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

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: [2009] NSWLEC 118
Decision Date: 15 July 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an application from Meriden School against Joe Pedavoli. The applicant sought to continue a stay of various orders concerning noise abatement, which had been issued by a Local Court Magistrate. The orders were made under section 268(4) of the Protection of the Environment Operations Act 1997, and they imposed significant restrictions on the School and required it to fund various works on both the school and Pedavoli properties. The school was appealing against these orders, and the application was to continue the stay of these orders pending the outcome of the appeal.

The court was required to determine whether the stay of the noise abatement orders should be extended pending the appeal. The key issues included whether there was a serious question to be tried in the appeal and whether the stay was fair to both parties on the balance of convenience. The court considered that the appeal involved serious issues both legally and technically, and the orders had been made somewhat peremptorily after a lengthy hearing. There had been no findings of "offensive", "harmful", or "unreasonable interference" noise, which is a necessary ground for a noise abatement order under the POEO Act.

The court held that the appeal was brought as of right and was commenced without undue delay. It should resolve the matter once and for all by balancing all the interests and concerns. The court noted that stays are common in appeal situations but are not automatic. The extension of the stay in this matter was a matter of discretion and could be granted on conditions. The court found that there was a serious issue to be tried and that the stay was fair to both parties on the balance of convenience. The court ordered that all orders be stayed pending the determination of the appeal. The school should continue the amelioration regime detailed in an affidavit filed by Margaret Hole. The hearing of the appeal was to be expedited, and the parties were directed to attend upon the Registrar to set a date for the hearing and agree upon a timetable for the filing of evidence.

The court also directed the parties to prepare short minutes of order to reflect these reasons and submit them to the court's chambers before close of business on 17 July 2009. Liberty to apply on 48 hours notice was granted, and the court intended to publish these reasons on the same day.

Orders