Cotterill & Anor v Young & Anor [2000] QPEC 11

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cotterill & Anor v Young & Anor [2000] QPE 011 PARTIES: NOEL RONALD COTTERILL AND BETTY JOY COTTERILL (Applicants) AND LANCELOT DINSDALE YOUNG AND HELEN MARGARE YOUNG (Respondents) FILE NO/S: Application No 3783 of 1999 DIVISION: PLANNING AND ENVIRONMENT COURT PROCEEDING: ORIGINATING COURT: DELIVERED ON: 28th February 2000 DELIVERED AT: BRISBANE HEARING DATE: JUDGE: QUIRK, DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS: [1] In this matter the applicants, who live at 93 Warriewood Street, Chandler, have sought relief under s.194 of the Environmental Protection Act to restrain the commission of an offence against that Act. The alleged offence relates to the operation of a boarding kennel on adjoining land owned by the respondents Mr and Mrs Young. [2] The area is a rural residential one and the allotments there are relatively large. The residences of both the applicants and the respondents are attractive and well maintained as are their surrounds. The kennel complex has been established behind the residence of the respondents. Its layout and physical characteristics may be seen from uncontested material placed before the court. -- 1 of 8 -- 2 [3] The respondents purchased their property in early 1984. At the time the facility was appropriately licensed. Mr Young believed that they were first licensed in about 1976. In 1987 town planning consent to the construction of a new building comprising eight kennels was granted. In 1996 a license under the Environmental Protection Authority was obtained. [4] The facility falls within the definition of “animal housing” (item 43 in the schedule to the Environmental Protection Regulations 1998) which is an “environmentally relative activity” for which approval is required (part 3 of chapter 3 of the Act). The relevant authority was amended in June 1998 and a copy of the present authority is before the court (exhibit 27 – LDY8). [5] Inter alia the authority provides: “This environmental authority is granted, conditional upon the environmentally relevant activities being constructed, operated and maintained in accordance with: the conditions of this environmental authority set out in schedule A; all the undertakings of the application for environmental authority which are approved as set out in schedule B of this environmental authority; and no more than 72 dogs being kept on the premises at the one time.” [6] Relevant to these proceedings are the following conditions: “STANDARD LICENCE CONDITIONS Conditions of Release 1. Contaminants must not be released to the environment from the environmentally relevant activity in contravention of this environmental authority, where the release will or may cause environmental harm. Noise 2.a. The holders of this environmental authority must ensure that excessive noise is not emitted from the licensed premises. -- 2 of 8 -- 3 b. The holders of this environmental authority are deemed to have complied with condition 2(a) if they have taken the following measures: (i) Whenever reasonably practicable, visual separation must be maintained between dogs; (ii) Visual separation must be maintained between the collection and driveway area and other dogs; (iii) The existing screens (as shown on the plan at Attachment 1) must be maintained between the licensed premises and adjoining premises; (iv) Except for emergencies (such as malnourishment, or on veterinary advice), dogs may only be fed between the hours of 11.00am and 3.00pm. (v) Except for emergencies (such as removal of sick dogs and otherwise on veterinary advice), opening hours are to be restricted to between 7.00am and 10.00am and between 3.00pm and 5.00pm Monday to Saturday. (vi) The attendance bell (which is fitted with an on/off switch and timing device) must be maintained so as to prevent repeated use at intervals of less than 3 minutes and is to be switched off during closing times; (vii) Background music must be played in the kennels at all times; (viii) The licence holders must maintain the existing intercom system to the kennels for the purpose of soothing any dogs identified as particularly noisy; (ix) Any dogs identified by the licence holders, their employees or the administering authority as particularly noisy, must be kept in the sound attenuated kennels that are fully enclosed and mechanically ventilated at night, and/or controlled by other animal management practice. (x) All dogs are to be confined to the sound attenuated kennels between the hours of 8.00pm – 7.00am except to allow for entry or exit of the licence holders, their staff, veterinarians or, in extraordinary circumstances, the owners of the dogs. -- 3 of 8 -- 4 (xi) The top kennels, excluding the exercise runs, are to be sound attenuated so as to prevent noise emissions within 60 days.” [7] Section 15 of the Act defines “environmental nuisance” as being unreasonable interference or likely interference with an environmental value caused by noise. “Environmental value” is widely defined to include amenity.” [8] Section 119(i) makes environmental nuisance unlawful unless it is authorised to be done or omitted to be done under an environmental authority. Section 123 makes it an offence against the Act to wilfully and unlawfully cause an environmental nuisance. Section 70 of the Act makes it a separate offence for the holder of an environmental authority to contravene a condition of the authority. [9] It would appear that this case will depend upon whether or not the conditions of the relevant environmental authority have been contravened. Particulars of the applicant’s claim have been sought and provided (exhibit 3, pages 4-11). The conditions of the authority which are said to have been breached are conditions 1, 2(a) and 2(b). [10] The evidence from both parties was extensive. Both applicants were called and told of what they regarded as intrusive noise from the kennel complex over a period of at least three years. Mrs Cotterill produced a diary which she had kept over this period which contained a meticulous record of events which have caused concern and distress to her. [11] In support of their case the applicants called evidence from local residents, Michael Roache and Kathryn Ham, who told of their experiences of noise in the neighbourhood that might be attributed to dog barking. Doctor Mackay, a medical practitioner whose patient Mrs Cotterill is, spoke of the effect on her health of the distress which she attributed to the noise created by dogs on the adjoining property. -- 4 of 8 -- 5 [12] For the respondents Mr Young gave evidence as did neighbours Paul and Jennifer Rykoff (who reside on the side of the respondents’ property away from the appellants’ land) and Robyn Neumeier (who resides further to the west). These neighbours gave evidence of their experiences of the locality’s environment and a lack of concern or distress to them of noise from the kennel complex. [13] Veterinarians Campbell, Day and Donald McKenzie (who was also a neighbour) spoke of their familiarity with the complex and their satisfaction with its mode of operation. A council officer, Mr Bowden, was called to say that, in November of 1998, he visited the complex in response to complaints made but, on inspection, found compliance with the relevant conditions of the authority. [14] It is difficult to reconcile all of this evidence and this is not really surprising. When matters of this kind are before the court it is often the case that the reaction of individuals to potentially disturbing influences such as noise can vary greatly. That experience has only been reinforced by the evidence given in this case. [15] I would say at once that I do not believe that any of the witnesses who gave evidence sought to mislead the court. What they heard and how they reacted to that depended largely on their disposition and particular sensitivity or aversion to the sound of barking dogs. [16] Some criticism was levelled at Mrs Cotterill and it was suggested that she had allowed herself to become obsessed with the difficulties which she attributed to the kennel complex. However I believe she deserves a little more sympathy than that. It is not unusual for one to focus on matters that have become a source of distress. One often reacts in a way disproportionate to that in which a less concerned person might. Whether this amounts to obsession in a medical sense I do not know. Nor do I want to trespass into areas where specific training is called for. I speak only from general experience. [17] It is difficult from these subjective accounts to make the objective assessment that would be called for in a case of this kind. However I did have the advantage of evidence from acoustic consultants called by the parties. Mr Carter (assisted by Mr -- 5 of 8 -- 6 Hodge) was called by the applicants and Mr McNeilage gave evidence for the respondents. [18] Each of their assesments was careful and detailed. The voluminous material supporting their opinions was placed before the court. This material shows the results of the extensive noise monitoring that was carried out. [19] For reasons which he explained Mr Carter concluded that dog barking from the kennels was causing a significantly adverse effect on the applicants’ residence. Mr McNeilage disagreed. For reasons which he explained he was prepared to say: “The licensed kennels at 85 Warriewood Street, Chandler, meet all licensing conditions. Under any noise measure recommended by the Environmental Protection Act and supporting documents noise from the licensed kennels is not a problem at the Cotterill property”. That such opposing conclusions were reached appears to be attributable to differences in method. [20] It is common ground that sleep disturbance would not be a problem. Beyond that it is a matter of selecting appropriate criteria to determine whether other noise from the complex was excessive within the meaning of the Environmental Protection Act. [21] A major difference in approach appeared to be the selection of the period appropriate for the averaging of maximum noise events. Mr Carter preferred a one- minute period, while Mr McNeilage believed that this would exaggerate the effect of noise events such as dog barking and regarded a 15-minute period as giving a more reliable and informative result. This he pointed out was more in keeping with currently accepted procedures and guidelines adopted by relevant statutory authorities. [22] Mr McNeilage questioned whether Mr Carter took sufficient account of other factors affecting ambient and background noise levels in the locality. The possibility that barking from sources other than the kennel complex might have intruded into calculations (and into the recorded observations of Mrs Cotterill) was not entirely excluded. -- 6 of 8 -- 7 [23] Mr McNeilage, having the advantage of free access to the respondents’ property, made a close examination of the kennel complex itself and found: “The effect of the kennel’s structure on barking noise from within the kennels was examined. The kennel structure is effective. With all doors and trap doors shut and dogs encouraged to bark, levels just outside the kennels do not exceed 70 d(B)A and the peak levels average just over 50 d(B)A.” He pointed out that 50 d(B)A noise levels would be those in a typical office. [24] I was impressed by evidence of Mr McNeilage and am satisfied that it was in keeping with currently accepted practice. I would not be prepared to discard his conclusions in favour of competing views expressed by Mr Carter. While, at times, activity from the complex may not be completely inaudible, I am unable to find on the evidence before me that the complex is responsible for the creation of excessive noise within the meaning of the Environmental Protection Act.. [25] A more fundamental problem for the applicants arises from the authority itself and the wording of its conditions. The case advanced relied on non-compliance with conditions 1, 2(a) and 2(b). Condition 1 deals with the release of contaminants in contravention of the environmental authority. An attempt was made to draw this case within the ambit of this condition on the basis that noise is a source of energy capable of causing contamination. [26] Whatever might be said about this point, it has to be recognised that the matter of noise is dealt with (under that particular heading) specifically in condition 2. I cannot accept that the authority should be read to require noise being dealt with in a different way pursuant to the operation of condition 1. [27] The applicants’ case referred to contravention of at least some of the separate requirements of condition 2(b) but I believe that this approach involved a misapprehension of this condition’s operation. Essentially it qualifies the operation of condition 2(a). As I interpret it, if all of the measures separately identified in 2(b) are shown to have been taken the need for further inquiry as to whether excessive noise is being emitted from the licensed premises is removed. -- 7 of 8 -- 8 [28] As the condition is written there is no obligation imposed upon a licensee to take each and every one of those measures but if this is not done, the licensee becomes vulnerable to an accusation of a breach of condition 2(a) which must be determined by reference to such facts as may be established in any given case. [29] This to me seems to be the only sensible way to construe condition 2(b). I was referred to a number of authorities on the meaning of the word “deem” and whether or not it should be seen as necessarily creating some statutory fiction. The interpretation which I favour is, in my view, consistent with what was said in Hunter Douglas Australia Pty Limited v Perma Blinds 1969 122 C.L.R. 149, particularly at page 65 by Windeyer J. [30] Initially there was discussion about the burden of proof when exculpatory matters such as those found in condition 2(b) are encountered. This is not a matter upon which it is necessary to dwell in this case as the only compelling evidence as to the taking of these measures came from the respondents’side of the case. [31] The matters were addressed principally by Mr Young whom I found to be a credible and reliable witness. His evidence was, in important respects, supported by that of Mr McNeilage and the veterinarians Day and McKenzie. On the evidence given in the matter I am satisfied that each of these measures were, at all relevant times, taken. That being so an inquiry whether or not excessive noise was emitted from the licensed premises was not really called for. [32] I appreciate the difficulty of the applicants’ position. I accept that they genuinely believed that noise from the kennel complex was excessive. In this they gained the support of an appropriately qualified expert. However having obtained the environmental authority, the respondents, provided they comply with its terms, are entitled to whatever protection it affords them. [33] For these reasons I am unable to make the restraining order sought (or any of the consequential relief) and the application must be refused. -- 8 of 8 --