Verhagen v Port Stephens Council [2021] NSWLEC 1599

Land and Environment Court New South Wales

Medium Neutral Citation: Verhagen v Port Stephens Council [2021] NSWLEC 1599 Hearing dates: Conciliation conference held on 8 October 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) The Prevention Notice number 40-2021-5-2 issued by the Respondent on 19 February 2021 is varied under section 110 of the Protection of the Environment Operations Act 1997 (NSW) in accordance with the notice annexed hereto and marked "A". (3) No order as to costs. Catchwords: PREVENTION NOTICE – noise associated with the keeping of dogs –– noise prevention actions – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979, ss 34, 39 Protection of the Environment Operations Act 1997, ss 95, 96, 110, 289 and 292 Texts Cited: Environment Protection Agency, Noise Guide for Local Government 2013 Category: Principal judgment Parties: Alexander Verhagen (Applicant) Port Stephens Council (Respondent) Representation: Counsel: B Fatches (Solicitor) (Applicant) B Swain (Solicitor) (Respondent)

Solicitors: Carroll & O'Dea (Applicant) Local Government Legal (Respondent) File Number(s): 2021/69816 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against Prevention Notice 40-2021-5-2 (the Notice) issued by the Port Stephens Council (hereafter the Council) on 19 February 2021 to the applicant, which seeks to mitigate the noise generated from dogs kept on Lot 16 DP 250873, also known as 8 Cook Drive, Swan Bay (hereafter the site). 2. The Notice was issued, pursuant to s 96 of the Protection of the Environment Operations Act 1997 (PoEO Act) with the following terms: "DIRECTION TO TAKE PREVENTATIVE ACTION Issued under Section 96 of the PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 PREVENTION NOTICE "Port Stephens Council directs ALEXANDER VERHAGEN to take up the following preventative action: i. Cease causing, permitting or allowing all offensive noise originating from any dog or dogs at the Premises by 5pm, 05 March 2021." 1. The applicant appealed against the Notice, pursuant to s 289(1) of the PoEO Act. 2. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), before me as duty commissioner, without an onsite view by agreement of the parties. The conciliation was held by MS Teams. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the appeal that contextualise the site and issue. 3. It was advised to the Court that one resident made an oral submission in objection at a previous conciliation conference held by a different commissioner of the Court relating to this appeal, and their issues as raised, have been considered in the agreed preventative actions. 4. Based on the expert written advice and agreed variations to prevention actions described in the Notice, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and resident concerns have been considered, and are resolved. The decision of the parties is to vary the Notice, with preventative actions as described in Annexure A. 5. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 292 of the PoEO Act and being satisfied, pursuant to s 110(2), to vary the Notice, as described in Annexure A. 6. The requirements of ss 95 and 96 of the PoEO Act, and the Environment Protection Agency, Noise Guide for Local Government 2013 (Noise Guide) are relevant for the Court's consideration to vary the Notice under appeal. The expert opinion addresses the issue of offensive noise. 7. Based on the evidence before the Court and explanation by the parties, I am satisfied that the agreed preventative actions seek to ensure that the activity of keeping of dogs on the site is undertaken in an environmentally satisfactory manner, thereby satisfying s 96(2) of the PoEO Act. 8. The parties agree to the variation of the Notice for preventive actions, which are achievable in purpose and time, consistent with the requirements of the PoEO Act and Noise Guide. 9. I am satisfied that the Notice should be varied, as described to the Court. The power for determination and variation of the Notice is established in ss 110(2) and 292 of the PoEO Act, and s 39(1) of the Court Act. 10. The parties explain that there are no jurisdictional impediments to making the agreement or for the Court making the orders, as sought. The applicant agrees that the agreed actions in the notice are achievable in the specified timeframe. 11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Prevention Notice 40-2021-5-2 should be varied, as it satisfies the relevant requirements of the PoEO Act. 12. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 13. The Court orders that: 1. The appeal is upheld. 2. The Prevention Notice number 40-2021-5-2 issued by the Respondent on 19 February 2021 is varied under section 110 of the Protection of the Environment Operations Act 1997 (NSW) in accordance with the notice annexed hereto and marked "A". 3. No order as to costs.