Richmond Valley Council v Cambourn [2015] NSWLEC 209

Land and Environment Court New South Wales

Medium Neutral Citation: Richmond Valley Council v Cambourn [2015] NSWLEC 209 Hearing dates: 23 December 2015 Date of orders: 23 December 2015 Decision date: 23 December 2015 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [20] Catchwords: INJUNCTIONS – interlocutory injunction – application to restrain the carrying out of music and dance festival without consent – serious question to be tried – balance of convenience favours granting an interlocutory injunction Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 (NSW) s 68 Richmond Valley Local Environmental Plan 2012 (NSW) Category: Principal judgment Parties: Richmond Valley Council (Applicant) Mr James William Cambourn (First Respondent) 3rd Eye Productions Pty Ltd (Second Respondent) Nathan Joel Rodgers-Falk (Third Respondent) Representation: Counsel: Mr M D Seymour (Barrister) (Applicant) No appearance for the respondents

Solicitors: Hannigans Lawyers (Applicant) No appearance for the respondents File Number(s): 41217 of 2015 Publication restriction: No

Judgment

An allegedly illegal music festival is to be held 1. Richmond Valley Council ('the Council') has brought proceedings against three persons to restrain the holding of a music and arts festival on 31 December 2015 for three days on land at Rappville in breach of the Environmental Planning and Assessment Act 1979 ('the EPA Act'). 2. Mr James Cambourn is the owner of the land at Lot 58, Deposited Plan 755604, known as 1850 Busbys Flat Road, Rappville ('the Property'). 3rd Eye Productions Pty Ltd is a company trading under the registered business name of 3rd Eye Productions. The holder of the business name is Mr Nathan Rodgers-Falk. 3. 3rd Eye Productions has promoted and sold tickets for an arts and music festival, called "Indigo Evolution New Year's Eve Arts and Music Festival 2015/2016", at the Property from Thursday 31 December 2015 to Saturday 2 January 2016 at 6pm ('the Event'). According to the Event's website and Facebook page, 4700 people have registered to attend the Event. 4. 3rd Eye Productions has previously held an arts and music event at the Property on 19-20 September 2015 called "The Spring Equinox Arts and Music Festival". Application was made for approval under s 68 of the Local Government Act 1993 for that event, but approval was refused by the Council. The risk management plan accompanying that application was entitled "3rd Eye Productions Pty Limited" and the event manager was stated to be "Mr Nathan Rodgers-Falk (3rd Eye Productions)". The owner of the land, Mr Cambourn, gave consent to the making of that application. Notwithstanding the Council's refusal of approval, the Event nevertheless went ahead on the Property. The Council issued a penalty notice to the owner of the Property, Mr Cambourn, for the offence of carrying out development without development consent. 5. 3rd Eye Productions and Mr Rodgers-Falk have commenced work to prepare for the Event on New Year's Eve. On 16 December 2015, an officer of the Council, Mr Andrew Hanna, attended the Property and observed the work done to date: (i) I observed that a locked gate blocks access along Red Hill Road at the point where it enters the subject property. This is a Crown road with public access. The gate has signage stating 'No Unauthorised Access' and others including the 3rd Eye Productions logo. (ii) Significant large infrastructure works have been carried out on the site, including earthworks, tree thinning/removal, construction of a waterhole, erection of structures. I am not aware of any approvals having been obtained from NSW Local Land Services for the tree clearing works which have occurred. (iii) It appeared the site was occupied by 3rd Eye Productions and I observed approximately 10 people on-site doing work. (iv) I observed that a large marquee has been erected with a bain‑marie and it is my opinion the marquee will accommodate food storage and also be the 'chill' area with low-key music. The marquee is approximately 40x15m and alone requires a DA due to its size. (v) An amphitheatre has been constructed and I observed that this has involved significant earthworks, tree clearing and ground levelling and construction of an earth mound in a large semicircle. The amount of soil used to construct the mound is estimated to be approximately 500 tonnes at least. (vi) Machinery is present on the site including large bulldozer, fork-lift, tractor, generators, pumps, dongas/work sheds. (vii) I observed that a waterhole has been constructed. I estimate the waterhole to be 80 metres long x 20 metres wide, depth unknown. The waterhole was unfenced. The waterhole is a risk to health and safety. The waterhole is not unlike a dam and has muddy water and the bottom of the waterhole cannot be seen. (viii) There is a camping area on the site and the vast majority of attendees camp on-site during the event. The same camping area was used at the previous 3rd Eye music festival held in September 2015. 1. As I have said, 3rd Eye Productions has also promoted and sold tickets for the Event. 2. The Property is zoned RU1 Primary Production under Richmond Valley Local Environmental Plan 2012 ('the LEP'). In that zone, any development not specified as being permitted without consent in item 2 or permitted with consent in item 3 of the Development Control Table is prohibited. There are no relevant categories of development specified in items 2 or 3 of the Development Control Table for the event. Carrying out development for the purposes of the Event is therefore a prohibited development. 3. Under cl 2.8 of the LEP, application can be made for development consent for the temporary use of land in any zone. Potentially, this may permit development consent to be granted for the Event, which will run over three days. 4. The Council officer, Mr Hanna, deposes that no application has been made to the Council and no development consent has been granted to carry out the Event, including for the temporary use of the land for the Event.