Land and Environment Court New South Wales Medium Neutral Citation: Sessions v Penrith City Council [2017] NSWLEC 1328 Hearing dates: 22 May 2017, 9 and 14 June 2017 Date of orders: 14 June 2017 Decision date: 14 June 2017 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the appeal against the Directive dated 2 September 2016 issued by Penrith City Council to Sammy-Jo Sessions and Blake Drew under section 96 of that Act is upheld and the Directive is modified in accordance with Annexure A. Catchwords: APPEAL - Prevention notice – activity carried on in an environmentally unsatisfactory manner – noise complaints – activity of operation of a gym - whether noise "offensive noise" - whether activity carried on by such practicable means to minimise emission of noise - terms of prevention notice – prevention notice provided in accordance with agreement – prevention notice issued with varied time period for submission of noise assessment report and management plan Legislation Cited: Land and Environment Court Act 1979 s 39 Protection of the Environment Operations Act 1997 ss 95, 96 Category: Principal judgment Parties: Sammy-Jo Sessions First Applicant Drew Blake Second Applicant Penrith City Council Respondent Representation: Solicitors: Herbert Weller (First and Second Applicants) Chris Drury, Sparke Helmore (Respondent) File Number(s): 2016/284230 Judgment 1. COMMISSIONER: The applicants, Ms Sessions and Mr Drew, operate a gym on the ground floor of a mixed use building at 56-66 Lakeside Drive, Jordan Springs. The gym operates 24 hours each day for 7 days a week, consistent with the development consent. There are residential units above the ground floor, the occupants of which complain about the noise from the gym, particularly at night. The applicants appealed under s 289 of the Protection of the Environment Operations Act 1997 ("POEO Act") against a prevention notice issued by Penrith City Council ("the Council") directing the applicants, firstly, to take certain steps to reduce the emission of noise between the hours of 10:00pm and 7am and, secondly, to engage a suitably qualified consultant to assess the noise and vibration, prepare a noise and vibration impact assessment report, and prepare a management plan. On 14 June 2017 I made orders upholding the appeal but varying the direction in the prevention notice only to the extent of the time period within which to obtain the noise and vibration impact assessment report, and the management plan. These are the reasons for those orders. The hearing 1. The hearing of the appeal commenced by site inspection. Following the completion of the site inspection, the parties indicated to the Court that they had agreed that the prevention notice be issued in the same terms as that issued by the Council, but with amendments to the time within which the applicants are required to obtain the assessment report and the management plan. The agreement that was communicated to the Court was that there would be a 21 day period for the applicants to provide the acoustic report and the management plan, and 7 days for the Council to provide a response. To give effect to the agreement, the Court must be satisfied that it is appropriate to issue the prevention notice in accordance with the terms of the agreement, and, if so, uphold the appeal under s 289 of the POEO Act and vary the prevention notice accordingly. 2. I therefore proceeded to hear the appeal as a consent orders hearing, and heard submissions on behalf of the Council. Despite an opportunity given to the applicants for submissions to be made on their behalf, no submissions were made other than to agree with the issue of the prevention notice. I then reserved my decision subject to a direction for the parties to file the agreed amended prevention notice and the notes recording the residents' on site evidence within 10 days. 3. However, no amended prevention notice was filed and, one week following the date by which it was directed to be filed, the applicants forwarded to the Court a copy of correspondence of the same date sent to the Council advising that "Once the [acoustic] report is received, I will communicate with you regarding the Amended Notice". As I result, I listed the appeal for further mention on 9 June 2017. On that occasion a draft amended prevention notice was provided to the Court by the Council, and it was communicated to me by counsel for the applicants that they did not agree to changes to clauses 4 and 5 of the notice (which were the changes communicated to the Court as being agreed following the site inspection). On the application of the applicants, the appeal was stood over to allow further instructions to be obtained. On 14 June 2017, counsel for the applicants was again unable to assist the Court as to why the applicants did not agree to the changes to clauses 4 and 5 of the prevention notice, or what aspect was not agreed, and no submissions were made in relation to those changes, other than the making of an assertion that the prevention notice will cause the applicants to close down their business. No application was made to re-open the hearing of the appeal. 4. For the reasons set out below, I accept that it is appropriate for the prevention notice to be issued subject to changes to the time period for providing the noise and vibration impact assessment report and an operational noise and vibration management plan. The time period for the former is moot in circumstances where it was provided to the Council's solicitor and to the Court on the re-listing of the appeal. Further, I accept that the amended prevention notice provided to the Court by the Council reflects the agreement that was communicated to the Court following the site inspection. Statutory context 1. The prevention notice is issued pursuant to s 96 of the Protection of the Environment Operations Act 1997 ("POEO Act"), which allows a direction to be issued (under s 96(1)) "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." 2. The meaning of 'environmentally unsatisfactory manner' is set out in s 95 of the POEO Act, which provides: "For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if: (a) … (b) … (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) …" 1. The prevention notice allows the regulatory authority to direct the person carrying on the activity to take certain action "to ensure that the activity is carried on in future in an environmentally satisfactory manner" (s 96(2)). 2. The prevention notice was issued on 2 September 2016 and requires the applicant to take the following steps: 1. Within 7 days of the Prevention Notice issue date - the following interim controls measures are to be implemented until Preventive Action Number 5 (below) has been satisfied: a) The sound on all televisions (or any other amplified device) is to be muted, or kept at a volume level that will not be audible in the residential unitsabove the gym between the hours of 10pm and 7am. Measures are alsoto be taken to prevent patrons from adjusting the sound level of televisions(or other amplified devices) during this time. Please note: the noise assessment conducted by Council Officers on 12 August 2016 indicated that the sound level of existing televisions should be set to a volume level of 30 or below to minimise impacts on the above residential units. b) The dropping of free weights on the floor is to be prevented between thehours of 10pm and 7am. Please note: if patrons do not follow instructions and signage to prevent the dropping of free weights then staffing and/or restricting access to free weights will need to occur during these times. c) The use of battle ropes is to be prevented between the hours of 10pm and7am. Please note: it is acknowledged that ropes will be removed at the completion of staffed hours and secured as described in the representation from Plus Fitness, Jordan Springs dated 29 August 2016, d) The use of treadmills is to be prevented between the hours of 10pm and7am. Please note: if patrons do not follow instructions and signage restricting the use of treadmills then staffing and/or restricting access to treadmills will need to occur during these times. e) A complaint phone number and email address are to be provided to residents living in units located above the gym at 56-66 Lakeside Parade, Jordan Springs, The details of ail complaints received in relation to noise and vibration impacts between the hours of 10pm and 7am (including the person complaining, time, date and nature of the complaint) must be recorded. The actions taken to resolve the complaint and the time taken to resolve the complaint must also be recorded. These complaint records are to be made available to Penrith City Council on request. Please note: Complainants will be encouraged by Council to report their concerns directly to Pius Fitness, Jordan Springs in the first instance using the complaint phone number or email address. The purpose of this requirement is: (i) to allow Plus Fitness. Jordan Springs the opportunity to resolve a complaint promptly before Council has the need to consider further regulatory action in relation to non-compliance with this notice (ii) for Plus Fitness, Jordan Springs to demonstrate to Council that it responds to complaints in a satisfactory manner (iii) for Pius Fitness, Jordan Springs to use complaint information to improve operational noise and vibration control practices 2. Within 7 days of the Prevention Notice issue date - a suitably qualified consultant is to be engaged to assess the operational noise and vibration impacts of the gym on residents living in units above the gym at 56-66 Lakeside Parade, Jordan Springs. 3. Within 60 days of the Prevention Notice issue date - the suitably qualified consultant (as referred to in Prevention Action Number 1) is to provide a Noise and Vibration Impact Assessment report to Penrith City Council including recommendations to control any impacts on residents from the gym activities. The report should give consideration to the requirements of the NSW EPA's Industrial Noise Policy and standards relevant to the assessment of noise and vibration. 4. Within 60 days of the Prevention Notice issue date - the same consultant is to provide an Operational Noise and Vibration Management Plan to Penrith City Council for approval detailing recommended controls the gym needs to implement to minimise impacts on residents living in units above the gym at 56-66 Lakeside Parade, Jordan Springs. 5. Immediately on receiving written notice from Penrith City Council regarding approval of the Operational Noise and Vibration Management Plan - the approved Operational Noise and Vibration Management Plan is to be implemented. 1. The applicant filed a Statement of Facts and Contentions on 10 January 2017, although the document attaching the coversheet for the same referred to it being a 'draft'. Of the contentions raised, only one goes to the reasonableness of the prevention notice. That contention is that "[t]he noise level from the centre is not considered offensive as defined by the Protection of the Environment Operations Act 1997." 2. It is clear from the wording of s 95 that the noise need not be offensive to meet the criteria to issue a noise prevention notice. Insofar as it relates to noise, the test is merely whether the activity "is not carried on by such practicable means as may be necessary to prevent, control or minimise… the emission of any noise." 3. Notwithstanding this, s 95 does include within the meaning of environmentally unsatisfactory manner an activity that "is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution". The definition of 'pollution' includes noise pollution, which is defined as the emission of offensive noise. 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." Role of the Court on appeal 1. In considering the appeal, the role of the Court is to re-exercise the functions of the regulatory authority, the Council, in determining, firstly, whether the prevention notice should be issued and secondly, the appropriate terms of such a notice (ss 289 and 292 of the POEO Act and s 39 of the Land and Environment Court Act 1979). To issue the notice I must reasonably suspect that the gym is not managing its activities by such practicable means as may be necessary to prevent, control or minimise either offensive noise or the "emission of any noise". If I am so satisfied, I then must consider whether I ought to exercise the discretion to issue the notice, and if so, on what terms. Background 1. The gym commenced operation on 20 May 2016. On 25 May 2016, the first written complaint by an occupant of the residential units above the gym was made to the Council and to the applicants regarding the noise emitted from the gym, particularly between the hours of 10pm and 8am, and reporting sleep disturbances from around 4:45am. Further complaints were received from the same and other occupants throughout June, July and August 2016. 2. In June and July 2016, the applicants took steps to minimise the noise emitted. They placed signs around the gym asking gym users to reduce noise, and installed springs on the pin loaded weight lifting equipment to reduce the noise created by the weights dropping in the use of the equipment. They also closed the gym for a number of days in July 2016 to install new rubber flooring in the area where free weights are used. 3. Despite these steps, the complaints continued and on 12 August 2016 the Council conducted a noise assessment. The noise assessment was conducted by three council officers, and considered whether the noise could be considered 'offensive noise' under the POEO Act. Rather than using a sound level meter, the assessment considered audibility, duration and inherent offensiveness of a range of noises emitted from or associated with the gym. To carry out the assessment, one council officer carried out each given activity and two council officers assessed the noise from the bedroom of a residential unit above the gym. The report found that the noise was offensive and on the same day a draft prevention notice was provided to the operators of the gym, who were given until 29 August 2016 to make representations. The prevention notice was subsequently issued on 2 September 2016. Evidence of the residents 1. Three residents gave evidence at the commencement of the site inspection. Mr Shannon, who resides on the third level above the gym, gave evidence of the noises heard in the evening and overnight, causing sleep disturbance. His evidence was that he can hear weights being dropped and treadmills being used, and that the noise was such that it rattled the windows and bathroom mirror. He also gave evidence about hearing music from the gym. His evidence is supported by noise diaries maintained from 14 June 2016 to 22 August 2016 and provided in the Council's bundle of documents, in which he kept a record of the noise disturbances. This clearly demonstrates noise that occurred from 5:30am to 10:10pm. In the noise diary he associates the noises with the dropping of free weights, the use of the weighted machines making a knocking noise, the use of treadmills and the use of battle ropes. 2. Mr Attard and Miss Berlec, who formerly resided at the unit on the first floor above the gym, also gave evidence. Each of them gave evidence of noise, including loud banging noises, that disturbed their sleep constantly throughout the night. They each separately gave evidence that the sleep disturbances meant that they could not sleep the entire night through, resulting in stress that caused them to move out. Their evidence was similarly supported by a noise diary that recorded the times of noise disturbances and a number of emails in which they raised their concerns with the Council. The emails report on the times at which the noise occurred, and the type of noise made. It ranged from loud banging, loud music, noise from battle ropes and noise from the treadmills. Their evidence is that they tried to direct their complaints to the gym owners, but didn't feel that their complaints were taken on board or addressed. Miss Berlec indicated that she had made recordings of the noises that occurred overnight that could be played if required. 3. At the site inspection, Mr Price, of Penrith City Council, dropped weights of 25kg, 35kg and 45kg from waist high onto the rubber flooring, whilst the parties and I attended the third level unit where Mr Shannon resides. The noise of each of them falling to the floor was quite loud and caused a vibration through the building. 4. Mr Drew, the second applicant, also gave evidence of the steps taken by them to reduce the noise emitted from the gym. In addition to the work carried out prior to the assessment conducted by the Council, they have put away the battle ropes and reduced the volume of the TVs overnight, not making the remotes available for use. Mr Drew also indicated that the roof tiles installed as part of the fit out of the gym were insulated. Is there offensive noise? 1. I accept the submission of the respondent that the operational noise of the gym is 'offensive noise' as defined by the POEO Act. Based on the noise assessment carried out by the Council, the evidence of the residents, and the observations made at the site inspection, the operational noise of the gym is such that, by its level and nature, it is harmful to a person residing in the residential units beside and above the gym, and interferes unreasonably with their comfort and repose as they carry out the ordinary residential use of their units. Further, the fact that this noise continues overnight means that, because of the time during the night at which it occurs, it is harmful to a person residing in the residential units because it causes sleep disturbances. It therefore meets the definition of 'offensive noise' contained in the POEO Act. 2. There is nothing in the joint report of the experts that dissuades me from this finding. The expert who was retained by the applicants, Ms Pearce, did not give evidence at the hearing, and did not include any evidence in the joint report regarding her assessment of the noise emitted from the gym. Indeed, on the re-listing of the appeal following the hearing, her report of 8 June 2017 was tendered. This report demonstrates that the levels of the noise emitted from dropping weights, when measured using a sound analyser, exceeds the acceptable level as determined according to her criteria. Should a prevention notice be issued? 1. The power to issue a prevention notice under s 96 of the POEO Act is only available if I reasonably suspect that an activity is "not carried on by such practicable means as may be necessary to prevent, control or minimise" offensive noise. 2. First, there must be an activity that is carried on that causes the offensive noise. The relevant activity is the operation of the gym. This can be broken down into several specific sub-activities which have been cause for complaint. Specifically, they are the dropping of free weights, the dropping of weights within the cable machines, the use of the battle ropes, the use of the treadmill and the use of the televisions. 3. Second, I must "reasonably suspect" that the applicants are not using "practicable means as may be necessary to prevent, control or minimise" the offensive noise caused by the activity. Whilst there is evidence that some steps have been taken to reduce the noise emitted, the activity is still causing offensive noise and, based on the site view and the assessment report, there are reasonable grounds to suspect that there are practicable means that could be used (but are not being used) to minimise the offensive noise. 4. Further, no evidence was tendered in support of the assertion that the applicants will be forced to close their business if they are required to provide a noise assessment report and a management plan in accordance with the revised prevention notice. 5. Given that the statutory requirement for the issue of the prevention notice has been satisfied, the third matter for my consideration is whether, in the exercise of my discretion, the noise prevention notice should be issued and if so, on what terms. I am satisfied that it is appropriate for the noise prevention notice to be issued. The noise that is caused by the gym is offensive, and it is unacceptable that it continue. The terms of the prevention notice 1. I accept that the terms of the prevention notice are reasonable. The first part, clause 1, contains interim measures that are required between the hours of 10pm and 7am, and a requirement to have a complaints number and email. They are required until such time that a management plan is in place. Each of those measures is entirely reasonable. 2. The next four clauses set out the requirement for engaging a consultant to carry out a noise and vibration assessment (clause 2), for providing the assessment report to the Council together with "recommendations to control any impacts on residents" (clause 3), for providing an operational noise and vibration management plan to the Council (clause 4) and for implementing that plan (clause 5). This process is a reasonable and appropriate approach to moving toward a resolution of the noise issue. The period in the notice for providing the report and the management plan was 60 days. The agreement communicated to the Court following the hearing was that this be changed to 21 days, with a response from the Council within 7 days. 3. I accept that the amended prevention notice reflects the agreement communicated to the Court at the hearing, and that the shortened time period for the applicants to provide the report and the management plan reflects the urgency with which the resolution of the noise issue should be pursued. 4. For the above reasons, on 14 June 2017 I made orders in accordance with short minutes of order provided by the respondent. I subsequently made amendments on the same day in chambers pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 to formally uphold the appeal so that there is power to issue the amended prevention notice. Additionally, pursuant to the same rule, amendments were made to Annexure A to remove information about appeals against the notice. The final order, made on 14 June 2017 and as amended, is reproduced for convenience below. The Court orders that: 1. Pursuant to section 292 of the Protection of the Environment Operations Act 1997, the appeal against the Directive dated 2 September 2016 issued by Penrith City Council to Sammy-Jo Sessions and Blake Drew under section 96 of that Act is upheld and the Directive is modified in accordance with Annexure A. ………………………. Joanne Gray Commissioner of the Court 284230.16 Gray (Annexure A) (44.4 KB, pdf) 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: 26 June 2017