The Subsonic music festival has lost a battle over cancellation cover for its 2019 event in NSW after the Federal Court found bushfires were not the cause and a policy exclusion applied. 

Policyholder Scott Commens, trading as Subsonic Music, argued Lloyd’s underwriters should provide cover because the festival was cancelled due to fires in the Mid North Coast region, while extreme weather conditions had caused drought. 

But Justice Ian Jackman found local government conditions imposed shortly before the event were the key issue and an exclusion applied for failing to “make all necessary arrangements for the successful fulfillment of the event” and failing to have contractual arrangements in writing and authorisations obtained in a timely manner. 

The festival was to be held at Riverwood Downs on the banks of the Karuah River about two and a half hours’ drive north of Sydney from December 5-9. 

The property had hosted the event previously, but a new application was lodged with the local council by Mr Commens for 2019 and future events, including plans to increase the size to 10,000 patrons. 

The court heard Riverwood Downs co-owner Christopher Hall had advised Mr Commens to make his application as early as January 2019, but it was lodged with the MidCoast Council in July. 

Public submissions raised concerns over noise and traffic. The council requested revised plans and supporting information and said a decision would be made at a November 13 council meeting. 

The council published a business paper recommending approval, but only for the 2019 festival and with the event limited to 5000 patrons and subject to other conditions. 

Riverwood Downs was concerned there wouldn’t be time to have festival arrangements in place, given the proposed timing of the council decision and the conditions. 

Then the planned November 13 meeting was postponed due to bushfires, with the council closing its offices as it focused on supporting emergency services. 

Mr Commens held discussions with a possible alternative Hunter Valley venue called Hope Estate, but the property advised on November 20 that it couldn’t host the event. 

Mr Hall said in an email to Mr Commens that the council wanted “impossible conditions”, the river had stopped running, it would be “socially irresponsible to bring 6000 people onto the property under the current river, drought and fire danger conditions”, and the event couldn’t be held at Riverwood. 

The council approved the development application on November 27, subject to the conditions its officers recommended. Mr Hall said in a draft email that “there is no way Jesus Christ could put the event together and comply with all the conditions in a week”. 

Justice Jackman says two decisions were made to cancel the event – the first by Mr Hall on November 12, and communicated to Mr Commens the following day, and the second made by Mr Commens on about November 28. 

Mr Hall would have made the same decision to withdraw Riverwood Downs as the venue even if the council had granted its approval on November 13, and the bushfires themselves were not the reason for cancelling the festival, Justice Jackman says in the decision handed down yesterday. 

“The reason for Mr Hall’s decision to cancel the event at Riverwood Downs was the onerous and late imposition of conditions on the [development assessment] by the council,” he said. 

“The cause of Mr Commens’ decision to cancel was the fact that Mr Hall had decided to cancel the event and Mr Commens could not find a suitable alternative venue.” 

Justice Jackman says it’s likely that if Mr Commens had followed Mr Hall’s advice and applied to the council six months earlier than he did, he would have been able to meet the conditions. 

The court heard that in previous years a venue hire agreement was signed with Riverwood Downs a week or two before the festival when the Subsonic team arrived to set up the venue and “bump in”. 

“While I accept that that was the usual course of events in the years before 2019, I do not accept that such an arrangement was timely or prudent,” Justice Jackman said. 

“The owners of Riverwood Downs were at liberty to withdraw their support for the festival in the absence of any contract obliging them to allow the festival to be held on their land.” 

The decision is available here.