Duarte v Ross [2022] NSWLEC 66

Duarte v Ross [2022] NSWLEC 66

The applicant failed to establish on evidence that installation of the air conditioning unit breached development consent, that the party wall breached Building Code of Australia requirements, or that noise emanated from respondents’ property at prohibited times. No warnings were issued as required to establish breach of the Noise Regulation. All claims are dismissed and costs awarded to the respondents.

Jurisdiction
Australia
Judgment Date
03 June 2022
Procedural Posture
Class 4 Civil Enforcement (land and Environment Court) / Principal Judgment Following Final Hearing
Outcome
Applicant's claims dismissed; costs to respondents
Legal Topics
['installation of Air Conditioning Unit' 'development Consent Breach' 'noise Control Breach' 'compensation for Hardship' 'costs Order Cancellation' 'stormwater Drainage Connection']
['environment and Planning'] ['installation of Air Conditioning Unit' 'development Consent Breach' 'noise Control Breach' 'compensation for Hardship' 'costs Order Cancellation' 'stormwater Drainage Connection']

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Procedural Posture

Class 4 Civil Enforcement (land and Environment Court) / Principal Judgment Following Final Hearing

Legal Issues

  1. 1 ['Whether installation of indoor air conditioning unit breached development consent' 'Whether party wall constructed in the attic complied with Building Code of Australia' 'Whether operation of air conditioning unit breached Protection of the Environment Operations (Noise Control) Regulation clause 45' 'Whether compensation for loss of sleep is payable' 'Whether Local Court costs order should be cancelled' 'Whether Respondents should be required to connect stormwater drainage to council system']

Ratio Decidendi

The applicant failed to establish on evidence that installation of the air conditioning unit breached development consent, that the party wall breached Building Code of Australia requirements, or that noise emanated from respondents’ property at prohibited times. No warnings were issued as required to establish breach of the Noise Regulation. All claims are dismissed and costs awarded to the respondents.

Court Disposition

Applicant's claims dismissed; costs to respondents

Orders

  • ['Amended Summons filed on 14 September 2021 in both proceedings dismissed' 'Notices of Motion filed on 14 March 2022 in both proceedings dismissed' "Applicant ordered to pay Respondents' costs of both proceedings" 'Exhibits to be returned; parties to collect within 7 days' 'Provision for applications to vary costs...