A Northern Rivers company is appealing in the NSW Land and Environment Court a lower court decision related to a council order limiting the use of the scare gun at its property at Dunoon, near Lismore.
A Northern Rivers company is appealing in the NSW Land and Environment Court a lower court decision related to a council order limiting the use of the scare gun at its property at Dunoon, near Lismore.

Lismore council accused of ‘sloppy’ farm prosecution

LISMORE City Council's prosecution of a Northern Rivers blueberry farming company over the use of a bird scare gun has been labelled "sloppy" in court.

AAA Horticulture and Hydroponics Farm is currently appealing in the NSW Land and Environment Court a lower court decision related to a council order limiting the use of the scare gun at its property at Dunoon, near Lismore.

In 2019, Lismore Local Court imposed a $2000 fine on AAA Horticulture after convicting it of failing to comply with a council direction under NSW environmental laws in relation to the device and also ordered it to pay $20,000 of the council's court costs, according to previous media reports.

The long-running dispute arises out of noise complaints in 2017 from local residents about the gas-powered device, which prompted the council to make an order limiting the gun's use to a maximum of six times per hour. The council received further noise complaints about the device mid-2018.

On Tuesday, AAA Horticulture's lawyer, Hugh Marshall SC, accused the council of "sloppiness or inexactness" in making its directions to the director of the allegedly offending company, not the company itself, in what he described as a "very serious" matter.

"The council has fundamentally failed to comprehend the most basic principle of commercial law, that if you're going to sue an entity, that it be crystal clear on the document what entity you are suing," Mr Marshall told the court.

"That in our submission is dispositive of the appeal."

He also told the court there was no evidence that the device discharged more than six times per hour, saying that allegation depended "when in time the hour starts and stops".

The court heard that after complaints in July 2018 from neighbours of AAA Horticulture, a council worker visited the farm the same month and recorded nine firings within two-and-a-half hours. The noise was described in court as a "booming, cannon type" sound.

"In that first hour there were six discharges and that does not exceed the direction," the appellant's lawyer said.

"There must be a reasonable doubt in your honour's mind that the offence has been made out."

In her argument, Natasha Hammond, for the council, said some of the correspondence relied on by the appellant's legal team had "no relevance to these proceedings".

The hearing continues before Justice John Robson.



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