Cordwell Resources Pty Ltd v Noosa Shire Council
[2024] QPEC 51
•28 November 2024, ex tempore
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51
PARTIES:
CORDWELL RESOURCES PTY LTD
(Appellant)
v
NOOSA SHIRE COUNCIL
(Respondent)
FILE NO/S:
D16/2024
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
28 November 2024, ex tempore
DELIVERED AT:
Maroochydore
HEARING DATE:
25 – 28 November 2024
JUDGE:
Everson DCJ
ORDER:
1. APPEAL ALLOWED IN PART
2. ENFORCEMENT NOTICE SET ASIDE
3. REVISED ENFORCEMENT NOTICE ISSUED
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against enforcement notice – whether the operation of plant in a quarry outside the area approved for fixed crushing and screening plant is truly ‘fixed’ – whether it is generally in accordance with the conditions of approval – whether the Court should exercise its discretion to set aside the the enforcement notice
CASES:
Briginshaw v Briginshaw (1938) 60 CLR 336
Noosa v Cordwell Resources [2023] QPELR 211
Sunshine Coast Regional Council v D Agostini Property Pty Ltd [2020] QPELR 480
We Kando Pty Ltd v Western Downs Regional Council [2019] QPELR 451
Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPELR 418
LEGISLATION:
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
COUNSEL:
E J Morzone KC and D D Purcell for the Appellant
M J Batty KC and S J Hedge for the Respondent
SOLICITORS:
Carter Newell for the Appellant
McCullough Robertson for the Respondent
This is an appeal against the decision of the respondent to give the appellant an enforcement notice.
The enforcement notice is dated 17 January 2024 (“the EN”). It alleges that the appellant has committed a development offence pursuant to s 164 of the Planning Act 2016 (Qld) (“the PA”) by contravening a development approval.
The appellant operates a quarry at 900 Sheppersons Lane, Kin Kin (“the quarry”). It is located on the side of a hill. Relevantly, on 27 May 2016 Her Honour Judge Bowskill QC made orders changing an existing approval for the quarry, which included a condition “The quarry is to be operated generally in accordance with the Quarry Management Plan dated May 2016 (the Approved Quarry Management Plan)”.
The Approved Quarry Management Plan (“the QMP”) is a very detailed document. In para 1.5 it is stated:
Quarry operations will be carried out generally in accordance with this QMP. Any changes or alterations will follow the statutory process for changes to approvals having regard to the extent of the change proposed and in accordance with changes to legislation applicable to site activities from a planning, environmental and safety perspective from time to time.
The QMP provided for an unspecified initial period of extraction from existing benches at the base of the hill before ultimately quarrying from the top of the hill down. During this initial period the necessary haul roads and locations for “fixed processing plant” would be constructed. Relevantly para 2.2.2 provided:
The installation of a fixed crushing and screening plant will occur when market conditions dictate and when the quarry has been opened up and haul road access plant building areas excavated and prepared.
Internal haul roads were specified in para 2.2.7 in, relevantly, the following terms:
The locations of the major haul roads linking the extractive areas and the rock receiving bin of the fixed crushing and screening plant are shown on (…Figure 5 – Longer Term Site Layout) for the final stage of development.
The haul roads have been designed for efficient and safe operation particularly with respect to layout, geometry and type of construction.
Para 2.2.10 stated that for “the initial quarry development period, estimated to run to about 2020, a mobile crushing and screening plant is expected to be used.” In para 2.2.5 it is stated that the “long-term location for a fixed crushing and screening plant is situated on the slope on the eastern portion of the site”, shown in Figure 5, and that over “the short-medium term (0-7 years from the date of approval of this QMP), crushing and screening at the quarry will be undertaken by portable plant.”
There are other places where the same types of statements appear. It is therefore unsurprising that the appellant readily concedes that the QMP approved a quarry that will ultimately go from the top of the hill down the hill or a “top down quarry”.[1] This will enable “progressive rehabilitation” to commence “once the upper benches reach their final limits of extraction” (QMP para 2.3.5). The appellant contends it still has not yet started preparing for the top down quarry operations envisaged by the QMP.
[1]T2-67 ll 10-35.
The EN alleges that the appellant is operating fixed plant (principally a screening plant) outside the area approved for fixed crushing and screening plant shown in Figure 5 of the QMP.[2] While it is uncontentious that the plant in question is outside this area, it is contentious as to whether it is located in breach of the QMP.
[2]Ex. 1 p 1.
The respondent must establish that the appeal should be dismissed pursuant to s 46(3) of the Planning and Environment Court Act 2016 (Qld) (“the PECA”). In deciding the appeal the P&E Court is given a wide discretion pursuant to s 47 of the PECA, including confirming, changing and setting aside the decision appealed against. In this regard, the EN required the appellant to either make an application to enable lawful removal of the Plant, or to relocate it to the Approved Fixed Plant Area identified in Figure 5 of the QMP by 7 March 2024 and either remove it or move it to this area within 6 weeks of any such approval. This time has now passed.
During the course of the hearing of the appeal the parties agreed on the following questions for determination in deciding the outcome of the appeal:
1. Is the Plant fixed within the meaning of the QMP?;
2. If yes, is the Plant generally in accordance with the QMP?;
3. If not, should the court exercise its discretion to set aside the EN? [3]
[3]Ex. 3.
Given the EN alleges the commission of a development offence by the appellant it is uncontentious that the burden of establishing that the appeal should be dismissed is at the higher Briginshaw standard.[4] As to the approach to be taken to interpreting the QMP, I respectfully adopt the observations of Long SC DCJ in Noosa v Cordwell Resources[5]:
The approach of the Applicant, in argument, was to correctly seek to engage relevant principles of statutory interpretation as they have been particularly applied to the construction of planning schemes, such as is set out in Zappala Family Co Pty Ltd v Brisbane City Council. The same principles which apply to statutory construction are applicable, with allowance for a common-sense approach in reading the documents in a practical way, as a whole and as intending to achieve a balance between the outcomes.
[4]Briginshaw v Briginshaw (1938) 60 CLR 336.
[5][2023] QPELR 211 at 221 [26].
The hearing of the appeal was conducted in the context of both parties calling evidence to explain technical terms in the quarrying industry, consistent with the observation of Judge Cash QC in Sunshine Coast Regional Council v D Agostini Property Pty Ltd,[6] that extrinsic evidence of experts may be admissible to explain technical terms.
[6][2020] QPELR 480 at 484 [15]
The allegedly fixed plant the subject of the EN is part of a processing line that includes components which are clearly mobile.[7] Those components the subject of the EN are principally a screener which is a significant structure approximately 12 metres high and clad with metal and fibreglass sheeting and bolted to a large concrete slab. It is connected via a conveyor to a feed bin which is about half as high, built upon skids, and also bolted to a concrete slab. This and other ancillary plant including concrete slabs on which components sit and electrical connections to them are identified by the parties in Ex. 8 as the plant in question (“the Plant”). The appellant asserts that the Plant is bolted to the slabs to minimise unwarranted vibration, comply with safety requirements and protect it from potential damage. It is submitted that the screener could be moved by a mobile crane in separate modular components and that the feeder bin, being on skids, could be pulled to a different location. It is therefore the primary submission of the appellant that the Plant is not fixed, but mobile.
[7]Ex. 7.
The only structural engineering expert who gave evidence was Mr McKenzie, called by the respondent. His evidence was that the only way to move the Plant would be to disassemble it and reassemble it at another location, leaving the concrete slab behind. He estimated that this would take a minimum of 7 days and that it would be difficult to move any significant distance, even with a large crane. He also observed the absence of built-in lifting points on the Plant and an absence of transportation or lifting certifications in respect of it. He stated in his experience, he would expect these features and the Plant itself to be smaller if it was constructed with an intention to relocate it. Ultimately, he expressed the view that the Plant was a fixed piece of plant as it was bolted to foundational slabs and not able to be moved from one location to another without being disassembled and unfixed from the slabs.
I found Mr McKenzie to be a qualified and compelling expert witness. I accept his evidence which is consistent with the evidence of the quarrying expert called by the respondent, Mr Reed, which I also accept. I find that the Plant is fixed screening plant as that term is used in the QMP.
I now turn to the question of whether the Plant is nonetheless generally in accordance within the QMP. As a starting point, the observations of Judge Williamson QC in We Kando Pty Ltd v Western Downs Regional Council[8] are instructive:
It has been recognised by courts for many years that a condition of approval requiring development to be carried out generally in acccodance with approved plans does allow for some deviation in the final form of development. The need for flexibility in the comparison between approved plans and final plans of development requires no explanation. There is, however, a limit to the extent of flexibility that may be enjoyed in this context.
The extent of flexibility has been examined in many cases in this court. This has occurred in the context of the ‘generally in accordance with’ test. The authorities make it clear that the extent of flexibility contemplated by the test will turn on the facts and circumstances of each case. The issue is one to be examined by reference to the town planning consequences of the departure from the approved plans.
[8][2019] QPELR 451 at 462-463 [64]-[65].
As noted above, the respondent called a quarrying expert, Mr Reed. The appellant also called a quarrying expert, Mr Hill. He emphasised that the term “fixed crushing and screening plant” should refer to a group of equipment that produces quarry materials rather than a single piece of equipment. As noted above, the Plant is part of a chain of equipment which includes clearly mobile vehicles. The appellant submits that the overall characterisation of the Plant should therefore be mobile, not fixed. This proposition is made harder to mount given the evidence of Mr Reed, which I accept, that the Plant can also be operated separately from the mobile plant by being fed manually by a front loader. I reject the characterisation proposition of the appellant that the Plant is not fixed because it is used in conjunction with other mobile plant.
I accept the evidence of Mr Reed that mobile plant is commonly used for crushing and screening in the early stages of developing a quarry to provide essential construction materials as well as allowing the developer to prepare sites allocated for the installation and operation of fixed plant. I find this entirely consistent with the purpose evident in the QMP that ultimately the quarry will be established on a top down basis with fixed plant including screening plant in the location in Figure 5, where it integrates with approved haul roads. I accept the evidence of Mr Reed that mobile plants are wheel or track mounted, which allows them to be relocated around blast events at the quarry. I find that the Plant is not mobile plant.
Ultimately, Mr Reed expressed the view that the placing of the Plant in the current location would not permit the quarry to develop as a top down quarry in the manner contemplated in the QMP and shown in Figure 5.[9]
[9]T2-79 ll 15-35.
In his affidavit filed on 7 August 2024 Mr Reed observed at para 106:
There are a multitude of environmental, operational and cost related reasons why side hill quarries are developed from top to bottom (‘top down’) and not from the bottom bench upwards. Top down development allows for the upper bench to be developed to its final boundary in the short rather than long term, thereby allowing the progressive development of downhill benches in a well managed fashion, that allows the quarry operators considerable flexibility…
Subsequently he stated at para 107 that progressive site rehabilitation is only possible with top-down quarry development. Under cross-examination, Mr Hill acknowledged that if the top-down methodology is not followed at the quarry, there are consequences, and in this regard he nominated a lack of bench widths and a failure to progressively rehabilitate.[10] As the town planner who gave evidence on behalf of the appellant, Mr Buhmann, acknowledged, the inability to progressively rehabilitate as provided for in the QMP is a significant adverse planning impact. Contrary to the submissions of the appellant, this compromises the intent of the QMP.
[10]T2-97 ll 40-45 – T2-98.
Accordingly, I find that there has been a material departure from the basis on which the development approval was given which has town planning consequences. I find that, on the facts before me, the Plant is not generally in accordance with the QMP.
Turning to discretion, which was not uiltimately pushed by the appellant. There were not demonstrated any notable adverse amenity impacts as a consequence of the location of the Plant. That is of limited relevance however. Mr Elkin, the engineer called by the appellant to give expert evidence in respect of noise impacts, conceded under cross-examination[11] that his assessment was very different to what would be performed for an acoustic report accompanying a development application. This is consistent with the observations of Wilson SC DCJ in Macquarie Leisure Operations Limited v Gold Coast City Council & Ors[12] of the differences between the assessment undertaken for a development application and that which occurs in the course of a court proceeding.
[11]T3 23-24.
[12][2007] QPELR 418 at 423 [31]-[32]
The PA provides for applications to change a development approval. That is a process, which the appellant should undertake here. The changes consequential on the location of the Plant can then be properly assessed pursuant to the appropriate legislative provisions and assessment benchmarks. The respondent correctly issued the EN. There is no discretionary reason to simply set it aside. It should however be changed to permit the making of a development application to change the development approval.
I make an order as per the draft, which I initial and place with the file.
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