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. The festival promoters are warned and served with the legal process 1. The Council's solicitors wrote to Mr Cambourn, 3rd Eye Productions and Mr Rodgers-Falk on 18 December 2015 advising them that the holding of the Event is prohibited development under the LEP and that no application has been made or development consent granted under cl 2.8 of the LEP for the temporary use of the land for the Event. The Council's solicitors called upon each of the persons to cancel the Event. If they failed to cancel the Event, they were notified that the Council would commence urgent injunction proceedings to prevent the Event from occurring. No notification was received from the respondents that the Event had been cancelled. Accordingly, the Council commenced these proceedings. 2. The Council sought and obtained orders from the Court for abridged and substituted service. I am satisfied that the Council has served the respondents with the originating process, notice of motion, orders of the Court, and accompanying affidavits, and that the respondents are aware of the hearing of the notice of motion seeking interlocutory injunctive relief today. Furthermore, Mr Rodgers-Falk spoke to the Council's solicitor on Monday about the forthcoming application for injunctive relief and Mr Cambourn spoke to the Council's solicitor this morning during the hearing of the notice of motion and said that he was aware of the hearing but proposed leaving the matter to the others (by implication, 3rd Eye Productions and Mr Rodgers-Falk). There is a serious question to be tried 1. In order to grant an interlocutory injunction, the Court needs to be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction. 2. I am satisfied that the Council has established a serious question to be tried that the holding of the Event will be in breach of the EPA Act, in that the Event is prohibited development and that no development consent has been obtained for a temporary use of the land for the Event. The balance of convenience favours granting an injunction 1. I am also satisfied that the balance of convenience favours granting the injunction. Obviously, the grant of an injunction will cause hardship, including financial hardship, to the organisers of the Event, and to persons who have purchased tickets to attend the Event. However, there are strong countervailing factors in favour of granting an injunction. 2. The Event is to be held on bushfire-prone land that has been classified as Vegetation Category 1 under the Council's Bush Fire Prone Land Map. No assessment has been undertaken of the risk to the health and safety of patrons attending the Event from bushfire, or whether any measures have been taken to prevent, control, abate or mitigate bushfire, or the adequacy of any such measures. There is a waterhole that is unfenced and poses a risk to the health and safety of patrons. There is no evidence of provision of any toilet facilities or amenities for patrons. 3. The NSW Police have expressed concern about the previous event held on the Property in September 2015 and have again expressed concern about this event to be held over New Year's Eve. The police say that they do not have the resources to attend the Event. 4. The Property is located in a remote area, far from hospital and other emergency services, and the access road is narrow and moderate to steep. 5. All of these potential impacts would have been assessed had application been made for development consent for the temporary use of the Property for the Event. 6. In these circumstances, an interlocutory injunction should be granted to restrain the holding of the Event. I will give liberty to the respondents to apply to discharge or vary the interlocutory injunction and other orders. Although I am satisfied that the respondents have been notified of the hearing of the notice of motion seeking these orders, I recognise that there has been little time for the respondents to seek legal advice and attend the hearing. If they wish to contest the making of the interlocutory injunction and orders, they can exercise the liberty to apply and their application can be heard next week before New Year's Eve. Orders 1. I make the following orders: 1. Abridge time for the return of the summons to 23 December 2015 at 10am. 2. Order, until further order, that the Respondents, their servants, agents and invitees be restrained from carrying out an arts and music festival (Festival), known as the "Indigo Evolution New Year's Eve Arts and Music Festival" on the land being Lot 58 DP755604 at 1850 Busbys Flat Road, Rappville, in the state of New South Wales (Property). 3. Order, until further order, that the Respondents, their servants, agents and invitees be restrained from using the Property for: 1. Playing amplified music; 2. Sale of items and food; 3. Supply of food and drink; 4. Camping; 5. Parking; 6. Cooking; 7. Staging of music or activity; 8. Accommodation; 9. Parades; 10. Workshops, displays and demonstrations; 11. Fire dancing, 12. unless development consent is obtained. 1. Order, until further order, that the Respondents, their servants, agents and invitees be restrained from carrying out: 1. Clearing of vegetation and trees; 2. Erection of structures or facilities including but not limited to tents, toilets, marquees, amplifiers, stalls, cooking appliances, signage and stages; and 3. Earthworks, on the Property unless development consent is obtained. 1. Stand over the proceedings to be before the List Judge on 5 February 2016. 2. Grant liberty to the Respondents to apply on one day's notice to discharge or vary these orders (Orders). 3. Direct that these Orders be entered forthwith by signature of the Court. 4. Direct the Applicant to serve these Orders on the Respondents by 4.00pm on 24 December 2015. Service of these Orders is to be effected by the following: 1. Personal service; or failing that, 2. Attending at the Property and leaving a copy of the Orders with any person who appears to be over the age of 18, together with a letter requiring the recipient to bring the Orders to the attention of the Respondent; and 3. By attending at Unit 145, 1-2 Miller Street, Pyrmont, and leaving a copy of the Orders in the mailbox of that Unit; and 4. By posting the following message on the Facebook page for the Event "Indigo Evolution New Year's Eve Arts and Music Festival 2015/2016: 5. "ATTENTION: Orders have been made in the Land and Environment Court of New South Wales to restrain the Landowner and Organiser from operating this event. The Landowner and Organisers of the event must contact Monique Hannigan at Hannigans Solicitors on (02) 6662 4122. If you participate in this event and know about these orders you could commit contempt of Court": and 6. By attachment of the Orders to an email sent to 3rdeyeperformers.info@gmail.com; and 7. By telephoning the Respondents insofar as their telephone numbers are known, and advising them of the making and the effect of the Orders. 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: 04 February 2016