Anderson v Director General Department of Environment and Climate Change

[2007] NSWLEC 702

Land and Environment Court

of New South Wales

CITATION:

Anderson v Director General Department of Environment and Climate Change [2007] NSWLEC 702

PARTIES:

APPLICANT:
Douglas and Susan Anderson on behalf of Numbahjing Clan within the Bundjalung Nation

FIRST RESPONDENT:
The Director General of the Department of Environment and Climate Change

SECOND RESPONDENT:
North Angels Beach Development (Ballina) Pty Ltd
ACN 102 629 461

FILE NUMBER(S):

41004 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Injunctions and Declarations :- urgent ex parte interlocutory injunction to restrain carrying out of work under a Heritage Impact Permit issued under ss 87 and 90 of the National Parks and Wildlife Act 1974 - whether serious issue to be tried and whether balance of convenience favoured grant of injunction for short period

LEGISLATION CITED:

National Parks and Wildlife Act 1974 ss 87 and 90

DATES OF HEARING:

5 October 2007

EX TEMPORE JUDGMENT DATE:

5 October 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS:
N/A

FIRST RESPONDENT:
N/A

SECOND RESPONDENT:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 October 2007

41004 of 2007

ANDERSON ON BEHALF OF NUMBAHJING CLAN v DIRECTOR GENERAL DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an urgent ex parte motion by telephone by the applicants, who are Aboriginal elders, for an interim injunction until Monday 8 October 2007 restraining the second respondent, North Angels Beach Development (Ballina) Pty Ltd, their employees, servants and contractors from carrying out any work involving clearing of vegetation, movement of soil and construction of infrastructure on land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, NSW in reliance on the authority of a Heritage Impact Permit 2551 (the consent) issued under ss 87 and 90 of the National Parks and Wildlife Act 1974.

2 The applicants are represented by their agent, Mr Oshlack, who is not in Sydney. A little while ago he faxed to the Court copies of the proposed Class 4 Application, which the applicants intend to file on Monday, and affidavits dated 5 October 2007 by each of the applicants, including a letter annexed to one of those affidavits dated 4 October 2007 from the second respondent to the applicants.

3 The evidence indicates that the consent was issued by the first respondent, the Director General of the Department of Environment and Climate Change, on 3 October 2007. Unfortunately, a copy of that consent has not yet been provided to the court. Mr Oshlack quoted parts of it over the telephone, a copy being in his possession.

4 The letter of 4 October 2007 to which I have referred indicates that the second respondent intends to undertake work on the said land. The letter states that the work as outlined above, “is being - and will be - undertaken in anticipation of a development consent”. Although not in evidence, Mr Oshlack has informed me that yesterday afternoon Mr Chris Condon, the signatory of the letter and a director of the second respondent, informed him by telephone that the works were to commence today.

5 The serious questions to be tried were identified by Mr Oshlack in broad terms as being to the effect that the consent was invalid because it erroneously states that a massacre of Aboriginal people which occurred in the nineteenth century did not occur on the subject land but nearby; that the first respondent failed to consider properly or at all an expert report that indicated the massacre was on the subject site; and that the first respondent failed to consult more widely on that issue, including with the applicants who, it is said, were not properly consulted or whose submissions were ignored.

6 This way of defining the serious questions to be tried is somewhat unsatisfactory because it is so loose. However, I consider that they have sufficient weight as to justify the grant of an interim injunction until Monday if the balance of convenience otherwise favours that course.

7 I consider that the balance of convenience does favour that course because otherwise the preservation of Aboriginal objects, which it is said that the applicants regard as of high significance to Aboriginal people, will be at risk of not being preserved if the applicants ultimately make out their cause of action.

8 I am informed by Mr Oshlack that in August of this year the court granted a similar interim injunction to these applicants in respect of an earlier consent which was later, by consent, declared to be invalid and that the respondents then did not require an undertaking as to damages from the applicants. In those circumstances I do not require an undertaking as to damages for the purposes of an interim injunction for the short period until Monday when the respondents will have the opportunity of appearing and contesting the continuance of the injunction if they wish to do so.

9 Accordingly, the court makes the following orders:

1. The second respondent, its employees, servants and contractors be restrained until 4pm on Monday 8 October 2007 from carrying out any work involving clearing of vegetation, movement of soil and construction of infrastructure on the land described as Lot 208 DP 851318, Angels Beach Drive, East Ballina, NSW, on the authority of the Aboriginal Heritage Impact Permit 2551 issued by the first respondent to the second respondent on 3 October 2007 under ss 87 and 90 of the National Parks and Wildlife Act 1974 .
2. The applicants are to serve the respondents by 4.00pm with a copy of these orders, the proposed class 4 application and the supporting affidavits of 5 October 2007 by each of the applicants.
3. The matter is to be listed before Justice Biscoe at 10am on Monday 8 October 2007 for the purpose of hearing any application for the continuance of the injunction in Order 1.
4. The applicants are to file their class 4 application and supporting affidavits before 10am on 8 October 2007.