Archived page - Kin Kin Community Group Inc.

Our Appeal to the Planning & Environment Court

Jump to - Court Judgement - Comment on Judgement

We brought forward an appeal in the Planning and Environment Court in 2010 in an attempt to obtain a ruling that the original approval was unlawful. See our Amended Originating Application dated 28 May 2010 here (1.05 Mb pdf). We had hoped that we could force the operator to submit a new application for a material change of use, but our application was rejected by the court. We are lobbying politicians on all levels and constantly raising public awareness in any way we can.

Court Hearing Maroochydore

Our hearing, before Judge Dodds, began on Monday 4th October 2010 at Maroochydore Court House and the hearing of evidence and submissions was completed on 14th. Supporters of our case attended daily as spectators.

Judge Dodds reserved his decision.

Report on our Hearing in the Planning and Environment Court 4th to 14th October 2010.

Our hearing in the Planning and Environment Court at Maroochydore concluded on 14th October after lengthy legal submissions.

Our Senior Counsel, Mr Mark Hinson, presented extensive submissions detailing what he and our legal team has always seen as the many fundamental deficiencies in the approval process which was followed by the Noosa Council. He referred to many compelling cases which have been determined over the years and which support our case. Particular reference was made to very strong rulings made by the High Court in 1980 in a well known quarry case. That case made many long-standing rulings about applications for quarry development and was determined back in the era of the Kin Kin application which was made in 1987.

The current operator here still relies upon the approval which was given by the Council on that crude old application. We say that it did not comply with the rulings of that case or the strict by-laws which had by then been put in place. Those by-laws made it clear how developers had to make applications for extractive industries (quarries). Specific details were required for these applications, beyond those required for other developments. We have always said that those by-laws were not complied with here. We are confident that the evidence has proven this.

Our legal team has also always said that, in any event, any approval granted by the Council on the original crude application, lapsed in the 1990's because quarry operations had not been commenced in accordance with conditions of the approval. The legislation only allows an approval for an extractive industry to stay current if a quarry commences.

Beyond those significant legal arguments regarding the approval process, our barrister made the strongest possible plea that the proposed development is much larger than anything ever envisaged by Noosa Shire Council back in the 1980's or approved by it. The evidence is that the Neilsen extraction area is about three times that applied for in 1987.

The operator told the court that he wants to exploit this resource in its entirety - a massive quantity of rock. He even stated to the court that the proposed 23 year life of the quarry would be nowhere near long enough. He acknowledges that our local road network will be impacted upon by very large articulated quarry trucks with about 33 tonne payload. It is clear that this operator wants this development to grow and grow.

We believe that the entire hinterland community needs to be given the opportunity now to have a say. The KKCG had to take this bold, expensive step to have the court intervene, to give a clear indication of the scope of the quarry approval in the 1980's. In evidence, a retired council officer indicated it was never intended to be a "mega quarry". We are hopeful of rulings being made in our favour, which would mean that there would have to be a new approval if the landholder or any operator wishes to continue developing this quarry.

The group needs your continued support to meet huge financial demands. Various fund-raising functions will be held in coming months.

Planning & Environment Court judgement 21 December 2010

Judge Dodds handed down his judgement at 2 pm on 21st December 2010 and it was devastating news for us. He has ruled against us on all four points of our application. Although this seems inexplicable, we have to now sit down and analyse the decision to see where we go from here. We are certainly unable to just give in and let this mega quarry ruin our lives.

See the complete 38 page judgement here (2.9mb PDF). It is apparent that the judge has relied heavily on Sunshine Coast Regional Council's support of the project in finding against us.

The entire team who have worked so hard to prepare this case are devastated, but we will regroup and fight on. We always sought the setting aside of the approval so that a modern application for Material Change of Use would have to be made.

The Council and relevant State Government authorities now have to deal with managing this site and ensuring best practices within the pathetically lenient and vague conditions of this crude old approval. They will find this very difficult, given all current indications of this operator's practices. Even before the first rock has been crushed, the Council, DEEDI and DERM have all needed to take some form of action in their attempts to make sure this development proceeds in a fashion that is in any way acceptable to our community. We believe, on our observations already, that these authorities will have to strongly supervise this operation for the next two decades. Shockingly, it seems that it is up to us to make sure this supervision takes place. There seems to be a general view held by the authorities that they can just let quarries "evolve". We still believe that what is proposed by the current operator constitutes what will be a Material Change of Use of this site, and we will continue our fight to restrict this wholly inappropriate development. When the Noosa Shire Council unanimously voted in 2003 to extend the lifespan of the quarry out to 2033, it did so on the basis that any future development could not go beyond the size or intensity of a plan lodged by Readymix with the Council in the 1990s. One must ask what that vote meant, having regard to the proprietor's evidence that he wants to exploit the entire resource. He gave further evidence that he believes the current lifespan will not be long enough to allow him to do so. We deserve proper explanations of that vote from the four Noosa councillors who are still members of the Sunshine Coast Regional Council and purport to represent us - Crs Abbot, Brennan, Green & Griffin. What was the point of imposing that restriction? What size quarry did they then have in mind? Did they engage their minds to this issue at all? What do they now want? How big does it have to get for them to realise that it constitutes a Material Change of Use?

We have asked and had no satisfactory response from them.

Comment on P & E Court decision

Updated 14 February 2011.

It is now some six weeks since Judge Dodds delivered his judgement regarding the approvals granted for the development of the Kin Kin Quarry. We have now had time to digest his rulings.

The findings were in stark contrast to our legal advice. Our two greatest stumbling blocks were that the approval had existed for over 22 years without any legal steps being taken to challenge it, and the stance taken by the Council in resisting our attempts to reduce the scale of the development. The fact that no legal steps had been previously taken is no surprise. The only development ever advertised was a small rural quarry for a 3 year period. Even when immediate neighbours made enquiries regarding the scale of the proposed operation 10 years after the application and approval, the Council advised them that "Because of the relatively low level of demand for material in this area, there is not an on-going year round crushing and carting operation such as experienced with commercially operated quarries...There will certainly not be a continuous, daily, year round stream of haulage vehicles coming from the site..."

A former Shire Engineer required by our legal team to give evidence, advised the court that "It was always going to be a small quarry. It was never going to be a mega-quarry." The Council's lawyers remained largely silent on this issue, allowing the operator's legal team to make submissions that Council's intention was always to permit a large commercial type of operation to be developed from the time of the original application in 1987. We find this impossible to accept, and made several attempts during the proceedings to get Councillors to instruct their lawyers to agree with our submissions that it was only ever going to be a small quarry, for local benefit. The court found that "any person who responded to the public advertising could not have failed to understand that Shepperson was intending to have a commercial quarrying operator do the quarrying that what was indicated in the documents comprising the application were initial proposals...". One can only wonder what the advertising procedure was all about. Why didn't they describe a commercial operation in the advertising? Why describe it as being small, and for only 3 years? Our legal team made the obvious submission that it was like a developer advertising for a small grocery store, when he intended to build a huge shopping centre. Of course, this could never happen, but it seems that quarries are regarded as being different by the authorities. The only details of this development ever released to the public were contained in the advertising. Even immediate neighbours were never advised of a Land Court Consent Order in 1988 to extend the lifespan to 30 years, nor of a Council decision in 1992 to consider a proposal from Readymix for a huge quarry, nor of the 2003 Council decision to extend the lifespan out to 2033, nor the decision to accept the current operator's massive plans.

Apparently, we should have known to go deeper into Council files, beyond the original application, if we wanted to discover the true nature of this development. There seems to have been no obligation on the part of anyone to inform the public of these details. We just should have known. Significantly, we are now hearing examples from conveyancing solicitors that the content of the original application (indicating a small rural quarry) has been relied on recently by purchasers of land in the Kin Kin area. Despite due diligence investigations on behalf of their clients, they have discovered nothing except the original application in searches of Council documents.

At the end of the day, the court found that it had a duty to balance public and private interests. There was evidence before the court of the 200 strong meeting held at the Community Hall expressing dissatisfaction with the development and voting for the action to be taken by the Kin Kin Community Group. The judge had before him a report compiled by a traffic consultant which highlighted our dire concerns regarding the danger of the roads and their failure to meet the minimum Australian standards. The Court acknowledged that residents had grave concerns which were genuinely held. Nevertheless, the Court ruled that the KKCG had not been able to tip the balance of these concerns over the interests of the "wider community of the north coast" in having this rock extracted.