Reservilt Pty Ltd v Maroochy Shire Council
[2002] QPEC 10
•12th March 2002.
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Reservilt Pty Ltd v. Maroochy Shire Council [2002] QPEC 010
PARTIES:
RESERVILT PTY LTD (Appellant)
-v-
MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:
P&E 17/01
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
DELIVERED ON:
12th March 2002.
DELIVERED AT:
Maroochydore
HEARING DATE:
27th-29th November 2001
JUDGE:
Judge J.M. Robertson
ORDER:
Appeal dismissed.
CATCHWORDS:
LOCAL GOVERNMENT – Town Planning – appeal against refusal of application for commercial boarding kennels – effect of noise on adjoining properties
Integrated Planning Act 1997
Maroochy Plan 2000
COUNSEL:
S.J. Keim (for the Appellant)
A.N.S. Skoien (for the Respondent)
SOLICITORS:
Lester Manning (for the Appellant)
Maroochy Shire Council (for the Respondent)
This is an appeal against refusal of a development application.
On 11 May 2001 the respondent refused an application by the appellant made 21 June 2000 for a material change of use (development permit) for animal keeping (boarding kennels) on lot 2 on RP 845275, Parish of Weyba, County of Canning, otherwise known as 64 Murdering Creek Road, West Perigean. The subject land is in the respondent’s local authority area. Maroochy Plan 2000 is the applicable planning scheme.
In the planning scheme, the subject land is in planning area 25, Northern Coastal Plains, precinct 6, Lake Weyba catchment area, precinct class, water supply resource area. It is not a catchment under the Water Resources Act. Under the superseded planning scheme it was in the rural A zone.
The subject land is rectangular in shape with the long side running east-west. It contains 1.892 hectares and has frontage of 86.52 metres to Murdering Creek Road which runs north-south. It contains two sheds, one used for residential purposes.
The predominant land use in the immediate area is rural. Generally, blocks are much larger in size than the subject land. Some contain detached houses. There is some limited grazing of animals.
The subject land is one of five adjacent blocks with frontage to Murdering Creek Road of generally similar size and shape. One of these blocks borders the subject land on its northern side. The other three are on its southern side.
The subject land slopes two to three degrees generally in a south-westerly direction. There is at least an overland flow path for water in times of inundation in a generally southerly direction across the block from about half way along its northern boundary. There are two dams in this pathway on the subject land. There is another dam on the land immediately to the south located in the flowpath.
There is an occupied dwelling house on the block immediately to the south of the subject land located about a third of the way along its length from Murdering Creek Road (the Younie residence).
The owners of the block immediately to the north of the subject land have indicated that they intend to establish a holiday residence on the land at some time in the future (the Nash residence).
The application sought approval for commercial boarding kennels on the subject land. The application was Code-assessable under the Integrated Planning Act 1997 (IPA).
The proposal is for a single-storey building to house up to 75 dogs in 50 individual concrete block kennels, and an office building that incorporates a reception area, kitchen, WC and dog wash area. In addition to open runs to be attached to the 50 kennels there are to be a number of individually fenced exercise yards for supervised exercise of the dogs. These will be placed between the kennels and an earth mound at the eastern end of the site.
It is proposed that the building would be almost completely surrounded by an earthen mound standing two metres tall, with a one metre acoustic fence as required, e.g. on the southern and western sides because of the presence of the Younie residence.
It is further proposed that all dogs will be washed upon arrival and at least once a week. It is proposed that the kennels and run areas will be cleaned by the collection by hand of faeces and uneaten food, followed by daily high pressure hosing. Cleaning the kennels with detergents and disinfectants would be undertaken once per week. The faeces would be placed into a vermiculture system involving the use of tiger worms.
The water from the dog washing and kennel cleaning is to be directed towards a 1900 litre storage pit (which on the evidence would be the water for two days). From the storage pit, this water would then be directed by pipe towards a landscaped area to the west of the kennel enclosure for drip or bubble irrigation. This landscaped area would be located to the west of the dams, either within, or on the edge of, the overland flow path. Any stormwater from the run areas is to be discharged onto grass swales within the area enclosed by mounds. Other stormwater from roof areas would be discharged by pipe to the larger of the two dams in the overland flow path on the subject site.
The two applicable Codes in Maroochy Plan 2000 are:
Code for Development and Use of Intensive Animal Industries and Aquaculture (the Intensive Animal Code) and
Code for development in Water Resource Catchment Areas (the Catchment Code).
The respondent’s refusal of the application was in the following terms:
“This refusal is at the direction of Maroochy Shire Environmental Management and Conservation Branch as concurrence agency for the assessment of ERA 43 – Animal Housing with the support of the assessment manager”.
The refusal in those terms derived from the devolvement of authority under the Environmental Protection Act in relation to a prescribed environmentally relevant activity of animal housing under the Environmental Protection Regulation. Thus the respondent approached the application both as the assessment manager and as a concurrence agency under IPA.
Section 3.5.12 of IPA provides that if a concurrence agency requires an application to be refused then the assessment manager must refuse it. Section 3.5.13 of IPA provides that in the case of an application requiring Code assessment, the assessment manager’s decision may conflict with an applicable Code if there are sufficient grounds to justify the decision having regard to the purpose of the Code. The section also provides that for assessment against a Code in a planning scheme the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area. Subsection 4 provides that the assessment manager may refuse an application only if the assessment manager is satisfied
“(a) the development does not comply with the applicable Code; and
(b) compliance with the Code cannot be achieved by imposing conditions.”
The reasons for the refusal included:
(i) “In accordance with s 3.5.12 (of IPA) under recommendation from Maroochy Shire Council’s Environmental Management and Conservation Branch as concurrence agency for the assessment of ERA 43 – Animal Housing, the application is refused in accordance with the concurrence agency response dated 17 November 2000.”
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii) This reason called up elements and Performance Criteria of the Catchment Code dealing with the water quality requirements of the State Environmental Planning Policy for Water and a proposed effluent absorption area.
(ix) “The proposal conflicts with the desired environmental outcome for environmental management in relation to the applicable relevant strategic implementation measures in relation to water quality effluent disposal and noise.”
(x) “The proposal conflicts with the desired environmental outcome for social equity and livability in relation to the relevant strategic implementation measure for separation and management of potentially conflicting land uses.”
Directions were given by the Court on 10 August 2001. Consequent upon that, the respondent advised that the issues in dispute were:
Noise
On-site waste treatment
On-site release of contaminants
Ground water and surface water quality
Drainage
Proximity to conflicting land uses
Traffic
At the hearing of the appeal, traffic was no longer relied upon by the respondent.
So far as it is necessary to set out provisions of the Intensive Animal Code, it provides:
Element 1: Site Suitability
Performance Criteria P1: “Premises must be developed on a site which;
(a) has a suitable shape and area to provide for adequate setbacks of buildings, pens, ponds and waste disposal areas from site boundaries, dwellings, water courses - - incompatible use on adjoining land - - -
- - -
(h) will not cause environmental harm to any urban, town, village, rural, or residential area or other existing sensitive use having regard to:
noise, odour or other air omission, water quality, visual impact - - - .”
Acceptable measures include: A1.1 The site the premises are developed on: is not less than: - - - 5 000 metres from any residential precinct.
Element 2: Site, Layout and Management
Performance Criteria P2: “Buildings, pens and other structures and waste disposal areas must be sited, constructed and managed such that the maximum number of animals intended to be kept or processed on the land can be accommodated without having any significant adverse impacts on the amenity of the locality.”
Acceptable measures include:
A1.1 “Buildings (other than for residential, administrative or amenity purposes), pens, ponds, other structures and waste disposal areas setback not less than the distances shown below - - :”
- - - Setback from any dwelling on surrounding land for a kennel or cattery - 200 metres “with lesser distances approved only when an approved ecological report has demonstrated the lesser distance to be ecologically acceptable”.
- - -
A1.3 “For assessable development adjoining or incorporating major drainage lines or gullies for the retention and/or enhancement of their natural ecological and biological qualities.”
Element 3: Environmental Performance
Performance Criteria P2: “Development and noise use must limit the generation of any noise such that:
(a) nuisance is not caused to adjacent properties or other noise-sensitive areas;
(b) applicable legislative requirements are met; and
(c) desired ambient noise levels for residential areas are not exceeded.”
Acceptable measures include:
A.4 “Development and use achieves the noise generation levels set out in the State’s Environmental Protection (Noise) Policy provisions and under that Policy are not unreasonable, or the following:”
(a) noise levels (measured at the adjusted maximum sound pressure level Lamax, adj, T) at a noise sensitive place which do not exceed 7 am – 10 pm background noise level plus 5dBA, 10 pm – 7 am background noise level plus 3dBA
(b) noise levels at a commercial place which do not exceed period 7 am – 10 pm background noise level plus 10 dBA,
10 pm – 7 am background noise level plus 8 dBA
Performance Criteria P4: “Development and use which provide for the collection, treatment and disposal of solid liquid wastes such that
(i) off-site releases of contaminants do not occur.
Acceptable measures include waste management measures which are based on the hierarchy of
(1) prevention/avoidance
(2) reduction
(3) recycling/re-use
(4) treatment
(5) disposal.”
So far as is necessary to set out provisions of the Catchment Code, it provides:
Element 4: Environmental Performance
Performance Criteria P4: “Development must provide for ecologically sustainable treatment and disposal of on-site wastes and ensure no serious environmental harm is caused in terms of impacts on the quality of any surface water or ground water resources and having particular regard to Council’s planning scheme Code for Wastewater Management for Domestic Systems (where applicable) and the Environmental Protection Policy for Water 1997.”
Acceptable measures include:
A.4.1 “A domestic on-site wastewater treatment and disposal system is installed which complies with provisions of Council’s relevant planning scheme Code and maintains the relevant environmental values required by the State Environmental Protection Policy for Water;
A4.2 Concentrated disposal of waste complies with the guidelines for disposal of animal manure (Water Quality Council of Queensland);
A4.4 All concentrated use areas each (eg. wash down areas - - ) are provided with site drainage to ensure all run-off is directed to treatment areas which can effectively reduce the levels of sedimentation and pollutants to within limits that will allow standards of receiving water quality to be maintained at levels required by the State Environmental Protection Policy for Water.”
So far as element 2 site, layout and management of the Intensive Animal Code is concerned, the closest point of the Younie residence is about 127 metres from the development applied for. It is less than the acceptable measure distance of 200 metres for a kennel. Furthermore, it is the respondent’s contention that noise and odour impacts likely to be caused by the development are unacceptable, and noise levels will fail to meet the acceptable measures for Performance Criteria P2 of element 3 of the Code.
So far as the Catchment Code is concerned, it was the respondent’s contention that the appellant had failed to show that the development would meet ecologically sustainable treatment and disposal of on-site wastes.
The issues
(a)Noise
The evidence on this issue occupied the majority of the time taken to hear the appeal.
The appellant relied upon two experts, Mr McNeilage whose reports are Exhibits 2A and 2B and Mr Kampst who conducted noise monitoring at the site from 4.00pm on the 8th December 2000 to 12.00 noon on the 12th December 2000. Essentially, the respondent does not challenge the evidence of Mr Kampst. Indeed, Mr Chessells who gave evidence for the respondent on this issue, relied upon the findings of Mr Kamst. The methodology used by Mr McNeilage and Mr Chessells was quite different. Unfortunately, Mr Chessells was not engaged until some weeks prior to the hearing and his report was not made available to the appellant until the night before the hearing. However, no objection was taken to its admission and no adjournment was sought, so the Court is obliged to consider the evidence of Mr Chessells on its merits in the same way as it considers the evidence of Mr McNeilage and Mr Kampst. Because of the lateness of Mr Chessells’ involvement in the matter, it was not possible for the respondent to comply with the Court’s directions orders, with the consequence that there was no opportunity for the experts to meet and resolve points of agreement and points of dispute.
Both Mr McNeilage and Mr Chessells rely on the findings of Mr Kampst. To quantify existing noise levels in the area, Mr Kampst used a calibrated ARL noise logger (situated where marked in Figure 1 to Exhibit 3). Over the four day period noise levels were recorded at 15 minute intervals.
Noise levels are expressed in terms of Lmax, L1, L10, L90 and Leq which are respectively, the maximum noise level during a sample, the noise levels exceeded 1%, 10% and 90% of the time, L90 is referred to as the background noise level, and Leq is the average or “flattened out” noise level over a 24 hour period.
Table 1 to Exhibit 3 sets out Mr Kampst’s summary of the range and averages of the noise levels obtained during the day, (6:00 – 18:00), evening (18:00 – 22:00) and night (22:00 – 6:00). The average L90 noise level during the day is 38.0 decreasing to 33.8 at night. The results obtained by Mr Kampst “indicate that the existing noise levels at the site and its surroundings are quite low, reflecting the rural nature of the area”.
Before proceeding to deal with the evidence of Mr McNeilage and Mr Chessells, it is necessary to refer to the properties immediately to the north of the subject site and to the east. These are respectively the Nash property and the Cox property. I find that it is highly unlikely that the Nash residence, if and when built, would be built within 200 metres of the proposed kennels, particularly for the reason that the Nash property is low-lying immediately adjacent to the proposed development, and it is much more likely that any dwelling would be towards the front of the property closer to Murdering Creek Road. It emerged in the evidence of Mr Dender that there is an existing dwelling on the Cox property, which is well outside the 200 metre buffer. Mr Chessells has set out to predict possible noise effects for houses which may be erected on these properties. Mr Keim submits that the hypothetical construction of houses on the Nash and Cox properties within the 200 metre distance from the proposed development is an irrelevant consideration for the purposes of this assessment. He submits, by reference to the definition of “existing” in the Maroochy Plan 2000, the reference to “existing sensitive use” must be read as applying only to an existing dwelling. I think his argument ignores the express wording of subparagraph (h) of the P1 of the intensive animal code which refers to “any … rural residential area or other sensitive use…”. Such a construction, in my opinion, accords with the whole thrust of the Code given the highly intensive nature of activities such as those proposed here. It follows that the hypothetical future construction of dwellings on either property is a relevant factor.
The principal thrust of the evidence of noise levels was in relation to the existing dwelling, the Younie residence.
Mr McNeilage did not conduct any actual scientific experiment to measure predicted levels of noise from barking dogs at the proposed kennels. Nor does his report explain assessment of noise attenuation measures which are to be constructed, e.g. the noise fence and the proposed agricultural mound, and the building itself. Mr McNeilage has relied upon his own previous experience with dog kennels and noise attenuation measures associated with dog kennels.
In his report (Exhibit 2A) he states:
“69.Dog barking is usually below 100 dB(A) and with multiple dogs barking is unlikely to exceed 105 dB(A). The Department of Environment and Heritage Draft Boarding Kennel Environmental Guideline (1995) notes that barking ranges between 45 and 100 dB(A).
…
71.Most dogs will be further than 127 m away from the nearest residence as this is the closest distance of the open runs attached to the kennels. The noise from those dogs at the other end of the kennels will be reduced by about a further 3.5 dB(A). Any dogs in the open exercise runs behind the kennels will be shielded by the kennel buildings and the resulting noise levels at the nearest residence will be less than those expected to originate from the open kennel runs.
72.Based on a worst case scenario source noise level of 105 dB(A), and assuming all noise originates from the closest point within the kennels, the noise at the adjacent residence resulting from uncontrolled barking within the proposed new kennels has been estimated in Table 4 below.
Table 4: Expected external noise levels at the nearest residence
Distance
from
Kennels
(m)
Distance
attenuation
dB(A)
Ground and air attenuation
dB(A)
Building attenuation dB(A)
Acoustic barriers dB(A)
Probable noise
levels
dB(A)
Comment
Day
127
53.1
1.9
0
15.0
35
Within the observed background noise range
33 – 54
Night
130
53.3
2.0
20.0
15.0
15
Below observed background levels
30 - 42
…
74.The assumed attenuation values used in Table 4 for building attenuation and acoustic barriers are less than those observed by this author at other sites, and therefore provide a worst-case prediction. In practice higher levels of attenuation are likely. The building attenuation level of 20 dB(A) assumes a well constructed building in accordance with the recommendations with all doors closed.
75.The acoustic barrier attenuation level assumes a minimum acoustic barrier around the open runs of 3 m height and an earth mound and acoustic fence a total of 3 m height between the kennel complex and the adjacent residence to the south. Each of these components may provide a noise reduction of up to 10 dB(A). When used in combination a very conservative 15 dB(A) reduction has been assumed.”
It is common ground that dog barking is impulsive, and that impulsive noise can produce a strong reaction in people. Mr McNeilage says that the attenuating effects of the building, the fence and the distance to the Younie residence will remove some of the impulsive nature of the noise, and he allows a correction of 2 dB(A) as a “reasonable and worst case value”.
As I have noted, Mr Chessells only became involved some two weeks prior to the hearing. His approach was firstly to undertake sound pressure measurements of one dog barking, and these results are set out in Table 3 in Appendix D to Exhibit 6. He then undertook a prediction of sound pressure levels at the site by using a computer model known as the Environmental Noise Model (ENM) which requires the input of sound power level data, and then estimates sound pressure levels by one, two, four and then seven dogs barking within open kennel runs and within fully enclosed kennels. His model was not calibrated which he acknowledges tends to undermine his results. Mr Skoien concedes that his results could be out by 2 dB(A) either way.
His results are set out in Table 8:
Table 8: ENM predicted maximum sound pressure levels caused by the proposed development at adjacent noise sensitive places.
Adjacent Noise
Sensitive Places
ENM Predicted Maximum Sound Pressure Level (L10) – dB(A) During the period between 7am to 7pm when dog(s) are exercising in the open runs when nominated dogs are barking During the period between 7pm to 7am when dog(s) are kept fully enclosed within the kennels when nominated dogs are barking 1 2 4 7 1 2 4 7 The Younie residence (south of the site) Ø First level bedrooms 33 39 43 49 29 32 35 38 Ø Second level bedrooms 37 43 46 50 30 33 36 39 Ø Second level verandah 37 43 46 50 30 33 36 39 Ø Recreational pool area 35 41 45 50 29 32 36 39 Future residence on the Cox property (east of the site) Ø First level 45 47 52 57 36 39 42 45 Ø Second level 48 50 54 58 39 42 45 48 Future residence on the Nash Property (north of the site) Ø First level 44 49 55 57 35 38 41 44 Ø Second level 44 49 54 57 38 41 44 47
Whereas Mr McNeilage was only prepared to make an adjustment of 2 dB(A) to take into account the impulsive nature of dog barking noise, Mr Chessells says that an adjustment of 5 dB(A) is more appropriate as “dog barking would be a discernible noise event within the site locally”.
The different methodologies adopted by Mr McNeilage and Mr Chessells to provide evidence on the critical issue of noise presents the Court with real difficulty in reaching any final conclusions. In his report, Mr McNeilage adopts a maximum of 100 dB(A) for one dog and 105 dB(A) for multiple dogs barking which he bases on his experience and the 1995 Guideline (see para 69 of Exhibit 2A). In his oral evidence, he referred to an earlier occasion when he had measured a sound power level of a red setter barking at 103 dB(A). Mr Chessells calculated sound power levels (by reference to Australian Standard 1217-1985, Acoustics – Determination of Sound Power Levels of Noise Sources) from the average maximum sound pressure levels measured of one dog barking which resulted in a starting figure (for his modelling exercise) of 112.9 dB(A) (see Table 6 in Appendix D to Exhibit 6). Mr McNeilage, in Exhibit 2A, used a starting figure (for one dog) of 100 dB(A) before applying his predicted attenuations.
As I have noted, Mr McNeilage relied upon his own experience, to set out attenuation adjustments to be used for the building and the proposed acoustic barriers. (There seems to be no dispute as to his estimates for attenuation due to distance.) On the other hand, Mr Chessells incorrectly used a STC (Sound Transmission Characteristic) of 37 for the proposed roof of the building, when in fact the correct figure is 44. He explained this came about because he could not find information about the STC of the proposed roof in the development application material he received from the respondent. The differences in approach result in quite different starting points – in the case of Mr McNeilage, 100 dB(A) for a single dog barking and 113 dB(A) for Mr Chessells. Mr McNeilage’s predictions are therefore that, taking into account attenuation factors, the proposed development will not offend the acceptable measures set out in the Code, whereas Mr Chessells’ modelling exercise suggests that the ‘background plus’ test referred to in the Code will be breached in both the daytime and the night time whenever two or more dogs bark. The witnesses also disagreed over the attenuation to be allowed for the external walls of the bedroom in the Younie residence closest to the proposed development. Mr Chessells was only prepared to allow a small adjustment because of the actual proximity of the bed in that room to the open window, whereas Mr McNeilage opted for a 10 dB(A) reduction (see para 77 of Exhibit 2A). Mr McNeilage was also critical of Mr Chessells’ modelling in relation to the predicted sound pressure levels when more than one dog is barking. Mr Chessells produced revised figures, and provided detailed explanations for his calculations (see Exhibit 17). The evidence on this issue (as with other issues) often assumed a combative flavour, with both witnesses arguing strongly (and at times at great length) for their particular point of view. With respect to Mr McNeilage, I think he took a rather unrealistic approach to the suggestion that in kennels housing up to 75 dogs, it is improbable that dogs will be barking “in unison” as opposed to out of sequence. Mr Dender accepted (reasonably) that wildlife on the roof of the kennels at night may cause the dogs “to go off”. I agree with Mr Skoien that as a matter of common sense, there will be times when more than one dog is barking at the same time. Mr McNeilage criticised Mr Chessells’ figures for multiple dogs barking on the basis that his modelling outcomes offended the accepted increase of 3 dB(A) when a sound is doubled. The later figures (Exhibit 17) and explanations given by Mr Chessells as to the anticipated different positions of dogs within the kennels, and consequently different noise attenuation paths for each dog were convincing. Although Mr McNeilage said the ENM was an acceptable model, nevertheless he was critical of the outcomes probably because he has not taken into account factors such as the different positions of dogs during the daytime.
It is for the appellant to establish that the appeal should be upheld: s.4.1.50(1) IPA. The Younie residence is only 127m from the closest point of the proposed development. The appellant can only succeed on the noise issue if it satisfies the Court upon all of the evidence that the proposal could be properly conditioned to satisfy the Code requirements. There are many criticisms directed at the two principal witnesses in the written submissions. In my view, it is not necessary for me to deal seriatim with each of these criticisms. I find I am not in a position to reject the evidence of one of these witnesses or to confidently prefer one to the other. I do not agree with Mr Keim that the evidence of Mr Kampst supports Mr McNeilage. In my view, his evidence is capable of lending support to both experts. Given the requirements of the Intensive Animal Code, it follows that because of the uncertainty in the scientific evidence about possible noise effects, the appellant has failed to satisfy the onus upon it to prove the proposal could be properly conditioned to satisfy the Code requirements.
(b)Disposal of Waste
I am satisfied the proposal to use vermiculture as on-site treatment of dog faeces is quite acceptable. It will not cause any odour problem. I note it was not criticised by Mr Skoien on behalf of the respondent.
(c)Irrigation, ground water, drainage etc.
The respondent’s main criticism of this aspect of the proposal is that it lacks the necessary detail for a proper assessment to be undertaken at the assessment stage. Specifically, Mr Skoien has referred to:
(a) the apparent absence of any proper provision for storage of effluent during wet weather events longer than two days (that is exceeding the 1900 litre tank capacity);
(b) the apparent absence of any detail to deal with contamination of stormwater through runoff water from the run areas and/or the use of the mounded area for exercise;
(c) the absence of any detail concerning the number of points of discharge and the location of the points of discharge for stormwater, including potentially contaminated stormwater.
The respondent also points to the lack of detail as to the assessment of the existing quality of the water on the subject land, and the quality of the expected effluent and contaminated stormwater from the proposed kennels. It argues that, in the absence of such detail, the Court could not be satisfied that the existing water quality and air quality would not be substantially affected from contaminants emerging from the proposed use. Mr Keim’s response on behalf of the appellant is that all these issues (with the exception of the assessment of present water quality) are covered by the EMP, and/or will be clarified at the design stage before building commences.
In my view, the proposal (in relation to these issues) could be appropriately conditioned to comply with the relevant Code. Mr Keim refers to proposed conditions in paragraph 46 of his written submission.
Costs
Mr Keim has applied for costs irrespective of the outcome. Ordinarily, each party bears its own costs: s.4.1.23(1) IPA. However, s.4.1.23(2) IPA permits the Court, in the exercise of its discretion, to order costs in any of the circumstances therein enumerated. Mr Keim’s submission is directed primarily at s.4.1.23(2)(i). He also submits that the respondent has failed to comply with the Court’s procedural requirements: s.4.1.23(2)(e). I have previously referred to these issues. My findings in relation to the issue of noise amount to a conclusion that the evidence is such that the Court cannot be satisfied that the appellant has discharged the onus upon it. The conduct of the respondent is unfortunate, but, as Mr Skoien correctly observes, the issue upon which the appeal has failed has always been a live issue between the parties. In my view, the complete answer to Mr Keim’s application is this. He was entitled to apply for an adjournment of the hearing because of the lateness of delivery of Mr Chessells’ report, particularly so as it challenged fundamentally, using a different methodology, the opinions of Mr McNeilage. He chose no doubt for sound commercial reasons, not to apply for an adjournment. In those circumstances, the Court’s discretion to order costs should not be exercised in favour of the appellant.
Order:Appeal dismissed.
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