Meriden School v Pedavoli (No 2) - [2009] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION: Meriden School v Pedavoli (No 2) [2009] NSWLEC 208

PARTIES: APPLICANT
Meriden School
RESPONDENT
Joe Pedavoli

FILE NUMBER(S): 10389 of 2009

CORAM: Pain J

KEY ISSUES: COSTS :- Class 1 appeal against noise abatement order of local court- whether to award costs to successsful appellant - whether respondent acted unreasonably

LEGISLATION CITED: Civil Procedure Act 2005 s 98
Environmental Planning and Assessment Act 1979 s 97, 98
Land and Environment Court Act 1979 s 17
Land and Environment Court Rules 2007 r 3.7
Protection of the Environment Operations Act 1997 s 96, 268, 269, 289, 290

CASES CITED: Chen v Virgona [2008] NSWLEC 281
Latoudis v Casey (1990) 170 CLR 534
Meriden School v Pedavoli [2009] NSWLEC 183
Port Stephens Council v Sansom [2007] NSWCA 299
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230

DATES OF HEARING: 3 December 2009

EX TEMPORE JUDGMENT DATE: 3 December 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr N Hemmings QC
SOLICITORS
Allens Arthur Robinson
RESPONDENT
Mr R Nair
SOLICITORS
Legal & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 December 2009

10389 of 2009 Meriden School v Pedavoli (No 2)
EX TEMPORE JUDGMENT

1 Her Honour: I handed down judgment in Meriden School v Pedavoli [2009] NSWLEC 183 on 22 October 2009 and made orders setting aside a noise abatement order made by Burwood Local Court on 24 April 2009. I reserved the question of costs. The Applicant has filed a Notice of Motion dated 17 November 2009 seeking an order that its costs of the appeal be paid by the Respondent. As identified at [5] of the earlier judgment, this Class 1 appeal is pursuant to s 290 in Pt 9.2 of the Protection of the Environment Operations Act 1997 (the POEO Act). It is a Class 1 appeal by virtue of s 17 of the Land and Environment Court Act 1979 (the Court Act). In the substantive hearing of the appeal the parties filed new evidence and prepared a joint report so that this Court considered this matter anew on the basis of evidence that was not before the local court.

2 The parties agree that the relevant cost rule is that set out in r 3.7 of the Land and Environment Court Rules 2007 (the Court rules). Rule 3.7 provides:

3.7 Costs in certain proceedings

(cf Land and Environment Court Rules 1996, Part 16, rule 4)

(1) This rule applies to the following proceedings:

(a) all proceedings in Class 1 of the Court’s jurisdiction,

(b) all proceedings in Class 2 of the Court’s jurisdiction,

(c) the following proceedings in Class 3 of the Court’s jurisdiction:

(i) appeals, references or other matters that may be heard and disposed of by the Court under the Crown Lands Act 1989 or Western Lands Act 1901, as referred to in section 19 (a) of the Land and Environment Court Act 1979,

(ii) appeals under…

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.

Keep reading for free

Create a free CaseChat account to read Meriden School v Pedavoli (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWLEC 208
Decision Date: 3 December 2009

CaseChat Overview and Summary

The Land and Environment Court was presented with a case involving Meriden School, the applicant, and Joe Pedavoli, the respondent. The dispute centred around a noise abatement order issued by the Burwood Local Court, which Meriden School sought to have set aside. The Court had previously set aside the noise abatement order and reserved the question of costs, which was now before the Court for determination. The applicant sought an order for the respondent to pay its costs of the appeal, arguing that the respondent acted unreasonably in various respects. The respondent opposed the costs order, contending that the applicant had not demonstrated circumstances that made it fair and reasonable to award costs.

The primary legal issue before the Court was whether it was fair and reasonable to make an order for costs in favour of the applicant under r 3.7 of the Land and Environment Court Rules 2007. The Court had to consider the nature of the appeal under the Protection of the Environment Operations Act 1997 and the conduct of the respondent in the proceedings. The Court examined whether the appeal involved questions of law or fact that were determinative of the proceedings and whether the respondent acted unreasonably in any way.

The Court found that while the appeal involved questions of fact and law, the substantive issue in the appeal was whether the noise from the school was offensive, which was a question largely of fact. The Court held that it was not unreasonable for the respondent not to concede that the local court order must be set aside. The respondent's conduct in maintaining an incorrect position on the test for harm resulting from the noise was found to be erroneous, not unreasonable. However, the Court did find that some costs were thrown away due to the respondent's decision not to rely on one of the experts at the hearing, and it was fair and reasonable to make a limited costs order for some of those costs. Each party was ordered to bear its own costs of the stay application and the motion for costs.

In conclusion, the Court decided not to make an order for costs in favour of the applicant for the whole proceedings but ordered that some costs thrown away by the applicant be paid by the respondent. Each party was ordered to bear its own costs of the stay application and the motion for costs.

Orders