The case of Cordwell Resources Pty Ltd ACN 066 294 773 v Noosa Shire Council [2024] QPEC 18 concerned an application by the Noosa Shire Council (Council) in appeal proceedings in the District Court of Queensland (Court) commenced by Cordwell Resources Pty Ltd (Appellant) against an enforcement notice given by the Council (Enforcement Notice) seeking that the Council's experts be allowed to inspect the situation and operation of a plant (Subject Site) at the Appellant's quarry in Kin Kin, Queensland.

The Council's application in this proceeding was made pursuant to rule 250 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and rule 4 of the Planning and Environment Court Rules 2018 (Qld) to allow its experts to conduct an inspection of the Subject Site to obtain evidence for the appeal (at [2]).

The Subject Site is where the issues the subject of the appeal allegedly arise, and the proposed inspection was for each of the Council's experts, including a town planner, an engineer specialising in acoustics, air quality, and environmental management, a geologist with extensive experience in the quarrying industry, and an expert in traffic and vehicle movement issues (at [1]).

The Court concluded that, in the circumstances, it was appropriate to allow the Council's experts to inspect the Subject Site but only in accordance with the following orders (at [1]):

"1    Subject to paragraphs 2 and 3, the Appellant must allow the [Council's] retained experts Mr Christopher Buckley, Mr Donald Reed, Mr Paul King and Mr Stuart Holland to access the land which is the subject of this proceeding during business hours and within 7 days of the [Council] giving notice of the preferred dates and times of its experts to undertake that inspection.

2    The Appellant may elect to have one of its representatives accompany the [Council's] experts on the inspection of the land and may require the [Council's] experts to comply with workplace health and safety requirements while on the land, including by completing an on-site safety induction at the start of the inspection.

3    All observations and information obtained but the experts from the site inspection to be conducted in accordance with paragraph 1 must only be used for the purposes of this proceeding."

On 17 January 2023, the Appellant received the Enforcement Notice from the Council requiring the Subject Site be removed or relocated to the Approved Fixed Plant Area as identified in the Approved Quarry Management Plan, where the approved use was supposed to be conducted (at [3]). Significantly and importantly, it is a development offence to contravene a condition of a development approval.

On 15 February 2024, the Appellant filed an appeal against the Council's giving of the Enforcement Notice (at [3]). As the enforcement authority, the Council must establish that the appeal should be dismissed and satisfy the Court that there is reasonable belief that the Appellant has committed or is committing a development offence (see [5] and [14]). However, and as the Appellant and the Council accepted, the question is not actually as to whether such an offence has been committed but rather the establishment of reasonable grounds for such belief (see [13] and [14]).

The Council's Enforcement Notice was issued on the premise that the Appellant had contravened the development approval under which the Subject Site was permitted to operate. The alleged contravention relates to a condition of the approval that required the Subject Site to operate generally in accordance with the Approved Quarry Management Plan. More particularly, that the Subject Site has been constructed and located outside of the Approved Fixed Plant Area identified in the Approved Quarry Management Plan (at [7]).

The Appellant's Notice of Appeal asserted that the Enforcement Notice should be set aside for the following reasons (see [8] and [9]):

• The Subject Site is not a fixed plant for the purposes of the Approved Quarry Management Plan.

• The Approved Quarry Management Plan does not provide for advances in technology or science relevant to quarrying or environmental management that may be adopted over time.

• The Subject Site is utilised to further refine the product and reduce noise, dust, and waste in accordance with the Approved Quarry Management Plan.

• The condition of approval relates only to the operation of the Subject Site "generally" in accordance with the Approved Quarry Management Plan.

• The operation of the Subject Site is not a continuation of the alleged contravention because a development permit for the Subject Site was obtained on 31 August 2024.

The Council and the Appellant reached agreement with respect to settling upon "…a test of demonstration of 'sufficient grounds for intruding on the [Appellant's] property'" but even so the Appellant argued that "…mere relevance of information sought to be obtained by such inspection, may not be sufficient…" (at [12]).

The Court found that the relevant issue was whether the Council demonstrated sufficient grounds for its belief which could be supported by the presentation of evidence that proves the commission of an offence (at [14]).

The Appellant raised concerns regarding the possibility that the inspection, for evidence gathering purposes, could give rise to prosecution under section 168(5) of the Planning Act 2016 (Qld) (Planning Act) which states "A person must not contravene an enforcement notice".

The Court acknowledged that whilst evidence gathered during an inspection pursuant to rule 250 of the UCPR may assist the Council's position with respect to the alleged contravention, it is the subsequent violation of the Enforcement Notice, rather than the orders in this proceeding, that could potentially give rise to prosecution under section 168(5) of the Planning Act (at [15]).

Therefore, the Court found that the process of gathering evidence for the appeal does not, by itself, subject the Appellant to prosecution under section 168(5) of the Planning Act.

The Court held that the appropriate conclusion is to allow an inspection of the Subject Site as it would promote the efficient and economical conduct of the appeal by facilitating the gathering of evidence by each of the Council's experts in relation to the identified issues in the Appellant's Notice of Appeal (at [22]).