Sydney Tools Pty Ltd v Oxford

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134

Hearing dates:

29 August 2018

Date of orders:

30 August 2018

Decision date:

30 August 2018

Jurisdiction:

Class 1

Before:

Pepper J

Decision:

See orders at [75]-[77].

Catchwords:

CIVIL PROCEDURE: application for stay of orders pending Class 1 appeal – noise abatement order – financial hardship to applicant if stay not granted – merits of proposed appeal – discretionary considerations – stay granted subject to terms.

Legislation Cited:

Canterbury Local Environmental Plan 2012

 

Land and Environment Court Act 1979, s 17

 

Protection of the Environment Operations (Noise Control) Regulation 2017

Protection of the Environment Operations Act 1997, ss 268, 271, 290

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

 

Chen v Lym International [2009] NSWCA 121

 

Chen v Virgona [2008] NSWLEC 281

 

Collier v Country Women’s Association of New South Wales [2017] NSWCA 303

 

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

 

Lawrence v Gunner [2015] NSWCA 322

 

Meriden School v Pedavoli [2009] NSWLEC 118

 

Meriden School v Pedavoli [2009] NSWLEC 183

 

Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd as Trustee of the Harry Triguboff Foundation [2017] NSWCA 331

Young v King (No 10) [2016] NSWLEC 70

Category:

Consequential orders (other than Costs)

Parties:

Sydney Tools Pty Ltd (Applicant)
Robyn Oxford (Respondent)

Representation:

Counsel:
Mr N Eastman (Applicant)
Ms Robyn Oxford (in person) (Respondent)

  Solicitors:
Mills Oakley (Applicant)
N/A (Respondent)

File Number(s):

2018/251087

Publication restriction:

N/A

Judgment

Sydney Tools Seeks to Stay or Vary a Noise Abatement Order

1. On 15 August 2018 Sydney Tools Pty Ltd ("Sydney Tools") filed an appeal against a noise abatement order ("the order") made against it and its occupation of 102 Bonds Road, Roselands ("the land") by the Local Court on 14 August 2018, under s 268 of the Protection of the Environment Operations Act 1997 ("the POEOA").

2. By notice of motion dated 20 August 2018, Sydney Tools seeks to stay or vary the order pending the determination of a Class 1 appeal against the order.

3. The order had been stayed in the Local Court until 1pm on 16 August 2018.

4. Both the appeal and the motion are opposed by Ms Robyn Oxford, who resides opposite the site at 47 Eva Street, Roselands.

5. Ms Oxford relied upon an affidavit sworn by herself on 27 August 2018, wherein she deposed to having witnessed alleged breaches of the order on several occasions. She tendered video evidence of the alleged breaches taken by herself and two neighbours (see below).

6. Ms Oxford also relied on affidavits sworn by Mr Ibrahim Asaad (on 23 August 2018) and Ms Sue Bayad (on 23 August 2018), who also deposed to multiple purported breaches of the order.

The Order

7. The terms of the order are as follows (they were annexed to the affidavit of Mr Matt Sonter, the solicitor representing Sydney Tools, affirmed 20 August 2018):

The Court orders, pursuant…