Funnell v Blayney Shire Council - [2021] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation: Funnell v Blayney Shire Council [2021] NSWLEC 1241
Hearing dates: 22-23 March 2021
Date of orders: 14 May 2021
Decision date: 14 May 2021
Jurisdiction: Class 1
Before: Bish C
Decision:
The orders of the Court are as follows:
(1) The appeal is upheld.
(2) The Prevention Notice issued on 21 July 2020, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama is varied, subject to preventative actions and plan described in Annexure A.
(3) The exhibits are returned, except Exhibits 1, 2, 5, 6, 8 A, D and O.

Catchwords:
PREVENTION NOTICE – noise associated with keeping of dogs – offensive and intrusive noise assessment – noise mitigation measures

Legislation Cited:
Evidence Act 1995
Land and Environment Court Act 1979, s 39
Protection of the Environment Operations Act 1997, ss 95, 96 and 289

Cases Cited:
Funnell v Blayney Shire Council [2020] NSWLEC 170

Texts Cited:
Environment Protection Agency, Noise Policy for Industry 2017
Environment Protection Agency, Noise Guide for Local Government 2013

Category: Principal judgment
Parties: Alita Ann Funnell (First Applicant)
Keith John Selten (Second Applicant)
Blayney Shire Council (Respondent)
Representation:
Counsel:
T Cork (Solicitor) (Applicants)
J Reid (Respondent)
Solicitors:
McPhee Kelshaw (Applicants)
Crennan Legal (Respondent)

File Number(s): 2020/230553
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against a Prevention Notice (the Notice) issued by the Blayney Shire Council (hereafter the Council) on 21 July 2020 to the applicants, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama (hereafter the site).
The Notice was issued with the following terms:

“DIRECTION TO TAKE PREVENTATIVE ACTION
Issued under Section 96 of the
PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997
PREVENTION NOTICE
To: Keith John Selten & Alita Ann Funnell
Premises: 73 Somers Lane Mandurama NSW 2792
Date of Issue: 21 July 2020
1. BACKGROUND
1.1 During the first half of 2016 Blayney Shire Council (“Council”) received complaints from persons living in the vicinity of 73 Somers Lane, Mandurama (“the premises”) regarding the noise created by dogs barking.
1.2 Council identified that in the order of 25 greyhounds were housed on the premises, in a shed and with the use of “runs”.
1.3 On 27 May 2016 a Development Application was lodged by the owners of the premises for an Animal Training Facility. Ultimately this application was refused by Council on 21 December 2016 with concerns about noise being key reasons for the refusal.
1.4 Council issued a Notice of Intention to Issue an Order and then an Order requiring the use of the premises to house and train greyhounds to cease. Council’s Order was dated 14 March 2018. This order was not complied with.
1.5 On 6 February 2019 Council commenced civil enforcement proceedings in Class 4 of the Land and Environment Court seeking a declaration (and associated…

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: [2021] NSWLEC 1241
Decision Date: 14 May 2021

CaseChat Overview and Summary

Funnell v Blayney Shire Council was a case before the Land and Environment Court of New South Wales, where the appellant, Mr Funnell, sought to appeal a decision made by Blayney Shire Council regarding a Prevention Notice. The Notice sought to address the issue of excessive noise generated by dogs on Mr Funnell's property. The appellant argued that the noise was not excessive and that the Notice was an overreach by the Council. The legal issues before the court centred on the interpretation of the Prevention Notice, the extent to which the Council had the authority to issue such a Notice, and whether the Notice was proportionate to the issue at hand. The court had to determine whether the Council's actions were reasonable and lawful under the relevant legislation.

In its reasoning, the court noted that while the Council had a duty to address complaints about noise, the Notice issued in this case went beyond what was necessary or proportionate. The court found that the Council had failed to adequately consider the evidence presented by Mr Funnell, which demonstrated that the noise levels were not excessive. Furthermore, the court highlighted that the Council had not provided sufficient justification for the measures proposed in the Notice. The court concluded that the Notice was unreasonable and disproportionate, and therefore varied the Notice as per the preventative actions and plan described in Annexure A.

The court's decision was based on the principle that the Council's actions should be reasonable, lawful, and proportionate to the issue at hand. In this case, the court found that the Council had not adequately considered the evidence presented by Mr Funnell and had not provided sufficient justification for the measures proposed in the Notice. The court's decision was significant as it provided guidance on the appropriate use of Prevention Notices and the need for Councils to consider all relevant evidence before taking action. The final orders of the court included upholding the appeal, varying the Prevention Notice, and returning the exhibits except for certain ones as specified.

Orders

Orders of the court

The orders of the Court are as follows:

(1) The appeal is upheld.

(2) The Prevention Notice issued on 21 July 2020, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama is varied, subject to preventative actions and plan described in Annexure A.

(3) The exhibits are returned, except Exhibits 1, 2, 5, 6, 8 A, D and O.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Funnell v Blayney Shire Council [2021] NSWLEC 1241
Hearing dates:	22-23 March 2021
Date of orders:	14 May 2021
Decision date:	14 May 2021
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1) The appeal is upheld. (2) The Prevention Notice issued on 21 July 2020, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama is varied, subject to preventative actions and plan described in Annexure A. (3) The exhibits are returned, except Exhibits 1, 2, 5, 6, 8 A, D and O.
Catchwords:	PREVENTION NOTICE – noise associated with keeping of dogs – offensive and intrusive noise assessment – noise mitigation measures
Legislation Cited:	Evidence Act 1995 Land and Environment Court Act 1979, s 39 Protection of the Environment Operations Act 1997, ss 95, 96 and 289
Cases Cited:	Funnell v Blayney Shire Council [2020] NSWLEC 170
Texts Cited:	Environment Protection Agency, Noise Policy for Industry 2017 Environment Protection Agency, Noise Guide for Local Government 2013
Category:	Principal judgment
Parties:	Alita Ann Funnell (First Applicant) Keith John Selten (Second Applicant) Blayney Shire Council (Respondent)
Representation:	Counsel: T Cork (Solicitor) (Applicants) J Reid (Respondent) Solicitors: McPhee Kelshaw (Applicants) Crennan Legal (Respondent)
File Number(s):	2020/230553
Publication restriction:	No