Rabbits Eat Lettuce Pty Limited v New South Wales Commissioner of Police

Before the Duty Judge

1. On 2 November 2018, Robson J ordered: The Applicant is granted leave to file in Court: (1) The Class 1 application dated 2 November 2018, and (2) The Notice of Motion seeking expedition of class 1 proceedings dated 2 November 2018 on the undertaking by the solicitor for the Applicant to pay all necessary filing fees by 4.30pm on Monday 5 November 2018.
2. His Honour also abridged the time for service of the Application Class 1 and the Notice of Motion seeking expedition.
3. The Notice of Motion for expedition was listed for hearing at 10.00 am on Tuesday 6 November 2018. The Chief Judge assigned the matter to me.

The hearing on jurisdiction

1. On 6 November 2018, I heard submissions from Mr Eastman, counsel for Rabbits, and Mr Seymour, counsel for the Commissioner of Police, on whether or not I had jurisdiction and, if so, whether expedition should be granted.
2. On 6 November 2018, I delivered a judgment, Rabbits Eat Lettuce Pty Ltd v New South Wales Commissioner of Police [2018] NSWLEC 181. In that judgment, for the reasons there explained, I set out why I was satisfied that I had jurisdiction to entertain the appeal that had been filed by Rabbits and why I ought grant expedition for that matter to be heard and determined - particularly in light of the timing of the proposed event.
3. I should observe, as I have continued to hear and determine the Class 1 appeal, that I note the confined scope of the proceedings with which I am delivering a decision. I am only dealing with the November 2018 Bohemian Beatfreaks festival. Any future assessment by New South Wales Police pursuant to condition 7 of the operative development consent will clearly be undertaken in light of the outcome of next weekend's festival and in light of what Acting Superintendent Lindsay, to whose evidence I will refer further, described orally as the ongoing "evolution of Police policy with respect to music festivals."

The site inspection

1. I set the matter down for a site inspection to be undertaken on 8 November 2018 at 9.30 am, with the parties to meet me at the intersection of Seery Road and Old Tenterfield Road at Kippenduff.
2. Present on that occasion for Rabbits were:

• Mr Eastman;
• Mr Ross Fox, Rabbits' solicitor;
• Mr Lamir-Pike;
• Mr Matthew Wood, the emergency coordination expert for Rabbits; and
• Mr Chris Weavers, the traffic expert for Rabbits.

1. On behalf of the Commissioner, those present were:

• Mr Seymour;
• Ms Hewitt, his instructing solicitor;
• Acting Superintendent Toby Lindsay;
• Detective Chief Inspector Cameron Lindsay (I note that the two Lindsays are unrelated);
• Sergeant Mathew Johnson;
• Sergeant Claudio Toscan; and
• Sergeant Kim McPherson.

1. The Acting Superintendent, the Detective Chief Inspector and Sergeant Johnson have all given affidavit and oral evidence in these proceedings.
2. Also present, as observers, were Ms Angela Jones, the Director of Infrastructure and Environment for the Council (who I note also subsequently provided an affidavit read in the proceedings), and another council officer, Mr Andy Edwards.
3. During the course of the site inspection we visited eight points of interest (from the notes taken by my Associate at my request during the course of the site visit). These points of interest were: 1. The first cattle grid which marked the entry to the Crown road at the end of the public road portion of Seery Road; 2. The causeway/floodway with rocks and a tree log, known as a "strainer", downstream where Hicks Road crossed Myrtle Creek. At the point on the bank on the southern side of the causeway where we stood, Mr Lamir-Pike, in response to a question from me, indicated that, at that point, the water had, during the time of the major flooding at Lismore in 2017, come up to his knees. At that time he had been on the other side of Myrtle Creek and had been isolated for four days; 3. The ticketing area, these comprised gates at the bottom of a hill with cars separated in to eight processing lanes where there was a search‑and‑scan area at this point. This area was not on the Hicks Road Crown road reserve but was diverted into the site and became part of the festival management's responsibility; 4. The marshalling area for the first emergency evacuation area and where there was some tape marking where that might be located; 5. A second marshalling area for emergency evacuation to the left, through an opening in a barbed-wire fence and across an unnamed tributary to Bambi Creek, a creek which is itself a tributary of Myrtle Creek. During the course of this stop, we inspected the log bridge that crossed the creek. There were five substantive logs able to be observed under the bridge providing support for it. During the course of our inspection at this point, Sergeant Johnson pointed out a matter of concern relating to the width of the opening in the barbed wire fence and to several star pickets (including one inserted in the ground at an angle) in the vicinity of the opening in the fence. I will return to that point later; 1. The second emergency access crossing to Emergency Evacuation Area 2. There were discussions during the course of walking to, and in the vicinity of, this creek crossing (also a crossing of the unnamed tributary to Bambi Creek), that there was a necessity to remove abandoned pallets and to add lighting during the course of nighttime hours of the festival; 2. The site office, a green building with a lean-to garage. It was located on the top of a hill, looking down toward the dam on the property and, to its north and northwest, the areas where the entertainment activities of the festival are to be undertaken; 3. The bottom of a hill to the north and north-west of the site office. Here we inspected the entertainment areas (being two of the three potential entertainment areas available to be used), with only the two closest to the site office proposed to be used in the forthcoming festival. The third area, that is the one the furthest of the north-west of these areas, was not required to be viewed as it is not proposed to be utilised.
4. During the course of the site inspection, I advised the parties that, as is conventional in Class 1 proceedings, it was appropriate for the experts -particularly Sergeant Johnson and Mr Wood - to discuss prospective resolution of issues as they might arise out of the site inspection, for example, with respect to the width of the aperture in the barbed wire and the removal of the star pickets and accompanying taping to ensure that there was an appropriate funnelling arrangement to marshal persons accessing Emergency Evacuation Area 2 if that was required (with such marshalling to be effected by reflective taping along the banks of the unnamed tributary to Bambi Creek).
5. Second, I directed that the legal representative of the Police to advise the council officers present that they were to be on notice that I might require the Council to be joined as a party to the proceedings.
6. This arose as a consequence of the focus of the proceedings arising from s 8.7(1) and 8.7(2)(a) of the EP&A Act, a provision in the following terms: 8.7 Appeal by Applicant - applications for development consent (cf previous s 97) (1) An Applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes: (a) 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 the consent authority or other person, or (b) ... (3) …

Introduction

1. Following the return to Sydney from the site inspection, the legal representatives of the Council advised my Associate that they were aware that had I raised the prospect of the Council being joined as a party to the proceedings but that that was in circumstances where, at that time, neither party had sought that the Council be joined.
2. I interpolate that, since that time, neither party has subsequently sought that the Council be joined.
3. The e-mail further advised me, via my Associate, that should a party successfully move to have the Council joined, or should I determine that the Council should be joined, it was then the Council's intention to file a submitting appearance save as to costs.

The mention on 13 November 2018

1. The matter was adjourned until 9.45 am on 13 November 2018 for mention in Sydney.
2. Then I advised that, pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005, I considered that it was appropriate to join the Council as a party to the proceedings because they ought to have been joined initially in light of the terms of s 8.7 of the EP&A Act. I ordered the Council's joinder. That joinder was advised to the legal representatives of the Council by my Associate by e‑mail shortly thereafter.
3. Later on 13 November 2018, the Council filed a submitting appearance except as to costs.

Introduction

1. The substantive hearing then proceeded - commencing at 8.30 am on 16 November 2018. The early commencement was necessary to enable the taking of telephone evidence from Mr Wood, Rabbits' Emergency Management Coordinator. It is unnecessary at this time for me to deal with his evidence in any detail and I do not consider it later needs to be referred to.

The question of jurisdiction

1. During the course of the hearing on 16 November 2018, I expressed my concern as to how I might have jurisdiction to impose additional operating requirements on Rabbits if I was to conclude, standing in the shoes of the Commissioner, that I would otherwise be satisfied that the event was safe. I said (Transcript, 16 November 2018, page 29, lines 35 to 40): I do remain of concern as to what order I might make that is within jurisdiction and capable of being effectual for the purposes if I am to conclude that the festival should proceed and particularly if I were to conclude that the festival should proceed but would only be prepared to hold that was the position if there were what amounted to additional conditions of consent at least applicable for this festival to apply to that festival.
2. I later repeated that concern at page 30 of the transcript (at lines 37 to 46).
3. On page 31 of that transcript, Mr Eastman indicated - with respect to a hypothetical that I put to him - that it would be appropriate for his client to give an undertaking to comply with a condition or requirement if I was to indicate that it was appropriate so to do and if that the conditional requirement was acceptable to his client.
4. The hearing proceeded on the basis that that specific observation would also apply relevantly to any proposed undertakings analogous to conditions of consent that might arise out of my hearing of (and determination concerning) the evidence in the proceedings.

The evidence

1. The hearing commenced with the playing of a series of short videos (Exhibit 9 on a USB stick).
2. I then heard evidence from three Police witnesses (with Mr Lamir-Pike being interposed prior to the evidence given by the last those three witnesses). The witnesses were: 1. Detective Chief Inspector Lindsay who gave evidence first. He gave evidence on general matters including matters relating to drug law enforcement in the vicinity of the site, a matter to which I will later return; 2. Sergeant Johnson gave evidence concerning emergency management and general facilities and site management issues; 3. Mr Lamir-Pike was, as I have indicated, interposed prior to the oral evidence of Superintendent Lindsay. To the extent that it is relevant, in a limited aspect, it was Mr Lamir-Pike's evidence that he was positively aware of induction training that was given to traffic marshals prior to the conducting of events on the site; and 4. Mr Lamir-Pike was followed, as I have observed, by Superintendent Lindsay.
3. During the course of the Superintendent's evidence (evidence which did not conclude prior to the hearing on 16 November 2018 concluding), I set the Superintendent a task for him to consider during the course of the weekend prior to the resumption of the proceedings on the morning of Monday 19 November 2018. I asked him:

• to consider: what was the necessary Police staffing that would be required if the event was to go ahead on the weekend of 23 to 25 November 2018; and
• to examine that in light of past Police staffing, both on a user-pays basis and on a broader public law enforcement basis for the previous Rabbits events at the site since the development consent had originally been granted.

1. It will be necessary for me to return to the results of the Superintendent's homework further in this judgment.

Introduction

1. At the commencement of the hearing on Monday 19 November 2018, Mr Eastman provided a draft of potential undertakings to the Court in response to my raising the issue of how any additional operating requirements (analogous to conditions of consent) to address matters of safety and other matters raised by the Police might be enforced.
2. The document which he tendered was entitled "Addendum to the Art-Official Entertainment consolidated events management plan, Rabbits Eat Lettuce dated October 2018'. Whilst this document initially became MFI B, it was subsequently tendered as Exhibit H.

An "amber light" approach

1. In Class 1 proceedings in this Court, in the past, the approach has evolved of dealing with matters on what is now known as an "amber light" approach (first discussed by me in Ali v Liverpool City Council [2009] NSWLEC 1327 at [120]). The evolution of (and now universality of) the approach embodied in dealing with matters where the "amber light" may turn to green was canvassed by Sheahan J in Ku‑ring‑gai Council v Bunnings Properties (No 2) [2018] NSWLEC 19 at [60] to [72]. I note, however, that it is also appropriate, when considering whether the "amber light" should be utilised to reach a conclusion, that it would not be appropriate to do so (even though this may have been canvassed) if doing so would still result in an unacceptable development: see Abax Contracting Pty Ltd v The Hill Shire Council [2016] NSWLEC 105 at [73] and [74].
2. As a consequence, pursuant to an "amber light" approach and the need to afford the Commissioner natural justice and procedural fairness, I had also prepared over the weekend a document which became Exhibit J. Exhibit J was headed, "Expressly for discussion/submissions purposes only".
3. Exhibit J set out a total of 19 matters that arose out of matters in either the Police evidence or having arisen during the course of the site inspection. Appended to Exhibit J was a marked air photo (derived from a portion of an air photo in evidence) depicting where the Police considered 2.1-metre-high, hessian-covered perimeter fencing should be erected. It will be necessary, later, for me to turn to the terms of Exhibit J. At this point, however, I note that Mr Eastman has provided to me a version of Exhibit J (with minor changes made to it that were foreshadowed during the course of the hearing). This set out the undertakings offered by Rabbits Eat Lettuce Pty Ltd (as a corporate entity) and Mr Erik Lamir-Pike, in a personal capacity, to the Court if I was minded to determine that, pursuant to condition 7 of the development consent, the event was safe for the purposes of its conduct next weekend.
4. I also note that I accept that nothing that I proposed as potential undertakings to the Court and, additionally, nothing in the matters proffered by Mr Eastman, for Rabbits and Mr Lamir-Pike personally, can conflict with the terms of the modified development consent that currently applies to the site. It is for that reason that it would be entirely inappropriate (as well as beyond power), to contemplate accepting an undertaking (if offered, but noting that it is not so offered), to move the Front Gate Processing Area (as identified in Exhibit 10) to a location further to the north-west across Bambi Creek.
5. I advised Mr Eastman that any undertakings (if I was minded to conclude that I should determine that the festival was safe for the purposes of condition 7) would not only be required to be from the corporate entity, Rabbits Eat Lettuce Pty Ltd, but also from Mr Lamir-Pike personally.
6. As I have recorded, the undertakings which have been proffered have been on that basis.

The Superintendent's further evidence

1. I subsequently received further evidence from Superintendent Lindsay about what was now considered by him to be the appropriate user-pays policing and general public safety policing staffing levels required for the festival. Those levels were set out in Exhibit 20. This disclosed (without now setting out the detail of the ranks and numbers of staff and the reasons for their presence), that a total of 143 police shifts would be required for policing of the event. That was a significant increase on the number of police shifts that had been required for the earlier Rabbits' festival activity at the site in Easter 2018.
2. The total of 143 police shifts was not divided between user-pays policing and general public safety policing requirements.
3. In response to a question from me (based on the 86 shifts that had been provided for public safety policing purposes at the Easter 2018 event), the Superintendent indicated that that staffing level for public safety purposes remained appropriate. It therefore was obvious that 57 police shifts were necessary, on a user-pays basis, if the 143-shift total was to be required. I asked the Superintendent if he was able to calculate the cost of those 57 shifts and, after a short adjournment, he gave evidence that the total cost would be $105,847.

Sergeant Johnson's further evidence

1. I also observe that, over the weekend of 17 and 18 November 2018, Sergeant Johnson had prepared a further report which was subsequently tendered. This became the subject of further evidence given by Sergeant Johnson orally on 19 November 2018. It addressed, amongst other things:

• a proposal that there be seven separately fenced and secure areas within the site if the festival was to go ahead;
• the location of the full perimeter fencing;
• the requirement for a secure vehicle parking area separated from all other camping and entertainment event operations and emergency assembly areas;
• a separate campervan camping area;
• securing all camping areas from vehicle access;
• sufficient open-ground access from Hicks Road to Emergency Evacuation Area 2; and
• the separation and security of the operations area from all unauthorised persons.

1. He also raised concerns relating to lighting of the event.

Introduction

1. During the course of the hearing on Monday 19 November 2018, Mr Eastman indicated that Rabbits was prepared to accept the staffing and costing levels that had been postulated by Superintendent Lindsay on a user-pays basis. He also indicated some differences concerning matters set out in Exhibit J (some of which related to drafting and have now been addressed as a consequence of the revised document proffered as undertakings on behalf of Rabbits Eat Lettuce Pty Ltd and Mr Lamir-Pike today.
2. He also indicated that Rabbits did not wish to have perimeter fencing. Further, he advised me that chain-link fencing was not able to be sourced but that, if I was minded to require perimeter fencing in the fashion that had been set out in Exhibit J and its attached marked air photo, that would need to be on a metal-mesh basis - a basis provided for in the proffered undertakings.

Acceptance of undertakings

1. Mr Eastman then made submissions as to why it was within power to accept the undertakings proffered as a basis for satisfaction of condition 7 and why it was appropriate to rely on those undertakings to determine, standing in the shoes of the Commissioner, that condition 7 was satisfied and that the event was safe.
2. Mr Seymour's submissions to the contrary were on two separate bases. First, that there was no jurisdiction that would permit me to reach a conclusion as to safety in an enforceable fashion and, second, that on matters of merit, I should not conclude that the event should be regarded as safe if I in fact concluded I had jurisdiction to do so.

Prepayment of user-pays charges

1. Mr Seymour also proposed that there should be an upfront payment of the amount of $105,847 to the Police pursuant to 4.1 of the "Police User Pays Policy" (Exhibit G). That policy provided that "for clients who have an unfavourable payment history, demonstrate inability to finance the event or forecast making a considerable loss for the event, NSWPF can vary terms of payments on request upfront full or partial payments."

Timing of notification to Police if festival goes ahead

1. Mr Seymour also specifically submitted that, if Mr Lamir-Pike and Rabbits proposed to go ahead on the basis of the proffered undertakings, and if I was to permit this, there should be a requirement to notify New South Wales Police by 5.00 pm today that this was to be the position. I note that this timing was accepted by Rabbits and on behalf of Mr Lamir‑Pike.
2. The hearing concluded late on the afternoon of Monday 19 November 2018.

The timetable for 20 November 2018

1. I indicated that:

• I would adjourn until 9.00 am on Tuesday 20 November 2018 when I would indicate the outcome; and
• the matter would also be listed at 2.00 pm today when I would provide reasons for my determination.

1. At 9.00 am today I read to the parties the following statement: I am satisfied, provided Rabbits Eat Lettuce Pty Ltd, as a corporate entity, and Mr Erik Lamir-Pike, in his personal capacity, give undertakings to the Court in the general terms of Exhibit J - subject only to drafting changes to: • reflect activities already carried out, such as the regime for arboricultural inspection and hazard reduction; • any agreed amendments; and • the incorporation of the additional provision concerning additional search points and searching prior to entry into the entertainment area (also provided to the parties this morning), that, standing in the shoes of the Commissioner of Police for the purposes of condition 7 of the conditions of development consent (being the conditions of development consent incorporated into the notice of determination issued by Richmond Valley Council dated 27 October 2016 as a consequence of Development Application 2016.0007.01), the 2019 Bohemian Beatfreaks festival to be conducted between 23 and 25 November 2018 at Hicks Road, Kippenduff is safe. In reaching this conclusion, I am satisfied that it is unnecessary to require payment to New South Wales Police of the sum of $105,847 (being the sum nominated in (19) of the undertakings to be given by Rabbits Eat Lettuce Pty Ltd, as a corporate entity, and Mr Erik Lamir-Pike, in his personal capacity) prior to the festival. I have concluded that it is not appropriate to require prepayment to be incorporated in the undertakings to be given to the Court because: 1 Rabbits Eat Lettuce Pty Ltd has a history of payment of monies due to NSW Police for past festivals conducted at Hicks Road, Kippenduff; 2 Despite the significant increase in the amount which will be invoiced as a consequence of the provision of user-pays policing for the November 2019 Bohemian Beatfreaks festival, there is no evidence before me, in these substantive proceedings (paragraphs (22) to (32) of Mr Lamir-Pike's affidavit, having been read only on the application for expedition, are not in evidence in the substantive proceedings) upon which I could conclude that there would be any lack of capacity to meet the payment when invoiced in accordance with the time specified in 4.1 of the "NSW Police User Pays Policy" within the timeframe there specified; and 3 The obligation to meet the payment set out in (19) of the undertakings to be given to the Court as the basis of my conclusion (that, standing in the shoes of the Commissioner of Police, the November 2019 Bohemian Beatfreaks festival is safe) means that the failure to pay the amount set out in (19) of the undertakings - should such a failure occur - would, in addition to being a debt to NSW Police arising from the undertaking, also be in breach of the undertaking and therefore exposing both Rabbits Eat Lettuce Pty Ltd, as a corporate entity, and Mr Eric Lamir-Pike, in his personal capacity, to be dealt with for contempt of court for the failure to meet that financial obligation. I direct that Mr Lamir-Pike have this position concerning the financial obligation he would be assuming pursuant to the undertakings to the Court expressly drawn to his attention prior to those undertakings formally being given to the Court at 2.00 pm this afternoon. I also direct that, if those undertakings are given to the Court in final terms at 2.00 pm this afternoon, Mr Lamir-Pike is to advise NSW Police no later than 5.00 pm this afternoon whether the November 2019 Bohemian Beatfreaks festival is to go ahead at the approved location at Hicks Road, Kippenduff. The matter is adjourned until 2.00 pm this afternoon.

Introduction

1. The formal scope of the dispute between the parties was defined by two documents.

Rabbits' Statement of Facts and Contentions

1. The first is a Statement of Facts and Contentions filed on behalf of Rabbits. This document contains a number of elements to which, at this time, I only propose to make passing reference.
2. It noted that the Applicant (Rabbits) proposed to carry out the event in accordance with 14 plans or analogous documents set out at (A)(1) of the Statement of Facts and Contentions. It then set out the following specific contentions and details in response to what was understood to be the police concerns about them. It did so under the headings:

• Access and Egress;
• Fire and Flood Risk;
• Site Control;
• Drug Risk;
• Traffic and Road Safety;
• Emergency Response Capabilities; and
• Emergency Procedures and Evacuation Plans.

1. Appended to the Statement of Facts and Contentions was a detailed response to the matters raised by the police with this response being entitled, "Rabbits Eat Lettuce Proposal to Manage the Risks Outlined in Police Letter Dated 30 October 2018".

The Commissioner's Contentions in Reply

1. The Commissioner's Contentions in Reply were lengthy and particularised. At this time, I propose only to note elements of this document. Specifically replying to Rabbits' Statement of Facts and Contentions, the Commissioner responded with respect to contention (A)(1) as follows: The First Respondent notes the proposal to carry out the event subject to nominated plans. The First Respondent contends that without a mechanism for those plans to be made enforceable and as those plans are not able to be incorporated in to the consent, the event cannot be advised to be safe.
2. With respect to contentions (a), (b), (e), (f) and (g), Access and Egress; Fire and Flood Risk; Traffic and Road Safety; Emergency Response Capabilities; and Emergency Procedures and Evacuation Plans, the Commissioner's response was in the following terms: The First Respondent contends that there is inadequate planning for likely risks arising from the event, particularly in the event of an emergency such that the likely event will be unsafe for patrons or unsafe for persons responding to those risks.
3. That matter was then particularised in particulars (a) to (l), being matters to which I will subsequently return.
4. With respect to contentions (a), (c) and (d), Site Control and Drug Risk, the Commissioner's contention was in the following terms: The First Respondent contends that the site will not be adequately controlled during the event to manage safety risks to patrons. In addition the likely patron demographic is such that the event will require extraordinary resources to be allocated by the First Respondent to policing the event which will draw those police resources away from the surrounding area making the whole region unsafe during the period.
5. That latter matter is a matter to which I will subsequently return further.
6. The Commissioner's Statement of Facts and Contentions in Reply then set out a number of matters that were pressed expressly by the Commissioner in addition to the matters in response to the contentions put on behalf of Rabbits.
7. As a matter of preliminary comment, the Commissioner's response set out the fact that, in condition 7, there were three functions provided for by that condition. The first was "liaising with the proponent to oversee performance of the event"; the second was "to meet to review the event plan" and, finally, "to advise whether the event is unsafe".
8. The document then noted that the appeal concerns a decision only with respect to the third function. It then noted in the hearing of the appeal I were to act as if possessed of the powers and discretions of the Commissioner for Police New South Wales Police Force, with such powers and discretions arising primarily but not exclusively under 14 statutes identified in the document.
9. The Commissioner then raised a number of further specific contentions. These were as follows: Contention 1: The proposed event is unsafe when assessed on the materials relevant to the exercise of the function under condition 7; that is the function is limited to consideration of the combined event management plan historically approved under the consent. Contention 2: The lack of capacity for the Court to ensure any updated plans or proposed works are enforceable under the consent means that the event cannot be advised to be safe. Contention 3: The likely patron demographic is such that the event will require extraordinary police resources be allocated by the First Respondent drawing those resources away from the surrounding areas making the whole region unsafe during the period of the event. Contention 4: Minimum works necessary before any advice could be given of safe event being likely are required to be carried out before the event commences. Contention 5: Additional works and plans are necessary to be carried out, adopted and made enforceable for advice to be soundly given that the event is safe according to best practice event management standards.
10. Turning to address these contentions, I should observe that the evidence given by the three Police, who have taken part in these proceedings on behalf of the Commissioner, was given both frankly and constructively. Appropriate concessions were made where the facts made it necessary and desirable that this occur.
11. I now turn to address the relevant matters requiring the exposure of my reasoning as to why I am satisfied that the event should be regarded as safe for the purposes of condition 7 of the development consent. I do so excluding the question of advance payment as I have already dealt with that in the statement that I made this morning.

Introduction

1. It seems to me that there four broad areas necessary to be addressed. These are: 1. My jurisdiction. 2. Site operational matters. 3. Drug and associated safety risks. 4. Broader issues of availability of policing and emergency services resources to the community beyond the festival.

Jurisdiction

1. I turn first to the question of jurisdiction. Mr Seymour commenced by putting the proposition that the operative consent is that which was given by the Council in modified form on 24 October 2015. The jurisdictional matters raised in the Commissioner's contention are, as I earlier noted in contention A1, that "the respondent notes that the proposal to carry out the events is subject to nominated plans. The respondent", that is the Commissioner, "contends that there is no mechanism for those plans to be made enforceable and that they cannot be incorporated in the consent".
2. As a consequence, Mr Seymour submitted that I could not conclude that the event was safe for the purposes of condition 7 of the development consent.
3. In addition, the Commissioner's first further contention was particularised as follows: (1) The function of the Court under condition 7 is limited to assessment of the likely risks as opposed to be managed under the enforceable CENP, the subject of the consent, and (b) the First Respondent relies on the assessment of the event carried out and notified to the Applicant by its letter of 26 October 2018 listing matters of concern as to the safety of the likely event on the materials then submitted which included additional material to the CEMP which should not be considered as part of this assessment.
4. The propositions contained in these contentions, as to the ability of me to modify the conditions of consent or for me to require departures from the CEMP, are clearly self-evidently correct. However, they fundamentally mistake the way that the path to attaining satisfaction as to safety pursuant to condition 7 is able to be achieved. Whilst there is no power in me in these proceedings that would permit me to impose conditions, s 39(2) of the Land and Environment Court Act 1979 not being available, I accept it is however possible for me to accept undertakings to the Court. Such undertakings have been proffered on behalf of Rabbits and Mr Lamir-Pike. These are based on Exhibit J.
5. The provisions of term 1 of the proffered undertakings is as follows: If the Bohemian Beatfreaks 2018 is to be carried out at the property at lots 63, 64, 70 and 71 in deposited plan 755636 and lots 1 to 6 in deposited plan 127047 known as 1048 Seery Road, Kippenduff, it is to be carried out in accordance with the event plans as listed in (1) of the Rabbits Eat Lettuce Pty Ltd's statements of facts and contentions except as modified in the conditions set out below.
6. None of the matters that are contained in those documents, on my examination of them, are discordant with any of the conditions of consent imposed by the Council in the modified development consent to which I have earlier referred.
7. In addition, the further matters that are contained in the proffered undertakings are in addition to (and do not derogate from or otherwise change) any of the conditions of consent imposed by the Council upon its granting of the modification to the original development consent.
8. I observe that, during the course of the hearing, Mr Eastman (on proper instructions) indicated that (1) of the then Exhibit J was acceptable to Rabbits and to Mr Lamir-Pike, personally, and that they were prepared to give the Court an undertaking in its terms. That has now been confirmed by the written and more specific version of (1) of the undertakings that have been proffered to me today.
9. I am satisfied that, by virtue of the contempt power available if those undertakings were breached, there is a sufficient enforceability with respect to the 14 plans set out in contention A1 of Rabbits' Statement of Facts and Contentions to provide a broad basis for resolving a significant range of the issues that were pressed by the Police. Additional undertakings have also been proffered in the remainder of the matters contained in the undertakings document.

Enforcement concerning breaches

1. Mr Seymour, however, submitted that it would be burdensome for the Commissioner to have to take enforcement proceedings if the undertakings were breached. In that respect the Commissioner is in no better or worse a position than any other litigant faced with such a choice.
2. These undertakings, whilst not the same as conditions of consent, can be regarded as generally analogous to them. The general presumption in planning law is that a person who is the beneficiary of a development consent subject to conditions will abide by those conditions. I do not see that there is any reason why I should not be prepared, prima facie, to accept that the undertakings proffered by Rabbits and by Mr Lamir-Pike, personally, will be observed by them.
3. However, if they are breached and enforcement action is taken, the alleged contemnors face potentially greater penalties (as to fines and/or imprisonment) than would arise if the enforcement action was to be undertaken for a breach of a development consent.
4. What might be the position of the Council (given that it is now the Second Respondent), should the undertakings be breached, is unknown. However, the conclusions that I have reached concerning the Commissioner's position on enforcement would be equally applicable to the Council.
5. It also seems to me that, analogous to the position with respect to development consent conditions, it is appropriate to accept undertakings that are responsive to (and curative of) past bad conduct matters in a prophylactic sense - that being consistent with the approach adopted in a planning context by Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99.
6. I am therefore satisfied that there is no jurisdictional impediment to me concluding that the event should be regarded as being safe for the purposes of condition 7.

Operational matters

1. I now turn to site operational matters. I have earlier noted that Sergeant Johnson gave two Statements of Evidence, both of which dealt, in detail, with what he considered to be operational deficiencies of the site's activities.
2. I do not propose to respond in full detail to every matter traversed by Sergeant Johnson. For example, in one of his statements he referred to what he considered was a problem because a number of taps in the stage areas were not spring loaded. There was no oral evidence, nor anything pointed out to me during the course of the site inspection, that would require me to address that matter - it being, on my assessment, a matter of some triviality.
3. The Commissioner's contentions raised a wide range of matters, as did the evidence of Sergeant Johnson.
4. It is appropriate, at this time, to note how some of those matters have been addressed in the undertakings proffered by Rabbits and Mr Lamir-Pike. I do so with respect to the paragraph numbering in Exhibit J, it remaining the paragraph numbering in the undertakings proffered today by Mr Eastman.
5. I turn first to the matters particularised in the Commissioner's response to contentions (a), (b), (e), (f) and (g) of Rabbits' Statement of Facts and Contentions.
6. Particular (a) dealt with access and egress arrangements.
7. I am satisfied that Exhibit J (12) and Mr Lamir-Pike's uncontradicted evidence concerning the induction and training of the traffic marshals provides an adequate response to this.
8. Particulars (b) and (c) related to bushfire matters.
9. I am satisfied that Exhibit J at (15) and (16) provide adequate additional obligations for responding to such risks.
10. Flooding was dealt with in (f), (g) and (h) of the particulars, particularly with respect to flooding of Myrtle Creek and the risk of isolation of the site. Paragraphs (12) and (13) of Exhibit J provide an adequate response to these three particulars.
11. Particular (i) related to the observed presence of a large log near the causeway, downstream of the causeway, that was said not to have been adequately mitigated. The evidence is that, as at the commencement of the hearing on Monday 19 November 2018, that log had been cut but (17) of Exhibit J provides additional requirements for the cutting of the log and the removing of the cut sections from the floodway.
12. Finally, with respect to these particulars, I am satisfied that traffic management matters have been adequately dealt with in the documents provided by the documents dealt with in (1) of the undertakings and consistent with Mr Lamir-Pike's evidence concerning the training of traffic marshals.
13. Matters of fire risk, I should note, have been dealt with in Exhibit J at (15) and (16).

With respect to contentions (c) and (d) in Rabbits' Statement of Facts and Contentions

1. Particular (a) on behalf of the Commissioner dealt with tree safety and that has expressly been dealt with by (2) of the proffered undertakings.
2. The question of electrical wiring, trip hazards and the like has been dealt with pursuant to proffered undertaking (10), with its now incorporation of the option for undergrounding of electrical cabling (except for any electric cables that might have cable connections in them).
3. Particular (c) of the Commissioner's response proposed that there be full perimeter fencing to a minimum height of 2.1 metres and covered with hessian (Exhibit J at (18)), reflected in the undertakings proffered on behalf of Rabbits and Mr Lamir-Pike. This accepts the necessity for such a fence to surround what might be described as the entertainment area.
4. I was not persuaded that there was any necessity for the requirement for such a fence to be erected around all the relevant camp ground areas. Perimeter fencing is to be required for them, however, is not to be to the standard proposed on behalf of the Commissioner. The reasons that were advanced on behalf of the Commissioner for full perimeter fencing was, first, to protect against the passage of drugs and/or weapons into the entertainment area or into other areas of the site and, second, for those persons who were potentially alcohol- or drug-affected to be protected from wandering from the site into the surrounding bushland.
5. I will later return to address the matters contained in Exhibit D to which Mr Seymour took me but nothing that I have read in any of that material causes me to conclude that the specific risks sought to be addressed by the Commissioner's proposed requirement for a 2.1-metre-high fence around the whole of the perimeter arise at locations outside what can be described as the entertainment area (that being an area identified as being the perimeter of the area running from the points identified as A and B1 on air photo appended to and part of the undertakings proffered by Rabbits and Mr Lamir-Pike).
6. I am not satisfied that there is a proper valid reason to require the installation of such fencing on a full perimeter basis.
7. There was particularised by the Commissioner a need for areas leading to emergency evacuation areas to be defined by reflective tape and signposting, with pathways to be lit. I am satisfied that those matters that were discussed during the course of the site inspection (about providing marshalling taping to provide controlled access to the primary emergency evacuation area, being Emergency Evacuation Area 2) is a satisfactory response to that and there has been an undertaking given that that taping will be provided.
8. Particular (g) related to the risk of an unsafe event as a consequence of drug- or alcohol-affectation. I propose to address that as a separate matter.
9. However, Exhibit J also addresses a range of other matters discussed during the course of the site inspection and during the course of Sergeant Johnson's written and oral evidence. This range of other matters can be observed from the terms of Exhibit J and, more relevantly, particularly, the terms of the undertakings proffered by Rabbits Eat Lettuce Pty Ltd and Mr Lamir-Pike, personally. The undertakings are appended to this judgment as an annexure to it.
10. I note that I have earlier dealt with paras (1), (2), (10), (11), (12), (13), (15), (16) and (18) of the additional matters in the undertakings.
11. Paragraph (19) of the undertakings deal with the pay-for-use police shifts at a cost of $105,847 and that undertaking is proffered as I dealt with earlier in the day.
12. Paragraphs (3), (4), (5), (6), (7), (8), (9), (14) and (20) also are responsive to the matters that were raised by Sergeant Johnson and I am satisfied that it is appropriate that they be the subject of the undertakings and that they are a sufficient response to the additional matters that have been raised by the Sergeant.
13. In addition, Mr Seymour tendered, as Exhibit 21, what was said by Sergeant Johnson to be the necessity for additional searching provisions of those persons seeking entry to the entertainment area of the site. Exhibit 21 set out a number of matters that Mr Seymour submitted should be dealt with by such a condition.
14. I provided the parties, during the course of this morning's mention, the terms of a requirement for an undertaking in response to Exhibit 21. That requirement for an undertaking, as drafted by me, has been adopted by Rabbits Eat Lettuce Pty Ltd and Mr Lamir-Pike and incorporated in the undertakings proffered on their behalf.
15. It is appropriate that I observe that there were two matters proposed by Mr Seymour to be included in such a requirement that I have not adopted for the purposes of drafting the proposed undertaking I provided this morning.
16. First, in item 3(2) of the exhibit, it was proposed that all glass items be removed from patrons seeking to enter the entertainment area. I was not prepared to propose such a requirement for two reasons.
17. The first of these is that this is not a dry event. Whilst Mr Lamir-Pike imposes, as I understood the evidence, a restriction on the amount of alcohol that any person could bring in to the festival, there is no ban. I also observe that there is no proposal for the sale of alcohol at this event.
18. The second reason why I decline to ban glass is that my examination of the material in Exhibit D, a folder entitled "Historical Documents for Previous Festivals", does not disclose any issues relating to, as far as I could see, assault of any nature akin to what is commonly known as "glassing" or any other form of offensive assault or other behaviour involving glass objects. If there was such a reference in that document, Mr Seymour did not draw my attention to it.
19. The second matter is the proposal that there be metal detectors used on patrons entering this area. I observe that the proffered undertakings provide for male and female security staff and the undertaking of pat-down searches at the entrance to the entertainment area. It seems to me, under those circumstances, that the necessity for metal detectors has not been made out.
20. As a consequence of all of that which I have outlined, I am satisfied that the operational changes that arise as a consequence of (1) of the proffered undertakings and its incorporation of the various documents requiring to be implemented (together with the other matters that are contained in the proffered undertakings) that these render the proposed event operationally safe for the purposes of condition 7 of the development consent.

Drug safety

1. I now turn to the question of drug safety.
2. Mr Seymour took me to a range of matters contained in Exhibit D, the Historical Documents for Previous Festivals. It is unnecessary for me to go to those in detail.
3. It is sufficient for me to observe that I am satisfied that there have been a number of problems over the years, when festivals have been operated on this site, and that these demonstrate there have been a range of (and frequency of) incidents involving the consumption and effects of illicit drugs. They are dealt with, in particular in addition to the matters contained in Exhibit D, in the Statement of Evidence of Detective Chief Inspector Lindsay, from (6) to (24) of his statement.
4. I do not intend to read all of those onto the record. They were subject, in at least one aspect of the evidence in the videos, to a demonstration of drug consumption. The evidence is that one of the participants was arrested and charged, whilst the other, who was a juvenile, was dealt with under the Young Offenders processes available for New South Wales Police.
5. In his oral evidence, the Superintendent gave evidence that the Police policy concerning music festivals has changed in light of the experience including fatalities at an event at Penrith, known as Defqon 1. He also gave evidence that the policy is not presently in writing and that it is evolving. I accept that evidence unreservedly.
6. Matters of broad public policy are matters for the Legislature and the Executive Government. I have earlier observed that my role in these proceedings is limited solely to the 2018 Bohemian Beatfreaks events. Further public policy evolution as well as the outcomes from next weekend's event, will undoubtedly inform future Police positions concerning any future events sought to be regarded as safe for the purposes of condition 7 of the development consent.
7. There are, however, a number of reasons why I am satisfied that it is appropriate that, for the purposes of condition 7, there is no reason why I should not consider that the event is safe based on these drug-related matters.
8. The first is that there is to be a very, very significant additional policing presence during the course of the festival, a significant portion of which is to be paid for by the festival organisers on a user-pays basis. The number of Police shifts which are to be applied to the 2018 Bohemian Beatfreaks festival, when compared to the number of shifts applied to the identical event in 2017, nearly doubles. There were 72 shifts applied in 2017, as demonstrated in Exhibit 20, whilst there are to be 143 shifts applied to the 2018 event.
9. Second, matters that are set out in (5), (6) and (7) of the proffered undertakings are responsive to concerns pressed by the Police with respect to potential drug-dealing individuals. Paragraph (5) deals with the banning from the event of those persons named in (25) of the affidavit of Detective Chief Inspector Lindsay, (6) permits the police to add to the list of banned individuals other persons specifically nominated to be added to that list, whilst (7) is expressly responsive to concerns expressed by Detective Chief Inspector Lindsay in his affidavit concerning the discovery of a drug-manufacturing laboratory in the general vicinity of the site.
10. I also have regard to the new secondary search and security processes for access to the entertainment area now set out and adopted in (20) of the undertakings proffered on behalf of Rabbits Eat Lettuce Pty Ltd and Mr Lamir‑Pike.
11. Third, the Superintendent accepts that the harm minimisation activities undertaken on behalf of the event organisers within the entertainment area are appropriate. There is also his oral evidence that no additional harm minimisation measures were required. On a risk assessment basis, broadly (but I accept not completely) in the context of the nature of risk assessment and likelihood of harm dealt with by the High Court in The Council of the Shire of Wyong v Shirt & Ors (1980)146 CLR 40, although there is some risk, it is not such as to be unable to be mitigated by the measures to which I have referred.
12. The process of mitigation of adverse impacts is one familiar to this Court in Class 1 matters and, if appropriate mitigation is not available, refusal is possible, a matter I dealt with, for example, in Solotel Pty Ltd v Woollahra Council [2011] NSWLEC 1210.
13. Under the circumstances, I am satisfied that the alterations to policing levels coupled with the other relevant measures that I have outlined cannot cause me to conclude that, on any basis, the Bohemian Beatfreaks festival is not safe on drug-related grounds.

Policing

1. The fourth matter to which I turn is the potential impact on broader community policing and other emergency service availability.
2. Contention 3 of the additional contentions proposed by the Commissioner was in the following terms: The likely patron demographic is such that the event will require extraordinary police resources to be allocated by the First Respondent, drawing those resources away from the surrounding areas, making the whole region unsafe during the period of the event.
3. This was dealt with in two of the written reports of the Police officers giving evidence. First, Detective Chief Inspector Lindsay said, at para 4, concerning the safety of events from the operational perspective of Police, the following: That is, I believe I can express an opinion that an event is unsafe because of the level of resources it will require to manage it and the flow on effects that this has for maintaining police resources in other areas."
4. The Detective Chief Inspector then went on to deal more specifically with drug-related matters to which I do not need to turn.
5. Superintendent Lindsay dealt with this matter, in (34/3) of his written statement, in the following terms: In relation to the proposed Rabbits Eat Lettuce/Bohemian Beatfreaks event for 2018 I raise the following concerns as the Richmond Police District Commander. The event if permitted to proceed would adversely affect the Richmond Police District's ability to provide essential policing services and resources to the broader district before, during and after the event. With the current assessment of risk, the Police Forward Commander, Chief Inspector McKenna, advises that a minimum of 137 police shifts would be required between Thursday 22 November 2018 until Monday 26 November 2018 in an attempt to provide a suitable police response to this remotely located event with 3,000 plus patrons. This significant resource allocation includes district inspectors, detectives, target action group, operation support, highway patrol dog unit and general duties police. These resources in the main would not be available to police the wider community due to the remote location and operational strategies required for such an event. November to February is considered the peak operational/summer period for the Richmond Police District and resource redirection to this event has potential to have an adverse impact on crime and response times elsewhere in the district.
6. I observe that the first sentence of what is dealt with by the Superintendent in (34/3) is qualified by what he says in the last sentence of that paragraph.
7. The Superintendent had the opportunity to give quite specific evidence that the potential impact on policing resources was such that Police could and would not provide the necessary level of policing set out as desirable in Exhibit 20. Had he done so, I would have no basis to conclude, on broader public safety grounds, that the event was safe. The Superintendent did not say that and that he was not able to provide policing at the necessary level on that basis.
8. I accept that there is a potential for impact. However, absent specific evidence that Police could not be provided, this does not stand as an impediment to determining, for the purposes of condition 7, that the event is safe.
9. I further observe I have no scope to impose policing provisions on the Commissioner or his sworn officers in order to satisfy condition 7. Effectively, on policing provision grounds, the Commissioner (through his responsible senior officers) has a veto power which has not been exercised in these proceedings.
10. I am satisfied that, although there is the potential for an impact on broader policing issues, it is not such that should cause me to consider that the proposed event is unsafe for the purposes of condition 7.

Emergency services

1. I now turn to other emergency services. Superintendent Lindsay also addressed, in his written statement, his concerns as the Northern Rivers Local Emergency Operations Controller. In (35/3) of his statement, he said: The event, if permitted to proceed, could adversely affect the broader northern rivers emergency services organisation in terms of capability requirements, source availability and response timeliness. The remoteness of this site, lack of necessary supporting infrastructure, influx of 3000‑plus persons, 2500‑plus vehicles in a bushfire prone and recently impacted land, with pre‑existing and unmanaged vehicle access/egress issues, is an event that poses tangible risk to its festival goers, festival staff, festival volunteers, emergency services and the community.
2. There are two specific observations to be made with respect to that paragraph.
3. The first is that this opinion is expressed in context of "could adversely affect", rather than in the inevitability of such an outcome.
4. Second, matters have significantly advanced in this area since the Superintendent swore his statement on 12 November 2018. First, as I have indicated, for the reasons earlier set out, the undertaking given by the Applicant and by Mr Lamir-Pike in (1) of the proffered undertakings, expressly imposes an obligation to observe the matters contained in the events plan listed in one of the Rabbits Eat Lettuce Pty Ltd's Statement of Facts and Contentions. Those were matters which, at the time of swearing of the Superintendent's statement, were not, in the view of the Commissioner's legal representatives, able to be mandated for compliance - a position which, for the reasons I have explained, is not the case.
5. Those matters, together with the other matters in Exhibit J, satisfy me that, although there is some potential for pressures on emergency services' organisations, as postulated by the Superintendent, that is not such as to warrant me concluding that condition 7 should not be satisfied.

Conclusion

1. After consideration of the reasons outlined above and subject to the undertakings proffered (and now given) by Rabbits Eat Lettuce Pty Ltd, in its corporate capacity, and Mr Erik Lamir-Pike, in his personal capacity, as will be reflected in Annexure A to this judgment, I am satisfied that the Bohemian Beatfreaks 2018 scheduled for 23 to 25 November 2018 is safe for the purposes of condition 7 of DA 2016.0007.01.

Orders

1. The legal representatives were asked to provide me with a form of proposed final orders and I make the orders in that form as follows: 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.

Amendments 22 November 2018 - Minor typographical and transcription errors amended.

In [59], the cost for the additional 143 police shifts was amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2018