South Sydney City Council v Coe
[2000] NSWLEC 186
•08/17/2000
Land and Environment Court
of New South Wales
CITATION: South Sydney City Council v Coe [2000] NSWLEC 186 PARTIES: APPLICANT
RESPONDENT
South Sydney City Council
CoeFILE NUMBER(S): 40118 of 2000 CORAM: Cowdroy J KEY ISSUES: Interlocutory Relief :- Interlocutory relief granted - orders suspended LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government (Consequential Provisions) Act 1993 s 68CASES CITED: DATES OF HEARING: 17/8/00 EX TEMPORE
JUDGMENT DATE :08/17/2000 LEGAL REPRESENTATIVES:
APPLICANT
Mr T Robertson (Barrister)SOLICITORS
Pike Pike & FenwickRESPONDENTS
SOLICITORS
Ms Coe by her agent Mr Oshlack, Mr Corowa & Mr Wilson
n/a
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40118 of 2000
CORAM: Cowdroy J
DECISION DATE: 17/08/00
Applicant
Respondent
1. Before the Court today is an application for an interlocutory injunction sought by South Sydney City Council (“the council”) against Isabel Coe (“the respondent”). The council seeks a declaration that the occupation of Victoria Park, Chippendale as a campsite referred to as a tent embassy without the consent of the council is in breach of the Local Government Act 1993 (“the LGA Act”) and the Environmental Planning and Assessment Act 1979 (“the EPA Act”) and a consequential restraining order.
2. The council seeks by way of interlocutory relief an order that the respondent cease occupation of Victoria Park as a campsite and/or tent embassy within 24 hours from the date of these orders and that until further order the respondent be restrained from occupying that land without obtaining consent pursuant to the LGA Act and the EPA Act.
3. In support of the application the council has provided affidavits from numerous parties. Such affidavits testify to the fact that the lands are within the area of management of the council, that a plan of management exists in relation to Victoria Park, that in respect of activities to be carried out in Victoria Park s 68 of the LGA Act requires certain of those activities to be carried out only with a prior approval of council. The table to s 68 of the LGA Act provides that prior permission must be obtained to install a temporary structure on the land, to hold a public meeting on community land or to operate the land as a camping ground. The park is zoned 6A Local Recreation under the South Sydney Local Environmental Plan 1998.
4. The evidence establishes that as part of the tent embassy certain structures are erected on the land, campfires and camping overnight has occurred, there have been organised events and that driving of vehicles onto the park has taken place and is continuing to take place. The evidence also establishes that there is no consent as required by s 68 of the LGA Act for such activities. That of itself would be sufficient to warrant the Court granting an interlocutory injunction.
5. In addition, there is evidence obtained in support of the application from the Local Area Commander of the Newtown Police who has expressed concerns, the most significant of which relates to the noise and disturbance which has been occasioned or which has the potential to be occasioned to the nearby residents. Secondly, and I shall quote from the two paragraphs from the affidavit of the Area Commander Vicky Eunice Arrenda sworn 10 August 2000:-
6.
In addition the campsite is located close to two major arterial roads, Parramatta Road and City Road. Parramatta Road is a secondary road for the Olympic Games and a primary road for residential traffic. City Road is a secondary road for traffic to and from the airport. If the group of persons gathered at the campsite was to grow in numbers and to become mobile, then it could pose a threat of a serious disruption to either or both of those two roads.
7. Royal Prince Alfred Hospital has been designated as the major hospital to receive persons requiring emergency medical treatment arising out of incidents during the Sydney Olympic Games and emergency vehicles passing to and from that hospital may do so in the vicinity of City Road or Parramatta Road. Those matters of public safety are of great significance in the matters which the Court has to weigh up in this application.
6. The campsite was established on 14 July 2000 in Victoria Park. Affidavits have been filed on behalf of representatives of Sydney University relating to various incidents which have occurred since 17 July 2000.
7. The evidence of nearby residents also establishes that they have been disturbed by noise and other disturbance arising from the campsite until the early hours of the morning. That evidence has been derived from two sources, namely a hotel located at 54-58 City Road, Chippendale and also from a hall of residence which is opposite the Victoria Park. It is unnecessary for me at this stage to consider the detail except to say there is prima facie evidence that disruption is taking place.
8. The council has provided evidence that the respondent is the spokesperson of the current activities which are taking place in the park. Various media releases have been attached to the affidavits which confirm that fact. The evidence also establishes that the activities carried out in the park are not supported by the New South Wales Aboriginal Land Council and that the Metropolitan Local Aboriginal Land Council, within whose boundaries Victoria Park is located.
9. On this application the Court is not concerned to consider whether the facts as adduced by the South Sydney Council would warrant final relief. Rather the Court is simply required to determine at this stage whether there is a serious question to be tried. That distinction is fundamental to understand the process that is being adjudicated upon this morning.
10. In summary the Court is not making any judgment in relation to the merits of the claim of the council but to determine whether the urgency of the matter as expressed by the witnesses in support of the council warrants relief. Nor is the Court concerned with political or other activities that might be engaged in by any person. The only question for this Court is whether the activities being conducted in the park are being conducted in accordance with the provisions of the relevant statute, namely the Local Government Act 1993.
11. The Court is satisfied that a prima facie case exists. The Court is mindful that a claim for interlocutory relief is being pressed. Mr Robertson, who appears for the council, has made it clear that his client would entertain an application for development and would consider it in order to determine whether appropriate regulation can be imposed on the activities of the camp or tent embassy in Victoria Park.
12. The respondent has said that she and her supporters have been encouraged in their activities by the Mayor and certain councillors of South Sydney City Council. That is a matter which the Court would also take into account if that were established upon the final hearing of the matter. In the meantime, a prima facie case having been established, the question of the balance of convenience must be considered. I am satisfied the balance of convenience is heavily in favour of the council and accordingly that interlocutory relief should be granted as sought.
13. Mr Robertson has indicated that his client is anxious that the respondents and those accompanying her negotiate with the council to regularise the activities which are being carried out at Victoria Park. For that reason he has suggested that the Court suspend any order until 12 noon next Wednesday which will be 23 August. That application is not opposed.
14. Accordingly the Court will make that interlocutory relief.
15. The Court orders:-
1. The respondent cease occupation of Victoria Park, Chippendale as a campsite and/or tent embassy.
2. Until further order the respondent be restrained from occupying Victoria Park, Chippendale as a campsite known as a tent embassy without first obtaining consent pursuant to the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979.
3. The Court suspends Orders 1 and 2 until 12 pm, Wednesday 23 August 2000.
4. The Court grants liberty to either party to apply to the Court on 24 hours notice for any other order that may be required.
5. The matter will be re-listed for further directions at 9.30am on Wednesday 23 August 2000.
6. Costs will be reserved.
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