summarise the case study of Hotel Millenia v worship centre christian churches

Counsels: Ms MV Peteru for the plaintiff Mr. G. Late for the defendant: Hearing: 16 July 2009 Decision: 17 July 2009 DECISION OF NELSON J. The plaintiff is an hotel and has been operating boarding and related facilities at Sogi in Apia since the year 2000. Recentlyit upgraded its operation by the addition of 30 new up market rooms and a swimming pool. These are located at the rear of its Sogi property and the pool is located next to its boundary with the first defendant. The first defendant is a charitable trust incorporated in 2005 for religious purposes. It is headquartered at its Sogi land and has been so since 2005. It is situated next door to the plaintiff's establishment. The first defendant on its Sogi property holds church services twice a week on Friday evenings from 7-10pm and on Sundays, a morning service from 9-12noon and an evening service from 5-8pm. The second defendant is the pastor of the first defendant congregation and he deposes in his affidavit that Sunday services involve about 1,000 worshippers bused in from all over the country as there are no places of worship for them in their areas. The services and worship involve not only singing and the use of many types of musical instruments some of which are electric in nature but also preaching, clapping and other noise generating activities. Large amplifiers, speakers, subwoofers and a sophisticated 48 channel sound system with an output of many thousands of watts has in the past been used to amplify and increase the raw power of the defendants message and devotions. The affidavit of their sound technician Mr Filipo indicates a total power output in the vicinity of some 12,000 watts, the sort of level you would expect at an outdoor rock concert. This has been the source of much discontent and annoyance to the plaintiff, its guests and patrons. It is apparent on the material before me that there has been correspondence going as far as back as 2006 and eventually in 2008 the plaintiff sought the assistance of the Planning and Urban Management Agency of the Ministry of Natural Resources andAs to the second consideration ofbalan.ce of convenience it has been submitted by the defendants an injunction would impede on the financial operations of the Church such that it would cripple it and not allow it to function or pursue the exercise nfits rights of religious freedomand worship. 1'With respect that misunderstands the nature of the relief sought. The essence of the plaintiffs complaint is not noise but excessive and unreasonable noise. Thedefendants are still free to conth their activities provided they tnneit down toacceptablelevels. It is not and. would not be the goal of the court to shut down the defendants operation or indeed any form of religious worship or activity. Far from it. it is the goal and responsibility of the court is to ensure that in future such activities are conducted in a lawful and appropriate manner. In this case within the approved. Puma noise limits and without causing any unreasonable disturbance to users of the adjoining facilities. The balance of convenience was dened in the Essie case: ID "Though expressed as a 'balance of convenience'. the balance that the court seeks to make is more fundamental and weightier than mere convenience - it is the 'balance of the risk of doing an injustice' that better describes the process. In assessing where this balance lies. the lllourt must weigh the respective risks that injustice may result from its deciding one way rather than the other at a stage when the evidence is incomplete." Bearing in mind what is stated. above the balance in my respectful view lies in favour of issuing the interim injunctive relief sought. Accordinglyanintetim injunction is tn issue as against the defendants. their employees: agents. members of their congregatinnand anyone acting for. through or by any of them in the following terms. 1. prohibiting the conducting ofFriday services in excess of the approved applicable Pimannise levelsand in anyevent suchservicesarenot toextendbeyond 10pmat night; 2. prohibiting theconducto'falltmday services untilsuch timeas Pumaand theplaintiff are satised that adequate measures and safeguards have been put into place to ensure that theapplieablePumanniselevelswillnot beenceededduringsuchsetvices; and 3. prohibiting theconductingofsetvicesnnanyntha day or at any other time that may result in the applicable Puma noise levels for this area being breached. Planning and Urban Management Agency of the Ministry of Natural Resources and EnvironmeJt: also known as Pint-IA established pursuant to the Plg' and Urban mtmm. The agency's functions include pursuant to section 9(a) of their legislation implementing ofthe provisions of the legislation in accordance with its objectives. One such objective by virtue of section E-(d) is "To secure a pleasant. efficient and safe working. living and recreational environmeatfnrall Samoansand visitors to Samoa." The agency's functions also include that in section 9(b} (iv) namely "preparing and approving planning provisions and any requirerrleats developmeat standards or guidelines provided for by this Act or which may facilitate its implementation or advance its objectives." The Agency wrote to the second defendant on 3 December 21303 about the plaintiffs complaints advising the second defeadant they will be carrying out sound level readings to ascertain if the complaints were justied. No response appears to have been given to that correspondence but the agency carried out its tests and determined that the defendants' noise levels exceeded those prescribed for this area by the Puma Noise Standards Policy. It found the defendants tobeinbreach ofsection 63(1) {a} of the Puma Legislation which relevantly provides as follows: "where the amenity ofan areaorplace is in the opinion of the Agency compromised by: {a} excessive noise: the Agency may require the owner or occupier by Order under section 31]: to undertake the work oractivity specied by the Agency in the lUrder to remove or minimize the nuisance impacting on the amenity of the area or place." The second defendant was so advised by letter dated 3 January 2131]? from Puma. He did not respond which led to a further letter dated 2 February 2'04]? to whida there was a response: the second defendant saying the matter had bee: dealt with previously in a meeting with the Honourable Minister ofEnvironmeat who is by statute Chairman of the Agency's controlling Board. It appears from the material before me that the defendants have talcen steps to try and nunimize the noise levels created by their activities. Thus they at one stage placed a number of Mft containers along the coanon boundary with the plaintiff as well as plantingahedge alongside the containers toact as noise barriers. But these seem to have proved ineffective as the latest Puma tests ofFriday 2 July 213139 and Sunday 12 July 2131]? show the noise still to be in excess of approved levels albeit there has been a marked. decrease from the lev-s of December 20433. 3 The improvement is no doubt due to the defendants other efforts as detailed in the afdavit ofL-Ir Filipoin reducing byat least one-third the sound boosting capacity of the defendants equipment and also due to the building by the plaintiff as at its own expense of a 2.6 meter block wall along their common boundary. But these improvemeats have not resolved the problem which has Led to the plaintiff issuing the current proceedings. The plaintiffseeksan order restraining further breaches of the Puma Legislation a cause ofaction it can take as conceded. by counsel for the defendant pursuant to section 33(2)- and 33(3) of the Puma Act as it is dearly "an interested party" in the terms of the legislation. Section 33 gives the court very wide ranging posters: "33. Enforcement of Act in Supreme Court {1:} In this section: {a} A reference to a breach of this Act is a reference to: {i} a contravention ofor failure to comply with this Act: and (ii) a threatened or an apprehended contravention of or a threatened or apprehended. failure to comply with this Act; and {b} A reference to this Act includes a reference to the following: {i} the regulations; {ii} a sustainable management plan; {iii} adevelopmeat consent grantedunder this Act: including a condition subject to which such consent is granted. (2) The Agency or any interested person may bring proceedings in the Supreme Court for an order to remedy or restrain a breach of this Act. 4 (3) Proceedings under this section may be brought by an interested person on their own behalf or on their own behalf and other persons (with their consent) or a body corporate of unincorporated body (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (4) Where the Supreme Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Supreme Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (5) Without limiting the powers of the Supreme Court under subsection (4), an order made under that subsection may: (2) Where the breach of this Act comprises a use of any building, work or land, refrain that use; (b) Where the breach of this Act comprises the erection of a building or the carrying out of a work, require the demolition or removal of that building or work; or (c) Where the breach of this Act has the effect of altering the condition or state of any building, work or land, require the reinstatement, so far as is practicable, of that building, work or land, as the case may be, to the condition or state the building, work or land was in immediately before the breach was committed. (6) Where a breach of this Act would not have been committed but for the failure to obtain a development consent, the Supreme Court, upon application being made by the defendant may: (a) Adjourn the proceeding to enable a development application to be made to obtain that consent; and (b) In its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are so adjourned.\f\f\fAs to other relevant factors it is clear the noise dispute has been ongoing for a number of years and while I accept that the defendants have made some effort to reduce the impact of their noise levels, so has the plaintiff by its brick wall. Nevertheless it is clear from the most recent Puma tests that the problem remains and the test last Sunday was undertaken at only one point in the day the inference being that at all other times during the service and worship, the level would probably have been as constant and consistently excessive although I accept as with all church services there is necessarily an ebb and flow of noise. The evidence is the services conducted by the first defendant lasts about three hours. For Sundays which has two services that is six hours of noise. The Friday service is not of such concern given the plaintiffs own Friday night activities but the Sunday services clearly fall into a different category. While the defendants have a constitutional right under article 11 of the Constitution to freedom of religion and practicing it in terms that they see fit, they must exercise this right within the boundaries of the law. And the boundaries of the law require that the right be exercised reasonably. The exercise of the right can be curtailed by virtue of article 11(2) by legislation passed by Parliament that imposes reasonable restrictions on the right. Restrictions that are required in the interests as stated in article 11(2) of "public order or for protecting the rights and freedoms of others." In short the right is not a complete and absolute right but must be exercised within these bounds. And the fact that it may be a costly exercise for the defendants to remedy the problem is irrelevant. As was stated in BNZ + Greenwood: "If one creates an actionable nuisance, he must eliminate it whatever the cost. The fact that it will be expensive does not affect his liability. Nor does the fact that his innocent neighbour could avoid its effects more cheaply." The applicant's case for a nuisance has been established to my satisfaction and I find the nuisance is substantial and unreasonable. It is also in breach of :.63 (1) (a) of the Puma Act and the relevant notice has been issued by Puma. The only question then remaining is whether pending final determination of the plaintiffs claims, the court should issue an interim injunction\fSOUTH PACIFIC LM 216: Planning and Environmental Law School Of Business and Management Supreme Court of Samoa Discipline of Land Management and Development Semester 2, 2023 You are here: PacLII > > Databases > > Supreme Court of Samoa >> 2009 >> [2009] WSSC 76 WEEK: 7 [Recent Decisions] [Noteup] [Download] [Help] TUTORIAL: 5 NAME: STUDENT ID: Case Summary Hotel Millenia v Worship Centre Christian Churches Last week's lecture we went over the components of a case/judgment and how to World Wide [2009] WSSC 76 (17 July 2009) summarize a case and identify the key components of the case/judgment. IN THE SUPREME COURT OF SAMOA Posted in Week 6's section is a note on the key components of a case/judgment. HELD AT APIA For this week's tutorial question you will be required to provide a case summary for the BETWEEN: case Hotel Millenia v Worship Centre Christian Churches World Wide [2009] WSSC 76 (17 July 2009). This will help you prepare for your group tutorial assignment and major "HOTEL MILLENIA" a trading entity ofPAT AH HIM LTD a duly incorporated company assignment. having its registered office at Apia. Your summary must identify the following components: Plaintiff 1. Parties names; AND: 2. Citation of the case; 3. Issues in the case, which should be in the form of a question(s); WORSHIP CENTRE CHRISTIAN CHURCHES WORLD WIDE a duly incorporated 4. Relevant legislation and case law; Charitable Trust. 5. Application of the relevant legislation and case law to the issues in the case. First Defendant Identify the Ratio Decendi or the rationale of the court; 6. Conclusion of the Court. AND: You summary must be presented in your own words and not copied and pasted from the VILIAMU MAFO'E of Sogi, Minister of Religion. case/judgement. Second Defendant