The entertainment and live music industry has undoubtedly taken the biggest hit by the coronavirus pandemic. To grapple with the economic fallout, the Federal Government announced a $250 million targeted package to help restart the creative, entertainment, arts and screen sectors.
As event organisers slowly formulate management plans, local councils will undoubtedly play a significant role to consult with other agencies to ensure a COVID-safe environment. The following case of NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 is relevant as it demonstrates the complexities of having a condition of consent that involves multiple local agencies.
Background
In 2015, the Richmond Valley Council granted the applicant, Rabbits Eats Lettuce Pty Ltd (REL), temporary development consent to hold music festivals in Koppenduff (the Consent).
One of the conditions, which the Court found was unusual, stated:
Condition 7
…
An event must not proceed if either New South Wales Police, New South Wales Rural Fire Service or Richmond Valley Council advises it is unsafe to do so.
REL was able to hold five festivals under the Consent, but during the consultation process for the sixth event, the NSW Police Force advised the applicant that it would be unsafe for the event to proceed.
REL relied on section 8.7 (formerly section 97(2)) of the Environmental Planning & Assessment Act (‘the EPA Act’) and commenced Class 1 proceedings in the Land and Environment Court (‘LEC’). REL argued that the relevant provision supporting the appeal against the NSW Police’s decision was section 8.7(2)(a), which allows “[a]n applicant to appeal against the determination for any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out.. to the satisfaction of other person.”
Issues in Land and Environment Court
The Commissioner of Police argued that condition 7 was not on its true construction a condition which required anything to be carried out “to the satisfaction of the consent authority or other person”, and for that reason fell outside of section 8.7. The Commissioner further submitted that the LEC had no jurisdiction to hear such an application and that in any event, the Court should find the event unsafe on its merits.
Moore J disagreed and found that the LEC had jurisdiction to hear the appeal and therefore found that the event was safe to proceed.
Issue on appeal – Court of Appeal
The Commissioner of Police appealed to the Court of Appeal on the grounds that the court did not have jurisdiction pursuant to section 8.7(2) of the Act.
Although the Court declined to question the merits review (quashing the advice from the Commissioner that the event was unsafe), the Court addressed the question of law and upheld the appeal on the grounds that the LEC did not have jurisdiction to hear the appeal. The Court noted at paragraph [49] however that Condition 7 is not one which engages the extended definition in s 8.7(2)(a) of the Act.
Conclusion
Although the main issue was in relation to the correct jurisdiction for the appeal pursuant to section 8.7, the case highlights the competing rights and interests of the public at large in a contested space with crowd gatherings, such as music festivals.
Councils are authorised under section 4.15 of the EPA Act to impose condition of consents under the relevant statutory power. However, Councils should err on the side of caution when outsourcing the decision-making to another body outside the NSW planning system as this might pave the way for judicial review.
Undoubtedly, public safety is an important consideration to any development but whether a condition of consent is the most appropriate is another question that needs to be addressed.
