Land and Environment Court New South Wales Medium Neutral Citation: Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 Hearing dates: 29 August 2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Class 1 Before: Pepper J Decision: See orders at [75]-[77]. Catchwords: CIVIL PROCEDURE: application for stay of orders pending Class 1 appeal – noise abatement order – financial hardship to applicant if stay not granted – merits of proposed appeal – discretionary considerations – stay granted subject to terms. Legislation Cited: Canterbury Local Environmental Plan 2012 Land and Environment Court Act 1979, s 17 Protection of the Environment Operations (Noise Control) Regulation 2017 Protection of the Environment Operations Act 1997, ss 268, 271, 290 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chen v Lym International [2009] NSWCA 121 Chen v Virgona [2008] NSWLEC 281 Collier v Country Women's Association of New South Wales [2017] NSWCA 303 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Lawrence v Gunner [2015] NSWCA 322 Meriden School v Pedavoli [2009] NSWLEC 118 Meriden School v Pedavoli [2009] NSWLEC 183 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd as Trustee of the Harry Triguboff Foundation [2017] NSWCA 331 Young v King (No 10) [2016] NSWLEC 70 Category: Consequential orders (other than Costs) Parties: Sydney Tools Pty Ltd (Applicant) Robyn Oxford (Respondent) Representation: Counsel: Mr N Eastman (Applicant) Ms Robyn Oxford (in person) (Respondent) Solicitors: Mills Oakley (Applicant) N/A (Respondent) File Number(s): 2018/251087 Publication restriction: N/A Judgment Sydney Tools Seeks to Stay or Vary a Noise Abatement Order 1. On 15 August 2018 Sydney Tools Pty Ltd ("Sydney Tools") filed an appeal against a noise abatement order ("the order") made against it and its occupation of 102 Bonds Road, Roselands ("the land") by the Local Court on 14 August 2018, under s 268 of the Protection of the Environment Operations Act 1997 ("the POEOA"). 2. By notice of motion dated 20 August 2018, Sydney Tools seeks to stay or vary the order pending the determination of a Class 1 appeal against the order. 3. The order had been stayed in the Local Court until 1pm on 16 August 2018. 4. Both the appeal and the motion are opposed by Ms Robyn Oxford, who resides opposite the site at 47 Eva Street, Roselands. 5. Ms Oxford relied upon an affidavit sworn by herself on 27 August 2018, wherein she deposed to having witnessed alleged breaches of the order on several occasions. She tendered video evidence of the alleged breaches taken by herself and two neighbours (see below). 6. Ms Oxford also relied on affidavits sworn by Mr Ibrahim Asaad (on 23 August 2018) and Ms Sue Bayad (on 23 August 2018), who also deposed to multiple purported breaches of the order. The Order 1. The terms of the order are as follows (they were annexed to the affidavit of Mr Matt Sonter, the solicitor representing Sydney Tools, affirmed 20 August 2018): The Court orders, pursuant to s268 of the POEO Act, that Sydney Tools Pty Ltd. being the occupier of the land, shall abate the noise emitted from the land by: a) Limiting the number of semi-trailers and B double trucks that may load and unload containers from the land to four (4) trucks per day. b) Limit the hours in which semi-trailers and B doubles may service the land between 9am and midday on Monday and Fridays only. c) That no semi-trailer or B double deliveries occur on any weekend or Public Holiday. d) Ensure that containers are not dropped or dragged on the forecourt/car park and containers are placed on rubber matting. e) Limits to use of forklift vehicles to 5 kph and only permit their usage between 9am to midday on weekends. f) That the occupier comply with any relevant condition of usage relating to noise as per any current permitted use of land. g) the order is stayed until 1pm on 16th August 2018 1. In the order "the land" was not defined. The application to the Local Court pursuant to s 45 of the Local Court Act 2007 seeking the order, named the respondent as "Sydney Tools Pty Ltd" located at "102 Bonds Rd, Roselands". 2. Sydney Tools in fact carries out its activities across two parcels of land, namely, Lot 11 in DP 33725 at 102 Bonds Rd and Lot 10 in DP 33725 at 30-44 Eva Road, Roselands. 3. Although the Learned Magistrate noted in the judgment (a copy of which was handed up to this Court by the parties) that Sydney Tools occupied and carried out the use of a building supply warehouse and distribution centre across both Lots, it would appear, by mistake or otherwise, that the application for a noise abatement order was only directed to the activities carried out across Lot 11 at 102 Bonds Rd, Roselands. This is evident from the clear and express terms of the application in the Local Court. No application was made, or granted, to amend the application for the order in the court below. 4. On this basis, the order can only apply to Lot 10. Any ambiguity in the terms of the order must be construed in favour of Sydney Tools given the serious consequences occasioned by a breach of the orders, namely, contempt, or more importantly, the commission of a criminal offence (see s 277 of the POEOA). 5. The implications of this finding are discussed further below. Suffice it to say at this juncture, that it favours the granting of a stay. The Nature of a Noise Abatement Order Made by the Local Court 1. A noise abatement order can be made by the Local Court under s 268 of the POEOA if that Court is satisfied on the balance of probabilities that offensive noise exists (Meriden School v Pedavoli [2009] NSWLEC 183 at [11] per Pain J). 2. Section 268 of the POEOA states that: 268 Issue of noise abatement orders (1) The occupier of any premises may apply to the Local Court for an order under this section. (2) The application is to be commenced by the issue of an application notice that alleges that the occupier's occupation of premises is affected by offensive noise. (3) The respondent to the application may be a person alleged to be making or contributing to the noise or the occupier of premises from which the noise is alleged to be emitted. (4) If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make either or both of the following orders: (a) an order directing the respondent to abate the offensive noise within the time specified in the order, (b) an order directing the respondent to prevent a recurrence of the offensive noise. (5) Part 4 of the Local Court Act 2007 applies to an application under this section. 1. The term "offensive noise" is defined in the Dictionary of the POEOA as follows: 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. 1. The concept of "noise", as defined in the Dictionary to that Act, "includes sound and vibration". 2. Thus as defined, the term "offensive noise" is determined in qualitative, and not numerical, terms (Pedavoli at [17] per Pain J). Excessive noise will therefore not necessarily constitute offensive noise for the purposes of the Act (Meriden School v Pedavoli [2009] NSWLEC 118 at [7] per Sheahan J). Moreover, the test of harm resulting from noise is objective and not subjective, that is, is the noise from the impugned activity harmful in an objective sense to the reasonable person (Pedavoli at [53] per Pain J). 3. Section 271 of the POEOA is in the following terms: 271 Commencement of operation of noise abatement order (1) A noise abatement order operates from the day the order is made or from such later day as the order specifies. (2) If an appeal is made against a noise abatement order and the Land and Environment Court directs that the order is stayed, the order does not operate until the stay ceases to have effect or the Land and Environment Court confirms the order or the appeal is withdrawn, whichever first occurs. 1. As foreshadowed in s 271 of the POEOA, there is a statutory right of appeal to this Court against a noise abatement order (Chen v Virgona [2008] NSWLEC 281). In this regard, s 290 of the POEOA relevantly states that: 290 Appeals regarding noise (1) Any person: (a) given a noise control notice, or (b) against whom a noise abatement order is made, may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order. (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 or order appealed against. 1. Section 17(a) of the Land and Environment Court Act 1979 provides that the Court has jurisdiction in Class 1 matters to hear and dispose of "appeals under Part 9.2 of the POEOA". 2. Sydney Tools has appealed the order within time (within 21 days, as specified by s 290(1) of the POEOA) and without delay. But as ss 271 and 290 of the POEOA make plain, absent an order by either this Court or the Local Court staying the terms of the order, the order is extant and must be complied with. 3. The mere filing of an appeal is insufficient, of itself, to grant a stay (Pedavoli at [9] per Sheahan J and Collier v Country Women's Association of New South Wales [2017] NSWCA 303 at [32] per Gleeson JA). The granting of a stay is therefore a matter of the exercise of the Court's discretion (Pedavoli at [9] per Sheahan J, where his Honour granted a stay pending the determination of the appeal before Pain J, but expedited the appeal). Description of the Land and the Activities of Sydney Tools on the Land 1. The following description of the site and the activities of Sydney Tools undertaken on it are taken from the affidavit of Mr Sonter referred to above and the affidavit of Mr Elvis Bey sworn on 22 August 2018 (Mr Bey is the director of Sydney Tools). With one exception, it was not a matter of controversy. 2. The site is zoned IN2 Light Industrial under the Canterbury Local Environmental Plan 2012 in which "hardware and building supplies" and "warehouse distribution centres" are permissible with consent. The site adjoins an R3 Medium Density Residential zone to its north. 3. However, according to the documents attached to the affidavit of Ms Robyn Oxford sworn on 27 August 2018, a development application (DA 163/2017) for the "use of premises as tools hardware and building supply store and warehouse distribution centre" has been refused by Canterbury-Bankstown Council ("the Council") because of, amongst other reasons: Pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the adverse impacts of the proposed development on the built environment and on the acoustic privacy and amenity of adjoining residential development are unsatisfactory as the development fails to demonstrate reasonable trading hours and acoustic privacy. 1. The determination was subsequently reviewed by the Council resulting in another refusal. Again, the "adverse impacts of the proposed development on the built environment and on the acoustic privacy and amenity of adjoining residential development" were considered to be "unsatisfactory as the development fails to demonstrate reasonable trading hours and acoustic privacy." 2. Sydney Tools tendered two determinations of development applications (DA 9595/98 and DA 90/98) which indicated that there was consent to use the land for the warehousing and distribution of videos, which was later changed to the warehousing and distribution of pharmaceuticals. The Environmental Management Plan in respect of DA 90/98 made it plain that the use of the land would involve truck activity, commercial automotive movement, and forklift loading. The hours of operation were from 6am - 9pm, but with the truck activity restricted to between 8am - 5pm. 3. Further, relying on Div 10A, cl 2.20A of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Sydney Tools submitted that, irrespective of the refusal by the Council of DA 163/2017, it had the benefit of an existing consent to use the land as a warehouse and distribution centre and that, therefore, its present use of the land was not unlawful. 4. On the basis of the limited evidence and arguments presented before the Court, this would appear to be correct and Sydney Tools enjoys the benefit of the lawful use of the land. Nevertheless, the Court is mindful of the fact that the Council is aware of the present use of the site and of the adverse impact on the amenity of the surrounding residential properties occasioned by that use, and has determined not to support it. 5. Sydney Tool's warehouse and distribution centre facility operates in the following way: 1. the operation of the business is heavily reliant on the importation of goods from overseas which are primarily delivered by sea in shipping containers which are delivered to and unloaded at the site; 2. the majority of shipments come from China and take approximately three to four weeks to arrive from the date the container is shipped; 3. the products are shipped from other locations outside China and are in transit between three to five weeks from their date of departure; 4. the goods that travel by sea are stored in shipping containers for transportation. Upon arrival in Sydney, the containers are transported by truck or semi-trailer to the land; 5. Sydney Tools has a contract with TOLL for the delivery of all the containers to and from the site. TOLL use their semi-trailers to transport the containers; 6. if the containers are not delivered to the site within seven days, then in accordance with the agreement between Sydney Tools and TOLL, TOLL will apply a storage rate charge per container each day it is stored on the TOLL holding facility prior to its delivery to the site; 7. if the shipping containers are not returned to the owner's possession within 14 days TOLL will be charged a detention cost from the owner of the container. TOLL passes this cost on to Sydney Tools; and 8. Sydney Tools has arranged for the TOLL trucks to deliver the majority of the containers to the site on Monday, Tuesday and Thursday, in an effort to concentrate delivery times and reduce any impacts on adjoining residents. 1. The warehouse and distribution facility dispatches four trucks on a daily basis to restock and make deliveries to the Sydney Tools stores across NSW. 2. As at 15 August 2018 there were 56 containers which were waiting for collection at the Sydney port, en route to the Sydney port, or were packed and waiting to be loaded in overseas ports. The contents of these containers have been ordered between one to six months prior to their shipment to Australia. 3. The contents of the containers are used to restock the Sydney Tool's chain of stores, as well as fill online orders, some of which have been pre-paid by customers for products which have not yet been delivered to Australia. Applicable Legal Principles in Granting a Stay of Orders Pending Appeal 1. The principles in relation to whether a stay of orders the subject of an appeal should be granted were summarised in the seminal case of Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (at 694-695). They were expanded upon by Beazley JA (as her Honour was then) in Chen v Lym International [2009] NSWCA 121 and by Handley, Sheller and Ipp JJA in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 (at [17]-[20]). 2. In Chen Beazley JA observed the following (at [12]-[15]): 12 It is usually said that there are two matters that need to be established for the Court to grant a stay. First, the appeal must have reasonable prospects of success and secondly, the balance of convenience must favour the grant of a stay: see Alexander v Cambridge Credit (1985) 2 NSWLR 685. However, the underlying principle that governs the exercise of the Court's discretion to grant a stay cannot be stated in such definitive terms. Rather, the applicant for a stay must demonstrate a proper case for a stay. As the Court said in Alexander v Cambridge Credit at 694, (rejecting the proposition that special or exceptional circumstances needed to be shown): "It is sufficient that the applicant for a stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in [the applicant's] favour". 13 The Court continued, at 694-695: "There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties … The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it ... Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion, refuse to grant a stay … Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay … Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case." (Citations omitted) 14 The Court may impose conditions on the grant of stay to ensure that there is a fair adjustment of the rights of the parties pending the determination of the appeal. 15 It is apparent from the last-mentioned comment by the Court in the above passage in Alexander v Cambridge Credit that there is no necessary requirement that the court determine whether there is an arguable case on the appeal. Rather, that is a matter that may be relevant in determining whether it is appropriate to grant a stay. In the present climate, where legal practitioners have a statutory obligation not to bring proceedings that do not have reasonable prospects of success: the Legal Profession Act 2004, s 347, this particular consideration may be one that the courts can approach with less scrutiny. It will depend upon the circumstances of the particular case. The court will always be concerned to ensure that its processes are not used inappropriately, for example, by permitting a defendant from keeping a successful plaintiff out of the fruits of his/her litigation victory by seeking a stay in respect of a hopeless appeal. That was the position in Vaughan v Dawson [2008] NSWCA 169, discussed below. The primary consideration in the court's determination will be whether the applicant for the stay has discharged the onus of demonstrating that there is a proper basis for the stay. 1. The principles were recently summarised by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 (at [10]-[15]): 10 The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. 11 A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. 12 It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]. 13 It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA). 14 As already mentioned, the notice of appeal is not particularly informative. The requirements of the rules concerning a notice of appeal are set out in UCPR r 51.18. The notice is required to state, briefly but specifically, the grounds relied upon in support of the appeal. In addition, subrule (2) requires the appellant to also specify any material facts that the appellant contends that the court below should, or should not, have found. Here the notice of appeal does not comply with these requirements. 15 As Campbell JA observed in Vaughan v Dawson [2008] NSWCA 169 at [22], having a notice of appeal that does not comply with the rules is an unpromising start for proving there is a serious question about whether the appeal will succeed. Nonetheless, Campbell JA accepted that it may not be fatal if there is reason to believe that the notice of appeal could be amended to state properly arguable grounds. This requires one to consider on a broader basis whether the appellants have shown a prospect of successfully appealing from the judgment. I adopt that approach here. 1. They were condensed further and applied by his Honour (after referring to and endorsing Alexander and Kalifair) in Collier (at [32]): 32 It is not necessary to refer to those principles in any detail other than to note that in such cases, the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. 1. In this Court the principles have been considered and applied by Sheahan J in Young v King (No 10) [2016] NSWLEC 70 (at [24]-[25]): 24 On his way to granting a limited stay, His Honour summarized the relevant principles thus ([10]-[15]): 10 The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. 11 A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. 12 It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]. 13 It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA). 14 As already mentioned, the notice of appeal is not particularly informative. The requirements of the rules concerning a notice of appeal are set out in UCPR r 51.18. The notice is required to state, briefly but specifically, the grounds relied upon in support of the appeal. In addition, subrule (2) requires the appellant to also specify any material facts that the appellant contends that the court below should, or should not, have found. Here the notice of appeal does not comply with these requirements. 15 As Campbell JA observed in Vaughan v Dawson [2008] NSWCA 169 at [22], having a notice of appeal that does not comply with the rules is an unpromising start for proving there is a serious question about whether the appeal will succeed. Nonetheless, Campbell JA accepted that it may not be fatal if there is reason to believe that the notice of appeal could be amended to state properly arguable grounds. This requires one to consider on a broader basis whether the appellants have shown a prospect of successfully appealing from the judgment. I adopt that approach here. 25 The present applications for stays are not the classic situation of a successful party at first instance seeking to protect its "fruits of victory" pending an appeal, but no cogent submission has been made to question the application of the above-stated principles to the present situation. 1. In relation to the strength of the appeal, Basten JA opined as follows in Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd as Trustee of the Harry Triguboff Foundation [2017] NSWCA 331 (at [17]-[18]): 17 So far as the last matter is concerned, the inquiry is usually constrained to a determination whether the appeal is reasonably arguable. With respect to the prospects of success on an appeal, the Court stated in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed): "… although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case." 18 The grammatical structure of this statement is not entirely clear, but the availability of "some preliminary assessment" has generally been regarded as going to the merits of granting a stay or declining to do so, and not merely to the terms on which it may be granted. 1. Sydney Tools argued that because it had an appeal as of right on the merits of the order, it could not be said that the granting of the stay would deprive Ms Oxford of the 'fruits of her litigation victory'. I disagree. Ms Oxford has obtained a noise abatement order that, if the stay application is successful, will wholly obviate her 'victory' below. 2. However, the fact that there exists an appeal as of right on the merits - that is, not an appeal confined to demonstrating an error of law, or even, for that matter, an error of fact - means, given the nature of the merits appeal (ie not restricted to the material before the Local Court), that the task of the Court of ascertaining the strength of the appeal is more difficult. The Appeal is Reasonably Arguable on a Preliminary Assessment and There is a Serious Question for Determination 1. A preliminary assessment of the appeal compels the conclusion that it is reasonably arguable. This is because of the absence of any expert evidence proffered to date by Ms Oxford as to the 'offensiveness' of the noise. The only evidence before this Court on the application of a stay and before the Lower Court was that relied upon by Sydney Tools, namely, two reports by Mr Ben White of Acoustic Logic dated 19 June and 3 July 2018 (annexed to Mr Sonter's affidavit). 2. In the Local Court proceedings, Sydney Tools had engaged an acoustic consultant, Mr White, to prepare an acoustic assessment of the alleged noise in accordance with the requirements in the Protection of the Environment Operations (Noise Control) Regulation 2017 ("the Regulations"). 3. Ms Oxford did not engage an acoustic expert to assess the levels of the alleged offensive noise but relied on oral, written and visual evidence of lay witnesses. Mr White was therefore the only suitably qualified acoustic consultant from whom the Local Court heard. 4. Mr White undertook both attended and unattended measurements at the site which formed the basis of his assessment of both the background noise level and noise associated with the operation of the premises. Mr White determined based on his assessment, onsite monitoring and unattended monitoring that the noise emitted from operations was not "offensive" under the Regulations. In short, after appropriately setting out the statutory test, his methodology and his reasoning, Mr White opined that "noise emissions from the activities and operations from the Sydney Tools facility are not determined as offensive noise." 5. This is in contrast to Ms Oxford, who, as stated above, did not call any expert evidence and relied on video recordings which were obtained using hand-held devices, none of which were acoustically tested, calibrated or checked. 6. The Learned Magistrate was unimpressed by Mr White's evidence, describing it as "very difficult to understand", "confusing" and "not clear and concise". While not having been furnished with a transcript of the proceedings in the court below, these conclusions appear, with the greatest respect, inconsistent with the contents of the written reports put before the Court on the stay application (and which were before the Local Court). 7. Rather, on a fair reading of the Learned Magistrate's judgment, it seems that although the objective nature of the test for offensive noise was correctly identified in the Local Court, the Court preferred the subjective evidence of Ms Oxford in concluding that the noise was offensive in making the order. 8. Before this Court, in addition to her affidavit sworn 27 August 2018, Ms Oxford relied upon two affidavits of the occupiers of Eva Street, Roselands (Mr Ibrahim Asaad and Ms Sue Bayad), who had taken videos purportedly depicting 'breaches' of the orders. Ms Oxford had taken similar videos. The video evidence was tendered before the Court. 9. Over the objection of Sydney Tools, the Court admitted and viewed the video evidence. With the greatest respect to Ms Oxford and the neighbours referred to above, very little weight could be placed on the videos given their poor quality and the uncertainty surrounding their date and time of creation. To the extent that they were relied upon to demonstrate an alleged breach of the order, they failed to do so. Again, the videos were not subjected to acoustic testing, calibration or verification. 10. If this type of evidence alone is to be relied upon by Ms Oxford at the Class 1 appeal, she is unlikely to succeed given the objective nature of the test of "offensive noise". Ms Oxford will also require more than mere subjective statements by herself and others in order to demonstrate that the noise is harmful or offensive. 11. While it is not known what acoustic evidence the parties will rely upon at the Class 1 appeal, in the absence of any expert acoustic evidence to refute that of Mr White (assuming for present purposes his evidence will be relied upon by Sydney Tools), a preliminary assessment of the prospects of success of Sydney Tools on the Class 1 appeal may be characterised as fairly reasonable. Prejudice and Hardship Occasioned by the Order on Sydney Tools 1. According to the unchallenged affidavit evidence of Mr Sonter and Mr Elvis Bey, the immediate operation of the order would restrict the ability of those containers already en route to Australia, and those already in Australia, to be delivered, unpacked and distributed from the land to Sydney Tools' stores, or to fulfill online orders. 2. The goods which are located at overseas docks awaiting transport to Australia, are en route to Australia or, landed at the port in Australia, have either been pre-purchased or the deposit has been paid. In order to clear customs, the balance of all goods must be paid in full. Only once this has occurred, can the items be delivered to the site. 3. The value of the goods which have been ordered and are en route to Australia is significant and cannot be cancelled. The orders for all goods which are currently waiting to be loaded on ships, on ships coming to Australia, or are waiting at the docks, are required to be paid for. 4. The inability to accept, unload and distribute the goods within the containers would cause serious and potentially irreparable financial harm to Sydney Tools. 5. Sydney Tools' business has a high turnover of products and requires constant and ongoing provision of goods. The ongoing viability of the Sydney Tools business is dependent upon the ability to fulfill, pack and deliver online deliveries and restock each Sydney Tools store with the required products. 6. Further, at present, Sydney Tools employs the following staff who would be directly impacted, and potentially unable to continue to be employed, should the delivery of shipping containers not be possible to the site. These include: 1. delivery truck drivers; 2. pick and pack staff in the warehouse; 3. logistics managers; 4. floor staff in stores; and 5. products staff. 1. According to Mr Sonter and Mr Bey, the effect of the order is to restrict the ability of Sydney Tools to meet the online orders which have been placed and to restock the stores with the goods required. If the order continues then it is likely that a number of staff will no longer be required as a result of the suspension of the delivery of the goods. 2. At present Sydney Tools has a total of 305 employees. 3. Accordingly, the practical impact of the order will cause significant adverse commercial detriment insofar as: 1. the timeline for deliveries of goods to the site and Sydney Tools stores involves a long pipeline and the time allocated by the order to accommodate the drastic change proposed is insufficient and does not allow for any mechanism to be put in place to temper the impacts on the business. A stay of the order on its current terms is therefore necessary in order for the Sydney Tools business to continue to operate and to fulfill its commercial obligations; 2. the order restricts the delivery of containers to four containers twice a week which will prevent Sydney Tools' business from operating on a day-to-day basis; 3. the order results in the inability to use the warehouse and use the goods which have been purchased and are en route to Australia, or landed at Australian ports; 4. the restriction on the delivery of containers to the land cripples the business' ability to undertake operations on the land and will cause significant financial difficulties as a result of orders going unfulfilled and stores not being restocked; 5. existing orders which have been packed overseas, shipped and in transit, and those landed in Australia in containers, cannot be accommodated on the land and distributed to the store network; and 6. the holding or detention of containers at the docks will: 1. incur significant storage fees; 2. restrict the ability of Sydney Tools to restock its stores; and 3. restrict the ability of Sydney Tools to meet pre order obligations. 1. In addition, part of Sydney Tools' business also accommodates pre-orders. That is, customers purchase stock online which prompts Sydney Tools' business to order this stock from its overseas suppliers. 2. As a result of the pre-orders, 10% of the stock arriving by sea, which is delivered via shipping containers, is already pre-purchased and is required to be delivered to external customers. 3. The terms of the order only permit four semi-trailer and B double trucks on Mondays and Fridays between 9am – 12pm to deliver, and remove, shipping containers. This limitation does not provide Sydney Tools' business with the ability to receive and distribute the stock that is already en route to Australia and which has already been purchased and paid for by customers. 4. The restriction on the operation of Sydney Tools' business by the operation of the order will generate a backlog of containers that are currently in transit to the site by sea or are already sitting in storage in TOLL's yard. In order to comply with the restricted use permitted by the order, Sydney Tools would, as stated above, incur significant financial penalties from TOLL, their overseas suppliers, customers and other interrelated third parties. 5. In his affidavit, Mr Bey, gave four examples of products (lawn mowers, fans, gardening equipment and line trimmers) which are representative of the stock Sydney Tools holds and sells, to illustrate the adverse consequences of the order on its business, and in particular, the ability of Sydney Tools to meet its obligations should the restrictions on the truck movements continue to be imposed. 6. Finally, Sydney Tools claimed that the timeframe for compliance with the order (by 1pm, on 16 August 2018) did not provide Sydney Tools with sufficient time to rearrange or alter its current operations or curb any amount of the volume of stock that was in transit to the site. 7. The evidence relied upon by Sydney Tools of hardship and prejudice was not challenged by Ms Oxford, who readily conceded that the order would cause Sydney Tools "some" adverse commercial impact. 8. There can be no doubt that the order is imposing a real financial hardship on the activities of Sydney Tools in the manner described above. Prejudice and Hardship on Ms Oxford 1. Against this must be balanced the hardship to Ms Oxford if the order is stayed. There can also be no doubt that the disturbance to her amenity, and the anguish and distress that it is causing her, is ongoing and genuine (for the last 16 months). The granting of a stay will deprive her of the diminution in the noise emanating from Sydney Tools' use of the land. 2. Mitigating this hardship, however, is the willingness of Sydney Tools to curb its operations during the Class 1 appeal process in order to accommodate the intent of the order, thereby maintaining some of the benefits provided for by the making of the order. 3. In particular, Sydney Tools is willing to vary the terms of the order to: 1. limit the days on which semi-trailer and B double trucks can load and unload to three days a week between the hours of 8am - 1pm only; and 2. ensure that containers are not dropped or dragged on the forecourt/car park and containers are placed on rubber matting - which is supposedly the current procedure on the land. Summary of Discretionary Considerations 1. In summary, the discretionary matters that I have considered include: 1. if a stay is granted, the subject matter of the appeal will not be destroyed or diminished; 2. Sydney Tools has acted swiftly in seeking to stay the terms of the order; 3. as discussed above, Sydney Tools enjoys the benefit of a lawful occupation and use of the land the subject of the order; 4. the order does not cover all of Sydney Tools' activities because it is limited to 102 Bonds Road, Roselands; 5. the appeal raises a serious question for determination, namely, whether the noise is "offensive" as prescribed in order to grant the making of a noise abatement order; 6. assuming the evidence rises no higher than that presently before the Court, Sydney Tools' prospects of success on appeal are at least reasonably arguable; 7. although the granting of the stay will cause hardship to Ms Oxford with respect to an adverse impact on her amenity, the uncontrovertible evidence is that serious financial damage will be caused by the order to Sydney Tools, including the potential loss of jobs; and 8. the hardship to Ms Oxford can, to some extent, be mitigated by the imposition of the granting of a stay on terms circumscribing the activities of Sydney Tools in order to minimise the impact on her amenity. 1. Having regard to the evidence before the Court, and balancing the factors referred to above, in my opinion, a stay should be granted, but only on the terms proposed by Sydney Tools. Orders 1. The order of the Court is that the operation of the noise abatement order made by the Local Court on 14 August 2018 under s 268 of the POEOA, is stayed pending the final determination of the Class 1 appeal filed by Sydney Tools, on the following terms: 1. the days on which semi-trailer and B double trucks can load and unload is limited to three days a week between the hours of 8am - 1pm only; and 2. containers are not to be dropped or dragged on the forecourt/car park and all containers are to be placed on rubber matting. 1. The matter is to be relisted before the Registrar for further directions on 6 September 2018. 2. The exhibits are to be returned to the parties. ********** 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: 30 August 2018