NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd

The NSW Commissioner of Police appealed to the Court of Appeal of New South Wales against an order of the Land and Environment Court. The dispute concerned whether a music festival, "Rabbits Eat Lettuce," could proceed, a decision that was subject to a condition of development consent requiring the Commissioner of Police to advise that the event was safe. The Commissioner had advised that the event was unsafe, and the festival organiser sought to challenge this decision in the Land and Environment Court.

The central legal issue before the Court of Appeal was whether the Land and Environment Court had jurisdiction to hear a Class 1 appeal against the Commissioner of Police's decision that the festival was unsafe. This required the court to consider the scope of the Land and Environment Court's jurisdiction under section 8.7 of the *Environmental Planning and Assessment Act 1979* (NSW), specifically whether the Commissioner's decision constituted an "aspect of the development required to be carried out to the satisfaction of the consent authority or any other person."

The Court of Appeal reasoned that the condition of consent did not require the development to be carried out to the satisfaction of the Commissioner of Police in the sense contemplated by section 8.7. Instead, the condition imposed a pre-condition on the commencement of the festival, requiring a positive advisory opinion from the Commissioner. The court distinguished this from a situation where an aspect of the development itself was to be performed to the satisfaction of another party. Therefore, the Land and Environment Court did not have jurisdiction to hear a Class 1 appeal against the Commissioner's advisory opinion.

The Court of Appeal allowed the appeal, set aside the orders of the Land and Environment Court, and dismissed the festival organiser's application for want of jurisdiction.