Tenterfield Shire Council v Budd

[2016] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tenterfield Shire Council v Budd [2016] NSWLEC 89
Hearing dates:	10 June 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. Orders in accordance with Applicant’s notice of motion dated 10 June 2016 (as amended).  2. The Council is not required to give an undertaking as to damages.
Catchwords:	INTERLOCUTORY RELIEF – exercise of discretion to issue injunction restraining music festival commencing following day.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 2007, r 4.2(3) Tenterfield Local Environmental Plan 2013, cl 2.8
Category:	Procedural and other rulings
Parties:	Tenterfield Shire Council (Applicant) Alie Budd (First Respondent) Zero DB Pty Ltd (Second Respondent) Jubullum Aboriginal Land Council (Third Respondent)
Representation:	COUNSEL: A Pearman (Applicant) N/A (Respondent)   SOLICITORS: Bartier Perry (Applicant) N/A (Respondent)
File Number(s):	16/178381

EX TEMPORE Judgment

1. I have before me an urgent ex parte interlocutory injunction application by Tenterfield Shire Council (“the Council”) in the form of a notice of motion and summons and numerous affidavits that have been filed today in court at 4.15pm. The notice of motion seeks various orders in relation to the First, Second and Third Respondents in relation to a property on Gap Road, accessed via Plains Station Road, Tabulam. I am informed that the Third Respondent the Jumbullum Aboriginal Land Council is the owner of that property.

2. The focus of this action is an expressed intention by the First Respondent, Mr Alie Budd, and the Second Respondent, a related company Zero DB Pty Ltd, to hold a music festival known as the Omega Festival. According to the affidavit material before me the festival is slated to commence at 2pm tomorrow 11 June 2016 at Tabulam. In terms of the material filed in support of the application the affidavit of Mr Ruprai, Director of Strategic Planning and Environmental Services at the Council sworn 10 June 2016 was read. In that capacity Mr Ruprai is aware of the planning regime which applies in relation to the area in which the property is located. He advised that the property is zoned RU1 Primary Production under the Tenterfield Local Environmental Plan 2013 (“LEP”). An extract of the LEP is provided. Mr Ruprai advised that pursuant to cl 2.8 of the LEP, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days in any period of 12 months.

3. Theoretically this activity could obtain development consent if applied for. Mr Ruprai advises me that the Council has not issued a development consent or any other approval in respect of the temporary use of the property for a music festival. Mr Ruprai also advises that he only became aware on 8 June 2016 that a music festival was potentially to be held at the property. That is only some two days ago. It was his understanding at that stage that no address had actually been issued by the organisers in relation to the music festival.

4. Mr Ruprai attests in the affidavit to the immediate arrangements made on 8 June 2016 for the attendance of an authorised council officer to inspect the property. That authorised officer has also sworn an affidavit read before me. Mr Ruprai identifies the type of activity identified by the council officer in terms of number of vehicles, erection of numerous support poles and other equipment such as a stage and a marquee, consistent with an intention to hold a music festival. He attests to a conversation with a neighbouring council officer who was familiar with attempts to hold similar events in the neighbouring Kyogle Shire Council area. Through that contact he was advised of an email address and possible telephone number of the potential organisers of the music festival which is the subject of this application. He was therefore caused to make inquiries in relation to the website for the Omega Festival and subsequent to doing that, on 9 June – that is, yesterday – contacted Council’s solicitor Mr Loether of Bartier Perry to say that the Council wished to take action to restrain the temporary use of the property for a music festival.

5. Mr Ruprai attests to the particular concerns of the Council in relation to the unauthorised use, identifying noise, waste control, food and water provision, the provision of amenities generally, traffic generation, whether or not there was going to be safe access to and from the site, the structural adequacy of the structures being erected on the site, whether or not there was safe exit in an area that is bushfire prone mapped land, and concern about potential environmental impacts on nearby watercourses.

6. Mr Ruprai understands there may be as many as 5,000 people attending the festival and he has carried out a title search which identifies that the Jumbullum Local Aboriginal Land Council (the Third Respondent) is the current owner. He also attests to having a discussion with the chief executive officer of the Third Respondent who advised him that there had been no consent given by that council for an activity such as a music festival on the land.

7. The affidavit of Mr Mumford council ranger sworn 10 June 2016 was read. He attended the property on 8 June 2016 and identified a number of activities such as vehicles and a large generator, other structures such as large poles and forklifts, and the clearing of vegetation, all consistent with the potential holding of a music festival at the land.

8. I also have the benefit of two affidavits from the Council’s solicitor Mr Loether, both sworn 10 June 2016. The more substantial of those affidavits attests to the advice of Mr Ruprai from the Council and his instructions to proceed against the holders of the music festival, and also attests to a discussion he had with Sergeant Crotty a police officer. The importance of that conversation in particular is that a person Mr Alie Budd was named by the sergeant as being the person responsible for holding the music festival.

9. Also attached to his affidavit are various printouts from Facebook which identify the process for organising the event which is slated to commence on 11 June at 2pm at Tabulam and proceeding until 13 June 2016. Mr Loether also attests to the fact that he has also made inquiries with Kyogle Shire Council in relation to a development application lodged with that council. The email contact (for that application) is [email protected]. Mr Loether advises that email address is connected to the company Zero DB Pty Ltd the Second Respondent. He has caused to be conducted a search to identify that Zero DB Pty Ltd is a legal entity registered with the Australian Securities and Investments Commission. It is very clear this is an event that is largely organised through Facebook.

10. The further affidavit from Mr Loether sworn 10 June 2016 is that at 2pm today he was informed by Mr Ruprai that Mr Ruprai had spoken to the chief executive officer of the Third Respondent the owner of the land. Mr Loether confirms that he has the Third Respondent's email address and has attached his affidavit including the summons, notice of motion, and the three affidavits in support of the motion to an email, sent to the Third Respondent and also to [email protected].

11. In terms of the matters about which I must be satisfied in determining such an urgent interlocutory injunction application, first is whether there is a serious question to be tried. The material in the affidavits that I have just referred to together with the terms of the LEP clearly demonstrates that there is a serious question to be tried given the lack of development consent for a temporary use which may have environmental and amenity impacts and the Council’s concerns about the safety of participants. Of particular importance in this application is the balance of convenience. The matter has been brought on ex parte very close to the event, it being less than 24 hours before the event. It is clear from the affidavit material of the Council’s officers that they only became aware two days ago of this event. The officer Mr Ruprai has acted expeditiously in having a site inspection conducted immediately and also promptly instructing the Council’s solicitor to make this application to the Court.

12. It seems to me therefore that I should exercise my discretion so close to the event to issue an order in some of the terms sought in the notice of motion. I will discuss with the parties more precisely what the terms of the orders should be before making these. No order should be made against the Third Respondent the owner given the evidence of its lack of consent for the event.

13. One other matter I should mention is that the Council has not offered the usual undertaking as to damages, which is generally required in making ex parte urgent interlocutory injunction applications. Given that the Council essentially acts in the public interest in restraining potential breaches of the Environmental Planning Assessment Act 1979 (NSW) in this application I apply r 4.2(3) of the Land and Environment Court Rules 2007 (NSW) and do not require the Council to give an undertaking as to damages.

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Decision last updated: 27 July 2016