Newcastle City Council v Leaway Pty Limited & Anor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40284/04 NEWCASTLE CITY COUNCIL v LEAWAY PTY LIMITED

JUDGMENT 1 HIS HONOUR: This matter comes before me pursuant to a charge by the applicant that the respondents are guilty of contempt. In short, the alleged contempt is that the respondents have conducted the business of a waste transfer station at premises known as 55 Throsby Street, Wickham contrary to orders which I made on 29 June 2004. 2 The facility is conducted pursuant to a development consent granted by the Council. That consent contains a number of conditions. Conditions 4.5 and 4.6 are designed to protect, in particular respects, the amenity of the neighbouring properties. Condition 4.5 reads as follows: "The use and occupation of the premises including all plant and equipment installed thereon, not giving rise to any 'offensive noise', as defined under the Noise Control Act, 1975, as amended. Note: Should Council consider that offensive noise has emanated from the premises, the owner/occupier of the premises will be required to submit an acoustic consultant's report recommending appropriate acoustic measures necessary to ensure future compliance with this condition and will be required to implement such measures within a nominated period. Furthermore, written certification from the said consultant confirming that the recommended acoustic measures have been satisfactorily implemented will be required to be submitted to Council before the expiration of the nominated period. Reason : To ensure that appropriate noise control measures are implemented in order to protect the existing amenity of the neighbourhood." 3 Condition 4.6 reads as follows: "There being no interference with the amenity of the neighbourhood by reason of the emission of any vibration, smell, fumes, smoke, vapour, steam, soot, ash or dust, or otherwise as a result of the proposed development. Reason: To prevent environmental pollution, to ensure observance of appropriate public health standards and to protect the existing amenity of the neighbourhood." 4 Before making the orders on 29 June, I had previously considered whether or not orders should be made. The matter came before me on 29 June when I determined that orders should be made which had the effect of requiring the activity to be conducted in accordance with the conditions of the development consent. However, because of circumstances which were revealed by the evidence placed before me on that occasion, particularly the suggestion that the activity might be relocated to other premises within a short period of time, I determined that the order should be suspended. The order was suspended until 12 August 2004. 5 The matter came before me again on 23 August. On that occasion I determined that it was not appropriate that any significant further suspension be granted and, accordingly, ordered that the order made on 29 June would be operative from 1 September 2004. 6 The Council has tendered evidence from local people and also the evidence of an expert. The respondents have not challenged the evidence of the local people, although have themselves called an expert. The expert evidence relates to matters of noise and vibration. In general, the expert evidence discloses that vibration has been caused at the premises in excess of the adopted standards, with the consequence that, for some people, it is likely that the enjoyment of their residential properties will be affected. The evidence from the residents indicates that this has been the case and, accordingly, as that evidence has not been challenged, I am satisfied beyond any doubt that the operation of the premises, until recently, has occasioned interference with the amenity of the neighbourhood by reason of the emission of vibration. 7 The local people gave evidence of offensive odours emanating from the premises. That evidence is not challenged. The evidence persuades me that the smell has at times been so offensive as to seriously interfere with the enjoyment of neighbouring properties. Accordingly, I am satisfied, beyond any doubt, that the amenity of the neighbourhood has been interfered with by reason of the emission of smell from the premises. 8 With respect to noise, the position is more complex. The lay evidence indicates significant intrusive noise is occasioned to neighbouring properties. The analysis of the noise by experts is complicated by the fact that they have not carried out measuring at the same times and difficulties are apparent in the background readings which they have both brought forward. 9 The respondents' expert has conducted his background readings without seeking to exclude the operation of the premises from the analysis. The Council's expert sought to exclude the subject premises from the analysis but at the same time has excluded the noise from another property in the vicinity. That property has been conducted as a panel beater and apparently has a loud compressor arrangement which could be expected to contribute to the background noise during the daytime. The complexities of the problem and the divergent analysis which has been undertaken by the experts makes it difficult to form a conclusion as to which of them should be accepted. However, again the lay evidence is plain and that evidence is not challenged. 10 On the basis of that evidence, rather than the expert evidence, I am satisfied that offensive noise in the ordinary meaning of that word has emanated from the premises. Condition 4.5 describes the noise which must be excluded as being "offensive noise" as defined under the Noise Control Act 1975. That Act has now been repealed and replaced by the Protection of the Environment Operations Act 1997 which contains a separate definition of offensive noise. However, as the condition operates pursuant to the former definition, it would be to that provision which the condition will speak. Accordingly, "A breach of the condition will occur if the noise by reason of its level, nature, character or quality or the time at which it is made is likely to be harmful to, to be offensive to or interfere unreasonably with the comfort or repose of a person". The lay evidence satisfies me beyond any doubt that the noise which has been emanating from these premises has the relevant offensive character. It would be both offensive to and would interfere unreasonably with the comfort and repose of adjoining residents. 11 In relation to each element of the charge, I understand the respondents do not contest the factual outcomes which I have indicated. It is therefore not necessary for me to further analyse the evidence. Accordingly, the respondents concede that a finding of contempt should be made in respect of the first respondent. However, it is submitted that such a finding is not open in relation to the second respondent having regard to the nature of the amended statement of charge. In my opinion, that submission cannot be accepted. 12 The orders issued by the Court were made with respect to both the company and Mr Patterson, the second respondent. Mr Patterson gave evidence in the proceedings in which he indicated that he is effectively the mind of the company and, accordingly the activities on site, I am satisfied, are directed by and carried out under his control. As a result he has been bound by the court order to ensure compliance with the relevant conditions. I am satisfied that the breach of those conditions, which has been proved, constitutes a breach by him of the orders of the Court. 13 I am satisfied that he has been knowingly involved in that breach. I am also satisfied, if it be relevant but it is probably unnecessary to make this finding, that he, being the mind of the company, has aided and abetted the company in the breaches which have been proven. 14 That leads me into the question of penalty and what might further be done. It is plain that the business activities on this site have been causing real problems for the neighbourhood. This is not surprising given the nature of the activity and the fact that it would seem that it is very difficult to carry out that activity in a commercially acceptable way and in a manner which does not cause problems for the local people. However, the company and Mr Patterson chose this site knowing of the relationship it has to neighbouring residential and other property and, accordingly, have entered into their commercial dealings in circumstances where they must accept obligations to protect the amenity of the neighbourhood. If that cannot be done, the alternative must be for either the business to close entirely or for it to be moved to another and more appropriate site. My understanding is that arrangements are being pursued to take the business to another site, although I am told without any evidence but I accept I am told with good intent, that it may take 12 months for the business to be relocated. 15 The breaches which have occurred are, in my opinion serious. The Council, mindful of the location of this proposed activity when granting development consent, was careful to impose conditions designed particularly to protect the amenity of the local people from noise vibration and smell. The breaches which have occurred have been knowing breaches over a continuing period of time, in circumstances where both respondents must have been aware that their activities were causing difficulties, inconvenience and serious intrusion into the amenity of some of the neighbours. Bound as they were by the orders of the Court, their responsibility was to ensure that those orders were obeyed. 16 In that respect, they have failed and I am satisfied, without any doubt, that they have knowingly failed to meet their obligations. In those circumstances, in my opinion, it is appropriate to impose a penalty in a monetary sum which should be a total sum of $50,000. 17 After the evidence and submissions were concluded in this matter yesterday and it was plain that the alleged contempts had been proven, I discussed with counsel what arrangements, if any, might be made, apart from the question of penalty, which would ensure that the premises operated in the future, in accordance with the obligations imposed by the conditions. Almost as soon as the question was raised, an offer was made by the respondents to engage a manager to supervise the future operation of the premises and ensure that it complied with the conditions. That offer has now been reduced to a written document expressed as an undertaking which provides for the engagement of a manager and also for an environmental consultant to be engaged to assist in ensuring that the obligations imposed by the consent are honoured. In my opinion, this is a significant, and will be a costly, offer but one which, in my opinion, if the activities are to continue on the present site for any period of time, is appropriate. 18 Having regard to that offer, I believe it appropriate to suspend the obligation to pay that penalty sum for a period of time. If, during that period, the proposed regime is implemented and, accordingly, the premises operate in a satisfactory fashion, I would entertain an application that the respondents be relieved of either the whole or part of their obligations in relation to the penalty sum. 19 I will formally note that I am satisfied that the contempt, as alleged, has been proven in relation to both respondents. I note the undertaking from the respondents to employ a manager and an environmental consultant to supervise the future operation of the premises. Although I have indicated that, in my opinion, a penalty of $50,000 would be appropriate, I will defer passing sentence in relation to matters of penalty for a period at this stage of three months which takes us to 5 April 2005 at 9.15am. I give liberty to either party to apply on two days notice. 20 I order the respondents to pay the applicant's costs of these contempt proceedings. **********

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.