Land and Environment Court New South Wales Medium Neutral Citation: Webber v Parramatta City Council [2014] NSWLEC 1065 Hearing dates: 8 April 2014 Decision date: 11 April 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld in part Catchwords: Prevention Notice, whether activity conducted in an environmentally unsatisfactory manner, offensive noise Legislation Cited: Protection of the Environment Operations Act 1997; Parramatta Local Environmental Plan 2011; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979 Texts Cited: NSW Industrial Noise Policy Category: Principal judgment Parties: Pam Webber (Applicant) Parramatta City Council (Respondent) Representation: Ms P Webber, Litigant in Person Mr A Gough, Storey and Gough File Number(s): 10745 of 2013 Judgment 1Parramatta City Council issued a Prevention Notice pursuant to the provisions of Section 96(2) of the Protection of the Environment Operations Act 1997 (POEO Act) to Mrs Webber on 3 September 2013 in relation to the movement of horses to and from premises at 20 Hope Street Rosehill. As provided in s 289(1) of that Act, Mrs Webber has appealed against the provisions of the notice. The site 2The site is located on the southern side of Hope Street, a street that intersects with James Ruse Drive at its eastern end. The Rosehill Racecourse is located opposite this intersection, a distance of approximately 270m front the site. The track training hours for the racecourse are 4.30am to 8.30am Monday to Saturday. 3A dwelling house, eight horse stables and a tack/feed room are contained on the site. Development within Hope Street is predominantly residential however there are a number of stable complexes in proximity to the site. The area is in transition to higher density residential, having been rezoned in 2011. 4The site is zoned R4 High Density Residential under Parramatta Local Environmental Plan 2011 and the use is consistent with the definition of animal boarding or training establishment as defined in the Dictionary to that plan, as follows: animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. 5Animal boarding or training establishments are prohibited in the R4 zone. Background 6According to the applicant's Statement of Facts and Contentions (Exhibit A) and the council's Bundle of Documents (Exhibit 2), the site has contained stables for some 40 years. Ms Webber has been conducting the business of racehorse stabling and training for approximately 6 years from the premises, operating on a commercial basis. Up to four persons are employed at the site. Prior to Ms Webber occupying the site, the stables had not been used for approximately 13 years. 7It is common ground that the premises operate as an existing use in accordance with the provisions of s106 of the Environmental Planning and Assessment Act 1979 (EPA Act). The stable use is conducted independently to the residential use of the dwelling house with Ms Webber leasing the stables and the dwelling tenanted by others. 8On 13 May 2013 the council received a complaint from an adjoining neighbour regarding the noise impact of horses being taken down the western side boundary of the site daily between 4am and 8.30am. Its officers investigated the complaint and, served a notice of intention to serve a "Direction to Take Prevention Action" Notice on 15 August 2013. Mrs Webber made representations to the council in response to that notice however, those representations did not resolve the council's issues. On 3 September 2013, the council served the original prevention notice. Mrs Webber lodged this appeal on 24 September 2013. On 7 November 2013, the council served a notice of variation pursuant to s110 of the POEO Act, having recognised an error in the original notice that had not removed the "Draft" watermark from the document. There is no dispute between the parties in relation to the terms of the notice. 9The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 conducted by another Commissioner of the Court. Resolution of the issues could not be reached and the conference was terminated. The regulatory framework 10Chapter 4 of the POEO Act concerns "Environment Protection Notices", defined in the Dictionary to the Act as "means a clean-up notice, prevention notice or prohibition notice issued under Chapter 4 and in force". Prevention notices are provided for in Pt 4.3 of Ch 4. Section 95 provides that an activity would be carried out in an environmentally unsatisfactory manner if: (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice. 11Section 96 of the POEO Act is in the following terms: (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following: (a) installing, repairing, altering, replacing, maintaining or operating control equipment or other plant, (b) modifying, or carrying out any work on, plant, (c) ceasing to use plant or altering the way plant is used, (d) ceasing to carry on or not commencing to carry on an activity, (e) carrying on an activity in a particular manner, (f) carrying on an activity only during particular times, (g) monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution, (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, (i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste, (j) reviewing the carrying out of an activity. (3A) .... (4) Occupier's duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken. (5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice. 12The POEO Act Dictionary includes the following definitions which are relevant to the case: activity means an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal). harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a)that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations. occupier of premises means the person who has the management or control of the premises. offensive noise means noise: (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations pollution means: (a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution. pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise. premises includes: (a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a mobile plant, vehicle, vessel or aircraft. The Notice 13The terms of the Prevention Notice are: 1. Immediately cease the movement of horses along the western side of the premises between the hours of 10.00pm - 7.00am on any day. OR 2. Engage a suitably qualified acoustic consultant to conduct a noise impact assessment of the subject activity (movement of horses) at the premises to adequately demonstrate that the activity conducted within the hours of 10.00pm - 7.00am does not cause offensive noise as defined by the Protection of the Environment Operations Act 1997. 3. Submit a copy of this report to Council upon completion for review and concurrence. If it is found that offensive noise is occurring as a result of the activity, advice is to be sought from the acoustic consultant on appropriate mitigation measures to be installed (if possible) such that the offensive noise is reduced to an acceptable level. 14The cessation of use was to be immediate and not to recommence until such time as a report is submitted that demonstrates that the activity is not resulting in the occurrence of offensive noise. The current situation 15Ms Webber continues to use the property and has appealed the notice. Section 289 of the POEO provides appeal provisions in the following terms. (1) A person served with a prevention notice may, within 21 days (or such other period as is prescribed instead by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice. (1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against. (2) There is no appeal against a decision of an appropriate regulatory authority to extend the time for complying with a prevention notice. (3) For the purposes of this section, a prevention notice is a notice under Part 4.3, and includes a notice that varies such a prevention notice. 16Ms Webber describes her use of the site as stabling up to eight horses. The horses are transported to the racecourse each morning. This occurs initially at 4.30am when the first group are led down the driveway to a horse float that is parked on the roadway adjacent to the site. The float is then driven to the racecourse where the horses are trained. That group returns at 6am and the second group taken to the track, trained and return at 7.30am. For this to occur, Ms Webber and her staff arrive at the site prior to 4.30am, usually around 3 - 3.30am, open the side gate and access the stables. During the day, maintenance of the horses and stables occurs. 17The alternate to ceasing the use and engage an appropriately qualified acoustic consultant to conduct an noise impact assessment as provided in Item 2 of the Notice, has not occurred because Ms Webber advised she could not afford the cost however she did have a university student undertake some noise readings and test noise associated with horses moving across synthetic grass topped with sand. None of this information was tendered during the proceedings. She did tender a document entitled Horse Transfer Management Plan, a document she prepared that proposes the continuation of horse movements along the driveway 3 or 4 times a morning between the hours of 4am and 9am, Monday to Saturday and between 6am and 8am on some Sundays with the synthetic grass installed to address the noise issue. In addition, it is intended to line the horse ramp with coconut matting, the floor of the trailer with clean straw and move the horses across the front grassed area rather than the footpath. 18As an interim measure, Ms Webber has put down straw along part of the driveway area and has rubber matting in other places in an attempt to address noise issues. The issues 19The contentions in the case are that the noise associated with the activity conducted on the site by Ms Webber gives rise to offensive noise as defined in the POEO Act, that the activity is carried out in an environmentally unsatisfactory manner and that insufficient information has been provided to allow proper assessment of any proposed ameliorative measures. The evidence 20The hearing commenced on site with evidence heard from the neighbour who lodged noise complaints to the council. The issues raised are: * The noise has been an issue over the past 6 years however they have only complained in the last year because all family members are affected by the noise and find it impossible to sleep. * Persons arriving at the site at 3am and 3.30am. * Family has attempted to live with the noise by using earplugs, noise machines, adjusting time they go to bed and wake up, going to work 3 hours before starting time, but this hasn't worked, particularly when the children started school. * Children have fallen asleep at school, had to attend sick bay. * Objector is receiving treatment for a psychiatric condition brought on by sleep deprivation. * The use of straw on the driveway works when freshly laid but has led to odour and insect issues. * Loading the horses onto the trailer is noisy, described as being like a "canon". * The noise of the horses, opening the gate, trailer and people talking has led to sleep deprivation. 21A noise diary and statutory declaration prepared by a resident of No 22A Hope Street and a petition signed by residents of 4 properties in Hope Street, which calls for the cessation of the activity at 20 Hope Street due to offensive noise, is included in the Council's Bundle of Documents, Exhibit 2. The Court notes that two of those properties have been demolished since the petition was lodged and are now the subject of redevelopment for the purposes of a residential flat building. 22At the site view, Ms Webber walked a horse from the stables, down the concrete section of the driveway, proceeded across the straw covered section to the matting, across the front grassed area and loaded the horse onto the float parked on the roadway adjacent to the site. This provided the Court and the parties an opportunity to hear the noise and assess the time taken to move one horse. 23Expert evidence was heard from Mr S Pike, a senior environmental health officer employed by the council. 24Mr Pike has not taken any acoustic measurements at the site however has concluded from his observations that the noise from moving horses in the early hours of the morning is not being undertaken in an environmentally satisfactory manner. This conclusion is based on the ongoing complaints received by the council from members of the community, the noise diary, the inspection he undertook on 27 June 2013, the noise criteria under the NSW Industrial Noise Policy and the likely and actual impacts of the noise upon the environment and amenity of the residents. It was on this basis he issued the Prevention Notice. 25Mr Pike says that whilst the straw placed along the driveway does reduce noise, at the time he inspected the site, it was not in place and concrete was exposed. He says that because it is a vegetative material it would decompose and in rain events, it would wash away with the potential to cause a pollution incident. 26Ms Webber was cross-examined by Mr Gough for the council in relation to the proposed Horse Transfer Plan (HTP). The intent of the plan is to address the noise issues. She was unable to advise of the type of equipment used to test the synthetic grass proposal in the driveway, whether the equipment had been calibrated prior to use, the background noise levels at the time of testing, the noise resulting from the testing, the time over which the background noise was measured or any other details other than she thought the background noise was around 38dBa and the noise of moving horses across the material added around 5dBa. 27Ms Webber indicated that she was not prepared to spend money on the site due to the uncertainty associated with her lease of the stables, the terms of which she was unsure, but thought was on a month to month basis as the lease had expired. That was because of the likely redevelopment of the site in accordance with a development consent issued by the council for the demolition of the stables and construction of a residential flat building at Nos 18-22 Hope Street. This consent includes the site and the main complainants' site. Initially she indicated that it was likely that she would have to leave the site by May 2014 and had found alternate premises however, on further questioning, she confirmed that it could be a year or longer until the redevelopment commenced. It is her desire to stay at the site for as long as possible due to the costs associated with moving from the premises. In response to Mr Gough's question in relation to the proposed limitation on the cost of mitigation works outlined in the HTP, Ms Webber indicated that she had been advised that this would be no more than $2,000. Conclusion and findings 28Section 292 of the POEO Act provides: Determination of appeals (1) A court to which an appeal is made under this Act may hear and determine the appeal. (2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal. 29The matter before the Court is whether the Prevention Notice should be confirmed, revoked or modified. The application filed seeks its revocation or to allow a period of three months to relocate the business. 30For the purposes of the POEO Act, I am satisfied that the council is the appropriate regulatory authority for the Notice pursuant to s6, that the applicant is the occupier for the purposes of issuing the Notice and is carrying out an activity at the premises. 31With regard to the evidence, I am satisfied that the activity is being conducted in environmentally unsatisfactory manner because it is not carried out to prevent, control or minimise the emission of noise, nor is it carried out in accordance with good environmental practice. It is clear that the movement of horses results in offensive noise to the residents of the adjoining property as, based on the evidence of the neighbour, the noise interferes unreasonably with the comfort and repose of the occupants of the adjoining premises. 32Ms Webber is unable to demonstrate that any of the mitigation measures proposed will address the offensive noise with certainty. There is no quantifiable evidence that the measures proposed in the HTP will achieve the noise goals set in the Industrial Noise Policy for night time hours. No consideration has been given to the issue of sleep disturbance and no acoustic report has been commissioned as was the option provided by the council when the notice was issued. It would not be appropriate for the Court to vary the Notice as proposed by Ms Webber unless there is certainty that the works included in the notice would result in the activity being conducted in an environmentally satisfactory manner and without the omission of offensive noise. 33Having found that the activity conducted on the premises is being conducted in an environmentally unsatisfactory manner and results in offensive noise, it is not appropriate to revoke the Notice. However, as Ms Webber and her employees rely on the activity conducted at the premises for their livelihood, I consider that it is appropriate to allow some time for Ms Webber to either relocate her business or carry out the necessary acoustic assessment and implement the recommendations of that assessment provided it can be demonstrated that the works will ensure the activity can be conducted without emitting any offensive noise. A reasonable time for this to occur is 30 days from the date of this judgment. This would require amendment to Item 1 of the Direction and Timeframe included in the Notice. Item 2, 3 and 4 and 2 respectively would not change. 34Accordingly, the Notice should be confirmed but the timeframe varied to provide a 30 day period to provide for a qualified acoustic consultant to undertake the works required and detailed in Item 1 of the Notice under the heading Timeframe. In the event that this does not occur, the use of the site for the movement of horses along the westerns side of the premises between the hours of 10pm and 7am daily would have to cease. It is important to note that s97 of the POEP Act provides for maximum penalties for failure to comply with a prevention notice. That penalty, in the case of an individual is a maximum of $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues could be imposed. Whilst these are the maximum allowed under the Act, it does reflect the serious nature of failing to comply with a Notice. Orders 35The Orders of the Court are: (1)The appeal is upheld in part. (2)Prevention Notice issued by Parramatta City Council on 7 November 2013 pursuant to s 96 of the Protection of the Environment Operations Act 1979 for the property at 20 Hope Street, Rosehill is confirmed but with the timeframe in Items 1 of that Notice is varied to read "Within 30 days from the date of the orders of the Court". (3)The exhibits, other than exhibits A and 1, can be returned. ________________ Sue Morris Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2014