Marrickville Council v Mytka
[2012] NSWLEC 244
•30 October 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Marrickville Council v Mytka [2012] NSWLEC 244 Hearing dates: 30 October 2012 Decision date: 30 October 2012 Jurisdiction: Class 4 Before: Craig J Decision: 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.
2. Direct that the first, second and third respondents file and serve any evidence upon which they propose to rely by 4.00pm on Thursday 15 November 2012.
3. Stand over the proceedings to Friday 23 November 2012 for further directions and to fix a date for hearing.
4. Note that the only issue remaining for determination relates to the residential use of the premises at 12 Chalder Street, Marrickville.
5. Costs reserved.
6. Liberty to apply on two working days' notice.
Catchwords: INTERLOCUTORY ORDERS - application for urgent injunction to restrain use of warehouse building as entertainment facility - whether temporary injunction should be granted - serious question to be tried - alleged use of premises required development consent under Marrickville Local Environmental Plan 2011 - development consent for alleged use not granted - balance of convenience - evidence of alleged use continuing despite issue of emergency order - interlocutory injunction granted Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Interlocutory applications 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: M Arch (solicitor) (Applicant)
N/a (Respondents)
Concordia Pacific (Applicant)
Self represented (First respondent)
Self represented (Second respondent)
Self represented (Third respondent)
No appearance (Fourth respondent)
File Number(s): 41088 of 2012
EX TEMPORE Judgment
By a summons filed on 24 October 2012 Marrickville Council (the Council) seeks a number of orders directed to the use of premises known as 12 Chalder Street, Marrickville. Those premises are said to comprise what appears to be a warehouse type building.
By notice of motion filed that same day, the Council seeks interlocutory relief to restrain the continued use of those premises pending final determination of these proceedings. There are four respondents named in the Council's summons and notice of motion. Only three of those respondents, namely Mathew Mytka, 4Sight Creative Labs Pty Ltd and Jules Maher, are persons or entities against whom interlocutory relief is sought.
When the motion came on for hearing today, both Mr Mytka and Ms Maher appeared, indicating that they wished to have legal advice in order to consider their position in relation to these proceedings. It was explained to them that I was prepared to consider the application for injunction on the basis of making only an interim order, if entitlement to an order was established, affording them time within the next week, if that was required, to seek that legal advice and then return in order to argue whether such an injunction should be continued. I foreshadowed that course as the Council indicated that it wished to proceed with its application today, notwithstanding the absence of any legal representation for Mr Mytka, 4Sight Creative Labs Pty Ltd, of which Mr Mytka is the sole director, and Ms Maher.
Affidavit evidence has been read on behalf of the Council. Those affidavits comprise an affidavit of Geoffrey Robert Norman sworn 22 October 2012, an affidavit of Michael Simmons sworn the same day, as well as an affidavit of Lusha Zhang also sworn on 22 October.
Mr Norman is a town planner employed by the Council. He deposes to the zoning of the land and inspections that were carried out by him in company with Mr Simmons on 27 September 2012. His evidence reveals that premises known as 12 Chalder Street, Marrickville are subject to the land use controls imposed by Marrickville Local Environmental Plan 2011. Pursuant to that Plan, the premises are zoned general industrial. Development upon land so zoned is controlled by the land use table pertaining to that zone and, in short, identifies those purposes for which development consent may be granted and those purposes for which development is prohibited. It is not suggested that the use which I will later describe as being made of the premises by the respondents is prohibited, but falls within the category of development for which development consent must be sought and obtained before that use is able to be carried out. The relevant planning documents have been tendered in support of this evidence.
The evidence of Mr Norman further indicates that upon a search of the Council records, at least carried out sufficiently for the purpose of an interlocutory application, no development consent exists in respect of the premises, save perhaps for an old consent related to automobile repairs to be carried out on the premises.
Mr Simmons is employed by the Council as a fire safety officer. He made a number of observations recorded in his affidavit pertaining to the condition of the premises and the equipment that was contained within them that might be directed to suppression of fire. Without reciting the detail of the material contained in his affidavit, it is sufficient to record that, based on his observations, the premises do not comply with the National Construction Code for the safety of premises used or intended to be used for the purpose of providing any form of public entertainment.
There appears to be a dispute as to the accuracy of observations made by Mr Simmons but that dispute is identified from the Bar table on the part of Mr Mytka and Ms Maher rather than by any evidence filed at this point in time. The evidence of Mr Simmons would suggest that the absence of compliance with the National Construction Code in many respects identifies a very significant fire risk in respect of the premises, in particular the capacity of occupants of the premises to evacuate in large numbers should a fire event occur. He also identified materials used within the premises which, according to his opinion, do not accord with the requirements of the National Construction Code and have a capacity to ignite readily in the event of fire. All of those matters, in combination, lead to the conclusion by him that the premises present an "immediate and significant risk to health and safety".
The evidence of Ms Zhang, a private investigator engaged by the Council, is that she attended the premises on the evening of 13 October 2012, a date on which an internet site indicated that a function of some kind was to be held. Her evidence revealed that upon arrival at the premises, a fee was paid to enter, that fee being described as a cover charge. While in the premises beverages, including alcoholic beverages, were able to be purchased by acquiring a ticket at a cost of $5. The cost of the ticket was said to be the cost of any particular drink that the holder of the ticket sought to acquire over the counter. Recorded music was played and live musical performances took place.
There has also been tendered in evidence a volume of material which represents print out of material from the internet, in particular a Facebook page which is identified as being Spaceport One. That printed material relates to activities conducted under that name at the Marrickville premises. The Facebook page notifies a number of activities or events apparently of an entertainment and musical nature to which those accessing the website are invited to attend. That same site also indicates the time at which the premises will open for the event, as well as indicating the cost of admission. An internet domain name search produced in evidence indicates that 'Spaceport-one.com" was registered by Mathew Mytka on behalf of 4Sight Creative Labs Pty Ltd
By s 76A of the Environment Planning and Assessment Act 1979 (the EPA Act) the carrying out of development which requires development consent but for which no development consent is held, is prohibited. The carrying out of development without consent is, in accordance with that section, a breach of the EPA Act: s 122. The Council relies upon that breach in order to found its application for an interim injunction.
Based upon the material that I have briefly recited, being the only material before me at the present time, I am satisfied that there is a serious question to be tried. That serious question concerns a potential breach of the EPA Act, as the evidence presently filed supported, namely the conduct of activities within the subject premises for which no development consent is held.
The need for an interim injunction is said to arise because of the serious fire safety risks that are presented by the premises in their present condition, particularly if they are used by a large number of people. Based on the National Construction Code, the premises could accommodate several hundred people. Observations made by Ms Zhang on the occasion of her visit on 13 October 2012 indicated that there were some 80 people in the premises late in the evening. Clearly the safety of those who attend the premises is a matter of some significance when determining whether or not an interim order should be granted.
The balance of convenience appeared to me to present some difficulty for the Council, albeit not insurmountable. It is clear on the evidence before me that the Council has been aware of a complaint made in respect of the use of the premises dating back to 4 September 2012. The evidence of Mr Norman was that upon receipt of that complaint he commenced his investigations but did not inspect the premises until 27 September 2012. Having carried out that inspection, on the following day an emergency order was issued under s 121B of the EPA Act, requiring immediate cessation of the use of the premises. The order was founded upon the absence of a development consent for the use but its issue and service as an emergency order was engendered by the concern about fire safety. It was not until 24 October 2012 that the present proceedings were commenced.
Against what appears to be a delay of some significance when contemplating the grant of interlocutory relief is evidence that even after service of the emergency order on 28 September 2012, entertainment events had been promoted via the internet, involving use of the premises for some form of musical entertainment, potentially attended by a large number of people. One of those events was the event attended by Ms Zhang on 13 October 2012. The evidence reveals that, more recently, an event was held or at least promoted to be held only last Friday, 26 October, that is after the present notice of motion was served.
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.
It is noteworthy that on the hearing of the present motion, Mr Arch, who appeared for the Council, indicated that the interim order that is sought is not intended to extend to any restraint upon the residential use of the premises. That position is noted, having regard to the emergency order given on 28 September which, on its face, would seem to require that any use of the premises should not be continued. However, debate about the effect of that order is for another day.
For all these reasons I am prepared to make an interlocutory order restraining the use of the premises in the manner observed by Ms Zhang and supported by the internet material which has been provided to me. That evidence suggests that the purpose of use has involved the attendance of persons in order to enjoy or participate in some form of musical entertainment either by recorded music or by live musicians. My order will be framed accordingly. I also propose to direct the respondents to file the evidence upon which they propose to rely so that the question of residential use of the premises can be brought to a speedy determination.
The orders that I make are as follows:
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. 2.Direct that the first, second and third respondents file and serve any evidence upon which they propose to rely by 4.00pm on Thursday 15 November 2012.
3. Stand over the proceedings to Friday 23 November 2012 for further directions and to fix a date for hearing.
4. Note that the only issue remaining for determination relates to the residential use of the premises at 12 Chalder Street, Marrickville.
5. Costs reserved.
6. Liberty to apply on two working days' notice.
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Decision last updated: 02 November 2012
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