ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHYB v DAMIANI (Civil Disputes) [2010] ACAT 13

XD 732 of 2009

Catchwords: CIVIL DISPUTES – nuisance application

Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

Case Law: Pittar v Alverez (1916) 16 SR (NSW) 618Munro v Southern Dairies Ltd (1955) VLR 332Victoria Park Racing and Recreation Grounds v Taylor (1937) HCA 45Bathurst City Council v Saban (1985) 2 NSWLRRaciti v Hughes (1995) 7 BPR 14,837Allen v Gulf Oil Refining Ltd (1981) AC 1001Alfreds case (1610) 77 ER 816Gartner v Kidman (1962) 108 CLR 12

Tribunal: Mr P Thompson Member

Date of Orders: 1 September 2009

Date of Reasons for Decision: 23 March 2010

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 732 of 2009

BETWEEN: SYLWESTER CHYBApplicant

AND:MAURIZIO DAMIANI

Respondent

Tribunal: Mr P Thompson, Member

Date: 1 September 2009

ORDER

1. See undertakings on file.

2. No order made except to adjourn these proceedings.

3. Liberty to restore to the list on 7 days notice by either party.

4. Subpoenaed documents can be copied by either party.

………..……………………………..Mr P Thompson

Member

REASONS FOR DECISION

1. On 16 July 2009, Dr Sylwester Chyb filed a Nuisance Application in the Tribunal in which he named his neighbour, Mr. Maurizio Damiani as the respondent.

2. In his application, Dr Chyb, who resides at 75 La Perouse Street, Griffith, alleged that Mr. Damiani, who then resided at 73 La Perouse Street, Griffith, had, shortly after the Chybs moved into their new home, “embarked on an unprovoked and malicious campaign of harassment against my family.”

3. According to Dr Chyb’s application, there were four issues that had caused, or in some cases, continued to cause nuisance to him and his family. Those issues were stated to be:

1. noise from the pool equipment and reverse cycle unit located opposite our living spaces,

2. external lights on the SE and NE walls of the Damiani’s

house which face our property,

3. Illegal development – cubbyhouse on a raised platform surrounded by raised decking,

4. Mr. Damiani taking photographs of us from cubbyhouse and and [sic] his house.

4. The details of each of the four issues forming the basis of the Nuisance Application are fully set out in the application, and will be dealt with later.

5. Dr Chyb went on to state that as a result of the above actions of Mr. Damiani:

...we have suffered significant loss of quality of life and needed to involve government agencies to help us resolve the situation. When we thought the noise issue was addressed, Mr. Damiani switched to harassing us with external lights. When this was resolved by the fine, he went back to subjecting us to noise. Both my wife and myself sought professional medical advice to help us deal with the stress caused by behaviour of Mr. Damiani.

6. The remedies sought by Dr Chyb as set out in his application were:

1. Relocate the pool equipment and reverse cycle away from our private open space. Cease using the equipment until is [sic] relocated and complies with allowed ACT noise levels.

2. Stop using external lights (6 of these face my property) until fully covered using Australian Building Code approved materials: ABC prohibits use of reflective

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materials. Refrain from leaving these lights for prolonged time [sic], and refrain from using these lights frequently during the day and at night

3. Lower the cubbyhouse by removing the platform so that its windows are not over the boundary fence. Lower the associated decking accordingly.

4. Fit the upstairs en suite window with a limiter so that this window cannot be fully open and thus cannot be used for taking pictures of us in their property.

7. In addition to seeking the above orders, Dr Chyb claimed the following monetary amounts:

Fee for commencing proceedings $115.00Charges and out of pocket expenses $1,870.00Damages $8,000.00

8. The total amount claimed by the Applicant was stated to be $9,985.00, plus interest, with the amount claimed by way of damages expressed to be a token amount of $1,000.00 for every month the Chybs claimed to have been affected.

9. The charges and out of pocket expenses included $930.00 for temporary fence panels with blackout fabric, $330.00 for legal expenses and $610.00 for medical expenses.

10. Dr Chyb was advised in writing by the Deputy Registrar on 22 July 2009 in relation to the effect of Section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and how he should go about claiming the other costs in his Application.

11. Subsequently, an amended Application was forwarded back to the tribunal by Dr Chyb on 7 August, 2009. That Application, although not date stamped, appears to have been accepted by the Deputy Registrar.

12. Whilst the total amount claimed in the amended application remains the same, the claim for out of pocket expenses has been reduced to nil, while the amount claimed for damages has been increased by $1,870.00, which presumably, still included Dr Chyb’s legal expenses. The date on the amended Application remained as 16 July, 2009.

13. According to file notes and certifications, a copy of the amended Application was post addressed to the respondent as Mr. Maurizio Damiani on 11 August, 2009, with a copy also being handed to him at the Registry counter on the same day.

14. Subsequently, a Response was filed by Dr. Damiani dated 13 August 2009. Again the document has not been date stamped by the registry staff, but a copy

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of it was forwarded to the Applicant on 19 August 2009, along with a Hearing Notice, advising that the matter would be heard on 1 September, 2009.

15. In his Response, the Respondent disputed each and every one of the Applicant’s claims. That Response is set out fully as follows:

Point 1

Noise from pool equipment and A/C

Location of pool equipment - The pool equipment was located within the designated “service court” as shown on approved plans - 07972/B dated 18 Dec 2007, next to the existing A/C unit. These plans were submitted by the previous owner, who designed and built the house. This service court is on the south wall of my property and in closest proximity to the Gas and Electricity meters. The applicant had access to these plans prior to their approval, as part of the development process, and for consideration during the design stages of his property.

The pool equipment was installed in August 08. It was used until it was brought to our attention in January 2009 by EPA inspectors that it exceeded the maximum sound levels. I immediately sought to rectify this issue by constructing a timber enclosure lined with sound proofing material, this complied with EPA requirements, and thus no further measures to reduce noise levels were required by the EPA. There are currently no outstanding EPA infringements regarding pool equipment.

Pool Heater - Pool heater is used in accordance with pool use and no infringements or warnings have been issued to indicate it violates noise limits.

Air-conditioning Unit - The A/C unit was installed prior to my ownership of the property. It is located in the “Service Court” as shown on approved plans - 07972B dated 18 dec [sic] 2007. I have used the A/C unit consistently since moving into my property in April 08.

Following un-validated complaints, at my request EPA visited our property. Sound checks were conducted by EPA officer Rodney Dix, to resolve the ongoing concerns raised by the applicant. Noise levels were taken on all equipment, and indicated everything complied. I continued to use this equipment with complete confidence that it complied.

I was very shocked to then receive a warning and subsequent infringement for noise exceeding 35 dB(A), these levels were recorded at 4.30 am and 4.00 am. Subsequently, I have only used the unit during the hours of 7am to 10pm in accordance

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with EPA guidelines. The unit was immediately inspected by the service provider, who found no defect. I have also made arrangements for the unit to be fitted with an acoustic enclosure.

No further complaints or requests have been received.

Point 2

External lights SE and NE walls

External lights, installed by the previous owner in 2007, were approved as part of the base building structure, and these were used for lighting purposes as required. This was initially raised as a concern in December, 2008 after the applicant, who was making arrangements to move into his property, requested that the lights not be left on overnight, as they had not had blinds installed. I complied with this request and continued to use the lights only when required.

In January, during the EPA investigation into noise from pool equipment, I raised the issue of our lights with EPA officer Steve Thomas. I was informed that light pollution complaints were typically isolated to sensor spot lights and tennis court lighting. He advised that as my lights were only low wattage bunker lights, it was unlikely that they would be deemed a violation. I continued to use these lights with complete confidence that they complied.

In February 2009 I received a warning from the EPA re-light pollution... After I sought consultation with the EPA, the lights were modified in accordance with EPA requests. At my request, these modifications were checked with EPA officer Rodney Dix to ensure that they complied and to resolve the ongoing concerns raised by the applicant. EPA officers were satisfied that I had fully resolved this matter.

The infringement notice was issued less than 24 hours after I received the warning notice (not ignored) and it has been appealed on the grounds that insufficient time was given between warning and infringement issue.

No further complaints or requests have been received.

Point 3

Cubbyhouse and decking

The cubby-house was installed to code. It stands at 3 meters from natural ground level, and exceeds the required boundary clearances. A cubby house is classified as a class 10a building

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as outlined in ‘ACTPLA Planning and development regulation 2008 schedule’, and is exempt from planning approval.

DA was sought for this structure due to its proximity to the sewer easement.

This DA is still currently outstanding.

The decking - links my laundry to the cubbyhouse, or to the pool area.

This deck has been constructed to meet three requirements.

1. To replace the pre-existing laundry landing-the height of which remains unchanged. (During the construction of my pool it was necessary to remove the existing laundry landing and stairs).

2. To maintain the pool and pool fencing requirements. The pool and associated pool fence attaches to the deck in question. It is approved; see attached, Certificate of Occupancy and use-number 082714N1C1.

3. To compliment design and function of this space and provide an aesthetic look. After consultation with my certifier, I proceeded to connect the cubbyhouse to the laundry landing and to the pool fence.

DA for this structure has been sought due to onerous complaints from the applicant.

This DA is still currently outstanding.

Point 4

Photographs - Over the past 9 months I have taken many photographs as a record of my experiences here. I have photographed the development plans and progress. As well as taking many photographs to document the development and activity on my property I have also at times taken photographs to show evidence that the applicant has taken measures to monitor my property, including photographs video footage CCTV, and now expensive sound equipment.

None of the issues raised by the applicant have occurred in a malicious manner. I have demonstrated that once validated the applicants complaints have been fully remedied in an expeditious way. I have at all times maintained an open relationship with the applicant and the Departments involved, and I have not engaged in any hostility.

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I believe the applicant has made no direct attempt to raise his concerns, in an amicable way. I received one letter from the Conflict resolution service, however at this time, all measures had been taken to resolve current issues. Also at this time, I had positive interactions with the applicant, and had believed the situation to be greatly improved.

Currently I am in the process of selling my property, and hold the costs of two properties until a sale is obtained. These proceedings raise concerns as to how to proceed with the current marketing strategy and have the potential to cause delay. Whilst I have not presently lodged a counterclaim, these proceedings may have an impact on, or delay the sale. This may incur significant financial losses that can not be ascertained at this time.

I believe the applicant’s claim is baseless.

16. As stated above the matter was listed for hearing by the tribunal on 1 September, 2009 with the time fixed at 3pm.

17. On that date, Dr Chyb appeared in person with Dr Damiani being represented by Ms Kate Mahoney of Trinity Law. Dr Damiani was accompanied by his wife Mrs. Nicole Damiani and a witness, Mr. Maurice Falcetta.

18. During the hearing Dr Chyb formally tendered the following documents:

Exhibit A Site PlanExhibit B Document headed ‘SOUNDBLOCK SOLUTIONS’

The Respondent’s solicitor, for her part, handed up three bundles of documents headed:

1. The Respondent’s Bundle of Documents2. EPA-FOI Documents-Part 13. EPA-FOI Documents -Part 2

Whilst these three bundles were referred to during the proceedings without objection from Dr Chyb, they were never formally tendered in evidence. On reflection, that was an error on my part. They should have been formally tendered.

19. In support of his application Dr Chyb informed the Tribunal that he had moved into his premises in late October 2008 and since then had been subjected to long periods of light and noise pollution, and had also suffered a loss of privacy. Sometimes, it was claimed, the noise pollution had continued for weeks on end.

20. Asked by me if that was still the case, Dr Chyb replied to the effect that since an infringement notice had been issued to the Respondent, he was no longer being

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subjected to light pollution, and couldn’t say that there was any ongoing noise pollution.

21. Asked to clarify the reasons for coming before the tribunal in the absence of any ongoing noise and/or light pollution, Dr Chyb stated that one particular problem had precipitated his application and that was the Damiani’s pool heater, which emitted low frequency vibrations and was used for hours on end.

22. At this point, Ms Mahoney sought and was granted leave to put a submission before the Tribunal. Basically Ms Mahoney was seeking that the Tribunal dismiss the Applicant’s claim without hearing further evidence from him.

23. In the Respondent’s written submissions, which were handed up and are now on file and form part of the records of this case, the Respondent sought leave to tender the three bundles of documents referred to above. The submissions also set out a detailed history or background to the dispute. A good deal of those background details had already been set out in the Response filed by the Respondent, however some important additional details were provided, which, together with evidence given by both parties during the hearing, were useful in coming to a decision in this matter.

24. In his original Application, Dr Chyb stated that the Respondent took a decision to locate pool equipment on the SE wall of his house, opposite the Chyb’s open space, living room, kitchen and family room. According to the applicant, pool equipment, including the pump, chlorinator and gas fired heater would be left on by the respondent for hours or weeks at a time. Dr Chyb specifically mentioned a period from late December to mid January when the Respondent was away on holidays.

25. Also, according to Dr Chyb’s application, following a complaint by him, the Respondent was advised to consult with an acoustic engineer, with a view to enclosing the equipment to ensure that noise levels complied with ACT law. Dr Chyb was not satisfied with the works carried out, which included 2 colour bond rainwater tanks, claiming that instead of absorbing the sound, it was now reflected and directed towards his house. According to Dr Chyb, the pool heater continued to be above the limit recorded by EPA at 47 Dba and that it also emitted low frequency vibrations resulting in 68dBC.

26. Dr Chyb went on to claim that as the pool heater was used for several hours per day to heat an outside pool, they had effectively lost the use of their private outdoor space and that the low frequency noise penetrated into his house despite, double glazed windows. Dr Chyb also stated that he had purchased an expensive sound level meter, so that he would not have to ask EPA officers to attend his premises in vain.

27. According to the Respondent’s submissions, he purchased the newly constructed property at 73 La Perouse Street, Griffith ACT in about April 2008. At the time the Applicant’s property was under construction next door at 75 La Perouse Street. The Respondent went on to claim that relations between the

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parties began amicably, and that intentions to complete further improvements to the property, including the pool, were discussed openly with the Applicant.

28. In relation to the specific complaint regarding continual noise pollution for the period in late December 2008 to mid January 2009, the Respondent stated that he was overseas at the time but that on 26 December, 2008 the area of Griffith was hit by a severe thunder storm, which resulted in large bits of debris such as bark falling into the pool which, in turn, was subsequently caught in the pool filter. On 6 January 2008, the Applicant sent an SMS to the respondent in relation to what he claimed was the noise emanating from the pool pump, as follows:

Hi Maurizio-hope you have good holidays, it is v hot here. is there a way your filtration could be set on a timer as my son cannot sleep with an open balcony door at night because of the hum? Thanks, Sylwester.

29. As a direct result of that SMS, the respondent arranged to have the pool serviced a number of times between 14 January 2009 and 30 January 2009. According to the submissions, the service technician found no defect other than the debris which had been caught in the pool filter.

30. Also, following a number of complaints in relation to the air-conditioning unit and the pool equipment, the Respondent stopped using the pool pump between the hours of 10pm and 7am. He also subsequently enclosed all the equipment, which has since also been roofed and lined with sound proofing materials. The Respondent estimated that he had expended over $10,000.00 in “proactively dealing with matters.” This, I believe, also included the costs of the original planting of mature trees on the border between the two properties.

31. The submissions went on to give background information and detail efforts made by the Respondent to modify his bunker lights, obtain approval for his cubby house and mount a defence to the allegations regarding the taking of photographs. Legal argument was also put forward as to why damages should not be awarded against the Respondent in this matter.

32. After reading the submissions I formed the view that whilst those submissions could be put to me at the conclusion of the evidence, provided of course that they were supported by the evidence, the applicant should be allowed to proceed with his case.

33. Dr Chyb acknowledged reading the submissions and had no dispute with their factual content, but claimed that the Respondent’s efforts to address his concerns were “too little, too late.” According to the Applicant, EPA readings taken the day before the hearing, although complying with the day time levels may not comply with allowable night time levels. However this evidence was obtained by the Respondent and thus was further explored with the Respondent and his wife.

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34. From her evidence it can be stated that the equipment was noise compliant during the day, and would comply up to 10pm at night. Whether it would comply after that time was another issue, however the Respondent’s evidence was that the equipment was not operated after 10pm at night.

35. Dr Chyb was obviously concerned that the Damianis had sold their property, and that the new owners may want to use the equipment after 10pm, not knowing that the equipment may not be compliant. I went to considerable lengths at this point to advise him that any order made by me would only apply to the Respondent and that it would not attach to the house or its new owners or the equipment itself. Dr Chyb acknowledged that he accepted this advice. However, Dr Chyb was in my view more intent on seeking damages for past perceived non compliances on the part of his neighbour than acknowledging the steps he had taken to abate any nuisance, either perceived or real. For the record, some of the complaints in relation to light and noise pollution, if not all, were vindicated by the subsequent actions of EPA officers. However, on the evidence it can be stated that all concerns were addressed to at least some extent, by the Respondent.

36. The Respondent admitted to the Tribunal that they had been fined twice following EPA investigations. Once for noise pollution and once for light pollution. The light pollution fine was being appealed.

37. This however, obviously did not satisfy Dr Chyb. According to Dr Chyb, following his first complaint, the Respondent was advised by an EPA officer to engage an acoustic engineer and build an acoustic enclosure. He had not done so. Whilst he had built an enclosure, it was not an acoustic enclosure. The respondent however disagreed with this claim. Ms Mahoney stated that a proper acoustic enclosure would have cost $14,000.00 but the one they constructed sufficed, as it had had a roof and sound deadening material added. The latest EPA readings taken at 3pm the day before, which showed that noise levels were below allowable maximums for day time use, confirmed this in my view.

38. Dr Chyb had issues with this, however, as he believed that the equipment would have to work harder at other times of the day and proposed that a voluntary reading be taken the following day. I advised him that that was not possible and that I could only base my decision on evidence properly before me. Dr Chyb was simply not in a position to tender any credible evidence to the Tribunal showing that noise levels, on his side of the fence, infringed allowable levels for noise. Those levels were acknowledged to be at least 6 decibels less on his side of the fence than readings taken on the Respondent’s side of the fence.

39. Dr Chyb did however, have one photograph of himself and his equipment showing that noise levels were exceeded on a day when the reverse cycle air-conditioning was said by him to be operative. I could however place little weight on that photograph from an evidentiary angle, as there were too many unknowns. Dr Chyb was informed to this effect and that I could only rely on official EPA readings.

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40. Evidence however suggested that the water tanks included in the construction may have created a problem, in that they could reverberate sound. This issue was subsequently dealt with, and is referred to later in these Reasons.

41. I was not however, prepared to entertain Dr Chyb’s initially sought remedy that the pool equipment and reverse cycle air-conditioning unit be relocated away from the Chybs’ private open space, or that the Respondent should be restrained from using the equipment until the unit was relocated and complied with allowed ACT noise levels.

42. Turning to the issue of the lights, which were described to me as bunker lights, I was advised that there were three at the back of the house and three at the side. The parties were in agreement that they did shine light into the neighbouring property, but had since been substantially modified in an attempt to alleviate Dr Chyb’s issues with them. Dr Chyb’s issues had not however been addressed according to him and the lights were still a problem. Whilst accepting that Dr Chyb had a legitimate complaint in relation to the lights and also a right to have that complaint addressed by the EPA, I was of the view that Dr Damiani had acted reasonably in relation to the lights, and had taken what he thought were reasonable steps. I did not accept Dr Chyb’s views that Dr Damiani was being deliberately recalcitrant. Nor did I accept that Dr Damiani tried to manipulate the times when the officers took their EPA took their readings.

43. Dr Damiani actually appeared to me to be a more than reasonable person, and one who was anxious to avoid any more difficulties as well as fines. He informed the Tribunal that their current practice was not to turn the pool filter on after 5pm and to turn the air conditioning off at 10 pm, because they were aware that it exceeded the allowable noise levels on the other side of the fence for that time of night.

44. Dr Chyb for his part said that they initially were seeking that the pool equipment be put on a timer and that it only be used during the period that his household were at work, that is between the hours of 9am to 3pm. I told him that I considered that to be unreasonable, as it was in excess of government restrictions.

45. The next issue of concern to Dr Chyb was the lights, whereupon I gave my opinion that the lights should not be used at all, and that I understood that that was the current position.

46. The remedy sought by Dr Chyb for this issue was stated to be:

Stop using external lights (6 of these face my property) until fully covered using Australian Building Code approved materials...

According to Dr. Chyb’s application:

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ABC prohibits use of reflective materials. Refrain from leaving these lights for prolonged time [sic], and refrain from using these lights frequently during the day and at night.

47. In his application, Dr Chyb states that over the past 7 months the respondent used to leave very bright external lights facing his living space and bedrooms on all day and all night for several weeks at a time until Environment ACT issued an infringement notice. According to the applicant 4 of these lights faced directly into his master bedroom, affecting him and his wife greatly, and causing them to seek medical help to deal with stress, resulting in the prescribing of a course of long term medications. However no evidence of a medical nature was produced to the Tribunal to support this claim.

48. Dr Chyb sought to tender a time line showing when the lights, in his words, “were used against us.” I, at the time, couldn’t see the point, as the lights were no longer being used and Dr Chyb did not labour the point at the time. However, this time line was later handed to me and I noted its contents.

49. The Respondent’s submissions highlighted that where case law had found that flood lights may constitute a nuisance, the lights on the southern side of his property were not floodlights, and instead were low wattage bunker lights and were used predominately for security purposes. Further, that they were residential lights used in a residential area and that the onus of proving that one had suffered more inconvenience than would be expected in a residential area, in Canberra rested with the applicant. Pittar v Alverez (1916) 16 SR (NSW) 618 at 627, Munro v Southern Dairies Ltd (1955) VLR 332.

50. Finally on this point, the Respondent submitted that without admitting liability he had modified the external lights in accordance with guidelines by the Environmental Protection Authority and had not received any notifications of breach despite numerous agitations by the applicant, and further, that there was, in his submission, no nuisance in relation to the lights on the southern side of his property.

51. Dr Chyb turned next to the issue of photographs allegedly taken by the Respondent. In his initial Application, Dr Chyb stated that on one occasion, the Respondent used the cubby house to photograph him and his family with a flash, whilst they were in their garden. More recently he was observed (and photographed) the Respondent photographing the Chybs from the window of his upstairs bathroom.

52. In order to remedy or prevent such conduct, Dr Chyb was seeking that the upstairs en suite window (of the Damiani residence) be fitted with a limiter so that the window cannot be fully opened and thus cannot be used for taking pictures of the Chybs in their property.

53. For his part, the Respondent argued in his written submissions that the use of cameras and video equipment did not create a cause of action in nuisance and quoted two authorities for that proposition: Victoria Park Racing and Recreation Grounds v Taylor (1937) HCA 45 and Bathurst City Council v

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Saban (1985) 2 NSWLR. However, the submission went on to state, “[w]ith respect, this allegation of nuisance is entirely baseless.”

54. While the respondent does not agitate this issue, he noted that the positioning of a camera by the applicant to film a neighbouring house on an ongoing basis, together with light and sound recording devices for that purpose constitutes an actionable nuisance: Raciti v Hughes (1995) 7 BPR 14,837 confirmed in Gee v Burger (2009) NSW 149.

55. Whilst Dr Chyb stated that he was taking a photograph of the Respondent photographing him, Dr Damiani for his part said he was photographing the Applicant “burning off” in his backyard, which he felt was a danger to him and his property. Dr Chyb explained that he was using a brazier for cooking. I accepted his advice but advised both parties that they should desist in such behaviour which I found to be creepy to say the least. Further, I advised the parties that whilst I understood some photographs may have been taken for evidentiary purposes, I didn’t propose to make any orders in relation to this particular issue.

56. Pressed on this issue by the Respondent as to whether my view that they ought not to be photographing one another extended to video-taping and following my reply in the affirmative, the Respondent stated that he had evidence that suggested that the Applicant was video-taping his wife. I advised him that in my view, that was more appropriately a matter that should be dealt with by a restraining order, if warranted.

57. In any event, I was far from satisfied on the evidence that an actionable nuisance had been caused by the Respondent to the Applicant from taking a couple of photographs for evidentiary purposes, especially in an environment where both parties were doing the same thing.

58. At this point Ms Mahoney submitted that it would be inappropriate to make any orders in relation to the noise or light issue, as any possibly nuisance had already been abated. I informed her that it was still appropriate for the Tribunal to make an order to prevent the reoccurrence of the type of conduct or nuisance of which evidence had been led or given that had happened in the past. I was satisfied that such evidence existed by virtue of the EPA fines.

59. I was also satisfied that the lighting was too bright and lit up the southern side of the property like “A Christmas tree.” Further, that if possible, I wasn’t going to make any finding in relation to nuisance, but, if the parties were in agreement, would make consent orders in relation to abating any future nuisance.

60. The remaining issue was the complaint in relation to the cubby house. Basically Dr Chyb had two issues with the cubby house: The first related to its height and the second one, which was dealt with above, was it being used to take photographs.

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61. In his application, Dr Chyb detailed how and when the cubby house was constructed. The structure was on a raised platform opposite the Chybs’ family room. According to the Applicant its windows were above the 1.80 meter fence, with one of its windows facing the Applicant’s open spaces, whilst the other faced his garden. This structure was later augmented with decking built around it so that adults were visible from the waist up.

62. According to the Applicant, both structures required prior ACTPLA approval, which was not sought prior to the Applicant making a complaint. Dr Chyb went on to state that ACTPLA management subsequently issued an ultimatum to the Respondent to either seek DA approval or face a court order to demolish the unapproved structure.

63. Dr Chyb’s stated remedy was to seek to lower the cubby house by removing the platform, so that its windows were not over the boundary fence, and to lower the associated decking accordingly.

64. Basically, the Respondent submitted that the cubby house was an approved structure and that I should find on the evidence that its use was reasonable as to its locality. The authority quoted here was Allen v Gulf Oil Refining Ltd (1981) AC 1001. Further, that there was no liability in nuisance by one who even deliberately blocks another’s view so long as the defendant’s acts were otherwise lawful: Alfreds case (1610) 77 ER 816 confirmed in Gartner v Kidman (1962) 108 CLR 12 at 46 per Windeyer J was cited for this proposition.

65. I accepted the Respondent’s advice that the structure had since been approved and did not consider that the cubby house or its use gave cause to a nuisance action on the part of the Applicant against the Respondent. Dr Chyb, whilst accepting of my decision on this issue, informed me that he was appealing the decision to grant approval of the structure. That of course was within the Applicant’s rights, and not a matter for consideration or comment by the Tribunal.

66. Certainly there was no evidence before me that the Respondent was using the cubby house in such a manner as to deliberately create or cause a nuisance, and I so found.

67. Dr Chyb in his Application stated that as a result of the Respondent’s actions:

we have suffered significant loss of quality of life and needed to involve government agencies to help resolve the situation. When we thought the noise issue was addressed, Mr Damiani switched to harassing us with external lights, when this was ‘resolved’ by the infringement notice, he went back to subjecting us to noise. Both my wife and myself sought professional medical advice to help us to deal with the stress caused by behaviour of Mr Damiani.

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68. Dr Chyb went on to claim unspecified damages in the sum of $9,870.00. Again, at the hearing no evidence was given or tendered by the Applicant to support this specific claim.

69. The Respondent, for his part, in his written submissions stated that the Applicant held the burden of proof in proving that there had been a substantial interference in the enjoyment of his property and that this interference was due to the unreasonable conduct of the respondent

70. Further, the applicant was seeking to recover damages however there were no particulars allowing the respondent to make submissions in respect of those other than the general submission that no award of damages was appropriate. The submissions went on to state under the heading of ‘Damage’ that

if it is submitted by the applicant that the damages constitute the costs of an ‘expensive sound level meter’ it is submitted that this cannot be recoverable as this equipment is for the purpose of evidence gathering and not a loss or damage which the applicant has suffered as a result of the applicant’s [sic] conduct.

71. The final reference to applicant above should of course have read respondent.

72. I accepted that this was indeed the case and that the Applicant had not satisfied me that damages were appropriate in the circumstances.

73. Following that, there was also a fair deal of discussion around events concerning Dr Chyb’s builder, but I did not consider those matters terribly relevant to these proceedings and make no comment here on those matters. Subpoenaed documents in relation to those issues were not before the Tribunal at the time. Whilst they were subsequently tendered, they were returned to the owner as they did not contain relevant or admissible material.

74. Dr Chyb, during the proceedings pressed that he was seeking damages for past breaches and, in addition, was seeking to have the Tribunal make orders to prevent any further or additional breaches, as well as ensuring that any new owners of the Damiani house could or would not infringe ACT noise pollution levels when using the equipment. I informed Dr Chyb that while I understood his concerns, I could not make any orders binding anyone who was not a party to the current proceedings.

75. As stated above I agreed with the submissions of the Respondent in relation to damages in that the Applicant did not in his pleadings, or subsequently in his evidence, point to any specific or general damages as a result of the Respondent’s conduct that was of such a nature as to warrant the granting of an award in his favour. Further, his wife was not a party to these proceedings and I was thus prevented from making any damages award in her favour, even if there had been evidence before me in relation to her.

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76. Nor did I accept the applicant’s assertions that the Respondent had been malicious or deliberately trying to cause a nuisance to him or his family. After hearing all the evidence, I accepted that the Respondent had acted reasonably in the circumstances, and had taken action to abate any perceived nuisance, at considerable cost to him.

77. I was, however, concerned to ensure that there were no further breaches on the part of the Respondent and considered making a formal order in respect of the use or non use of the bunker lights, if such orders could not be made by consent.

78. I was subsequently persuaded by Ms Mahoney that such orders would be unjust in the circumstances, and that they would also adversely affect the impending sale of the Damiani home. I then advised Dr Chyb that I was not going to jeopardize the sale of the house. I also accepted that such action would have possibly caused financial hardship to the Respondent, as well as giving rise to possible further proceedings between the parties.

79. I was helped to arrive at this decision by Ms Mahoney advising me that her client would be prepared to give Undertakings to the Tribunal, addressing the matters of most concern to the applicant. The restrictions in the proposed Undertakings exceeded those that would have applied under EPA legislation. They also went some way to alleviating the perceived problems of continued noise pollution, after the home was sold.

80. Dr Chyb then advised me that he certainly did not want to jeopardize the sale of the house but still wanted the new owners to be made aware of the issues raised by him and any possible restrictions imposed by the tribunal.

81. Those undertakings, which were accepted by me, were as follows.

UNDERTAKINGS WITHOUT ADMISSION OF LIABILITY BY THE RESPONDENT

A. The respondent undertakes to turn off the pool pump outside the hours of 8am-10am - 12pm-5pm. i.e. will be off 5pm to 8am. (including weekend).

B. The respondent best endeavours to soundproof sides (water tanks)

C. Mr Damiani not to use side lights of propertyD. Matter to be stood over generally.

82. Those undertakings were subsequently reduced to writing, signed by the Respondent and handed up to the Tribunal. I believed that Dr Chyb was agreeable to that course of action, as he contributed to the drafting of the undertakings. The Applicant declined to sign the undertakings however, and I didn’t press the issue.

83. Dr Chyb was also advised that in the event of a proven breach of the above undertakings the matter could be listed back before me, and I would give consideration to making formal orders.

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84. This hearing was difficult for a number of reasons. A decision had been made to list the matter for hearing without the normal pre trial conference. During the hearing itself, I was conscious of the fact that the Applicant was unrepresented and possessed a lack of knowledge in how to present his case, whilst the Respondent was legally represented and judging by the documents produced, a great deal of effort been put into his defence, with ample supporting proof. He also had witnesses available if necessary. I was therefore intent on preceding in as informal a manner as possible, in order to achieve a fair and equitable result based on the available evidence. I believe that this was achieved.

85. At the conclusion of the proceedings and after undertakings had been given, Dr Chyb asked me how to go about claiming his damages for the previous alleged damaging behaviour on the part of the respondent. This was after not producing any evidence to support such damages or properly arguing this matter during the hearing itself. I informed Dr Chyb that I was not in a position to give him what I considered to be legal advice. I also informed Dr Chyb that in the circumstances, I had no power to award him damages in the absence of evidence as to what those damages actually were. That there was simply nothing before me for me to go on.

86. Certainly I was not satisfied on the evidence that his claim that the Respondent had, in his words, after the Chyb’s moved into their new home “embarked on an unprovoked and malicious campaign of harassment against my family” to such an extent, if any, that would justify an award of damages to Dr Chyb.

………..……………………………..Mr Phil Thompson

Member

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PUBLICATION DETAILS

TO BE PUBLISHEDTo be completed by Tribunal Staff

PART A FILE NO: XD 09/732

APPLICANT: SYLWESTER CHYBRESPONDENT: MAURIZIO DAMIANI

COUNSEL APPEARING: APPLICANT:RESPONDENT:

SOLICITORS: APPLICANT:RESPONDENT: MAHONEY

OTHER: APPLICANT: SELFRESPONDENT: SELF

TRIBUNAL MEMBER/S: MR P THOMPSON MEMBER

DATE/S OF HEARING: 1 September 2009 PLACE: CANBERRA

DATE/S OF DECISION: 1 September 2009 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

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