Sessions v Penrith City Council

The nature and conduct of the appeal

1. The applicants operate a gym on the ground floor of a mixed use building at 56-66 Lakeside Drive, Jordan Springs. The gym operates 24 hours a day for 7 days a week. There are residential units above the gym. The residents complained about the noise from the gym, particularly at night.
2. On 2 September 2016, Penrith City Council ('the Council') issued under s 96 of the POEO Act a direction to the applicants to take preventative action to reduce the noise from the gym ('the prevention notice'). The prevention notice required the applicants to take the following preventative action: 1. within 7 days of the prevention notice issue date (which was 2 September 2016) - to implement interim noise control measures (until the final noise control measures are approved and implemented) between the hours of 10pm and 7am, including to mute or keep at a volume level that will be inaudible in the residential units above the gym the sound on televisions; to prevent the dropping of free weights on the floor; to prevent the use of battle ropes; to prevent the use of treadmills; and to provide a complaint phone number and email address to residents living in units above the gym; 2. within 7 days of the prevention notice issue date - to engage a suitably qualified consultant to assess the operational noise and vibration impacts of the gym on the residents living above the gym; 3. within 60 days of the prevention notice issue date - that consultant provide a Noise and Vibration Impact Assessment Report to the Council, including recommendations to control any impacts on residents from the gym activities; 4. within 60 days of the prevention notice issue date - the same consultant provide an Operational Noise and Vibration Management Plan to the Council for approval detailing recommended controls the gym needs to implement to minimise impacts of residents; 5. immediately on receiving notice from the Council approving the Operational Noise and Vibration Management Plan - to implement the approved Operational Noise and Vibration Management Plan.
3. The applicants appealed, under s 289 of the POEO Act, against the prevention notice to the Court. The appeal was heard on 22 May 2017 by Commissioner Gray. The hearing commenced onsite and resumed in court.
4. At the site inspection, the Commissioner heard evidence from three residents who lived, in the past or currently, in units above the gym about the noise from the operations of the gym. The Commissioner, accompanied by legal representatives of the parties and the Council's acoustic engineer, attended one of the residential units above the gym whilst a Council officer dropped free weights onto the rubber flooring of the gym. The Commissioner recorded in her judgment that the noise of the weights falling to the floor was quite loud and caused a vibration through the building. The Commissioner also inspected the gym. One of the applicants, Mr Drew, gave evidence of the steps they have taken to reduce the noise emitted from the gym.
5. At the resumption of the hearing in Court, the Commissioner recorded for the transcript what had occurred at the site inspection. The Commissioner also recorded that the applicants' solicitor, Mr Weller, had indicated his intention to apply for an adjournment: "At the commencement of the onsite view, Mr Weller, who appears for the applicant, indicated his intention to apply for an adjournment. Further, during the course of the onsite view, and in discussion around who the acoustic engineers were, Mr Weller indicated that the applicants' acoustic engineer would not be available today, and at that time I advised Mr Weller to take steps to have the acoustic expert make himself or herself available in the event that any adjournment application is refused."
6. However, before the applicants actually made the foreshadowed application to adjourn the further hearing of the appeal, Mr Weller asked the Commissioner for a 10 minute adjournment to allow the parties to have discussions. Mr Weller said: "Could we have a 10 minute adjournment? We might be able to shorten the proceedings dramatically". The Council's solicitor, Mr Drury, agreed to that short adjournment to hold discussions. The Commissioner allowed that short adjournment.
7. At the resumption of the hearing after the short adjournment, Mr Weller announced that the parties had "reached agreement". Mr Weller said: "I think we've reached agreement". He continued: "The agreement, I think, is this, and Mr Drury will correct me if I'm wrong. We provide the acoustic report within 21 days, and that shouldn't be difficult because it's already been underway. What's the next step?" Mr Drury answered: "Council responds within seven days". Mr Weller repeated: "Council responds to that within seven days". Mr Drury added: "And the notice requires also effectively a noise management plan, if I can use the vernacular, and it's probably best that that's done at the same time as the acoustic report. It's a matter for the applicant. So essentially I think the notice would be upheld but with some changes to the timing."
8. The applicants now contend on this appeal that the applicants and the Council had different understandings of what had been agreed.
9. The Council's understanding was that the parties had agreed that the Court should issue a new prevention notice to the applicants requiring the same preventative action but with revised dates for taking the preventative actions in paragraphs 3 and 4 of providing to the Council a Noise and Vibration Impact Assessment Report and an Operational Noise and Vibration Management Plan, which would both be required within 21 days after the Court issues the new prevention notice (instead of the original 60 days after the Council had issued the original prevention notice), and the addition of a note that the Council will endeavour to respond within 7 days of receiving the Noise and Vibration Impact Assessment Report and the Operational Noise and Vibration Management Plan.
10. The applicants now contend that Mr Weller had understood that the agreement was for: the applicants to provide an acoustic report (from the applicants' acoustic expert, Ms Pearce) to the Council within 21 days and the Council to respond (with its own acoustic report) within 7 days; the hearing of the appeal to be adjourned during this period; and, at the resumption of the hearing, the reports to be tendered and the applicants continue to contest the issuing of a prevention notice. I deal with this contention later, but for the moment I note that Mr Weller did not state that this was his understanding of what had been agreed or seek for the Court to make orders that would give effect to that understanding, such as making directions for filing the expert reports that would be prepared, giving leave to rely on the expert reports in addition to the joint expert report, or adjourning the hearing to a date after the expert reports had been filed.
11. The Commissioner then asked how the parties wished to proceed to implement the agreement that they had reached: "How do you want to do it then procedurally?" The Commissioner raised three options: "One, is that I could do it by way of consent orders and vary the notice as per your agreement. The second is that it could be relisted for a s 34 conference, and it could be done by way of an agreement between the parties. The difference between the first and the second is that the first I have to enter into a consideration as to whether the variation is appropriate. The second is I don't turn my mind to the merits of it at all, as long as it's orders that the Court has the power to make I'm required under s 34…to make them, and/or the third is that the proceedings are discontinued."
12. The parties chose option one. Mr Drury said: "I was thinking the first one". The Commissioner asked: "The first one? By way of consent orders?" Mr Drury agreed: "Can I just say, we could simply tender the bundle and the joint report". The Commissioner said "Okay" and then asked Mr Weller: "Are you happy with that course?" to which Mr Weller responded: "Yes". Mr Drury then added: "And then could I suggest that we redraft the notice and file it with the Court and the Court could deal with the matter in chambers." The Commissioner said: "Okay. That sounds fine."
13. The parties then followed that course. The Council tendered the Council's bundle of documents (Exhibit 1) and the joint report of the parties' acoustic experts (Exhibit 2). Both reports were admitted into evidence without objection from the applicants' solicitor, Mr Weller. The Council sought to tender a diary of one of the residents recording the noise that the resident had heard on different days. Mr Weller objected to the tender. The Commissioner ruled that she would not accept the diary into evidence.
14. The Commissioner asked for notes recording the evidence that had been given onsite by the residents and Mr Drew. Mr Drury said that the notes could be typed and provided to the Court and admitted into evidence later. The Commissioner also requested an amended prevention notice with the changes to the timing of certain preventative actions.
15. The Commissioner then asked the applicants' solicitor: "Do you have any evidence, Mr Weller?" to which Mr Weller replied: "No".
16. At that point in the hearing, both parties had in effect closed their respective cases. The Commissioner then asked the parties whether they wanted to make some short submissions, first Mr Drury and then Mr Weller. Mr Drury made some short submissions, principally on whether there was a risk of offensive noise from the gym. When the Commissioner asked Mr Weller if he wanted to make any submissions, Mr Weller responded: "There's nothing I want to add. We consent to the - we agree to the proposal."
17. At this point, the hearing of the appeal was concluded. The Commissioner reserved her decision subject to the parties providing to the Court, first, the agreed notes of the evidence given on the site inspection and, second, the proposed amended prevention notice. The Commissioner asked how long the parties needed to provide these two documents. She asked: "Is two weeks enough for both of those?" Mr Drury responded: "I was hoping for a week". Mr Weller said: "Two weeks would be fruitful." The Commissioner settled on a week and a half, which was to 1 June 2017. The Commissioner then reserved her decision subject to the parties providing those two documents by 1 June 2017.
18. The parties may have provided the agreed notes of the evidence given at the site inspection but did not provide an amended prevention notice by 1 June 2017. The Commissioner relisted the appeal for mention on 9 June 2017. The Commissioner recorded the circumstances leading to the relisting in her judgment (in [4]): "However, no amended prevention notice was filed and, one week following the date by which it was directed to be filed, the applicants forwarded to the Court a copy of correspondence of the same date sent to the Council advising that 'Once the [acoustic] report is received, I will communicate with you regarding the Amended Notice'. As a result, I listed the appeal for further mention on 9 June 2017."
19. On 9 June 2017, a barrister, Mr McAuley, briefed by Mr Weller, appeared for the applicants. The Commissioner asked what had happened to the amended prevention notice. Mr McAuley said: "I gather that Mr Weller was awaiting a report from Acoustic Logic which he has received today and which has been served". The Commissioner responded: "That has got nothing to do with the direction that was made on the last occasion. I am actually reserved on the matter following an agreement that was reached between the parties as to the prevention notice being issued but with some variations. All that was required was that the draft amended prevention notice be provided to the Court. And I made a direction for that to happen by 1 June. That hasn't happened, there was no discussion about any acoustic report being required before that happening, in fact I understood the terms of the agreement was that the only change was to the time period within which the acoustic report, the subject of the prevention notice, would be required."
20. Mr McAuley said that he had been provided with a draft amended prevention notice but said that "it is not an agreed draft as I understand it". Mr McAuley handed up the draft amended prevention notice which had track changes to the timings of preventative actions 3 and 4 (21 days instead of 60 days), a note to preventative action 4 that the Council will endeavour to respond within 7 days of receipt of the Noise and Vibration Impact Assessment Report (to be provided by the applicants under preventative action 3) and the Operational Noise and Vibration Management Plan (to be provided by the applicants under preventative action 4), and the date from which those actions needed to be taken (being the date the Court issued the prevention notice). Preventative action 5 remained the same as in the original prevention notice, requiring the applicants to implement the Operational Noise and Vibration Management Plan immediately after it was approved by the Council.
21. The Commissioner noted that those changes were consistent with the discussions between the parties and how they were communicated to the Court at the hearing. Mr McAuley replied: "All I can say is that - having as it were walked into this - as I understand it 4 and 5 are a matter of concern and they are certainly not agreed so I don't want to be heard to be agreeing to this document."
22. The Commissioner asked if it is only 4 and 5 that aren't agreed to which Mr McAuley responded: "Four and 5 and the amendment on - I suppose it is a related amendment on p 5 - so 4, and 5 because there seems to be 4 and then 4 to 5, and I am told that Mr Weller and his clients are concerned that they will be required to do something which they are simply not capable of doing, and they wish to have sufficient time to consider the contents of the report of Acoustic Logic and hopefully come to agreed directions."
23. The Commissioner said: "We are past that point. I am reserved on a decision where the parties had agreed that a prevention notice should be issued subject to changes for the period in which to obtain the report. So if you want to make some submissions now as to why the new paras 4 and 5?"
24. The last question evidently was an invitation to Mr McAuley to make any submission he wished about preventative action 4 (with the amended timing) and preventative action 5 (which remained unchanged but required implementation of the management plan provided under preventative action 4).
25. Mr McAuley submitted: "Yes, so new paras 4 and 4 to 5 and the submission I make is I have been provided with a report from Acoustic Logic, from Hilary Pearce - the date of which is not obvious but I gather it was received today. I am happy to tender a copy of that report."
26. Mr McAuley tendered a copy of Acoustic Logic's report. Mr Drury for the Council did not object to the tender. The Commissioner admitted it into evidence (Exhibit A). That document answered the description of a Noise and Vibration Impact Assessment Report called for by preventative action 3 in both the original prevention notice and the draft amended prevention notice. It was not, however, an Operational Noise and Vibration Management Plan called for by preventative action 4.
27. Mr McAuley further submitted: "As far as I am aware Mr Weller's clients have not actually seen the report and so they have not had the opportunity to provide instructions on the report. The report obviously impacts on the conduct of the business and one could imagine if inappropriate orders were made the business may have considerable difficulties operating. In those circumstances my application is that the matter as a matter of procedural fairness go over for some short time, some convenient date, when Mr Weller's clients can have considered the report and agreed on…"
28. There then followed a discussion between the Commissioner and Mr McAuley about the appropriateness of an adjournment: "COMMISSIONER: But how is that appropriate when I am reserved on the matter? There has not been any application to reopen. Why would it be appropriate to adjourn something when I am reserved on it? MCAULEY: My understanding is that there were orders made in relation to this matter and judgment was reserved, as I understand it, subject to the parties providing one agreed notes of evidence given onsite - and I gather that is done - COMMISSIONER: That is right. MCAULEY: - and also a proposed amended prevention notice and the proposed amended - if that order envisaged that the parties would agree on a proposed amended prevention notice that has not occurred and it is quite reasonable that Mr Weller and his clients would seek some technical advice in relation to this - it is an important matter as far as - COMMISSIONER: But the agreed prevention notice was just to be a written version of what had been agreed between the parties, which I understand is what this is. MCAULEY: My understanding is it is not agreed - COMMISSIONER: So the applicant has changed, it no longer agrees to what it agreed to on the day? MCAULEY: As you would appreciate I have just walked in on this so I don't - you have got the advantage of me in that regard but my understanding is there had not been an agreement in totality and I have been instructed specifically that paras 4 and 4 to 5 on p 4 are not agreed - so I am not in a position to say to the Court that I cannot agree to this document. I don't and I won't agree to it. COMMISSIONER: But your position is that it should be stood over to allow there to be instructions given in relation to the report? MCAULEY: Yes, and I say that - I mean the future of this business is at stake. This is a small business as I understand it and any orders by the Court are likely to be expensive and may imperil the liability of the business. It is not an unreasonable thing to ask that it be stood over if it was only, as I understand it, before the Court on 22 May. We are not considering a very long period, this is a short period and it is a reasonable thing to do. COMMISSIONER: How long are you seeking? MCAULEY: Seven days."
29. The Commissioner then asked Mr Drury what was the Council's position. Mr Drury submitted: "DRURY: Commissioner, with the greatest of respect the document reflects the agreement made by Mr Weller on behalf of his client. First point. The second point is this: what the prevention notice calls for is, firstly, a noise and vibration impact assessment report. That is the first thing and that no doubt is what has been provided by Acoustic Logic - that is at para 3. Sorry, when I said para 4 had changed I should have said para 3 had changed because I think Mr Weller told us that the receipt of the document was imminent. Then there is a requirement for an operational noise and vibration management plan - different to the document that comprises exhibit A. Mr Weller told the Court that that is in the course of being prepared and something which he said he expected to be provided at the same time as the acoustic assessment. I accept that there are recommendations in exhibit A but I am not convinced that the acoustic report is per se an or the operational noise and vibration management plan. That is the next step but as I say Mr Weller did tell the Court and myself that his expectation was that that could be provided at the same time. I am not entirely sure what the submission is because we haven't, with respect, received the operational noise and vibration management plan - that is the next stage. That is the thing that is required to detail recommended control the gym needs to implement to minimise impacts on residents living in units above the gym. So it is not the noise and vibration impact assessment report - it is the next stage. That is what is required by para 3. COMMISSIONER: Three, that is right, so it has already been done. DRURY: It has already been done, and there is the next stage."
30. There then followed an exchange between Mr McAuley and the Commissioner: "MCAULEY: I think I need to respond to that. I don't know what discussion there has been between my friend and Mr Weller or indeed I don't know what if anything was said to the Court as to any agreement. COMMISSIONER: It was made very clear and I am sure the transcript would reveal that the subject of the agreement was that the prevention notice would remain with some amendments to the time period for seeking the assessment report and the plan as well as a requirement for the Council to respond within 7 days. That was what was communicated to the Court. MCAULEY: All I could say is that it has been made crystal clear to me, and I don't want to - I am concerned that anything I may say or fail to say may mislead the Court so it has been made crystal clear to me that this document is not agreed in the respects I have referred to. It is clear that the document, exhibit A, that I have handed up is a noise and vibration impact assessment report. I am not sure why an operational noise and vibration management plan wasn't prepared at the same time, it appears on the face of it to be something fairly simple to do. What seems to be in issue here is if there is some order made today that in some ways imperils the operation of the business that would be most concerning when it is apparent that within a very short time whatever is outstanding can be addressed. COMMISSIONER: But you understand that what is before the Court is just whether the prevention notice should be issued or not? MCAULEY: But it is the terms of the notice that are significant and in my submission that is a matter of natural justice that Mr Weller's client assisted by Mr Weller should have the opportunity to comment on any proposed order. COMMISSIONER: The opportunity was given when the matter was listed for hearing."
31. The Commissioner later said: "COMMISSIONER: The only basis on which I am prepared to grant an adjournment is because I think it will enable Mr Weller to appear and to have that conference with his client and to make submissions. I am particularly interested in hearing submissions as to why - if I refer to the new paragraph numbers 4 and 4 to 5, as you have referred them, shouldn't be included in the prevention notice. However, there is a problem with availability-".
32. In the end, the Commissioner granted the adjournment to 14 June 2017. On 14 June 2017, notwithstanding that the matter had been adjourned to allow the applicants' solicitor, Mr Weller, to appear, he did not appear and instead briefed Mr McAuley to appear again. The Commissioner asked Mr McAuley: "So you are here to make submissions on behalf of the applicant then in relation to those terms of the prevention notice - are they still objected to?" Mr McAuley responded: "They are." The Commissioner asked: "Would you like to address me on that?"
33. Mr Drury, the Council's solicitor, intervened objecting to the applicants making submissions challenging the terms of the amended prevention notice that had been agreed between the parties: "DRURY: Just with respect, Commissioner, before we get there - we had an agreement and that agreement was communicated to the Court. Not only was the agreement communicated to the Court when called upon to make submissions Mr Weller said, and I recall, 'I have no submissions, we have agreed to the order or the notice. It is by consent.' COMMISSIONER: That is right, no submissions were made when the matter was before the Court. DRURY: With respect, in that context, and that is what Mr Weller said. So, forensically, with respect the applicant is bound by the choices made - I don't know how it is that the applicant can now come to the Court and say that we don't consent - they have."
34. Mr McAuley responded to Mr Drury's submission and there followed an exchange between Mr McAuley and the Commissioner: "MCAULEY: And my response to that, Commissioner, is that obviously I wasn't here on the occasion my friend refers to so I have no knowledge of it but as best I can tell there appears to be a document in existence which has been amended since that occasion and there has been a report obtained since that occasion and - COMMISSIONER: I think I made it very clear what happened when the matter was before me so is there any reason why I should even hear from you on the terms of the prevention notice? Why do you say that I should hear from you? MCAULEY: I don't seek to be heard. I gather this has been debated previously - COMMISSIONER: The terms of the prevention notice were not debated because what was communicated to the Court was that there was an agreement reached that the prevention notice be issued subject to some changes in the terms of that notice. The extent of those changes was the time period for the report and for the management plan, and also for completeness, something that as not included in the prevention notice was that the Council would respond within 7 days. That was the agreement that was communicated to the Court once the matter resumed in open Court following the site inspection. MCAULEY: I simply don't know but all I know is that the document appears to be different from the original document - COMMISSIONER: That is right and that was the subject of the agreement so there were no submissions made on the last occasion because - when I say the last occasion, when the matter was first before the Court - MCAULEY: Sure. COMMISSIONER: - because there was an agreement reached - so you say you don't wish to be heard? MCAULEY: That is right. COMMISSIONER: Then you don't have anything to say or you don't wish to be heard on the terms of the prevention notice? MCAULEY: My understanding on my instructions is that my clients do not agree to the proposed notice in its present form. COMMISSIONER: Because it departs from the agreement on the - MCAULEY: I gather so. COMMISSIONER: You need to come to Court with a little bit more detail than that. MCAULEY: I can only say what I have been told and I want to be careful not to overstate things. COMMISSIONER: I adjourned it to today so that Mr Weller could be present. He is not so I assume that you come fully armed with instructions. So you don't know why there is no agreement? MCAULEY: My understanding is that the amendments to this document are not agreed. COMMISSIONER: And they aren't agreed because - MCAULEY: I haven't been party to whatever discussion there was between Mr Weller and his client. COMMISSIONER: You didn't obtain further instructions since the matter was last before me? MCAULEY: Yes, I have spoken to Mr Weller. COMMISSIONER: You don't know why they are not agreed? MCAULEY: As I say I haven't spoken to the client. Well I certainly know - I can say to you this, Commissioner, that my understanding is that the likely effect of the proposed orders is that this business will not be able to continue to operate. So from the point of the view of the proprietors of this business the effects are going to be dramatic."
35. The Commissioner then asked Mr Drury what he suggested should happen from here. Mr Drury protested about the applicants' conduct and then noted that: "There is no application to reopen. There is no application to resile from the earlier agreement."
36. Mr Drury handed up short minutes of order containing orders upholding the appeal and issuing a modified prevention notice in the form of the amended prevention notice that had previously been provided with the changed timings. Mr Drury said: "The same notice in those short minutes of order was sent to Mr Weller for his comments - we have heard nothing back. So, Commissioner, unless something of substance is to be put to the Court we respectfully say in circumstances where the Court is reserved then we should proceed to judgment."
37. The Commissioner asked Mr McAuley: "Do you have anything in response?" and Mr McAuley replied: "No, I think it has been argued. I don't think there is anything more I can usefully say."
38. The Commissioner then decided the appeal by making orders in accordance with the short minutes of order. She said she would publish her reasons for her decision within the next week.
39. The Commissioner subsequently published her reasons: see Sessions v Penrith City Council [2017] NSWLEC 1328.

The grounds of appeal

1. The applicants challenged the decision and order of the Commissioner, raising 28 grounds of appeal. In the applicants' written submissions on the appeal, the applicants' solicitor grouped the grounds of appeal under four categories: 1. denial of natural justice (grounds 1-4, 8, 11, 12 and 14); 2. lack of agreement for the matter to be heard as a consent orders hearing and for the prevention notice to be issued (grounds 5-7 and 9-10); 3. error in issuing the notice and error in the application of s 96 of the POEO Act (grounds 11, 13, 21-28); and 4. reliance on the joint report of the acoustic experts and the weight placed upon it (grounds 15-20).
2. I will deal with the grounds of appeal according to these four categories.

Denial of natural justice

1. The applicants submitted that they were denied natural justice in five ways. First, the Commissioner refused the applicants' application for an adjournment of the hearing to allow their acoustic expert, Ms Pearce, to undertake testing in the residential units above the gym. Ms Pearce had noted in the joint expert report dated 1 May 2017 that she "had been unable to access unit 30 or other residential units above the gym to measure the environmental conditions". Subsequently, Ms Pearce was able to access units 2 (adjacent to the gym) and 33 (directly above the free weight area) and conduct tests. She did not gain access to unit 30. The applicants noted that the Council's acoustic expert had the benefit of access to the residential units, including units 30 and 37. The applicants submitted that they were prejudiced in not being able to have the same access to undertake noise testing in the residential units that the Council had had.
2. Second, the applicants submitted that no order was made by the Court for Ms Pearce to gain access to the residential units in advance of the hearing on 22 May 2017.
3. Third, the Commissioner decided the appeal and issued the modified prevention notice "in circumstances where the applicants/appellants had yet to put on any evidence in reply but had notified the Commissioner by email by their legal representative before the orders were made on 14 June 2017, that they were obtaining and intended to serve an acoustic report in reply to the respondent's report" (applicants' written submissions).
4. Fourth, the Commissioner failed to consider Ms Pearce's report, which was tendered on 9 June 2017 and marked Exhibit A, in making the decision and order on 14 June 2017.
5. Fifth, "had the Commissioner actually asked or confirmed if Mr Weller had been instructed to withdraw the entire substance of the appeal in the middle of the hearing then a lot of trouble could have been avoided and procedural fairness would have been afforded to the parties", but the Commissioner did not do so (applicants' written submissions in reply).
6. I reject these submissions that there has been a denial of natural justice in the ways suggested. The overriding answer to each of them is that the applicants agreed to the course adopted by the Commissioner to hear and determine the appeal on the date fixed for the hearing of 22 May 2017. The applicants had reached agreement with the Council as to the terms of the decision to be made by the Commissioner (to issue an amended prevention notice with revised timings for taking certain preventative action) and the conduct of the hearing (as a consent orders hearing). That agreement as to the conduct of the hearing and determination of the appeal overcame any requirement to take the steps said by the applicants to be necessary to be taken to afford natural justice to the applicants.
7. As I have noted earlier, the applicants now contend that no such agreement between the parties as to the conduct of the hearing and determination of the appeal was reached on 22 May 2017. The applicants contended that Mr Weller's understanding of what had been agreed was simply the fixing of a timetable for the exchange of further expert evidence, being for the applicants to provide Ms Pearce's acoustic report within 21 days and the Council to respond within 7 days, and for the hearing to be adjourned and that further expert evidence tendered at the resumption of the hearing. I reject this contention.
8. First, there is no evidence of Mr Weller in support. Mr Weller has not given evidence, by affidavit or orally, that this was his understanding. The only evidence of Mr Weller is what he is recorded on the transcript as saying at the hearing on 22 May 2017. I have set that out earlier. It does not support the applicants' contention. Although the statements about the timing of the applicants' acoustic report being provided within 21 days and the Council's response being provided within 7 days is not inconsistent with fixing a timetable for further expert evidence, there are no other statements about filing or serving further expert evidence, or obtaining leave to rely on further expert evidence, or fixing a date for the resumption of the hearing at which further expert evidence could be adduced that would support the inference that Mr Weller had such an understanding. Conversely, what was said by Mr Weller about the agreement reached and Mr Weller's non rebuttal of what Mr Drury said about the agreement reached are inconsistent with Mr Weller having such an understanding.
9. Second, Mr Weller's agreement to the course of conducting the remainder of the hearing as a consent orders hearing is inconsistent with Mr Weller having an understanding that further expert evidence was to be obtained and adduced at an adjourned hearing in the future, but rather is consistent with an agreement that the Court would issue an amended prevention notice after concluding a consent orders hearing.
10. Third, Mr Weller's forensic decision to not tender any evidence at the hearing or indicate that he wished to do so at an adjourned hearing once he had obtained further evidence, including Ms Pearce's acoustic report, is inconsistent with Mr Weller having such an understanding that further evidence was to be obtained and adduced at an adjourned hearing in the future, but rather is consistent with an agreement that the Court would issue an amended prevention notice after concluding a consent orders hearing.
11. Fourth, Mr Weller's forensic decision not to make any submissions contesting the issuing of a prevention notice, including responding to the Council's submission that the gym emitted offensive noise and a prevention notice should be issued to abate that noise, or even to seek the opportunity to make submissions after the applicants had obtained further evidence, is inconsistent with Mr Weller having such an understanding, but rather is consistent with an agreement that the Court would issue a prevention notice after concluding a consent orders hearing.
12. Fifth, Mr Weller's agreement to the "formalities" to be followed after the conclusion of the hearing and the reserving of judgment is inconsistent with Mr Weller having such an understanding, but rather is consistent with an agreement for the Court to issue a prevention notice at the conclusion of the consent orders hearing. These formalities included the Court reserving judgment (this could not be done if the hearing was not to be concluded but was to be adjourned and continued in the future); directing the filing of only two documents, the notes of evidence given on site and the amended prevention notice (on the understanding, there would also need to be leave granted to rely on the further expert evidence and a direction for the filing and serving of the further expert evidence); the fixing of only 10 days, to 1 June 2017, for the filing of these documents (on the understanding that a timetable had been agreed, the applicants' report would be in 21 days and the Council's report 7 days afterwards, well outside the 10 day period); and the failure to adjourn the proceedings and fix a date for the resumption of the hearing.
13. In these circumstances, I find that Mr Weller did not hold the understanding the applicants now say he held but instead find that he had reached agreement with the Council as to the conduct of the hearing and the determination of the appeal as the Council had said and the Commissioner had understood.
14. The more particular answers to the applicants' submissions are as follows. As to the first, although Mr Weller foreshadowed at the site inspection at the commencement of the hearing his intention to make an application to adjourn the hearing, by the time the hearing resumed in Court he had had discussions and sought a short adjournment to have further discussions with the Council's solicitor. Those discussions were fruitful and led to the parties reaching agreement as to the terms of the decision that the Court should make, being the issuing of an amended prevention notice with revised timings. Hence, Mr Weller did not make the foreshadowed application to adjourn the hearing so as to allow the applicants' acoustic expert to undertake further noise testing. The Commissioner did not deny the applicants natural justice by refusing an application to adjourn the hearing that was never made.
15. As to the second, the applicants did not apply to the Commissioner (or the Court at an earlier time) seeking an order giving the applicants' acoustic expert access to the residential units above the gym. The applicants did not explain the source of the power of the Court to order non-parties to the appeal, the residents living in the units above the gym, to give access to the applicants' acoustic expert. In any event, however, the applicants never made such an application seeking access. In these circumstances, there can be no denial of natural justice in the Commissioner (or the Court) not making an access order.
16. As to the third, the applicants had no entitlement "to put on any evidence in reply". The hearing had concluded on 22 May 2017. The applicants tendered no evidence at that hearing. The Commissioner expressly asked Mr Weller whether he had any evidence and he replied "no". Mr Weller did not seek an opportunity to obtain and later to tender evidence in reply from the applicants' acoustic expert, Ms Pearce. The applicants in effect closed their case at the hearing on 22 May 2017. At no time afterwards, including at the mentions on 9 and 14 June 2017, did the applicants seek leave to reopen their case to tender any evidence, including any evidence in reply.
17. The email sent to the Court by the applicants' solicitor, which prompted the Commissioner to relist the matter on 9 June 2017, did not seek leave to reopen the applicants' case or to tender an acoustic report in reply. The email said: "Once the [acoustic] report is received, I will communicate with you regarding the Amended Notice." This email is consistent with the parties having reached agreement that the Court should issue a prevention notice but amended with respect to the timings for taking the preventative action. The acoustic report might inform the amendments to be made to the prevention notice. Mr McAuley's statement at the first mention on 9 June 2017 is to the same effect. He answered the Commissioner's inquiry of what had happened to cause the parties not to have filed the amended prevention notice by 1 June 2017 saying "I gather that Mr Weller was awaiting a report from Acoustic Logic which he has received today and which has been served."
18. It is to be remembered that both the original prevention notice and the amended prevention notice required, by preventative action 3, the applicants to obtain a Noise and Vibration Impact Assessment Report. The report prepared by Ms Pearce answered that description. That was the reason for the preparation of Ms Pearce's report, not to be evidence in reply to be tendered at the hearing.
19. The email from the applicants' solicitor and the statement from Mr McAuley are not consistent with the applicant's submission on this appeal that Mr Weller thought the hearing had been adjourned and that the Acoustic Logic report was to be tendered at the resumption of the hearing of the appeal at some unspecified date in the future.
20. As to the fourth, Ms Pearce's report was tendered by the applicants' barrister at the mention on 9 June 2017 in an endeavour to explain why the applicants now said that they objected to preventative actions 4 and 5 in the draft amended prevention notice. Mr McAuley accepted that Ms Pearce's report was a Noise and Vibration Impact Assessment Report required by preventative action 3 of the draft amended prevention notice. He could not say why the Operational Noise and Vibration Management Plan, required by preventative action 4, had not been prepared at the same time. Mr McAuley did not explain to the Commissioner how Ms Pearce's report supported the applicants' objection to preventative actions 4 and 5 in the amended prevention notice or how those preventative actions should be modified in light of Ms Pearce's report. Mr McAuley also did not submit that Ms Pearce's report was evidence in reply to the joint expert report or explain how or why Ms Pearce's evidence in her report differed from and should be preferred to the evidence in the joint expert report.
21. In these circumstances, there was no denial of natural justice in the Commissioner's reliance on the joint expert report and not on Ms Pearce's report.
22. As to the fifth, there was nothing in what had been said by Mr Weller, or by Mr Drury, or in their conduct in running the remainder of the hearing on 22 May 2017, that would have caused the Commissioner to have thought that the applicants had not reached agreement with the Council about the decision that the Court should make (issuing an amended prevention notice with revised timings for taking preventative action) or the conduct of the hearing (concluding the hearing as a consent orders hearing). Mr Weller did not at any time say to the Commissioner, and his conduct in running the applicants' case throughout the remainder of the hearing did not show, that the applicants contested the Court issuing an amended prevention notice and instead sought for the hearing to be adjourned so that further evidence can be obtained and tendered at the resumption of the hearing. In these circumstances, the Commissioner was not required, by a duty to afford procedural fairness, to ask Mr Weller whether he had been instructed by the applicants "to withdraw the whole substance of the appeal." The question simply did not arise.

Lack of agreement for consent orders hearing and issuing of prevention notice

1. The applicants contended that: 1. there never was any agreement on 22 May 2017 between the parties as to the prevention notice being agreed (with or without amendments) or for the appeal to be heard as a consent orders hearing; 2. the actions of the applicants were consistent with this contention because they made applications during the site inspection phase of the hearing to adjourn the hearing to allow Ms Pearce the opportunity to access the residential units and conduct noise testing, they made no submissions as to the prevention notice at the hearing in Court on 22 May 2017, and they obtained the report of Ms Pearce after access was granted to three residential units, which was tendered at the mention on 9 June 2017; and 3. the applicants made their position clear at the mentions on 9 June and 14 June 2017 that they did not agree with the draft amended prevention notice.
2. The applicants submitted that the Commissioner was in error in holding that there was agreement between the parties that the prevention notice could be issued.
3. I reject these contentions. First, they are factually incorrect. I have set out in detail what occurred at the hearing on 22 May 2017 and after the hearing had concluded and judgment had been reserved at the mentions on 9 and 14 June 2017. The evidence establishes, beyond doubt, that the applicants and the Council reached agreement as to the terms of the decision in the appeal that would be acceptable to the parties, which was that the Court should uphold the appeal and issue a modified prevention notice requiring the applicants to take the same preventative actions but with different timings to those specified in the original prevention notice. The applicants' solicitor, Mr Weller, clearly stated this to the Commissioner after the resumption of the hearing in Court on 22 May 2017.
4. The parties also agreed to conclude the hearing of the appeal in the manner customary for a consent orders hearing of class 1 appeals. The Commissioner asked the parties how they wished to proceed in light of the fact that the parties had reached agreement as to the decision that the Court should make. One of the three options given by the Commissioner was to conduct the hearing as a consent orders hearing. The Council's solicitor, Mr Drury, expressly stated that his preference was the first option of a consent orders hearing. Mr Weller expressly agreed, in response to the Commissioner's question to him, that he was happy with that course. Mr Drury and Mr Weller then conducted and concluded the hearing on this basis.
5. Mr Weller expressly stated in response to the Commissioner's question to him, that he had no evidence to tender. He did not foreshadow obtaining and later tendering any further evidence, including a further report of Ms Pearce. Mr Weller also expressly stated, in response to the Commissioner's question to him, that he had no submissions to make. Indeed, Mr Weller went further. He said: "There's nothing I want to add. We consent to the - we agree to the proposal."
6. The Commissioner expressly stated that she would reserve her decision, subject to only two documents being provided to the Court, the first being the notes of the evidence at the site inspection and the second being the draft amended prevention notice. There was no request by the applicants for a direction by the Court permitting the applicants to obtain and to tender any further evidence, including a further report from Ms Pearce. The hearing had concluded and judgment had been reserved. Other than providing the two documents to the Court, there was nothing further to be done by the parties.
7. The agreement reached between the applicants and the Council at the resumption of the hearing on 22 May 2017, both as to the decision that the Court should make and the conduct of the hearing of the appeal, superseded any application for adjournment that the applicants might have foreshadowed at the site inspection phase of the hearing. An adjournment of the hearing in order to obtain further evidence from Ms Pearce to contest the original prevention notice issued by the Council was no longer needed because the parties had reached agreement as to the Court issuing a modified prevention notice. After reaching agreement, the applicants did not make any application for adjournment of the hearing.
8. Second, none of the applicants' contentions raise any error on a question of law. Even if the Commissioner were to have misunderstood the applicants' position as to the issuing of the prevention notice and the conduct of the hearing of the appeal (which I do not find), such misunderstanding would not be on a question of law, which is necessary to sustain an appeal under s 56A(1) of the Court Act.

Error in issuing the prevention notice or applying s 96 of the POEO Act

1. Section 96(1) of the POEO Act empowers a regulatory authority (and the Court on appeal) to issue a prevention notice when it "reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises…" Section 95 of the POEO Act provides that an activity is carried on in an environmentally unsatisfactory manner if, amongst other circumstances, "(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". The concept of "pollution" is defined in the Dictionary to the POEO Act to include "noise pollution", which is in turn defined to mean "the emission of offensive noise". "Offensive noise" is defined 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."
2. The Commissioner correctly identified these statutory requirements governing the exercise of the power under s 96 of the POEO Act to issue a prevention notice: see, for example, [6]-[8], [11]-[12], [13], [23]-[25]. The Commissioner then applied these requirements to the facts of the case, concluding that the operational noise of the gym is "offensive noise" as defined and that the applicants are not using such practicable means as may be necessary to prevent, control or minimise the offensive noise caused by the activity. The relevant parts of the Commissioner's judgment setting out these findings are as follows: "Is there offensive noise? 21. I accept the submission of the respondent that the operational noise of the gym is 'offensive noise' as defined by the POEO Act. Based on the noise assessment carried out by the Council, the evidence of the residents, and the observations made at the site inspection, the operational noise of the gym is such that, by its level and nature, it is harmful to a person residing in the residential units beside and above the gym, and interferes unreasonably with their comfort and repose as they carry out the ordinary residential use of their units. Further, the fact that this noise continues overnight means that, because of the time during the night at which it occurs, it is harmful to a person residing in the residential units because it causes sleep disturbances. It therefore meets the definition of 'offensive noise' contained in the POEO Act. 22. There is nothing in the joint report of the experts that dissuades me from this finding. The expert who was retained by the applicants, Ms Pearce, did not give evidence at the hearing, and did not include any evidence in the joint report regarding her assessment of the noise emitted from the gym. Indeed, on the re-listing of the appeal following the hearing, her report of 8 June 2017 was tendered. This report demonstrates that the levels of the noise emitted from dropping weights, when measured using a sound analyser, exceeds the acceptable level as determined according to her criteria. Should a prevention notice be issued? 23. 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 "not carried on by such practicable means as may be necessary to prevent, control or minimise" offensive noise. 24. First, there must be an activity that is carried on that causes the offensive noise. The relevant activity is the operation of the gym. This can be broken down into several specific sub-activities which have been cause for complaint. Specifically, they are the dropping of free weights, the dropping of weights within the cable machines, the use of the battle ropes, the use of the treadmill and the use of the televisions. 25. Second, I must 'reasonably suspect' that the applicants are not using 'practicable means as may be necessary to prevent, control or minimise' the offensive noise caused by the activity. Whilst there is evidence that some steps have been taken to reduce the noise emitted, the activity is still causing offensive noise and, based on the site view and the assessment report, there are reasonable grounds to suspect that there are practicable means that could be used (but are not being used) to minimise the offensive noise. 26. Further, no evidence was tendered in support of the assertion that the applicants will be forced to close their business if they are required to provide a noise assessment report and a management plan in accordance with the revised prevention notice. 27. Given that the statutory requirement for the issue of the prevention notice has been satisfied, the third matter for my consideration is whether, in the exercise of my discretion, the noise prevention notice should be issued and if so, on what terms. I am satisfied that it is appropriate for the noise prevention notice to be issued. The noise that is caused by the gym is offensive, and it is unacceptable that it continue."
3. The applicants did not contend that the Commissioner misdirected herself as to the function she had to perform in deciding whether to issue a prevention notice under s 96 of the POEO Act. Rather, the applicants contended that the Commissioner erred in the exercise of the function "because there was no evidence either tendered or admitted by either of the parties' experts which identified any further practicable means that could be used (but were not being used) to minimise the found offensive noise (which is disputed)" (applicants' written submissions).
4. The applicants contended that the Commissioner erred in: 1. holding that the evidence from the site inspection or the evidence contained within the noise assessment report of the Council on 12 August 2016 (which led to the Council issuing a draft prevention notice on 12 August 2016 and subsequently the prevention notice on 2 September 2016) identified practicable means that could be used by the applicants (but were not being used) to minimise the found offensive noise (which is disputed); 2. failing to consider the applicants' expert report of Ms Pearce, tendered in evidence at the mention on 9 June 2017, which concluded that it was only the dropping of heavy weights that exceeded the acceptable levels and identified no other practicable means that could be used by the applicants (but were not being used) to minimise the found offensive noise (which is disputed); and 3. finding that there was no evidence to support the assertion that the applicants would be forced to close their business, when one of the applicants, Mr Drew, gave evidence at the site inspection that "we have done everything we can without spending $500,000"; the applicants' barrister, Mr McAuley, made submissions contrary to the Commissioner's finding at the mention on 14 June 2017; and the applicants' inability to obtain expert evidence meant that they were prejudiced as to the evidence they were able to give at the hearing.
5. I reject these contentions. First, the Commissioner did make a factual finding that the gym was being operated in an environmentally unacceptable manner. The Commissioner said at [25]: "Second, I must 'reasonably suspect' that the applicants are not using 'practicable means as may be necessary to prevent, control or minimise' the offensive noise caused by the activity. Whilst there is evidence that some steps have been taken to reduce the noise emitted, the activity is still causing offensive noise and, based on the site view and the assessment report, there are reasonable grounds to suspect that there are practicable means that could be used (but are not being used) to minimise the offensive noise."
6. Second, none of the contentions raise any error on a question of law, which is necessary to sustain an appeal under s 56A(1) of the Court Act. A wrong finding of fact is not an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155; Mahony v Industrial Registrar NSW (1986) 8 NSWLR 1 at 2; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334. Similarly, provided there is some evidence for a factual finding, no error of law is involved in making the factual finding. Only if there is no evidence in support of a finding of fact is there an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]. Hence, even if the Commissioner were to have erred in the manner contended for by the applicants, there would be no error on a question of law.
7. Third, the applicants did not submit at the hearing before the Commissioner that the Commissioner could not issue a prevention notice because she could not be satisfied, on the evidence before the Court, that the operation of the gym was carried on in an environmentally unsatisfactory manner because it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution (including offensive noise) or the emission of any noise. The failure to make that submission in the court below has two consequences.
8. The first is that the applicants are bound by the forensic decisions they made (through their solicitor) at and in the conduct of the hearing before the Commissioner: The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410 at [90]; TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [162], [163]. As the High Court said in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28 at 483: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." See also Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7, 11 and Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]-[55].
9. The second is the applicants on this appeal cannot complain that the Commissioner has made an error on a question of law by not giving reasons with respect to a matter which was not the subject of any submission before the Commissioner in a way that called for reasoned consideration: see Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 at [35]-[37]; Tanious v Georges River Council [2016] NSWLEC 142 at [10].
10. The applicants made the forensic decision not to adduce any evidence or make any submissions at the hearing on 22 May 2017 that the gym was not being operated in an environmentally unacceptable manner. Even after the hearing had concluded and judgment had been reserved, the applicants did not make any submissions, at the mentions on 9 and 14 June 2017, when Ms Pearce's report was available, that the gym was not being operated in an environmentally unacceptable manner and hence that the Court had no power to issue a prevention notice. The applicants are bound by those forensic decisions and cannot now complain on appeal that the Commissioner erred in law in holding that the gym was being operated in an environmentally unacceptable manner and in issuing the prevention notice.

Reliance on the joint expert report

1. The applicants contended that the Commissioner erred in relying, and placing weight, on the joint expert report, in the circumstance where Ms Pearce had said she had been unable to access and undertake noise testing at the residential units above the gym.
2. I reject this contention. First, the joint expert report was tendered without objection from the applicants. Second, the applicants made no submission that the Commissioner should not rely on and give weight to the joint expert report. They are bound by their conduct at the hearing. Third, no error of law is involved in the Commissioner relying on and giving weight to the joint expert report. The question of whether the joint expert report ought to be accepted in whole or part, or ought to be accepted as sufficient to establish a particular fact, is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9. There is no error of law in making a wrong finding of fact or misattributing the weight to be given to evidence: Azzopardi v Tasman UEB Industries Ltd at 155-156; Randwick Municipal Council v Manousaki at 333-334.

Conclusion and orders

1. The applicants have not established any of the grounds of appeal. The appeal should be dismissed.
2. The usual order for costs in an appeal under s 56A(1) of the Court Act is that costs follow the event. There are no circumstances or conduct of the parties that would justify making a different order as to costs.
3. The Court orders: 1. The appeal is dismissed. 2. The applicants are to pay the respondent's costs of the appeal.

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: 07 December 2017