Rabbits Eat Lettuce Pty Limited v New South Wales Commissioner of Police (No 2) [2018] NSWLEC 189

Land and Environment Court New South Wales

Medium Neutral Citation: Rabbits Eat Lettuce Pty Limited v New South Wales Commissioner of Police (No 2) [2018] NSWLEC 189 Hearing dates: 6, 8,13,16 and 19 November 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is allowed; (2) That pursuant to condition 7 of development consent 2016.007.01 the Court advises that the Bohemian Beatfreaks 2018 November event is safe; (3) The Court accepts the undertakings of the Applicant and Mr Erik Lamir‑Pike given to the Court as set in Annexure A; and (4) The exhibits, other than Exhibits B, E and 3, are returned. Catchwords: DEVELOPMENT CONSENT - consent for two music festivals per annum for a five-year period - five-of-ten permitted festivals conducted to date - condition of development consent gives power to NSW Police to determine that it is not safe for a festival to go ahead - festival scheduled for 23 to 25 November 2018 - on 26 October 2018, NSW Police advise that they consider the proposed November 2018 festival is not safe - Class 1 appeal proceedings commenced by festival organiser - necessity to consider bases for NSW Police objections - necessity to join Council as respondent to proceedings - Council files submitting appearance save as to costs JURISDICTION - existing development consent imposed a range of conditions for the carrying out of festivals - no power to vary conditions of consent in this Class 1 appeal - proposal to accept undertakings from the company having the benefit of the development consent and, personally, from its guiding mind - proffered undertakings address some, but not all, of matters of concern to NSW Police - undertakings consistent with (but more restrictive than) the existing conditions of consent - held that accepting of undertakings to the Court provided a permissible and enforceable basis to consider whether or not the November 2018 festival should be considered to be safe for the purposes of the condition of the development consent FESTIVAL OPERATIONAL ISSUES - consideration of a wide range of festival operational issues raised by NSW Police - an "amber light" approach to operational matters raised by NSW Police - scope of undertakings proffered - undertakings address most, but not all, of the issues pressed by NSW Police - changes to the operational aspects for the proposed festival provided an adequate response to NSW Police issues - no operational matters standing as impediment to considering the proposed festival will be safe DRUG RISKS - doubling of user-pays NSW Police presence - undertakings to pay the cost of the increased user-pays policing - additional searching arrangements for access to entertainment area - banning of persons identified by NSW Police as potential drug vendor risks - ability of NSW Police to nominate further persons to be banned from the proposed festival - acknowledgement by NSW Police that the harm minimisation activities for the proposed festival are adequate and that no improvement is required - no drug-risk basis to conclude that the proposed festival would not be safe COMMUNITY POLICING - risk to community of demand for NSW Police resources - significant policing resources on both a public policing and user-pays basis required for the proposed festival - although NSW Police evidence as to risk, no NSW Police evidence that the necessary policing presence could not be provided - no exercise of Police veto power to refuse to provide policing resources to the proposed festival - not appropriate to consider the proposed festival unsafe on the ground of policing resource demand - consideration of potential demand on other emergency services - potential demand on other emergency services no basis to consider the proposed festival unsafe OVERALL SAFETY ASSESSMENT - no basis to conclude that the proposed festival should not be regarded as safe for the purposes of condition 7 of the development consent Legislation Cited: Environmental Planning & Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 39(2) Uniform Civil Procedure Rules 2005, r 6.24(1) Cases Cited: Abax Contracting Pty Ltd v The Hill Shire Council [2016] NSWLEC 105 Ali v Liverpool City Council [2009] NSWLEC 1327 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Ku ring gai Council v Bunnings Properties (No 2) [2018] NSWLEC 19 Rabbits Eat Lettuce Pty Ltd v New South Wales Commissioner of Police [2018] NSWLEC 181 Solotel Pty Ltd v Woollahra Council [2011] NSWLEC 1210 The Council of the Shire of Wyong v Shirt & Ors (1980)146 CLR 40 Category: Principal judgment Parties: Rabbits Eat Lettuce Pty Limited (Applicant) New South Wales Commissioner of Police (First Respondent) Richmond Valley Council (Second Respondent) Representation: Counsel: Mr N Eastman, barrister (Applicant) Mr M Seymour, barrister (First Respondent) Submitting appearance (Second Respondent)