Kazcorp Holdings (Canterbury) Pty Ltd v Canterbury-Bankstown Council

[2023] NSWLEC 1056

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kazcorp Holdings (Canterbury) Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1056

Hearing dates:

Conciliation Conference 3 and 6 February 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)      The appeal is upheld.

(2) Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the Prevention Notice (POEO-4794/2022) dated 26 May 2022 issued by the Respondent to the Applicant with respect to the premises at No G01, 364 Canterbury Road, Canterbury is modified in the form attached at Annexure A.

Catchwords:

APPEAL – prevention notice – conciliation conference – agreement between the parties - orders

Legislation Cited:

Land and Environment Court Act 1979, ss 17, 34

Protection of the Environment Operations Act 1997, Pts 4.3, and 9.2, ss 95, 96 and 292

Texts Cited:

Association of Australian Acoustical Consultants, Technical Guideline Child Care Centre Noise Assessment Version 3.00, September 2020

Category:

Principal judgment

Parties:

Kazcorp Holdings (Canterbury) Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2022/174598

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to Pt 9.2 of the Protection of the Environment Operations Act 1997 (POEO Act) being an appeal against the Prevention Notice (POEO-4794/2022) dated 26 May 2022 issued by the Respondent to the Applicant (the Prevention Notice) with respect to the premises at No G01, 364 Canterbury Road, Canterbury legally described as Lot 100 SP 97362 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 3 and 6 February 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the terms of the Prevention Notice.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 292 of the POEO Act to hear and determine the appeal.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised such as the terms of s 292 of the POEO Act to hear and determine the appeal.

7. These proceedings are brought under Class 1 proceedings pursuant to s 17(a) of the LEC Act being an appeal of a Prevention Notice issued by the Respondent under s 96 of the POEO Act. A Prevention Notice may be issued as set out in Pt 4.3 of the POEO Act and s 96 provides as follows:

S 96   Preventive action

(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a)  direct the occupier of the premises,

(b)  direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

(3) Examples The action to be taken may (without limitation) include any of the following—

(a)  installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,

(b)  modifying, or carrying out any work on, plant,

(c)  ceasing to use plant or altering the way plant is used,

(d)  ceasing to carry on or not commencing to carry on an activity,

(e)  carrying on an activity in a particular manner,

(f)  carrying on an activity only during particular times,

(g)  monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,

(h)  action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,

(i)  preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,

(j)  reviewing the carrying out of an activity.

8. The Court’s function in these proceedings is to hear and determine the appeal as provided by s 292 of the POEO Act as follows:

s292 Determination of appeals

(1)  A court to which an appeal is made under this Act may hear and determine the appeal.

(2)  The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.

9. Erected upon the Site is a mixed use residential (95 units) and commercial building. The Site is located at the ground floor and is used for the purpose of a centre based childcare centre which was authorised by Canterbury-Bankstown Council (‘the Council ‘) (by the then Joint Regional Planning Panel) on 29 September 2015 pursuant to development consent DA-505/2014, as amended. The development consent did not include any conditions restricting or limiting noise emissions from the childcare centre use.

10. The Prevention Notice directed the Applicant to “Operate the child care centre at the Premises in accordance with Section 3 (Noise Criteria) of the Association of Australian Acoustical Consultants “Technical Guideline Child Care Centre Noise Assessment Version 3.00” September 2020

11. The POEO sets out the meaning of environmentally unsatisfactory manner in s 95 as follows:

For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—

(a)  it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or

(b)  it causes, or is likely to cause, a pollution incident, or

(c)  it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d)  it is not carried on in accordance with good environmental practice.

12. The Prevention Notice includes a detailed background and I am satisfied that the Prevention Notice was appropriately issued by the Respondent.

13. The parties have also reached an agreement in relation to the Applicant’s development application DA-970/2021 for the construction of a new lightweight roof or awning over the existing outdoor play area of the child care centre operated on the Site. The proposed structure has been designed to limit the acoustic impact of the childcare centre on the residential use above.

14. For these reasons I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

16. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the Prevention Notice (POEO-4794/2022) dated 26 May 2022 issued by the Respondent to the Applicant with respect to the premises at No G01, 364 Canterbury Road, Canterbury is modified in the form attached at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 10 February 2023