Bellingen Shire Council v Lamir-Pike

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- councils' application for interlocutory injunction to restrain dance party for which development consent required but not obtained.

LEGISLATION CITED: Coffs Harbour City Local Environmental Plan 2000, cl 16 Environmental Planning and Assessment Act 1979, s 76A(1)

CASES CITED: Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208 South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202

APPLICANTS: Mr A Pickles, barrister SOLICITORS LEGAL REPRESENTATIVES: HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application for an urgent interlocutory injunction. The proceedings were commenced today. The applicants are Bellingen Shire Council and Coffs Harbour City Council. They seek to restrain the respondent, Erik Lamir-Pike (aka Erik Lamir), from carrying out development for the purposes of a dance party event on land located within the area of Bellingen Shire Council or Coffs Harbour City Council without development consent or except as permitted under cl 16 of the Coffs Harbour City Local Environmental Plan 2000.

2 The dance party has been advertised to be held on Sunday 3 October 2010. This application for an interlocutory injunction is urgent because it is now after 5 pm on Friday 1 October 2010. Had the interlocutory injunction been sought, say, yesterday, I would have been disinclined to grant it but would have abridged the time for service and made the application returnable today to give the respondent an opportunity to appear. An interlocutory injunction so close to the event sought to be restrained and so close to the weekend is likely to have the effect of a final injunction unless the matter were to be re-listed over the weekend and before Sunday for the purpose of the respondent seeking discontinuance of the interlocutory injunction (when the councils would bear the onus of establishing that it should continue). If an interlocutory injunction is to be granted, the respondent must have liberty to apply on short notice which will enable that to occur if the respondent so wishes.

3 There is an explanation for the lateness of this application for an interlocutory injunction. The applicants were unaware of this event until a little over a week ago, it was initially thought that the event was to be held in the area of Bellingen Shire Council, and it was only on Wednesday afternoon of this week that information was received that it may very well be held in the area of Coffs Harbour City Council. During the last week and until Wednesday, correspondence was directed to the respondent on behalf of Bellingen Shire Council with the object of stopping the event because it did not have development consent. Upon the information being received on the Wednesday that it might be held in the area of Coffs Harbour City Council, correspondence was then directed on behalf of that council to the respondent to similar effect. Responses have been received from or on behalf of the respondent by email but they indicate that the respondent has no intention of stopping the event. The respondent has been put on notice of this application for an interlocutory injunction but has not attended the hearing.

A STRONG CASE 4 The normal requirements for an interlocutory injunction are that there be at least a serious question to be tried and that the balance of convenience favours the grant of the injunction. However, in the present case, where the interlocutory injunction is sought ex parte so close in time to the event sought to be restrained, I take the view that the applicants' case has to appear strong.

5 An event such as this constitutes "development": Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208; South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202. 6 The dance party event has its own dedicated web page, a printout from which is in evidence. The event is also being promoted through a webpage on a social networking site known as Facebook. The respondent is noted as a creator of the Facebook site for the event. A copy of the Facebook event page is also in evidence. Tickets to the event are being sold for $40 through a website known as Green Tix, a copy of which is in evidence. The respondent describes himself as the Event Promotions Director of Artofficial Entertainment. There is evidence that a very substantial number of people have already purchased tickets for the event through the website. The respondent has approached bus companies seeking prices for routes to Friday Creek which is in the area of Coffs Harbour City Council, as well as to Darkwood which is in the area of Bellingen Shire Council. 7 On the evidence, the respondent has not sought or obtained development consent for this event and development consent is required. That is subject to a qualification if the event is to be held in the area of Coffs Harbour City Council. Under cl 16 of the Coffs Harbour City Local Environmental Plan 2000 a person may carry out development on any land without development consent for any purpose for a maximum period of 28 days, whether consecutive or non-consecutive, in any one year if, in the opinion of the council, the purpose contributes to the cultural well-being of the community. The clause provides that no development may be carried out pursuant thereto until written notice of the proposal to carry out has been given to the council. In the present case no such written notice has been given.

8 In my opinion, on the evidence presented by the applicants, there is a strong case that, if the event proceeds, the respondent will be in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 which provides: " 76A Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument." 9 The evidence strongly indicates that the respondent intends to proceed with the event unless restrained. In response to a letter written by the solicitors for Bellingen Shire Council of 24 September 2010 warning that instructions were held to approach the Court to seek an interlocutory injunction restraining him from carrying out the event within the Bellingen Local Government area without consent first being obtained, the respondent's emailed response was "Sorry, full steam ahead baby".

10 On 29 September 2010 the respondent sent an email which said "my self, along with anyone I am involved with have nothing to do with any event planned to take place in the Bellingen Shire. So if there is an event taking place in the shire I have no power and no control over it. And it may seam [sic] as though you are barking up the wrong tree." It was this email which alerted the solicitors to the possibility that the respondent may be proposing to hold the event in the adjacent area of Coffs Harbour City Council. In that regard it is relevant that in 2007 Bellingen Shire Council obtained an injunction preventing the respondent from holding an event but in fact it was not held in its area but in the adjacent area of Coffs Harbour City Council with the result that the injunction did not bite.

11 On 30 September 2010 the solicitors on behalf of Coffs Harbour City Council emailed the respondent advising of instructions to commence proceedings to seek an interlocutory injunction. His email response that evening was "wrong tree.com", perhaps suggesting that they were barking up the wrong tree.

12 As recently as this afternoon, evidence has been received that at Friday Creek there are workers and people milling around and equipment has been set up including for music, bands and sound systems. This strongly suggests that Friday Creek is to be the venue for the respondent's event. BALANCE OF CONVENIENCE 13 The applicants offer the usual undertaking as to damages. In my opinion that is important in this case where it is sought to restrain ex parte and almost at the last moment a commercial event, the restraint of which is likely to cause the respondent loss.

14 The evidence of Detective Senior Sergeant William Griffith, who is stationed at the Coffs Harbour Police Station, included the following.

15 The duly approved Bellingen Global Carnival is scheduled to be held in Bellingen Central Business District commencing on Friday 1 October 2010 through to Sunday 3 October 2010. There will be a significant, coordinated policing response to that carnival, which is a significant event requiring considerable policing resources. The number of police tasked to perform the duty at the carnival will make it difficult for available police to attend to any additional emergency situations during that period, particularly if a response is required to a rural or remote location.

16 According to other evidence, it appears that the respondent proposes to hold this event in a rural location. Detective Senior Sergeant Griffith has attended a number of similar style parties in Friday Creek, Bellingen and other areas, some of which were organised by the respondent. Based on this experience, in his opinion the respondent as an organiser has had no regard for legislative requirements and the health and safety of attendees. Little or no security/marshals were provided to monitor levels of alcohol being distributed, there appeared to be no staff trained in responsible service of alcohol, no liquor licences were applied for granting organisers' permission to supply alcohol, the supply of prohibited drugs was significant and the access routes to the venues were described at best as dangerous. For the events previously staged by the respondent, he had contracted bus companies to transfer patrons from the Bellingen and Coffs Harbour areas to those parties along remote tracks. At the present time police are attempting to identify the location of the party being organised by the respondent. Once identified, police will be in attendance at the location to ensure that the dance party is stopped and to ensure the dispersion of persons who will be attending.

17 Medical emergency at such parties can take up to an hour for response, in his experience, as the locations are remote and communication is quite poor. The risks to health are high as no one is employed to monitor the alcohol or drug intake of patrons. He has concerns about security measures that will be required to manage crowds effectively at the proposed party as well as the arrival and departure of attendees. On each occasion he has attended a dance party of this nature, the levels of sanitation vary from nothing to a couple of portable toilets with no attachment to effective sewage treatment systems. Sanitation facilities were inadequate.

18 These concerns of the police dovetail with the environmental concerns of the applicant councils.

19 Mr Daniel Bennett is a strategic planner employed by Bellingen Shire Council. He expresses concern that the venue used for the event may not have safe vehicular access for patrons and for emergency vehicles and that it may be some distance from necessary emergency services which could be potentially life threatening for patrons. He expresses a number of other concerns similar to those expressed by the police. In addition, he expresses concern that there has been no adequate assessment of the noise impact of the event on any surrounding properties and that inadequate provision may have been made for clean up, waste disposal and other matters.

20 Given the apparent strength of the applicants' case and the fact that the applicants offer an undertaking as to damages, I consider that the balance of convenience favours the grant of an interlocutory injunction.

ORDERS 21 The orders of the Court will be as follows: 1. Upon the applicants' by counsel giving the usual undertaking as to damages, until further order the respondent, by himself, his servants, agents, or assigns, be restrained from carrying out a dance party event known as "The Artofficial After Party" as advertised on the website www.artofficial.com.au or a similar dance party event on land within the area of the Bellingen Shire Council or Coffs Harbour City Council without development consent first being obtained or in the case of land within Coffs Harbour City Council area in accordance with cl 16 of Coffs Harbour City Local Environmental Plan. 2. The applicants have leave to serve the respondent by his known email as substituted service by 10 am Saturday 2 October 2010. 3. Direct that the applicants cause notice of these orders to be posted at a prominent location at the entrance to any property that is notified as a site for the event. 4. Costs are reserved. 5. Liberty to apply on short notice. 6. List the proceedings before Justice Biscoe at 10 am on Tuesday 5 October 2010.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.