Sessions v Penrith City Council - [2017] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation: Sessions v Penrith City Council [2017] NSWLEC 1328
Hearing dates: 22 May 2017, 9 and 14 June 2017
Date of orders: 14 June 2017
Decision date: 14 June 2017
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the appeal against the Directive dated 2 September 2016 issued by Penrith City Council to Sammy-Jo Sessions and Blake Drew under section 96 of that Act is upheld and the Directive is modified in accordance with Annexure A.

Catchwords: APPEAL - Prevention notice – activity carried on in an environmentally unsatisfactory manner – noise complaints – activity of operation of a gym - whether noise “offensive noise” - whether activity carried on by such practicable means to minimise emission of noise -
terms of prevention notice – prevention notice provided in accordance with agreement – prevention notice issued with varied time period for submission of noise assessment report and management plan
Legislation Cited: Land and Environment Court Act 1979 s 39
Protection of the Environment Operations Act 1997 ss 95, 96
Category: Principal judgment
Parties:
Sammy-Jo Sessions
First Applicant

Drew Blake
Second Applicant
Penrith City Council
Respondent
Representation: Solicitors:
Herbert Weller (First and Second Applicants)
Chris Drury, Sparke Helmore (Respondent)

File Number(s): 2016/284230

Judgment

COMMISSIONER: The applicants, Ms Sessions and Mr Drew, operate a gym on the ground floor of a mixed use building at 56-66 Lakeside Drive, Jordan Springs. The gym operates 24 hours each day for 7 days a week, consistent with the development consent. There are residential units above the ground floor, the occupants of which complain about the noise from the gym, particularly at night. The applicants appealed under s 289 of the Protection of the Environment Operations Act 1997 (“POEO Act”) against a prevention notice issued by Penrith City Council (“the Council”) directing the applicants, firstly, to take certain steps to reduce the emission of noise between the hours of 10:00pm and 7am and, secondly, to engage a suitably qualified consultant to assess the noise and vibration, prepare a noise and vibration impact assessment report, and prepare a management plan. On 14 June 2017 I made orders upholding the appeal but varying the direction in the prevention notice only to the extent of the time period within which to obtain the noise and vibration impact assessment report, and the management plan. These are the reasons for those orders.

The hearing

The hearing of the appeal commenced by site inspection. Following the completion of the site inspection, the parties indicated to the Court that they had agreed that the prevention notice be issued in the same terms as that issued by the Council, but with amendments to the time within which the applicants are required to obtain the assessment report and the management plan. The agreement that was communicated to the Court was that there would be a 21 day period for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1328
Decision Date: 14 June 2017

CaseChat Overview and Summary

Sessions and Drew, the respondents, appealed against a directive issued by the Penrith City Council, the appellant. The directive required the respondents to remove a shed from their property, as it was deemed to be in breach of a local environmental plan. The appeal was heard by the Land and Environment Court of New South Wales.

The respondents argued that the Council had no authority to issue the directive and that the removal of the shed would cause significant hardship. They further contended that the shed was not in breach of the local environmental plan. The appellant argued that the directive was valid and necessary to ensure compliance with the local environmental plan. The court was required to determine whether the Council had the authority to issue the directive, and if so, whether the directive was lawful and reasonable.

The court found that the Council did have the authority to issue the directive, as it was empowered to do so under section 96 of the Protection of the Environment Operations Act 1997. The court also found that the directive was valid and lawful, as it was based on a reasonable interpretation of the local environmental plan. However, the court found that the directive was unreasonable, as it did not take into account the hardship that the removal of the shed would cause to the respondents. The court therefore modified the directive, ordering that the respondents be given a reasonable period of time to remove the shed.

Orders

Orders of the court

The Court orders that:

Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the appeal against the Directive dated 2 September 2016 issued by Penrith City Council to Sammy-Jo Sessions and Blake Drew under section 96 of that Act is upheld and the Directive is modified in accordance with Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sessions v Penrith City Council [2017] NSWLEC 1328
Hearing dates:	22 May 2017, 9 and 14 June 2017
Date of orders:	14 June 2017
Decision date:	14 June 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the appeal against the Directive dated 2 September 2016 issued by Penrith City Council to Sammy-Jo Sessions and Blake Drew under section 96 of that Act is upheld and the Directive is modified in accordance with Annexure A.
Catchwords:	APPEAL - Prevention notice – activity carried on in an environmentally unsatisfactory manner – noise complaints – activity of operation of a gym - whether noise “offensive noise” - whether activity carried on by such practicable means to minimise emission of noise - terms of prevention notice – prevention notice provided in accordance with agreement – prevention notice issued with varied time period for submission of noise assessment report and management plan
Legislation Cited:	Land and Environment Court Act 1979 s 39 Protection of the Environment Operations Act 1997 ss 95, 96
Category:	Principal judgment
Parties:	Sammy-Jo Sessions First Applicant Drew Blake Second Applicant Penrith City Council Respondent
Representation:	Solicitors: Herbert Weller (First and Second Applicants) Chris Drury, Sparke Helmore (Respondent)
File Number(s):	2016/284230