Land and Environment Court of New South Wales CITATION : SOUTH SYDNEY CITY COUNCIL v. SPANOS ENTERPRISES PTY LTD [1998] NSWLEC 113 APPLICANT South Sydney City Council FIRST RESPONDENT Spanos Enterprises Pty Ltd PARTIES : SECOND REPONDENT Spanos Export Meals Pty Ltd THIRD RESPONDENT Anthony Willaim Spanos FILE NUMBER(S) : 40177 of 1997 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 197 Noise Control Act F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1988) 66 LGRA 306 at 310-313); CASES CITED: Botany Municipal Council v Butlin and Ors (Bignold J, 15 September 1989, unreported); South Sydney City Council v Perez (Stein J, 18 March 1996, unreported) DATES OF HEARING: 6/04/98, 07/04/98, 29/04/98 DATE OF JUDGMENT: 07/08/1998 APPLICANT Mr B F Rowe, Barrister Pike, Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr G P Cummins, Barrister Remington & Co JUDGMENT: In these class 4 proceedings, South Sydney Council claims declaratory and injunctive relief against Spanos Enterprises Pty Ltd, Spanos Export Meats Pty Ltd, and Mr A W Spanos. The council seeks a declaration that the respondents have used the premises known as 286-288 Botany Road, Alexandria ("the premises") for the purpose of dance parties without having first obtained development consent and that the respondents are in breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). In addition, however, the council seeks to restrain the use of the premises for private dance parties unless the numbers in attendance do not exceed 150 persons, the council shall have been previously notified, council officers are present, a current list of members of the club for graffiti artists has been furnished to the council, and attendees at the function establish proof of membership of that club. These proceedings are the second proceedings in which the council has sought to restrain the holding of dance parties at the premises. In the judgment which I delivered in respect of the last proceedings (9 December 1994, unreported) I found (at p 17) that the activities which the evidence showed had been carried out on the premises were consistent with the use of the premises for the purpose of a club for graffiti artists, and accordingly, I dismissed the council's application. These proceedings were heard over two days commencing on 6 April 1998. On 29 April 1998, the council applied by notice of motion to reopen its case. I granted leave for that purpose, restricting the fresh evidence to three particular affidavits and an exhibit. I gave leave to the respondent to file further affidavits in reply, and I made directions about further written submissions. Final submissions were filed on 1 June 1998. The current development consent The reference to a club for graffiti artists is a reference to development consent numbered U92-00347, which was granted to Spanos Enterprises Pty Ltd by the council on 29 May 1992. The notice of development consent given under s 92 of the EP&A Act stated that consent was given "[T]o use the car parking area as a club for graffiti artists". The development consent was granted subject to six conditions, which are as follows: "(1) That the proposed club shall only operate outside of the hours of operation of the existing meat works given consent under Development Application 310/70 on 21 January 1971; (2) That a separate application shall be submitted at the appropriate time for any proposed signs; (3) That only clean and unpolluted water shall be permitted to discharge from the subject development to Council's stormwater drainage system; (4) That the use of the premises shall not give rise to: (a) transmission of vibration to any place of different occupancy; (b) a sound level in any place of different occupancy greater than 3dB above the L90 background level in any octave band from 31-5 Hz to 8 000 Hz centre frequencies inclusive; however, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing as specified by the equal loudness contours for octave bands of noise, this sub-clause shall not apply to any such frequences; (c) a sound level at any point on the boundary of the site greater than the levels specified in Australian Standard 1055-1984; (d) an "offensive noise" as defined in the Noise Control Act, 1975; the method of measurement of sound levels in (b) and (c) shall be carried out in accordance with Australian Standard 1055-1984; (5) That the storage and handling of garbage shall comply with the requirement of Council's Code for Garbage Handling System; (6) That no alcohol shall be consumed on the premise;" The competing cases The council's case is that the premises have been used for dance parties for the public generally, and events which have been held there cannot be properly classified as activities of a club for graffiti artists. The case of the respondents is that the events about which the council complains are nothing more than club functions. According to Mr Spanos (the companies named as second and third respondents having no direct involvement) the premises are the venue of the club known as "The Graffiti Hall of Fame". Mr S Bartlett, a town planner in the employ of the council, gave evidence that the premises are zoned General Industrial 4 pursuant to South Sydney Local Environmental Plan No 114. That local environmental plan was not tendered, but there is no issue between the parties that, if the premises have been or are being used for the purpose of dance parties, development consent under s 76 of the EP&A Act is required. The evidence The council's evidence was directed to two main circumstances. First, evidence was adduced in relation to a number of events (to use a neutral term) which have occurred at the premises, and, secondly, evidence was adduced about advertisements relating to dance parties to be held at the premises. The evidence about the events: 11/12 March 1995: Evidence as to this event was given by Ms Ann Brown who is a local resident living at 9 Portman Street, Zetland, approximately 700 metres from the premises. She stated that, on 11 March, she was disturbed by very loud music in the early hours of the morning and between 1:30am and 2:00am on the morning of 12 March she drove past the premises, identifying them as the source of the noise. She observed lots of people moving inside the premises, taxis dropping off and collecting people, and approximately 50 people outside the front gates. She claimed that the event did not cease until 9:00am that morning, and she observed, at about 8:00am, that the surrounding area outside the premises was covered with rubbish, and many young people were hanging around the premises, looking, in her opinion, "dishevelled" and "out of it". Respondents' response: The respondents did not deny that an event had taken place at the premises on 11/12 March, but Mr Spanos stated that Ms Brown is not a member of the club, and therefore not familiar with its activities or its mode of operation. 8/9 April 1995: Ms Brown deposed to another all night event on this date. At 2:30am she identified the premises as the source of noise, and she saw a large number of people outside and inside the premises. The following morning, 9 April 1995, at around 11:00am, she observed people loading cartons of beer into a van outside the premises. Respondents' response: Mr Spanos did not deny that an event had taken place on 8/9 April, but he did deny that cartons of beer were loaded into a van outside the premises. 29/30 April 1995: Ms Brown was disturbed by noise and loud music coming from the direction of the premises first at 10:15pm on 29 April, and then again at 3:30am on 30 April. She drove past the premises after 10:15pm on 29 April and saw large groups of people outside the front gates of the premises. She claimed that the music did not quieten down until around 6:00am on 30 April, and finally stopped at about 8:30am. Ms Jennifer Sattler also gave evidence presumably about this event. She stated that she was woken at 8.45am on 29 April by a loud noise from the direction of the premises, that she walked past and saw litter including pamphlets advertising various events. But according to Ms Brown's evidence, the event took place overnight on 29/30 April, and it is unlikely that Ms Sattler's observations took place on the morning of 29 April. In the light of Ms Brown's evidence, it is more likely that Ms Sattler's observations took place the next morning, 30 April. I accept that she may have been confused about the actual date when swearing her affidavit over two years later, and I accept her evidence as corroborating Ms Brown's evidence. Respondents' response: Again, Mr Spanos did not deny that an event had taken place on 29/30 April, but claimed that Ms Sattler is not a member of the club and therefore is not familiar with its activities or its mode of operation. 6/7 May 1995: Evidence about an event which took place at the premises on 6/7 May was adduced as follows: * Messrs Johnny Esber, Daniel Gomes, Pierre Melki and Paul Melki each deposed to attending together what each of them called "a dance party" at the premises, arriving there about 1:00am. They each paid an admission fee at the gate of the premises before being allowed entry. They each stated that they were not graffiti artists, nor that they were members of any club associated with the Graffiti Hall of Fame. They also stated that, when seeking admission to the premises, they were not asked whether they were members of any club. * Mr Paul Melki stated that there were about 1000 people at the premises. Some were dancing, and loud music was being played. Mr Gomes made the same estimate of numbers, and observed dancing and music. Mr Esber saw a large number of people, some of whom were dancing, and he heard loud music. * Mr Paul Melki also stated that he could not recall how he became aware that there was an event to be held at the premises. His recollection was that he read about the event in a magazine. * Each of these four deponents witnessed an incident on the premises during which a man was shot. They each made a statement to the police on 7 May 1995 in connection with that incident. The incident has no relevance to these proceedings, but it supports the reliability of the evidence given by each of these persons, as each of them was more likely to recall the event by reason of the incident. * Mr G Williams is a building assessor in the employ of the council. On 8 May 1995, he inspected the premises and saw three tents being dismantled and placed in a vehicle with the hirer's name endorsed on it. He also saw a row of commercial bar fridges and a sign displaying the words "Sausages on a roll $3.00 Drinks $2.00". On the following day, he spoke to the tent hire company and was told that the tents had been hired by a person called "Vishnu Edwards". On 18 May 1995, he spoke to Mr Spanos, who told Mr Williams that Vishnu Edwards had organised the event of 6/7 May 1995, that he, Mr Spanos, had been "on the gate", and that no alcohol or drugs "were allowed in". According to Mr Williams, Mr Spanos said: "That is the last party we will have, no more, that is enough, no more dance parties". Respondents' response: In his affidavit of 12 March 1998, Mr Spanos referred to Mr Williams' evidence but did not deny that an event had taken place 8/9 May. Mr Spanos claimed that the conversation he had with Mr Williams was "without prejudice", he denied the use of the words "dance parties", and he expressly claimed that the event was a club function. He stated that it had been organised by Mr Vishnu Edwards, and that "a majority" of the persons present were club members. 18/19 May 1996: The event which took place on this date was described by Mr C Carroll, and by Mr A P Lee, both ordinance inspectors employed by the council. Mr Lee went to the premises on 18 May 1996, and saw cars and people mingling outside. He could hear dance music, and observed that the gates were covered with some sort of material. He went to the gate and asked for tickets. On paying $20 and having his wrist stamped, he went inside and saw a tent with a dance floor, as well as a shop selling drinks and chewing gum. He estimated that there were approximately 100-130 people inside. He observed an external staircase which he thought went to toilet cubicles, a covered verandah with mattresses on the ground, movies playing on the wall, and, as he left, he saw a disc jockey arriving with music equipment. Mr Lee said that he did not see any persons creating or viewing graffiti, nor was his attention drawn to graffiti at the premises. The movies which he saw did not, so far as he observed, present pictures of graffiti art. At about 4:30am on 19 May, Mr Carroll went to the premises. He saw two security guards standing outside the gates, but his view of the inside of the premises was obstructed by material hanging off the wire fences. He saw people coming and going from the premises, and heard amplified dance music. Mr Carroll went to the front gate, and asked how much it would cost to go in. He was asked to pay $10, which he did, and a stamp was placed on his right wrist. He was given change from a drawer which had other cash in it. Inside the premises, Mr Carroll saw a big tent with a portable dance floor. He estimated that there were about 300 people on or around the dance floor area, 15 people sitting down, and 10 people at the shop. In a subsequent affidavit, Mr Carroll deposed to the fact that he did not on this occasion (or on any other occasion when he visited the premises) observe any graffiti work being carried out, nor did he observe any person viewing the graffiti at the premises, nor did any person draw his attention to the graffiti. In his opinion, it was too dark to see graffiti on the walls, and the only lighting at the premises was laser lighting, which was multi-coloured and constantly changing direction. Ms Brown stated in her affidavit that she remembered loud dance music coming from the premises on this date. Respondents' response: Mr Spanos gave conflicting evidence about this event. In para 8 of his affidavit of 6 April 1998, with reference to the affidavit of Mr Lee sworn on 13 November 1997, Mr Spanos claimed that the event was organised by a club member called "Jolan Cook", and was a "relatively small function" to celebrate Mr Spanos' birthday. In the same affidavit, referring to the affidavit of Mr Carroll sworn on 11 August 1997, Mr Spanos claimed that the function on this date was a club function organised by a disc jockey and graffiti artist called "Herb". He also claimed that Mr Carroll was in error in saying that it was too dark to see graffiti, because pedestrian crossing halogen spotlights illuminate the whole area of the premises. 24 August 1996: Mr Carroll and other council officers went to a site at Beaconsfield. Mr Carroll deposed to having heard a police officer announce to the people there that "the event is cancelled", and he heard another person announce "Everyone is going to the Graffiti Hall of Fame". This evidence was confirmed by the evidence of Sergeant B Pincott and Constable P Barker both of whom were at the time stationed at Mascot. Sergeant Pincott stated that, after ascertaining that a person called "Michael Wilson" was in charge of the event, he announced that the venue was no longer open. Constable Barker overheard people saying that they were going to the Graffiti Hall of Fame. Mr M A Wilson gave evidence that he organised a dance party at a venue in Beaconsfield on this date, and that he was filming the event while it was taking place. He deposed to a conversation with a "Tony Papworth" who said, when the police closed down the party, that he could provide access to the Graffiti Hall of Fame, and Mr Wilson transferred his music and other equipment to the premises. Mr Carroll and another council officer, Mr C Smith, saw crowds of people walking to the premises. Mr Carroll estimated that at 2:00am there were approximately 300 people outside the gates of the premises, and he saw a truck drive into the premises and some people unloading sound equipment. Mr Carroll went inside the premises, and saw the sound equipment being set up, a disc jockey operating sound equipment, and about 200-300 people dancing. Mr Smith corroborated Mr Carroll's observations in his evidence. He said that at approximately 3:00am the event was closed down by the police. Once again, Ms Brown swore to being disturbed on this date by loud music coming from the direction of the premises. Mr P Martin, who is a senior ordinance inspector with the council, also gave evidence about the event of 24 August. After going to the Beaconsfield address, Mr Martin went to the premises. He saw about 100 people across the footway in front of a wire gate entrance. At about 1:00am, he saw a truck back into the yard behind the wire gates and he saw electronic sound equipment being unloaded. At approximately 1:35am he heard music coming from the premises. He saw a table at the front gate, and had a conversation with a man at that gate, who identified himself as "Peter Warman". Mr Warman told Mr Carroll that the person in charge was "Michael Wilson" but Mr Warman said that permission to hold the event was the subject of a decision of this Court and he agreed to produce the Court documents. At that stage, according to Mr Martin, there were about 200-300 people dancing to loud music, and about 100 people on the footpath. There was also a light show with flashing lights on a big billboard. The man returned with some documents from this Court. Mr Martin told Mr Warman that it was not clear whether or not approval had been given for the event, but he agreed to "let the party operate". Mr Martin remained outside the premises until 5:00am. Mr Martin deposed to the fact that he did not observe any persons creating graffiti or viewing graffiti. Sergeant B Coates (now of Gosford police) said that he went to the premises on 24 August at approximately 12:00 midnight. There were a lot of people outside the gate, and he was told that there was an entrance fee of $40. He asked to speak to the person in charge, and spoke to a man called "Tony Papworth". Mr Papworth said that the event was authorised by the Court's order. Inside the premises Sergeant Coates saw lots of people dancing, talking and standing around, and there was very loud music. Respondents' response: Mr Spanos gave conflicting evidence about this event. In para 4.1 of his affidavit of 6 April 1998, he claimed that the event held on 24 August was a club function. However, in paras 19 and 22.1 of his affidavit of 12 March 1998, Mr Spanos claimed that the event was the shooting of a film clip and that premises were not a pre-organised back-up venue for any other dance party. Mr A P Papworth gave evidence on behalf of the respondents. He admitted that he possessed a key to the premises and, at the request of his stepson, he opened up the premises on the night of 24 August. He said persons were admitted free of charge, and some graffiti artists and musicians set out equipment and some undertook some graffiti art work. He said he recalled video cameras operating at the time. 16/17 November 1996: Ms Brown's evidence was that she was woken up at approximately 1:30am by loud music coming from the direction of the premises. The noise abated after about two hours, but then recommenced very loudly from about 5:00am onwards. Ms Sattler stated that she had been disturbed by loud music coming from the direction of the premises at about 11:30pm. At 4:00am, she drove to the premises, and saw "many hundreds" of people on the surrounding footpaths and on the road. She went back at to the premises at about 8:00am, and saw "hundreds" of people in the vicinity of the premises. They were in cars, on the kerb side, in the front yards of the premises and adjoining premises, and some of them were entering and leaving the premises. Sergeant K B Baker, of Redfern Police, stated that he went to the premises at about 2:20am on 17 November, together with other police officers. He estimated that about 500 persons were standing along the adjacent footpaths, and near the entry to the premises. Near the gateway, he observed a table and persons attempting to control entrance to the premises. Sergeant Baker asked a person at the gate to locate the person in charge. While he was waiting, Sergeant Baker observed about 300 people dancing in the area. He saw that a light show was being shown on a wall at the southern end of the area, and he heard loud music. He then had a conversation with Mr Spanos, and handed to him a noise abatement direction notice. Respondents' response: Mr Spanos stated, once again, that the event was a club function. 10/11 January 1997: Mr Carroll drove past or went to the premises on five occasions between 3:05pm and 10:47pm on 10 January. He saw vehicles outside the premises, and a structure like a stage being erected. On his last visit on that date, one of the gates was open, and about 60 people were lined up outside the gates. There were many cars parked adjacent to the gates, and he heard loud music coming from the premises. The next day, 11 January, Mr Carroll returned to the premises at about 12:35am with Mr Smith. There were about 115 cars parked in Botany Road, and about 90 people lined up outside the gates. He saw that inside the gates there was a multi-coloured laser light doing circles and patterns on the left hand wall. Mr Carroll went to the premises again at 12:53pm on 11 January. He saw four men and a woman at the gate, and security guards holding torches. At about 1:00am, he was standing outside the premises, and he saw about 100 people in the street. Mr Carroll went up to a man with a plastic identification card around his neck, and asked to buy two tickets, which he was told were $30 each. He was given two tickets upon which were printed the words "Rave Party-Scream", a price of $25, an 0055 phone number, and the name of a disc jockey. Both council officers went to the gate, and were "patted down" by security guards, and then let in. Mr Carroll handed his ticket to a woman at a counter, and was marked with stamps on his hand. He saw about 300 people inside, mostly dancing to very loud music. There was a counter with various refreshments for sale, and large coloured brochures advertising rave parties were on the counter. There was a person on scaffolding with a laser light, and another person with audio equipment on the roof of a shed up the stairs. At 1:30am, when Mr Carroll left, there were about 150 people outside. At about 4:30am on 11 January, Mr Carroll and Mr Smith came back to the premises. There were still about 100 cars parked in the street, and a large number of people were dancing. Security guards and about 25 people were outside the gates, and loud music was still playing. Mr Smith made similar observations to those of Mr Carroll. Mr Carroll and Mr Smith each deposed to the fact that they did not see any graffiti work being done on the premises on this occasion (nor on any occasion on which they visited the premises) nor was their attention drawn to graffiti. Ms Brown gave evidence about being woken by the sound of loud music coming from the direction of the premises at about 3:00am. She drove to the premises at about 6:45am, and saw about 30 people walking in and out of the gates of the premises. The fence was covered with hessian, the gate was partly open, and she heard music coming from inside the premises. She observed litter and rubbish on the roadway adjacent to the premises. However, in her affidavit, Ms Brown referred to these events as taking place on 8 and 9 January 1997. Although Mr Carroll and Mr Smith referred to those two dates in their initial affidavits, they each later corrected their evidence in further affidavits, stating that the dates were in fact 10 and 11 January 1997. I accept Ms Brown's evidence as referring to the same event, and corroborating to some extent the observations of Mr Carroll and Mr Smith. Respondents' response: No evidence was adduced by the respondents in relation to this event. 15/16 February 1997: Ms Brown was woken at about 4:00am on 16 February by the sound of loud music. At about 9:00am, she went to the premises, and saw through the gates a considerable amount of rubbish on the ground. Mr G Cash is a senior ordinance officer in the employ of the council. He drove to the premises at about 6:15am on 16 February. He saw eight people sitting on the footpath, and a lot of rubbish on the footpath and roadway. Loud music was coming from the premises. At about 8:30am on 16 February, he drove past the premises and saw nine people sitting outside. The music was fairly loud. He went past the premises again at 9:26am, and saw that the event had finished, about 12 people were standing outside, and the music had stopped. Similar observations were made by another senior ordinance officer in the employ of the council, Mr W Murphy. On 15 February, he went to the premises about 10:00pm. He saw people and security officers outside the gates. A line of people was going in and out of the gates, and he observed that as they entered they would pause briefly in front of the security guards, but Mr Murphy could not observe what took place there. He could not see beyond the gates as the fence was covered, but he could hear loud music coming from inside the premises. At about 11:00pm on 15 February, he drove past the premises, and saw about 50-60 people outside, and he heard loud music coming from inside. He drove around the vicinity of the premises at 12:00 midnight on 15 February, and could hear loud music coming from the direction of the premises. When he drove past, he saw people outside the premises and others walking into the premises, as well as cars parked on the footpath and the street. Respondents' response: No evidence was adduced by the respondents about this event. 26/27 April 1997: Mr S Henderson is another ordinance inspector employed by the council. At about 11:00 pm on 26 April, accompanied by Mr Cash, Mr Henderson drove past the premises and saw about six people outside. Mr Henderson and Mr Cash parked their car about 50 metres away, and Mr Henderson stated that he could hear loud music coming from the direction of the premises. The next day, 27 April, they drove past the premises again at about 1:45am, and again parked 50 metres away. Mr Henderson could hear music coming from the direction of the premises, and he observed cars parked in the street, and about six people outside the gates. Mr Cash made similar observations to those of Mr Henderson. Mr H Toufaili, an ordinance inspector employed by the council, went to the premises at about 11:05pm on 26 April. He saw five or six people outside the gates. He went inside the premise and spoke to a person behind a table there, paid $10 and had his wrist stamped. Inside he observed about 20-30 people, and another group of approximately 30-35 people. He saw a stage and strobe lighting. He heard loud disco music, but no-one was dancing. Respondents' response: Mr Spanos stated that this event was a club function organised by "Jolan Cook". He said it was a small event, and "the majority" of persons there were club members. 18 April 1998: Ms Brown was woken at about 12:00 midnight by the sound of loud amplified music of the kind which she had previously heard coming from the premises. The music stopped at 5:00am. However, although Ms Brown stated that she believed the music came from the premises, she acknowledged that she did not go to the premises to check. Mr M G Donohue is a senior ordinance officer in the employ of the council. He went to the premises with council officers at about 10:45pm on 18 April. He could see lights at the premises, people in the street, and he heard loud music coming from the premises. One of the persons accompanying Mr Donohue was Mr M Sert, another council employee. Mr Donohue directed Mr Sert to seek entrance to the premises. Upon his return to the council vehicle at about 11:35pm, Mr Sert said that he had gained entry by paying $20 and by having his arm stamped. He saw 70-80 people, food and water sales, and disc jockey equipment. Mr Donohue deposed that, to his knowledge, Mr Sert is not a graffiti artist nor a member of the Graffiti Hall of Fame. Respondents' response: Mr Spanos denied some aspects of Mr Donohue's evidence. Mr Spanos stated that setting-up activities took place from about 3:00pm to 12:00 midnight, and no music was played or sound equipment activated until about 10:00pm. He said that there was a "pre-arranged" time of 12:00pm but some "club members and guests" had arrived early. Mr Spanos also said that this was a club function at which he was present. He said music was being played, there was dancing, and graffiti art was being created. He stated that there were about 300 persons present, and he said that the highest admission fee was $20. Mr Spanos estimated that about 90% of the persons there were club members. Ms S Crofts, who has been a resident of the local area for about two years, stated that she had never heard any noise or music which appeared to come from the direction of the premises, and that comment particularly applied to the night of 18/19 April 1998, when she said it was likely that she was at home. I note Mr Spanos' evidence about two other events held at the premises. First, Mr Spanos stated that a club function was held on 21 February 1998 to celebrate the birthday of "David Walsh", a basketballer who had in the past participated in club activities. He said that there was a combination of music, art, dance and basketball. Mr Spanos may have mistaken the basketballer's name, because the respondents filed an affidavit of Reverend R A Welsh, who deposed to a party at the premises on that date in honour of his son's birthday. Reverend Welsh said about 200 people turned up at the premises and they were let in by Mr Spanos and by Reverend Welsh because they had nowhere to go. Secondly, Mr Spanos deposed to another club function organised by "George Vagas" and "David Walker", members of the club, on 7 March 1998. He stated that the function commenced at about 10:00pm and went on until about 9:00am. Mr S Csergo, who is a commercial artist, and claims to be a member of the Graffiti Hall of Fame, said that he attended an event at the premises in November 1997. (He did not specify a precise date in his affidavit, and I do not know if the event to which he referred is the event which I have noted as taking place on 16/17 November 1997). He said there about 500 people there, and music, art and dance were occurring simultaneously, with a mural being painted by graffiti artists. The advertisements: The second matter to which the council's evidence was directed were advertisments of the events held at the premises. Ms M V Scott, who is employed by the council's solicitors, deposed to having attended Brashs Music Store at 244 Pitt Street Sydney during the week commencing 10 February 1997, where she obtained a copy of a magazine called "DCM's Sydney". The copy of the magazine which she annexed to her affidavit had a section called "Tours and Lures", under which the following appeared: "Tsuyoshi `Prana' Suzuki Feb 15. Don't Panic. Graffiti Hall of Fame The world's greatest trance DJ". Ms J M Juod is also employed by the council's solicitors. She acquired the 20 April 1998 edition of a rock magazine known as "3D World". Page 40 of that magazine was tendered, and it disclosed, under the heading "Coming Up - the Essential 3D Guide - Destination", the name and address of the premises. Ms Juod stated that she understood that item of the magazine to refer to a number of entertainment venues. As to the evidence of Ms Scott, Mr Spanos said that the material in the magazine was not inserted by the club, and it was published by the publishers alone. As to the evidence of Ms Juod, Mr Spanos said the reference to the premises was undated and it appears in a "Community Notice Section" of the magazine. It was not inserted by the club, nor paid for by the club (although, he said, one of the club members may have paid for its insertion). Dance Parties or Club Events? The question for determination is whether the evidence establishes that the premises have been used for dance parties without development consent and therefore in breach of the EP&A Act. The council did not proffer a definition of "dance parties", but I assume from its evidence that the expression means gatherings of persons at which music is played, dancing takes place, an entrance fee is charged, and which are open to the public generally. I find that there were 13 occasions between March 1995 and April 1998 on which events were held at the premises, taking into account the 11 events noted by the council, and the further two events mentioned by Mr Spanos. Taking in turn each of the elements constituting dance parties, I make the following findings: * music was played at each of the 11 events noted by the council; * dancing took place at eight of the events (that is, the events which took place on 6/7 May 1996, 18/19 May 1996, 24 August 1996, 16/17 November 1996, 10/11 January 1997, 15/16 February 1997, 26/27 April 1997 and 18 April 1998); * an entrance fee was charged at five of the events (that is, 6/7 May 1996, 18/19 May 1996, 10/11 January 1997, 26/27 April 1997 and 18 April 1998); and * members of the public (that is, persons having no connection with the Graffiti Hall of Fame) gained entrance to six of the events: 6/7 May 1995 - Messrs Esber, Gomes, and Melki (Paul and Pierre) 18/19 May 1996 - Mr Carroll 24 August 1996 - persons who came from Beaconsfield 10/11 January 1997 - Mr Carroll 26/27 April 1997 - Mr Toufaili 18 April 1998 - Mr Sert In relation to the events being open to the public generally, I make additional findings of fact: * The event of 15/16 February 1996 was the subject of an advertisement in a magazine available to the public at Brashs Music Store; * The tickets which were sold to Mr Carroll in relation to the event of 10/11 January 1997 were imprinted with the words "Rave Party-Scream" and an 0055 phone number; * In the conversation with Mr Williams in relation to the event of 6/7 May 1995, Mr Spanos referred to "no more dance parties". Although Mr Spanos denied that he used the words "dance parties", I accept Mr Williams' evidence as more reliable; * There was no screening of any of the persons who gained entry to the premises on the five occasions I have noted above in order to ascertain if they were members of the Graffiti Hall of Fame. I conclude that no such screening is likely to take place at any event at the premises. That is because there are no written records of membership nor any membership identification. Mr Spanos claimed that the method of identifying members is to recognise their faces, and Mr Papworth made the same claim. I find it inherently incredible that some hundreds of persons could be so identified with any accuracy at all, but in any case, there was no evidence that Mr Spanos nor Mr Papworth were carrying out a screening process at the gate of the premises on the occasion of any of the events; * The event of 24 August 1996 was a continuation of an organised dance party at a venue in Beaconsfield. Taking all these findings into account, I conclude that the premises were used for dance parties, as I have defined them, on 6/7 May 1995, 18/19 May 1996, 24 August 1996, 10/11 January 1997, 15/16 February 1997, 26/27 April 1997 and 18 April 1998. There was no evidence that development consent had been granted for the use of the premises on any of those occasions for that purpose. That conclusion would be sufficient to dispose of the proceedings in the council's favour, except for the respondents' claim that all of the 13 events were functions of the club for graffiti artists known as "The Graffiti Hall of Fame". The evidence which the respondents adduced in order to prove that claim was the affidavit and oral evidence of Mr Spanos and Mr Papworth, and the evidence of Mr G Vagas, Mr M C Peet, Mr D Walker, Mr M Cottier and Ms S Gibbeson. I place no weight upon the evidence of Mr Spanos. His evidence was inconsistent, rambling, imprecise and vague. I have already given examples of his inconsistent evidence. As to its vague and imprecise nature, I note, for example, that Mr Spanos stated that there had been about 50,000 members of the Graffiti Hall of Fame over the past eight years, that there were nonetheless no membership records and that the method of identification of members was to recognise their faces. He claimed that there were rules of the club, but when pressed, stated that the rules were rules of behaviour which he himself imposed. Mr Papworth's evidence was also inconsistent and it was unreliable. He claimed never to have organised a dance party, and then conceded that he had organised such a function at a venue in Alexandria. He claimed that he and his former wife had provided food and drink at functions at the premises for a commercial return, but then said that he had made no such return. He stated that he had allowed access to the premises on the night of 24 August 1996 because he possessed a key, which he had obtained because he used the premises to store furniture. The other persons, Mr Vagas, Mr Peet, Mr Walker, Mr Cottier and Ms Gibbeson, were not cross-examined, but their evidence was of too general a nature from which to draw any relevant conclusions, let alone a finding that the 13 events were functions of a club for graffiti artists. They each gave evidence about the nature of the Graffiti Hall of Fame and graffiti culture. Mr Vagas, for example, stated that whenever he had attended functions at the premises, they were purely club functions. He said that graffiti art work is permanently on show and it is an integral part of club activities. He attested to the help that the club provides in rehabilitation of youth, from which he himself had benefited. Similar evidence was given by Mr Peet, who is a youth worker, commercial artist, graffiti artist and musician, and by Mr Walker, who is a butcher and a disc jockey. Mr Cottier is a retired police officer. He attested to having made contact with the Graffiti Hall of Fame while attached to Redfern Police. He stated that, on the numerous occasions when he attended club functions at the premises, the focus was on graffiti art, and music and dancing were part of the graffiti art culture. Ms S Gibbeson, who is the arts and cultural development officer for Parramatta Council, attested to the fact that the Graffiti Hall of Fame is well known amongst youth workers, art workers and other professionals. The most that I can draw from the evidence of these persons is that graffiti art, music and dancing are part of graffiti culture, and that on some indefinite and unspecified occasions, graffiti art is on show. There are two other matters which I take into account as tending to corroborate the fact that the events which I have noted as being dance parties were unlikely to be events connected with a club for graffiti artists. First, Messrs Carroll, Smith, Lee and Martin, who gained entry to the premises on 18/19 May 1996, 24 August 1996 and 10/11 January 1997, did not observe any person creating graffiti art, nor any display of graffiti art, nor any spray cans or other painting equipment. Furthermore, photographs of the event of 6/7 May 1995 which were tendered show that graffiti art painted on the building walls was party obscured. Secondly, the numbers of persons observed at the events make it rather unlikely that they were connected with the Graffiti Hall of Fame. Mr Paul Melki and Mr Gomes estimated about 1000 persons at the premises on 6/7 May 1995; Sergeant Baker estimated 500 persons on 16/17 November 1996; Mr Carroll estimated 300 on each of 18/19 May 1996, 24 August 1996 and 10/11 January 1997; Mr Sert estim ated 80 on 18 April 1998 and Mr Toufaili estimated 60 on 26/27 April 1997. In summary, then, I find on the balance of probabilities that the premises were used for dance parties in breach of the EP&A Act on seven occasions between 1995 and 1998 (being 6/7 May 1995, 18/19 May 1996, 24 August 1996, 10/11 January 1997, 15/16 February 1997, 26/27 April 1997 and 18 April 1998). I am not satisfied that the other five events noted by the council, or those noted by the respondents (namely, 11/12 March 1995, 8/9 April 1995, 16/17 November 1996, 21 February 1998, and 7 March 1998) were dance parties. Orders sought by the council The council seeks four orders. The first is a declaration that the premises have been used for dance parties without consent under the EP&A Act having been obtained. The second is an injunction restraining the respondents from using the premises for dance parties without such consent having been obtained. Those two orders present only one difficulty, which is the meaning of the expression "dance parties". I propose to make those orders in conjunction with a definition of dance parties as being a gathering of persons at which music is played, dancing takes place, and which are open to the public, who may gain entry free of charge or by paying an entrance fee or acquiring a ticket of admission. The third order which the council seeks was initially in the following terms: "An order that the respondents, their servants and agents be restrained from using, permitting or suffering to be used the "Graffiti Hall of Fame Club" or any other persons or entity from organising any private dance party at the subject premises unless:- a. the numbers in attendance at the party shall not exceed 150 people; b. the respondents shall notify the Director of Planning of South Sydney City Council in writing seven (7) days in advance of any proposed party; c. the respondents shall consent to the presence on the premises of Council officers during the party to ensure that these orders are being complied with; d. the respondents shall provide to the Director of Planning a list of current Club members; e. the attendees of the party shall produce proof of membership of the Graffiti Hall of Fame on entry." In their submissions, the council's solicitors sought an order in the alternative to paras (a), (d) and (e) above, being a declaration that the use of the premises as a club for graffiti artists "permits the holding of parties on no more than an occasional basis as a social activity for club members at which the attendees would be limited to the graffiti artists who are active members of the club at that particular time and their friends". The council relied upon the Court's wide powers under s 124 of the EP&A Act to frame its orders in the context of the particular dispute (see F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1988) 66 LGRA 306 at 310-313). It claimed that the third order would meet the significant nuisance element arising out of the respondents' breach of the EP& A Act, that is, dance parties occurring without notice late at night on weekends and resulting in noise, litter and the general intimidation caused by large groups of persons congregating in the area late at night and in the early hours of the morning. The council claimed that examples of orders formulated to meet the impact of the particular breach could be found in Botany Municipal Council v Butlin and Ors (Bignold J, 15 September 1989, unreported) and South Sydney City Council v Perez (Stein J, 18 March 1996, unreported) where, in each case, the injunctions restraining the particular activities were limited to certain hours of operation. I do not propose to make an order in terms of the third order or its alternative. The principal reason for not doing so arises from the fact that the order sought is not consequential upon the breach which I have found. The breach is the use of the premises for an unauthorised purpose, namely, the holding of dance parties (as I have defined them). The third order seeks to control the impact of the authorised use of the premises as a club for graffiti artists. These proceedings arise out of the fact that the premises have been used for a purpose which is independent of the use of the premises as a club for graffiti artists. If I had found that all of the events were activities of the club, then the council would have failed in its application to the Court. But I have found that some of the events have constituted a use of the premises for dance parties which is an unauthorised use. However the third order is not designed to ensure that the premises are used only for a purpose for which consent has been obtaine d; rather, it is designed to mitigate the impact of the authorised use. I have formed the opinion, therefore, that the Court is not empowered to make the third order. In so saying, I distinguish Botany Council v Butlin and South Sydney v Perez. In those cases, the width of the respective injunctive relief was limited by reference to hours of operations of the activities restrained, and thus the relief was directly linked to the breaches which the injunctions sought to restrain. That is not the case here. However, even if the Court could make an order in terms of the third order, I would be loathe to do so for the following reasons. First, the limitation on numbers is purely arbitrary. There was no evidence to establish the optimum number of attendees, and the number of 150 persons is no more cogent than any other number. Secondly, the giving of prior notice of any function to the council was not the principal difficulty in this case. Most of the events which were held did come to the notice of the council and it obtained evidence in relation to them. Thirdly, there is no warrant for ordering the respondents to consent to the presence of council officers during a club event; council officers have powers of inspection under s 117 of the EP&A Act. Fourthly, furnishing a list of club members to the council cannot of itself ensure that functions held at the premises are limited to club members and their guests. Lastly, a requirement to show proof of membership on entry would obviously be a wise procedure for the r espondents to adopt in order to comply with the orders which I propose to make, but there may be other ways of ensuring that events held at the premises are purely club functions and are not open to the public, and it is a matter for the respondents to make sure that they do not breach the orders of the Court. The fourth order sought leave to apply. That is an appropriate order to make having regard to the fact that this is the second application which the council has made in relation to the events held at the premises. Orders In accordance with the foregoing, I make the following formal orders: 1. I declare that the respondents, their servants and agents have used, permitted or suffered to be used premises known as 286-288 Botany Road, Alexandria for the purpose of dance parties without having first obtained development consent from the applicant and are in breach of the Environmental Planning and Assessment Act 1979. For the purpose of this order and the following order, "dance parties" means gatherings of persons at which music is played and dancing takes place, and which are open to the public, any member of whom may gain entry either free of charge or by paying an entrance fee or by acquiring a ticket of admission. 2. I order that the respondents, their servants and agents be restrained from using, permitting or suffering to be used premises known as 286-288 Botany Road, Alexandria for the purpose of dance parties without having first obtained development consent from the applicant in accordance with the provisions of the Environmental Planning and Assessment Act 1979. 3. The respondents must pay the costs of the applicant as agreed or as assessed. 4. I grant liberty to either of the parties to apply on 14 days' notice. 5. The exhibits may be returned. 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.