Pavlovic v The Hills Shire Council

[2020] NSWLEC 1485

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pavlovic v The Hills Shire Council [2020] NSWLEC 1485

Hearing dates:

Conciliation conference on 16 September 2020

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) The terms of Prevention Notice No. 153442 issued by the First Respondent on 5 June 2020 are varied under section 110 of the Protection of the Environment Operations Act 1997 (NSW) in accordance with the notice annexed hereto and marked ‘A’.

Catchwords:

APPEAL – use of motorbikes – prevention notice – terms of prevention notice varied – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979

Protection of the Environment Operations Act 1997

Category:

Principal judgment

Parties:

Anica Pavlovic (First Applicant)
Stjepan Pavlovic (Second Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicants)
S Kondilios (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicants)
Hall & Wilcox (Respondent)

File Number(s):

2020/189644

Publication restriction:

No

Judgment

1. COMMISSIONER: On 5 June 2020 the Hills Shire Council served a Prevention Notice (ref: 153442) under the provisions of s 96 of the Protection of the Environment Operations Act 1997 (NSW) (the Act) following complaints about the use of motor bikes on the applicants' property at Lot 9 DP 1179951 known as 64 Shoplands Road, Annangrove (the property).

2. The Notice provides as follows:

1. No motorcycle (other than four-wheel motorcycles or motorcycles with an engine capacity of 75cc or less) shall be ridden other than for direct access to and from the main entrance on the front boundary and the main dwelling.

2. Only four-wheel motorcycles or motorcycles with an engine capacity of 75cc or less belonging to the household can be operated on the property.

3. The respondent’s reasons for issuing the Notice are:

“The use of motorbikes and the nature of the use of the motorbikes has resulted in multiple complaints from four separate complainants and upon review Council as the appropriate regulatory authority reasonably suspects that the activity of motorbike riding on the subject property causes offensive noise and is in breach of Clause 6 of the Environment Operations (Noise Control) Regulation 2017.”

4. The applicants have appealed the Notice to the Court under s 289 of the Act and the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 September 2020. I presided over the conciliation conference.

5. At 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 terms of the Prevention Notice under s 110 of the Act in accordance with the Notice marked Annexure “A”.

6. 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.

7. 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.

8. The Court orders that:

1. The appeal is upheld.

2. The terms of Prevention Notice No. 153442 issued by the First Respondent on 5 June 2020 are varied under section 110 of the Protection of the Environment Operations Act 1997 (NSW) in accordance with the notice annexed hereto and marked ‘A’.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (355381, pdf)