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Overlapping responsibilities in Condition of consents for music festivals

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.
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Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

The Court of Appeal recently considered and upheld a judicial review decision, Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117 (“Universal  1”). As a result, we now have a unanimous decision from the Court of Appeal of NSW that the statutory requirements found in Schedule 5 of the Environmental Planning and Assessment Act 1979 to afford procedural fairness to a recipient of a section 9.34 Notice are sufficient to exclude any remaining common law rights.

Universal 1 was a decision made by Justice Biscoe in the Class 4 jurisdiction of the Land and Environment Court, in relation to the validity of a Development Control Order No. 10, Restore Works Order issued under section 9.34 and 9.35 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (‘the Act’).

This case also deals with the validity of orders (pursuant to section 9.34) issued to an Owner of a building (the landlord), as opposed to an Occupier.
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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston

Introduction

It may seem strange to some people that in today’s day and age where there are large scale campaigns to encourage more recycling by everyone, that an actual recycling plant should be penalized for recycling more than it is lawfully allowed to do on the site. However, the Land and Environment Court made such a decision recently in relation to an offence by a large recycling company operating in Wollongong.
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State Government Regulations: Public Meeting and Hearing Restrictions

With restrictions on physical interaction during the COVID-19 pandemic, the State Government has implemented the Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 (COVID Regulation). The COVID Regulation which was put into action on 25 March 2020 requires the holding of public meetings and public hearings by planning bodies to be held through electronic means. These include:

  1. By way of audio link or audio visual link; and
  2. In a means that permits it to be heard or viewed electronically by members of the public whilst the meeting or hearing is being held.

The COVID Regulation applies to:

  • Local planning panels;
  • Regional planning panels;
  • District planning panels;
  • The Independent Planning Commission;
  • Any other panels established by the Planning Secretary or Minister under section 2.3 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Such meetings or hearings must be held live and available to the public, and thus is not permitted to record the meeting or hearing and subsequently make the recording publicly available. Under clause 294(6) of the EPA Regulation, a person who is required to attend the public hearing or meeting satisfies the requirement by participating by way of audio or audio visual input, in contrast to attending in person.
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Key Amendments to the Environmental Planning and Assessment Act

On 1 March 2018, the Environmental Planning & Assessment Act 1979 (the Act) underwent its largest and most significant change since it commenced in 1979. Many of the changes are expected to be implemented throughout 2018 with further amendments being rolled out over the course of the next two years.

The NSW Government has stated that the amendments provide “an updated, modern planning system that is simpler, faster and designed to ensure high quality decision and planning outcomes for the people of NSW”. The Bill was before NSW Parliament last year and was the subject of much parliamentary debate. The Bill was ultimately assented to on 23 November 2017.

Below is an outline of some of the key amendments made that will have a significant impact on local councils:

Amendments to the EPA Act Structure

One of the more noticeable reforms is the structural amendments that have been made to the Act. The former sections have been removed and replaced with 10 principal parts with decimal numbering of all provisions. Certain provisions have also been relocated as well as updates to the objects of the Act.
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