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

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

PLANNING AND 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)

FILE NO:

D155 of 2021

PROCEEDING:

Originating Application

DELIVERED ON:

29 November 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

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

Introduction4

The Application7

Some applicable principles15

The issue as to Material Change of Use of Premises21

The offences alleged to have occurred under s 16446

Quarry trucks hauling uncovered loads52

Quarry trucks operated outside of operating hours60

Quarry trucks travelling in convoy, or with less than 5 minutes spacing67

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

Conclusions104

Development offences pursuant to s 164?104

Material change of use?106

Discretionary considerations109

Introduction

  1. [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. [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:
  1. “(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—
  1. attaches to the premises; and
  2. 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:

  1. “(2)
    An enforcement order is an order that requires a person to do either or both of the following—
  1. refrain from committing a development offence;
  2. 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—

  1. suffered loss of income; or
  2. suffered a reduction in the value of, or damage to, property; or
  1. incurred expenses to replace or repair property or prevent or minimise, or attempt to prevent or minimise, the loss, reduction or damage.
  1. The P&E Court may make an enforcement order if the court considers the development offence—
    1. (a)
      has been committed; or
    1. (b)
      will be committed unless the order is made.”
  1. [3]
    The Land is:
    1. located at the end of Sheppersons Lane, approximately 2.5km south-east of the township of Kin Kin;
    2. 60.02ha in size;
    3. 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
    4. 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:
      1. (i)
        extracting or processing extractive resources; and
      1. (ii)
        any related activities including for example transporting the resources to market.”[4]
  2. [4]
    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.
    1. 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]
  1. 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.
  2. 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.
  3. 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:
  1. “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.

TheApplication

  1. [5]
    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

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.
  • 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. [6]
    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 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.

…..

  1. In this section— document—
    1. (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); ….”

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. [7]
    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:

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

  1. 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);
  2. A substantial number of Quarry Trucks to be operated outside of the hours of operations in the Quarry Management Plan;
  3. Quarry trucks to travel in convoy, or with less than five minutes spacing between trucks; and
  4. Quarry Trucks to haul uncovered loads.”

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

  1. substantial amenity impacts on residents of the local community; and
  2. 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. [8]
    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:
  1. “30
    Since the First Respondent took over operations of the Quarry, there has been:
  1. a material increase in the number of Quarry Truck movements per day; and
  2. a material increase in the traffic and town planning impacts resulting from the Quarry Truck movements to residents in the local community.
  1. 31
    The Quarry Truck movements are a component of the extractive industry use occurring on the Premises.
  1. 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.
  1. 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. 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.
  1. 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. [9]
    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:

  1. limit the maximum total number of Quarry Truck movements per day to a number which will not cause any unacceptable traffic or amenity impacts;
  2. 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;
  3. 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;
  4. cause Quarry Truck movements to cease on Pomona Kin Kin Road during School Hours;
  5. prevent any Quarry Trucks leaving the Premises with an uncovered load;
  6. prevent Quarry Trucks arriving at the Premises less than 5 minutes 300 metres apart or travelling to the quarry in a convoy;
  7. 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:

  1. the number of Quarry Truck movements per day;
  1. Quarry Truck movements outside operating hours;
  2. Quarry Truck movements during School Hours;
  3. Quarry Trucks leaving the premises with uncovered loads; and
  4. Quarry Trucks convoying on Pomona Kin Kin Road.”[17]
  1. [10]
    Ultimately, the Applicant contends that the questions to be answered by the Court are:
    1. 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:
      1. (i)
        Trucks in school bus hours;
      1. (ii)
        Trucks outside of operating hours;
      1. (iii)
        Trucks travelling in convoy;
      1. (iv)
        Trucks with uncovered loads;
      1. and to what extent?
    2. 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?
    3. 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?
    4. Should enforcement orders be granted in the exercise of discretion?
  2. [11]
    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]

Some applicable principles

  1. [12]
    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. [13]
    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 Briginshaw[21], as further discussed in Rejfek v McElroy[22] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[23]are 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 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. [14]
    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

  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[26].
  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.[27] It is further contended that in the construction of conditions of planning approvals:[28]
    1. 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
    2. any lack of certainty “is the responsibility of the Applicant who formulated the conditions and, as such, the Applicant should bear the consequences”.[31]
  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, 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]
  1. [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]
  2. [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”:
    1. allows for some deviation from the approved plan, with the extent of allowable deviation dependent on the relevant circumstances;[39] and
  1. 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]
  1. [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]

  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. 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]

  1. 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]

  1. 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.”[44] (emphasis added); and

  1. 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]

  1. [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.

  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”.[49]
  1. [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.

  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.”[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”.
  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.”
  1. [15]
    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. [16]
    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.
  1. [17]
    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.
  2. [18]
    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 lawfuluses, 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—
    1. (a)
      stop the use from continuing; or
    1. (b)
      further regulate the use; or;
    1. (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—
    1. (a)
      stop or further regulate the development; or
    1. (b)
      otherwise affect the approval to any extent to which the approval remains in effect.”
  1. [19]
    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):
    1. “development” is defined as meaning, in part, “making a material change of use of premises”. and
    2. 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—

  1. the start of a new use of the premises;
  2. the re-establishment on the premises of a use that has been abandoned;
  3. 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 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. [20]
    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:
    1. by section 1.3.1, the definition of “material change of use of premises” in Schedule 2 of the PA, is adopted;[53]
    2. the use of the Quarry is discernibly within the definition of the use: “Extractive Industry”, in that scheme;[54] and
    3. 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. [21]
    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. [22]
    It is the submission of the Applicant that this contention is to be determined pursuant to the following applicable principles:
  1. “(a)
    There must be a material change of use from the lawful use (here, what was approved under the 2016 Approval). That requires a comparison of what was approved to what is occurring or will occur.
  1. 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.
  2. 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.
  3. The question should be considered by reference to the planning consequences of the change in intensity of use, including:
    1. (i)
      The intentions of the contemporary planning instruments;
    1. (ii)
      Impacts on others; and
    1. (iii)
      Burden of services local authority is to supply.”
  1. [23]
    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. [24]
    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. [25]
    The Applicant points to the statement of purpose in s 3(1) of the PA, that:

“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—

  1. the protection of ecological processes and natural systems at local, regional, State, and wider levels; and
  2. economic development; and
  3. 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. [26]
    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. [27]
    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 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 analysis is in my judgment not adequate for the purposes of planning law. For those purposes one must go on to ask: has anything changed on the land which is capable of being material from an environmental point of view? Once one asks that question, one finds that the sound emanating from the land by reason of the presence of the massed colliery bands is potentially highly material as seen through the eyes of the patients in the neighbouring hospital. They might well say that I have made a material change in the use of my land. They would regard the presence of the protective matting as being, like the line in The Importance of Being Ernest, immaterial.” (underlining added by the Applicant).[62]

  1. [28]
    Further particular reliance is placed on observations made in two decisions of this Court in 2001, each in reference to the provisions of the Integrated Planning Act 1997. In Maroochy Shire Council v Barns,[63] it was observed that:
  1. “[43]
    In IPA a material change of use in the context of this matter is a material change in the intensity of the use of the land for forestry, ie. the planting, growing or harvesting of trees as a commercial venture or a material change in the scale of the use[64] of the land for forestry, ie. the planting, growing or harvesting of trees as a commercial venture.
  1. [44]
    As appears from Norman v. Gosford Shire Council (1975) 132 CLR 83, an expansion of the scale or intensity of a use was held not to alter the nature of the use.
  2. [45]
    IPA provided for a material change in the intensity or scale of a use to amount to a material change of use. Whilst providing for the continuity of existing lawful uses IPA evidently intended to include a material change in the scale or intensity of a use as triggering a requirement for assessment of the changed use under IPA.
  3. [46]
    The other descriptions of a material change of use are the start of a new use of premises and the reestablishment of a use that has been abandoned. The description in question contemplates the same use intensified in a material way or the scale of which has changed in a material way.
  4. [47]
    The use of “material” to describe when change in the intensity or scale of a use, will amount to a material change of use, appears to involve a question of fact and degree. See also Herston Kelvin Grove Residents Action Group Inc v. Brisbane City Council & Ors, P&E Court Brisbane 9/3/01, Newton DCJ; Martin & Ors v.Whitsunday Shire Council & Ors, P&E Court Townsville 7/3/01, Wall QC, DCJ. Not any change in the scale or intensity of a use will do. It must be a material change and I think the materiality must be informed from IPA and relevant planning instruments. (emphasis added by the Applicant)”
  1. [29]
    Further notation is made of the following observations of the Court of Appeal, notwithstanding the identification of an inherent problem of that appeal being premature, because no appropriate enforcement order had yet been determined and made. In Barnes v Maroochy SC,[65] after notation of the necessity for leave to appeal only upon an error of law or jurisdiction, it was observed:

“As the reasons of his Honour demonstrate there was a deal of evidence which, on the face of it, could justify such a conclusion. There are two salient points which make a "no evidence" submission unarguable. Firstly, there is the fact that on the relevant occasion, September 2000, the Applicant doubled the intensity of any prior forestry use of the land. Secondly, that operation required the felling and removal from the land of all timber that was commercially viable with the exception, of course, of a buffer area. This involved the removal of all species of trees of eight inch or greater diameter. Unlike previous exercises there was no provision for regeneration of the prime species on the land, namely Blackbutt.

There was evidence to permit such findings to be made notwithstanding that there was contrary evidence. These matters are capable of being regarded as significant. They enable the new activity to be seen as materially different from the controlled forestry exercises that had occurred previously. Accordingly, the lawful use that the Applicant sought to demonstrate was shown to have had its intensity substantially increased.

The matters to which I have referred were capable of amounting to a "material change in the intensity or scale of use of the premises" under section 1.3.5 of the Integrated Planning Act. In turn that satisfied the requirement of "material change of use of premises" in section 1.3.2. That defeats the argument relied on by the Applicant that his usage in September 2000 was a continuation of an existing lawful use of the land.

….

Counsel on this application further sought to advance an argument that the use of land for forestry purposes raises special factors relevant to whether such use is or is not materially increased. This is said to arise from the intermittent and fluctuating nature of such activities. In my

view such issues are themselves factual issues. His Honour was conscious of such matters and made mention of them in paragraph 39 of his reasons.”

  1. [30]
    Specific reference is also made to one of the authorities referred to in the primary decision in Maroochy SC v Barns. In Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council,[66] there was an application for declaration that the use of premises at Herston as living accommodation for mentally ill and disabled persons and immigrants, was a material change of use from the previous use as a residential nursing home, as a basis for injunction restraining that use until a development permit for the development was obtained. On that issue, it was observed:

“It must always be a matter of degree in attempting to assess the overall impact of the scale and intensity of the current use compared to the previous use and whether there has been a “material change”. The evidence adduced on this application satisfies me that while the intensity and scale of operation has somewhat intensified in relation to mobility of residents and their contact with the community, there has been a corresponding decrease in intensity and scale of operation in relation to noise from visiting vehicles including ambulances, staff and visitors. There is some evidence which would tend to support a conclusion that the intensification arising from increased contact with the community by residents may have created a greater perception of intrusion among some members of the local community. Whilst I accept that fear and perception are valid concerns of amenity, in my view the evidence does not establish that these concerns are of such significance as to support a finding that there has been a material change of use. IPA requires an impact-based assessment and on the evidence adduced during the hearing of this application, I have formed the view that there has not been established a significant change of impact. I conclude, therefore, that under the criteria set down by IPA, there has been no material change of use.”[67]

  1. [31]
    It is common ground that the intensity and scale of the approved use of the Quarry is to be determined by reference to key sections of the QMP, which it must be operated generally in accordance with. The Applicant specifically draws attention to the acknowledgements in the QMP that:
    1. Reserves have been estimated at 24.6 million tonnes;
    2. “A quarry life in excess of 30 years is envisaged”
  1. “Over the first few years of operation from the approval of this document…” quarry production was expected to be in the range of 200,000 tonnes per annum to 300,000 tonnes per annum. “Increases beyond this will be dependent on market needs and availability of quarry materials.”
  2. The approved Environmentally Relevant Activities approval for the quarry allows production up to 1,000,000 tonnes per annum.[68]
  1. [32]
    The following is also noted:[69]
    1. In the “Introduction” to the QMP (Section 1), the Site Details (Section 1.3) include the zoning of the site under the Noosa Plan (Rural) and overlays that apply, with the land use of the surrounding area stated as grazing and notation that the nearest residence is 800m north of the site.[70]
    2. Section 1.4 of the QMP is titled “Scope and Purpose of the Quarry Management Plan”, stating that it had been prepared to “reflect current operations and future planning for the development of the quarry”.
    3. Section 1.5 of the QMP titled “Quarry Planning & Development is Ongoing” contains the following:

“Quarry planning, development and scheduling are ongoing activities and rely on feedback from actual operations, in forward planning. It is important to note that quarrying (like mining), occurs progressively over time (along with results of exploration drilling) and uses the information and experience gained from its actual operations, in the detailed planning of the development of its future stages.

For this reason, the quarry development is ultimately driven by risk management of safety, environmental and operational factors and market demand. These factors can change the level and nature of activity, even the quarrying method, over the life of a quarry. Accordingly over time, the quarry development and site-based management plans need to evolve and change to reflect real world, real time, ground conditions and operational issues. When facts and circumstances change, so too must operational and management practices.”[71]

  1. Section 2 of the QMP contains the Quarry Development Plan and sets out the expectations of how the quarry will be developed over time. Section 2.1 (titled “Project Planning”), includes the following:

“Development planning has involved consideration of a range of individual and combined environmental and operational constraints to evolve a preferred option for site development.

The principal constraints considered are stormwater quality, visibility, safety, noise, dust, ground vibration, airblast overpressure, rock quality, engineering constraints and resource utilisation.”[72]

  1. Section 2.4.3 (titled “Production Levels”) states:

“Over the first few years of operation from the approval of this document, quarry production is expected to be in the range of 200,000 tonnes per annum (tpa) to 300,000 tpa. Increases beyond this will be dependent on market needs and of quarry materials. The approved Environmental Relevant Activities (ERAs) for the quarry provide for production of up to 1,000,000 tpa.

Production levels are expected to build over a period of several years as the quarry establishes itself. Production in the range of several hundred thousand tonnes per year is expected after an initial establishment period for quarry's products, which can take several years.

The initial quarry development phase will utilise mobile crushing plant until the quarry has established itself in the local market, and demand for the product is sufficient to justify a fixed processing plant of appropriate capacity.”[73]

  1. Section 2.5 (titled “Product Stockpiling and Dispatch”). It notes that stockpiling will be necessary to meet customer requirements, scheduling and quality control. Stockpiles are to be arranged to provide maximum benefit for noise attenuation. Pomona Kin Kin Road is stated to be the primary haul route. Drivers are to comply with a driver’s code, which is said to include driver behaviour and attitudes on and off site. There will be a ‘no tarp no load’ policy with all loads, except large rock boulders, which are to be covered.[74]
  1. [33]
    Some particular reference is also made to Section 3 of the QMP, as the “Site Based Management Plan”, stated to be:

“a working/management document which links the potential environmental impacts identified in various environmental studies with commitments and measures to safeguard the environment. It is the principal management tool for guiding environmental management at the quarry.”[75]

The principal objectives of the Plan are noted to include:

  • Protect the general amenity of the Site and surrounding area both during and subsequent to extractive operations.
  • Protect the acoustic environment at surrounding residences and to minimise the likelihood of complaint.
  • Protect air quality of the locality and to minimise the likelihood of complaint.
  • Foster good relationships and co-operation with the local community.
  • Confirm measures to safeguard the environment are effective.[76]

This Plan is also noted to include a number of management plans to deal with

“particular identified significant issues for the Site”.[77] Specific reference is then made to the following:[78]

  1. In Section 3.2, “Environmental Impact Identification and Assessment”, environmental impacts ae identified in a table. Among the relevant issues are noise, air quality, transport, visual amenity and social and economic factors. Among the activities are raw material hauling and product hauling. The equipment identified includes haul trucks and produce delivery trucks. Product hauling is identified as a “significant issue” for the issues of noise, air quality, water quality, transport and social and economic factors.[79]
  2. Section 3.3.4 identifies that the operations at the quarry will seek to undergo continuous improvement including by recording, investigating and learning from environmental incidents and near misses and engage with stakeholders, customers and the community to “ensure a timely response to shifting attitudes and expectations”, with offsite traffic incidents specifically identified as a potential emergency and environmental incident.[80]
  1. Sections 3.5 to 3.15 of the QMP include the individual environmental management plans, with product delivery by haul trucks identified as an issue in the following plans:
    1. (i)
      3.5 Noise Management Plan, dealing with noise from product delivery trucks;[81]
    1. (ii)
      3.7 Air Quality Management Plan, dealing with dust control measures for product stockpiling and despatch;[82]
    1. (iii)
      3.9 Traffic Management Plan (“TMP”), which includes, in addition to those parts that have been set out above regarding alleged breaches of the QMP:[83]
  1. (I)
    Section 3.9.1, which identifies the principal objective of the TMP as being to:I

“manage the impact of haulage vehicles on the local roads and community”;[84]

  1. (II)
    Section 3.9.2, which identifies issues/aspects/impacts as including safety, noise and vibration, dust, product spillage and increased road maintenance requirements;[85]
  1. (III)
    Section 3.9.3, which identifies the performance target for the quarry as:

“minimise traffic-related community complaints and have no incidents or accidents involved 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”;[86] and

  1. (IV)
    “Management Procedures and Practice” in section 3.9.5 and “Special Conditions” in section 3.9.9, both of which deal with mitigating the impact of haul trucks in respect of noise, dust, and safety concerns.
  1. 3.11 Ecological Rehabilitation Plan, which identifies offsite truck movements as an activity which may cause ecological and land degradation;[87]
  2. 3.12 Community Relations Management Plan, which includes the following:
    1. (I)
      Section 3.12.1, which identifies that the quarry is located in a rural community and that the operator has obligations to meet and discuss issues and concerns raised by surrounding land users. The objective is to foster good relationships and co-operation with the local community.
    1. (II)
      Section 3.12.2, which identifies that the local community has an interest in amenity and environmental values being protected, with vehicle movements on and off the site (noise, dust, water quality and public safety) identified as a quarry activity that may be of interest to the local community.
    1. (III)
      Section 3.12.3, which states the performance target is to prevent repeated complaints.[88]
  1. [34]
    Attention is also drawn to Appendix 5 to the QMP, the Road Transport Protocol,[89] in that Section 1.3.1, titled “Routine Hauling”, states:

“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…”[90]

  1. [35]
    In terms of the contemporary planning intent disclosed in the Noosa Plan 2000, in respect of the situation of the Land in the Rural Zone, the Applicant draws attention to some particular aspects of that planning scheme, in identification of contemporary requirements addressed to similarly addressed impacts or potential impacts of the operation of this Quarry.[91] The uncontroversial contention is that the extracts to which reference is made demonstrate that “… the current scheme, while more stringent in language , protects the same values as the 2016 Approval: safety amenity, visual amenity, dust, odour and environmental values”,[92] in the context of the also uncontroversial evidence of the town planner called by the Applicant, Mr Buckley, to the effect that:

“… the rural environment of the quarry is “made up of small and larger working farms, small contained villages, and a measurable degree of rural-residential living.” He notes that despite the activity and population in Pomona, “the character of the area is of a ‘green’ well- treed landscape with semi-enclosed roads and a quiet, low-key amenity.”[93]

It is unnecessary to set out, in any detail, those extracts of the contemporary planning scheme, as the effective conclusion in reference to them, that the impacts and potential impacts of the operation of the Quarry as addressed by the 2016 Approval remain as matters of concern in that planning scheme and as matters which would need to be addressed in the event that there was necessity to make application for a material change of use of the Land, was not put in issue and may be accepted.

  1. [36]
    This conclusion may provide some consistent context for the Applicant’s contentions, but it does not itself serve to advance any contention of material change of use of the Land. As was contended for the First Respondent, [94] it is not a matter for this Court to now seek to effectively conduct any assessment under the contemporary planning scheme in respect of the First Respondent’s use of the Land or reach any conclusion as to whether or not that would or might be approved on the existing terms. Furthermore, the question as to whether or not the operations are in significant conflict with the intent for the development at the site reflected in the Noosa Plan 2020 is immaterial, provided they are compliant with the terms of the Approval, because, as the First Respondent submits,[95] the use being regulated by the Approval continues to have effect according to its terms and conditions, even if the terms and conditions could not be imposed under this current planning regime under the Planning Act.
  2. [37]
    The Applicant’s submission appropriately acknowledges that the current approval of the First Respondent’s use of the Land, through the QMP, does not include a quantitative limit on the amount of product which can be extracted from the quarry each year, nor does it provide specific quantities that are expected to be extracted (except for stating an expectation for the first few years), but rather notes an expectation of the amount of product to be extracted to change over time, as may be influenced by:
  1. “(i)
    Market demand;
  1. Understanding of the resource; and
  2. Environmental and operational constraints including the principal constraints of “stormwater quality, visibility, safety, noise, dust, ground vibration, airblast overpressure, rock quality, engineering constraints and resource utilisation”.[96]
  1. [38]
    There is no dispute that since the First Respondent took over the operations of the Quarry, the production or output has increased. Although and as contended for the Applicant, that it not reflected in any quantitative evidence presented by the First Respondent, its director and operations manager, Mr Martin Cordwell, did estimate a quantity of 300,000 tonnes in their second year of operation, from May 2020 to May 2021. It is also to be noted that despite any evidence as to the production of the Quarry before it was taken over by the First Respondent, there is evidence from Mr Cordwell that Nielsens were undertaking “campaign crushing” which would sometimes result in inability to service Cordwell’s requests for its concrete batching plant and that the Quarry would run out of product before the next campaign began and that the First Respondent had spent “upwards of $10 million” on machinery “that obviously improved our capabilities to be able to produce the material”.[97]
  2. [39]
    The Applicant is critical of Mr Cordwell’s evidence in otherwise pointing to the limit of 1 million tonnes per annum (“tpa”), in that its case is that the constraints of the approval in addressing impacts and potential impacts of the use necessarily limits the approved output.
  3. [40]
    In terms of establishing an increase in use, the Applicant particularly relies upon the effect of the evidence of a traffic engineer, Mr Holland, in relation to retrieved data from DTMR in respect of vehicle tube counts on the Pomona Kin Kin Road, for a 14 day period in 2016, and similar later evidence collected by the Applicant, to substantiate the indicative estimate provided by Mr Cordwell.[98] Notwithstanding some criticism directed at a lack of precision in identification of truck movements related to the use of the Quarry and the size of individual trucks,[99] the First Respondent does not seek to cavil with the Applicant’s reliance upon this evidence in pointing to a production level or output of about 290,000 tpa.[100] It may be noted that for the Applicant this was in comparison to the estimates of 40,000 tpa from 2009 to 2016, on the basis of an estimate of 10 vehicles per day in each direction, and 75,000 tpa from 2017 to 2019, on the estimate of 20 vehicles per day in each direction, in each case adopting an estimate of 30 tonnes per truck over 250 days per year.[101]
  1. [41]
    The First Respondent’s response is particularly directed at the approval under which it seeks to lawfully operate the Quarry and what is said to be the failure of the Applicant to:

“ … identify what it says the permitted baseline intensity or scale of the Extractive Industry use authorised by the Development Approval is and, therefore, the baseline beyond which any intensification of the use can be said to unlawful.” [102]

It is contended that the calculated number of Quarry Truck movements in representing a throughput or production level of about 290,000 tpa plainly remains within the range of the levels initially contemplated or intended by the QMP “[o]ver the first few years of operation” before a ramp up to full scale production. Reference is particularly made to the following in the QMP (with emphasis added by bolding):[103]

  1. The Report Summary, which states:

“Reserves have been estimated at 21.0 million tonnes (Mt) of Slightly Weathered to Unweathered Latite (Andesite), with another 3.6Mt of Distinctly Weathered and Altered Latite. Overburden consists of extremely weathered latite and sandstone. A quarry life in excess of 30 years is envisaged.

Over the first few years of operation from the approval of this document, quarry production is expected to be in the range of 200,000 tonnes per annum (tpa) to 300,000 tpa. Increases beyond this will be dependent on market needs and availability of quarry materials. The approved Environmental Relevant Activities (ERAs) for the quarry provide for production of up to 1,000,000 tpa;[104] and

  1. The following contents of Section 1, headed “Introduction”
    1. (i)
      “1.2 Background”, which notes:

“Reserves have been estimated at 21.0 million tonnes (Mt) of Slightly Weathered to Unweathered Latite (Andesite), with another 3.6Mt of Distinctly Weathered and Altered Latite. Overburden consists of extremely weathered latite and sandstone. A quarry life in excess of 30 years is envisaged.

The quarry has been identified as a Key Resource Area (KRA 57) under the State Planning Policy therefore constituting a resource of State and/or regional significance.

…

Rock Resources: Resources are sufficient for more than 30 yrs of Quarry Life.”;[105]

  1. “1.4 Scope and Purpose of the Quarry management Plan”, which provides:

“This Quarry Management Plan (QMP) has been prepared as an update to the previously approved QMP to reflect current operations and future planning for the development of the quarry.’;[106]

  1. “1.5 Quarry Planning & Development is Ongoing”, which should be included in full (with retention of the First Respondent’s emphasis):

“… the quarry development is ultimately driven by risk management of safety, environmental and operational factors and market demand. These factors can change the level and nature of activity, even the quarrying method, over the life of a quarry. Accordingly, over time, the quarry development and site-based management plans need to evolve and change to reflect real world, real time, ground conditions and operational issues. When facts and circumstances change, so too must operational and management practices.

Because of economic cycles, during the life of a quarry there may be several boom periods as well as other periods of lower activity, and the quarry must be developed and managed according to these cycles.”[107]

  1. [42]
    Particular emphasis is placed on Section 2.4.3 of the QMP,[108] as it expressly deals with expected “production levels” from “extractive operations” under the QMP and as part of the 2016 Approval of the use of the Land for Extractive Industry. First it is contended that the failure of the Council to demonstrate any production level beyond what is noted as the expected range of production “over the first few years of operation from the approval of the [QMP]”, “is fatal to its application and the allegation that there has been a material intensification of the use not expressly authorised under the Development Approval”.[109] As was a feature of the evidence of Mr Cordwell, attention is drawn to the acknowledgement of expected increases thereafter, “dependent on market needs and availability of quarry materials”, in conjunction with notation of the Environmental Relevant Activities approval “ … up to 1,000,000 tpa”. As has been noted, Section 2.4.3 of the QMP includes an acknowledgement that:

“Production levels are expected to build over a period of several years as the quarry establishes itself. Production in the range of several hundred thousand tonnes per year is expected after an initial establishment period for quarry's products, which can take several years.”

  1. [43]
    Largely on this basis, the First Respondent contends that the Applicant’s contention that non-compliance with the terms of the QMP is evidence of a material intensification of use, ought to be dismissed and seeks to rely upon the evidence of Mr Reynolds in support of such a conclusion.[110] In contrast, the Applicant seeks reliance be placed on the contradictory evidence of Mr Buckley.[111] There is nothing to be particularly gained by examination of these expressions of opinion, as the issue is a legal one, including as to the interpretation or construction of the 2016 Approval and therefore for the Court.
  2. [44]
    The First Respondent contends that the 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 the use permitted under the approval. As already noted above,[112] this is consistent with the submission of the Applicant and necessarily to be accepted. From that premise, the First Respondent’s submissions then proceed in criticism of the Applicant’s approach particularly in their following submission that:

“… the Court would find the approval does not authorise extraction up to 1,000,000 tonnes per annum, but rather a lower number depending on the operators’ ability to control adverse environmental and amenity impacts.” [113]

It is contended that “[w]hat the lower number is, or might be, is not articulated”. And three reasons are proffered for rejection of what is described as:

“…this failure to articulate any quantitative or measurable limit against which intensification might properly be assessed, deferring to some nebulous qualitative concept as to a particular operator’s ability to control adverse environmental and amenity impacts.”

Those reasons may be summarized as follows:

  1. First, in noting that a development approval has an enduring function, attaching as it does to the land and enduring for the benefit of subsequent owners and occupiers, such a nebulous concept is contrary to the public interest, providing no certainty to soundly inform any rights enjoyable under the terms of an approval or investment decisions as to value or any potential return on commercial development under the approval. Further that a party with the benefit of an approval ought to be afforded some certainty as to what rights might be exercised thereunder, otherwise the equal and orderly enforcement of planning law would be undermined.
  2. Secondly, an operator’s ability to control adverse environmental and amenity impacts consistent with the terms of an approval is a matter for compliance. With there being available regulatory devices to local authorities to address issues of non-compliance.
  3. Thirdly, the submission lacks practical efficacy; a particular operator’s ability to control adverse environmental impacts and amenity impacts under a development approval is dependent upon a variety of factors which may vary over time, including technological changes (availability and ability to implement), private and public economic drivers (funding and availability of funding), physical constraints and the ability to practically implement mitigative measures. To its logical conclusion, the Council submits that the rate of extraction which might be realised under the extant approval could vary over time and between operators, dependant on their ability to control adverse environmental and amenity impacts.[114]
  1. These submissions may be noted as made in the context of the earlier assertion that:
  1. “Upon its proper construction, the Development Approval (including the QMP incorporated by Condition 8) sets no limit on the quantity of material that can be extracted and produced or the number of truck movements that may be undertaken to facilitate the use. It does not either expressly or by necessary implication limit the excavation area or the quantity of material extracted and processed or the number of trucks entering and departing from the Premises.”[115]
  1. [45]
    Earlier and in support of these contentions, the First Respondent referred to cases in support of propositions as to a “general rule that a use should be construed broadly” and “not in an overly narrow way, in an attempt to confine the user to a precise activity”.[116] That included reference to the decisions in Bucknell v Townsville City Council[117] and Transpacific Industries Group v Ipswich City Council,[118] each of which serve to exemplify the legal issue involved in the construction of the approval granted in 2016 (including the undisputed incorporation of the QMP), including as to what may be thereby implied rather than expressly stated.[119]
  2. [46]
    Here that devolves to a question as to whether there are necessarily restrictions as to the extent of the approved use, despite the stated anticipated levels of production, because of the conditions otherwise placed upon the ability of the operator of the Quarry to transport that output to market.
  3. [47]
    That determination of the extent of the use approved depends upon the construction of this approval, there is nothing to be gained by reference to the particular circumstances of the other cases and the construction of the different approvals there considered. That approach is consistent with not only these authorities to which the First Respondent refers but also those earlier noted,[120] as relied upon by the Applicant in respect of how a material change of use of premises may be established as a matter of fact and degree.[121] In that regard, the written submission of the First Respondent at [77], that “the question of whether a material change of use has occurred is a question of law” cannot be entirely accepted. It may depend upon a legal determination as to the construction or effect of the approval and therefore the extent of the use which is approved and therefore lawful, but the determination as to whether it is proven that that there has been or will be a material increase in the intensity or scale of the use of the premises, such as to amount to an unlawful use, is a factual determination.
  1. [48]
    That approach which has been noted is also consistent with the following observations in another decision relied upon for the First Respondent. That is an earlier decision of this Court in respect of challenges made to the lawfulness of the earlier approvals as to the operation of this Quarry, which were subsequently changed by the 2016 Approval. In Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors,[122] it was observed (also by way of providing some history of the prior approval and operation of the Quarry but with citations omitted):
  1. “[9]
    The first respondent, created in the recent amalgamation of local authorities, now embodies Noosa. The third respondent (Neilsens) is a commercial entity currently intending to quarry 259 and the author of the Quarry Management Plan Kin Kin Quarry dated 25 March 2005 (the Neilsens Plan). It sought and obtained a Standard Planning and Development Certificate in accordance with section 5.7.10 of IPA in August 2003 regarding 259. Such a certificate was required to disclose, inter alia, “a copy of every decision notice for a development approval that has not lapsed”. That certificate disclosed the existence of TPC 1899 for extractive industry approved on 21 July 1987, the order of the Local Government Court of 13 May 1988 and a currency of 30 years. In reliance upon the Certificate various other steps were taken by Neilsens and Noosa which are not necessary to describe at this point. In July 2008 Noosa surrendered its lease of 259 from Shepperson. Following that, Neilsens leased 259 from Shepperson and an agreement was entered into for Neilsens to undertake quarrying on 259.

…

  1. [89]
    Shepperson’s application was to use 259 for the purpose of extractive industry, hard rock quarry. What was approved is set out earlier. It may be accepted that the Readymix plans and the Neilsens’ plans later approved by the first respondent indicate a considerably greater quarry operation than was described in the application documents. They both indicate an extraction method and area represented by eleven fifteen metre benches. Each indicates a primary crusher, secondary crusher, processing plant and stockpile. The plant is not described in the same areas. The stockpile is. In the Neilsens plans the stockpile indicates a larger area. Both indicate generally similar parking, office and workshop areas. Both indicate siltation pond. The Neilsens plan is somewhat more detailed. Water storage areas are displayed. In the Readymix plans which, as indicated above, were in reality approved by Noosa, Readymix expressed difficulty with accurately estimating annual production and sale output. It provided an initial estimate of an annual turnover of 140,000 tonnes.
  1. [90]
    The Readymix plans were prior to IPA. The Neilsens plans were after IPA had commenced. On 6 August 2003, Neilsens agent Groundwork EMS wrote to Shepperson’s solicitors advising that there was no intention on the part of Neilsens to increase the scale of the operation from that contemplated in TPC 1899. On the same date Groundwork EMS advised Neilsens that the Readymix plans estimated an annual production of 140,000 tonnes for the quarry and that Noosa may interpret that to represent the scale of the project. Following that, Shepperson applied to extend the term of the approval. On 27 November 2003 Noosa approved an extension to 12 May 2033 subject to conditions. The conditions included:
  1. “B.
    Advise the Applicant that the use is to comply with the scale and intensity allowed in the current approval and any increase in scale and intensity of operations on the site will be the subject of further application for material change of use”.

This was conveyed to Shepperson by letter to his solicitors dated 2 December 2003. This is consistent with Noosa’s view that it had approved the Readymix plans.

  1. [91]
    The purpose of a quarry is to obtain the resource being quarried. The resource is a valuable community commodity. As earlier observed establishing a quarry and quarrying is expensive and the full extent and quality of the resource, where it is buried rock can only be known as the quarrying operation proceeds. It is not akin to a building plan or subdivision which may be presented with clear boundaries on a plan. A TPC may, by its terms, limit the boundaries of the area to be quarried or it may, as here, approve the use conditioned by a requirement for Council approval of detailed management plans.
  2. [92]
    Land use rights resulting from local authority approvals are determined from the terms of the approval which may include such other documents as are expressly or by necessary implication incorporated into the approval. That this is so appears from a number of decisions in appeals about planning matters. “The nature and extent of the approved development must be determined by construing the document of approval including any plan or other document which it incorporates aided only by that evidence admissible in relation to construction which establishes, or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the Applicant and the Council”. “It is not personal to the Applicant, but enures (sic) for the benefit of subsequent owners and occupiers and in some respects a consent is equivalent to a document of title”. The principles are further set out at paragraph 6 of the judgment of Wilson SC DCJ, as he then was, in Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334 at 335.
  1. [93]
    TPC 1899 is in clear terms. It does not either expressly or by necessary implication incorporate plans attached to the application, or the application itself into the approval. The only plans to become incorporated are management plans to be approved by the first respondent referred to in condition 2 of the approval. In due course these were the Readymix plans. Subsequently the Neilsens plans were approved.

…

  1. [101]
    This submission faces the same problem. The management plans do not modify the approval, the subject of the Court’s order on the appeal. What was approved was an extractive industry on Portion 259 for which management plans dealing with specified matters were to be prepared, to be approved by the first respondent. The Applicant’s submissions take as the premise that the use approved was limited to the size and scale mentioned in the application. If that was so, I would agree. But as I have endeavoured to show, what was approved was not so limited. To the extent it was limited, it was limited by the size and scale in the Readymix management plans if approved pursuant to condition 2. The Neilsens plans approved in 2005 are of a similar size and scale to that plan.”
  1. [49]
    Understandably, the First Respondent relies upon the particular acknowledgement, in this decision and as it relates historically to the same quarry, of the establishment of the approved use rights for the Premises upon which all persons are entitled to rely, including, having incurred considerable expense in relation to it, the First Respondent.[123] The further contention is that, to any extent to which the evidence establishes that the current operations of the quarry are in breach of the Approval, it is a matter for compliance.[124]
  2. [50]
    The necessary implication in the second of these submissions is as to limitation as to compliance by establishment of an offence pursuant to s 164 of the PA, because the case mounted here for the Applicant is necessarily seeking compliance with the approved and lawful use of the Land, in the allegation of an offence pursuant to s 165 of the PA. As has been noted, there is no legal impediment to that approach but and as has been expressly acknowledged by the Applicant, the proof of any material increase in the intensity or scale of the use of the premises, must necessarily have regard to the approved lawful use in terms of the scale and intensity of that approved use. As the Applicant acknowledges in its application and submissions here, what it seeks to establish is an increase in intensity and scale of use which is not only reflected in the impacts of it but such as to take the intensity and scale of the use outside the bounds of the lawfully approved use. That must necessarily be so because this aspect of the application for relief pursuant to s 180 of the PA, is necessarily premised upon the proof of a development offence in terms of proof that a person is using the premises unlawfully.
  1. [51]
    Particularly, when dealing with an approved non-static use and one which, as is the case here, has been specifically approved in expectation of future development in terms of scale and intensity of use, the extent of the recognition of and approval of such expectations may, as is the allegation of the Applicant here, nevertheless be constrained by the conditions which are otherwise placed on the approved use. That is, in terms of having regard to the matters of fact and degree, which may be involved, including as to the impacts occasioned by the increase in scale and intensity of use. Here the particular focus is upon those requirements of the QMP, as adopted by the terms of Condition 8 of the 2016 Approval, which may serve to limit the scale and intensity of the approved use by way of effective limitation of the scale and intensity of the haulage of the produce of the Quarry.
  2. [52]
    In more simple terms and consistently with the law to be applied, the Applicant’s allegation, as it is made here, in respect of the establishment of an offence under s 165 of the PA, is reliant upon the proposition that by the establishment of offences it has alleged pursuant to s 164 of the PA, such as may individually warrant enforcement action to ensure compliance with the existing approval, what is thereby and otherwise proven is that the First Respondent’s use or intended use of the Land is, as a matter of fact and degree, of such materiality that it is not just unlawful but warrants the extent of the relief that is sought. As may be noted, the relief sought by the Applicant, is premised upon its concerns to have the Quarry operated lawfully and is ultimately premised upon restraining the First Respondent to the currently approved use, subject to a further development approval for material change of use, pursuant to an assessment under the PA and the contemporary planning scheme.
  1. [53]
    As is accepted and may require further discussion below, the granting of any such relief is discretionary and will necessarily depend upon the extent to which any of the specific allegations as to contravention of the conditions of the 2016 Approval are established and the extent to which any such contraventions evidence any unlawful use of the premises in terms of material increase in the intensity and scale of that use. It is therefore appropriate to turn to consideration of those more specific allegations.

The offences alleged to have occurred under s 164

  1. [54]
    As has been noted,[125] the focus of the allegations as to the commission of development offences by the First Respondent is upon the conduct of the First Respondent in terms that it has “has allowed, or at least failed to prevent” the conduct which is particularised. That is to be understood in the sense that this allegation is designed to extend to encompass conduct on the part of persons other than the employees or agents of the First Respondent, such as may include haulage truck drivers acting as independent contractors or employees of such contractors. More particularly, what must be established is that the First Respondent has contravened the 2016 Approval by not complying with the obligations placed upon it by Condition 8, to operate the Quarry “generally in accordance with” the QMP. Therefore and whilst proof of the conduct of others such as trucking contractors with whom the First Respondent may have a contractual rather than employment relationship, may require attention, the issue remains as to what failure of the First Respondent, in respect of its obligations under the QMP, is identified in any relevant respect. Accordingly, no question arises in respect of attribution to the First Respondent of responsibility for any act of any independent contractor which itself may be regarded as being as non-compliant with some provision of the QMP.[126] Otherwise, there is no issue raised as to the responsibility of the First Respondent for the acts of its employees or agents in respect of fulfilling its responsibilities under the QMP.
  1. [55]
    As is noted in the extract set out above from the earlier challenge to the lawfulness of the earlier approvals in respect of the use of the Land for quarrying,[127] whilst the QMP may provide for limitations in respect of the operation of the quarry, such restrictions are not necessarily like those which may relate to a more static form of development, such as may relate to building plans, and particularly for the purpose of determining whether there has been departure such as to allow a conclusion that what has occurred is not generally accordance with what is required under the conditions.
  2. [56]
    However and as was not put in issue in this hearing and as noted in the decision in respect of the application for interim relief,[128] the resolution of the question will ultimately be a matter of fact and degree, as further exemplified by the Applicant’s reliance on the following observations in Jewry v Maroochy Shire Council & Anor:[129]
  1. “[111]
    In this regard the test of what constitutes a development generally in accordance with approved plans is clear. Although that phrase takes its meaning from the context in which it is used (Hawkins & Izzard v Permarig Pty Ltd & Brisbane CityCouncil [2001] QPELR 423 at 427), in the present context it is “obviously intended to allow for some deviation from” the approved plans (Grace Bros v Willoughby Municipal Council (1980) 44 LGRA 400 at
  1. [112]
    The reasons for this are clear. It is common ground amongst the experts that refinement in the design of a development of the scale and complexity of the Oceans development is a necessary and desirable thing. The phrase “generally in accordance with” allows for such refinement. Given that the phrase is used in a town planning context, whether the Building Approval is generally in accordance with the Amended Approval must be judged by reference to the town planning consequences of any differences between them (Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200 at 202). An assessment with respect to that issue involves questions of fact and degree.”
  1. [57]
    Accordingly and in terms of understanding the context in which the phrase is used here and as the Applicant submitted,[130] it will be necessary to:
  1. have regard to the approval and the conditions which are more particularly engaged as requiring conduct generally in accordance with them;
  2. the town planning objectives underlying those conditions; and
  3. the town planning interests or values affected or impacted by departure from such conditions.

The second and third considerations, as the Applicant further contends,[131] may be assisted by the evidence of town planners. Here there was no real dispute in that respect. As Mr Buckley opined, conditions are imposed in development approvals to preserve the nature and integrity of the assessment process which approved a use in accordance with certain requirements or conditions which may minimise impacts, ensure the development is delivered effectively and meet the public or external consequences of the development and to ensure the development provides the net benefit which it was intended to at the time of approval.[132] Further, Mr Buckley considered that the impacts of haulage routes and the intensity of vehicle movements are impacts commonly associated with quarries as a “front of mind” issue for approval.[133] Mr Reynolds also accepted that the QMP is designed to manage the impacts of the quarry, including those identified in complaints.[134] As may be accepted, Mr Buckley particularly identified that planning considerations affected by the volume of truck movements associated with the operation of a quarry, include adverse impacts on road users and amenity generally and public safety considerations.

  1. [58]
    It should be noted that whilst there is reference, in the Applicant’s submissions,[135] to contentions as to the First Respondent’s non observance of the complaints handling procedures in the Community Relations Management Plan in the QMP, no such allegation is made in the Amended Originating Application, so as to be an issue in these proceedings. To the extent that there is evidence of such complaints, they may and particularly where the purpose is reliance upon the evidence as to the occurrence, which is the subject of the complaint, provide evidence of impacts arising from the increase in truck movements in more recent years and therefore as may be relevant to the allegation as to material change of use.[136]
  1. [59]
    The Applicant’s case is premised upon an understanding that the QMP obliges the First Respondent to manage such impacts and particularly, as is the particular focus of the Applicant’s case, in respect of planning considerations affected by the volume of truck movements. However, that must, in the context of these enforcement proceedings, for the reasons already given, depend upon the extent to which the First Respondent has been proven to have departed from its obligation to act generally in accordance with the conditions of the QMP, as they are addressed to the management of such adverse impacts.
  2. [60]
    In that regard, the First Respondent is critical of the framing of the allegations as to breaches of the QMP, in the Amended Originating Application, in the following terms:

“In particular, the First Respondent has allowed, or at least failed to prevent:

  1. Quarry Trucks to travel to and from the Premises, including for the purposes of transporting material to marked, between 6:30am and 9:00am (being the time the school bus operates on Pomona Kin Kin Road);
  2. a substantial number of Quarry Trucks to be operated outside of the hours of operations in the Quarry Management Plan;
  3. Quarry Trucks to travel in a convoy, or with less than five minutes spacing between trucks; and
  4. Quarry Trucks to haul uncovered loads.”[137]

Justifiably and notwithstanding the ultimate contention of the Applicant that the appropriate approach will be to allow little by way of deviation from the relevant obligations, particularly having regard to the planning consequences of deviation,[138] the First Respondent points out that such formulation does not expressly address the fundamental requirement for proof that the First Respondent has not complied with the obligations placed upon it by Condition 8, to operate the Quarry “generally in accordance with” the QMP and more particularly, in reference to the specific obligations of the First Respondent arising from the requirements of the QMP.

  1. [61]
    However and except to the extent to which such an approach may be discerned as masking any inherent difficulties in the Applicant’s case, it is to be noted that the impugned pleading in the Amended Originating Application is in the immediate context of the express notation of the relevant terms of Condition 8 of the 2016 Approval,[139] and the main provisions of the QMP relied upon.[140] Moreover this matter was heard and is to be determined upon the evidence and submissions which have been addressed to the issues which have been identified and are more particularly identified below in respect of that fundamental requirement for proof of any development offence by the First Respondent. In the first instance, the particular focus is upon the allegation of such offending as has or is occurring.
  1. [62]
    The framing of the allegations in the way adopted by the Applicant necessarily means that the identification of a such development offence must be not just in respect of the obligations placed on the First Respondent under the 2016 Approval and more particularly the adopted QMP, but such, notwithstanding the primal requirement that the First Respondent act generally in accordance with that plan, as to require it to act to “avoid or prevent” particularly identified outcomes.
  2. [63]
    For this application for enforcement orders, as it relates to the commission of development offences pursuant to s 164 of the PA, the focus of the contentions raised in in relation specific breaches of the QMP, is upon allegations as to the incidence of past breaches as being indicative of what may be expected as to ongoing conduct and therefore warranting enforcement action by the Court. These allegations are all directed at the management of the operation of the Quarry by the First Respondent as that relates to the operation of trucks, particularly in relation to the haulage of the product of the Quarry to market. Therefore and as has already been noted, some particular focus is directed at provisions in the TMP, which has been noted as having “principal objectives … to manage the impact of haulage vehicles on the local roads and community”.[141]
  3. [64]
    In the consideration of these provisions as they are the subject of more specific attention, it is also necessary to keep in mind that the TMP is made part of the QMP, in Part 3, which is headed “Site Based Management Plan” (“SBMP”), as an identified management plan “developed for particular identified significant issues for the site”,[142] In that respect and at the outset, the Applicant drew attention to the recognition in s 3.1.1 that the principal objectives of the SBMP are stated to include :

“Protect the general amenity of the site and surrounding area both during and subsequent to extractive operations.”

  1. [65]
    The allegations in respect of the offences under s 164 of the PA are in respect of the management of the operations of the haulage trucks and particularly as they relate to the volume and frequency of truck movements to and from the Quarry. As those allegations are considered, it remains of importance to note and keep in mind that in addition to the overriding description of the obligation of the First Respondent to operate the Quarry under the 2016 Approval, “generally in accordance with the [QMP]”, the purpose of the SBMP, which contains, as a part, the TMP, is also described as follows:

“3.1.1 Purpose of Site Based Management Plan

The Site Based Management (SBMP) is a working/management document which links the potential environmental impacts identified in various environmental studies with commitments and measures to safeguard the environment. It is the principal management tool for guiding environmental management at the quarry.

…

The SBMP provides the framework for environmental management at the quarry and is a practical guide at the operational level to contain environmental impacts. It shows how satisfactory outcomes can be achieved. The SBMP can also be described as a what, how, whom and when environmental management document.”[143]

  1. [66]
    As is further noted by the Applicant, the issue as to truck movements in respect of haulage from the quarry in the local school bus operating hours, has been given some prominence in the QMP and just as this issue was the singular focus of the interim hearing, it assumed some prominence in this hearing for final relief. However, it is convenient to return to that issue after dealing with the others raised in respect of the proof of development offences pursuant to s 164 of the PA and to first deal with an allegation which is not in itself directed at demonstration of the volume or frequency of truck movements but rather a particular measure of addressing a potential impact of those movements.

Quarry trucks hauling uncovered loads

  1. [67]
    The Applicant’s case proceeds in particular reference to section 3.9.4 of the TMP, in that it requires, as contended to be stated in precise and objective terms, that:

“All loads except large rock boulders, will be covered. The quarry will adopt a ‘no tarp’ ‘no load’ policy.”[144]

  1. [68]
    The Applicant’s submission is that:

“The number of breaches of this requirement of the QMP show that the quarry’s operation is no longer “generally in accordance with” its approval, and is routinely operating in a way not authorised by the QMP.”[145]

That submission is directed at evidence collected from the affidavits providing observations of local residents and from the investigations conducted by the Applicant and particularly in respect of photographic evidence obtained by the placement of cameras. The submissions as to the effect of that evidence are (with citations omitted):

  1. “110.
    Attachment 4 to MFI-G is a table of photographs showing trucks travelling away from the quarry, uncovered, in breach of this requirement. Some of those examples are plainly small grained material such as gravel, or finer material: see the examples in Exhibit 10. Some other the examples in Attachment 4 to MFI-G do not show the material, but show the truck or trailer with its tarp retracted. The Applicant submits it can be inferred that those trucks are carrying quarry material that is smaller than “large boulders” because, as shown in the photos in Exhibit 8, large boulders are generally visible above the line of the truck/trailer.
  1. Mr Palmer, Cordwells’ transport manager/allocator was willing to accept some of the photographs in Exhibit 8 showed an uncovered load. He contended initially that it was a “partially uncovered load”, but accepted the QMP seeks fully covered loads. He speculated that potentially gravel became stuck in the tarp mechanism which prevented it being fully retracted. He claimed a lot of the examples of uncovered loads were “mistaken” after he glanced across a document that was open on someone else’s desk. He did not say anything had been done after he was aware of some breaches.
  2. Mr Palmer claimed that some of the photographs showed a fully extended tarp, which does not reach the end of the bin because of the tarp’s pulley system. Mr Lutwyche gave an affidavit about the tarp systems used in trucks, which stated that this requirement leaves a gap of 300mm to 600mm (30cm to 60cm) at the end of the truck. The Applicant submits that none of the examples in Attachment 4 to MFI-G include a gap smaller than 60cm at the end of the bin.
  1. Faced with 416 examples in Attachment 4 to MFI-G, Mr Cordwell was again unwilling to accept that any were a breach of the QMP. As for the convoying topic, it may readily be accepted that a small number of examples may exceptionally fall into a category proposed by Mr Cordwell, that the truck was carrying a small number of large boulders that sat beneath the line of the truck/tailer, that there was a medical emergency necessitating the truck to leave the quarry empty or that the truck was not carrying quarry materials, but for example, an excavator bucket. The Applicant submits the Court would not consider such exception would apply for the vast majority of the examples, and find they constitute hundreds of examples of breach of the QMP.
  2. Cordwells rely on driver education and the installation of the GPlus Live system to counter breaches of this provision, whereby truck drivers are asked at the boom gate to indicate that their load is covered. Mr Hill, who introduced the GPlus Live system to the Kin Kin quarry accepted the system was reliant on drivers answering the question accurately and contained no system for checking the answer was accurate. Mr Hill accepted that he, and Cordwells, could not know from that system how many uncovered loads had left the quarry.
  3. In addition, Mr Cordwell said there was a camera positioned above the trucks at the boom gate. That camera would have been able to identify precisely what was being carried by at least those trucks captured by the Council camera on Sheppersons Lane, which corresponds to the vast majority of the examples in Attachment 4 to MFI-G. The failure to present that evidence should result in the Court drawing the inference that it would not assist Cordwells’ case.
  4. There are 416 breaches of this condition identified over 451 operating days on which the Council was collecting evidence.”
  1. [69]
    The submission made in the penultimate paragraph is made with citated reference to the decision in Jones v Dunkel.[146] First, it is correctly pointed out that there is some inaccuracy in reference to the evidence of Mr Cordwell, in that what he said, in respect of monitoring compliance with covered load requirements was that “[a] camera aimed at the boom gate assists in monitoring this”,[147] rather than “there was a camera positioned above the trucks at the boom gate”. In any event, the difficulty which must be recognised in this submission, lies in the understanding of what has been noted as the onus on the Applicant to prove the commission of the development offence with such clarity of evidence as allows for the application of the Brigenshaw principles and the indeterminacy and lack of any particular clarity as to any specific conclusion as to any particular breach of the condition which is thereby invited. As correctly submitted for the First Respondent, such an invitation cannot rectify any deficiencies in the Applicant’s evidence as to the contents of the trucks and the covering of loads, nor employed to convert any conjecture or suspicion into inference.[148]
  1. [70]
    Quite apart from what was sought to be addressed as to some particular deficiencies in the evidence relied upon by the Applicant, the First Respondent challenged this aspect of that case at a more conceptual level. In terms of the obligation placed on the First Respondent, it is noted as more fully expressed in section 3.9.4 of the QMP, as:

“Nielsens has adopted a Road Transport Protocol across its quarrying, concrete and distribution operations addressing traffic management issues, driver code of conduct, driver training and authorization 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:

…

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

It is noted and contended to be of some moment that the Applicant makes no allegation that the First Respondent has not adopted a ‘no tarp, no load’ policy and that in any event, there is direct evidence that such a policy has been adopted by the First Respondent.[149] Whilst there is some criticism of the lack of precision of the framing of this allegation in the Amended Originating Application,[150] in the context of the earlier specific reference to section 3.9.4 of the TMP, it is clear that the allegation is as the First Respondent notes it:

“For a breach to be made out, the Council would have to allege, and establish to the requisite standard, that the First Respondent has allowed, or at least failed to prevent, Quarry trucks to haul uncovered loads, which were required to be covered; that is each load were not large rock boulders.”[151]

As then noted in respect of reliance upon the evidence as to observations and photographs of purportedly uncovered loads, this requires proof, to the requisite standard:

  1. that the load is not “covered” within the meaning of section 3.9.4; and
  2. that there was a requirement for such covering, particularly in that the load, if any, was not large rock boulders.
  1. [71]
    It is correctly pointed out that the term “covered’” is not defined in QMP, including with respect to the term “loads”. It may be accepted, as is then submitted,[152] in accordance with the general principles which have been noted,[153] that the Court should apply ordinary principles of statutory construction to give the words their intended meaning, considering the plain and ordinary meaning of the terms themselves, read in their context. As further contended, the words are an expression of normal parlance, widely used and understood in the industry and that the meaning attributed to those words ought to be found in a practical and commonsense way.
  2. [72]
    Section 3.9.1 of the TMP identifies that the principal objectives of it is to manage the impact of haulage vehicles on the local roads and community, and there is some immediate context to the requirements of s 3.9.4,[154] indicating concern as to the impacts of dust and spillage on the local community. It may be accepted that the requirement will be as to a response which is practical and adequate for such purposes. Some further context and assistance is provided in the express adoption of the Road Transport Protocol, in s 3.9.4. Relevantly, that protocol contains the following about how this objective of section 3.9 might be achieved:

“1.9 Truck Loading

All haulage vehicle axle loadings must comply with the DEPARTMENT  MAIN  ROADS  QUEENSLAND  TRANSPORT requirements – no overloading will be tolerated. Similarly, loads must be covered according to DEPARTMENT MAIN ROADS, QUEENSLAND TRANSPORT requirements to prevent spillage and dust generation during transit.”

In the context of its criticism of the simplicity of the Applicants approach by bare assertion as to uncovered loads and absence of assistance otherwise as to this concept for the purposes of the QMP, the First Respondent points to the evidence of Mr Lutwyche, General Manager for Retractable Tarps Pty Ltd, described as Australia’s leading manufacturer and supplier of truck tarping systems and components,[155] directly addressing the issue. First, he addressed his awareness of schedule 7 of the Heavy Vehicle (Mass, Dimension and Loading) National Regulation (“Regulation”), as it sets out loading requirements and performance standards on heavy vehicles. That schedule was sought to be put in context by the First Respondent, by noting that in a contemporary sense, the Department of Transport and Main Roads, formerly the Department of Main Roads, administers the Heavy Vehicle National Law Act 2012 (Qld), which in turn regulates the Heavy Vehicle National Law (Queensland) and, inter alia the Regulation, as relevant legislative requirements having the effect of setting:

“… out loading requirements and loading performance standards which require an appropriate method to be used to secure and restrain the loads on a heavy vehicle, so it is unlikely to:

  1. fall or be dislodged from the vehicle; and
  2. not be placed in a way that makes the vehicle unstable or unsafe.”[156]
  1. [73]
    Having regard to his familiarity with those legislative standards, the First Respondent points to the evidence of Mr Lutwyche to the effect that:
    1. the tarp coverage required for quarry trucks is performance based and that the tarp covering identified in his affidavit is the accepted standard in the quarrying industry;
    2. their retractable truck tarping systems are designed to assist load coverage compliance with the loading performance requirements under that Regulation;
    3. they have never received, or been made aware, of any non-compliance with those requirements by the Department of Transport and Main Roads or the Heavy Vehicle Regulator which audit such compliance, with respect to any mechanical tarping systems they have installed, particularly those relating to trucks used at the subject quarry; and
  1. it is not practical to cover the whole trailer and that the tarps extend toward the rear of the trailer generally leaving a 300mm to 600mm gap at the back.[157]

Further in that context, the First Respondent contends that it is of some moment that each of the haulage contractors who undertake work for the quarry, identify that their vehicles have been inspected by the Department of Transport and Mains roads on several occasions and, relevantly, none have been faulted by the department with respect to covering their loads.[158]

  1. [74]
    Moving then from the concept of covered loads and the proof of breach of what is required by way of covered loads, by first having proof that there have been relevant instances of that occurring, the First respondent makes the following contentions (footnotes omitted but emphasis retained):
  1. “242.
    With respect to the latter element; that there is a load (such that it is required to be covered) and the load is not large rock boulders, to the extent the Court finds the Council has demonstrated that loads were not ‘covered loads’ for the purposes of the QMP, the Council’s evidence is plainly deficient in demonstrating that the exception did not apply to those loads.
  1. That deficiency is borne out in Council’s own unpersuasive and incredible submissions in respect of the majority of the evidence relied upon to substantiate the allegations inviting:
    1. firstly, in respect of photographs which do not show the material but  only show the truck or trailer with its tarp retracted, an “inference” be drawn by the Court, absent probative basis, that “…those trucks are carrying quarry material that is smaller than “large boulders” because, as shown in Exhibit 8, large boulders are generally visible above the line of the truck/trailer.”
    2. secondly, in the context of Mr Cordwell’s explanation as to why the evidence might show a truck or trailer with its tarp retracted, that “… the Court would not consider such an exception would apply for the vast majority of examples.”
  2. With respect, the former is not an “inference” but mere speculation. The latter is bare assertion absent any evidentiary or probative basis. Such speculation and conjecture, particularly where it is Council that carries the onus, is an entirely unsound basis to find the commission of a development offence of which the Court need be satisfied.
  1. In that respect, the Council relies on only two sources of evidence to sustain its allegations of some 416 alleged breaches:
    1. observations of local residents that loads were uncovered or partially uncovered for a period from 21 January 2021 to 19 February 2021; and
    2. video graphic screen captures from Council installed cameras on Sheppersons Lane and Pomona Kin Kin Road.
  2. Attachment 4 to MFI-4 is a table of photographs purportedly showing trucks travelling away from the quarry, uncovered, in breach of this requirement. Review of those photographs readily reveals that, of the 416 purported examples of the alleged breaches:
    1. 2 are in demonstrably carrying large boulders and are not required to be covered;
    2. 7 are merely observations of residents which depose to tarp coverage, as opposed to content of the loads;
    3. only 20, provide any demonstrative evidence that the Quarry Truck is carrying a load which may be required to be covered; and
    4. the balance 387 are merely video graphic stills of the side of passing Quarry Trucks, providing no probative evidentiary basis to demonstrate that the loads were not large rock boulders, or indeed that any load was in the Quarry Trucks required to be covered.
  3. Furthermore, it is apt to point out that the cameras relied upon by Council were installed on 4 September 2020 and removed 13 February 2022 and the evidence relied upon therefrom does not, as one would expect, corroborate the ‘observations’ of the residents.
  4. At its highest, the substantial portion of Council’s evidence suggest is that there are some Quarry Truck movements which don’t have their covers pulled completely closed, or at all.”
  1. [75]
    It is then useful to note the written reply to those contentions (also with footnotes omitted):
  1. “27.
    Cordwells contend the occasions of uncovered loads given in Attachment 4 do not establish breaches of the QMP. Council submits:
  1. First, as to the covering of loads dealt with in paragraph [230]-[239] of Cordwells’ Written Submissions, none of the occasions in Attachment 4 show a tarp that extends to within 300mm to 600mm (30cm-60cm) at the back.
  2. Second, as to the exception to covered loads for large rock boulders dealt with in paragraph [242]-[248] of Cordwells’ Written Submissions, Council relies on its original submissions. Council contends occasions No 1 and 402 show material which would not be considered “large boulders”. Three of the observations of residents (those made by Jeanette Mann) state that she saw the “gravel” in the back of the truck, so could not be large boulders. For the other resident’s observations, Council relies upon its reasonable inference that where the material cannot be seen on an angled view of the trailer, the material is not large boulders.”
  1. [76]
    Substantially, the Applicant relies upon the extent of contended incidence of uncovered loads, as the foundation for an inferential conclusion that the First Respondent is not acting generally in accordance with its obligations under the QMP, without any need to further examine what the First Respondent did or did not do in respect of any individual such instance. Upon a review of the evidence relied upon, it is apparent that except in respect of the limited instances which are conceded or otherwise identified as direct proof of an observed uncovered load, there are particular difficulties in respect of the clarity of the evidence to provide for a finding, to requisite standard, of other such instances. Such difficulties include, in respect of the extent of reliance upon photographs, the position of the camera and angles and extent of view captured of a passing truck and the variations in configurations and dimensions of those trucks.
  2. [77]
    Otherwise and in respect of the 20 instances which are conceded, it is questionable, as is contended for the First Respondent, that the requirement to act generally in accordance with the QMP cannot be construed so as to not allow some deviation from the recognised requirements, as opposed to a standard of perfection. As is correctly pointed out, in merits assessment, traffic impacts are not assessed in utopian terms, but rather as to what is tolerable or acceptable in the context;[159] the Court is not concerned with such assessment but with the construction of the effect of a condition of an approval. A further point is that the concession as to 20 such uncovered loads (and to the further limited extent that the Applicant sought to identify evidence of direct observation of a uncovered loads in reply)[160] is to be considered in the context of surveillance of truck movements over 451 working days, in circumstances where the Applicant relies on evidence of an average of 73 truck movements per day,[161] having regard to the town planning consequence in terms of the potential for the escape of dust and other debris from moving trucks, which is not itself identified as a particular feature of the evidence relied upon.
  1. [78]
    However, this is a measure which may be discerned as engaged to protect against such an outcome and as is the contention of the Applicant, expressed in specific and definite terms as one of the “[s]pecific control measures to be adopted at the Kin Kin Quarry”. And expressed in terms that:

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

The statement in the second sentence is not so much a statement of a separate obligation but may rather be seen in reinforcement of the stricture of the requirement or obligation stated in the first sentence, as that is directed at a matter within the direct control of the First Respondent before any truck departs with a load of product from the Quarry.

  1. [79]
    In this instance, the effective formulation of the offence in terms that the First Respondent has allowed or at least failed to prevent all loads except large boulders to be covered on departure from the Quarry, is apt in understanding that acting generally in accordance with such a strict and absolute requirement does not rationally allow for any departure from it, when it is such a simple proposition and entirely within the control of the First Respondent.
  2. [80]
    The necessary conclusion must be that, at least to the extent conceded by the First Respondent, the evidence relied upon does provide sufficient clarity of proof to enable the Court to be positively satisfied that the First Respondent has committed development offences by 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. In that sense, it is also to be concluded that the First Respondent has permitted or at least allowed such outcomes to occur.

Quarry trucks operated outside of operating hours

  1. [81]
    Another allegation as to contravention of the approval is that “the First Respondent has allowed, or at least failed to prevent … a substantial number of Quarry Trucks to be operated outside of the hours of operation in the Quarry Management Plan”.[162]
  1. [82]
    The specific provisions of the QMP upon which reliance is placed are:

“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

Nielsens has adopted a Road Transport Protocol across its quarrying, concrete and distribution operations addressing traffic management issues, driver code of conduct, driver training and authorization 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:

…

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.

….

3.9.9 Special Conditions

The Pomona Kin Kin Road is narrow, winding and contains numerous hills, 3 single land 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:

…

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.”

The underlined parts are those to which the Applicant’s submissions were particularly focussed. And it is to be noted that the approved operating hours of the Quarry are from 6am to 6pm Monday to Friday and 7am to 5pm on weekends.

  1. [83]
    As may be accepted, the Applicant identifies the underlying planning considerations of these provisions of the QMP in terms of maintenance of the amenity of the local rural area. There is reliance upon a substantial body of evidence from local residents indicating impacts upon that amenity, particularly in terms of being disturbed and woken by the noise of trucks. However and as the chosen examples demonstrate, a difficulty with that evidence is in separation of what is more broadly directed at what may be regarded as permitted as to the operation of the Quarry, from what may have cogency in respect of the particular contention in issue.[163] There is also a difficulty, in many instances, of the location at which such observations are made being, variously, separated from the quarry site and therefore in providing any clarity of evidence in order appropriately permit of a conclusion as to early arrival at the quarry site.
  1. [84]
    Understandably, therefore, the Applicant’s contention is particularly pressed in respect of the evidence obtained from its own investigations and surveillance of activities occurring at and in connection with the Quarry, together with reference to some records or logs maintained by some residents and observations made of early arrivals of trucks in Sheppersons Lane.[164] A contention is that it should be found that the First Respondent has committed development offences on each of the 34 occasions set out in Attachment 2 to MFI-G (being a summary of the evidence so relied upon).[165] The effect of that evidence is contended to be in establishing the identification of 34 instances on 26 days, over a period of 451 operating days in the period 4 September 2020 to 11 February 2022, when quarry trucks were observed travelling toward the quarry earlier than would be necessary to arrive at the quarry gate at 5.57am on weekdays or 6.57am on Saturday (the allowance of 3 minutes being contended as a sound latitude in the circumstances).[166] From that premise, there is a calculation of 5.7% of the days as an occasion “of a breach of a condition that could constitute an offence”, with that being submitted to be a substantial number and further developed to the submission that:

“While one or two irregular early arrivals may indicate poor truck driver adherence to conditions (which is no proper excuse in any event), this number of early arrivals indicates a failure of the systems set up by Cordwells to discourage and prevent early arrivals. The Applicant submits the scale of it indicates that the operation of the quarry is not generally in accordance with the QMP in this respect.”

  1. [85]
    It is upon that basis that the Applicant seeks the following relief by way of enforcement order (as it appears in amended form in the Amended Originating Application):

“… that the First Respondent:

…

  1. 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;
  2. 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;”[167]
  1. [86]
    Understandably, the First Respondent is critical of the lack of precision in the formulation of this allegation in that application,[168] and also that the relief sought is not directed at the First Respondent’s obligations in respect of operating the Quarry and may beg a question as to how the First Respondent is to “cause” the achievement of outcomes it cannot control, as opposed to seek to manage.[169]
  2. [87]
    It is correctly pointed out that the operation of Quarry trucks outside of the approved operating hours of the Quarry, including by independent haulage contractors, is not a contravention of the QMP.[170] It is further correctly observed that the Applicant does not allege or provide any evidence that any early arrivals have been loaded by the First Respondent outside approved operating hours nor that any trucks have left the site with a full load after the approved operating hours.[171]
  3. [88]
    The First Respondent sets out a number of “deficiencies” in the evidence relied upon by the Applicant in proof of the early arrival of trucks at the Quarry site, particularly in terms of reliance upon sightings of Quarry trucks giving rise to an inference of such an early arrival (at least outside of the degree of latitude which the Approval granted with the consent of the Applicant, allows).[172] The contended conclusion is as to there being only 6 occasions on 6 days (or 1.33% of the number of days under consideration), where “it could be said that those trucks observed could have arrived at the Quarry site prior to the approved operating hours” and the position is otherwise maintained that there is an absence of proof that this actually occurred in these instances. [173] Essentially the valid point which is made, is as to the frailties of the circumstances relied upon, in terms of sightings of a truck at a location distantly remote from the Quarry site, as a foundation for an appropriate inference that there have been arrivals at the Quarry site prior to operating hours, let alone that the First Respondent has failed in some obligation placed on it under the QMP in terms of the management and particularly discouragement, of any such occurrence.
  1. [89]
    The First Respondent also points to the uncontradicted evidence of Mr Stewart, Senior Site Executive for the Kin Kin Quarry, to the effect that:[174]
    1. there are two locked gates, one part way through Lot 258 on the haul road to the Quarry (Lot 259) separating Lot 258 into two areas; and the second, at the entrance of the Quarry at Lot 259;
    2. he arrives at the Quarry between 5-5.30am on weekdays and 6-6.30am  on Saturdays and proceeds through the gates locking them behind him;
    3. at 6am on weekdays and 7am on Saturdays, after completion of pre-starts he unlocks both sets of gates and does not permit any Quarry Trucks on site prior to 6am weekdays and 7am on Saturdays; and
    4. each weekday afternoon, no later than 6pm and on Saturday afternoons, no later than 4pm, he leaves and locks both sets of gates behind him.
  2. [90]
    Further, there is reliance on the evidence of Mr Cordwell, not only in confirmation that there has been no occasion on which they have commenced loading prior to the permitted hours of operation but also that the First Respondent disciplines drivers who arrive prior to the approved operating hours by standing them down for an hour and taking further disciplinary action including reinduction, stated as having occurred on four occasions.[175]
  3. [91]
    It may be accepted, as the Applicant contends, that the approval here including the QMP should be read, as was noted in Zappala v Brisbane City Council,[176] in a way which is practical, as a whole and as intending to achieve balance between outcomes and that a discernible purpose of the provisions in respect of early arrivals at the Quarry is in avoidance of (or at least reduction of) impacts on local residents and other road users, and that the “obligation to discourage early arrivals must extend to the discouragement of early travel through the surrounding rural area”.[177] In fact, in the QMP and under the heading “Traffic Management Plan” it is specifically provided that:

“The principal objectives of the Traffic Management Plan are to manage the impact of haulage vehicles on the local roads and community.”[178]

But and as the First Respondent contends, such an approach must also have regard to the practicalities of its position in terms of operating the Quarry and in terms of dealing with the trucks arriving at the Quarry site and its ability to manage rather than strictly control the operations of independent haulage contractors on the roads constituting the haul routes.[179]

  1. [92]
    These submissions also serve to highlight that in terms of the relevant obligation that is placed on the First Respondent, by Condition 8 of the 2016 Approval, it is in terms of its management of the objective of generally avoiding the arrival of trucks at the Quarry site prior to the approved operating hours. The further context in terms of the strictness of this obligation and the practical effect of it, is found in noting that the only specifically expressed control measures are in terms of “[d]iscouraging practices such as truck early arrivals” and that [e]arly arrivals will not be loaded until within the approved operating hours”.
  2. [93]
    The acknowledgement by Mr Cordwell of 4 instances in which disciplinary action has been taken in respect of early arrivals at the Quarry site, is to be understood in the context of the inclusion of the “Road Transport Protocol”, as an appendix to QMP.[180] First in requiring the following in respect of the implementation of the Traffic Management Plan:

“1.14 Implementation of Traffic Management Plan

The Traffic Management Plan will be implemented in the following way:

  1. The Traffic Management Plan will be incorporated into the contract, verbal or written, with the haulage company
  1. The haulage contractor will be required to keep a legible copy of the plan in each haulage vehicle
  2. Explanation of the plan will occur as part of Driver Training and questions on the plan are included in the Drivers Knowledge Test each of which will be carried out by the haulage contractor's authorised officer(s)
  3. Truck drivers must demonstrate to the company that they have completed the knowledge test carried out by the contractor before access to a quarry site is granted by the company
  4. Both the company and the haulage contractor will nominate a representative who will be jointly responsible for day to day liaison and monitoring of the effectiveness of the Traffic Management Plan and documenting any deviations from the plan or problems with the plan
  5. Operators of heavy vehicles that service the quarry will be directed to the Traffic Management Plan by the Production Manager on arrival at the quarry site.”[181]

And in Section 2 of that Protocol headed “DRIVER CODE OF CONDUCT (DCC) DRIVER TRAINING AND AUTHORISATION” it is first provided that:

“The Driver Code of Conduct (DCC) relates to all persons engaged in the driving of haulage vehicles that are associated with the transport of products from quarries and sites operated by Neilsens Quality Gravels Pty (NQG) Neilsens Concrete Pty Ltd, Neilsens Transport Pty Ltd (The Neilsen Group)

All drivers are responsible for both their own safety and the health and safety of others that may be affected by their acts or omissions. A breach of this code is a disciplinary matter.”[182]

And also, for driver training and authorisation, as follows: “

11. Driver Training and Authorisation

Drivers are not permitted to haul product from the NQG operations or drive an empty haulage vehicle to these operations with the intention of hauling product unless the driver has the required training, has successfully completed a knowledge

test on the road transport protocol and has been authorised by the approved representative of the haulage contractor. The authorisation must be presented to the relevant quarry Production Manager on arrival at each quarry.”[183]

  1. [94]
    The necessary conclusion must be that the state of this evidence does not provide any clear basis to enable the Court to be positively satisfied that the First Respondent has not acted generally in accordance with its obligations under the QMP in respect of early arrivals of haulage trucks.

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

  1. [95]
    The further generally expressed allegation that “the First Respondent has allowed, or at least failed to prevent … Quarry trucks travelling in convoy, or with less than 5 minutes spacing between trucks”, has, in part, a similar source in section 3.9.4 of the QMP, in that the Applicant relies upon the specifically expressed control measure to:

“Discourage practices such as truck early arrivals or convoying which can impact on residents and other road users.”

It is useful to again set out the relevant context in which this specific control measure, in respect of convoying of trucks, is expressed in section 3.9.4 of the QMP, as it also provides some particular context for other provisions upon which reliance is also placed:

“3.9.4 Management Procedures and Practice

Nielsens has adopted a Road Transport Protocol across its quarrying, concrete and distribution operations addressing traffic management issues, driver code of conduct, driver training and authorization 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:

…

Discourage practices such as truck early arrivals or convoying which can impact on residents and other road users.

  1. [96]
    Further reference is made, by the parties, to the following provisions of the Road Transport Protocol (again with the parts which are emphasised by and at the heart of the Applicant’s contentions, underlined):
    1. Section 1.3, which is headed “Trucking Schedule” and relevantly provides:

“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 well the interval between dispatches.

Available haulage hours as detailed in the development consent will be utilised to achieve a low frequency regular transport programme. 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.

1.3.2 Staggering of Departures

Systems will be in place at each in NQG quarry sites to ensure, as far as is reasonably practicable, that truck dispatches are staggered by a period of 5 minutes.”[184]; and

  1. Section 1.8, which states:

“1.8 Interaction with other Heavy Vehicles

NQG will instruct the operators of other heavy vehicles that service any of its quarries to contact the haulage contractor with a view to coordinating their arrival and departure times so that excessive numbers of truck movements do not occur over a short period.”[185]

  1. [97]
    The parties also, respectively, refer to some provisions of the “Driver Code of Conduct”, as that is found in Section 2 of the Road Transport Protocol and as has been noted, provides for responsibilities of drivers which may constitute a disciplinary breach.[186] In particular, the following:

“8. Staggered Departures

The haulage contractor is to put in place arrangements that facilitate the staggering of departures from quarry sites. The minimum gap at the point of departure is 5 minutes. Where there are less than 12 departures per hour, the haulage contractor is to use his best endeavours to spread those departures over the hour. If, however, bunching occurs due to congestion on the haulage route, then drivers are to restore the minimum 5 minute stagger on departures.

9. Vehicle Separation

Whilst staggered departures from the quarry sites should result in a separation of several kilometres between haulage vehicles, vehicles will encounter other heavy vehicles and other haulage vehicle en route. Where this happens the minimum separation distance between heavy vehicles, which includes haulage vehicles, is to be approximately 60 metres. Drivers, however, should be prepared to maintain separation distances greater than this minimum to cater for the types of behaviour exhibited by other road users. When approaching quarry sites drivers should maintain a minimum distance of 300m to avoid causing queuing at quarry entry points. To assist in maintaining these separation distances drivers should communicate with other drivers on UHF Channel (TBA). There will be no travelling in convoy on the open road, drivers should endeavour to maintain a suitable separation distance from other vehicles, particularly other haulage trucks and heavy vehicles. In the event of unavoidable queuing, drivers will be required to note all details on their Daily Report Sheet, this information can then be used to assist in identifying trouble spots.” (underlining to reflect the Applicant’s emphasis).[187]

  1. [98]
    The Applicant contends that these provisions impose the following obligations on the First Respondent:
  1. “(a)
    Trucks departing the site must be staggered at 5 minute intervals at the quarry gate;
  1. Trucks arriving at the site must be at least 300 m apart;
  2. Trucks on the open road must not be ‘travelling in convoy’.”[188]

Upon those premises, there is reliance upon evidence described as “[d]ata on trucks travelling closely together [which] was collected by the Applicant from a Council traffic camera, situated between 1000 and 1200m from the Quarry gate on Sheppersons Lane, and logs taken by residents between January and April 2021, as summarised in Attachment 3 of MFI-G, which is contended to respectively identify (as separately summarised in attachments 3a, b and c):

  1. 15 occasions on which trucks travelled toward the Quarry on Sheppersons Lane with less than 300m separation distance;
  2. 111 occasions on which trucks travelled away from the Quarry on Sheppersons Lane with less than 5 minutes between trucks; and
  3. 107 occasions on any location other than Sheppersons Lane in which two trucks travelled past one location within one minute, or three or more trucks travelled past the location in 5 minutes.[189]
  1. [99]
    It is convenient to first deal with the formulation of the last category, which is submitted by the Applicant to be a reasonable approach to the concept of “convoying on the open road” within the meaning of the QMP. Neither that concept nor the term “convoying”, is specifically defined in the QMP. The Applicant refers to a dictionary definition for “convoy” as “a group of ships or vehicles travelling together…”[190] It is then contended that such a definition “does not immediately allow of a quantification of distance between vehicles” and that, as may be accepted, “[h]owever its definition in the development approval must be influenced by the purpose of its inclusion: to protect safety of road users and amenity of local residents”.
  1. [100]
    Each party refers to some evidence from Mr Trevilyan as to the concept,[191] which, as the Applicant concedes, may have some use from a traffic engineering perspective and particularly the perspective of the safety of road users, rather than the Applicant’s particular reliance upon impact upon local amenity. The submission for the Applicant is in terms that:

“The category (two trucks in one minute or three or more trucks in 5 minutes) is proposed by the Applicant as the sort of grouping of trucks which would result in a resident noticing that trucks were close together, and thereby perceive trucks to be a regular and high frequency occurrence rather than experience the quiet, low key amenity of the area.”

  1. [101]
    Reference is then made to the affidavits of a number of residents to confirm that trucks travelling close to one another impacts adversely on the amenity they experience at their homes, including: “noise disturbance”, “mental health and emotional wellbeing”, “disturbance from vibration” and “the presence of fumes or odour.[192] However and understandably, it is to be observed that not all of indications of concern as to those impacts are necessarily limited to contentions of movements of such trucks in close proximity, as opposed to the movements of haulage trucks generally.
  2. [102]
    Conversely, the First Respondent points to these movements of trucks occurring along an approved haul route and raises a number of conceptual contentions as to the Applicant’s approach. It is suggested that the premise of the contended “reasonable approach” to the concept of convoying, by reference to timing observations, is flawed. Although it may be recognised that some instances identified may be said to suggest a greater number of trucks passing than the parameters suggested to be adopted, it is correctly contended that at a speed of 60 kph a truck will travel 1 kilometre per minute and that 3 trucks within 5 minutes would notionally allow for those trucks to be spaced over 5 kilometres, as indicators of the unsoundness of such an approach to determining whether any breach of a development condition has occurred.[193]
  1. [103]
    More importantly and as also submitted for the First Respondent,[194] it is necessary to construe the QMP both in terms of understanding the obligation which is placed upon the First Respondent in terms of any objective of not allowing or preventing convoying of trucks in connection with its approved use of the Quarry and in order to give content and meaning to the concept of convoying. That, of course, begins with understanding that what is required is general accordance with the requirements of the QMP and the only expressly specified control measure is in terms of “discouraging practices such as truck … convoying”. However, that is specified as an inclusive rather than exclusive requirement, in the context of the acknowledgement of the adoption of the Road Transport Protocol “addressing traffic management issues, Driver Code of Conduct, driver training and authorization for company drivers and special conditions for the Kin Kin Quarry”.[195]
  2. [104]
    Whilst the Road Transport Protocol discernibly discloses some other requirements for the First Respondent, including in respect of the related contentions in respect of staggered departures from the quarry and queueing at the quarry entry point, as has been noted, Section 2 is directed at the Driver Code of Conduct and the training of drivers in respect of their obligations under the Transport Management Plan, which is to be implemented in accordance with s 1.14 of the Road Transport Protocol. It is in this context and, as has already been noted, the obligation in section 11 of the Driver Code of Conduct for the training and authorisation of drivers in accordance with the Road Transport Protocol, that a breach of the Driver Code of Conduct is stated to be a disciplinary matter. Accordingly, the statements in sections 8 and 9 of the Driver Code of Conduct are to be properly seen not just as further informing the obligations of the First Respondent in terms of need for separation of trucks but also providing a particular means, as has been adopted by the First Respondent, by way of some compliance with its express obligation of “discouraging practices such as early arrivals or convoying”.
  1. [105]
    The reference to “practices” of convoying does have some capacity, as the First Respondent suggests,[196] to be in reference to conduct which occurs through a sense of design rather than exigency. That is, in the sense of a failure of the drivers concerned to manage any relevant requirement or expectation as to separation of the haulage trucks. But it is the obligations placed on the First Respondent in respect of the occurrence of any such practices which is in issue.
  2. [106]
    The particular focus of the Applicant’s position is in terms of the protection of the safety of road users and amenity of local residents, as the identified outcome of the obligation which is placed on the First Respondent and therefore in focus upon the effect rather than any design of the absence of appropriate separation of the trucks.
  3. [107]
    The ultimate question is, as a matter of interpretation or construction of the QMP and therefore the context in which there is reference to “convoying”, as to what obligation is placed on the First Respondent. Except in respect of dealing with any complaints which may arise, the subjective position of local residents or other road users is not determinative and there is the difficulty of an absence of express reference to any determinative objective characteristics. The Applicant contends, that simple reliance upon the reference to a 60-metre minimum in the vehicle separation section of the Driver Code of Conduct, is inappropriate because it is stated as just that, a minimum in the event of the exigency of trucks encountering other haulage vehicles. It is further correctly pointed out that the immediate context to that assertion is that:

“Whilst staggered departures from the quarry sites should result in a separation of several kilometres between haulage vehicles, vehicles will encounter other heavy vehicles and other haulage vehicle en route.”[197]

And it may be observed that subsequently, it is further stated that:

“There will be no travelling in convoy on the open road, drivers should endeavour to maintain a suitable separation distance from other vehicles, particularly other haulage trucks and heavy vehicles.”

  1. [108]
    As a matter of construction of the terms of this approval and having regard to the purpose or objective of management of the impact of haulage vehicles on the local roads and the community, the concept of convoying of vehicles on the open road is not defined in terms of any particular or minimum degree of separation, calculated by time or distance, except to the extent that there is less than “approximately 60 metres” of separation, at any point, between heavy vehicles. Otherwise, the stated requirement of maintenance of a suitable separation between “other vehicles” is not the point here. The stated expectation that “staggered departures from the quarry…. should result in a separation of several kilometres between haulage trucks”, is just that and the immediate context indicates the necessary acknowledgement of the potential influence of exigencies on the roads which might interfere with that expectation. Moreover and in the absence of any more specifically imposed obligation on the First Respondent, the concern must be with the conduct of truck drivers in respect of what may be considered as a practice of driving the trucks so as to have the effect of not maintaining the expectation of some kilometres of separation, upon staggered departure from the Quarry and without that happening unavoidably in the sense of some reasonable explanation lying in an exigency of travel on those road.
  2. [109]
    The First Respondent points out, that there may have been an assumption in the formulation of the allegations against it, apart from the requirements in respect of the dispatch of trucks, that there is a requirement that a five minute interval is to be maintained thereafter.[198] The Applicant has not pointed to any such expressed requirement. There is even less assistance in terms of travel to the Quarry and it is unnecessary to dwell upon what could be so regarded as convoying in that respect, except to note that there remains an inherent difficulty in the Applicant’s reliance upon observations by local residents of trucks travelling to and from the Quarry. In any event, a further point is well made, that in order for there to be proof of convoying, as a starting rather than an end point, it is not sufficient to merely prove that trucks are travelling along the haul route in close time intervals.[199]
  3. [110]
    It may be observed that these difficulties may be seen as reflected in the pleaded relief sought by the Applicant, which specifically links that sought in respect of convoying, with what is contended to be more specific and related management obligations placed on the First Respondent, as follows:
  1. “(f)
    prevent Quarry Trucks arriving at the Premises less than 5 minutes 300 metres apart or travelling to the quarry in a convoy
  1. prevent Quarry Trucks leaving the Premises less than 5 minutes apart or travelling away from the quarry in a convoy”[200]
  1. [111]
    Before turning to consideration of those more specific obligations, it should be noted that, as the First Respondent contends, the practicalities of what may reasonably be expected of it, having regard to the express recognition of the exigencies of the movement of the haulage trucks on the open road and what may be encountered there, are reflected in the absence of any obligation that may be interpreted as requiring that it must prevent convoying from occurring, as opposed to discouraging “practices such as … convoying”.
  2. [112]
    Moreover and in terms of any suggestion of allowance of any convoying of trucks on the open road, beyond what is expressly noted as to discouraging such conduct, particularly in terms of induction and training of truck drivers and in terms of any ongoing obligation in that respect, that would necessarily depend upon the First Respondent’s knowledge of some relevant occurrence. As has been noted, this application was not framed nor pursued upon any basis which necessitates or would allow any examination of whether or not there has been any want of compliance in terms of the obligations of the First Respondent in respect of the incidence of any such issue or any relevant complaint in that respect.
  3. [113]
    The First Respondent raises some more specific criticism of the formulation of the relevant allegation in the Amended Originating Application, in that what is alleged is that “the First Respondent has allowed or at least failed to prevent … Quarry Trucks to travel in a convoy, or with less than five minutes spacing between trucks”. It is correctly pointed out that this does not expressly assert any contention in reliance upon the issues raised in respect of queuing at the entry to the Quarry, despite there being specified relief sought in that respect.
  4. [114]
    Matters directly relating to the management of the trucks at the quarry site such as in respect of queuing at the entry and staggering of departures, are more clearly matters capable of and expected to be directly managed by the First Respondent. Ultimately, the Applicant places particular emphasis on the evidence it relies upon in relation to the First Respondent’s management of these matters. In reference to the evidential propositions noted above,[201] the Applicant’s contention is summarised as follows:
  1. “106.
    With particular emphasis on those in category (a) and (b), the breaches  show a failure of the system Cordwells has in place to prevent trucks arriving and departing the quarry too close together, and convoying on the open road. That system includes a physical sign at the quarry which does not accurately state the requirements under the QMP, stating that there is to be a minimum distance of 60m between trucks on the range,[202] with no identification of the prohibition on travelling in convoy, and that trucks should maintain a larger distance than the minimum.
  1. Mr Cordwell’s unwillingness to accept any breach of the QMP in the face of this significant evidence indicates his lack of understanding of what the approval and the QMP require. It also demonstrates that if the Court declines to grant relief there is not prospect of Cordwells appropriately regulating their operations themselves.
  2. The evidence indicates 233 breaches in 451 operating days during which the Council’s evidence collection was occurring. That is a breach on half of those days. The sheer number of breaches of these provisions indicates that the operation of the quarry is not “generally in accordance with” the provisions relating to vehicle separation set out above, but is operating, routinely, outside the specifications set by the QMP.”

Despite the assertion in paragraph 106 of this extract, the assertion in paragraph 108 nevertheless relies on the contention earlier noted in subparagraph (c), that there are 107 identified incidents of what is contended to be convoying on the open road.

  1. [115]
    In relation to these contentions, the First Respondent particularly draws attention to the relevantly and respectively expressed requirements of the Road Transport Protocol which is adopted as part of the QMP, that:
    1. firstly, with respect to approaching the quarry, that truck drivers should communicate with each other to avoid causing queuing and, as far as possible, trucks should be no closer than 300 metres to the truck ahead; and
    2. secondly, with respect to dispatches from the site, as far as is reasonably practicable, that truck dispatches are staggered by a period of 5 minutes; and
  1. lastly, the discouraging of convoying.”[203]

Further, the First Respondent points to the terms in which the requirements are expressed as necessarily building in an inherent flexibility and variability, in acknowledgment of the nature of quarry operations and the logistical difficulties of co-ordinating truck movements, particularly those of third-party haulage operators. Understandably, also pointing out such a sense of flexibility in respect of the overall requirement of compliance only generally in accordance with the QMP. There is some further criticism of the approach of the Applicant towards “a counsel of perfection, or some utopian outcome”.[204] Whether or not that is a fair summation of the Applicant’s approach, it is otherwise correctly pointed out that that correct focus must be upon how desired outcomes have been managed in accordance with the QMP. [205]

  1. [116]
    Particularly in respect of the third contention as to discouraging of convoying, the First Respondent points to the uncontradicted evidence which it has placed before the Court, to the effects that it:
    1. ensures that each of its haulage contractors, including their staff and drivers, who attend the Premises have undertaken the necessary site induction and are fully aware of and understand their obligations and requirements set out in the Driver Code of Conduct and the Traffic Management Plan, which, as has been noted, includes reference to truck spacing and safety measures;[206] and
    2. addresses non-compliance, through disciplinary action, as necessary.[207]
  2. [117]
    Notwithstanding the substantial point as to the absence of any separate allegation in reference to the separation of trucks approaching the Quarry and the bare reliance by the Applicant on the evidence in respect of 15 incidents where multiple trucks have been observed in Sheppersons Lane travelling towards the Quarry, the First Respondent correctly points to the limitations of that evidence in being non-specific as to any distance of separation of less than 300 metres, even if, as the Applicant contends, it may be possible to draw some inferences.[208] There is however a concession that in 7 of the 15 occasions (albeit all 15 being observed in a period of approximately 3 months), it might be determined that the separation was less than 300 metres. The more particular difficulty in the capacity of the evidence which is relied upon to sustain the requisite standard of proof of the commission of a development offence is, as it further points out, that this evidence, in any event, is to be viewed in the context of the evidence gathered by the Applicant from various sources of observation, including the camera surveillance maintained at the entrance to Lot 259 on Sheppersons Lane, over 451 days, between 4 September 2020 and 11 February 2022, and the further context of reliance upon the evidence of Mr Holland in determining an average of truck movements (in both directions) of 73 per day.
  1. [118]
    Even if such a contention could be discerned to be within the allegation made by the Applicant, this evidence does not provide any sufficient foundation for any conclusion that the First Respondent has been demonstrated to be not acting generally in accordance with any requirement that trucks approaching the entrance to the Quarry “should maintain a minimum separation distance of 300m to avoid queuing at quarry entry points”, whether by failure to discourage such occurrences or otherwise.[209]
  2. [119]
    In reality, the allegation here as it is framed in terms that the First Respondent has “allowed or at least failed to prevent … Quarry Trucks to travel in a convoy, or with less than five minutes spacing between trucks”, is most readily seen as referable to the obligation of the First Respondent to act generally in accordance with the obligation to discourage practices such as convoying of haulage trucks and to particularly do so by adopting a system “as far as is reasonably practicable that truck dispatches are staggered by a period of 5 minutes”.
  3. [120]
    In respect of this generally framed allegation and more specifically its obligation as to the 5-minute separation as to dispatches from the Quarry, the submissions for the First Respondent is again critical of the approach taken by the Applicant, in its reliance on this obligation. All bar one of the incidents which are summarized in MFI-G, attachment 3b, relate to recordings made by surveillance cameras which were variously placed on Sheppersons Lane, at different locations, near to the boundary to Lot 259 and therefore, as is pointed out, at a distance of 1km or 1.2km from the point of departure from the site of the Quarry.[210] The simple point is that, as has already been noted, the requirement placed on the First Respondent is as to the maintenance, “as far as is reasonably practicable” of a 5 minute separation between trucks at the point of departure from the Quarry and it is therefore contended that the evidence which is summarized in attachment 3b is not directly probative of any breach of any requirement as to a 5 minute separation at that point of departure, in order to discourage any practice of convoying thereafter.
  1. [121]
    It is convenient to note the following relevant written submissions of the Applicant, to which such contentions are, in part, addressed:[211]

“103. When faced with hundreds of examples in MFI-G, Mr Cordwell could not accept that any were a breach of the QMP. His evidence on this point was unsatisfactory. He opined that drivers must have stopped for mandatory rest breaks or to fill in a log book, or for some other legitimate reason.[212] When faced with the evidence, Mr Palmer, Cordwells’ transport manager/allocator initially contended some drivers must have driven around the boom gate.[213] Later, he said that perhaps a driver had pulled up to fix his tarp or address an issue with his truck. He accepted that was speculation on his part.[214] When it was suggested to him it was unlikely trucks shown on Sheppersons lane at 6.41am and 6.44am had left the quarry before 6.30am and waited by the side of the road, he said “its highly unlikely that the boom gate has failed its duty this many times”.[215] These responses show the ill advised focus of Cordwells on the boom gate. The Applicant submits the QMP requires more than this.

  1. The focus on the boom gate also does little for convoying away from Sheppersons Lane, which is prohibited by the QMP.
  2. While it may be accepted that a small number of examples may have some reasonable explanation, the Applicant submits the Court could not infer that in respect of all, or even a majority of the over 200 occasions identified in the evidence. Further, the provisions of the QMP require distance to be regained if trucks become closer together for some reason, so Mr Cordwell’s hypotheticals do not result in the excusal of the breach of the QMP….
  3. With particular emphasis on those in category (a) and (b), the breaches show a failure of the system Cordwells has in place to prevent trucks arriving and departing the quarry too close together, and convoying on the open road. That system includes a physical sign at the quarry which does not accurately state the requirements under the QMP, stating that there is to be a minimum distance of 60m between trucks on the range,[216] with no identification of the prohibition on travelling in convoy, and that trucks should maintain a larger distance than the minimum.
  1. Mr Cordwell’s unwillingness to accept any breach of the QMP in the face of this significant evidence indicates his lack of understanding of what the approval and the QMP require. It also demonstrates that if the Court declines to grant relief there is not prospect of Cordwells appropriately regulating their operations themselves.”
  1. [122]
    The difficulties with the concept of convoying in the QMP, have been discussed above, as has the limitations of the evidence relied upon to establish the fact of it occurring. Quite apart from the difficulties in the formulation of the allegation, including to the extent it may be considered to include an obligation to avoid queuing at the entrance to the Quarry, for the reasons given, there is no sufficient foundation for any finding of the commission of any development offence, including in respect of the more definitely stated requirement to have “[s]ystems in place … to ensure, as far as is reasonably practicable, that truck dispatches are staggered by a period of 5 minutes.”[217] Whilst it might be determined that because of the definiteness of this requirement, as it is addressed to a system to be adopted and controlled by the First Respondent, “as far as is reasonably practicable”, the conjunction, under Condition 8 of the 2016 Approval, of an obligation to act generally in accordance with this requirement, is not such as to allow any latitude in terms of having such a system which ensures such staggering, as far as is reasonably practicable, at the point of departure.
  2. [123]
    However, that is neither the formulation of the allegation actually made and neither was such a contention pursued in the hearing. Rather the Applicant was dismissive of the reliance of the First Respondent on the boom gate and maintained a position that the identified problem was convoying of haulage trucks after leaving the Quarry site.[218]
  3. [124]
    The evidence, as is the subject of the Applicant’s submissions set out above,[219] and as relied upon for the First Respondent, is that a system has been adopted since from March 2021, by the implementation of a boom gate, so as to eliminate the potential for human error, by limiting truck movements from the site. As described in the Affidavit of Mr Stewart, who described himself as having commenced employment with the First Respondent as the Site Senior Executive on 7 January 2021:

“The boom gate is solar powered, starting in an upright position and lowering once a vehicle drives over the sensor causing the boom gate to lower. lt remains in the closed position, before again opening to the upright position to permit the passage of another vehicle. The timing cycle is 5 minutes and 15 seconds from the time the boom gate begins to lower, to the time it is again fully upright.”[220]

Mr Stewart described his role in supervising the installation of that boom gate and ongoing role in monitoring the programmed operation of it, including by video link to the site office.

  1. [125]
    In the context of this evidence, as may be seen from the Applicant’s submissions above, a particular focus of attention was upon the Applicant’s collection of evidence from the camera placed in Sheppersons Lane, demonstrative of trucks passing that location, after departure from the Quarry, less than 5 minutes apart, including as to the incidence of that occurring after March 2021. As may be gleaned from the summary in attachment 3b of MFI-3, there are some 28 identified instances of the recording of trucks passing that camera on 13 separate days between 28 April 2021 and 9 February 2022; with 5 of those instances involving more than two trucks in sequence. The time gaps vary from approaching 1 minute to a number which are around 4 minutes or more. A concerning instance is the last, on 9 February 2022, when it is recorded that 4 trucks passed the camera within a period 3 minutes and 58 seconds. It is also a matter of concern, as is noted in the extract of the Applicant’s submissions set out above, that the First Respondent’s transport manager/allocator, Mr Palmer was, when confronted such examples, prepared to even postulate that an explanation might be that a driver might have driven around the boom gate, thereby providing an indication that such conduct might be possible and thereby undermining an effect of the evidence of Mr Stewart.
  2. [126]
    However and consistently with the focus of its case, the submission maintained by the Applicant,[221] is that “the only rational inference from the evidence is that trucks are travelling away from the quarry lot, within about 1000m of the lot, in intervals much shorter than 5 minutes”. That may be so and to the extent such a finding is capable of raising concern as to the conduct of some truck drivers inconsistently with the Driver Code of Conduct, the difficulty is in relating such a finding not just to the terms of the pleaded allegation but to any contravention of any identified obligation placed on the First Respondent under the QMP.
  1. [127]
    Finally in respect of this allegation and as one contention which may have relevance to the obligation placed on the First Respondent to discourage practices such as truck convoying, there is criticism directed at part of the content of a sign pointed to by Mr Cordwell, as part of the fulfilment of that obligation. The contention is that there is inaccurate statement of the requirements under the QMP in reference to a statement “that there is to be a minimum distance of 60m between trucks on the range”.[222] This is in reference to one of the signs referred to Mr Cordwell as being erected at the Quarry as part of meeting its obligations under the QMP.[223] It may be noted that under the heading “NOTICE”, the following appears:

“DEPARTURE TIMING OF 5 MINUTES BETWEEN TRUCKS

60m MINIMUM DISTANCE BETWEEN TRUCKS ON THE RANGE

300m BETWEEN TRUCKS ENTERING SHEPPERSONS LANE

UHF 40 ON THE RANGE”

The reference to the range is understood to be to that part of the Pomona Kin Kin Road which is particularly winding and elevated. Whilst this is not how the 60m minimum separation is referred to in the Driver Code of Conduct, which on the evidence is provided as part of the induction and training of haulage drivers in accordance with the requirements of the Road Transport Protocol, that criticised part does not appear in isolation from other relevant extracts from the same sources. It is also the only definite reference, in the TMP, to any separation distance between trucks. To the extent that this statement may not properly be a reminder of what has otherwise been given to the drivers in the form of the Driver Code of Conduct, it does not assist the position of the First Respondent in terms of its obligation to act generally in accordance with the requirement to discourage practices of truck convoying. But, as has been noted, this has not been the particular focus of these proceedings. And this sign is just a part of what the First Respondent points to in fulfilment of its obligation.

  1. [128]
    Accordingly, the appropriate conclusion is that there is no basis upon which the evidence which is relied upon here provides any sufficient foundation for any conclusion that the First Respondent has contravened any obligation placed on it under the 2016 Approval in respect of the separation of haulage trucks and particularly not as alleged in the Amended Originating Application.

Quarry trucks on Pomona Kin Kin Road during school bus hours

  1. [129]
    In the Amended Originating Application, the Applicant alleges that the First Respondent has and is committing a development offence by contravening the 2016 Approval, in that it “has allowed, or at least failed to prevent: …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)”. On that basis, the relief which is sought in the Amended Originating Application is an enforcement order to restrain the commission of such a development offence, in terms that the First Respondent: “cause Quarry Truck movements to cease on Pomona Kin Kin Road during school hours”.
  2. [130]
    Noting the apparently inconsistent breadth of both this formulation of the allegation and as to the relief sought, ultimately the Applicant’s contentions as to the relevant development offences committed by the First Respondent are also not expressed completely uniformly, as follows:
  1. “43.
    The Applicant submits that the evidence establishes that the quarry operator has not acted generally in accordance with the QMP because:
  1. It has not minimised truck movements during school bus hours; and
  2. The number of truck movements presently occurring in school bus hours is unacceptable from a safety perspective.

…

  1. The Applicant submits that the Court would find, on the evidence, that Cordwells has committed development offences in the period 20 January 2021 to 18 February 2022 by:
    1. not minimising truck movements in school bus hours;
  1. generating more truck movements than is safe in school bus hours.”[224]

Before noting the First Respondent’s contentions in response and particularly as to the inapplicability, or at least proof, of the second proposition and notwithstanding a later clarification to include a reference to the requirement in Condition 8 for the proposition in paragraph 83,[225] some explanation for the original omission of reference to the requirement for the First Respondent to act generally in accordance with the QMP, may be seen in understanding the Applicant’s position that the obligation referred to in the first proposition is such as to not allow any departure from what is expressly required under the QMP. That is, in the sense of reliance upon the ordinary meaning of the word “minimise” as: “to reduce to the smallest possible amount or degree”,[226] and the particular focus which the Applicant places on the necessity for achievement of such an outcome.

  1. [131]
    However and as a matter particularly and correctly relied upon by the First Respondent, in its defence of its own rights and interests in the operation of the Quarry, which is noted in the QMP as having been identified as a Key Resource Area of State and/or regional significance,[227] the overriding qualification of the management obligations placed upon the First Respondent in terms of being required to operate the Quarry generally in accordance with the obligations encompassed in the QMP, cannot be ignored and particularly in deciding whether any contravention of the approval has been proven to the requisite standard or degree of clarity. Recognition of that may explain why, at least in paragraph 43 of the extract, there is departure from the pleaded allegation of failure to prevent or at least allow certain outcomes. That requirement in Condition 8 of the 2016 Approval, also necessarily provides context for any questions of interpretation or construction of the provisions of the QMP.
  2. [132]
    It is therefore convenient to note the relevant parts of the QMP, in respect of which the First Respondent is obliged to act generally in accordance and, in the first instance, to do that by direct reference to the Applicant’s submissions:
  1. “39.
    The QMP provides the following in relation to traffic management in section 3.9.2

Issues/Aspects/Impacts:

“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” (emphasis added).

  1. In section 3.9.4, the TMP states that a “specific control measure” is to be:

“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.”(emphasis added).

  1. Specific guidance as to trucks being on Pomona-Kin Kin Road during school bus hours is provided in the QMP, under a section titled “Special Conditions”, as follows:

“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.” (emphasis added).

  1. The Applicant submits that these sections of the QMP should be, read as a whole and keeping in mind the planning impacts of quarry vehicles as discussed above, interpreted as obligations to:
    1. Minimise truck movements during school bus hours (6.30am – 9.00am and 3.00pm – 4.30pm) by re-scheduling and discouraging truck movements; and
    2. generate truck movements in the school bus hours at a level which ensures safety of the public during that time, including bus drivers, school children using the bus, parents assisting their children, other road users and quarry truck drivers.
  1. [133]
    Many of the Applicant’s contentions are premised upon the analysis of the data collected in relation to the truck movements related to the Kin Kin Quarry, in the period from 27 January 2021 to 9 February 2022.[228] It is again convenient to commence with the written contentions of the Applicant as to the effect of that and other relevant evidence, in support of the further contentions that:

“… the data establishes that there is no effective minimisation of truck movements during school hours. Further, the measures that Cordwells claims minimise truck movements are ineffective”.[229]

The more specific contentions are that:

  1. “46.
    The data allows, first, a comparison 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. The Austraffic data, obtained by the analysis of videos taken of all vehicles using the intersection of Sheppersons Lane and Pomona Kin Kin Road, is summarised in the “School Bus Hours Summary Table”. That table shows:
  1. Of the school days surveyed (shown without shading across table), on 66 of the 89 days (74% of days), the number of quarry trucks in school bus hours as a proportion of the number of quarry trucks over  the whole day was between 30% and 39%.
  2. On 9 of the 89 school days (10% of days), the number of quarry trucks in school bus hours as a proportion of the number of quarry trucks over the whole day was 40% or more.
  3. The average number of quarry trucks in school bus hours as a proportion of quarry trucks over the whole day was 32%.
  4. On most days when the number of quarry trucks in school bus hours as a proportion of quarry trucks over the whole day was less than 30%, it was more than 20%.
  1. To have an average of 32% of the quarry trucks in hours which constituted one-third of the operation 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.
  2. Mr Trevilyan considered this too simplistic an approach because (in his opinion) quarries are routinely busier in the morning than in the afternoon due to the way quarry products are utilised by concrete batching plants, road projects and construction sites. Mr Trevilyan provided data from other quarries which showed a larger proportion of their traffic occurred in the morning school bus hour period compared to the afternoon school bus hour period. He contended that because the Kin Kin quarry has a lower ratio of trucks in the morning school bus hours to afternoon school bus hours, they must be achieving minimisation.
  1. Mr Trevilyan’s analysis has a number of deficiencies. First, the Court knows nothing of the environmental authorities, council approvals or operational plans under which those quarries operate. The Court does not know their operating hours or other constraints on operation including school buses. The Applicant submits that data cannot be compared without knowledge of that background.
  2. In any case, to account for the proposition that the operation of quarries generally do routinely present greater volumes of trucks in the mornings, Mr Holland prepared a number of graphs which showed the comparison of school bus hours in the morning school bus period (6.30am – 9.00am) to the rest of the morning (6.15am – 12 noon), and a comparison of the morning school bus period (6.30am – 9.00am) to the non-school bus morning hours (6.15am – 6.30am and 9.00am – 12 noon). While there is variability, those graphs show a high degree of consistency between the number of trucks in the school bus hours and non-school bus hours in the morning. The graphs show that even within the morning period, over time, there is no difference between school bus and non- school bus hours.
  3. Second, the data allows a comparison between school days and school holiday periods. In the school holiday periods (shown with grey shading), excluding days around Easter, Christmas, New Year and Australia Day where operations were extremely minimal, the volume of quarry trucks in school bus hours as a proportion of quarry trucks over the whole day was generally consistent with that on school days. Statistically, on 32 of 48 school holiday days (66% of days) the number of quarry trucks in school bus hours as a proportion of quarry trucks over the whole day was over 30%. Ironically, this data shows there are slightly less trucks in school bus hours in school holiday periods.
  4. Mr Cordwell stated that Cordwell Resources does not distinguish between school day and non-school days, but rather operates consistently across all school days. That is borne out by the data. It evidences a significant loss of opportunity to minimise quarry trucks in school bus hours by this mechanism.
  5. It is anticipated that Cordwells will contend the comparison should be between the number of trucks in school days and the level of demand for trucks in school days. The Applicant submits the Court would not accept that measure as apposite given:
  1. The purpose of the condition and the provisions of the QMP is to manage safety concerns regarding the school buses using Pomona Kin Kin Road, which requires consideration of some objective standard, rather than simply a reduction from a potential volume; and
  2. The conditions are to be enforced by the Noosa Council as the enforcement authority under the Planning Act 2016 (Qld), and so a determination of whether truck movements have been minimised must be able to be objectively determined by the Council (or in this proceeding, the Court), and not reliant on information solely within the knowledge of the operator.
  1. Cordwells produced evidence of a number of measures they take, purportedly to minimise the number of trucks in school hours:
    1. Appointment of a transport manager/allocator;45
    2. Use of stockpiling capacity at Cordwells’ Yandina site and Chevallum sand plant;
    3. Pre-loading of trucks in the afternoon; and
    4. Cordwells’ use of about two-thirds of the material from the Kin Kin quarry.
  2. The appointment of a transport manager/allocator who can allocate loads out of school bus hours had the potential to minimise truck movements during school bus hours. Unfortunately, the evidence does not suggest that has happened. Mr Palmer was appointed in August 2021. Recourse to Exhibit 4, the school bus hours summary table, shows there has been no meaningful reduction in the proportion of quarry trucks in the school bus hours as a proportion of quarry trucks over the whole day since he was appointed.
  3. Further, there is little evidence that any re-allocating or re- scheduling is done. Mr Cordwell contends that Mr Palmer “prioritises regular contractors during the school bus operation hours” and “allocates non-regular loads outside of the school bus hours”. There is no  evidence of any particular load or number of loads that has been re-scheduled by Mr Palmer. His evidence is that he would only schedule “time critical” loads in the school bus hours. Under cross-examination, he admitted that he takes his customers statements about what is time critical at face value. He said he asks whether a load can be delayed but does not apparently press customers about whether loads can be taken the previous afternoon or otherwise outside of school bus hours. He said he didn’t think to include examples of when he had re-scheduled loads. He said:

“I do my best to – you know, you have to remember we’re a commercial operation, and I do my best to fulfil our customers’ needs within the bounds of the traffic management plan and the quarry management plan.”

  1. The Applicant submits the overwhelming import of the evidence is that Cordwells prioritise commercial considerations and so are not minimising truck movements in school bus hours.
  2. Some of the customers of Cordwells said that changing the way they received loads might be possible at some sites. Mr Lake said it might be possible to stockpile half a day or a day worth of material at some sites, or get multiple loads first thing in the morning. Mr Kelleher said it might be possible to get double deliveries for a road building project. There is no evidence of Mr Palmer discussing such options with customers, let alone taking active steps to comply with the requirements of the QMP in this respect.
  3. Despite Mr Palmer’s responsibility for vehicle movements, amazingly he had not read:
    1. The traffic data produced by Council;
    2. Any of the affidavits of expert witnesses;
    3. Any of the affidavits of council witnesses;
    4. Any affidavits of local residents;
    5. Any affidavits or evidence produced by Cordwells.
  4. He was, he said, “concerned with my evidence and my evidence only.” This shows an alarming lack of understanding of what his role is meant to achieve in terms of compliance with the QMP. When asked about the lack of impact of his appointment on the data about numbers of trucks in school bus hours, he said that Martin Cordwell had done a “tremendous job under onerous circumstances” and Mr Palmer was to “continue his good work”. It is apparent that:
    1. First, the appointment of a transport manager/allocator has made no change to the way truck movements are allowed in school bus hours;
    2. Second, there is no quantitative evidence of the reduction of truck movements in school bus hours by the transport manager/allocator.
  5. The employment of Mr Palmer is nothing more than a public relations exercise.
  6. Cordwells produced evidence that they had stockpiling capacity at Yandina and Chevallum, including:
    1. A short form description of that capability by Martin Cordwell;
    2. Aerial photographs taken from Nearmap showing the stockpiles increase and decrease over time, showing they are being used.
  1. Mr Cordwell states this “increased storage capacity” allows the transport manager/allocator to reorganise loads to avoid school bus operation hours. No doubt that is true; what has not been demonstrated is that Mr Palmer actually does that and thereby minimises the number of trucks in school bus hours.
  2. While Mr Cordwell does not say when the stockpiles were increased in capacity, the data collected by Council and prepared by Mr Holland shows there has been no real change over time in the proportions of trucks either:
    1. In school bus hours compared with the whole of the day;

or

  1. In the morning school bus hours compared with the morning non-school bus hours.
  1. A change over time would be expected if the stockpiles were being used to significantly minimise trucks during school bus hours.
  2. Despite Mr Palmer’s responsibility to “maintain the stockpile health” he could not quantify how much capacity each stockpile had. He said that if a customer asked for 10,000 tones, the stockpile might be gone in a day. He said that there might be some capacity at Chevallum for a bigger stockpile. He said he tried to keep the truck movements to the stockpiles outside of school bus hours. But he accepted that there were very few trucks in the 4.30pm to 6pm portion of the quarry’s operating hours. He appeared not to have considered or enquired into the possibility that there could be two shifts of truck drivers, or some other arrangement to have truck drivers work in that period.
  3. Martin Cordwell also (remarkably) did not know the capacity of the stockpiles at Yandina and Chevallum in exact figures. He estimated there was about 3000 to 4000 tonnes capacity at Yandina and Chevallum and about 500 tonnes at Caloundra. He said that capacity was utilised fully on a daily basis. His evidence focussed, in long answers that did not assist the Court, on the daily operations, including the number of trucks, when they might ordinarily go to the concrete batching plants and the loads different trucks could carry. He could not, or would not, give an estimate of how full the stockpile was at Chevallum or Yandina. The evidence of Mr Cordwell is unsatisfactory.
  4. The aerial photographs, while not the subject of expert evidence, appear at least on their face to include space that could be developed for stockpiles.
  5. The Applicant submits that evidence establishes:
    1. Cordwells do not utilise their stockpiles for the long term, but only keep a day or two of supply in those locations;
  1. There has been little or no investigation as to whether the stockpiles could be expanded or larger amounts of material kept there;
  2. There has been no significant management of those stockpiles, to build them up in quieter times or in the late afternoon. The focus, even of the higher ranked persons in Cordwells, is on day to day operations. Again the driving force dictating operating decisions is on commercial profit at the total expense of compliance with development approvals.
  1. Some customers of Cordwells said they received loads from Yandina or Chevallum. Some truck contractors say their trucks have been used for this purpose. There was no quantification of how many such loads were received or the times of day they were received. Without such detail, that evidence does not support the contention that truck movements were minimised during school bus hours by this measure.
  2. The evidence of pre-loading, similarly, does not contain any record or material proving the actual number of loads that were pre-loaded, and proving those loads would have otherwise travelled in the school bus hours.
  3. Finally, there is the use of two-thirds of the material from Kin Kin quarry by Cordwells’ other operations, mainly its concrete batching plants. This means there is the capability to control two- thirds of the trucks and their timing. Mr Palmer contended in evidence that on the majority of days, there are no trucks for Cordwells during the school bus hours, and “maybe in an emergency, there could be two, possible three”. There is no quantitative data to support this contention. Further, the Council’s data suggests it is not correct. If one-third of the trucks on most days are in school bus hours, then two-thirds are outside those hours. If all of Cordwells trucks (two-thirds) are outside, that would mean none of the non-Cordwells trucks are outside those hours. That is inconsistent with:
    1. Mr Cordwell’s description of a having trucks do five loads in a day – it would be highly unlikely a truck going to one site to deliver product would be able to complete 5 loads either inside or wholly outside the school bus hours;
    2. The customers’ descriptions of having trucks start first thing in the morning and go back and forth to the quarry delivering in regular intervals until about 3pm.
  4. The Applicant submits that, overall, the Court would not consider these measures constitute any minimisation of truck volumes during school bus hours because:
    1. First, there is no identification of any data against which these measures could be analysed, no identification of any particular load that was re-scheduled or reallocated outside of school bus hours.
  1. Second, there is no evidence of what the customers or needs of Cordwells’ concrete batching plants were at the time any rescheduled loads were managed, so it is not known whether any identified load was rescheduled or simply outside of school bus hours for some other reason.
  2. Third, and perhaps most strikingly, none of those measures have done anything for the number or proportion of trucks in school bus hours,81 right through to February 2022, after the interim hearing and only a few weeks before the hearing of evidence in March 2022.
  1. It is anticipated that Cordwells may seek to rely on the language “seek to minimise” in section 3.9.9 of the QMP. The Applicant submits the Court would interpret those words as a requirement to actually minimise truck movements in circumstances where:
    1. Cordwells are entirely, and solely, responsible for the number of truck movements from its quarry during school bus hours;
    2. There is no emergency or sudden situation which would require a truck movement in school bus hours not authorised by Cordwells; and
    3. The safety considerations which underpin the QMP will not be served in any way by token, ineffective efforts to minimise truck movements.”
  1. [134]
    It is unnecessary to note the references to the evidence relied upon in support of these contentions, as those references may be obtained from the written submissions. The First Respondent expressly acknowledges paragraph 46 of this extract, as “a fair factual summary of what that data collection demonstrates”.[230] To the limited extent that the submissions for the First Respondent otherwise take issue with the summation of the evidence, this will be noted and dealt with below, as will be the broader and more conceptual issues raised by the First Respondent.
  2. [135]
    However and before doing so, it is also convenient to next deal with the second ultimate contention of the Applicant, as it is premised in focus upon the safety of the truck movements which are occurring in the school bus hours periods. It is again convenient for similar reasons, to first note the Applicant’s written submissions and summation of the effect of the evidence relied upon:[231]
  1. “76.
    Mr Holland considered the overall number of truck movements using the road in 2021 (average of 73 vpd for January 2021 to September 2021) presented an unacceptable safety risk given the characteristics of the road. He considered it particularly concerning from a safety risk perspective that there was an average of 26 vpd in the school bus hours.
  1. From the crash data available to Mr Holland from 2009 to 2020, he considered that it was possible to say that 10 quarry trucks per weekday (5 loaded and 5 unloaded) was an acceptable minimum. He accepted, reasonably, that it was difficult to identify a maximum number which would be safe. Given the length of time that data has been collected when the volume of quarry trucks increased to some degree in 2017-2019 and then significantly in 2019, 2020 and 2021, he could not draw any conclusion as to the safety of the volumes of quarry trucks in those periods.
  2. If the proportion of quarry trucks in school bus hours remained at one-third of the total, that would result in the total number of quarry trucks in school bus hours being around 3 trucks (perhaps two loaded and one unloaded). That is significantly below current volumes, which Mr Holland identified as 26 vehicles per school day.
  3. Mr Holland also states the eminently reasonable proposition that the community’s expectation would be that any crash between a quarry truck and a school bus carrying school aged children would be unacceptable, no matter how rare.
  4. Mr Trevilyan accepted that road safety was “important” but considered that the fact the quarry was approved and its compliance with the TMP was relevant to an understanding of road safety. If it is accepted that safety is a requirement of the QMP, that approach is circular. Mr Trevilyan put emphasis on upgrades to the range area of the Pomona-Kin Kin Road in 2012, which involved pavement widening, line marking and increased guide posts.
  5. Apart from Mr Trevilyan’s effort, Cordwells’ case on the obligations around school bus hours appears to be based on measures they have implemented related to how trucks operate during those hours, including:
    1. the boom gate;
    2. holding trucks at the boom gate for 15 minutes at 6.30am;
    3. identification of times the bus is on the range by signage;
  1. implementation of UHF radios and a GPS system.
  1. The boom gate works consistently throughout the day and does not distinguish between school bus hours and other hours. Holding trucks at the boom gate at 6.30am and the narrow identification of times Mr Browning’s bus is on the range, deals with only very small portions of the hours that are to be protected in accordance with the approval. The obligation under the approval is to minimise truck volumes and manage safety concerns throughout the school bus hours, not for four 10 minute periods. That obligation is sensible when it is recognised that the safety concerns do not only arise when a truck meets a full school bus on the range, but when any quarry trucks are on the road in the school bus hours at the same time. That includes the whole of Pomona Kin Kin Road, not only the range, as well as the potential for:
    1. Children to be walking by the side of the road to get to their bus stop, or get to their home;
    2. Children to be crossing the road to get to their bus stop;
    3. Children to be waiting by the side of the road;
    4. Parents to be driving children to their bus stop or home;
    5. The school bus to be stopped on the side of the road before picking up any children.”
  1. [136]
    As must be accepted, the First Respondent contends that these proceedings, particularly as they relate to an allegation of the commission of development offences by way of contravention of the existing approval, do not, in effect, allow for the re-agitation of the assessment of the approved use of the Quarry or more particularly, the conditions which have been stipulated under that approval, in order to manage the impacts of that approved use.[232] It is correctly pointed out that the opinions expressed by Mr Holland as to the safety issues are significantly influenced by his identification of the shortcomings of the Pomona Kin Kin Road, as an identified haul route.[233] It is also correctly pointed out that, in the context of the express recognition of shortcomings of that road in the QMP, such deficiencies are and remain a matter for the relevant road authority to address having regard to the lawful uses of that road.[234]
  2. [137]
    Further, the First Respondent points to the assistance of the evidence of Mr Reynolds, in identified agreement with that of Mr Buckley, as follows:
  1. “27.
    I agree with Mr Buckley:
  1. at his paragraph 14(d), where he acknowledges the Traffic Management Plan (TMP), forming part of the Quarry Management Plan (OMP), canvasses an appropriate range of traffic safety and operating conditions;
  2. at his paragraphs 14(e) and (f) where he acknowledges the TMP/QMP is a fair, reasonable and sound approach to management, including recognising there will be peaks and troughs in demand; and
  3. at his paragraph 14(g) where he says the impacts identified by the complaints are the subject of the QMP and are sought to be minimised by the QMP.
  1. 28.
    Accordingly, the TMP/QMP is designed to manage the impacts identified by the complaints and is capable of doing so.”[235]
  1. [138]
    More fundamentally and with some justification, the First Respondent takes issue with the Applicant’s formulation of its relevant obligations under the QMP and particularly so as to provide any foundation for weight to be given to the opinions of Mr Holland as to the safe use of the Pomona Kin Kin Road by haulage trucks. As the First respondent points out,[236] whilst the objective of road safety is clearly identified in respect of the obligations placed upon it in respect of management of haulage from the Quarry,[237] those obligations are to be properly identified in terms of acting generally in accordance with the measures directed to achieving that objective, in the QMP. In that regard and in respect of the same provisions of the QMP to which the Applicant refers, the First Respondent identifies those obligations, as must be accepted to be a correct approach in having regard to all of the language of the approval, as:
    1. Expressed in s 3.9.4 of the TMP as a specific control measure to be adopted, in terms of “[i]mplementation of the road transport protocol and a “Drivers Code” which includes avoiding cartage during when the school bus is using the local road system”, as a requirement “to avoid cartage during times when the school bus is actually using the road”; and
  1. Not inconsistently expressed as a special condition in s 3.9.9 of the TMP, in the context of attention being generally drawn to the need for attention to care having regard to circumstances of the Pomona Kin Kin Road, that during the identified weekday hours in which the “School Bus generally operates in school terms”, as requiring that it “seek to minimise truck movements in the School Hours by:
    1. (i)
      re-scheduling product deliveries from the site; and
    1. (ii)
      discouraging unnecessary truck movements.” [238]
  1. [139]
    As is correctly pointed out for the First Respondent there is no allegation as to contravention of the first requirement nor, it can be said, that this construction of that requirement is not correct. Therefore in seeking of relief in terms of cessation of truck movements in what may be taken to be intended as a reference to the operational hours of the school bus in s 3.9.9 of the TMP, that is necessarily premised upon contravention of the obligation in s 3.9.9 and is clarified as warranted, notwithstanding the discretion of the Court to make some different order, as a necessary and appropriately sufficient measure to stop the continuation of the First Respondent’s development offence.[239]
  2. [140]
    The construction of the critical obligation in s 3.9.9 of the TMP which is contended by the First Respondent must be accepted as correct. The words “seek to” are not to be ignored and neither they are not just to be viewed as an ineffective qualification of the word “minimise”, but are rather linked to the stipulated measures “by” which the First Respondent is required to seek to minimise the truck movements in the periods when the school bus generally operates.
  3. [141]
    As the First Respondent also correctly contends the Applicant’s allegation has not been framed in reference to such obligations, nor, as the submissions which have been noted as made for the Applicant indicate, has it been so directed in the evidence and approach in the hearing of this matter. So much is made clear by the following written response of the Applicant to these contentions of the First Respondent:
  1. “10.
    Cordwells contends that Council has not alleged or proved that Cordwells has not sought to minimise truck movements by re- scheduling deliveries and discouraging unnecessary truck movements. First, Council contends the obligation is to minimise, as contended in paragraph [74] of its Written Submissions. Second, Council submits even if the obligation is to seek to minimise, that obligation has the same content in circumstances where Cordwells are entirely responsible for truck movements to and from its quarry. This is a matter of inference. If the number of school buses is not minimised in circumstances where Cordwells and its employees, particularly Mr Palmer, have complete and exclusive control of when and under what circumstances trucks haul quarried material, then it follows that:
  1. Cordwells must not have sought to minimise the truck movements, because it could do so if it wished; and
  2. Cordwells must not have rescheduled or discouraged truck movements in a real effort to seek to minimise truck movements, because it could have achieved that if it wished.”

The essential difficulty, however, is in effectively turning what is required to be proved on its head to attempt to suit the inappropriate approach which had been adopted in the hearing. That is, in seeking to adopt something that is unexpressed in the QMP and neither definitively identified by the Applicant, as a measure of relevant minimisation of truck movements, in order to infer that the First Respondent must not have rescheduled or discouraged unnecessary truck movements.

  1. [142]
    The Applicant’s contentions in paragraph 53 of the extract of its submissions, set out above, and particularly as to the necessity for the ability of the enforcement authority to objectively determine whether truck movements have been minimised, might relevantly inform the formulation of a condition upon approval of a development, but cannot inform the construction of an approved condition which does not include any such specific criteria. As the First Respondent contends, with acceptance that it is ultimately an issue to be determined objectively:
    1. The stipulated obligations are expressed in the context of an expectation that there will be truck movements in the stipulated periods and in terms of re-scheduling product deliveries and discouraging unnecessary truck movements in those periods;[240]
    2. An appropriate conception of “re-scheduling” is as to “a change to an event which would ordinarily have occurred (a scheduled product delivery)” and that contrary to the Applicant’s contention, “that obligation requires a comparative exercise between what was planned (or demanded) and what remains”, in order to objectively determine whether minimisation has been sought;[241] and
  1. That there is no necessary impediment to the satisfaction of the onus placed on the enforcement authority, particularly having regard to its legislatively provided investigatory powers, and nothing to warrant any reversal of that onus, even if the task may be difficult having regard to the terms of the approved condition.[242]
  1. [143]
    In that context, there are a number of valid contentions made for the First Respondent in relation to the limitations of the analyses of the data the Applicant has collected, including that:
    1. In essence, the data is only in respect of volumes of truck movements that occurred rather than being directed at what was or was not rescheduled or not discouraged as unnecessary;[243]
    2. The approach of simply demonstrating that an average of 32% of the truck movements occurred in the stipulated periods, as they represented a third of the operating hours of the Quarry, does not therefore provide any sufficient foundation for any inferences in that respect;[244] and
    3. To the extent that the data analysis demonstrated consistency of truck movements in the periods of school holidays, the potential significance of that comparison is substantially diminished in understanding that these periods represent 12 out 52 weeks in a calendar year and the evidence of the adoption of a policy by the First Respondent to not distinguish its operations in the school holiday periods so as to maintain consistency and to thereby minimise risk of non-compliance through error.[245]
  2. [144]
    The First Respondent contends that:

“… the evidence establishes that it has acted generally in accordance with the QMP because:

  1. it avoids cartage during the times when the school buses are actually on the road: having liaised with the local bus operator Mr Browning as to when he is transiting the range; notifying drivers by signage of those times, ensuring communications with Mr Browning and limited movement away from the quarry site during those periods; and
  1. sought to minimise truck movements in the School Hours by:
    1. (i)
      re-scheduling all its own product deliveries (up to 2/3rds) from the quarry during that period; and
    1. (ii)
      discouraging all truck movements which are not necessary to meet standing commercial obligations i.e. no movement for maintenance or equipment and no individual sales and non-contracted quarry trucks operator movements in that period.”[246]

It is convenient to then note some of the submissions made in elaboration of these points, in more specific reference to the evidence which is relied upon:

  1. “127.
    To the end sought by section 3.9.9 of the QMP, the evidence demonstrates that the First Respondent:
  1. utilises stockpiling capacity at the Yandina and Chevallum sites to meet demand from its own operations during this period, and deliver direct to customers subject to logistics;
  2. pre-loads trucks in the afternoon if possible; and
  3. has appointed a Transport Manager/allocator to particularly address community concerns about Quarry Truck movements during School Bus times who has sole responsibility of managing truck movements to and from the quarry, scheduling, contractor management, ensuring loads are covered and implementing the Road Transport Protocol.
  1. In particular, in seeking to minimise those movements the Transport Manager/Allocator
    1. prioritises the regular contractors during the school bus operation hours;
    2. allocates non-regulator loads outside the school bus operation hours;
    3. re-schedules loads during school bus hours to balance local loads with other loads to minimise the number of trucks on the school routes at the relevant times.
  2. The Council’s criticism of that evidence is unfounded, proceeding on either on the basis that it is the First Respondent and not the Council which carries the onus or that such activities were not carried about by Mr Cordwell, in his overarching capacity as Operations Manager prior to the engagement of Mr Palmer in August 2021. Both   Mr Palmer and Mr Cordwell gave oral evidence to the contrary in response to questioning on that precise topic.
  1. Furthermore, it is pertinent that between half to two thirds of the resource produced at the quarry is used by the First Respondent for its own operations. That necessarily consequents substantial truck movements of product from the quarry to the First Respondent’s other sites. The First Respondent seeks to further minimise truck movements during the School Bus period by the significant stockpiling of quarry product at the First Respondent’s sites at Chevallum and Yandina, for either use in its own operations or for sale to third parties, which:
    1. permits the First Respondent to reschedule loads to avoid loads to the First Respondent’s own sites being conducted during school bus periods;
    2. minimises unnecessary movements during those periods to service its own operations;
    3. reduces the number of truck movements to and from the quarry by use of truck and trailer combinations rather than body trucks;
    4. enables the first Respondent to replenish the stockpiles outside of the busier periods (including school bus times).
  2. In support, Mr Palmer gave evidence that on the majority of days there were no loads to the First Respondent’s own sites during the school bus hours, and maybe in an emergency, there could be two, possible three.
  3. The Council’s criticism of that evidence is again unfounded, it is premised upon Council’s mischaracterisation of the evidence of the use of two-thirds (as opposed to between half and two thirds) of the material from Kin Kin Quarry by Cordwells’ other operations. Furthermore, it again assumes, without basis, that none of the non-Cordwells trucks, as the Council submits, are delivering from stockpiles; which is contrary to the uncontested lay-witness evidence of Mr Lake and Mr Kelleher, who stated they were aware of a number of occasions where resource had been delivered to their jobsites via those stockpiles. In that premise, those criticisms ought to be rejected.
  4. Those actions seeking to minimise Quarry truck movements in the school bus period are further complemented by the First Respondent preloading trucks in the afternoon, wherever possible, in order to avoid trucks having to start their day at the quarry, permitting them to head directly from their depot the home of the driver to the first allocated delivery site in the morning.
  1. The consequence of the above actions is that the First Respondent has sought to minimise truck movements during that school bus period by rescheduling product deliveries from the site and discouraging unnecessary truck movements on Kin Kin Pomona Road during those periods. The only quarry truck movements during that period are those necessary to service third parties, and the First Respondents other operations only where stockpiling is depleted.
  1. The servicing of third parties is of no small moment due to commercial imperatives and the impacts on general operations of not operating at all during the school bus periods, particularly given the sites role and function as a recognised key resource area. The nature of demand for quarry product is higher in the morning period due to the industry it services where time is of the essence; in that respect, if the First respondent was unable to meet that demand, their customers would simply source the product from elsewhere given the flow on effects to the conduct of their own operations.
  2. Further, the Council’s submissions with respect to a potential change in the way some of the First Respondent’s customers received loads at some sites is fraught with danger. Firstly, it speaks of mere possibilities of stockpiling on site of a half a day or as day worth of material at some sites and the possibility of getting double deliveries for a road building project.
  3. Undoubtedly those possibilities may well be true in some circumstances at the election of a customer, but what was not established under cross examination of the lay-witnesses was whether they would actually avail themselves of that possibility, or what would be the commercial implications if such requirements were thrust upon them (as opposed to having liberty to deal with delivery as required). In that respect, the Council contention is devoid of commercial reality. Indeed, it was not established that clients (purchasers) would even accept those as either practical or commercial possibilities. Indeed, there was direct evidence to the contrary.
  1. In respect of the commercial practicalities, some insight may be drawn from the customers who were called for cross- examination. Mr Kelleher gave evidence it would cost him more to stockpile as it would require double handling, and that is even if they could stockpile due to site availability. Further he said that it will cost him more and be more inconvenient than somebody else that will be able to supply with the same quality of material within the specific timeframe. Mr Lake, in response to stockpiling options said:
    1. they wouldn’t stockpile quarry material on-site if they can help it as they only have control of parts of the site and would have space to do so;
    2. they wouldn’t want to have material on-site if they can’t use them for cost efficiencies; and
  1. whilst having the ability to move material from one spot to another, they wouldn’t choose to do it due to double handling and it not being a cost-effective method of constructing a job.
  1. In that respect, Council’s submissions lack any force and ought to be afforded little weight. One rhetorically asks is why would a customer assume the burden, and attendant risk, of stockpiling on its worksite (if indeed it can and not affect other trades) to suite a supplier, when it could just as easily go to an alternative supplier who could meet their delivery requirements. That is particularly so when considering the evidence that when a resource provider, in addition to cost and material specifications, the clients look at the delivery time for the resource to enable the works to proceed in a timely manner and be completed.”[247]
  1. [145]
    There is and could not be any challenge to these contentions, as far as they seek to summarise the essential effect of the evidence upon which they are premised. As has been noted above, in the context of dealing with the issues as to interpretation of the relevant obligations placed on the First Respondent under the QMP, the response of the Applicant remained upon what was contended to be the necessary implications of the analyses of the data it had collected. In a broader sense, this and other evidence, including that of Mr Trevilyan, is the foundation for the First Respondent’s contentions, it must be said with a sense of some justification, that the Applicant’s approach at least does not pay due regard to the economic issues of supply and demand in respect of the material produced from the Quarry, wrongly assumes no implications or disadvantage to the bulk stockpiling of such material and the evidence as to the effect that double handling of the product “is cost prohibitive and commercially uneconomic and impractical”.[248]
  2. [146]
    In respect of the contested submissions of the Applicant as to the First Respondent’s reliance upon the commercial considerations of its operations, within the parameters of the approval, it must be noted that in terms of the balance which is sought to be struck between those interests and the broader interests of the community and particularly the impacts of the approved use on that community, the approved QMP, and as some context for the obligations placed on the First Respondent, it is specifically acknowledged:
    1. In the introduction in section 1, at s 1.2, that:

“The quarry has been identified as a Key Resource Area (KRA 57) under the State Planning Policy therefore constituting a resource of State and/or regional significance.”;[249] and

  1. In the TMP, in s “3.9.2 Issues/Aspects/Impacts”, that:

“Transport costs associated with the haulage of material constitutes a significant proportion of the product end cost which is ultimately borne by the consumer.”[250]

Albeit that this reference to the significance of transport costs may be seen in the immediate context of the stated rationale for the TMP, in s 3.9.1, after express reference to the incidence of haulage vehicles as a necessary aspect of the operation of the Quarry, that “[t]he principal objectives of the Traffic Management Plan are to manage the impact of haulage vehicles on the local roads and community”. It should also be that in the immediately following provision, in s 3.9.2 under the heading “Issues/Aspects/Impacts”, the following is relevantly stated:

“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. final destination of the product.

  • 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 will then be used as required depending on the final destination of the product.”[251]

  1. [147]
    In respect of its reliance on the evidence of Mr Trevilyan in demonstrating a greater level of demand for delivery of the quarry product affecting the management of deliveries in the morning school bus hours period and the Applicant’s criticisms of that evidence and the weight to be given to it, the First Respondent correctly points out that the effect of it is supported by other evidence, including that of “independent lay witnesses that higher traffic volumes in the morning are reflective of the demand and nature and nature of the construction industry”.[252]
  2. [148]
    It is unnecessary to further examine the evidence. The essential flaws which are identified as to the Applicant’s identification of the relevant obligations of the First Respondent and the formulation of its allegation as to an offence pursuant to s 164 of the PA, does not permit of any finding that the First Respondent has committed the alleged development offence, essentially because no such obligation or requirement of Condition 8 in reference to the QMP, is able to be identified.
  3. [149]
    Further and even in respect of any correct reformulation of an allegation, in terms that the First Respondent has contravened the QMP by not acting generally in accordance with its obligation to 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 the identified periods when the school bus is generally using the road, it is clear that neither the approach of the Applicant nor, more particularly, the evidence, is sufficient to allow for any finding, to the requisite standard, that any such contravention has been proven.
  4. [150]
    That is so, even if as may be understood in respect of the particular focus of the Applicant, that the objective of the obligation is in seeking minimisation rather than merely some reduction of the incidence of truck movements in the stated periods. As has been accepted, there is nevertheless a question of relativity involved and one which is to be determined by reference to what is or is not done by the adoption of the specified measures, in terms of re-scheduling product deliveries from the site and discouraging unnecessary trucks movements on the Pomona Kin Kin Road. That might reasonably be expected to be addressed in reference to what has or has not actually occurred in practice in respect of those specified measures, rather than by the attempt to reason only from the analyses of Mr Holland which are not so directed.
  1. [151]
    This allegation was neither framed nor pursued in a way which was specifically directed at such a proposition and was only incidentally engaged by way of the raising of some criticisms of the complete effectiveness of practices, to which the First Respondent generally pointed as adopted in compliance with the identified obligation. As the First Respondent correctly points out, the onus of proof of the contravention of Condition 8, in this respect, remains with the Applicant and the evidence to which the First Respondent points, stands as an obvious impediment to the Applicant’s satisfaction of its onus of proof. In the circumstances and for the reasons which have set out, it is only necessary and appropriate to find that the Applicant has not satisfied that onus to the necessary standard.

Conclusions

Development offences pursuant to s 164?

  1. [152]
    In these circumstances and except in respect of its allegation in respect uncovered truck loads, the Applicant has not proved the significant and ongoing development offences which it had alleged under s 164 of the PA, by breaches of Condition 8 of the 2016 Approval.
  2. [153]
    As has been noted, in order to establish the commission of a development offence pursuant to s 164 of the PA, it is necessary to prove to the requisite standard, that there has been a contravention of a development approval. Here that was, in different ways, an attempt to prove the First Respondent’s contraventions of Condition 8 of the 2016 Approval as that condition engaged the terms of the QMP.
  3. [154]
    Further and in order to establish that such an offence has occurred or will occur unless restrained, for the purpose of engaging the enforcement powers of this Court pursuant to s 180 of the PA, it is necessary that the alleged offence is sufficiently precisely identified so that the relevant evidence may be identified, and the respondent has a fair opportunity to respond.
  1. [155]
    Fundamentally here, that obligation necessarily devolved to the identification of specific requirements of the QMP, which the First Respondent was obliged to act generally in accordance with. As has been noted, in most instances, the Applicant’s approach in departure from the specifically expressed requirements of the QMP has been problematic. Whilst it may be understandable that the Applicant sought to establish the breach of obligations in the nature of “allowing or at least permitting” certain alleged outcomes to occur, particularly in the context of the nature of evidence which was to be relied upon and as informing the extent of the relief sought in the Amended Originating Application and, in most instances such an obligation was not able to be discerned from the requirements of the QMP, as engaged by Condition 8 of the 2016 Approval. And in some instances where the contentions did ultimately devolve to a more specifically expressed obligation, it is apparent that the nature of that evidence was not sufficient to allow for any conclusion of proof of such contravention, to the necessary standard.
  2. [156]
    The exception is in the proof of the contravention of the First Respondent’s obligation in respect of the covering of departing loads of the quarry product. It will be necessary, in respect of those proven contraventions, to consider the exercise of the Court’s discretion as to whether and what enforcement might be appropriate in consequence of that finding.
  3. [157]
    Before doing that, and before that also returning to the Applicant’s allegation of commission of a development offence pursuant to s 165 of the PA, it is appropriate to note, consistently with what has been noted above as to the inappropriateness of making any positive finding as to the appropriateness of the First Respondent’s conduct in respect of its obligations relating to the school bus operating periods and the interactions of haulage trucks with school buses,[253] that the other findings made in respect of the remaining allegations brought under s 164, are simply reflective of that approach as to the formulation of the allegations and the nature of the evidence relied upon in respect of those allegations.
  4. [158]
    As will be noted below in dealing with discretionary considerations, there is a body of evidence presented by the First Respondent, which provides some indications of initiatives engaged as its focus has been drawn, by these proceedings and the investigations leading to them, to particular aspects of the requirements of the QMP. The First Respondent now also has the benefit of this decision, particularly as to the contravention which have been found as established, in respect of the potential limitation of simple reliance on the phrase “generally in accordance with”, as it may relate to any clear and specific requirement of the QMP and which may relate to the achievement of an outcome which is to be seen as within the direct control of the First Respondent. It is trite to observe that even in respect of the requirements of the QMP involving less direct connection of the First Respondent’s responsibilities to specific outcomes, that sense of focus which has been brought to it by these proceedings would be advisedly maintained into the future.

Material change of use?

  1. [159]
    Returning to the allegation in respect of material change of use, in the sense of material increase in the intensity or scale of the use of the premises, the failure of proof of most of the alleged contraventions of Condition 8 as they were framed and pursued against the First Respondent, is a particular impediment to such a finding. As has been noted, the Applicant correctly accepted the necessity to prove, as a matter of fact and degree, such an increase of scale or intensity of use as to be material in the sense of taking that use beyond that which was approved and therefore unlawful.
  2. [160]
    As again can be observed as important for future reference, this decision has served to reject the notion put forward for the respondent that the extent of the approved use and therefore its rights of use of the Quarry, which it is entitled to rely upon and protect, must be determined only by reference to what is acknowledged in the QMP as to any expected rates of extraction, let alone as to the noted potential or possible maximum, stated by reference to the Environmental Relevant Activities approval, which is acknowledged in the QMP. As has been entertained here, in accordance with the principles which have been noted, substantial inability of the First Respondent to maintain compliance with the requirements placed on it in the QMP, as engaged by condition 8 of the 2016 Approval, may present the necessary sense of materiality or unlawfulness of the increased scale or intensity of its use of the Quarry. That is, if in the consideration of the relevant matters of fact and degree, any such inability can be linked to that increase in intensity or scale of use and therefore having the impacts which were otherwise sought to be managed by the condition and requirements of the QMP.
  1. [161]
    Here the focus was upon what was contented to such an effect of certain aspects of the QMP, as they related to the number and frequency of haulage truck movements on the identified primary haul route, as is necessary in order to transport the product of the Quarry to market. It is to be noted that in respect of the only established allegation, while it may be in some way related to an increase in intensity or scale of use, it does not necessarily carry any implication that it is demonstrative of any sufficient sense of unlawfulness in order to establish the materiality of that increase. That is, in the sense that the identified failing is in respect of the system which is expected to avoid any relevantly uncovered load leaving the Quarry, whatever is the volume of such loads. In any event, and in terms of any restraint of these contraventions in any ongoing sense, as a matter of discretion, that would be obviously amenable to an enforcement order directed specifically at such established contravention of the approval, under s 164.
  2. [162]
    Therefore and in the context of the QMP specifically acknowledging an expectation of the rate of extraction or production, which is demonstrated in the evidence before the Court, it is not otherwise established, on the evidence and the findings in respect of the allegations as to the contravention of the 2016 Approval by the First Respondent, that a material change of use of the premises, has occurred, such as to constitute a development offence under s 165 of the PA.
  3. [163]
    As for the Applicant’s contention that the evidence establishes that the First Respondent “will carry out a material change of use, without a permit, in breach of s 165”, unless restrained, that also confronts the difficulties which have been identified in terms of identification of such clarity of criteria and evidence to enable a conclusion, to the requisite standard, as to such a future event, such to be amenable to a present enforcement order. Some particular reliance was placed on what was said in Mr Cordwell’s evidence, as to an aspiration to maximise the truck movements to 12 departures per hour and to thereby achieve up to the production of 1m tonnes per annum.[254] That evidence was given in cross examination, in the context of what has been noted as the First Respondent’s position in terms of such an approved rate of production. As well, the questioning and the responses did not seek to reflect any different considerations for the periods of school bus operation.
  1. [164]
    However the point is not simply, as was sought to be addressed in oral submissions,[255] whether increased levels of production might be theoretically achievable, allowing for the staggering of departures at 5 minute intervals and even outside the periods of school bus operation, but the necessity to understand the effect of what has been determined here as to the potential limitations on the volume of truck movements in achieving compliance with the obligation in Condition 8 to operate the Quarry generally in accordance with the requirements placed on the First Respondent by the QMP. As has been identified, the problems here related to the approach adopted in reference to the available evidence and it should not be assumed that, in respect of any substantial further increase in the volume of truck movements, in conjunction with compliance with all of the requirements of the QMP, including the handling of responses of the community drawing attention to the impact of them in terms of any practice of convoying for example, this decision will determine any further allegation of failure to operate generally in accordance with the requirements in the QMP and potentially amounting to a material change of use of the Land. Such conclusion may be noted as consistent with the last paragraph in section 1.5 of the introductory section of the QMP,[256] as follows:[257]

“Quarry operations will be carried out generally in accordance with this QMP. Any changes or alterations will follow the statutory process for changes to approvals having regard to the extent of the change proposed and in accordance with changes to legislation applicable to site activities from a planning, environmental and safety prospective from time to time.”

  1. [165]
    As matters stand, on the evidence before the Court, there is no sufficient basis for any finding that the First Respondent will, unless restrained by an enforcement order, commit a development offence by unlawfully operating the Quarry such as to be a material change of use. The most obvious difficulty lies in ability to make any present prediction that such a situation would occur. As well as that, there is what has been noted in this decision as to the rejection of the simple reliance upon the premise upon which such aspirations were identified and also what is noted in further detail below, in dealing with discretionary considerations, as to the responses of the First Respondent to attention which has been evidently drawn, in connection with these proceedings, to some requirements of the QMP and also in noting the evidence of Mr Cordwell as to the First Respondent’s awareness of community concerns as to the operations of the Quarry and his assertion that:

“The Regulators, including the Applicant, and the community are important to Cordwells and as such measures have been implemented in order to address concerns raised. Specifically, concerns have been raised regarding the intervals at which trucks leave the Kin Kin Quarry, uncovered loads, early arrivals, convoys and truck movements during school bus times.[258]

Discretionary considerations

  1. [166]
    The power of the Court to make an enforcement order is discretionary and in the event the Court finds that a development offence has been committed, it does not automatically follow that enforcement orders should be made.[259] These are not proceedings in prosecution of the commission of any development offence and therefore engaging any notion of penalty, as a means of seeking to achieve compliance with a development approval.
  2. [167]
    As adopted by the Court of Appeal in Queensland, in decision of Mudie v Gainriver Pty Ltd & Ors,[260] the exercise of such discretion may be guided by the considerations identified by the New South Wales Court of Appeal decision in Warringah Shire Council v Sedevcic,[261] as follows:
  1. “1.
    The discretionary power conferred on the Court by s 124 of the Act is wide. Relevantly to the present case, it is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction: Attorney-General and Down County Council v Newry No 1 Rural District Council [1933] NI 50 and Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 692.
  1. 2.
    It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases: Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197. Nonetheless, keeping that salutory warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. The Council itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law (cf Parramatta City Council v R A Motors Pty Ltd (1986) 59 LGRA 121 at 125f) or the fact that the local authority had delayed the bringing of its action (ibid at 125), or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect: cf, eg Woollahra Municipal Council v Carr (1982) 47 LGRA 105 and cf North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440.
  1. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney- General v BP (Australia) Ltd (1964) 83 WN(Pt 1) (NSW) 80 at 8712 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211.
  1. It is only in this sense that special circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to “special cases”, as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend. But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124.
  1. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council. This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law.
  2. Where the relief is sought against a static development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend. But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals. It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no static development can be proved.
  3. The wide discretion has been described as an adequate safeguard against abuse of a salutary procedure: see Menzies J in Cooney v Ku-ring- gai Municipal Council (1964) 114 CLR 582 at 605(1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this softening can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies.
  1. On appeal to this Court, due regard will be had to the exercise by a judge of the Land and Environment Court of his discretion to decline or grant an injunction. This is not only because of the well-known principles which restrain the interference of appellate courts in the exercise of a discretion committed by law to trial judges. Nor is it so simply to avoid the burden of primary decision-making which would result from too ready an interference in the exercise or such discretions. Restraint is also called for because Parliament has established a specialist court, with a large measure of exclusive jurisdiction. That Court necessarily superintendends the application of the legislation in its jurisdiction having regard to the merits of particular cases and, as well, the way individual decisions operate to achieve a consistent and a principled application of that legislation.”
  1. [168]
    Whilst it is only necessary to consider such exercise of discretion in relation to the finding which has been made as to the uncovered truck loads issue, it is useful to note the range of matters identified in the First Respondent’s submissions, in reference to the Sedevic guidelines, as considerations which ought to inform the exercise of the discretion (at that time having regard to the potentiality of broader findings as to developmental offending) and in militating against the making of enforcement orders, upon any such finding as to the commission of a development offence, particularly given the nature of the enforcement orders which were sought against the alleged breaches:[262]
    1. the First Respondent has the benefit of the existing approval and there is a need to uphold significant public interests in the certainty and confidence in the entitlement to rely upon, and act under, development approvals properly obtained and attaching to the land;
    2. the enforcement orders either:
      1. (i)
        as to those sought in paragraphs 3(b), (c), (f) and (g) of the Amended Originating Application, lack certainty, and otherwise pertain to matters regulated by the terms of the extant approval such that such orders are not necessary and lack utility;
      1. (ii)
        as to those sought in paragraphs paragraphs 3(a), (d) and (e) of the Amended Originating Application, go beyond that required to ensure compliance with the development approval, absent probative basis;
  1. there being only one relevant traffic safety incident involving quarry trucks, in the last 10 years including since commencement of operations by the First Respondent, over two years ago during the period in which the alleged intensification is said to have occurred;[263]
  2. the public interest in the economic exploitation of a key resource of state and regional significance currently with a limited approved life of the extant Development Approval;
  3. the significant procedural and operational management controls implemented by the First Respondent to address compliance with the conditions and to address the impacts of truck movements, such as:
    1. (i)
      installation of a boom gate system limiting to just over 5-minute intervals, heavy vehicle departures (less than 12 per hour maximum) from the Premises accessing Pomona Kin Kin Road;[264]
    1. (ii)
      appointment of a Transport Manager/Allocator to assist in minimising heavy vehicle movements during school hours;[265]
    1. (iii)
      engagement of external consultants Groundwork Plus to implement the GPlus Live site specific online digital platform to, inter alia, manage truck movements to and from the Premises, inductions, questionnaires, training and protocols,[266] which has now been implemented;[267]
    1. (iv)
      signage at the exit of the Premises, relevantly identifying School bus times on the range and requirement to contact the School bus on UHF 40;[268]
  1. the development of storage capacities (stockpiling) at the First Respondent’s sites to assist in the scheduling of truck movements and reduction in truck numbers during school bus operation hours;[269]
  2. locking of the entrance gate to the quarry preventing heavy vehicle access until approved operating hours;[270] and
  3. communication protocols for communication between the quarry trucks and the ridged school bus[271] including implementing a GPS system into regular contractor vehicles (who are the only ones allocated to undertake haulage/cartage during school bus operation hours) and the rigid school bus to permit real time monitoring to ensure safety and efficiencies of movements to avoid the rigid school bus.[272]
  1. the commercial implications for the First Respondent and its sub-contractors arising from the imposition of such enforcement orders.[273]
  1. [169]
    Whilst the First Respondent acknowledges the concerns held by the Council and community relating to the particular circumstances of the haulage route, including in respect of school bus operations, it is pointed out that they are matters addressed in and by the QMP, and are not new considerations having been present at the time of the preparation of and approval of the QMP. It is also submitted that any such countervailing public interest consideration relating to public safety in connection with the First Respondent’s operations is not made out, in the fullness of the evidence, particularly in the identification of issues which really go to the current standard of the Pomona Kin Kin Road, when viewed in the context of the approved use of the Quarry in accordance with the development approval. That is contended as a matter the road regulatory authority, the Department of Transport and Main Roads.
  2. [170]
    Furthermore and of some potential relevance to the past contraventions which have been found, the First Respondent places some emphasis on its adoption of the GPlus Live platform, on 31 January 2022, as “a useful check balance to ensure the contracted haulage operators and their drivers, have completed all required training and updates, and have completed all checks prior to leaving the Premises, whereby live time notifications of non-compliance with the checks or training permit First Respondent to undertake corrective action”.[274] It is further said to be designed site specifically for the quarry and specifically containing information to assist the site in ensuring drivers are trained in site procedures, rules and the drivers’ code of conduct,[275] as ensuring legislative requirements are met and permitting inspection by regulators to ensure compliance has occurred.[276]
  1. [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:
  1. “(2)
    The power to order a person to stop, or not to start, an activity may be exercised whether or not—
  1. the P&E Court considers the person intends to engage, or to continue to engage, in the activity; or
  2. the person has previously engaged in an activity of the same type; or
  3. there is danger of substantial damage to property or injury to another person if the person engages, or continues to engage, in the activity.
  1. The power to order a person to do anything may be exercised whether or not—
    1. (a)
      the P&E Court considers the person intends to fail, or to continue to fail, to do the thing; or
    1. (b)
      the person has previously failed to do a thing of the same type; or
    1. (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.”
  1. [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, 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:
  1. “(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;
  1. 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.
  2. 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.
  3. 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]
  1. [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.
  2. [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 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.
  1. [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:
  1. “(3)
    The P&E Court may make an enforcement order if the court considers the development offence—
  1. has been committed; or
  2. 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:

  1. “(2)
    An enforcement order is an order that requires a person to do either or both of the following—
  1. refrain from committing a development offence;
  2. remedy the effect of a development offence in a stated way.

…

  1. An enforcement order or interim enforcement order may direct the respondent—
    1. (a)
      to stop an activity that constitutes a development offence; or
    1. (b)
      not to start an activity that constitutes a development offence; or
  1. to do anything required to stop committing a development offence; or
  2. 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
  3. 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.

  1. [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.
  2. [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

  1. [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.

Footnotes

[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.

[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.

[7] Ibid, Attachment 12, p 39

[8] Ibid, Attachment 28, p 131.

[9] Ibid, Attachment 37, p 343 and ff.

[10] 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.

[11] 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.

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

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

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

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

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

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

[18] 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.

[19] 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

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

[21] (1938) 60 CLR 336.

[22] (1965) 112 CLR 517.

[23] (1992) 110 ALR 449.

[24] Ibid, 449-450 (citations omitted).

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

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

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

[28] Ibid, [38].

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

[30] 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.

[31] 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.

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

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

[34] Ibid, [21].

[35] 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.

[36] (2014) 201 LGERA 82, [52]-[58].

[37] Ibid, [55].

[38] See 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”

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

[40] 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].

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

[42] Ibid, p 396; Quarry Management Plan, p 54.

[43] Ibid.

[44] Ibid, p 397; Quarry Management Plan, p 55.

[45] Ibid.

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

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

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

[49] See: Macquarie Dictionary, Fifth Edition.

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

[51] Ibid, p 399; Quarry Management Plan, p 57.

[52] 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”.

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

[54] Ibid, p 92.

[55] Ibid, p 57.

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

[57] As 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].

[58] See 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.

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

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

[61] Applicant’s Written Submissions, filed 18/05/2022, [129], in reference to Snook v Secretary of State for the Environment and Others (1977) 33 P&CR 1, 4, per Bridge J, with whom Widgery CJ and Everleigh J agreed in the Queen’s Bench Division (citations omitted).

[62] Applicant’s Written Submissions, filed 18/05/2022, [130], in reference to Thames Heliports PLC v London Borough of Tower Hamlets (1996) 74 P&CR 164 at 169 per Schiemann LJ (with whom Ward and Beldam LLJ largely agreed, in the Court of Appeal). The following subsequent observation, at 170, may also be noted in respect of the application of the planning legislation there in issue:

  1. “… the legislation is designed to regulate questions of the human environment and not questions of physics. One must look at the question ‘has someone made a material change in the use of land?’ from the point of view of human beings likely to be affected by the change which has occurred.”

[63] [2001] QPEC 31.

[64] Applicant’s Written Submissions, filed 18/05/2022, [122].

[65] [2002] QPELR 116; [2001] QCA 273, pp 2-3.

[66] [2001] QPELR 328.

[67] [2001] QPELR 328, [77].

[68] Applicant’s Written Submissions, filed 18/05/2022, [138]; CEO Certificate, filed 06/10/2021, Attachment 37, p 349; Quarry Management Plan, p 7.

[69] Applicant’s Written Submissions, filed 18/05/2022, [139]-[145].

[70] CEO Certificate, filed 06/10/2021, Attachment 37, p 351; Quarry Management Plan, p 9.

[71] Ibid, p 353; Quarry Management Plan, p 11.

[72] Ibid, p 354; Quarry Management Plan, p 12.

[73] Ibid, p 364; Quarry Management Plan, p 22.

[74] Ibid.

[75] Ibid, p 368; Quarry Management Plan, p 26.

[76] Ibid.

[77] Ibid, p 369; Quarry Management Plan, p 27.

[78] Applicant’s Written Submissions, filed 18/05/2022, [148]-[151].

[79] CEO Certificate, filed 06/10/2021, Attachment 37, p 373; Quarry Management Plan, p 31.

[80] Ibid.

[81] Ibid, p 375; Quarry Management Plan, p 33.

[82] Ibid, pp 376-7; Quarry Management Plan, pp 44-45.

[83] See paragraph [5] above.

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

[85] Ibid, p 396; Quarry Management Plan, p 54.

[86] Ibid, pp 397-8; Quarry Management Plan, pp 55-6.

[87] Ibid, pp 403-4; Quarry Management Plan, pp 61-2.

[88] Ibid, p 407; Quarry Management Plan, p 65.

[89] Ibid, p 444, Quarry Management Plan, p 102.

[90] Ibid, p 445; Quarry Management Plan, p 103.

[91] Applicant’s Written Submissions, filed 18/05/2022, [171]-[175].

[92] Ibid, [176].

[93] Applicant’s Written Submissions, filed 18/05/2022, [170], in reference to the Affidavit of Christopher Buckley, filed 25/02/2022, [24]; TB 1145.

[94] First Respondent’s Written Submissions, filed 13/06/2022, [77].

[95] Ibid.

[96] Applicant’s Written Submissions, filed 18/05/2022, [153].

[97] T6-14.15-43.

[98] Applicant’s Written Submissions, filed 18/05/2022, [164]-[166].

[99] First Respondent’s Written Submissions, filed 13/06/2022, [160].

[100] Ibid, [68].

[101] Applicant’s Written Submissions, filed 18/05/2022, [158]-[160], with references to the Affidavit of S A Holland, filed 06/10/2021.

[102] Ibid, [52].

[103] First Respondent’s Written Submissions, filed 13/06/2022, [61].

[104] CEO Certificate, filed 06/10/2021, Attachment 37, p 349; Quarry Management Plan p 7.

[105] CEO Certificate, filed 06/10/2021, Attachment 37, p 351-352; Quarry Management Plan p 9-10.

[106] Ibid, p 352; Quarry Management Plan p 10.

[107] Ibid.

[108] See paragraph [32(e)], above.

[109] First Respondent’s Written Submissions, filed 13/06/2022, [71].

[110] Ibid, [72].

[111] Applicant’s Written Submissions, filed 18/05/2022, [134].

[112] See paragraphs [21]-[22].

[113] First Respondent’s Written Submissions, filed 13/06/2022, [75] in reference to the Applicant’s Written Submissions, filed 18/05/2022, [191].

[114] First Respondent’s Written Submissions, filed 13/06/2022, [75].

[115] First Respondent’s Written Submissions, filed 13/06/2022, [54].

[116] Ibid, [56]-[59].

[117] [2021] QCA 26.

[118] [2013] QPELR 70.

[119] See [2021] QCA 26, [60] and [90] and [2013] QPELR 70, [24].

[120] See paragraph [43] above.

[121] Applicant’s Written Submissions, filed 18/05/2022, [133].

[122] [2011] QPELR 349.

[123] First Respondent’s Written Submissions, filed 13/06/2022, [74].

[124] Ibid, [77].

[125] See paragraph [7], above.

[126] Whether by recourse to the provision in s 7 of the Criminal Code, see First Respondent’s Written Submissions, filed 13/06/2022, [18]-[21], or otherwise.

[127] See paragraph [48], above.

[128] See paragraph [11], above.

[129] [2005] QPEC 30.

[130] Applicant’s Written Submissions, filed 18/05/2022, [26].

[131] Ibid, [27].

[132] Affidavit of C G Buckley, filed 08/10/2021, Exhibit CGB-1, [9]; TB 1137.

[133] Ibid, [9] and [14]; TB 1137-1138.

[134] Affidavit of S R Reynolds, filed 09/11/2021, [28].

[135] Applicant’s Written Submissions, filed 18/05/2022, [180]-[186].

[136] Ibid, [185].

[137] Amended Originating Application filed 02/03/2022, [27].

[138] Applicant’s Written Submissions, filed 18/05/2022, [25] and [113], T7-39.31-40.

[139] Amended Originating Application filed 02/03/2022, [24]-[25].

[140] Ibid, [23]-[25].

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

[142] CEO Certificate, filed 06/10/2021, Attachment 37, p 369; Quarry Management Plan, 3.1.2.

[143] CEO Certificate, filed 06/10/2021, Attachment 37, p 368, Quarry Management Plan, 3.1.1.

[144] Ibid, p 398

[145] Applicant’s Written Submissions, filed 18/05/2022, [116].

[146] (1959) 101 CLR 298.

[147] Affidavit of M T Cordwell, filed 03/11/2021, [51]; TB 1633, “this” being in reference to his preceding assertion that: “Any driver caught leaving the Kin Kin Quarry without a covered load (unless it is a large rock load) is required to immediately return and dump its load.”

[148] First Respondent’s Written Submissions, filed 13/06/2022, [258]-[263].

[149] Affidavit of M T Cordwell, filed 03/11/2021, [33], Exhibit MTC-1 p 27; TB 1666.

[150] Amended Originating Application filed 02/03/2022, [27(d)].

[151] First Respondent’s Written Submissions, filed 13/06/2022, [228].

[152] Ibid, [231]-[232].

[153] See paragraph [14], above.

[154] Sections 3.9.1, 3.9.2 and 3.9.3.

[155] Affidavit of S B Lutwyche filed 22/02/2022, [3]; TB 1753.

[156] See the First Respondent’s Written Submissions, filed 13/06/2022, [237]-]238] including footnotes.

[157] Affidavit of S B Lutwyche filed 22/02/2022, [8]-[13]; TB 1753-4.

[158] First Respondent’s Written Submissions, filed 13/06/2022, [241] and the footnoted references to that evidence.

[159] Reference is made to Jedfire Pty Ltd v. Logan City Council [1995] QPLR 41, 43.

[160] Reply Submissions of the Applicant, filed 09/06/2022, [27(b)].

[161] Applicant’s Written Submissions, filed 18/05/2022, [65].

[162] Amended Originating Application filed 02/03/2022, [27(b)].

[163] See the First Respondent’s Written Submissions, filed 13/06/2022, [87]-[88], including the footnoted references to the evidence of local residents

[164] First Respondent’s Written Submissions, filed 13/06/2022, footnotes 101 and 103.

[165] First Respondent’s Written Submissions, filed 13/06/2022, [92]. This was later, in the Reply Submissions of the Applicant, filed 09/06/2022, [22], clarified to a submission as to not operating the Quarry generally in accordance with the QMP so as to constitute a development offence.

[166] First Respondent’s Written Submissions, filed 13/06/2022, [89] and the Reply Submissions of the Applicant, filed 09/06/2022, [19].

[167] Amended Originating Application, filed 02/03/2022, [3(b)and (c)].

[168] First Respondent’s Written Submissions, filed 13/06/2022, [154]-[155].

[169] Issues arising in respect of the relief sought are dealt with below and it is necessary to note it could not be and was not contended for the First respondent that it was other than a matter for the Court as to the terms of any relief in the form of an enforcement order.

[170] First Respondent’s Written Submissions, filed 13/06/2022, [154] and [165].

[171] Ibid, [156].

[172] Ibid, [160] and cf: the Reply Submissions of the Applicant, filed 09/06/2022, [20] where the criticisms at [160(e)] are implicitly accepted.

[173] First Respondent’s Written Submissions, filed 13/06/2022, [161]-[162].

[174] First Respondent’s Written Submissions, filed 13/06/2022, [163], in reference to the Affidavit of H R C Stewart filed 22/02/22, [13]-[18].

[175] Affidavit of M T Cordwell filed 3/11/21, [40] and [49]; TB 1631, 1632.

[176] (2014) QPELR 686, [56].

[177] Reply Submissions of the Applicant, filed 09/06/2022, [17].

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

[179] First Respondent’s Written Submissions, filed 13/06/2022, [165].

[180] CEO Certificate, filed 06/10/2021, Attachment 37, pp 398, 445 and ff; Quarry Management Plan, pp 56, 103 and ff.

[181] CEO Certificate, filed 06/10/2021, Attachment 37, p 447; Quarry Management Plan, p 105.

[182] CEO Certificate, filed 06/10/2021, Attachment 37, p 448, Quarry Management Plan, p 106.

[183] CEO Certificate, filed 06/10/2021, Attachment 37, p 449-450; Quarry Management Plan, p 107-108.

[184] CEO Certificate, filed 06/10/2021, Attachment 37, p 445; Quarry Management Plan, Appendix 5.

[185] Ibid, p 446.

[186] Applicant’s Written Submissions, filed 18/05/2022, [96], First Respondent’s Written Submissions, filed 13/06/2022, [203].

[187] Ibid at p 449.

[188] Applicant’s Written Submissions, filed 18/05/2022, [97].

[189] Ibid, [98].

[190] Ibid, [99]. The First respondent also refers to various dictionary definitions but not with any contention as to any different or helpful effect. See the First Respondent’s Written Submissions, filed 13/06/2022, [198]-[200]

[191] As it is referenced in the Applicant’s Written Submissions, filed 18/05/2022, [99] and the First Respondent’s Written Submissions, filed 13/06/2022, [206].

[192] Applicant’s Written Submissions, filed 18/05/2022, [101]-[102], with footnoted references in reliance on particular parts of that evidence.

[193] First Respondent’s Written Submissions, filed 13/06/2022, [211]-[212]

[194] First Respondent’s Written Submissions, filed 13/06/2022, [213]-[214].

[195] CEO Certificate, filed 06/10/2021, Attachment 37, p 398; Quarry Management Plan, p 56.

[196] First Respondent’s Written Submissions, filed 13/06/2022, [216]. Although, contending a necessity for proof of intention to drive in convoy may be more debatable.

[197] Reply Submissions of the Applicant, filed 09/06/2022, [26].

[198] First Respondent’s Written Submissions, filed 13/06/2022, [173].

[199] Ibid at [215].

[200] Amended Originating Application, filed 02/03/2022, [3(f) and (g)].

[201] See paragraph [98], above.

[202] Amended Originating Application, filed 02/03/2022, [3(f) and (g)].

[203] First Respondent’s Written Submissions, filed 13/06/2022, [175] (with italicised emphasis retained).

[204] First Respondent’s Written Submissions, filed 13/06/2022, [177].

[205] First Respondent’s Written Submissions, filed 13/06/2022, [177].

[206] First Respondent’s Written Submissions, filed 13/06/2022, [217].

[207] First Respondent’s Written Submissions, filed 13/06/2022, [217].

[208] Reply Submissions of the Applicant, filed 09/06/2022, [24].

[209] First Respondent’s Written Submissions, filed 13/06/2022, [179]-[180].

[210] As explained in the Affidavit of D N G Carrico filed 6/10/21, [4]-[6]. See also the CEO Certificate, filed 06/10/2021, p 360 and Ex. 9.

[211] Applicant’s Written Submissions, filed 18/05/2022, [103]-[107].

[212] The reference is to T6-84.11-15 and T6-84.36-44.

[213] The reference is to T4-188.36 – T4-199.2.

[214] The reference is to T4-122.2-12.

[215] The reference is to T4-122.14-24

[216] The reference is to the affidavit of M T Cordwell, filed 03/11/2021, Ex MTC-1; TB 1665.

[217] CEO Certificate, filed 06/10/2021, Attachment 37, RTP 1.3.2, p 445.

[218] Applicant’s Written Submissions, filed 18/05/2022, [104] and Reply Submissions of the Applicant, filed 09/06/2022, [25].

[219] Reply Submissions of the Applicant, filed 09/06/2022, [25].

[220] Affidavit of H C R Stewart filed 22/2/22, [7].

[221] Reply Submissions of the Applicant, filed 09/06/2022, [25].

[222] Applicant’s Written Submissions, filed 18/05/2022, [106]

[223] Affidavit of M T Cordwell filed 2/11/21, [33]-[35], MTC-1, p26; TB 1665.

[224] Applicant’s Written Submissions, filed 18/05/2022, [43] and [83].

[225] Reply Submissions of the Applicant, filed 09/06/2022, [15].

[226] Ibid at [45] and see the First Respondent’s Written Submissions, filed 13/06/2022, [95], where this ordinary meaning, as taken from the Macquarie Dictionary, Fifth Edition, is accepted.

[227] CEO Certificate, filed 06/10/2021, Attachment 37, 1.2, p 351.

[228] As summarised in MFI-F.

[229] Applicant’s Written Submissions, filed 18/05/2022, [44].

[230] Applicant’s Written Submissions, filed 18/05/2022, [116].

[231] Ibid at [76]-[82], again with the references to the sources of evidence relied upon, not reproduced from those submissions.

[232] First Respondent’s Written Submissions, filed 13/06/2022, [114].

[233] Ibid

[234] Ibid at [114(a)].

[235] Ibid at [114(b)], in reference to the affidavit of Affidavit of S R Reynolds, filed 09/11/2021, Ex SRR-1, at [27]-[28]; TB 1791, and the Affidavit of C G Buckley, filed 08/10/2021,

[236] First Respondent’s Written Submissions, filed 13/06/2022, [142]

[237] Eg: in the context of the express reference to “safety” as an issue in the preceding section, under the heading “Performance Targets” in s 3.9.3:

“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.”

[238] First Respondent’s Written Submissions, filed 13/06/2022, [90].

[239] Reply Submissions of the Applicant, filed 09/06/2022, [16]

[240] First Respondent’s Written Submissions, filed 13/06/2022, [96].

[241] Ibid at [105].

[242] Ibid at [108]-[109].

[243] First Respondent’s Written Submissions, filed 13/06/2022, [118].

[244] Ibid, [119].

[245] Ibid, [126], with reference to the Affidavit of M T Cordwell filed 03/11/2021, [34]-[35]; TB 1701.

[246] First Respondent’s Written Submissions, filed 13/06/2022, [93] (footnotes omitted).

[247] First Respondent’s Written Submissions, filed 13/06/2022, [127]-[139], with footnoted references to the evidence relied upon omitted.

[248] First Respondent’s Written Submissions, filed 13/06/2022, [125].

[249] CEO Certificate, filed 06/10/2021, Attachment 37, 1.2, p 351.

[250] CEO Certificate, filed 06/10/2021, Attachment 37, 3.9.2, p 396.

[251] CEO Certificate, filed 06/10/2021, Attachment 37, pp 396-397; Quarry Management Plan, pp 54-55.

[252] First Respondent’s Written Submissions, filed 13/06/2022, [120], with particular reference to Affidavit of B R Trevilyan, filed 22/02/2022, [44]-[60]; TB 1815-1819; Affidavit of M T Cordwell, filed 03/11/2021, [60]-[61]; Affidavit of L M Kelleher, filed 22/02/2022, [7]-[8]; TB 1924; Affidavit of S Lake, filed 22/02/2022, [6]; TB 1932; T 4-5.46 – T4-6.8.

[253] The evidence was as to the operation of multiple school buses on the Pomona Kin Kin Road in the relevant periods, but no point was taken in respect of the singular description in the QMP, although the evidence did differ as to measures adopted in respect of individual buses.

[254] T6-24.16-45 and T6-25.31-3

[255] T7-16.3-35.

[256] See the reference to this section at paragraph [32] above.

[257] CEO Certificate, filed 06/10/2021, Attachment 37, p 352-353; Quarry Management Plan, p 10-11.

[258] Affidavit of M T Cordwell, filed 03/11/2021, [20]; TB 1628.

[259] Bon Accord Pty Ltd v Brisbane City Council & Ors [2008] QPEC 119 [173].

[260] [2010] QCA 382, in respect of an equivalent power in precursor legislation.

[261] (1987) 10 NSWLR 335, 338-340.

[262] First Respondent’s Written Submissions, filed 13/06/2022, [267] and [269], with the footnoted references to the evidence relied upon renumbered below.

[263] Affidavit of I D Browning, filed 12/01/2022, [17]-[20]; TB 1150-1151; Affidavit of M T Cordwell, filed 03/11/2021, [53]; Affidavit of M C Cann, filed 03/11/2021, [12]; Affidavit of V J Humphreys, filed 03/11/2021, [11]; Affidavit of D M Marr, filed 03/11/2021, [17]; Affidavit of B J Nash, filed 03/11/2021, [23]; Affidavit of H L Riggs, filed 09/11/2024.

[264] Affidavit of M T Cordwell, filed 03/11/2021, [21]-[22]; TB 1628; Affidavit of M T Cordwell, filed 22/02/2022, [17]-[18]; TB 1698

[265] Affidavit of M T Cordwell, filed 03/11/2021, [23]-[28]; TB 1628-1629; Affidavit of S L Palmer, filed 03/11/2021; TB 1705; Affidavit of M T Cordwell, filed 22/02/2022, [19]-[22]; TB 1698-1699.

[266] Affidavit of M T Cordwell, filed 03/11/2021, [29]-[32]; TB 1629-1630.

[267] Affidavit of M T Cordwell, filed 22/02/2022, [5]-[16]; TB 1697-1698.

[268] Affidavit of M T Cordwell, filed 03/11/2021, [33]-[35]; TB 1630.

[269] Affidavit of M T Cordwell, filed 03/11/2021, [36]-[37]; TB 1630; Affidavit of M T Cordwell, filed 22/02/2022, [23]-[27]; TB 1699-1700.

[270] Affidavit of H R C Stewart, filed 22/02/2022, [13]-[17]; TB 1928.

[271] Affidavit of M T Cordwell, filed 03/11/2021, [38]-[39]; TB 1631.

[272] Affidavit of M T Cordwell, filed 22/02/2022, [28]-[33]; TB 1700.

[273] First Respondent’s Written Submissions, filed 13/06/2022, [267] and [269].

[274] 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.

[275] Affidavit of C A Hill, filed 22/02/2022; TB 1773.

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

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

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:

    [2024] QPEC 50

  • Court:

    QPEC

  • Judge(s):

    Judge Long SC

  • Date:

    29 Nov 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Attorney- General v BP (Australia) Ltd (1964) 83 WNPt 1
1 citation
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Cite 1 - (1964) 83 WNPt 1
Attorney-General v Harris (1961) 1 QB 74
1 citation
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Cite 1 - (1961) 1 QB 74
Blacktown Municipal Council v Friend (1974) 29 LGRA 192
1 citation
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Cite 1 - (1974) 29 LGRA 192
Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119
1 citation
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Cite 1 - [2008] QPEC 119
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
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Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Bucknell v Townsville City Council [2021] QCA 26
3 citations
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Cite 1 - [2021] QCA 26
Cite 2 - [2021] QCA 26
Cite 3 - [2021] QCA 26
Cases Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2011] QPELR 349
2 citations
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Cite 1 - [2011] QPELR 349
Cite 2 - [2011] QPELR 349
Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582
1 citation
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Cite 1 - (1964) 114 CLR 582
Cooney v Ku-ring-gai Municipal Council (1963) 9 LGRA 290
1 citation
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Cite 1 - (1963) 9 LGRA 290
Down v Newry No. 1 Rural District Council (1933) NI 50
1 citation
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Cite 1 - (1933) NI 50
Environmental Protection (Noise) Policy 2008 (Qld) Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 2 NSWLR 681
1 citation
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Cite 1 - (1974) 2 NSWLR 681
Firefast Pty Ltd v Council of the City of Gold Coast (1999) QPELR 200
2 citations
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Cite 1 - (1999) QPELR 200
Cite 2 - (1999) QPELR 200
Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400
1 citation
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Cite 1 - (1980) 44 LGRA 400
Grace Bros. v Willoughby Municipal Council (1980) 44 LGERA 400
1 citation
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Cite 1 - (1980) 44 LGERA 400
Guildford Rural District Council v Fortescue [1959] 2 QB 112
1 citation
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Cite 1 - [1959] 2 QB 112
Hawkins & Izzard v Permarig Pty Ltd (2001) QPELR 423
1 citation
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Cite 1 - (2001) QPELR 423
Hawkins and Izzard v Permarig Pty Ltd (No. 1) (2001) QPELR 414
1 citation
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Cite 1 - (2001) QPELR 414
Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council [2001] QPELR 328
3 citations
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Cite 1 - [2001] QPELR 328
Cite 2 - [2001] QPELR 328
Cite 3 - [2001] QPELR 328
Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2002] QPELR 116
2 citations
Jump To
Cite 1 - [2002] QPELR 116
Cite 2 - [2002] QPELR 116
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41
1 citation
Jump To
Cite 1 - [1995] QPLR 41
Jewry v Maroochy Shire Council [2005] QPEC 30
2 citations
Jump To
Cite 1 - [2005] QPEC 30
Cite 2 - [2005] QPEC 30
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Jones v Sutherland Shire Council (1979) 2 NSWLR 206
1 citation
Jump To
Cite 1 - (1979) 2 NSWLR 206
Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPELR 349
1 citation
Jump To
Cite 1 - [2010] QPELR 349
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
1 citation
Jump To
Cite 1 - (1983) 155 CLR 211
Mariner Construction Pty Ltd & Ors v Maroochy Shire Council (2000) QPELR 334
1 citation
Jump To
Cite 1 - (2000) QPELR 334
Maroochy Shire Council v Barns [2001] QCA 273
1 citation
Jump To
Cite 1 - [2001] QCA 273
Maroochy Shire Council v Barns [2001] QPEC 31
1 citation
Jump To
Cite 1 - [2001] QPEC 31
Matijesevic v Logan City Council (1983) 51 LGRA 51
1 citation
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Cite 1 - (1983) 51 LGRA 51
Maxen Developments Pty Ltd v Burnett Shire Council [2007] QPEC 60
1 citation
Jump To
Cite 1 - [2007] QPEC 60
Mudie v Gainriver Pty Ltd & others [2010] QCA 382
2 citations
Jump To
Cite 1 - [2010] QCA 382
Cite 2 - [2010] QCA 382
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
2 citations
Jump To
Cite 1 - (1992) 110 ALR 449
Cite 2 - (1992) 110 ALR 449
Noosa Council v Cordwell Resources Pty Ltd [2021] QPEC 67
3 citations
Jump To
Cite 1 - [2021] QPEC 67
Cite 2 - [2021] QPEC 67
Cite 3 - [2021] QPEC 67
Norman v Gosford Shire Council (1975) 132 CLR 83
1 citation
Jump To
Cite 1 - (1975) 132 CLR 83
North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440
1 citation
Jump To
Cite 1 - (1985) 54 LGRA 440
Parramatta City Council v Hale (1982) 47 LGRA 319
1 citation
Jump To
Cite 1 - (1982) 47 LGRA 319
Parramatta City Council v R A Motors Pty Ltd (1986) 59 LGRA 121
1 citation
Jump To
Cite 1 - (1986) 59 LGRA 121
Rejfek v McElroy (1965) 112 CLR 517
2 citations
Jump To
Cite 1 - (1965) 112 CLR 517
Cite 2 - (1965) 112 CLR 517
Rowley v New South Wales Leather and Trading Co. Pty Ltd (1980) 46 LGRA 250
1 citation
Jump To
Cite 1 - (1980) 46 LGRA 250
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
1 citation
Jump To
Cite 1 - (1970) 19 LGRA 321
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5
1 citation
Jump To
Cite 1 - [2007] QPEC 5
Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334
1 citation
Jump To
Cite 1 - [2007] QPELR 334
Snook v Secretary of State for the Environment and Others (1977) 33 P and CR 1
1 citation
Jump To
Cite 1 - (1977) 33 P and CR 1
Sunland Group Limited & Anor v Gold Coast City Council [2021] HCA 35
1 citation
Jump To
Cite 1 - [2021] HCA 35
Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325
1 citation
Jump To
Cite 1 - (2021) 274 CLR 325
Thames Heliports PLC v London Borough of Tower Hamlets (1996) 74 P and CR 164
1 citation
Jump To
Cite 1 - (1996) 74 P and CR 164
Transpacific Industries Group v Ipswich City Council [2013] QPELR 70
3 citations
Jump To
Cite 1 - [2013] QPELR 70
Cite 2 - [2013] QPELR 70
Cite 3 - [2013] QPELR 70
Trimboli v Penrith City Council (1981) 48 LGRA 323
1 citation
Jump To
Cite 1 - (1981) 48 LGRA 323
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
3 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335
Cite 3 - (1987) 10 NSW LR 335
Woollahra Municipal Council v Carr (1982) 47 LGRA 105
1 citation
Jump To
Cite 1 - (1982) 47 LGRA 105
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
2 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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