Australia: 41/13 Loader v Moreton Bay Regional Council [2013] QCA 269 (Muir and Fraser JJA and Applegarth J - 20 September 2013)

P&E Court Updates - September 2013

Court of Appeal – application for leave to appeal a decision to dismiss an appeal against an enforcement notice – scope of original environmental authority – validity of Council decision to amend authority – adequacy of reasons - ss.53, 73H(1), 129, 130(1)(a) and 619 Environmental Protection Act 1994

Facts: This was an application for leave to appeal against a decision of the Planning and Environment Court dismissing an appeal against an enforcement notice and refusing a stay.

The land the subject of the proceedings had been used for the purpose of a boat repair business on a freehold (Lot 20), and an unallocated State land parcel (Lot 1), over which the applicant held a permit to occupy. It was improved by boat ramp, slipway and jetty.

In December 2009 the Council had issued an Enforcement Notice which alleged that the applicant had commenced assessable development on Lot 1 without a development permit.

A permit to occupy Lot 1 was first granted in September 1998 for marine facility purposes. The evidence showed that both Lot 20 and Lot 1 ("the slipway land") had been used a business for many years before Lot 1 had been made the subject of the permit to occupy.

The use of the slipway land in conjunction with Lot 20 had been registered by the Council as a lawful non-conforming use commencing in 1962. In 1965 approval for construction of the jetty, boat ramp and slipway was granted.

Mr & Mrs Ross acquired Lot 20 in 1994. In 1995 after the commencement of the Environmental Protection Act (EPA), the Council required Mr Ross to apply for an environmental authority to carry out the business of a Boat Building and Repair Facility at "48 Bishop Parade". That correspondence referred to Lot 20. In October 1995, Mr Ross lodged a completed application for an authority at the business address of 48 Bishop Parade and which referred to Lot 20. In February 1996, Council issued an environmental authority for the business being carried out on Lot 20 located at 48 Bishop Parade.

In July 1998, a purchaser of the business, Mr Martin, applied for a transfer of the environmental authority. The application referred to 48 Bishop Parade and Lot 20. In September 1998, Council advised that the application had been granted and referred to Lot 20 and 48 Bishop Parade.

In February 2002, the applicant's solicitor wrote to the Council stating that the applicant had contracted to purchase the business conducted from premises described as Lot 20 and Lot 1. It sought advice about the procedure for the environmental authority to be transferred or for a new licence to be issued. The Council responded requiring an application for transfer of the licence, enclosing an application form, and describing the procedure which included an inspection of the site by a Council officer prior to approval of the transfer. After the sale was settled, the applicant applied for a transfer of the licence. In April 2002, the Council issued an environmental authority ("the 2002 Authority") to the applicant for premises at 48 Bishop Parade described as Lot 20 and Lot 1.

The Council renewed the 2002 authority for succeeding years until September 2007 when it wrote to the applicant asserting that a review had revealed that it had erroneously issued the environmental authority for boat maintaining and repairing facility on the slipway. It also enclosed a registration certificate and an environmental authority with respect to Lot 20 only.

The 2008 enforcement notice stated that the development permit only permitted the use to occur on Lot 20.

Council relied upon the definition of "material change of use" in the Integrated Planning Act 1997 which, by amendment which commenced in November 2005, included the continuation of an environmentally relevant activity if it was at any time prior to 4 October 2004 carried out without an environmental authority as required by the EPA. Accordingly the activity represented a material change of use if there was no environmental authority for the activities on Lot 1 at any time before 4 October 2004; and there was no development approval for Lot 1 in December 2008 when the applicant carried out the environmentally relevant activities referred to in the Enforcement Notice.

The Council's arguments in the Planning and Environment Court were that there had never been an environmental authority for Lot 1. The 1996 authority and the application for it related only to Lot 20. The applicant applied only for a transfer of the authority relating to Lot 20 and the 2002 authority was therefore in error and invalid in so far as it referred to Lot 1. The 2007 amendment, to omit Lot 1 from the authority, was validly made pursuant to Section 73 H(1) of the EPA.

The applicant contended that the 1996 authority authorised the conduct of the boat maintenance and repair facility on both Lot 20 and the slipway land which became Lot 1. She also argued that if the 1996 authority did not comprehend Lot 1, that was an error, and that the Council had validly included Lot 1 in the 2002 authority pursuant to ss.129 or 130(1)(a) of the EPA; and that the 2007 amendment was invalid as there was no evidence that the inclusion of Lot 1 in the environmental authority was an error.

The applicant also contended that the 1996 authority, properly construed, authorised the conduct of the facility on the slipway land, or that the omission of that land from the authority was an error capable of correction under s.129 of the EPA; that any ambiguity in an approval or permit should be resolved in favour of the grantee; and that the evidence allowed for inferences that the Council regarded the street address in the application and the 1996 authority as comprehending both Lot 20 and the slipway land, and that the Council was aware that Mr Ross had been conducting the boat building and repair business on both areas of land (and that the Council had omitted to adduce evidence to the contrary).

The primary judge had found that the inclusion of Lot 1 in the 2002 authority was an error, and that the 2007 amendment did not adversely affect the applicant's interest because she had no right to operate the business on Lot 1 at any time; that the Council had been empowered to issue the amended registration certificate in September 2007 because the proposed amendment did not adversely affect the interests of the applicant as she had no right to operate the business on Lot 1; none of the applications for licences, or transfers of the environmental authority referred to any lot other than Lot 20; the application made by the original owner in 1996 referred to premises located approximately 100 metres from the creek; the land was within the Residential A Zone which further suggested that the application described nothing other than Lot 20; Lot 1 did not exist on 15 February 1996 when the first environmental authority was issued; and that the licence conditions were directed towards the carrying out of activities on Lot 20.

The Council argued that the Primary Judge's findings of fact which required the conclusion that the applicant had undertaken assessable development as alleged in the enforcement notice were not amenable to challenge. The applicant responded that the primary judge did not advert to the critical question whether the omission of reference to the slipway land from the 1996 authority was an error of the kind which the Council was empowered to correct in the 2002 authority, that the Primary Judge's reasons for finding that the inclusion of Lot 1 in 2002 authority was "an error" were inadequate, and that there was no evidence to justify that finding.

Decision: The Court held, in granting the application for leave to appeal and allowing the appeal with costs, that:

  1. The Primary Judge was referred to s.129 and his findings were consistent only with conclusions that the omission to refer to the slipway land in the 1996 authority was not an error, and that the inclusion of Lot 1 in the 2002 authority was an error.
  2. The Primary Judge's findings that the amendment in 2007 did not adversely affect the applicant's interest because she had no right to operate the boat building and repair facility on Lot 1 at any time were not findings of fact. They were broadly expressed conclusions involving the application of the law to the facts. They were not supported by the evidence.
  3. Furthermore, the evidence upon which the applicant relied was uncontroversial and supplied substantial support for the applicant's arguments. The absence of any reference to that evidence, and of any explanation why that evidence was no relevant or persuasive, rendered the Primary Judge's reasons inadequate and thereby constituted an error of law. Sunland Group Ltd v Townsville City Council [2012] QCA 30 referred to.
  4. The 1996 authority was unambiguous in confining the geographical scope of the authority to so much of the land at 48 Bishop Parade as fell within Lot 20.
  5. The applicant's argument that the Council acted within the power conferred by s.129 of the EPA when it amended the 1996 authority by including Lot 1 in the 2002 authority was accepted, as was the submission that the Council had acted beyond its power when it omitted Lot 1 in the 2007 amendment.
  6. There was no evidence to support the Council's assertion in correspondence that it had conducted a "review" in September 2007 which revealed that it had erred 5 years earlier when it included Lot 1 in the 2002 authority, and there was no evidence to contradict the inferences arising from the evidence relied upon by the applicant.
  7. No plausible reason was suggested why the Council would have wished to confine the licence for a "marine" business, which it evidently knew was conducted over the whole of the land, in a way which excluded that part of the land which gave access to the water. The applicant and Council intended the 1996 authority to comprehend the slipway land, but by a clerical error, that intention miscarried in the form in which the authority was expressed.
  8. The 1998 transfer did not purport to alter the geographical scope of the authorised activities but merely transferred the 1996 authority to Mr Martin.
  9. The Council's concession that if, the application for the 1996 authority comprehended the slipway land and the 1996 authority was intended to grant a licence in respect of that land as well as Lot 20, then the omission of Lot 1 could be regarded as a clerical error capable of subsequent amendment by the Council and the 2002 authority was appropriate. The Council was empowered to correct the mistake in omission of Lot 1 from the 1996 authority by including Lot 1 in the 2002 authority.
  10. It followed that the 2002 authority was in force immediately before 4 October 2004 and then took effect as a development approval under s.619 of the EPA.
  11. It also followed that it remained in force despite the issue in September 2007 of an amended registration certificate and environmental authority for Lot 20 only. At that time, s.73 (H) of the EPA empowered the Council to amend a registration certificate only to correct a clerical or formal error and only if the amendment did not adversely affect the interests of the registered operator or anyone else. Neither condition was satisfied.
  12. Since the legislative purpose could not have been that an amendment beyond the power conferred by s.73H invalidated a development approval created by s.619, the applicant held the necessary development approval when she conducted the boat maintaining and repairing facility on Lot 1 in December 2008 as alleged in the enforcement notice. It followed that her activity on Lot 1 did not amount to assessable development. The enforcement notice should have been set aside.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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