Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 6

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 6 PARTIES: CORDWELL RESOURCES PTY LTD (Applicant) v NOOSA SHIRE COUNCIL (Respondent) FILE NO/S: D127 of 2025 DIVISION: Planning & Environment PROCEEDING: Application in pending proceedings ORIGINATING COURT: District Court, Maroochydore DELIVERED ON: 24 February 2026 (Order), 3 March 2026 (reasons) DELIVERED AT: Maroochydore HEARING DATE: 24 February 2026 JUDGE: Long SC DCJ CATCHWORDS: ENVIRONMENT AND PLANNING – PLANNING AND ENVIRONMENT COURT – PROCEDURE – EXTENSION OF TIME FOR COMPLIANCE WITH ORDER – STAY OF ENFORCEMENT OF ORDER – where an earlier order of the Planning and Environment Court confirmed an Enforcement Notice in respect of the development offence of the applicant, having regard to the town planning consequences of the construction of plant outside the designated area for such plant in the conditions attaching to the development approval for its operation of a Quarry – where that order included amended conditions in the Enforcement Notice permitting an attempt by the applicant to obtain approval for the irregular siting of the plant, as an alternative to relocation or removal – where the effect is that the respondent’s rejection of such an application, as not being in respect of a minor change to the development approval, is now before this Court in pending proceedings by way of originating application – where the delays involved mean that the pending proceeding will not be determined within the 15 months allowed (subject to the prospect of extension) for ultimate approval or relocation or removal of the plant – -- 1 of 12 -- 2 whether, in the context of the delay which has occurred, the applicant should be allowed to preserve the utility of the originating application. CASES: Chavez v Moreton Bay Regional Council [2010] Qd R 299. Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51. Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection 1994 [2012] QPELR 370. Kando Pty Ltd v Western Downs Regional Council [2019] QPELR 451. LEGISLATION: Planning Act 2016, ss. 81, 164 and sch 2 Planning and Environment Court Act 2016, s 11 Planning and Environment Court Rules 2018 r. 4 (2) Uniform Civil Procedure Rules 1999 r. 7, 895 COUNSEL: Morzone, E and Purcell, D for the applicant Hedge, S for the respondent SOLICITORS: Carter Newell for the applicant McCullough Robertson Lawyers for the respondent -- 2 of 12 -- 3 [1] These are the reasons for the determination of the Court, on 24 February 2026, upon the amended application in this pending proceeding filed 4 February 2026, to extend the time for compliance with the order made by the Court on 28 November 2024 in Appeal No. 16/2024, to 8 May 2026. As will be noted, that is to extend such time for compliance to the conclusion of the hearing of the pending proceeding in respect of the Originating Application filed by the applicant on 21 November 2025. [2] All of the proceedings which have been noted, relate to the applicant’s operation of a quarry at Kin Kin pursuant to a town planning consent for extractive industry, first granted on 21 July 1987 and as particularly changed by orders made in this Court on 27 May 2016, in reference to an identified Quarry Management Plan (“QMP”). [3] The order made on 28 November 2024 was in determination of the applicant’s appeal against an enforcement notice issued by the respondent on 17 January 2024 and which had alleged the commission of a development offence pursuant to s 164 of the Planning Act 2016 (“PA”) by contravention of the development approval for the quarry. As is noted in the reasons for that order,1 the contentious issue related to the allegation that the applicant was operating “fixed plant (principally a screening plant) outside the area approved for fixed crushing and screening plant shown in Figure 5 of the QMP”. Some relevant context drawn from the approval said to be contravened by the applicant, was summarised in those reasons as follows: “[3] The appellant operates a quarry at 900 Sheppersons Lane, Kin Kin (“the quarry”). It is located on the side of a hill. Relevantly, on 27 May 2016 Her Honour Judge Bowskill QC made orders changing an existing approval for the quarry, which included a condition “The quarry is to be operated generally in accordance with the Quarry Management Plan dated May 2016 (the Approved Quarry Management Plan)”. [4] The Approved Quarry Management Plan (“the QMP”) is a very detailed document. In para 1.5 it is stated: 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 perspective from time to time. [5] The QMP provided for an unspecified initial period of extraction from existing benches at the base of the hill before ultimately quarrying from the 1 Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51. -- 3 of 12 -- 4 top of the hill down. During this initial period the necessary haul roads and locations for “fixed processing plant” would be constructed. Relevantly para 2.2.2 provided: The installation of a fixed crushing and screening plant will occur when market conditions dictate and when the quarry has been opened up and haul road access plant building areas excavated and prepared. [6] Internal haul roads were specified in para 2.2.7 in, relevantly, the following terms: The locations of the major haul roads linking the extractive areas and the rock receiving bin of the fixed crushing and screening plant are shown on (…Figure 5 – Longer Term Site Layout) for the final stage of development. The haul roads have been designed for efficient and safe operation particularly with respect to layout, geometry and type of construction. [7] Para 2.2.10 stated that for “the initial quarry development period, estimated to run to about 2020, a mobile crushing and screening plant is expected to be used.” In para 2.2.5 it is stated that the “long-term location for a fixed crushing and screening plant is situated on the slope on the eastern portion of the site”, shown in Figure 5, and that over “the short-medium term (0-7 years from the date of approval of this QMP), crushing and screening at the quarry will be undertaken by portable plant.” [8] There are other places where the same types of statements appear. It is therefore unsurprising that the appellant readily concedes that the QMP approved a quarry that will ultimately go from the top of the hill down the hill or a “top-down quarry”. This will enable “progressive rehabilitation” to commence “once the upper benches reach their final limits of extraction” (QMP para 2.3.5). The appellant contends it still has not yet started preparing for the top-down quarry operations envisaged by the QMP.”2 [4] In that context, the agreed questions for determination in that appeal were noted to be: “1. Is the plant fixed within the meaning of the QMP?; 2. If yes, is the Plant generally in accordance with the QMP?; 3. If not, should the court exercise its discretion to set aside the EN?"3 [5] With particular reference to the evidence of the quarrying experts called by the parties (Mr Reid by the respondent and Mr Hill by the appellant) and a structural engineering 2 Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51, [3]-[8]. 3 Ibid [11]. -- 4 of 12 -- 5 expert called by the respondent (Mr McKenzie), the conclusion of the Court was that the plant “is fixed screening plant as that term is used in the QMP”.4 [6] Further and after noting the observations in Kando Pty Ltd v Western Downs Regional Council,5 as to the form of the condition of the QMP requiring the quarrying operations to be generally in accordance with that plan, that issue was also found against the applicant’s position and explained as follows: “[20] Ultimately, Mr Reed expressed the view that the placing of the Plant in the current location would not permit the quarry to develop as a top-down quarry in the manner contemplated in the QMP and shown in Figure 5. [21] In his affidavit filed on 7 August 2024 Mr Reed observed at para 106: There are a multitude of environmental, operational and cost related reasons why side hill quarries are developed from top to bottom (‘top down’) and not from the bottom bench upwards. Top-down development allows for the upper bench to be developed to its final boundary in the short rather than long term, thereby allowing the progressive development of downhill benches in a well-managed fashion, that allows the quarry operators considerable flexibility… [22] Subsequently he stated at para 107 that progressive site rehabilitation is only possible with top-down quarry development. Under cross-examination, Mr Hill acknowledged that if the top-down methodology is not followed at the quarry, there are consequences, and in this regard he nominated a lack of bench widths and a failure to progressively rehabilitate. As the town planner who gave evidence on behalf of the appellant, Mr Buhmann, acknowledged, the inability to progressively rehabilitate as provided for in the QMP is a significant adverse planning impact. Contrary to the submissions of the appellant, this compromises the intent of the QMP. [23] Accordingly, I find that there has been a material departure from the basis on which the development approval was given which has town planning consequences. I find that, on the facts before me, the Plant is not generally in accordance with the QMP.”6 [7] In respect to the discretionary issues, the conclusion was further explained, as follows: “[24] Turning to discretion, which was not ultimately pushed by the appellant. There were not demonstrated any notable adverse amenity impacts as a consequence of the location of the Plant. That is of limited relevance however. Mr Elkin, the engineer called by the appellant to give expert evidence in respect of noise impacts, conceded under cross-examination that his 4 Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51, [14]. 5 [2019] QPELR 451, [64]–[65]. 6 Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51, [20]-[23]. -- 5 of 12 -- 6 assessment was very different to what would be performed for an acoustic report accompanying a development application. This is consistent with the observations of Wilson SC DCJ in Macquarie Leisure Operations Limited v Gold Coast City Council & Ors of the differences between the assessment undertaken for a development application and that which occurs in the course of a court proceeding. [25] The PA provides for applications to change a development approval. That is a process, which the appellant should undertake here. The changes consequential on the location of the Plant can then be properly assessed pursuant to the appropriate legislative provisions and assessment benchmarks. The respondent correctly issued the EN. There is no discretionary reason to simply set it aside. It should however be changed to permit the making of a development application to change the development approval.”7 [8] Consequentially, orders were made to set aside the enforcement notice and for the issuing of a revised enforcement notice in identical terms, except that paragraph 53 of the respondent’s enforcement notice was replaced with what was set out in Attachment A to the order. Relevantly, the effect was to require the applicant, within three months of the date of that revised enforcement notice, to either: “(a) remove the plant from the site; or (b) move the plant to the approved fixed plant area on Figure 5 of the Quarry Management Plan (QMP); or (c) apply for a change to the development approval that would permit the plant to remain in its current location on the Site.” In the first instance the applicant was required to notify the respondent of its choice of option within six weeks of 24 November 2024 and in the event, as it transpired, the choice was of option (c), it was provided: “5. If you choose option (c) in paragraph 2 you must: (a) not withdraw the application; (b) take all necessary and reasonable steps to enable the change application to be decided as soon as practicable; and (c) if you appeal the decision on the change application, take all necessary and reasonable steps to enable the appeal to be decided as soon as practicable. 7 Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51, [24]-[25] (citation omitted). -- 6 of 12 -- 7 6. If you do not obtain a change to the development approval which permits the plant to remain in its current location within 12 months of the date of this Revised Enforcement Notice, or a different date agreed between the parties or set by an order of the Planning and Environment Court, then you must carry out option (a) or (b) in paragraph 2 within three months of that date.” [9] The further litigation now before this Court arises from the concession allowed in the order made on 24 November 2024 permitting the election of the applicant to apply for a change to the development approval to allow the plant to remain where it has been located. The following timetable of relevant events was not in substantial contest in the hearing of this application: (a) By six weeks of the date of the Revised Enforcement Notice, the applicant elected to seek a change to the extant development approval. (b) On 28 February 2025, the applicant made application for minor change to the development approval. (c) On 28 March 2025, the respondent notified that it refused to accept that application, upon expressed lack of satisfaction that the requested change was for a minor change to a development approval. The grounds then expressed in relation to that position are noted as follows: “1. The change request, if approved, would change the ability of the development to operate as intended, including by frustrating the intended development of the quarry using a top-down method in accordance with the approved Quarry Management Plan. 2. The change request, if approved, would remove a component which is integral to the operation of the development, including by impeding the requirement to locate fixed plant in a manner that facilitates a top-down quarrying method. 3. The change request, if approved, would introduce new impacts or increase the severity of known impacts, including by completion of progressive rehabilitation.”8 (d) On 23 April 2025, the applicant’s consultant provided written representations and further information to support the change application upon the basis that the proposed change was an interim operational solution without intention that the plan be located there permanently.9 In response, on 13 May 2025, the 8 Affidavit of J Wallace filed 26/11/2026, Exhibit JW-08, page 311 – 312. 9 Ibid, Exhibit JW-09, page 318. -- 7 of 12 -- 8 respondent notified its maintenance of its original position as to not accepting the minor change application. 10 (e) On 1 September 2025, the applicant varied its minor change application and provided supporting expert evidence in support of a contention as to amendment or change of the development approval by insertion of a condition to the effect of permitting the subject plant to remain generally in its location for a period of no more than 5 years from the date of the change approval taking effect, before it must be either removed from the site or relocated to the approved and plant and infrastructure areas that were shown on Figure 5.11 (f) On 16 September 2025, the respondent notified the maintenance of its previous position and the earlier expressed grounds for refusal to accept it as an application for minor change to the approval.12 (g) On 21 November 2025, the applicant filed the Originating Application in this Court seeking the exercise of the power of this Court pursuant to s 11 of the Planning and Environment Court Act 2016 (“PECA”), to declare that the amended application made on 1 September 2025 “constitutes a ‘minor change’ as that term is defined in Schedule 2 of the Planning Act 2016 (Qld)” and consequential orders as to the requirement of the respondent to assess the amended application for a minor change to the development approval. [10] Further and in the context of the connection of the originating application to the order made on 28 November 2024, relief was also sought in the originating application, either pursuant to s 11(4) of the PECA or the “inherent jurisdiction of the court”, to either stay the order made on 28 November 2024 or to enlarge the time allowed for compliance with it. [11] In the context of the listing of the hearing of the original application for 7 and 8 May 2026 and the resistance of the respondent to any relief by way of stay, or enlargement of time for compliance with, the order made on 28 November 2024, that relief was pursued by this application in pending proceedings. 10 Affidavit of J Wallace filed 26/11/2026, Exhibit JW-13, page 347. 11 Ibid, Exhibit JW-14, page 355-377. 12 Ibid, Exhibit JW-16, page 588-589. -- 8 of 12 -- 9 [12] It is unnecessary to dwell upon the largely undeveloped reliance upon any inherent, or perhaps implied, power of this Court to control the proceedings now before it, as it was appropriately conceded by the respondent that in the context which has been outlined, the Court has jurisdiction and power to grant either form of relief, respectively pursuant to the terms of the order made on 28 November 2024 or pursuant to Rule 895 of the Uniform Civil Procedure Rules 1999 (“UCPR”), as that rule may be picked up pursuant to Rule 4(2) of the Planning and Environment Court Rules 2018. [13] It is therefore also unnecessary to dwell upon the applicant’s further reliance on Rule 7 of the UCPR, except to note particular reference to the observations in Chavez v Moreton Bay Regional Council,13 in adoption of the following description of the breadth of discretion provided by provisions like Rule 7 and therefore also informing the similar power of the Court reserved under the terms of the order made on 28 November 2024: “In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283, Wilson J referred to the breadth of the discretion under provisions like Rule 7, as follows: ‘It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to reply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non- compliance.’” [14] Further and in the context of an understanding that whether granted as a stay of execution of the order of 24 November 2024 or an enlargement of the time allowed under that order, as was ultimately the respondent’s expressly preferred option, the Court was only pressed to achieve, whichever power was utilised, the effect of preserving the utility of the originating application until the hearing of that proceeding 13 [2009] QCA 175, as were not put in issue and also adopted on appeal in Chavez v Moreton Bay Regional Council [2010] Qd R 299, [10]. -- 9 of 12 -- 10 in May 2026. Accordingly, it was also accepted that observations made in Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection 1994,14 were appropriate to inform the determination to be made by this Court: “[20] Notwithstanding that these proceedings involve an appeal against what is effectively an administrative decision, it is generally agreed that the general principles associated with the granting of a stay in usual civil litigation are applicable, subject to some variation or adjustment where necessary. By reference to cases such as Cook Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd R 453; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; and Attorney for the State of Queensland v Farden (2011) QCA 111, the following principles seem to be established: (1) It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of a stay. (2) The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the court are fully effective. (3) While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the court will generally not descend into a detailed assessment of the prospects of the appeal. (4) Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.” [15] The applicant’s position is primarily directed at the contention seeking to preserve the utility of its originating application, in the context of there being no identified prejudice to the respondent’s position other than some further delay in achieving the objects of its enforcement action. Whereas, the resistance of the respondent is primarily directed at what is contended to be the extent of the applicant’s delay in progression of the earlier order made on 24 November 2024, in respect of its development offence and in preserving the commercial benefit accruing whilst that offence remains uncorrected. 14 [2012] QPELR 370, [20], where the court was concerned with application pursuant to s 535 of the Environmental Protection Act 1994, for a stay of conditions imposed by way of amendment of the conditions of an Environmental Authority, amongst other actions taken as enforcement actions in respect of an incident effecting the risk of environmental harm, pending the determination of an appeal against the insertion of those amended conditions. -- 10 of 12 -- 11 [16] Notwithstanding that it may be understood that the progression of the applicant’s position has not been with discernible haste,15 it may be accepted and indeed it was not strongly contended otherwise, that the applicant has demonstrated engagement in collecting supporting materials for its application for minor change to the development approval and ultimately as submitted in amended form on 1 September 2025. [17] Moreover and far from any contention that there is any lack of genuine merit in the applicant’s ultimate contention, it was conceded, without departure from the respondent’s position as to the appropriate conclusion, that, as submitted to the respondent, it is an arguable proposition and therefore a matter properly to be determined by the Court upon the originating application.16 [18] Although the effluxion of time has now placed the applicant in this position of having to seek some order of the Court to protect the utility of its position, it may be noted that: (a) the original allowance of 12 months, before any engagement of the three-month period for relocation or removal of the subject plant has always been subject to the allowances made for extension; (b) understandably, the terms of the order contemplated the prospect of an appeal to this Court (but not expressly the present eventuality); and (c) if the applicant’s position as to the minor change is vindicated, it is likely that the respondent’s assessment pursuant to s 81 of the PA would have been completed within the period of 12 months, initially permitted by the order, subject to the reserved prospect of extension.17 [19] In any event, the clear effects of the order made on 24 November 2024 were to anticipate that more than 15 months may be required to finally resolve the applicant’s 15 In the period of about 5 months from the first notification of the respondent as to refusal to accept the requested minor change application and the submission of the amended application, on 1 September 2025 and also the period of more than 2 months after the notification of refusal in respect of that amended application and the filing of the originating application in this Court. 16 Some incidental contentions raised as to the respondent’s position concerning the admissibility of all of the evidence now sought to be relied upon by the applicant and the context provided by the current limitation of the life of the development approval, subject to any application for extension by change of the condition, to 12 May 2033, remain as considerations to be determined in respect of that originating application. 17 See s 81A(4) of the Planning Act 2016 (Qld). -- 11 of 12 -- 12 position in respect of the location of the plant and to allow the applicant the commercial benefit of the use of the plant until that resolution.18 At least at this stage and with the extension being only to the hearing of the originating application, it is not appropriate to determine that any delay on the part of the applicant, disentitles it of these benefits. [20] It is also unnecessary to dwell on some criticisms as to the extent of the identified cost impact, should, as was properly conceded as a possible outcome by the applicant, it now be required to dismantle the plant and potentially later re-assemble it, in the event that it is successful in changing the development approval. It is clear that this would be a substantial departure from what has been noted as the effects of the earlier order and the concessions thereby preserved for the applicant and even if not wholly accurately quantified, would involve some considerable expense. [21] In these circumstances, the appropriate conclusion is to allow the limited extension to the point of the hearing of the originating application, so as to now preserve the utility of the applicant’s position in respect of it. 18 Although the prospect of the Court adopting an approach of only allowing the applicant the utility of not having, at this stage, to remove the plant and not allowing ongoing use and commercial benefit until the determination of the Originating Application, in this context, such contention was not understood to be ultimately pressed in oral submissions. -- 12 of 12 --