Breen and Anor v Georges River Council

Land and Environment Court (NSW)|2021-04-13|Before: Robson J, Ms J

Judgment

Before the Court is a notice of motion filed 23 March 2021 by Georges River Council ('Council') seeking that the Class 1 application commenced by Douglas Breen and Tracey Dillon (the 'applicants') on 24 February 2021 pursuant to s 289 of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), against prevention notices dated 29 January 2021 issued by Council, be dismissed.
In accordance with the Court's COVID-19 Pandemic Arrangements Policy, the hearing of the motion proceeded by Microsoft Teams Virtual Courtroom on 13 April 2021. Ms J Ware, solicitor, appeared for Council and Mr D Breen appeared without legal representation, and called evidence and made submissions on behalf of both the applicants.
Council contends that the Class 1 application (the 'appeal') has been commenced out of time and, in the alternative, discloses no reasonable cause of action.
For the reasons that follow, I find that the appeal should be dismissed.

Background

The salient facts are relatively uncontentious and may be shortly stated.
Mr Breen and Ms Dillon, the applicants in the appeal and the respondents in the motion, own jointly, and reside at, 118 Moons Avenue, Lugarno (the 'premises').
On or about 30 September 2020, Council received a complaint from a local resident in relation to noise emanating from a water heat pump located at the premises. Water heat pumps are subject to noise limitations under development standards pursuant to cl 2.46B of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

The January Notice informed each of the applicants that "you can appeal" against the January Notice to the Land and Environment Court and the "deadline" for lodging an appeal is 21 days after "…you were served with the notice." It also noted that the requirements of the January Notice "…may only be varied or revoked by written notice issued by Council".
On 2 February 2021, the applicants received the January Notice. On and after 3 February 2021, Mr Breen wrote to and had conversations with Council officers in response to the January Notice wherein he provided details of the nature and use of the water heat pump, and expressed various concerns including that his neighbour may have led Council officers to believe that the pool heater "runs after hours", which he stated was a "false and misleading accusation". He also provided details of the discordant relationship with a neighbour and informed Council that he had retained an acoustic consultant to carry out an assessment.
On 23 February 2021, Mr Breen informed Council officers by email that he considered that the "…method that has been reportedly used to measure the ambient background noise by your officers is likely to result in [an] erroneous finding". The email also noted that the officers may not have had appropriate training or that the noise measurement method used may lack "a properly defined process" and that it was the third time that Council officers "…have recently joined with my neighbour in what we feel is bullying and harassing behaviour [that is] unwanted and unnecessary". By further correspondence later that day, Mr Breen informed Council that "[w]e [Mr Breen and Ms Dillon] intend to apply for a stay of the notice which I understand we have 20 days from it being served which for the one issued to Tracey [Ms Dillon] there is no issue but the one issued to myself so there is no administrative burden or confusion an extension of the notice would be appreciated".
Mr Breen deposes that he commenced the appeal by lodging an "online application" to the Court at 2.00am on 24 February 2021. Council accepts that the appeal was electronically filed on 24 February 2021 (albeit that Council submits it was at approximately 3.14am).
The appeal filed by the applicants seeks the following orders: "… 1. Withdrawal of letter "Noise from Heat pump" dated 24 December 2020 to Mr D Breen from Georges River Council File Reference 20/2014. 2. Withdrawal of Prevention Notice to Mr Douglas Martin Breen dated 29 January 2021 from Georges River Council File Reference ON2021/0052;20/2014. 3. Withdrawal of Prevention Notice to Ms Tracey Jane Dillon dated 29 January 2021 from Georges River Council File Reference ON2021/0052;20/2014. 4. Waive all fees and charges associated with the said Prevention Notices. 5. Written apology from George's River Council."
On 24 February 2021, Council wrote to Mr Breen stating that Council, having reviewed Mr Breen's representations concerning the January Notice, and in particular Mr Breen's clarification that the pool and spa heater "do not operate" during restricted (8.00pm to 7.00am) hours, had "withdrawn" the "Prevention Notice issued on 10 February 2021". It appears that the reference to "10 February" was a mistake and the correspondence referred to was the January Notice. Despite this, the correspondence stated that as the noise readings taken by Council officers on 22 January 2021 "justifies" the issuing of a prevention notice, an "amended Prevention Notice" dated 24 February 2021 was issued to Mr Breen (the 'February Notice') and was attached to the correspondence.
The February Notice replicated the precise wording of the January Notice except for the table directing Mr Breen to take preventative action, which deleted Item 1 relating to the operational hours of the heat pump from the January Notice and changed the completion dates for the remaining items, and was in the following form: ITEM ACTION REQUIRED COMPLETION DATE
Engage a suitably qualified Acoustic Consultant to undertake an acoustic assessment of the Offensive Noise emanating from the swimming pool heat pump. 26 March 2021 Submit to Council's Environmental Health Officer a detailed acoustic assessment report including the recommendations to address the operation of the heat pump such that it does not give rise to a sound pressure level at any affected premises that exceeds the background LA90, 15 min noise level, in the absence of the noise sources under consideration by more than 5dB.
Carry out all recommended works stipulated in the acoustic report that was submitted to Council in compliance with Item 1, above. 12 April 2021
Submit to Council a final report from the Acoustic Consultant verifying that all works detailed in the assessment report have been undertaken and the use of the swimming pool heat pump no longer causes Offensive Noise, to the occupant/s of any other residential premises. 19 April 2021

On 16 March 2021 (prior to the first directions hearing of the appeal which was to be held in the Land and Environment Court on 24 March 2021), Council wrote to Mr Breen requesting that he withdraw the appeal on the basis that Council considered that the appeal was deficient because: first, it related to correspondence from Council dated 24 December 2020 that merely conveyed information and is not a prevention notice; second, a copy of the January Notice had not been filed with the appeal with the Court; third, although Mr Breen indicated he sought to appeal against the January Notice (dated 29 January 2021), the appeal had been commenced out of time and was therefore invalid because it was not commenced within 21 days as required by s 289(1) of the POEO Act; and finally, that the February Notice "revoked all previous Prevention Notices" including the January Notice the subject of the appeal.
The present motion to dismiss the appeal was filed by Council on 23 March 2021.
At the hearing of the motion on 13 April 2021, the Court was informed that Council had recently revoked the February Notice and that there were "continuing without prejudice discussions" being undertaken between the parties.

Evidence

In support of its motion, Council read the affidavit of Narelle Kim Hanger sworn 24 March 2021. The applicants read the affidavit of Douglas Breen sworn 30 March 2021. Both Ms Ware and Mr Breen provided written and made oral submissions.
The affidavit of Ms Hanger outlined the background of the matter and included details of correspondence passing between Council officers and Mr Breen (and Ms Dillon) and further detail of various conversations that had taken place between them. Ms Hanger's evidence was uncontested (apart from some matters raised in Mr Breen's affidavit considered below) and much of her evidence has been noted in the salient facts summarised above.
In his affidavit, which was not objected to by Council, Mr Breen set out detailed background facts in respect of his relationship with his immediate neighbour and his various attendances upon Council officers by telephone and email in relation to the water heat pump, the January Notice, the February Notice and the appeal. He also provided details of the water heat pump, its location, operation and use over a period of time.
Although the Court received and read the whole of Mr Breen's affidavit, a number of paragraphs were not relevant to the issues in the motion as they were directed at issues relevant to the substantive appeal. Despite this, and conscious that the applicants appear without legal representation, the evidence was received to provide background and context to Mr Breen's concerns.
Mr Breen also relied upon internal Council correspondence, attached to his written submissions, that referred to concerns as to the accuracy of the dates and times of recorded noise measurements taken from the water heat pump on 22 January 2021.

Council's submissions

Council's submissions do not raise all the earlier matters set out in Council's correspondence to Mr Breen dated 16 March 2021 summarised at [19] above. While referring generally to matters in its correspondence dated 16 March 2021, Council makes two primary submissions: first, that the appeal is out of time and therefore invalid; and second, and in the alternative, that the appeal raises no reasonable cause of action as it relates to the January Notice which has been revoked.
In relation to the appeal being out of time, Council submits that the January Notice was served on 2 February 2021 (as deposed to by Mr Breen in his affidavit) and the appeal was commenced on 24 February 2021. Where s 289(1) of the POEO Act provides that appeals against prevention notices must be lodged within 21 days after service of the prevention notice, Council submits that the appeal has been commenced out of time and the appeal should be dismissed.
Council submits that the Court has no power to extend the 21-day timeframe for the commencement of the appeal, noting that: first, there is no provision within the POEO Act to extend the timeframe in s 289(1); second, there is no power under s 68 of the Land and Environment Court Act 1979 (NSW) to cure the lapsed timeframe by amendment as this section does not apply to Class 1 proceedings; and third, that the provision for extension of time in the Land and Environment Court Rules 2007 (NSW) do not apply to statutory timeframes such as that contained in s 289(1) of the POEO Act.
In the alternative, Council submits that there is no reasonable cause of action in the appeal. Council relies upon r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') which states as follows: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or …
Council submits that the appeal does not disclose a reasonable cause of action, for the purposes of r 14.28(1)(a) of the UCPR, as it relates to the January Notice which has been revoked by Council. As such, Council submits that the proceedings are futile, and, in any event, the orders sought (as summarised at [16] above) are confusing, irrelevant or legally embarrassing.

The applicants' submissions

In summary, Mr Breen submits: first, the January Notice has not been "revoked" because the February Notice "varied" the January Notice; second, the appeal was commenced within time; and third, by reference to the evidence Mr Breen would rely on in the substantive appeal, the appeal discloses a reasonable cause of action.
Mr Breen submits that Council has simply varied the January Notice by the provision of the February Notice, which means that the January Notice has not been revoked. Mr Breen relies upon s 110 of the POEO Act which he submits specifically provides for "[r]evocation or variation" of prevention notices, stating that: "S110 - Revocation or variation … A notice may be varied by modification of, or addition to, its terms and specifications… … Without limiting the above, a notice may be varied by extending the time for complying with the notice…"
Mr Breen further submits that the POEO Act provides for appeals against prevention notices as varied, as s 289(3) of the POEO Act contains the words "…includes a notice that varies such a prevention notice".
In the circumstances, Mr Breen characterises the issuing of the February Notice as a variation of the January Notice by modifying through the removal of one of the preventative actions that was otherwise to be undertaken by Mr Breen. In support of this characterisation, Mr Breen submits that the variation was a response by Council to the representations he made seeking further time to undertake the preventative actions and the clarification he provided regarding the hours of operation of the water heat pump. Additionally, Mr Breen submits that the February Notice does not specifically indicate that it "revokes" the January Notice.
Secondly, Mr Breen submits that, contrary to Council's position, the appeal is not out of time, as it was lodged within the 21-day timeframe. Mr Breen submits that the January Notice was issued and posted on the same day, being 29 January 2021. On Mr Breen's submission, the "day of service" from which the 21-day timeframe commences is to be calculated in accordance with s 76 of the Interpretation Act 1987 (NSW) ('Interpretation Act') which he submits has the effect that the date of service should be 10 February 2021, being 7 working days later.
Mr Breen also notes that 10 February 2021 is nominated in Council's correspondence dated 24 February 2021, which enclosed the February Notice, as the date of issue of the January Notice. In oral submissions, Mr Breen sought to rely on the reference to 10 February 2021 as evidence of an agreement between the parties that service was effected on 10 February 2021, citing r 10.6 of the UCPR (which relates to the service of documents during proceedings).
Section 76(1)(b) of the Interpretation Act provides that: "…unless evidence sufficient to raise doubt is adduced to the contrary, [service by post is] taken to have been effected on the seventh working day after the letter was posted…"
Finally, although not relevant to the applicants' primary position in response to the motion before the Court, Mr Breen made submissions outlining the evidence the applicants will rely upon at the hearing of the appeal, should it proceed, which he submits shows that the appeal discloses a reasonable cause of action.
The evidence Mr Breen points to includes advice he received from an acoustic consultant which suggested that the noise measurements from the water heat pump that Council claimed to have recorded were inaccurate; that certain documents subsequently provided by Council (in relation to the noise measurements undertaken at the premises) indicate that the noise readings recorded do not correspond with the dates of attendances at the premises; that the instrument used to measure noise levels had been (or may have been) tampered with by an unknown person resulting in anomalies in its calibration; and that, in any event, neither Mr Breen or Ms Dillon gave permission to any Council officers to enter the premises for the purpose of investigating the source of the noise complaint.
Mr Breen also submits that the January Notice contains statements that Council officers knew were false and misleading (or likely to result in the discovery of false and misleading statements), such that he considers that the January Notice was issued unlawfully and in breach of the POEO Act. Mr Breen refers to s 113 of the POEO Act ("[f]alse or misleading statements in reports") and s 211(2) of the POEO Act ("[o]ffences").
In Mr Breen's written material (being an affidavit and various correspondence with Council), he also makes a number of allegations in relation to the conduct of Council officers with respect to their acceptance of, and reliance upon, earlier complaints made by Mr Breen's neighbour in relation to the water heat pump.

Consideration

Before considering the discrete arguments raised in the parties' submissions, it is appropriate to make a few preliminary comments.
Section 96(2) of the POEO Act provides that an appropriate regulatory authority (in this case, Council) may issue a prevention notice directing the "occupier" of premises or "person carrying on the activity" to take "action" to ensure that an "activity" is carried out in future in an "environmentally satisfactory manner".
The issuance of a prevention notice is a serious matter, particularly given that non-compliance with a prevention notice is an offence and a breach of s 97 of the POEO Act: Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95 at [98]; Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 ('Eurobodalla v Gerondal (No 3')) at [21].
The provisions of s 96(1) of the POEO Act in relation to the foundation for giving a prevention notice make it clear that what is required is a reasonable suspicion on the part of Council that an activity has been, or is being, carried out "in an environmentally unsatisfactory manner": Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 at [7]; Eurobodalla v Gerondal (No 3) at [19]. Environmentally unsatisfactory manner is defined in s 95 of the POEO Act.
It is clear that Mr Breen has concerns in relation to the conduct of Council and, I interpolate, suggests that Council did not have the "reasonable suspicion" that was otherwise required before issuing the January Notice. I note this because of the extensive material that Mr Breen has marshalled in relation to the conduct of Council generally (and indeed Council officers in particular) and the significance that Mr Breen attaches to Council's conduct.
Despite Mr Breen's expressed concerns, I do not consider, on the material presently before the Court, that there is any evidence that Council did not conduct itself appropriately in the circumstances, apart from the suggestion that Council may have been aware (possibly at some stage after 22 January 2021) that there may have been some interference with the noise measurement equipment used to measure the noise levels at the premises.
I also note that, in hearing and deciding the motion before me, I am not considering the merits of the substantive appeal by Mr Breen against the content of the January Notice. In the circumstances, Mr Breen may well have an arguable case in the appeal. I make no further comment on this aspect, other than to note that whether the case in the substantive appeal would be arguable, or otherwise, is not a matter I am able to take into account (contrary to cases where the Court has a discretion to extend time, where whether there is an arguable case is a matter that is taken into account in the exercise of that discretion). This also deals with Mr Breen's comments in relation to the inclusion of potentially false and misleading statements in the January Notice.
Rule 14.28(1) of the UCPR provides: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court.
I consider that the evidence before the Court, in the form of the correspondence from Council dated 24 February 2021, indicates that the January Notice has been revoked by Council. Further, I accept Ms Ware's advice to the Court (which was not contradicted by Mr Breen) that Council has now revoked the February Notice.
The fact that Council has now revoked both the January Notice and the February Notice means the subject matter of the appeal no longer exists. This is determinative of the motion, as, in these circumstances, there is no utility remaining in the appeal, and the relief in the motion should be granted.
Moreover, this means that even if it was the case that the appeal had been commenced in time (which, as considered below, I do not find), and/or that the appeal was properly commenced in relation to the then extant January Notice and that the appeal was able to be continued (either by way of a finding that the January Notice was varied by the February Notice and/or that the appeal could be varied to substitute the February Notice for the January Notice), both these positions have now been rendered otiose by the Court having been made aware that both the January Notice and the February Notice have been revoked.
Given my findings above, while it is not necessary to determine whether the appeal was commenced out of time, as that the Court received submissions in this regard, my view can be shortly expressed.
It is clear that, pursuant to s 289(1) of the POEO Act, the applicants had a right to appeal to the Land and Environment Court against the January Notice within 21 days of being served. I consider that the appeal by the applicants was commenced out of time (albeit only by a short margin). On Mr Breen's evidence, the applicants received the January Notice on 2 February 2021. The lodging of the appeal in the early hours of 24 February 2021 was therefore outside the 21-day timeframe required by the POEO Act.
Given the applicants had received the January Notice on 2 February 2021 (where both Mr Breen and Ms Hangar deposed to a specific conversation about the January Notice occurring on 3 February 2021), reliance cannot be placed upon the deemed service provision in s 76 of the Interpretation Act. As noted above, the assumption that service by post is taken to be effected on the seventh working day after a letter was posted is qualified by, "…unless evidence sufficient to raise doubt is adduced contrary…". In the circumstances, the applicants have provided evidence that they were served with the January Notice on 2 February 2021.
I further accept Council's submission that the Court does not have power to extend the timeframe for an appeal to be instituted under s 289(1) of the POEO Act.
Given my findings above, it is also not necessary to determine whether the effect of the February Notice was to vary the January Notice (an argument of some nicety) however again, as the parties made submissions on this issue, I provide some short comments.
I do not accept Mr Breen's submission that the issuance of the February Notice constitutes a variation of the January Notice. Although I accept that s 110(2) of the POEO Act provides that a notice issued under Ch 4 of the POEO Act, such as a prevention notice, may be "…varied by modification…", and while I initially found this argument had some attraction, I am conscious that form should not trump substance. I consider that the February Notice was a discrete new notice, subsequently issued, with not unsubtle amendments to the table of actions (as noted at [18] above), for the reasons that were set out in the correspondence of 24 February 2021 (meaning that Council considered and accepted the representations made by Mr Breen - at least in relation to the use of the water heat pump during restricted hours - in issuing a new prevention notice).
Finally, I note for completeness, with the revocation of both the January Notice and February Notice, any variation of the appeal to substitute the February Notice for the January Notice would be inutile.
In the circumstances, it is appropriate that the appeal be dismissed. Although Council has enjoyed success in the motion, I am mindful that the applicants have been issued with the January Notice and the February Notice which have now been revoked by Council and as Council does not seek its costs, I consider that it is fair and reasonable to make no order for costs, with the result that each party is to pay its own costs.

Orders

The Court makes the following orders: 1. The appeal is dismissed. 2. Each party is to pay its own costs.
The Court notes that the prevention notices issued by Georges River Council to Douglas Breen and Tracey Dillon dated 29 January 2021, and the prevention notice issued by Georges River Council to Douglas Breen dated 24 February 2021, have been revoked by Georges River Council.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2021

Environment Operations Act 1997(NSW)ss 95, 96, 97, 110, 289

Environment Operations (Noise Control) Regulation 2017(NSW)

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