Strasburger Enterprises (Properties) Pty Ltd v Gold Coast City Council
[2009] QPEC 103
•22 October 2009
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Strasburger Enterprises (Properties) Pty Ltd & anor v Gold Coast City Council [2009] QPEC 103
PARTIES:
STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD (ACN 004 052 984)
(first applicant)And
MOBIL OIL AUSTRALIA PTY LTD
(ACN 002 913 911)(second applicant)
v
GOLD COAST CITY COUNCIL
(respondent)FILE NO/S:
613 of 2008
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court Southport
DELIVERED ON:
22 October 2009
DELIVERED AT:
Southport
HEARING DATES:
7 July 2009
JUDGE:
Newton DCJ
ORDER:
Originating application dismissed
LEGISLATION:
Environmental Protection Act 1994
ss 18, 19, 40, 619(2)(e), 624(1)(a), 624(2)(a)(b)
Environmental Protection (Interim) Regulation 1995
s 63
Integrated Planning Act 1997
ss 1.3.5, 4.3.1(1), 4.3.9, 4.3.11, 6.1.23(1)(b), 6.1.23(2), 6.1.24(1)
Local Government Act 1936
Local Government (Planning and Environment) Act 1990CATCHWORDS:
Application for declarations – whether storage of petroleum product in underground tanks (an Environmentally Relevant Activity – ERA No.11(a)) located at a service station at Palm Beach owned by the Second Applicant (“Mobil”) was lawfully carried on for the purposes of the Environmental Protection Act 1994 and the Integrated Planning Act 1997 by the first applicant as occupier under a “development approval” (a continuing approval under s 6.1.23(1)(b) of the Integrated Planning Act 1997 immediately prior to and as from 4 October 2004.
COUNSEL:
Mr G R Allan for the applicants.
Mr M A Williamson for the respondent.
SOLICITORS:
Porter Davies Lawyers for the applicants.
King & Company for the respondent.
The first applicant is the operator of the Palm Beach Mobil Service Station situated at 1182 Gold Coast Highway, Palm Beach (“the land”). It has operated the premises under a licence agreement with Mobil Oil Australia Pty Ltd (the registered proprietor of the land) since 24 May 2004.
The use of the land for the purpose of a service station is authorised by a town planning consent permit granted by the Gold Coast City Council (the respondent) in August 1987. The respondent council’s consent was granted subject to conditions and was given during the currency of the Local Government Act 1936. An approval of this character is a “continuing approval”[1] under the Integrated Planning Act 1997 (“IPA”) and has effect as if it were a development approval in the form of a development permit. The continuing approval (including the conditions of the approval) attached to the land and bind successors in title.[2]
[1] The consent is a “continuing approval” by virtue of section 8.10(8) of the repealed Local Government (Planning and Environment) Act 1990 read with sections 6.1.23(1)(b) and 6.1.23(2) of the Integrated Planning Act 1997.
[2] Section 6.1.24(1) of IPA
A development application for a material change of use for a Level 2 Environmentally Relevant Activity (“ERA”) was made by the first applicant on 20 March 2006. The ERA for which approval was sought was described as a Level 2 ERA (ERA 11(a)) to authorise the storage of petroleum products (greater than 10,000 litres but less than 500,000 litres) on the land. The impetus for the development application was an Enforcement Notice issued by the respondent on 9 September 2005 alleging that the first applicant was unlawfully carrying out the ERA on the land. The Enforcement Notice required the first applicant to submit a development application to regularise the activity.
On 7 September 2007 the development application for the ERA was approved by the respondent, subject to conditions. The first applicant has lodged an appeal against the respondent’s decision and that appeal is still on foot.
By an amended originating application filed by leave on 7 July 2009 the applicants have applied to this Court for declarations that:
(i) The consent permit No. 10/726 granted by the Gold Coast City Council on 21 August 1987 remained in force as a continuing approval pursuant to s 6.1.23(2) and s 6.1.23(1)(b) of the Integrated Planning Act 1997 and had effect as a development approval in the form of a development permit for the purposes of the Integrated Planning Act 1997 and the Environment Protection Act 1994;
(ii) The continuing use of the land described as Lot 23 on RP 214972 Parish of Tallebudgera, County of Ward (1182 Gold Coast Highway Palm Beach in the State of Queensland) by Strasburger Enterprises (Properties) Pty Ltd for Petroleum Product Storage does not and did not, as and from 4 October 2004 (the date of commencement of Chapter 13, Part 5 of the Environmental Protection Act 1994) constitute a material change of use under s 1.3.5(a), (b) or (c) of the definition of material change of use under the Integrated Planning Act 1997;
(iii) The decision by the Gold Coast City Council on 7 September 2007 to issue a development permit for a material change of use for Petroleum Product Storage on Lot 23 on RP 214972 Parish of Tallebudgera, County of Ward was invalid and the development permit is invalid and of no effect;
(iv) [3]The decision on 9 September 2005 by the Respondent to give an enforcement notice to Strasburger Enterprises (Properties) Pty Ltd was invalid and the enforcement notice is invalid and of no effect;
(v) Such further and other order as the Court deems appropriate.
[3] Numbering in accordance with the amended originating application.
The principal issue to be decided in these proceedings is whether the storage of petroleum product in underground tanks (ERA No.11(a)) located at a service station at Palm Beach owned by the second applicant was lawfully carried on for the purposes of the Environmental Protection Act 1994 (“EPA”) and the IPA by the first applicant as occupier under a development approval (a continuing approval under the IPA[4]) immediately prior to and as from 4 October 2004.
[4] s 6.1.23(1)(b).
In essence the application presently before the Court
(1) Challenges the validity of the respondent’s Enforcement Notice dated 9 September 2005;
(2) Challenges the validity of the respondent’s decision notice dated 7 September 2007; and
(3) Seeks a finding that the Level 2 ERA conducted on the land is, and has always been, a lawful activity.
It may be accepted that each of these matters ultimately turns upon one key question, namely “is the town planning consent permit granted by the respondent in 1987 a development approval for the Level 2 ERA carried out on the land?”.
By way of background, it is not in contention that the respondent on 21 August 1987 issued a consent permit to the owner of the service station on the land (Esso Australia Ltd). The use of the premises for a service station commenced in or about July 1989. As part of that use underground tanks for the storage of petroleum products were installed in accordance with condition 15 of the 1987 consent permit. Since installation the underground tanks have not been replaced or modified. In or about January 1991 the second applicant purchased the service station from Esso, although the actual contract cannot now be located by the second applicant. Since January 1991, pursuant to various agreements with the second applicant, four different companies have continuously occupied the service station site and used it as a service station, such use including the storage of petroleum products. As from approximately May 2004 the occupier of the service station has been the first applicant.
In his written amended outline of argument Counsel for the applicants submits that if the Court decides the principal issue (as stated in paragraph 6 of these reasons) in favour of the applicants then the Court would also be satisfied that:
(1) the decision made by the respondent to give an enforcement notice on 9 September 2005 involved an improper exercise of power under s 4.3.11(1) of the IPA whereby the respondent failed to take into account a relevant consideration, namely that the first applicant was carrying on the activity of petroleum product storage lawfully under a development approval for the purposes of the EPA, specifically s 624(2)(a) of the EPA;
(2) further or in the alternative, that the decision of the respondent was unjustifiable and manifestly unreasonable because to issue or give the enforcement notice in circumstances where there was an existing development approval authorising the carrying out of the activity of petroleum product storage (ERA 11(a)) – the development approval – was so unreasonable that no reasonable person could have come to it;
(3) further or in the alternative, the decision to give the enforcement notice was not authorised under s 4.3.11(1) of the IPA and was beyond power because the respondent did not;
(i) issue a show cause notice prior to the issue of the enforcement notice; and
(ii) thereby was in breach of s 4.3.9 of the IPA; and
(iii) the issue of the show cause notice was a precondition to the exercise of power under s 4.3.11(11) of the IPA;
(iv) the first applicant had been “carrying out” the activity of petroleum product storage since May 2004;
(v) as at 9 September 2005, the date of issue of the enforcement notice, s 4.3.1(1) of the IPA made it an offence for a person to “start” assessable development without an effective development permit for the development;
(vi) as from 18 November 2005, s4.3.1(1) of the IPA was amended whereby it was an offence to “carry out” assessable development without an effective development permit;
(vii) the enforcement notice stated that the first applicant was:
(a) “carrying out” an environmentally relevant activity without a development permit; and
(b) that the first applicant was deemed to be a person who “started” assessable development without a development permit;
(viii) accordingly, the enforcement notice was bad on its face for:
(a) duplicity, whereby it purported to allege two offences, one of which was unknown at law;
(b) in the alternative, uncertainty, whereby it purported to allege that the first applicant was or had committed two offences; and
(c) the power to issue an enforcement notice under s 4.3.11(1) of the IPA is limited tot the giving of the notice based on a reasonable belief that person has committed, or is committing “a development offence”, that is, one offence;
(ix) further, to the extent the enforcement notice alleged the first applicant had “started assessable development”, that allegation was purportedly premised on a reasonable belief that the first applicant had made a “material change of use” of premises, namely:
(a) started a “new” environmentally relevant activity (s 1.3.5(b)(i) of the definition of “material change of use”); or
(b) continued an environmentally relevant activity on the premises (s 1.3.5(c) of the definition of “material change of use”)
(x) contrary to the facts and matters alleged at paragraph (ix) herin, the first applicant:
(a) had not started a “new” environmentally relevant activity:- the activity had been continuously carried on for the purposes of the EPA, since 1 March 1995 and by the first applicant since May 2004 and, thereby, s1.3.5(b)(i) of the definition of material change of use (if relied upon by the respondent to issue the enforcement notice) had no application;
(b) could not have “started” assessable development by making a material change of use of the premises as prescribed in s 1.3.5(c)(i) and (ii) of the definition under the IPA because:
i. that part of the definition only commenced on 18 November 2005 and the enforcement notice was issued on 9 September 2005;
ii. in the alternative, even if s 1.3.5(c) of the definition of material change of use had been in force then…the decision to issue the enforcement notice was, in any event, not authorised under s 4.3.11(1) of the IPA because a person cannot “start” assessable development and at the same time “continue” an environmentally relevant activity.
(c) the decision made by the respondent, in its capacity as Assessment Manager to approve, subject to conditions on 7 September 2007, the application made by the first applicant for a development permit for a material change of use for the ERA 11(a) (petroleum product storage) on the Palm Beach site was:
i. an improper exercise of power whereby the respondent failed to take into account a relevant consideration, namely that the first applicant was lawfully carrying on the activity of petroleum product storage under a development approval in force immediately before the commencement of s 624(1)(a) of the EPA on 4 October 2004 and subsequent to 4 October 2004;
ii. in the alternative to (c)(i), a decision that was unjustifiable and manifestly unreasonable whereby no reasonable assessment manager could have formed the opinion that the development permit issued on 7 September 2007 was required. The applicants repeat and rely on the submissions at submission-paragraph (c)(i) above.
In summary, the respondent contends that the originating application should be dismissed as:
(1) the first applicant is carrying out a Level 2 ERA on the land (storage of petroleum);
(2) carrying out the Level 2 ERA on the land constitutes assessable development under IPA;
(3) no approval has been obtained under the Environmental Protection Act 1994 or the IPA to authorise the ERA to be carried out on the land; and
(4) in consequence of the matters set out in (a),(b) and (c) above, the first applicant is committing a development offence under s 4.3.1 of IPA
It follows, submits the respondent, that the town planning consent permit granted by the respondent in 1987 is not a development approval for the Level 2 ERA carried out on the land. The respondent submits that although the 1987 town planning consent permit is a continuing approval, and has effect as a development approval, under IPA, it is not a development approval for carrying out the Level 2 ERA on the land because:
(1) the town planning consent permit was granted under the Local Government Act 1936, some 8 years before an application could even be made for an approval to carry out an ERA on land;
(2) there is no legislative provision which deems a use approval (such as a town planning consent) obtained prior to March 1995 to have effect as if it were an authority to carry out an ERA that is an incident of the approved use; and
(3) a continuing approval could never be a “development approval” for an ERA because a continuing approval was obtained, or taken to have been obtained, under the Local Government (Planning & Environment) Act 1990. Approvals to undertake an ERA were not obtained under this Act; this was achieved at the material times under the provisions of the EPA.
Section 4.3.1 of the IPA provides that:
“(1) a person must not carry out assessable development unless there is an effective development permit for the development…”
The term “assessable development” is defined in Schedule 10 of IPA as:
(1) development specified in Schedule 8, Part 1; or
(2) for a planning scheme area – development that is not specified in Schedule 8, Part 1 but is declared under the planning scheme for the area to be assessable development.
The making of a material change of use of premises for an environmentally relevant activity is assessable development, save where a number of exceptions apply.[5] These exceptions have no application to the present case. This provision was in force at the date the first applicant made its application to the respondent for the ERA.
[5] Schedule 8, Part 1, table 2, item 1 of IPA.
Section 18 of the EPA defines the term “environmentally relevant activity” as including an “activity prescribed under section 19 as an environmentally relevant activity”. Section 19 of the EPA provides that a regulation may prescribe an activity (other than mining) as an environmentally relevant activity. The relevant regulation prescribes storage of petroleum products (in excess of 10,000 litres but less than 500,000 litres) as a Level 2 ERA, namely ERA 11(a).
Section 1.3.5 of the IPA defines the term “material change of use” as including:
“(c) the continuation of an environmentally relevant activity on the premises if –
(i) an approval for the activity ceases to have effect because of the operation of the Environmental Protection Act 1994, section 619(2)(e) or 624(2)(b); or
(ii) there is no developmental approval for the activity and it was, at any time before 4 October 2004, carried out without an environmental authority as required under the Environmental Protection Act 1994; or…”
Where the definition of material change of use in the IPA is triggered, the ERA carried out on the land will constitute assessable development. The respondent submits that the definition is triggered here as:
(1) the activity of storing petroleum products on the land is a Level 2 ERA;
(2) the activity on the land is a “continuation of an environmentally relevant activity”;
(3) there is no development approval for a material change of use for the ERA conducted on the land; and
(4) the activity was carried out before 4 October 2004 without an environmental authority under EPA.
The two statutory regimes which have regulated ERA’s since March 1995 must be considered.
ENVIRONMENTAL PROTECTION ACT 1994 (PRE-IPA)
The EPA and the Environmental Protection (Interim) Regulation 1995 both commenced on 1 March 1995. The legislation introduced a regime intended to control activities on land that involved a contaminant which had the potential to cause harm to the environment if released. This new regime added a further level of control by the State to existing town planning controls.
Section 40 of the EPA provided that:
“40. a regulation may provide that a person must not carry out a Level 2 environmentally relevant activity without an approval.”
The terms “approval” and “environmentally relevant activity” were defined in Schedule 4 of the Dictionary to the EPA as follows:
“approval” means an approval under Chapter 3 (Environmental management), Part 3 (Environmental authorities) to carry out a Level 2 environmentally relevant activity…
…
“environmentally relevant activity” means an activity prescribed by regulation as an environmentally relevant activity.
The Regulation declared the storage of petroleum products in tanks having the combined total storage of 10,000 litres or more but less than 500,000 litres to be a Level 2 environmentally relevant activity. The relevant ERA description was ERA 11(a).
An application to conduct an ERA on land could be made, assessed and approved under Part 4 of the EPA. Although the Local Government (Planning and Environment) Act 1990 was in force at the time the EPA commenced it had no relevance to controlling or applying for an ERA.
The introduction of the EPA in 1995 meant that at least two approvals were required to lawfully operate the service station on the land; viz a use approval in the form of a town planning consent permit and an approval for the Level 2 ERA. The transitional provisions of the 1995 Regulation of relevance to the latter. The relevant transitional provision in this case was contained in section 63 of the 1995 Regulation which relevantly provided:
“(1) This section applies to a person who –
(a) immediately before the commencing day was carrying out a
Level 2 environmentally relevant activity (other than
exploring for or mining minerals); and
(b)continues to carry out the activity after the commencing day.
(2)The person is taken to have an approval to carry out the activity.
(3)Subsection (2) is a law to which section 20A of the Acts Interpretation Act 1954 applies.
(4)This section expires three months after the commencing day.”
Thus, it can be seen that section 63 of the Regulation created a “deemed approval” for a person to carry out a Level 2 ERA on land. The deemed approval did not attach to the land and had a limited life. This provision of the Regulation did not purport to deem an existing use approval (such as a town planning consent permit) to be an approval for an ERA.
An entity other than the first applicant was conducting the use on the land at the date the EPA and Regulation commenced. That entity (Whitepeak Investments Pty Ltd) obtained the deemed approval under the 1995 Regulation. That approval ceased to have effect on the earlier of one of two events, namely:
(1) Whitepeak Investments ceasing to carry out the activity on the land; or
(2) Section 624 of the EPA causing the deemed approval to be of no effect.
Whitepeak Investments ceased to operate the service station on the land from 30 June 1999. Section 624 of the EPA did not commence until 4 October 2004. The deemed approval for the activity is taken to have no effect on and from 30 June 1999 with the consequence that all subsequent operators of the use carried out the ERA on the land without an ERA approval.
REGULATION OF ERAs POST IPA
The regime for obtaining an approval to conduct an ERA on land was removed from the EPA and placed into the IPA in March 1998. Accordingly, at that time the carrying out of a Level 2 ERA could be authorised either by a Level 2 approval (under the EPA) or by a development approval for carrying out the activity (under the IPA). This is reflected in the Regulation, amended in 1998, to read:
“5(1) A person must not carry out a Level 2 environmentally relevant activity without a Level 2 approval.
(2) This section does not apply if-
…
(b) the person has a development approval for carrying out the activity.”
The reference to a “development approval” above is defined to refer to the definition in the IPA, as essentially a decision notice or negotiated decision which approves (either in whole or part) the development which was applied for and is in the form of a development permit or preliminary approval. A “development approval” as defined in IPA has never been granted approving the carrying out of the Level 2 ERA on the land.
An approval for an ERA is not one which could have ever been granted under the Local Government (Planning and Environment) Act 1990 or its predecessor. That legislation simply did not recognise an application of such kind. The only vehicle by which such approval could be obtained was under the EPA. An approval under the EPA does not fall within the concept of a continuing approval in section 6.1.23 of the IPA. Thus, a reference to a “development approval” can only be a reference to a development approval granted under the IPA after March 1998. No such approval has been obtained by any entity, including the applicants, which has owned or operated the service station on the land.
The final step in the analysis of whether a development approval is required under the IPA for the ERA is to determine whether the definition for “material change of use” is enlivened in the circumstances of the case. The relevant aspect of the definition in section 1.3.5 of IPA is as follows:
“(c) the continuation of an environmentally relevant activity on the premises if –
(i) an approval for the activity ceases to have effect because of the operation of the Environmental Protection Act 1994, section 619(2)(e) or 624(2)(b); or
(ii) there is no developmental approval for the activity and it was, at any time before 4 October 2004, carried out without an environmental authority as required under the Environmental Protection Act 1994; or
…”
In my view the definition is enlivened in this case for the following reasons:
(1) It is not in issue that the storage of petroleum products on the land is an “environmentally relevant activity”;
(2) The ERA carried out on the land is a “continuation of an environmentally relevant activity” on the land;
(3) The first limb of the relevant part of the definition does not apply because section 619 of the EPA is irrelevant here, and section 624(2)(b) of the EPA does not apply as the “deemed approval” for the activity, conferred by section 63 of the 1995 Regulation, ceased to have effect on 30 June 1999 which is the date Whitepeak Investments Pty Ltd ceased to carry out the ERA on the land;
(4) There is no extant development approval which authorises the “activity” on the land. The applicants must point to the relevant “development approval” as one for “carrying out the activity” in order to avoid the operation of the definition. Such an approval can only ever be obtained after March 1998 by an application under the IPA for a development permit for an ERA and no such permit has ever been obtained. The applicants seek to get around this difficulty by pointing to the 1987 town planning consent permit as being an extant development approval under which the ERA is carried out. However, the consent permit was obtained almost eight years before the notion of an ERA was given legislative force and effect. Furthermore, since March 1995, at least two approvals have been required to operate the service station on the land, namely, a use approval and an ERA approval. The applicants cannot point to a development approval for an ERA as this can only be a reference to a development approval granted under the IPA after March 1998. As indicated previously no such approval has been obtained by the applicants or any other entity which has owned or operated the service station on the land.
(5) From 30 June 1999 to 24 May 2004 the activity was carried out on the land without an environmental authority for the ERA. Rafinc Pty Ltd was the occupier and operator of the premises. That entity did not have a deemed approval and there is no evidence that Rafinc obtained a development approval for the conduct of the ERA on the land.
In my view, a development permit for a material change of use for the ERA is required by the first applicant to lawfully carry out that ERA on the land.
This conclusion runs counter to the submissions of Counsel for the first applicant who argues that the inclusion of the activity of petroleum product storage within the statutory meaning of an “Environmentally Relevant Activity” under the EPA cannot be regarded as having changed or removed the existing “use” and rights under the 1987 consent permit, a form of “statutory approval” recognised by the express terms of s624(1)(a) and s624(2)(a) of the EPA and the provisions of the 1998 Regulation.
It is contended on behalf of the first applicant that “development approval” as that term appears in s624(1)(a) of the EPA must be construed as including a “continuing approval” because, by the operation of s6.1.23(2) of the IPA, a “continuing approval” is deemed to be a “development approval” in the form of a “development permit”. It further follows, in the submissions made on behalf of the first applicant, that where the definition of “development approval” under the EPA is the same as under the IPA, to the extent that carrying on the activity of petroleum product storage is “assessable development” requiring a development permit under both the EPA and the IPA, then for the purposes of s624(1)(a) of the EPA, in order for the section to apply, there must be as a matter of fact, a “development permit” in existence authorising that activity. In this case, it is submitted, there is in existence the 1987 consent permit which is a development permit (the form of development approval) under s624(1)(a).
Accordingly, when construing s624(1)(a) of the EPA, it should be concluded that the section did apply to first applicant who immediately prior to 4 October 2004 was carrying out a level 2, chapter 4 activity (storage of petroleum product-ERA 11(a)) under a continuing approval which is a “development approval” by the operation of s6.1.23(2) of the IPA.
In my opinion the submissions made on behalf of the first applicant cannot be accepted because they overlook the requirement that at least since March 1995 two approvals are necessary to operate the service station on the land, that is, a use approval and an ERA approval. The applicants are unable to identify a development approval for an ERA and it is clear that no entity which has owned or operated the service station on the land from 30 June 1999 to 24 May 2004 did so under an environmental authority for the ERA. In these circumstances it cannot be accepted that the activity the subject of the approval was lawfully carried out on the land and thus the challenge to the validity of the respondent’s decision notice dated 7 September 2007 cannot be supported.
For these reasons the originating application must be dismissed.
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