Funnell v Blayney Shire Council

Land and Environment Court (NSW)|2020-12-04|Before: Pepper J

Solicitors: McPhee Kelshaw Solicitors and Conveyancers (Applicant) Crennan Legal Pty Ltd (Respondent) File Number(s): 2020/230553

The Applicants Are Issued With a Prevention Notice Concerning the Keeping of Greyhounds

In this notice of motion the applicants, Alita Funnell and Keith Selten, are seeking a stay of a prevention notice issued by the respondent, Blayney Shire Council ("the Council"), on 21 July 2020, pending determination of their Class 1 appeal seeking to set the notice aside.
The graven of the prevention notice, the Class 1 proceedings, and of this application, is the noise allegedly being made by greyhounds housed on the applicants' property.

The Class 1 Appeal

The Class 1 appeal seeks to set aside the prevention notice. Statements of Facts and Contentions have been filed by the parties.
According to the applicants, the prevention notice ought to be set aside on the basis that: 1. the evidence relied upon by the Council does not establish that the greyhounds were the source of any "offensive noise" under the POEOA; 2. on the contrary, the expert evidence of Harper establishes that the noise emitted by the dogs does not constitute "offensive noise" under that Act; 3. no procedural fairness was given to the applicants prior to the issuing of the prevention notice in contravention of the Council's Enforcement Policy; 4. the Council did not follow the NSW EPA's guidelines for the issuing of prevention notices under the POEOA insofar as it did not afford procedural fairness to the applicants prior to issuing the notice; 5. the Council did not follow the NSW EPA's Noise Guide for Local Government ("Noise Guide") which provides information about dealing specifically with noise from animals, such as barking dogs. The Council did not follow the Noise Guide in assessing the level of noise and in selecting the acoustic recording equipment; 6. the prevention notice does not address the welfare of the dogs on the property, especially with respect to the Code of Practice in relation to the application of condition 2.6 of the notice; 7. the notice seeks to regulate three dogs on the property about which no complaint has been made; 8. the prevention notice had been issued on the basis of complaints from the residents of one property only from 2019 onwards, namely, Johnson and her partner; 9. the mitigation measures taken by the applicants since the prevention notice was issued have fully addressed the complaints made by restricting the number of greyhounds on the property; by restricting the time the greyhounds spend outdoors; and by lining the kennel shed with acoustic insulation from 1 August 2020.
In summary, in light of the mitigation measures now effected by the applicants, the notice "is an attempt by the Council to unreasonably restrict the use of the Applicants' property".
By contrast, the Council contends that steps have neither been taken to reduce the number of greyhounds kept on the property nor to insulate or line the shed. Moreover, the dogs have been kept outside and allowed to bark and whine. In summary, the greyhounds kept on the property create noise which is disturbing the amenity of the persons living on the adjoining property.
The appeal has not yet been listed for hearing.

Principles Applicable to the Granting of a Stay in Class 1

The power to grant a stay of the prevention notice is contained in ss 22 and 23 of the Land and Environment Court Act 1979 ("the LEC Act"): 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
Section 22 was relied upon as the source of the Court's power to grant a stay in Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53 (at [3] per Craig J). In Eniflat Pty Limited; Karlos v Tweed Shire Council [2019] NSWLEC 150 Pain J (at [2]) accepted that the Court had the power to grant a stay in Class 1 proceedings.
Without having to decide whether either or both provisions confer power on the Court to grant a stay in Class 1 appeals, I accept that the Court has the requisite power to do so.
The principles applicable to the grant of a stay pending an appeal were stated by the Court in Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 (at [34]-[39]). More recently they were articulated in CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11 (at [40]-[44]). See most recently Wallis v Rudek [2020] NSWCA 61 (at [46] per White JA) and Malass v Strathfield Municipal Council [2020] NSWLEC 168 (at [42]).
The principles in relation to whether a stay of orders the subject of an appeal should be granted were summarised in the seminal case of Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (at 693-695). They were expanded upon by Beazley JA (as her Honour then was) in Chen v Lym International [2009] NSWCA 121 per Beazley JA at [12]-[15], by Handley, Sheller and Ipp JJA in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (at [17]-[20]), and in this Court by Sheahan J in Young v King (No 10) [2016] NSWLEC 70 (at [24]-[25]).
As espoused by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 they are as follows (at [10]-[15]): 10 The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. 11 A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. 12 It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]. 13 It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA). 14 As already mentioned, the notice of appeal is not particularly informative. The requirements of the rules concerning a notice of appeal are set out in UCPR r 51.18. The notice is required to state, briefly but specifically, the grounds relied upon in support of the appeal. In addition, subrule (2) requires the appellant to also specify any material facts that the appellant contends that the court below should, or should not, have found. Here the notice of appeal does not comply with these requirements. 15 As Campbell JA observed in Vaughan v Dawson [2008] NSWCA 169 at [22], having a notice of appeal that does not comply with the rules is an unpromising start for proving there is a serious question about whether the appeal will succeed. Nonetheless, Campbell JA accepted that it may not be fatal if there is reason to believe that the notice of appeal could be amended to state properly arguable grounds. This requires one to consider on a broader basis whether the appellants have shown a prospect of successfully appealing from the judgment. I adopt that approach here.
They were condensed further and applied by Gleeson JA (after referring to and endorsing Alexander and Kalifair) in Collier v Country Women's Association of New South Wales [2017] NSWCA 303 (at [32]): 32 It is not necessary to refer to those principles in any detail other than to note that in such cases, the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2].
In relation to the strength of the appeal, Basten JA opined as follows in Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 (at [17]-[18]): 17 So far as the last matter is concerned, the inquiry is usually constrained to a determination whether the appeal is reasonably arguable. With respect to the prospects of success on an appeal, the Court stated in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed): "… although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case." 18 The grammatical structure of this statement is not entirely clear, but the availability of "some preliminary assessment" has generally been regarded as going to the merits of granting a stay or declining to do so, and not merely to the terms on which it may be granted.
Finally, in Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 the Court said (at [17]): 17 The principles may be relevantly summarised as follows: (a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; (b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; (c) third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; (d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; (e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and (f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case.

The Appeal Raises Arguable Grounds on a Preliminary Basis

There can be no doubt having regard to the contentions raised by the Class 1 appeal and the evidence of the applicants filed in this application, especially the expert acoustic evidence of Harper and NoiseNet, that the appeal is reasonably arguable having regard to the grounds articulated in the Statements of Facts and Contentions. This is especially so in the absence of any expert evidence by the Council as to the 'offensiveness' of the noise. As alluded to above, NoiseNet appears to have applied the wrong criteria in their two reports, namely, that of "nuisance".
The Council resisted this assertion by submitting that all that was required to be established was that an activity was being carried out by the applicants in "an environmentally unsatisfactory manner" insofar as it was not being "carried on by such practicable means as may be necessary to prevent, control or minimise…the emission of any noise" (s 95(c) of the POEOA).
While I do not need to decide this issue, the Council faces a hurdle in making this submission because this is not what is stated as the basis of the issuing of the prevention notice. The prevention notice was unequivocally issued because of a determination by the Council that the dogs were creating "offensive noise" (see section 1.11 of the notice). To now assert a different reason for the issuing of the prevention notice at this stage may be problematic. Ultimately, this will be a matter for resolution at the Class 1 appeal.
It is also not in dispute that no notice was given to the applicants that the Council intended to issue the prevention notice. Whether or not the Council was obliged to afford procedural fairness prior to the issuing of the notice will also be a matter for final determination in the Class 1 appeal.

The Balance of Convenience Favours the Applicants

Having regard to the Council's own acoustic evidence and the unchallenged evidence of Harper, it cannot be concluded that, as the Council argued in its written submissions, the balance of convenience favours a refusal of the granting of the stay on the basis of "a clear, ongoing disturbance to the residents of the neighbouring property".
As stated above, whether there is a disturbance is not to the point. The question is whether the dogs cause "offensive noise" within the meaning of the POEOA. If it is ultimately found that they do not, then the prevention notice is amenable to be set aside.
Against this, however, is the uncontested evidence of the disturbance to the amenity of Johnston and her partner. It is not acceptable that the quiet enjoyment of their home is impinged upon by excessive noise from the greyhounds and that they are unable to sleep at night as a consequence.
Nevertheless, it is plain that the applicants have taken genuine and effective steps to mitigate the noise that the greyhounds make and that, as both Johnston and Dicker deposed, those measures have been effective.
Finally, it is important that the Court takes into account the welfare of the greyhounds, as advocated for by the applicants. Some of the conditions contained in the prevention notice, such as condition 2.6, are unreasonable, if not unacceptable, especially upon the advent of summer. The dogs are entitled to exercise and fresh air and cannot be kept confined for most of the day indoors, especially during warmer weather. To do so is arguably contrary to the Code of Practice.
In my view, the balance of convenience favours the applicants, but some accommodation must be given to the intrusion on the amenity of the neighbouring property, especially at night.

The Stay Should be Ordered with Conditions

For these reasons, having regard to the above principles, I am of the opinion that the applicants have discharged their burden of proof and that the most appropriate course is to order a stay subject to conditions. This will ensure that most of the measures that the applicants have currently been implementing remain in place pending the outcome of the Class 1 appeal.
The parties anticipated the above conclusion and after some discussion provided the Court with a set of proposed conditions which are supportable on the evidence presently before it. I propose to grant the stay subject to these proposed agreed conditions. In my opinion, these conditions strike the appropriate balance between, on the one hand, the interests of the applicants and the welfare of the dogs, and on the other, the amenity of the adjoining neighbours.

Orders

For the reasons given above, the orders of the Court are as follows: 1. the operation of the prevention notice issued on 21 July 2020 by the Council is stayed pending final determination of the Class 1 appeal filed by the applicants in this matter, on the following terms: 1. there shall be no more than nine greyhound dogs at the subject property; 2. the applicants shall use their best endeavours to rehome two of the nine greyhounds currently held on the subject property; 3. the applicants will provide a report to the respondent within seven days of the end of each calendar month concerning their efforts to rehome the two greyhounds referred to in (b), and the results of those efforts; 4. there shall be no more than three domestic dogs (which must not be greyhounds) held by the applicants on the subject property; 5. when on the subject property the greyhound dogs shall be kept in the kennel shed at all times except as follows: 1. from 5:00 am to 7:00 am on weekdays and from 6:00 am to 7:30 am on weekends, greyhounds in groups of not more than four may be taken to the day yards or other yards not closer to the Johnston house than the day yards (collectively referred to as "the yards") for not more than 10 minutes for the purpose of toileting ("morning toileting time"); 2. between 7:30 am and sunset, greyhounds may be exercised in groups of not more than four greyhounds outside the shed at any one time and for not more than 30 minutes each group: 1. two periods on leash; 2. two periods off leash in the yards; and 3. walked on leash for one swim in the dam in the south western corner of the subject property; 1. apart from ingress and egress, the door on the southern side of the kennel shed shall be kept closed at all times; 2. the door on the northern side of the kennel shed shall be kept closed except: 1. during the morning toileting time; and 2. between 7:00 am and sunset or if the maximum temperature for the day has exceeded 30 degrees celsius the door may remain open until 10:00 pm; 1. the applicants shall further enhance the acoustic treatment of the kennel shed by installing noise attenuators model CC025M below each roof ventilator in the part of the kennel shed in which greyhounds are housed, the work to be done by 24 December 2020; 1. liberty to restore on 48 hours' notice; 2. the matter is relisted before the Registrar for further directions on 1 February 2021; 3. the costs of the notice of motion are reserved; and 4. the exhibits are to be returned.

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: 04 December 2020

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