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

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Adrian’s Metal Management Pty Ltd (ACN 616 177 050) v Gold Coast City Council [2018] QPEC 11 PARTIES: Adrian’s Metal Management Pty Ltd ACN 616 177 050 (applicant/first respondent) Serah Monique Garabed (applicant/second respondent) Chris Fuller Investments Pty Ltd ACN 603 284 920 (applicant/third respondent) v Gold Coast City Council (respondent/applicant) FILE NO/S: 2429/17 DIVISION: Planning and Environment Court, Brisbane PROCEEDING: Hearing of an application ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 1 March 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 27-28 February and 1 March 2018 JUDGE: RS Jones DCJ ORDER: 1. Orders and directions as agreed between the parties. COUNSEL: Mrs S Gerabed appeared on her own behalf for the applicants Mr K Wylie of Counsel for the respondent SOLICITORS: Mrs S Gerabed appeared on her own behalf for the applicants McCullough Robertson for the respondent -- 1 of 5 -- [1] HIS HONOUR: These proceedings were commenced by the Gold Coast City Council against Adrian’s Metal Management Proprietary Limited, Sarah Monique Garabed and Chris Fuller Investments Pty Ltd. Mr Wylie of counsel appeared for the applicant council. Ms Garabed is the sole director of the first respondent and, of course, is the named second respondent. She appeared by telephone representing all three respondents on both the 28th of February 2018 and the 1st of March 2013. Briefly stated, the allegations against the respondents are that the scrap metal business and associated operations carried out on the subject land is creating a noise nuisance to the extent that it constitutes an unlawful act under the Environmental Protection Act 1999. And, in any event, the business being carried out on the land is otherwise unlawful for reasons it is not necessary to go into detail at this stage. The relief sought is, in essence, for declaratory relief and other orders designed to halt the alleged unlawful activities being carried out on the land. To prove the case against the respondent, the council retained a mechanical engineer, Mr King, to assess the noise levels and Mr Ovenden, a town planner, to address the lawful land use aspects. [2] By way of summary, Mr King’s conclusions were set out in his affidavit and are relevantly: “It is my opinion that both the character and level of the noise is foreign to what would reasonably be expected in a residential area, even one bordering on an industrial area such as in this instance. The noise from the facility is observed and as measured, constitutes an environmental nuisance due to: (i) the character of the noise ie loud bangs, metal on metal and scraping sounds which are of a very discrete and annoying character with abrupt changes in level and character; and (ii) the level of the noise (as the LA10) which significantly exceeds the ambient background noise level (LA90) by greater than 5 dB(A)) which results in the Facility noise being highly apparent and annoying at the residential area adjacent.” [3] Mr Ovenden’s conclusions were set out in his affidavit and they can also be briefly stated. Mr Ovenden says: “In my opinion, regardless of the correctness or otherwise of the assertions contained within this Affidavit: a) since at least 1982, neither Lots 83 or 84 ever enjoyed “as of right” uses – rights for junk yard or scrap metal-type uses. -- 2 of 5 -- b) even if accepted that Lot 83 had been used since 2001, and without interruption, for scrap metal or junkyard use: (i) the 2001 approval has nonetheless lapsed; and, (ii) in any event, the current use could not be said to be undertaken pursuant to the 2001 Approval. c) Conditions 29 and 30 could not be said to affect or impact upon Lot 84 land use rights.” [4] The respondents also employed experts to assess noise and the lawful use issues, Mr Grummitt, the town planner, and a Mr Temelkoski, to address noise. All of the experts participated in the joint expert report process. In the joint expert report of the noise experts, there were no areas of disagreement and under the heading “areas of agreement”, it was said: “The experts are in agreement that noise from operations at 24-26 Barnett Place, Molendinar, exceeds reasonable noise level limits.” [5] To a similar vein was what was recorded in the town planners’ joint expert report. Again, there were no areas of disagreement between the town planners and as part of their conclusions they said: “There has been a material intensification of the on-site uses occurring at 24-26 Barnett Place. There are no existing lawful right uses for a salvage yard over 24 Barnett Place that would afford benefit to the use.” [6] This matter was listed for hearing, commencing 28 February 2018. On 23 February 2018, the matter was listed for review and on that occasion, a Mr Michael Yarwood, the then general manager of the two respondent companies, appeared by telephone representing both companies. Ms Garabed represented herself. On that day, Mr Yarwood and Ms Garabed made an application to have the hearing adjourned. That application was adjourned to 9am 28 February 2018. [7] On 27 February 2018, the court received advice that Mr Yarwood, who was to be personally present on 28 February, had apparently resigned as the general manager of the first and third respondent. Ms Garabed appeared by telephone on 28 February and indicated that she was now representing all three respondents, and that she was too ill to attend court. It was also said that because of her medical condition, she would be unable to attend to the hearing of this matter and there was no one else of sufficient authority or knowledge who could run the case, to use her terminology. -- 3 of 5 -- [8] Initially, all three respondents were represented by counsel, pursuant to a direct briefing regime. Counsel no longer acts for the respondents, apparently, for financial reasons. During the course of the hearing on the 28th, Ms Garabed relied on, among other things, a further report from Mr Temelkoski dated 27 February 2018. That report was relied on by Ms Garabed to establish that there was no longer a noise issue. Unfortunately, at face value, that report does not appear to go anywhere near that far. [9] It relevantly concludes: “In summary, the noise amenity at the nearest dwelling as observed on 26 February 2018 represents significant improvement compared to previous observations in October 2017. The engineering and management noise control measures implemented by Adrian’s Scrap Metal had been demonstrated to reduce the noise impact at the nearest dwellings. Provided that Adrian’s Scrap Metal operates as it did on 26 February 2016 and continues to implement the noise mitigation measures including reduced noise emissions from the excavator, our professional opinion is that there are unlikely to be noise impacts on the nearest dwellings at “Pepper Hill Estate” during day time hours. It should be noted that the noise from other industrial businesses at Barnett Place and the greater Molendinar industrial precinct are audible at “Pepper Hill Estate.” Based on what was observed on 26 February 2018, the noise emitted from Adrian’s Scrap Metal during normal operations is not strongly more pronounced than noise from nearby businesses.” [10] That report, however, indicated that further investigations would need to be carried out. Whilst that report indicates an improvement and perhaps even a marked improvement, it falls well short, in my view, of establishing that the noise issues alleged have been resolved. Of course, that report does, in no way, address the other allegations concerning there being an unlawful use being carried out on the land without any relevant approvals. [11] The noise issue, of course, is largely one, if not entirely one, of fact; the lawful use issue involves both matters of fact and law. During the course of proceedings on 28 February 2018, the council contended that it would abide orders of the court concerning the granting of an adjournment subject to appropriate interim orders being put in place. Ms Garabed did not disagree with that approach and, indeed, actively supported it, subject, of course, to seeing the terms of any proposed orders. [12] I should put on the record that on that day, Ms Garabed’s position was maintained after the general features of the likely thrust of the orders were explained to her and after the -- 4 of 5 -- potentially very serious consequences that might arise in the event of disobedience or breaches of the orders were also explained to her. I also advised her that it would be naïve for her to proceed on the basis that the applicant council would not be carrying out monitoring of the site from time to time. [13] The proceedings were then adjourned to 11 am today, 1 March 2018, to facilitate interim orders including bedding down future hearing dates. On balance, I am satisfied that it would be appropriate to adjourn the proceeding but only on the basis of appropriate interim orders being made. That is so because I am well satisfied that there is a prima facie case against the respondents in respect of both allegations, the first concerning the creation of a noise nuisance and the second involving the allegations of an unlawful use occurring on the land. [14] I am also satisfied that the balance of convenience favours the making of such orders. These reasons include, in particular, the reason for the adjournment falls squarely at the feet of the respondent. The council was ready to proceed at all times. And as I have already indicated, this matter has been set down for some time. Second, there is at least, on the present evidence, a real risk that members of the public are being exposed to excessive noise levels which would have a material impact on their amenity. [15] Third, no prejudice was pointed to on the part of the respondents. Indeed, in this context, on the 28th, Ms Garabed stated on more than one occasion that, in her view, the business was operating and would continue to operate within acceptable noise limits. In any event, today, after discussion between Mr Wylie of Counsel and Ms Garabed, the terms of orders were finally agreed upon and they are to be distributed amongst the parties for finalisation. Orders [16] Orders and directions as per the draft agreed between the parties. -- 5 of 5 --