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. Note: (1) The background (L90) noise level must be measured or determined in the absence of noise emitted from the use. (2) The LAeq noise level must be measured or determined subtracting the traffic noise contribution, if any. (3) The "most affected point" was agreed in the Land and Environment Court Proceedings No. 10464 of 2006 to be the rear balcony of the premises at No. 63 Moore Park Road. (4) Noise levels shall be measured in accordance with the guidelines contained in the DEC Industrial Noise Policy, the DEC Noise Guide for Local Government and Australian Standard AS1055 Part 1. No correction for tonality or impulsiveness shall be applied. (18A) The following works must be carried out: (a) Either: (1) The existing multicell polycarbonate installed in the acoustic barrier shall be removed and replaced with sheet panels comprising 9.5 mm thick solid Lexan, Plexiglas or Polyguard. All gaps between panels shall be sealed tight with an acoustic sealer; or (2) A panel sheet shall be affixed to the existing noise barrier on the western side of the supporting structural frame. The sheet shall be constructed from one of the following alternative materials: i. One layer of 19mm thick marine ply with acoustic sealer at the junction; or ii. 6mm think compressed fibrous cement sheet with acoustic sealer at the junctions; or iii. BHP Colour bound fencing sheet. The sheets shall be installed so that all gaps are sealed tight. A steel or timber beam shall be constructed horizontally along the top edge of the barrier to ensure that the top edges of the sheets on both sides of the acoustic barrier are sealed tight over the length specified below. In the cavity Tontine TSB5 polyester acoustic insulation material shall be installed over the full area of the cavity and held in place by chicken wire or other similar materia. The extent of the modification shall be as follows: i. In the front yard of the subject premises, the entire length of the barrier. ii. In the rear yard of the premises, from the extreme southern end of the barrier to a point 5m north of the rear balcony at No 63 Moore Park Road measured from the façade of the wall to which the balcony is affixed. (b) The height of the existing acoustic barrier at the rear shall be extended upwards by 1000mm. The barrier extension material shall be 9.5mm thick solid transparent Lexan, Plexiglas or Polyguard and shall incorporate an ultraviolet coating on both sides (UV2). All gaps between panels shall be sealed tight. The extent of the modification shall be from the extreme southern end of the barrier to a point 5m north of the rear balcony at No. 63 Moore Park Road measured from the façade of the wall to which the balcony is affixed. (c) Acoustically absorbing panels shall be installed to the northward facing and eastward facing walls of the subject building adjacent to the sandpit play area on the eastern side of the property. The acoustic panels shall have an absorption coefficient exceeding NRC 0.8 and shall be structurally protected with a material which is acoustically transparent. The extent of the panelling shall be from 300mm above the height of the foundation to a height 300mm above the acoustic wall. (d) All gaps in material shall be sealed with an acrylic acoustic sealer having a specific gravity of 1.2 or greater which shall be applied for a depth at least equal to the with of the gap. All gaps in sheets shall be screw-fixed tight to a timber batten or steel channel located behind the sheets running along the extent of the gap to ensure a positive and tight connection. (e) A drawing of the proposed modifications works shall be submitted to Council for approval. An acoustic consultant shall supervise the construction of the works at regular intervals and on completion of the works shall submit a document to Council certifying that the works have been constructed in accordance with this condition. (f) The proposed modification work shall be carried out within 12 months of the date of this condition being inserted. (18B) During the first 90 days after the proposed modification works have been completed, the following acoustic measures must be undertaken: (a) a suitably qualified acoustic consultant must be appointed (such appointment to be before the proposed modification works are completed) to: (i) measure and verify that the noise emanating from the premises complies with the criteria in condition 18 above; and (ii) if necessary, make recommendations to ensure that the noise emanating from the premises complies with the noise criteria in condition 18 above. (b) The noise measurements must be: (i) undertaken without the knowledge of the applicant, manager or operator of the premises; and (ii) taken on at least three different occasions during the approved hours of operation; and (iii) submitted to Council within 7 days of the testing. (c) If the acoustic consultant recommends that additional treatment of works be undertaken under condition 18(B)(a)(ii) above, those recommendations must be: (i) submitted to Council with the noise measurements as required in (b)(iii) above; and (ii) implemented to the acoustic consultant's satisfaction within 90 days of the proposed modification works being completed. (d) If the acoustic consultants recommendations are not implemented in accordance with this condition, the use must cease until such time as the recommendations are implemented and verified. 7 Thus in summary: (a) condition 18 of the consent as amended requires the noise caused by the centre not to exceed 5dB(A) above background in any octave band frequency (31.5 Hz to 8KHz) or 10dB(A) above background as long as the outdoor play is restricted to 1.5 hours per day in the rear area and 1.5 hours per day in the front area; (b) condition 18A required certain acoustic treatment to be undertaken to the acoustic fence located on the boundary between the applicant's premises and the centre; and (c) condition 18B required an acoustic measurement to be undertaken 90 days after carrying out the works in condition 18A to verify that the noise emanating from the premises complied with condition 18. It also required that any recommendations of the acoustic consultant be implemented and "verified" and that if this was not done, that the use cease pursuant to condition 18(d). 8 On 4 July 2008, Koikas Acoustics Pty Ltd was engaged by the previous operator of the child care centre to carry out acoustic testing as required by the conditions of consent. In that report Mr Koikas concluded that the noise was expected to exceed the nominated noise criteria as set out in the consent, and therefore, a noise barrier would be required to be erected. The council, however, was of the view that this suggestion was not appropriate. 9 Therefore, on 13 November 2008, Mr John Maung of the Acoustic Group was asked by the previous owners and the council to carry out a second acoustic test for the purpose of compliance with condition 18B of the consent. It was Mr Maung's opinion that there was non compliance with the consent caused by noise emanating over the top of the barrier. As a result a recommendation was made that a glass wall be added to Mr Santo's balcony and the kitchen window be double glazed. This was not consented to by Mr Santo and no further works were undertaken. 10 The previous owners of the child care centre ceased to operate on 20 April 2009. A new lease was entered into in relation to the child care centre with Anglas on 22 June 2009. The lease required Anglas to comply with all relevant laws and the consent requirements in relation to the use of the land. 11 On 22 July 2009 Mr Santo commenced proceedings against the first respondent. The new child care centre commenced operations in November 2009 and on 26 February 2010, Anglas was joined by Mr Santo. First Vacation of Hearing Date 12 When the matter initially came on for hearing before me on 8 April 2010, it transpired that the acoustic issues raised by both parties could not be determined because there were aspects of the acoustic evidence that were deficient. 13 Accordingly, consent orders were made vacating the hearing date and making consequential orders to permit the expert evidence to be finalised. Those consequential orders were as follows: 1. The proceedings are adjourned for the purpose of enabling acoustic measuring of the noise emanating from the use of the child care centre to occur in accordance with the Agreed Protocol for Measurement agreed between Nick Koikas and Peter Knowland dated 8 April 2010, a copy of which is annexed to these orders as Annexure "A". 2. Direct that the Second Respondent arrange at its expense for the acoustic measuring referred to in Order 1 above. 2A. The parties are to file and serve any additional expert or lay evidence by 4pm on Friday 25 June 2010. 3. The matter is listed for further hearing before Pepper J on 20 July 2010 at 10am. 4. The parties have liberty to restore on 1 working days' notice. 5. Costs reserved. 14 The orders gave effect to the preparation of the further acoustic evidence by way of the Agreed Protocol. The Protocol required that additional survey work necessary for the finalisation of the acoustic evidence be carried out by Mr Steven Cooper (or if Mr Cooper was not available Mr Dick Benbow) within two months. Mr Cooper was available. 15 However, and according to the affidavit of Mr Dennis Loether sworn 12 July 2010 (a solicitor with Bartier Perry Pty Ltd, acting for Anglas) read in support of the application to vacate, the survey work was not able to be undertaken by Mr Cooper within the two months as required by the Protocol due to excessive inclement weather during May and June. The inclement weather meant that the children were not playing outside. This precluding any meaningful survey of the noise generated by them as it impacted upon Mr Santo. 16 In due course, Mr Cooper was able to finalise his report but this was not until 29 June 2010. The report and the data underpinning it were received by the parties on 2 July 2010. An eCourt communication was made on 25 June 2010 requesting variation of the orders made previously by the Court on 8 April to permit the service of the additional expert report of Mr Cooper by 4pm on Friday 2 July 2010. At that stage, the parties still held the optimistic belief that the acoustic evidence could be finalised in time for the hearing to proceed. The order was made and complied with, however, upon receipt of Mr Cooper's report by Mr Santo it became apparent that additional work was required involving an analysis of Mr Cooper's data. This was communicated on 9 July 2010 by way of letter from Mr Peter Knowland of PKA Acoustic Consulting (engaged by Mr Santo) to Mr Dennis Loether of Bartier Perry. 17 That letter made it abundantly clear that the imminent hearing could not proceed because the further work required to be undertaken by way of analysis of Mr Cooper's data could not be finalised in time. Consideration 18 From this recitation of the background facts it is apparent that the outdoor noise levels generated by the child care centre is the central feature determining the outcome of these proceedings. The criticality of this acoustic evidence to the issue raised for determination in the proceedings namely, the alleged breach of the conditions of consent relating to noise, is therefore paramount. That the required further acoustic evidence was not able to be finalised in time for the hearing to proceed is not due to the fault of any party. 19 In these rare and unusual circumstances, the Court must, albeit with extreme reluctance given that this will be the second time that the hearing date in this matter has been vacated, accede to the parties' request. 20 While the effect that such a vacation has on the efficient running of the Court's business is a significant consideration that the Court can and must have regard to in determining whether or not to grant the vacation (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [111]), the fact remains that without this evidence the hearing cannot proceed irrespective of the manifest inconvenience to the Court resulting from this outcome. 21 While the parties may be criticised for not bringing the problem to the Court's attention sooner, this is partly explained by their genuine belief that the evidence could nevertheless be finalised in time for the hearing to proceed. 22 The parties have, furthermore, submitted to me, and I accept, that so important is the acoustic evidence to the conduct of the hearing that there is no utility in any part of the hearing commencing on 20 July 2010. 23 Notwithstanding that it would be extremely rare that a Court would countenance the granting of a second vacation of a hearing date, this is, however, one of those rare occurrences. 24 I am satisfied that in all the circumstances, having regard to the overriding purpose of the Civil Procedure Act 2005 contained in s 56 and of the rules of this Court, that to accede to the application for a vacation of the hearing dates will facilitate the just, albeit not necessarily quick, but hopefully cheap resolution of the real issues for determination in the proceedings. 25 It is, however, appropriate for the Court to make further orders for the conduct of the proceedings including the allocation of the third hearing date and a date for mediation between the parties once the expert acoustic evidence has been finalised. It may be that given the passage of time since the summons was filed that once the acoustic evidence is fully understood that the proceedings are capable of informal resolution. The parties did not disagree with this course. 26 After some discussion, consent short minutes of order were handed up to the Court and it is those orders that the Court made. Orders 27 The orders of the Court are therefore as follows: (1) that the hearing date of 20 July 2010 is vacated with no order as to costs; (2) the parties are to file and serve any additional lay evidence, if any, by 4pm on 23 July 2010; (3) the parties' acoustic consultants are to file and serve any expert evidence by 4pm on 30 July 2010; (4) the parties are to mediate the proceedings, such mediation is to occur on or before 13 August 2010; (5) the parties' acoustic consultants are to confer in accordance with the requirements of Pt 31 Div 2 of the UCPR and the Expert Witness Code of Conduct in the UCPR and are to prepare, file and serve a joint report by 4pm on 20 August 2010; (6) the parties are granted liberty to approach the Registrar forthwith to obtain, first, a suitable date for mediation on or before 13 August 2010, and second, a hearing date before Pepper J sometime after 27 August 2010 (estimate of one day); and (7) the parties have liberty to restore on one working days' notice. 28 Finally, the Court notes that it cannot, at this stage, imagine circumstances that would permit a third vacation of the hearing date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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