Rogers v Clarence Valley Council [2013] NSWLEC 194

Land and Environment Court New South Wales

Medium Neutral Citation: Rogers v Clarence Valley Council [2013] NSWLEC 194 Hearing dates: 21 and 21 August 2012, 11 June, 26 and 30 July, 1 November 2013 Decision date: 14 November 2013 Jurisdiction: Class 2 Before: Pepper J Decision: See orders at [64]. Catchwords: APPEAL: appeal against noise prevention notice - consent orders made - whether parties bound by consent orders - whether experts' reports were in compliance with consent orders. Legislation Cited: Protection of the Environment Operations Act 1997, s 96 Cases Cited: Meriden School v Pedavoli [2009] NSWLEC 183

Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168 Category: Principal judgment Parties: Sally Rogers (Applicant) Clarence Valley Council (Respondent) Representation: Mr C Adamson (Solicitor) (Applicant) Mr N Hogan (Respondent) Mr C Adamson (Applicant) Clarence Valley Council (Respondent) File Number(s): 20585 of 2012

Judgment

The Court Makes Orders for the Implementation of an Amended Noise Management Plan 1This judgment contains the reasons of the Court for the making of orders to implement an Amended Noise Management Plan ("ANMP"). 2The background to the making of these orders is lengthy and somewhat of a dog's breakfast but, as will become apparent, requires setting out in detail. It is as follows. 3The matter originally came before the Court as a challenge filed in Class 2 of the Court's jurisdiction by the applicant, Ms Sally Rogers, to a noise prevention notice issued by the respondent, Clarence Valley Council ("the council"), under s 96 of the Protection of the Environment Operations Act 1997 ("the POEOA"). 4The noise prevention notice had been issued by the council due to numerous complaints by neighbouring properties about the noise generated from barking dogs housed and cared for by Ms Rogers on her property at a no-kill animal shelter known as "Happy Paws Haven" ("Happy Paws"). The noise is said to be particularly problematic at night. 5Happy Paws is a not for profit operation. The time, financial and emotional commitment dedicated by Ms Rogers to the shelter and the welfare of the dogs housed in it is admirable and she is to be commended for it. 6Initially the central issue in the proceedings was the emission of dog noise from Mrs Rogers' premises where she lawfully operates Happy Paws (the lawfulness of the use was established in Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37). It is, of course, somewhat trite to note that dogs bark (especially anxious dogs) and that an animal shelter housing predominantly dogs (there is a cattery also present) will generate noise. The question the subject of the appeal was whether the noise was above acceptable limits under the POEOA. 7The matter was listed to be heard over two days in Grafton on 20 and 21 August 2012. The hearing included a site visit and, as stated above, evidence was taken from a number of objectors. The proceedings did not, however, conclude in the time allocated to hear it. 8In light of the fact that the matter was not finalised, on 21 August 2012 the Court ordered that it be mediated. The orders of the Court on that day were as follows ("the 21 August 2012 orders"): The Court orders that: 1. the Prevention Notice issued on 7 June 2012 under s 96 of the Protection of Environment Operations Act 1997 is stayed pending the determination of the appeal in these proceedings, subject to the following conditions: (a) the applicant is to have no more than 32 adult dogs (that is, dogs older than six months old) on the property the subject of the proceedings at any one time; and (b) the council is permitted to assist the applicant in the rehousing of the dogs; (2) the parties are to mediate this matter in good faith. Such mediation is to occur on or before 5 October 2012, before a Commissioner of the Court at Grafton. The parties are to advise the Associate to Pepper J by 5.00pm Thursday, 25 August 2012, of a range of suitable dates for the mediation; (3) the matter is stood over for further directions and the allocation of further hearing dates (the proceedings are part-heard before Pepper J) to 12 October 2012 at 4.00pm before Pepper J (by telephone); and (4) liberty to restore on 3 working days' notice. 9Order 1 was crafted pursuant to information given by Ms Rogers as to the number of dogs currently housed on her property. It was to ensure that no additional dogs were brought onto the property by her, thereby exacerbating the issue the subject of the appeal, namely, the noise generated by the dogs. What was not clear from the framing of the order was whether the total number of dogs stipulated in the order included Ms Rogers' personal pets. At that time the Court was informed that Ms Rogers had four dogs. The importance of this ambiguity is discussed further below. 10The orders were varied on 4 October 2012 to accommodate a later time period within which the mediation was to take place. Order 1 of the 21 August 2012 order was, however, confirmed by order 2 of the 4 October 2012 orders. 11The mediation was successful and the parties entered into consent orders reflecting both the position agreed to by them at the mediation and that subsequently refined before the Court during a protracted directions hearing. The purpose of the directions hearing was to clarify ambiguous language in the version of the orders drafted immediately after the mediation. 12As a consequence, on 29 October 2012 consent orders reflecting the agreement of the parties were entered into ("the consent orders"). These orders are annexed to this judgment at annexure 'A'. 13The gravamen of the orders was to the effect that the parties would submit to a process in which the Court would appoint two experts, namely, an acoustic expert (order 3) and an animal management or behaviour expert (order 9), to draft a noise management plan ("NMP") (order 13). Each party was ordered to submit in writing, together with curriculum vitae, the names of three acoustic and three animal behaviour experts and the Court was to appoint an expert in each field based on its assessment of the information before it. 14Crucially, it was a term of the consent orders that the parties agreed to be bound by the findings and recommendations of the experts as contained in the NMP (order 14). 15On 9 November 2012 the Court, pursuant to the process described above, appointed Mr Neil Gross as the acoustic expert and Dr Gaille Perry as the animal behaviour management expert. 16On 30 November 2012 Mr Gross handed down his report, which included noise attenuation recommendations ("the First Gross Acoustic Report"). 17On 21 December 2012 Dr Perry, having taken into account the First Gross Acoustic Report, handed down her report, together with a NMP containing recommendations to abate the noise emanating from Happy Paws. In the Introduction to the NMP, Dr Perry made the following statement: I conferred with Neil Gross, the Acoustic Expert on 10 December. Mr Gross informed me that his brief did not cover providing recommendations or in fact conferring with me at all and the conversation was brief. 18The NMP indicated that Ms Rogers could either modify the existing structures at Happy Paws to make them conform to the recommendations or she could construct new animal keeping facilities to achieve compliance. 19The NMP made 24 recommendations as follows: In summary please note the following recommendations 1. All external fencing should be constructed to attenuate noise and contain all animals on the property. 2. No dogs should be kept in the front two pens - one is required for effluent disposal and the other should be converted to a dog exercise and training area. 3. Dog numbers should be reduced to 2 per pen while a kennel block is constructed as close to the house as a building permit allows (number then to be determined by consultation with council). This should be as far as possible from the cattery while satisfying building regulations, both to remove a further stimulus to barking and to reduce stress on the cats. This is the best option to control both day and night time noise. 4. All fences dividing individual units should have solid fencing to at least 1.2 metres and solid or wire mesh to 2 metres. Preferred building materials for kennels are besser brick or brick, not metal fencing. The external walls of the kennel block should be solid to at least 2 metres. 5. At least two individual units should be fully endorsed (i.e. wire or some other form of roofing to contain climbers and jumpers. 6. At least two other individual units should have solid fencing 2 metres and lockable internal units to house dogs whose barking cannot be effectively managed by other means. 7. If it is determined by mutual agreement of the manager and Clarence Valley Council representatives that the existing sheds will be modified as recommended to sound-proof them, the reduction in numbers should be permanent unless permission is granted to build further sheds and subdivide the current yards. 8. No rescue dogs should be housed in the house yard with the manager's dogs. 9. The manager should keep a maximum of four dogs. Only two of these dogs should be loose in the house yard at any time. 10. It is recommended that a pen or kennel should be constructed in the house yard to house the other 2 dogs and all four dogs at high arousal times when barking is likely e.g. when visitors are expected. Otherwise they will need to be kept in the house. 11. The house yard should have a 1.8-2 metre solid fence to block the dogs' view of the driveway. 12. All dogs should be confined in the above sound attenuated kennels between the hours of 6.00pm and 7.00am weekdays and 6.00pm to 8.00am weekends and public holidays except to allow the entry of the manager, staff or the shelter veterinarian. 13. New dogs entering the shelter should be isolated for 3-5 days in individual kennels and runs. 14. The behaviour of each dog should receive a comprehensive investigation, either during this period in isolation or at the veterinary practice using a validated behaviour assessment test for all dogs. Those which do not pass this assessment should not be kept for rehoming. 15. If the manager wishes to house two dogs in one unit, they should be assessed for compatibility on leash in a neutral place. Ideally they should meet on a walk, then return to the shared housing, which is new to both of them, and enter it together to keep arousal levels manageable. 16. Written behaviour records, including barking issues and how they are managed, should be kept for each dog. 17. All dogs, including the manager's dogs, should be trained to the cue "quiet" using positive reinforcement methods. 18. Behaviour modification plans should be written for all dogs showing any undesirable behaviour, and continuing records kept to monitor their progress. 19. A daily enrichment program for every dog which included food toys, training and enclosure enrichment should be initiated and written records kept so the manager can ensure that all dogs have appropriate enrichment. 20. All dogs should receive a minimum of 15-20 minutes varied individual attention every day. This should include a walk, some training and passive activity (grooming, stroking, massage). 21. The manager should actively recruit new foster carers to reduce the number of dogs held at the facility. 22. An education program should be initiated for volunteers and foster carers, incorporating information on the care and management of dogs and cats and particularly the care and management of "special needs" dogs. 23. Close links should be established with other animal shelters with a view to mutual assistance in rehoming animals. 24. Dogs which have been held at the shelter or in foster care for 2 months should be re-evaluated for suitability of rehoming. If it is determined that they are still suitable a campaign should be launched with local newspapers, radio and TV stations to try to find a suitable home. No dog should be held indefinitely. 20It is fair to say that the 24 recommendations contained in the NMP were reasonably onerous and would, in addition to necessitating a considerable financial outlay by Ms Rogers to build the new sound-proofed dog kennels and to implement other noise abatement behavioural measures, cause the dog population of Happy Paws to be reduced dramatically, potentially posing a threat to its viability. 21Recommendation no 9 stipulated that Ms Rogers was to keep a maximum of four dogs as personal pets. This recommendation was made in ignorance of the ambiguity contained in the 21 August 2012 orders referred to above. 22The consent orders were formally entered on 20 March 2013. 23The council wrote to Ms Rogers several times seeking a timetable for the implementation of the measures contained in the NMP. Because no response was forthcoming, the council relisted the matter before the Court for resolution in conformity with order 16 of the consent orders. 24The matter came before the List Judge on 5 April 2013. On that day the matter was listed for hearing on 11 June 2013, and consequential orders were made by the List Judge for the preparation of the matter for hearing. These orders included the filing and serving of evidence by the parties. 25The council filed and served their evidence on time, whereas Ms Rogers did not. 26The matter was therefore relisted before the Court at the request of the council. Thus on 17 May 2013, new orders were made by the Court for the preparation of the matter. The hearing date of 11 June 2013 was confirmed. 27At the hearing on 11 June 2013, Ms Rogers relied upon an affidavit affirmed by herself on 31 May 2013. The affidavit deposed to the measures she had taken to comply with the NMP, namely, the steps she had implemented to sound-proof the existing kennels, to improve the fencing and to generally reduce the noise emanating from Happy Paws. She also detailed the considerable costs that completion of these measures had entailed and would in all likelihood entail in the future as compliance with the NMP continued. 28There is no doubt that considerable and genuine efforts had, as at that stage, been made by Ms Rogers to attenuate the noise generated by the dogs. 29In her affidavit, Ms Rogers referred to the possible removal of dogs at Happy Paws in order to comply with the recommendations contained in the NMP and the adverse impact that this would have on the operation of the shelter in terms of attracting donations and volunteers. She also stated that she "would not have agreed to the consent orders had my own pets been included". 30At the hearing Ms Rogers sought to rely on an additional expert acoustic report of Mr Nick Koikas sworn on 30 May 2013. Mr Koikas was an expert relied upon by Ms Rogers at the part-heard hearing in August 2012. The Court rejected the report in its entirety on the basis that its production was not in conformity with the consent orders and its reception into evidence would be unfair to the council. It should be noted in this regard that neither of the acoustic experts relied upon by the parties at the hearing in Grafton were appointed by the Court in order to avoid any suggestion of bias. 31In addition to the First Gross Acoustic Report, the council relied upon Dr Perry's report and the NMP, an affidavit of Mr Patrick Ridgway sworn 30 April 2013 and an affidavit of Mr Peter Birch, sworn the same day. 32Mr Ridgway is a Development Planner employed by the council. His affidavit did no more than state that the council had approved a development application from Ms Rogers to erect a 1.8m high opaque zincalume custom orb sheeting boundary fence around her property. The erection of the fencing was one of the recommendations contained in the NMP. 33Mr Birch is the Manager Environment and Open Spaces employed by the council. Apart from alleging non-compliance by Ms Rogers with the consent orders, the affidavit attached an email sent by Mr Chris Adamson, Ms Rogers' solicitor, on 15 February 2013, to Dr Perry querying, first, whether she had consulted with Mr Gross with respect to "each or any of" her recommendations, and second, asking "how did you determine that your recommendations complied with the design standards set down by Mr. Neil Gross?" 34Also attached was Dr Perry's response to Mr Adamson. It stated: As stated in my report I read the report I was given written by Neil Gross and spoke to him by telephone. He did not wish to comment further on his findings as this apparently was not part of his brief. However he did verify that the sheds currently used for housing the dogs at night could not ensure that Ms Rogers could comply with his recommendations and that the only way for her to do this was to provide totally soundproofed accommodation for the dogs. As I said in my report this would require extensive work to the existing buildings or, preferably, the construction of a kennel block similar to those used by boarding kennels and many shelters. All further recommendations were based on this premises and on my knowledge of dog behaviour and welfare. 35At the hearing, Mr Adamson relied on a document entitled "Plaintiff's Amended Statement of Facts and Contentions" filed 11 June 2013. The contents of the document were also stated to comprise Ms Rogers' submissions. The document stated as follows (it should be noted that Fact 1 would appear to be incorrect because the orders were made on 29 October 2012): Fact 1 Orders were made herein by Pepper J, on 4 October 212. CONTENTION 1 These Orders were final Orders and no further Orders can be made in these proceedings except as required by the Orders themselves. See Introductory note to the Orders. FACT 2 Order 22 gave each party liberty to restore on giving 3 days notice. CONTENTION 2 The purpose of giving liberty to restore was to enable to Court to resolve any disagreement about the "time frame" for implementation of the Noise Management Plan "NMP". FACT 3 3.1 A disagreement has arisen between the Plaintiff and the Defendant not just over the time frame for the implementation of the NMP but also about whether the whole or only part of NMP is binding upon the Plaintiff in the sense of having to be implemented by the Plaintiff. It is common ground that the only consultation between Neill Gross and Dr. Gail Perry was in respect of the need at night to soundproof the existing kennels or to erect a soundproof kennel block. CONTENTION 3 The Plaintiff submits that she is only bound to implement that part of the NMP which has been done "in consultation with the Acoustic Expert" Neill Gross as required by Order 13 namely that at night the kennels have to be soundproofed to the point required by the criteria laid down by Neil Gross. 3.3 The Defendant seeks to have the whole of the NMP implemented as set out in its proposed Orders. CONTENTION 3.1 The Plaintiff contends that the Court in these proceedings has no jurisdiction to resolve the "interpretative issue" by in effect making a declaration(s) or finding(s) about whether the whole or only part of the NMP is required under the Orders to be implemented by the Plaintiff CONTENTION 3.2 There being a real issue about the interpretation and effect of the Orders, that matter has to be dealt with in new proceedings. For example, by enforcement proceedings - such as contempt proceedings or proceedings for a declaration. CONTENTION 3.3 In the alternative If the Court finds that it has jurisdiction to determine the "interpretative" in these proceedings, the Plaintiff contends that in Order for the NMP to be binding upon her, the Orders must be complied with as read as a whole. Compliance with Order 13 is therefore a precondition of the need for the Plaintiff to implement the NMO insofar as the recommendations were not made "in consultation with" Neill Gross. CONTENTION 3.4 The Plaintiff further contends that she has already soundproofed the existing kennels where the HPH dogs are kept at night or is able to adequately soundproof the existing kennels - by October 2013. FACT 4 The kennel has already been further soundproofed. CONTENTION 4.1 The only orders now to be made is for a timetable for the remaining kennels to be further soundproofed as provided for by Order 13. FACT 5 The said Orders made herein on 22 October 2013 expressly refer to "Happy Paws Haven dogs" and make no mention to the dogs owned by the Plaintiff herself as her pets. CONTENTION 5.1 This Court has no power or jurisdiction to make any Orders in respect of the Plaintiff's own personal pets. 36In addition, short written submissions were filed by Ms Rogers on 11 June 2012. These did not take the matters raised in the Plaintiff's Amended Statement of Facts and Contentions much further. 37During the course of the hearing on 11 June 2013 (contrary to Dr Perry's recommended approach) Ms Rogers elected to modify the existing structures on her property, rather than construct new facilities. In so doing, this meant that in order to conform with the recommendation contained in the NMP, fewer dogs could be kept at Happy Paws. 38Consistent with the correspondence referred to above and Ms Rogers' Amended Statement of Facts and Contentions, at the hearing Mr Adamson argued that the required level of consultation between Mr Gross and Dr Perry giving rise to the NMP had not occurred. Apart from this complaint, and the issue of whether or not the NMP could apply to Ms Rogers' personal pets, no other contentions were formulated in submissions put by Ms Rogers as to why she could, or should, not be required to adhere to the content of the NMP. 39Based on the material contained in Dr Perry's report and the affidavit of Mr Birch, the Court agreed that there had been inadequate consultation. As a consequence, further orders were made by the Court requiring additional consultation between the two experts and the production of further supplementary reports, including an Amended Noise Management Plan ("ANMP"), to be filed. These orders are annexed to this judgment at annexure 'B' (the orders were made at the conclusion of the hearing and modified the following day) ("the 12 June 2013 orders"). 40As is apparent from the orders, in addition to the ANMP, the Court also requested clarification from Mr Gross of the First Gross Acoustic Report, in particular, an explanation of a compliance matrix in Table 3.2 of the Report that purported to represent, in his opinion, specific noise levels appropriate for the operation of Happy Paws "so as not to cause any unreasonable interference with the amenity of its neighbours". The clarification sought was to assist the Court to properly understand the First Gross Acoustic Report. 41The orders made on 12 June 2013 were not made by consent because Ms Rogers would not agree to be bound by an ANMP and did not accept that the number of dogs she kept as pets could be limited in any way. 42Consistent with the 12 June 2013 orders, an ANMP prepared by Dr Perry was filed on 18 July 2013. On the same day, Mr Gross filed a supplementary acoustic report providing further explanation of Table 3.2 in the First Gross Acoustic Report ("the Second Gross Acoustic Report") and another supplementary report providing an assessment of noise attenuation measures carried out by Ms Rogers ("the Third Gross Acoustic Report"). 43The ANMP noted that the consultation ordered had taken place and that Dr Perry had read the Third Gross Acoustic Report. The "Site Plan" referred to in the report was the same site plan attached to the development application lodged by Ms Rogers with the council in respect of the 1.8m high fence. 44The ANMP made the following 22 recommendations: My recommendations are 1. A kennel block is constructed as per the recommendation in my previous report. 2. If council and Ms Rogers agree that existing structures are to be used (not the recommended option), dog numbers must be reduced to 2 per pen in the pens indicated as being suitable for use. 3. If Sally wishes to keep dogs in dog yard 1 and dog yard 2, they must be divided into two (1a and 1b, 2a and 2b) - 1a and 2a, the 2 yards closes to the house to each house 2 dogs in sheds modified to Neil Gross's specifications. 4. No dogs must be kept in 1b and 2b - one may be required for effluent disposal, otherwise, with the other, it should be converted to a dog exercise and training area. These are the areas furthest from the house and closest to the road so hardest to control noise quickly. They should have gates from the laneway and solid fences so the entry and presence of dogs there does not cause barking from other yards. 5. All fences dividing individual yards must have solid fencing to at least 1.8 metres. 6. The 3 pens designated "single run" for short term housing must be modified as per Neil Gross's specifications and can then only be used to house dogs on entry to the shelter for 3-5 days or to provide temporary housing for a dog found to bark excessively for up to a week until they can be sent to foster care. They must not be used as permanent accommodation. 7. A management plan for dogs found to bark excessively should be produced so it can be adopted immediately if such a dog is identified. This should include management, training and referral options and must not include punishment. 8. No rescue dogs must be housed in the house yard with the manager's dogs. 9. The manager must not acquire any more dogs of her own - numbers must be reduced over time to a maximum of four dogs. 10. It is recommended that a pen or kennel be constructed in the house yard to house Sally's dogs at high arousal times when barking is likely e.g. when visitors are expected. Otherwise they will need to be kept in the house at those times. 11. All dogs must be confined in the above sound attenuated kennels between the hours of 6.00pm and 7.00am weekdays and 6.00pm and 8.00am weekends and public holidays except to allow for the entry of the manager, staff or the shelter veterinarian. 12. The behaviour of each dog must receive a comprehensive investigation, either during the period in isolation or at the veterinary practice using a validated behaviour assessment test before acceptance. Written records must be kept of this test for all dogs. Those which do not pass this assessment must not be accepted for rehoming. 13. If the manager wishes to house two dogs in one unit, they should be assessed for compatibility on leash in a neutral place. Ideally they should meet on a walk, then return to the shared housing, which is new to both of them, and enter it together to keep arousal levels manageable. 14. Written behaviour records, including barking issues and how they are managed, must be kept for each dog. 15. All dogs, including the manager's dogs, should be trained to the cue "quiet" using positive reinforcement methods - punishment using water does not alter the dogs' motivational state so is not successful long term and is not acceptable. 16. Behaviour modification plans must be written for all dogs showing any undesirable behaviour, and continuing records kept to monitor their progress. 17. A daily enrichment program for every dog which includes food toys, training and enclosure enrichment must be initiated and written records kept so the manager can ensure that all dogs have appropriate enrichment. 18. All dogs must receive a minimum of 15-20 minutes of varied individual attention every day. This should include a walk, some training and a passive activity (grooming, stroking and massage). 19. The manager should actively recruit new foster carers to reduce the number of dogs held at the facility. 20. An eduction program should be initiated for volunteers and foster carers, incorporating information on the care and management of dogs and cats and particularly the care and management of "special needs" dogs. 21. Close links should be established with other animal shelters with a view to mutual assistance in rehoming animals. 22. Dogs which have been held at the shelter or in foster care for 2 months should be re-evaluated for suitability of rehoming. If it is determined that they are still suitable a campaign should be launched with local newspapers, radio and TV stations to try to find a suitable home. No dog should be held indefinitely. 45In relation to the number of dogs to be held on the property, the ANMP stated (at page 10) that if Ms Rogers chose to build new kennels to house the dogs, rather than using and modifying existing sheds (as she had elected to do), the number of permitted dogs should be as follows: The number of dogs held on the property Maximum dog numbers will be calculated assuming existing sheds are used to house dogs and taking all of the above information into account. If Sally chooses to build kennels, numbers would need to be negotiated with the council. Numbers are · 2 dogs in Yard 1a · 2 dogs is yard 2a · 2 dogs in middle yard · 2 dogs (or pups over 3 months) in rear yard · One litter under 3 months in the puppy pen · 4 dogs in house yard. Up to 3 dogs can be held temporarily (under a week) in the 3 single runs, using the holding yard for exercise. Sally should liaise with a representative of the Clarence Valley council to establish the identity of any dogs she currently owns by microchip identification (as long as this number does not exceed 6). She should not be required to rehome any of these dogs which are her personal property but they must not be replaced if they are rehomed or die until numbers are under 4 and then numbers must be maintained at 4 or fewer. 46The orders made on 12 June 2013 required the parties to file by 19 July 2013, a set of draft orders to implement either the consent orders made on 29 October 2012 (referrable to the NMP), or the 12 June 2013 orders (referrable to the ANMP). In doing so, the Court observed that it was prepared to entertain a variation of the consent orders in order to accommodate the ANMP because the recommendations contained in the ANMP could prove more favourable to Ms Rogers. 47The council filed its set of draft orders. Ms Rogers, however, did no more than file a document requesting that the matter be set down for a further hearing and requesting that further expert reports be filed. Accompanying this document was a set of written submissions. 48The matter was listed for further directions on 26 July 2013. On this occasion, the Court expressed the view that it did not have the power to order a further hearing in the matter because the consent orders made on 29 October 2012 did not permit this course. Any "rescission" of those orders by Ms Rogers due to the conduct of the council or otherwise, was an issue that had to be ventilated in another set of proceedings in another jurisdiction. It was the opinion of the Court that the consent orders had effectively resolved the proceedings, subject to the mechanics of the implementation of those orders. Furthermore, even if the Court had the power to order another hearing, the Court would be disinclined to do so given Ms Rogers' agreement to be bound by the NMP. Absent a good reason why she should not be required to honour that agreement, it should, in my view, stand. Were it otherwise, it would undermine the integrity and finality of the settlement process that the parties had willingly entered into and the final terms of which they had willingly adopted and agreed to be bound by (for a recent discussion of the importance of the principle of the finality of litigation see Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168 at [14]-[18]). It would also cause significant legal costs to be thrown away. 49At the directions hearing on 26 July 2013, Ms Rogers raised both orally and in her written submissions, a new reason why the implementation of the consent orders was not possible, namely, that the reports of Mr Gross did not comply with order 7 of the consent orders insofar as he had not set out the specified decibel criteria in his report and had employed the wrong standard in determining whether the noise was "offensive" because he had failed to have regard to the Industrial Noise Policy ("INP") or the Noise Guide for Local Government ("NGLG") (both New South Wales documents), in particular section "2.2.1" of the latter document, which purportedly states that intrusive noise is not to be equated with offensive noise (neither a copy of the NGLG nor the INP were ever provided by Ms Rogers to the Court). Ms Rogers relied upon the decision in Meriden School v Pedavoli [2009] NSWLEC 183 to argue that the noise emanating from Happy Paws was not offensive. Finally, she complained that "the tables set down by Mr Gross are virtually impossible to test and enforce". 50Leaving aside the fact that at no prior point in time were these issues ever agitated by Ms Rogers, a review of Mr Gross' reports reveals that, in any event, her contentions cannot be maintained: (a)first, even if this information was not provided in the First Gross Acoustic Report - which it was (see section "3 Recommended Noise Limits") - in the Second Gross Acoustic Report, Mr Gross in fact set out in decibel terms the specific noise levels that were, in his opinion, appropriate for the operation of Happy Paws so as not to cause the shelter to unreasonably interfere with the amenity of its neighbours. This was: no barks greater than 60dBA at night and, during daytime, only two barks in any 15 minutes if one of those barks exceeds 60dBA. Further elaboration of these criteria was provided for, again expressed in decibels, in the Third Gross Acoustic Report; (b)second, both the INP and the NGLG were expressly considered by Mr Gross in his First Acoustic Report (section "3.2 EPA Noise Criteria") as "the most appropriate approach" to assess noise intrusiveness and sleep disturbance. Although Mr Gross referred only to "INP" and "NGLG" in his First Acoustic Report, I readily infer that these acronyms stand for the INP and the NGLG defined above; (c)third, Mr Gross was never asked to, and thus did not, determine whether or not the noise was "offensive" under the POEOA or any other statutory instrument. Rather, he was, by the terms of the consent orders, tasked with determining noise standards that were appropriate for the operation of Happy Paws (and not some other use of the land) "so as not to cause it to unreasonably interfere with the amenity of its neighbours pursuant to the" POEOA. A fair reading of his reports reveals that this is what he did; (d)fourth, Meriden School concerned an application by a private individual seeking a noise abatement order on the basis that the noise emanating from a school was "offensive" as that term was defined under the POEOA. The Court had regard to the NGLG and the checklist for consideration of offensive noise and held that it was not. But the facts of that decision are far removed from those of the present proceedings. In this case, as stated above, neither the Court nor the experts were asked by the parties to opine whether the noise generated by the dogs at Happy Paws was "offensive" under the POEOA. For Mr Gross to not turn his mind to this question does not render his reports non-compliant with order 7 of the consent orders as alleged by Ms Rogers; and (e)fifth, in light of the instructions given to Mr Gross as contained in the consent orders, it is difficult to understand the complaint Ms Rogers makes in relation to the tables contained in each of Mr Gross' acoustic reports. In any event, in my opinion, subject to the clarification necessitated by the opacity of Table 3.2 in his First Acoustic Report (which was the subject of the Second Acoustic Report), the tables are, to the extent applicable, amenable to scrutiny and ultimately to enforcement. 51Finally, the complaint by Ms Rogers that Mr Gross and Dr Perry are seeking to place restrictions on the lawful operation of Happy Paws without finding some "special circumstances" justifying their imposition, given that Happy Paws is permitted to keep dogs on the property and its use as a shelter is permissible without consent, is, in my opinion, misconceived. No requirement that there be "special circumstances" is imposed by the consent orders, or, for that matter, by the POEOA. Moreover, at no point has either Mr Gross or Dr Perry ever suggested that Happy Paws was operating unlawfully, and neither the discussion contained in their respective reports nor the recommendations contained in either the NMP or ANMP have been framed on this basis. 52In the result, on 26 July 2013 the Court only had before it the draft orders proffered by the council. Concomitant orders had not been filed by Ms Rogers. This left the Court in a difficult position. Accordingly, the Court ordered that Ms Rogers provide a draft set of orders to implement either the NMP or the ANMP by 5.00pm Monday, 29 July 2013 and the matter was stood over to 30 July 2013. 53Ms Rogers filed proposed orders by the due date. The orders sought were of little utility or assistance to the Court. They are typified by the first order which stated that: That within 21 days from the date of these Orders the Second Defendant file and serve on the Plaintiff and the First Defendant, and the Third Defendant a report complying with Order 7 of the Orders made on 22 October 2012 in Land and Environment Court of NSW file number 2012/20585 such report to be on the basis that the activity operated at Happy Paws Haven is a use conducted as of right and on the basis that the conduct of the activity of keeping dogs cannot be said to unreasonably interfere with the amenity of the area unless the noise from barking noise is by reason of its level, nature, character or quality, or at the time at which it is made is harmful or is likely to be harmful to a person who is outside the premises of Happy Paws Haven and to detail noise standards in decibel terms accordingly. 54It is presumed that the references to the "Second" and "Third" "Defendants" is a reference to the council, otherwise the proposed order is meaningless, there being no other parties to the proceedings than Ms Rogers and the council. It is also presumed that the orders referred to are in fact the consent orders made on 29 October 2012. 55The matter came back before the Court on 30 July 2013 for final submissions by the parties. On that occasion, Mr Adamson expressly stated that he did not seek to set aside the orders made by consent on 29 October 2012 and submitted that the Court should make the orders proposed by Ms Rogers in the document referred to above.