Funnell v Blayney Shire Council [2021] NSWLEC 1241

Funnell v Blayney Shire Council [2021] NSWLEC 1241

The barking and other noise from dogs kept on the site had caused offensive noise and, without preventative actions, the activity of keeping dogs had been and would continue to be carried on in an environmentally unsatisfactory manner. The Court could reasonably suspect the activity had been and could in future be carried on in that manner under s 96(1) of the Protection of the Environment Operations Act 1997, so a Prevention Notice was warranted. However, the preventative actions should be varied to reflect the evidence, agreed measures, and reasonable controls on the number, housing and exercise of dogs.

Jurisdiction
Australia
Judgment Date
14 May 2021
Procedural Posture
Class 1 Appeal Against a Prevention Notice Issued Under the Protection of the Environment Operations Act 1997 / Principal Judgment After Hearing
Outcome
Appeal upheld; Prevention Notice varied.
Legal Topics
['prevention Notice' 'offensive Noise' 'noise From Dogs' 'variation of Preventative Actions']
['environmental Law' 'land and Environment Court Proceedings'] ['prevention Notice' 'offensive Noise' 'noise From Dogs' 'variation of Preventative Actions']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Prevention Notice Issued Under the Protection of the Environment Operations Act 1997 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Prevention Notice was warranted under ss 95 and 96 of the Protection of the Environment Operations Act 1997.' 'Whether noise from dogs kept at the premises constituted offensive noise or noise pollution requiring preventative action.' 'What preventative actions should apply to minimise and mitigate noise generated from dogs kept on the site.']

Ratio Decidendi

The barking and other noise from dogs kept on the site had caused offensive noise and, without preventative actions, the activity of keeping dogs had been and would continue to be carried on in an environmentally unsatisfactory manner. The Court could reasonably suspect the activity had been and could in future be carried on in that manner under s 96(1) of the Protection of the Environment Operations Act 1997, so a Prevention Notice was warranted. However, the preventative actions should be varied to reflect the evidence, agreed measures, and reasonable controls on the number, housing and exercise of dogs.

Court Disposition

Appeal upheld; Prevention Notice varied.

Orders

  • ['The appeal is upheld.' 'The Prevention Notice issued on 21 July 2020, which seeks to minimise and mitigate the noise generated from dogs kept on Lot 44 DP 750408, also known as 73 Somers Lane, Mandurama is varied, subject to preventative actions and plan described in Annexure A.' 'The exhibits are returned, except...