Planning and Environment Court of Queensland declines to make an interim enforcement order stopping quarry truck movements during certain school hours

In brief

The case of Noosa Council v Cordwell Resources Pty Ltd [2021] QPEC 67 concerned an application by Noosa Council (Council) to the Planning and Environment Court of Queensland seeking to enforce the conditions of a development approval relating to the operation of a quarry located in Kin Kin.

The Council made an application for interim and final enforcement orders in respect of a condition of a development approval for a material change of use for extractive industry (Development Approval) relating to the preparation of, and compliance with, a traffic management plan which includes obligations about truck movements during the time the local school bus operates. The case was in respect of the interim enforcement order that the operator of the quarry, Cordwell Resources Pty Ltd (Operator), cease during certain school hours all heavy vehicle movements and reschedule other quarry truck and delivery movements.

The Court outlined the relevant test for whether the interim relief should be granted, being that the Court is to firstly consider whether the applicant has demonstrated a prima facie case for relief, and secondly whether the balance of convenience favours the granting of the relief (at [5]).

In relation to whether there was a prima facie case for relief, the Court found that two substantial issues were raised: one being the interpretation and construction of the relevant condition and the traffic management plan, and the other being whether there is an evidential basis to support a prima facie case as to a development offence (at [21]).  

The Court declined to make the interim enforcement order for the following four reasons:

1. There are substantial questions as to the interpretation of the relevant condition of the Development Approval and traffic management plan.

2. There is a need for a full assessment of the evidence to determine whether there is non-compliance.

3. The interim enforcement order would arguably go beyond what is the effect of the relevant condition of the Development Approval. 

4. ​The balance of convenience.

Background

The Operator operates a quarry at Kin Kin. The Council applied for both interim and final enforcement orders on the basis that there has been an increase in truck movements in contravention of the Development Approval, which relevantly includes the following condition [underlining added]):

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

The Quarry Management Plan dated May 2016 remains in effect, and includes a Traffic Management Plan which includes sections relating to rationale, issues/aspects/impacts, performance targets, and most relevantly special conditions which include the following [underlining added]:

"3.9.9 Special Conditions

…

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 [sic], during these hours."

The interim enforcement order sought by the Council was that the Operator cease all heavy vehicle movements along Pomona Kin Kin Road between 6.30 am to 9 am and 3 pm to 4.30 pm on weekdays during the school term dates, and reschedule all movements of quarry trucks to the quarry and product deliveries from the quarry during school hours.

Common law test and principles for granting interim relief

The Court confirmed that an application for interim relief is to be determined by reference to the following two enquiries (see [5] and cases such as Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]):

1. Whether the applicant has demonstrated a prima facie case, in the sense that, if the evidence remains as it is, there is a probability that there will be a finding of an entitlement to relief.

2. Whether "the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted".

The Court noted the decision in the case of Mudie v Gainriver Pty Ltd & Ors [2001] QCA 382; (2002) 2 Qd R 53 at [13] that there is to be a balancing of private and public interests in cases concerning planning approval compliance, however "[a]mong potentially relevant matters is the aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed" (see [17] to [18]).

No prima facie entitlement to relief given questions as to construction and evidence

The Operator argued that the special conditions in the Traffic Management Plan required the minimisation, as opposed to the ceasing, of truck movements. The Court stated that the construction of the relevant part of special condition 3.9.9, being "…will seek to minimize truck movements by re-scheduling product deliveries from the site and discouraging unnecessary truck movements…", "is far from being uncomplicated" (at [23]).

The Court restated the recently espoused principle in the case of Sunland Group Limited & Anor v Gold Coast City Council [2021] HCA 35 at [1] and [58], being that "…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'" (at [25]).  

The Court also acknowledged decisions that the phrase "generally in accordance with", which is used in condition 8 of the Development Approval, "allows for some deviation from the approved plan, with the extent of allowable deviation dependent on the relevant circumstances" and "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" (at [27]).

The Court however held that it was unnecessary to determine the arguments relating to construction at this interim stage, given that whether there is a prima facie case of entitlement to an enforcement order "…still depend[s] 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 [Traffic Management Plan], and the evidential basis upon which any such conclusion might be premised" (at [35]).

The Court then considered whether there was a substantial issue raised as to the evidential basis upon which it is contended that there is a prima facie case. The Court commented that, in addition to the construction of condition 8 of the Development Approval and the special conditions in the Traffic Management Plan, much of the outcome of the substantive hearing may depend on a full assessment of the evidence, which includes evidence as to truck movements, with the benefit of cross-examination (at [41]).

The Court found that even if a prima facie entitlement to relief was established, "…there are reasons why the balance of convenience or appropriate exercise of discretion would not favour granting interim relief" (at [43]).

Exercise of discretion not in favour of granting application for interim relief

The Court went on to consider the balance of convenience, as well as whether the case was one in which the exercise of the Court's discretion would favour granting the interim enforcement order. The Court noted that this is not just about any balance to be struck as between the potential impact of an interim enforcement order upon the economic interests of the Operator and the concerns of the Council with respect to road safety (at [44]). The Court was instead more focused on the exceptional nature of the relief sought, being an interim enforcement order which "…would restrict truck operations to none and beyond what may be viewed as the effect of that condition" (at [45]).

The Court therefore held that "in the circumstances and on balance" the appropriate exercise of the Court's discretion is to refuse the application for an interim enforcement order (at [45]).

Conclusion

The Court refused the Council's application for an interim enforcement order and offered the parties the earliest available hearing dates to determine whether final enforcement orders ought to be made.