Success tips from Cordwell Resources Pty Ltd v Noosa Council [2024] QPEC 51
The Planning and Environment Court has upheld an enforcement notice issued by Noosa Council in its decision on a recent appeal commenced by the notice recipient in Maroochydore (Cordwell Resources Pty Ltd v Noosa Council [2024] QPEC 51).
Background
Council issued an enforcement notice to the operator of Kin Kin Quarry, Cordwell Resources, in relation to the construction of a fixed screening plant at the site. Council issued the notice on the basis that the plant, in particular its location and features, was in breach of the operator’s development approval and, therefore, a development offence had been committed. The operator appealed Council’s enforcement notice by way of a proceeding in the Planning and Environment Court. Over the course of a four-day hearing, his Honour Judge Everson heard from Council and the operator’s legal teams and expert witnesses in relation to matters of structural engineering and operations, noise, dust and traffic amenity and town planning.
Decision
At the conclusion of the hearing, his Honour determined that Council had validly issued the enforcement notice. In reaching his conclusion, his Honour accepted the evidence provided by the Council’s structural engineer and quarry operations experts which identified that the plant was a ‘fixed plant’ and its construction did not align with the operator’s approved management plan. It was determined that the plant’s current location had town planning consequences and was a material departure from the basis on which the development approval was given. His Honour made final orders as proposed by Council which issued a revised enforcement notice to the operator. The revised notice was in substantially the same terms as Council’s original notice, save for the amendment of the time for compliance and the inclusion of an alternative rectification option. Ultimately, the notice requires the operator to either remove the fixed plant, move it to the approved area or regularise it in accordance with planning legislation.
“Expert witnesses in relation to matters of structural engineering and operations, noise, dust and traffic amenity and town planning”
Key takeaways
Given the community interest in the matter and Council’s history with the operator, Council involved its legal team from the commencement of its initial investigations into the subject plant. This allowed Council to make well informed, calculated and strategic decisions regarding the most effective enforcement response.
Tips from the proceeding include:
- Engage legal representatives early in the enforcement process for complex or high-interest matters (prior to the issuance of statutory notices, PINs, commencing proceedings etc.);
- Conduct multiple site inspections and gather evidence prior to taking the first enforcement step;
- Retain quality expert advice to inform the strength of Council’s evidence; and
- If requiring the removal of unlawful building work, include an alternative option to allow the recipient to apply to regularise the work if appropriate.
View The Local Law publication here.
