Carriage v Stockland Development Pty Limited (No 4)

[2004] NSWLEC 553

Land and Environment Court

of New South Wales

CITATION:

Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553

PARTIES:

APPLICANT
Allan Richard Carriage

FIRST RESPONDENT
Stockland Development Pty Limited

SECOND RESPONDENT
Director-General of the Department of Environment and Conservation

FILE NUMBER(S):

40187 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Administrative Law :- validity of consent granted by second respondent - denial of procedural fairness - grant of consent invalid - no evidence first respondent operated in breach of development consent.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 76A(1)(b), s81
National Parks and Wildlife Act 1974, s 90

CASES CITED:

Brooke v Clarke (1818) 1 B & Ald 396; (1818) 106 ER 146 ;
B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322;
Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 121;
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661;
John v Rees and Ors [1970] 1 Ch 345 at 402;
Jones v Dunkel and Anor (1959) 101 CLR 298;
Kioa and Ors v West and Anor (1985) 159 CLR 550;
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273;
Pereria v Director of Public Prosecutions (1989) 63 ALJR 1;
Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah (2001) 206 CLR 57;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
Re Refugee Review Tribunal And Another; Ex Parte Aala (2000) 204 CLR 82;
Stead v State Government Insurance Commission (1986) 161 CLR 141;
Williams v Barrick Australia Limited (2003) 128 LGERA 80;
Williams v Director-General of the National Parks and Wildlife Service and Ors (2003) 127 LGERA 354

DATES OF HEARING:

09/08/2004; 10/08/2004; 11/08/2004; 12/08/2004

DATE OF JUDGMENT:

09/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Leggat (Barrister)
Mr T. McAvoy (Barrister)

SOLICITORS
Shaw Reynolds Lawyers

FIRST RESPONDENT
Mr P. Clay (Barrister)

SOLICITORS
Baker & McKenzie

SECOND RESPONDENT
Mr A. Robertson (Barrister)
Ms A. Pearman (Barrister)

SOLICITORS
Department of Environment and Conservation

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

COWDROY J

30 September 2004

40187 of 2004

ALLAN RICHARD CARRIAGE
Applicant

STOCKLAND DEVELOPMENT PTY LTD
First Respondent

DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Second Respondent


Judgment – No 4

Introduction

1 The applicant seeks a declaration that three consents issued on 15 March 2004 by the second respondent (“the Director-General”) to the first respondent (“Stockland”) pursuant to s 90 of the National Parks and Wildlife Act 1974 (“the Act”) are invalid, and for consequential orders. Additionally, the applicant seeks a declaration that between 8 December 2003 and 15 March 2004 the first respondent carried out excavation contrary to the provisions of s 76A(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Such section relevantly provides:-

(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

Facts

The original consents

2 The land which is the subject of these proceedings is known as lot 214, lot 224 and lot 227, each being within Deposited Plan 1048602 (‘the lots”) located at Aragan Circuit, Bulli. Such land is also part of that referred to and contained in a locality known as Stages 2-6 Sandon Point, North Wollongong (“Sandon Point”). Such land had been a former railway yard, and has been subjected to extensive earthworks, including fill.

3 Stockland sought to develop Sandon Point upon which “Aboriginal objects” as defined in s 5 of the Act had been found. Section 5 of the Act relevantly provides:-

Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

The Act does not currently contain a definition of either “relics” or “Aboriginal relics”. The term “relic” had been previously defined in the Act as it prevailed at the date of the grant of the original consents as follows:-

relic means any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains.

4 Section 90(1) of the Act provides:-

(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).

Section 90(2) of the Act provides:-

(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

Grant of the original consents

5 By an “Application for a Consent to Destroy Aboriginal Relics” dated 25 October 2001 Nicholas Duncan on behalf of Stockland (then known as Stockland (Constructors) Pty Ltd) applied to the Director-General, of the National Parks and Wildlife Service, (now the Department of Environment and Conservation (“the DEC”)) for a permit under s 90(1) of the Act in respect of the land described as “Sandon Point Stage 2”. Such application provided information concerning the proposed development and contained the following statement:-

The site area will be affected by residential development

In respect of the damage to the site and relics the following information was provided:-

The site area will be subject to impact from construction activities – e.g. excavation, fill, landscaping etc.

6 On 30 January 2002 consent number 1288 (“consent 1288”) and consent number 1289 (“consent 1289”) (“the original consents”) were granted by the Director-General. Consent 1288 was issued in respect of stage 1 of the Sandon Point development, which is not relevant to the issues currently before the Court. Consent 1289 was granted in respect of the following proposed development:-

FOR CONSENT to destroy those relics in the course of:

Stages 2-6 Sandon Point, North Wollongong

Consent 1289 comprises the pivotal consent, and will be referred to as “the original consent”.

7 Consent 1289 granted, subject to conditions, to destroy the relics described in Schedule “A” of such consent upon the land described in Schedule “B” in the course of the Stages 2-6 Sandon Point, North Wollongong. Schedule “A” described the Aboriginal relics as follows:-

SCHEDULE A:
Part of Sandon Point Stage 2 (SPS2), being a subsurface artefact scatter (NPWS Site # 52-2-2143).

8 Special Terms and Conditions were incorporated into consent 1289. Condition 2 of such consent relevantly provided:-

A Voluntary Conservation Agreement is to be established for the long term conservation and management of the cultural heritage values in the area. This will involve:
…
b) The establishment of a Plan of Management to look at:
…

· The establishment of a Keeping Place for the artefacts collected before and during development.

…

· Continuing consultation with the Aboriginal community ie. Wodi Wodi Elders Group, Illawarra LALC, Wadi Wadi Coomaditchie Aboriginal Corporation, the Sandon Point Aboriginal Tent Embassy and the Korewal Elouera Jerrungarugh Aboriginal Corporation.

Specific conditions were also attached to consent 1289. Specific condition 4 provided:-

Should the relics listed in Schedule ‘A’ above remain in existence two (2) years from the date of this document, the Consent shall be deemed to be void, and any further damage to the relics will require the preparation of a new Consent document.

Application for extension of the original consents

9 By letter dated 20 January 2004 Stockland wrote to the Director-General seeking an extension of the original consents issued under s 90 of the Act in the following terms:-

We refer to the abovementioned consents issued under Section 90 of [the] National Parks and Wildlife Act 1974, and note their currency for a period of two years from the date of issue.

As the period of currency is drawing near to finalisation, we herewith seek an extension to the period of their validity. We suggest that an additional period of 12 months would be suitable, to ensure that all required future works on this site maintain coverage under these consents.

Could you please advise whether there are any additional requirements to formalise this request for extension. Should you require any additional information, please do not hesitate to contact the undersigned.

10 By letter dated 29 January 2004 Stockland again wrote to the Director-General stating as follows:-

Further to our previous correspondence of 20 and 29 January [concerning] an extension to the abovementioned consents and the Department’s request for further additional information of 30 January 2004 with respect to the scope of works to be covered by the extended consents [sic].
We advise that the request for an extension should be considered on the same terms as the original application, with the scope of works consistent with that in the original application. (as outlined on pages 4 of the original applications for consents #1288 and #1289).
We seek to complete the outstanding residential development work on the subject site, which has not been finalised to date. Whilst a majority of road and infrastructure works, have been completed within the consent areas, there remains some work requiring completion that will involve excavation, filling, landscaping, drainage, service infrastructure and concreting.
We note that it is the Departments [sic] policy to condition the consents with an expiry date and advise that we anticipate that completion of outstanding works will occur within the next twelve months.

Purported extension of the original consents

11 By letter dated 30 January 2004 the DEC notified the applicant of Stockland’s request for a 12 month extension to the existing s 90 consent and advised him that the DEC had issued an initial two month extension. The letter relevantly states:-

The DEC wishes to inform you that the 2 month extension has been granted and all conditions from the consents remain in force for the extensions. The extensions do not cover any activities which were not covered by the original applications for those consents. The DEC seeks your comments on the request by Stockland for a longer extension of 12 months to complete the works for which they were granted the original consents. Your comments should include any additional information or considerations that have not already been presented to [the] DEC as part of the original s90 application process and which would need to be considered in the context of any further time extension to the permits #1288 and #1289. Your comments should reach the DEC by the 29th February 2004, to ensure that there is sufficient time to consider them before any additional extensions are considered.

In the special circumstances of this specific matter, the DEC will not be requiring the proponent themselves to conduct community consultation.

On the same day the DEC notified Stockland that an extension of two months had been granted in respect of the original consents.

12 By letter dated 3 February 2004 the applicant responded, referring to specific condition 4 of the original consents and stated:-

The artefacts are still in existence in great numbers, therefore the Consents are void. Unless you revoke the purported extension of [the] S90 consents, we will reserve our right to take any legal action necessary to restrain a breach of the NPW Act 1974.

13 By letter dated 16 February 2004 the DEC wrote to the applicant and referred to consultation which was usually required when an application is made for consent pursuant to s 90 of the Act. The letter continued:-

Both Stockland and the Director-General have previously undertaken extensive consultation with Aboriginal people regarding the cultural significance of Aboriginal objects at the Stockland development site at Sandon Point. This consultation has given ample opportunity for the community to raise matters of cultural significance. A further consultation period has now been granted until 29 February 2004 in relation to Stockland’s application for an extension of their existing consent. By allowing this extension of time for the Aboriginal community to provide further information in this matter, the community will have been given opportunity for consultation that well exceeds what is normally provided.
Therefore, after 29 February 2004, it is considered by the Director-General that all the information that could be obtained through consultation will have been provided. As a result, after this time there will be no further requirement by the Director-General for consultation in regard to the cultural significance of the Aboriginal objects located on the Stockland development site at Sandon Point either by Stockland, owners of individual lots, or the Director-General herself.

14 On 19 February 2004 the Director-General wrote to the applicant concerning a letter which the applicant had written dated 10 January 2004 which had expressed concern at the destruction of relics at Sandon Point. The Director-General responded, relevantly, as follows:-

I assure you that I am aware of issues you refer to at the Sandon Point site. Allegations regarding potential breaches of the NPW Act in recent months are currently being investigated. Work on several lots within the Sandon Point area has ceased while investigations are being finalised.

By letter dated 22 February 2004 the applicant wrote to the Acting Deputy Director-General of the DEC expressing his opposition to the development at Sandon Point.

15 By facsimile dated 23 February 2004 Mr Alan Oshlack, on behalf of the applicant, wrote to the Director-General, relevantly stating as follows:-

I am also instructed that we request that the D.G to [sic] undertake not to issue an extension of section 90 consents 1288 and 1289 until the Court has determined the declaration in prayer 12 of the Application Class 4.

Unless such an undertaking is given by 12 p.m. February 24, 2004, I am instructed to move a Notice of Motion in the Court for an urgent order restraining the D.G. from making a decision until further order.

16 By letter dated 24 February 2004 a senior legal officer of the DEC responded to Mr Oshlack’s letter, relevantly stating as follows:-

As I understand you are aware, the Department of Environment and Conservation granted extensions of the section 90 consents 1288 and 1289 for 2 months from 30 January 2004. I am instructed that the Department of Environment and Conservation has sought comments from Aboriginal community groups on a requested further 12 month extension of the section 90 consents 1288 and 1289 by Stockland Constructors. The Aboriginal community has until 29 February 2004 to provide these comments.

Fresh consents

17 On 15 March 2004 the Director-General issued fresh consents to Nicholas Duncan of Stockland. Relevantly consent number 1858 (“consent 1858”) was granted in respect of lot 214 in Deposited Plan (“DP”) 1048602, consent number 1859 (“consent 1859”) was granted in respect of lot 224 and consent number 1860 (“consent 1860”) was granted in respect of lot 227, each of such lots being in DP 1048602. Such consents will be referred to as “the fresh consents”, and it is these fresh consents which the applicant claims are invalid.

18 Consent 1858 was granted in respect of the following:-

Construction of a residential dwelling on Lot 214 DP 1048602 including all future residential activities together with all associated infrastructure resulting in ground disturbance within Lot 214 DP 1048602 and additional 5 metre buffer from all outer boundaries, “The Point”, Sandon Point (refer attached map).

Identical authorisations were provided in consent 1859 and consent 1860 for the lots to which such consents related.

19 Consent 1858 defined Aboriginal objects, the subject of the exemption, as follows:-

SCHEDULE A

Part of Aboriginal site NPWS # 52-2-2143, being all Aboriginal objects other than human remains contained within the area Lot 214 DP 1048602, with an additional 5 metre buffer from all outer boundaries.

The land to which the consent applied is described in Schedule “B” as follows:-

Lot 214 DP 1048602 and adjoining 5m buffer from all outer boundaries.

Identical descriptions were again provided in consent 1859 and consent 1860 for the lots to which such consents related.

20 Each of the fresh consents was made subject to conditions. Such conditions were not identical to those contained in the original consents. Significantly there was no condition requiring the formulation of a conservation plan relating to a Keeping Place for the artefacts collected before and during development, as had been included in the original consents.

21 By letter dated 16 March 2004 Stockland withdrew its application to the Director-General for an extension of the original consents.

Development Consent

22 On 15 July 2003 Wollongong City Council (“the council”) issued a “Notice of Determination of Development Application D401/03” to Stockland (“the development consent”) pursuant to s 81 of the EP&A Act. Such notice granted development consent for the erection of a two-storey dwelling on land known as lot 224 DP 1048602, subject to conditions. Condition 30 (“the Aboriginal objects condition”) made reference to s 90 of the Act and relevantly stated:-

In the event that Aboriginal Objects are uncovered during the course of work, excavation must cease immediately and the National Parks and Wildlife Service and Council must be notified. No further excavation work shall take place without approval of the National Parks and Wildlife Service.

23 A “Notice of Determination of Development Application D1415/03” was issued by the council on 24 October 2003 to Stockland in respect of the erection of a two-storey dwelling on lot 214 in DP 1048602. On the same day the council issued a development consent in respect of lot 227 DP 1048602 for the erection of a two-storey dwelling. Aboriginal objects conditions in the same terms as condition 30 were incorporated as condition 31 in each development consent. No development has yet commenced upon lot 214 or lot 217.

24 The affidavit of the applicant sworn on the 18 of February 2004 refers to the finding by him and by Mr Robert Paton and Mr Roy Kennedy of artefacts in the soil at Sandon Point on 6 February 2004, but not specifically upon lot 224. The artefacts were identified by Mr Paton, an archaeologist, as Aboriginal objects.

25 The affidavit of Mr Robert Paton sworn 6 August 2004 confirms the visit to Sandon Point on 6 February 2004 with the applicant and Mr Kennedy, and the finding of the Aboriginal objects. Mr Paton identified several objects in the vicinity of a peg marked “207” and described the location by global positioning. Mr Paton prepared a report of his findings. Such report, although in the possession of the applicant, was not provided to the Director-General prior to the grant of the fresh consents.

26 The evidence of Stockland is contained in the affidavits of Paul Hedge. Mr Hedge is the Development Manager of Stockland. His affidavit sworn 18 March 2004 refers to the application made for the original consents and for the fresh consents. Such affidavit also refers to extensive investigation of most of Sandon Point as part of the assessment for the development consents relating to subdivision.

27 Mr Hedge deposed that as Development Manager he was not aware that any person has identified to Stockland or to its agents or contractors the presence of Aboriginal objects on any of the lots contained in DP 1048602.

Submissions

Applicant’s claims against Stockland

28 The applicant claims that Stockland carried out development on lot 224 otherwise than in accordance with the Aboriginal objects condition of the development consent and therefore breached the development consent granted to it, contrary to s 76A(1)(b) of the EP&A Act.

29 Additionally the applicant submits that Stockland damaged Aboriginal objects in the course of construction of the residential dwellings prior to 15 March 2004 when no consents were extant pursuant to s 90 of the Act.

Applicant’s claims against the Director-General

30 The applicant submits that the Director-General failed to take into account relevant considerations when making its decision to grant the fresh consents. The applicant submits that the Director-General should have considered various issues including the applicant’s objections to the development; the allegation by the applicant that Stockland was already in breach of the original consent because it had already excavated land in stages 2 to 6 Sandon Point beyond that permitted by the original consents; the adequacy of the archaeological investigations carried out; and the existence of Aboriginal objects on the specific footprints of the individual housing lots.

31 The applicant also claims that the Director-General failed to afford the applicant procedural fairness prior to making its decision to grant the fresh consents. In particular the applicant relies upon the absence of any condition relating to a Keeping Place (“the Keeping Place condition”), included activities not included in prior consents, namely permission to excavate, and claims that within such land Aboriginal objects existed which had not been adequately identified and assessed. The applicant claims that he held a legitimate expectation that he would be consulted before the grant of any fresh consent which contained different terms to those of the original consents.

Stockland’s submissions

32 Stockland says that no evidence exists of the uncovering of any Aboriginal objects on land the subject of these proceedings, namely lot 214, lot 224 and lot 227 in DP 1048602. Stockland submits that the attempt to infer that Aboriginal objects existed on lot 224 because of their location elsewhere on Sandon Point is insufficient for the Court to be satisfied that any Aboriginal objects existed on lot 224. Stockland says that it was aware of the sensitivity of Sandon Point and that no claim was made to it by the applicant that Aboriginal objects had been found on lot 224. Stockland submits that the Court would need to be satisfied on the highest civil standard of proof that in fact Aboriginal objects were found on lot 224 before any finding could be made adverse to Stockland, as considered by Bignold J in Williams v Barrick Australia Limited (2003) 128 LGERA 80 at pp 101-102.

The Director-General’s submissions

33 The Director-General submits that no unfairness has been proven in fact and says that she was, at the highest, under an obligation to give notice to Aboriginal groups that she proposed to exercise her powers under s 90 of the Act in relation to the lots. The Director-General also submits that she took into account the opposition to the exercise of her power and the cultural significance of the Aboriginal objects in the area.

34 In reply to the applicant’s submission that Aboriginal objects were likely to be uncovered during house construction activities different to and greater in number than those likely to have been uncovered pursuant to work associated with the original consent, the Director-General submits that the applicant bears the onus of establishing such facts, and that no cogent evidence exists. Further the Director-General says that in fact the applicant was informed of the subject matter of the applications, namely residential development.

35 In response to the submission that the Director-General was obliged as a matter of procedural fairness to give an opportunity to be heard in respect of the Keeping Place condition, the Director-General submits that she was under no obligation to consult with the applicant concerning the detail of the exercise of her power under s 90 of the Act.

36 The Director-General also submits that the Keeping Place condition contained in the original consents only formed part of a proposed Voluntary Conservation Agreement and the applicant held no legitimate expectation that such requirement would be incorporated into any fresh consent.

37 The Director-General submits that the applicant was aware that an authorisation pursuant to s 90 of the Act for the continuing work at Sandon Point was under consideration in early 2004. The applicant did not provide the report of Mr Paton upon which the applicant relies. The Director-General submits that the applicant’s claim that he had no opportunity to provide the Paton report has no basis. No new information was contained in such report and ample opportunity had been afforded to the applicant to raise matters of cultural significance prior to the grant of the fresh consents.

38 The Director-General says further that she wrote on 16 February 2004 to the applicant advising that she would proceed after 29 February 2004 to exercise her power on the basis that all the information that could be obtained through consultation would have been provided and that after that date there would be no requirement upon her to consult further in relation to the cultural significance of the Aboriginal objects located at Sandon Point. The Director-General submits that the applicant’s assertion that he expected to be fully consulted did not give rise to a legitimate expectation.

39 The Director-General further submits that exhaustive assessment, excavation and salvage collection had already taken place at Sandon Point. No need existed, as she concluded, for any further requirement for archaeological assessment for the fresh consents. Additionally she noted that Sandon Point had been the subject of multiple rounds of consultation with representative Aboriginal community groups. It was for these reasons that conditions contained in the original consents had not been included in the fresh consents.

40 As to the failure to take into account relevant considerations, the Director-General submits that none of the considerations raised by the applicant were mandatory. Even if they were, the Director-General submits that she was well aware of the applicant’s opposition to the granting of both the original consents and the proposed extensions and that she took into account this fact. The Director-General says there was no mandatory requirement to consider the applicant’s attitude to the Keeping Place condition since such matter was purely a matter of detail.

41 The Director-General does not accept she was required to find that an allegation of breach by Stockland of the original consent contained in the applicant’s letter dated 22 February 2004 was a mandatory relevant consideration. The Director-General was aware of such issues and work had ceased on several lots whilst investigations were finalised.

42 The Director-General rejects the submission that she was required to consider specifically whether Aboriginal objects could be located on the footprints of the individual housing lots. The Director-General submits that since each of the lots has substantial fill placed on them no inference could be drawn that any Aboriginal objects would be of different character within such footprints.

Applicant’s submissions in reply

43 With respect to the submissions of Stockland, the applicant submits that it was highly unlikely there were no Aboriginal objects discovered on lot 224, given the extensive scattering of artefacts on the Sandon Point site. The applicant also relies upon the fact that Stockland fenced lot 224 thereby preventing investigation by other parties and says that Mr Hedge had not been on site at the time of the excavation. The applicant also submits that no workmen carrying out excavation work on the site were called and accordingly the inference arises pursuant to the principle in Jones v Dunkel and Anor (1959) 101 CLR 298 at pp 304-305 that the evidence of such persons would not have assisted Stockland. Additionally the applicant submits that the nature of Aboriginal objects were such that the presence of an archaeologist was necessary to enable their identification.

44 With respect to the submissions of the Director-General, the applicant takes issue with such submissions. The applicant submits that the fresh consents were sought for house construction which comprised a fundamentally different activity to the subdivision work permitted under the original consents, and did not represent continuing work. The applicant says he was under no obligation to provide the Paton report because the applicant did not know that the fresh consents would allow house construction.

Findings relating to the claim against Stockland

45 The applicant’s claim against Stockland is based upon its claim that Aboriginal objects had been discovered on lot 224, such that as a result Stockland was required by condition 30 of its development consent to cease work. The applicant submits that Stockland failed to call evidence from the workmen who excavated lot 224, and submits that they might have given evidence concerning the procedures taken to comply with condition 30 when making the excavation.

46 No evidence exists that in the course of construction of the dwelling on lot 224, Stockland either uncovered Aboriginal objects, or discovered Aboriginal objects and knowingly caused their destruction. The applicant’s claims against Stockland that Aboriginal objects must have been found on lot 224 is unsupported. There is no evidence to justify such assertion. Further, no condition was imposed on Stockland either by the development consent or by the original consents which required Stockland to have an archaeologist present on site during excavations.

47 The affidavit of Paul Hedge sworn 9 August 2004 establishes that the Aboriginal objects described by the applicant and Mr Paton in their affidavits were located on lot 207 on the Sandon Point subdivision. However lot 207 is not the subject of any claim in these proceedings.

48 Mr Hedge testified that no report was made to any contractor or agent nor employee for Stockland of the uncovering Aboriginal objects. Mr Hedge testified that Stockland proceeded with the development of lot 224 using a salvage methodology prepared by consultants which had been submitted with the application for the original consents. He said that the methodology was implemented and that according to the consultant’s report salvage had been completed. He said that there was no evidence of any objects found on lot 224 when lot 224 was excavated in the period September 2003 and October 2003. In the absence of any submission that his evidence was untruthful, the Court accepts the evidence of Mr Hedge.

49 The applicant has submitted that the doctrine of “wilful blindness” applies, namely that the Court should infer that Stockland deliberately omitted to search for Aboriginal objects on lot 224. The court finds that the applicant’s claims concerning the possibility that Aboriginal objects may have been found are purely speculative. Such claims are based on the innuendo that Stockland did not act with integrity and deliberately concealed the presence of Aboriginal objects from both the Director-General and from the council. In the absence of evidence to the contrary, and the absence of any cross-examination of Mr Hedge as agent for Stockland suggesting that he was untruthful, the Court could not draw such inference. Further, such finding could not be made in the absence of evidence that on the balance of probabilities such objects existed on the land: see Pereria v Director of Public Prosecutions (1989) 63 ALJR 1; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at p 700.

50 It follows that there is no proven breach of condition 30 of the development consent, nor is there any proven breach of the original consent. Accordingly the applicant’s claims relating to breaches by Stockland of the original consents and of the development consents cannot be sustained.

Findings relating to the claim against the Director-General

Legitimate expectation

51 The applicant is an Elder of the Aboriginal tribe known as the Wadi Wadi Nation, the original inhabitants of which lived at Sandon Point. The applicant has special interest in Aboriginal objects as an individual Aboriginal person: see Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 121.

52 The Director-General has an express policy of consulting with Aboriginal persons and with Aboriginal community groups, prior exercising the powers granted to her by s 90 of the Act. The policy is contained in the publication entitled “Cultural Heritage Community Consultation Policy”. An application for a s 90 consent contains a requirement that a letter be provided from the relevant local Aboriginal group or groups seeking their opinions upon the proposed development.

53 Additionally, the DEC’s website includes a page entitled “Protecting Aboriginal Objects and Places”, and specifically refers to the need to consult with the Aboriginal community regarding the proposed impact and conservation outcomes. A “Statement of Reconciliation” has also been published by the DEC which acknowledges the desire, inter alia, to involve Aboriginal communities in the development of areas under control of the Director-General.

54 The applicant has demonstrated that he held a legitimate expectation that he would be consulted in respect of the decision being made by the Director-General relating to s 90 consents for the Sandon Point development. Such expectation is readily discernable from the above evidence and in particular from the fact that the Director-General had consulted the applicant in correspondence prior to the grant of the original consents.

55 The critical issue arising in these proceedings is the extent of the duty owed by the Director-General to the applicant once it is established that the applicant was entitled to hold the legitimate expectation that he would be consulted before a decision was made relating to the purported extension of the original consents.

56 In B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 Lord Denning delivering the judgment of the Privy Council at p 337 stated:-

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.

By analogy the right of a legitimate expectation connotes that the person entitled to the benefit of such right will possess knowledge of the proposal which is before the decision-maker. In Kioa and Ors v West and Anor (1985) 159 CLR 550 at p 584 Mason J said:-

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…

Further at p 585 Mason J said:-

The critical question in most cases is not whether the principles of natural justice apply. It is: What does the duty to act fairly require in the circumstances of the particular case?

57 Authority exists for the principle that the persons affected by a decision must be given appropriate notice. For example in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 at p 291 Mason CJ and Deane J stated:-

But, 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 case against the taking of such a course.

58 A failure to accord such notice may result in a denial of procedural fairness. In Re Refugee Review Tribunal And Another; Ex Parte Aala (2000) 204 CLR 82 at p 143 Hayne J said:-

In that regard, it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended.

Gaudron J in Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah (2001) 206 CLR 57 at p 83 considered the foundation of the obligation of an administrative decision-maker to act in accordance with the rules of natural justice. Having referred to Kioa at p 584 and the judgments of Mason J and Brennan J Her Honour said:-

The difference between the two views may not be as great as might at first appear [48] . Thus, in Annetts v McCann [49] , Brennan J explained that the implication arises because "the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power".
[48] See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 142-143 [168], per Hayne J.
[49] (1990) 170 CLR 596 at 604.

At p 93 McHugh J said:-

It is now settled that, when a statute confers on a public official the power to do something which affects a person's rights, interests or expectations, the rules of natural justice regulate the exercise of that power "unless they are excluded by plain words of necessary intendment" [66] . An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" [67] . Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice [68] . As I pointed out in Theophanous v Herald & Weekly Times Ltd [69] :
"The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture."
The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded
[66] Annetts v McCann (1990) 170 CLR 596 at 598.
[67] Annetts v McCann (1990) 170 CLR 596 at 598, citing Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.
[68] Annetts v McCann (1990) 170 CLR 596 at 598; Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 344-345, 347, 349.
[69] (1994) 182 CLR 104 at 196.

At p 94 His Honour said:-

Once it is acknowledged that there is a general duty to accord natural justice to an applicant applying for a protection visa, the inquiry drops from a matter of general principle to the particular.

59 Once it is established that a breach of the rules of natural justice has occurred, even if the breach resulted from innocent conduct, the breach entitles a complainant to relief: see John v Rees and Ors [1970] 1 Ch 345 at 402. In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court of Australia in a joint judgment said at p 147:-

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.

60 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 held that the failure to meet an expectation does not “reasonably found a case of denial of natural justice”: see p 34. The ultimate question is whether, in the decision making process the procedure adopted has been fair, or whether it has been unfair with the result that there has been a denial of natural justice: see Ex parte Lam.

61 In Williams v Director-General of the National Parks and Wildlife Service and Ors (2003) 127 LGERA 354 Bignold J at p 366 said:-

But in addition to those matters, the Director-General by his representations to the applicant (both written and oral) was bound to take into consideration matters advanced by the applicant in opposition to the grant of the consent.

This is because those representations by the Director-General gave rise to a legitimate expectation on the part of the applicant that matters he raised in opposition to the grant of the consent would be considered in the decision-making process: see Ex parte Lam .

62 In the present circumstances the Director-General had referred only to an “extension” of the original consents in all correspondence with the applicant. An extension connotes a continuation of the existing nature and terms of the original consents. In Brooke v Clarke (1818) 1 B & Ald 396; (1818) 106 ER 146 Lord Ellenborough CJ said (at p 148):-

The word extension imports the continuance of an existing thing, and must have its full effect given to where it occurs.

63 The issue of the fresh consents, containing terms which differed, in particular by the absence of a Keeping Place condition, was not “an extension” of the original consent. The original consents essentially authorised subdivision and associated works, whereas the fresh consents authorised construction of dwellings. The authorisations granted by the original consents and the fresh consents were accordingly directed to different activities, and the applicant was not informed that the fresh consents were to be granted for a purpose which was different to that to which was authorised by the original consent.

64 Additionally the Director-General knew that the conditions applicable to any consent issued under s 90 of the Act to develop the land was a matter of major concern to the applicant. The absence of a Keeping Place condition in the fresh consents was a matter upon which no opportunity was afforded to the applicant to make representations. The different purpose and conditions, if made known to the applicant prior to the grant may have resulted in the applicant making different representations to the Director-General and providing new evidence, such as the Paton report.

65 In summary, the applicant was not notified of the intention of the Director-General to issue the fresh consents with terms different in material respects to the original consent. The letter of the Director-General dated 30 January 2004 to the applicant is only consistent with a proposed extension being granted having the same conditions as contained in the original consents.

66 In accordance with the authorities referred to above, consistent with the applicant’s legitimate expectation, the Director-General was obliged to engage in consultation with the applicant prior to the grant of the fresh consents. The applicant was asked only to comment in relation to an extension of the existing consents, and was never afforded the opportunity of making representations in respect of consents which were to contain quite different conditions. The omission to give such opportunity to the applicant has resulted in unfairness to the applicant arising from the deprivation of the opportunity to address the real matter being considered by the Director-General, namely whether fresh consents containing different conditions to the original consent, should be granted. A denial of natural justice has resulted by the failure to engage in consultation in respect of these issues, and the Court upholds the applicant’s claim.

Failure to take account of relevant considerations

67 As an alternative ground for relief, the applicant has submitted that the Director-General failed to take into account relevant considerations and that she therefore erred in law. In view of the finding made above, it follows that the fresh consents are invalid. Accordingly it becomes unnecessary for the Court to determine the alternative claim.

68 The Court directs that these proceedings be listed before the Registrar on 13 October 2004 for the purpose of the allocation of hearing dates to determine appropriate relief and costs.