hypothetical enquiry assuming the non-existence of the contravening conduct, rather than one that assumes the truth of the misleading conduct [Henville v Walker, 500 [126]]. However, a complication arises in a case where the contravening conduct is constituted in whole or in part by silence or non-disclosure. Mr Clarke, for the third and fourth defendants, submits that it follows from Henville v Walker that, in the present case, the plaintiffs must prove, not what they would have done had each been told that there would be thrill rides in the Northern Extension, but what they would have done had they not been told (as they allege) that there would not be thrill rides in that area – that is, what they would have done had they been told nothing about whether thrill rides would or would not be in the Northern Extension. But in my view, that conclusion does not follow from Henville v Walker: the contrasting hypothetical inquiries referred to by McHugh J involve comparing, in each case, the actuality of the state of affairs that has eventuated, with on the one hand the hypothetical state of affairs that would have eventuated had the misleading conduct not taken place (the correct inquiry), and, on the other, the hypothetical state of affairs that would have eventuated had the misleading conduct been true (the incorrect inquiry). In this case, one must compare the state of affairs which has actually eventuated, with that which would have eventuated had the (allegedly) misleading conduct not taken place – not with that hypothetical state of affairs that would have eventuated had the (allegedly) misleading conduct been true (ie, had only children's rides been located and operated in the Northern Extension). 279 Henville v Walker does not say whether, in a case in which the misleading and deceptive conduct involves, in part or in whole, silence or non-disclosure, one assumes no representation at all, or one assumes full disclosure. However, the circumstance that, in some cases, silence can constitute misleading and deceptive conduct, provides the answer. In such a case, the conduct is misleading or deceptive in the absence of any positive representation, because of non-disclosure. Thus, in a non-disclosure case, the relevant assumption for the purpose of the inquiry into the hypothetical state of affairs that would have eventuated, but for the misleading and deceptive conduct, is that the relevant disclosure was made. In this case, that involves, on relevant assumptions, disclosure that Metro Edgley proposed to locate and operate in the Northern Extension not just children's rides but also adult thrill rides, or (in the case of the 2002 DA) that the Ranger, the Spider and the Octopus were adult thrill rides, not of the same nature as the "children's rides". 280 In his cross-examination of the various plaintiffs and their agents, Mr Parker SC consistently gained spectacular concessions to the effect that assertions of reliance on the positive representations referred to in the pleading were incorrect or untenable. But he did not achieve, or essay, a concession that knowledge of the existence of a proposal to locate and operate adult thrill rides in the Northern Extension would have made no difference to the plaintiffs' decision (to purchase, or redevelop). The cross-examination established that the plaintiffs did not (or at least could not reasonably) entertain the view, from the 2001 DA or the 2002 DA, that there would in the future be no adverse change in the use of the Northern Extension. However, their decisions (to purchase, or redevelop) were informed by a myriad of factors, and ultimately involved assessing, weighing and balancing those factors. One of those factors, which each took into account, was the probable impact of Luna Park on the amenity of their properties. Their concessions that they understood that the use of the Northern Extension could change does not mean, either that they did not (in fact) have regard to and take into account what they understood to be the current proposal, or that knowledge of a different, more adverse, proposal would not have affected their decision (even if its implementation were not a certainty). They made their decisions thinking there was but a slight risk of more adverse development, whereas had they been told of a presently existing proposal to locate and operate adult thrill rides in the relevant area, their assessment of that risk would have been very different. Accordingly, had Metro Edgley, by failing to disclose the existence of a proposal to locate and operate adult thrill rides in the Northern Extension in the 2001 DA, engaged in misleading and deceptive conduct, the plaintiffs' case on reliance would not have been rejected by reason of their concessions in cross-examination in respect to the effect that assertions of reliance on the positive representations referred to in the pleading were incorrect or untenable. 5.2.1 Mr and Mrs Hesse 281 Mr Hesse is an experienced architect with over 30 years in practice, and Mrs Hesse is an office manager in his architectural practice. Before they learnt of the 2001 DA, they had already, on 25 June, made a "final offer" of $1.55 million for their unit in the Colonnades – subject to a number of conditions, none of which related to the Luna Park site – and, on 26 June, paid a deposit of $5,000. As a result of Mrs Hesse seeing the 30 June article concerning Luna Park, Mr Hesse inspected the DA at North Sydney Council, and told Mrs Hesse: There will be a play area on this side of the Coney Building. The area is reserved as open space and they will be putting a small ride, a mini-train and something for kids to jump on. The Big Dipper is not coming back. There are height restrictions on buildings in the park and in the area in front of us. They are not allowed to put any structures in the open space. It looks like everyone is trying to make a decent go of it this time and community concerns are to be addressed. The plan of management says there are to be no rides outside the building envelopes and so we should have no problems. 282 Mrs Hesse said that, as a result, she believed that the effect of the plan of management was that there was a restriction preventing rides being located in the Northern Extension, which she understood to be permanent and sourced in the plan of management. She agreed that this belief was not based on the 2001 DA. She understood that a DA could be changed, and did not prevent the lodgement of a further different DA. She believed that the plan of management prohibited rides in the Northern Extension, and this convinced her that rides could not be placed in front of the apartment they were proposing to buy. 283 The defendants submitted that, as any relevant misconception on the part of Mr & Mrs Hesse was attributable to the plan of management and not to the 2001 DA, they had not established reliance on the relevant contravening conduct. The cross-examination of Mr and Mrs Hesse established that their belief that there was a permanent restriction on rides being located in the Northern Extension arose from the plan of management, and not from the 2001 DA. However, those concessions do not establish that the non-disclosure in the 2001 DA of any then existing proposal to locate and operate thrill rides north of Coney Island was immaterial. While their assumption may have been created by the plan of management, they would have been disabused of it had the 2001 DA disclosed a proposal to locate and operate, in the Northern Extension, in addition to children's rides, adult thrill rides. In view of the enquiries they instituted, their evidence to the effect that with that knowledge they would not have proceeded is inherently plausible. Indeed, it was not challenged, the substantial attacks on their claims of reliance not being addressed to that aspect. 284 The defendants also submitted that reliance on the 2001 DA was inconsistent with the evidence that the Hesses had already paid a deposit, especially when the letter of 25 June identified a number of conditions, none of which none pertained to activity at Luna Park. I reject this submission. The deposit of $5,000 paid on 26 June 2001 was a "holding deposit", not a contractual deposit; the purchaser remained free to withdraw, and was not committed to exchange. It was after paying that deposit that on 30 June 2001 Mrs Hesse saw the article in the Sydney Morning Herald and instituted enquiries about what was proposed at Luna Park, and those enquiries took place before she proceeded to exchange contracts on 25 July 2001. I accept that she was not bound to proceed to exchange, and that she would not have done so if, prior to 25 July 2001, she had become aware of a proposal to locate and operate adult thrill rides in the Northern Extension. 5.2.2 Ms Dwyer and Mr Simkin. 285 Ms Dwyer is a property development consultant operating predominantly in the lower north shore and eastern suburbs of Sydney. She has worked in the property area for about 20 years, and has always had an interest in property and the state of the property market. Mr Simkin is and has for 12 or 15 years been a property developer. 286 Prior to exchanging contracts for the purchase of their unit in The Cavill on 13 March 2002, Mr Simkin on 1 March 2002 retained Dr Hutcheson, to "do due diligence" on the apartment, including to "check out about Luna Park" and whether there were "any proposals I should be worried about". 287 Dr Hutcheson attended North Sydney Council on 4 March 2002 and was provided with folders containing the 2001 DA, which by then had been approved. He also received a fax from Luna Park, attaching media releases by Luna Park. Dr Hutcheson reported to his clients, on 7 March 2002, that there were going to be some children's rides in the area next to Coney Island, with some kiosks and a picnic area for families, and "I am waiting for some plans to come from Luna Park and will send them to you when I get them". He subsequently obtained and provided to Mr Simkin a copy of drawing MDA09. 288 It was Dr Hutcheson's understanding that approval of the 2001 DA meant that before any rides were located anywhere in Luna Park, there would need to be a development application addressing that specific matter. He understood that the ride and amusement zone – within which rides could be replaced, removed or moved around without any further development application – included the Northern Extension, and that any final decision about where the rides were to be located within that zone would depend on a further development application. However, although at times Dr Hutcheson seemed to suggest that any assurance he conveyed to his clients that MDA09 represented what was going to happen at Luna Park came from what he was told by persons "at Luna Park" or the duty planner at Council, read as a whole his evidence was not to the effect that the presence of MDA09 in the DA was irrelevant to that conclusion. 289 Mr Simkin understood, at least, that the 2001 DA was a Stage 1 application, and that further DAs would be coming forward in relation to, inter alia, "relocation of existing rides". Ms Dwyer and Mr Simkin understood that new or further proposals could come forward at any time, which could result in thrill rides being located in the Northern Extension, and that they assumed that risk in proceeding with the purchase. 290 It was from Ms Dwyer that Mr Parker obtained the most spectacular concessions – that her claims in the statement of claim, which she had verified, to have relied on the positive representations pleaded were not true. I hasten to add that I entirely reject the plaintiffs' submission that these concessions were the result of "an unnecessarily aggressive and tricky cross-examination"; Mr Parker's cross-examination, though appropriately firm and forceful, was neither aggressive nor tricky, and no such objection was taken to it at the time. However, for reasons already explained, these concessions were not destructive of Ms Dwyer's reliance case. She was not asked, and did not concede, that disclosure of a proposal to locate adult thrill rides, as well as children's rides, in the Northern Extension, would have made no difference to her decision. To the contrary, the evidence of Ms Dwyer and Mr Simkin demonstrated that the risk of exposure to noise was important to them. I am satisfied that had they been made aware before purchasing of the existence of a proposal to locate and operate adult thrill rides in the Northern Extension, that would probably have deterred them from proceeding with their purchase. There is a world of difference between acceptance of the possibility that a new, more adverse, plan for the use of Luna Park might be formulated in the future, to knowledge of the existence of a present proposal. Their assertions that, had they been aware of such a proposal they would not have proceeded, are inherently plausible, particularly given their retention of Dr Hutcheson to ascertain what was proposed for the purposes of informing their decision to purchase. 5.2.3 Mr Billington and Ms Mather. 291 Mr Billington is a company director in a company dealing with transport technologies, and Ms Mather is a clinical psychologist. When they exchanged contracts for the purchase of their apartment in 12 Glen Street, on 15 October 2002, Mr Billington had visited North Sydney Council twice – once on 18 September 2002 for two hours, when he read the 2001 and 2002 DAs, and a second time on 26 October 2002 for an hour and a half, to review them in further detail. He understood that it proposed a ride and amusement zone, which extended to the Northern Extension. He understood that MDA09 was illustrative only. He thought that the 2002 DA was the more pertinent document. Mr Billington and Ms Mather alone now rely on the 2002 DA. 292 Mr Billington understood that lodgement of a development application did not oblige the applicant to carry out the development, even if the DA was approved. He understood that if the 2002 DA was approved, nonetheless anyone with control of Luna Park could thereafter submit a new DA (including one that would locate large thrill rides in the Northern Extension). He accepted that he assumed the risk that some different, more adverse, development might occur in the future, but thought that that would probably be some years away. 293 He read the acoustics report in the 2001 DA, from which he was aware that rides such as the Ranger and the Octopus were significantly louder than the "children's rides". Though professing that he was "not a sound expert", he had quite a sophisticated understanding of the physics of sound. Mr Billington observed that in the 2002 DA, the Ranger and the Octopus were depicted as being located in the Northern Extension, and he knew from the acoustic plan of management in the 2002 DA that they were significantly louder than "kiddies rides". He also knew that they were going to be closer to his apartment than the children's rides, and would have the greatest impact on his apartment. But he claimed that the circumstance that the Ranger and Octopus were treated separately from children's rides in the acoustic report did not give him cause for concern, because the documents made it "very clear in many points that they were kiddies' rides". He said that he made an assessment of the likely impact of the noise from the Ranger, having regard to its distance from his property, and concluded that it would be manageable, even in the light of the noise readings in the acoustics report. 294 Mr Billington thus knew that the acoustics report dealt with the Ranger and Octopus separately and distinctly from the "kiddies' rides"; that the Ranger and the Octopus were very loud rides – the Ranger was seven and a half times louder than what the acoustics report called "kiddies' rides"; and that the Ranger and Octopus would have the greatest impact on his apartment, be cause they were closest. The most important aspect is that he knew that, in terms of noise generation, the Ranger and the Octopus were very much louder than the children's rides. I cannot accept, in those circumstances, that it would have made any difference to him had he been told that the Ranger and the Octopus were not children's rides. He knew that they were very much louder than the "children's rides". 295 Ms Mather did not read the 2002 DA. She attended the Council's office for a quarter of an hour, but could not recall what she looked at. She relied primarily on Mr Billington's opinion that the development would not adversely affect them. 296 I am unable to accept that Mr Billington and Ms Mather acted on any misapprehension that the Ranger was a "children's ride". Ms Mather relied on Mr Billington, and Mr Billington well understood the differential noise impact of the Ranger and the Octopus on the one hand, and the children's rides on the other. Given that understanding, I am unpersuaded that any belief that the "Ranger" or "Octopus" was a children's ride influenced their decision, when they appreciated the differential noise impact of those rides and the "children's rides". 5.2.4 Glen Eight 297 Glen Eight's case on reliance is that, had it known prior to June 2002 of the existence of a proposal to locate and operate adult thrill rides in the Northern Extension, it would not have proceeded with the residential conversion of Yellow Pages House but would have reverted to – or more accurately continued to – use the property for commercial purposes. Until Mr Rickard inspected the 2002 DA in July 2002, Glen Eight's directors and officers had no knowledge of any proposal to locate anything other than children's rides in the Northern Extension. They say that, with that knowledge, they would not have proceeded with a residential conversion, and that they could have made the decision not to do so at any time up to exchange of contracts with purchasers of residential apartments on 6 June 2002, but thereafter were "locked in" by the exchange of contracts for sale of residential units. Having regard to my conclusion that any obligation to disclose the proposal to locate and operate adult thrill rides in the Northern Extension did not arise before 13 May 2002, Glen Eight must show that disclosure between then and 6 June 2002 would have deterred it from proceeding with the residential conversation. Assessment of the retrospective claims of its directors that they would have abandoned the residential conversion is informed by their beliefs and assumptions prior to discovery of the adverse proposal, and their actual reactions upon and following its discovery in August 2002, in the light of the provisions of the contracts in question. This particularly requires attention to the circumstance that knowledge of a proposal to locate and operate rides may be far removed from the experience of the actuality of their operation in the location. 298 As has already been observed, from the outset of its interest in Yellow Pages House, Glen Eight knew that there was a risk of adverse development on the Luna Park site and took various steps (including seeking a commitment from the Reserve Trust as to the height of any building to the west of Yellow Pages House, and – having failed to obtain any such commitment from the Reserve Trust – then obtaining its own development approval for residential conversion in order to position itself to make objections to developments subsequently proposed at Luna Park). 299 Mr John Roth recognised that the 1999 Masterplan was just a proposal, and accepted that he could not reasonably act on an assumption that it would necessarily be implemented. He recognised that it was always possible that, despite any objection Glen Eight might make, a proposal for redevelopment adverse to Glen Eight's proposed residential conversion might emerge and might be approved. He accepted that by proceeding without having obtained any agreement with the Reserve Trust to limit development of Luna Park, some commercial risk was incurred. 300 In 1999, when Mr Revay designed and submitted the DA for the residential conversion of Yellow Pages House, the plans addressed sound protection of the premises, revealing an appreciation that there would be significant noise emissions from Luna Park. 301 It will be recalled that in May 2000, in the light of Metro Edgley's then DA 772/00, Glen Eight and Metro Edgley agreed that, in return for Metro Edgley's agreement to reduce the proposed maximum height of Milsons Landing, Glen Eight would make no objection to Metro Edgley's DA. 302 None of Stanley Roth, John Roth or Mr Revay saw the 2001 DA when it was notified and exhibited; it was Mr Rickard who inspected it and conveyed a report to Mr Revay. Mr Rickard accepted that the 2001 DA did not exclude the possibility that the proposal reflected in it might be changed to a more adverse one in the future, and that, even if a playground with only children's rides were initially established in the Northern Extension, the 2001 DA contemplated that that could change at a later time, with the relocation of rides within the "rides and amusement zone". He also understood – as the 2001 DA expressly stated – that existing rides were capable of producing noise at nearby properties exceeding 60dBA, and under some conditions as high as 80dBA. 303 Mr Stanley Roth knew that mere lodgement of the 2001 DA said nothing about what would ultimately occur on the subject land, nor even of the present intentions of the developer. He knew that lodgement of the DA involved no commitment to carry out the development proposed in it in the future. He accepted that the 2001 DA gave no certainty as to what ultimately would happen in the Northern Extension, and that had he turned his mind to it, he could not have been assured that children's rides would be placed in that area. 304 Although Mr John Roth said that, by June 2002, he thought that there was "no risk" of an adverse development in the Northern Extension, it is not apparent how he could reasonably have reached that conclusion, which was undermined by concessions made by him in cross-examination: while he said that he believed that Metro Edgley was restricted by an approval for children's rides only in that area, he recognised that the 2001 DA was just a proposal, and that there was a risk that a proposal for more adverse development than the proposal contained in it might emerge and be approved. He understood that a statement by Metro Edgley that it had no present intention of putting anything other than children's rides in the area involved no commitment never to do so. Confronted with the irony that Glen Eight's own case for reliance depended upon establishing that, though it had lodged a development application and received a development approval for residential conversation, and had even embarked upon the conversion, it was at liberty not to proceed with it, he accepted that if Metro Edgley, having seen that Glen Eight had made a development application, had conducted its own affairs on the basis that the residential conversion would proceed, Glen Eight would nonetheless have remained at liberty to change its mind – because making the development application involved no commitment to proceed in accordance with it. 305 Mr Revay agreed that, in purchasing property or deciding whether to implement a particular development, reliance could not be placed on the mere fact that no adverse development was currently proposed on adjoining land, because such could always be proposed in the future and permitted by the consent authority. At one point he said that, as at June 2002, he believed that there would never be thrill rides to the north of Coney Island – which he subsequently limited to his lifetime – because of what he had been told by Mr Abbott and Mr Marton, the plan brought back by them from the 13 May 2002 meeting, the fact that nothing had been mentioned in the course of discussions with Multiplex concerning the construction of Milsons Landing, the approval of the DA for Milsons Landing, Mr Rickard's report of what he saw when he inspected the 2001 DA, and Mr Hearne's indication that they would be good neighbours. But he later conceded that while he thought it "unlikely, most unlikely", he nonetheless recognised the possibility that, subject to development approval, thrill rides could be located north of Coney Island. He agreed that he had no commitment from Metro Edgley as to the future development of Luna Park. 306 In cross-examination, he gave this evidence: Q. You recognise that the master plan being referred to was only a plan and it did not represent any commitment on the part of Metro Edgley to actually undertake a development in accordance with the master plan? A. That's correct. Q. You understood it would be open to Metro Edgley to change its mind at any time as far as the plan being put forward was concerned? A. Yes. Q. Even if the plan was approved Metro Edgley might change its mind? A. Yes. Q. And that Metro Edgley would be free at any time to change its mind and bring forward a proposal which involved having thrill rides located in a different position from that shown in the picture on page 254? A. Well it is not something that occurred to me, Mr Parker, because I had been told by Mr Hearne at the meeting that he was going to be planning to put small rides to the north of Coney Island. Q. You understood that statement to be nothing more than a statement of his then current intention? A. I thought that was his current intention. Q. But you recognised that that could change at any time? A. I didn't think about that because when I talk to someone, in normal conversation someone says 'I am going to do this', I suppose I could say – or they might change their mind. I'm going to meet so-and-so at 2 o'clock in the afternoon and they change their mind. But when they say they are going to meet me at 2, I assume they are going to turn up. I didn't think about it at the time. Q. Had you reflected on it for any length of time you would have immediately appreciated that? A. I would have. Q. And you would have appreciated that it was not a satisfactory basis on which to make multi-million dollar decisions? A. That's correct. Q. You didn't in fact use it as a basis for making any multi-million dollar decisions in the development of Yellow Pages House, did you ? A. No . Q. You're agreeing with me ? A. That's right . 307 This was a clear concession that he did not in fact rely on any assumption that development of Luna Park would be no more adverse to Yellow Pages House than that illustrated in MDA09 or mentioned by Mr Hearne on 13 May 2002. Consistently with this – and with the purpose of exhibition of a DA – Mr Revay also agreed that the sole purpose of sending Mr Rickard to North Sydney Council to inspect the 2001 DA was to ascertain whether there was anything to which Glen Eight should take objection (as distinct from providing a basis for Glen Eight's future plans). Then, he gave this evidence: Q. You recognised, based on Mr Rickard's report, that all that the development application was was an application for permission to do a particular development which, as you say you understood it, didn't involve any thrill rides north of Coney Island. A. Mr Rickard said that there were some rides shown to the north of Coney Island which he didn't think were of concern to us. That's what he said. Not "rides", in fact, he said there was a "children's ride area", I think were his words. Q. You didn't understand from what Mr Rickard told you that Metro Edgley had made any commitment about what it would in fact build in the area north of Coney Island in the document, that is, the development application, did you? A. No. He just looked at the development application. He said if this application is approved he didn't think it would be a problem for us. Q. If this is approved then they would be entitled to carry out a particular development? A. Yes. Q. You didn't understand that as any statement by them they would in fact carry out that particular development? A. No. Q. You recognised that it would be open to them at any to put forward a development which included, amongst other things, thrill rides in the area north of Coney Island? A. Well, yes, they could do that. Q. And if that was approved then they would be able to build such rides? A. Yes. Q. And you did not believe, based on what Mr Rickard told you, that Metro Edgley was saying in the development application that a children's ride area and a children's ride area only would be constructed in the area north of Coney Island, did you? A. From the plan of the area I imagined that Metro Edgley was planning to construct that thing otherwise why would they lodge a DA for it. Q. Well, for the same reason interests associated with you lodged a DA for Yellow Pages House? A. Yes. Q. For residential conversation when you told us you hadn't made up your mind to proceed with it - A. Yes. Q. Just to see whether they could get permission? A. Yes, that's correct. Q. That was the way that you understood it at the time? A. Yes. Q. And you understood at the time that the development application was not a statement by Metro Edgley that a children's ride area and only a children's ride area would be constructed in the area north of Coney Island. A. The development application per se didn't say that's all, but it was in accordance with the master plan, it was in accordance with what we had been told before. Q. I am just asking about the development application. A. Yes, I agree. Q. You're agreeing with me? A. Yes. Q. And you reported to Mr Stanley Roth what Mr Rickard had told you? A. I did. Q. And did you tell him that although the plans Mr Rickard had interpreted showed a children's playground north of Coney Island, the development application wasn't itself a statement that that was what would be built there? A. I didn't. In fact I think that I might have said 'this is what they are intending to do there', which in terms of what you're saying is wrong. I think I might have said something like: 'This is a plan which shows what they are planning to do to the north of Coney Island'. Q. And you accepted that that strictly speaking is not correct because it doesn't show any such thing? A. I do, because I didn't add to it that this is the detail that, subject to the provision that the applicant implements that consent. Q. Should they choose to do so? A. Should they choose to do so. Q. But you didn't need to tell Mr Stanley Roth that because he was a very sophisticated person and understood it quite clearly? A. Yes. He's here now, so I would have to agree. Q. You've still got to tell the truth, even if he's here now. He's a sophisticated person? A. Very sophisticated. … Q. Your understanding at the time Mr Rickard reported to you was that the development application was not a statement by Metro Edgley of what would in fact happen, it was just an application for permission to perform a particular development should they choose to do so? A. Yes. Q. And you understood Mr Roth's level of sophistication to be such that you didn't need to spell that out to him? A. Yes. Q. Did you ever report what Mr Rickard had found to Mr John Roth? A. I do not recall. 308 Mr Revay agreed that it was and always had been his understanding that lodgement of the development application was not a statement of intention but an application for permission, that in June 2002 his state of mind was that thrill rides in the Northern Extension were possible but unlikely, and that he had never understood Mr Hearne to have given any commitment as to what were Metro Edgley's plans or proposals for the Northern Extension: Q. You recognised that Mr Hearne was trying to explain that application and that his doing so didn't involve any misleading account on his part? A. We didn't think that at the time. Q. Mr Hearne never gave you an explanation what his intentions or future plans were? A. I think the closest to the intention when he told Tim and Hunter that he was putting these different things to the north of Coney Island. Q. He had never given you any commitments as you understood it what his plans were and what he would do in the area north of Coney Island? A. No. Q. Are you agreeing with me or disagreeing? A. I agree with you. 309 When they were notified of the 2002 DA on 11 July 2002, the directors of Glen Eight ascertained, through Mr Rickard, that there were to be additional rides in the Northern Extension and, in August 2002, lodged an objection to the intensification of that area, on the ground that the rides would be intrusive on the amenity of the residential properties – not on the basis that the 2001 DA excluded adult rides from the Northern Extension. Mr Revay said that he hoped that the 2002 DA would be refused, and thought that there would be substantial opposition to it, but that Glen Eight was committed to the sales and had to proceed in any event with the residential conversion. Mr John Roth thought that the objection to the 2002 DA was "not that important"; Mr Revay had told him that an objection had been lodged, and probably that it was about the thrill rides, but this was not an issue that particularly concerned him, because they had already decided to go ahead with the residential redevelopment in June. Mr Revay never told him that it was a "major problem". That they did not think it of major significance when confronted by the 2002 DA tells very strongly against the view that disclosure any earlier would have deterred them from proceeding with a residential conversion. 310 By 4 or 5 June 2002, a sufficient number of contracts had been issued in respect of apartments in the Azure that the directors of Glen Eight decided to proceed with the residential conversion and exchange contracts. The first contract for sale of a unit "off the plan" was exchanged on 6 June 2002. On 6 and 7 June ten contracts were exchanged; by 30 June, 20 contracts had been exchanged, by 31 July a further four, and by the end of August a further three. By the end of September, a total of 33 contracts at prices totalling $32,475,000 had been exchanged. Glen Eight did not give notice to its tenant to vacate until October 2002, and the tenant surrendered its lease with effect from 30 October 2002. Glen Eight did not let the building contract for the residential conversion until 13 February 2003. 311 Mr Stanley Roth had proposed the inclusion in the contracts of a 50% pre-sale clause. Mr Revay did not agree – because it was thought that it might scare purchasers – and no such clause was ultimately included. However, each contract included special conditions that provided some protection to Glen Eight as vendor if the residential conversion did not proceed. Relevantly, clause 30.8 provided as follows: 30.8 Without prejudice to any other express or implied condition of this contract, before completion the vendor will use its reasonable endeavours to cause the works to be done in a proper and workmanlike manner on or before the sunset date. 312 Clause 32 provided as follows: 32.1 Completion of this contract is subject to and conditional on the registration at Land & Property Information, NSW of documents substantially in accordance with the form of the strata documents on or before the sunset date. The vendor is not in breach of this contract if the strata documents are not registered by the sunset date. 32.2 Subject to the exercise of any right in this contract to extend the sunset date, if the strata documents are not registered by the sunset date, either party may rescind this contract. … 32.3 The only right the purchaser has arising out of the failure to register the strata documents by the sunset date is to rescind this contract. … 313 Special condition 59 included the following: 59.2 Despite any other provision of this contract, if commencement of construction of the building has not commenced by 1 July 2003 either party can rescind the contract and neither party will have any further claim against the other. 314 In addition, the contract contained the following relevant definitions: Sunset date means, subject to any extension pursuant to the provisions of this contract, 1 September 2004. Strata Documents means the: a. Strata Plan; b. Strata Management Statement; c. By-Laws; and any plan or instrument that might be registered before or with the other strata documents in order to create legal registration of the property or any of the rights or any other property within the development, including a plan of consolidation of the land. 315 Mr Stanley Roth believed, when the contracts were initially prepared, that if the residential redevelopment did not proceed, all the purchasers could recover would be their deposits, at least in circumstances where clause 32 could be relied upon. But he says that, when he came to review those clauses in more detail after he first learned that there was a possibility of some adult thrill rides being located north of Coney Island, he formed the view it would have been "extremely problematical" to rely on clause 59.2 in the circumstances that ultimately transpired. He says that he looked at the contract in August or September 2002 for that purpose, but did not seek advice from anybody about it. Mr Roth thought that there was still some potential for dispute with purchasers if Glen Eight effectively downed tools and did nothing, simply relying on the 59.2 right of rescission. He pointed to the circumstance that there were 20 or more contracts by that time, and the alternative course would have involved waiting, doing nothing from August 2002 until 1 July 2003 with 20 or 30 purchasers "up in arms, seeing nothing being done to the building in which they had contracted to acquire an apartment", and that that was a risk he thought inappropriate to take. Ultimately, his position was encapsulated in the following answers: Q. It is not the case, is it, that in June 2002 you saw Glen Eight as having been committed as a result of the exchange of contracts? A. In June 2002 I was aware that there was an out clause that would apply in certain circumstances. In August 2002 I formed the view that it in the circumstances that had happened it was not a clause that I thought would be foolproof in relying, in view of (1) the number of purchases that had exchanged and, (2) the fact that we would have had to wait until 30 June or 1 July 2003 to give effect to it – Q. My question – A. and, (3) I could also say that there was probably another reason, perhaps a non-legal reason as to why I didn't wish to rely on that clause and that was because of the fact that, you know, our company, you know, had a reputation as a developer which we were going to sit around and do nothing for ten months while purchasers waited for us and to deliver them the product that they had contracted with us for them to be delivered – Q. My question was in June 2002 you did not believe that Glen Eight was so committed; that's true, isn't it? A. In June 2002 I was aware that Glen Eight was committed, but I was also aware of the fact that there was an out clause that could be exercised, that could be availed on, availed upon in certain circumstances. Q. And you believed that out clause was effective and accordingly you did not believe that Glen Eight was obliged in 2002, despite the exchange of contracts to proceed with the residential development; that's right, isn't it? A. No. 316 Although Mr Stanley Roth says that he considered it (and he is an experienced commercial lawyer), it does not appear that serious consideration was given, following discovery of the proposal to locate thrill rides in the Northern Extension, to the possibility of not proceeding with the residential conversion and rescinding. He did not discuss the specific clauses with Mr John Roth or Mr Revay, though he did discuss with them the view that there were so many exchanged contracts that there was nothing to do other than lodge an objection to the 2002 DA. Mr Roth's concern at the reputational consequences for Glen Eight, and the difficulties that purchasers might cause, is belied by the absence of any apparent approach to purchasers to see whether, in light of the proposal to locate thrill rides outside their windows, they still wished to proceed. Indeed, his approach bespeaks an acceptance that the purchasers would wish to proceed, at the price they had agreed to pay, notwithstanding discovery of the proposal to locate and operate thrill rides in the Northern Extension. 317 Glen Eight had designed its building to minimise the impact of noise emanating from Luna Park. When it exchanged contracts with purchasers in June 2002, it knew that it had no commitment from the Trust or from Metro Edgley that there would not in the future be adverse development, potentially including adult thrill rides, in the Northern Extension. It knew that there was a risk of such development, albeit it thought at that stage a slight one. It had endeavoured to minimise that risk by positioning itself to object to adverse development at Luna Park, by obtaining its own development approval. When it learnt of the proposal to locate and operate thrill rides in the Northern Extension, its objection was based on the potential impact of that proposal, not on any claimed representation or expectation induced by Metro Edgley's prior conduct. Although it objected, it did not – at least according to Mr Revay and Mr John Roth – then see it as a particularly significant issue. 318 I am prepared to accept that, when they decided in late 2001, having learnt that the tenant wished to vacate Yellow Pages House, to test the market for residential conversion by constructing a display apartment and marketing the residential conversion "off the plan", to see whether the project was commercially viable, the directors of Glen Eight took into account as one factor the use of the Northern Extension proposed in the 2001 DA. However, given the history of the residential conversion DA; the construction of a display unit prior to May 2002; the recognition by Glen Eight that there was some – albeit it thought slight – risk of further adverse development in the Northern Extension; its acceptance that its ability to control adverse development depended on its status as a developer with DA consent to object; the circumstance that it did object to the 2002 DA but did not regard it as a large issue as the time; the presence in the contracts of clause 59.2; the absence of serious investigation of the possibility of rescinding under clause 59.2, and the inherent acceptance in that of the view that the purchasers would still probably wish to proceed at the prices negotiated; and the circumstances that the tenant was not asked to vacate until October 2002 and the building contract for the conversion not let until early 2003, I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion. 5.3 Damages – quantification – the individual plaintiffs 319 That the correct approach to the assessment of damages in the cases of the individual plaintiffs was the amount by which the price paid to acquire them exceeded their true value at the time of acquisition was argued and determined on an interlocutory application relating to the admissibility of certain valuation evidence [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 588, [4]-[10]], and was thereafter accepted by the plaintiffs. Ms Dwyer and Mr Simkin exchanged contracts for the purchase of X/6 Cliff Street on 13 March 2002 for $1,970,000. Mrs Hesse exchanged contracts for the purchase of XX01/30 Glen Street on 25 July 2001 for $1,550,000. Mr Billington and Ms Mather exchanged contracts for the purchase of X01/12 Glen Street on 15 October 2002 for $695,000. The plaintiffs adduced the expert evidence of Mr Edmonds, valuer, to the effect that the true market value of these properties at the date of acquisition – assuming that the purchaser was aware that the developer of Luna Park would be relocating a number of larger rides as well as the children's rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area – would have been less than the amounts actually paid: in the case of Ms Dwyer and Mr Simkin, a reduction of 11% or $216,700; in the case of Mr and Mrs Hesse a reduction of 14% or $217,000; and in the case of Mr Billington and Ms Mather, a reduction of 13% or $90,350. 320 Mr Edmonds reached these conclusions by the following process. First, he said that prima facie the appropriate methodology for ascertaining the retrospective market value – on the assumption that the hypothetical purchaser was aware that the developer would be relocating a number of the larger rides as well as the children's rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area – was to assess the reduction on market value suffered by other properties as a consequence of the disclosure of potential adverse affectation similar to that to which the subject properties would be (on those assumptions) exposed. Secondly, because that assumption was hypothetical, there was no direct sales evidence that could be relied upon: although sales over the period from shortly before July 1999 to shortly after June 2001 (when the 2001 DA was lodged) could be expected to be of some assistance, they were for various reasons unhelpful or insufficient to permit any conclusion to be drawn as to the effect of uncertainty surrounding the redevelopment of Luna Park on the market value of the properties. Thirdly, sales after Luna Park reopened in April 2004 were irrelevant, as they were affected by the actual impact of thrill rides having been located in the Northern Extension, as distinct from knowledge of the risk or potential for that eventuality. Fourthly, exposure to noise generally had an adverse impact on real estate values. 321 Fifthly, a series of transactions relating to several properties affected by a proposal to widen the M2 Motorway in 1995 and 1996 provided evidence of a reduction of about 17% in the value of properties, already known to be in close proximity to a proposed motorway, as a result of the announcement of a new and more immediate proposal that if implemented would significantly increase their exposure, and this was supported by other data, pertaining to exposure to aircraft and road traffic noise, which suggested an adverse impact of about 12% on values. The M2 Motorway material involved a number of transactions whereby the Roads & Traffic Authority, having announced that an existing road reservation would be widened with the consequence that the subject properties would be more severely affected by noise than had previously been thought, offered to purchase the properties as if they were affected only by the original reservation and not by the new proposal, and then resold them as affected by the new proposal. The acquisition price (representing the value of the properties as affected only by the original reservation), if not agreed, was determined by a valuer. 322 Finally, having regard to the different relationships of each of the subject properties to Luna Park, the specific discounts for each – ranging between 11% and 14% – were derived. 323 The defendants did not adduce any valuation evidence to contradict that of Mr Edmonds, but they challenged his valuation methodology, and disputed that assumptions critical to his conclusions had been validated. 324 First, the defendants submitted that the prices paid by the plaintiffs were consistent with contemporaneous sales in the same buildings, and that it had not been proven that the other purchasers laboured under the same misapprehension as affected the plaintiffs. Mr Edmonds accepted that the plaintiffs' purchases were "in line" with contemporaneous sales of comparable apartments in the same buildings, but he assumed that "the market" was as uninformed as the plaintiffs claimed to be – his hypothesis was that all purchasers in the market were affected by the same misapprehension as was entertained by the plaintiffs in respect of the future development of Luna Park. 325 It is true, as the defendants submit, that the plaintiffs did not call other purchasers to say that they were similarly uninformed. But the question is not, as the defendants pose it, "Why assume that everyone else assumed that there would never be anything else north of Coney Island, even though the zoning permitted it?" – the relevant questions are whether the other purchasers were aware of an extant proposal to locate and operate adult thrill rides in the Northern Extension (prior to July 2002) – and that the Ranger and the Spider were such rides (after mid-2002). 326 Mr Edmonds accepted that the fact that there were plans afoot to redevelop Luna Park from 1998, and the possibility that it might reopen as an amusement park, were in the public domain. He accepted also that the market would have recognised that there was potential for the Northern Extension to be used as an amusement park. Some of the comparable sales he noted pre-dated the 2001 DA, and so could not have been affected by any statement or non-disclosure in that DA. His reasons for discounting those sales as reliable evidence were unconvincing – in particular, he was compelled to concede in cross-examination that any effect of the 2000 Olympics had expired by late 2000. 327 However, as I have concluded that there was no extant proposal, at least until July 2001, to locate and operate adult thrill rides in the Northern Extension, it must follow that the market was unaware of any such proposal, even if purchasers had some general appreciation that Luna Park might reopen as an amusement park with rides. I am therefore prepared to accept that, at the time of the potential comparable sales, at least until the 2002 DA was exhibited, the market was unaware of any such proposal. I reach that conclusion, not on Mr Edmonds' say so, but because the evidence in the case as a whole reveals no such proposal in circulation. That state of affairs (that the market was unaware of any proposal to locate and operate adult thrill rides in the Northern Extension) is to my mind not so significantly different from Mr Edmonds hypothesis (that the purchasers were unaware that the developer of Luna Park would be relocating a number of larger rides as well as the children's rides to the Northern Extension, or that there was a risk or potential for noisy thrill rides to be located and operated in that area) as to invalidate Mr Edmonds' opinion. 328 Next, the defendants submit that that Mr Edmonds merely assumed that potential noise affectation would have a market effect, and in the absence of any evidence that the potential for noise affectation (as distinct from actual exposure to noise) would have any such effect. However, Mr Edmonds' examination of other case studies, including the M2 Motorway transactions, provides some evidence from which it is legitimate to conclude that the existence of a proposal for nearby development that will produce noise impact on a property will have an effect on the value of that property. It may well be that better evidence could have been provided by a comparison of sales in the subject buildings before and after the proposal became known (when the 2002 DA was exhibited), but the circumstance that Mr Edmonds used a different approach does not totally undermine his opinion – although it might have been relevant to its weight, had there been a contrary opinion against which to weigh it. In short, his opinion is built on weaker foundations that it might have been, but is not without foundation. It is true that his analysis of the M2 Motorway transaction involves assessment of the impact of the actual announcement of an intended road widening, rather than the presence of a risk; but knowledge of a proposal is the relevant comparator, because Metro Edgley's conduct would have been misleading and deceptive only if it had failed to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension. Thus, although I was initially concerned that Mr Edmonds perceived no difference in the impact on market value of knowledge that there would be large thrill rides in the area on the one hand, and a mere risk that there might be on the other, ultimately this matters not: the material from which he derived his conclusions (the M2 Motorway transactions, Badgerys Creek Airport and Brisbane Airport) pertained to known proposals which would have an adverse noise impact, and that is the relevant comparator here. 329 While I accept that there are some difficulties with the analysis of the M2 Motorway transactions – the reliability of the exercise is affected by the circumstances that multiple properties and a State authority were involved, and the interposition of a valuer to determine the acquisition price if necessary – again those difficulties do not entirely undermine the utility of that material for the purpose of forming an opinion as to the impact on land value of a proposal that would involve exposure to noise – particularly in the context of the other material and studies referred to by Mr Edmonds in that context. It is also true that Mr Edmonds did not directly apply the 17% derived from the M2 motorway figures, but used a lesser discount which differs among the three subject properties. However, that is a legitimate application by a valuer of his judgment as to the differing impact of general considerations on the value of the three particular properties. 330 Accordingly, had Metro Edgley, by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, engaged in misleading and deceptive conduct, I would have concluded that Mr and Mrs Hesse, and Mr Simkin and Ms Dwyer, had suffered losses of $217,000 and $216,700 respectively. 331 Mr Billington and Ms Mather claim to have relied on the 2002 DA, and the relevant assumption in their case is not that there was a non-disclosure of a proposal to locate and operate adult thrill rides in the Northern Extension, but that they were unaware that the Ranger and the Spider were adult thrill rides. I have already concluded that the 2002 DA did not suggest otherwise, noting that Glen Eight recognised that the 2002 DA proposed the location of adult thrill rides – and specifically the Ranger – in the Northern Extension. The 2002 DA put into circulation what was previously unknown – that it was proposed to locate and operate the Ranger and the Octopus in the Northern Extension. I am therefore unable to be satisfied of the validity of the assumption that, after exhibition of the 2002 DA in July 2002, the market was unaware of a proposal to locate and operate adult thrill rides in the Northern Extension, or that the Ranger was an adult thrill ride. It follows that I am unpersuaded that the market after July 2002 was an uninformed one, and that sales after that date are not sound evidence of value. As Mr Edmonds accepted that Mr Billington and Ms Mather's purchase was in line with contemporaneous sales, it has not been established that they paid above true market value. 332 Thus, even if Mr Billington and Ms Mather had, in purchasing their property, acted on the misapprehension that the 2002 DA proposal involved only Children's rides in the Northern Extension, I am unpersuaded that they paid more than the true value of the property, and accordingly I do not accept that they suffered damage. 5.4 Damages – quantification – Glen Eight. 333 The basis of Glen Eight's claim for damages was also considered in an interlocutory judgment [Street v Luna Park Sydney Pty Ltd [2007] NSWSC 594]. Glen Eight claims that, had it proceeded with a commercial refurbishment rather than a residential redevelopment, in the events which have happened it would now be very much better off – by more than $10,000,000. 334 I do not accept that, as the defendants' submissions appear to assume, in the present context damages are necessarily to be calculated by reference only to the situation as at the date on which the cause of action accrues without regard to subsequent developments; while the "rule" in Potts v Miller provides an often useful guideline for measuring damages, it is not universally appropriate and where, as Glen Eight claims in the present case, as a result of misleading and deceptive conduct, a plaintiff adopts course of action A, when it would otherwise have adopted course of action B, its damages should reflect the difference between its actual position in the events which have happened as a result of having adopted course A, and its hypothetical position had it adopted course B. 335 Mr Gower, accountant, calculated the position in which Glen Eight actually was (having proceeded with the residential conversion) and compared it with the position in which it would otherwise hypothetically have been (had it instead proceeded with a commercial refurbishment). He concluded that, calculated as at 6 June 2002 (but having regard to the events which had since transpired), the difference between the value to Glen Eight of Yellow Pages House on the hypothetical commercial refurbishment scenario, and on the actual residential scenario, was $10,359,000. 336 A crucial integer in this exercise was the hypothetical valuation of Yellow Pages House as at 2006 on the footing that it had undergone a commercial refurbishment, for which purpose Mr Gower used the opinion of the real estate valuer, Mr Edmonds, that on that scenario its current market value at 9 October 2006 was $30,800,000. Mr Edmonds reached that conclusion by capitalising the rental value of the property. For that purpose, he assumed that a single tenant would be found for the whole building (a tenancy of more than 6,000 sqm), and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases (which exceeded the then CPI). 337 It was essential to the validity of Mr Edmonds' assumption – that a single tenant for the whole building could be found by 1 July 2003 – that a letting up period of 17 months would be available; he conceded that he could not have concluded that such a tenant could be found had any shorter period been available for letting. However, a 17 month letting up period was simply not available: from the time at which Glen Eight says it made its relevant decision (June 2002) there were only 12 months available until 1 July 2003. Mr Edmonds accepted that, if marketing were not to commence until June 2002, he could not say whether a tenant could have been obtained for the building by 1 July 2003. 338 Mr Edmonds also conceded that the market for commercial rents in Milsons Point at the relevant time was not healthy, and that demand was "lower than normal"; that finding a commercial tenant prepared to take the whole building would not have been an easy task; that he was not aware of any letting of 6,000 sqm or so in Milsons Point at or about the relevant time; that he could not name a single prospective tenant in the market at the relevant time (for the whole space); and that, even with the assumed (superficial) refurbishment, the building was not a high quality one. Yet the rent adopted by Mr Edmonds, of $315-$320 per square metre, was supported only by lease transactions of smaller tenancies (for which tenants would usually pay a higher per metre rent), in superior buildings (for which tenants would usually pay a higher per metre rent), and for shorter terms, without annual increases (for which tenants again would usually pay a higher per metre rent). 339 I am therefore quite unable to accept the hypothesis, upon which Mr Edmonds' opinion depends, that Yellow Pages House could have been let to a single tenant from 1 July 2003 for a term of five years at a rent of $315-$320 per square metre with 4% annual increases without any incentives. His cross-examination demonstrated that hypothesis to be untenable. 340 While I do not accept that invalidation of an expert's assumption necessarily results in total rejection of his or her final opinion, it requires close evaluation of the significance of the assumption, and its invalidity, to the ultimate opinion, and careful consideration of whether the evidence permits the court to reach a conclusion as to the effect of substituting an alternative hypothesis. Sometimes, that course may be aided by re-examination on alternative hypotheses. In this case, the hypothesis was fundamental – as Mr Edmonds conceded – and was the only relevant assumption he made. Once it is invalidated, there is nothing that permits substitution of an alternative letting up period, commencement date, term, number of tenants, rents or indexation. Indeed, Mr Edmonds conceded that if his hypothesis were not acceptable, then his reports said nothing else. Mr Edmonds' fundamental assumption having been invalidated, his opinion in this respect is completely undermined. 341 There is therefore no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario. That in turn removes an essential integer from Mr Gower's calculations. In the absence of any acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Yellow Pages House than the residential conversion scenario. 342 Accordingly, even if (contrary to my earlier conclusions) Metro Edgley's misleading non-disclosure after 13 May 2002 until July 2002 of its proposal to locate and operate adult thrill rides in the Northern Extension was "in trade or commerce", and Glen Eight would otherwise have abandoned the residential conversion and proceeded with a commercial refurbishment, I would nonetheless have been unsatisfied that Glen Eight had suffered damage as a result. 5.5 Conclusion as to relief 343 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension: · Mr and Mrs Hesse would recover damages of $217,000, and · Mr Simkin and Ms Dwyer would recover damages of $216,700. 344 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2002 DA to disclose that adult thrill rides such as the Ranger and the Octopus, as well as children's rides, were to be located and operated in the Northern Extension, Mr Billington and Ms Mather would nonetheless not recover damages, because I am unpersuaded: · that in purchasing their property, they acted on the misapprehension that the 2002 DA proposal involved only children's rides in the Northern Extension, or · that they paid more than the true value of their property. 345 If, contrary to my above conclusion, Metro Edgley had in trade or commerce (or in breach of a duty of care) engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, or if the non-disclosure of that proposal to Glen Eight after 13 May 2002 were "in trade or commerce", Glen Eight would nonetheless recover no damages, because: · I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion; and 346 Mr Edmonds' fundamental assumption – that a single tenant would be found for the whole building and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases – having been invalidated, there is no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, and I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Glen Eight than the residential conversion scenario. 6.0 CONCLUSION 347 My conclusions may be summarised as follows. 348 Crown Lands Act, s 114(2)(b), is directed to the relevant Reserve Trust, and not to third parties such as operators or occupiers under lease or licence from the trust. In any event, the Luna Park Plan of Management does not exclude the location and operation of amusement rides, including adult thrill rides, in the Northern Extension. Accordingly, the plaintiffs' Crown Lands Act claim fails. 349 The 2001 DA did not seek consent for children's rides in the Northern Extension, and did not contain or convey a representation to that effect. Metro Edgley did not, by lodging the 2001 DA, represent that, if it were approved, a safe enclosed children's rides area would be constructed in the Northern Extension; or that children's rides would be operated in that area. The purpose of the 2001 DA – to obtain planning approval from the relevant consent authority, not to inform potential purchasers and developers – was such that it could not reasonably be expected to disclose all the potential uses which Metro Edgley might contemplate for the future uses of Luna Park. Read fairly as a whole, the 2001 DA does not exclude the possibility that rides other than children's rides would be located and operated in the Northern Extension. Moreover, the evidence does not establish that, when the 2001 DA was lodged, Metro Edgley had formed an intention to locate adult thrill rides in the Northern Extension, and Metro Edgley therefore did not engage in misleading and deceptive conduct by failing to disclose, in the context of a proposal to locate children's rides in the Northern Extension, a proposal to locate adult thrill rides in that area. Accordingly, Metro Edgley did not engage in misleading or deceptive conduct by lodging the 2001 DA. 350 It was not misleading or deceptive for Metro Edgley to remain silent, in respect of its proposal to locate and operate thrill rides in the Northern Extension, from the time it first entertained it in July or August 2001, until it disclosed it in the 2002 DA. If any of the plaintiffs laboured under the misapprehension that Metro Edgley's intention and proposal was to operate only children's rides in the Northern Extension, that misapprehension arose from the combination of an imperfect reading of the 2001 DA, for a purpose which it was not intended to serve, and an erroneous assumption that any such proposal was, if not immutable, at least unlikely to change for many years. 351 However, Metro Edgley's silence as to its proposal to locate adult thrill rides in the Northern Extension became misleading when, on 13 May 2002, it made a positive statement to Glen Eight that it proposed to use the Northern Extension for children's rides, landscaping and picnic areas, without disclosing that it also intended to locate and operate adult thrill rides there. 352 The 2002 DA did not contain or convey a representation that, if it were approved, any particular activity would take place in the Northern Extension. It did not convey that the Ranger and the Octopus were of the same nature as the "Children's Rides". It was not misleading or deceptive in the respects alleged by the plaintiffs, and, in particular, for failing to disclose that adult thrill rides such as the Ranger and the Octopus, as well as children's rides, were to be located and operated in the Northern Extension – it specifically proposed that the Ranger and the Octopus be located there. 353 The above conclusions in respect of the allegations of misleading and deceptive conduct in the 2001 DA and the 2002 DA are dispositive of the s 75B case against Mr Hearne and Mr Doughty, and it would not be fair to make an alternative finding against them or either of them based on the "subsequent silence" case, in circumstances where they legitimately treated it as not part of the case pleaded against them. 354 Metro Edgley's conduct in lodging the 2001 DA and the 2002 DA was not "in trade or commerce", because (1) the representations in the development applications were not directed towards persons who had a potential or actual trading or commercial dealing or transaction with Metro Edgley: there was no potential or actual trading or commercial dealing or relationship between Metro Edgley and the consent authority; and (2) even if the representations were considered to be directed to owners and occupiers of potentially affected properties, including Glen Eight, those owners and occupiers were not persons who had a potential or actual trading or commercial dealing or transaction with Metro Edgley. The development applications were not themselves a trading or commercial transaction, and that the purpose and object of the development applications was to obtain a permission which would enable Metro Edgley to carry on commercial activity, or that they formed part of the course of Metro Edgley's dealings, which overall bore a trading or commercial character, is insufficient to make them an aspect of "trade or commerce". 355 Nor was non-disclosure to Glen Eight on and after 13 May 2002 of the proposal to locate and operate adult thrill rides as well as children's rides in the Northern Extension "in trade or commerce". There was no relevant actual or potential trading or commercial relationship between Metro Edgley and Glen Eight, and the presentation of information at the meeting of 13 May 2002 did not take place in the context of any such transaction or relationship. The impugned conduct of Metro Edgley was not in trade or commerce. 356 Moreover, insofar as Metro Edgley made any representation to members of the public by lodging the 2001 DA and the 2002 DA, such representation was not made to nor received by the members of the public in their capacity as potential purchasers or redevelopers of property in the area of the Luna Park site, but only in their capacity as adjoining landholders who might wish to object to development at the Luna Park site. The losses claimed to have been suffered by the plaintiffs as potential purchasers or developers arising from decisions to purchase or redevelop were not suffered in a capacity related to that in which they received the information in the DAs, and were not in the relevant legal sense caused by Metro Edgley's conduct; the plaintiffs are not entitled to a remedy under the Trade Practices Act in respect of them. 357 The plaintiffs' Trade Practices claim therefore fails. 358 Metro Edgley owed no duty of care to the plaintiffs (as potential purchasers or developers of neighbouring properties) to avoid foreseeable risk of economic loss occasioned by inaccurate or misleading statements in the development applications. In any event, liability in negligence would not extend to assumptions made by the plaintiffs, only by implication from the express statements in the DAs, as to what would happen in the Northern Extension. The plaintiffs' negligent misrepresentation claim therefore also fails. 359 Assuming that it were otherwise established that Metro Edgley had engaged in misleading and deceptive conduct as alleged, injunctive relief would nonetheless be declined as a matter of discretion. The injunctive relief sought is not to restrain the contravening conduct nor repetition of it, but to restrain conduct inconsistent with the state of affairs which the contravening conduct is alleged to have caused the plaintiffs to assume would exist. An injunction would be of dubious utility, because a perpetual injunction would be inappropriate as it would treat the use of Luna Park as perpetually frozen by the proposal in the 2001 DA, while an injunction which did not enure for the protection of purchasers from a plaintiff would not avert loss to the plaintiff; and because Metro Edgley does not operate the rides or the park, and it was not established that LPS was its agent. The plaintiffs' claims being in respect of economic loss, which is prospective in the sense that it would not be incurred until resale, such loss, if established, is amenable to compensation by damages, which are an adequate and in this context quintessentially appropriate remedy. 360 Although Mr and Mrs Hesse's assumption that there was a permanent restriction on rides being located in the Northern Extension was created by the plan of management, and not the 2001 DA, it does not follow that non-disclosure in the 2001 DA of any then existing proposal to locate and operate thrill rides in the Northern Extension would have been immaterial: they would have been disabused of their assumption had the 2001 DA disclosed a proposal to locate and operate, in the Northern Extension, in addition to children's rides, adult thrill rides. Had they been informed of such a proposal, they would not have proceeded with their purchase. Had Ms Dwyer and Mr Simkin been made aware, before purchasing, of the existence of a proposal to locate and operate adult thrill rides in the Northern Extension, they too would not have proceeded with their purchase. If (contrary to my above conclusion) Metro Edgley had in trade or commerce engaged in misleading and deceptive conduct by failing in the 2001 DA to disclose the existence of an extant proposal to locate and operate thrill rides in the Northern Extension, I would have concluded that Mr and Mrs Hesse, and Mr Simkin and Ms Dwyer, had suffered losses of $217,000 and $216,700 respectively. 361 However, I am unpersuaded that any belief that the "Ranger" or "Octopus" was a children's ride influenced Mr Billington and Ms Mather's decision to purchase, as Mr Billington well understood the differential noise impact of the Ranger and the Octopus on the one hand, and the children's rides on the other, and Ms Mather relied on Mr Billington. Moreover, because I am not satisfied of the validity of Mr Edmonds' assumption that, after exhibition of the 2002 DA, other purchasers were unaware of a proposal to locate and operate adult thrill rides in the Northern Extension, and thus that the market after July 2002 was an uninformed one, I am unpersuaded that Mr Billington and Ms Mather, whose purchase was in line with contemporaneous sales, paid above true market value. Accordingly, even if Mr Billington and Ms Mather had, in purchasing their property, acted on the misapprehension that the 2002 DA proposal involved only children's rides in the Northern Extension, I am unpersuaded that they paid more than the true value of their property, and accordingly I do not accept that they suffered damage. 362 I am prepared to accept that, when they decided in late 2001, having learnt that the tenant wished to vacate Yellow Pages House, to test the market for residential conversion by constructing a display apartment and marketing the residential conversion "off the plan", to see whether the project was commercially viable, the directors of Glen Eight took into account as one factor the use of the Northern Extension proposed in the 2001 DA. However, given the history of the residential conversion DA, the construction of a display unit prior to May 2002, the acceptance by Glen Eight that there was some – albeit it thought slight – risk of further adverse development in the Northern Extension and that its ability to control adverse development depended on its status as a developer with development consent to object, the circumstance that Glen Eight did – as it had envisaged – object to the 2002 DA but did not at the time regard it as a major issue, the presence in the contracts of clause 59.2 and the absence of serious investigation of the possibility of rescinding under clause 59.2, and the inherent acceptance in that of the view that the purchasers would still probably wish to proceed at the prices negotiated, I am unpersuaded that disclosure between May and June 2002 of a proposal to locate and operate thrill rides in the Northern Extension would have deterred Glen Eight from proceeding with the residential conversion. 363 Moreover, Mr Edmonds' fundamental assumption – that a single tenant would be found for the whole building and would have entered into a lease on 1 July 2003 for a term of five years, at a rent of $315-$320 per square metre and annual 4% rent increases – having been invalidated, there is no acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, which in turn removes an essential integer from Mr Gower's calculations. In the absence of any acceptable evidence of the value of Yellow Pages House on the commercial refurbishment scenario, I cannot be satisfied that that scenario would, in the events that have happened, have proved more beneficial to Glen Eight than the residential conversion scenario. Accordingly, even if Glen Eight would have abandoned the residential conversion and proceeded with a commercial refurbishment had a proposal to locate and operate adult thrill rides in the Northern Extension been disclosed prior to July 2002, I would nonetheless have been unsatisfied that Glen Eight had suffered damage. 364 My formal order is, therefore, that the proceedings be dismissed. 365 Although it would ordinarily follow that the plaintiffs should pay the defendants' costs, the parties have sought an opportunity to be heard on the question of costs, particularly in the light of the early history of the proceedings and the intervention of the Noise Amendment Act. Accordingly, I will hear counsel as to whether directions should be made for written submissions and/or a time appointed for oral argument. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.