PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: 2429/17 DIVISION: PROCEEDING: ORIGINATING COURT: Gold Coast City Council v Adrian s Metal Management Pty Ltd & Ors [2018] QPEC 45 Gold Coast City Council (applicant) v Adrian s Metal Management Pty Ltd ACN (first respondent) Serah Monique Garabed (second respondent) Chris Fuller Investments Pty Ltd ACN (third respondent) Planning and Environment Enforcement proceeding DELIVERED ON: 21 September 2018 DELIVERED AT: HEARING DATE: JUDGE: Planning and Environment Court of Queensland, Brisbane Brisbane 19 and 20 February 2018, 7 and 8 June 2018, and 12 July 2018 RS Jones DCJ ORDER/S: 1. The applicant is to prepare and circulate orders in accordance with the reasons given. CATCHWORDS: 2. The proceeding is adjourned to a date to be fixed. 3. The question of costs is adjourned to a date to be fixed. 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

2 2 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

3 3 corporate entities would be dissolved but the operations on the land continued but under new corporate names COUNSEL: SOLICITORS: 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 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 McCullough Robertson Lawyers for the applicant [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).

4 4 Background [2] The subject land is located at Barnett Place, Molendinar and is more properly described as Lots 83 and 84 on RP 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 2. Landslide Hazard Overlay Moderate. [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. [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. [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. 1 E.g. Exhibit 15, pages 18, 31 and 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 to A more expansive description of the activities on the site is set out in the JER of the sound engineers and is discussed below.

5 5 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 [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. [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. [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. [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, 4 Exhibit 31, para T T T 4-34 ll T 4-41 L T 4-56 ll T 4-91 L 38.

6 6 Chris Fuller, Adrian Fuller had issues with these other yards. 11 More will be said about these issues below. [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 [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 [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 [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 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 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. [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. 11 T 4-52 ll Exhibit 15, page Exhibit 15, page 4, para 3.1.5; T 4-61 ll 35-45; T 4-62 ll T 4-56 L Exhibit 15, pages T 4-91 ll 38-47; T 4-92 ll Exhibit 36.

7 7 [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 [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. [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: (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 [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. [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 18 Adrian s Metal Management Pty Ltd v Gold Coast City Council [2018] QPEC Exhibit 1.

8 8 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, 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 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 [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 [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 [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. [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). [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 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 20 T 4-36 L T 4-37 ll 11-17; Exhibit T 4-37 ll T 4-37 ll T 4-38; Exhibit T 4-39 ll 20-43; Exhibit T 4-90 L 45 T4-91 L 20.

9 9 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. [25] Other consequential orders including cost orders were also sought. [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 (a) a matter done, to be done or that should have been done for this Act or the Planning Act; or (b) the interpretation of this Act or the Planning Act; or (c) the lawfulness of land use or development under the Planning Act; or (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 (e) the construction of the Brisbane port LUP under the Transport Infrastructure Act 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. [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 (a) refrain from committing a development offence; (b) remedy the effect of a development offence in a stated way.

10 10 (3) The P&E Court may make an enforcement order if the court considers the development offence (a) has been committed; or (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 (a) to stop an activity that constitutes a development offence; or (b) not to start an activity that constitutes a development offence; or (c) to do anything required to stop committing a development offence; or (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 (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 (a) (b) attaches to the premises; and 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

11 11 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 (a) (b) take the action required under the order; and 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. [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 (a) the Minister; or (b) the administering authority; or (c) someone whose interests are affected by the subject matter of the proceeding; or (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 (a) an offence against this Act has been committed (whether or not it has been prosecuted); or (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.

12 12 (6) An order (a) may direct the defendant (i) to stop an activity that is or will be a contravention of this Act; or (ii) to do anything required to comply with, or to cease a contravention of, this Act; and (b) (c) (d) may be in the terms the Court considers appropriate to secure compliance with this Act; and must specify the time by which the order is to be complied with; and 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 (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 (b) the person has previously engaged in an activity of that kind; or (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 (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 (b) the person has previously failed to do a thing of that kind; or (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 (a) restraining the use of plant or equipment or a place; or (b) requiring the demolition or removal of plant or equipment, a structure or another thing; or (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.

13 13 (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. [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 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. [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. [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 [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; 2. Whether the current on site use of Lot 83 was being undertaken in accordance with the terms and conditions of the 2001 permit; 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 (1938) 60 CLR 336.

14 14 3. Whether there has been a material intensification of on-site uses for both Lots 83 and 84; and 4. Whether Lot 84 has the benefit of any lawful existing use rights. [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 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. [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. 29 Exhibit 15, pages Ibid, page 14, paras to Ibid, para Ibid, paras Ibid, paras

15 15 [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. [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 There are no records of any permits authorising scrap metal operations on Lot 84. [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 [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. [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; 2. Condition 8 storage areas are either not or insufficiently screened; 3. Condition 9 causation of adverse amenity impacts; 4. Condition 13 non-compliance with landscaping, fencing and open space requirements; 5. Condition 18 non-compliance with noise emission conditions; 6. Condition 20 failure to comply with conditions concerning plant and equipment; 7. Condition 42 failure to comply with operational conditions concerned with plant and equipment. 34 T 4-96 ll T 4-42 L45 T 4-43 L2. 36 Exhibit 15, para Ibid, pages

16 16 [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 [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 [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. [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 [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? 38 Ibid, part 3.3, para Such approvals were granted in respect of Lot 84 in 2000 and for Lot 83 in See Exhibit 15, p 9, para T 4-42 ll T 4-90 ll Exhibit 35, para 16 and page 44, paras (e) and (f). 43 T 4-90 ll 3-17.

17 17 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. [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. 44 Exhibit 35, page 10, paras (g) and (h). 45 T 4-93 ll 1-43.

18 18 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) [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-inchief and opinions remained consistent and were not seriously challenged. [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. [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. [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. 2. 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. [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. [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 46 At para T 4-96 ll Exhibit 29, para E.g., Exhibit 29, para 7; T 4-96 L 20.

19 19 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 [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 [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 [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. [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 [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. [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. 50 T 4-98 ll T 4-96 L T 4-98 ll T 4-96 ll T 4-97 L Exhibit 29, paras T 4-55 L T 4-56 ll Refer also to the evidence of the town planners, for example, Exhibit 15 page 13.

20 20 [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 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 [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 That conclusion was relied on by Mr Wylie, who also argued in the alternative that the permit had been abandoned. 64 [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 (1)(a) of IPA, the permit takes effect at the time the Decision Notice approving the application is given. Pursuant to s , 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 [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. [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. [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. [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. 58 Exhibit 15, page 14, para Exhibit 2, page 2, paras C&V Constructions Pty Ltd. 61 Exhibit 2, page Ibid, page Exhibit 15, page 6, paras Outline of argument for the applicant, paras S S A. 67 Exhibit 15, page 6, para 3.2.2(a).

21 21 [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. [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 [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 [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 onsite 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 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. [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 68 A similar (but not identical) provision exists in the EPA pursuant to s Outline of argument for the applicant, para While s16a of that Act is pleaded in the Council s originating application, it was not relied on in its final submissions. 71 T1-33 ll Exhibit Ibid, para 10.