Lachlan Bell trading as Maitreya Promotions Pty Ltd v Richmond Valley Council

[2020] NSWLEC 1480

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lachlan Bell trading as Maitreya Promotions Pty Ltd v Richmond Valley Council [2020] NSWLEC 1480

Hearing dates:

29-30 July 2020; 14 September 2020

Date of orders:

14 September 2020

Decision date:

14 September 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

DEVELOPMENT APPLICATION – temporary use of land for a music and arts festival

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979

Local Government Act 1993

Richmond Valley Local Environmental Plan 2012

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Lachlan Bell trading as Maitreya Promotions Pty Ltd (Applicant)
Richmond Valley Council (First Respondent)
The Minister Administering the Crown Land Management Act 2016 (Second Respondent)

Representation:

L Bell (Litigant in person) (Applicant)
C Rose (Solicitor) (First Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (First Respondent)

File Number(s):

2019/151424

Publication restriction:

No

Judgment

1. COMMISSIONER: On 14 September 2020 at the request of the applicant, Mr Lachlan Bell, I dismissed this Class 1 appeal. Although the reasons for my decision are apparent from the transcript of the hearing a large part of the authorised record of the proceedings is described as “not transcribable”. This was because Mr Bell was speaking and sometimes yelling whilst the Richmond River Council’s solicitor, Ms Cecilia Rose and I were speaking. In that circumstance it seems appropriate that I set out the context in which the decision to dismiss the appeal was made.

2. The appeal is responsive to the Council’s decision to refuse consent to the applicant’s Development Application No. DA2018/0197 (DA), and the associated s 68 permit under the Local Government Act 1993. The DA sought consent for the temporary use of Lot 152 in DP 811469, known as 302 Brewers Road, Kippenduff, for an annual music and arts festival, over the next 5 years.

3. The facts outlined below, taken from the Council’s Statement of Facts and Contentions (SOFC) (Exhibit 5), appear to be uncontroversial and give context to my decision.

The site and proposed festival

4. The land is zoned RU1 – Primary Production. A music and arts festival are not a permissible use in the zone, and the development application relies on cl 2.8 of the Richmond Valley Local Environmental Plan 2012 (RVLEP) which authorises a temporary use of land, with development consent, for amongst other things a music festival.

5. The site is located on a 799 ha mostly forested property approximately 40 km southwest of Casino and 65 km west of Evans Head with small cleared areas, numerous creeks and intermittent steams, and a large constructed waterbody proximate to the festival site.

6. Access to the site is from Old Tenterfield Road, Brewers Road and a track that, in part, follows a Crown road reserve. Intersecting with Old Tenterfield Road. Brewers Road is a single lane rural gravel road used for local sand quarry haulage which narrows to 4.0 m in width. The 3.5 m long track is located approximately 3.3 km from Old Tenterfield Road intersection with an average width of 2.5 m and 3.0 m and traverses the festival site to connect with the western end of Seery Road.

7. The Minister Administering the Crown Land Management Act2016 is the second respondent to the proceedings. The Minister has refused owner’s consent to the use of the Crown road that forms part of the application. Otherwise, the Minister has filed an appearance, submitting to the orders of the Court other than on order for costs.

8. The festival is proposed to occur in the northern quadrant of the western end of the property in a cleared grassland area between two ridgelines, accommodating various stages, stalls, bars, amenities and services.

9. The central and southern portion of this clearing is proposed to be used for informal camping with amenity blocks and water access points provided in addition to an over-flow parking and camping area 300m east of the main festival activity area.

10. The festival is proposed to operate from 12:00pm Friday to midday Tuesday as scheduled:

1. Friday 2:00pm to Saturday 2:00am,

2. Saturday 12:00noon to 12:00am Sunday,

3. Monday 9:00am to Monday 6:00pm.

11. The site does not have a supply of potable water, sewerage services, electricity or telecommunications.

12. Development of the site is constrained by the provisions of the RVLEP directed to:

1. riparian land and watercourses (Key Fish Habitat – Cabbage Tree Creek and Four Mile Creek) – cl 6.8;

2. terrestrial biodiversity – native vegetation – cl 6.6;

3. landslide risk – steep slopes – cl 6.7;

4. bush fire prone land – Categories 1 and 2.

Objections and Refusal

13. The DA is subject to objections from:

1. NSW Office of Environment & Heritage;

2. NSW Police;

3. NSW Department of Primary Industries Fisheries;

4. NSW Rural Fire Service (RFS);

5. NSW Roads and Maritime Services; and

6. NSW Health’s North Coast Public Health Unit.

14. On 13 November 2018 the DA was refused by the Council for the following reasons:

1. Insufficient information to determine environmental impacts and considerations pursuant to s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. Failure to demonstrate compliance with cl 2.8 of the RVLEP: EPA Act, s 4.15(1)(a).

3. Insufficient detail to enable a proper assessment of critical matters for the development: EPA Act, s 4.15(1)(a).

4. Unsuitable road access – lacks consent from the Department of Industry (Crown land) to use Crown public roads or undertake required road works.

5. Failure to demonstrate undertaking of traffic impacts to ensure efficiency, safety and protection of amenity.

6. Biodiversity assessment lacks detail to determine significance of potential impacts on threatened species or if development exceeds the biodiversity offsets scheme threshold pursuant to the Biodiversity Conservation Act 2016.

7. Failure to demonstrate availability of essential services for development or welfare of attendees, or that adequate arrangements can be made to make them available.

8. Lack of noise impact assessment prepared by a suitably qualified person.

9. Development not in the public interest.

10. Objections and issues raised in public submissions have not been adequately addressed and information requested by the public agencies listed in paragraph 9 of the SOFC has not provided: EPA Act, subss 4.15(1)(d), (e).

11. Concurrence of NSW RFS not granted: EPA Act, s 4.47(4).

Chronology

15. Prior to commencement of the hearing before me, the matter had been listed before the Registrars on the following occasions: 8 July 2019; 2 September 2019; 17 February 2020; 2 March 2020; 16 March 2020; and 10 June 2020.

16. On each occasion, the orders or directions made included a requirement that Mr Bell provide additional information and evidence in support of his appeal. No information or evidence was filed in response to those orders and directions.

17. On 30 July 2020, the appeal was listed for hearing before me on Microsoft (MS) Teams in accordance with the Court’s COVID-19 Pandemic Arrangements Policy. Mr Bell appeared via MS Teams from his car in Melbourne.

18. The hearing commenced with the objectors’ evidence by telephone before the Court received the Council’s evidence – comprising affidavits and a bundle of documents, including the objections from the statutory authorities to which I have referred. Mr Bell tendered his Class 1 documentation. Following that tender, Mr Bell sought an adjournment of the proceedings, which I granted, so that he could arrange the attendance of a representative of the second respondent for cross-examination and if necessary, issue a subpoena for such attendance. I also gave Mr Bell a further opportunity to file any expert evidence and directed him to provide the names and details of any person he intended to call at the further hearing.

19. In addition to agreeing to pay the Council’s cost thrown away by the adjournment of the hearing, Mr Bell also said that he would like to attend in person at the resumed hearing (if possible) or instruct a legal practitioner to appear in person on his behalf.

20. The further hearing was fixed for 14 September 2020 in Sydney via MS Teams subject to any personal attendance at the Court by legal representatives.

21. On 8 September 2020 the Registrar wrote to both Mr Bell and the Council to confirm that the resumed hearing listed before me on 14 September 2020 will be proceeding by MS Teams. Mr Bell replied, “It is not my wish to proceed that way.” Given Mr Bell’s response, I listed the matter for a telephone mention at 4pm on 10 September 2020 to discuss the use of MS Teams or an alternative. Mr Bell and Ms Rose appeared by telephone at the mention and Mr Bell at that time confirmed that he was content to proceed with the hearing from Melbourne on Monday, 14 September 2020 using MS Teams.

Issues raised by the applicant in the further hearing on 14 September 2020

22. At the resumed hearing Mr Bell raised the following three issues:

1. the Court’s jurisdiction to hear the appeal;

2. the Court’s power to overrule Federal legislation (COVID-19 Acts and other related legislation); and

3. competency of the Class 1 application filed with the Court.

23. As the transcript records, I dealt with each of those matters.

24. Repeatedly, Mr Bell talked over me, often yelling, and accused me of muting his microphone and avoiding his questions. Mr Bell’s conduct frustrated the progress of the hearing.

25. At one point I inquired whether he wanted me to dismiss the application. The record of our conversation taken from the transcript is set out below:

“…

BELL: Well, that’s a point that we can't pass.

SENIOR COMMISSIONER: Are you asking me to dismiss your application, Mr Bell?

BELL: No, I’m asking you to relist it correctly, so it looks like a real application in a real Court.”

(Tcpt, 14 September 2020, p 8(27-33))

26. It was clear to me at this point that Mr Bell understood the distinction between my dismissing his application and changing the name of the applicant in the appeal. At this time Mr Bell specifically said that he did not want the appeal dismissed. Nor did he ask me to change the name of the applicant, insisting that this was my decision not his as the transcript records. Therefore, I attempted to press on with the hearing over Mr Bell’s objections.

27. The following exchange gives some indication of the position that Mr Bell assumed and his manner.

“…

SENIOR COMMISSIONER: And Mr Bell, I invited you to change the name. Would you like to change the name?

BELL: You can change the name if you guys would like--

SENIOR COMMISSIONER: Mr Bell--

BELL: --to make.(not transcribable).--

SENIOR COMMISSIONER: --I can only do what you - it’s your application.

BELL: --...(not transcribable).--

SENIOR COMMISSIONER: I think you’re a little confused.

BELL: --.(not transcribable)...--

SENIOR COMMISSIONER: It’s your application, would you like to change the name?

BELL: .(Not transcribable)...change that. You guys should change that because it is not reflective - you shouldn’t have even taken the case that wasn’t in the same name as the application. How about that? Would you like to change the name?”

(Tcpt, 14 September 2020, pp 16(28-50), 17(1))

“…

SENIOR COMMISSIONER: --we’re dealing with the matter. I’m proceeding on the basis of the application as filed--

BELL: ..(Not transcribable)..present the case on the fact that it is not reflective of the application that I’ve made? Even if you were to proceed, this is not the application that I made. If you were to approve a permit based on the name of the application in front of you, it would be incorrect to not allow me to do what I want to do. It would not be reflective of reality, you are absolutely in la-la land if you do not deal with this.

SENIOR COMMISSIONER: Mr Bell, I’d ask you not to say things in the way that you’re saying them because we’re in a court and I’d ask you to be respectful. I understand--

BELL: Yeah, well, how I am going to be respectful to the fact that you are hearing an absolute fantasy right now and then are - are continuing to play on into that. So la-la land is an appropriate word, Commissioner.

SENIOR COMMISSIONER: Mr Bell, are you asking me to ask Ms Rose to agree to the amendment to the application to have it in the company name, is that what you’re asking?

BELL: It’s your prerogative..(not transcribable)..

SENIOR COMMISSIONER: No.

BELL: I am telling you it is--

SENIOR COMMISSIONER: No. No, Mr Bell. I--

BELL: --..(not transcribable).. --

SENIOR COMMISSIONER: --answer an application as filed, it’s your prerogative. What are you actually requesting that I do?

BELL: ..(Not transcribable)..the application that I filed in, Commissioner, so we are on different pathways.

SENIOR COMMISSIONER: Mr Bell, I’ll ask you again, are you asking me to amend the name of the applicant on the application before the Court?

BELL: Sure, are you allowed - are you able to do that?

SENIOR COMMISSIONER: I can do whatever you’re asking me to do with the consent of Ms Rose. I’m asking what the application is--

BELL: ..(Not transcribable)..you’re the Court, you're supposed to have the jurisdiction, I am supposed to be able to confidently come to you with something that I've..(not transcribable)..be able to give to you - sorry, I’m not - I’m not asking you to do anything, actually. You guys have acted incorrectly and if you don’t want to fix it, you don’t have to.

SENIOR COMMISSIONER: But Mr Bell, it’s your application--

BELL: ..(Not transcribable)..because you don't ..(not transcribable)..--

SENIOR COMMISSIONER: --you filled it out.

BELL: --..(not transcribable).. find what I’ve - what I’ve lodged, then that is your prerogative and I will simply appeal your decision.

SENIOR COMMISSIONER: To the extent that I understand, that is what you’ve lodged, you did write, “Lachlan Bell, trading as” the company--

BELL: You’re actually incorrect--

SENIOR COMMISSIONER: --and that is the application before the Court.

BELL: --you're incorrect, Commissioner. And Cecilia just - just told you that.

SENIOR COMMISSIONER: Perhaps you might refer to Cecilia as Ms Rose, she’s the respondent’s legal representative in the proceedings. Ms Rose, as I understand it, the application has been filed by Mr Bell in the way that you’d explained and nominating himself as the person indicated on the form, that’s right?

ROSE: That’s right.

SENIOR COMMISSIONER: Thank you.”

(Tcpt, 14 September 2020, pp 13(32-50), 14, 15(1-10))

28. Following that exchange I again attempted to press on with the hearing and asked Ms Rose about the Council’s evidence while Mr Bell continued speaking to me loudly and aggressively in the background.

“…

SENIOR COMMISSIONER: --I’m clarifying the Council’s evidence.

BELL: --you can’t - you've now moved me on multiple times. You have now moved me on multiple times and - and - and evaded a question. Right?

SENIOR COMMISSIONER: Mr Bell--

BELL: ...(Not transcribable).--

SENIOR COMMISSIONER: --I haven’t muted at all. I can hear you loud and clear--

BELL: --...(not transcribable).the question...(not transcribable).--

SENIOR COMMISSIONER: Loud and clear.

BELL: --...(not transcribable)...the--

SENIOR COMMISSIONER: Repetitively.

BELL: --...(not transcribable)...--

SENIOR COMMISSIONER: Please allow me to speak to Ms Rose--

BELL: --...(not transcribable)...--

SENIOR COMMISSIONER: --I wish to clarify the--

BELL: --...(not transcribable)...--

SENIOR COMMISSIONER: --particular affidavits.

BELL: --...(not transcribable)…you’re now just speaking over me irreverently. This is ridiculous. Ms Rose has been asked a direct question. So, have you.

Neither of you - now twice neither of you have answered this question. You then simply move on. I’m not sure why you think that this the way--

SENIOR COMMISSIONER: I’ve answered the question to the extent--

BELL: --...(not transcribable)...--

SENIOR COMMISSIONER: --that I’m going to answer the question, Mr Bell, and I’m now asking--

BELL: You are not.

SENIOR COMMISSIONER: --the Council--

BELL: ...(Not transcribable)...

SENIOR COMMISSIONER: I have answered the questions to the extent that I am answering it. Ms Rose--

BELL: Okay, okay, okay, well then, well I want the paperwork changed right now...(not transcribable)...

SENIOR COMMISSIONER: Are you asking that the matter be dismissed? That it’s in the wrong name, Mr Bell? Is that what you’re asking?

BELL: Yes.

SENIOR COMMISSIONER: Thank you.

BELL: Yes.

SENIOR COMMISSIONER: The matter is dismissed. Ms Rose? Is there any issue in relation to costs?

ROSE: Yes, there is.

SENIOR COMMISSIONER: As you appreciate, I don’t have jurisdiction to deal with the matter of costs, so as far as the--

BELL: And then you're going to order the costs against me. A big joke.

SENIOR COMMISSIONER: As far you understand, that would be a separate notice of motion that you would file with the Court. Thank you, Mr Bell.

BELL: ...(Not transcribable)...”

SENIOR COMMISSIONER: Thank you, Ms Rose.

BELL: Against who?

SENIOR COMMISSIONER: The matter is dismissed.

BELL: Against who? Let me - let’s see what the...(not transcribable)...comes back that way...(not transcribable)...”

(Tcpt, 14 September 2020, pp 17(43-50), 18-19)

29. It is against that background that I acceded to the request of Mr Bell for his appeal to be dismissed.

Orders

30. The Court orders that:

1. The application is dismissed.

………………………..

S Dixon

Senior Commissioner of the Court

**********

Decision last updated: 08 October 2020