DOMACHUK and ANOR v FEINER and ANOR [1996] NSWCA 157

DOMACHUK v FEINER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA, GILES and Simos AJJA 28 November 1996, 28 November 1996

[1996] NSWCA 157

Nuisance — private — order restraining. Zoning to permit agricultural uses without consent did not mean offensive smells from mushroom compost were not a nuisance. The local council had power to fund proceedings brought by a ratepayer to restrain private nuisance: s24 of Local Government Act 1993.

Giles AJA The first appellant Mrs Ekaterina Domachuk owns | Park Road, Kenthurst(the property). The second appellant A Domachuk Bouquet Composters Pty Ltd grows mushrooms at the property, for which purpose there are brought to the property quantities of compost largely made up of stable straw saturated with urine and mixed with manure from horses and other animals. The respondents Dr Ronald Feiner and Mr Patrick Ng are neighbours owning and living at 7 Dobell Place, Kenthurst (to the east of the property and across a roadway) and 23 Porters Road, Kenthurst (immediately to the south of the property) respectively.

The respondents alleged that the compost caused offensive smells, offensive to the extent of causing physical distress, and that the appellants' activities constituted in law a nuisance. In proceedings brought by the respondents to enjoin the nuisance, on | July 19, 94 Brownie J made orders restraining the appellants on and after | January 1995 from accepting onto the property any waste material which included manure or urine from horses or other animals and awarding damages of $7,500 to each of the respondents.

The appellants appealed against the orders. They proffered eight grounds of appeal. In the result, only grounds 1, 5 and 6 were pressed.

In going to ground 1, in which it was said that his Honour erred in finding that the appellants' use of the property constituted an unreasonable interference with the use and enjoyment of the respondents' land having regard to the locality and the zoning of the property, it is I think desirable to have in mind his Honour's findings as to the nuisance. The former grounds 2 and 3 challenged those findings and the challenge is not maintained, but some understanding of what led his Honour to make his orders is desirable.