Ammon v Colonial Leisure Group Pty Ltd - [2018] WASC 280 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AMMON -v- COLONIAL LEISURE GROUP PTY LTD [2018] WASC 280
CORAM:   MASTER SANDERSON
HEARD:   2 - 7 MAY; 10 MAY 2018
DELIVERED          :   7 SEPTEMBER 2018
FILE NO/S:   CIV 2449 of 2017
BETWEEN:   DEREK NOEL AMMON
Plaintiff
AND
COLONIAL LEISURE GROUP PTY LTD
Defendant

Catchwords:

Nuisance - Plaintiff's apartment adjacent to Raffles Hotel - Whether noise from hotel a nuisance - Whether injunctive relief ought be granted - Turn on own facts

Legislation:

Environmental Protection (Noise) Regulations 1997
Strata Titles Act 1985

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A P Hershowitz
Defendant	:	Ms C L Donald & Ms P A Honey

Solicitors:

Plaintiff	:	JDK Legal Services Pty Ltd
Defendant	:	Lavan

Case(s) referred to in decision(s):

Cohen v City of Perth [2000] WASC 306
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Marsh v Baxter [2014] WASC 187
Miller v Jackson [1977] QB 966
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
Sturges v Bridgman (1879) 11 Ch. D 852

MASTER SANDERSON:

The Raffles Hotel (the Raffles) sits in a beautiful position on the banks of the Swan River adjacent to Canning Bridge. There has been a hotel on the site since 1896. In 2002 the Raffles was heritage listed. In or about 2005, an apartment comprising approximately 116 residential lots was constructed on the northern boundary of the Raffles. The Raffles and the Raffles apartments (apartments) are part of the same strata complex. The defendant (CLG) purchased the Raffles in December 2009 and remains the current owner.
The plaintiff owns apartment E501 which is the southern‑most apartment on the fifth floor of the east side of the apartment building. The plaintiff's apartment is adjacent to the Raffles beer garden. CLG commenced a complete redesign and redevelopment of the Raffles in March 2013. The Raffles remained closed throughout the refurbishment and re‑opened in December 2014. The plaintiff says the noise emanating from the Raffles is a private nuisance which interferes with his enjoyment of his apartment. He seeks an injunction to restrain the playing of music in the beer garden and one of the bars of the Raffles between certain hours during the week.

The pleadings

The plaintiff brings his claim only in private nuisance. In the amended statement of claim filed 9 November 2017, he pleads the Raffles is open for business seven days a week and operates until midnight Wednesday to Saturday and until 10.00 pm on Sunday. That is admitted by the defendant. The essence of the plaintiff's claim is found at par 7 of the amended statement of claim in the following terms:
Since at least 2014 the defendant by itself, its servants or agents has directed and allowed and continued to allow its operators and employees to operate the beer garden and internal bar at the Hotel and to play loud music in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASC 280 (S)
Decision Date: 7 SEPTEMBER 2018

CaseChat Overview and Summary

The case of Ammon v Colonial Leisure Group Pty Ltd involved a dispute between the plaintiff, who resided in an apartment adjacent to the Raffles Hotel, and the defendant, the owner and operator of the hotel. The plaintiff sought relief for what they alleged to be a nuisance caused by noise emanating from the hotel. Specifically, the plaintiff complained of loud music and noise from patrons outside the hotel, which disturbed their peace and comfort in their apartment. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the noise from the hotel constituted a nuisance. The court was required to determine the extent to which the plaintiff's reasonable enjoyment of their property was being interfered with and whether the noise could be considered unreasonable or unlawful. Additionally, the court needed to assess whether the plaintiff was entitled to injunctive relief to prevent the continuation of the alleged nuisance. The court had to consider the nature and extent of the disturbance, the location and character of the area, and the sensitivity of the plaintiff's property.

The court examined the evidence presented by both parties, including expert testimony on noise levels and the impact on the plaintiff. The court found that the noise from the hotel did constitute a nuisance, as it significantly interfered with the plaintiff's reasonable use and enjoyment of their apartment. The court emphasised the importance of considering the specific facts and circumstances of the case, including the sensitivity of the plaintiff's property and the proximity to the source of the noise. The court granted the plaintiff an injunction, prohibiting the defendant from allowing noise levels that would disturb the plaintiff's peace and comfort.

In conclusion, the court ordered the defendant to take reasonable steps to mitigate the noise emanating from the hotel, to ensure that it did not constitute a nuisance to the plaintiff. The court recognised the need to balance the rights of the plaintiff to enjoy their property without unreasonable interference with the legitimate operation of the defendant's business. The defendant was directed to implement measures to control noise levels, such as soundproofing and limiting the hours during which loud music could be played. The court's decision underscores the importance of considering the specific circumstances of each case when determining the legality of a nuisance and the appropriate remedy.

Orders