Access Canberra has continued to closely monitor compliance at the Big Splash site in Macquarie and has assessed the action taken against the requirements of the lease and the regulatory framework under the Planning Act 2023.
Access Canberra has considered whether the circumstances amount to a controlled activity under the Planning Act. While it is arguable that the prolonged non-use of the site constituted a controlled activity, the relevant question now is whether the current use of the land is authorised by the Crown lease and whether there is a sufficient legal and evidentiary basis for further regulatory action.
The Crown lease does not define the term “unlicensed family restaurant” or prescribe a particular building type, operating model, scale or minimum frequency of operation. Access Canberra has therefore considered the ordinary meaning of the words, the wording and context of the lease, and the actual use observed at the site.
Regardless, the purpose clause can be considered to be permissive in character. It authorises the land to be used only for one or more of the uses listed in the lease, but it does not require the site to operate as an aquatic centre or require every permitted use to be provided. A permitted use authorises the listed uses and excludes other uses, but does not necessarily require a particular permitted use to occur. Ultimately, the interpretation of the lease would be a matter for a court.
The lessee has also undertaken physical works at the site, including replacing and repairing perimeter fencing, securing the premises and establishing the area from which the food-related activity is operating. The earlier compliance action relating to fencing and site security has been completed and finalised.
Based on the above, Access Canberra considers that it is more likely than not that the lease is in compliance.
We recognise that this outcome may not meet the expectations of members of the community who want to see Big Splash restored as a water park. There has been significant community interest in the future of the site.
However, the role of the regulator is to apply the law as it stands, based on the facts and circumstances of each individual matter. Regulatory action cannot be taken simply because a different outcome may be preferred and where there are not reasonable prospects of success of litigation.
The Crown lease permits the site to be used for an aquatic facility, an indoor sports facility or an unlicensed family restaurant. Access Canberra’s role is therefore to determine whether the use of the land complies with the lease and relevant legislation, rather than to determine which permitted use should be pursued.
There are no current regulatory matters in progress relating to this lease.
Access Canberra will continue to monitor the site and will take further regulatory action if circumstances arise that warrant it.
