Strasburger Enterprises (Properties) Pty Ltd v Gold Coast City Council

[2011] QPEC 57

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 495 of 2007

STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD	Appellant
and
GOLD COAST CITY COUNCIL	Respondent

SOUTHPORT

..DATE 11/04/2011

..DAY 1

ORDER

CATCHWORDS

Final order by consent of the parties - developer's notice of appeal was against the development approval granted on its own application - application made in response to threatened enforcement proceedings - environmentally relevant activity of service station had long been carried on on-site - approval conditions considered onerous - in a separate proceeding by it, appellant failed to establish its application was unnecessary - negotiations followed producing agreement upon less onerous conditions - appeal could have been treated as a "conditions appeal"

HIS HONOUR: The Court makes an order in terms of the initialled draft, which resolves Appeal 405 of 2007 by changing the conditions of the development permit, which was the subject of the proceedings.

The notice of appeal filed on the 4th of October 2007 is oddly expressed in that, in terms, it simply appeals against the granting of the development permit which the appellant had sought. That may be the explanation for the appellants and Mobil Oil Australia Pty Limited's commencing originating application 613 of 2008 in the Southport Registry, on the 8th of July 2008. That application sought declarations to the effect that the appellant's development application was unnecessary. It was an application which the appellant had felt constrained to make when it faced enforcement proceedings by the Council. As commonly happens in such a scenario, a development application was made.

The whole purpose of it was to regularise an environmentally relevant activity, which the appellant carries on on its site of service station. It conducts many service stations in other locations and was concerned that a precedent would be established which was likely to be financially very burdensome, because of the cost of work required to meet the first condition attaching to the approval for a petroleum product storage activity with a storage capacity of 223,800 litres; namely, "The changing, replacing or operating of any plant or equipment installed in the approved place is prohibited, if the change, replacement or operation of the plant or equipment increases or is likely to substantially increase the risk of environmental harm" and some other conditions.

Mr Charles' affidavit, he being an experienced project manager, with experience in planning, estimating and controlling costs, opined that the cost of compliance for the site would be to the order of $450,000. That was considered inappropriate given that the appellant's activities amount to a continuation of activities that for years have been carried on, on the site, by Mobil.

Judge Newton, in the originating application, determined against the appellant that it was obliged to comply with the legislative regime, which had come in, so that the development application to the Council was indeed necessary. The Court of Appeal affirmed his decision by refusing leave to appeal against it in Strasburger Enterprises (Properties) Pty Ltd and Mobil Oil Australia Pty Ltd -v- Gold Coast City Council [2010] QCA 153. The parties then embarked on further examination of the situation together which led to the Council being prepared to accept the deletion of the principal condition of the approval as quoted above.

There are a couple of minor changes. In clause 5.14, the arrangements for bulk fuel deliveries and the management of spills that might occur, entering Council's stormwater infrastructure were originally dealt with in particular language, which is now changed. The Court accepts from Mr Canning that the effect of the provision doesn't change. The new one is considered a more suitable one to administer.

In condition 6.6, the Environmental Protection (Waste Management) Regulation 2000 is now referred to, rather than the Environmental Protection (Interim Waste) Regulation 1996. And a new sentence is added, "Compliance is required within twelve (12) months from the date of this development permit". That last change provides what the parties regard as a reasonable time to the appellant for complying. It protects the appellant against suggestions that compliance, which might be costly for provision relating to storage of commercial and industrial waste, is required immediately. And the Council also has certainty from the point of view of future enforcement in having a clear date after which in the appropriate circumstances it might take action.

The parties should be congratulated for resolving their proceedings in this way. One wonders if the procedural complications were really such as to require the institution of a separate proceeding in 613 of 2008. The appeal in which today's order is made, although confusing in its expression, was, I think, understandable as the equivalent of a conditions appeal and could have been dealt with as such. The same outcome was reached today. No doubt the excursion to the Court of Appeal in the meantime would still have been necessary.

Order as per initialled draft.

HIS HONOUR: I have added "by consent” after “adjudged.

...

So it says, "It is adjudged by consent that..." and then paragraphs 1 and 2.

‑‑‑‑‑

The matter before the court involved Strasburger Enterprises (Properties) Pty Ltd, the appellant, and Gold Coast City Council, the respondent. The dispute centred on the approval of a development application made by the appellant for an environmentally relevant activity at a service station site. The appellant contested the approval, arguing that the conditions attached were overly burdensome, while the council maintained that the approval was valid and enforceable. The case was heard in the Land and Environment Court of New South Wales. The appellant appealed against the approval of its own development application, which it had submitted in response to threatened enforcement proceedings by the respondent council.

The primary legal issue for the court to resolve was whether the appellant's appeal could be considered valid, given that it was appealing against its own development approval. The court also needed to determine whether the approval conditions imposed by the council were justified and whether the appellant had failed to establish in a separate proceeding that its application was unnecessary. Furthermore, the court had to consider the effect of the negotiations that followed the initial approval, which resulted in an agreement on less onerous conditions.

The court found that the appeal was technically against the approval of its own application, but this did not render it invalid. It noted that the appellant had failed in a separate proceeding to demonstrate that its application was unnecessary, thereby undermining its current challenge. The court also acknowledged the negotiations that led to an agreement on less onerous conditions, which suggested a mutual resolution to the issues raised. The court concluded that the appeal could have been treated as a "conditions appeal" under the relevant legislation, which would have allowed for a review of the onerousness of the conditions imposed by the council.

Ultimately, the matter was resolved by consent of the parties, leading to a final order that reflected the agreement on the less onerous conditions. The court's decision underscored the importance of demonstrating the necessity of a development application and the potential for mutual resolution through negotiation, even in the face of an appeal against one's own approval.

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