Doon v Snowy Valleys Council

Legislation Cited: Protection of the Environment Operations Act 1997, ss 96, 110, 289

Cases Cited: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99
Kempsey Shire Council v Slade [2015] NSWLEC 135
Maund v Shoalhaven City Council [2019] NSWLEC 89
McDonald’s Australia Limited v Coffs Harbour City Council [2023] NSWLEC 1067
Meriden School v Pendaroli [2009] NSWLEC 183
Meriden School v Pedavoli [2009] NSWLEC 118
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; (2003) 127 LGERA 303
Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278
Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134
Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300
Sessions v Penrith City Council [2017] NSWLEC 171

Texts Cited: NSW Environment Protection Authority, Noise Guide for Local Government 2023

Category: Principal judgment

Parties: James Doon (Applicant)
Snowy Rivers Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
R O’Gorman Hughes (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2024/0391550

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings centre on a prevention notice (the Notice) issued by an authorised officer, Mr Wilton, of Snowy Valleys Council (the Council) on 3 October 2024 under the Protection of the Environment Operations Act 1997 (POEO Act). The Notice directs Mr Doon to take preventative action to address noise being generated from his residential property at 131-133 Herbert Street, Tumut (Lot 10 DP 703914) (the site).

2. The directions in the Notice are in the following terms:

Snowy Valleys Council directs you to take the following actions:

1. Immediately prevent the emission of amplified music from being audible in any adjoining or adjacent residential premises. In any case, any amplified music shall not be more than 5dBA above the background noise level when measured at the property boundary of 131-133 Herbert Street, Tumut ‘the subject premises’.

2. No amplified music shall be emitted from the subject premises (at any) level between 8pm and 8am Monday to Sunday.

3. Any noise associated with activities being undertaken in connection with the garage or associated areas is to be immediately attenuated through the closing of external doors, limiting the length and duration of the noise generating activity and operating pneumatic tools in accordance with the manufacturer’s guidelines and in a manner that prevents offensive noise to adjacent properties. In any case, any noise generating activity shall not exceed 5dBA above the background noise level when measured at any of the subject property boundaries.

4. No recreational motor bikes shall be operated at the subject premises at any time.

(Exhibit 2)

3. Mr Doon (the Applicant) appeals the Notice pursuant to s 289 of the POEO Act. That provision is as follows:

289 Appeals against prevention notices

(1) A person served with a prevention notice may, within 21 days (or such other period as is prescribed instead by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice.

(1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.

(2) There is no appeal against a decision of an appropriate regulatory authority to extend the time for complying with a prevention notice.

(3) For the purposes of this section, a prevention notice is a notice under Part 4.3 and includes a notice that varies such a prevention notice.

4. The Notice was varied by the authorised officer, Mr Wilton, on 30 March 2025 pursuant to s 110 of the POEO Act. Mr Doon appeals the varied Notice (Amended Notice). The Amended Notice contains directions in the following terms:

Snowy Valleys Council directs you to take the following actions:

1. Noise generated from motor vehicles, tools, power tools or amplified sound equipment is not to be emitted from the Premises (131-133 Herbert Street, Tumut) in such a manner that it can be heard within any habitable room in any residence other than that at the premises during the following hours:

(a) Before 8am and after 6pm on any Sunday, Monday Tuesday, Wednesday and Thursday of any week.

In the case of noise emitted from the use of power tools or motor vehicles:

(b) Before 8am and after 6pm on any Friday, Saturday, and any day before a public holiday for noise emitted tools, power tools or motor vehicles; and

In the case of amplified music:

(c) Before 8am and after 10pm on any Friday, Saturday and any day before a public holiday in any week.

Such noise as is prohibited by the above does not include noise emitted by the following:

i. Vehicles entering or exiting the Premises when undertaken in accordance with the provisions of the Protection of the Environment Operations (Noise Control) Regulation 2017.

ii. The interior of the dwelling house at the Premises.

2. Noise generating activities being undertaken at the Premises must not generate “offensive noise” as defined within the Protection of the Environment Operations Act 1997.

Noise from the use of any tool or power tool in the shed detached from the principal dwelling of the premises is to be attenuated:

a. Through the closing of the external shed northern and western doors; and

b. by operating power tools in accordance with manufacturers guidelines.

3. The modified ride-on lawnmower must not be started or operated at the Premises.

(Exhibit 2)

5. During the hearing, and by consent, paragraph 4 of the Amended Notice was altered to be in the following terms:

“4. A number of noise source(s) are being generated from the property which constitutes, in the opinion of the Council, activities being carried out in an environmentally unsatisfactory manner on the prescribed property identified in this notice, in particular:

…”

(Exhibit 5)

6. The Respondent seeks for the Court to make orders that mirror the terms of the Amended Notice, with the above changes to paragraph 4.

7. The Applicant seeks for the Amended Notice to be revoked by the Court, pursuant to s 110 of the POEO Act.

Statutory Framework

The Protection of the Environment Operations Act 1997

8. The parties accept, and I agree, that Snowy Valleys Council (as a local government authority) is the appropriate regulatory authority (ARA) for regulating environmental concerns under the POEO Act, and as the ARA the Council had the power to issue the Notice and the Amended Notice.

9. The prevention notice is issued pursuant to s 96 of the POEO Act, which allows a direction to be issued (under s 96(1)) “when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person.” The provision states:

96 Preventive action

(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—

(a) direct the occupier of the premises,

(b) direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

…

10. Section 95 of the POEO Act defines “environmentally unsatisfactory manner” as follows [emphasis added]:

For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—

(a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or

(b) it causes, or is likely to cause, a pollution incident, or

(c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d) it is not carried on in accordance with good environmental practice.

11. In the current proceedings the relevant portions of s 95, are (b), (c) and (d).

12. The power to issue a prevention notice under s 96 of the POEO Act is only available if I reasonably suspect that an activity is, or has been, carried on in an environmentally unsatisfactory manner: s 96(1) of the POEO Act. The meaning of environmentally unsatisfactory manner is defined in s 95 of the POEO Act.

13. The Council says the listed activities in the Amended Notice have, or are being, carried on in an environmentally unsatisfactory manner for two reasons. Firstly, they are “not carried on by such practicable means as may be necessary to prevent, control or minimise” offensive noise and secondly, they are “not carried on in accordance with good environmental practice”.

14. Section 95(a) is not relied on by the Respondent to establish that the listed activities in the Notice and Amended Notice are being carried on in an environmentally unsatisfactory manner.

15. The terms of s 95(b) are extracted at [9] and are directed to an activity that causes or is likely to cause a pollution incident. The term ‘pollution incident’ is defined in the POEO Act (sch 6) as excluding an incident or set of circumstances involving only the emission of any noise.

16. The Respondent does not argue that another form of pollution is being emitted from the site concurrently with the asserted noise pollution. Accordingly, sub cl (b) does not apply to ground the issue of the prevention notice.

17. For s 95(c) to ground the issue of the Amended Notice, I must “reasonably suspect” that the applicants are not using “practicable means as may be necessary to prevent, control or minimise” pollution (offensive noise) or the emission of noise caused by the above activities

18. The prevention notice allows the regulatory authority to direct the person carrying on the activity to take certain action “to ensure that the activity is carried on in future in an environmentally satisfactory manner” (s 96(2)).

19. Pursuant to s 97 of the POEO Act a person who does not comply with a prevention notice given to the person is guilty of an offence. The provision states:

97 Offence

A person who does not comply with a prevention notice given to the person is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b) in the case of an individual—$500,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues.

20. The dictionary of the POEO Act defines ‘offensive noise’ as:

offensive noise means noise—

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances—

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

21. Applying the decision in Meriden School v Pendarol**i [2009] NSWLEC 183 at [11] the Court needs to be satisfied on the balance of probabilities that offensive noise has, or is occurring.

22. The Council contends that the activities listed in the Amended Notice meet the definition of offensive nose, as they fall within both parts of sub cl (a) of the definition. Accordingly, the definition of noise pollution, and pollution, are met for the purposes of s 95 of the POEO Act.

23. Further, the dictionary contains definitions of ‘pollution’ as including noise pollution; ‘noise pollution’ as meaning the emission of offensive noise and ‘activity’ to encompass in part any activity of any nature. Those definitions are:

pollution means—

(a) water pollution, or

(b) air pollution, or

(c) noise pollution, or

(d) land pollution.

noise pollution means the emission of offensive noise.

activity means an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal).

24. The POEO Act defines ‘the occupier of the premises’ as meaning the person who has the management or control of the premises. The parties accept that Mr Doon owns and occupies the site with his family.

The Protection of the Environment Operations (Noise Control) Regulation 2017

25. The relevant regulation is the Protection of the Environment Operations (Noise Control) Regulation 2017 (the POEO Regulation).

26. Part 2 of the POEO Regulation addresses motor vehicles and motor vehicle accessories. Pursuant to cl 6 of the POEO Regulation it is an offence to use a vehicle “off road” in a way that emits offensive noise. The provision states:

Clause 6: Use away from roads of vehicles that emit offensive noise

A person must not cause a motor vehicle to be used in a place (other than a road or road related area) in such a manner that it emits offensive noise.

27. The provisions of the POEO Regulation that are relevant to the current proceedings are:

8 Use of motor vehicles on residential premises

(1) A person is guilty of an offence if—

(a) the person causes or permits a motor vehicle to be used on residential premises in such a manner that it emits noise that can be heard within any room in any other residential premises (that is not a garage, storage area, bathroom, laundry, toilet or pantry) whether or not any door or window to that room is open—

(i) before 8 am or after 8 pm on any Saturday, Sunday or public holiday, or

(ii) before 7 am or after 8 pm on any other day, and

(b) within 7 days of doing so, the person is warned by an authorised officer or enforcement officer not to cause or permit a motor vehicle to be used on residential premises in that manner, and

(c) the person again causes or permits a motor vehicle to be used on residential premises in that manner within 28 days after the warning has been given.

Maximum penalty—100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.

(2) A person is not guilty of an offence under this clause merely because noise is emitted from the motor vehicle while the motor vehicle is entering or leaving residential premises.

…

12 Modification or repair of vehicles causing noise control equipment to be defective

A person must not cause or permit a motor vehicle that is not a heavy vehicle to be modified or repaired so that the noise control equipment in the vehicle is defective.

Maximum penalty—100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.

…

28. Division 2 of the POEO Regulation addresses a grass-cutting machine which is defined as:

46 Meaning of “grass-cutting machine”

In this Division—

grass-cutting machine means a machine that—

(a) is designed principally for the purpose of cutting grass or other soft undergrowth, and

(b) is powered by a motor,

but does not include electrically powered shears with a cutting width of less than 120 millimetres.

…

29. Clause 58 addresses the use of amplified sound equipment.

58 Use of electrically amplified sound equipment

(1) A person is guilty of an offence if—

(a) the person causes or permits electrically amplified sound equipment to be used on residential premises in such a manner that it emits noise that can be heard within any room in any other residential premises (that is not a garage, storage area, bathroom, laundry, toilet or pantry) whether or not any door or window to that room is open—

(i) before 8 am or after midnight on any Friday, Saturday or day immediately before a public holiday, or

(ii) before 8 am or after 10 pm on any other day, and

(b) within 7 days of doing so, the person is warned by an authorised officer or enforcement officer not to cause or permit electrically amplified sound equipment to be used on residential premises in that manner, and

(c) the person again causes or permits electrically amplified sound equipment to be used on residential premises in a manner referred to in paragraph (a) within 28 days after the warning has been given.

Maximum penalty—100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.

(2) In this clause—

electrically amplified sound equipment means any electrical or battery powered device that can be used to make or amplify sound including television sets and home entertainment systems.

30. Division 4 of the POEO Regulation addresses power tools, with s 51 regulating the use of power tools on residential properties. That provision states:

51 Use of power tools on residential premises

(1) A person is guilty of an offence if—

(a) the person causes or permits a power tool to be used on residential premises in such a manner that it emits noise that can be heard within any room in any other residential premises (that is not a garage, storage area, bathroom, laundry, toilet or pantry) whether or not any door or window to that room is open—

(i) before 8 am or after 8 pm on any Saturday, Sunday or public holiday, or

(ii) before 7 am or after 8 pm on any other day, and

(b) within 7 days of doing so, the person is warned by an authorised officer or enforcement officer not to cause or permit a power tool to be used on residential premises in that manner, and

(c) the person again causes or permits a power tool to be used on residential premises in that manner within 28 days after the warning has been given.

Maximum penalty—100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.

(2) In this clause—

power tool means any tool actuated by an additional power source and mechanism other than manual power and includes any of the following—

(a) a powered garden tool (that is, a tool powered by a petrol engine or an electric motor), including a lawn mower, a lawn trimmer, a blower or sweeper, a garden mulcher, an edge-cutter or a chipper or shredder,

(b) an electric power tool (including battery-operated power tools),

(c) a pneumatic power tool,

(d) a chainsaw,

(e) a circular saw,

(f) a gas or air compressor.

The NSW Environmental Protection Authority Noise Guide

31. The NSW Environmental Protection Authority ‘Noise Guide for Local Government’ released in 2023 (the Noise Guide) provides practical guidance to Councils in NSW about the management of neighbourhood noise complaints.

32. Relevant to these proceedings the Noise Guide provides guidance on ‘Noisy motor vehicles used ‘off road’” at Pt 2.5, ‘Motor vehicle noise on residential properties’ at Pt 2.6, ‘Amplified noise and parties at residential premises’ at Pt 2.10 and ‘Gardening equipment and other power tools’ at Pt 2.12. I have reviewed each of these parts of the Noise Guide in considering the evidence and submission of the parties and in preparing this judgment. Each guidance section provides options for the appropriate management or resolution of the noise problems. In each case a staged approach is proposed, commencing with communication, education and negotiation by Council officers. Further, a stepped approach to regulatory action is proposed commencing with the issuing of a penalty infringement notice (PIN), noise abatement direction (ss 275-279), a noise control notice (ss 263-267B) and a noise prevention notice (s 97).

33. Section 4.21 in Pt 2 of the Noise Guide considers the definition, assessment and application of the term “offensive noise”, a term that is not defined in the POEO Act. The Noise Guide states: “An authorised officer, authorised person, or enforcement officer must be able to establish that offensive noise is occurring before issuing a notice, direction or order”.

34. The Noise Guide includes Table 19 which details factors to be considered in assessing offensive noise. That table is extracted below:

Tumut Local Environmental Plan 2012

35. The final statutory provision that is relevant is the Tumut Local Environmental Plan 2012 (LEP 2012). The site, and the adjacent residential properties, are zoned R2 Low Density Residential. The land use table for the zone identifies the following uses permitted with consent in the zone:

Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2 Permitted without consent

Home occupations

3 Permitted with consent

Centre-based child care facilities; Dwelling houses; Group homes; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Respite day care centres; Roads; Tank-based aquaculture; Any other development not specified in item 2 or 4

4 Prohibited

Advertising structures; Agriculture; Camping grounds; Caravan parks; Commercial premises; Correctional centres; Eco-tourist facilities; Freight transport facilities; Heavy industrial storage establishments; Industries; Local distribution premises; Open cut mining; Passenger transport facilities; Recreation facilities (indoor); Recreation facilities (outdoor); Registered clubs; Rural industries; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle repair stations; Waste or resource management facilities

36. The form of the land use table provides that a wide range of uses are permitted in the zone for example childcare centres, places of public worship, neighbourhood shops, and denser forms of residential dwellings.

Role of the Court on an appeal

37. Pursuant to s 292(1) of the POEO Act on appeal the Court has the power to hear and determine the appeal. Sub cl (2) states:

(2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.

38. Such appeals are merits review appeals: Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 at [7]. In considering the appeal, the role of the Court is to re-exercise the functions of the regulatory authority, the Council, in determining, firstly, whether the prevention notice should be issued and secondly, the appropriate terms of such a notice (ss 289 and 292 of the POEO Act and s 39 of the Land and Environment Court Act 1979). To issue the Amended Notice I must reasonably suspect that an activity has been or is being carried on in an environmentally unsatisfactory manner at the premises (in this case the site). If I am so satisfied, I then must consider whether I ought to exercise the discretion to issue the notice, and if so, on what terms.

The activities in the Amended Notice

39. The relevant activities that the Respondent argues gave rise to issuing of the Amended Notice, and are relevant to the Court upholding the issue of the Prevention Notice, are detailed as:

4(a) Use of amplified music which can be heard in habitable rooms, whether or not the window or doors are open, on any adjacent residential premises.

4(b) Noise being generated from the premises, considered to be noise associated with motor vehicle servicing and repairs including but not limited to banging, grinding, use of pneumatic tools.

Note: a number of vehicles being repaired or serviced in the garage are not associated with the residential use of the property,

4(c) Noise being generated from recreational bikes on the property.

(Exhibit 5)

The events complained of relevant to the activities in the Amended Notice.

40. The noise events detailed in the October Memorandum, the complaints and the noise diary of Ms Roddy can be grouped into the preceding three activities as follows:

Amplified noise: Activity 4(a)

1. February 2023, Friday evenings.
2. 15 March 2024: Party activities in the shed. Loud music, cars at 10pm. Noise continued until 5.30am.

Noise associated with motor vehicle servicing and repair: Activity 4(b)

1. 20 January 2023, noise from mechanical repairs for four hours duration.
2. April, May 2023, noise from B Double trucks being serviced on site.
3. 6 July 2023, 10.30 pm noise from metal work for five and a half hours duration.
4. 5, 6, 12, 13 August 2023, mechanical noise from shed. Varied durations from one hour to all day.
5. 21, 30 September 2023, mechanical noise from shed for five hours duration.
6. 1 October 2023, mechanical noise from shed for eight hours duration.
7. 17 November 2023, mechanical noise from shed for seven hours duration.
8. 9, 10 December 2023, mechanical noise from shed all day.
9. 17 March 2024, noise from servicing of vehicles. Seven hours duration.
10. 13 April 2024, mechanical noise from shed all day.
11. 14 April 2024, noise from workshop for three hours duration.
12. 3, 15 August 2024 mechanical noise from shed. Three hours duration.
13. 19 August 2024 mechanical noise from shed, twenty minutes duration.
14. 31 August 2024 mechanical noise from shed, four hours duration.
15. 29 September 2024 mechanical noise from shed, two hours duration.

Noise from recreational bikes: Activity 4(c)

1. 5 June 2023 midday, noise from quad bikes and modified ride on mower for two hours duration.
2. 6, 14, 17, 21, 24, 26 July 2023 noise from quad bikes. Varied duration.
3. 20 August 2023 noise from quad bikes. Three hours duration.
4. 26 September 2023 noise from quad bikes. Three hours duration.
5. 3, 11, 14, October 2023 noise from quad bikes. Varied duration.
6. 1 December 2023 noise from quad bikes. Varied duration.
7. 8, 15 January 2023 noise from quad bikes. One and a half hours duration.
8. 26 February 2023 noise from quad bikes, including horn. 20 Mins duration.
9. 14, 28 April 2024 noise from quad bikes. Between half an hour and one and a half hours duration.
10. 19 August 2024, noise from quad bikes for 15 minutes duration.
11. 29 September 2024, noise from quad bikes for 10 minutes duration.
12. 30 September to 4 October 2024, noise from quad bikes for various durations over these days.

The site and locality

41. The site is zoned R2 Low Density Residential under the LEP 2012. The development of land for the purpose of dwelling houses is permitted with consent. It is a larger allotment that the adjoining properties, being some 1.5ha. The relationship between the site and the adjoining properties is apparent from the following aerial (noting it is historic and does not include the shed at the rear of the property):

42. A shed was constructed on the site in the last five years, subject to a development consent granted by Council on 23 November 2020.

Issues

43. The Applicant says the Court should not issue the Amended Notice on the following grounds:

44. The Council officer who issued the Amended Notice, Mr Wilton, did not have ‘reasonable suspicion’, as required by s 96(1) of the POEO Act, that the nominated activities were carried out or had been carried out in an environmentally unsatisfactory manner.

45. That Mr Wilton was not authorised to issue the Notice or the Amended Notice, as one of the limitations placed on the exercise of his delegations is that they must be exercised in accordance with Council policy. The Applicant asserts that this limitation on delegation was not met as Mr Wilton did not exercise his delegated power in accordance with Councils Code of Conduct as he did not declare disclose his working relationship (colleagues) with Ms Quilty who is one of the complainants, as is her mother (Ms Roddy). The Applicant argues:

‘On the evidence before the Court, Mr Wilton did not ‘avoid any occasion for the suspicion of improper conduct in the exercise of his regulatory functions’ [as required by the Code of Conduct]. Mr Wilton’s business relationship with Ms Quilty in Council’s executive team of 3 and later as Council employee reporting to Ms Quilty is a non-pecuniary interest where a reasonable and informed person would perceive that he might be influenced by a private interest. Part 5 of the Code [of Conduct] provides that Mr Wilton was required to disclose the conflict of interest and not participate in the decision making process.’

3. That given the lack of power to issue the Notice on the basis of (2), the Amended Notice is also beyond power.
4. That the Council did not serve the Amended Notice on the Applicant,
5. Having considered the evidence, on merit the Court would not exercise the discretion to issue the Amended Notice.

Evidence

44. In the proceedings the Respondent relies on both the business records of the Council file in relation to the prevention notice as well as the written and video evidence of the adjoining property owners.

45. The Applicant relies on the evidence of Ms O’Clery the partner of the Applicant who prepared an affidavit and provided oral testimony. In addition, documentary evidence of Mr Doon’s work diary was tendered. Further, the Applicant engaged Mr Gauld an acoustic expert who prepared a single expert report in the proceedings.

46. I have read, viewed and considered all of the evidence and submissions made in the proceedings in determining the findings in this judgment. In the following I have summarised the evidence as required to evidence the reasoning on which I have based my findings.

Council staff records

47. The Council has not, and did not, seek to quantify the noise emanating from any of the above activities or from the site generally as part of the issue of the Prevention Notice, or Amended Notice, or in preparation for the hearing. When issuing the Notice, Mr Wilton argues that the consideration of offensive noise is subjective, and does not require measurement of the noise unlike intrusive noise which requires specific measurement.

48. Specific statements from each of the above complainants were taken in October 2024, postdating the issue of the Notice.

49. However, the Court has been provided with some records of Council officers qualitative observations as summarised in a memo from Mr Wilton to Mr Pinnuck who was the General Manager of the Council in October 2024 (the October Memorandum). The October Memorandum details the following relevant foundations for the issue of the Notice as asserted by Mr Wilton:

50. The Council was in receipt of some 15 formal written complaints and other materials which supported Councils observations in relation to noise being generated from the site.

51. That the Council’s authorised officers have attended the site on three occasions: 26 February, 14 April and 15 April 2024 in response to complaints.

52. On attending the site on 26 February 2024 Council staff observed “a recreational vehicle being operated for recreational purposes in the driveway of the premises”. This vehicle was observed to ‘backfire’. The memo records the sound as “piercing to the ears, high pitched and sounded similar to a noise generated by a firearm when it was backfiring”. The council officer noted their opinion that the sound would likely be heard some considerable distance from the site. The sound was characterised as irritating and potentially frightening.

53. On attending the site on 14 April 2024, the Council officers observed the use of a dirt bike on the site. The sound was described as audibly loud and distinct in relation to the low background noise of the location.

54. The officer relies on the observations and documentation of the complainants in relation to amplified noise, use of the shed and the remaining complaints. These noise sources are not recorded or being independently observed.

55. The October Memorandum summarises the character, duration, time and frequency of noise being generated from the site on the basis of the complaints received, the recordings taken by Ms Roddy and the noise diary submitted by the complainants. The following conclusions are drawn (emphasis added):

…

42. A combination of noise sources being particularly loud, intermittent, of a high frequency and in some cases occurring for considerable lengths of time would cause considerable angst to surrounding residents. Regular loud and particularly piercing noise would also affect residents.

….

50. Examples of evidence provided suggests that the noise of being generated from the property is occurring most weekends and some weekdays and in most school holidays.

51. With a combination of noise factors, it appears that surrounding residents would not receive respite from noise being generated from the property between the use of the garage – banging grinding and pneumatic tools, amplified music, parties, fireworks and the use of dirt bikes and recreational vehicle. The chronology of observations has been used to determine the frequency of noise occurring from the site.

…

55. In speaking with the complainants this is having a profound impact on the physical and mental health of the occupants and is causing sleep disturbance. One complainant reports that it is affecting their ability to work from home on technical and professional pursuits. The other is affecting both the enjoyment of their property and their physical surrounding environment.

56. The consideration of offensive noise is subjective, that does not require measurement of the noise unlike intrusive noise which requires specific measurement.

57. Offensive noise is defined in the dictionary of the Protection of the Environment Operations Act 1997:

offensive noise means noise -

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances –

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

58. For the circumstances outlined in this document, Council is satisfied that by reason of the ‘offensive noise considerations’ as outlined, in particular due to the level of noise being emitted from the subject premises, the specific and individual characteristics of the noise being emitted and the times in which the noise is being generated is both:

58.1 Harmful to a person outside of the premises to which it is emitted causing irritation, distress, sleep disturbance and is having physical and mental health impacts.

58.2 Interfering unreasonably with the comfort or repose of a person outside of the premises to which the noise is emitted causing amenity concerns, is affecting the enjoyment of the outdoor areas of the property and is also affecting the amenity inside of the property including sleep disturbance.

59. An article or an activity may cause offensive noise at any time of the day or night even if it occurs at a time when the use of the article or activity is permitted to be audible under clause 58 of the Protection of the Environment (Noise Control) Regulation 2017.

51. After considering the regulatory options available, the October Memorandum concludes that the issue of a final prevention notice is the most appropriate regulatory pathway. The October Memorandum argues that the Notice is an active remedy to address the offensive noise that Council concludes is occurring on the basis of the above subjective assessment.

Lay Evidence

52. As noted at [20] of this judgment there is a body of objections received from adjoining neighbours that express complaints about noise and disturbance arising from the site. I have summarised those in the following. Observations of the adjoining properties were also made by the court, in the presence of the parties at the commencement of the hearing.

Ms Roddy:

53. Ms Roddy lives at 141A Herbert Street, Tumut which is immediately adjoining the site to the north but aligned with the rear of the site. See aerial at [20]. In her statement she notes that she was first a resident of Herbert Street in January of 2023. She is retired and according to her statement spends considerable time at home. Her complaints are relevant to the matter before the Court centre on the following four noise issues. Ms Roddy also raises concern about the duration over which each of these noises is experienced which she asserts adds to their impact:

54. That the site is being utilised for non-residential uses (commercial truck driving, vehicle/truck repairs and depot like activities) which causes levels of noise and disturbance that are not of a character consistent with the low-density residential nature of the area.

55. Noise emanating from the shed. The noise is described as coming from metal work (banging, grinding of metal), use of power tools and hoist and is perceived both inside of her dwelling and in the garden.

56. Amplified noise (music and entertaining) being heard emanating from the site, in particular from the shed (gatherings of people and vehicles) and occurring late into the evening.

57. Loud noise generated from the riding of motorbikes, quad bikes and a modified ride on mower being ridden on the site for recreational purposes. Noise is evident from both inside her dwelling and when in the garden.

58. Loud noise generated from the use of a modified ride on mower (muffler removed) on the site.

59. In her correspondence with the Council Ms Roddy notes that the noise emanating from the shed is exacerbated by the fact that the roller door to the north (fronting the boundary of the site with her property) is left open.

60. Ms Roddy asserts that each of the above issues impact her enjoyment of her home and property, cause disturbance of sleep and irritation. Those impacts have been ongoing since 2023 but have reduced substantially since the imposition of the Notice and the Amended Notice. She seeks for the Amended Notice to be maintained.

61. Video recordings of the issues detailed in [32] were played in the proceedings and form part of the lay evidence.

62. The complaints in relation to the above matters were raised with the Council consistently by Ms Roddy from January 2023 through to October 2024. The evidence includes a chronology of events and concerns prepared by Ms Roddy over this time period.

Mr Barbour

58. Mr Barbour lives at 141B Herbert Street, Tumut (the same residence as Ms Quilty). He also complains of excessive noise and disturbance from the site. His details three concerns which can be summarised as:

59. The starting, parking and servicing of two semi-trailers on the site. In particular the impact of sleep disturbance from the vehicles being started early in the morning.

60. Amplified music emanating from the site during the daytime and into the evening which is audible at 141B Herbert Street.

61. Noise of dirt bikes being ridden on the site, some with their mufflers removed.

Ms Quilty

59. Ms Quilty owns both 141A and 141B Herbert Street but resides at 141B Herbert Street. Her complaints are generally in the same terms as those of Ms Roddy and Mr Barbour. Her statement focuses on the following activities:

60. That the site is being utilised for non-residential uses (commercial truck driving, vehicle/truck repairs, washing and depot like activities) which causes levels of noise and disturbance that are not of a character consistent with the low-density residential nature of the area. The sound of the starting and idling of trucks on the site causing sleep disturbance.

61. Amplified noise (music and entertaining) being heard emanating from the site, in particular from the shed (gatherings of people and vehicles) and occurring late into the evening.

62. Loud noise generated from the riding of motorbikes, quad bikes and a modified ride on mower being ridden on the site for recreational purposes. Noise is evident from both inside her dwelling and when in the garden.

63. Loud noise generated from the use of a modified ride on mower (muffler removed) on the site.

64. In the proceedings the Respondent does not assert, or tender evidence, that the use of the shed is unauthorised on the basis of the complaints of the neighbours. For example, the Respondent does not say the shed is being utilised as a commercial truck depot rather than, for example, the activities listed in the Notice being ancillary to the residential use of the site. Further, the development consent for the shed on the site contains the following condition:

16. The shed must not be used for commercial, industrial or residential (human habitation) purposes or storage of goods associated with industrial or commercial undertakings.

(Exhibit 4)

61. There is a legal presumption that development will be implemented in accordance with the conditions of the consent: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 at [35].

Ms O’Clery

62. Ms O’Clery, Mr Doon’s partner, swore a statutory declaration on 22 May 2025 (the stat dec) which was tendered by the Applicant in the proceedings. The stat dec confirms that Ms O’Clery did reside and continues to reside at the site with her family. Relevant to the proceedings the stat dec details the following matters:

63. Mr Doon and Ms Clery moved to the site in 2017. The large size of the land was attractive as it provided space for their children to be outdoors and for Mr Doon to pursue his hobbies (including maintenance of the land, storing and maintaining a fishing boat, ski boat and occasionally fixing up old cars).

64. She generally works from home.

65. Up until August 2024 Mr Doon worked as a heavy truck driver. He now works off site as a mechanic for a trucking company. Whilst he was a heavy truck driver, he was required to maintain a National Driver Work Diary (the Work Diary) to track his work and rest time.

66. The shed was completed in September 2021. Earthworks continued on the site during the period of January 2023 to February 2024.

67. Since February 2023 there has been interactions between Mr Doon, Ms Clery and either Ms Quilty, Ms Roddy or both raising various concerns about light spill, noise, operation of equipment or the riding of bikes and a modified lawn mower on the site.

68. Those interactions have escalated and ultimately resulted in the involvement of the NSW Police and the Council.

69. That any mechanical or repair work on the site undertaken by Mr Doon is not for money or reward, but for enjoyment. Some of those works are undertaken for friends or family.

70. The reference in the Notice, under direction 3, to “not exceed 5dBA above the background noise level” is unclear to a lay person and has caused significant concern for them of risking a breach.

71. The remaining details of the stat dec focus on addressing the noise events detailed in the Council records, the complaints and the noise diary of Ms Roddy. Ms O’Clery details her recollections of the dates and times with the assistance of the Work Diary, photos on either hers or Mr Doons phone and family events. I have summarised her evidence in the stat dec below:

Amplified noise: Activity 4(a)

64. That from time to time music is played on the site inside the dwelling and or the shed. That music is generally played at a level a conversation can be had.

65. Ms O’Clery’s recollections of the Friday evenings in February 2023 referenced are:

66. based on the Work Diary, Mr Doon was home on 3 February 2023. It is likely they entertained a few friends in the shed and whilst Ms O’Clery has no specific recollection, it is likely the evening concluded at 10:30 pm at the latest.

67. Mr Doon was also home on 10 February 2023 having completed a work drive commencing at Tullamarine the previous day. It is likely they entertained a few friends in the shed; however, she has documentation (photos) showing they had returned to the house by 10:15pm. Also, she notes that by 10:30pm that evening, if Mr Doon was awake, that would represent a period of 25 hours awake given the drive from Tullamarine. Further, Ms O’Clery left at 6am the following morning for a trip to Albury, reinforcing her conclusion that the family would have had an early night.

68. On 17 February 2023, the Work Diary demonstrates that Mr Doon was not at the site. Ms O’Clery states that she does not entertain when Mr Doon is away.

69. On 24 February 2023. It is likely they entertained a few friends in the shed, but Ms O’Clery is confident that any entertainment was finished by 7pm, as she had taken photos of her child in the house at this time. Further, the family attended a basketball game at Tumut at 8pm this evening.

70. In reference to the complaints of 27 May 2023, Ms O’Clery’ evidence is:

71. On this day Mr Doon was home, but having completed a drive from Tullamarine that commenced at 9pm on the 26 May 2023 Ms O’Clery argues it is unlikely that they entertained past 9.30pm.

72. In reference to the complaints of 30 September 2023 (afternoon), Ms O’Clery’ evidence is:

73. the complaint from this date is both in relation to amplified music and the noise of banging and grinding. Ms O’Clery has no specific recollection of the family’s activities on this day.

74. In reference to the complaints of 1 October 2023 “from 9am”, Ms O’Clery’ evidence is:

75. the complaint from this date is both in relation to amplified music and the noise of banging and grinding. In the stat dec Ms O’Clery notes that due to a relative being gravely ill it is likely none of the family were home for at least part of the day.

76. In reference to the complaints of 15 March 2024 (Friday) “until 5am”, Ms O’Clery’ evidence is:

77. the complaint from this date is in relation to amplified music and Ms O’Clery confirms that the family had entertained friends on this day and cars had arrived at around 10pm to collect people from the site. Ms O’Clery states that the family, and any friends staying overnight, retired by midnight. The next morning (5am) some friends and family left early, with the boat, for a fishing trip. Ms O’Clery argues the complainant has conflated the two events as one.

78. In reference to the complaint of ‘country music’ on 25 March 2024, Ms O’Clery argues that the complaint does not specify that the music was loud or for how long it was played so it should not be taken to be a complaint about amplified music.

Noise associated with motor vehicle servicing and repair: Activity 4(b)

71. In the stat dec Ms O’Clery reiterates that any vehicles being serviced or maintained on the site are associated with the residential use of the land and are not undertaken by Mr Doon on a commercial basis.

Noise from recreational bikes Activity 4(c)

72. Following the conciliation conference Ms O’Clery and Mr Doon were aware that the reference in the Notice to an “ATV” was a reference to a modified ride on mower that the children had been operating on the property without a muffler. Given the neighbours and the Councils concerns that mower was disposed of prior to the issuing of the Amended Notice.

73. Ms O’Clery was also called to give oral evidence and was cross examined by Mr O’Gorman Hughes. Her evidence was consistent with the preceding summary, and she orally accepted that Ms Roddy may have found that the noise from the modified ride on mower disturbing. Further she confirmed that the mower is no longer on the site.

Applicants’ expert evidence

74. The Registrar provided leave to the applicant for expert evidence from Mr Gauld, Acoustic expert. He prepared an Acoustic Assessment and Report (Acoustic Report) which was tendered as Exhibit D. Mr Gauld was also called for cross examination and oral evidence.

75. The Acoustic Report nominated the nearest sensitive noise receptors to the site in each ordinal direction, representing the nearby residential premises. Receiver 1 represents the property at 141B Herbert Street (Ms Quilty, Mr Barbour), Receiver 2 the property at 141A Herbert Street (Ms Roddy).

76. Before addressing the events and information detailed in the complaints and the October Memorandum, Mr Gauld notes that the directions in both the Notice and the Amended Notice are inconsistent with cll 8 and 58 of the POEO Regulation, and impose greater restrictions on the premises.

77. Mr Gauld’s report concludes that the activities listed on the Amended Notice are not being carried out in an environmentally unsatisfactory manner and that noise from the site does not, and did not, constitute offensive noise. His reasoning can be summarised as:

78. Council did not verify the complaints in any reasonable and objective manner. Therefore, it was unreasonable for the Council to have reached the conclusion that the activities being carried out on the site were being carried out in an environmentally unsatisfactory manner based on the evidence before it.

79. The submissions of complaints that the Council relied on predominantly came from two residential locations (141A and 141B Herbert Street) however there are nine nominated sensitive noise receptors in proximity to the site. The receipt of complaints is not sufficient to determine the presence of offensive noise. It is incumbent on the Council to verify and scrutinise information it receives from resident complaints, prior to forming a conclusion of offensive noise.

80. There has been no determination of background noise level for the locality, limiting the quantitative analysis of any noise emission.

81. The Council makes no reference in either the memo or the Statement of Facts and Contentions to the POEO Regulation which contains provisions relevant to each of the activities listed in the Notice and the Amended Notice.

82. The use of a recreational vehicle at the site emitting engine noise, even if loud, is not defined as offensive noise if it is permitted by cl 8 of the POEO Regulation. Clause 8 makes exceptions for vehicle noise after 7am and before 8pm on weekdays or after 8am and before 8pm on weekends. An exception is also made in cl 8 of the POEO Regulation for motor vehicles entering or leaving residential properties.

83. Based on his analysis of the receiver locations replicating the objector’s locations, in his opinion the noise from the use of the shed during the daytime is not offensive, even with the roller door open.

84. After 8pm motor vehicles should not be operated on the site (except when entering or leaving) in accordance with cl 8 of the POEO Regulation.

85. After midnight, amplified music generated from the site should be inaudible inside a habitable room of any nearby residential dwelling in accordance with cl 58 of the POEO Regulation 2017.

86. For Council to demonstrate that activities are being conducted on the site are not in accordance with good environmental practice, it must first demonstrate that offensive noise is created. For the above reasons, Mr Gauld is not persuaded that this determination could be properly made by the Council prior to the issue of the Notice or Amended Notice. Mr Gauld applies the reasoning to Councils assertion that the activities on the premises are not being carried out by such practical means as may be necessary to prevent, control or minimise emission of noise.

87. Applying the offensive noise test in the Noise Guide Mr Gauld makes the following comments:

88. Applying the questions detailed in Table 14 to the information summarised in the October Memorandum, relied on by the Council, Mr Gauld notes that such an assessment can only be made in response to hearing the noise in question. It is not clear that the Council officers had observed the range of noise the subject of the complaints.

89. Applying the questions in Table 14 of the Noise Guide to the description of the noise in the complaints received and the Council records, Mr Gauld argues that the noise from the shed, the operation of motor vehicles, and the amplified music is very likely to be audible inside the nearby residents, in particular Ms Roddy’s dwelling.

90. However, he argues that there is insufficient evidence either before the Court now, or before the Council at the time of the Notice and the Amended Notice, to support a conclusion that the noise from the premises is considered offensive noise. For example, he argues that there is no evidence that any sound from amplified noise generated from the site after 8pm was audible inside a habitable room of an adjoining residential premises: that being the test at cl 58 of the POEO Regulation.

91. Addressing the specific activities in the Notice and the Amended Notice, Mr Gauld provides the following evidence:

92. Firstly, that after reviewing the complaints received, the majority of the events detailed occurred in daytime. There is no restriction, under the POEO Act or the POEO Regulation, on noise from motor vehicles (Activity 4(c)) or amplified noise (Activity 4(a)) during the daytime.

93. There are four events that he nominated as requiring additional investigation as they occurred outside of daytime hours, thus being potentially within the prohibited hours in cll 8 and 58. They are:

(i) Friday nights in February 2023 (ii) 23 September 2023 (iii) 9-10 December 2023 (iv) 15 March 2024

3. In relation to “Friday nights in February 2023”, having reviewed some further information provided by Mr Doon and Ms O’Clery, Mr Gauld concludes that music was not played after midnight and that the noise of motor vehicles was consistent with the exception within cl 8 of the POEO Regulation, namely that the noise was being emitted from a motor vehicle entering or leaving residential premises. The information relied on was annexed to the expert report as is on similar terms to that extracted at [64].
4. In relation to “23 September 2023”, the use of the shed until 10 pm generating mechanical tool noise, Mr Gauld concludes, based on the evidence of Mr Doon and Ms O’Clery that the noise generated during the day from the movement and loading of firewood into the shed, including the use of a chain saw, telehandler and log splitter. However, he concludes that there is no evidence that this noise from the use of the shed occurred after 8pm (cl 58), or the noise of motor vehicles, was contrary to cl 8 of the POEO Regulation.
5. Consistent with (4) above, Mr Gauld draws the same conclusion in relation to the complaints in relation to 9-10 December 2023 and 15 March 2024.
6. Finally, Mr Gauld draws the following broad conclusions on the Notice and the Amended Notice:

“219. It is my opinion that the noise from the storage shed during the daytime is not considered offensive, even with the northern and western roller doors open.

220. I have reviewed the evidence from Council and the applicant and find that the noise from the subject premises did not and does not cause offensive noise.

221. It is unreasonable for Council to have concluded that offensive noise was being generated based on the evidence before it.

222. It was unreasonable for Council to have issued the Direction to take Preventative Action dated 3 October 2024 and the Amended Notice dated 30 March 2025. The Directions are not based on the Protection of the Environment Operations (Noise Control) Regulation 2017 and are an unreasonable imposition on the Applicant and his family.”

(Exhibit D)

80. Finally, Mr Gauld submits that in his expert opinion it was unreasonable for the Council to have issued the Notice and the Amended Notice in circumstances that they had not independently collected evidence, objectively verified and assessed the activities, and to have concluded that the activities were being carried out on the site in an environmentally unsatisfactory manner. He argues it was inappropriate for the Council to have only relied on the complaints received and cursory site attendance by Council officers.

81. Mr Gauld’s oral evidence was consistent with the evidence in his expert report.

Findings

82. Both parties made written submissions in relation to the evidence and the legal principles that should be applied by the Court in determining this matter. I have read and considered those submissions.

83. Whilst it may be the case that the use of the site has caused disturbance to the adjoining neighbours at times, and may continue to do so, for the Court to issue the prevention notice the statutory requirement at s 96 of the POEO Act must be met. The provision is extracted in full at [12]. Section 96(1) contains three requirements which must be met for the provision to be enlivened Sessions v Penrith City Council [2017] NSWLEC 171 at [75]. Those statutory requirements are:

84. That the prevention notice is issued by the ARA, and

85. That the ARA has a reasonable suspicion that, and

86. An activity has been, or is being, carried on in an environmentally unsatisfactory manner on the premises.

87. Further, I must be persuaded it is appropriate to exercise my discretion to issue the Amended Notice: Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [101] (Allsop P) (Beasley and McColl JJA agreeing). For the following reasons I am not persuaded on either matter.

88. I note that the Court has held that excessive noise will not necessarily constitute offensive noise for the purposes of the POEO Act (Meriden School v Pedavoli [2009] NSWLEC 118 at [7] per Sheahan J).

89. As detailed at [13] s 95 of the POEO Act incudes within the meaning of ‘environmentally unsatisfactory manner’ that an activity is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution. The definition of pollution includes noise pollution, meaning the emission of offensive noise: sch 6 of the POEO Act.

90. The Notice and the Amended Notice are issued because of a determination by the Council that “offensive noise” was being generated from the site. The notice details four noise sources being generated from the site that, in the Councils opinion, give rise to offensive noise. Those activities are detailed at [37].

The prevention notice is issued by the appropriate ARA

88. The parties accept, and I agree, that the Respondent is the appropriate ARA for the issue of a prevention notice pursuant to s 95 of the POEO Act. The first statutory requirement is met.

The ARA has a reasonable suspicion

89. In relation to the second part of the statutory requirement of s 96 of the POEO Act it is necessary to consider whether the ARA had a reasonable suspicion. In the matter of Kempsey Shire Council v Slade [2015] NSWLEC 135 at [22] Biscoe J outlined four principles of interpretation in applying the concept of ‘reasonable suspicion’ as it applied to the issue of a cost compliance notice under the then s 104(2)(b) of the POEO Act. Whilst not the same provision as s 96 of the POEO Act in relation to the issue of a prevention notice, I accept the submission of Mr O’Gorman Hughes that the principles are of assistance in determining whether the applicable threshold of ‘reasonable suspicion’ is met in this matter. Those principles are:

“In my opinion, adapting the authorities in other contexts on “reasonable suspicion”, the following principles of interpretation relevantly emerge in relation to s 104(2)(b) of the POEO Act:

(1) The public authority must have formed a genuine suspicion that a particular person (or persons) caused the pollution incident.

(2) A reasonable suspicion involves less than a reasonable belief but more than a possibility.

(3) The public authority’s suspicion must be reasonable in that there is some objective and factual basis for the suspicion, which would create in the mind of a reasonable person in the position of the public authority an apprehension that that person caused the pollution incident to which the s 92 clean-up order relates. A reasonable suspicion may be based on hearsay material or material that is inadmissible in evidence but it must have some probative value.

(4) The objective circumstances do not have to establish on the balance of probabilities that that person in fact caused the pollution incident nor that there has in fact been a pollution incident.

90. Further, in Maund v Shoalhaven City Council [2019] NSWLEC 89 (Maund v Shoalhaven) His Honour Chief Justice Preston considered what action or observations were required by Council officers, in that case in relation to a pollution incident, to form the required subjective satisfaction that a pollution incident had occurred or was occurring at the time the Council issued the clean-up notice. Relevantly, Preston held at that the Council did not form the required subjective suspicion as there was no evidence recording Council officers observing that a pollution incident had occurred or was occurring at the premises: Maund v Shoalhaven at [26]-[30]. In his reasoning in Maund v Shoalhaven Preston noted that:

91. the site investigation reports of 24 November 2015, 7 December 2015, 12 December 2015 or 15 December 2015 that preceded the issue of the clean-up notice on 16 December 2015, do not evidence that the Council observed that a pollution incident had occurred or was occurring at or from the premises.

92. The site investigation reports on the file are completely silent as to any pollution having occurred, occurring or being likely to occur.

93. The site investigation reports do not address any of the definitions of pollution, including “land pollution”, or even the elements of these definitions.

94. That given the lack of evidentiary foundation the Council did not form the required subjective suspicion under s 91(1)(a) of the POEO Act that a pollution incident had occurred or was occurring at or from the premises and was not empowered to issue the Notice.

95. Further, the lack of evidence meant that even if the Council had formed the subjective suspicion that a pollution incident had occurred or was occurring, that suspicion was not reasonable because there was no evidentiary foundation for the suspicion.

96. Applying the preceding, a reasonable suspicion is not arbitrary, and the factual basis for the suspicion held by the Council that grounds the use of a notice under the POEO Act must be evidenced.

Evidence to ground a reasonable suspicion.

92. In issuing the Notice and the Amended Notice the Council relied heavily on the lay evidence of adjoining neighbours. I have summarised that evidence at [52]-[71]. In these findings I have considered the weight to be given to this evidence.

93. In terms of independent evidence obtained by the Council, the October Memorandum details that Council officers attended the site on three occasions being 26 February, 14 and 15 April 2024. The October Memorandum records that:

“ 24. On the 14 April 2024 at or about 8.30 am Council observed the use of recreational dirt bikes being ridden on the site.

25. On the 26 February 2024 Council observed the use of what is considered to be a recreational vehicle or an all terrain vehicle (modified ride on) hereby known as ‘recreation vehicle’ being driven in the driveway of the subject premises by a male,

26. On the 15 April 2024 Council attended the adjacent property in the absence of any activity at the subject premises to gain an understanding of the background noise in the area.”

(Exhibit 2)

Activity 4a: Amplified Noise and 4b: Noise associated with vehicle servicing and repair

94. The October Memorandum does not detail any observation by Council officers of any noise emissions or activities related to amplified noise (Activity 4a) or noise associated with motor vehicle servicing and repair (Activity 4b). The Council relies on lay evidence and the video evidence provided to the Court.

95. Consistent with the reasoning of Pepper J in Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 (Sydney Tools) at [42] I find that the Court should give greater weight to expert evidence in determining whether the objective test of “offensive noise” is met. Consistent with Sydney Tools in these proceedings the Respondent had no expert evidence as to the ‘offensiveness’ of the noise. The Respondent does not for example apply the factors detailed in the Noise Guide for the assessment of offensive noise against either the lay evidence or the observations of Council staff detailed in the October Memorandum. Further, the Respondent did not engage an acoustic expert or utilise acoustic technology like a noise meter or the like, to assess the levels of the alleged offensive noise but relied on oral, written and visual evidence of lay witnesses. Relevantly some of that lay evidence included video recordings which were obtained using hand-held devices, none of which were acoustically tested, calibrated or checked. In Sydney Tools Pepper J held that very little weight could be placed on the videos given their poor quality and the uncertainty surrounding their date and time of creation. Consistent with Sydney Tools at [50], I find that very little weight can be placed on the videos taken by the lay witnesses and tendered as part of Exhibit 2 given their poor quality and the lack of calibration or acoustic verification.

96. How the submissions of lay witness and evidence are to be addressed more generally is a matter of common consideration in this Court, albeit often in development appeals rather than in the context of the consideration of a noise prevention notice. Consistent with decisions such as New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61] and McDonald’s Australia Limited v Coffs Harbour City Council [2023] NSWLEC 1067 at [49] it is necessary for the consent authority to not blindly accept any submissions from residents, and for the reasonableness of any claimed perception of adverse impact or site suitability by lay witnesses to be evaluated. In essence lay views and evidence must be taken into consideration, but those views must be weighed against expert evidence and be objectively assessed before a finding can be made. Further, it is relevant to note that experts giving sworn evidence to the Court are bound, under the Expert Witness Code of Conduct, to assist the court impartially. Each of these matters weigh towards a finding that Mr Gauld’s evidence should be given greater weight than that of the lay witnesses in determining whether the Council had a reasonable suspicion of offensive noise in relation to Activity 4(a) and 4(b). There is no evidence before the Court of any direct observation of these activities by Council staff and neither is the reasoning applied by the Respondent in reaching the conclusion of reasonable suspicion detailed in the October memorandum or the in the evidence.

97. This determination of the weight to be given to lay evidence applies equally to the evidence of Ms OClery, with the exception that her evidence was subject to cross examination which adds to is creditability and reliability. In considering the evidence of the activity 4(a) detailed in the Notice and the Amended Notice I am persuaded by the detail Ms OClery provided and, where given, the verification advanced by Mr Doon’s work diary, iphone photography or family arrangement.

98. Many of the complaints detailed in relation to Activity 4(a) ‘Amplified noise’ do not detail the time at which the noise was heard, its duration or the noise level experienced. Weighing the lay evidence, the expert evidence of Mr Gauld and the material detailed in the October memorandum, I am not persuaded by Mr O’Gorman Hughes’ submission that the material before the Court satisfies the threshold of reasonable suspicion in the absence of details such as these (times, duration, noise level) and/or a process of verification by the Respondent of the complaints received.

99. In relation to Activity 4(a) and 4(b), consistent with my findings at [93] the October Memorandum does not detail the evidentiary foundation relied on by the Council to form the required subjective suspicion under s 96(1) of the POEO Act that the activities (4a: Amplified Noise, and 4b: Noise associated with vehicle servicing and repair) have been or are being carried on in an environmentally unsatisfactory manner at the site. There is no evidence that the Council officers attended any of the complainant’s premises and observed the noise from a habitable room within their home. There is no evidence of an assessment against the offensive noise test in the Noise Guide being undertaken to found a conclusion of offensive noise arising from the activities. It was observable on the site inspection that the site is surrounded by a number of residential properties to the east and west that are immediately adjoining the site. Council has not received any submissions from these residents’ raising concerns with noise being emitted from the site. Council did not seek to investigate the complaints or determine the reasonableness of any claimed perception of adverse impact.

100. In the absence of such detail, I am unable to find that Council had formed the subjective suspicion that an activity has been or is being carried on in an environmentally unsatisfactory manner. Further, I am satisfied that any such suspicion held by the Council was not reasonable because there was no evidentiary foundation for the suspicion: Maund v Shoalhaven at [26]-[30].

Activity 4c: Noise being generated from recreational bikes on the property.

101. The detail of the site inspection of 14 April 2024 (Sunday) contained in the October Memorandum is an observation of an activity which is within the scope of cl 8 of the POEO Regulation, i.e. the use of a motor vehicle on the site after 8am on a Sunday. The October Memorandum makes no other definitive statements in relation to this date beyond the assertion that the noise was ‘audibly loud and distinct from background noise’. The October Memorandum does not address any of the elements of the definition of ‘offensive noise’ under the POEO Act, for example under part (a) of the definition the Council officer does not attend any adjoining property, nor under part (b) of the definition measure the noise level or document its duration.

102. These observations are insufficient on their own to provide a foundation for the issue of the Notice or the Amended Notice as they do not detail how the noise arising from the activity is either, by reason of its level, nature, character or quality, harmful to a person outside the site or is unreasonably interfering with the comfort or repose of such a person.

103. In relation to the observation of the Council officers on the 26th of February the following statements are made in the October Memorandum in relation to their observations of the character and level of the noise arising from the recreation vehicles/ modified ride on mower (Activity 4c):

‘29. The sound being generated by the recreational vehicle was piercing to the ears, high pitched and sounded similar to a noise generated by a fire arm when it was back firing. The noise was drowning our any background noise and was all that could be heard in the location.

30. Council’s observations were made downhill from the operation of the recreational vehicle and was approximately 30-40 away from the recreational vehicle in the neighbouring driveway to the North. The machine would likely be heard some considerable distance from the site in an absolute sense.

31. In Council’s opinion, the noise would be heard by surrounding neighbours, would be irritating and potentially frightening. The irritation of the noise cannot be discounted by the fact the operator starts and stops the machine regularly when it is being used, especially in light of the fact that the recreational vehicle is being used at high revs under acceleration and is backfiring when it is used’.

…

104. The October Memorandum goes on to detail the duration of the noise arising from the recreational vehicles/ modified ride on mower (Activity 4(c)), but these statements are not observations by the Council officers but rather a summary of the lay evidence in the written complaints.

105. The October Memorandum does not detail the evidentiary foundation relied on by the Council to form the required subjective suspicion under s 96(1) of the POEO Act that Activity 4c (riding on the recreational vehicle) has been or is being carried on in an environmentally unsatisfactory manner at the site. I accept the evidence of Mr Gauld that the Council did not verify the validity of the noise complaints received in any objective manner. For example, they did not seek to undertake noise logging or seek to use a noise meter when they attended the site on the 26th of February 2024 or any other time. Further, the Council has not established a background noise level for the locality to assist in assessing the alleged noise pollution against.

106. As part of the lay evidence the Court was provided video recordings of the use of both the recreational vehicle/ modified ride on mower and dirt bikes on the site. These videos were played in Court during the hearing. These videos were taken by the complainants and included in the complaints sent to Council.

107. Written complaints about the noise generated by the riding of recreation vehicles/ modified ride on mower and dirt bikes are made by Ms Roddy and Ms Quilty. Mr Barbour complains only of the noise emanating from the dirt bikes.

108. I acknowledge the oral and affidavit evidence of Ms O’Clery that the recreational vehicle/modified ride on mover is no longer on the site. I accept that in the absence of a muffler this vehicle being ridden on the site for extended periods may have been disruptive to neighbours. Its absence is likely appreciated by Ms Roddy, Mr Barbour and Ms Quilty. The ride on mower should comply with the requirements of the manufacturer (muffler installed) if it is to be used for lawn mowing on the site.

109. The lay evidence of Ms Roddy, Mr Barbour and Ms Quilty is, in my view, insufficient for the Court to have a reasonable suspicion that Activity 3(c) is being carried out in an environmentally unsatisfactory manner. My reasoning is as follows:

110. Applying Sydney Tools in the absence of verification or independent objective data the video recordings can be given only limited weight.

111. The complaints received by Council do not emanate from a broad field of neighbours in circumstances where the site has a number of directly adjoining properties. There is no evidence of the Council seeking to determine if other adjoining properties experienced the noise.

112. The POEO Regulation seeks to regulate the use of motor vehicles (including recreational vehicles) through time restrictions. In my view this provides a presumption of acceptability of some noise from these vehicles during daylight hours.

113. Consistent with the reasoning in Maud v Shoalhaven, the absence of independent Council observation, recording and or quantification of noise emanating from the site attributable to Activity 3 tends away from a finding of reasonable suspicion being reached.

114. In the absence of such detail, I am unable to find that Council had formed the subjective suspicion that Activity 4c has been or is being carried on in an environmentally unsatisfactory manner. Further, I am satisfied that any such suspicion held by the Council that Activity 4c has been or is being carried out in an unsatisfactory manner was not reasonable because there was no evidentiary foundation for the suspicion.

Conclusion

111. I accept the submissions of Ms Reid that the Council had not formed the required reasonable suspicion that an activity has been or is being carried on in an environmentally unsatisfactory manner on the site. Further, I am satisfied that there is insufficient evidence before me to form this conclusion. My reasoning can be summarised as follows:

112. The October Memorandum does not state or confirm that Mr Wilton (the Councils delegate) heard any of the noises subject of the ‘activities’ listed in the Notice or Amended Notice.

113. The October Memorandum does not detail any assessment or investigation of the complaints received by Ms Roddy, Ms Quilty to Mr Barbour which is inconsistent with the principles detailed in Kempsey Shire Council v Slade.

114. The Council, and Mr Wilton, did not undertake an assessment of whether the noises complained of were reasonable when assessed against the provisions of the POEO Regulation and the guidance provided by the Noise Guide.

115. The Council, and Mr Wilton, do not rely on any objective noise measurements or logs to verify.

116. Further, I am satisfied that investigation and assessment of the noise emissions and the verification of noise complaints of neighbours is reasonable prior to the use of Council regulatory powers for at least two reasons. Firstly, there is a clear hierarchy of responses available to Council from a PIN, an abatement notice, a noise control notice, through to a prevention notice. This hierarchy is further detailed in the approach to the regulation of noise suggested to Councils in the Noise Guide. The issue of a prevention notice by an ARA is a serious matter, and its breach brings criminal sanctions. Accordingly, in my opinion, the issue of the Notice and the Amended Notice should have been founded on objective, independently gathered evidence verifying the noise complaints and impacts.

117. The Council officers who did attend the site did not independently observe any noise arising from Activity 4a: Amplified Noise and Activity 4b: Noise associated with vehicle servicing and repair. For the reasons detailed at [94]-[96] there is insufficient evidence to meet the requirement of reasonable suspicion.

118. As detailed at [93]-[101] their observations in relation to Activity 4c are insufficient to meet the requirement of reasonable suspicion.

119. Mr Gauld concludes in his evidence that on his inspection of the site and the consideration of complaints received by Council that the noise the subject of the complaints does not arise from an activity that was or was being carried on in an ‘environmentally unsatisfactory manner’ on the site. I accept and prefer that evidence.

120. I find that there is insufficient evidence before the Court to support the power to issue a prevention notice under s 96 of the POEO Act. There is insufficient evidence for me to reasonably suspect that an activity is, or has been, carried on in an environmentally unsatisfactory manner on the site. The statutory requirement is not met.

121. Further, if the statutory power was available, I find it is not appropriate to exercise discretion to issue the Notice or the Amended Notice. Notwithstanding my findings at [100], that the power to issue a prevention notice under s 96 of the POEO Act is not available, I would also not exercise discretion to issue such a notice if s 96 of the POEO Act was satisfied. I accept the submission of Ms Reid that careful consideration of the appropriateness and necessity of the issue of a prevention notice is required when to do so will constrain the everyday activities of a person enjoying their land. Whilst no doubt some of the activities occurring on the site have caused irritation and disturbance of the neighbours on a sporadic basis, the use of the site by Mr Doon and his family is in my view consistent with the semi-rural nature of the ownership and opportunities that arise with a large parcel of land zoned R2 Low Density Residential under LEP 2012.

Orders

114. The Court orders that:

(1) The appeal is upheld.

(2) The noise prevention notice issued pursuant to s 96 of the Protection of the Environment Operations Act 1997 by Snowy Valley Council to Mr Doon at 131- 133 Herbert Street, Tumut, and varied on 30 March 2025, is revoked pursuant to s 110(4) of the Protection of the Environment Operations Act 1997.

(3) The exhibits are returned with the exception of Exhibit A, B, C and 1

D Dickson

Commissioner of the Court

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