Rabbits Eat Lettuce Pty Limited v New South Wales Commissioner of Police [2018] NSWLEC 181

Land and Environment Court New South Wales

Medium Neutral Citation: Rabbits Eat Lettuce Pty Limited v New South Wales Commissioner of Police [2018] NSWLEC 181 Hearing dates: 6 November 2018 Decision date: 06 November 2018 Jurisdiction: Class 1 Before: Moore J Decision: Jurisdiction found; expedition granted - see [9] and [10] Catchwords: JURISDICTION - comparison between terms of statute prior to amendments operating from 1 March 2018 and those operating subsequent to that date - different effective position arises from amendments - presumption that Parliament intended that outcome - jurisdiction arises as a consequence of changes - jurisdiction found EXPEDITION - short period of time between Police notice of objection to event proceeding and timing of proposed event - evidence of financial impacts if event cancelled - expedition granted Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.17(2) and 8.7(2)(a) Category: Procedural and other rulings Parties: Rabbits Eat Lettuce Pty Limited (Applicant) New South Wales Commissioner of Police (Respondent) Representation: Counsel: Mr N Eastman, barrister (Applicant) Mr M Seymour, barrister (Respondent)

Solicitors: Fishburn Watson O'Brien (Applicant) HWL Ebsworth (Respondent) File Number(s): 337239 of 2018 Publication restriction: No

EXTEMPORE Judgment 1. HIS HONOUR: The Applicant in these Class 1 proceedings seeks to take advantage of the terms of s 8.7(2)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as it now applies. It does so in circumstances where Condition 7 of its development consent imposes on the Applicant a requirement to undertake ongoing liaison with Emergency Services to oversee the performance of any music festival event conducted by the Applicant who is, at the present time, the beneficiary of the development consent granted in 2015 for the purposes of conducting, amongst other things, music festivals at 1048 Seery Road, Kippenduff, New South Wales. 2. The condition to which I have adverted concludes with the sentence: An event must not proceed if either New South Wales Police, New South Wales Rural Fire Service or Richmond Valley Council advise that it is unsafe to do so. 1. On 26 October 2018, with respect to a proposed music festival to be conducted approximately a month thereafter, New South Wales Police (the Police) advised the Richmond Valley Council and the Applicant that it considered that the proposed event was unsafe. There are a wide range of factual matters set out in that letter as supporting the Police's conclusions as to the lack of safety. 2. With respect to all bar one of those matters, it seems to me that the matters pressed by the Police are factual matters of an anodyne type that might otherwise be amenable to consideration in a Class 1 merit appeal if such a right arises to be availed of by the Applicant. 3. Mr Seymour, counsel for the Police, puts the proposition that that it is not an available jurisdictional option. He does so on the basis that s 8.7(2)(a) should be read in combination with s 4.17(2), which deals with ancillary aspects of development and the necessity for satisfaction of either a consent authority or another person specified by the consent authority. However, the interrelationship between s 8.7 and the provision concerning ancillary conditions of consent is not one which follows automatically, in my assessment. The reason for that is as follows - the version of the EP&A Act which applied prior to the renumbering, rearrangement and amendment of that Act, operative from 1 March 2018, was in different terms from that which is currently applicable. 4. The equivalent of s 8.7 in the present legislation was located in part of s 97 of the EP&A Act prior to its amendment. 5. There is, however, a significant difference between them. In the version of the Act which operated prior to the amendments, s 97(2), which is in broad terms similar to that which is contained in s 8.7(2), expressly referenced conditions imposed under s 80A(2) and conferred a right of appeal with respect to it. Section 80A(2) is the equivalent of the now s 4.17(2) relating to ancillary aspects of development. No such qualifying link exists in the present s 8.7(2). 6. The fact that, for whatever reason, the amendments to the EP&A Act have the effect of breaking the link, or nexus, between the right of appeal which had previously existed in s 97(2) and that which had previously existed in s 80A(2), must be understood to be a positive consequence of the Parliament's amendment of the legislation. 7. I am therefore satisfied that the Court has jurisdiction to deal with the present application. 8. Under the circumstances, it seems to me that, in light of the matters that underpin whether expedition should be granted or not, it is appropriate to grant expedition, although the circumstances of it will impose difficulties on the Court in accommodating it. I do not have any evidence at this stage as to any disentitling conduct as to the granting of expedition to enable the matter to be determined, and I am satisfied that it is appropriate, under all the circumstances outlined in the affidavit of Mr Lamir-Pike as to the extent of expenditure liabilities and the like that have been incurred, that it is appropriate to have the matter dealt with quickly.