Meriden School v Pedavoli [2009] NSWLEC 183

Land and Environment Court of New South Wales

CITATION : Meriden School v Pedavoli [2009] NSWLEC 183

APPLICANT PARTIES : Meriden School RESPONDENT Joe Pedavoli

FILE NUMBER(S) : 10389 of 2009

CORAM: Pain J

KEY ISSUES: APPEAL :- appeal against noise abatement order made by local court - whether noise from school offensive - appeal upheld and order set aside

Land and Environment Court Act 1979 s 17 LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 268, 290 Protection of the Environment Operations (Noise Control) Regulation 2008

CASES CITED: Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146

DATES OF HEARING: 20 October 2009 21 October 2009

DATE OF JUDGMENT: 22 October 2009

APPLICANT Mr N Hemmings QC SOLICITORS LEGAL REPRESENTATIVES: Allens Arthur Robinson RESPONDENT Mr R Nair SOLICITORS Legal & Company

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

22 October 2009

10389 of 2009 Meriden School v Pedavoli

JUDGMENT 1 Her Honour: Mr Joe Pedavoli (the Respondent), his wife and two members of his family live at Vernon Street, Strathfield. Members of the Respondent's family have lived at the site for around 38 years. At the time of purchase of the property by the Respondent, the Applicant Meriden School, (the school) was located to the rear of their property although at a much lesser scale than currently exists. Currently, the school owns the properties to the north, south and east of the Respondent's property which together form the school's junior campus and is bordered by Redmyre Road, Margaret Street and Vernon Street. The area to the north of the Respondent's property is used as an access to the school and contains pedestrian paths and landscaped gardens. A pedestrian walkway at the southern end of the U-shaped school building is located to the east. A dwelling of similar style and size to the Respondent's dwelling is located directly to the south and is currently used as the residence for the school principal. To the north-east of the Respondent's dwelling and located inside the U-shaped school building is an open area used for outdoor activities for the schoolchildren known as the Jobling lawn. The senior school campus is very close by and lies to the east of the junior school on the corner of Redmyre Road and Margaret Street. 2 The Court visited the school's junior and senior school campuses on the first day of hearing. I thank Commissioner Brown for his assistance in this matter. 3 On other boundaries of the junior school privately owned residences, flats and a retirement home are located. Across Margaret Street are several blocks of units. Other schools in the nearby area include St Martha's Girls Primary School, Santa Sabina College and Strathfield Girls High. The land on which the school is located is zoned Residential 2(b) and flats and schools are permitted uses. The Respondent's property is also zoned Residential 2(b). 4 The school has appealed against a noise abatement order made by Burwood Local Court on 24 April 2009. The order was made on the application of the Respondent in this matter, a private citizen, by a magistrate pursuant to s 268 of the Protection of the Environment Operations Act 1997 (the POEO Act). The order provides for, inter alia, the construction of a 5m acoustic barrier on the school's property, glazing of specified windows, installation of mechanical ventilation, limitations on the number of children and permissible activities on the Jobling lawn, restricted use of yard maintenance equipment and restrictions on the level of noise permissible from children's play activities. The sources of noise the subject of the order were children playing on the Jobling lawn in the morning (before school), at recess, at lunch time and after school and at other times and also the use of maintenance machinery such as leaf blowers, edge trimmers and lawn mowers and water gurneys during school holidays. The orders from the magistrate provided no declaration on whether the noise was defined an "offensive noise" under the POEO Act.