161 CLR 148
Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267
Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207
Source
Original judgment source is linked above.
Catchwords
161 CLR 148
Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267
Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207
Judgment (3 paragraphs)
[1]
Solicitors:
HWL Ebsworth Lawyers (Applicant)
No appearance (Respondents)
File Number(s): 40027 of 2015
[2]
EXTEMPORE Judgment
Council seeks an interlocutory injunction to restrain a "dance party" it expects the respondents to hold on Saturday/Sunday 17 - 18 January at 500 Fridays Creek Rd, Upper Orara, or at some other probably remote location within Council's area.
It would be a 24 hour event occupying its site from 12 noon Saturday to 6pm Sunday, and is intended to serve as a "taster" for a three day event over Easter.
On Council's application to me as Duty Judge, at around 3pm yesterday (Tuesday), I agreed to hear the injunction application at 11am today (Wednesday).
The respondents are known to Council and to the local police, from their earlier dance party ventures, which generated many problems and complaints, and there have been negotiations over time, which have yielded a range of contact details, but have resulted in no undertakings being given by the respondents.
I am satisfied that the dance party promoters, the 1st and 2nd respondents, know of today's hearing, and that the 3rd respondent, who owns the subject site, but is apparently in hospital, is at least on notice of the application being made to me prior to the scheduled event.
As no respondents have chosen to appear or be represented today, I granted leave to Council to proceed ex parte.
It is in the interests of all interested persons, including up to 2,000 intended participants, that this decision be given immediately.
It is clear on the cases - e.g. Baulkham Hills Shire Council v Horseworld Australia Pty Ltd, BC9707595, (Land and Environment Court (NSW), Lloyd J, 27 June 1997, unrep), Byron Shire Council v The Rising Damp Corporation Pty Ltd [2001] NSWLEC 260, and an earlier decision involving the 2nd respondent, Bellingen Shire Council v Lamir-Pike [2010] NSWLEC 195 - that dance parties of this type are "development" within the meaning of the Environmental Planning and Assessment Act 1979 ("EPA Act").
Also, the Coffs Harbour planning documents, especially the Local Environmental Plans of 2000 and 2013, require a Development Consent or a "temporary use" approval to be in place.
It is also clear to the Court that the respondents know of these legalities - indeed one has admitted the absence of compliance - and that no relevant approval is in place.
These matters establish that there are serious issues to be tried in the substantive proceedings, and that is a vital consideration on the question of granting interlocutory relief.
It is in the public interest to restrain development which is in breach of the EPA Act, but, in addition, all the evidence suggests that the proposed event poses serious threats to public safety and the environment generally. There is also evidence that some aspects of the suggested venue represent breaches of the planning regime in the area, and may themselves pose a safety threat.
The relevant principles for the granting of ex parte interlocutory relief are well established - see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1;118 CLR 618, American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504, Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148, Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1, Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103, Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207;186 LGERA 127, and Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267.
They have been previously applied to dance party situations, such as occurred in Bellingen Shire Council v Lamir-Pike [2010] NSWLEC 195, and in the other cases to which Council refers in paragraph 20 of its submissions.
Some of those particular cases were brought immediately before, or shortly after, the event commenced, but in this case I am satisfied that no exercise of discretion in favour of the event is justified on the grounds of any alleged delay on Council's part. In this case, the orders I intend to make will or should be served at least 48 hours prior to the advertised starting time of the event.
Those orders were articulated in the summons and amended summons, but had been clearly foreshadowed in warning correspondence sent to the respondents by hand, by email, by post of various types, by facsimile, and lately via Facebook.
Apart from the large number of likely patrons, huge vehicular traffic is expected (Exhibit C1, tab 1, p20). The relevant senior Council officer, Mr Oliver, deposes to the constraints of the site - flood risk, threat to water quality and koala habitat, fire risk, poor emergency and other access and evacuation arrangements, and likely neighbour impacts.
Those concerns are echoed by the two police witnesses (Inspector Jameson and Sergeant Roach), and the Court notes that Council had put the respondents on formal notice of its safety concerns in a letter dated 11 April 2014.
The balance of convenience clearly lies in favour of granting Council the relief it seeks.
I am satisfied, apart from lack of consent, that inadequate attention will be paid to the State Government's "Dance Party Guidelines 1998" or Sgt Roach's "Standard Operation Procedures Manual 2008".
In all the circumstances, especially those regarding time, I accept Council's submission that, because of public interest considerations, I should apply Rule 4.2(3) of this Court's Rules, and not require Council to give an undertaking as to damages.
I make the following orders:
1. Pending the final determination of this application or until further order of the Court:
1. The First and Second Respondents by themselves, their servants, agents or assigns be restrained from the carrying out of a dance party event known as the 'Rabbits Eat Lettuce Launch Party' on 17 and 18 January 2015 as advertised on the website www.rabbitseatlettuce.com.au and the social media site Rabbits Eat Lettuce Facebook Page at premises known as 500 Fridays Creek Road, Upper Orara or on land within the local government area of Coffs Harbour City Council, without the prior development consent of Coffs Harbour City Council.
2. The Third Respondent by himself, his servants, agents or assigns be restrained from carrying out or permitting, causing or suffering the carrying out of a dance party event known as the 'Rabbits Eat Lettuce Launch Party' on 17 and 18 January 2015 as advertised on the website www.rabbitseatlettuce.com.au and the social media site Rabbits Eat Lettuce Facebook Page at premises known as 500 Fridays Creek Road, Upper Orara, or on land within the local government area of Coffs Harbour City Council without the prior development consent of Coffs Harbour City Council.
1. The Applicant to have leave to serve the First and Second Respondents by:
1. delivery of a sealed copy of these orders to premises known as 4 Braithwaite Ave, Bellingen by 1pm Thursday 15 January;
2. serving the First Respondent by its known email address info@rabbitseatlettuce.com.au by 6:00pm on Wednesday 14 January 2015; and
3. serving the Second Respondent via his known email address info@rabbitseatlettuce.com.au by 6:00pm on Wednesday 14 January 2015.
1. The Applicant has leave to serve the Third Respondent by delivery of a sealed copy of these orders to premises known as 500 Fridays Creek Road, Upper Orara.
2. Direct that the Applicant cause notice of these orders to be posted at a prominent location at the entrance to any property notified as a site for the proposed dance party event.
3. The Respondents jointly and severally are to pay the Applicant's costs of these proceedings to date.
4. The parties to have liberty to apply to the Duty Judge on short notice.
5. The substantive proceedings are stood over to the first Friday List for 2015, Friday 6 February 2015.
[3]
Amendments
20 May 2015 - Jurisdiction amended to Class 4 on coversheet
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Decision last updated: 20 May 2015