In Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 32, the Planning and Environment Court allowed an appeal against a council’s refusal of a minor change application, holding that regularising the position of a single item of fixed plant at a hard rock quarry near Kin Kin would not result in substantially different development. Williamson KC DCJ granted the change, though on a shorter time limit than the operator had sought. The decision is a useful illustration of how the “substantially different development” test is applied, and of the care a council must take before refusing a change on the basis of broader concerns about a project.
This is the latest chapter in a long-running matter. In our earlier article on enforcement, we noted Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 6, in which the Court extended the time for compliance with an enforcement order so as to preserve the operator’s ability to pursue a change to its approval. That change has now been considered on its merits, and allowed.
Background
The quarry at 900 Sheppersons Lane, Kin Kin operates under a development approval that began as a town planning consent in 1987 and was changed by the Court in 2016 to require the quarry to be operated generally in accordance with a Quarry Management Plan (the QMP). The QMP contemplates extraction beginning “bottom up” from the quarry floor using mobile plant, before a transition to a “top down” method using fixed plant located in a designated “Approved Plant and Infrastructure Area.” The operator installed a fixed high-frequency screening plant, used to separate manufactured sand for concrete, on the hardstand floor area, outside the location the QMP designates for fixed plant. It applied under s 78 of the Planning Act 2016 to make a minor change to regularise that plant for a limited period. The council was not satisfied the application sought a minor change, which was treated as a refusal.
The legal issue
The central question was whether the change would result in “substantially different development,” the phrase at the heart of the definition of “minor change” in Schedule 2 of the Planning Act. The council put only one limb of that definition in issue. The Court also considered whether the change was consistent with the applicable planning controls, and whether discretionary matters told against approval.
The Court’s reasoning
Williamson KC DCJ held that the change would not result in substantially different development. The relevant comparison was not between nothing and a fixed plant, but between a train of mobile processing plant and the same train “bookended” by a single fixed item. On that comparison, the change did not alter a fundamental component of the extractive use, and fixing the plant to a concrete slab produced no new or exacerbated visual, noise or dust impact, the nearest residence being some 800 metres away. Critically, there was no causative link between the change and the delayed transition to top-down quarrying. That delay was explained by the need for a Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 for a “controlled action,” not by the fixed plant. The council’s case was found to be overstated. Its own expert accepted the change was “the least of his concerns,” and the Court likened blaming the change for the delay to suggesting that two drops of oil are responsible for the quality of the Brisbane River. The Court distinguished an earlier 2024 decision on the same plant, explaining that the controlled-action requirement under the EPBC Act had not arisen when that decision was made.
The decision
The Court was satisfied the operator had discharged the onus and granted the change, but declined to allow the fixed plant to remain for the full period sought, finding the proposed five-year term lacked a scientific basis. Exercising the conditions power, the Court required the condition to expire three years before the approval’s currency period ends in May 2033, that is, in 2030, a point at which the operator is likely to seek an extension of the currency period and will have the benefit of the EPBC outcome. The parties were directed to prepare minutes of order.
Why this decision matters
The decision is a reminder that the “substantially different development” test focuses on the result of the change, assessed broadly and fairly as a matter of fact, degree and impression, by comparing the approved development with the changed development. A council cannot refuse a change by attributing to it broader concerns about a project, here the pace of development, unless a genuine nexus with the change is shown. The decision also shows the Court’s willingness to grant a change while reshaping it through the conditions power, here by trimming the period for which the fixed plant may remain.
Practical implications
For operators and developers, a change that introduces no new or exacerbated impacts, and does not alter a fundamental component of the approved use, is likely to be a minor change, even if it sits in some tension with a management plan, particularly where that plan is expressed in flexible terms. For councils, the reasons for refusing a change must connect to the change actually proposed, and evidence pitched too high, here that the approval would be “annihilated,” risks being discounted. The decision also confirms that the Court may approve a change on adjusted conditions rather than refuse it outright.
A note on this update
This article is a general summary and is not legal advice. The Court’s orders were to be settled by minutes following the reasons. We can advise operators and landowners on change applications and the minor change test, including how a proposed change is likely to be assessed and how it may be conditioned.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.