Rogers v Clarence Valley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rogers v Clarence Valley Council [2013] NSWLEC 194

Hearing dates:

21 and 21 August 2012, 11 June, 26 and 30 July, 1 November 2013

Decision date:

14 November 2013

Jurisdiction:

Class 2

Before:

Pepper J

Decision:

See orders at [64].

Catchwords:

APPEAL: appeal against noise prevention notice - consent orders made - whether parties bound by consent orders - whether experts' reports were in compliance with consent orders.

Legislation Cited:

Protection of the Environment Operations Act 1997, s 96

Cases Cited:

Meriden School v Pedavoli [2009] NSWLEC 183

Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168

Category:

Principal judgment

Parties:

Sally Rogers (Applicant)
Clarence Valley Council (Respondent)

Representation:

Mr C Adamson (Solicitor) (Applicant)
Mr N Hogan (Respondent)
Mr C Adamson (Applicant)
Clarence Valley Council (Respondent)

File Number(s):

20585 of 2012

Judgment

The Court Makes Orders for the Implementation of an Amended Noise Management Plan

1. This judgment contains the reasons of the Court for the making of orders to implement an Amended Noise Management Plan ("ANMP").

1. The background to the making of these orders is lengthy and somewhat of a dog's breakfast but, as will become apparent, requires setting out in detail. It is as follows.

1. The matter originally came before the Court as a challenge filed in Class 2 of the Court's jurisdiction by the applicant, Ms Sally Rogers, to a noise prevention notice issued by the respondent, Clarence Valley Council ("the council"), under s 96 of the Protection of the Environment Operations Act 1997 ("the POEOA").

1. The noise prevention notice had been issued by the council due to numerous complaints by neighbouring properties about the noise generated from barking dogs housed and cared for by Ms Rogers on her property at a no-kill animal shelter known as "Happy Paws Haven" ("Happy Paws"). The noise is said to be particularly problematic at night.

1. Happy Paws is a not for profit operation. The time, financial and emotional commitment dedicated by Ms Rogers to the shelter and the welfare of the dogs housed in it is admirable and she is to be commended for it.

1. Initially the central issue in the proceedings was the emission of dog noise from Mrs Rogers' premises where she lawfully operates Happy Paws (the lawfulness of the use was established in Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37). It is, of course, somewhat trite to note that dogs bark (especially anxious dogs) and that an animal shelter housing predominantly dogs (there is a cattery also present) will generate noise. The question the subject of the appeal was whether the noise was above acceptable limits under the POEOA.

1. The matter was listed to be heard over two days in Grafton on 20 and 21 August 2012. The hearing included a site visit and, as stated above, evidence was taken from a number…