His Honour Judge Gary Long told a courtroom packed with Kin Kin residents and local and state government politicians and staff that it was with some regret and unfortunate that he was going to disappoint them on Monday morning in not meeting their expectations in delivering his judgement on the case Noosa Council v Cordwell Resources.
After announcing on Tuesday last week that the judgement would be given on Monday in the Planning and Environment Court in Maroochydore Judge Long said a letter had been received last Friday that raised some expectations with the court.
He said it would be possible to give his decision and determination but they were not in a manner where they may be published in relation to a request in the letter.
“I have determined that it is not appropriate to do that and more appropriate to deliver the judgement and publish the reasons when they’re ready in accordance with the requested hard and electronic copies that you asked for at the same time,” he said.
The court was adjourned with a date and time to be fixed for the judgement later this week.
Noosa Council’s representative barrister Mitchel Batty and Cordwell Resources representative KC Errol Morzone both said it was at His Honour’s discretion and they accepted that.
Almost two and a half years ago in June 2022 Noosa Hinterland residents filled an adjacent Maroochydore courtroom to hear the final hearing of Noosa Council v Cordwell Resources, about three months after the case began, during which time both sides presented their final submissions and His Honour Judge Long reserved handing down his judgement for a date to be advised.
The case relates to Council’s allegations set out by Mr Batty at that time that the application was filed by council for the relief for the community from haulage trucks, in five areas.
The five areas relate to allegations of the quarry’s non-compliance of its Quarry Management Plan (QMP) in failing to avoid truck convoying, covering of loads, operating hours and use of quarry trucks during school bus hours, and the allegation the impact of the quarry’s intensification of work constitutes a material change of use.
Counsel for Cordwell Resources, Mr Morzone, had informed the court his client strongly objected to the allegations.
In his summing up Mr Morzone said the Kin Kin Quarry had continued to operate within its approved authority.
He described the Quarry Management Plan as a practical guide, saying Cordwells had operated generally in accordance of the guide. He said in the most controversial area of quarry trucks operating during school bus times where the QMP outlines the quarry should “seek to minimise“ truck movements at that time, it was not an “absolute obligation“.
Mr Morzone questioned whether there had been a material change in scale and intensity of use because if the use was authorised by its approval it would not be unlawful.
If there has been an increase in scale of operations, it has not been outside the bounds of approval, he said.
Mr Morzone said the quarry was always intended to produce up to 1 million tonne per annum.
The use has got up and running as it was intended, he said. Movements have changed. It was always intended there would be that change, he said.
At the time Judge Long told Mr Morzone the argument put against his client was that the level was limited, the ability to operate was always constrained by conditions of delivery of the product.
In his summation, Mr Batty told the court council had summarised Cordwell’s breaches of its QMP “best as it can“ in relation to truck convoying, uncovered loads, use of haulage trucks during school bus hours and outside work hours, and there had, in some instances, been in excess of 400 breaches.
In relation to the question of whether the quarries intensification of use constituted a material change of use, Mr Batty raised the issues of the impact of its operations on the environment, its impact on the community and whether it was meeting Noosa Plan 2020 requirements to contribute to the amenity of the area.
At the time Judge Long said what the court had to determine was whether there had been a material change of use, and there had been no application for a material change.
