Marrickville Council v Mytka
[2013] NSWLEC 7
•05 February 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Marrickville Council v Mytka & Ors [2013] NSWLEC 7 Hearing dates: 5 February 2013 Decision date: 05 February 2013 Before: Sheahan J Decision: See paragraph [11] below.
Catchwords: CIVIL ENFORCEMENT: Use of warehouse building for entertainment and residential purposes without consent Category: Principal judgment Parties: Marrickville Council (Applicant)
Mathew Mytka (First Respondent)
4Sight Creative Labs Pty Ltd (Second Respondent)
Jules Maher (Third Respondent)
Harry Souris Holdings Pty Ltd (Fourth Respondent)Representation: Mr M Arch, Solicitor (Applicant)
No appearance (First, Second, Third and Fourth Respondents)
Concordia Pacific (Applicant)
No appearance (First, Second, Third Respondents)
Konstan Lawyers (Fourth Respondent)
File Number(s): 41088 of 2012
EXTEMPORE Judgment
This matter came on for final hearing this morning, following an interlocutory hearing on 30 October 2012 before Craig J ([2012] NSWLEC 244), and then a directions hearing before Pain J on 23 November, when today's hearing was appointed.
There is today no appearance by or on behalf of any of the four respondents. Council was again represented by its solicitor, Mr Michael Arch.
The fourth respondent is the owner of the subject premises. Its solicitor filed an appearance on 29 October, but did not take any part in the hearings on 30 October and 23 November 2012. In response to draft orders sent to him by Mr Arch, and presented to the court in Short Minutes of Order today, he has indicated (Exhibit E) that the fourth respondent makes no objection, does not seek any costs orders against the other three respondents, and is content for Mr Arch to mention the matter on the fourth respondent's behalf.
The proceedings involve the use, without consent, of premises at 12 Chalder Street, Marrickville, by the two individuals named as first and third respondents and the second respondent company, which is controlled by the first respondent.
The uses complained of were for entertainment and/or residential purposes. Council issued an emergency order on 28 September 2012. When there was no appeal against it, and no compliance with it, Council commenced these enforcement proceedings on 24 October 2012. The active respondents appeared in this court on 30 October before Craig J, unrepresented, when Council's evidence was presented.
As His Honour noted (in [16]):
Having regard to this material, I am satisfied that the balance of convenience favours the grant of an interim order. When I stated my intention to make an interim order, Mr Mytka and Ms Maher indicated that they would not oppose an order which had final effect as a restraint upon use of the premises for entertainment purposes. They said, however, that they wished to contest the Council's entitlement to an order founded upon a claim that the premises are being used for residential purposes, contrary to the provisions of the EPA Act. They wish to contest that part of the Council's claim.
Council did not press on 30 October 2012 for orders regarding the admitted residential use of the premises, and His Honour framed his orders against the first three respondents to restrain the entertainment use "until further order", and to allow them to file and serve their evidence on the residential use question. They have not done so, and they have not appeared either on 23 November 2012, or today. Nor have they sought to exercise the liberty to apply, granted by His Honour.
As they were present when Craig J made his orders, and have been served with Pain J's directions, including notification of today's hearing (see affidavits of Mark Slater sworn 18 December 2012, and letters in Exhibit D), I granted the Council leave to proceed on an ex parte basis.
Mr Arch has relied again on most of the material he placed before Craig J. I need not repeat that evidence, but I respectfully agree with His Honour's summary of it (at [5]-[8], and [10]).
His Honour's principal order (Order 1 of 30 October) was:
1. Until further order, each of Mathew Mytka, 4Sight Creative Labs Pty Ltd and Jules Maher, by themselves, their servants and agents, are restrained from using, causing or permitting the use of the whole or any part of the premises situated at and known as 12 Chalder Street, Marrickville for the purpose of an entertainment venue, including a venue at which either live or recorded music is performed or provided and at which beverages are sold to those attending the premises.
That order stands, and, given the inactivity of the first three respondents since 30 October 2012, the expressed attitude of the fourth respondent, and the absence of any evidence suggesting any exercise of direction in favour of the respondents, beyond a stay order, I now make the following further orders:
(1) The First Respondent, by himself, his servants and agents, is restrained from using, causing or permitting the use of the whole or any part of the premises at 12 Chalder Street, Marrickville, for the purpose of a dwelling house or a dwelling.
(2) The Third Respondent, by herself, her servants and agents, is restrained from using, causing or permitting the use of the whole or any part of the premises at 12 Chalder Street, Marrickville, for the purpose of a dwelling house or a dwelling.
(3) The Fourth Respondent, by itself, its servants and agents, is restrained from using the whole or any part of the premises at 12 Chalder Street, Marrickville, for the purpose of an entertainment venue, including a venue at which either live or recorded music is performed or provided and at which beverages are sold to those attending the premises.
(4) The Fourth Respondent, by itself its servants and agents, is restrained from using the whole or any part of the premises at 12 Chalder Street, Marrickville, for the purpose of a dwelling house or a dwelling.
(5) Orders 1, 2 and 3 are stayed until 5 March 2013.
(6) Exhibits A, B and C are returned.
(7) The applicant is directed to serve on all respondents the orders I have made, but also a copy of these reasons.
Decision last updated: 05 February 2013
0