Sessions v Penrith City Council [2017] NSWLEC 171

Sessions v Penrith City Council [2017] NSWLEC 171

The appeal failed because the evidence established that the applicants, through their solicitor, agreed that the Court should determine the matter by issuing a modified prevention notice after a consent orders hearing, then tendered no evidence and made no submissions opposing that course. That agreement and forensic conduct defeated the procedural fairness complaints and bound the applicants. The alleged errors concerning the issuing of the notice, the factual finding that the gym was operated in an environmentally unsatisfactory manner, and the weight given to the joint expert report did not establish any question of law for an appeal under s 56A(1).

Jurisdiction
Australia
Judgment Date
06 December 2017
Procedural Posture
Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 on a Question of Law Against a Commissioner's Decision Concerning a Prevention Notice Under the Protection of the Environment Operations Act 1997 / Appeal From Decision of Commissioner Gray, [2017] NSWLEC 1328, Decided 14 June 2017
Outcome
Appeal dismissed with costs.
Legal Topics
['prevention Notice' 'offensive Noise' 'procedural Fairness' 'consent Orders Hearing' 'appeal on a Question of Law' 'expert Evidence' 'costs']
['environmental Law' 'administrative Law' 'civil Procedure'] ['prevention Notice' 'offensive Noise' 'procedural Fairness' 'consent Orders Hearing' 'appeal on a Question of Law' 'expert Evidence' 'costs']

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Procedural Posture

Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 on a Question of Law Against a Commissioner's Decision Concerning a Prevention Notice Under the Protection of the Environment Operations Act 1997 / Appeal From Decision of Commissioner Gray, [2017] NSWLEC 1328, Decided 14 June 2017

Legal Issues

  1. 1 ['Whether the Commissioner denied the applicants procedural fairness in conducting the hearing and making the decision to issue a modified prevention notice.' 'Whether there was agreement between the parties for the appeal to be conducted as a consent orders hearing and for a modified prevention notice to be issued.' 'Whether the Commissioner erred in issuing the prevention notice or applying s 96 of the Protection of the Environment Operations Act 1997.' 'Whether the Commissioner erred in relying on, or giving weight to, the joint expert report.']

Ratio Decidendi

The appeal failed because the evidence established that the applicants, through their solicitor, agreed that the Court should determine the matter by issuing a modified prevention notice after a consent orders hearing, then tendered no evidence and made no submissions opposing that course. That agreement and forensic conduct defeated the procedural fairness complaints and bound the applicants. The alleged errors concerning the issuing of the notice, the factual finding that the gym was operated in an environmentally unsatisfactory manner, and the weight given to the joint expert report did not establish any question of law for an appeal under s 56A(1).

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The applicants are to pay the respondent's costs of the appeal."]