Grant v Kiama Municipal Council

Land and Environment Court (NSW)|2024-02-21|Before: Robson J, Dr J

Introduction and outcome

By cross-summons filed 24 June 2022, Kiama Municipal Council seeks declaratory and consequential injunctive relief against John Bruce Grant in relation to Mr Grant's conduct in constructing and operating various attractions, structures, devices, and amusement rides in the form of an amusement park known as "Granties Maze" on land at 219 Donovan Road, Broughton Village, south of Kiama (the 'land'), in circumstances where Council alleges that the various attractions, structures, devices, and amusement rides have been erected and operated without development consent.
These proceedings were originally commenced by Mr Grant by way of Class 4 application filed 17 September 2021 whereby Mr Grant sought relief that Council be restrained from entering the land to dismantle and remove certain structures (including attractions, devices, and amusement rides) the subject of three development control orders issued by Council. Council's cross-summons is the remaining matter before the Court in circumstances where Mr Grant's application was struck out on Council's application on 24 June 2022.
For the reasons that follow, I find that Council is entitled to specific declaratory and consequential injunctive relief in relation to a number of discrete amusement rides and attractions on the land.

Earlier development and modification applications

On 2 January 1985, Mr Grant lodged a development application for development for a small-scale tourist facility described as "Tourist Gardens" on the land which was approved by Council on 17 July 1985. On 4 September 1985, Mr Grant lodged a further development application for another development described as a "Kiosk" on the land which was approved by Council on 4 December 1985. In accordance with the development consents, Mr Grant constructed a kiosk building and planted a vegetative "maze".
On 18 May 1988, Mr Grant lodged a development application for development described as a "Tourist Centre" on the land which was refused by Council.
On 16 September 2002, Mr Grant lodged a development application for development described as a "tourist facility" on the land which was refused by Council on 19 December 2003. Mr Grant lodged a Class 1 appeal in this Court against Council's refusal and after a hearing before (then) Commissioner Moore, obtained on 12 October 2005 deferred development consent (subject to 67 conditions) (Grant v Kiama Council [2005] NSWLEC 58) ('2005 Consent').
The reasons for judgment (of Commissioner Moore) considered the then background including the earlier development consent granted in 1985 and recorded that the land had a site area of approximately 30ha comprising cleared pastureland with certain structures approved in 1985 for what was a "small-scale tourist facility". Commissioner Moore found that the activities proposed did not fall within the definition in the (then) Kiama Local Environmental Plan 1996 of "amusement park" (which use was prohibited) which was defined as "a commercially run ground where amusements and mechanical entertainments such as merry-go-rounds and the like are permanently situated".
Commissioner Moore noted that a planted maze and a car park had been constructed in accordance with the 2005 Consent however there were other structures or attractions on the land which did not have development approval including trampoline pits; an archery range excavated into the slope; ponds (created by damming water) for canoe rides; a mini-golf course; a picnic gazebo; and an elevated children's play structure described as a "fort". Despite this, the Court was satisfied that the activities proposed by Mr Grant, if they were accompanied by a dwelling, could constitute a "small domestically-based enterprise" and that the mini-golf course, trampoline pits, and canoe ponds (subject to the issuance of a building certificate) would be acceptable.
On 31 August 2004, development consent was sought for "[u]se of existing tourist facilities and proposed addition to tourist facility" on the land which was refused by Council on 28 October 2004. A subsequent appeal to this Court was dismissed on 30 November 2005 by Commissioner Moore in relation to building certificates for trampoline pits, a mini-golf course, and a picnic gazebo on the land: Grant v Kiama City Council (No 3) [2005] NSWLEC 723.
On each of 18 January 2008, 4 June 2009, 1 July 2009, 15 March 2013, 19 June 2013, 11 April 2014, 18 May 2015, 7 August 2015, and 11 November 2015, Mr Grant lodged modification applications seeking various amendments to the conditions in the 2005 Consent.
Apart from the above modification applications, Mr Grant also lodged further development applications. On 4 June 2009, Mr Grant lodged a development application for "[c]onstruction of additional attractions, amenities and associated signage" on the land which was refused by Council on 29 October 2009.
On 27 October 2010, Mr Grant lodged a development application for development described as a "Dwelling" on the land which was approved by Council on 10 February 2011.
It is relevant to note that when the Kiama Local Environment Plan 2011 ('KLEP 2011') was enacted on 16 December 2011, the use approved in the 2005 Consent became a prohibited land use.
On 11 November 2015, Mr Grant lodged a development application for development described as "Erection of signage to advertise tourist facility" on the land which was approved by Council on 16 March 2016 ('2016 development application').

2016 development application

On 26 August 2016, Mr Grant lodged a development application for "Alterations and additions to existing tourist facility" on the land which sought development consent to add 20 new attractions and development consent for the use of 15 attractions which had already been installed on the land but had not been the subject of any prior development approval. Annexed hereto and marked Annexure "A", is a copy of the plan lodged with the development application depicting (in different colours) those "attractions" which were "approved" and those attractions which were "proposed" or "unapproved". The application was refused by Council on 28 February 2019.
On 15 July 2021, Council issued three separate Development Control Orders to Mr Grant requiring him to "stop the use of the structures and attractions" and to "demolish and remove all structures and attractions" from the land ('DCOs'). Each DCO referred to a different group of attractions which were ranked "high risk", "medium risk", and "low risk".
The first DCO identified the high risk attractions being, "Giant Slide"; "Paddleboats"; "Remote Control Boats"; "Zorb Water Balls"; "Archery Range"; "Archery Tag"; "Hay Ride and Clydesdale Ride"; "Aero Board"; "Ninja Walls"; "Kapow"; and "Time Freak". The order required cessation of the use of those amusements within 21 days and the demolition and removal of the structures and attractions within 90 days.
The second DCO identified the medium risk attractions being, "Tyre Maze"; "Quad Bike Track"; "Pony Ride Yard"; "Bumper Car Track"; "Hover Archery"; and "Hodges hand Cars". The order required the cessation of the use of those amusements within 21 days and the demolition and removal of the structures and attractions within 150 days.
The third DCO identified the low risk attractions being, "Small Rides Area Addition"; "Pedal Bike Track"; "Tyre Stock Pile"; "Electric Car Track"; "Bumper Car Container"; "Upper Picnic Shelter"; "Wedding Garden"; "Inflatable Obstacle Course"; "Mini Excavators"; "Signage Stand Facing West to Donovan Road"; "Signage Stand Facing North to Donovan Road"; "Signage Stand Facing South to M1 Princes Highway"; and "Archery Sign and Associated Signage Structure Facing South to M1 Princes Highway". The order required cessation of the use of those amusements within 21 days and the demolition and removal of the structures and attractions within 180 days.
On 26 July 2021, Mr Grant sought a 35-day extension to lodge a Class 1 appeal in relation to the DCOs in this Court. Despite this request, Mr Grant commenced these Class 4 proceedings on 17 September 2021.
As noted above, on 24 June 2022, Council filed the cross-summons the subject of this judgment which sought declaratory relief and the removal of various attractions, structures, devices, and amusement rides detailed in a list being Annexure A to the cross-summons (for convenience, this list is extracted and has been simplified with certain items removed (including certain signage) in a new table being Annexure "B" to this judgment), which Council contends were erected without development consent.
On 25 July 2022, these proceedings were adjourned pursuant to s 9.46(3) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') to allow Mr Grant time to lodge a development application to seek to obtain consent for the works and use of the alleged unauthorised attractions, structures, devices, and amusement rides. On that day, Mr Grant signed short minutes of order (which were later made by Pepper J) in which, first, he admitted the breaches of the EPA Act in relation to the items detailed in par (1) (and Annexure A) of Council's cross-summons; second, he accepted restrictions and restraints as to the use of certain amusement rides and attractions, and he agreed to fence off certain attractions, structures, devices, and amusement rides; and third, he provided an undertaking to the Court that if a development application is not lodged on or before 12 October 2022 (or if any such development application is refused by Council), he would remove the items listed in Annexure A to Council's cross-summons within three months.
On 12 December 2022, Mr Grant attempted to lodge a development application with Council (via the NSW ePlanning Portal) which was not accepted by Council on 30 January 2023 because of insufficient supporting material including an unclear description of the proposal, a site plan was not provided, an absence of an elevation plan, and a failure to address on-site disposal of effluent and stormwater management including that a waste management plan was not provided.
On 21 February 2023, Mr Grant submitted a development application (again, via the NSW ePlanning Portal), which was also not accepted by Council on 31 March 2023 for similar reasons to those given in relation to the development application lodged on 12 December 2022.
On each of 21 April 2023 and 9 June 2023, these proceedings were further adjourned to allow Mr Grant more time to lodge a further development application to seek to obtain consent for the operation and use of certain attractions and amusement rides on the land, and on 21 July 2023, the Court set down the present proceedings for hearing.

Evidence

The Court received extensive documentary material comprising over 1,000 pages including various affidavits, statements, exhibits, and annexures relied upon by the parties.
Council read the affidavit of Brett Raymond Elliott, Council's development assessment officer - planning, sworn 10 June 2022; three affidavits of Jessica Ruth Joanna Rippon, Council's director environmental services, sworn 16 June 2022, 20 April 2023, and 29 June 2023; and the affidavit of Olivia Mary Elizabeth Yeatman, Council's solicitor, sworn 16 June 2022. Council also relied upon the expert report of Clinton Ford of Aidaptive Consulting (which became Exhibit A); and documentation lodged in support of Mr Grant's development application to Kiama Municipal Council submitted on 21 February 2023 (which became Exhibit B). Mr Ford gave short evidence and was cross-examined.
Mr Grant provided the Court with four typed documents comprising statements and submissions which collectively became Exhibit 1. These statements included a detailed response to Mr Ford's expert report. Mr Grant gave evidence adopting the facts in his respective statements and was cross-examined. Mr Grant provided further submissions after the hearing which were filed 27 March 2024, which were in response to Council's further submissions to the Court which were filed 28 February 2024.

Issues

As Mr Grant appeared without legal representation, the nature and extent of the relief sought by Council and his response thereto requires some explication.
Council's primary relief sought in the cross-summons is a declaration that Mr Grant has carried out, or permitted the carrying out, of development on the land "comprising the development described in Annexure A" without development consent. The consequential relief sought by Council is the removal (within 30 days from the date of this judgment) of the structures described in Annexure A of its cross-summons. In the alternative, Council seeks declaratory relief that Mr Grant has not complied with the DCOs and an order that Mr Grant comply with the DCOs (including the removal of structures) within 30 days from the date of this judgment. In submissions, counsel for Council emphasised that the relief in relation to the DCOs was in the alternative to Council's primary relief sought.
As expressed during the hearing, I maintain a concern with the manner in which the primary relief is sought and in further consideration of the evidence and submissions, I proceed on the basis that Council's primary concern is that (although accepting that there is an extant development consent) certain works and/or uses have been undertaken in a manner not consistent with that, or any other consent or approval, and that the operation of those "structures and attractions" presents a danger to members of the public.
I am also conscious, as considered later in these reasons, that in the orders made (by consent) on 25 July 2022 (at a time when Mr Grant had legal representation), it was agreed by Mr Grant that, "for the purposes of s 9.46(3), [Mr Grant] admits the breaches of the Environmental Planning and Assessment Act 1979 alleged … in [Council's] Cross Summons dated 24 June 2022."
I am also aware that as a result of the orders of 25 July 2022, Mr Grant has ceased the use of a number of the attractions and has fenced off various "structures and attractions" about which Council had earlier expressed concerns regarding public access and safety.
I also note by way of background that by notice of motion filed 7 October 2022, Council sought orders that Mr Grant be found guilty of contempt of Court by failing to comply with Order (2) of the short minutes of order made 25 July 2022 and that in those contempt proceedings, Council charged that Mr Grant (contrary to orders of the Court made on 25 July 2022) did not erect and maintain a 1.8m fence around certain structures and attractions by 17 August 2022, and that he did not install certain signage around certain attractions. On 3 April 2023, Mr Grant accepted that he did not install the required fencing by the prescribed date and consented to a finding of guilty of contempt of Court. Mr Grant was also ordered to pay Council's costs of the motion filed 7 October 2022.
In these circumstances and remaining conscious that Mr Grant now appears without legal representation, the essential issue in the present matter (leaving aside the admission in the short minutes of order made 25 July 2022) is the extent to which the presence and use of certain structures and attractions on the land is outside any existing development consent and, consequently, the appropriate relief in the circumstances.
Again, given the fact that Mr Grant appears without legal representation and noting that much of the "evidence" on which he relies is in the form of written and oral submissions without clear demarcation between the two, it is convenient to record the respective positions of each of the parties in a narrative form which reflects the evidence before the Court and the submissions made.

Council's position

Council points to the history of these proceedings, including the contempt proceedings, and the various adjournments to allow Mr Grant time to lodge development applications on 4 November 2022, 21 April 2023, and 9 June 2023, prior to the Court listing Council's cross-summons for final hearing.
In circumstances where a "sufficient" development application has not been lodged by Mr Grant and noting the breach of his earlier undertakings, Council submits that it is now entitled to the relief sought. Council points to the unchallenged evidence of Mr Elliott, Council's development assessment officer - planning, detailing Mr Grant's conduct on the land since at least January 1985. Council also points to the detailed expert evidence of Mr Ford in relation to the collection of various "amusement devices and attractions" on the land and, in particular, Mr Ford's evidence that the majority of the devices are not in acceptable operating condition nor suitable to operate in the environment in which they are located. In particular, that there are a number of devices that should not be operating on the land because they are materially unsafe, and that the "business" operates without adequate working procedures and safety controls to meet regulatory obligations to ensure visitors are safe.
In summary, Council submits that it is entitled to the declaratory relief noted above, and that consequential relief would be granted because: 1. Mr Grant's breaches are serious, and that public safety is a legitimate concern (based upon the evidence of Mr Ford); 2. Mr Grant's conduct comprising, first, the fact that the development application lodged to obtain development consent (for most of the amusements) was refused by Council on 28 February 2019 and no appeal was lodged; second, Mr Grant was thereafter served with the DCOs requiring him to "stop the use of the structures and attractions" and he did not do so; third, Mr Grant refused to provide an undertaking prior to commencing proceedings to cease use of the unlawful works and refused to do so; fourth, Mr Grant has been provided with ample opportunity to lodge a further development application however has failed to submit any application which is "sufficient" to meet the requirements of s 24(1) of the Environmental Planning and Assessment Regulation 2021 (NSW); and fifth, Mr Grant has previously been found guilty of contempt of Court for non-compliance with Court orders to effect safety fencing to prevent public access to certain (unauthorised) amusement rides and is otherwise in breach of the undertaking provided to the Court to remove the unauthorised development in the absence of lodging a development application; 3. Mr Grant has not sufficiently demonstrated that the rectification of the matters identified in the cross-summons could only be undertaken at "great cost or inconvenience": Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 ('Sedevcic') at 340; 4. Any inconvenience or hardship can be mitigated by allowing time for Mr Grant to undertake the removal of the unauthorised development; 5. Mr Grant has enjoyed an effective private advantage for himself by undertaking development which he has operated for commercial purposes in the absence of development consent and, as such, his actions have undermined the legislative purposes of the EPA Act: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [71]-[72]; and 6. The orders sought by Council are not an enforcement of a private right but the enforcement of a public duty: Sedevcic at 339-340.
In response to various submissions made by, and evidence marshalled by Mr Grant, Council submits: 1. The absence of any "genuine accident" at Granties Maze is not a matter the Court would take into account given the evidence of Mr Ford; 2. Mr Grant's experience in the operation of amusement parks and attendances at various tradeshows and educational sessions are not sufficient for him to be recognised as an educated, trained, assessed and certified operator of an amusement park, and Mr Grant has provided no information to confirm such knowledge; 3. Despite certain fencing erected by Mr Grant there are certain devices which remain unsafe (including at least the "Ninja Walls" and the "Aero Board"); 4. The "Wedding Garden" clearly requires repair and as some garden ornaments are broken and, as a result, there is exposed steel which is a danger to any visitors to that area; 5. Further, the suggested "first aid kits" provided are insufficient, and Mr Grant has not had any specific training with local emergency services; and 6. Based upon Mr Ford's report, the fact that Mr Grant is the principal operator and attendant of Granties Maze means that he simply does not have the capacity to conduct the multiple roles and responsibilities required at one time such that, for example, he is unable to receive visitors, monitor the "maze" operations, run the kiosk, and supervise various operating amusement rides at the same time. This is of particular concern in circumstances where there is no approved or operative plan of management and given the size of the area occupied by the attractions, the whole of the amusement park cannot be properly supervised.
Council otherwise refers the Court to the evidence of Mr Ford in relation to various "amusement devices and attractions". Further, many of the rides and devices, including the "Archery Range", "Canoes and Paddleboats", "Bumper Car Track" and the "Hay Ride and Clydesdale Ride", are all listed as unapproved developments where they were each installed without consent and were specifically refused by Council as part of the refusal of development application lodged by Mr Grant on 26 August 2016 (as noted at [16] above).
In further submissions provided to the Court filed 28 February 2024 (in response to a request for further submissions by the Court during the hearing), Council accepts that there are certain amusement rides and attractions, which are not the subject of the cross-summons and have the benefit of development consent on the land including: the "Garden Maze"; "Donkey rides and hayrides"; "Giant chessboard"; "Existing ponds with canoes"; "Spider Web"; and "Small rides shed".
In relation to other devices and attractions, Council submits: 1. In relation to "Canoes and Paddleboats", Council accepts there is development consent (although notes that their present use would be in breach of condition 67 of the 2005 Consent) however, Council does not press relief in relation to the canoes; 2. Council maintains that the "Paddleboats" do not have development consent; 3. In relation to "Archery" (a use or attraction which Mr Grant maintains was granted consent by the 2005 Consent), Council maintains that the consent for archery was specifically refused in Grant v Kiama Council [2005] NSWLEC 58 at [76]-[78]; 4. In relation to the "Hay Ride and Clydesdale Ride", Council accepts the "2005 Consent Plans" refer to "Donkey rides and hayrides" and notes that the "Hay Ride and Clydesdale Ride" particularised in the cross-summons is now located in an area inconsistent with the "Donkey rides and hayrides" approved in the 2005 Consent and therefore constitutes development which does not have consent; and 5. In relation to the "Pony Ride Yard" (as opposed to "Donkey rides and hayrides"), Council maintains that this was not part of the 2005 Consent and is not referenced in any subsequent modification application to the 2005 Consent; and 6. In relation to the "Tyre Stock Pile", which appears to be for the purpose of the proposed "Formula 'E' Race Track", Council maintains that this was not part of the 2005 Consent, nor any modification thereto, and the "Tyre Stock Pile" is not exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('SEPP 2008'); 7. In relation to the "Small Rides Area Addition", Council submits that although a "Rides Shed" was approved as part of a modification to the 2005 Consent, this is in a different location to the "Small Rides Area Addition" specified in the cross-summons where Mr Grant installed a further shed structure. While Council accepts that "farm buildings" are exempt development pursuant to cl 2.31 of the SEPP 2008, the use of that structure as a "Recreation Facility (Outdoor)" is not. Council does not press for the removal of the "shed" structure but cessation of the use of the amusement rides within; and 8. In relation to "Mini Excavators", Council maintains that these were not part of the 2005 Consent or any modification thereto.

Mr Grant's position

Doing my best to understand Mr Grant's evidence and submissions, and conscious of the comments made by Kirby P in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2, where, albeit in a different context, his Honour stated that in cases presented by a litigant in person, the Court must be "…specially vigilant that they perform their functions correctly, [and] [c]oncealed in the lay rhetoric and inefficient presentation may be a just case", I note that Mr Grant provided extensive material, and for concision, the following narrative is selective: 1. Despite the zoning change in the KLEP 2011, Mr Grant had received Council's "permission" for each of the "Garden Maze", "Archery Range, mini-golf course, "Canoes and Paddleboats", "Bomber Ride", "Bumper Car Track", "Spider Web" and "Hay Ride" - all of which Mr Grant maintains were approved in 2005 when he reopened Granties Maze after being closed for approximately 29 years; 2. All of the "rides" and other attractions were not, and are not, dangerous nor high risk, and he has had a "certified ride inspector" and an "electric and safe work" operator inspect the amusement rides and the merry-go-round and, in the eight years since he has reopened, there has not been a "genuine accident"; 3. He does not accept the expert opinion of Mr Ford in relation to a number of the rides being dangerous. While Mr Grant accepts that some have "minor rust", he indicates that this is the result of being forced to have various amusement rides fenced off as a result of earlier Court orders; 4. 65% of the attendees visit Granties Maze simply to experience the planted maze and play mini-golf, such that those attractions do not need supervision; 5. He has significant business experience of over 40 years and has the skills to run a small amusement park and although it is now eight years since he lodged his first development application for the "Garden Centre" and "shed" for functions, he strongly maintains that a number of the attractions now in dispute (for example, the "Archery Range") were in fact approved by Commissioner Moore in the 2005 Consent; 6. Since returning from military service in Vietnam in 1971, he has had various businesses and since 1983 has invested over $10,000,000 in "Granties Maze and Fun Park" and, over the past 50 years, has travelled extensively in Australia and New Zealand inspecting other fun parks; 7. In response to Mr Ford's concerns, Mr Grant indicates that logbooks are only required for five of his amusement rides and that these are up-to-date. Mr Grant disputes that he lacks qualifications to run an amusement park having attended the Australian Amusement Leisure and Recreation Association annual conference and tradeshow for over 23 years has attended various safety lectures and other lectures in the USA, Asia and Europe at various tradeshows (including the International Association of Amusement Parks and Attractions); 8. In further response to Mr Ford's report, he maintains that he has an engineer who attends the land to fix any amusement rides that are broken and who charges the batteries and undertakes general maintenance on a fortnightly basis. He maintains that because of the requirement to put a 1.8m fence around a number of the amusement rides, he cannot now get proper access to those pieces which has led to an increase in surface rust on the structures and devices; 9. He disputes Mr Ford's evidence that the "Aero Board" and the "Ninja Walls" are unsafe, and he has been told by a number of inspectors from SafeWork at Nowra that some of the rides do not need inspections because they are "human powered". Despite this, Mr Grant repeats that he regularly inspects all the amusement rides and arranges for the engineer to attend and fix those in need of repair; and 10. In relation to the "Bomber Ride" (which is not included in the relief sought by Council), he maintains that it has been on the land since 1985 and a new motor was installed in 2023 along with an electrician's report and ride inspection report and that since reopening in 2015, that ride has been registered with SafeWork.
Apart from the above specific matters, Mr Grant states he has endured a very difficult relationship with Council (and a number of named Council officers) for many years and indicates that as early as 1986, Council caused, by way of court order, the closure of his activities which had endured for 29 years. He notes that Council refused his development application in 2004, which the Land and Environment Court approved for reopening in 2005 however, the approval included "400 conditions", including that he had to build a dwelling on the land so that it would be a "home-based business". Mr Grant further notes that it took Council a further seven years to approve his application to make a "home-based business".
Mr Grant further states that in 2011, Council changed the zoning to prohibit amusement parks and he was not notified of this change. He maintains that he intends to seek compensation from Council for being "discriminated and victimised by" Council, and he informed the Court that he is now 76 years of age and requests that the Court give him permission to continue to trade and to erect a sign on the Princes Highway directing people to Granties Maze.

Consideration

The Court has received extensive evidence in relation to the background of this matter. It is clear that the relationship between Council and Mr Grant has been strained.
I have considered the judgment and orders of this Court leading up to the 2005 Consent and each of the development applications and consequent consents (and refusals) to which I have been referred. Remaining conscious that Mr Grant now appears without legal representation, it remains clear that on many occasions, he has been made aware of Council's concern in relation to the conduct of various operations on the land. It is clear, and I find, that Mr Grant has been given ample opportunity to obtain development consent (or other appropriate approvals) for a number of the amusement rides and attractions.
Having seen extensive photographs and plans of the various devices and attractions, it is clear that many of the attractions are relatively basic and, although not relevant, apparently provide true amusement for visitors. It is also clear, as I will detail, that despite the 2005 Consent, there have been numerous discrete installations undertaken on the land for which consent (even if sought) has not been received. This is abundantly clear from both the plans attached to the 2005 Consent (and the conditions therein imposed) as well as, although not determinative, the reasons of Commissioner Moore in Grant v Kiama Council [2005] NSWLEC 58.
While I accept that Mr Grant has made efforts to obtain development consent, the fact remains that consent has not been obtained and that there is now compelling, and relatively unchallenged (except from Mr Grant, himself) evidence of Mr Ford who, I accept, as Council submits, is a recognised expert in theme parks and a National Associate of Amusement Ride and Safety Officials and who has extensive experience in inspecting, certification, and recommissioning theme parks (including the Dreamworld Theme Park following the 2016 fatalities). Mr Ford's report contains a detailed assessment of each of the subject amusement rides and attractions. He considers various aspects of the operations including mechanical condition, safety controls, and the ability to operate the attractions and raises certain safety issues. In brief summary, his evidence demonstrates: 1. The condition of a number of the attractions has deteriorated, and many attractions have aged and are neither fit for purpose nor repairable, and are unsafe for use; while others, although in operable condition, should not be operated for various reasons; 2. Various of the attractions require supervision, clear participant instruction, and some attractions, in the absence of electronic safety control systems, require administrative controls to prevent hazards and risks eventuating into incidents; 3. As it appears that Mr Grant is the only person who operates the attractions and depending on the number of visitors at one time, Mr Grant would likely be required to attend multiple attractions at the same time to supervise or operate the amusement rides which is physically impossible given the size of the land and the location of the attractions; and 4. Combined with the fact that Granties Maze does not operate formal, or recognisable informal, business systems, safety maintenance, or human resources, it is clear that the operation of Granties Maze is significantly lacking in both skills and economics otherwise required to operate an effective and safe park of amusement rides, attractions and outdoor activities.
Although Mr Grant does not accept a number (if not most) of Mr Ford's conclusions, I find that Mr Ford's evidence is persuasive. My finding is not to decry Mr Grant's genuine attempts and desires to provide a safe, efficient and attractive environment for the provision of amusement rides and attractions on the land. However, I accept Mr Ford's evidence and Council's submissions that the operation of Granties Maze is insufficiently managed, operated, and maintained to offer a basic family amusement park. Further, apart from planning law, I accept Mr Ford's opinion that the business, as presently undertaken, is unprepared, unskilled, and incapable of operating the quantity of attractions and amusement rides to a standard contemporary with modern times and regulations including Australian Standards and NSW Safe Work Regulations.
I also accept Mr Ford's evidence where he noted: "The concept of Granties Maze is a novel and heartwarming idea where children and adults can experience outdoor entertainment. However the practical reality is that the business is not organised, nor does it have the capacity to deliver those entertainment features in accordance with standards that are expected by and mandated with the leisure industry today. Over the past five years, a reduced level of care and maintenance for the other devices onsite, as with many of them substantially dilapidated and now beyond repair. This has resulted in the majority of the park not being currently suitable to operate, and some devices that must not be operated."
Taking into account the evidence now before the Court, and noting that Council accepts that a number of the attractions are not the subject of relief now sought including the "Garden Maze"; "Donkey rides and hayrides"; "Giant chessboard"; "Existing ponds with canoes"; "Small rides shed; "Spider Web"; "Bomber Ride"; and "Merry-go-round", I find that Council is entitled to declaratory and consequential relief in relation to a significant number of the amusement rides and devices otherwise listed in Annexure "B" to this judgment.
I am conscious that a number of the amusement rides and devices have been inoperative for some period of time as a result of earlier orders and undertakings given to the Court on the basis that a number of the devices have been the subject of safety fencing and therefore inaccessible and inoperable (and as a result of which have been unable to be maintained).
Further, I note the undertaking that Mr Grant gave to the Court on 25 July 2022 as referred to at [23] above. In circumstances where Mr Grant has not managed to obtain development consent for the items in Annexure "B" to this judgment, I consider that the undertaking provided is further reason to now order that Mr Grant dismantle the items as listed in Annexure "B" hereto, which he had previously undertaken to remove.
While I find that there has been a failure to comply with each of the DCOs, given that the declaratory relief in relation the DCOs was sought by Council in the alternative, I do not consider there is utility in making a further declaration in relation to the DCOs.
The question arises as to consequential relief in circumstances where it is clear that a number of the amusement rides and devices are no longer operating (and some likely inoperable and possibly inaccessible for normal use). Although Council seeks an all-encompassing order that those devices which I have found to be unlawful be removed within 30 days, I consider that the consequence of such an order on Mr Grant is presently unclear as Mr Grant has given evidence of his present financial and health circumstances. As such, I find that it is sufficient to order that those amusement rides and devices listed in Annexure "B" to this judgment which I found to not have consent should be dismantled within a period of time of three months from the date of my orders.
For the above reasons, I will make an order restraining Mr Grant (and any of his servants, employees or agents) from using or permitting any other person to use, from 28 days of the date of these orders, any of the amusement rides and devices listed in Annexure "B" to this judgment and that each be dismantled within 90 days. I note that this list does not contain certain items otherwise listed in Annexure A to the cross-summons including references to certain signage.
For completion, I note that the rulings made in this matter do not affect other amusement rides and attractions on the land including those noted at [54] above, being the "Garden Maze", "Donkey rides and hayrides", "Giant chessboard"; "Existing ponds with canoes" (subject to satisfaction of Condition 67 of the 2005 Consent); "Small rides shed"; "Spider Web"; "Bomber Ride"; and "Merry-go-round".

Costs

The usual order is that costs follow the event. As Council has achieved the substantial relief which it otherwise sought, I consider Council is entitled to its costs.

Orders

The orders of the Court are: 1. Declare that John Bruce Grant has carried out or permitted the carrying out of development on land identified as Lot 11 in DP 607155 and known as 219 Donovan Road, Broughton Village, comprising the installation, use and conduct of the attractions, structures, devices, and amusement rides described in Annexure "B" to this judgment without development consent pursuant to the Environmental Planning and Assessment Act 1979 (NSW). 2. John Bruce Grant and his employees and agents are restrained from using or permitting any other person to use or operate from 28 days from the date of these orders those items described in Annexure "B" to this judgment. 3. John Bruce Grant is directed to dismantle within 90 days from the date of these orders those items described in Annexure "B" to this judgment. 4. John Bruce Grant is to pay Kiama Municipal Council's costs of these proceedings.

Annexure A (863653, pdf) Annexure B (131026, pdf) 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. Decision last updated: 12 December 2024

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)