Meriton Apartments Pty Limited v Sell and Parker Pty Limited

[2003] NSWLEC 21

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Land and Environment Court

of New South Wales

CITATION:

Meriton Apartments Pty Limited v Sell and Parker Pty Limited and Another [2003] NSWLEC 21

PARTIES:

APPLICANT
Meriton Apartments Pty Limited

FIRST RESPONDENT
Sell and Parker Pty Limited

SECOND RESPONDENT
Sell and Parker (Holdings) Pty Limited

FILE NUMBER(S):

41116 of 2002

CORAM:

Talbot J

KEY ISSUES:

Costs :- where interloctutory relief not pursued
Interlocutory Relief :- whether costs order should be made following deferral to final hearing

LEGISLATION CITED:

Noise Control Act 1975

CASES CITED:

DATES OF HEARING:

05/02/2003

DATE OF JUDGMENT:

02/14/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr C J Leggat (Barrister)
SOLICITORS
Phillips Fox

FIRST AND SECOND RESPONDENTS
Mr N Hemmings QC
SOLICITORS
Allens Arthur Robinson

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41116 of 2002

Talbot J

14 February 2003

Meriton Apartments Pty Limited

Applicant
v

Sell and Parker Pty Limited

First Respondent

Sell and Parker (Holdings) Pty Limited

Second Respondent

Judgment

Introduction

1 Meriton Apartments Pty Limited (“Meriton”) commenced these proceedings by the filing of a class 4 application on 31 December 2002.

2 The respondents are family companies conducting a business of a scrap metal yard at 7-19 Amelia Street, Waterloo (“the Amelia Street Site”) and 29-31 Lachlan Street, Waterloo (“the Lachlan Street Site”).

3 Meriton is carrying out development at 1-10 Lachlan Street, Waterloo (“the Meriton Site”). An apartment building within this development is partially completed. Notwithstanding that construction is continuing approximately 20 per cent of the units are occupied by lessees. It is the applicant’s contention that the activities on the respondents’ land are being carried out contrary to conditions of development consent thereby causing an adverse impact upon the amenity of the residential units in the applicant’s building, particularly from noise and vibration.

4 The applicant first raised complaints regarding the conduct of the business on the respondents’ land with South Sydney City Council (“the council”) in March 2002. Correspondence has continued since that time until the proceedings were commenced on 31 December 2002.

5 The applicant made an application for interlocutory relief before Cowdroy J on 17 January 2003. The application was refused.

6 The matter was again listed before myself on 5 February 2003 to enable the applicant to make a further application for interlocutory relief. At the commencement of the hearing on 5 February 2003, the applicant indicated to the Court that, as it was not practicable for it to deal with evidence served by the respondents the night before, it would prefer that the Court make directions for the filing and service of evidence and that the matter then proceed to a final hearing. In those circumstances the applicant proposed to discontinue the application for interlocutory relief. Subject to determination of the question of costs thrown away by the adjournment, directions for the filing and service of evidence were made by consent.

7 This judgment deals with the competing applications made by both parties for an order that the other party pay its costs in respect of the applications for interlocutory relief.

8 The respondents’ case, put by Mr Hemmings QC, can be conveniently summarised as an argument that the applicant abandoned any application for interlocutory relief when it realised the weakness of its own case following the filing and service of evidence by the respondent’s acoustic expert, Dr Renzo Tonin. On the other hand, Mr Leggat, on behalf of the applicant, denies that its case could not be sustained but rather that the late filing and service of the evidence by Dr Tonin did not allow it sufficient time to take further instructions and to obtain evidence in reply. The applicant had previously engaged three acoustic experts. It says that at least two of these experts would have been relied upon at an interlocutory hearing.

9 The whole of the evidence upon which the applicant relies was filed by 17 January 2003, apart from one affidavit explaining the delay in the commencement of the proceedings. The latter affidavit was filed and served on 31 January 2003.

10 It is not disputed that on 22 January 2003 the respondents advised the applicant’s solicitors that they would not be in a position to arrange for noise monitoring to commence at the site until 24 January 2003. On 23 January 2003 the solicitors for the applicant were advised that monitoring would not commence until 28 January 2003 but that there would be an endeavour to file the evidentiary material by Friday 31 January 2003. These arrangements were confirmed in writing by letter dated 23 January 2003, from the applicant’s solicitors to the respondents’ solicitors. The affidavit evidence by Dr Tonin was not served until the afternoon of 4 February 2003. Following the service of that affidavit the applicant’s solicitors confirmed by letter that their client was unable to deal with the evidence upon such short notice and that the applicant would require an adjournment of the interlocutory hearing in order to deal with the material. The letter concluded as follows:-

…Having considered the matter, our client has determined that the most appropriate course is that it not press its claim for interlocutory relief. To this end, when the matter comes before Talbot J at 10:00am on 5 February, we will be seeking directions for an expedited timetable for a final hearing. We seek your clients’ consent to this course and look forward to hearing from you.
The acoustic evidence

11 The applicant has filed an affidavit by Louis A Challis, an Acoustic Engineer, in support of the claim that the respondents are carrying on business otherwise than in accordance with Condition 13 of the development consent.

12 Condition 13 is in the following terms:-

(13) That the use of the premises should not give rise to:


(a) transmission of vibration to any place of different occupancy;

(b) a sound level in any place of different occupancy greater than 3dB above the L90 background level in any octave band from 31.5HZ to 8000HZ centre frequencies inclusive; however, when the L90 background levels in frequencies below 63HZ are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this sub-clause shall not apply to any such frequencies;

(c) a sound level at any point on the boundary of the site greater than the levels specified in Australian Standard 1055-1984;

(d) an “offensive noise” as defined in the Noise Control Act 1975;

(e) the emission into the surrounding environment of gases, vapours, dust, or other impurities which are a nuisance or injurious or dangers or prejudicial to health;

- the method of measurement of sound levels in (b) and (c) shall be carried out in accordance with Australian Standard 1055-1984;

13 Mr Challis swears in his affidavit that he conducted an environmental noise and vibration assessment in respect of the Amelia Street Site and the Lachlan Street Site during the period 9-14 January 2003. Mr Challis states in his report that he is satisfied that a vibration level whose peak particle velocity is as high as 3.2mm/sec constitutes the transmission of vibration to a place of different occupancy in breach of Condition 13(a). He expressed the view that the respondents are unable to limit or effectively control the levels of vibration that their activities generate in order to “not give rise to…transmission of vibration to any place of different occupancy”.

14 Mr Challis also says that an examination of the data recorded by him has confirmed that sound levels at two specified monitoring locations were significantly greater than the 3dB margin nominated by Condition 13(b). He concludes that the respondents are currently incapable of complying with Condition 13(b) unless they are prepared to fully encapsulate the operations at the Amelia Street Site.

15 Furthermore, Mr Challis states that measurements have confirmed that the activities of the respondents have produced sound levels that are as much as 40dB(A) above the measured background sound level at 2 Bruce Street, Waterloo, and as much as 28dB(A) above the background at the applicant’s residential building at 2 Lachlan Street, Waterloo. He describes the sound levels generated by the respondents as grossly in excess of the relevant criteria. He also concludes that the respondents are currently incapable of complying with Condition 13(c) unless they are prepared to fully encapsulate the operations at the Amelia Street Site. Such encapsulation would require the construction of a comparatively large and acoustically effective building.

16 Mr Challis was also satisfied that the use of the premises by the respondents gives rise to “offensive noise” as defined by the Noise Control Act 1975. He sets out his reasons for this conclusion and reiterates that short of fully encapsulating the operations the respondents are currently incapable of complying with Condition 13(d).

17 Heretofore, the council has not made a positive response to the representations made on behalf of Meriton. The Roads and Traffic Authority, as the owner of one of the sites occupied by the respondents, has also remained unmoved by the representations made by Meriton since March last year. There is no evidence that the council has been appraised of the result of the study and analysis undertaken by Mr Challis. However, by letter 3 September 2002 the Mayor informed the applicant that the council shares its view that long-term occupancy of the Lachlan Street Site as a scrap metal yard is incompatible with the vision and emerging character of the Green Square precinct.

18 Dr Tonin was granted access to the Meriton Site as from 17 January 2003. He visited the site on 30 and 31 January 2003.

19 Dr Tonin says that he reviewed the affidavit evidence filed by the three acoustic experts retained by the applicant. His evidence and report consist mainly of a critique of the work undertaken by those experts. He states that, in his opinion, the applicant’s experts have made no assessment of noise and vibration emanating from the Lachlan Street Site and that they did not conform to relevant guidelines and criteria in the assessment of ambient levels or in recording procedures. Notwithstanding his criticism of the applicant’s material he has concluded that the noise levels at the Amelia Street Site comply with Condition 13 of the development consent and that the vibration recordings made by the applicant’s experts do not positively establish that they are derived from the activities on the respondents’ premises. In any event, he says the two occurrences of vibration at a level of 3.2mm/sec are clearly, in his opinion, an insignificantly low impact. He further concludes that a noise control program should be commenced to determine appropriate noise levels at the property boundary. He does not believe it is necessary to make any structural or other alterations to the premises to eliminate or reduce vibration levels.

20 The applicant places significant reliance upon the fact that Dr Tonin did not undertake any measurements personally notwithstanding the opportunity afforded to him up to 31 January and upon the fact that there was no notification by the respondents to the applicant that evidence would be forthcoming from Dr Tonin at any time after 31 January 2003 until the afternoon of 4 February 2003, the day before the hearing.

21 In a report prepared by Wilkinson Murray Pty Limited in January 2003, Neil Lionel Gross explains the results of noise measurements undertaken at one of the apartment blocks at Lachlan Street. In the opinion of Mr Gross the scrap metal operation clearly exceeds the New South Wales Industrial Noise Policy noise level criterion for intrusiveness at the Meriton Site and would be considered “offensive” in that location in breach of development consent Condition 13(d). He also confirmed that, in his opinion, as with Mr Challis, the scrap metal yard operates in breach of development condition 13(b) and condition 13(c). He concludes that, in his opinion, typical scrap metal yard operations he has observed cannot operate in such a manner so as to comply with the development consent conditions.

22 The affidavit of Dr Tonin sworn on 4 February 2003 comprises only three pages. However, in addition to the material upon which he relies to make his acoustical assessment, he furnishes a technical report containing 17 pages, together with annexures.

23 The Court has only the contentions made by Mr Leggat and Mr Hemmings from the bar table in order to facilitate making a judgment between the competing positions of the parties. It is as equally impracticable for the Court to decide that the conclusions of Dr Tonin were so compelling that the applicant would inevitably have been persuaded that its case was so weak that it cannot proceed as it is for the Court to conclude that it was eminently reasonable for the applicant to seek a proper time to take further instructions after its consultants had been given the opportunity to analyse the material prepared by Dr Tonin. If the Court had to decide on a prima facie basis the second conclusion is, in my opinion, the more plausible.

Conclusion

24 Both parties have made further submissions in respect of some peripheral issues such as, on the part of the respondents, the lack of support from the council for the applicant’s position. Mr Leggat places significant emphasis on the failure of the respondents to communicate with the applicant between 23 January 2003, when there was an expectation that the evidence would be available by 31 January 2003, and late on 4 February 2003 when the evidence was ultimately provided. Furthermore, Mr Leggat submits that the existence of Dr Tonin’s report and the issues raised by him prima facie show that there was indeed a serious question to be tried.

25 The respondents served a further affidavit on 4 February 2003. This affidavit by Ross Frederick Parker, a company director of the second respondent, asserts that the respondents will incur “significant financial penalties” and that ceasing to operate for a period of even one week would not only result in “a substantial financial loss but would also result in customers taking their business elsewhere”. There has been no opportunity for the applicant to investigate the veracity of Mr Parker’s claims.

26 Both parties have prepared for an interlocutory hearing and have incurred expense. I anticipate that not all of that cost will be wasted. It may be necessary for the evidence, in its present form, to be re-drawn to meet the tests of admissibility at a final hearing.

27 I have not been provided with any details of what occurred before Cowdroy J on 17 January 2003, nor have I been appraised of his Honours reasons for refusing to grant interlocutory relief on that day.

28 However, until the evidence of Dr Tonin became available the evidence was all one way and the applicant was entitled to entertain a reasonable prospect of success. Whether the evidence of Dr Tonin will sway the balance is yet to be resolved. The applicant is entitled to have a reasonable opportunity to consider and, if necessary, reply to the evidence of Dr Tonin.

29 It is my view that as the issues between the parties will be resolved at a final hearing and as that determination will be based upon a proper and full assessment of the evidence of the acoustical experts, any costs order in regard to the interlocutory proceedings should follow the outcome at the final hearing.

30 In the light of the above facts and circumstances and my opinion based upon them, I propose to order that the costs of the interlocutory proceedings be costs in the cause.

31 The exhibits may be returned.