Somerset Regional Council v Bradford (No 2)

[2010] QPEC 110

[2010] QPEC 110

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 2609 of 2010

SOMERSET REGIONAL COUNCIL	Applicant
and
COLIN ROBERT BRADFORD	Respondent

BRISBANE

..DATE 17/09/2010

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 456, s 604

Declaration that a "festival" event was assessable development requiring a development permit - imminent event sought to be enjoined was the third organised for the site which it seemed may become an annual occurrence - insufficient time for Council to process development application - enforcement order suspended until after dates of the heavily promoted 2010 event on promoter's undertaking to cooperate in accommodating Council's concerns

HIS HONOUR: The court makes an order in the following terms including a declaration under s 456 of the Sustainable Planning Act 2009:

“Upon the respondent undertaking to cooperate with the applicant and its relevant officers in addressing concerns they communicated to him regarding the conduct of the festival referred to in paragraph 1, it is declared that:

(1) The use by the respondent of land described as Lot 3 on Crown Plan M33497 and situated at Banks Creek Road, Fernvale ("the land") for the "Fernvale Bulls Boxing and Music at Banks Creek Road, Fernvale" festival being an event commencing on 23 September 2010 and involving - music festival, rodeo, Fred Brophy's Boxing Troupe and camping with entry fees of:

.Thursday - Friday pass at $70 per person;
.Friday and Saturday pass at $100 per person;
.Saturday and Sunday pass at $70 per person;
 3 day pass at $100 per person;
 5 day pass at $120 per person; and
 1 day pass at $50 per person

constitutes outdoor entertainment and is assessable development, the carrying out of which requires a development permit of the kind applied for by the respondent in his IDAS Form 1 Development Application of 10 August 2010, Exhibit BAS to the affidavit of Bradley Allan Sully filed 14 September 2010.

It is ordered that:

(2) The respondent by himself, his servants or agents be restrained from using the land for the purpose of outdoor entertainment involving any of the following:

"Fernvale Bulls Boxing and Music at Banks Creek Road, Fernvale" Festival - music festival, rodeo, Fred Brophy's Boxing Troupe and camping, helicopter rides, mower racing, mechanical bull rider, whip boxing, food stalls, liquor sales without first having obtained a development permit authorising the use.

(3) The operation of order 2 is suspended until 1 October 2010 or earlier order.

(4) The parties may use the means of contact set out in the filed documents of the other (including the respondent's affidavit filed by leave today) for sending communications to each other, including serving documents for use in Court.

(5) Liberty to apply.”

...
HIS HONOUR: The order is made under s 604 of the Act. There has been considerable progress in the matter since last Wednesday, which the court is pleased to see.

It is not too sentimental, I hope, for the court to take the attitude that the event which the respondent has organised for next week should go ahead, not only for his advantage but for the advantage of those providing entertainment and other facilities and services thereat and also the patrons who would presumably enjoy themselves at the event on the basis of the way predecessor events in earlier years have turned out.

I have attempted to ensure that Mr Bradford is aware of the desirability of cooperating with the Council to the extent that it expresses concerns to him which relate to the orderly conduct of the event.

Mr Ure has taken the trouble to inform the court that canvassing of near neighbours by the Council has revealed that none of them wants to see the event stopped, although one, understood by Mr Bradford to be a supporter, expresses concern at the effect helicopter noise may have on his horses.

The helpful decision relied on by Mr Ure of Gosford City Council v Popran Creek Pty Ltd [1995] 89 LGERA 208 demonstrates that it is not yet too late for the court to restrain the event if a similar attitude is taken to that which Justice Stein took.

I am not anticipating in the least that there will be trouble.  The court is appreciative of the work that has already been done in the Council to identify and present in a user friendly, tabulated form, concerns that it has and some proposals for dealing with them.

There has been some response to that already by Mr Bradford.  He has expanded the material presented for the court's consideration by showing, for example - and this is an important one - a certificate of insurance to cover the event.  I note the Council's concern that the $10 million cover provided would not necessarily be adequate.

Matters canvassed this afternoon include the opportunity that Mr Bradford may have to convert his application delivered to the Council on 10 August this year - far too late - into one that would cover future festivals.

It has been made clear to him that the restraining order is in place in respect of events in future years, unless the order is changed.  To conduct the event, except pursuant to a development permit, would involve disobedience to the court's order and court punishment for contempt.

The court is pleased to hear that Mr Bradford has provided to the Council a cheque in the amount of the application fees sought by it to convert the development application he has recently lodged into a properly made one, which the Council will now proceed to process.

That payment, in my view, is a very important factor bearing on the court's exercising the discretion to suspend the injunction.  It puts Mr Bradford in the situation of having sufficiently seriously applied to regularise his proposed activities.

I record that Mr Ure proposed to the court, as an alternative to the granting of the relief indicated above, simply adjourning the matter which would have the effect of allowing this year's event to proceed.

Presumably it seemed to be in the interests of all to introduce as much finality in both the short term and the long term as could be brought into the situation today, to spare the parties from further days in court.

Mr Ure has made clear that the adjournment envisaged by him was only to a day next week, when, if available, another judge would have to come to grips with his application more or less on the eve of the event.  It was preferable from any point of view to have some “resolution” of what might happen regarding the 2010 event as soon as possible. 

So, it is order as per initialled draft.

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