Land and Environment Court New South Wales Medium Neutral Citation: Nadilo v Eagleton [2020] NSWLEC 95 Hearing dates: 3 July 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [36] Catchwords: INTERLOCUTORY APPLICATION – civil enforcement proceedings for declaratory and injunctive relief that use of two air conditioners and a heat pump water heater at residential premises were operating to emit noise that interfered with the sleep of the residents of the adjoining property – application for interlocutory relief – applicant had earlier commenced proceedings for a noise abatement order in the Local Court – respondents make application for stay of Land and Environment Court proceedings – stay application set down for hearing on 27 July – serious issue to be tried on the merits concerning at least one air conditioner and the heat pump water heater – balance of convenience – balance of convenience favours interim restraint on night-time use of one air conditioner but not the heat pump water heater – injunction restraining, until 2pm on 27 July, the respondents from using the air conditioner between 10pm and 7am COSTS – applicant sought costs of the application for interim relief – applicant only partially successful – respondents partially successful in resisting the application for interim relief – appropriate that there be no order for costs of the application for interim relief Legislation Cited: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Procedural and other rulings Parties: Deborah Nadilo (Applicant) Sally Eagleton (First Respondent) Jason Eagleton (Second Respondent) Representation: Counsel: Ms A Pearman, barrister (Applicant) Mr M Swanson, barrister (First and Second Respondents) Solicitors: Stacks Forster (Applicant) Voice Lawyers (First and Second Respondents) File Number(s): 134029 of 2020 Publication restriction: No EXTEMPORANEOUS JUDGMENT Introduction 1. HIS HONOUR: In December 2018, the respondents commenced residing at number 37 of a road in Wangi Wangi. The house which they now occupy is a purpose constructed dwelling. The dwelling has, toward its southern end, an air conditioning system installed on the side adjacent to the boundary with number 35 of the road in which it is situated. A little further to the north is located, on the same side of the dwelling, a heat pump water heater and, yet further to the north, a second air conditioning unit in a recess of the eastern facade of the dwelling. 2. In March 2019, the residents of the adjacent property to the east, number 35, complained about matters of noise disturbance to their sleep pattern - that noise disturbance allegedly being caused by, either collectively or individually (depending on the times), the two air conditioning units and the heat pump water heater. 3. In August 2019, the neighbours commenced action in the Local Court seeking a noise abatement order against the owners of the air conditioning units and the heat pump. 4. On 27 April 2020, the applicants who had previously been self-represented became represented by Mr Dunn, a solicitor. After that, two steps have occurred that engage matters of consideration in these proceedings. First, a summons was filed in this Court on 5 May and was served as attested to by an affidavit of Ms Stephanie Massin on the second respondent. 5. I interpose at this time, as it is a matter to which I will need to return before I make any orders (see [37]), the affidavit attests that the second respondent was served. I have no affidavit recording service on the first respondent. 6. The second matter that is of relevance is that, on advice, the applicant in these proceedings is now seeking to have the proceedings in the Local Court terminated. A hearing of that is to take place in early July. The form, method and costs of such termination are a matter, at this time, of contest between the parties to these proceedings. 7. However, the underlying cause as submitted to me as the reason for seeking the termination of the Local Court proceedings, and the continuing to fruition of the proceedings in this Court, is the fact that the impact on the availability of hearing times in the Local Court caused by the COVID-19 pandemic has been severe and that the advice given by the Local Court was that it was unlikely that there would be a hearing date allocated for the noise abatement notice matter until sometime in 2021. 8. At the time of commencement of these proceedings, at least there was a broader and earlier availability of hearing dates for these Class 4 civil enforcement proceedings. 9. For the applicant, portion of an affidavit deposed by her on 27 May this year has been read and an expert report of a Mr Martin Davenport, an acoustician of SLR Consulting which is annexure F to the affidavit of the applicant's solicitor, Mr Dunn, is also in evidence as a consequence of the marking of that affidavit as read. It is unnecessary for me, for the purposes of these proceedings, to turn to any other material in or annexed to Mr Dunn's affidavit other than five paragraphs in the applicant's affidavit and various elements that were relied upon for these interlocutory proceedings that are contained in acoustician's report. 10. For the respondents to the application, an affidavit of Mr Jason Eagleton of 2 July 2020 has been read, subject to a number of deletions that I will mark on the affidavit as not read for the purposes of this motion. A number of elements of the affidavit, however, are also to be read as expressions of Mr Eagleton's understanding of matters rather than as to the truth of the assertions contained in them, that providing a sufficient basis upon which I can address matters at this time. 11. It is to be observed that in these proceedings in this Court, the respondents have filed an application for a stay, an application which is to be dealt with by the Court on Monday 27 July, that being some three weeks and two days from now. As I indicated during the course of the hearing in this matter, to both Ms Pearman of counsel who appears for the applicant and Mr Swanson of counsel who appears for the respondents, that any order I might make of an interlocutory basis would only be made until the hearing on 27 July. Delay 1. The first matter I need to deal with is the submission by Mr Swanson that I should decline to entertain making any interlocutory order on the basis of delay in seeking to address matters by the applicant. I have earlier set out a brief history. There is no complaint, on the basis of delay, submitted that the period between the commencement of the proceedings in this Court and the hearing of this motion was disentitling. The delay that was the basis for the objection to me making any interlocutory order was the period from December 2018 to the commencement of these proceedings is this Court in May 2020. 2. I am satisfied under the circumstances that that is not a basis to decline to make any order. The intervention of the COVID-19 pandemic and its significant impact on the potentiality for pursuing the activity in the Local Court to finality, tells against, in these circumstances, me considering that there was disentitling delay in me addressing these matters. The case for an interim restraining order Introduction 1. I now need to turn to the question of whether or not, first, the applicant has a sufficiently arguable case and second, for me to determine whether, with respect to such elements where there might be a sufficiently arguable case, it would be appropriate, on the balance of convenience, to make any order with respect to the operation of any of the equipment on the respondents' property between now and the hearing on 27 July. The usual undertaking is proffered 1. I should note before I turn to those matters that, on proper instructions, Ms Pearman has offered the usual undertaking as to costs and damages with respect to the consequences of any interlocutory order that I might make. The applicant's case 1. I turn, now, to the question of whether or not the applicant has an arguable case or a sufficiently arguable case to move to the next element I need to consider. It is clear from the terms of the applicant's affidavit that in the paragraphs that were read, they being numbers 2, 7, 10, 11 and 12 of her affidavit, that her uncontested evidence is that noise is emitted from the respondents' property from elements of equipment on the respondents' property causing disturbance to the applicant and her husband in their sleep patterns. It is to be observed that the interim relief that is sought in the notice of motion that is before me today and which was moved upon by Ms Pearman, that the restraining orders sought on an interim basis are from using the two air conditioning units and the heat pump water heater between the hours of 10pm and 7am each day. 2. Ms Nadilo's affidavit in the paragraphs that I have adverted to records the various impacts that she says each of the three units of equipment has upon her sleep patterns and those of her husband's. That evidence is untested and is taken as it is solely for the purposes of these interlocutory proceedings (and acknowledging that those elements of her evidence may well be tested at some later time). 3. The evidence that is contained in the expert report of Mr Davenport is based on two visits he made to the site, including some tabulation of unattended noise monitoring equipment recording of noise at a point in the vicinity of the boundary between the two properties. It is sufficient for me to make the following observations with respect to Mr Davenport's evidence. 4. First, in table 1 which deals with a range of readings taken by him on 25 October 2019, all of the measurements there are recorded as being from what is described as air conditioning unit number 1, that being the air conditioning unit, the further to the north on the respondents' property and closer to the bedroom on the applicant's property. 5. The second observation to be made is that his evidence records that the background noise level he has obtained for the site as the appropriate adopted off peak criteria is 35 dB(A) and that at table 5, he records that the noise level Laeq for the heat pump water heater is 42 dB(A) and then on the next line it is recorded, "Air conditioner", is 47 dB(A). I am satisfied from the context of his report that that noise level recorded on the line "Air conditioner" is, at least for present purposes, to be inferred as being confined to the noise from air conditioner number 1. 6. However, it is sufficient for present purposes that I note that that evidence with respect to the heat pump and air conditioner number 1 demonstrates, at least for present purposes, sufficient confirmation of the likelihood of there being noise discernible within the bedroom of the applicant's property arising from that equipment. 7. I indicate immediately that I could not be satisfied for the present purposes that there is sufficient evidentiary basis with respect to the second air conditioning unit, that is the other southerly and closer to the street frontage air conditioning unit, that it has a sufficiently demonstrable noise impact on the applicant's bedroom. 8. On those bases, I am satisfied that there is a sufficiently, at least arguable, case with respect to air conditioning unit number 1 and with respect to the heat pump water heater for me to proceed to the next step - that is to weigh the impacts on the applicant and on the respondents as to determining whether or not, for the period of marginally of more than three weeks, I should make some order intervening in the operation of either or both of those items of equipment. Indicating a tentative conclusion 1. During the course of the hearing, with the consent of the counsel for the parties, I indicated that I had tentatively considered the possibility of ordering a restraint on the use of the air conditioning unit known as AC1 during the hours proposed by the applicant, but if I was to make an order with respect to the heat pump water heater, that would be an order I might make so that there was hot water available in the respondents' premises on weekdays, but with a later starting time on Saturdays and Sundays. The respondents' foreshadowing of a possible statutory issue 1. It is to be noted in context that in contest is not only the issue of fact concerning the impacts, but also some significant issues of statutory construction arising out of the terms of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 in subdivisions 23(a) and (3) of Pt 2 Div 1 of that policy as to whether or not the particular units are ones that would be amenable to being challenged or whether the fact that, in the terms submitted on behalf of the respondents, they are exempt development and no further potential intervention arises. 2. I need express no view on that point. It is simply sufficient to note that it has been foreshadowed that such matters might well be raised as a defence, if the matter goes to hearing. Listing for a substantive hearing 1. However, I did discuss with the parties the question of whether or not it would be appropriate for me to list the matter for contingent dates for a hearing in the event that the stay application to be heard on 27 July was unsuccessful. 2. The parties were content for me to set the matter down on the basis that the dates were contingent and that it might be necessary, arising out of the hearing on 27 July, for those hearing dates to be revisited. I certainly do not propose to give any directions for the preparation for those hearing dates as an element of these proceedings. Such directions must necessarily await the outcome of the hearing on 27 July. However, it is appropriate that I set the matter down for hearing for two days on 3 and 4 December of this year on that contingent basis. The balance of convenience Introduction 1. Having expressed the tentative view to the parties that I might be minded to intervene with respect to air conditioning unit 1 and with respect to the heat pump water heater, I turn, having had regard to the evidence of the applicant to which I have earlier referred in the paragraphs of her affidavit that were relied upon before me and in the light of the evidence of Mr Davenport as to whether or not, on the balance of convenience, the protection of the sleep patterns of the applicant outweighs the inconvenience that will be occasioned to the respondents by any order that I might make. 2. There are two observations on the merits that should be made with respect to the respondents' position in the balancing of those matters. First, the position for present purposes and taking Mr Eagleton's evidence in the fashion I earlier outlined, it is clear to me that there will be a significant impact on Mr Eagleton and his family if they are to be denied the use of the heat pump hot water system, even if only for two days over the weekend - given the evidence to which I have regard in these proceedings set out in paras 9(b), (c) and (d) as to the operational impact of the switching off of the hot water heat pump system and that which is contained in 9(e) to (i) of para 9 of his affidavit as to the desirability of retaining operation for the provision of hot water to their residence. 3. I have also had regard to the submissions that were made on their behalf on both a general amenity basis and on a health risk basis in the present pandemic times as to why it would be inappropriate to deny them any use of the heat pump hot water system. 4. On the evidence contained in the report of Mr Davenport, it is clear that, to the extent that there might be an impact on the applicant caused by the heat pump water heater system, that impact is significantly less, in a technical sense, than any impact that might arise from air conditioning system number 1. Conclusion on the heat pump water heater 1. Balancing, as it is necessary that I do, for present purposes, the competing interests in that regard of having regard to the impact of the heat pump water heater to operate, compared to the impact on the Eagleton family of requiring it to be switched off at all, I am satisfied, on comparatively fine balance, that it is not appropriate to order any cessation of operation of the heat pump water heater. Conclusion on air conditioning unit number 1 1. That position does not apply with respect to air conditioning unit number 1. It is clear from what is set out in Mr Eagleton's affidavit that there will be some discomfort occasioned if this air conditioning unit is not permitted to operate, but given that we are in winter and warm clothing and warm bedding can adequately offset any impacts of requiring the cessation of operation of air conditioning unit 1 between now and 27 July, I am satisfied, on the balance of convenience, that it is appropriate to order that that air conditioning unit 1 not be permitted to operate between 10pm and 7am each day. Costs 1. Having reached those conclusions, I now turn to the question of the costs of this motion. The motion itself sought that the applicant should have her costs. However, that application was made on the basis that she would be successful on the entirety of the orders that she has sought. The position is that there has been a division of spoils in the outcomes that I have determined are appropriate. As a consequence of that, I do not propose to make any order for costs with a view that each party will bear their own costs of this motion and the orders will so provide. Orders 1. As a consequence of the foregoing, I make the following orders: 1. Until 2pm on 27 July 2020, the respondents, by themselves, their servants, agents and invitees, are restrained from using the more northern of the air conditioning units on the land known as 37 Puna Road, Wangi Wangi between the hours of 10pm and 7am each day; 2. The matter is set down for hearing on 3 and 4 December 2020; 3. There is no order for costs with the effect that each party bears their own costs of this motion; and 4. The matter is adjourned until 10am on 27 July. 1. Counsel for the respondents indicated (Transcript page 36 lines 29 to 34) that there was no objection to the orders binding both respondents despite there being no proof of service on the first respondent. ********** 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: 21 July 2020