Noosa Council v Cordwell Resources Pty Ltd

[2024] QPEC 50

PLANNINGAND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Noosa Council v Cordwell Resources Pty Ltd & Ors [2024] QPEC 50

PARTIES:

NOOSA COUNCIL

(Applicant)

CORDWELL RESOURCES PTY. LTD. (ACN 066 294 773)
(First Respondent)

WALLAJOHN PTY LTD (ACN 138 136 919) AS TRUSTEE FOR THE WALLAJOHN TRUST

(Second Respondent)

DJS & JOHN PTY LTD (ACN 138 145 865) AS TRUSTEE FOR THE DANIEL SHEPPERSON FAMILY TRUST

(Third Respondent)

MWS & JOHN PTY LTD (ACN 138 145 230) AS TRUSTEE FOR THE MARK SHEPPERSON FAMILY TRUST

(Fourth Respondent)

ANN & DANIEL PTY LTD (ACN 138 144 813) AS TRUSTEE FOR THE ANNE DE HAVILAND FAMILY TRUST

(Fifth Respondent)

FILENO:

D155 of 2021

PROCEEDING:

Originating Application

DELIVEREDON:

29 November 2024

DELIVEREDAT:

Maroochydore

HEARINGDATE:

2, 3, 4, 28, 31 March 2022, 19 April 2022, 17 June 2022

JUDGE:

Judge Long SC

CATCHWORDS:

PLANNING AND ENVIRONMENT – ENFORCEMENT

PROCEEDINGS - Where the Applicant local government seeks enforcement orders ultimately aimed at restricting the scale and intensity of the operations of a quarry by the First Respondent – Whether any development offence has occurred in contravention of s 164 of the Planning Act 2016 – Acting generally in accordance with approval – Construction of planning approvals – Whether the First Respondent has breached its development approval – Whether the operation of the quarry constitutes or will constitute a material change of

use such as to be a development offence pursuant to s 165 of

the Planning Act 2016 – Whether the established or intended operation of the quarry constitutes or would constitute a material increase in the intensity or scale of the approved operations of the quarry – Whether enforcement orders should be granted in the exercise of discretion

CASES:

Barnes v Maroochy SC [2002] QPELR 116 Briginshaw v Briginshaw (1938) 60 CLR 336 Bucknell v Townsville City Council [2021] QCA 26

Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council [2001] QPELR 328
Jewry v Maroochy Shire Council & Anor [2005] QPEC 30
Jones v Dunkel (1959) 101 CLR 298
Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2011] QPELR 349

Mudie v Gainriver Pty Ltd & Ors [2010] QCA 382

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67
Rejfek v McElroy (1965) 112 CLR 517
Transpacific Industries Group v Ipswich City Council [2013] QPELR 70
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Zappala v Brisbane City Council (2014) QPELR 686

LEGISLATION:

Planning Act 2016 (Qld) ss 3, 5, 43, 44, 73, 163, 164, 165, 180,

181, 260, 286, 290

COUNSEL:

M Batty and S Hedge for the Applicant

E Morzone KC and D Purcell for the First Respondent

SOLICITORS:

McCullough Robertson for the Applicant

Carter Newell Lawyers for the First Respondent

INDEX

Introduction................................................................................................................................ 4

The Application.......................................................................................................................... 7

Some applicable principles...................................................................................................... 15

The issue as to Material Change of Use of Premises............................................................... 21

The offences alleged to have occurred under s 164................................................................. 46

Quarry trucks hauling uncovered loads................................................................................ 52

Quarry trucks operated outside of operating hours.............................................................. 60

Quarry trucks travelling in convoy, or with less than 5 minutes spacing............................ 67

Quarry trucks on Pomona Kin Kin Road during school bus hours...................................... 82

Conclusions............................................................................................................................ 104

Development offences pursuant to s 164?......................................................................... 104

Material change of use?..................................................................................................... 106

Discretionary considerations.............................................................................................. 109

Introduction

1. The Applicant local government seeks enforcement orders pursuant to s 180 of the Planning Act 2016 (Qld), ultimately aimed at restricting the scale and intensity of the operations of the First Respondent at the Kin Kin Quarry.

2. That Quarry is operated by the First Respondent on land (or premises, within the meaning of the Planning Act 2016)¹ owned by the Second to Fifth Respondents, located at 150 Sheppersons Lane, Kin Kin in the Shire of Noosa and more particularly described as Lot 259 on CP MCH187 (“the Land”). The Amended Originating Application, filed 2 March 2022, makes clear the basis of joinder of the Second to Fifth Respondents, as the joint owners of the Land as tenants in common, and having regard to the stated intention to engage s 180(9) of the PA, which provides:

   “(9) Unless the P&E Court orders otherwise, an enforcement order, or interim enforcement order, other than an order to apply for a development permit—

   (a)attaches to the premises; and

   (b)binds the owner, the owner’s successors in title and any occupier of the premises.”

   However, only the First Respondent has played an active part in defending the proceeding, in circumstances where the basis of the application for enforcement orders lies entirely in the conduct of the First Respondent in the operation of the Quarry.² In that respect, it suffices to note that s 180 of the PA empowers this Court as follows:

   “(2) An enforcement order is an order that requires a person to do either or both of the following—

   (a)refrain from committing a development offence;

   (b)remedy the effect of a development offence in a stated way.

   Example—

   An enforcement order may require a person to pay compensation to someone who, because of the offence, has—

   (a)suffered loss of income; or

   (b)suffered a reduction in the value of, or damage to, property; or

1. As “land” is included in the definition of “premises” in the dictionary in Schedule 2 to that Act.

2. The Second to Fifth Respondents were, at their request, excused from active participation in the proceedings when the Originating Application was first returned to the Court, on 24 September 2021.

(c)incurred expenses to replace or repair property or prevent or minimise, or attempt to prevent or minimise, the loss, reduction or damage.

(3)     The P&E Court may make an enforcement order if the court considers the development offence—

(a)has been committed; or

(b)will be committed unless the order is made.”

1. The Land is:

   (a)located at the end of Sheppersons Lane, approximately 2.5km south-east of the township of Kin Kin;

   (b)60.02ha in size;

   (c)improved by a quarry, which contains andesitic volcanics - suitable for source rock for asphalt aggregate, concrete aggregate, road pavements and other hard rock quarry products; and

   (d)is located in the Rural Zone of the current planning scheme, Noosa Plan 2020,³ which recognises a use referred to as “Extractive Industry”, defined as meaning “the use of premises for:

   (i)      extracting or processing extractive resources; and

   (ii)     any related activities including for example transporting the resources to market.”⁴

2. The quarry has been leased to and operated by the First Respondent since about May 2019, in the context of the following history of approval of such use of the Land.

   (a)On 21 July 1987, an application for “Extractive Industry” was approved by the Council as a Town Planning Consent 1987,⁵ pursuant to the Town Planning Scheme dated 4 May 1985. The Land was then in the Rural Pursuits Zone of the 1985 Scheme. That approval was subject to conditions, which included a condition for detailed management plans for the access locations, buffer areas to adjoining properties and rehabilitation procedures.⁶

3. Second CEO Certificate, filed 06/10/2021, Attachment 2, p 65.

4. Ibid, Attachment 2, Schedule 1 p 92.

5. CEO Certificate, filed 06/10/2021, Attachment 8, 9, p 27-30.

6. Ibid, Attachment 9, p 29.

(b)On 13 May 1988, the 1987 Approval was varied, by consent, by the Local Government Court.⁷ The effect of the variation was to, among other things, extend the period of the 1987 Approval from 3 years to 30 years.

(c)On 2 December 2003, the Council extended the 1987 Approval by a further 15 years, so that Approval is now due to expire on 12 May 2033.⁸ A condition of that variation was a requirement that an updated Management Plan be prepared, including a traffic management plan (truck access) with predictions/procedures for the next 30 years.

(d)On 27 May 2016, the 1987 Approval was further varied by order of this Court. As it is understood, that occurred upon an Amended Originating Application brought by Neilsens Quality Gravels Pty Ltd (a prior operator of the Quarry) and with the consent of the present Applicant as the respondent to that earlier application. Relevantly, Conditions 2, 9 and 11 of the 1987 Approval were deleted and new Conditions, 8 to 11, were inserted (“the 2016 Approval”), to the effect that the following is relevantly provided:

“8.The quarry is to be operated generally in accordance with the Quarry Management Plan dated May 2016 (the

Approved Quarry Management Plan).

For this condition all proposed actions or requirements identified in any certified audit of the Water Quality Management Plan (Stormwater Management) as provided for in the Approved Quarry Management Plan shall be taken to be part of the Approved Quarry Management Plan.”

That Approved Quarry Management Plan (“QMP”) is uncontroversially identified, as that prepared by Groundwork Plus for Nielsens Quality Gravels Pty Ltd and attached to the Notice of Decision of the 2016 Approval,⁹ Further and as that approved plan continues to bind the operation of the Quarry by the First Respondent, it will be apparent that it must, in terms of any specific references to Nielsens, be read as being referable to any operator of The Quarry who is acting under that approval.

1. Ibid, Attachment 12, p 39.

2. Ibid, Attachment 28, p 131.

3. Ibid, Attachment 37, p 343 and ff.

The Application

1. After recognising that the premises has the benefit of the existing development permit for extractive industry,¹⁰ the history of which has been noted, it is first alleged in the Amended Originating Application, that there has been and will continue to be development offences committed pursuant to s 164 of the Planning Act 2016 (“PA”), in terms of contraventions of Condition 8 of that development approval.¹¹ More specifically and in notation of the requirement in Condition 8, that “the quarry is to be operated generally in accordance with the Quarry Management Plan”, it is further noted that the QMP includes a Traffic Management Plan (“TMP”), with the following “key provisions”:

“3.9.2 Issues/Aspects/Impacts

Additionally, and as required, haul routes for delivery of product will vary dependent upon specific project locations and as a management initiative, the quarry operator will manage traffic and importantly provide instructions to contractors on traffic movements i.e. bus operating hours road closure and others salient pieces of traffic management when relevant.

·        Safety

·        Noise and Vibration

·        Dust

·        Product spillage

·        Increased road maintenance requirements.

Transport costs associated with the haulage of material constitutes a significant proportion of the product end cost which is ultimately borne by the consumer. Delivery of product using the most efficient route ensures traffic movements are evenly distributed and product is delivered efficiently and affordably.

Haulage from Kin Kin Quarry is anticipated to be by a range of truck configurations. Product haulage will be along the existing quarry access road to Shepperson’s Lane thence to the Kin Kin – Pomona Road which will be the primary haul route for quarry product. Dr Pages Road may be used for local deliveries and also as a haul route where the final destination of the product is delivered to the areas shown in Diagram 3 – Dr Pages Road Haul Route – Market Service Areas. Other roads

1. Although that changed or amended approval was given under the Sustainable Planning Act 2009, it may be noted to have continuing effect despite the repeal of that Act, upon the commencement of the PA:

   s 286 of the PA.

2. As that term is used in s 180, it is defined by s 161 (see Schedule 2, definition of “development

   offence”), as the offences provided in Part 2 of Chapter 5 (sections 162-165), subject to some expressly recognised exemptions.

will then be used as required depending on the final destination of the product.¹²

Previous works on Sheppersons Lane (as required by current town planning consent from Noosa Council (TPC 1899 –21/7 1987) and subsequently modified by Court Order dated 13/5/1988) have been carried out by the previous lessee of the quarry site. These upgrade works included:

·        Upgrading the intersection of Sheppersons Lane and Kin Kin road to the requirements of the Main Roads Department.

·        Widening and upgrading Sheppersons Lane from the intersection with Kin Kin road, to the Quarry access point using appropriate gravel fill or material approved by the Shire Engineer for the quarry site.

·        Upgrading the existing timber bridge on Sheppersons Lane to a suitable standard for quarry-generated traffic (following receipt of Engineers investigation into the existing bridge).

The Pomona-Kin Kin Road to Pomona is narrow, winding and contains numerous hills, 3 single lane bridges and other testing driving conditions – in particular there is the operation of the local School Bus. Traffic safety along this route will be an ongoing priority for the company and the community. Additionally, and as required, haul routes for delivery of product will vary dependent upon specific project locations and as a management initiative, the quarry operator will manage traffic and importantly provide instructions to contractors on traffic movements i.e. bus operating hours, road closures and others salient pieces of traffic management, when relevant.

3.9.3 Performance Targets

The target for the Kin Kin Quarry is to minimise traffic-related community complaints and have no incidents or accidents involving haulage vehicles associated with the quarry. Additionally it is noted that the site is in a rural environment and that trucks must not arrive at the quarry site prior to the approved operating hours and must not leave the site with a full load after the approved operating hours.

3.9.4 Management Procedures and Practice

Neilsens has adopted a Road Transport Protocol across its quarrying, concrete and distribution operations addressing traffic management issues, driver code of conduct, driver training and authorisation for company drivers, and special conditions for the Kin Kin Quarry. This is attached as Appendix 5 – Neilsen’s Road Transport Protocol.

Specific control measures to be adopted at Kin Kin Quarry include:

·        Installation of approved signage on both approaches to the Shepperson Lane on the Kin Kin Pomona road, warning of heavy vehicle traffic movements.

1. CEO Certificate, filed 06/10/2021, Attachment 37, p 397; Quarry Management Plan, p 55.

·        Implementation of the road transport protocol and a “Drivers Code” which includes avoiding cartage during times when the school bus is using the local road system.

·        Restricting speed of heavy vehicles along Sheppersons Lane.

·        Sealing of Shepperson’s Lane according to agreement with Council and maintenance to an appropriate standard to minimise noise, dust, tracking of fine materials onto sealed road surfaces.

·        Until Shepperson’s Lane has been sealed by Council, the quarry operator must control dust associated with quarry traffic by implementing appropriate watering procedures.

·        All loads except large rock boulders, will be covered. The quarry will adopt a ‘no tarp’ ‘no load’ policy.

·        Vehicles will be fitted with well-maintained engine mufflers.

·        Reduced speed and increased care to be taken by drivers approximately 2.5 km south of Kin Kin (as per the Road Transport Protocol in Appendix 5 – Neilsen’s Road Transport Protocol, where the Pomona-Kin Kin road becomes steep and winding.

·        Ongoing liaison with drivers, Council and community to identify priorities for continual improvements in road traffic safety for the Pomona-Kin Kin road.

·        Discourage practices such as truck early arrivals or convoying which can impact on residents and other road users. Early arrivals will not be loaded until within approved operating hours.

·        Unless in the case of emergency or as otherwise agreed with Council heavy equipment/machinery such as drilling rigs and earth moving machinery will not use the Noosa Trail from the exit point off Sheppersons Lane including Simpsons Road.”

Reference is also made to sections 1.3.1 and 1.3.2 of the Road Transport Protocol at Appendix 5, as follows:

“Section 1.3.1 Routine Hauling

‘The number of trucks employed in product haulage, and, therefore, the number of truck movements per hour will vary during the day as will the interval between dispatches.

Available haulage hours as detailed in the Development Consent will be utilised to achieve a low frequency regular transport program. Truck drivers should communicate with each other (on UHF) when approaching quarry sites to avoid causing queues at quarry entry points – as far as possible trucks should be no closer than 300 metres to the truck ahead.’

Section 1.3.2 Staggering of Departures

Systems will be in place at each NOG quarry sites to ensure, as far as reasonably practicable, that truck dispatches are staggered by a period of 5 minutes.”

And also, to the following of the special conditions at section 3.9.9:

“The Pomona-Kin Kin Road is narrow, winding and contains numerous hills, 3 single lane bridges and other testing driving conditions, particularly operation of the local School Bus, which need special attention. Accordingly, drivers of haulage vehicles using this road to access the Kin Kin Quarry are required to adhere to the following:

·        Truck Drivers are to be especially wary of oncoming vehicles and ensure that they stick to the LHS of the road at all times.

·        A recommended maximum speed to be used on Sheppersons Lane and the winding 3 km section of the Pomona Kin Kin Road is 40 kmph.

·        Truck Drivers are not to overtake other vehicle.

·        Single Lane Give Way signs are to be strictly adhered to.

·        The School Bus generally operates in school terms between the weekday hours of: 6:30 to 9:00am and 3:00 to 4:30pm. During these times, the quarry will seek to minimize truck movements by re-scheduling product deliveries from the site and discouraging unnecessary truck movements on the Kin Kin Pomona Road, during these hours.

·        If the School Bus is encountered along the Kin Kin Pomona Road then it is a requirement that the School Bus must not be overtaken, unless indicated to do so by the Bus Driver, and it is safe to do so.

·        Trucks must not arrive at the quarry site prior to the approved operating hours and must not leave the site with a full load after the approved operating hours.

·        Other local roads will be used as required and when local specific projects designate this need.”.¹³

In submissions at the conclusion of the hearing, the Applicant also draws attention to the following statement included in the statement of rationale at 3.9.1 of the TMP:

“… The principal objectives of the Traffic Management Plan are to manage the impact of haulage vehicles on the local roads and community.”

1. Although the extant approval was granted, as varied to include the conditions to which reference has been made, under the sustainable Planning Act 2009, the effect of these conditions of the approval of the use of the Land, which use the First Respondent seeks

1. Amended Originating Application, filed 02/03/2022, [23]-[26].

to defend in protection of its economic interests, and in relation to this application brought pursuant to the PA, is relevantly provided in the transitional and validation provisions of the PA:

“286 Documents

(1)     This section applies to a document under the old Act that is in effect when the old Act is repealed.

(2)     Subject to this part, the document continues to have effect according to the terms and conditions of the document, even if the terms and conditions could not be imposed under this Act.

(3)     This Act applies to the document as if the document had been made under this Act.

(4)     To remove any doubt, it is declared that the document took effect or was made, given or received when the document took effect or was made, given or received under the old Act.

…..

(7)     In this section— document—

(a)includes—

…

(iii)an approval (a development permit or preliminary approval, for example), including a deemed approval and a decision taken to have been made under the old Act, section 96(5); ….”

It may then be noted that the assessment processes which are provided in respect of development applications in the PA authorise the imposition of “development conditions”, relevantly defined in Schedule 2 in that: “development condition means a condition that a development approval is subject to …” And also that s 73 of the PA relevantly provides that:

“[w]hile a development approval is in effect” it “attaches to the premises” (“premises” is defined in Schedule 2 to include “land, whether or not a building or other structure is on the land”) and “binds the owner, the owner’s successors in title and occupier of the premises”.¹⁴

1. The contention is that between 20 January 2021 and 18 February 2022, there were significant and ongoing breaches of those provisions of the QMP and that the First Respondent’s offence under s 164 of the PA, is characterised in terms that it:

1. It is unnecessary to note the contents of the extended definitions in Sch 2 of the concepts: “land’, “owner” and “occupier”.

“… has allowed, or at least failed to prevent:

(a)      Quarry trucks to travel to and from the Premises, including for the purposes of transporting material to market, between 6.30am and 9.00am (being the time the school bus operates on Pomona Kin Kin Road);

(b)     A substantial number of Quarry Trucks to be operated outside of the hours of operations in the Quarry Management Plan;

(c)      Quarry trucks to travel in convoy, or with less than five minutes spacing between trucks; and

(d)     Quarry Trucks to haul uncovered loads.”

It is further contended that the extent and nature of these breaches have led to:

(a)substantial amenity impacts on residents of the local community; and

(b)an unacceptable traffic safety risk manifesting as a result of the operation of the quarry particularly in relation to Pomona Kin Kin Road.¹⁵

1. The Amended Originating Application also alleges a development offence pursuant to s 165 of the PA, in terms of the unlawful use of the premises. That contention is made as follows:

   “30 Since the First Respondent took over operations of the Quarry, there has been:

   (a)a material increase in the number of Quarry Truck movements per day; and

   (b)a material increase in the traffic and town planning impacts resulting from the Quarry Truck movements to residents in the local community.

   31      The Quarry Truck movements are a component of the extractive industry use occurring on the Premises.

   32 As a result of the material increase in Quarry Truck movements, and resulting unacceptable traffic and town planning consequences, there has been a material increase in the scale and intensity of the extractive industry use on the Premises, and a ‘material change of use’ as defined by the PA has occurred.

   33      Table 5.5.13 of the Planning Scheme categorises a material change of use for an Extractive Industry use in the Rural zone as assessable development requiring a development permit, and is impact assessable.

1. Amended Originating Application, filed 02/03/2022, [27]-[28].

34      No development approval exists with respect to the Premises which authorises the scale and intensity of the Extractive Industry use which has occurred and continues to occur.

35      As a result of the material increase in Quarry Truck movements and resulting impacts, the current Extractive Industry use of the Premises is occurring outside the bounds of the Extractive Industry use authorised by the Development Approval, and is unlawful use of the Premises.”¹⁶

1. The relief sought by way of enforcement order pursuant to s 180(3) of the PA, “to restrain the First Respondent from committing development offences … namely the carrying out of an unlawful material change of use (Extractive Industry) and the contravention of Condition 8 of the [2016 Approval]”, is:

   “… that the First Respondent:

   (a)      limit the maximum total number of Quarry Truck movements per day to a number which will not cause any unacceptable traffic or amenity impacts;

   (b)     cause Quarry Truck movements to cease on Pomona Kin Kin Road on business days at any time when, if travelling at a reasonable speed for the conditions and under the speed limit, the Quarry Truck would reach the Premises prior to 6:00am on business days;

   (c)      cause Quarry Truck movements to cease on Pomona Kin Kin Road on Saturdays at any time when, if travelling at a reasonable speed for the conditions and under the speed limit, the Quarry Truck would reach the Premises prior to 7:00am on Saturdays;

   (d)     cause Quarry Truck movements to cease on Pomona Kin Kin Road during School Hours;

   (e)      prevent any Quarry Trucks leaving the Premises with an uncovered load;

   (f)      prevent Quarry Trucks arriving at the Premises less than 5 minutes 300 metres apart or travelling to the quarry in a convoy;

   (g)     prevent Quarry Trucks leaving the Premises less than 5 minutes apart or travelling away from the quarry in a convoy.

   The orders set out in paragraph 3 will cease to have any operation and effect upon any new development approval for a material change of use taking effect under the PA, which authorises alternative limitations to those set out in paragraph 3 in respect of:

   (a)      the number of Quarry Truck movements per day;

1. Ibid, [30]-[35].

(b)     Quarry Truck movements outside operating hours;

(c)      Quarry Truck movements during School Hours;

(d)     Quarry Trucks leaving the premises with uncovered loads; and

(e)      Quarry Trucks convoying on Pomona Kin Kin Road.”¹⁷

1. Ultimately, the Applicant contends that the questions to be answered by the Court are:

   (a)Has the First Respondent breached Condition 8 of its 2016 development approval in the period 20 January 2021 to 18 February 2022 in relation to:

   (i)      Trucks in school bus hours;

   (ii)     Trucks outside of operating hours;

   (iii)   Trucks travelling in convoy;

   (iv)    Trucks with uncovered loads; and to what extent?

   (b)Has the First Respondent’s operation of the quarry in the period 20 January 2021 to 18 February 2022 constituted a material change of use from the use which was permitted by the 2016 Approval?

   (c)Will the First Respondent’s intended operation of the quarry constitute a material change of use from the use which was permitted by the 2016 Approval?

   (d)Should enforcement orders be granted in the exercise of discretion?

2. The Amended Originating Application had also sought interim enforcement orders, which when that aspect of this application came to be heard on 12 November 2021, was limited to orders premised only upon contentions as to breach of Condition 8 of the 2016 Approval in respect of the operation of trucks in the school bus hours period. The application for interim orders was refused on 25 November 2021.¹⁸

1. Amended Originating Application, filed 02/03/2022, [3]-[4].

2. With the reasons for that determination being finalised and published on 1 December 2021: Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67.

Some applicable principles

1. As it was put in an earlier decision in respect of the operation of this same quarry,¹⁹ the Applicant council has the onus or burden of “proving matters necessary to the [orders] it seeks, and of persuading the Court that … orders should be made”. Although expressed in respect of an application seeking relief in terms of declarations as to the unlawfulness of the town planning consent which had been granted in respect of the Land and consequential orders, it is not in issue that this general statement of principle is equally applicable to an application for enforcement orders brought pursuant to s 180 of the PA, including in respect of what has been recognised as the ultimately discretionary nature of the determination as to what if any relief may be grated by way of enforcement orders, even if the entitling conditions are established.²⁰

2. It is also not in issue that, particularly having regard to the underlying necessity for proof that a development offence has occurred or will occur in the absence of an enforcement order, the principles discussed in Briginshaw v Briginshaw²¹, as further discussed in Rejfek v McElroy²² and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,²³are engaged. In the first instance, it is to be noted that the standard of proof to be applied is the balance of probabilities, on the basis of establishing reasonable satisfaction as to the fact in issue.

   However and as is ultimately explained in the Neat Holdings decision:²⁴

   “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil

1. Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPELR 349, 353, in reference to Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319, 335. See also Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 212.

2. Such as were acknowledged in Warringah Shire Council v Sedevic (1987)10 NSWLR 335.

3. (1938) 60 CLR 336.

²²       (1965) 112 CLR 517.

1. (1992) 110 ALR 449.

2. Ibid, 449-450 (citations omitted).

litigation has been guilty of such conduct. As Dixon J commented in

Briginshaw v Briginshaw:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...’”

1. As has been noted, the factual issues arise here in the context of and are necessarily framed by the conditions of the approved use of the Land. As was noted in the earlier decision in respect of the application for interim enforcement orders, albeit in particular direction to the focus of that application on only one aspect of the application now pursued, and as was not put in issue in application to the broader aspects of this application:²⁵

   “The construction issue

   [23]   The construction or interpretation issue is far from being uncomplicated. A critical issue is the meaning to be ascribed to the composite phrase “will seek to minimize truck movements by re-scheduling product deliveries from the site and discouraging unnecessary truck movements”, in special condition 3.9.9 in the TMP²⁶.

   [24]   The First Respondent contends that, properly construed, special condition 3.9.9 of the TMP does not require it to cease all truck movements to and from the quarry during the school bus operation periods.²⁷ It is further contended that in the construction of conditions of planning approvals:²⁸

   (a)any ambiguity in the approved condition should be construed in a manner that places the least burden on the landowner,²⁹ and ambiguity in a development condition should be construed against the imposing authority;³⁰ and

   (b)any lack of certainty “is the responsibility of the Applicant who formulated the conditions and, as such, the Applicant should bear the consequences”.³¹

   [25]   It is unnecessary to dwell upon the decisions which are relied upon for these broadly stated propositions or to consider the

1. Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67, [23]-[35], reproduced with renumbered footnotes.

2. CEO Certificate, filed 06/10/2021, Attachment 37, p 399; Quarry Management Plan, p 57.

3. First Respondent’s Written Submissions, filed 13/06/2022, [37].

4. Ibid, [38].

5. Reference is made to Matijesevic v Logan City Council (No. 2) (1983) 51 LGRA 51, [57].

6. Reference is made to Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334,

   [16] and Hawkins & Izzard v Permarig Pty Ltd & Anor [2001] QPELR 414, 416.

7. Reference is made to Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321, [324] and Maxen Developments Pty Ltd & Anor v Burnett Shire Council [2007] QPEC 60.

extent to which any of those decisions represent any more than conclusions which sought to find and provide a sense of certainty of application of the provisions in issue. This is because the High Court has, recently,³² determined that the conditions of a development approval are not to be construed by reference to principles applicable to the construction of contracts “but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments”.³³ In another judgment, there is also an indication that an approach to construction upon the premise that “ambiguity should be resolved against the Council, as the drafter of the [approval], is contrary to principle and precedent”.³⁴

[26]   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,³⁵ such as is set out in Zappala Family Co Pty Ltd v Brisbane City Council.³⁶ 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 outcomes. Whilst bearing in mind the need to consider context and purpose from the outset, “the correct approach to statutory interpretation must begin and end with the text itself”.³⁷

[27]   In that respect, the application, as is presently relevant, is premised upon contention that there has been and there will, without an enforcement order, continue to be, breach of the condition of the approval. It is correctly noted that the condition is expressed in terms that “the quarry is to be operated generally in accordance with the Quarry Management Plan dated May 2016”.³⁸ And it is acknowledged that there are decisions, albeit in reference to departure from a more static concept of building plans, which indicate that the phrase “generally in accordance with”:

(a)allows for some deviation from the approved plan, with the extent of allowable deviation dependent on the relevant circumstances;³⁹ and

1. Sunland Group Limited & Anor v Gold Coast City Council (2021) 274 CLR 325, [2021] HCA 35.

2. Ibid, [58] and [1].

3. Ibid, [21].

4. In this respect it may be noted that under the PA, conditions are permitted to be attached to development approvals in accordance with the requirements of s 65 of that Act, which must necessarily be referable to the requirements of assessment as set out in ss 60(1)(c) and (d) and (3)(b) of that Act and therefore the appropriate assessment of a development application against the applicable assessment benchmarks, particularly as included in the relevant planning scheme; see: s 45 of the PA.

5. (2014) 201 LGERA 82, [52]-[58].

6. Ibid, [55].

³⁸See the Notice of Decision attached to the CEO Certificate, filed 06/10/2021, p 332 and the Quarry Management Plan attached at p 343 and notwithstanding that in the amended approval at p 340 the reference is to “February 2016”.

1. Grace Bros Pty Ltd v Willoughby Municipal Council & Ors (1980) 44 LGERA 400, [406]-[407].

(b)that determination as to whether something is generally in accordance with a relevant plan, will be by reference to the town planning consequences of the deviation.⁴⁰

[28]   It was also not in issue, as was a point emphasised for the First Respondent, that the effect of special condition 3.9.9 of the TMP was not to absolutely prohibit truck movements in the school bus operations periods. So much is apparent from the immediately contextual requirement in special condition 3.9.9, that:

“If the School Bus is encountered along the Kin Kin- Pomona Road then it is a requirement that the School Bus must not be overtaken, unless indicated to do so by the Bus Driver, and it is safe to do so.”⁴¹

[29]   The Applicant further points, in terms of relevant context and as informing the purpose of the requirement in Condition 8 of compliance, generally in accordance with, special condition 3.9.9 of the TMP, to what has been set out above as to the noted rationale and objectives of the TMP and particularly what is noted as to management of the “impact of haulage vehicles on the local roads and community”. As may be particularly noted, such context includes:

(a)the express statement that:

“The principal objectives of the Traffic Management Plan are to manage the impact of haulage vehicles on the local roads and community”;⁴²

(b)a further express statement that:

“ … the quarry operator will manage traffic and importantly provide instructions to contractors on traffic movements i.e. bus operating hours, road closure and others salient pieces of traffic management when relevant”;⁴³

(c)the specific notation of the physical constraints of “the Pomona-Kin Kin Road to Pomona” and that “in particular there is the operation of the local school bus”, with an accompanying statement that:

“Traffic safety along this route will be an ongoing priority for the company and the community. Additionally, and as required, haul routes for delivery of product will vary dependent upon specific project locations and as a management initiative, the quarry operator will manage traffic and importantly provide instructions to contractors on traffic movements i.e.

1. Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200, [202] and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5, [7]-[14].

2. CEO Certificate, filed 06/10/2021, Attachment 37, p 399; Quarry Management Plan, p 57.

3. Ibid, p 396; Quarry Management Plan, p 54.

4. Ibid.

bus operating hours, road closures and other saliant pieces of traffic management, when relevant.”⁴⁴ (emphasis added); and

(d)the notation of performance targets including “to minimise traffic-related community complaints and have no incidents or accidents involving haulage vehicles associated with the quarry”.⁴⁵

As to incidents or accidents, it is to be noted that this feature of the First Respondent’s material that there are no relevant recordings of such having occurred, particularly since the acknowledged increase in intensity of its operation of the quarry since May 2019.⁴⁶

[30]   In this context, it is to be noted that although described as “specific guidance” by the Applicant,⁴⁷ this application must necessarily be premised on there being obligations set out in the dot points in special condition 3.9.9 of the TMP, noting that they are by way of preamble, expressed to be as applicable as follows:

“The Pomona-Kin Kin Road is narrow, winding and contains numerous hills, 3 single lane bridges and other testing driving conditions, particularly operation of the local School Bus, which needs special attention. Accordingly, drivers of haulage vehicles using this road to access the Kin Kin Quarry are required to adhere to the following: …”⁴⁸

Whilst the particular obligation which is relevant here is expressed in wider terms of the obligation of “the quarry” and therefore the operator of it, that may also be seen to be consistent with the obligations set out in the noted contextual provisions, upon such operator, to manage such matters.

[31]   Accordingly, it may be discerned that there is a particular concern recognised in the TMP as to managing the potential impacts of the truck movements relating to the operation of the quarry, including as to impact upon safety and the general use of the Pomona-Kin Kin Road, in particular. Further, the operation of the school bus upon that road, is, in this context, identified as not just a particularly sensitive issue in relation to such impact, but one deserving of particular attention.

[32]   As contended by the Applicant, it may be accepted that an objective approach is required to the construction of special condition 3.9.9 of the TMP. That is, in contrast to the criticism levelled at the approach of the First Respondent as to that effectively being directed at no more than some reduction of the

1. Ibid, p 397; Quarry Management Plan, p 55.

2. Ibid.

3. T 1-59.37 – 1-60.25 and Affidavit of H L Riggs, filed 09/11/2020, HLR-1, p 2.

4. Applicant’s Written Submissions, filed 18/05/2022, [23].

5. CEO Certificate, filed 06/10/2021, Attachment 37, p 399; Quarry Management Plan, p 57.

relevant truck movements, particularly having regard to the assertion of an underlying need to meet high demand for product in the morning period of school bus operation. In that regard, it is to be noted that an ordinary meaning of “minimise” is “to reduce to the smallest possible amount or degree”.⁴⁹

[33]   On the other hand, it is also not to be ignored that part of the context in the connotation of this provision, is an express recognition of an element of more general public interest in the permitted operation of the quarry:

“Transport costs associated with the haulage of material constitutes a significant proportion of the product end cost which is ultimately borne by the consumer. Delivery of product using the most efficient route ensures traffic movements are evenly distributed and product is delivered efficiently and affordably.”⁵⁰

Immediately following that observation, are the references to the use of the Pomona-Kin Kin Road as the “primary haul route” but with other alternatives particularly noted for some local deliveries.

[34]   Further and in the context of the earlier expression in 3.9.2 of the TMP that “the quarry operator will manage traffic” on the Pomona-Kin Kin Road, where it is acknowledged that the school bus operates, the words “will seek to” are not apt to introduce any wholly subjective connotation of “minimis[ing] truck movements”, but rather may be seen as more in qualification of how such objectively determined minimisation is to occur. That is, “by re-scheduling product deliveries from the site and discouraging unnecessary truck movements on the Kin Kin Pomona Road during these hours.”⁵¹ However it is also to be noted that whilst to be considered in the context of being directed at minimising the truck movements in the school bus operation periods and as an additional requirement to that of re-scheduling product deliveries from the site, there would remain the need to consider the undefined concept of “discouraging unnecessary truck movements”.

[35]   It is unnecessary, particularly in the context of the extent to which argument was joined on the construction issues in the hearing of this interim application, to finally determine them, at this stage. This is because, on any view, the question as to whether or not it may be determined that there is a prima facie case of entitlement to an enforcement order would, even upon the most favourable view for the Applicant as to the construction of special condition 3.9.9, still depend on matters of fact and degree as to alleged non- compliance with Condition 8 of the approval, in terms of

1. See: Macquarie Dictionary, Fifth Edition.

2. CEO Certificate, filed 06/10/2021, Attachment 37, p 396; Quarry Management Plan, p 54.

3. Ibid, p 399; Quarry Management Plan, p 57.

operation not “generally in accordance with” that part of the TMP, and the evidential basis upon which any such conclusion might be premised.”

1. As noted, in the hearing for final relief, neither party sought to re-engage or further develop these principles, as they may relate to the evidence ultimately relied upon, except in respect of the issue as to material change of use of premises. It may also be noted, as will be discussed further below, that the application of the expression of Condition 8 in terms of an obligation to manage the operation of the Quarry generally in accordance with the QMP and the assessment of what degree of latitude may be allowed from the requirements of the QMP, that may depend, as part of the relevant circumstances, upon the nature of the particular requirement in issue.

The issue as to Material Change of Use of Premises

1. The issue as to material change of use of the Quarry is, as has been noted, the basis of the allegation as to the commission of a development offence pursuant to s 165 of the PA, in reference to the proscription that “a person must not use premises unless the use

   …is a lawful use”. For the purpose of relief pursuant to s 180, it is necessary for the Applicant to establish that such an offence has been or will be committed unless an enforcement order is made. That allegation is addressed by reference to the evidence collected up to the time of the commencement of hearing of this matter in March 2022 and then as presented in that hearing, particularly in respect of what is identified as the development of the use of the Quarry for “Extractive Industry”, which is occurring as the operation of it has been by the First Respondent since about May 2019.

2. Understandably, therefore, the application is couched in reference to the concept of material change of use in the PA and the planning scheme relating to the Land at the time of the hearing of the application: Noosa Plan 2020.

3. First and particularly in reference to the interests sought to be protected by the First Respondent, it is necessary to note that for the purpose of transition from the Sustainable Planning Act 2009 to the PA, it is provided by s 290 of the PA, that:

   “To the extent an existing use of premises is lawful when the old Act is repealed, the use is taken to be a lawful use on the commencement.”

Secondly and in respect of changes to planning instruments, such as by implementation of the Noosa Plan 2020, s 260 of the PA provides:

“Existing lawful uses, works and approvals

(1)     If, immediately before a planning instrument change, a use of premises was a lawful use of premises, the change does not—

(a)stop the use from continuing; or

(b)further regulate the use; or

(c)require the use to be changed.

(2)     If a planning instrument change happens after building or other works have been lawfully constructed or effected, the change does not require the building or works to be altered or removed.

(3)     If a planning instrument change happens after a development approval is given, the change does not—

(a)stop or further regulate the development; or

(b)otherwise affect the approval to any extent to which the approval remains in effect.”

1. Next, it is necessary to understand that Part 2 of Chapter 5 of the PA, in prescribing development offences, includes s 163, which relevantly provides that (subject to some presently irrelevant exceptions): “[a] person must not carry out assessable development, unless all necessary development permits are in effect for the development.” Further and under the PA (in Schedule 2):

   (a)“development” is defined as meaning, in part, “making a material change of use of premises”. and

   (b)There is the following definition of “material change of use of premises”:

   “material change of use, of premises, means any of the following that a regulation made under section 284(2)(a) does not prescribe to be minor change of use—

   (a)the start of a new use of the premises;

   (b)the re-establishment on the premises of a use that has been abandoned;

   (c)a material increase in the intensity or scale of the use of the premises.”⁵²

   By s 63(3), it is provided that: “[a] development permit is the part of a decision notice for a development application that authorises the carrying out of the assessable

1. It may be noted that nothing was raised as requiring any attention to the defined meaning of “use” in that schedule, in terms that: “use, for premises, includes an ancillary use of the premises”.

development to the extent stated in the decision notice”. And the concepts of “development application” and “decision notice” are in reference to the processes provided in the PA for the assessment of “assessable development”, a concept defined in s 44(3) as “development for which a development approval is required”. It is not in contest that any material change of use of these premises for extractive industry would be assessable development pursuant to the PA.

1. The effect of s 44(5) of the PA is that a “categorising instrument”, which, pursuant to s 43, may include a planning scheme such as the Noosa Plan 2020, may categorise development as assessable development. In the first instance, the Applicant refers to the Noosa Plan 2000 as doing that in respect of any contended material change of use of these premises, because:

   (a)by section 1.3.1, the definition of “material change of use of premises” in Schedule 2 of the PA, is adopted;⁵³

   (b)the use of the Quarry is discernibly within the definition of the use: “Extractive Industry”, in that scheme;⁵⁴ and

   (c)because the Land is in the Rural Zone under that scheme, table 5.5.13 of the Tables of Assessment establishes that a material change of use for Extractive Industry is assessable development, subject to impact assessment.⁵⁵

2. The Applicant’s case, therefore, proceeds upon the basis, as is not in issue, that the only extant permit for the use of the Land for Extractive Industries, is the 2016 Approval. Then, with particular reliance upon sub-paragraph (c) of the definition of the concept of material change of use of premises in the PA, ⁵⁶ it is contended that a material increase in the intensity or scale of the use of the premises has occurred under the PA, without the necessary permit, or will so occur unless restrained by enforcement order.

3. It is the submission of the Applicant that this contention is to be determined pursuant to the following applicable principles:

   “(a) There must be a material change of use from the lawful use (here, what was approved under the 2016 Approval). That requires a

1. Second CEO Certificate, filed 06/10/2021, Attachment 2 – Noosa Plan 2020 extracts, p 47.

2. Ibid, p 92.

3. Ibid, p 57.

4. There is nothing suggested as relevantly arising in reference to any regulation made pursuant to s 284(2)(a).

comparison of what was approved to what is occurring or will occur.

(b)     It is no defence to an allegation of material change of use that the use itself may still be characterised in the same way. If that were the only question, part (c) of the definition would have no work to do.

(c)     Whether a material change of use has occurred or will occur is a question of fact and degree in all the circumstances of the case.

(d)     The question should be considered by reference to the planning consequences of the change in intensity of use, including:

(i)The intentions of the contemporary planning instruments;

(ii)Impacts on others; and

(iii)Burden of services local authority is to supply.”

1. The proposition in sub-paragraph (b) is not in issue and is undoubtedly correct. The proposition in sub-paragraph (a) is also necessarily correct,⁵⁷ in the sense that what is required is the proof of the unlawful use of premises in the sense of an unapproved material change of use of premises and as will be discussed in further in reference to the approval upon which the First Respondent necessarily relies, there are some competing contentions as to the effect of what was anticipated as to the extent of the quarrying activity which was so approved. Such divergence also flows into the matters raised in sub-paragraphs (c) and (d). However and as a broad proposition, these contentions may be accepted as appropriately established from the sources to which the Applicant has referred, noting that in this particular case there is nothing pointed to as arising in respect of sub-paragraph (d)(iii).⁵⁸

2. Given that these are legal propositions arising as a matter of construction of the statutory provisions, no meaningful assistance is to be gained from the divergent views of the town planning experts called by the parties as to whether the determination as to material change of use of premises should include reference to qualitative as well as quantitative factors relating to the quarrying activities.⁵⁹

3. The Applicant points to the statement of purpose in s 3(1) of the PA, that:

⁵⁷As may be noted to be a particular matter of concern and emphasis in the submissions for the First Respondent: see First Respondent’s Written Submissions, filed 13/06/2022, [40].

⁵⁸See Applicant’s Written Submissions, filed 18/05/2022, [127], where reliance is particularly placed on a passage taken from Guildford Rural District Council v Fortescue Same & Penny [1959] 2 QB 112, 125, for this proposition.

1. See Applicant’s Written Submissions, filed 18/05/2022, [134]-[135].

“The purpose of this Act is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning (planning), development assessment and related matters that facilitates the achievement of ecological sustainability.”

And that in s 3(2) it is stated that:

“Ecological sustainability is a balance that integrates—

(a)     the protection of ecological processes and natural systems at local, regional, State, and wider levels; and

(b)     economic development; and

(c)     the maintenance of the cultural, economic, physical and social wellbeing of people and communities.”

The Applicant emphasises subparagraph (c) but it is important to the submissions for the First Respondent that the benefit to the community in terms of the economic development represented by the Quarry, as recognised in the QMP in utilisation of the available resources in supply of the market for them, is also recognised. A similar note of balance is to be discerned in respect of the Applicant’s reliance on s 5 of the PA, in terms of dealing with advancing the purpose of the Act with “a focus on impact based assessment”.⁶⁰ For instance. by a requirement, in s 5(2)(c), of:

“promoting the sustainable use of renewable and non-renewable natural resources, including biological, energy, extractive, land and water resources that contribute to economic development through employment creation and wealth generation”.

1. Relying upon the recognition of similarity of the concept of material change of use in planning legislation in the United Kingdom, reference is made to some authorities as to the meaning and application of the concept there and more particularly, there is reliance upon what has been previously decided in this Court in respect this concept and particularly as to the phrase “a material increase in the intensity or scale of the use of the premises”, identified as introduced in Queensland by section 1.3.5 of the Integrated Planning Act 1997, albeit that the word “change” initially appeared rather than “increase”.

2. In respect of the propositions in sub-paragraph (d)(i) and (ii), reliance is placed upon the following passages from British cases:

   “We tend to think that we know the old authorities in this field very well, but we have, if I may say so, been helpfully and usefully referred

1. Applicant’s Written Submissions, filed 18/05/2022, [131]-[132].

to one of the most familiar and to two short passages from that very familiar authority, East Barnet Urban District Council v. British Transport Commission, where Lord Parker C.J., adverting to the considerations of law which are applicable to the determination of the question whether a material change of use amounting to development has taken place, said this: ‘It seems clear to me that ... what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier.’ On the previous page, referring to the use of the word ... material" in the relevant part of the definition of development, he said: ‘The word" material" came in for the first time in the definition in the Act of 1947, but that must be referring to material as material for planning purposes, ...’”;⁶¹ and

“I am unable to accept Mr Fitzgerald's two stage approach to the question whether there would be a material change in the use of land if the proposal went ahead. Planning law is concerned, in this context, with the effect on others of the making of material changes in the use of land. In the context of the problems facing the appellants and the planning authorities I do not find the separation of the question - "does the proposal involve the making of a change in the use of land" and "does the proposal involve the making of a material change in the use of land" -at all helpful in focusing the eye on that which matters from an environmental point of view. The materiality of something will depend on the context in which it is being examined. One must always ask: material for what purposes? If I go shopping and put a pound of butter in my basket but just outside the shop someone swaps the pound of butter for a pound of margarine there is no material change so far as the weight of the basket which I have to carry on the journey home is concerned but there is a material change when it comes to tomorrow's breakfast.

It is clear planning law that one can make a material change in the use of land by carrying on activities on that land although nothing physical is done to the land itself. Suppose I lay protective matting over the whole of a field. That matting would not be part of the corporeal hereditament. I then introduce a market use with the benefit of planning permission. Then I cease the market use and decide to change to use by massed brass bands. However, I still keep the same protective matting lying on the land. From the point of view of the Borough Engineer that might not be a material change of use of the land. No additional stability or safety problems are involved. For him it is quite adequate to say that before and after there were people tramping on matting laid on earth. He could say and say correctly from his standpoint that there had been no material change of use in the land.

However, while indeed it would be an accurate analysis of the situation to say that both before and after the concerts the land has been used for the purpose of walking standing and sitting by human beings, such an

[171]On the other hand, The Applicant’s submission acknowledges the discretion whether or not to make enforcement orders and particularly points to the following provisions of s 181 (2) and (3) of the PA, in respect of the powers of the Court to make an enforcement order:

“(2) The power to order a person to stop, or not to start, an activity may be exercised whether or not—

(a)the P&E Court considers the person intends to engage, or to continue to engage, in the activity; or

(b)the person has previously engaged in an activity of the same type; or

(c)there is danger of substantial damage to property or injury to another person if the person engages, or continues to engage, in the activity.

(3)     The power to order a person to do anything may be exercised whether or not—

(a)the P&E Court considers the person intends to fail, or to continue to fail, to do the thing; or

(b)the person has previously failed to do a thing of the same type; or

(c)there is danger of substantial damage to property or injury to another person if the person fails, or continues to fail, to do the thing.”

[172]Like the position of the First Respondent as to potentialities, the Applicant’s submissions assumed its success in respect of the proof of the commission of “significant and ongoing development offences under s 164 of the Planning Act by its breaches of Condition 8 of the approval” and that proof that the First Respondent had “[c]arried out a material change of use in its operations at the quarry, or will carry out a material change of use,

1. Affidavit of C A Hill, filed 22/02/2022, [13]-[19] and [22]; TB 1775-1776; Affidavit of H R C Stewart, filed 22/02/2022, [20]-[23]; TB 1929.

2. Affidavit of C A Hill, filed 22/02/2022; TB 1773.

3. Affidavit of C A Hill, filed 22/02/2022, [22]; TB 1776.

without a permit, in breach of s 165 of the Planning Act. In that context, and leaving aside the particular criticisms of Mr Cordwell’s evidence as to adverse impacts on the First Respondent’s business if restrictions were placed on their operations in the school bus hours periods, the necessity for enforcement orders was pressed in terms of the Court not having confidence “that the First Respondent would act to remedy breaches of the QMP without specific limitations being imposed by the Court”, with following considerations identified in respect of that proposition:

“(a) No action appears to have been taken to deal with any of the breaches proved by the Council evidence since that evidence was filed in court, in full by January 2022;

(b)     Mr Palmer, Cordwells’ transport manager/allocator did not even read the evidence led by either party in this matter, nor the Attachments to MFI-G related to convoying. He claimed to be willing to rectify issues if there were failures. His failure to peruse breaches which were made easily accessible by the Council’s material suggests a response would be unlikely to be forthcoming, or prompt.

(c)   Mr Cordwell was unwilling to accept that any of the Attachments in MFI-G showed breaches of the QMP. This shows the company’s unwillingness to accept the obligations the QMP imposes on the quarry’s operations.

(d)     Despite claiming to have done significant “due diligence” before acquiring the quarry, Martin Cordwell had not read the planning scheme in force at that time, or the current Rural Zone Code.”²⁷⁷

[173]The fourth point may be put aside as not having any particular resonance in the contention sought to be made as to remedying breaches of, or more generally compliance with, the QMP. It is difficult to accept the first point, particularly in the light of what is pointed to by the First Respondent as particular actions it has taken in order to comply with its obligations under the QMP, including as may appear to have occurred during the investigation phase of the Applicant’s application and as it may be expected that particular attention was drawn to those obligations. The second point is unpersuasive, when is understood that although employed in an important capacity, Mr Palmer is not to be properly regarded as any part of the guiding mind of the First Respondent.

[174]That leaves the third point, but only to the extent that the position taken by Mr Cordwell, has been falsified by this Court’s finding in respect of the uncovered loads issue. It is

1. Applicant’s Written Submissions, filed 18/05/2022, [205], with footnoted references to the evidence omitted.

also necessary to understand that the particular confrontation of Mr Cordwell was characterised by the competing contentions engaged, in the hearing of this matter, as to the interpretation of the QMP. Such issues have now been addressed by this Court and, as has been noted, even where the Applicant’s allegation has not been found as established, there is expected to be some indication of the need for the First Respondent to continue to pay close regard to those obligations for the future. Also having regard to those things that the First Respondent has identified as actions it has taken, that position is not to be taken as representing any unwillingness to accept its obligations under the QMP.

[175]Turning then to the finding that the First Respondent has committed development offences by not acting generally in accordance with its obligations under the QMP in respect of adoption of the control measure that all loads except large rock boulders will be covered. That provides the foundation for the exercise of the discretionary power to make an enforcement order pursuant to s 180(3) of the PA. The provisions in s 181(2) and (3) serve to indicate the unfettered nature of that discretion. In the first instance, it is to be noted that the power to make such an order is sufficiently engaged in terms of recourse to s 180(3)(a), in that s 180(3) provides:

“(3) The P&E Court may make an enforcement order if the court considers the development offence—

(a)has been committed; or

(b)will be committed unless the order is made.”

However the effect of what may be achieved by an enforcement order, is defined by s 180(2) and 5:

“(2) An enforcement order is an order that requires a person to do either or both of the following—

(a)refrain from committing a development offence;

(b)remedy the effect of a development offence in a stated way.

…

(5)     An enforcement order or interim enforcement order may direct the respondent—

(a)to stop an activity that constitutes a development offence; or

(b)not to start an activity that constitutes a development offence; or

(c)to do anything required to stop committing a development offence; or

(d)to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or

(e)to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

•to repair, demolish or remove a building

•to rehabilitate or restore vegetation cleared from land”

And because it is provided in s 180(6) that “[a]n enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act”, it follows that the Court is not restricted to making any such order, only in terms of the relief sought by an Applicant.

[176]On the one hand, it may be seen that the pleaded relief sought in this instance, in terms that the First Respondent “prevent any Quarry Trucks leaving the Premises with an uncovered load” may be broadly consistent with what has been determined to be the obligation of the First Respondent pursuant to Condition 8 of the 2016 Approval. Otherwise, the fact and effect of that determination may give rise to the First Respondent’s contentions as to the utility and appropriateness of any such, or other, enforcement order, particularly having regard to the extent to which the First Respondent contends that the system in implementation of its obligation has been rectified.

[177]The parties should be given the benefit of opportunity to more specifically address these and any other specifically relevant considerations, now that there can be particular focus upon the basis upon which s 180 of the PA, is engaged, and it might be said, to the extent that the Applicant seeks to have an enforcement order made in the circumstances.

Disposition

[178]Accordingly, and except in respect of the further consideration of the application of s 180 of the PA to the contraventions of condition 8 of the 2016 Approval which have been found to have been established, as to the First Respondent not acting generally in accordance with its requirement under the QMP in respect of adoption of the control measure that all loads except large rock boulders will be covered, the amended application filed on 2 March 2022, must be dismissed.