Duarte v Ross

Facts

1. Mr Duarte resides at 13 Birrell Street, Queens Park in a semi-detached dwelling. His dwelling is attached by a common wall with 15 Birrell Street (the Respondents' Property). The Respondents have resided at the Respondents' Property since June 2014.
2. Prior to November 2017, there was no mechanical air conditioning installed at the Respondents' Property. An air conditioning system was installed at the Respondents' Property on 6 November 2017. The system comprises components that are affixed to the exterior of the premises and components that are located in the interior of the premises. It is only that part of the system in the interior of the premises to which these proceeding are concerned. The system has the capacity to engage a motorised fan which is located in the interior of the premises (above the ceiling) without also engaging the exterior motor of the system. In addition, the system can be operated by a timer function that can be set to operate automatically.
3. Mr Duarte has made repeated complaints to Waverley Council and police in relation to noise he experiences in the night and the negative impact these noises have had on his sleep, health and quality of life. Mr Duarte contends that such noise is emanating from the Respondents' Property from the indoor component of the Unit.
4. Mr Duarte commenced separate proceedings for a noise abatement order in the Local Court in 2018. The proceedings were withdrawn by Mr Duarte on 10 August 2018 and an order for costs in the amount of $10,880 was made against him.

Relevant legislative provisions

1. The provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) provide: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
2. Section 252 of the POEO Act provides: 252 Remedy or restraint of breaches of this Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. (4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. (7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence. (8) In this section-- "breach" includes a threatened or apprehended breach.
3. Mr Duarte seeks a remedy pursuant to s 252 of the POEO Act for the alleged breach of cl 45 of the Noise Regulation which states as follows: 45 Use of air conditioners on residential premises A person is guilty of an offence if - (a) the person causes or permits an air conditioner 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 10 pm on any Saturday, Sunday or public holiday, or (ii) before 7 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 an air conditioner to be used on residential premises in that manner, and (c) the person again causes or permits an air conditioner to be used on residential premises in the 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.

Evidence

1. Mr Duarte tendered a number of documents in his case. He gave no evidence either by affidavit or otherwise. He did make submissions. The distinction between evidence and submissions was explained to Mr Duarte during the course of the hearing. The rules of evidence apply in cases of this class of the Court's jurisdiction and whilst I address some of Mr Duarte's submissions so that a fuller understanding may be gained by him as to why I have arrived at my decision, I have not taken the submissions into account as evidence in the proceedings.
2. The documentary evidence tendered by Mr Duarte comprised: 1. Bundle of documents obtained from the Local Court proceedings; 2. Diary entries made by Mr Duarte recording his observations as to the experiencing of noise - excluding his observations as to the suspected source of the noise; 3. Bundle of medical certificates from Mr Duarte's treating doctors; 4. The Attic DC; 5. Extracts from Parts 2 and 4 "Regulating Noise Impacts" publication; 6. Statement of Mr Murray Ross sworn 4 April 2018; and 7. Building Information Application and Certificate granted by Waverley Council to the Respondents relating to the exterior component of the air conditioning system at the Respondents' Property.
3. Mr Ross gave evidence by affidavit sworn 18 March 2022 upon which he was cross-examined by Mr Duarte. Mr Ross' evidence indicates, inter alia, that: 1. Mr Duarte has been complaining to the Respondents with respect to noises of a similar nature since September 2014; 2. Mr Duarte has made a number of complaints to both the police and Waverley Council with respect to the noise said to be emanating from the Respondents' Property; 3. Since the installation of the Unit the police have visited the Respondents' Property in response to complaints from Mr Duarte on: 1. 23 January 2018 at 5.15 am; 2. 22 April 2018 at 4.20 am; 3. 13 July 2018 at 6.30 am; 4. 21 July 2018 at 6.30 am; 1. On no occasion have the police or Waverley Council warned the Respondents not to use the Unit or any other part of the air conditioning system; 2. On some of the occasions that Mr Duarte has complained of the noise from the Unit the Respondents have been absent from the Respondents' Property and the property has been vacant at night; 3. Mr Ross denied setting the timer to automatically operate the internal fan of the Unit in his absence or at all; 4. Mr Ross denied that the Unit was operated at night; and 5. Mr Ross kept a diary of use of the Unit and denied that the Unit had operated at any of the times upon which Mr Duarte had made a complaint relating to noise emanating from the Unit or at all during the hours referred to in cl 45 of the Noise Regulation.

That the Unit was installed in breach of development consent 588/2010 (the Attic DC) for attic storage

1. In order that Mr Duarte is able to succeed on this claim he must establish on the evidence that the installation of the Unit in the ceiling space of the Respondents' Property was development that was undertaken in breach of the provisions of the EP&A Act. In this case, Mr Duarte contends that such breach arises as a consequence of the operation of the conditions imposed upon the Attic DC and, therefore, that the breach of the EP&A Act arises pursuant to s 4.2(1)(b) in that the development is being carried out contrary to the terms of the Attic DC. Mr Duarte does not contend that the installation of the air conditioning system, absent the Attic DC was development that would otherwise require development consent or was otherwise in breach of the EP&A Act, nor is there any evidence before me to permit such findings to be made. Accordingly, an examination of this issue is limited to the manner it was formulated and the evidence adduced in the hearing.
2. Mr Duarte contends that the two alleged breaches of the Attic DC are that: 1. The Attic DC precludes by its terms any use other than storage; and 2. The Attic DC required the party wall to be extended so as to comply with the BCA and the extended wall does not comply.
3. Dealing with the first contended breach, namely the limitation of use of the attic space an examination of the express terms of the Attic DC is required. The Attic DC has as the nominated description of the development approved: Provision of attic storage area with associated dividing wall.
4. The plans the subject of the consent referred to in condition 1, which plans are subject to amendment by the conditions that follow, provide for the construction of a diving wall between the two semi-detached dwellings and the "lining" of the existing attic space. There is no condition subsequently imposed that purports to limit the use to which the space can be put.
5. Based upon a construction of the Attic DC there is nothing in the terms of that consent that limited the use of the attic space such that it could only be used for storage and not some otherwise available use ancillary to the primary dwelling house use. The provision of the building works to provide the storage space, whilst facilitating the subsequent use, did not operate to preclude otherwise available uses. Accordingly, I find that the Attic DC did not operate to preclude any other available use of that space.
6. There being no evidence that the installation of the Unit required development consent and that such consent not being obtained, I am not satisfied that the installation of the Unit was undertaken in breach of the provisions of the EP&A Act.
7. As to the second ground of breach, Mr Duarte contended that the construction of a dividing wall utilising "Hebel Thermoblock to FRL 80 requirements" was a construction that was not in conformity with the requirements of the BCA. He noted that at his request Waverley Council had imposed a condition upon the Attic DC that required the party wall to comply with the requirements of the BCA. The Attic DC relevantly contains two conditions that relate to the provisions of the BCA as follows: 9. Existing Party Wall is to be extended The existing party wall is to be extended to the underside of the roof in accordance with the requirements of the Building Code of Australia. The plans are to be notated accordingly prior to the issue of the Construction Certificate to the satisfaction of the Principal Certifying Authority. 21. Building Code of Australia All building work must be carried out in accordance with the requirements of the Building Code of Australia.
8. The reference to the Hebel Thermoblock construction is a reference to a notation upon the plans that were approved as part of the Attic DC and to which the provisions of condition 1(a) applied which condition provided (emphasis added): (a) Architectural Plan No 01 and 02 dated October 2010, tables and documentation submitted by Bruno Gaeta received by Council on 18 October 2010, except where amended by the following conditions of consent; …
9. If, as was submitted by Mr Duarte, the Hebel Thermoblock construction did not comply with the requirements of the BCA then by operation of conditions 9 and 21 the material would have had to be amended to so comply to the satisfaction of the Principal Certifying Authority prior to the issue of the construction certificate. When Mr Duarte was asked what evidence was available as to the nature of the material that was in fact used in the construction of the party wall, he relied solely on the plan notation. Further, no evidence was adduced as to the requirements of the construction certificate, or any inspections undertaken by the certifier.
10. In light of the evidence adduced I am unable to make any findings as to what material the party wall is in fact constructed of and, therefore, am unable to make any finding as to whether such construction conforms with the requirements of the BCA. Accordingly, I am unable to be satisfied on the evidence that there is any breach of the Attic DC and, therefore, the provisions of the EP&A Act as they relate to the party wall.

Compensation for the hardship caused by the loss of sleep caused by the Unit for the last 3 years and 8 months

1. Mr Duarte did not identify the particular jurisdictional foundation for this claim for compensation. However, even if jurisdiction was vested in this Court for such a claim, for the reasons that I set out below in connection with proceedings 2021/181839 I am not satisfied on the evidence available to me that the noise that Mr Duarte complains of is emanating from the Respondents' Property. Accordingly, even if jurisdiction was available, I would not make an order against the Respondents for the compensation as claimed.

Cancellation of the costs order made in the Local Court against Mr Duarte in connection with the dismissal of the noise abatement order in the sum of $10,880

1. Mr Duarte contended that the costs claim should be "cancelled" as he would establish a breach of the Noise Regulation. For the reasons outlined below, I have found no such breach. In light of that finding it is not necessary for me to make any further findings as to the power of this Court to make the orders sought in this claim.

A requirement that the Respondents connect a stormwater line to Birrell Street council drainage system.

1. The limited statutory jurisdiction of the Court was raised with Mr Duarte. He was unable to identify, within the bounds of that statutory jurisdiction the basis upon which his claim relating to the requirement of the Respondents to connect to a council drainage system could be sustained. Further, even if a jurisdictional foundation could be established there was little or no evidence available to me to identify the nature of the complaint, the cause of action or the remedy. Accordingly, I will dismiss this claim.
2. For the reasons outlined above, Mr Duarte has failed to establish any of the claims in proceedings 2021/181825 and the proceedings will be dismissed accordingly.

Proceedings 2021/181839

1. In these proceedings Mr Duarte seeks orders that the Respondents be restrained from acting in breach of the provisions of the POEO Act in that they are operating the Unit in breach of the provisions of cl 45 of the Noise Regulation.
2. To establish this claim Mr Duarte relies upon his evidence that at night he hears noise from within his premises. This noise he has described as being mechanical in nature and is of a character that it awakens him from sleep and prevents him from resuming sleep. He believes that the noise is emanating from the Respondents' Unit as he has been unable to identify any other source of noise from a source external to his premises, including from the external components of the air conditioning unit on the Respondents' Property.
3. Mr Duarte believes that the Unit is operating in the evenings as a fan and is even being operated in the absence of the occupants of the Respondents' Property by engaging the timing device available on the Unit.
4. Mr Ross both in his affidavit and in cross-examination denied both of these allegations as indicated in the summary of his evidence in [12] above.
5. In determining whether as a matter of fact there is noise emanating from the Unit at the Respondents' Property during the night hours, I must determine whether to accept the position of Mr Duarte or that of Mr Ross. In this case, Mr Duarte's evidence comprised his diary records of the noises that he heard. Mr Ross gave affidavit evidence and was cross-examined. In this case, however, there is evidence in addition to the assertions of each of the witnesses so that it is not merely an exercise in determining which of the witnesses is to be preferred in a vacuum. In this case, I find that there is sufficient objective evidence to support an acceptance of the evidence of Mr Ross, that evidence includes: 1. Mr Duarte's complaints in connection with the noise of this character commenced prior to the installation of the Unit; 2. The complaints also occurred during periods of non-occupation by the residents of the Respondents' Property where there was no reasonable explanation as to why the residents would have the Unit operating in their absence; and 3. The Respondents' Property had been attended by the police in response to complaints by Mr Duarte and such police had stood at the entry door (which had been opened) and no noise had been detected from the Unit.
6. Each of the separate and objectively established facts support the evidence of Mr Ross that the occasions on which Mr Duarte has experienced the noise from within his premises that such noise is not, on the balance of probabilities, likely to have been emitted from the Unit in the Respondents' Property. Balanced against Mr Duarte's belief which is not supported by any investigation beyond an external examination of adjoining properties and assumptions made, I cannot accept on the balance of probabilities that the noise is emanating from the said Unit.
7. However, even if Mr Duarte was able to establish that the noise was emanating from the Unit at the relevant times of day referred to in cl 45 of the Noise Regulation, in order for Mr Duarte to be entitled to the relief he seeks it is necessary that he establish that all the requirements of cl 45 of the Noise Regulation have been met to establish a breach. In addition to the emanation of noise such breach requires satisfaction of the following facts: 1. That within 7 days of the noise emanating from the Unit the Respondents were warned by an authorised officer or enforcement officer not to cause or permit an air conditioner to be used on residential premises in that manner; and 2. The person again causes or permits an air conditioner to be used on residential premises in the manner referred to in paragraph (a) of cl 45 within 28 days after the warning has been given.
8. It is common ground between the parties that at no time have the Respondents been warned by an authorised officer in accordance with the requirements of cl 45 of the Noise Regulation.
9. Mr Duarte submitted that he was unable to establish the warning because the police, being a relevant officer under cl 45 were not interested in enforcing noise complaints. Whilst that may be the wayit appears to Mr Duarte feels it is apparent that the NSW police have responded on a number of occasions in response to Mr Duarte's noise complaints and that the police have investigated those complaints by attending at the Respondents' Property at the early hours of the morning. The fact that the police were not satisfied that a warning was warranted is not evidence of a failure to perform the function.
10. For those reasons, Mr Duarte has not established a breach of cl 45 of the Noise Regulation such that an order should be made to remedy or restrain a breach pursuant to the provisions of s 252 of the POEO Act. Accordingly, proceedings 2021/181839 will be dismissed.

Costs

1. Pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in proceedings such as these costs generally follow the event such that the Applicant would pay the Respondents' costs of the proceedings. The Respondents have sought their costs in these proceedings. To enable the Applicant to address me as to costs, but also to ensure no further additional unnecessary costs are incurred, I propose a form of order that adopts the presumption in r 42.1 but enables the Applicant, Mr Duarte, to submit that a different order should be made should he wish to do so. However, these proceedings should not be further extended in time, so I have fixed what I consider to be a reasonable time to enable such application to be made.

Orders

1. In proceedings 2021/181825 the Court orders that: 1. The Amended Summons filed on 14 September 2021 is dismissed; 2. The Notice of Motion filed on 14 March 2022 is dismissed; and 3. The exhibits are returned. I direct that the parties are to make arrangements to collect the exhibits from my Associate within 7 days from the date of these orders.
2. In proceedings 2021/181839 the Court orders that: 1. The Amended Summons filed on 14 September 2021 is dismissed; 2. The Notice of Motion filed on 14 March 2022 is dismissed; and 3. The exhibits are returned. I direct that the parties are to make arrangements to collect the exhibits from my Associate within 7 days from the date of these orders;
3. In both proceedings 2021/181825 and 2021/181839: 1. Order the Applicant to pay the Respondents' costs of those proceedings; 2. In the event that either party seeks to vary Order (1), direct: 1. The party seeking a variation to provide any affidavits and submissions (limited to three pages) within 14 days; 2. The other party to provide any affidavits and submissions in reply (limited to three pages) within 14 days of receipt of the material in Order 2(a); 1. Such application to be determined on the papers.

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: 03 June 2022