The Accused was charged with a breach of section 49 of the Building Act for conducting a public entertainment without an occupancy permit being issued. Section 49 provides as follows:
A person must not conduct [4] a public entertainment in a place of public entertainment unless an occupancy permit has been issued under this Division which permits its use for the entertainment.
Penalty: 240 penalty units, in the case of a natural person.
1500 penalty units, in the case of a body corporate.
The occupier had converted an old factory/ warehouse into a function centre/ event space. No building permit was obtained for the fit out.
A building notice was issued requiring the owner to show cause as to why:
why the use, and occupation of the building as a class 9b classification, reception centre and event space should not be prohibited; and
path of travel to exits including access to a road or open space are obstructed in that the minimum unobstructed exit width are not achieved;
the building lacks emergency lighting, and
The Warehouse if occupied as a night club/discotheque or the like does not have:
An automatic smoke exhaust or
A sprinkler system with fast response sprinkler heads
On the same day the building order was issued at the informant’s request, Planning Enforcement Officers employed by Council purchased tickets online for an event advertised at the Property two days later.
The headline act for the event was a drum and bass electronic music producer.
The officers attended the event and made the following observations:
- The venue was busy but not close to capacity or uncomfortably crowded.
- A DJ was playing on a stage in front of a dance floor. The dance floor was busy, but there was still space to move around freely on it.
- Adjacent to the dance floor was an open area with people standing around talking or sitting in seats. This area did not have many people in it. The bar was also located in this area and the line there was either 1-2 persons deep or no line at all.
- There were around 150-200 people in attendance.
No occupancy permit was issued and the occupier was charged under section 49 of the Building Act for conducting a public entertainment in a place of public entertainment without an occupancy permit having been issued permitting the use of the place for the entertainment.
The maximum penalty at the time of the offence was $272,610.00.
Magistrates’ Court Decision
In July 2023, the Accused appeared in the Broadmeadows Magistrates’ Court and entered a plea of guilty to the charge.
The matter was heard before His Honour Magistrate Stary who found the charge proven.
The Accused had no prior matters. Russell Kennedy Lawyers submitted to the Court the following amongst other things in relation to the charge:
- the offending was serious and the court should have regard to the main purpose of the Building Act to provide for the regulation of building and building standards;
- also have regard to the objectives of the Building Act including to protect the safety and health of people who use buildings and places of public entertainment;
- there was a commercial element to the offending;
- aggravating factor that a previous one off occupancy permit was issued which ought to have made the Accused aware that an occupancy was required; and
- a strong message of general deterrence needed to be sent.
The Accused through their Counsel submitted that they were aware of the seriousness of the incident and due to the Pandemic the newly established business had lost a lot of income which contributed to the decision to run the event.
The Accused was remorseful, had engaged relevant experts since to work through all the outstanding issues and has not offended again.
His Honour stated that the safety of people is paramount and this was reflected in the harsh penalty provision and that he must have regard to the maximum penalty. His Honour also noted that the Accused had no prior history, accepted responsibility and entered a plea of guilty at an early opportunity.
His Honour imposed a fine and costs order without conviction totalling $16,655.73.
Those running public entertainment need to ensure the appropriate occupancy permit is issued before running a public entertainment.