Somerset Regional Council v Bradford (No 1)

[2010] QPEC 109

[2010] QPEC 109

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 2609 of 2010

SOMERSET REGIONAL COUNCIL	Applicant
and
COL BRADFORD	Respondent

BRISBANE

..DATE 15/09/2010

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 7, s 266, s 604

Whether a five day "bulls, boxing and music" event for patrons camping on a 90 ha rural property was a material change of use, and development requiring development approval - Council seeks declaration and enforcement order to forbid the imminent event - short adjournment to enable parties to attempt to devise arrangements acceptable to Council

HIS HONOUR:  The Court adjourns the Council's application filed on the 13th of September 2010 returnable today until 3.00 p.m. next Friday the 17th.  That time is subject to adjustment to accommodate Mr Ure's commitment to a Land Court matter and, indeed, the Court's commitments in respect of a two day hearing that will be underway then.

The purpose of the adjournment is to allow an opportunity to the parties to work out issues that arise in respect of an event that the respondent, Mr Bradford, is promoting on a 90 hectare, or larger, property on the Brisbane River east of Fernvale. 

It is the third, it seems, of what may be turning into an annual event.  It's been described as the "Fernvale Bulls Boxing and Music" event.  The Court hears that the entertainment available, from the 23rd to the 27th of September, 2010, will include other things such as races for rider mowers.  The event appears to have attracted a lot of local support, including from business people.  It has been widely publicised.  Attendance is expected to be in the thousands.

The Council has been concerned in the past, but allowed the 2009 event to go ahead on conditions including the provision of traffic lights on Banks Creek Road, which is a narrow unsealed access road leading to the site, the purpose of the traffic lights being to ensure that the traffic is moving in one direction only at a time.  It is a black spot road.  Indeed, Mr Bradford tells the Court that he witnessed a fatal accident responsible for that listing himself. 

Other concerns for the Council include environmental ones.  The site is subject to a catchment overlay.  Concern is expressed regarding a complete fire ban in the relevant region, though the seasons have been such that fire risks are perhaps less than they might have been.

The event, which, as indicated, runs over several days, is expected to be attended by people camping on the site, and probably in structures that they supply themselves.

The Council's deponent, Mr Sully, expresses concern about what certification the proposed food vendors for the event might have, and whether they can be relied on to follow safe food practices.  Concerns are expressed not only regarding various categories of waste, but event the supply of drinking water to patrons.

The event can be enjoyed only by payment of entry fees which range from $50 per person for a one day pass to $120 for a five day pass.

The respondent has had in the past and anticipates having this time appropriate authority from the licensing authorities to supply liquor within areas to be enclosed (he says he has a “portable” show, but his authorities to sell alcohol are site or event specific).  Mr Ure for the Council observes the curiosity that in other areas BYO liquor will be able to be consumed.

The Council takes the view that the activity represents development as a material change of use within section 7 of the Sustainable Planning Act 2009. Although Mr Bradford has suggested he has been caught by changes to the law because of the coming into force of that Act, the legal rules have not changed, and the Council, it appears to me, was correct in contending that the same situation applied in 2009...

On the 14th of August 2009 the Council wrote to Mr Bradford advising him of a Council resolution passed two days earlier to following effect:
"1) that Council inform the organiser of the 2009 Bulls Boxing Music Event to be held at Fernvale planned for 18 to 20 September 2009 that Council will allow the event to go ahead for this year only subject to the organiser being required to provide traffic lights to allow one-way operation on the narrow section of roadway on Banks Creek Road.
2) that the organiser will be required to have planning approval prior to any further events.
3) that the organiser is to liaise with Council prior to any advertising of the future event."

The letter went on, and I quote, "Finally I refer to your discussion with Council officers Tony Jacobs and Brad Sully and wish to confirm their advice that any future event will require development permit from Council prior to the event.  Please note that such a permit attracts a substantial application fee, must be accompanied by appropriate supporting information and requires public notification and about six months to process." 

I'm satisfied that the Council's advice was legally correct.  I'm not the first Judge to have felt some surprise at the contention that what might be seen as a one-off event, whose impacts on the relevant site might shortly after the event have totally disappeared, represents development or a material change of use. 

However, Stein J's judgment in Gosford City Council v Popran Creek Pty Ltd [1995] 89 LGRA 208 to my mind clearly establishes that such events do involve a material change of use and development. His Honour referred to other authorities in a very helpful discussion of the law. Those include Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1991] 1 Qd R 125 which is of some interest in the present circumstances in establishing that independently of proceedings such as this (in which the Council is seeking a declaration that the proposed event was an unlawful development and an injunction to restrain its taking place if no development approval exists) criminal prosecutions may be brought against those who present such events. This could well cover not only Mr Bradford but also the owner of the land who has provided a signed consent for this year's event. The land is apparently under Mr Bradford’s “management”. Gosford City Council v Popran Creek Pty Ltd was of course decided by reference to New South Wales legislation but I'm satisfied that the Queensland legislation has the same effect.

The duration of Mr Bradford's event is longer than that of the one considered by Stein J who, after considering discretionary factors, decided to issue an injunction to stop an event which by the time of his order was effectively underway.  Further, that this is the third such event makes it clearer that the use of the land is being materially changed. 

The factors going to exercise of the discretion to grant or withhold relief that an applicant local government may establish strict entitlement to were very similar in Gosford City Council v Popran Creek Pty Ltd to those that confront the Court here.  It seems to me that the environmental concerns here are rather less pressing. 

On the other hand, there had been many more pre-sales of tickets than is the case here, indications in documentation including that submitted to the Council being that tickets for the Fernvale event would be available at the gate. 

The Court accepts that there have been some “presales” for this event, in particular to sponsors of it, as an indication of their support.

Mr Sully in his affidavit, as he ought to have done, placed before the Court material indicating support for the event,
indeed, even from the Council's CEO, Mr Bain, who's reported in a Queensland Times article of the 10th of September 2010 to have described the Council as fully supporting the event but having responsibility to enforce "Council legislation and protect the public."

The Council, on the 9th of September 2010, resolved to seek this injunction and that the promoter and land owner be advised of Council's actions.  It appears that Mr Bradford may in fact have learned of these matters from the Queensland Times reporter who was at the Council meeting.

The Council, represented by Mr Ure, permitted Mr Bradford to place his material before the Court in the form of an unsworn statement (subject to express reservation about a view attributed to a Council officer) and attach documents which include a copy of the Council's letter of the 9th of September 2010 advising what had happened on that day and that the Council's solicitors have been instructed to commence injunction proceedings in the Court.  The letter repeated Council's contention that the event required a development approval.

Mr Bradford had in fact made an application for such an approval but under protest.  Also, he'd made it very late, only in the early part of August 2010, and on the basis of an IDAS Form 1 application which is very short on pertinent information.  The criticism which the Council makes of the "Event Management Plan" are well founded.

Mr Ure accepts that Exhibit 2 may go some way towards providing information, including "mandatory supporting information" that the Council wished to have to enable it to assess the recent application. One issue concerns the council's determination not to waive the application fee, said to be $4,909. The development application had been accompanied by a letter dated 4th of August 2010 requesting that the application fee be waived. Since it hasn't been, the development application is not a properly made one (see section 266 of the Act).

The application is impact assessable as one for outdoor entertainment in the rural zone (see the table at page 36 of the former Esk Shire Planning Scheme which is Exhibit 1).  The only exception from a requirement of impact assessment is for facilities and infrastructure within an existing railway corridor identified in overlay map OM5.  The Council has established there's no relevance in that exemption.

Mr Ure has taken the Court through the factors relevant to the Court's discretion to grant or withhold relief by way of declarations and injunctions identified in Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335. Among those factors is the importance of preserving the integrity of planning law and ensuring that it is applied equally.

Among those factors also is hardship to a respondent.  Mr Bradford's sought to invoke considerations of that kind but as Mr Ure says, he should be regarded in the circumstances as responsible for the situation that he's in.  With fair warning from the Council, he elected to make his development application at the last minute, indeed, until later than the last minute.  He hasn't paid the fee, which he ought to have paid, and must pay to get any advantage from his development application.

I'm not sure whether in that regard he relied on the charitable aspect that this essentially commercial event may have, but which seems to have been one absent in the Gosford case.  He suggests there's hardship too for the entertainers and other employees associated with the event who may have committed themselves to accommodation around Fernvale and the like.

The Council here cannot be criticised for lateness in making its application.  The start of the event is still over a week away.  Mr Bradford suggests that many people may still turn up, even if the Court does grant an injunction, such as people who come from far afield, in reliance on this sort of occasion repeating successful ones in earlier years at about the same time of year.  The logistical difficulties in excluding patrons don't seem to be of the same order as confronted
Stein J.

In my opinion, here's a situation in which the Council has established strictly an entitlement to the relief it seeks.  Mr Ure has pointed out that the enforcement order (rather than an injunction) sought consequent upon the declaration mentioned in paragraph 1 of the originating application is to restrain the respondent and others associated with him from using the land "for the purpose of outdoor entertainment, music festival, rodeo, Fred Brophys' Boxing trip, without first having obtained a development permit authorising the use.", which, as a theoretical matter, would allow this year's event to go ahead if a development permit can be obtained.

It would seem unlikely that can occur.  Means might have to be found of excusing public notification which an impact-assessable development application ordinarily requires.  There's been no consideration to whether or not section 440 of the Act would permit that.

There's plenty of material before the court indicating that, historically, Mr Bradford's events have been good ones, and that they attract the support of almost everyone, and are appealing to patrons who enjoy themselves.  Those considerations are no basis for relevant planning law being ignored.

One way or another, that's what occurred in the past.  The Court's reason for adjourning the matter for 48 hours is to enable the parties to work together, if they can, to see whether there are ways of the Council being satisfied in respect of the important public concerns Mr Sully mentioned in his affidavit so that the event could go ahead.

Mr Ure says it might be that by bringing its application, the Council has got things into such a state that it's no longer possible to connive at what might be development offences.  I'm far from satisfied that the situation is so serious.

It seems to me that for events after the current one the relief that the Council seeks ought to be granted.  The more pressing concern is what happens for this year's event which may yet have to be the subject of Court declarations and orders which preclude its occurring.

I think it's better to allow the parties a window of opportunity in the next 48 hours to see whether there's some way of resolving things. 

It is notorious, in my opinion, that there is conniving at alleged development offences in hundreds or thousands of instances throughout the State in which local governments allow enforcement proceedings to remain on the back burner, so to speak, while development applications are made with a view to regularising unlawful uses.

In those circumstances there is an adjournment to 3.00 p.m. on the 17th.

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