Original source · versioned page text
2020-12-17 OM Agenda - Late Report - Kin Kin Quarry - Potential Legal Action
Text sections have not been matched to the original PDF pages. Use the original document to check page numbers.
ORDINARY MEETING REPORT 17 DECEMBER 2020
1 KIN KIN QUARRY – POTENTIAL LEGAL ACTION
DOCUMENT INFORMATION
Author Chief Executive Officer, Brett de Chastel
CEO’s Office
Index ECM/ Subject/ Kin Kin Quarry
Attachments 1. Kin Kin Quarry – Information Sheet
2. Legal advice in relation to the Kin Kin Quarry (Note: This attachment is
confidential and not for public release)
EXECUTIVE SUMMARY
Not applicable.
RECOMMENDATION
That Council note the report by the Chief Executive Officer to the Ordinary Meeting dated 17
December 2020 and:
A. Note the confidential legal advice in relation to the operation of the Kin Kin Quarry provided as
Attachment 2 to the report;
B. Authorise the Chief Executive Officer to initiate legal action in accordance with that advice and
to work with Council’s legal advisers in gathering the necessary evidence prior to initiating that
legal action.
REPORT
1. Background
As Council would be aware, the Kin Kin Quarry has a long and extensive history dating back to its
original approval in July 1987. There have been numerous court cases and decisions over the last
33 years in relation to that site and its operation as a quarry.
This report is not intended to cover all of that history however, by way of background, Attachment 1
to this report contains an information sheet which covers some of the more relevant history, current
issues and the role of different government agencies. This is provided by way of background and
this information sheet will shortly be placed on Council’s website for the information of our community
as well.
Also as Council would be aware, there is considerable community angst in relation to the
intensification of use of the quarry resulting in a large number of quarry trucks going to and from the
quarry site, thus impacting on resident amenity and well-being. The Mayor has established a
Roundtable bringing together all relevant government agencies (Police, Transport and Main Roads),
local State Member Sandy Bolton, representatives of community groups (Kin Kin Community Group,
Save Noosa Hinterland and more recently, the Pomona Chamber of Commerce), representatives of
the quarry operators (Cordwells) and relevant Council staff.
Council has also retained the services of a Special Project Officer to provide support to the affected
communities and to assist the Mayor and Council officers with the Roundtable and community
liaison.
Page 1 of 10
See the original
The page text is free to read. Viewing or downloading an original file needs an account.
Log in to see the originalSearchable page text hides email addresses. Original files are unchanged and may show email addresses.
Full text of the other 9 sections
Section 2
ORDINARY MEETING REPORT 17 DECEMBER 2020
The purpose of this report is to provide Council with an update on recent legal advice about options
available to the Council to support our community in relation to the Kin Kin Quarry. This report also
proposes to authorise the CEO to commence legal proceedings on behalf of Council in the Planning
and Environment Court once the necessary evidence has been gathered to support those
proceedings.
2. Key issues
Council has recently sought legal advice about legal options to deal with various impacts of the Kin
Kin Quarry on the local community. That legal advice has now been received.
For legal professional privilege reasons set out below, that legal advice is a confidential attachment
to this report.
About legal professional privilege
One of the challenges for a Council that prides itself on openness and transparency, is how to
manage legal professional privilege in relation to legal advice it receives. In court actions, there
is an obligation on each party to provide the other party with access to relevant documents as
part of the court process (called discovery). There are certain exemptions to this rule including
the exemption for legal professional privilege.
Essentially, this means that advice and correspondence between the client and its legal advisor
is protected from being provided to the other party on the basis of legal professional privilege.
This enables clients to obtain “frank and fearless legal advice” on an issue without having to
disclose that to the other party in the litigation. This could include advice from lawyers about
legal tactics, prospects of success, evidence required etc.
Legal professional privilege is lost if those documents are provided to a third party. This means
that they would no longer be protected under legal professional privilege and would be required
to be provided to the other party in the litigation. This is obviously of considerable disadvantage
in any litigation as the other party would have a “playbook” on how the litigation is being
managed and understand the strengths and weaknesses of the opposition case.
It is for this reason that the legal advice Council has received in relation to the proposed action
is not being made public. That legal advice will therefore retain legal professional privilege.
If Councillors wish to discuss this legal advice at the Council meeting, the meeting should be closed
to the public in accordance with Section 254J (3)(e) of the Local Government Regulation 2012 which
permits the meeting to be closed to the public for business relating to legal advice obtained by the
local government or legal proceedings involving the local government including, for example, legal
proceedings that may be taken by or against the local government.
Based on that legal advice, it is proposed to initiate proceedings in the Planning and Environment
Court but it should be noted, the Council will need to work with its legal advisers to establish the
necessary evidence required to successfully pursue such an action. Proceedings cannot commence
until that occurs and our legal advisers estimate that will take between 8 to 12 weeks to collate.
Proceedings can issue once that has been finalised. It is envisaged that we will also seek to work
with our community on this evidence gathering stage.
Page 2 of 10
Section 3
ORDINARY MEETING REPORT 17 DECEMBER 2020
Previous Council Consideration
Ordinary Meeting Minutes, 19 May 2016, Item 2, Page 13
That Council note the report by the Manager Planning & Environment and Coordinator Planning to
the Planning & Environment Committee Meeting dated 10 May 2016 and the further report to the
Ordinary Meeting dated 19 May 2016 and advise Council’s solicitor to settle the current Court
applications generally in accordance with the following:
A. Agree to settle the Neilsens Quality Gravels Pty Ltd application D18 of 2016 to the Planning
and Environment Court in accordance with the draft judgement subject to the further agreed
amendments set out in the confidential report;
B. Discontinue the Noosa Shire Council application D114 of 2015 to the Planning and
Environment Court; and
C. Enter into a Deed of Agreement whereby the quarry operator is to pay Council’s expert costs
associated with the above matters and payment of $30,000 into an appropriate land
management fund.
Ordinary Meeting Minutes, 22 October 2015, Item 10, Page 10
That Council note the report by the Manager, Planning & Environment to the Planning & Organisation
Committee Meeting dated 13 October 2015 and authorise the Chief Executive Officer to proceed
with further legal action is required in accordance with the proposed approach set out in the
confidential report.
Ordinary Meeting Minutes, 2 July 2015, Item 2, Page 12
That Council note the report by the Manager, Planning & Environment to the Ordinary Meeting dated
2 July 2015 and resolve to address the breach of the development approval and conditions of the
Kin Kin Quarry by Neilsens by lodging proceedings in the Planning & Environment court in
accordance with the proposed approach set out in the Closed Session Report.
Ordinary Meeting Minutes, 12 February 2015, Item 5, Page 9
That Council note the report by the Manager, Planning & Environment to the General Committee
meeting dated 9 February 2015 and resolve to address the breach of the development approval and
conditions of the Kin Kin Quarry by Neilsens by instructing officers to take action in accordance with
Options 1 and 3 outlined in the report and authorise the CEO to make this information public once
the actions have commenced.
Finance
It is not yet possible to provide an accurate estimate of what this litigation will cost Council. That will
depend on a range of variables including expert costs, the extent to which the litigation is contested
etc. The ongoing cost can be monitored through the Case Management Working Group. It should
be noted, however, that Council’s legal costs in the planning area are already over budget.
Risks & Opportunities
Any litigation has risks associated with the outcome. Nevertheless, pursuing court action will support
our community in seeking to ameliorate the impacts of the Kin Kin Quarry on residents in affected
hinterland areas.
Page 3 of 10
Section 4
ORDINARY MEETING REPORT 17 DECEMBER 2020
Consultation
External Consultation - Community & Stakeholder
Council’s legal advisers
Internal Consultation
Mayor Clare Stewart
Development Assessment Manager
Special Project Officer
Communications and Community Engagement Manager
Director Corporate Services
Departments/Sections Consulted:
x Chief Executive Officer Community Services x Corporate Services
Executive Officer Director Director
Executive Support Community Development Financial Services
Community Facilities ICT
Libraries & Galleries Procurement & Fleet
Local Laws Property
Waste & Environmental Health Revenue Services
Executive Services Environment & Sustainable Development Infrastructure Services
Director Director Director
x Community Engagement Building & Plumbing Services Asset Management
Customer Service x Development Assessment Buildings and Facilities
Governance Economic Development Civil Operations
People and Culture Environmental Services Disaster Management
Strategic Land Use Planning Infrastructure Planning,
Design and Delivery
Page 4 of 10
Section 5
ORDINARY MEETING REPORT 17 DECEMBER 2020
ATTACHMENT 1
Page 5 of 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
; ATTACHMENT 1
ease ; a oe eR
epee a
: NOOSA COUNCIL FR >gits=
mw ‘ ae ie :
~ , ,
Background
The quarry was approved by Council in July 1987 subject to conditions. Under the planning legislation
there is no ability for this approval to be revoked or changed (without the owners agreement), with the
approval valid until 12 May 2033.
The conditions require the quarry to operate in accordance with an approved Quarry Management Plan
(QMP), which includes a number of requirements that address on site operations, including stormwater
management and traffic management.
While the conditions do identify the approved extraction footprint for the quarry, the conditions do not
include an annual extraction limit or restrict the number of trucks permitted on the haul route.
For a comprehensive background of the Kin Kin Quarry, refer to Appendix A below.
To change the approval for the quarry, would require an application to be made by the land owner and the
operator (Cordwells) to Council. The process to change the quarry approval is regulated by the Planning
Act 2016, state legislation, with the land use rights afforded by the approval protected by this Act. This
means new planning requirements and/or state legislation such as the new koala conservation protections
for South East Queensland do not apply.
Quarry Operating Hours
The permitted operating hours are 6am to 6pm Monday to Friday and 7am to 5pm Saturday, with trucks
not to be loaded outside the approved operating hours or leave the site full after operating hours.
Haul Route
The QMP requires that the main haulage route for the quarry is Kin Kin —- Pomona Road which is state
controlled road, though Dr Pages Road and other local roads may be used for local deliveries. This
haulage route was identified in the original application to Council and has been reflected in subsequent
approved QMPs. To change the haul route would require a development application to be lodged with
Council. Such an application would be subject to public consultation with the community including
residents along any proposed new haul route.
QMP - Traffic Management Requirements
¢ Trucks must not arrive at the quarry site prior to the approved operating hours;
e Departures from the quarry site are to be staggered with a minimum gap of 5 mins between trucks;
e Where trucks encounter other heavy vehicles, the minimum separation distance between heavy
vehicles is to be approximately 60m but with greater separation distances recommended for drivers;
e When approaching the quarry site, drivers are to maintain a minimum separation distance of 300m to
avoid causing queuing at the quarry entry;
¢ To assist in maintaining these separation distances, drivers should communicate with other drivers on
UHF Channel;
e Truck drivers are not to overtake other vehicles;
e The quarry operator is to seek to minimise truck movements by rescheduling product deliveries from
the site and discouraging unnecessary truck movements, during school bus hours.
NOOSA COUNCIL PO Box 141 P. (07) 5329 6500 [email protected]
TEWANTIN QLD 4565 F. (07) 5329 6501 wvyw.noosa.gid.gov.at
Page 5 of 10Section 6
ORDINARY MEETING REPORT 17 DECEMBER 2020
Page 6 of 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
ere aor i sini SS
Oh Cra rarererr= SF se caer ep ip
- NOOSA COUNCIL FR Saik<=
um Siete .
a | :
Driver Behaviour
Speeding, and non-compliance of road rules along the road network must be reported to the police, as
these issues are matters for the police to investigate and address. The police have been actioning
complaints where the owner of the truck can be identified — vehicle registration number.
Actions Taken To Date
e Both Council and the local state member have been advocating for some time for the Kin Kin Pomona
road to be upgraded, as it is recognised that the quarry operations are significantly impacting on other
road users and residents along this route.
e Local police have been asked to monitor the road and driver behavior and have issued a number of
fines for traffic infringements.
e Council has written to Cordwells and all the trucking companies using the quarry advising them of the
QMP traffic management requirements and wamed them that infringements will be issued for
breaches.
« A camera and traffic counter has been installed on Shepperson Road for surveillance and monitoring
purposes to ensure Cordwells and truck drivers are adhering to the quarry management plan
requirements. Infringements are being issued to Cordwells for breaches identified.
e Regular inspections are undertaken of the quarry operations by Council officers, with joint inspections
with officers from the state’s Department of Environment also conducted from time to time.
e An annual audit of the quarry operations is also undertaken by an extemal independent auditor
specialised in stormwater management, with Cordwells required to reimburse Council's costs for this
audit.
« Council have previously issued notices/infringements to the quarry operators on a number of occasions
for breaches of the approval and are continuing to actively monitor the quarry and take compliance
action.
e Council has formally written to the Department of Transport and Main Roads calling for the department
to investigate the Pomona-Kin Kin Road and identify what works can be done to improve the safety of
this state controlled road.
« Council is currently seeking a legal opinion from a Barrister on what actions Council may be able to
take to stop/minimise the impacts from the quarry operations on road users and residents.
Round Table
A round table has been established by Council with Sandy Bolton, representatives of the Kin Kin
Community Group, Martin and David Cordwell, Local Police, DTRM representatives, councilors and
council officers. The round table is intended to provide a forum to identify issues arising from the quarry
operations and work together to identify potential solutions.
Department of Natural Resources - Mines
This state department are responsible for the safety and health requirements for quarry workers, including
explosive safety. It is important to clarify that this department has no jurisdiction outside the boundaries
of the quarry site.
Department of Environment & Science
The quarry has approval from this department for an Environmentally Relevant Activity (ERA). The ERA
permits up to 1,000,000 tonnes to be extracted annually and primarily regulates potential environmental
impacts from the quarry operations such as ensuring appropriate stormwater management measures are
in place to address the quantity and quality of water runoff from the quarry site.
Page 2
Page 6 of 10Section 7
ORDINARY MEETING REPORT 17 DECEMBER 2020
Page 7 of 10
5 2
ir sg: 8 4 K
2 ee Ea : :
: i] efi :
a 5 Bs £9 g8 =z
é £8 ex. € 2 S& §
- S 5 Shu B BE OE
f Se 5 2 g
* a5 &
Ww g= 5 8 §@> £ ES Bg
un cS q 2 225 B 2g 2B
of & ES% ge s? 7
ies 25 1 432 8 32
; BRS Ee g*o3 2 ge s
aD 838 5 EGS 5 : 8
, as ag cee gcd:
N ime) aeges 55 2£ezg ao SS
¢ 6g eae 2 oss nage 8
wom) 8c a3 Pg, SGkE og
| 3 E53 8 g8u3 BS ge8s go
, o oS = ° one =
geeis? 3 sheese Saag 3
— y fn: 24 3 aan
e SEesee = BERS s se §
Ae biess & yedsste Eele
. | Soar te Be os —@ £ esl Bao e
f = geQCklge eaSesis #225 &
é orgs esas Beeeaeayoee, §
uw =| Ee
_— ond _— 7 @ 2s2cz —
O OBR ES E°R8 g2as BEESEE g 8
TZ Esser 223 e253 2 >SB =
i | MINOR OC LEST SSSR ZReGasS88s8c8 5
Ww Fae Pees Begs
= : &s vs apr seose | pesyonaag
fe ele 6 RE 5 _ 3
oasSeaau SEQ06GaG aousuda
< a iAdcé acs & <
ao {
cc
oOSection 8
ORDINARY MEETING REPORT 17 DECEMBER 2020
Page 8 of 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
aed a 7. — '
cones ; aiae i a te
a a SS me Rages rican
- NOOSA COUNCIL Pt site=
um oad. .
mm | :
APPENDIX A
Quarry first approved in 1987
The quarry was approved by Council in July 1987, subject to conditions. The approval was for 3 years
and made provision for subsequent extensions of the approval by Council. It was also subject to some
roadwork requirements and included the requirement for a Management Plan to be lodged with Council.
The applicant appealed Council's decision, with the Local Government Court issuing a Court Order in May
1988 reducing the extent of roadworks required and giving an operating life of 30 years. In terms of road
improvements, the conditions of approval required:
. upgrading of the intersection of Sheppersons Lane and Kin Kin Road;
. upgrading of the existing timber bridge within Sheppersons Lane; and
. the widening and upgrading of Sheppersons Lane from intersection with Kin Kin Road to the access
point to the site.
These road upgrade works were subsequently undertaken by the former Noosa Council, around the time
Noosa Council had a lease over the quarry site. Notably, the requirement to upgrade the intersection of
Sheppersons Lane with Kin Kin Road was a requirement of the Main Roads Department at the time, as
Council's Shire Engineer sought their advice in relation to the application as part of the assessment.
The conditions of approval also require the performance of regular maintenance of roadworks within
Sheppersons Lane, including the removal of any materials which may fall from vehicles transporting quarry
matenals.
The conditions do not include an annual tonnage limit on excavation, but do require the quarry to operate
in accordance with a Management Plan addressing location of siltation ponds, the extent of proposed
excavations, access, location of crusher and office, buffers to adjoining properties boundaries and
rehabilitation procedures. In 1991, a Management Plan for Ready Mix was approved.
Extension to Term of
In 2003, Council extended the term of the quarry until 12 May 2033, subject to conditions. These conditions
required the submission of an updated Management Plan. In 2005, an updated Management Plan by the
Neilsen Group was approved by Council. It identified a similar quarry footprint to the 1991 Management
Plan, with the quarry to be quarried from the top down.
First Breach Action
In September 2010, officers issued a Show Cause Notice to the operators, requiring that the conditions of
the development approval be complied with. At the time, there was significant community concem over
the operations of the quarry, and inspections indicated that the quarry was not being operated in
accordance with the approved Neilsen Group Management Plan. The operators challenged Council's
Show Cause Notice and, due to the non-specificity of the 2005 Management Plan, Council could not
proceed further with this action.
Amended QMP lodged
In December 2011, an amended Management Plan was submitted by the quarry operator, seeking to
commence quarrying at the botiom of the hill and then proceed to the hilltop and quarry down. This
Management Plan provided a greater amount of detail to that contained in the previously approved
Management Plan for the site, but maintained a degree of flexibility in relation to the operation, recognising
that quarry operations are an evolving process affected by the nature of the extracted resource and market
demand for material.
Page 4
Page 8 of 10Section 9
ORDINARY MEETING REPORT 17 DECEMBER 2020
Page 9 of 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
— —a a
ua ns tae
a 8 Oar warerener= SN ce casas ra ih
a NOOSA COUNCIL Pt gite=
um a f
4, . .
Kin Kin Community Group Action
In October 2010, the Kin Kin Community Group contested the quarry approval, asking the Planning &
Environment Court:
. Whether the town planning consent approval given by Noosa Shire Council in 1987 was lawfully
given;
. Was the order made by the Local Government Court on 13 May 1988, allowing the appeal against
some conditions to which the Noosa Shire Council subjected its approval and varying conditions,
made within jurisdiction;
. In the event the approval of the Council was lawfully given and the Court's orders were within its
jurisdiction, did the town planning consent approval lapse; and
. In the event the approval has not lapsed, is use of the site for quarry purposes for extractive industry,
limited to the area and scale of development particularised in the application for town planning
consent and the town planning consent limited only until 2018.
The judge dismissed all of the Group's claims in December 2010.
Environmental Protection Order Issued
In early 2011, the Department of Environment and Resource Management issued an Environmental
Protection Order to the operators of the quarry through their Environmentally Relevant Activity permit. The
Environmental Protection Order specified that no further material was to be extracted from the quarry on
a commercial basis until a number of steps had been undertaken, including the implementation of
appropriate stormwater management measures. In January 2012, the Department of Environment and
Resource Management informed the applicant that the Department was satisfied all actions had been
completed regarding the Environmental Protection Order, and all activities must be undertaken in
accordance with the Environmentally Relevant Activity permit.
The Environmentally Relevant Activity Permit allows for the extraction of up to 1,000,000 tonnes a year. In
March 2014 the Department of Environment and Heritage Protection revised the water management
conditions over the previous environmental licence.
Approval of Amended QMP
In July 2012, the Sunshine Coast Regional Council resolved to approve, in part, the amended Quarry
Management Plan for the initial quarry development phase, given a feasible Stormwater Management
Plan was only included for that phase. This meant that the Management Plan will be required to be further
updated in the future and approved by Council before further quarrying stages proceeded. The Council
also requested a number of amendments to be made to the Management Plan.
At its Ordinary Meeting on 23 May 2013 Council considered further amendments to the Quarry
Management Plan and resolved again to approve the plan in part, subject to 8 amendments being made
to the Management Plan.
At its Ordinary Meeting on 19 September 2013 Council considered a further amendment to the Quarry
Management Plan in relation to the haul route, with Council maintaining the previously approved haul
route.
Breach Action in 2014-2016
In late 2014 complaints were received that the quarry operators had blasted the lower foothill area (‘the
finger’), which is predominantly outside of the approved short term development area footprint and in part
outside the long term approved footprint of the excavation area. The matter was reported to Council and
an application to the Planning & Environment Court was subsequently lodged. The application sought
orders from the Court that excavation is not permitted outside the approved excavation footprint and that
works undertaken outside the approved footprint were in breach of the approval.
Page 5
Page 9 of 10Section 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
Page 10 of 10
ORDINARY MEETING REPORT 17 DECEMBER 2020
ae “ss a aca
ch Oar rarnceners SIN sc apr
= NOOSA COUNCIL Ft aite=
um a f
a, .
During the course of Council's application to the P&E court, the quarry operators also made an application
to the P&E Court to change the quarry approval and incorporate a new management plan into the
conditions of approval. The changes sought to consolidate all the approvals, including the Extension to
Term of Approval into one document for ease of reference and delete, amend existing conditions and
include additional requirements. A new condition to comply with the management was of significant benefit
to the Council with respect to its enforcement obligations and future dealings with the quarry operators. It
overcame a flaw in the original approval which undermined the Council’s ability to enforce the QMP or
effectively regulate the quarry’s operations, removing the uncertainty. It also meant future changes to the
QMP must also be by way of a statutory development application process.
The amended QMP also provided for an annual audit to be undertaken of the quarry by an independent
specialist on behalf of Council but paid for by the operators. Council consequently resolved to not continue
with their application, and settle the operator's application to the cour. A Deed of Agreement was also
entered into to pay Council's costs in the matter and payment of $30,000 to an appropriate land
management fund.
Since then officers have undertaken regular inspections of the quarry activities as workload permits.
Breach Action in 2020
In early 2020, after a large rain event, complaints were received from residents that dirty water was coming
from the quarry site. Inspection by officers and the state found a significant breach, with the quarry
operator extending the excavation area without first extending the necessary stormwater management
controls. The operators were issued an Enforcement Notice and infringement notice by officers. The
operators have since complied with all actions required by the Enforcement Notice and the fine will be
collected through SPER.
Page 6
Page 10 of 10