Funnell v Blayney Shire Council

Background of the Notice under appeal and expert/witness submissions

1. The issues that caused the Council to issue the Notice, are agreed by the parties to have a long and complicated history, which are for the most part not of concern for the Court in the determination of this appeal.
2. In hearing this appeal, the Court has received and assessed several Affidavits from surrounding residents, including 10 in support (including the applicants and multiple residents at several surrounding properties) and one opposed, at an adjacent property.
3. Significantly, and of relevance to this appeal, is a stay on the Notice, that was determined by Pepper J in Funnell v Blayney Shire Council [2020] NSWLEC 170 (the Stay judgment) on 4 December 2020. The effect of the Stay judgment was to the operation of the Notice, which was stayed pending final determination of this Class 1 appeal, on the following terms: "(a) there shall be no more than nine greyhound dogs at the subject property; (b) the applicants shall use their best endeavours to rehome two of the nine greyhounds currently held on the subject property; (c) 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; (d) there shall be no more than three domestic dogs (which must not be greyhounds) held by the applicants on the subject property; (e) when on the subject property the greyhound dogs shall be kept in the kennel shed at all times except as follows: (i) 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"); (ii) 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: (A) two periods on leash; (B) two periods off leash in the yards; and (C) walked on leash for one swim in the dam in the south western corner of the subject property; (f) apart from ingress and egress, the door on the southern side of the kennel shed shall be kept closed at all times; (g) the door on the northern side of the kennel shed shall be kept closed except: (i) during the morning toileting time; and (ii) 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; (h) 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;
4. It is noted and agreed by the parties that the terms set out above in the Stay judgment differ from those described in the Notice, and importantly that a number of the prescribed terms have already been implemented by the applicants, since mid-December 2020.
5. The applicants initially sought in this appeal for the Notice to be set aside in its entirety. However, during the hearing the applicants, without opposition from the respondent, advised the Court that they now seek to amend their appeal, whereby they agree to the Notice being varied. They seek preventative actions, consistent, although modified to the terms described in the Stay judgment, and as posed in Exhibit O. These actions remain partially in dispute between the parties.
6. The respondent prefers the terms set out in the Stay judgment, which are described in Exhibit 8. Exhibit 8 also provides a site plan, which describes the location details for features referred to in the proposed orders. This plan is agreed as relevant and accurate, by the parties.
7. The Court therefore in this appeal, is required to assess and make orders regarding the appropriate preventative actions, which seek to vary the Notice.
8. The Court heard directly from the resident of 417 Mandurama Road, Dr Johnston, as the sole objector, whom expressed her frustration at the time taken to address noise issues associated with greyhounds kept on the site, as expressed in her Affidavits tendered to the Court. She did however, observe that there has been a general improvement in the noise disturbance at her property in response to various actions taken by the applicants to manage the noise emanating from the site. She noted that since mid-December 2020, the noise impact to her property had reduced significantly and she now does not consider it to be 'offensive'.
9. The Affidavits tendered in support of the applicants relate to other residents that are generally not concerned by any noise emanating from the site as it relates to the greyhounds.
10. In determining this appeal, I am required to act in accordance with the rules of procedural fairness and to take an even handed approach without bias or prejudgment. I am entitled to inform myself in such a manner as is appropriate to the appeal under consideration, and to rely on my own expertise and experience to reach a balanced decision. The reasons for my decision to vary the Notice are provided below in this judgment.
11. In making my determination, I have assessed and considered all the submissions made by experts and lay witnesses that have been provided in evidence, consistent with s 78 of the Evidence Act 1995. I understand that lay witnesses can only give evidence of information, facts and events relating to what they have personally observed or were involved in.
12. The Court was provided expert acoustic evidence from: Mr Tom Harper for the applicant; and Mr Stephen Gauld for the respondent. The Court refers to their joint expert report, tendered as Exhibit 2, as well as their individual expert reports in Exhibit 3 for Mr Gauld, and Exhibit D for Mr Harper.

The site

1. The site is approximately 5.8 hectares in area and surrounded by similarly sized lots in a rural setting. There are numerous residences surrounding the site, as well as some vacant lots. Photographs of the site are provided in Exhibit M.
2. The site has: a centrally located, single level residential dwelling, large shed and (dog) new exercise yards; and located towards and along the eastern boundary (adjacent to 417 Mandurama Road), are former (dog) exercise yards, kennels, pens and a slip lane (greyhound training track). The layout of the site is described in Exhibit 8 and shown below as Figure 1.

Relevant planning controls

1. The requirements of ss 95 and 96 of the PoEO Act are relevant for the Court's consideration of the Notice under appeal, as follows: 95 Meaning of environmentally unsatisfactory manner 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. 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. …. (4) Occupier's duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken. (5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.
2. The PoEO Act defines 'activity', 'noise' and 'noise pollution' which are relevant to this appeal as follows: 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). noise includes sound and vibration. noise pollution means the emission of offensive noise.
3. Further to this, the PoEO Act defines 'offensive noise' as follows: 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.

Is the Notice and the described preventative actions to attenuate noise reasonable?

1. The applicants initially contended that the Notice is not legally executed, and therefore should be set aside. The Court understands that this issue has not been resolved by the applicants' agreement to vary the Notice. Therefore, the Court must first address the basis for the Notice, before any variation to the orders of the Notice can be considered.
2. Mr Cork argues that the test for the Court to be satisfied of the requirement for the Notice, pursuant to s 96 of the PoEO Act, is compliance with s 95 of the PoEO Act. The Court's assessment is not that the noise from the dogs is 'offensive' but that the 'activity' of keeping of greyhounds, has and will, by all practical means necessary, prevent, control or minimise noise pollution and the emission of any noise from the site.
3. The Court was addressed by Ms Reid that the Notice specifically seeks to mitigate noise relating to the keeping of greyhound dogs on the site, which are described by the Council in their contentions, as causing barking, yelping, whining and howling at intermittent times during the day, evening and night.
4. It is recognised that the Notice seeks to attenuate the noise from all dogs kept on the site through: acoustic treatment of the shed that houses the greyhounds; limiting the number (by breed) of dogs kept on the site; and managing the outdoor activities of the greyhound dogs.
5. Council contends that the Notice and the prescribed preventative actions (Exhibit 8) are required because the greyhound dogs create noise that is frequent and loud during the day, which disturbs/restricts neighbouring property activity. In addition, the noise from dogs on the site is intermittent during the evening and night, which is disturbing the sleep of adjoining residents.
6. The Court heard from the acoustic experts, whom disagree on the 'offensiveness' of the noise from the (greyhound) dogs, and therefore whether this noise could be considered as noise pollution, pursuant to s 95 of the PoEO Act.
7. The experts agree that the 'Offensive Noise Test' (ONT) described in Section 2.1.4 in the EPA's Noise Guide for Local Government 2013 (NGLG) is appropriate to determine whether the noise from dogs kept on the site is considered offensive. The ONT establishes a checklist of six questions to be considered when assessing the offensiveness of noise, being: "Q1: Is the noise loud in an absolute sense? Is it loud relative to other noise in the area? This establishes that the noise is likely to be heard by neighbours. Its volume alone may be annoying. An example would be music being played at a very high volume in a residence so it can be heard over very noisy activity outside, such as construction work. The noise may also be loud relative to the background noise. An example would be loud fireworks set off late at night. Noise measurements using a sound level meter would help to determine how loud the noise is relative to the background noise level in the area. Q2: Does the noise include characteristics that make it particularly irritating? The presence of tones, impulses or fluctuations in volume can make people more likely to react to the noise. These can be judged subjectively but noise measurements will help to quantify the extent of these characteristics. Examples might be screeching sounds from poorly maintained equipment or a 'beeper' alarm that uses a pulsed sound made up of one or two alternating frequency tones, usually higher pitched, that are louder than the background noise in the area. Q3: Does the noise occur at times when people expect to enjoy peace and quiet? People usually expect their surroundings to be quieter during the evening and at night. Talk to the complainants about how the noise affects them to see if it is interfering unreasonably with their comfort at home. Is it regularly disturbing their sleep, making it difficult to have a conversation, study, read or hear the TV? Noise that regularly disturbs sleep is likely to be considered offensive by complainants and this should be taken into account in your assessment. Q4: Is the noise atypical for the area? Where noise from an activity that is causing nuisance is new or unusual for an area, people are more likely to react. Look at the typical uses of the area and determine whether the activity is consistent with the local environmental plan. An example might be a community event with amplified music affecting a residential area that has not traditionally been affected by such events. Q5: Does the noise occur often? Noise can be more annoying when it occurs frequently. Examples might be a leaf blower used every morning or a band that practises frequently without regard to the impact on neighbours. Q6: Are a number of people affected by the noise? Only one person needs to be affected by the noise for it to be deemed offensive. However, talking to other neighbours likely to be exposed to the same noise about how it affects them may assist in deciding what action to take. Some councils have a policy of requiring a minimum number of complaints from different individuals before taking formal action."
8. Mr Cork argues that the Court is not obligated to adopt the ONT to be satisfied of s 95 of the PoEO Act, pursuant to its power established in s 39 of the Court Act and ss 289 and 292 of the PoEO Act.
9. I adopt, in assessing the 'offensiveness' of the noise from the (greyhound) dogs on the site, the approach of the experts to quantify and qualify their responses relative to the six ONT questions. They rely on the measured background noise levels and their understanding of the potential for impact to surrounding residents. Their detailed assessment is provided in Exhibit 2, and the Courts understanding of their evidence is summarised below.
10. The experts agree that the background noise level measured by Mr Harper for the site and surrounding properties is 'very low', and that the surrounding area is 'quiet' during all times. The background noise level measured at the site is 23, 18 and 17 dBA in the day, evening and night, respectively.
11. I accept, as described in Section 2.1.1 of the NGLG, that noise can be assessed as offensive in three ways according to:

• audibility,
• duration, and
• inherently offensive characteristics.

1. The term 'barking dogs' is adopted by the experts, and the Court, to cover all noise generated by dogs kept on the site, including the greyhounds and other dogs, and is not limited to barking, howling, yelping and whining.
2. In answer to Q1, the experts agree, and the Court accepts that any noise from dogs on the site would be audible and loud during all times, because it is assessed against the measured 'quiet' background noise. The experts also agree that the barking of dogs would be 'absolutely' loud when the greyhounds were located outside in the external yards, and when the greyhounds were inside the shed, with both (shed) roller doors open. The experts also agree that the greyhound dogs would be 'relatively' loud when located inside the shed with the roller doors open.
3. It is noted that the expert assessment of noise was made prior to any acoustic treatment of the shed (as proposed in the terms of the Stay judgment), which is understood to have been undertaken by the applicants. The experts agree that acoustic treatment of the shed would have a positive reduction in noise, and that the northern roller door could be kept open (for air flow) without causing impact from offensive noise to the adjoining residents.
4. The experts agree that the Environment Protection Agency (EPA) Noise Policy for Industry 2017 (NPI) recommends that if the measured background noise levels are below 30 dBA, then the Rating Background Level (RBL) should be set at 30dBA.
5. The experts agree that the NPI does not strictly apply to the site, as it is located in a residential area and the 'activity' is not of an industrial nature. However, they disagree as to whether the NPI is a relevant tool to establish the RBL, as a basis to assess the offensiveness of noise from dogs located on the site.
6. Based on the evidence before the Court, including the fact that the site is in a residential location and the assessed activity (keeping of dogs) can be considered domestic, I agree with Mr Gauld, that the RBL of 30dBA in the NPI is not relevant for consideration in this appeal. The significant difference between the measured background level (17-23 dBA) to an RBL of 30 dBA, sets an unreasonable baseline in this situation.
7. I agree that the noise from the greyhounds kept on the site is (absolutely) loud when the dogs are outside and when located indoors with both the shed roller doors left open, because the background noise is quiet, particularly in the evening and at night.
8. To answer Q2, the experts agree that Table C1 in the NPI should be considered, particularly when assessing the tonality, intermittency, irregularity and low frequency of noise, because it states that: 'Where a noise source contains certain characteristics, such as tonality, intermittency, irregularity or dominant low-frequency content, there is evidence to suggest that it can cause greater annoyance than other noise at the same noise level'.
9. The experts agree, and the Court accepts that the noise from the greyhounds kept on the site cannot be considered as tonal, nor low-frequency, and is not irregular, as defined in Table C1 of the NPI. The experts agree, and the Court accepts, that the duration of noise from the greyhounds on the site is variable depending on what the dogs are responding to, such as human activity.

Variation of the Notice

1. The parties agree that if the Court finds that the Notice is required, then the orders for preventative actions should be varied consistent with the evidence before Court, and based on that imposed in the Stay judgment.
2. The applicant contends that some of the prescribed preventative actions in the Notice and terms of the Stay judgment, which seek to attenuate dog related noise emanating from the site, are unreasonable and should be varied consistent with their lifestyle needs.
3. The parties agree to the following orders for preventive actions to be attached to the Notice (as described in Exhibit 8): "1. Maintain in good repair the acoustic attenuation measures of the kennel shed described at [4.110] of the Joint Acoustic Report filed with the Land and Environment Court NSW on 15 April 2021 and being exhibit 2 in proceedings 2020/00230553. 2. Maintain in good repair the noise attenuators model CC025M below each roof ventilator in the part of the kennel shed. 3. Keep no more than 3 domestic dogs at the premises at any one time and these may not be greyhounds. 4. Keep no more than 7 greyhounds ("the greyhounds") at the premises at any one time."
4. The applicants however propose a variation of preventative actions proposed by the respondent, which are described in item 5 of Exhibit O, as follows: "5. Keep the greyhounds, when on the premises, in the following manner: a. From 5am to 7am on weekdays and from 6am to 7.30am on weekends, the greyhounds in groups of not more than four may be taken to the day yards directly from the northern door of the kennel shed for not more than 10 minutes for the purpose of toileting; b. Between 7am and 6pm or sunset (whichever is the later) on weekdays and between 8am and 6pm or sunset (whichever is the later) on weekends, the greyhounds may be exercised in the day yards taken directly via the northern door of the kennel shed to the day yards; c. Between 7am and 6pm or sunset (whichever is the later) on weekdays and between 8am and 6pm or sunset (whichever is the later) on weekends, the greyhounds may be exercised in groups of not more than four elsewhere on the premises for not more than 30 minutes for each group: i. Two periods on leash; ii. Two periods off leash; iii. Walked on leash for one swim in the dam in the south western corner of the premises; d. Apart from ingress and egress, the door on the southern side of the kennel shed shall be kept closed at all times; e. The door on the northern side of the kennel shed may be left open at any time. f. On no more than 15 days in any calendar year and only during the non-daylight saving period (late March/early April to early October) the time "6pm" stipulated in each of 5.b and 5.c.may be extended to 7.30pm."
5. I have assessed the evidence before the Court in this appeal, including the Affidavits, to make my determination on orders as they relate to the preventative applied to the Notice.
6. In consideration of the applicants' proposed preventative actions 5a and 5c, I have heard from the experts that dogs react to triggers and can bark in harmony. For this reason, I accept the respondent's position, that the greyhounds should be let out in groups of four (4) or less, which would likely reduce the potential for any offensive noise, particularly at times that could cause maximise disturbance to surrounding residents sleep.
7. In response to applicants' proposed preventative action 5b and 5c, I accept the respondent's concern that residents should be allowed to enjoy the peace and quiet of their properties in the evening, and particularly during summer, when sunset could result in a much longer time (beyond 6pm) for the dogs to be outside, which could cause more offensive noise to the adjoining properties. Therefore, I find that 6pm should be set as the time that the greyhounds are to be returned inside (to the shed), after being outside all day. This length of time outside provides adequate exercise time for the dogs and reduces any potential for offensive noise to surrounding residents in the evening.
8. I accept the parties' agreed actions for proposed preventative action 5d and 5e.
9. In response to the applicants' preventative action 5f, I accept the applicants' concern that on some occasions they may be late returning to their property and need some allowance beyond the 6pm deadline to return the greyhound dogs to their shed. I find it reasonable that there are 15 days in any calendar year, and specifically to be applied between the dates that correspond to non-daylight saving time, whereby the greyhound dogs could be returned to the shed later than 6pm without penalty, although this time should not be later than 7.30pm.
10. The Court determines and directs the Council to apply the following preventive actions (identified in item 5) in variation of the Notice: "5. Keep the greyhounds, when on the premises, in the following manner: a. From 5am to 7am on weekdays and from 6am to 7.30am on weekends, the greyhounds in groups of not more than four may be taken to the day yards directly from the northern door of the kennel shed for not more than 10 minutes for the purpose of toileting; b. Between 7am and 6pm on weekdays and between 8am and 6pm on weekends, the greyhounds may be exercised in the day yards taken directly via the northern door of the kennel shed to the designated day yards; c. Between 7am and 6pm on weekdays and between 8am and 6pm on weekends, the greyhounds may be exercised in groups of not more than four elsewhere on the premises for not more than 30 minutes for each group: i. Two periods on leash; ii. Two periods off leash; iii. Walked on leash for one swim in the dam in the south western corner of the premises; d. Apart from ingress and egress, the door on the southern side of the kennel shed shall be kept closed at all times; e. The door on the northern side of the kennel shed may be left open at any time. f. On no more than 15 days in any calendar year and only during the non-daylight saving period (late March/early April to early October) the time "6pm" stipulated in each of 5.b and 5.c.may be extended to 7.30pm."

Conclusion

1. The Notice has been assessed based on the evidence before me, including the amended proposed and agreed preventative actions, expert reports and photographs/site plan.
2. I am satisfied that the Notice should be applied to the activity of keeping dogs on the site, although the preventative actions should be varied, as described in this judgment. The determination and variation of the Notice is established in ss 96(2) and 292(2) of the PoEO Act, and s 39 of the Court Act.
3. Therefore, the appeal for the Prevention Notice issued on 21 July 2020 to the applicants is determined to be varied, with the applicants directed to undertake the preventative actions as described in Annexure A.

Orders

1. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. The Prevention Notice issued on 21 July 2020, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama is varied, subject to preventative actions and plan described in Annexure A. 3. The exhibits are returned, except Exhibits 1, 2, 5, 6, 8 A, D and O. ……………………. Sarah Bish Commissioner of the Court Annexure A (397296, pdf)

---

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: 14 May 2021