November 2009

Land law & approvals for live entertainment

In Conservation of North Ocean Shores v Byron Shire Council, the Land and Environment Court was looking at the validity of a consent granted for the Splendour in the Grass music festival at Byron Bay. One of the grounds of challenge relied on the following provision in the LEP:

"Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out".

Similar provisions are to be found in many LEPs.

The Court found the consent invalid because, among other things, the council had not formed the opinion required by the provision. More particularly, there was no record in Council reports or minutes, that the Council had considered whether the development would be consistent with the zone objectives.  The Court held that the council should have undertaken the following steps:

  • Looked at whether the proposed use was permitted under the relevant zone table.

  • If it was not permitted, that was the end of the matter.

If it was permitted:

  • Firstly, formed the opinion that the development was consistent with the zone objectives; and then

  • Secondly, gone on to consider the merits of the application.

It is therefore necessary, faced with such a clause in its LEP, for council to ensure that the planning reports deal with the question of consistency with zone objectives, and that, before the merits of the application are dealt with, the council form, and record, an opinion that there is consistency.  Failure to take these two steps, and to ensure that their taking is properly recorded, could well result in the consent being invalid.

The problem is not quite as acute under the provisions of the standard instrument for LEPs contained in the Standard Instrument (Local Environment Plans) Order 2006.  Clause 2.3(2) of the standard instrument requires the consent authority to \"have regard to the objectives for development in a zone when determining a development application...\"  This does not, unlike the provision for the Court, require the council to form an opinion; but it is still highly desirable for the report expressly to deal with the zone objectives and their compatibility with the proposed development, and for the resolution or other determination to record that regard has been had to those objectives in determining the application.

Ready to rock - pubs may provide live entertainment without consent

Live entertainment in pubs and similar venues is now easier to provide following changes to the Environment Planning and Assessment Act 1979 (EP&A Act) effective 26 October 2009.

In brief:

  • The old POPE (Place of Public Entertainment) licenses have been abolished.

  • In most cases, development consent or a complying development certificate will not be necessary for the provision of live entertainment at an existing venue, unless the change involves alterations to the existing building, or a change in use of the building under the Building Code of Australia.

  • If you do need development consent, the council must have regard to a number of factors including hours of operation and numbers of patrons.

  • If there is uncertainty on these issues, the council can impose a "reviewable condition" on either or both hours of operation and numbers of persons permitted.  These conditions can be reviewed by the council at any time after taking submissions from you and neighbours.  Any review by the council has the same rights of appeal as applied to the initial development consent.

This is certainly an improvement on the red tape of the previous requirements.  It will be interesting to see how the new concept of reviewable conditions is dealt with by councils and how the new system will differ from the old one of "trial periods".