Sumar Produce Pty Ltd v Griffith City Council

Land and Environment Court (NSW)|2000-05-11|Before: Talbot J, Mrs J

The applicant contends that any measurements should be undertaken by an acoustic engineer with the requisite qualification for membership of the Australian Acoustical Society. The council points to the lack of persons so qualified, in particular among its own employees, who will be readily available in Griffith. It submits that junior "technical officer" grade employees often carry out the actual measurements. It is submitted they could be entrusted to carry out competent measurements using acoustical equipment.

The Protection of the Environment Operations Act 1997

Pursuant to s 264(2) the appropriate regulatory authority may by notice in writing given to a person who is the occupier of any premises or who carries on an activity or who uses or operates an article prohibit the person from causing, permitting or allowing:- (a) any specified activity to be carried on at the premises, or

(b) any specified article to be used or operated at the premises,

or both, in such a manner as to cause the emission from the premises at all times or on specified days, or between specified times on all days or on specified days, of noise that, when measured at any specified point (whether within or outside the premises), is in excess of a specified level.

A person who contravenes a noise control notice is guilty of an offence (s 265) and any person can take proceedings in the Court for breach of a noise control notice (s 252(1)). The Court has the power to hear and determine an appeal made against a noise control notice.

Having regard to the sanctions which can be imposed for breach of a noise control notice, it is imperative that the Court frame the terms of the notice in clear language.

The specified level in the notice must be one that can be enforced by the issuer of the notice and understood by the recipient.

In the interests of justice the Court proposes to define the specified level in terms that incorporate a specific methodology of determining it. In that way, before a successful action can be taken against a person in the event of an alleged breach of the notice it must be shown that proper procedures for measuring the level of noise have been followed.

It is not in contention that measurements taken over one 15 minute period are unlikely to provide a proper indication of the noise impact. The council submits that the noise should be measured over at least three consecutive 15 minute periods with the logarithmic average of those three measurements to be taken as the measured level. Whereas, on the other hand, the applicant argues that the three 15 minute measurements should be averaged over separate days.

The Court has been informed by Mr Hawkes, who appears for the council, that it is usual in acoustics to use a logarithmic average, which is the average of the sound energy rather than the arithmetic average. The latter is the average of the decibel levels. The L Aeq function in sound level meters is a logarithmic average. Mrs Kelly was not able to gainsay this proposition. The draft notice presented as part of her submissions merely refers to the average of the measurements.

It is logical for the Court to apply a logarithmic average to several readings which are individually based on a logarithmic average.

Notwithstanding the practical difficulties that are inherent in requiring measurements to be taken over several days, it is nevertheless reasonable to accept that a single isolated breach should not lead to a criminal conviction or the prospect of an injunction. It is the Court's view that if the operator persists with the use of the fan after the prescribed level is exceeded on two occasions, then a further exceedence should bring with it the exposure to such remedy or penalty as the law provides.

The formal orders of the Court will provide for a notice requiring that the logarithmic average of equivalent noise levels (L Aeq, 15 minutes ) measured over three consecutive 15 minute periods shall not exceed 55 dBA on any separate three days within a 60 day period, provided that where the logarithmic average of the measured levels over three 15 minute periods does not exceed 55 dBA by more than 2 dBA, it shall not be taken into account.

The measurements must be taken at the request of the council, or any other statutory authority as it may in writing appoint for that purpose from time to time, by a person who is either an acoustical engineer with qualifications that are requisite for membership of the Australian Acoustical Society or who is acting in accordance with instructions received from and directions given by such a qualified engineer.

The person undertaking the measurements is to be present at the time the measurements are taken and shall take all reasonable steps to omit significant extraneous noise events.

The results of the measurements can only be used for the purpose of establishing that the owner is in breach of the notice if they are served on the company within 48 hours.

Neither party has been wholly successful in the proceedings. The applicant's primary position was that the notice should be revoked and not reissued in any form. The council has not persuaded the Court that the notice should prescribe the level it contended for through its experts.

The proceedings are novel not only in the context of the legislation but also in respect of the facts.

Mrs Kelly argues nevertheless that having regard to the history of the matter her client should be regarded as having been successful on appeal. The first notice issued by the council in August 1999 was withdrawn on the basis of a legal technicality while the notice issued in September was varied in an attempt to overcome practical difficulties. According to Mrs Kelly it is unfair for the applicant to be dealing with a succession of notices and that as a consequence her client is entitled to at least part of its costs.

Given that there is no right to be heard before the issue of a notice, the proceedings are not in the nature of a re-hearing.

In the more straight forward planning or building appeals the Court exercises all of the powers of the determining authority de novo. It is not concerned whether the decision to issue the notice of determination was correct. It is the appreciation of the nature of a planning or building appeal that has led to the policy in relation to costs orders reflected in the Court's practice directions. Nevertheless, even in those proceedings the Court's discretion in relation to a costs order remains unfettered except in so far that the practice direction amounts to a guiding principle to be applied in the exercise of that discretion. Notwithstanding the practice direction, each case nevertheless remains to be examined on its merits ( Latoudis v Casey (1991) 170 CLR 534).

I do not think that any assistance is to be gained by reference to the practice direction when the Court is exercising its discretion in relation to the award of costs in an appeal of the present nature.

The present proceedings were essentially in two parts. In the first instance the applicant raised a number of preliminary issues which the Court rejected. The second substantive hearing was confined to the merits. Evidence was heard from acoustical experts retained by both parties and a number of lay witnesses were called, mainly in support of the council's case.

It is now settled law in this Court that in the determination of a preliminary question of law in class one proceedings involving a planning or building appeal, the Court's practice direction, which provides that costs will only be awarded in exceptional circumstances, applies to the preliminary hearing.

The present case has elements of the public interest because both parties recognise that the outcome in these proceedings may have a bearing on the practice to be adopted in the issue of future noise control notices in general, where the noise source is a frost fan.

In Oshlack v Richmond River Council (1998) 193 CLR 72 the majority of the High Court recognised the wide discretion vested in this Court pursuant to s 69(2) of the Land and Environment Court Act 1979. At p 81 Gaudron and Gummow JJ recognised that the terms of s 69(2) contained no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid, but nevertheless the power conferred by the section is to be exercised judicially, that is to say, not arbitrarily, capriciously or so as to frustrate the legislative intent.

At p 88 they said:- There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.

As I have already said, neither party in these proceedings can be regarded as successful or wholly unsuccessful.

Although the applicant argued that no notice should be issued, it nevertheless mounted a strong case supported by expert evidence to the effect that the noise level to be prescribed should be significantly less than that which the Court decided to impose. The council mounted a strong case to the contrary. The Court's determination does not apply the criteria contained in the notice the subject of the appeal nor is it a direct reflection of the opinion of either parties' expert.

This is an appropriate case where, having regard to the whole of the circumstances as outlined above, each party should be required to pay their own costs of the entire proceedings. The Court will make an order accordingly.

The Court makes the following orders: 1. The appeal is upheld.

The Noise Control Notice issued by Griffith City Council on 1 September 1999 and varied on 29 November 1999 is further varied in accordance with the amended form of notice attached and marked "A".

Each party is ordered to pay their own costs of the proceedings.

"A" Noise Control Notice Issued by Griffith City Council on 1 September 1999 pursuant to Protection of the Environment Operations Act 1997 s 264 as varied on 19 November 1999 and further varied by the Land and Environment Court of New South Wales on 7 June 2000 pursuant to s 266 of that Act.

Sumar Produce Pty Ltd ("the company") is prohibited from causing, permitting or allowing the frost control fan erected on Farm 1876, Boorga Road, Lake Wyangan ("the premises") to operate at the premises in such a manner so as to cause the emission from the premises:

_ during the time or day specified below _ of noise above the level specified below _ when measured at the point specified below:

Between 2200 hours and 0700 hours ("the night") on more than two nights within the one period of 60 days.

The logarithmic average of equivalent noise level (L Aeq, 15 minute ) of 55 dBA (excluding extraneous noise influence) measured on behalf of Griffith City Council over at least three consecutive 15 minute periods by a person present at the measuring point and who is either an acoustical engineer with qualifications that are requisite for membership of the Australian Acoustical Society or who is acting in accordance with instructions received from and directions given by such a qualified acoustical engineer on more than two nights within the period of 60 days provided that a copy of the record of any measurements relied upon are made available to the company within 48 hours of the measurement being taken. Where the logarithmic average referred to exceeds the prescribed level of 55 dBA by 2 dBA or less it shall be disregarded for the purpose of this notice.

A point one (1) metre from any bedroom in a dwelling house situated outside the premises.

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.

Environment Operations Act 1997s 252, s

Environment Court Act 1979

CITATION : Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 104 APPLICANT: Sumar Produce Pty Ltd PARTIES : RESPONDENT: Griffith City Council FILE NUMBER(S) : 10705 of 1999; 11121 of 1999 CORAM: Talbot J KEY ISSUES: Orders :- noise control notice Costs :- class one - not a re-hearing LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 252, s 264, s 265, s 266 Land and Environment Court Act 1979 s 69(2) CASES CITED: Latoudis v Casey (1991) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 01/06/2000 DATE OF JUDGMENT: 06/07/2000

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