MKTK Pty Limited v Cater

Case •

[2022] NSWLEC 1344

•

01 July 2022

Land and Environment Court


New South Wales

Medium Neutral Citation: MKTK Pty Limited v Cater [2022] NSWLEC 1344
Hearing dates: Conciliation conference on 22 June 2022
Date of orders: 1 July 2022
Decision date: 01 July 2022
Jurisdiction:Class 1
Before: Peatman AC
Decision:

See orders at [13] below.

Catchwords:

NOISE ORDERS – appeal from Local Court Orders – noise emanating from hotel beer garden - conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 17, 34, 39

Liquor Act 2007, ss 40, 60

Protection of the Environment Operations Act 1997, ss 268, 272, 290, 292

Category:Principal judgment
Parties: MKTK Pty Limited (First Applicant)
Tracy Keegan (Second Applicant)
Rainnie Cater (Respondent)
Representation:

Counsel:
J Smith (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
JDK Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2022/58430
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against noise abatement Orders (Local Court Orders) made on 11 February 2022 by Magistrate Olischager in the Local Court of NSW in proceedings No 2020/00056824-001 (Local Court proceedings):

  1. The appeal is brought pursuant to s 290 of the Protection of the Environment Operations Act 1997 (POEO Act).

  2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act).

  3. The statutory powers or functions to be exercised in determining the proceedings are s 292 of the POEO Act and ss 34(3) and 39(2) of the LEC Act.

  4. The nature and details of the application is an appeal to vary and revoke the Local Court Orders being noise abatement orders for offensive noise in relation to the business and premises known as the Gladstone Hotel at 36 Mitchell Street, Stockton NSW.

  1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 22 June 2022. I presided over the conciliation conference.

Background

  1. The Respondent (Applicant in the court below) resides at a property located at 5 Queen Street Stockton, and this property adjoins the property known as the Gladstone Hotel, 36 Mitchell Street Stockton (Gladstone Hotel).

  2. The Respondent sought, and was granted, a noise abatement order in the Local Court Proceedings in the following terms:

“Pursuant to s 269(4) of the Protection of the Environment Operations Act 1997 the respondents are directed to abate the offensive noise, being voices, music and other noise from patrons located in the beer garden emanating from the Gladstone Hotel at Mitchell Street Stockton within seven days of the date of this Order.

The respondents are directed to prevent a recurrence of the offensive noise.

The ‘offensive noise’ within the terms of this Order is noise being voices, music and other noise emanating from patrons located in the beer garden.”

  1. Pursuant to the definitions in the POEO Act,

“offensive noise” means noise –

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances –

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.”

  1. The Applicants appealed the Local Court proceedings by filing a Class 1 Application in this court on 28 February 2022 pursuant to s 290 of the POEO Act.

  2. In the present proceedings, the Second Applicant (Tracy Keegan) (and the Second Respondent in the court below) swore an affidavit on 22 June 2022. Set out below is the content of Ms Keegan’s affidavit:

  1. I am the Second Applicant in these proceedings.

  2. I am married to Mark Wallace Keegan the sole director and secretary of the First Applicant in these proceedings.

  3. The facts deposed to in this affidavit are within my personal knowledge, alternatively, I believe them to be true based on information which I have been apprised.

  4. The First Applicant is the business owner of the Gladstone Hotel, situated at 36 Mitchell Street, Stockton, NSW 2295 (‘the Hotel’).

  5. The First Applicant is currently negotiating the sale of the Hotel’s freehold and business.

  6. On or about 26 May 2022, the First Applicant instructed its Broker to proceed with the sale of the Hotel’s gaming machine entitlements to an unrelated entity.

  7. The First Applicant is currently negotiating with another unrelated entity which is interested in purchasing the Hotel’s freehold and remaining business assets.

  8. The negotiations are in their final stages, and I expect that contracts will be exchanged in the coming weeks.

  9. The interested purchaser is not related to the First Applicant, meaning that the sale of the freehold and business will be an “arms’ length” transaction.

  10. Upon completion of the sale of the freehold and business, the First Applicant will no longer be involved in the ownership or operation of the Hotel.

  11. I was the Hotel’s licensee for 9 years.

  12. I no long have any desire to be involved in the Hotel’s management.

  13. On 6 March 2022, I instructed my solicitor, Kim Stapleton, to lodge an application with Liquor & Gaming NSW to transfer the Hotel licence to the First Applicant.

  14. On 7 March 2022, Liquor & Gaming NSW provisionally approved the transfer application, subject to the nominated approved manager (Mark Keegan) completing the required licensee training course within 60 days.

  15. Mark has now completed the licensee training and remains the Hotel’s current approved manager. Consequently, I am no longer the Hotel’s licensee and am not involved with its management or operation.

  16. Prior to completion of the sale of the freehold and business, the First Applicant, as the current licensee, will apply to the Liquor & Gaming NSW to transfer the Hotel’s licence to a suitable individual or entity, nominated by the purchaser.

  17. Once approved, the First Applicant will not have any interest or involvement in the operation of the Hotel.”

Legislation

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

(a) appeals under Part 9.2 of the Protection of the Environment Operations Act 1997,

……

Protection of the Environment Operations Act 1977

268   Issue of noise abatement orders

(1)  The occupier of any premises may apply to the Local Court for an order under this section.

(2)  The application is to be commenced by the issue of an application notice that alleges that the occupier’s occupation of premises is affected by offensive noise.

(3)  The respondent to the application may be a person alleged to be making or contributing to the noise or the occupier of premises from which the noise is alleged to be emitted.

(4)  If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make either or both of the following orders—

(a)  an order directing the respondent to abate the offensive noise within the time specified in the order,

(b)  an order directing the respondent to prevent a recurrence of the offensive noise.

(5) Part 4 of the Local Court Act 2007 applies to an application under this section.

PART 9 Miscellaneous

Part 9.2 Appeals regarding noise

290   Appeals regarding noise

(1)  Any person—

(a)  given a noise control notice, or  

(b)  against whom a noise abatement order is made,

may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order.

(1A)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice or order appealed against.

(2) Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001 (as applied by section 70 of the Local Court Act 2007) do not apply to a noise abatement order.

292   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.

  1. At or after 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 varying the Orders as against the First Applicant (First Respondent in the Court below), and revoking the Local Court Orders as against the Second Applicant (Second Respondent in the Court below) made in the Local Court on 11 February 2022.

  2. 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. The parties’ decision involves the Court exercising the function under ss 34(3) and 39(2) of the LEC Act and s 292(1) of the POEO Act to vary the Local Court Orders against the First Applicant, and to revoke the Local Court Orders as against the Second Applicant. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings as set out below, and explained how the jurisdictional prerequisites have been satisfied:

  1. Noise abatement orders were made in the Local Court proceedings pursuant to s 268(4) of the POEO Act on 11 February 2022.

  2. The First and Second Applicants filed an appeal against the Local Court Orders on 22 February 2022 pursuant to s 290(1)(b) of the POEO Act, and within the prescribed time frame of 21 days.

  3. I have power to hear and determine the appeal pursuant to s 292 of the POEO Act and ss 34(3) and 39(2) of the LEC Act.

  4. In order to vary and/or revoke the Local Court Orders I must be satisfied, pursuant to s 268(4) that on the balance of probabilities that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, thus making an order –

  1. Directing the First Applicant to abate the offensive noise within the time specified in the order.

  2. Directing the First Applicant to prevent a recurrence of the offensive noise.

  3. Revoking the Local Court Orders against the Second Applicant.

  1. As set out above, 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 and for the further following reasons:

  1. The Second Applicant has sworn an affidavit dated 22 June 2022 stating, inter alia, that:

  1. She was the holder of the liquor licence for the Gladstone Hotel pursuant to s 40(2) of the Liquor Act 2007 (NSW) (Liquor Act).

  2. She has transferred the liquor licence for the Gladstone Hotel pursuant to s 60 of the Liquor Act, and is no longer the holder of the liquor licence pertaining to the Gladstone Hotel;

  3. She no longer wishes to be involved in the management of the Gladstone Hotel;

  4. The Gladstone Hotel has sold its gaming machine entitlements;

  5. The Gladstone Hotel business, together with the land upon which it stands, has been on the market and is close to the parties entering into a contract for sale. Orally I have been advised that there are 2 interested purchasers: one party would continue to operate the hotel; and the other party has alternative plans and would not operate the hotel.

  1. In view of the fact that the Second Applicant has transferred her licence pursuant to s 60 of the Liquor Act and has no desire to be involved in the management of the Gladstone Hotel, then it is reasonable that I exercise the power under s 272 of the POEO Act and revoke the Local Court Orders in relation to Tracy Keegan.

  2. As the ownership and management of the Gladstone Hotel is under the control of the First Applicant and its Director, Mark Keegan, it is appropriate that the Local Court Orders remain on foot until legal title to the land and, if the business of the Gladstone Hotel continues to operate, the business is transferred to an unrelated party. Therefore, the Local Court Orders made pursuant to s 268(4) of the POEO Act are varied to remain on foot whilst the First Applicant and Mark Keegan retain the legal ownership and/or control of the land and the business of the Gladstone Hotel.

  1. 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.

Notations

  1. The Court notes that the Applicants agree to pay the Respondent’s costs in the agreed sum of $3,800.00 within 21 days from the date of these Orders.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. The noise abatement order issued to the Second Respondent by the Local Court of NSW in proceedings No, 2020/00056824-001 is revoked.

  3. Pursuant to s 268(4) of the Protection of the Environment Operations Act 1997, the First Applicant, while it is the owner of the land or business upon the land upon which is situated the Gladstone Hotel at 36 Mitchell Street Stockton NSW, (Gladstone Hotel), involved in any corporate entity operating on the land, licensee of a licence under the Liquor Act 2007 (NSW), or otherwise in control of part or whole of the said Gladstone Hotel, is directed to prevent a recurrence of the offensive noise being voices, music and other noise from patrons located in the beer garden emanating from within the said Gladstone Hotel within seven (7) days of the date of this Order.

  4. The First Applicant, while it is the owner of the land or business upon the land upon which is situated the said Gladstone Hotel, involved in any corporate entity operating on the land, licensee of a licence under the Liquor Act 2007 (NSW), or otherwise in control of part or whole of the said Gladstone Hotel, is directed to prevent a recurrence of the offensive noise.

  5. The “offensive noise” within the terms of this Order is noise being voices, music and other noise emanating from patrons located in the beer garden of the said Gladstone Hotel.

…………………………

M Peatman

Acting Commissioner of the Court

**********

Decision last updated: 01 July 2022

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