Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors - [2008] NSWLEC 120

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120

PARTIES:
APPLICANTS:
Douglas and Susan Anderson on behalf of Numbahjing Clan within the Bundjalung Nation
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
S. J. Connelly P/L
THIRD RESPONDENT:
North Angels Beach Development (Ballina) Pty Ltd

FILE NUMBER(S): 41271 of 2007

CORAM: Biscoe J

KEY ISSUES:
Development Consent :- Judicial review - Validity of development consent for residential subdivision on land of high significance to Aboriginals - Whether invalid because of failure to readvertise and call for public submissions after earlier development consent declared void and of no effect - Whether invalid because of denial of procedural fairness - Whether invalid because consent authority did not require deeper subsurface archaeological testing for Aboriginal materials - Whether invalid because failed to give consideration to mandatory relevant matters - Whether invalid because decision manifestly unreasonable.
Civil Enforcement: - Whether breach of conditions of development consent by clearing of trees - Whether local environmental plan prohibited clearing of trees in residential 2(a) zone

LEGISLATION CITED: Aboriginal Land Rights Regulation 2002 (NSW) sch 2
Ballina Local Environment Plan 1987 (NSW) cll 5, 9, 23, 24
Coastal Protection Act 1979 (NSW) s 4
Environmental Planning and Assessment Act 1979 (NSW) ss 4, 5(c), 76A(7), 76A(9), 79A, 79C(1)
Environmental Planning and Assessment Model Provisions 1980 (NSW) cl 8
Environmental Planning and Assessment Regulation 2000 (NSW) cl 90, Pt 6 Div 7
Land and Environment Court Rules 2007 (NSW) r 4.2
National Parks and Wildlife Act 1974 (NSW) ss 87, 90
State Environmental Planning Policy No 71 – Coastal Protection (NSW) cll 2(1), 4(1), 7(b), 8, 10(1), 17, 18, 19, sch 2

CASES CITED: Anderson v Director-General, Department of Environment and Conservation (2005) 144 LGERA 43
Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229
Annetts v McCann (1990) 170 CLR 596
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Craig v South Australia (1995) 184 CLR 163
Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537
Foster v Minister for Customs and Justice (2000) 200 CLR 442
Kioa v West (1985) 159 CLR 550
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Walker v Minister for Planning [2007] NSWLEC 741

DATES OF HEARING: 11/03/08 - 14/03/08, 26/03/08, 31/03/08

DATE OF JUDGMENT:
31 March 2008

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr A. Oshlack, agent
SOLICITORS:
N/A
FIRST RESPONDENT:
Mr A. Galasso SC
SOLICITORS:
Department of Planning
SECOND AND THIRD RESPONDENTS:
Mr N. Williams SC, Ms A. Mitchelmore
SOLICITORS:
Bourke Love McCartney Young

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 March 2008
41271 of 2007

ANDERSON & ANOR ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v NSW MINISTER FOR PLANNING AND ORS
JUDGMENT

1 HIS HONOUR: This is a challenge to the validity of a development consent. Alternatively, the applicants seek relief for alleged breaches of conditions of the consent.

BaCKGROUND

2 The challenged consent was granted on 18 November 2007 by the first respondent, the Minister for Planning (Minister), by his delegate. It is a consent to development application 188-8-2004 in relation to a proposed housing subdivision (and associated infrastructure) on Lot 208 DP 851318, Angels Beach Drive and The Coast Road, East Ballina, New South Wales. The development application was lodged by the second respondent, S J Connelly Pty Ltd (Connelly), on behalf of the third respondent, North Angels Beach Development (Ballina) Pty Ltd (developer), the owner of the land.

3 Comprising 10.52 hectares, the subject land is largely zoned 2(a) (Living Area Zone) under the Ballina Local Environment Plan 1987 (NSW) (Ballina LEP), with a small pocket of land in the north-east corner zoned 7(d) (Environmental Protection (Scenic/Escarpment) Zone). The development is proposed to be carried out only on the land zoned 2(a).

4 These proceedings constitute the second challenge that the applicants have brought in this Court to a development consent issued by the Minister in relation to the development application: see [14] below.

Legislative Background

5 Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) requires a consent authority to take into consideration any environmental planning instruments as are of relevance to the development the subject of the development application. A relevant environmental planning instrument in this matter is State Environmental Planning Policy No 71 - Coastal Protection (NSW) (SEPP 71). By reason of the location of the land within the "coastal zone", as that term is defined in s 4 of the Coastal Protection Act 1979 (NSW), the subject development application is subject to the provisions of SEPP 71: see cl 4(1). At the time the development application was submitted in August 2004, clause 10(1) of SEPP 71 declared development specified in Schedule 2 of that Policy to be State significant development, pursuant to s 76A(7) of the EPA Act. The proposed development fell within Schedule 2, being a "subdivision of land within a residential zone into more than 25 lots". In accordance with the now repealed s 76A(9) of the EPA Act, the Minister was the consent authority for the development.

6 The aims of SEPP 71, as stated in cl 2(1), include:

(d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge,...

7 Clause 8 of SEPP 71 lists matters which, under cl 7(b), "are to be taken into account by a consent authority when it determines a development application". These matters include:

8 Clause 18(1) of SEPP 71 provides that a consent authority "must not" grant consent for, inter alia, "subdivision of land within a residential zone that is not identified as a sensitive coastal location into more than 25 lots", unless the Minister has adopted a "master plan" for the land, or, after consulting the Natural Resources Commission, has waived the need for a master plan. The term "master plan" is defined in cl 17 as "a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies". Clause 19 of SEPP 71 precludes a consent authority from determining a development application without first having considered the provisions of any master plan adopted in respect of the land.

9 If the development satisfies the requirements of SEPP 71 (and those in the other instruments which are relevant to the development), the Minister is still required to consider the more general matters listed in s 79C(1), namely:

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Consent to Destroy Under s 90

National Parks and Wildlife Act 1974

(NSW)

10 On 29 May 2003 the Director-General of National Parks and Wildlife granted to the developer a consent to destroy Aboriginal objects on the land under s 90 and a permit for their salvage collection under s 87 of the National Parks and Wildlife Act 1974 (collectively, s 90 consent). This excluded an area in the north-west corner of the site. The applicants successfully challenged its validity in this Court: Anderson v Director-General, Department of Environment and Conservation (2005) 144 LGERA 43 (Pain J). Further s 90 consents were granted in October 2006 and April 2007. The applicants brought proceedings challenging their validity and, by consent, this Court declared each to be void and of no effect on, respectively, 28 November 2006 and 15 August 2007. Finally, a fresh s 90 consent was issued on 3 October 2007. The applicants commenced, and then discontinued, proceedings in this Court challenging its validity.

Events leading to first development consent in 2005

11 On 7 August 2003, in compliance with cl 18 of SEPP 71, Connelly submitted a draft master plan and companion volume containing technical reports to the Department of Planning. The master plan addressed the cultural heritage significance of the land in a number of sections. The companion volume included a more detailed section on Heritage Significance, which referred to archaeological test excavations undertaken on the land by Ms Sue Davies and indigenous representatives nominated by the Jali Local Aboriginal Land Council (Jali LALC), and to an anthropological study conducted by Dr James Weiner.

12 In August 2004, the development application was lodged with the Department of Planning. The Statutory and Policy Planning Report annexed thereto noted that it had been designed to completely accord with the provisions of the master plan. It also confirmed that no development was proposed within the north-western corner of the site which was in a proposed open space conservation area. A Cultural Heritage Management Plan (CHMP) was also annexed to the development application. The CHMP outlined the tests carried out by Ms Davies, referred to the work of Dr Weiner and attached a copy of the then operative s 90 consent.

13 The Department of Planning’s Assessment Report of 18 December 2005 concluded that "the subject site is considered suitable for the proposed development". On 20 December 2005, the Minister consented to the development application.

14 The applicants successfully brought proceedings in Class 4 of this Court's jurisdiction challenging the validity of the 2005 development consent. I declared the consent to be void and of no effect: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. Of the grounds which the applicants raised in relation to the consent – a number of which are re-agitated in these proceedings – I upheld the ground that the Minister had failed to properly consider matters in SEPP 71, which s 79C(1)(a) of the EPA Act required him to consider, in particular the Minister failed to give proper, genuine and realistic consideration to the reasons why the site was of high cultural significance to Aboriginal people. I held that the existence and scope of any implied obligation to consider the massacre should be determined having regard to the aims, subject matter and scope of SEPP 71, one aim of which included, in cl 2(1)(d), to protect and preserve Aboriginal cultural heritage and Aboriginal places, values, customs, beliefs and traditional knowledge: at [50]. I continued at [51]-[52]:

The Minister knew that there was an anthropological report by Dr Weiner in the possession of the applicant for development consent which concluded that the area was of high significance. In my opinion, having regard to the considerations to which I have referred, the Minister was obliged to obtain and consider the Weiner reports because they contained information concerning the massacre of vital importance in explaining and understanding the significance of the land to Aboriginal people. Without that knowledge the Minister had no more understanding of the issue than a foreigner who is told that ANZAC Day is of high significance to Australians without being told why. Revelation of the massacre would have breathed life, death and tragedy into, and stripped the veil of obscurity from, the bland words “high significance”. In my opinion, the revelation could have materially affected the Minister's decision.

15 I also held that the failure to properly consider the massacre meant that the Minister had not complied with the requirement of s 79C(1)(b) to take into consideration the likely impacts of the development: at [60].

16 In December 2006 the applicants met with the developer and reached agreement on a Cultural Heritage Management Plan for the site. On this basis, they then wrote the following letter dated 29 December 2006 to the Department of Environment and Conservation (DEC) (now the Department of Environment and Climate Change).

Re Section 90 Redetermination over Lot 208, North Angels Beach, East Ballina

We wish to advise that we have today contacted and met with the owner of Lot 208 North Angels Beach, East Ballina, Mr Condon.

We further advise that after comprehensive discussions with regard to adherence to the undertakings contained within the Cultural Heritage Management Plan (CHMP), in particular those concerning the Conservation Area in the North West corner of the site, we now wish to support the Section 90 Redetermination over LOT 208 North Angels Beach, East Ballina, 2478.

We further advise that we also support the redetermination of Development Consent 188-8-2004 previously issued by the New South Wales Minister for Planning on 20th December 2004 [sic 2005].

17 On 17 January 2007 the DEC was notified that the applicants wished to withdraw their support for the application and reinstate their objections. On the evidence, the Department of Planning was unaware of that withdrawal before 31 October 2007 when it was provided by the DEC with its s 90 Determination Report which noted that fact. There is no evidence that the other respondents were aware of the withdrawal any earlier. However, the applicants made their opposition to the development application clear to the respondents from July 2007: see [37] below.

18 Meanwhile, on 8 January 2007, Connelly wrote to the Department of Planning requesting that it proceed to redetermine the development application. Connelly and the developer's legal representatives provided the Department of Planning with the documents given to the DEC in support of the re-application for the s 90 consent, including copies of the Weiner Reports.

19 In April 2007 the Department of Planning retained Umwelt Environmental Consultants (Umwelt) to undertake a review of existing Aboriginal cultural heritage documentation. A Department of Planning note dated 30 March 2007 recorded that there was insufficient expertise within the Major Projects Assessment Group of the Department to undertake the work and that specialist expertise would ensure that the requirements of SEPP 71 were thoroughly assessed.

20 Umwelt provided the Department with a draft report in May 2007, which stated (among other things):

It is noted that DEC has issued Section 90 consent #2551 and therefore has conditionally approved the disturbance or destruction of Aboriginal objects within the project area, with the exclusion of the conservation area. Under s91 of the EP&A Act 1979, the Minister for Planning is required to consider and provide consent conditions that are consistent with the general terms of approval issued by other relevant approval bodies. In this case, the issuing of Section 90 consent #2551 has subsumed the general terms of approval and therefore the Minister must consider consent conditions that are consistent with Section 90 consent #2551.

However the DEC determination report completed prior to issuing Section 90 consent #2551 contains some inconsistencies relating to the assessment of both the archaeological and Aboriginal significance of the project area. The key issues relate to an inferred change in Aboriginal significance based on consultation with the administrator of Jali LALC and insufficient assessment of the potential for further subsurface deposits.

21 On 24 May 2007 the chairperson of the Jali Local Aboriginal Land Council, Mr Des Bolt, expressed support for the development in the following letter to the developer:

Please find attached the Cultural Heritage Management Plan signed on behalf of JALI Local Aboriginal Land Council.

I’d like to confirm that your proposed development has the full support of the JALI LALC.

Representatives of JALI, including our Cultural & Heritage Committee, have been involved in the various consultation meetings held in relation to the proposed development, and can I say that when you were given the opportunity to address a meeting of JALI members, held at the Ballina RSL Club last year, you were happy to speak at that meeting and answer any questions. This was very well received by the large number of our community that were present.

JALI doesn’t consider the site of your proposed development as an area of high cultural significance to our people. It is common knowledge that the site has been root-racked and highly disturbed over the years. The proposal to establish a conservation area, to use as a keeping place, allows a chance for our people to keep an ongoing connection with the area and has been welcomed by JALI.

Can I say that the above sentiments are those of the JALI Heritage Committee members. We are aware that a small minority within the local aboriginal community have taken it upon themselves to spend a lot of time and energy stating that the area is one of high significance to the local aboriginal community. These people are claimants only and don’t represent JALI LALC.

22 In late May 2007 Mr Condon, director of the developer, provided the Department of Planning with copies of the Jali LALC letter, the applicants’ letter of December 2006, the s 90 consent of April 2007, and a Cultural Heritage Management Plan expressed to be between the developer, the applicants, the Jali LALC and the DEC. That plan had been executed on behalf of the developer and on behalf of the Jali LALC by its chairperson, Mr Bolt.

23 On 1 June 2007 the Department of Planning provided Umwelt with copies of the Jali LALC letter and the applicants’ letter dated 29 December 2006.

24 On 4 June 2007 Umwelt sent the Department of Planning its final draft report. The covering email stated:

The Aboriginal stakeholder correspondence that you provided to us on Friday has had a major impact on the findings of the report, resulting in significant changes to Section 5 and Section 6. Essentially, the correspondence resolves the Aboriginal heritage significance issues and it is now no longer considered necessary to explore additional conservation offset options as the Section 90 has been approved by DEC and has the support of the Aboriginal stakeholders.

25 On 15 June 2007 Connelly wrote to the Department of Planning about a number of matters relating to the development application and stated as follows in relation to the letters of December 2006 from the applicants and May 2007 from Jali LALC:

Correspondence with Jali Local Aboriginal Land Council and Anderson family

26 The final Umwelt Report of 25 June 2007 referred to these letters as follows:

3.13 Subsequent Correspondence

JALI doesn’t consider the site of your proposed development as an area of high cultural significance to our people

27 The Umwelt Report noted that there had been considerable consultation with the Aboriginal community in relation to the project:

3.14.3 Aboriginal Significance

The extent of the consultation with the Aboriginal community that has been undertaken in relation to the project area is considerable. In reviewing the cultural heritage documentation relating to the project area there is a change in the nature of the assessment of the Aboriginal significance of the project area. The earliest information regarding the Aboriginal significance is provided by Haglund (1991) and was obtained through consultation with a broad cross-section of the Bundjalung community including Jolanda Nayutah (representing Jali LALC), Frank Roberts, Lois Cook and the Bundjalung Elders group. Haglund (1991) found that the project area was considered of high significance by those members of the Aboriginal community interviewed during the course of her assessment. The assessments completed by Weiner (2003a, 2003c) and Davies (nd, 2003a, 2003b) involved consultation with a smaller group within the Aboriginal community but still found that the project area was of high Aboriginal significance. The high significance of the project area to Aboriginal people was reportedly linked to the presence of large numbers of archaeological sites, its proximity to other aspects of the cultural landscape (including ceremonial sites) and its association with the events of the Ballina massacre of the 1850s.

the likelihood of significant Indigenous values being uncovered on that Lot was low

JALI doesn’t consider the site of your proposed development as an area of high cultural significance to our people

We would like to state from the outset that the Director General of the DEC should not issue a further consent to destroy for North Angels Beach

28 In the Executive Summary, Umwelt noted that it had reviewed a number of assessments and permit applications (including all the reports of Ms Davies and Dr Weiner), in conjunction with a broad range of correspondence and a determination report completed by DEC prior to issuing the s 90 consent. Umwelt expressed the "Key Review Outcomes" as follows:

NABD [North Angels Beach Development] has committed to establishing an Aboriginal heritage conservation area within the project area and has undertaken detailed consultation with Aboriginal stakeholders and provided the relevant information to DEC to obtain consent for the proposed impacts to Aboriginal cultural heritage within the project area. In this respect, the relevant considerations under SEPP 71 and the EP&A Act have been addressed.

However there are a number of issues in relation to the CHMP for the project area that require resolution. It is therefore recommended that, should DoP grant development consent to the proposed development, the need for revision and subsequent finalisation of the draft CHMP should be addressed by the consent conditions.

29 On 25 July 2007 Umwelt wrote to the Department of Planning noting the pending challenge to the consent under s 90 of the National Parks and Wildlife Act 1974 and noting that the advice referred to in its report was partially based on the knowledge, at the time of writing, that both the Aboriginal stakeholders and the DEC were satisfied with the reissued s 90 consent.

30 On 18 November 2007 the Department of Planning’s submissions seeking the Minister’s determination of the development application and the Department’s Assessment Report were produced. The Assessment Report attached, among other documents, a Section 79C Evaluation. In recommending to the Minister that the development application be approved, the Department addressed both of the issues raised in the Umwelt Report in the passage quoted at [28] above. In section 5.2 of its submissions headed "Key Issues", the Department noted that the Angels Beach area had high significance for the Aboriginal people as an area through which people fled from the massacre of Aboriginal people carried out more than 1 kilometre to the south in the mid 1850s, and that while there was no indication that anyone actually died on the site, there was a strong connection with the locality generally and the events following the massacre. The Department considered that the setting aside of the north west corner of the site as a Cultural Conservation Area, ringed and further protected by a Natural Conservation Area, constituted adequate and appropriate mitigation for the use of the remainder of the site for subdivision and related purposes. However, it considered that in addition to the existing Cultural Heritage Management Plan, which dealt with the construction period, the specific needs of the Cultural Conservation Area into the future needed to be addressed. Accordingly, it recommended that a condition of consent should require the preparation of a Cultural Heritage Conservation Area Management Plan for the ongoing management of the Cultural Heritage Area, prepared in consultation with Ballina Shire Council, the Jali LALC and other relevant Aboriginal stakeholders.

31 In response to Umwelt's concern that it was possible that artefact bearing deposits were located in profiles deeper than one metre and may be of Pleistocene antiquity if they existed, the Department referred to information from test bores taken across the site (10 in total) which indicated that the entire site was likely to be covered by a thin level of top soil over a deeper layer of windblown sands and that there was no clear evidence of Pleistocene landscape beneath the site. The test bores penetrated to depths of 3 metres and were evenly spaced across the site, excluding the north-west corner. Although such Pleistocene landscape may exist at some deeper level (i.e. greater than three rnetres), the Department noted that all infrastructure works apart from the sewer mains would be located in the top 1.2 metres of the site, and while the sewer lines needed to be at depths to a maximum of 2.5 metres, this was only likely to occur towards the southern boundaries of the site, adjacent to Angels Beach Road. The Department further noted that a condition of consent was included which restricted all civil works associated with the consent to a maximum depth of 2.5 metres below natural ground level, with disturbance for the remainder of the site to be limited to a maximum depth of 1.2 metres.

32 In recommending that the Minister grant the consent, the Department noted that it had assessed the proposal and considered the public and agency submissions in response to the proposal, with conditions of consent recommended to ensure that key issues resulting from the assessment "are satisfactorily addressed and there are minimal impacts as a result of the proposal". The benefits which the Department identified as flowing from the proposal included:

· The subdivision represents a suitable and orderly development of appropriately zoned land contiguous to an existing residential neighbourhood;

· The subdivision responds well to the constraints and opportunities presented by the site and the surrounding context;

· The area consistently identified as being of high cultural significance to local Aboriginal people, being the north-west corner of the site has been preserved as a Cultural Conservation Area; and

· Future generations will benefit from the setting aside of areas of natural and cultural conservation values and significance and from associated public ownership and planned active management strategies.

33 On 18 November 2007 the development consent was granted by the Minister by his delegate Mr Chris Wilson, the Executive Director, Major Project Assessment, who had been quite closely involved in the process leading to the consent.

Failing to readvertise and call for submissions

34 The applicants submitted that the Minister failed to consider a mandatory relevant matter pursuant to s 79C(1)(d) because the Minister failed to readvertise the development application and call for submissions before reassessing it. Section 79C(1)(d) is not quite in point, in my view, because it provides that the Minister must consider any submissions made in accordance with the Act or regulations. The applicants’ real point may be reframed as a proposition that the Minister was legally obliged to readvertise and call for submissions following my decision that the first development consent was invalid.

35 Section 79A of the EPA Act provides that “Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan”. Section 4 defines “advertised development” as “development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan”. The original development application was publicly notified and exhibited in 2004 as “other advertised development” in accordance with Division 7 of Part 6 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), the Ballina Shire Council Development Control Plan No 1 – Urban Land and the Urban Assessments Draft Notification Policy. In response, submissions were made by certain members of the public.

36 On being requested by the developer to reassess the development application in January 2007, the Department of Planning considered that a further round of public notification and exhibits as part of the fresh assessment was unnecessary.

37 On 19 July 2007 the applicants’ agent, Mr Oshlack, telephoned the Department of Planning and expressed the applicants’ concern that they had not been advised that the application was being redetermined and had not been consulted on the redetermination. The agent requested that the application be readvertised to allow the applicants to make a submission. On 20 July 2007 the Department representative telephoned the agent and advised that they were not intending to readvertise as they were not legally obliged to do so but that the applicants were welcome to make a submission if they wished.

38 On 20 July 2007 the applicant’s agent wrote to the Department of Planning contending that the development application should be readvertised in the interests of procedural fairness and natural justice. The Department’s response of 7 August 2007 advised the nature of the public consultation that had been carried out in 2004 and the responses received; that no further public advertising and notification was considered necessary; that the Department considered that the application under assessment differed in minor respects from the original application, which in itself did not warrant re-notification; but that nevertheless the Department would consider any written submissions from the applicants which it requested be provided within 14 days. On 17 August 2007 a submission was received by the Department of Planning from the applicants’ agent opposing development consent and, among other things, contending that the decision not to advertise and notify was a denial of natural justice and procedural fairness.

39 In the meantime, on 13 August 2007, Connelly provided the Department with replacement plans which envisaged relatively minor changes. On 20 August 2007 the Department of Planning wrote to Connelly advising that it had accepted the amended drawings under cl 90 of the EPA Regulation. The Department of Planning’s Assessment Report of 18 November 2007 stated: “These amendments differ only in minor respects from the development application submitted and do not to give rise to any additional impacts. Accordingly, these amendments were accepted as a replacement application in accordance with clauses 55 and 90 of the Environmental Planning & Assessment Regulation 2000 (the Regulations). In accordance with clause 90 of the Regulations further notification of the application was not undertaken, and the applicant was advised of the acceptance of the amended plans on 20 August 2007”.

40 Division 7 of Part 6 of the EPA Regulation regulates public participation for other advertised development. Clause 90 within Division 7 provides:

90 Circumstances in which notice requirements may be dispensed with

replacement application

41 The declaration that I made in the earlier proceedings was that the first consent to the development application was “void and of no effect”. The very terms of the order indicate, in my opinion, that the development application remained undetermined. Further, as was said in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] by Gaudron and Gummow JJ: “There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”. Similarly, Callinan J said: “if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised”: at [152]. My declaration in the earlier proceedings that the first development consent was void and of no effect was based on the Minister’s error of law in failing to take into account a mandatory relevant consideration, which was a jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179. Contrary to the applicants’ submission, that declaration did not mean that the process of public notification and exhibition had to start afresh. The declaration had no effect on the validity of the public participation process or anything else that had occurred prior to the invalidated development consent.

42 The Minister complied with the statutory public participation requirements in relation to the original application in 2004. Upon the application being amended in 2007 cl 90 of the EPA Regulation came into play. The opinion contemplated by cl 90(1)(b) was formed that the amended 2007 application differed only in minor respects from the original application. There is no basis for suggesting that that opinion was manifestly unreasonable in the Wednesbury sense (nor do I understand that to have been pleaded or submitted). The Minister therefore had power, which was exercised under cl 90(2), to decide to dispense with further compliance with the Division in relation to the amended application. Consequently, under cl 90(2), compliance with Division 7 in relation to the original application was taken to be compliance in relation to the amended application. In accordance with cl 90(3), written notice to Connelly of the consent authority’s decision under the clause was given on 20 August 2007.

43 Accordingly, I reject this ground of challenge to the development consent.

Procedural Fairness

44 The applicants pleaded that the development consent is invalid on the ground that they were denied procedural fairness because Umwelt failed to consult with them (or to their knowledge any other traditional owners) in relation to the preparation of the Umwelt Report. In their particulars, they contended that they were unaware that the Umwelt Report was being prepared and did not have input into it: I accept those contentions of fact. In their particulars they also said that they disagreed with or are aggrieved by some matters in the Umwelt Report, including that consideration had been given to letters of 3 August 2006 and 24 May 2007 from Jali LALC, that Umwelt had been communicating with the developer’s consultant archaeologist and that a representative of the Department of Planning had met with the developer. They alleged that the letter of 24 May 2007 was written without authority. I note that the applicants’ views concerning the letter of 3 August 2006 were set out in their letter of 30 August 2006 to DEC which was before the Minister.

45 The obligation to afford procedural fairness is a common law doctrine which attaches to the exercise of public power, subject to any statutory modification: Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 (CA) at [50] per Spigelman CJ, quoted with approval in Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 (CA) at [56] by Tobias JA (Hodgson and Ipp JJA agreeing). A related object of the EPA Act is “to provide increased opportunity for public involvement and participation in environmental planning and assessment”: s 5(c). Section 79A gives statutory force to the common law procedural fairness principle by providing for public participation in the development application process: Lesnewski at [57]. Sections 79 and 5(c) provide similarly. The content of the duty to afford procedural fairness depends on the circumstances of the case and was described by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585 in the following passage (most citations omitted), which was cited with approval in the Court of Appeal in Vanmeld at [54] by Spigelman CJ and in Lesnewski at [61] by Tobias JA:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to fairly listen to both sides being a duty lying upon every one who decides anything : Board of Education v Rice ([1911] AC 179, at p. 182). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly…

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute… What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting…

procedural fairness

46 In Annetts v McCann (1990) 170 CLR 596, 598 Mason CJ, Deane and McHugh JJ held: “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment”. The principle of procedural fairness when making administrative decisions was acknowledged in this Court in Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348 at [38] by Preston CJ quoting Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 at [52] per McClellan CJ.

47 In the present case, there was compliance with the statutory public notification procedure in 2004 and there was no statutory provision which entitled the applicants to be consulted by Umwelt. Section 5(c) of the EPA Act provides that one of the objects of the Act is “to provide increased opportunity for public involvement and participation in environmental planning and assessment”. This is an important object. It is given effect by public participation provisions such as ss 79 and 79A. However s 5(c) did not confer on the applicants a right to be consulted in relation to the Umwelt Report. Insofar as the applicants may have submitted to the contrary, I do not accept the submission.

48 The case cannot, in my view, be brought within the principle of legitimate expectation. In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-292, Mason CJ and Deane J said that “if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a cure case against the taking of such a course”. In Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 48, Beazley JA (Powell JA agreeing), referring to Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, said:

must affect [the] other person ... by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn

Beazley JA then noted that although Lord Diplock’s comments are not a code, the cases in this area have proceeded mostly on the basis that a legitimate expectation will only arise where one or other of the conditions specified by Lord Diplock are found to exist.

49 There is no suggestion that either of those conditions exists in the present case, nor can I see any other basis for the application of the principle of legitimate expectation. The principle cannot be invoked merely because the applicant disagrees with or is aggrieved by Umwelt considering relevant correspondence (I leave aside for the moment the lack of authority point concerning the Jali LALC letter) or meeting with an archaeologist or by the consent authority meeting with the developer. Such matters, which are unremarkable, did not, in my view, give rise to any right in the applicants to be consulted. I take into account that in 2007 a native title claim was lodged for a 681 km2 area, including the subject site, by the Numbahjing clan and related families within the Bundjalung Nation, which includes the applicants. I also take into account that notwithstanding the applicants’ December 2006 letter and the Jali LALC May 2007 letter supporting the development, the Department of Planning knew by 19 July 2007 that the applicants opposed the grant of development consent. The report that Umwelt was retained to prepare cannot be said to raise any expectation on the part of the applicants that they be involved in the process leading to its publication.

50 Although this ground of review does not extend to complaint about the applicants’ involvement in the redetermination process more generally, in fact the applicants’ 2007 submissions were considered. The Department of Planning’s Assessment Report of 18 November 2007 noted that those submissions made seven points to which that report responded.

51 The applicants emphasised their submission that the letter of 24 May 2007 from the Jali LALC chairperson, set out at [21] above, was written without authority. There is some difficulty, it seems to me, in viewing this proposition as a particular of denial of procedural fairness to the applicants, which is how it was pleaded. Be that as it may, I will address the authority issue.

52 The applicants’ allegation that the letter was written without authority is based on the absence of any specific resolution of the Jali LALC authorising the chairperson to write it and on the response of the Jali LALC to a subpoena, issued by the applicants during the hearing, that they could not locate a copy after a thorough search. It is common ground that there was no such resolution. The response to the subpoena does not, of itself, establish lack of authority but indicates that a copy does not now exist, or at least cannot now be located, on the Jali LALC file.

53 Rule 19(2)(c) of the model rules for Local Aboriginal Land Councils, in schedule 2 to the Aboriginal Land Rights Regulation2002 (NSW), provides that the chairperson must “represent and act, subject to the instructions of a Council meeting, on behalf of the Council in the interval between meetings”. The applicants submitted that the chairperson had no authority to write this letter unless he was expressly instructed to do so by a council meeting. I do not accept the submission. In my opinion, under the rule the chairperson did not need such instructions to write the letter nor a resolution authorising him to write it. He was barred from writing it if the council instructed him not to. He received no such instructions. In my view, this is dispositive of the lack of authority point.

54 Additionally, and apart from that rule, the evidence suggests that the Jali LALC chairperson’s letter of 24 May 2007 reflected the views of the Jali Cultural and Heritage Committee and of Mr B C Jameson, the Administrator of the Jali LALC from 22 November 2004 to 22 May 2007. With the approval of a general meeting of the Jali LALC held in May 2006, that committee was established to deal with development applications. The committee considered a substantial amount of material relating to the development application concerning the subject site. On 3 August 2006 the Administrator of the Jali LALC wrote a letter to the developer in which, after referring to documents and tabulations presented by the archaeologist Ms Davies, stated:

55 Prior to the hearing the solicitors for Connelly and the developer wrote to Mr Jameson noting the applicants’ pleaded allegation that the letter of 24 May 2007 was written without authority and asking him whether the letter was authorised. Mr Jameson’s letter of reply dated 25 February 2008 included the following:

The Cultural and Heritage Committee met on several occasions to consider a substantial amount of material relative to Lot 208 Angels Beach. I was guided at all times by the advice of the JLALC Heritage Officers and the C&H Committee’s views and opinions. The letter of 3 August 2006 to Mr C Condon was written with the full knowledge and consent of the JLALC C&H Committee.

Although Douglas and Susan Anderson were invited to take up membership of the C&H Committee, no attendance by either party occurred at times of key deliberation and assessment of reports prepared by independent consultants.

56 For these reasons, I am not satisfied that the 24 May 2007 letter was written without authority. Even if it had been written without authority, it would not have made out the applicants’ case in circumstances where there was no reason for the Minister to have assumed that it was written without authority. Had I concluded that it was written without authority, it would have been necessary to inquire whether the applicants would have to have pleaded and proved bad faith or fraud in order for the lack of authority point to have any potential effect on validity. The issue of bad faith or fraud in a similar context was considered by me in Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at 257-258 [74] – [79].

57 For these reasons, in my opinion, the procedural fairness ground fails.

58 The applicants submitted that the Minister failed to consider relevant matters in relation to the impact of the development on the cultural heritage significance of the land by not requiring archaeological subsurface testing to be undertaken at a depth greater than one metre, as recommended (it was said) in the Umwelt Report. That was said to be a mandatory consideration under s 79C(1)(a) of the EPA Act, which requires a consent authority to take into consideration the provisions of any environmental planning instrument as are of relevance to the proposed development. The relevant environmental planning instrument was said to be SEPP 71. Relevantly, cl 2(1)(d) states that the aims of the policy include:

2 Aims of Policy

8 Matters for consideration

59 Extensive archaeological test excavations to a depth of one metre were conducted by Davies and indigenous representatives of Jali LALC in 2003 except (at the request of the indigenous people) in the north-west corner. All the concentrations of shell materials were in the top 30 centimetres. Davies recommended that the north-west corner be conserved. The test pits revealed that subsurface archaeological material was generally disturbed, reflecting, Davies concluded, historical pastoral clearance activities. On 17 August 2007 the applicants’ agent, Mr Oshlack, made a written submission to the Department of Planning enclosing a copy of an affidavit sworn in earlier proceedings by one of the applicants, Douglas Anderson, which stated that he did not accept Davies’ subsurface results because he believed the tests should go to a depth of greater than one metre. One reason was given, namely, that soil had been dumped on top of the site.

60 A DEC Aboriginal Heritage Impact Permit Report dated 3 October 2007 was provided to the Department of Planning on 31 October 2007. The report noted the applicant Douglas Anderson’s view that test pitting should have gone down to three metres and agreed with Davies’ view that there was no indication that archaeological materials would be expected to occur at depths below one metre:

Depth of archaeological investigation test pits

· Douglas Anderson states in his affidavit prepared in relation to previous proceedings that the test pitting should have gone deeper than 1m, and when I met with him on 3 September 2007 he stated they should have gone down to 3m, because fill had been placed on the site during the South Angels Beach development.

· The test pitting process described in Davies (2003a) provides a clear analysis and description of the sub surface cultural horizons at Lot 208. 191 test pits were excavated and recorded. The test pitting extended beyond the depth of the soil horizons containing cultural material, and in most cases to 1m, twice the depth of recorded archaeological materials, to the A horizon of the Pleistocene sands. Based on these investigations, DECC agrees with the views of Davies that there is no indication that archaeological materials would be expected to occur at depths below 1m.

· This is further corroborated by the comments of the Artie Ferguson, who was a sites officer with the Jali LALC and worked on the South Angels Beach development. Mr Ferguson told me in a phone conversation on 12 September 2007 that fill was not dumped on Lot 208, it was dumped elsewhere (the new fields back towards Ballina). It is my view that there is no evidence to support the view of Mr Anderson that fill was dumped on the Angel Beach site.

· I consider that the number of test pits and the depth to which they were dug was adequate to assess the Aboriginal heritage values of Lot 208.

61 The Umwelt Report acknowledged the possibility that archaeological deposits might be present below the level of one metre:

Based on the review of the documentation provided by DoP, and consultation with Su Davies we consider that there could still be a merit issue relating to the assessment of the archaeological significance of the project area. It is our opinion that the prior archaeological investigations and assessment (as discussed in Davies 2006) do not adequately address the potential for the presence of further subsurface archaeological deposits, including deposits that may possibly be of Pleistocene age. That is, archaeological deposits that may be present below the level of prior disturbance and below the depth of the test excavations undertaken by Davies (2006), which did not exceed one metre. It is possible that this merit issue may be highlighted in a future legal challenge. The issue might be clarified through additional literature review to determine if there are any clear grounds to preclude the potential for archaeological deposits (including Pleistocene deposits) to be present within the project area at depths below one metre. Should this review not resolve the possibility that there may be archaeological deposits at depth, more accurate information regarding the depth of impact of the proposed development (and associated infrastructure including utilities) should be assessed. If it appears that the impacts will extend to depths that may contain previously untested and undisturbed archaeological deposits, resolution of this issue may require further subsurface investigation or the consideration of additional conservation offsets with similar archaeological potential.

62 Earlier, in 2003, a series of ten test borehole logs had been carried out across the site by Coffey Geosciences Pty Ltd to a depth of three metres, apart from two which terminated at (respectively) 2.75 metres and 1.4 metres. On 19 July 2007 Mr Bright of the Department of Planning obtained advice concerning these borehole logs from Mr Reed, Acting Manager, Mining and Extractive Industries, which Mr Bright recorded in the following file note:

Interpretation of Coffey Borehole Logs and Presence of a Pleistocene Layer on the Site

· Discussed the 10 borehole logs dated 5.2.2003 and carried out by Coffey Geosciences Pty Ltd with Howard Reed, A/Manager, Mining and Extractive Industries.

· Howard advised that the logs show a thin layer of topsoil over a layer of windblown sands (Aeolian sand). No clear evidence is provided in any of the borehole logs of the presence of a Pleistocene landscape, within the 3 metre depth tested. Howard also advised that this is not to say that a Pleistocene landscape does not exist at some deeper level.

63 On 19 July 2007 Mr Bright wrote to Umwelt attaching the 10 test borehole logs. The letter stated:

I have attached a series of 10 test borehole logs carried out in 2003 across the above site. They penetrate to a depth of 3 metres (apart from 2) and provide observations and evidence on the nature of the profile revealed. They generally reveal a profile with a small layer of topsoil covering a deeper layer of windblown sands. No clear evidence of a Pleistocene landscape is evident from these borehole logs. Of course, this isn’t to say that one doesn’t exist at some deeper level.

I have requested the applicant to provide information on the depth to which proposed civil works are planned to go and I am expecting this in the next day or so. From my understanding of the material submitted with the application, the majority of works are unlikely to go beyond a metre apart from main sewer pipes which need gravity to work and may need to go lower, say up to 2 metres.

64 Umwelt replied by email on 25 July 2007 stating: “I had a look at the geotechnical logs, which are part of a larger report that I read as part of the original determination. I believe that it was based on these reports that Sue Davies described the sands within the project area as being a mixture of Holocene and Pleistocene sands with Pleistocene sands lying at greater depths. The geotechnical logs do not indicate that soil surfaces (including periods of dune stabilisation) were encountered to depths of 3 metres. However, there is still the potential for archaeological deposits to have been deposited during periods of dune instability and then to be buried by additional windblown sediments. I have discussed this further with our geomorphologist (who specialises in coastal geomorphology) who agrees with this assessment”.

65 Next day Mr Bright sent an email to Umwelt asking: “With regard to the potential for archaeological deposits buried by windblown sands mentioned below, is this reference to a potential at depths greater than 3 metres?”. Umwelt replied: “The potential for archaeological deposits within the Pleistocene sands extends from one metre (ie the maximum depth of Davies’ excavations) to the interface with the parent material (in this case, coffee rock), which the geotechnical information indicates is at approximately 3 metres or below”.

66 The Department of Planning’s Assessment Report of 18 November 2007 addressed this issue as follows:

6.2.8 Potential Deeper Archaeological Resources

The potential for archaeological resources located within the Pleistocene layer beneath the subject site dating from greater than 11,000 years ago was raised by Umwelt. The end of the Pleistocene is marked by the last Ice Age.

The Department’s Archaeological Consultant, Umwelt noted that it is possible that artefact bearing deposits are located in profiles deeper than 1 metre and if they exist, they may be of Pleistocene antiquity and therefore would have a higher degree of integrity than those found in the upper stratums.

Past clearing events generally did not penetrate below 70 centimetres and controlled archaeological test excavations did not penetrate below 1 metre. However, engineering test bores carried out by Coffey Geosciences Pty Ltd in 2003 (10 in all) did penetrate to depths of 3 metres and were evenly spread across the site (excluding the north-west corner). Information from these test bores indicate that the entire site is likely to be covered by a thin level of top soil over a deeper layer of windblown sands. There is no clear evidence from the test bores of a Pleistocene landscape beneath the site, although it may exist at some deeper level (i.e. greater than 3 metres)

Based on the potential existence of a Pleistocene landscape at depths greater than 1 metre, a course of action was followed which involved seeking further information on the nature of the subsurface impacts of the proposed development and whether infrastructure and other civil works will penetrate to depths greater than 1 metre.

The proponent was requested to provide details (beyond that already in the SEE) of the depth of infrastructure works, such as roads, sewers and drainage. The material submitted showed that all infrastructure works apart from proposed sewer mains will be located in the top 1.2 metres of the site. The sewer lines need to be at greater depths to maintain gravity fed flows, say at depths to a maximum of 2.5 metres and this is only likely to occur towards the southern boundaries of the site, adjacent to Angels Beach Road. Overall, this is considered to be satisfactory and necessary in engineering terms.

67 On 18 November 2007 the Department of Planning made a submission to the Minister in which it recommended that he grant development consent. The submission referred to Umwelt and addressed the subsurface issue as follows:

To assist the Department in its assessment of issues of Aboriginal cultural significance, the services of an archaeological consultant (Umwelt) was engaged. The findings of Umwelt’s report have been given careful consideration in the assessment of the application. It is considered that all issues raised by Umwelt, DECC and the public have been addressed through the amended subdivision plans and/or via conditions of consent. Any potential impacts of the development on Aboriginal cultural significance have been adequately managed and mitigated for through the dedication and ongoing management of the new Cultural Heritage Conservation Area.
…

Deeper Archaeological Resources – The Department’s Archaeological Consultant, Umwelt noted that it is possible that artefact bearing deposits are located in profiles deeper than 1 metre and if they exist, they may be of Pleistocene antiquity and therefore would have a higher degree of integrity than those found in the upper stratums. Information from test bores taken across the site (10 in total) indicates that the entire site is likely to be covered by a thin level of top soil over a deeper layer of windblown sands. There is no clear evidence from the test bores of a Pleistocene landscape beneath the site, although it may exist at some deeper level (i.e. greater than 3 metres).

68 The development consent of 18 November 2007 was granted subject to conditions. The reasons for the imposition of the conditions included to “preserve Aboriginal cultural heritage at the subject site”. Condition B3 was as follows:

B3 Maximum Depth of Construction – Civil Works

69 Part C of the conditions required a number of things to be done prior to commencement of works including amendments to the draft Cultural Heritage Management Plan to include a salvage methodology that addressed certain matters. This was a reference to cl 9.2 of that Plan which provided for monitoring of construction activities “to ensure that any significant Aboriginal objects distributed by construction works are salvaged”. There was provision for a rostered “monitor” to be present during construction activities, being a representative of the Jali LALC, the Numbahjing Clan and the applicants.

70 The applicants’ complaint is that the Minister failed to consider relevant matters under s 79C(1)(a) and SEPP 71 by not requiring subsurface archaeological testing to be undertaken to a depth of greater than one metre. The principles governing judicial review on the ground of failure to take into account a relevant consideration were reviewed by me in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 at [22] – [32], Walker v Minister for Planning [2007] NSWLEC 741 at [31] – [32], and Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at [38] – [41], [52]. The development consent cannot be invalid for failure to have regard to a matter unless s 79C(1) of the EPA Act or SEPP 71 expressly or impliedly required the Minister to have regard to that matter or a matter of that kind as a condition of exercising the power. In Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22] Gleeson CJ and McHugh J cited the judgment of by Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363. There Deane J held at 375 that:

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

71 For the subsurface testing complaint in the present case to succeed, there must be found in the legislation an implied obligation on the Minister to carry out investigation at that level of particularity: Foster at [23] per Gleeson CJ and McHugh J; Walker at [155]. In my opinion there was no such obligation. The Minister was informed in some detail of the fact that there had been no archaeological testing below the depth of one metre although there were ten borehole logs mostly to three metres, and that it was possible that archaeological deposits existed below one metre although none had been detected. The Minister had before him documents recording different views on the issue and proposed conditions of development consent which the Department submitted accommodated the issue. It was a matter for the Minister to assess the merits of the development application having regard to (among other things) that information. It was open to him to grant consent as he did. The applicants’ complaint goes to the merits and is not a matter for judicial review.

72 The applicants pleaded that the Minister failed to consider the following statement in the Weiner Reports:

Coupled with the strategic location of Lot 208 in the landscape of sites of violent Aboriginal death and dispersal in the mid 1800’s and the alleged Goanna sites nearby at Angels Beach itself, and I feel a judgment of high significance can be made even if doubt is cast on the precise content and dimensions of the Goanna Increase site, or whether there is or is not an actual burial of an Aboriginal person on Lot 208.

73 In submissions the applicant additionally submitted:

…the Numbahjing Native Title claim group, …represent the proper custodians of the Angels Beach site.

74 All the Weiner Reports, including the supplement, were before the Minister. The Umwelt Report specifically addressed them, the video transcript and the high level of significance Aboriginal people placed on the site. It is clear that the Weiner Reports were taken into account by the Minister. I reject this ground of challenge to the validity of the development consent.

a)

75 The Section 79C Evaluation which was annexed to the Department’s Assessment Report to the Minister included the following comments in relation to the requirements of SEPP 71.

(i) Re cl 2(1)(d) and 8(l): The provision of the Cultural Conservation Area is in recognition of the cultural values and heritage, beliefs and traditional knowledge of the Aboriginal people. Oral tradition has it that an Aboriginal elder is buried in the north-west corner of the site and for this reason no archaeological testing has occurred in this location and it has been set aside as a special area for cultural and archaeological conservation. It will also act as a keeping place for archaeological material recovered elsewhere on-site.

keeping place

76 The applicants submitted that in making these comments the Minister failed to give consideration to the mandatory matters referred in cll 2(1)(d) and 8(n) of SEPP 71 (set out at [6] – [7] above). In particular, they submitted that he failed to consider that the s 90 consent to destroy Aboriginal objects and the development itself is inconsistent with the policy and that preservation of the north-west corner was irrelevant.

77 A similar argument was mounted by the applicants and rejected by me in relation to the first development consent in Anderson v Minister for Infrastructure and Planning (2006) 151 LGERA 229 at 255 [68] where I said:

Country Energy v Williams

78 In its submission to the Minister, the Department noted that the Umwelt Report had been given careful consideration in the assessment of the development application. The submission referred to the finding that the Angels Beach area had significance for the Aboriginal people by reason of the massacre, this event creating a strong connection with the locality generally, although there was no indication that anyone actually died on the site. The Department submitted that the setting aside of the north-west corner of the site as a cultural conservation area ringed and further protected by a natural conservation area was considered to be adequate and appropriate mitigation for the use of the remainder of the site for subdivision and related purposes, subject to the imposition of conditions of consent in relation to the CHMP.

79 The above material demonstrates that the significance of the site for Aboriginal people, including by reason of the massacre, was a key issue in the Minister’s consideration of the development application. To the extent that the Minister’s consideration of that issue was required by s 79C(1)(a) of the EPA Act, and, in turn, SEPP 71, the Minister complied with those requirements. I reject this ground of challenge.

SECTION 79C(1)(b) OR IRRELEVANT MATTERS

80 The applicants pleaded that the Minister’s consideration of the social impact pursuant to s 79C(1)(b) was “paternalistic” or irrelevant in that:

paternalistic

The setting aside of part of the site as a cultural heritage area will allow the Aboriginal people a place where significance of the whole Angels Beach area can be considered and reflected upon…This will provide the opportunity (should the community so wish) for the Cultural Conservation Area to play a role for commemoration and remembrance.

It is considered that the significance attached to the subject site may also apply to yet undeveloped land to the north and east of the site.

81 I do not think that these comments are irrelevant. Whether or not the first statement is paternalistic, or is so viewed by the applicants, in my view is not significant in this context. I reject this ground of challenge.

Manifest Unreasonableness

82 The applicants asserted that the decision to grant the development consent was manifestly unreasonable. The question was said to turn on whether a reasonable person in a civilised society could decide to allow people to build houses on a site of such high significance to Aboriginal people whose ancestors were hunted down and massacred. It was also said that the consent condition concerning the depth of excavation was unenforceable – which I do not accept. For this ground of challenge to succeed it must be shown that the decision was so unreasonable that no reasonable consent authority could have come to it: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at [71]. “To be overturned as irrational the relevant decision must be incapable of justification”: Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [171] per McClellan CJ. As Gleeson CJ noted in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61 [5] the description of reasoning as illogical, unreasonable or irrational “may merely be an emphatic way of disagreeing with it”. The applicants do emphatically disagree with the Minister’s decision. However, neither that nor any other circumstance of the case establishes that the decision was manifestly unreasonable. I reject this ground of challenge.

Conclusion as to validity

83 For these reasons, I do not accept that the 2007 development consent is invalid.

Whether Connelly and the developer have breached conditions of consent

84 I turn now to the second and alternative issue, namely, whether Connelly and the developer breached conditions of the development consent.

The applicants’ claims

85 The applicants claimed that Connelly and the developer:

a) breached the conditions in Part C of the development consent by undertaking work involving the removal of trees and the clearing of vegetation on or about 8 January 2008, without having approval for the requisite plans required under the development consent for the work to commence;

b) commenced work involving the clearing of vegetation and removal of trees without carrying out and having approved the requisite design plans required under Part B of the development consent; and

c) commenced work involving the clearing of vegetation and removal of trees without a certified construction certificate.

Undertaking to the Court by Connelly and the developer

86 During final submissions Connelly and the developer, by their counsel, gave an undertaking to the Court, without admissions, that “they will not conduct any further clearing work until the conditions in Part C of the consent have been satisfied, and will not conduct further clearing work on any part of the land until a construction certificate has been issued for that part of the work to be conducted”.

87 The applicants accepted that this was sufficient relief, subject to the Court ordering that they be given five days’ notice by Connelly and the developer of any intention to clear any trees. I am disinclined to make the additional order sought by the applicants, which would in effect specially empower them to police the undertaking. The powerful sanction of punishment for contempt of court is available for breach of an undertaking to the Court. I should not assume that there is a danger that Connelly and the developer will not comply with their undertaking to the Court without such a policing order.

88 The undertaking to the Court by Connelly and the developer substantively disposes of this part of the applicants’ claim. However, the applicants are entitled to have the Court determine the liability of Connelly and the developer, which has not been admitted, and this determination may bear on the issue of costs. Therefore, I will address the issue of liability.

Findings of fact

89 Under Parts B and C of the development consent, prior to commencement of any works various plans have to be approved and a construction certificate has to be issued. It was not disputed on the pleadings or in evidence, and I find, that Connelly and the developer cleared trees and vegetation as alleged before these plans had been approved and before a construction certificate was issued.

90 The defence of Connelly and the developer is one of confession and avoidance. They submit that the clearing activities were not the subject of, or regulated by, the consent, nor were they prohibited by any environmental planning instrument.

The Ballina Local Environment Plan

91 The land on which the clearing occurred is zoned 2(a) under the Ballina LEP. Clause 9 of the Ballina LEP provides that development is only permitted in zone 2(a) with development consent. Clause 5 defines “clearing”, in relation to land, as the “destruction or removal in any manner of native plants growing on the land”. (It contains two presently irrelevant exceptions). Clause 5 defines “native plants” as “plants indigenous to the State of New South Wales, including trees, shrubs, ferns, vines, herbs and grasses indigenous to the State, but does not include plants grown for commercial purposes”. I accept the evidence of Mr Andresen, who observed the clearing, which indicates that the clearing was of native plants.

First issue: was clearing permitted under the Ballina LEP?

92 Connelly and the developer submitted that, upon a contextual reading of the entire Ballina LEP, clearing activities in zone 2(a) are not prohibited. This is because the Ballina LEP contains a number of provisions in relation to tree clearing, which are limited to specified zoned areas, and which do not include land zoned 2(a). Connelly and the developer pointed to cl 23, which applies to zones 1(d), 7(c), 7(d), 7(d1), 7(f), 7(i) and 7(l), and cl 24, which applies to zone 7(a). Both cll 23 and 24 expressly prohibit clearing of land without the consent of the council. They submitted that, therefore, when the Ballina LEP is read as a whole, there is a coherent scheme within it to expressly prohibit clearing in certain zones, the result of which is that clearing in zones other than those listed in cll 23 and 24 is not prohibited.

93 Connelly and the developer also noted that, although empowered to do so by cl 8 of the Environmental Planning and Assessment Model Provisions 1980 (NSW), Ballina Shire Council has adopted only one Tree Preservation Order, which does not apply to the relevant area. Connelly and the developer submitted that the making of this Order, combined with the existence of specific prohibitions on clearing in the LEP in specified zones other than zone 2(a), suggests that the construction of the LEP by the council’s “Community Information Sheet: Vegetation Removal in Ballina Shire” (CIS) is erroneous. The CIS, upon which the applicants relied, states that the “consent of council is required for the clearing, destruction or removal in any manner of native plants, including trees, shrubs, ferns, vines, herbs and grasses indigenous to NSW”. Connelly and the developer submitted that the author of the CIS had mistaken the definition of “clearing” in the Ballina LEP, which the CIS reflects in its use of the defined term “native plants”, for a general prohibition on clearing throughout the Shire.

94 I do not agree with the submission of Connelly and the developer that clearing was permitted under the Ballina LEP except where expressly prohibited by cll 23 and 34. If cll 23 and 24 did not exist in the Ballina LEP, the respondents’ argument would clearly fail. If their submission is accepted, the result is that a person may clear any tree without consent on any land to which the Ballina LEP applies, other than land that is zoned such that cll 23 and 24 apply. It is most unlikely that this is the legislative intent, for if it were, the result would be that clearing is unregulated in any zone to which cll 23 and 24 do not apply. I do not accept that merely because clearing is expressly prohibited in eight zones by cll 23 and 24, then clearing is permitted in all other zones.

Second issue: was clearing incidental to survey and design work required by conditions of consent?

95 Secondly and alternatively, Connelly and the developer submitted that they were permitted to clear the trees because the conditions of the development consent contemplate detailed survey and design work to which the clearing of the trees was necessarily and reasonably incidental. They referred to conditions B5 and B9, which must be satisfied prior to the issue of a construction certificate. Condition B5 requires engineering design drawings to be provided to the council for civil works, relevantly including for the construction of a roundabout at the intersection of Angels Beach Drive and the proposed “entry Road 1”, and for temporary turnaround facilities at the appropriate boundaries of the road network. Condition B9 requires final road design plans to be prepared by a qualified practising civil engineer. Therefore, they submitted, before they could be issued with a construction certificate, they needed to prepare engineering design drawings and final road designs.

96 The proposed development involves construction of a roundabout at the intersection of Coast Road and Angels Beach Drive. The proposed entry Road 1 flows from the proposed roundabout into the development site in an approximately north-westerly direction. Entry Road 1 will form a continuation of Coast Road through the roundabout into the development site. However, it appears from the site plans that the width of entry Road 1 will be less than that of the Coast Road. There is a proposed triangular traffic island on entry Road 1, just prior to where it meets the roundabout.

97 The area that was cleared formed part of the approach of entry Road 1 from within the development site to the roundabout. Connelly and the developer submitted that a critical part of the roundabout design, being the direct path to the roundabout, occurred within the area of shrubby trees that was cleared. They argued that the clearing occurred to facilitate the detailed design and survey work necessary to obtain the construction certificate and that the clearing was done directly in the area where the design and survey work for the roundabout needed to be undertaken. They argued that they could not carry out the requisite work without clearing the trees and, therefore, the clearing was necessarily and reasonably incidental to the work required by the conditions of consent.

98 The only evidence before me of the area cleared is that in annexure B to the affidavit of Mr Lee Andresen. Mr Andresen visited the site on 8 and 10 January 2008 and observed the clearing work. Annexure B is a map of the development site, on which Mr Andresen has marked the area of clearing that he observed. This marked area is a semicircle, with a diameter significantly longer than the width of the Coast Road. As noted above, the proposed entry Road 1 appears to have a shorter width than that of the Coast Road. Connelly and the developer objected to annexure B, urging me not to accept Mr Andresen’s evidence because he did not say he had entered the land and he did not claim to be a surveyor or to have paced out the distance. They did not put forward any evidence to contradict Mr Andresen’s evidence nor did they cross-examine him. I accept his evidence.

99 I do not accept the submissions of Connelly and the developer. First, they put forward no evidence that it was not possible to carry out the survey and design work without clearing the trees. Thus I cannot accept that it was necessary to clear the trees to perform that work. Secondly, they cleared an area that seems to go far beyond anything that could be said to be part of the roundabout. The area cleared appears to include at least in part the proposed entry Road 1, but is far wider than the width of this proposed road. In those circumstances, it cannot be said that it was reasonably and necessarily incidental to the requisite design and survey work that the trees be cleared. It is unnecessary to address the correctness of the assumption in their submissions that if clearing is necessary in order to carry out survey and design work, then the clearing is implicitly authorised by the terms of the development consent.

100 For these reasons, I uphold the claim that Connelly and the developer breached conditions of the development consent.

101 The applicants have failed in their challenge to the development consent but have succeeded in their claim that Connelly and the developer breached conditions of the development consent. I propose to:

Land and Environment Court Rules 2007

102 The orders of the Court will be as follows.

(1) Note the undertaking to the Court by the second and third respondents by their counsel that they will not conduct any further clearing work until the conditions in Part C of the development consent have been satisfied, and will not conduct further clearing work on any part of the land until a construction certificate has been issued for that part of the work to be conducted.

(2) Save as aforesaid, the Amended Application is dismissed.

(3) Costs are reserved as between the applicants and the first respondent. Liberty to apply for such costs is to be exercised within seven days, otherwise there will be no order as to costs between those parties.

(4) No order for costs as between the applicants and the second and third respondents.

(5) The exhibits may be returned.

Citations

Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120

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Statutory Material Cited

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Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

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CITATION:	Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120
PARTIES:	APPLICANTS: Douglas and Susan Anderson on behalf of Numbahjing Clan within the Bundjalung Nation FIRST RESPONDENT: NSW Minister for Planning SECOND RESPONDENT: S. J. Connelly P/L THIRD RESPONDENT: North Angels Beach Development (Ballina) Pty Ltd
FILE NUMBER(S):	41271 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Development Consent :- Judicial review - Validity of development consent for residential subdivision on land of high significance to Aboriginals - Whether invalid because of failure to readvertise and call for public submissions after earlier development consent declared void and of no effect - Whether invalid because of denial of procedural fairness - Whether invalid because consent authority did not require deeper subsurface archaeological testing for Aboriginal materials - Whether invalid because failed to give consideration to mandatory relevant matters - Whether invalid because decision manifestly unreasonable. Civil Enforcement: - Whether breach of conditions of development consent by clearing of trees - Whether local environmental plan prohibited clearing of trees in residential 2(a) zone
LEGISLATION CITED:	Aboriginal Land Rights Regulation 2002 (NSW) sch 2 Ballina Local Environment Plan 1987 (NSW) cll 5, 9, 23, 24 Coastal Protection Act 1979 (NSW) s 4 Environmental Planning and Assessment Act 1979 (NSW) ss 4, 5(c), 76A(7), 76A(9), 79A, 79C(1) Environmental Planning and Assessment Model Provisions 1980 (NSW) cl 8 Environmental Planning and Assessment Regulation 2000 (NSW) cl 90, Pt 6 Div 7 Land and Environment Court Rules 2007 (NSW) r 4.2 National Parks and Wildlife Act 1974 (NSW) ss 87, 90 State Environmental Planning Policy No 71 – Coastal Protection (NSW) cll 2(1), 4(1), 7(b), 8, 10(1), 17, 18, 19, sch 2
CASES CITED:	Anderson v Director-General, Department of Environment and Conservation (2005) 144 LGERA 43 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Annetts v McCann (1990) 170 CLR 596 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Craig v South Australia (1995) 184 CLR 163 Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Kioa v West (1985) 159 CLR 550 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 Walker v Minister for Planning [2007] NSWLEC 741
DATES OF HEARING:	11/03/08 - 14/03/08, 26/03/08, 31/03/08
DATE OF JUDGMENT:	31 March 2008
LEGAL REPRESENTATIVES:	APPLICANTS: Mr A. Oshlack, agent SOLICITORS: N/A FIRST RESPONDENT: Mr A. Galasso SC SOLICITORS: Department of Planning SECOND AND THIRD RESPONDENTS: Mr N. Williams SC, Ms A. Mitchelmore SOLICITORS: Bourke Love McCartney Young