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Noosa Council v Cordwell Resources Pty Ltd[2021] QPEC 67

Noosa Council v Cordwell Resources Pty Ltd[2021] QPEC 67

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67

PARTIES:

NOOSA COUNCIL

(Applicant)

v

CORDWELL RESOURCES PTY LTD (ACN 066 294 773)

(First Respondent)

and

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

(Second Respondent)

and

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

(Third Respondent)

and

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

(Fourth Respondent)

and

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

(Fifth Respondent)

FILE NO/S:

D155/2021

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland, Maroochydore

DELIVERED ON:

Orders: 25 November 2021

Reasons: 1 December 2021 (finalised and published)

DELIVERED AT:

Maroochydore

HEARING DATE:

12 November 2021

JUDGE:

Long SC, DCJ

ORDER:

  1. The Originating Application filed on 17 September 2021, as far as an interim enforcement order is sought, is dismissed;
  2. Costs are reserved; and
  3. The Originating Application is adjourned for review on 17 December 2021 and listed for hearing for 3 days on 2 – 4 March 2022.

CATCHWORDS:

APPLICATION FOR INTERIM RELIEF – INTERLOCUTORY INJUNCTION – where the Applicant filed an Originating Application for enforcement orders on both an interim and final basis – where the Applicant is seeking an interim order to enforce the terms of the development approval under which the First Respondent exercises its rights and economic interests in operating the Kin Kin quarry – whether the actions of the First Respondent have resulted in the commission or prospective commission of a development offence – whether the Applicant has demonstrated a prima facie case – whether the balance of convenience favours an exercise of discretion to grant the interim relief

CASES:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Bon Accord Pty Ltd v Brisbane City Council & Ors [2010] QPELR 23

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200

Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217

Grace Bros Pty Ltd v Willoughby Municipal Council & Ors (1980) 44 LGERA 400

Hawkins & Izzard v Permarig Pty Ltd & Anor [2001] QPELR 414

Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334

Matijesevic v Logan City Council (No. 2) (1983) 51 LGRA 51

Maxen Developments Pty Ltd & Anor v Burnett Shire Council [2007] QPEC 60

Mudie v Gainriver Pty Ltd & Ors [2002] 2 Qd R 53

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Rejfek v McElroy (1965) 112 CLR 517

Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321

Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5

Sunland Group Limited & Anor v Gold Coast City Council [2021] HCA 35

Tynan v Meharg (1998) 101 LGERA 255

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

LEGISLATION:

Planning Act 2016 (Qld), s 180, 286

COUNSEL:

M Batty and S Hedge for the Applicant

D Purcell for the First Respondent

SOLICITORS:

McCullough Robertson Lawyers for the Applicant

Carter Newell Lawyers for the First Respondent

Introduction

  1. [1]
    On 17 September 2021, the Applicant filed an Originating Application for enforcement orders pursuant to s 180 of the Planning Act 2016 (“PA”).  Such orders are sought on both an interim and final basis against the five named respondents. 
  2. [2]
    As against the First Respondent, such orders are sought upon the basis that it is the operator of a quarry situated at 150 Sheppersons Lane, Kin Kin (on land described as Lot 259 on CP MCH187 – “the land”).  It is not in issue that upon that land the First Respondent operates a quarry in respect of andesitic volcanics, suitable as source rocks for asphalt aggregate, concrete aggregate, road pavements and other hard rock quarry products, pursuant to an environmental authority and a lease granted by the owners of the land, the Second to Fifth Respondents.
  3. [3]
    When the Originating Application was first returned to the Court, on 24 September 2021, the Second to Fifth Respondents were, at their request, excused from active participation in the proceedings. 
  4. [4]
    The essential background to the dispute between the Applicant and First Respondent includes the permitted use of the land for quarrying or more particularly the use of the land for “Extractive Industry”, pursuant to a development permit for extractive industry, originally granted as a Town Planning Consent on 21 July 1987 and most recently varied by order made in this Court on 27 May 2016.  It is that varied form of the development approval which is the extant permission authorising that use of the land.
  5. [5]
    Although there has been voluminous material filed in respect of the Originating Application, including in relation to the application for interim orders, it is, as conceded at the outset by the parties, unnecessary to traverse all of that material, nor, at this stage, to determine the respective objections taken to parts of it. This is particularly because, as again was common ground at the hearing for interim relief,[1] that the determination of the interim application, effectively for relief in the nature of mandatory interlocutory injunction, pending the determination of the application for such relief on a final basis and as enforcement orders pursuant to s 180 of the PA, is to be determined by application of the principles recognised in cases such as Australian Broadcasting Corporation v O'Neill[2]  That is, in recognition that in respect of such applications a court addresses two main enquiries:
  1. First, as to whether the Applicant has demonstrated “a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial [or final hearing,] … there will be a finding of entitlement to relief”; and
  2. Secondly and in recognition of the discretionary nature of the relief which is sought, whether “the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.” This is often referred to as consideration of the balance of convenience as to the exercise of the available discretion.
  1. [6]
    It is convenient to also note, by way of context, that whilst, as has been noted, there has been approval of the operation of this quarry for some decades, it has only been since May 2019 that the First Respondent has operated it.  That transition occurred as explained in the affidavit of the operations manager of the First Respondent,[3] in circumstances where:
    1. (a)
      the First Respondent is part of a significant family group operation which also includes sand and concrete batching plants at various locations in the Sunshine Coast Region, employing 88 staff across all arms of the group business;[4]
    2. (b)
      prior to becoming the operator of the Kin Kin Quarry, the Cordwell Group was the largest customer of the previous operator of the quarry and then successfully bid for and took operation of it, when the previous operator decided to cease those operations;[5] and
    3. (c)
      the resultant position is that by doing so, the Cordwell Group now has control over nearly all parts of the raw product for their concrete production and that this uses between half to two-thirds of the resources produced at the Kin Kin Quarry, for its own operations.[6] 
  2. [7]
    Moreover, it is necessary to note that an underlying premise of the Originating Application is what may be understood as not being an issue on the filed material, that there has, since the First Respondent became the operator of the quarry, been a marked increase in the extent of removal of resource from the quarry, particularly as evidenced by the frequency of movement of trucks to and from the quarry, for that purpose.
  3. [8]
    However and whilst the Originating Application sought both interim and final relief upon the bases of restraining the First Respondent from committing the development offences of both carrying out an unlawful material change of use and in contravention of a particular condition of the development approval, as it relates to the timing of truck movements, it is only in the latter respect that the application for interim relief is pressed. Indeed, it is to be noted that the basis of allegation of material change of use in the Originating Application is upon the assertion of material increase in quarry truck movements.[7] Further and although the Originating Application traverses a wider scope of allegations as to breaches of conditions of the approval under which the quarry is operated,[8] the application for an interim enforcement order was pursued only in refence to a condition relating to truck movements within the identified periods of operation of the local school bus.

The interim application

  1. [9]
    Accordingly and in the application of the principles which have been noted, it is necessary to understand that what the Applicant is ultimately seeking to enforce are the terms of the development approval under which the First Respondent exercises its rights and economic interests in operating the quarry, in reference to the limitations of and conditions or restrictions placed upon such rights, pursuant to that approval.
  2. [10]
    It is not in issue that the land and the use of it for “extractive industry” is within the local government area of the Applicant and a use originally approved by a precursor assessment manager, to the Applicant.  In short, the critical history is that:
    1. (a)
      On 21 July 1987, the Noosa Shire Council granted such approval as a Town Planning Consent, pursuant to the Town Planning Scheme dated 4 May 1985. That approval was subject to conditions, including the submission and approval of detailed management plans. [9]
    2. (b)
      On 13 May 1988, that approval was varied, with consent, by the Local Government Court, which included the effect of extending the period of approval from three to 30 years.[10]
    3. (c)
      On 2 December 2003, the Council extended the approval by a further 15 years to have effect until 12 May 2033, upon conditions requiring the preparation and approval of an updated management plan, to include a “Traffic Management Plan (truck access) with predictions, procedures for the next 30 years”.[11]
    4. (d)
      On 27 May 2016 upon the application of the prior operator of the quarry, this Court allowed the amendment or variation of the approval, so as to relevantly provide for the following new conditions of approval:

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

….

  1. Where the quarry operator proposes to replace the quarry management plan such replacement plan must comply with the following conditions:
  1. (i)
    the updated management plan is to include:

….

  •  Traffic Management Plan (truck access)

….

  1. In these conditions, “operator” means any person conducting quarrying activities on the land.”[12]
  1. [11]
    The Quarry Management Plan dated May 2016 and referred to in the inserted condition 8 remains in effect and relevantly provides, in Part 3.9, a Traffic Management Plan which relevantly includes the following:

3.9 Traffic Management Plan

 This Traffic Management Plan (TMP) primarily deals with vehicles engaged in product haulage from Kin Kin Quarry  however, other heavy vehicles that service the company’s quarries are included.

3.9.1 Rationale

 Due to the nature of a Quarry Operation, there will be additional traffic from haulage vehicles transporting the quarry product to customers in the surrounding region.  There will be minor additional traffic from site employees.

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

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 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 a haul route where the final destination of the product is delivered to the area shown in Diagram 3 - Dr Pages Road Haul Route – Market Service Areas. Other roads will then be used as required depending on the final destination of the product.

….

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 other 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.

….

3.9.9 Special Conditions

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:

  • 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 3km section of the Pomona Kin-Kin Road is 40 kmph.
  • Truck Drivers are not to overtake other vehicles.
  • 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 and specific projects designate this need.”[13]
  1. [12]
    The variation of the approval to include these conditions was pursuant to the powers of this Court under the Sustainable Planning Act 2009. However and pursuant to the transitional and validation provisions of the Planning Act 2016, it is relevantly provided that:

“286  Documents

  1. (1)
    This section applies to a document under the old Act that is in effect when the old Act is repealed.
  1. (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.
  1. (3)
    This Act applies to the document as if the document had been made under this Act.
  1. (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.

…..

  1. (7)
    In this section— document—

(a) includes—

…..

  1. (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); …..”[14]

The “Old Act” is defined in s 285(1) to mean the repealed Sustainable Planning Act 2009.

  1. [13]
    In this context, it may then be noted that the assessment processes which are provided for a development applications in the PA, authorise the imposition of “development conditions”, defined in Sch 2 as:

development condition means a condition that a development approval is subject to, including a condition—

  1. (a)
    the assessment manager imposes under section 60; or
  1. (b)
    directed to be imposed under section 56 or 95(1)(d); or
  1. (c)
    taken to have been imposed under section 64.

Note— 

Also see the Environmental Offsets Act 2014, section 16 which provides for deemed conditions on development approvals.”

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 Sch 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”.[15]

  1. [14]
    It is also convenient to note that in respect of both the prima facie case and balance of convenience considerations, the First Respondent understandably sought to place particular emphasis upon the use permitted by the approval and consequently its rights to conduct the quarry on the land and the affront presented to its economic interests by this application.  Material is presented in order to support the contention that the First Respondent has acted responsibly in respect of the conditions of approval and obligations placed on it under the Traffic Management Plan (“TMP”).  In particular, there is evidence that the First Respondent has more recently taken and/or reinforced action calculated to minimise the impacts of truck movements by:
    1. (a)
      the installation of a boom gate system limiting to just over five-minute intervals, heavy vehicle departures (less than 12 per hour maximum) from the land accessing Pomona-Kin Kin Road;[16]
    2. (b)
      appointment of a Transport Manager/Allocator to assist in minimising heavy vehicle movements during the period of operation of the school bus;[17]
    3. (c)
      engagement of external consultants to implement an online digital platform to, among other things, manage truck movements to and from the land;[18]
    4. (d)
      placement of signage at the exit of the land, identifying school bus times on the Pomona-Kin Kin Road and the requirement of contact with the school bus on UHF 40;[19]
    5. (e)
      the development of storage capacities at the First Respondent’s other sites to assist in the scheduling of truck movements and reduction in truck numbers during the school bus operation periods;[20] and
    6. (f)
      establishment of communication protocols for communication between the quarry trucks and any school bus.[21]

However, what is to be noted is that all of these measures are directed at what is discussed below as to the First Respondent’s position as to the interpretation of the condition and which is divergent to that propounded by the Applicant.

  1. [15]
    As will be noted in dealing with the issues relating to whether there is a prima facie case in respect of a development offence, as a precondition to any entitlement to relief, the First Respondent maintains that the requirement is to minimise, not cease all, movements during the designated hours of operation of the school bus. In this context, it is pointed out that the morning period of school bus operating hours coincides with the highest period of demand for delivery of quarry product.[22]
  2. [16]
    The First Respondent points out that the Court has a broad discretion as to whether or not to grant or refuse such injunctive relief,[23] and particularly when the effect of what is sought would be, at least for the interim, to restrict all truck movements within the periods of operation of the school bus and, which represents approximately one third of the permitted hours for truck movements in respect of the quarry, on a school day.
  3. [17]
    As was noted in Mudie v Gainriver Pty Ltd & Ors[24] albeit in reference to a situation of and authorities relating directly to enforcement proceedings in respect of unapproved development:

“[13] The application of similar statutory powers in New South Wales when work has been performed without necessary planning approval has been considered in Tynan v Meharg and in Warringah Shire Council v Sedevcic. The Court’s function in determining what is to be done in such cases is to perform a balancing exercise with a view to matters of both private and public interest. It is a discretionary power. Indeed, one of the principal submissions of Mr Lyons QC, who appeared for the Council and Gainriver in this matter, is that the discretion is a broad one and it cannot be shown that his Honour erred in law in arriving at the decision he did. Certain “guidelines for the exercise of discretion” were formulated by Kirby P in Sedevcic’s case, and it is enough to refer to pp 339-341 of that case and to pp 259- 260 of Tynan’s case as useful checklists of points that will often need consideration in such matters. Among potentially relevant matters is the aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed.

“Also relevant to the discretion is the ‘orderly enforcement’ of a ‘public duty’ to comply with the requirements of planning laws: see Sedevcic (at 339-340; 365-366). Another way of putting this is that there is a public interest in upholding the law and seeing that it is obeyed. As Kirby P said in Sedevcic (at 340; 365), Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy.”[25]

  1. [18]
    Apposite to the current situation and whilst necessary to note that a balancing exercise involving public and private interests may be required, is the particular notation of the public interest in the ensurance of compliance with planning law, as may be applied through conditions of relevant approvals. Here and despite what is recognised, in the materials, as the impetus of locally based concern and complaints as to the operation of the quarry and particularly the truck movement issue, the Applicant’s position is to be properly seen in the protection and enforcement of such public interest.
  2. [19]
    However, and if it is necessary to do so, this Court’s discretion would be exercised having regard to the circumstances of this case, which would necessarily commence with any determination of there being a prima facie case of entitlement to relief, including as to relevant contravention of the conditions of approval.  This would also extend to the nature of the relief sought.
  3. [20]
    If that position is reached, the First Respondent is critical of the Applicant’s position in seeking relief which would extend beyond any restriction of minimisation of truck movements during school bus operation periods and to restriction upon all and any such movements.  The further submission, that the granting of such relief would be beyond the power of the Court, pursuant to s 180 of the PA, is not supported by the decision in Gavin & Anor v Sunshine Coast Regional Council.[26]  However and to the extent that such an order might be seen as extending beyond direct enforcement of, or restraint, of non-compliance with the relevant condition of approval, that may not be expected to occur lightly or without some appropriate and necessary finding as to the aptness of such an order, to secure compliance with the condition and restraint of the First Respondent from committing or continuing to commit a development offence.

Prima facie case for relief

  1. [21]
    There are two key issues which emerge in respect of the determination of whether or not there is a prima facie case of the commission or prospective commission of a development offence:
    1. (a)
      First, there is substantial issue raised as to the interpretation or construction of the conditions said to be breached, as the relevant development offence; and
    2. (b)
      Secondly, there is substantial issue raised as to the evidential basis upon which it is contended that there is a prima facie case as to any such breach or offence.
  2. [22]
    Overarching the question is the emphasis which the First Respondent puts upon the requirement in s 180(3) of the PA, that the Court may make an enforcement order (interim or final)[27] if it:

“considers the development offence –

  1. (a)
    has been committed; or
  1. (b)
    will be committed unless the order is made.”

This is referable to the terms of s 180(2) which provide:

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

  1. (a)
    refrain from committing a development offence;
  1. (b)
    remedy the effect of a development offence in a stated way.”

Accordingly and whilst there is no issue that, as provided by s 164 of the PA, contravention of a condition in a development approval would be contravention of a development approval and an offence pursuant to that section,[28] the First Respondent contends that the nature and potential consequences of the substantive enforcement proceedings, would attract the principles discussed in cases such as Briginshaw v Briginshaw & Anor.[29] 

The construction issue

  1. [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 TMP[30].
  2. [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.[31]  It is further contended that in the construction of conditions of planning approvals:[32]
    1. (a)
      any ambiguity in the approved condition should be construed in a manner that places the least burden on the landowner,[33] and ambiguity in a development condition should be construed against the imposing authority;[34] and
    2. (b)
      any lack of certainty “is the responsibility of the applicant who formulated the conditions and, as such, the applicant should bear the consequences”.[35]
  3. [25]
    It is unnecessary to dwell upon the decisions which are relied upon for these broadly stated propositions or to consider the 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, very recently,[36] 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”.[37]  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”.[38]
  4. [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,[39] such as is set out in Zappala Family Co Pty Ltd v Brisbane City Council.[40] 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”.[41]
  5. [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”.[42]  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”:
    1. (a)
      allows for some deviation from the approved plan, with the extent of allowable deviation dependent on the relevant circumstances;[43] and
    2. (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.[44]
  6. [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.”[45]

  1. [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:
    1. (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”;[46]

  1. (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”;[47]

  1. (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. bus operating hours, road closures and other saliant pieces of traffic management, when relevant.”[48] (emphasis added); and

  1. (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”.[49]

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.[50]

  1. [30]
    In this context, it is to be noted that although described as “specific guidance” by the Applicant,[51] 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: …”[52]

Whist 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.

  1. [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.
  2. [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 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”.[53]
  3. [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.”[54]

 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.

  1. [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.”[55] 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”.
  2. [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 operation not “generally in accordance with” that part of the TMP, and the evidential basis upon which any such conclusion might be premised.

Evidential basis

  1. [36]
    The Applicant’s position is premised entirely upon records of relevant truck movements in a period from 28 January 2021 to 29 September 2021,[56] in order to demonstrate what is then summarised as follows:[57]

“[27] Mr Jordan-Williams was involved in the collection of data from the Austraffic camera placed at the intersection of Pomona Kin Kin Road and Sheppersons Lane from 25 January 2021 to 23 April 2021 and from 2 September 2021 to 29 September 2021. From that data, Mr Jordan-Williams supervised the preparation of a summary table of quarry truck movements during school bus hours, attached as Document 3 to MJW-2.16 Mr Holland analysed that data and drew the following conclusions:

  1. (a)
    There were 70 school days during the period the Austraffic camera was monitoring traffic.
  1. (b)
    On those school days, the average number of class 6-10 vehicles in Sheppersons Lane within school bus hours was 26 class 6-10 vehicle movements.
  1. (c)
    The average of the percentage of class 6-10 vehicles in school bus hours of the total class 6-10 vehicles over the whole day was 32%.

  [28] Consideration of Mr Jordan-Williams’ spreadsheet also shows that:

  1. (a)
    Of the 70 school days surveyed, on 7 of them (10%) the number of quarry trucks in school bus hours was 40% or more of the quarry trucks for that whole day.
  1. (b)
    Of the 70 school days surveyed, on 53 of them (76%) the number of quarry trucks in school bus hours was 30% or more of the quarry trucks for that whole day.”
  1. [37]
    It is then submitted that:[58]

“[29] The obligation to "minimise" requires a comparative exercise.

  [30] The first measure of comparison is to the volume of trucks at other times of the day. The school bus hours constitute four hours (6.30am to 9am and 3pm to 4.30pm) of 12 hours of permitted operation on weekdays. Therefore, the school bus hours are one-third or 33% of the hours of operation per day. To have an average of 32% of the quarry trucks in school bus hours shows no minimisation at all, with those trucks representing the proportion of quarry trucks one would expect if those hours were treated the same as all other hours in terms of scheduling of trucks.

  [31] A second measure of comparison is to the average weekday vehicle volumes in previous years. Mr Holland’s analysis found that between 2009 and 2016, the average weekday class 6-10 vehicle volumes was 10 vehicles per day. In 2017,2018 and 2019, the average weekday class 6-10 vehicle volumes was 20 vehicles per day.18 By that measure, the number of trucks in school bus hours now exceeds the average volume for the whole day from 2009 to 2019. That is strong evidence of a failure to minimise trucks during school bus hours since 2019.”

  1. [38]
    In the hearing of this application, the second measure was referred to as a “secondary point”, apparently in recognition of the yet to be determined issues as to the wider allegations made in the Originating Application, as to the intensification of the use of the quarry. As may be noted, the First Respondent’s submissions point out that a starting point in demonstration of a material change of use, on the basis of any increased intensity of use of the quarry, must depend on first demonstrating the intensity of use permitted under the approval.[59] The First Respondent further contends that “[o]n its proper construction, the development approval does not, expressly or by necessary implication, limit excavation area, the quantity of material that can be extracted and processed, or the number of trucks entering and departing the Premises to facilitate that use”.[60]
  2. [39]
    The Applicant, in this interim application, therefore sought to place emphasis on the first comparative exercise and then directed criticism at the responses of the First Respondent, in indication of actions described as “purportedly taken to minimise trucks in school bus hours”.[61] Although at risk of not doing full justice to the import of those criticisms, the general tenor is in challenging or contending for lack of explanation as to why more could not be done in avoidance of truck movements in the periods of operation of the school bus.
  3. [40]
    For the First Respondent, there is emphasis placed upon the onus of proof placed on the Applicant (including the implications as to the standard of proof) to prove an alleged contravention of condition in terms of mattes of degree rather than in reference to any precise or quantified criteria to adjudge compliance.
  4. [41]
    In such circumstances, much may depend upon a full assessment of the evidence with the benefit of cross-examination. It may be particularly noted that, at least, many of the criticisms that the Applicant seeks to make of the responses of the First Respondent must necessarily depend upon those being appropriately established by such cross-examination. Whilst such considerations may not prevent a finding of a prima facie case of past and indeed present contravention of the condition, the question is as to prima facie entitlement to relief. That is, an enforcement order which, because of the dynamic and ongoing nature of the issue, might be expected to be premised on need for restraint of an ongoing, in the sense of future, such contravention. But for present purposes, the particular difficulty extends beyond the question of degree involved in the phrase “seek to minimise truck movement by re-scheduling product deliveries from the site and discouraging unnecessary truck movements on the Kin Kin Pomona Road during these hours” and to the introduction of a further question of degree in the requirement to act “generally in accordance” with that obligation.

Balance of convenience

  1. [42]
    Given the constraints of this hearing for interim relief, there remains scope for fuller argument before the construction issues, which have been noted, are finalised. Further, what has been noted as to the senses in which any application of the condition in restriction of truck movements in the school bus operation periods, would depend upon matters of extent and degree, does not assist the task of assessing whether there is a prima facie case of entitlement to relief. As has been noted, much may depend upon an assessment of the evidence after and with the benefit of cross-examination. 
  2. [43]
    Moreover and even if such a prima facie entitlement to relief was discerned, there are reasons why the balance of convenience or appropriate exercise of discretion would not favour granting interim relief.
  3. [44]
    Those are not just concerned with any balance to be struck, as between the potential impact upon the First Respondent’s economic interests (without any undertaking as to damages) and the underlying concern of the Applicant in enforcement of the condition of approved use, particularly in respect of road safety in the school bus operation periods (notwithstanding the absence of past recorded traffic incidents).
  4. [45]
    As has been noted, the Applicant expressly seeks an exceptional form of relief, which in order to achieve restraint with the alleged non-compliance with the condition of approval, would restrict truck operations to none and beyond what may be viewed as the effect of that condition. As has been noted, whilst exceptional, such form of relief is within power and might be considered appropriate after a full hearing and assessment of the attitudes of the First Respondent and prospect of compliance with some other less restrictive order. Whilst the Applicant does correctly point out that the form of any relief remains a matter for the Court both now and after final hearing and also the absence of any other proposal from the First Respondent, pending any final hearing, on this interim hearing the First Respondent is entitled to point to the onus which the Applicant bears and the exceptional nature of the relief actually sought must be particularly noted.
  5. [46]
    The fact that the Applicant sought interim relief for only the limited period up to a review date in late January 2022, tends to cut both ways, in the sense of only effectively acting as a restriction on the First Respondent’s activities and economic interests for a limited number of school days before and after the Christmas vacation period. However, it would simply mean that even on an interim basis, that determination would effectively be postponed until that date, pending the final hearing of the dispute. 
  6. [47]
    Accordingly and in the circumstances and on balance, it should be concluded that an appropriate exercise of the discretion of the Court is to refuse the application for relief on an interim basis and to look to offer the parties the earliest available hearing dates for final determination of the matter.

Footnotes

[1]  T 1-9.25 – 1-10.41.

[2]  (2006) 227 CLR 57, at [65].

[3]  Affidavit of M T Cordwell, filed 3/11/21.

[4]  Ibid, at [2], [4]-[6].

[5]  Ibid. at [8]-[10].

[6]  Ibid, at [11].

[7]  See Originating Application, filed 17/9/21, at [22] and [30]-[35].

[8]  Ibid, at [27].

[9]  CEO Certificate of Brett De Chastel, filed 6/10/20 (CEO Certificate), at pp 27-30.

[10]  Ibid, at pp 39-42

[11]  Ibid, at p 131.

[12]  Ibid, at pp 340-341 and cf: compare pp 329-332.

[13]  CEO Certificate, at pp 396 – 400.

[14]  S 286 Planning Act 2016.

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

[16]  Affidavit of M T Cordwell, filed 3/11/21, at [21]-[22].

[17]  Ibid at [23]-[28] and see also Affidavit of S L Palmer, filed 3/11/21.

[18]  Ibid at [29]-[32].

[19]  Ibid at [33]-[35].

[20]  Ibid at [36]-[37].

[21]  Ibid at [38]-[39].

[22]  T 1-42.25-36.                                 

[23]  Reference is made to Bon Accord Pty Ltd v Brisbane City Council & Ors [2010] QPELR 23, at [173] and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, as adopted in Mudie v Gainriver Pty Ltd & Ors [2002] 2 Qd R 53.

[24]  [2002] 2 Qd R 53 at [13].

[25]  Citations are omitted but the quoted passage is from Tynan v Meharg (1998) 101 LGERA 255, at [259]-[260].

[26]  [2021] QCA 217.

[27]  See s 180(4) of the PA.

[28]  Which might be the subject of prosecution as a criminal offence, pursuant to s 174 of the PA.

[29]  (1938) 60 CLR 336; First Respondent’s written submissions, at [14]. See also: Rejfek v McElroy (1965) 112 CLR 517 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. However and whilst it is to be noted that in s 180 of the PA, an “interim enforcement order” is defined as being a form of enforcement order but also treated as a separate concept after it is defined in ss (4), there was, as has been noted, an acceptance of the application of the principles noted above as to applications for interim injunctive relief and effectively, therefore, acceptance of the application of such principles as to the establishment of a prima facie case as to the relevant development offence in terms what the Court must “consider” established pursuant to ss (3).

[30]  CEO Certificate, at p 399.

[31]  Respondent’s written submissions, at [37].

[32]  Ibid, at [38].

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

[34]  Reference is made to Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334, at [16] and Hawkins & Izzard v Permarig Pty Ltd & Anor [2001] QPELR 414, at 416.

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

[36]  On 10 November 2020; see: Sunland Group Limited & Anor v Gold Coast City Council [2021] HCA 35.

[37]  Ibid, at [58] and [1].

[38]  Ibid, at [21].

[39]  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.

[40]  (2014) 201 LGERA 82, at [52]-[58].

[41]  Ibid, at [55].

[42]  See the Notice of Decision attached to the CEO Certificate at 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”.

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

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

[45]  CEO Certificate, at p 399.

[46]  CEO Certificate, at p 396.

[47]  Ibid.

[48]  Ibid, at p 397.

[49]  Ibid.

[50]  T 1-59.37 – 1-60.25 and Affidavit of H L Riggs, filed 9/11/20, at HLR-1, p 2.

[51]  Applicant’s written submissions, at [23].

[52]  CEO Certificate, at p 399.

[53] See: Macquarie Dictionary, Fifth Edition.

[54]  CEO Certificate, at p 396.

[55]  Ibid, at p 399.

[56]   As summarised in a schedule attached to the Affidavit of M R Jordan-Williams, filed 6/10/21, as Ex. MJW2, Document 3: AB 705. Separately marked MFI F is a highlighted copy, to assist in understanding the contended effect of the summarised data.

[57]  Applicant’s written submissions, at [27]-[28].

[58]  Ibid, at [29]-[31].

[59]  Respondents written submissions, at [21].

[60]  Ibid, at [26].

[61]  Ibid, at [32]-[35].

Close

Editorial Notes

  • Published Case Name:

    Noosa Council v Cordwell Resources Pty Ltd & Ors

  • Shortened Case Name:

    Noosa Council v Cordwell Resources Pty Ltd

  • MNC:

    [2021] QPEC 67

  • Court:

    QPEC

  • Judge(s):

    Long SC, DCJ

  • Date:

    01 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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