Planning and Environment Court determines company operating vehicle dismantling business had unlawfully used the subject land without the necessary permits, and had caused an environmental nuisance and found the CEO also liable under the executive provisions

In brief

The case of Gold Coast City Council v Adrian's Metal Management Pty Ltd & Ors [2018] QPEC 45 concerned an application by the Gold Coast City Council (Council) to the Planning and Environment Court for declaratory relief and orders in respect of the Respondent's alleged use of land at Molendinar for vehicle recycling without a permit.

The key issues considered by the Court were as follows:

• Were the Respondents carrying out assessable development on the subject land without the necessary permits and approvals?
• Were the Respondents unlawfully causing an environmental nuisance?

The Council sought the following orders:

• Pursuant to section 11 of the Planning and Environmental Court Act 2016 (PEC Act) – a declaration that the development permit issued in July 2001 over part of the subject land had lapsed or been abandoned.
• Pursuant to section 180 of the Planning Act 2016 (Planning Act) – an enforcement order against the First and Second Respondents, being the company operating the vehicle recycling business and the sole CEO of that company.
• Pursuant to section 505 of the Environmental Protection Act 1994 (EP Act) – an order that the First and Second Respondents be restrained from committing the offence of unlawfully causing an environmental nuisance.

The Court held the following:

• Pursuant to section 11 of the PEC Act – that the relevant development permit had not lapsed and was not abandoned by the Respondents.
• Pursuant to section 180 of the Planning Act – that the First Respondent's unlawful use of the subject land without the necessary permits and approvals was a development offence and further, because the Second Respondent knew or ought to have known of the First Respondent's actions, the Second Respondent was also committing a development offence.
• Pursuant to section 505 of the EP Act – that the First Respondent was committing the offence of unlawfully causing an environmental nuisance due to the excessive noise generated from the vehicle recycling activities and the Second Respondent was also committing the offence of unlawfully causing an environmental nuisance because the Second Respondent knew, or ought to have known of the First Respondent's actions.

Background

The First Respondent was the company conducting the business on the subject land, the Second Respondent was the sole CEO of the First Respondent and the Third Respondent was the owner of the subject land.

Collectively the First and Second Respondents were involved in a vehicle recycling business which included the deconstruction and crushing of vehicles, a use relevantly described as Medium Impact Use (Scrap Metal Yard). The business was located across both Lot 83 and 84 of the subject land and within the Low Impact Industry zone of Council's planning scheme but was situated within 250 metres of a nearby residential development. The business had increased in intensity over its lifespan on the subject land.

Previously, the Council had approved a development application with conditions over Lot 83 of the subject land in July 2001. No prior development approval existed for Lot 84 of the subject land, a fact noted by the Court.

Court concluded that the development permit had not lapsed or been abandoned by the Respondents despite finding non-compliance with conditions

The Court concluded that there had been significant non-compliance with a number of the conditions of the July 2001 development approval. The Council contended that the development permit had lapsed, or in the alternative had been abandoned, because of the Respondent's non-compliance with material conditions of the development permit.

However, the Court noted that the relevant development permit was issued under the Integrated Planning Act 1997 which does not require compliance with development conditions as a condition precedent before the approval takes effect. The Court was therefore not satisfied that the development permit had lapsed or been abandoned.

Court concluded that the First and Second Respondents had committed the development offence of unlawful use of the premises

The Respondents did not have a development permit for Lot 84 of the subject land. Furthermore, the Court found that the use on Lot 83 of the subject land (being subject to the July 2001 development permit) was a different use and was a material and unlawful intensification of the use which might have otherwise been approved.

The Court therefore concluded that the First Respondent was committing a development offence by carrying out an unlawful use of the subject land under section 165 of the Planning Act.

In addition, the Council submitted that the Second Respondent also committed a development offence under section 227 of the Planning Act which deals with executive liability. Although the Court did not accept the Council's full argument, the Court agreed that the Second Respondent knew or ought to have known of the offending conduct of the First Respondent and was therefore also committing a development offence.

Court determined based on the expert evidence that the noise generated from the subject land was causing an environmental nuisance

The relevant joint expert report of the sound engineers, whose evidence the Court accepted, identified an unreasonable level of noise emanating from the subject land. After reviewing the mitigating steps undertaken by the First and Second Respondents, the Court concluded that the First Respondent was guilty of an environmental offence under section 505 of the EP Act, and consequentially the Second Respondent was also guilty under section 493 of the EP Act for failing to ensure the First Respondent did not produce an environmental nuisance.

Conclusion

The Court therefore ordered that the Council prepare the relevant orders and adjourned the proceeding.