Meriden School v Pedavoli

[2009] NSWLEC 118

Land and Environment Court

of New South Wales

CITATION:

Meriden School v Pedavoli [2009] NSWLEC 118

PARTIES:

APPLICANT
Meriden School

RESPONDENT
Joe Pedavoli

FILE NUMBER(S):

10389 of 2009

CORAM:

Sheahan J

KEY ISSUES:

APPEAL :- appeal against noise abatement order made by Local Court Magistrate; application to stay orders pending appeal

LEGISLATION CITED:

Protection of the Environment Operations Act 1997

CASES CITED:

Overton Investments Pty Ltd v The Minister (No.4) [2000] NSWLEC 247
Trustees of the Christian Brothers v Waverley Council [2004] NSWLEC 210

DATES OF HEARING:

15 July 2009

EX TEMPORE JUDGMENT DATE:

15 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, Barrister
SOLICITORS
Walker Taylor Edwards & Smith

RESPONDENT
Mr R Nair
SOLICITORS
Legal & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

15 July 2009

10389 of 2009 Meriden School v Pedavoli

EXTEMPORE JUDGMENT

1 His Honour: This is an application by Meriden School for continuation of a stay of various orders regarding noise abatement, made by Burwood Local Court, under s 268(4) of the Protection of the Environment Operations Act 1997 (“POEO Act”) on 24 April 2009, pending determination of the school’s appeal against them.

2 Although brought in class 1 of this court’s jurisdiction the grounds of appeal include several of a judicial review nature, as well as merits issues.

3 Both before the Local Court and since the commencement of this appeal there have been serious efforts by the parties to resolve their dispute about noise emanating from the school, caused by both children, and school operations generally, claimed to be adverse to the living arrangements of Mr Pedavoli, who lives next door.

4 I granted a temporary stay, by consent on 12 June, so that Commissioner Brown could conduct a s 34 conference on 6 July, but that conference, unfortunately, did not succeed in the parties’ reaching an agreement. The respondent opposes its extension.

5 The orders of the Magistrate impose serious restrictions on the School, and require it to fund various works on both the school property and the Pedavoli property. They were made somewhat peremptorily after a four day hearing, largely occupied by settlement negotiations, and the conferencing of experts. Only part of the transcript is currently available (Exhibit M1).

6 Counsel for the parties made it clear during their submissions today that there are serious issues – both legal and technical – to be tried in the appeal. Noise must be “offensive” to ground a noise abatement order. However, there have been no findings of “offensive”, “harmful”, or “unreasonable interference”.

7 The orders represented an agreement which was contingent on a finding that noise was “offensive”, and there were no admissions made. Not all the evidence was heard, nor competing submissions made. The experts worked on differing criteria, as the statutory definition is silent. “Excessive” on a chosen criterion is not necessarily “offensive” in terms of the POEO Act.

8 The appeal is brought as of right and was commenced without undue delay (on 8 May 2008). It should resolve the matter once and for all, by balancing all the interests and concerns. See Trustees of the Christian Brothers v Waverley Council [2004] NSWLEC 210.

9 Stays are common in appeal situations, but not automatic – the extension of the stay in this matter is a matter of discretion, and it may be granted on conditions. I set out the relevant principles and authorities in Overton Investments Pty Ltd v The Minister (No.4) [2000] NSWLEC 247 at pars [23]-[43]. Not only must there be a serious issue to be tried, the stay must be fair to the parties on the balance of convenience.

10 I do not in any way downplay the concerns of Mr Pedavoli, but the school operates pursuant to various development consents, and would be exposed to the risk of prosecution for any breach of the orders.

11 All orders should be stayed pending the determination of the appeal.

12 The appellant should continue the amelioration regime detailed in Margaret Hole’s affidavit of 11 June 2009.

13 The hearing of the appeal is ordered to be expedited.

14 The parties are directed to attend upon the Registrar immediately to (1) set a date for it to be heard by a Judge, preferably with the assistance of a Commissioner if one is available, and (2) agree upon a timetable for the filing of evidence, etc.

15 Exhibit M2 is returned, but the partial transcript (Exhibit M1) should remain in the court file pending delivery of the rest of it.

16 Costs of the motion are reserved.

17 The parties are directed to prepare short minutes of order to reflect these reasons and submit them to my chambers before close of business Friday 17 July 2009.

18 Liberty to apply on 48 hours notice is granted.

19 I will publish these reasons today.