Blacktown City Council v Sharp

[2000] NSWLEC 92

Land and Environment Court

of New South Wales

CITATION:	Blacktown City Council V Sharp [2000] NSWLEC 92
PARTIES:	APPLICANT: Blacktown City Council RESONDENT: Sharp
FILE NUMBER(S):	40061 of 2000
CORAM:	Bignold J
KEY ISSUES:	Interlocutory Relief :- Use of existing premises as place of public entertainment. Necessity for approval in interests of public safety.
LEGISLATION CITED:	Local Government Act 1993, s 68
CASES CITED:
DATES OF HEARING:	19/04/00, 20/04/00
EX TEMPORE JUDGMENT DATE :	04/20/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr J E Robson, Barrister SOLICITORS Taylor Kelso RESPONDENT: Mr C Sharp in person SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No . 40061 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 20 April 2000

BLACKTOWN CITY COUNCIL

Applicant

v

C SHARP

Respondent

JUDGMENT

Bignold J:

1. By its amended class 4 application filed in Court today, the Council claims injunctive relief in respect of the use of premises owned by the Respondent known as the “Astro Entertainment Centre” situated in North Parade, Mount Druitt.

2. On Friday of last week, Lloyd J granted an ex parte injunction restraining the Respondent from using the subject premises and the temporary structure comprising a marquee erected on adjacent Council owned land as a place of public entertainment without the approval of the Council pursuant to the Local Government Act 1993 s 68.

3. In the Supreme Court today, Windeyer J granted relief in favour of the Council in respect of the unlawful use of the Council's land by the Respondent by dint of the existence of the marquee. A prohibitory injunction was granted by his Honour restraining the use of the marquee, together with a mandatory injunction requiring the removal of the marquee by Monday 1 May this year, together with its accoutrements.

4. Those injunctions were granted by his Honour a little earlier today. It was because of the prior fixture before the Supreme Court that yesterday, when this case first came before me, that I adjourned the matter until 2.00pm today to see what the outcome in the Supreme Court proceedings yielded.

5. As a result of the orders made by Windeyer J, the Council in the proceedings before this Court has filed an amended class 4 application (no longer claiming relief in respect of the marquee or tent structure located on the Council land) and the relief now claimed is confined to the Respondent's property known as the Astro Entertainment Centre that I have earlier described.

6. In par 3 of the amended application, the Council's claim to injunctive relief based upon non-compliance with the Local Government Act 1993 s 68 is formulated.

7. The evidence adduced by the Council, and in particular, the evidence of Mr Trevor Anthony Taylor, the Council's Building Supervisor, Policy and Development and Regulatory Services Directorate, both in his affidavit sworn on 12 April 2000 and in his testimony today, satisfies me that in all probability further approval under the Local Government Act 1993, s 68 is required for the proposed uses of the building that the Respondent presently intends to conduct.

8. The building was approved as a cinema complex by the Council in 1989 and has functioned as a cinema complex until the past two years.

9. Applying the presumption of regularity, I take it that the operation of the theatre as an approved cinema complex was undertaken with all requisite approvals, including approval under the Local Government Act 1993, s 68 for use of the premises as a place of public entertainment.

10. It appears from Mr Taylor's evidence that the lapse of that use, or the cessation of that use for the past two years, may involve the requirement for further approval to be obtained under the section if the cinema use is to be resumed.

11. As I understand the Respondent's present intentions, the uses proposed of the cinema building at the present time involve other activities than the showing of movies and it appears that there may be legal covenant or contractual obligations binding upon the Respondent presently precluding him from resuming the cinema use.

12. The Respondent has only recently acquired the premises from Hoyts.

13. The evidence of Mr Taylor has satisfied me that many of the proposed uses of the cinema building fall within the defined concept of “place of public entertainment” and that in consequence, an approval under of the Local Government Act 1993, s 68 will be necessary for such uses.

14. The Respondent has not yet made a full and proper application to the Council for that approval and I accept Mr Taylor's evidence on behalf of the Council that upon receipt of a proper application for approval under s 68, the application will be determined with due expedition.

15. One of the principal purposes for the requirement for an approval for use of premises as a place of public entertainment under the Local Government Act is for the Council to ensure that the proposed building and its use is appropriate for the assembly of masses of people and in particular, that the building is adequately fitted out with fire services and fire fighting equipment to ensure public safety.

16. The Respondent is confident that the building, having been used, until recent times, for more than a decade as a cinema, contains the appropriate fittings and fit-out but that is a matter for him to satisfy the Council in his application and in this respect the application, no doubt, will need to be accompanied by appropriate certification from a qualified person concerning the fire safety aspects of the building.

17. In support of its application for an interlocutory injunction, the Council offers the usual undertaking as to damages and acknowledges that if the injunction is granted as sought in the amended application today, the injunction granted by Lloyd J last Friday should be discharged.

18. In my opinion, it is appropriate that the relief claimed by Council on an interlocutory basis be granted. This is not simply to require the formalities of the Local Government Act s 68 to be complied with, but is directed towards achieving the fulfilment of the purpose for such regulation, namely, that buildings used as places of public entertainment and public assembly be appropriately fitted out with fire safety equipment, fittings and lay-out to ensure public safety.

19. The uses proposed by the Respondent do involve the assembly of various members of the public and they are entitled to the protection that the purpose of the regulation of places of public entertainment is designed to give.

20. A number of activities have been planned for the forthcoming Easter weekend which I should just mention for clarity’s sake because it appears to be accepted by the Council that these activities (which I am about to mention) are not intended to be governed by the injunction that I propose to grant.

21. Those activities are (i) the use of the building for the purpose of holding religious services; (ii) the use of the basement car parking area for market stalls; and (iii) the use of the car parking basement area for the exchange of Pokemon cards by children who wish to attend the premises for the purpose of card exchange.

22. These activities conducted in the aforesaid manner are not intended to be prohibited by the interlocutory injunction that I propose to grant.

23. In the circumstances, I propose to grant the interlocutory injunction, leaving it to the Respondent to seek the requisite approval under s 68 in which event the injunction will be discharged and presumably, if the requisite approval is granted, the present proceedings (including the claims to permanent relief) will not be persisted with.

24. For all the foregoing reasons, I make the following order:-
1. Upon the Applicant giving the usual undertaking as to damages, I make, on an interlocutory basis and until further order, the orders claimed by the Council in par 3 of its amended class 4 application filed in Court today.
2. In consequence of the making of Order 1, the interlocutory injunction granted by Lloyd J in this Court last Friday is discharged.
3. The question of costs is reserved.