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

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.

Keep reading for free

Create a free CaseChat account to read Ammon v Colonial Leisure Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WASC 280
Decision Date: 7 SEPTEMBER 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Ammon, and the defendant, Colonial Leisure Group Pty Ltd, concerning a claim of nuisance arising from the noise emanating from the defendant's hotel, Raffles Hotel, which was adjacent to the plaintiff's apartment. The plaintiff sought a declaration that the noise constituted a nuisance and an injunction to prevent further noise disturbances. The case was heard in the Supreme Court of Queensland.

The central legal issues the court had to address were whether the noise from the hotel constituted a nuisance under the common law and, if so, whether injunctive relief was appropriate in the circumstances. The court had to consider the nature and extent of the noise, its impact on the plaintiff's enjoyment of their apartment, and the availability and effectiveness of other remedies. Additionally, the court needed to weigh the plaintiff's right to peaceful enjoyment of their property against the defendant's rights and interests in operating the hotel.

The court found that the noise from the hotel constituted a nuisance. The noise was significant, occurring late into the night and affecting the plaintiff's ability to sleep and enjoy their apartment. The court acknowledged the hotel's right to operate but determined that the noise levels were unreasonable and the hotel had failed to take adequate measures to mitigate the noise impact on neighbouring properties. Given the substantial impact on the plaintiff, the court granted an injunction prohibiting the hotel from creating excessive noise that would disturb the plaintiff's enjoyment of their apartment. The court also ordered the hotel to implement reasonable measures to reduce the noise levels.

The court's final orders included a declaration that the noise from the hotel was a nuisance, an injunction preventing excessive noise disturbances, and an order for the hotel to take reasonable steps to mitigate the noise impact. The court emphasised the need for a balance between the rights of property owners to enjoy their property and the rights of businesses to operate, but found that in this case, the hotel's operations had to be adjusted to prevent a significant impact on the plaintiff's living conditions.

Orders