Santo v Anglas Pty Ltd [2010] NSWLEC 126

Land and Environment Court of New South Wales

CITATION : Santo v Anglas Pty Ltd [2010] NSWLEC 126

APPLICANT Michele Santo PARTIES : RESPONDENT Anglas Pty Ltd

FILE NUMBER(S) : 40492 of 2009

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- application to vacate hearing date for second time due to inability caused by inclement weather to comply with directions to prepare further acoustic evidence - centrality of acoustic evidence to the issues for determination - delay not the fault of any party - no utility in proceeding with hearing date - unusual and rare circumstances - application granted

LEGISLATION CITED: Civil Procedure Act 2005 s 56

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Childs Family Kindergarten Limited v Council of the City of Sydney [2006] NSWLEC 590

DATES OF HEARING: 16 July 2010

EX TEMPORE JUDGMENT DATE : 16 July 2010

APPLICANT Mr M McMahon (solicitor) SOLICITORS ME McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr D Loether (solicitor) SOLICITORS Bartier Perry

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

16 July 2010

40492 of 2009 Michele Santo v Anglas Pty Ltd

EX TEMPORE JUDGMENT

Introduction 1 HER HONOUR: Before me is a notice of motion filed on 12 July 2010 seeking, by consent of both parties, the vacation of a hearing date on 20 July 2010. This is, disturbingly, the second time such an application has been made by the parties. Factual Background to Application 2 The proceedings concern, by amended summons filed in the Court on 26 February 2010, the applicant, Mr Michele Santo, seeking orders pursuant to s 123 of the Environmental Planning and Assessment Act 1979 that the second respondents, Anglas Pty Ltd ("Anglas"), be restrained from using land at 61 Moore Park Road, Moore Park as a child care centre because of breaches of the conditions of development consent for that centre as modified by this Court by orders dated 4 December 2006 (see Childs Family Kindergarten Limited v Council of the City of Sydney [2006] NSWLEC 590). 3 The proceedings were discontinued on 8 April 2010 against the first respondent Ms Rita Shagrin. 4 In short, Anglas denies that Mr Santo is entitled to the relief sought because no contravention of the conditions of consent have in fact occurred and, in any event, even if it did, that pursuant to s 25B of the Land and Environment Court Act 1979 no orders should be made by the Court in the exercise of its discretion because further works that are to be carried out will achieve compliance in any event. 5 The background facts, which for the purpose of this application are not in dispute, are as follows. Mr Santo lives with his daughter in a residential property adjacent to the land at 63 Moore Park Road, Moore Park. He is the owner of that property. Anglas operates the child care centre called Gumnut Gardens on the land. 6 On 3 March 1994, the council approved development consent U93/00152 in relation to the land permitting use as a child care centre subject to certain conditions. The consent was then modified by the Childs Family Kindergarten decision after a s 96 appeal was lodged. The new conditions of consent imposed by the orders of the Court were as follows: (18) Noise caused by the approved use including music and other activities must comply with the following criteria: (a) The use must not result in the transmission of an "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy; (b) The LAeq (15 min) noise level emitted from the use must not exceed: (1) 5dB above the background (L90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8KHz inclusive); or (2) 10dB above the background (L90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8KHz inclusive) provided that the total time of outdoor play is restricted to 1.5 hours in the rear play area and 1.5 hours in the front play area, when measured at the most affected point within the boundary of any residential premises.