Sumar Produce Pty Ltd v Griffith City Council

Land and Environment Court (NSW)|1999-09-01|Before: Talbot J, Mrs J

CITATION : Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27 APPLICANT: Sumar Produce Pty Ltd PARTIES : RESPONDENT: Griffith City Council FILE NUMBER(S) : 10705 of 1999; 11121 of 1999 CORAM: Talbot J KEY ISSUES: Question of Law :- statutory construction - power to vary noise control notice after appeal - power to vary noise control notice on appeal - power of delegation to council officer Land and Environment Court Act 1979 s 39 LEGISLATION CITED: Local Government Act 1993 s 337 Protection of the Environment Operations Act 1997 s 264, s 265, s 266. s 267 CASES CITED: DATES OF HEARING: 08/02/2000 DATE OF JUDGMENT: 02/15/2000

APPLICANT: Mrs J Kelly (Barrister) SOLICITORS: Commins Hendricks LEGAL REPRESENTATIVES: RESPONDENT: Mr A Hawkes (Solicitor) SOLICITORS: Pike Pike and Fenwick

Sumar Produce Pty Ltd Applicant v Griffith City Council Respondent

These two proceedings relate to an appeal against the respondent council's noise control notice first issued on 1 September 1999 and varied by a further notice on 29 November 1999. Each notice is the subject of a separate appeal.

The notices relate to the use of a frost control fan on the property of the applicant.

An original notice, dated 19 August 1999 has been withdrawn and an earlier appeal in matter 10706 of 1999 has also been withdrawn.

The notice issued on 1 September 1999 recites that Griffith City Council issued the notice under s 264 of the Protection of the Environment Operations Act 1997 (the PEO Act) because the applicant was causing noise to be emitted that is intrusive and offensive. The activity or article of concern to which the notice relates is referred to in the background recital as a frost control fan operated during late evening and early mornings during June, July and August, giving rise to numerous complaints to council.

The operative part of the notice prohibits the applicant from causing, permitting or allowing the frost control fan to operate at the premises in such a manner as to cause the emission of noise above the specified maximum noise level at a nominated point. The prohibition is imposed seven days a week, twenty four hours a day.

On 29 November 1999 the council issued a second notice purporting to be a variation of the notice issued on 1 September 1999 again reciting the reason for the issue of the notice and identifying the activity or article of concern as the frost control fan. A further recital notes that the council resolved, pursuant to s 266 of the PEO Act to vary the notice issued on 1 September 1999.

The notice as varied prohibits the applicant from causing, permitting or allowing the frost control fan to operate at the premises in such a manner as to cause the emission of noise above the specified level at the nominated point during the night time.

There is no dispute that the council is a local authority as defined in s 6(1) of the PEO Act.

The relevant parts of s 264 are as follows:- (1) This section applies to: (a) the person who is the occupier of any premises, or (b) the person who carries on an activity at any premises or who uses or operates an article at any premises. (2) The appropriate regulatory authority may, by notice in writing given to such a person, 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.

Section 265 provides that a person who contravenes a noise control notice is guilty of an offence, subject to the emission of the noise from the premises being capable of detection or being perceived outside the premises. The maximum penalty in the case of a corporation is $60,000 and in the case of an individual $30,000 with a daily penalty of $6,000 and $600 respectively for each day the offence continues.

A noise control notice may be revoked or varied by the regulatory authority by a further notice by dint of s 266.

Section 267 is as follows:- A noise control notice (including any notice varying such a notice) has no force: (a) until the period within which an appeal under this Act can be lodged against the notice has expired without an appeal being lodged, and (b) if such an appeal is lodged within that period, until the court confirms the notice or the appeal is withdrawn.

Any person given a noise control notice may appeal to the Land and Environment Court against the notice or order within 21 days after service of the notice (s 290).

It is important to note that an appeal against the issue of the notice dated 1 September 1999 had already been filed, on 8 September 1999, when the further notice purporting to vary the original notice was issued on 29 November 1999.

On 10 August 1999 the council resolved as follows:- 1. Based on the Acoustic Report from Noise and Sound Services, Council authorise the Director of Environmental Services to initiate enforcement action under the relevant legislation against the offensive noise omitted (sic) by the subject frost control fan located on the property at McCarthy Road, Lake Wyangan, and

Director of Environmental Services work with the Brighenti's to bring the frost fan into compliance with the requirements of the noise consultant and the noise consultant be allowed to make an assessment of Brighentis' consultant's assessment.

The only other resolution of council which is relevant to the questions raised as preliminary points of law before me, was made on 13 August 1996 as follows:- 1. Council adopt the specific functions reserved for the discretion of Council together with the functions described in Section 377 of the Local Government Act 1993.

Under the provisions of Section 377 of the Local Government Act 1993, Council delegate the authorities listed in this clause to the Mayor, Cr J Dal Broi.

Under the provisions of Section 377 of the Local Government Act 1993, Council delegate the authorities listed in this clause to the General Manager, Mr R Behl.

Under Section 378 of the Local Government Act 1993, Council note the functions sub-delegated to Directors by the General Manager.

The list referred to in the resolution, after outlining particular functions of the General Manager, contains the following item:- In addition, Council has delegated to the General Manager, Robert Behl, under the provisions of Section 377 of the Local Government Act 1993, a general authority to carry out all the discretionary functions of the Council that it is capable of delegating other than those specific functions which the Council has reserved to itself.

The Court has been asked to determine the following issues as preliminary questions of law based upon the abovementioned agreed facts:- (i) Was the General Manager, R Behl, authorised to sign the document purporting to be a noise control notice pursuant to the Protection of the Environment Operations Act 1997 and dated 1 September 1999?

(ii) Is the document purporting to be a noise control notice pursuant to the Protection of the Environment Operations Act 1997 and dated 1 September 1999 valid?

(iii) Is the document purporting to be a noise control notice dated "1 September 1999 [as varied … 29 November 1999]" the subject of this appeal, a valid notice pursuant to the Protection of the Environment Operations Act 1997 s 264 and s 266?

(iv) Does the Land and Environment Court have the power on appeal to vary the requirements of the noise control notice dated 1 September 1999 and the subject of Appeal No 10705 of 1999 or can the Court only confirm or dismiss the notice?

The fourth question set out above goes to the application and extent of the Court's powers under s 39 of the Land and Environment Court Act 1979 (the Court Act) in the circumstances of this case.

Mrs Kelly contends for the applicant that, because the delegation to the General Manager was made in August 1996 prior to the introduction of the PEO Act, it can have no force or effect for the purposes of the issue of a noise control notice.

Section 377 of the Local Government Act 1993 refers to "any of the functions of the council" .

Although the resolution on 13 August 1996 is convoluted and to some extent confusing, it is nevertheless clear that it was intended for the General Manager to act as delegate in respect of the matters specifically referred to in the list. All the discretionary functions of the council are nominated in general terms. They are qualified only to the extent of being those that the council is capable of delegating. The list excludes only those specific functions which the council has reserved to itself.

As a matter of practicality and construction, the resolution was clearly intended to cover the various circumstances that might eventuate in the day to day operations of the council. There has been no attempt to be specific. The Court is entitled to infer that the intention is for the terms of the resolution to cover the field, but leaving it for the council to reserve to itself such functions as it may determine from time to time.

Having regard to the plethora of legislation which bestows functions on councils, it would be an absurdity to expect there to be a separate resolution each time a new function is created, unless of course the council specifically resolved to that effect.

The Court is satisfied therefore that the delegation to the General Manager pursuant to the resolution made on 13 August 1996 is sufficient for the purpose of the issue of a noise control notice under to the PEO Act.

A further argument developed by Mrs Kelly is that the resolution of 10 August 1999 specifically referred to the Director of Environmental Services, whereas s 377 of the LG Act specifically refers to the General Manager or any other person or body (not including another employee of the council). Therefore, according to Mrs Kelly, the resolution authorising the Director of Environmental Services to initiate enforcement action under the relevant legislation has no force as a delegation of that function of the council.

However, the resolution does not detract from the ongoing authority of the General Manager to act. It is reasonably foreseeable that the Director could have acted on the resolution by requesting the General Manager to exercise his delegated authority and to issue the noise control notice. Irrespective of whether that occurred, the Court accepts that the General Manager nevertheless had sufficient delegated power under the 1996 resolution.

Whether the notice complied with the requirements of s 264(2) of the PEO Act?

Having regard to the penal nature of the consequence of non-compliance with a notice, Mrs Kelly contends that strict compliance with the legislation is necessary. Although this submission may have some substance, it is not necessary to make a final determination because ultimately no ambiguity arises. I have referred to the recital in the noise control notice which specifies "(t)he activity or article of concern" as the frost control fan. It is Mrs Kelly's submission that the council was required to specify one or other of the alternatives in s 264(2)(a) or (b).

Even if strict compliance is required, the notice is nonetheless specific in the operative section under the heading "Noise Prohibition" . At that point the notice specifically states that the council prohibits the applicant from causing, permitting or allowing "(t)he Frost Control Fan to operate" . That specification can only fall within s 264(2)(b).

It should be noted however that although s 264(2) expresses (a) and (b) in the alternative, it then goes on to refer to "or both" .

The Court is satisfied that the notice satisfies the requirements of s 264(2) even if Mrs Kelly is right and the strict compliance with the legislation is required before a notice is valid.

The power to issue a second notice following commencement of the first appeal

Section 266 clearly stipulates that a noise control notice may be revoked or varied by a further notice.

Mrs Kelly notes that where there is an appeal against a noise control notice, s 267 provides that the notice has no force until the Court confirms the notice or the appeal is withdrawn. She says that as an appeal had already been lodged against the original notice, the power to vary the notice cannot be exercised because it has no force until the Court makes its determination or the appeal is withdrawn.

As a matter of construction, the force, in the context of a noise control notice, must be that element of the notice which constrains or compels the behaviour of the recipient. By providing that the notice has no force while an appeal is pending, s 267 removes the prospect of a sanction which could otherwise follow if the notice is not complied with.

The section does not provide that the notice ceases to exist as a legal instrument. Merely that its effect is placed in abeyance. The recipient is excused from complying with its terms in the meantime.

In the Court's opinion, it is not logical to construe s 267 as qualifying the power of the council to vary a noise control notice. Notwithstanding that compliance with the noise control notice is not required until the period of time referred to in s 267(b) has expired, it retains its efficacy for other purposes.

The council was thus entitled to issue a further notice contemplated by s 266 on 29 November 1999 notwithstanding that the applicant had lodged an appeal against the notice dated 1 September 1999 on 8 September 1999.

The compelling logic of this conclusion becomes evident when it is understood that s 266 also deals with revocation of a noise control notice. It could not be suggested that the lodgement of an appeal could deprive the council of the power to revoke the notice against which the appeal is made.

Whether the Court has the power to vary a notice on appeal?

Mrs Kelly further submits that the Court's power is also confined by s 267(b), namely to the effect that it may only confirm the notice on appeal.

She argues that s 39 of the Court Act cannot confer a power on the Court that is specifically limited by the particular statute giving rise to the appeal.

Further, because the PEO Act is later and in conflict, it overrides the Court Act. This last submission overlooks the amendments made to s 17 of the Court Act to specifically include appeals made under Pt 9.2 of the PEO Act within the Court's class 1 jurisdiction. No attempt has been made to exclude the wide powers contained in s 39 of the Court Act.

There can be no doubt in the circumstances that vide s 39(2) the appeal to the Court involves a re-hearing and that in hearing the appeal the Court has all the functions and discretions which the council had in making the original decision to issue the notice. The matter the subject of the appeal for the purpose of s 39(2) is the notice. The words of the subsection are sufficiently wide to enable the Court to do whatever the council could have done when it made its decision to issue the notice. Inherent in that process is the power to change the terms of the notice to accord with the determination made by the Court following the hearing of evidence and submissions.

Furthermore, the power of the Court is not the subject of s 267. The section is dealing exclusively with the period when the effect of the notice is suspended in the event of an appeal, firstly, by reference to the period during which an appeal is allowed under subpar (a) and then, until the notice is reinstated by either of the events in (b). The concept of the Court confirming the notice is consistent with the Court acting on the council's behalf and determining that the notice should be issued, albeit in an amended form.

The preliminary questions raised are answered as follows:- Question 1: Yes. Question 2: Yes. Question 3: Yes. Question 4: The Court has the power to vary the requirements of the notice.

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.

39. Mrs Kelly further submits that the Court's power is also confined by s 267(b), namely to the effect that it may only confirm the notice on appeal.

40. She argues that s 39 of the Court Act cannot confer a power on the Court that is specifically limited by the particular statute giving rise to the appeal.

41. Further, because the PEO Act is later and in conflict, it overrides the Court Act. This last submission overlooks the amendments made to s 17 of the Court Act to specifically include appeals made under Pt 9.2 of the PEO Act within the Court's class 1 jurisdiction. No attempt has been made to exclude the wide powers contained in s 39 of the Court Act.

42. There can be no doubt in the circumstances that vide s 39(2) the appeal to the Court involves a re-hearing and that in hearing the appeal the Court has all the functions and discretions which the council had in making the original decision to issue the notice. The matter the subject of the appeal for the purpose of s 39(2) is the notice. The words of the subsection are sufficiently wide to enable the Court to do whatever the council could have done when it made its decision to issue the notice. Inherent in that process is the power to change the terms of the notice to accord with the determination made by the Court following the hearing of evidence and submissions.

43. Furthermore, the power of the Court is not the subject of s 267. The section is dealing exclusively with the period when the effect of the notice is suspended in the event of an appeal, firstly, by reference to the period during which an appeal is allowed under subpar (a) and then, until the notice is reinstated by either of the events in (b). The concept of the Court confirming the notice is consistent with the Court acting on the council's behalf and determining that the notice should be issued, albeit in an amended form.

44. The preliminary questions raised are answered as follows:-

Question 4: The Court has the power to vary the requirements of the notice.

Environment Court Act 1979

Environment Operations Act 1997s 264, s

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