Funnell v Blayney Shire Council [2020] NSWLEC 170

Funnell v Blayney Shire Council [2020] NSWLEC 170

The applicants discharged their burden for a stay because the appeal was reasonably arguable, particularly given the applicants' acoustic evidence, the NoiseNet reports' apparent reliance on nuisance criteria rather than offensive noise, the absence of Council expert evidence on offensiveness, and the procedural...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 December 2020
Procedural Posture
Class 1 Proceedings / Notice of Motion Seeking a Stay of a Prevention Notice Pending Final Determination of the Class 1 Appeal
Outcome
Stay granted subject to conditions; costs reserved.
Legal Topics
['stay Pending Appeal' 'prevention Notice' 'offensive Noise' 'procedural Fairness' 'greyhound Keeping and Animal Welfare' 'balance of Convenience']
['environmental Law' 'land and Environment Court Procedure' 'administrative Law'] ['stay Pending Appeal' 'prevention Notice' 'offensive Noise' 'procedural Fairness' 'greyhound Keeping and Animal Welfare' 'balance of Convenience']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Proceedings / Notice of Motion Seeking a Stay of a Prevention Notice Pending Final Determination of the Class 1 Appeal

Legal Issues

  1. 1 ['Whether the Court had power to grant a stay of the prevention notice in Class 1 proceedings.' "Whether the applicants' Class 1 appeal raised reasonably arguable grounds." 'Whether the balance of convenience favoured granting a stay pending determination of the appeal.' 'Whether any stay should be conditioned to protect neighbouring amenity and greyhound welfare.']

Ratio Decidendi

The applicants discharged their burden for a stay because the appeal was reasonably arguable, particularly given the applicants' acoustic evidence, the NoiseNet reports' apparent reliance on nuisance criteria rather than offensive noise, the absence of Council expert evidence on offensiveness, and the procedural fairness issue. The balance of convenience favoured the applicants because mitigation measures had reduced the noise and some notice conditions created welfare concerns, but the stay required conditions to protect the amenity of the adjoining residents, especially at night.

Court Disposition

Stay granted subject to conditions; costs reserved.

Orders

  • ['The operation of the prevention notice issued on 21 July 2020 by the Council is stayed pending final determination of the Class 1 appeal filed by the applicants in this matter, on terms.' 'There shall be no more than nine greyhound dogs at the subject property.' 'The applicants shall use their best endeavours to...