In Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 32, the Queensland Planning and Environment Court confirmed that a minor change to a development approval does not constitute “substantially different development” simply because fixed plant is introduced into an existing mobile processing operation – provided the fundamental character of the approved use remains unchanged. The Court also confirmed delays attributable to a Commonwealth EPBC controlled action process cannot be used as a discretionary reason to refuse a change application, and that councils cannot compel applicants to bundle unrelated applications together in the name of avoiding piecemeal assessment. This decision provides important guidance for quarry operators, developers, renewable energy project proponents, and local governments navigating the minor change regime under the Planning Act 2016 (Qld).
Carter Newell’s Planning and Environment team recently acted for Cordwell Resources Pty Ltd (Cordwells) in a successful appeal before the Queensland Planning and Environment Court. In Cordwell Resources Pty Ltd v Noosa Shire Council [2026] QPEC 32, the Court upheld Cordwell’s appeal against Noosa Shire Council’s (Council) refusal of a minor change application under the Planning Act 2016 (Qld) (Planning Act), granting the change to an existing development approval for an extractive industry at Kin Kin on the Sunshine Coast hinterland.
This decision follows an earlier proceeding in the same matter, reported here, in which the Court declared that Council’s refusal to accept the change application was procedurally flawed and ordered that the proceedings continue as if commenced as a formal appeal against refusal. The substantive hearing took place over four days before Williamson KC DCJ in Maroochydore in August 2026.
What was the Kin Kin quarry dispute about?
Cordwells operates a hard rock quarry at 900 Sheppersons Lane, Kin Kin, under a development approval that traces its origins to 1987 and was changed by the Court in May 2016 (the 2016 Approval). The 2016 Approval introduced a Quarry Management Plan (QMP) as an operative condition of the approval. The QMP prescribes a two-stage extraction methodology: an initial “bottom up” phase using mobile plant, transitioning over time to a “top down” approach from the upper quarry face using fixed plant in a designated Approved Plant and Infrastructure Area.
In early 2025, Cordwells applied to Council under section 78 of the Planning Act, the minor change application pathway, to make a minor change to the 2016 Approval. The purpose of the change was to regularise the presence of a fixed high frequency screening plant – already in situ – in the hardstand floor area, a location used during the mobile plant phase and not the designated long-term location for fixed plant under the QMP. The change sought approval for the fixed plant to remain in that location for a period of up to five years.
Council refused the minor change application, taking the position that the proposed change would result in “substantially different development” and therefore fell outside the definition of a minor change under Schedule 2 of the Planning Act.
The Resource
The Kin Kin quarry holds a hard rock resource with an estimated life of at least 30 years, producing andesite and altered latite, including manufactured sand used directly in concrete manufacturing. It is a significant and long-standing resource with an identified market, and one that is still largely intact. Cordwells did not take control of the land until 2019, three years after the QMP was approved, inheriting a site that required substantial initial works before commercial production could begin. Against that backdrop, the Court was clear that Council’s concerns about the pace of development, while understandable, could not be ventilated through a minor change application in the absence of a direct connection to the change proposed. The Court expressly rejected the suggestion that Cordwells were seeking to take the benefit of the approval while avoiding its obligations – accepting Mr Cordwell’s evidence the company remained committed to implementing the top down methodology.
The Court's Findings
No Substantially Different Development
The central issue in the appeal was whether the proposed change would result in “substantially different development” – the key threshold concept in the definition of a minor change under the Planning Act. The Court confirmed this is a matter of fact, degree and impression, requiring a comparative exercise between the approved development and the changed form of development.
His Honour rejected the Council’s framing of the comparison. The relevant comparison was not between “nothing” and a fixed piece of plant, but between: (1) a train of mobile processing plant (which could lawfully include a mobile high frequency screen); and (2) the same train completed with a single fixed high frequency screen. Viewed that way, the change was modest.
The Court found the change would not:
- alter a fundamental component of the use – the 2016 Approval authorises extractive industry with a processing component, and that remains unchanged;
- give rise to any new or exacerbated visual amenity, noise or dust impacts – the nearest residence remains approximately 800 metres from the quarry regardless; or
- alter the activity of extraction in any meaningful way.
His Honour found that Council’s case materially overstated the impact of the proposed change. One of Council’s expert witnesses had suggested that approving the change would “annihilate” the 2016 Approval – however, when the full circumstances were explored in cross-examination, the same expert acknowledged that the change to the 2016 Approval, and any associated impact on its implementation, was “the least of his concerns“. His Honour was not persuaded that the change was as consequential as Council’s case suggested.
The EPBC Factor: A Changed Landscape
A pivotal finding concerned the role of Commonwealth environmental approvals in explaining the current state of the quarry. The essential site works required to transition to top-down quarrying – stripping upper bench faces and constructing haul road access – cannot lawfully commence until Cordwells obtains approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) for a “controlled action”. Notice of the controlled action was received in July 2025.
His Honour held that it is this EPBC requirement – not the proposed fixed plant – that explains why the QMP’s top-down methodology will not be implemented during the life of the 2016 Approval. Any discord between the fixed plant and the QMP was found to be of a technical nature only, pre-existing and causally unrelated to the change application. As His Honour put it, to suggest otherwise would be “like contending that two drops of oil put in the Brisbane River are responsible for the quality of that entire water body.”
This principle is not limited to quarrying. Any project requiring a development approval that is also subject to an EPBC controlled action determination, may face comparable circumstances where Commonwealth approval timelines affect the developer’s ability to implement the approved development as originally contemplated. The Court’s findings provide directly relevant guidance for operators across the resources and energy sectors.
This also distinguished the present case from an earlier decision in Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51, where his Honour Judge Everson had found, on the facts then available, that the fixed plant’s location was inconsistent with a top-down quarry design. That finding could not have anticipated the EPBC controlled action notice, which did not arise until July 2025. The question before the Court in 2024 was also materially different.
Planning Controls and Discretionary Considerations
Council argued, secondly, that the change was inconsistent with repealed and contemporary planning controls on the basis that the delay in implementing the QMP would undermine rehabilitation and environmental management outcomes. His Honour rejected this, finding that the change was not causative of any failure to implement the QMP’s rehabilitation requirements, which only arise once the upper quarry area is disturbed – something that cannot occur until EPBC approval is obtained. Our client cannot rehabilitate what has not yet been disturbed.
Council also raised two discretionary reasons for refusal:
- the delay in commencing top-down quarrying was the Appellant’s responsibility; and
- Cordwells would take the benefits of the approval while avoiding its obligations.
His Honour rejected both, and in doing so, accepted Mr Cordwell’s evidence the company had no intention of abandoning the top-down methodology, and found that the real impediments, being the EPBC process and the currency period (the period within which the approval must be acted upon) of the approval itself, had nothing to do with the change application. These representations had been exhaustively made to Council prior to the hearing without success.
Council’s argument that the change application should be assessed alongside a future application to extend the currency period (to avoid “piecemeal” assessment) was also dismissed. His Honour found no nexus between the two applications warranting a holistic assessment.
It also emerged from the evidence that Council’s experts focused less on whether the proposed change gave rise to new or increased impacts and more on whether the proposed change was properly characterised as an ‘other change’ – a characterisation that, if accepted, would have required Cordwells to publicly notify its application and subjected it to a range of additional regulatory requirements.
The Condition: Modified but Approved
Ultimately, Cordwells’ change application was approved, with the Court exercising its conditions power to fix the end date for the condition at May 2030 – three years before the expiry of the residual currency period. His Honour reasoned that tying the expiry date to a point three years before the end of the currency period was appropriate, as it aligns the fixed plant condition with the likely timing of any application to extend the currency period of the 2016 Approval – allowing Council to consider both issues together with the benefit of updated information, including the outcome of the EPBC process. The Court’s decision was also underpinned by its acceptance of Cordwells’ evidence that the quarry likely has in excess of 30 years of resource remaining in-situ and that preparatory work on top-down quarrying would have commenced but for receipt of a controlled action notice under the EPBC in July 2025. Civil works and stripping of upper bench faces may only begin once EPBC approval is obtained.
Key Takeaways
This decision provides valuable guidance for quarry operators, developers, renewable energy project proponents, and local authorities navigating the minor change regime:
- The substantially different development test is comparative and contextual.A change must be assessed by comparing the approved development to the changed form – not in isolation. The mere introduction of fixed plant at the end of an existing mobile processing train does not, without more, result in substantially different development.
- Causation matters.A minor change application is not the appropriate vehicle to ventilate broader concerns about the pace or progress of development unless a direct nexus can be drawn between the proposed change and those concerns. Where delay is attributable to other factors, here, the requirements of the EPBC process, the proposed change cannot fairly be held responsible for that delay.
- Management plans expressed in flexible terms will be read flexibly. Where a QMP or similar document uses language such as ‘short-medium term’, qualifies timeframes by reference to market conditions, or otherwise acknowledges the inherently dynamic nature of quarrying operations, those provisions are unlikely to be read as imposing rigid or inflexible obligations. Developers should not assume that a departure from estimated timeframes in such a document necessarily amounts to non-compliance, and a responsible entity assessing a change application should be cautious about treating such timeframes as hard deadlines when the underlying document does not.
- State and Commonwealth approval regimes interact. The EPBC controlled action process can significantly affect any operator’s, including renewable energy and infrastructure proponents’, ability to implement a development approval – and those Commonwealth delays are relevant context in any planning proceeding. Operators should ensure they are across both regimes and factor EPBC timelines into their planning horizon.
- Piecemeal assessment arguments have limits. A council cannot compel an applicant to bundle a change application with a future, hypothetical application (such as a currency extension) unless there is a genuine and demonstrable connection between them.
- Courts retain a broad conditions power. Where a change is capable of being approved in principle, but the specific terms require adjustment, the Court can modify conditions to reflect sound town planning considerations – approving the change while calibrating its scope.
If your development approval has been affected by EPBC delays, plant or infrastructure changes, or issues with your approval’s currency period, we encourage you to seek advice early – these issues can compound quickly. Contact Partner Fraser Hardman (07 3000 8370) or Associate Eliza Burke (07 3000 8405) to discuss how this decision may be relevant to your project.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
FAQs
Find quick answers to common questions about this topic.
What is the “substantially different development” test under the Planning Act 2016 (Qld)?
The “substantially different development” test determines whether a proposed change to a development approval qualifies as a “minor change.” The Court confirmed in this decision that the test is a matter of fact, degree and impression, assessed by comparing the approved development with the proposed changed development, not by evaluating the change in isolation from the approved baseline.
Does introducing fixed plant into an existing approval automatically result in substantially different development?
No. This decision confirms that the introduction of fixed plant at the end of an existing mobile processing train does not, without more, constitute substantially different development. The correct comparison is between the existing approved development (including what it already lawfully permits) and the proposed changed form, not between “nothing” and the proposed plant.
Can a council require an applicant to bundle a minor change application with a future currency extension application?
Not unless there is a genuine and demonstrable connection between the two applications. The Court rejected the argument that a change application must be assessed together with a hypothetical future currency extension application to avoid piecemeal assessment. An applicant cannot be compelled to submit applications that have not yet been made.
What happens when an EPBC controlled action process prevents a developer from implementing their approval?
EPBC delays are a legitimate and relevant contextual factor in planning proceedings. The Court confirmed that where an EPBC controlled action process is the real reason a developer has not progressed to a particular stage of their approval, those delays cannot be attributed to the developer as a discretionary reason to refuse a change application.
Can the Planning and Environment Court modify the conditions of a change, rather than simply approving or refusing it?
Yes. The Court exercises a broad conditions power and can approve a change while modifying the specific terms of conditions to reflect sound planning considerations. In this case, the Court approved the change but adjusted the end date of the fixed plant condition to align with the likely timing of any future currency extension application.
Is this decision relevant beyond quarrying, for example, to renewable energy and infrastructure projects?
Yes. Any project requiring a state development approval that is also subject to an EPBC controlled action determination, including renewable energy projects such as wind farms and large-scale solar installations, may face comparable circumstances where Commonwealth approval timelines affect the ability to implement the approved development. The principles confirmed in this decision apply across the resources and energy sectors and to any project or development that is subject to Commonwealth approval under the EPBC Act.
