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Gold Coast City Council v Adrian's Metal Management Pty Ltd[2018] QPEC 45

Gold Coast City Council v Adrian's Metal Management Pty Ltd[2018] QPEC 45

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors [2018] QPEC 45

PARTIES:

Gold Coast City Council
(applicant)

v

Adrian’s Metal Management Pty Ltd
ACN 616 177 050
(first respondent)

Serah Monique Garabed
(second respondent)

Chris Fuller Investments Pty Ltd 
ACN 603 284 920
(third respondent)

FILE NO/S:

2429/17

DIVISION:

Planning and Environment

PROCEEDING:

Enforcement proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

21 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 February 2018, 7 and 8 June 2018, and 12 July 2018

JUDGE:

RS Jones DCJ

ORDER/S:

  1. The applicant is to prepare and circulate orders in accordance with the reasons given.
  2. The proceeding is adjourned to a date to be fixed.
  3. The question of costs is adjourned to a date to be fixed.

CATCHWORDS:

DECLARATIONS AND ORDERS – where the local authority sought declaratory relief and other orders against the respondents – where first respondent was a company carrying out alleged unlawful works on subject land – where second respondent was the sole director of the first respondent – where third respondent was the owner of the subject land – where primary use of subject land involved the dismantling and crushing of car bodies for scrap metal purposes – where other scrap metal activities also carried out – where current use extended over two separate parcels of land

WHERE ALLEGED USE OF THE LAND WAS UNLAWFUL – where respondents sought to rely on a development permit issued in 2001 in respect to only one of the lots – where no relevant development approval or permission had been granted in respect of the other lot – where originally scrap metal/junk yard uses were contained to one lot – where other lot historically used for sand blasting purposes – where intensification of the operations being conducted on the land expanded into second lot without necessary approvals in place

WHETHER THE 2001 DEVELOPMENT APPROVAL AUTHORISED THE RESPONDENTS’ USE OF THE LAND OVER BOTH LOTS – whether an alternative respondents enjoyed the benefit of historical existing lawful user rights

WHETHER OPERATIONS BEING CONDUCTED IN BREACH OF THE 2001 DEVELOPMENT APPROVAL –where the noise emanating from the land amounted to an environmental nuisance for the purposes of the environmental protection act 1997 – where primary source of noise was caused by the use of an excavator – where use of excavator an integral part of respondents’ operations being conducted on the subject land – where subject land located in an industrial estate but where recipients of noise were residents of a nearby group title residential development

WHETHER DECLARATIONS OUGHT BE MADE –concerning the validity and/or currency of the 2001 development permit – whether in the event that it was found that the use being made of the land was unlawful and the use of the land was creating an environmental nuisance the use of the land ought be ordered to be ceased

WHETHER DISCRETIONARY GROUNDS MILITATED AGAINST GRANTING THE RELIEF SOUGHT – where operations being conducted on the land were achieving material environmental benefits – where operations being conducted on the land employed an excess of 40 employees – where current operations on the land had been in existence for a number of years – whether the local government was estopped from seeking relief sought

JOINDER – whether another director of first and third respondent ought be joined to the proceedings – where primary purpose of joinder was a concern that the existing corporate entities would be dissolved but the operations on the land continued but under new corporate names

Environmental Protection Act 1994

Planning Act 2016

Planning and Environment Court Act 2016

Uniform Civil Procedure Rules 1999

Briginshaw v Briginshaw (1938) 60 CLR 336

Cuthbert v Moreton Bay Shire Council [2016] QPELR 179

Gympie Regional Council v Pye [2016] QPEC 65

Hungtat Worldwide Pty Ltd v Chief Executor of the Department of Environment and Heritage Protection [2017] QPEC 62

Kinsella & Anor v Gold Coast City Council (No.3) [2016] QSC 14

Macquarie Bank Ltd v Fu-Shun Lin & Anor [2006] QCA 97

Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 19

News Ltd & Ors v Australian Rugby Football League Ltd & Ors [1996] FCA 870

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ

Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226

Warringah Shire Council v Sedevic (1987) NSWLR 335

Woolworths Ltd v Maryborough City Council & Anor [2005] QCA 62

COUNSEL:

Mr K Wylie for the applicant

Mr M Yarwood in person for the first and third respondents

Ms S Garabed in person for the second respondent

Mr M Campbell of counsel for all respondents on 12 July 2018

SOLICITORS:

McCullough Robertson Lawyers for the applicant

  1. [1]
    This matter is concerned with enforcement proceedings brought by the applicant (the Council) against the first respondent, Adrian’s Metal Management Pty Ltd (AMM), the second respondent (Ms Garabed) and the third respondent Chris Fuller Investments Pty Ltd (CFI).

Background

  1. [2]
    The subject land is located at 24-26 Barnett Place, Molendinar and is more properly described as Lots 83 and 84 on RP899501. Molendinar is a suburb to the east of the Pacific Highway and to the west of Southport. Barnett Place is located in an industrial area and is zoned Low Impact Industry in the Council’s City Plan. The land is not in a precinct or local plan area. It is, however, affected by two overlays:
  1. Industry, Community Infrastructure Agriculture Land Interface Area Overlay – Industry Interface Area; and
  1. Landslide Hazard Overlay – Moderate.
  1. [3]
    The land lies at the western extremity of the Molendinar industrial area and, to the west, abuts undeveloped land designated as a road reserve. There is, however, no prospect of that land ever being used for road purposes in the foreseeable future.
  1. [4]
    A group title residential development known as “Pepper Hill Estate” is located at 757 Ashmore Road, which lies further to the west of the land and the road reserve.[1]  While the subject land is generally flat, it rises steeply to the west and, as a consequence, Pepper Hill Estate is situated at a significantly higher level than the subject land.  To the north and east are substantial industrial buildings in which a wide range of industrial uses are carried out.
  1. [5]
    The on-site uses being carried out on the land is discussed in the joint expert report (JER) of the town planners retained by each of the parties: Mr Ovenden for the Council and Mr Grummitt for the first respondent.[2]  The dominant on-site use could be broadly described as involving the recycling of motor vehicles.  The town planners described the uses in the following terms:[3]

“The use carried out on the site is primarily related to the recycling of motor vehicles although recycling of other materials is also undertaken at a significantly lower scale.

In regard to the recycling of motor vehicles, most vehicles are brought to the site on carriers.  Once deposited on site, they are stripped of tyres and wheels (for separate recycling) and contaminants removed, including fuels, oils, batteries etc.  At this point a decision is made as to whether the vehicle can be resold (a very small number of specialised vehicles), transported elsewhere for dismantling for export, or crushed on site.  All of these above activities occur on Lot 84…

Vehicles to be crushed are moved internally within the site to Lot 83…where a large excavator is used to crush those vehicles for transport off site for recycling.

Vehicles awaiting disposal, whether crushed or largely intact, are stored on both Lots 83…and 84…

Other metals brought to the site are sorted into separate containers for transport offsite to renders where the metal is recovered for alternative uses.  All this activity occurs on Lot 84…”

  1. [6]
    Subsequent to the commencement of these proceedings, the use of the excavator to crush car bodies had been relocated behind a significant cutting in the north western corner of Lot 83. Other changes in internal operations include a new and quieter excavator and the location of large containers filled with tyres along the north western boundary of the land. While these matters will be addressed in more detail below, at this stage, it is sufficient to observe that all of these changes were introduced in an attempt to address the noise issues associated with the on-site uses.
  1. [7]
    According to Mr Yarwood, the “scrap metal business” has been operating for some 21 years and employs up to 48 people.  As to the respective respondents, AMM is the owner and operator of the business being conducted on the land, Ms Garabed is the sole director of AMM and CFI is the registered proprietor of the land.
  1. [8]
    The history leading up to Ms Garabed’s and AMM’s involvement with the subject land is dealt with in more detail below. At this stage it is sufficient to identify that Noel Fuller purchased both lots in the early 2000s. Noel Fuller’s son, Christopher Fuller then purchased both lots in 2015 under the name of CFI. That company then leased the land to his brother, Adrian Fuller.[4] The business that is now known as AMM was once conducted by another company, ASM Recycling Pty Ltd (ASM).[5]  ASM initially operated from a different site located on Manufacturer Drive, Molendinar.[6]  At or about mid-2015, the business of ASM moved to the subject land and in November 2016, the recycling business was renamed as AMM, a separate corporate entity.
  1. [9]
    According to Adrian Fuller, the reason for the relocation of the metal recycling operation was because in combination, the two lots making up the subject land offered a materially larger site than that that existed at Manufacturer Drive, thus allowing room for expansion. According to him the operation had “run out of room”[7] and that the same number of employees were employed before and after the move.[8]  That, however, is clearly not the case.  Evidence on this topic was also given by Mr Evans, the general operations manager of AMM, which was to the effect that now there are over 40 employees employed on the subject land when AMM is in full operation.[9] That number was confirmed by Ms Garabed.[10] I much prefer their evidence on this matter to that of Adrian Fuller. As the nature and extent of the uses being carried out expanded, so did the number of employees increase. It would also seem that room to expand might not have been the only reason for the move.  According to his brother, Chris Fuller, Adrian Fuller “had issues with these other yards”.[11]  More will be said about these “issues” below.
  1. [10]
    Whilst the recycling of motor vehicles might be AMM’s primary operation, the recycling of other materials is also undertaken.[12]  Other metals that are brought onto the site for recycling are sorted into separate containers for transport offsite to metal renderers, where that metal is recovered for various other uses.[13]  It is clear from the evidence of Mr Evans that the excavator “plays a critical role” in the operations of AMM.[14]
  1. [11]
    Of particular significance in the context of this proceeding is that most of the motor vehicles intended for scrap are brought onto Lot 84 by truck and deposited onto the site where the tyres, wheels and various contaminants are removed. If it is determined that that motor vehicle is to be crushed on site it is then transferred to Lot 83 where it is crushed by the use of an excavator. Vehicles awaiting either disposal or crushing are stored across both lots.[15] 
  1. [12]
    It was asserted on behalf of all the respondents that AMM provides a vital recycling service to the community and particularly that of the Gold Coast, by ensuring that end of life metals, other components of motor vehicles and other metal waste are recycled appropriately, thus reducing waste and contributing to the prevention of pollutants. I am readily able to accept that evidence and would add that AMM also provides for the employment of a significant number of people, some of whom might well find it difficult to gain employment elsewhere.[16]

The proceedings up to the date of hearing

  1. [13]
    For reasons it is unnecessary to go into in any great detail, this proceeding has had somewhat of a checkered past. The matter was listed to commence on 28 February 2018, however, correctly perceiving that there might be problems associated with the hearing dates, it was brought before me by the Council for review on 20 February 2018. On that date, the respondents applied to have the matter adjourned. Subject to a number of directions which were primarily concerned with the filing and serving of affidavit material, the adjournment application was set down for hearing on 28 February 2018. On that date Mr Wylie, counsel for the Council stated that, among other things, his client had been advised that the respondents intended to rely on “a key witness that will elaborate on further evidence”.  That evidence most significantly included that of a sound engineer, Mr Temelkoski.  He, subsequent to preparing the JER concerned with noise in conjunction with Mr King, the expert relied on by the Council, had prepared a further report.[17]  That report will be dealt with in more detail below. 
  1. [14]
    On 20 February 2018, Mr Yarwood represented AMM and CFI. At the time, he was the general manager of both companies. Ms Garabed appeared on her own behalf.
  1. [15]
    When the matter next came before me for review on 23 February 2018 that arrangement continued. However, on 27 February 2018, the day before the hearing of the adjournment application, the Court was advised that Mr Yarwood was no longer representing those two companies. Ms Garabed appeared by telephone on that date indicating that she was now representing all three respondents and that she was still too ill to attend court to appear either as an advocate or as a witness on the hearing dates commencing 28 February. Ms Garabed also advised that there was no one else of sufficient authority or knowledge who could run an effective case on behalf of all the respondents. After hearing from the parties, the proceeding was adjourned to begin 19 April 2018 subject to interim orders and a number of directions.[18]  By the time the hearing commenced, Mr Yarwood had been reinstated as the executive director of both AMM and CFI.[19]
  1. [16]
    While having no bearing on the outcome of the substantive issues in dispute, this history of events has some relevance to the joinder issue dealt with below.
  1. [17]
    The interim orders made on 1 March 2018 were relevantly to the following effect:

“Interim enforcement order

2 Pursuant to section 180(4) of the Planning Act 2016 (Qld), the Court makes an enforcement order (an interim enforcement order) pending a decision in respect of these proceedings, as follows:

  1. (a)
    the Respondents must ensure that noise from operation of any excavators and associated metal handling activities on the Site, measured as the LAeq,adj,T, must not exceed the ambient background noise level, measured as the LA90,T, by more than 5 dB(A) (where T = 10 minutes), at any noise sensitive place (including, but not limited to, the adjoining Pepper Hill residential complex at 757 Ashmore Rd, Molendinar).”

Previous environmental prosecutions

  1. [18]
    During the course of his cross-examination of Adrian Fuller, Mr Wylie raised with him a number of prior environmental prosecutions concerning other metal recycling facilities which he had involvement with. When this matter was first raised by Mr Wylie, he was challenged by me as to the relevance of this evidence. Mr Wylie stated that it would only be relied on as evidence which might have relevance to the exercising of my discretion to either grant or refuse the relief sought. Less there be any doubt about it, that evidence has no relevance to or bearing on the prosecution of any of the respondents. That is, it in no way assists the Council in proving the respondents’ liability in respect of the allegations of unlawful use.
  1. [19]
    While Adrian Fuller was unable to recall a number of the matters raised with him by Mr Wylie, the evidence establishes that he had accepted a guilty plea in the Magistrates Court at Southport for undertaking development without a permit and not complying with an enforcement notice. That business also involved scrap metal/junk yard uses.[20]  On that occasion Mr Fuller was fined $3,000 and ordered to pay the Council’s legal costs.[21]  Mr Fuller also accepted that on 27 March 2012, he breached an enforcement notice requiring him to cease using the Manufacturer Drive premises for the purpose of a salvage yard without a development permit.[22]  He also accepted that on 21 October 2013, he entered a guilty plea to enforcement notice offences where he was fined $1,500.[23]  On that occasion an order was also made requiring him to make a development application or cease the use of the site within 28 days.[24]  Finally, he also accepted that he had entered a guilty plea in respect of proceedings brought under the Sustainable Planning Act 2009 (SPA) for failing to comply with the order made on 21 October 2013.  On that occasion he was fined $3,000 and was ordered to cease the unlawful use and to remove all scrap metal from the Manufacturer Drive site.[25]
  1. [20]
    The evidence of Ms Garabed was that the decision to plead guilty in these matters was made after discussion between him and her to decide the appropriate “action and plans”.[26]
  1. [21]
    In the Council’s written submissions, it was contended to the effect that this evidence favoured the granting of the relief sought because the conduct of the “respondents” was indicative of, when found to have been operating unlawfully, dealt with by simply moving to another site under the name of a new corporate entity. I reject that submission. The history as between the Council and AMM, and any of its corporate predecessors and Adrian Fuller, offers insufficient support for the Council’s position on this point.

The relief sought

  1. [22]
    The application for declaratory relief and other orders particularise a number of allegations which can be put into two broad categories. First, the carrying out of assessable development on the subject land without the necessary permits and approvals. That is, the carrying out of an unlawful use on the land. Second, the unlawful causing of an environmental nuisance. That nuisance being allowing noise to escape the site at unacceptable levels. I will deal with each of those allegations in turn below.
  1. [23]
    The final relief sought by the Council involves a number of declarations and orders under Planning and Environment Court Act 2016 (PEC Act), the Planning Act 2016 (Planning Act), and the Environmental Protection Act 1994 (EP Act).
  1. [24]
    The substantive relief sought pursuant to section 11 of the PEC Act is for a declaration that the development permit issued on 19 July 2001 had been abandoned or in the alternative lapsed prior to 2015. The essential features of the enforcement order sought under the Planning Act, pursuant to s 180, were: first, that AMM and Ms Garabed be restrained from committing development offences “namely, carrying out assessable development… on the properties without an effective development permit”.  Secondly, in the alternative, an order that those respondents be restrained from committing development offences, namely using the subject land for an unlawful purpose.  Thirdly, in the further alternative, an order to restrain those respondents from committing development offences, being the carrying on of the use of the land in contravention of the above mentioned conditions of the 2001 Development Approval.  The relief sought pursuant to s 505 the EP Act was an order that AMM and Ms Garabed be restrained from committing offences under that Act, namely, “unlawfully causing an environmental nuisance”.
  1. [25]
    Other consequential orders including cost orders were also sought.
  1. [26]
    Section 11 of the PEC Act provides:

“11 General declaratory jurisdiction

(1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—

  1. (a)
    a matter done, to be done or that should have been done for this Act or the Planning Act; or
  1. (b)
    the interpretation of this Act or the Planning Act; or
  1. (c)
    the lawfulness of land use or development under the Planning Act; or
  1. (d)
    the construction of a land use plan under the Airport Assets (Restructuring and Disposal) Act 2008 and the interpretation of chapter 3, part 1 of that Act; or
  1. (e)
    the construction of the Brisbane port LUP under the Transport Infrastructure Act 1994.

Note—

Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act.

…

(4) The P&E Court may also make an order about any declaration it makes.”

  1. [27]
    Section 180 of the Planning Act provides:

“180 Enforcement orders

(1) Any person may start proceedings in the P&E Court for an enforcement order.

(2)  An enforcement order is an order that requires a person to do either or both of the following—

  1. (a)
    refrain from committing a development offence;
  1. (b)
    remedy the effect of a development offence in a stated way.

…

(3) The P&E Court may make an enforcement order if the court considers the development offence —

  1. (a)
    has been committed; or
  1. (b)
    will be committed unless the order is made.

(4) The P&E Court may make an enforcement order (an interim enforcement order) pending a decision in proceedings for the enforcement order.

(5) An enforcement order or interim enforcement order may direct the respondent—

  1. (a)
    to stop an activity that constitutes a development offence; or
  1. (b)
    not to start an activity that constitutes a development offence; or
  1. (c)
    to do anything required to stop committing a development offence; or
  1. (d)
    to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or
  1. (e)
    to do anything to comply with this Act.

…

(6) An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act.

…

(7) An enforcement order or interim enforcement order must state the period within which the respondent must comply with the order.

(8) A person must not contravene an enforcement order or interim enforcement order.

  Maximum penalty—4,500 penalty units or 2 years imprisonment.

(9) Unless the P&E Court orders otherwise, an enforcement order, or interim enforcement order, other than an order to apply for a development permit—

  1. (a)
    attaches to the premises; and
  1. (b)
    binds the owner, the owner’s successors in title and any occupier of the premises.

(10) If the enforcement order, or interim enforcement order, does attach to the premises, the respondent must ask the registrar of titles, by a notice given within 10 business days after the order is made, to record the making of the order on the appropriate register for the premises.

Maximum penalty — 200 penalty units.

(11) A person may apply to the P&E Court for an order (a compliance order) that states the enforcement order, or interim enforcement order, has been complied with.

(12) If a person gives a notice that a compliance order has been made, and a copy of the compliance order, to the registrar of titles, the registrar must remove the record of the making of the enforcement order, or interim enforcement order, from the appropriate register.

(13) If the enforcement order, or interim enforcement order, is not complied with within the period stated in the order, the enforcement authority may—

  1. (a)
    take the action required under the order; and
  1. (b)
    recover the reasonable cost of taking the action as a debt owing to the authority from the respondent.

(14) A notice given to the registrar of titles under this section must be in the form, and accompanied by the fee, required under the Land Title Act.”

  1. [28]
    Section 505 of the EP Act provides:

“505 Restraint of contraventions of Act etc

(1) A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by—

  1. (a)
    the Minister; or
  1. (b)
    the administering authority; or
  1. (c)
    someone whose interests are affected by the subject matter of the proceeding; or
  1. (d)
    someone else with the leave of the Court (even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding).

…

(5) If the Court is satisfied—

  1. (a)
    an offence against this Act has been committed (whether or not it has been prosecuted); or
  1. (b)
    an offence against this Act will be committed unless restrained;

the Court may make the orders it considers appropriate to remedy or restrain the offence.

(6) An order—

  1. (a)
    may direct the defendant—
  1. (i)
    to stop an activity that is or will be a contravention of this Act; or
  1. (ii)
    to do anything required to comply with, or to cease a contravention of, this Act; and
  1. (b)
    may be in the terms the Court considers appropriate to secure compliance with this Act; and
  1. (c)
    must specify the time by which the order is to be complied with; and
  1. (d)
    may include an order for the defendant to pay the costs reasonably incurred by the administering authority in monitoring the defendant’s actions in relation to the offence.

(7) The Court’s power to make an order to stop an activity may be exercised whether or not—

  1. (a)
    it appears to the Court the person against whom the order is made intends to engage, or to continue to engage, in the activity; or
  1. (b)
    the person has previously engaged in an activity of that kind; or
  1. (c)
    there is danger of substantial damage to the environment if the person engages, or continues to engage, in the activity.

(8) The Court’s power to make an order to do anything may be exercised whether or not—

  1. (a)
    it appears to the Court the person against whom the order is made intends to fail, or to continue to fail, to do the thing; or
  1. (b)
    the person has previously failed to do a thing of that kind; or
  1. (c)
    there is danger of substantial damage to the environment if the person fails, or continues to fail, to do the thing.

(9) Without limiting the powers of the Court, the Court may make an order—

  1. (a)
    restraining the use of plant or equipment or a place; or
  1. (b)
    requiring the demolition or removal of plant or equipment, a structure or another thing; or
  1. (c)
    requiring the rehabilitation or restoration of the environment.

(10) The Court must order a plaintiff to pay costs if the Court is satisfied the proceeding was brought for obstruction or delay.

(11) The Court’s power under this section is in addition to its other powers.

(12) A person who contravenes an order commits an offence against this Act.

Maximum penalty for subsection (12)—3,000 penalty units or 2 years imprisonment.

  1. [29]
    Pursuant to s 161 of the Planning Act and of relevance to this proceeding are the offences prescribed under ss 163 and 165 of that Act:

“163 Carrying out assessable development without permit

(1) A person must not carry out assessable development, unless all necessary development permits are in for the development…

164  …

165 Unlawful use of premises

A person must not use premises unless the use –

(a) is a lawful use; or

(b) for designated premises – complies with any requirements about the use of premises in the designation.”

  1. [30]
    For the purposes of the EP Act, s 15 prescribes that noise can cause an “environmental nuisance” if it causes an unreasonable inference with an environmental value. Pursuant to s 440 of that Act, a person who unlawfully causes an environmental nuisance commits an offence.
  1. [31]
    The onus of course rests on the Council to satisfy the Court that the relief sought ought be granted. Further, notwithstanding that the proceeding is of a civil character the seriousness of the allegations made against the respondents and the consequences of the relief sought are such as to require the Council to prove its case at the “higher end of the civil standard in accordance with the Briginshaw principles.”[27]  The reference to Briginshaw is of course a reference to the well-known decision of the High Court in Briginshaw v Briginshaw.[28]

The unlawful use case

  1. [32]
    In their JER the town planners considered a number of issues:
  1. Whether the development permit issued on 19 July 2001 concerning Lot 83 had lapsed;
  1. Whether the current on site use of Lot 83 was being undertaken in accordance with the terms and conditions of the 2001 permit;
  1. Whether there has been a material intensification of on-site uses for both Lots 83 and 84; and
  1. Whether Lot 84 has the benefit of any lawful existing use rights.
  1. [33]
    After considering those matters in some detail,[29] the town planners were of the view that there were no material areas of disagreement between them and that they were in agreement in respect of a number of significant matters.  While by no means decisive in the determination of this proceeding, the evidence of the town planners is clearly relevant and can be summarised as follows:[30]

“The use properly described under the current City Plan is Medium Impact Industry (Scrap Metal Yard) and is subject to a code assessable development application due to the proximity to land within a residential zone.

The use also requires a code assessable development permit for a material change of use for an Environmentally Relevant Activity for Metal Recovery under the Planning Regulation 2017.

The 2001 approval over [Lot 83] has lapsed.

The current on-site use for [Lot 83] is not being undertaken in accordance with the 2001 approval.

There is agreement between the town planning experts that matters relating to noise are principle issues for other experts, but may have a town planning dimension, particularly with regard to the compliance with the conditions of the 2001 approval.

There is agreement that the subject development is a single entity operating over the 2 Lots [Lots 83 and 84].

There has been a material intensification of the on-site uses occurring on [both Lots].

There are no existing lawful use right for a Salvage Yard over [Lot 84] that would afford benefit to the use.”

  1. [34]
    The current and relevant planning scheme is the Gold Coast City Plan, version 4, dated 3 July 2017 (City Plan). Under the City Plan, the land falls within the Low Impact Industry Zone.[31]  The evidence of the town planners, was that having regard to the nature of the business being conducted on the land and, among other things, the land being within 250 m of a “sensitive land use” area, being the residential estate at Pepper Hill,[32] the operations being conducted on the land ought properly be described or designated as Medium Impact Industry under the City Plan.  As such, those operations being carried out on the land is “assessable development” for which a development permit is required.[33]  That evidence is unchallenged and I accept it.
  1. [35]
    Further, it is uncontroversial that the operations being carried out on the subject land is an Environmentally Relevant Activity (Metal Recovery) and therefore is assessable development for which a development permit is required.
  1. [36]
    Noel Fuller gave evidence that when he purchased the subject land it was already being used for the purposes of metal recycling and that that had been occurring since about 1989.[34]  There are no records of any permits authorising scrap metal operations on Lot 84.
  1. [37]
    A search of the Council’s online records revealed that an approval for development was granted on 19 July 2001 over Lot 83 (26 Barnett Place). Broadly speaking, that approval was for a Development Permit for a Material Change of Use for Caretakers Residence, Junk Yard (wholesale only) and Light Industry (metal fabrication). An Environmentally Relevant Activity (ERA) was also recorded over Lot 83. While of no relevance to the outcome of this proceeding, it would appear that the application for the approval of those uses was lodged in response to an earlier enforcement notice issued by the Council on or about 20 October 1999.
  1. [38]
    The 2001 approval was issued to a former land owner, C&V Constructions Pty Ltd. Noel Fuller accepted that at no time did he seek a development approval or any other form of approval over the subject land when the Manufacturer Drive operations were relocated.[35]  The 2001 development permit was issued under the Integrated Planning Act 1997 (IPA).  As already identified that approval was only issued in respect of Lot 83 (26 Barnett Place).  The approval contained a number of conditions.[36]  One of those conditions required the construction of a fence of a specified type to be constructed along the boundary separating Lots 83 and 84.
  1. [39]
    In considering the conditions of the 2001 approval, the town planners correctly identified three relevant matters requiring investigation and consideration. First, those areas where the current operations do not comply with conditions of the 2001 approval. Second, those circumstances where it was unable to be determined due to insufficient evidence whether there has been compliance or not. Third, where the current operations did comply or generally appear to comply with the 2001 approval conditions.[37]  At this stage it is convenient to summarise the areas of non-compliance identified by both town planners:
  1. Condition 1 – development not being in accordance with approved plans;
  1. Condition 8 – storage areas are either not or insufficiently screened;
  1. Condition 9 – causation of adverse amenity impacts;
  1. Condition 13 – non-compliance with landscaping, fencing and open space requirements;
  1. Condition 18 – non-compliance with noise emission conditions;
  1. Condition 20 – failure to comply with conditions concerning plant and equipment;
  1. Condition 42 – failure to comply with operational conditions concerned with plant and equipment. 
  1. [40]
    The unchallenged evidence of the town planners, which I also accept, is to the effect that it is beyond any sensible doubt that a number of those conditions were never complied with, including the construction of the fence.[38] 
  1. [41]
    I am also sufficiently satisfied that in respect of Lot 84, no application has been made and, as a consequence, no relevant approval, permit or other form of authority has been issued by the Council. On or about 13 August 2007, a building approval was granted for minor additions and on 7 November a development permit was issued for an ERA. However, both of those approvals were associated with the sandblasting business being operated on the subject land and had nothing to do with the current uses being made on that land.[39]
  1. [42]
    The evidence given on behalf of the respondents concerning the existence or otherwise of any relevant permits and approvals cannot be accepted. That is so not only because it is directly contradicted by the evidence of the two town planners whose evidence I accept but also, of itself it lacks any persuasive force. According to Adrian Fuller, the operations were moved to the subject land because it was “approved”.[40] That assertion is not supported by the evidence.  In any event, it would seem that he would not have known whether any approvals existed.
  1. [43]
    Ms Garabed, his wife and the sole director of AMM, ran all of the office and administrative side of the business.[41]  She was the only witness who attempted to give any meaningful evidence on behalf of the respondents on this issue.  However, even her evidence at the end of the day lacked any persuasive force.  That is not to say that I considered her to be a dishonest witness but it is perfectly clear that her understanding about this issue was wrong.  Her evidence was to the effect that the business was operating lawfully because, in respect of 26 Barnett Place (Lot 83), it had the benefit of the 2001 approval.  And, in respect of 24 Barnett Place (Lot 84) because it had been operating in virtually the same way since 2001 and accordingly “had the benefit of lawful existing rights prior to the change in the town plan zoning.”[42]
  1. [44]
    In her evidence in chief, Ms Garabed also gave evidence about a meeting held at the Council’s offices at which she and Noel Fuller attended. The following exchange took place between her and Mr Yarwood:[43]

“Q. So it was – suffice to say, someone said – you’re suggesting that whether it was a legal officer or a lawyer or an officer, someone said that to you?

A. Yeah, and – and I probably go back and find who it was that I’d spoken to but – and unfortunately, I mean at that stage you’re just going by what people are telling you.  You don’t note down exact names and exact – you know.

Q. So if you saw their face, you could probably say it was that person?

A. Yeah, yeah.  It was – it was a – it was actually a female at – at that stage she said to me, look – and she said it across the table and said “let this pan out for another couple of months”.  The town – the new town planning schemes coming in.  Reduce your noise.  We’re happy to accept that.  And you will – when the new town planning scheme comes in, we’ve got some advice that salvage use will be self-assessable.  If you’re in a high impact industry zone – which we were at that stage until they changed the zoning – and you know – and then you can – we can do it from there you know.”

  1. [45]
    Those questions and answers were directed to one of Ms Garabed’s affidavits where she spoke of the meeting including discussion about reducing the noise emanating from the site.[44] Ms Garabed’s version about what took place at that meeting does not sit comfortably with her other evidence that at all relevant times she believed the use of the land was lawful.  That is particularly so in the light of her response to a number of questions by Mr Wylie in cross-examination:[45]

“Q. Ms Garabed at the meeting that you referred to with Councils officers I put it to you that you were told that your – the use of the premises was unlawful and you needed a development permit.

  A. Yes.

  Q. Is that true?

  A. Yes we were told that yes…whether we believed it or not was a different question.

  …

  Q. And I put it to you that you were explicitly told by Ms Rachel Jones that under the new scheme, any application would be code assessable.

  A. I don’t recall.

  Q. And I put it to you that you were told that it would be except development or a development which -

  A. No you’re wrong.

  Q. Did not need a permit.

  A. You’re absolutely wrong.

  Q. And I put to you that words were said to you – we don’t want to shut down your business but we’ll commence proceedings in the Planning Court if we don’t get compliance.

  A. Yes that was said to me.  Yes.

  Q. And it was put to you that Council needs a report on how to mitigate the noise and that in any event that report would form part of any code assessable development application.

  A. No I don’t recall that being said.

  Q. And I put to you that at no time was it said to you that Council would not commence proceedings against you.

  A. Sorry say that again.

  Q. I put to you that at no time was it – were you told that Council would not commence proceedings against you?

  A. No I was told that Council would – I was told that Council  would hold off and leave it until the new Town Planning Act (sic) came in and then we would have a discussion about it then.  There was a reason that I brought Noel in because he has previous history in to that particular meeting because he was the previous owner.  He has previous history on that site.  And when we went into this discussion we brought Noel in because we thought it was an integral part to give everybody history of the site. We never came to any conclusions.”
(Emphasis added)

  1. [46]
    As I have said, the evidence about what occurred at that meeting does not sit at all comfortably with the respondent’s position that at all material times it was operating lawfully with the necessary permits and approvals in place. On the other hand, Mr Ovenden was asked numerous questions in cross-examination, but his evidence-in-chief and opinions remained consistent and were not seriously challenged.
  1. [47]
    Finally, in this context in the respondents’ written submissions it is asserted:[46]

“It is submitted on behalf of the respondents the evidence upon which the applicant relies is not sufficient to rebut the presumption that the lots were used as a scrap metal yard prior to and subsequent to 2001 as a lawful non-conforming use.”

  1. [48]
    No such presumption exists of course but, even accepting that one did, the evidence clearly establishes that the current operations on the subject land are being conducted unlawfully.
  1. [49]
    The evidence establishes to my satisfaction that:
  1. When Noel Fuller initially purchased the subject land, two separate businesses were being operated on Lots 83 and 84. To use his words “we were running sandblasting [on Lot 84] and a recycling yard next door [Lot 83]”.[47] There was clearly a degree of integration between the two businesses but in the context of this proceeding, that is of no consequence.
  1. At no time did Lot 84 enjoy the benefit of any development permit or any other form of approval authorising its use for scrap metal/junkyard purposes.
  1. [50]
    As to the issue of the intensification of use, Noel Fuller’s evidence was that he was the person best placed to speak about the subject land.[48] I accept his evidence on this matter but only insofar as it addresses what was physically occurring on the land. His evidence or this topic does not assist the respondent’s case insofar as the issue of whether those uses were being carried out lawfully or otherwise is concerned.
  1. [51]
    While Noel Fuller may have spoken in general terms of acquiring the “site” in 2001,[49] it would seem in fact that there were two separate and discrete transactions. First, the acquisition of Lot 84 in 2000 from the “receivers” of “Melinda Notley”.[50] Then, the acquisition of Lot 83 sometime in 2001 from C&V Constructions Pty Ltd.[51] At those times, “Melinda Notley” had been conducting a sandblasting business on Lot 84,[52] and C&V Constructions a “recycling business” on Lot 83.[53]
  1. [52]
    After purchasing Lot 84, Noel Fuller or a corporation under his control operated both a sandblasting operation and an integrated “recycling” operation. The sandblasting component being operated in and around the shed located along the western boundary of Lot 84. Lot 83 was purchased because the businesses being undertaken under the control of Noel Fuller “needed the room…”[54]
  1. [53]
    The evidence strongly suggests that soon after gaining control of both lots, the sandblasting operations ceased and the existing uses were extended over both Lots 83 and 84. According to Noel Fuller, the “…additional scrap metal processing and end of life machinery decommissioning facility…” had been carried out over both lots from 2001 until both lots were sold to CFI in 2014.[55]
  1. [54]
    Regardless of any confusion that might surround when Lots 83 and 84 were acquired and what was occurring on those lots after 2000/2001, there is little room for doubt that soon after the purchase of Lot 83, the existing uses (or something similar thereto) intensified and expanded over both lots and beyond the area of land that had the benefit of the 2001 approval.
  1. [55]
    As already referred to, Noel Fuller’s business operations needed room to expand hence the purchase of Lot 83. After AMM leased both lots from CFI, Mr Evans became the on-site General Operations Manager for “the Fullers”.[56] According to him, both lots provided more room for the storage of car bodies and the opportunity to “go into more detail now in how we pull things apart” and that “we just do a lot more parts off cars and stuff like that”. Also, from the time the business moved from Manufacturer Drive, the number of employees grew from six to in excess of 40.[57]
  1. [56]
    In respect of the matters addressed by the town planners, there remains three further matters to be resolved. First, whether Lot 84 enjoys the benefit of any lawful existing use rights. Second, whether the 2001 development permit over Lot 83 lapsed. Third, if it has not lapsed, whether the current uses are being undertaken in accordance with the conditions imposed pursuant to that permit.
  1. [57]
    As to the last of those matters, the answer is “no”. As identified above, the town planners were in agreement that there were no less than seven examples of significant non-compliance. Not only was that a matter of agreement, the evidence of Mr Ovenden on this topic was not seriously challenged and Mr Grummit was not asked to resile from or qualify his views as expressed in the JER.
  1. [58]
    Turning then to the second matter, the evidence of the town planners is that the 2001 development permit had lapsed.[58] On 14 March 2000, the Council approved an environmental licence for “Abrasive Blasting” (i.e., sandblasting) for Lot 84. That authority had been renewed annually up until 2013.[59] In respect of Lot 83, on 9 May 2000, Mr Grummitt’s company lodged, on behalf of the previous owners,[60] a development application for a material change of use “Caretaker’s residence, Junk Yard (Wholesale only) and Light Industry (Metal Fabrication)”.[61] Those uses were approved subject to conditions pursuant to a Decision Notice dated 23 July 2001.[62]
  1. [59]
    As I understand the evidence of the town planners, it is said, in effect, that because there had been non-compliance with a number of material conditions imposed pursuant to the development permit, it would have lapsed on or about 19 July 2005.[63] That conclusion was relied on by Mr Wylie, who also argued in the alternative that the permit had been abandoned.[64]
  1. [60]
    As the town planners identified, the permit was issued under the Integrated Planning Act (1997) (IPA). As there were no submitters to the development application, pursuant to s 3.5.19(1)(a) of IPA, the permit takes effect at the time the Decision Notice approving the application is given. Pursuant to s 5.3.5.20, development may take place from the time the permit takes effect. Thereafter, IPA expressly addresses the situations where approvals might lapse because of the failure to start development[65] or complete development within a particular time.[66]
  1. [61]
    Neither the provisions of IPA nor the permit itself require compliance with development conditions as some form of condition precedent before the approval takes effect. Quite to the contrary. It might well be, as the town planners said, that for the change of use to lawfully commence, compliance with the development conditions would be required,[67] but that is not to the point.
  1. [62]
    On balance, I am not satisfied that the subject development permit has lapsed. I am equally unconvinced that it can be said that it has been abandoned.
  1. [63]
    Turning then to the question of whether Lot 84 enjoys the benefit of a pre-existing lawful use right. Again the evidence establishes beyond any sensible room for doubt that it does not. It is beyond dispute that what is now occurring over both lots represents not only a different use than that approved in respect of Lot 84, but also a material and unlawful intensification of the uses that might otherwise have been permitted pursuant to the 2001 approval associated with Lot 84.
  1. [64]
    For the reasons set out above I am sufficiently satisfied that AMM is, for the purposes of the Planning Act, carrying out an unlawful use of the subject land and has thereby committed and has continued to commit a development offence for the purposes of that Act.
  1. [65]
    As is discussed elsewhere in these reasons, for a significant period of time, Ms Garabed has been the sole director of AMM. It is also abundantly clear that Ms Garabed is not only a director of AMM, but also is heavily involved in the decision making process of that company. Accordingly, she falls within the description of an “Executive Officer” for the purpose of s 227 of the Planning Act.
  1. [66]
    Pursuant to s 227, in circumstances where a corporation commits an offence against an “executive liability” provision of the Act, an executive officer of that corporation also commits an offence if he/she did not take all reasonable steps to ensure that the corporation did not engage in the conduct constituting the offence.[68] The Council relies on s 227 for relief against Ms Garabed on the basis that she is “…deemed to have committed the offence.”[69]
  1. [67]
    I do not accept that s 227 of the Planning Act has the “deeming” consequences submitted on behalf of the Council. That said, though, for the purpose of this proceeding, I am sufficiently satisfied that Ms Garabed knew or ought to have known of the offending conduct of AMM, and was in a position to influence that company’s conduct in relation to the offending conduct of that company. For the reasons set out below the liability of Ms Garabed extends only to that development offence prescribed under s 165 of the Planning Act[70] and that prescribed under s 440(2) of the EPA, pursuant to the operation of s 493 of that Act.

The noise nuisance case

  1. [68]
    As already indicated, both the Council and the respondents relied on the expert evidence of sound engineers. In addition to Mr King, the Council also called evidence from Ms Sotera, who was a licenced real estate agent and, more relevantly, the on-site manager for Pepper Hill Estate.[71]  In her affidavit sworn 26 February 2018,[72] Ms Sotera reported that she had received “numerous complaints” from tenants about the noise from the “scrap yard”.  Those complaints commenced in or about August 2015.  She also gave evidence about the impact of the noise from the subject land on the type of tenants suitable for the estate. She said:[73]

“I can’t put shift workers in as tenants at that end of the complex because of the noise during the day.  I can only rent those units to people who leave for work early each day and I can only show units to prospective tenants from late afternoon when the noise has abated/stopped.”

  1. [69]
    Reference was also made about the nature of some of the complaints made.  Insofar as that evidence is concerned, it being clearly hearsay, I did not treat that evidence as anything other than evidence that complaints have been made about noise from the subject land.  That said, Ms Sotera gave evidence that the sale of one of the units was put in jeopardy because of noise and that, in her opinion, the noise emanating from the subject land has decreased the value of those units located to the north eastern end of the estate which overlook the subject land.
  2. [70]
    Ms Sotera, largely consistent with the evidence of the sound engineers, also spoke of her personal experiences with noise.  During cross-examination she gave evidence that I accept, that she had no doubt that the noise she was experiencing was a result of the use of the excavator on Lot 84 in particular.  She could hear the forklift “rattling backwards and forwards” and could hear it picking up and depositing car bodies.[74]  Also, while not being able to give a scientific description of the noise she described it in the following terms:[75]

“… I can just tell you that it gets to the extent that you almost can’t think straight.  I can’t show a unit to people who are coming to look at it until after your operations finish in the afternoon, or I have to close the unit and put the air-conditioning on to try and reduce the noise level so I can put a tenant in.  I can’t do my inspections in the large blocks that I used to do because I can’t handle being down there for three or four hours with your machine operating, so I reduced my inspections to seven units at a time in that area.  My personal experience with noise.  Am I saying there’s no other ambient noise?  Possibly there is, but it doesn’t affect me or others in the same manner.”

  1. [71]
    In the JER of the sound engineers[76] it was recorded that there were no areas of disagreement.  They identified that the on-site activities occurred between 7:00 am to 4:00 pm Monday to Friday, and that the main activities included:[77]
  • Weighing of inbound scrap metal on weighbridge;
  • The relocation (movement) of scrap vehicles and skip bins with a forklift;
  • Removal of fluids and parts from cars prior to crushing;
  • Crushing and stacking of cars with an excavator; and
  • Loading of scrap metal onto semi-trailers.
  1. [72]
    It was then reported that in an earlier report of Mr Temelkoski, dated 16 October 2017 he concluded that:[78]

“Additional noise mitigation measures are required to ensure that operations at the scrap metal facility at 24-26 Barnett Place in Molendinar complies with the current applicable noise criteria as specified in the Environmental Protection (Noise) Policy 2008.

The additional noise mitigation measures have to be determined by noise propagation modelling considering the location, elevation and type of activities that the scrap metal facility and the location and elevation of the nearest townhouses at “Pepper Hill Estate” at 757 Ashmore Road.”

  1. [73]
    Under the heading “ areas of agreement” the experts record:[79]

“The experts are in agreement that noise from the operations at 24-26 Barnett Place, Molendinar exceeds reasonable noise level limits.”

  1. [74]
    Prior to preparing the JER, Mr King had prepared an earlier affidavit sworn 6 April 2017. Under the heading “conclusion” he reported:[80]

“It is my opinion that on the basis of the site inspections, noise monitoring and analysis I have undertaken that noise from the Facility, with particular regard to use of a tractor/excavator for scrap metal handling, results in environmental nuisance at existing residential dwellings.

The measured noise levels when adjusted for noise character and compared to the background noise levels exceed the noise criteria adopted for assessment ie background plus excess which include the Development Approval Noise Limits identified in [the noise emission condition contained in the 2001 permit].

It is my opinion that both the character and level of the noise is foreign to what would be reasonably expected in a residential area, even one bordering on an industrial area such as in this instance.

The noise from the Facility as observed and as measured constitutes an environmental nuisance due to:

  1. (i)
    the character of the noise ie loud bangs, metal on metal and scraping sounds which are of a very discrete and annoying character with abrupt changes in level and character; and
  1. (ii)
    the level of the noise … which significantly exceeds the ambient background noise level … (by greater than 5 dB(A)) which results in the Facility noise being highly apparent and annoying at the residential area adjacent.”  (Emphasis added)
  1. [75]
    Those conclusions are of course consistent with what was recorded in the JER.
  1. [76]
    As already mentioned, following the commencement of this proceeding, AMM and Ms Garabed introduced a number of measures designed to reduce the noise levels emanating from the site. They included:[81]
  • A quieter type of excavation used to move and crush car bodies;
  • Rubber claws fitted to the excavator;
  • Training operations to use the excavator in a quieter manner; and
  • Limiting the use of the excavator to only 1 hour per day (previously up to 3-4 hours per day).
  1. [77]
    Other changes included the stacking of containers filled with tyres along a section of the north western boundary of the land[82] and limiting operation of a significant part of the excavator to the base of a cutting in the north western corner of the land.
  1. [78]
    During the cross-examination of Mr Evans, it was suggested that the excavator moved regularly across the site. He rejected that suggestion. On the basis of his evidence I accept that the excavation use is primarily limited to the north western corner of the site and that its periods of operation are limited.[83]
  1. [79]
    However, at the end of the day, it is clear that the noise nuisance emitting from the use of the excavator, while reduced, even to a significant extent, still exceeds acceptable standards.
  1. [80]
    Following the introduction of these measures, Mr Temelkoski carried out a series of noise measurements on 26 February 2018 and reported, under the heading “conclusions”:

“Based on the results of the noise measurements carried out on 26 February 2018, the following is concluded:

  • The general impression is that the noise levels at the nearest dwellings at “Pepper Hill Estate” have been lower compared to October 2017.
  • Comments about normal operations with excavator not operating:
    • The intrusive noise levels, measured at LAA10,T during normal operations and with the excavator not operating, were 47dB(A) and 50dB(A) on 26 February 2018.  For comparison, the noise levels in October 2017 were higher at 52dB(A) LAA10,T during time when the excavator was not operating.
    • Adrian’s Scrap Metal did not appear to impact on the noise amenity at the boundary of the nearest dwellings at “Pepper Hill Estate” during normal operations when the excavator was not operating.  The noise emissions from Adrian’s Scrap Metal were occasionally audible above the background, but were not considered to be intrusive.  The noises from Adrian’s Scrap Metal that were audible included muted sounds of reversing beepers, truck movements and occasional banging of scrap metal.
  • Comments about normal operations with excavator operating:
    • The intrusive noise levels, measured as LAA10,T during operations and with the excavator operating were 49dB(A) on 26 February 2018.  For comparison, the noise levels in October 2017 were higher at 56-58dB(A) LAA10,T during time when the excavator was operating.
    • The operation with the excavator has been considerably quieter on 26 February 2018.  The engine noise from the excavator has been quieter and is barely audible at the nearest dwellings.  There have been fewer instances of impulsive noise associated with banging, crushing and dropping of metal items.
    • The excavator appeared to have only minor impact on the noise amenity at the boundary of the nearest dwellings at “Pepper Hill Estate”.
  • Assessment of compliance with the 2001 Approval Conditions and EPP 2008 would require further consideration of the noise levels over full day time period (7am to 6pm).  Assessment would also require measurement/calculation of the component noise level from Adrian’s Scrap Metal with influence of extraneous noises removed, in accordance with the DEHP Noise Measurement Manual.  It would be difficult to isolate the noise contribution from Adrian’s Scrap Metal over full day time assessment period (7am to 6pm) because its noise contribution appears to be low compared to the background noise levels.
  • In summary, the noise amenity at the nearest dwellings, as observed on 26 February 2018 represents significant improvement compared to previous observations in October 2017.  The engineering and management noise control measures implemented by the Adrian’s Scrap Metal have been demonstrated to reduce the noise impact at the nearest dwellings.
  • Provided that Adrian’s Scrap Metal operates as it did on 26 February 2018 and continues to implement the noise mitigation measures, including reduced noise emissions from the excavator, our professional opinion is that there are unlikely to be noise impacts on the nearest dwellings at “Pepper Hill Estate” during day time hours.
  • It should be noted that noise from other industrial businesses at Barnett Place and the greater Molendinar industrial precinct are audible at “Pepper Hill Estate”.  Based on what was observed on 26 February 2018, the noise emitted from Adrian’s Scrap Metal during normal operations is not strongly more pronounced than noise from nearby businesses.”  (Emphasis added)
  1. [81]
    Following the report of Mr Temelkoski, Mr King was commissioned to also carry out further investigations. Mr King monitored noise levels received at the ground level of unit 87 in the Pepper Hill Estate. Noise levels were recorded with Mr King present at various times on 23 March and 6 April 2018. Because he was in attendance, Mr King was also able to record a number of relevant features, and, in particular, whether the excavator was operating or not.[84]  Other unattended measurements were taken over periods varying from 35 minutes to three hours on 21, 22, 24 and 28 March 2018.[85]
  1. [82]
    While readily accepting that other industrial noise emanated from the industrial estate, Mr King went on to say “…the impact noise from metal handling by the excavator at the facility in my experience is by far the most intrusive and frequent industrial noise source in the locality evident at Pepper Hill residences”.[86]  Mr King summarised opinions based on his further investigations in the following terms:[87]

“a) The noise level measurements I have undertaken in March and April 2018 demonstrate that noise emissions from the facility were on average lower to those I have measured previously;

b) Notwithstanding this decrease in noise level, the measurements described in this report identify that the use exceeded the Court Order noise limits by at least 5 dB(A);

c) There are no physical works or measures that I can identify that would have the effect of permanently reducing future noise emissions such that unacceptable noise impact upon residential amenity will not occur;

d) Having regard to the above matters, and in particular to the noise measurements undertaken most recently, it remains my opinion that the noise from operations of the Facility exceed reasonable noise level limits, because the exceedance described in this report is significant and of level where unacceptable impact upon the amenity of Pepper Hill residents continues to occur; and

e) There is nothing within the ATP February Report that would cause me to change my opinion from those expressed in my previous reports and the JER dated 20 October 2017.”

  1. [83]
    Prior to his giving evidence, Mr Temelkoski produced another report. That report by way of conclusion stated that significant improvements had been achieved as at 6 April 2018. However, it went on to say that further noise mitigation to address the noise caused by the excavation “crushing, stacking or loading tanks”.  The recommended measures were:[88]

“• The recommended noise mitigation measures are as follows:

  • The excavator shall only be operated by an experienced and highly trained operator.  The operator shall reduce noise by avoiding heavy impacts when handling metal and minimising the drop height of objects.  These noise management measures have been demonstrated to be highly effective and can be readily and permanently enforced by Adrian’s Metal Management.
  • Amendments to the existing noise barrier on the western site boundary of 26 Barnett Place should be made to eliminate line of sight to the dwellings at Pepper Hill Estate and attenuate any residential noise from the excavator.  It is proposed to increase the height of the noise barrier by the equivalent of one shipping container approximately 2.4m.  The amended noise barrier is a permanent engineering noise control measure which will safeguard against any future noise impacts.

Provided that the recommended noise mitigation measures are implemented, the activities from Adrian’s Metal Management are expected to comply with the noise limits at the nearest noise sensitive places.”

  1. [84]
    While those steps may go some way to addressing the noise of the excavation, it was clear from the cross-examination of Mr Temelkoski that as at 6 April 2018 the noise levels set in the interim order made by the Court on 1 March 2018 were not being met.[89]  It is also clear that extensive work would need to be done to extend noise amelioration works along the western boundary both horizontally and vertically.[90]  As to the vertical extension Mr King’s evidence was to the effect that the existing barrier would have to be elevated beyond any practical height.  That may or may not be the case but it is unnecessary to resolve that issue to determine the outcome of this proceeding.
  1. [85]
    In the respondent’s written outline of submissions a number of matters that render the evidence of Mr King “unsatisfactory”.[91] Most are without foundation or of no consequence and, even if valid cannot get around the following acts established by the evidence:
  1. Up until the interim order made on 1 March 2018, the noise levels from the site exceeded acceptable levels by a significant extent and on numerous occasions.
  1. AMM was well aware of the problem as evidenced by the discussion with Council officers referred to by Ms Garabed and discussed above.  Also, as evidenced by the steps taken to address the problem.
  1. Despite the orders made and the remedial steps that have been taken noise emanating from the site is still is exceedance of the levels set in the interim order made on 1 March 2018 and is still causing a nuisance at the Pepper Hill Estate.
  1. To properly address the noise nuisance issues will require still more not insignificant amelioration works to be undertaken.
  1. [86]
    Before concluding on this topic, I should deal with one final matter. The respondents on numerous occasions suggested to witnesses that the noise suffered by the residents of the Pepper Hill Estate could be coming from other uses within the industrial estate.
  1. [87]
    There is no room for any level of sensible doubt that it is the operations on the subject land causing the nuisance. That is established by the clear and certain evidence, which I accept in its entirety, of Ms Sotera and Mr King. Such a conclusion is also able to be found in the evidence of Mr Temelkoski. Finally, the respondents made no sensible attempt to identify another culprit in any meaningful way.
  1. [88]
    During the course of the proceedings, the potential for ameliorative works on the dedicated road reserve to the west of the subject land was raised by the respondents. I do not consider it necessary to deal with this aspect of the respondents’ case in any detail. What was proposed lacked any specificity, was untested and in any event involved highly improbable solutions.

Conclusions on the evidence

  1. [89]
    The evidence clearly establishes that AMM has and had continued to commit development offences as prescribed in s 165 of the Planning Act. The subject land has and is being put to an unlawful use.[92] The operations of AMM involves the carrying out of assessable development for which no necessary permit/permits have been sought nor issued by the Council.
  1. [90]
    The evidence also establishes to the same level that AMM is also guilty of carrying an environmental nuisance for the purposes of the EPA.
  1. [91]
    Before proceeding further, it is appropriate that I deal with Council’s application for relief under s 163 of the Planning Act. The evidence clearly establishes that the intensification of the use over both lots commenced at or about 2002/2003 and, according to the unchallenged evidence of the town planners, probably reached its peak at or about 2014.[93]  Section 163 is concerned with the carrying out of assessable development.  By virtue of the operation of schedule 2 of the Planning Act, pursuant to s 44(3), assessable development is defined as development for which a development permit is required.  In this context it is tolerably clear that the Council’s case, insofar as s 163 is concerned, is that there has been a material change of use of the land as a consequence of the increase in the intensity of the use of that land without the necessary permits being in place.[94]  The difficulty for the Council is that the intensification in the use of the land occurred prior to the introduction of the Planning Act in 2016.  Indeed, in this regard it is not unlikely that the intensification had been largely carried out while the IPA was in force.  The IPA was in turn  replaced by the SPA in 2009. 
  1. [92]
    Section 4.3.1 of the IPA, while not in identical terms to s 163 of the Planning Act, had the same substantive effect.  The same can be said in respect of ss 4.3.3 and 4.3.5 of the IPA and ss 164 and 165 respectively of the Planning Act.  In Woolworths Ltd v Maryborough City Council & Anor[95] Keane JA (as he then was, with Williams JA and Douglas J concurring) said:

“Under s 4.3.1 of the IPA, it is an offence to start assessable development without a development planning permit.  It is common ground that the sale of food and groceries is assessable development.  There is no extant development approval for the sale of food and groceries from the site.  Thus the effect of the application is to obtain the approval of this Court to continue a use commenced and, after 17 December 2004, continued, unlawfully.  That would seem to be prohibited by s 4.3.3 or s 4.3.5 of the IPA which, as a matter of language, are directed to ongoing development as distinct from the starting of a development.  It is to be noted that while s 4.3.1 of the IPA prohibits starting a development, s 4.3.3 and s 4.3.5 proscribe the contravention of a development approval or the use of premises if the use is not a lawful use. Further, it is to be noted that s 4.1.59(2) affords no power to the Court to grant relief against the operation of s 4.3.3 or s 4.3.5 of the IPA.

That the legislature has, in s 4.3.3 and s 4.3.5 of the IPA, used language apt to proscribe the continuing sale of food and groceries from the site at the present time as distinct from a proscription upon "starting" development, tends to suggest in my view that where the word "start" is used in the IPA in connection with development it is used in its ordinary sense of "commence" rather than as also encompassing "continue".  Mr Hughes SC, who appeared with Mr Williamson for the applicant, pointed out that the heading to s 4.3.1 is "Carrying out assessable development without permit".  He argued that this suggests that the legislature was treating "carrying out" development as the equivalent of "starting development" and vice versa. It may be accepted that starting a development is part of "carrying out" the development, but the converse is not true. …” (Emphasis added)

  1. [93]
    It is clear from his Honour’s reasoning that Keane JA was dealing with that part of the definition under the IPA of Material Change of Use concerned with starting a new use of premises. That is not the case here. The Council relies on the third limb of the definition of the material change of use under the Planning Act, namely the increase in the intensity or scale of use of the premises.[96]  That said, s 163 is concerned with “development” which is relevant to this proceeding, defined for the purposes of the Planning Act as “making a material change of use of the premises.”  The “making” of something involves a temporal connotation.  That is, the making of something involves an event that occurs or starts at a particular point of time.  In this case the making of the material change of use commences in or around 2002/2003 and was complete before AMM’s involvement with the land, by at or about 2014.
  1. [94]
    In my opinion, the rationale explained by Keane JA (as he then was) is dealing with the concept of the “starting” of something is applicable to the concept of “making” something happen. For these reasons, I do not consider the relief sought for the Council under s 163 of the Planning Act is available.
  1. [95]
    The evidence also proves that CFI, as the owner of the land, has permitted these offences and nuisance to continue. However, while being named as a party, no specific orders are sought to be directed towards that company either in the Originating Application or the Council’s written submissions.[97] While the declaratory relief sought concerning the validity and currency of the 2001 development permit would have affected rights of CFI, for the reasons given, I am not prepared to make that declaration.
  1. [96]
    For the reasons given, the Council is entitled to a substantial extent, the relief sought. However, before making orders disposing of this proceeding, I need to address four final matters. First, the respondents’ asserted defences of estoppel and/or waiver. Second, the Council’s application to have Mr Yarwood joined as a party. Third, discretionary considerations and, last, the issue of costs.

The defence of estoppel

  1. [97]
    It was asserted on behalf of the respondents that the Council was estopped from prosecuting this proceeding. At the heart of the respondents’ position on this point are the matters summarised in their written submissions where it was asserted:[98]

“The Respondents lead evidence in chief that the site has:

  1. (a)
    In so far as 24 Barnett Place has since prior 2001 operated as a Medium Impact Industry activity, namely a facility for dismantling motor vehicles; and
  1. (b)
    In so far as 26 Barnett Place as an approved scrap metal yard pursuant to the dominant purpose of the 2001 Development Approval.

As noted earlier the respondents have been operating on the site by a family hierarchy since the late 1990’s.

At the time the only people that lived in the area were occupants of large rural properties.

The business conducted on the site has virtually not changed since the sites were originally acquired.

It is now some eighteen (18) years latter (sic) the applicant counsel comes before this honourable court seeking injunctive relief in respect of a town planning issue that has arisen on change of the town plan in 2001 and allowed acquiesce in or permitted the respondents to continue operating a scrap metal facility from the site.

Apart from the Respondent’s assertion that it is immune from the orders the applicant seeks on the basis of a lawful non-conforming use, given the history of this matter it is for consideration whether there exists an argument in relation to waiver and/or estoppel.”

  1. [98]
    As has already been identified, a number of the assertions made to assert estoppel and/or waiver are simply incorrect. However, even accepting the respondents position at its highest, it could not in any sensible way raise the defences of estoppel and/or “waiver”.  The latter being a form of defence relied on but it was not explained how it would operate in the circumstances of this proceeding.
  1. [99]
    In Seymour CBD Pty Ltd v Noosa Shire Council[99] Robin QC DCJ was concerned with the situation where the local authority had refused to allow an extension to the currency period of an approval on the basis that it was, when originally given, invalid and void.  Among other things, the Court was required to consider whether the local authority, having granted the approval was then estopped from challenging its validity.  After referring in particular to the reasoning of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic[100] his Honour stated:[101]

“I find persuasive the demonstration that it is not possible to discover any established species of estoppel in public law (with which we are concerned here) which would be allowed to operate to prevent the Council from considering and/or raising as an argument in the court the invalidity of its approval in May 1998 in connection with the decision upon the appellant’s new application for extension of the currency period, etc.  This involves a new and separate decision being made.  The Council’s (and this court’s) ability to exercise the relevant discretion should, I think, be preserved, consistently with the principles revealed by Gummow J’s review.  That the approval sought to be extended was invalid is information which ought not to be ignored.”

  1. [100]
    The relevant passage from the reasoning of Gummow J in Kurtovic was:

“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.”

  1. [101]
    I respectfully agree with their Honours’ reasoning in both of the cases to which I have referred. In my view, as already stated, at its highest, the respondents have failed to establish a defence of either estoppel or waiver. To accept the respondents’ argument would be to prevent the Council from doing what its very existence requires it to do. That is, to act for the benefit of its constituents. That aside, the facts and circumstances relied on could not, in any event, provide a sufficient basis to ground a defence based on the doctrine of estoppel.

The joinder application

  1. [102]
    While foreshadowed earlier during the course of the proceeding, it was not until prior to the resumption of proceedings on 7 June 2018 that an application to have Mr Yarwood made as a party was filed. The grounds relied on for the joinder were:

“It would be necessary or, in the alternative, desirable, just and convenient, that Yarwood be joined as a party, by reason of the material facts described herein.”

  1. [103]
    In support of its application the Council relies on the extended definition of who may be an “executive officer” for the purposes of s 227 of the Planning Act.  Pursuant to schedule 2 of that Act an executive officer is defined to mean:

“…a person who is concerned with or takes part in the management of the corporation, whether or not the person is a director or the person’s position is given the title of executive officer.”

  1. [104]
    During final submissions Mr Wylie said in response to a query by me:[102]

“It’s the first respondent that’s relevant.  Your Honour, it’s the Council’s submission – and I’ll only say a few points – is that the affidavit material here doesn’t go far enough.  Firstly, Mr Yarwood was, during the relevant periods of time, a secretary of the first respondent in the periods of time in which the first respondent, it is submitted, committed development offences.  So it is open to this Court to find that Mr Yarwood too, through the enabling provisions has committed development offences, and orders may be made against him.

Your Honour the definition of an executive officer under the Planning Act at the analogue of – and the analogue definition within the Environmental Protection Act – is broader than being a mere office holder under the Corporations Act.  It’s enlarged and – to include everybody who is – and I read this: concerned with or takes part in the management of a corporation.

The evidence that I previously – I rely upon my previous evidence and my previous submissions for the joinder that Mr Yarwood has been concerned with and taken a part in the management since November 2016.  Whenever, the company gets in trouble, Mr Yarwood appears to be the trouble shooter.  Your Honour will recall that he resigned from the company and then returned and was appointed as a director for the purpose of this hearing.  He’s here today.  The evidence in his affidavit it simply goes no further than saying “I’m no longer a secretary… or a director”.  Your Honour, without more, this Court couldn’t be satisfied that, if the company did come into trouble again – that Mr Yarwood again would not assist as he has had for the last nearly two years.

…

The purpose of joining him would be such that, if Adrian’s Metal Management were no longer to exist, I submit it is likely that a similar company may continue to operate.”  (Emphasis added)

  1. [105]
    Following an interchange between Mr Wylie, myself and Mr Yarwood, Mr Wylie went onto submit:[103]

“The real relevance – something that just fell from your Honour now is “if he bobbed up”.  The relevance is that, historically, Mr Yarwood does “bob up” when this company gets into trouble and that is not – it’s not the end of the matter to say that he’s not a secretary, because the proper test is whether he is concerned with or takes part in the management of a corporation.  And the affidavit evidence is insufficient to say that he has not and will not now or in the future be concerned with or take part in the management of the corporation.  Your Honour, those are my submissions…”

  1. [106]
    When looked at objectively it would appear that the principle reason for joining Mr Yarwood and, for that matter, Ms Garabed, is that the Council is concerned that if they were to succeed in this proceeding the first respondent, AMM, may cease to exist but the operations on the land continue under a new corporate identity. Having regard to the history of AMM that is not an unrealistic concern.
  1. [107]
    As already identified above, when this matter came before the Court on 20 February 2018 Mr Yarwood stated that he represented AMM and CFI, and that he was the general manager of both companies “having all managerial – a full management role”.[104]  On 27 February 2018, he informed the Court that he no longer represented those companies but yet by the time the substantive proceeding had commenced, told the Court that he had been reinstated as the executive director of both AMM and CFI.[105] 
  1. [108]
    In his written submissions dated 11 June 2018 he accepted that, as at that date, he was a director of CFI together Mr Christopher Fuller, and was the secretary of AMM but that he was no longer an “office holder” of AMM.  As evidenced from an extract from the records of the Australian Securities and Investments Commission, that appears to be correct. 
  1. [109]
    In a further affidavit also filed 11 June 2018, Mr Yarwood also deposed to the fact that, among other things, he had been retained and/or employed by the second respondent solely as an “employed consultant”.  According to him his role:

“…has always been at the behest, direction and instruction of the respondents and the first and third respondent shareholders.  At all times I have not considered that I have any autonomous role or an ability to make determinations or decisions independent of the respondent and have at all times known that any step I take needs to be approved by the respondents and their shareholders [and that] in the absence of a specific direction made by the second respondent and/or shareholders of the first and third respondent I have no authority or role as a decision maker for the first and third respondent”. 

That description of his role and level of responsibility within AMM and CFI is, it appears to me, materially at odds with the earlier description of his role referred to above.

  1. [110]
    Attached to that affidavit is correspondence dated 1 June 2018, from “MY Management” signed by Mr Yarwood and addressed to Messrs Adrian and Christopher Fuller and Ms Garabed.  Among other things that correspondence stated:

“I confirm I will remain a director of Chris Fuller Investments Pty Ltd with my resignation effective the 30th June 2018, and my role as a director of Adrian’s Metal Management Pty Ltd shall come to an end today and I shall accept the role as secretary until the 30th June 2018 at which time I shall also resign.”

  1. [111]
    There can be no doubt that for a significant period of time from the commencement of these proceedings Mr Yarwood has been an “executive officer” for the purposes of the Planning Act of both AMM and CFI.  However, based on his unchallenged evidence he no longer falls within that description.
  1. [112]
    To resolve the outcome of this application, the relevant question to ask is, is Mr Yarwood’s presence necessary or desirable, just and convenient as a party to this proceeding.[106]  In Pegang Mining Co Ltd v Choong Sam[107] Lord Diplock proposed the following test:

“Will (the person’s) rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action.”

  1. [113]
    That test was also adopted by the Full Court of the Federal Court in News Ltd & Ors v Australian Rugby Football League Ltd & Ors[108] and also by Holmes J (as she then was) in Macquarie Bank Ltd v Fu-Shun Lin & Anor.[109]  In Kinsella & Anor v Gold Coast City Council (No.3)[110] Byrne J (as he then was) opined that the rhetorical question of whether a person’s presence was necessary, required a consideration of:

“Whether that person’s rights against, or liabilities to, any existing party in respect of a matter in dispute in the proceeding will be directly affected by any order which the court might make”.

  1. [114]
    While I well understand and have some sympathy for the Council’s position, and have genuine concerns about what Mr Yarwood’s role within the two companies truly was, I have reached the conclusion that this application must fail on the basis that, as matters presently stand, it could not be reasonably said that it would be necessary or just or desirable or convenient for Mr Yarwood to be made a party to this proceeding.
  1. [115]
    The underlying reason for this application is not concerned with what will or even with what is likely to happen. Instead, it is based on a concern about the possibility of what might occur in the future. That is, to use Mr Wylie’s words, that if AMM “were to no longer exist” a “similar company may continue to operate” and/or Mr Yarwood may at some future date again “be concerned with or take part in the management” of AMM.
  1. [116]
    For the reasons given, the application to have Mr Yarwood joined as a party to this proceeding is dismissed.
  1. [117]
    Before proceeding further, I consider that there is a clear distinction between the circumstances surrounding Mr Yarwood and those concerning Ms Garabed. Unlike Mr Yarwood, Ms Garabed has been a long serving director of AMM, and continues to act in that capacity. In that capacity, as has already been alluded to, she has been directly involved in the management of that company and remains so. For the sake of completeness I would add, while by no means a decisive matter, Ms Garabed has been a party to this proceeding since its commencement without objection.

Discretionary matters

  1. [118]
    In my view the evidence establishes two indisputable facts. First, the Council’s actions in commencing and prosecuting these proceedings was for the proper purpose of ensuring compliance with its Planning Scheme and, probably more importantly, for the purpose of ensuring the wellbeing of the residents of the Pepper Hill Estate. In this context I also accept the submission made on behalf of the Council that to permit the respondents, and particularly AMM, to continue its operations as things currently exist would create a highly undesirable precedent. On the other hand, the evidence makes it abundantly clear that the respondents, and in particular AMM, have conducted its business on the subject land unlawfully. That such a situation existed ought to have been obvious to the respondents but, instead of trying to regularise their affairs, elected instead to try and defend these proceedings.
  1. [119]
    As I raised with Mr Wylie, in the event that AMM’s business was required to cease operations, there would be a number of extremely unfortunate consequences. That includes the potential loss of a significant number of jobs for the employees and the cessation of a business that, as referred to above, results in a number of benefits to the public at large.
  1. [120]
    That said, as Mr Wylie submitted, the blame for these consequences can be laid firmly at the feet of the respondents due their own course of conduct. The respondents have, in reality, been on notice that if appropriate steps weren’t taken to regularise their activities on the subject land, enforcement proceedings would be brought.[111]  And, of course even at this late stage, it is still open for the respondents to lodge appropriate applications to regularise the operations being carried out on the subject land.
  1. [121]
    Ms Garabed and AMM have now recognised and accepted that the noise emanating from the site as a consequence of the operation of the excavators is creating an unacceptable noise nuisance and, as identified above, have taken a number of steps to address the problem.
  1. [122]
    That those steps have been taken is to the respondents’ credit and ought be given due recognition. However, the evidence of Messrs King and Temelkoski clearly establishes that, despite the steps taken, an unacceptable noise nuisance still exists and, to remedy the situation, further monitoring and the introduction of further ameliorative works have to be undertaken. According to Mr King, the extent of those further works would be significant.
  1. [123]
    Finally in this context I consider the observations of Kirby P (as he then was) in Warringah Shire Council v Sedevic[112] are apposite:

“Where the application for the enforcement of the Act is made by the Attorney-General, or a Council, a court may be less likely to deny equitable relief than it would in litigation between private citizens…  This is because the Attorney-General or the Council are seen as the proper guardians of public rights.  Their interest is deemed to be protective and beneficial, not private or pecuniary… Of course, as the development of administrative law demonstrates, administrators who advise the Attorney-General or Councils can sometimes act from motives which are less disinterested.  Courts would be alert to insensitive, unthinking administration in this, as in other fields of law…” (Citations omitted)

  1. [124]
    It was contended on behalf of the respondents’ that these proceedings were not merit based but yet another example of the Council unfairly pursuing the business operations of the Fuller family. There is no probative evidence which would suggest that the Council was acting in an insensitive, unthinking or otherwise untoward manner.
  1. [125]
    For the reasons given I do not consider there are any discretionary grounds which would militate against making orders generally of the type sought, but subject to my findings concerning its operation and effect of certain provisions of the Planning Act.

Costs

  1. [126]
    In its application the Council sought an order pursuant to s 61(1) of the PEC Act that the first and second respondents pay the Council’s cost of the proceedings, including its investigation costs. Further, an order pursuant to s 505(6)(d) of the EP Act, that the first and second respondents pay the costs reasonably incurred by the Council in monitoring the respondents’ actions in relation to the offences under s 440 of that Act.
  1. [127]
    However, quite appropriately in my view, the Council acknowledged in its written submissions that it would be an appropriate course of action to have the issue of costs matter dealt with separately once the substantive reasons for judgment had been published and the final form of the relief to be determined. That is the course I will adopt.

Conclusions

  1. [128]
    As identified above,[113] declaratory relief in respect of the 2001 permit was sought together with three alternative forms of enforcement orders under the Planning Act directed towards AMM and Ms Garabed and an order under the EP Act again directed at the same respondents. No relief was sought nor directed at CFI.
  1. [129]
    For the reasons given, I am not inclined to grant the declaratory relief sought in respect of the 2001 permit nor to grant relief under s 163 of the Planning Act. However, also for the reasons given, I am satisfied that it is appropriate to make a declaration pursuant to s 11 of the Planning Act to the effect that AMM is committing a development offence by carrying out an unlawful use on the subject land.[114]  I am also satisfied that, as things currently stand, the use being made by AMM should not be allowed to continue.
  1. [130]
    To immediately shut down the current operations would have dire consequences not only for AMM and Ms Garabed, but also for the forty odd employees. This was a matter apprehended by the Council who proposed that enforcement orders be framed in such a way as to allow a period of 90 days for AMM to remedy the current situation. According to Mr Wylie, that would permit AMM to either find an “alternate lawful premises” or alternatively to make a properly made and genuine development application to the Council. According to Mr Wylie, while he did not hold specific instructions, if AMM was genuine in its attempt to regularise matters, it would be open for it to seek to vary orders to extend any period imposed requiring compliance and that, in such a case “…it may be that it would be hard for me to resist that order being varied.”[115] The caveat of course being that any attempt to regularise matters be both genuine and expeditiously attended to.
  1. [131]
    I see considerable merit to that approach. Indeed, in this context, Mr Campbell of counsel, who appeared on the final day for the respondents and Mr Yarwood, said “it stands to reason that it is certainly within the interests of the respondents [to lodge a bona-fide development application] assuming they want to keep using the site for the purposes of a wrecking yard.”[116]
  1. [132]
    By way of summary, I am satisfied that:
  1. Declaratory relief of the type identified above ought be granted;
  1. Enforcement orders requiring AMM to cease its unlawful use of the land be made, but that the effect of that order be stayed for a period of not less than 90 days; and
  1. The question of costs be adjourned to a date to be fixed.
  1. [133]
    As to Ms Garabed, she is clearly an executive officer for the purposes of the Planning Act in circumstances where AMM, of which she is a director playing an active role; has and continues to commit a development offence. In such circumstances, the Council contends that “orders may be made against [Ms Garabed] on the basis that [she], as [an] executive officer [is] deemed to have committed --- offences pursuant to s 227 of the Planning Act.”[117]
  1. [134]
    I agree that it may be appropriate to make orders and/or grant declaratory relief directed at Ms Garabed. Unfortunately though, the precise form of the relief sought against her was not articulated.
  1. [135]
    Accordingly, I will hear from the parties in respect of the precise form of the declaratory relief and orders the Council wants against AMM and Ms Garabed.
  1. [136]
    To facilitate this, I propose that the Council circulate a draft of the relief sought to the respondents and to the Court and that a date be set, if necessary, to formalise the final relief to be granted.
  1. [137]
    I am conscious that these proceedings have been dragging on now for some time with submissions being completed on 12 July 2018. Accordingly I consider that a date ought to be fixed to finalise maters at the earliest practicable date.

Orders

  1. The applicant is to prepare and circulate orders in accordance with the reasons given.
  2. The proceeding is adjourned to a date to be fixed.
  3. The question of costs is adjourned to a date to be fixed.

Footnotes

[1]  E.g. Exhibit 15, pages 18, 31 and 36.

[2]  While Mr Grummitt was retained by the respondents who then filed his affidavit and report, he was not called to give evidence on their behalf and was not required for cross-examination.

[3]  Exhibit 15, paras 3.1.3 to 3.1.7. A more expansive description of the activities on the site is set out in the JER of the sound engineers and is discussed below.

[4]  Exhibit 31, para 15.

[5]  T 4-34.

[6]  T 4-34.

[7]  T 4-34 ll 22-25.

[8]  T 4-41 L 45.

[9]  T 4-56 ll 15-19.

[10]  T 4-91 L 38.

[11]  T 4-52 ll 7-17.

[12]  Exhibit 15, page 4.

[13]  Exhibit 15, page 4, para 3.1.5; T 4-61 ll 35-45; T 4-62 ll 1-7.

[14]  T 4-56 L 42.

[15]  Exhibit 15, pages 4-5.

[16]  T 4-91 ll 38-47; T 4-92 ll 1-18.

[17]  Exhibit 36.

[18] Adrian’s Metal Management Pty Ltd v Gold Coast City Council [2018] QPEC 11.

[19]  Exhibit 1.

[20]  T 4-36 L 35.

[21]  T 4-37 ll 11-17; Exhibit 25.

[22]  T 4-37 ll 39-41.

[23]  T 4-37 ll 42-47.

[24]  T 4-38; Exhibit 26.

[25]  T 4-39 ll 20-43; Exhibit 27.

[26]  T 4-90 L 45 – T4-91 L 20.

[27] Gympie Regional Council v Pye [2016] QPEC 65 at [49]; Cuthbert v Moreton Bay Shire Council [2016] QPELR 179; Hungtat Worldwide Pty Ltd v Chief Executor of the Department of Environment and Heritage Protection [2017] QPEC 62.

[28]  (1938) 60 CLR 336.

[29]  Exhibit 15, pages 6-14.

[30]  Ibid, page 14, paras 4.1.1 to 4.1.8.

[31]  Ibid, para 2.2.1.

[32]  Ibid, paras 3.1.8-3.1.11.

[33]  Ibid, paras 3.1.10-3.1.11.

[34]  T 4-96 ll 4-19.

[35]  T 4-42 L45 – T 4-43 L2.

[36]  Exhibit 15, para 3.3.17.

[37]  Ibid, pages 11-12.

[38]  Ibid, part 3.3, para 3.3.9.

[39]  Such approvals were granted in respect of Lot 84 in 2000 and for Lot 83 in 2011. See Exhibit 15, p 9, para 3.2.9.

[40]  T 4-42 ll 30-35.

[41]  T 4-90 ll 35-40.

[42]  Exhibit 35, para 16 and page 44, paras (e) and (f).

[43]  T 4-90 ll 3-17.

[44]  Exhibit 35, page 10, paras (g) and (h).

[45]  T 4-93 ll 1-43.

[46]  At para 29.

[47]  T 4-96 ll 27-30.

[48]  Exhibit 29, para 16.

[49]  E.g., Exhibit 29, para 7; T 4-96 L 20.

[50]  T 4-98 ll 29-34.

[51]  T 4-96 L 20.                                                                                                                                                                                                                                                                                                                                                       

[52]  T 4-98 ll 35-39.

[53]  T 4-96 ll 5-21.

[54]  T 4-97 L 20.

[55]  Exhibit 29, paras 5-9.

[56]  T 4-55 L 11.

[57]  T 4-56 ll 15-37. Refer also to the evidence of the town planners, for example, Exhibit 15 page 13.

[58]  Exhibit 15, page 14, para 4.1.3.

[59]  Exhibit 2, page 2, paras 9-12.

[60]  C&V Constructions Pty Ltd.

[61]  Exhibit 2, page 34.

[62]  Ibid, page 58.

[63]  Exhibit 15, page 6, paras 3.2.1-3.2.10.

[64]  Outline of argument for the applicant, paras 15-22.

[65]  S 3.5.21.

[66]  S 3.5.21A.

[67]  Exhibit 15, page 6, para 3.2.2(a).

[68]  A similar (but not identical) provision exists in the EPA pursuant to s 440.

[69]  Outline of argument for the applicant, para 43.

[70]  While s 16A of that Act is pleaded in the Council’s originating application, it was not relied on in its final submissions.

[71]  T1-33 ll 40-45.

[72]  Exhibit 14.

[73]  Ibid, para 10.

[74]  T 1-53 ll 23-29.

[75]  T 1-53 ll 43-47; T1-54 ll 1-5.

[76]  Exhibit 16.

[77]  Ibid, page 2.

[78]  Ibid, page 3.

[79]  Ibid, page 4.

[80]  Exhibit 6, page 18, paras 59-62.

[81]  Exhibit 33, attached report of Mr Temelkoski dated 27/02/2018, page 5.

[82]  Partly shown in Exhibit 8, PAK 3.

[83]  T 4-57 – T 4-58.

[84]  Refer to Exhibit 9, page 6, table 1.

[85]  Ibid, paras 4-11.

[86]  Ibid, page 13.

[87]  Ibid, page 3.

[88]  Exhibit 36, part 5.

[89]  Exhibit 36, Table 4.1; T 4-103 ll 28-42.

[90]  T 4-106 ll 37-45; T 4-107 ll 1-46; T 4-108 ll 2-20.

[91]  Outline of argument for the first, second and third respondents at paras 61-78.

[92]  As has already been identified in its final submissions, relief was sought only in respect of ss 163 and 165.

[93]  Exhibit 15, page 13, para 3.4.1.

[94] Planning Act 2016 schedule 2, definition of “material change of use”.

[95]  [2005] QCA 62 at [18] and [19].

[96]  Schedule 2.

[97]  Outline of argument for the applicant, para 43.

[98]  Outline of argument for the applicant, paras 31-36.

[99]  [2002] QPELR 226.

[100]  [1990] FCA 19.

[101] Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226 at [36].

[102]  Transcript 12 July 2018; T 1-6 L 37 – T1-7 L 24.  See also T 1-8 ll 22-30.

[103]  Transcript 12 July 2018; T 1-9 ll 30-37.

[104]  Transcript 20 February 2018; T 1-2 L 20.

[105]  Exhibit 1.

[106] Uniform Civil Procedure Rules 1999 Rule 69(1).

[107]  [1969] 2 MLJ 52.

[108]  [1996] 139 ALR 193 at [298].

[109]  [2001] QSC 341.

[110]  [2016] QSC 14 at [8].

[111]  Exhibit 12 at para 5(c) and (d) per the affidavit of Ms Jones.

[112]  (1987) NSWLR 335.

[113]  At [23].

[114]  Outline of argument for the applicant, para 34.

[115]  Transcript 12 July 2018; T 1-23 ll 1-47.

[116]  Transcript 12 July 2018; T 1-25 ll 15-22.

[117]  Outline of argument for the applicant, para 43(b).

Close

Editorial Notes

  • Published Case Name:

    Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors

  • Shortened Case Name:

    Gold Coast City Council v Adrian's Metal Management Pty Ltd

  • MNC:

    [2018] QPEC 45

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    21 Sep 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adrian's Metal Management Pty Ltd v Gold Coast City Council [2018] QPEC 11
1 citation
Jump To
Cite 1 - [2018] QPEC 11
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cuthbert v Moreton Bay Shire Council [2016] QPELR 179
2 citations
Jump To
Cite 1 - [2016] QPELR 179
Cite 2 - [2016] QPELR 179
Federal Court in News Ltd v Australian Football League Ltd (1996) 139 ALR 193
1 citation
Jump To
Cite 1 - (1996) 139 ALR 193
Gympie Regional Council v Pye [2016] QPEC 65
2 citations
Jump To
Cite 1 - [2016] QPEC 65
Cite 2 - [2016] QPEC 65
Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environment and Heritage Protection [2017] QPEC 62
2 citations
Jump To
Cite 1 - [2017] QPEC 62
Cite 2 - [2017] QPEC 62
Kinsella v Gold Coast City Council (No 3) [2016] QSC 14
2 citations
Jump To
Cite 1 - [2016] QSC 14
Cite 2 - [2016] QSC 14
Macquarie Bank Limited v Fu-Shun Lin[2002] 2 Qd R 188; [2001] QSC 341
1 citation
Jump To
Cite 1 - [2001] QSC 341
Macquarie Bank Ltd v Fu-Shun Lin [2006] QCA 97
1 citation
Jump To
Cite 1 - [2006] QCA 97
Mining Co Ltd v Choong Sam [1969] 2 MLJ 5
1 citation
Jump To
Cite 1 - [1969] 2 MLJ 5
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 19
2 citations
Jump To
Cite 1 - [1990] FCA 19
Cite 2 - [1990] FCA 19
News Limited v Australian Rugby Football League Ltd [1996] FCA 870
1 citation
Jump To
Cite 1 - [1996] FCA 870
Pegang Mining Co. Ltd v Choong Sam (1969) 2 MLJ 52
1 citation
Jump To
Cite 1 - (1969) 2 MLJ 52
Seymour CBD Pty Ltd v Noosa Shire Council (2002) QPELR 226
3 citations
Jump To
Cite 1 - (2002) QPELR 226
Cite 2 - (2002) QPELR 226
Cite 3 - (2002) QPELR 226
Warringah Shire Council v Sedevic (1987) NSWLR 335
2 citations
Jump To
Cite 1 - (1987) NSWLR 335
Cite 2 - (1987) NSWLR 335
Woolworths Ltd v Maryborough City Council[2005] 2 Qd R 203; [2005] QCA 62
2 citations
Jump To
Cite 1 - [2005] QCA 62
Cite 2 - [2005] QCA 62

Cases Citing

Case NameFull CitationFrequency
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 521 citation
Gold Coast City Council v Adrian's Metal Management Pty Ltd [2019] QPEC 23 citations
Gold Coast City Council v Adrian's Metal Management Pty Ltd (No. 3) [2019] QPEC 392 citations
Moreton Bay Regional Council v Giffin [2022] QPEC 202 citations
Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 322 citations
1

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