Nadilo v Eagleton

[2020] NSWLEC 95

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nadilo v Eagleton [2020] NSWLEC 95

Hearing dates:

3 July 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [36]

Catchwords:

INTERLOCUTORY APPLICATION – civil enforcement proceedings for declaratory and injunctive relief that use of two air conditioners and a heat pump water heater at residential premises were operating to emit noise that interfered with the sleep of the residents of the adjoining property – application for interlocutory relief – applicant had earlier commenced proceedings for a noise abatement order in the Local Court – respondents make application for stay of Land and Environment Court proceedings – stay application set down for hearing on 27 July – serious issue to be tried on the merits concerning at least one air conditioner and the heat pump water heater – balance of convenience – balance of convenience favours interim restraint on night-time use of one air conditioner but not the heat pump water heater – injunction restraining, until 2pm on 27 July, the respondents from using the air conditioner between 10pm and 7am

COSTS – applicant sought costs of the application for interim relief – applicant only partially successful – respondents partially successful in resisting the application for interim relief – appropriate that there be no order for costs of the application for interim relief

Legislation Cited:

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Category:

Procedural and other rulings

Parties:

Deborah Nadilo (Applicant)
Sally Eagleton (First Respondent)
Jason Eagleton (Second Respondent)

Representation:

Counsel:
Ms A Pearman, barrister (Applicant)
Mr M Swanson, barrister (First and Second Respondents)

Solicitors:
Stacks Forster (Applicant)
Voice Lawyers (First and Second Respondents)

File Number(s):

134029 of 2020

Publication restriction:

No

EXTEMPORANEOUS JUDGMENT

Introduction

1. HIS HONOUR: In December 2018, the respondents commenced residing at number 37 of a road in Wangi Wangi. The house which they now occupy is a purpose constructed dwelling. The dwelling has, toward its southern end, an air conditioning system installed on the side adjacent to the boundary with number 35 of the road in which it is situated. A little further to the north is located, on the same side of the dwelling, a heat pump water heater and, yet further to the north, a second air conditioning unit in a recess of the eastern facade of the dwelling.

2. In March 2019, the residents of the adjacent property to the east, number 35, complained about matters of noise disturbance to their sleep pattern - that noise disturbance allegedly being caused by, either collectively or individually (depending on the times), the two air conditioning units and the heat pump water heater.

3. In August 2019, the neighbours commenced action in the Local Court seeking a noise abatement order against the owners of the air conditioning units and the heat pump.

4. On 27 April 2020, the applicants who had previously been self-represented became represented by Mr Dunn, a solicitor. After that,…