Buller Ski Lifts Limited v Skipmaster Pty Ltd

[1999] VSC 449

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 7458 of 1999

BULLER SKI LIFTS LIMITED AND ANOTHER	Plaintiffs
v.
SKIPMASTER PTY. LTD.	Defendant

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 NOVEMBER 1999
DATE OF JUDGMENT:	10 NOVEMBER 1999
CASE MAY BE CITED AS:	BULLER SKI LIFTS LTD. & ANOR. v. SKIPMASTER PTY. LTD.
MEDIA NEUTRAL CITATION:	[1999] VSC 449

---

CATCHWORDS:      Interlocutory injunction – Nuisance – Adjournment to permit defendant to attempt to abate nuisance.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. S.R. Horgan	Arnold Block Leibler
For the Defendant	Mr. S. Marks	Gadens Lawyers

HIS HONOUR:

1. The plaintiffs, Buller Ski Lifts Limited and Gro-Set Pty Ltd, are the occupiers of land in Mansfield Street, Thornbury, from which they operate a number of businesses, including the provision of food and services to restaurants, hotels and other food outlets at Mt Buller.

1. Opposite the plaintiffs' premises is an allotment of land owned by the defendant.  The defendant acquired the land in around July of 1998.  The area owned by the defendant is about five acres.  There used to be a school on the land and of more recent times a bakery.  The buildings occupied by the bakery are still on the land.  However, since it acquired the land the defendant has built a large workshop on it, a weighbridge and certain storage facilities.

1. The defendant conducts a contract garbage collection service for several local councils in and around Melbourne.  Its offices are located on the land and there is also an area of the land that is used to park approximately 30 garbage trucks owned and operated by it.  The trucks are parked in the open on the land on a dirt/clay surface, which comprises the majority of the yard's surface.

1. As part of its business the defendant collects garbage, green waste, being vegetable and garden matter, hard waste, being larger items of rubbish not suitable for weekly household collection, and recyclables, being bottles, cans, paper and cardboard.

1. The garbage and hard waste that is collected by the defendant is disposed of in land fills.  The green waste is delivered to a recycling company where it is mulched.  It is apparently only the recyclables that are delivered to the land in Mansfield Street.  No other rubbish is delivered to, treated or stored on the land.  The facilities on the land are used to sort the recyclables and once sorted the recyclables are then bailed and packed for export.

1. The sorting, bailing and packing of the recyclables is conducted in the building that used to be the bakery.  The building has approximately 60,000 square feet of useable floor space undercover.

1. The plaintiffs' complain that the defendant's use of the land has generated offensive odours, dust, dirt and other airborne sediments which have spread on to its land.  In short, that the defendant is and has been committing a nuisance.

1. On 5 November 1999 the plaintiffs filed a writ in the court by which they seek, inter alia, an injunction to restrain the defendant by itself, servants or agents or otherwise from causing or continuing that nuisance.

1. I now have before me a summons filed on behalf of the plaintiffs by which they seek an injunction restraining the defendant from causing or allowing offensive odours, dust, dirt and other airborne sediments emanating from its land from entering on to the plaintiffs' land and causing a nuisance on it.

1. The defendant, by its director Joe Italiano, admits there are problems associated with the use of its land but maintains that they are nothing of the magnitude complained of by the plaintiffs.

1. One aspect of the defendant's land which does cause a problem is the area of land over which the defendant's garbage trucks operate and which has a dirt/clay surface.

1. A further problem is caused by papers blowing from the land on to the street and on to the plaintiffs' property. 

1. It would appear from the affidavit of Joe Italiano, sworn 9 November 1999, that the defendant has of recent months attempted to eliminate the problems created by its operations on its land.  In the first place it has engaged a company called P&O Cleaners to sweep Mansfield Street every second day and, in the second place, it has commenced laying a combination of crushed rock and asphalt on its property to cover the dirt/clay area of the yard.

1. It is said that when properly laid the crushed rock and asphalt will form a hard bitumen surface and that thereafter no dust or foreign matter should emanate from its land on to that of the plaintiffs.  However, for reasons spelled out in Italiano's affidavit, that work will not be completed until the end of this month.

1. On any view of the matter it is my opinion that there is a serious issue to be tried.  The real question for me to determine, however, is where the balance of convenience lies.

1. If I was to grant the plaintiffs' application at this stage of the proceeding that would have the effect of bringing the defendant's business to a halt, causing it to suffer significant financial loss.  On the other hand, it would seem equally clear that because of what the plaintiffs' perceive to be the nuisance caused by the defendant's operations, they have been forced to incur and are incurring additional expenditure in the way of employing extra cleaning staff to alleviate the problems.

1. Having considered the matter overnight, it is my opinion that the correct course to follow at this stage is to adjourn the further hearing of the plaintiffs' application for a period of four weeks to enable the defendant to complete the work it is presently undertaking to seal the surface of its yard.  In the meantime, however, and with a view to further alleviating the problems which have arisen, I think it is appropriate to restrain the defendant, its servants and agents from driving in and out of the Mansfield Street entrance of the premises, save and except for those trucks which because of their size, either loaded or unloaded, are too large to gain access to the defendant's premises via the Matisi Street frontage.  In four weeks time a better picture will have emerged and the whole subject of the application can be reconsidered. 

1. Accordingly, I make the following orders in the proceeding:

1. I adjourn the further hearing of the plaintiffs' summons filed in the court on 5 November 1999 to 8 December 1999.

1. I order that until 4.15 p.m. On 8 December 1999 or further order the defendant by its servants or agents or howsoever otherwise be restrained from driving its trucks into and out of its Mansfield premises at Thornbury, save and except for those trucks which because of their size, either loaded or unloaded, are too large to gain access to the defendant's premises via the Matisi Street frontage of the premises.

1. I reserve to the parties liberty to apply.

1. I reserve the costs of the application.

1. I direct that any further affidavits to be relied upon by the plaintiffs' be filed and served by 4 p.m. On Thursday 2 December.

1. I direct that any further affidavits to be relied upon by the defendant be filed and served by 12 noon on Monday 6 December.

1. I direct that this order be prepared by the solicitors for the plaintiff and be brought to me for authentication.

---