Carriage v Stockland Development Pty Ltd & Ors

[2004] NSWLEC 541

Land and Environment Court

of New South Wales

CITATION:	Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541
PARTIES:	APPLICANT Allen Carriage FIRST RESPONDENT Stockland Development Pty Limited SECOND RESPONDENT Director-General of the National Parks and Wildlife Service of New South Wales FIFTH RESPONDENT T G Gibson Pty Limited
FILE NUMBER(S):	40863 of 2002
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- Validity of construction certificate - Reasonableness of certifier's decision - Compliance with development consent - Validity of permit granted under s 90(2) of the National Parks and Wildlife Act 1974 - denial of proceedual fairness and failure to take into account mandatory relevant considerations
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 76A(1), s 80(12) Environmental Planning and Assessment Regulation 2000, cl 139(1)(a), cl 145(2) National Parks and Wildlife Act 1974, s 90, s 118A s 118D Wollongong Local Environmental Plan 1990
CASES CITED:	Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 ; Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Kioa v West (1985) 158 CLR 550; Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 ; Price v Elder (2000) 97 FCR 218; Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 ; Somerville v Dalby (1990) 69 LGRA 422 ; Stockland Constructors Pty Limited v Wollongong City Council and Anor, 8 October 2001, Unreported; Weal v Bathurst City Council (2000) 111 LGERA 181
DATES OF HEARING:	29/03/2004 30/03/2004 31/03/2004 01/04/2004 02/04/2004 05/04/2004 06/04/2004 08/04/2004 06/05/2004 15/05/2004 02/06/2004 03/06/2004 23/06/2004 28/06/2004
DATE OF JUDGMENT:	09/28/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Oshlack (agent) FIRST AND FIFTH RESPONDENTS Mr Craig QC instructed by Baker and Mackenzie SECOND RESPONDENT Mr Robertson SC with Ms Pearson instructed by the National Parks and Wildlife Service of New South Wales

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 SEPTEMBER 2004

40863 of 2002 ALLEN CARRIAGE v STOCKLAND DEVELOPMENT PTY LTD & ORS

JUDGMENT NO 6

1 HER HONOUR: The Applicant, Mr Allan Carriage, has commenced Class 4 proceedings seeking numerous declarations and orders in relation to certain parts of the land at Sandon Point, Wollongong on which a company formerly known as Stockland (Constructors) Pty Limited and now known as Stockland Development Pty Ltd, the First Respondent, is carrying out development.

2 The grounds which the Applicant relies on to support the declarations and orders which he seeks can be summarised as follows:

· Ground 1: The Lot 235 Earthworks

That the First Respondent carried out earthworks, being the filling of land, without development consent on land known as “Lot 235” contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act ”).

· Ground 2: Invalidity of the Construction Certificates

That the construction certificates issued by the Fifth Respondent which certified the fill on land known as “Lot 235” are invalid.

· Ground 3: The Endangered Ecological Community

That the First Respondent picked or caused damage to an endangered ecological community on land known as “Lot 235” contrary to s 118A(2) and/or s 118D(1) of the National Parks and Wildlife Act 1974 (“the NP&W Act ”).

· Ground 4: The AIR Earthworks

That the First Respondent carried out earthworks, being the filling of land, without development consent on land known as the “AIR Land” contrary to s 76A(1) of the EP&A Act .

· Ground 5: Invalidity of Permit No 1427

That Permit No 1427, issued by the Director General of the National Parks and Wildlife Service, the Second Respondent, to the First Respondent pursuant to s 90 of the NP&W Act in relation to land at Sandon Point, including part of the land known as “Lot 235”, is invalid.

3 The Applicant was represented by his agent, Mr Alan Oshlack, at the hearing. The First and Fifth Respondents were represented by the same legal representatives at the hearing and the Second Respondent was also legally represented. The Applicant discontinued the proceedings as against the Fourth Respondent on 2 June 2003 and discontinued the proceedings as against the Third Respondent on 14 July 2003.

4 Grounds 1 and 2 relied on by the Applicant are inter-related and it is appropriate that I deal with these together.

Grounds 1 and 2: The Lot 235 Earthworks
The Stages 2 –6 Consent

5 On 8 October 2001 this Court granted consent, subject to conditions, to “five integrated development applications to create eighty-nine conventional detached housing allotments, three super allotments for future medium density housing development and three residue lots which are for future development or are zoned open space, lodged in August 2000, for land at Sandon Point described as Lots 3 and 4 in Deposited Plan 99955, Lot 1 in Deposited Plan 365268, part Lot 4 in Deposited Plan 231244, part Lot 2 in Deposited Plan 365268 and Lot 2 in Deposited Plan 588060”; Stockland Constructors Pty Limited v Wollongong City Council and Anor, 8 October 2001, unreported, per Watts C, Hussey C. This consent is referred to as the “Stages 2-6 Consent”.

6 The Stages 2–6 Consent granted approval to, amongst other things, the creation of a lot described as Residue Lot 235, depicted on Plan 31-137-DA2 Revision E dated 5 October 2001, which is one of the plans approved in the Court judgment (“Lot 235”). Lot 235 was created on 16 June 2003 when Deposited Plan 1048602 was registered.

7 The Land which is now Lot 235 is zoned part “Zone 2(b) (Residential “B” Zone)” and part zone “6(a) (Open Space – Recreational Zone)” under the Wollongong Local Environmental Plan 1990 (“the LEP”). A plan showing Lot 235 and the zoning of Lot 235 is attached as Figure A. The Respondents did not dispute that the LEP has the effect that the deposition and stockpiling of fill on land within the residential zones is permissible only with development consent.

The Construction Certificate

8 On 8 February 2002 the Fifth Respondent issued a number of construction certificates in relation to the Stage 2–6 Consent, including construction certificate No 214/02 and construction certificate No 215.03 (“the construction certificates”). The construction certificates certified that, amongst other things, work done pursuant to plans 31/137/02, which show the extent of engineering and fill work on the site, would “comply with the requirements of section 81A(5) of the Environmental Planning and Assessment Act 1979.”

9 The Applicant argued that a substantial amount of fill has been placed on that part of Lot 235 zoned residential and that there is no development consent authorising the carrying out of earthworks or the deposition of soil on that part of Lot 235. In particular, the Applicant argued that no condition of the Stages 2-6 Consent specifically authorises the placement of fill on Lot 235. Further, the Applicant argued that the construction certificates issued in relation to engineering drawings which depict this fill, namely drawing 31/137/02 Sheet 8 of 46: Bulk Earthworks Plan Sheet 1 of 2 (“Sheet 8”), purport to certify that work completed in accordance with Sheet 8 would comply with s 81A(5) of the EP&A Act contrary to cl 145(2) of the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulations”). Clause 145(2) of the EP&A Regulations provides that:

A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.

10 As pleaded in the Fourth Further Amended Points of Claim (“the Points of Claim”) the Applicant’s case is that:

… the Fifth Respondent could not reasonably be satisfied that the design and construction of the work in accordance with Sheet 8 would not be inconsistent with the Stage 2-6 Consent.
Further or in the alternative … the Fifth Respondent failed to have proper regard to a relevant matter in determining to issue Construction Certificates Nos 214 and 215; namely, the Stage 2-6 Consent and documents incorporated by express reference into the Stage 2-6 Consent.

11 The Applicant argued that the construction certificates issued by the Fifth Respondent over part of Lot 235, being the residential zoned land only, are invalid because Sheet 8 is inconsistent with the plans approved by the Stage 2–6 Consent. This means the substantial fill works carried out on part of Lot 235 were not assessed as part of the development consent process.

12 The Applicant further argued that the judgment of Watts C and Hussey C in proceedings No 10026–10030 of 2001 must be considered in interpreting the Stage 2–6 Consent and that the Fifth Respondent should have taken this into account in issuing the construction certificates. The judgment states that the land in part of Lot 235 would be the subject of a further development application for medium density residential development. The Applicant argues that the fill, which is not authorised by the Stages 2-6 Consent, has been placed on Lot 235 for the purpose of undertaking that medium density residential development, without such further development consent yet being obtained. In this regard the Applicant relied on the evidence contained in the affidavit of Dr David Robinson, the First Respondent’s hydrologic engineer, dated 16 February 2003 which the Applicant argued showed that the fill placed on Lot 235 had the effect of raising the land above the 1 in 100 year flood level. The Applicant argued that this evidence shows that the fill was placed on Lot 235 for the purpose of preparing the land for a future residential subdivision for which consent has not yet been sought.

13 Further, the Applicant argued the Fifth Respondent failed to take into account the hydrogeological study required by condition 42 of the Stages 2-6 Consent in issuing the construction certificates.

The First and Fifth Respondents’ Arguments

14 The First and Fifth Respondents argued that s 80(12) of the EP&A Act has the effect that the construction certificate becomes part of the development consent. Accordingly, the First and Fifth Respondents argued that if the construction certificates are valid there can be no argument that the work carried out on Lot 235 did not have development consent as the construction certificates clearly authorise the placing of the fill on Lot 235.

15 The First and Fifth Respondents argued that, in conformity with my decision in Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99, the Applicant can successfully challenge the validity of the construction certificates only by proving, on the balance of probabilities, that the decision reached by the Fifth Respondent to issue the construction certificates was unreasonable in accordance with the Wednesbury unreasonableness test. This is a very stringent test; see Weal v BathurstCity Council (2000) 111 LGERA 181.

16 Clause 139(1)(a) of the EP&A Regulations states that an application for a construction certificate “must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1”. There is no reference to a court judgment in Pt 3 of Sch 1 to the EP&A Regulations. Accordingly, the First and Fifth Respondents argued that the Court judgment is not a matter required to be considered by the certifier in granting the construction certificates. The affidavit of Mr Hedge dated 18 March 2004 sets out at par 17 the documents which were provided to the certifier. Further, the affidavit of Mr Gibson, the certifier, dated 26 November 2003 also sets out the documents which the certifier received as part of the application for the construction certificates. The First and Fifth Respondents argued that the documents and information provided satisfy cl 139 of the EP&A Regulations (or at least that the Applicant does not raise any issue regarding compliance with the cl 139 of the EP&A Regulations).

17 The First and Fifth Respondents argued that Lot 235 was covered by the Stages 2-6 Consent and that the numerous conditions of that consent which deal with work in general on the whole site for Stages 2-6 authorise works to be carried out on that part of Lot 235 zoned residential. The terms of the Court order are as follows:

Five integrated development applications, to create eighty nine (89) conventional detached housing allotments, three (3) super allotments for future medium density housing development and residue lots which are for future development or are zoned open space, lodged in August 2000, for land at Sandon Point, described as: Lots 3 and 4 in Deposited Plan 99955; Lot in Deposited Plan 365268; Part Lot 4 in Deposited Plan 231244; Part Lot 2 in Deposited Plan 365268; and Lot 2 in Deposited Plan 588060; be approved:

18 Annexure A to the Stages 2-6 Consent provides that:

The development must be carried out generally in accordance with the subdivision plans:

· 31-137-DA2 (revision E dated 5/10/01);

and the following plans:

· 31-13706-1 dated July 01 (bus swept path);

· 834101-D-002 dated January 2001 (Point Street Rail Bridge);

· A1 sized plan of Location of SCESFC Community and Buffer Zone – Tramway and Woodlands Creek – modified from that contained in Sandon Point Flora and Fauna Assessment by Connell Wagner P/L and Sainty and Associates P/L reference No. 1008.27.GF and received by DLAWC 22/6/01 with consignment note WCBB890950. (Part exhibit 3);

· 31-137-TM dated 26/9/01 (Traffic Management Plan)

19 The First and Fifth Respondents submitted that the land in Lot 235 was clearly part of the consent because it is part of the land the subject of the order granting the Stages 2-6 Consent as set out above. The First and Fifth Respondents argued that a number of the conditions contained at Annexure A to the Stages 2-6 consent, including conditions 2, 3, 12(i), 13, 14, 23, 29(v), 31, 42, 60 and 63, provide for the possibility of work being done on Lot 235 which could include the placement of fill. These conditions provide as follows:

· Condition 2 requires plans of all engineering works to be submitted to the certifying authority before the issue of a constriction certificate.

· Condition 3 requires that all engineering works be completed before the issue of a subdivision certificate.

· Condition 12(i) requires the developer to engage a suitably qualified engineer to supervise the earthworks and drainage works.

· Condition 13 requires the developer to engage a qualified geotechnical consultant to prepare a report on, amongst other things, an “investigation of the extent and composition of the existing uncontrolled fill within the site …the development of a strategy for the treatment of all uncontrolled fill within the site … [and] compaction specification for all fill within the site.” This report is to be submitted to Council prior to the issue of the construction certificates.

· Condition 14 requires the developer to engage a qualified geotechnical consultant to prepare a report on, amongst other things, “all earthworks … a fill plan showing the extent and depth of fill”. This report is to be submitted to Council prior to the issue of the subdivision certificate.

· Condition 23 limits the manner in which stockpiles of material may be located.

· Condition 29(v) requires the developer to prepare a section 88B instrument incorporating appropriate easements etc including but not limited to “restrictions as to user over any filled lots to stipulate that footings must be designed by a suitably qualified … engineer”.

· Condition 31 provides specifications which must be complied with in relation to “any coalwash fill placed within [the] subdivision…”.

· Condition 42 requires the developer to submit with the construction certificate application a report from a hydrologist detailing the engineering measures to be implemented for the maintenance of the watertable.

· Condition 60 prohibits the placing of fill along the southern boundary of the site if it will result in the ponding of water within any of the existing properties adjoining the southern boundary.

· Condition 63 provides that “the developer must ensure that no filling occurs in the 6(a) zoned land that is currently owned by the Council. Regrading of the 6(a) zoned land owned by the developer filling will be permitted for the provision of approved water quality measures.”

Further, the First and Fifth Respondents argued that the conditions contemplated that there would be excavation of the site with a consequent need to fill land where that excavation had taken place: see for example, conditions 80-82.

20 Mr Gibson, the certifier, identified the material to which he had regard in reaching the requisite degree of satisfaction required by cl 145(2) of the EP&A Regulations both in his affidavit sworn 26 November 2003 and in his oral evidence. That material included the terms in which the Court pronounced the Stages 2-6 Consent, the plans identified in it and all of the conditions that pertained to it. Further, Mr Gibson referred to conditions 42, 59, 79A, 80, 81, 82, 85, 112, 95 as being conditions which require work to be done on Lot 235. I note that none of these conditions appear to authorise the depositing of fill on Lot 235.

21 The First and Fifth Respondents argued that, by use of the expression “not inconsistent with” the drafter of cl 145(2) of the EP&A Regulation clearly did not require a construction certificate issued by a certifier to precisely replicate the development consent, but rather, that the certifier ensure in issuing the construction certificates that there is no lack of harmony with the development consent and its conditions. The First and Fifth Respondents argued that, for reasons already stated, considering the conditions of consent as a whole, together with the plans that are identified in the development consent and the evidence of Mr Gibson the certifier, it cannot be said that the opinion of Mr Gibson that the “design and construction of the work [was] not inconsistent with the development consent” as required by cl 145(2) of the EP&A Regulation was so unreasonable as to be not reasonably open to him.

Finding on Grounds 1 and 2

22 Under s 80(12) of the EP&A Act a construction certificate is deemed to be part of a development consent. Consequently I accept the First and Fifth Respondent’s submission that, if the construction certificates issued by the Fifth Respondent are valid, the work certified under these construction certificates, including Sheet 8 and therefore the fill on part of Lot 235, must be considered to have development consent.

23 The decision by a certifier to issue a construction certificate must comply with cl 145(2) of the EP&A Regulations which requires that a construction certificate can only be issued if the certifying authority is satisfied that the design and construction of the works is not inconsistent with the development consent. In Lesnewski I held at par 17 that this conclusion on the part of the certifier was not a jurisdictional fact and it was not therefore a matter on which the Court can separately draw its own conclusions. The only basis, therefore, on which the Fifth Respondent’s decision to issue the construction certificates can be challenged are administrative review grounds, such as whether in being satisfied that the works were not inconsistent with the Stages 2-6 Consent the Fifth Respondent acted so unreasonably that no reasonable person could have been so satisfied. As the First and Fifth Respondents pointed out, a challenge based on Wednesbury unreasonableness carried a heavy onus for an Applicant to discharge. The alternative pleading set out at par 10 above is that the certifier failed to have proper regard to a relevant matter in determining to issue the construction certificates.

24 A judgment in which this Court gives its reasons for granting a development consent is not a matter which either statute or case law requires to be considered in the interpretation of the conditions which that development consent is granted subject to. Indeed, the case law is clear that a development consent must be interpreted according to its terms. A judgment by this Court does not form part of the development consent unless specifically incorporated. Only documents which are otherwise incorporated expressly or by implication into the consent conditions will form part of those conditions of consent and are to be referred to in interpreting those conditions. The Court’s judgment is not such a document. Even if it was a document to which regard could be had in interpreting the development consent conditions it is not clear to me how it supports the Applicant’s case in the way claimed by his agent, namely to show that the First Respondent commenced a medium density residential development on Lot 235 before first obtaining development consent for this. Mr Hedge, the development manager for the First Respondent, admits in his affidavit dated 18 March 2004 that the fill works were carried out on Lot 235 to prepare the land for future development. If this work is covered by the Stages 2-6 Consent there is no illegality on this basis.

25 In relation to whether the hydrogeological report required under condition 42 of the development consent was considered by the certifier, Mr Gibson, in determining to grant the construction certificates I do not consider that the Applicant has proved that the certifier did not have regard to that report. While Mr Gibson does not expressly state in his affidavit dated 26 November 2003 that this report was amongst those considered by him as part of the construction certificate process, the list given by Mr Gibson does not purport to be comprehensive and he does note at par 11 that condition 42 did require such a report to be prepared. While the Applicant’s agent asked some questions of Mr Gibson in cross examination these questions were not directed to this issue so that the only evidence I have before me is that contained in Mr Gibson’s statement.

26 It therefore remains to consider, in the context of the Stages 2-6 Consent conditions and the plans which form part of that consent, whether it was reasonable for the Fifth Respondent to form the conclusion that the engineering drawings, including Sheet 8, were not inconsistent with the development consent conditions in issuing the construction certificates. Alternatively in issuing the construction certificate did the Fifth Respondent fail to consider a relevant matter?

27 Plan 31-137-DA2 (revision E, dated 5 October 2001) was the plan approved by the Court at the time development consent was granted (“the development consent plan”). The plan which is Sheet 2 of 6 of Plan 31-137-DA2 shows the natural contour lines which existed on the land, which subsequently became Lot 235, at the time consent was granted. The development consent plan also shows the road, identified as “Road No. 200”, which is to be built on the land adjoining Lot 235. The contour lines indicate that the land is slightly undulating, with contours varying from approximately 11m to 17m with a gully running through the land.

28 Sheet 8, which was approved by the construction certificates, also shows these contours, overlaid by the expected final contours once fill has been placed in this area. Sheet 8 indicates that the contour lines across this portion of Lot 235 have changed substantially as a result of the development, with fill ranging in height from two to four metres having been placed across a large area of Lot 235. Comparing Sheet 8 of the bulk earthworks engineering plans approved by the construction certificates with the development consent plan, there are clearly significant changes in the contour levels of Lot 235 as shown in the development consent plan and the contours resulting from the placement of large amounts of fill on Lot 235 shown on Sheet 8. The evidence of the First Respondent’s surveyor, Mr Atkins, is that approximately 1,688 m3 of fill has been placed on Lot 235. The evidence of the Applicant’s surveyor, Mr Tanner, is that approximately 1,696 m3 of fill has been placed on Lot 235. The evidence shows the fill has a depth of two to four metres over a considerable area of Lot 235, being that part zoned residential.

29 In his affidavit dated 26 November 2003 Mr Gibson stated as follows at par 12 and 13:

My examination of the Development Consent Plans, Engineering for the road adjacent to the land known as Residue Lot 235, revealed that the new road levels are between 3.9m and 4.0m above the original surface levels of Residue Lot 235. These levels are apparent from the Engineering Plans, in particular Sheet 10 (Chainage 87.891 to Chainage 225), Sheet 12, 17 and 18.
It was clear that construction of the road in accordance with the Engineering Plans, particularly those referred to above, would require filling of Residue Lot 235 in order for appropriate support for the road to be provided.

30 As the Applicant has argued, the Stages 2-6 Consent does not specifically deal with whether there would be any fill placed on part of Lot 235. Indeed, the development consent does not deal specifically with where fill would be placed on any of the land the subject of the Stages 2-6 Consent. However, conditions such as 13, 14 and 23 clearly contemplate that fill will be placed somewhere on the land the subject of the development consent, including that part of Lot 235 where fill has been placed. Further, it is the evidence of Mr Hedge, which evidence I accept, that engineering works, including fill, are necessary in a subdivision of this nature. What is in issue here is whether the scale of the engineering works carried out on Lot 235 exceeds what is reasonable for a certifier to approve, having regard to the Stages 2-6 Consent, or is so beyond the scope of work for which development consent has been issued that no certifier, acting reasonably, could form the view that the works were not inconsistent with the Stages 2-6 Consent.

31 In par 12 of Mr Gibson’s affidavit he refers to the “Development Consent Plans, Engineering” and states that the change in the road levels are “apparent from the Engineering Plans, in particular Sheet 10 (Chainage 87.891 to Chainage 225), Sheet 12, 17 and 18”. The Applicant argued that these plans are not among those incorporated into the Stages 2-6 Consent in Plan 31-137-DA2 Revision E which consisted of six sheets. Additional engineering plans were prepared by Rose Consulting being the series of plans in 31/137/02, as required by condition 2 of the Stages 2-6 Consent, but these were not the development consent plans. As stated above, plan 31-137-DA2 (revision E, dated 5 October 2001) was the plan approved by the Court at the time development consent was granted. Accordingly, it appears that Mr Gibson’s evidence as to the changes to the road levels authorised by the Stages 2-6 Consent is based on plans which did not actually form part of that consent.

32 While the First and Fifth Respondents sought to rely on a number of consent conditions as authorising the placement of fill on Lot 235 it is apparent to me that the Stages 2-6 Consent and the plans approved by this consent do not suggest that fill activity of the scale undertaken on Lot 235 was consented to. While I accept that additional work specified in engineering plans not contained in the development consent will necessarily be provided for at the construction certificate stage, that work must still be within the scope of the works contemplated by the development consent for a certifying authority to be reasonably satisfied that the works are not inconsistent with the development consent. Where a development consent provides for engineering plans to be prepared, as condition 2 of the Stages 2-6 Consent does, it is insufficient for a certifier to approve those plans without reference back to the development consent plans.

33 In Lesnewski I held at [34] that a finding of inconsistency must depend on the degree of difference between that approved by the development consent and that approved by the construction certificate:

It is clear that “inconsistent” does not mean that a construction certificate must be identical to the development consent plans. Accordingly, the possibility of some variation between the terms of a development consent and the design and construction of the building is contemplated by the legislation.
…

It is difficult to precisely qualify the meaning of “inconsistent”. Each case will need to be decided on its own facts. A single minor difference between the construction certificate plans and the development consent plans is likely to be acceptable. Where there are a number of minor differences then the collective impact of these differences will need to be assessed to determine whether they combine to result in unacceptable inconsistency. A major difference is likely to give rise to an inconsistency. Whether a difference is major or minor and whether, in the case of a number of minor differences, the cumulative effect is a major difference will depend on the circumstances. Consideration of whether or not a s 96 modification is warranted is not of great assistance, as that threshold addresses a different statutory context. It may be that there will be a finding of inconsistency under cl 145(1)(a) before the necessity for a s 96 modification arises. I consider that provided the development consent and construction certificate plans are largely similar so that they depict substantially the same development they are not inconsistent.

34 As I have already stated, and as I found in Lesnewski, it is not open for the Court to substitute its own view of whether a matter is inconsistent. Rather, the Court must consider whether the certifier has discharged his obligations legally in forming the requisite opinion under cl 145 of the EP&A Regulations.

35 Here the construction certificates, in certifying the carrying out of the works depicted on Sheet 8 on Lot 235 were dealing with a matter not covered at all by the development consent plans. Was it manifestly unreasonable for the Fifth Respondent to issue the construction certificates on the basis that these works were not inconsistent with the Stages 2-6 Consent? I consider that the decision of the Fifth Respondent to issue the construction certificates was not one which was reasonably open to him. In my view, no reasonable certifier considering the development consent plans and comparing these to Sheet 8, as certified by the construction certificates, could have formed the view that these works were consistent with the development consent plans. Alternatively, the Fifth Respondent appears to have disregarded the approved development consent plan in reaching the conclusion that the construction certificates ought to issue in relation to Sheet 8 and so failed to have regard to a relevant matter.

36 Given the current legal framework under the EP&A Act where a certifier issues a construction certificate in respect of substantial works which were potentially not considered as part of the development consent process, and accordingly, about which there was:

(a) no environmental impact assessment as part of that process; and
(b) no development consent for those works;
further legal argument on the issues raised here would have been of assistance and that is an issue requiring greater exploration on another day.

37 The issue then arises as to whether I should declare the construction certificates 214-02 and 215-02 invalid. The fill on Lot 235 forms only a small part of the works carried out in reliance on the construction certificates issued by the Fifth Respondent and the Stages 2-6 consent. As I have not heard any argument from the parties as to what should occur if only part of the work referred to in a construction certificate is challenged and that challenge is upheld, I will provide the parties with an opportunity to address me further as to the appropriate orders, if any, I should make in relation to the invalidity of the construction certificates.

38 If successful in relation to the invalidity of the construction certificate ground then the Applicant argued that s 118A(2) or s 118D(1) of the NP&W Act has been breached as the Applicant claims that the fill placed on Lot 235 resulted in an endangered ecological community being either “picked” within the meaning of s 118A(2) or “damaged” within the meaning of s 118D(1). Both s 118A(3)(b) and s 118D(2)(b) of the NP&W Act provide that it is a defence to:

… a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence … was essential for the carrying out of … (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 …

39 As I have yet to determine whether I will declare the construction certificates invalid and it is this which will determine whether or not the fill on Lot 235 had development consent, I will postpone giving my decision on Ground 3 until I have finalised the orders in relation to Grounds 1 and 2.

Ground 4: The Earthworks on AIR Land
The AIR Consent

40 On 24 July 2000 Wollongong City Council granted consent to the First Respondent’s development application DA 99-588 to demolish a disused brick refractory building on the land identified in the plans attached to the consent (“the AIR Consent”). The land to which the AIR Consent relates is Lot 2 in DP 595478, known as the AIR Land. The AIR land is zoned partly Zone 2(b) (Residential “B”) and partly Zone 6(a) (Open Space – Recreational Zone) under the LEP. The Respondents did not dispute that the LEP has the effect that the deposition and stockpiling of soil on land zoned 2(b) (Residential “B”) is permissible only with development consent.

41 The Buildings Demolition Layout Plan approved as part of the AIR consent requires the demolition and removal of material on the AIR land to a certain level and then further filling of the AIR land to another specified level. The Buildings Demolition Layout Plan contains the following annotation:

1. ALL CONCRETE PILES, TIMBER PILES, FOUNDATIONS AND PIPES ARE TO BE DEMOLISHED AND REMOVED DOWN TO:-
AREA ‘A’ – R.L. 11.20 METRES A.H.D.
AREA ‘B’ – R.L. 9.50 METRES A.H.D.
REMAINING AREA OF SITE – 2.0 METRES BELOW EXISTING SURFACE IN THE AREA

2. BACKFILL ALL EXCAVATIONS AS REQUIRED IN THE SPECIFICATION TO THE LEVEL OF THE EXISTING SURFACE IN THE AREA

42 The Applicant relied principally on the evidence of Mr Tanner, a surveyor, in relation to this ground. The First Respondent relied principally on the evidence of Mr Atkins, a surveyor, in relation to this ground.

43 The Applicant alleges that fill has been stockpiled on the AIR land without development consent as the AIR consent does not authorise the stockpiling of fill on the AIR land. The Applicant relies on the following evidence to support its case that the stockpiling of fill has occurred on the AIR land without consent:

(a) The evidence of Mr Tanner, who measured the size and volume of the material located in five stockpiles on the AIR land, is that there is about 22,500 cubic metres of mixed soil and spoil on the AIR land.
(b) The evidence of Mr Tanner is that parts of the AIR land surveyed by him have a higher level than that indicated on the Building Demolition Layout Plan.
(c) The Applicant also sought to rely on the affidavit evidence of Mr Robert Miller, dated 15 March 2004, and Mr Michael Jackson, dated 29 March 2004, to the effect that aboriginal artefacts were widespread across the site. As the Statement of Environmental Effects which accompanied DA 99-588 stated that there were no known items of Aboriginal heritage on the site, the Applicant argued that this suggested that fill had been brought from the area covered by the Stages 2-6 Consent and spread across wide areas of the AIR land.

44 Part of the Applicant’s argument seems to be that, as there is evidence of fill from Stages 2-6 being placed on the AIR land, there must be a breach of the AIR Consent. In this regard the Applicant also sought to rely on a letter dated 25 October 2001 sent by Rose Consulting, on behalf of the First Respondent, to Wollongong City Council (“the Rose Consulting letter”). The Rose Consulting letter stated that 40,000m3 of surplus material from Stages 1–6 would be stockpiled on the AIR site to raise the AIR site above the flood level for future development and asked if the Council would give development approval for this work. There is no evidence that any development consent for such work was given by the Council. The First Respondent’s development manager, Mr Hedge, admits in his affidavit that there is fill from Stages 2-6 placed on the AIR land.

45 The Applicant also argued that the fact that the work took place over a couple of years, a much longer period than the 18 weeks estimated in the Statement of Environmental Effects, also suggested substantial amounts of fill had been brought illegally to the site by the First Respondent.

46 All these matters were said to prove there was 40,000 cubic metres of spoil now placed on the AIR site from Stages 2-6 and that the placement of this fill was not authorised by the AIR Consent.

The First Respondent’s Submissions

47 The First Respondent denied the Applicant’s assertion that any fill not authorised by the AIR Consent had been stockpiled on the AIR land.

48 Mr Hedge gave the following evidence at par 13 of his affidavit in relation to the composition of the stockpiles observed and measured by Mr Tanner on the AIR land:

I refer to the affidavit of David Tanner sworn 8 February 2004, and in particular his 3 sheets of survey of stockpiles on the AIR Land. I inspected the AIR Land on 9 March 2004 and observed:
(a) Vol 1 is mix of earth and rubble and overgrown, comprising in part material taken from Stages 2-6;
(b) Vol 2 is a mound of rubble and concrete and earth and is quite overgrown, comprising in part material taken from Stages 2-6, and in part material left over from remediation works on the AIR Land;
(c) Vol 3 is a mound of concrete rubble, left over from demolition on the AIR Land;
(d) Vol 4 is a mound of crushed concrete, left over from demolition on the AIR Land; and
(e) Vol 5 is at its north end crushed concrete, left over from demolition works on the AIR Land, and its southern tail (being the majority of the stockpile) is earth mound constructed to control the discharge of stormwater drainage off site.

49 Mr Atkins, a surveyor who gave evidence on behalf of the First Respondent, stated in evidence that the surface of the AIR land had not been reinstated to the existing surface area shown on the Buildings Demolition Layout Plan attached to the AIR Consent as required by that consent. Mr Atkins’ evidence was that, in order to reinstate the existing surface level of the area, the First Respondent would have to finish relocating the stockpiled material into the excavated areas. Mr Atkins assessed the volume of material in the five stockpiles to be 18,168 cubic metres.

50 Mr Hedge gave oral evidence, which the Applicant did not challenge, that the quantity of material available in the stockpiles was less than the volumetric capacity of the excavated areas. Thus the First Respondent argued that the material presently on the AIR land is material needed to fulfil the terms of the development consent. Paragraph 13 of the Points of Claim acknowledges that the AIR consent permitted the backfilling of excavations to the level of the existing surface in the area. The First Respondent submits that the material was stockpiled on the AIR land for the purpose of filling the land back to its pre-excavation levels and that the only reason that material remains stockpiled is that the interlocutory injunction granted by me on 20 November 2002 prohibits the First Respondent from disturbing the stockpiles. The First Respondent submitted that all that remains for it to do, in terms of the works authorised by the AIR Consent, is to spread and compact the material currently in the stockpiles so that the pre-excavation levels of the AIR land are restored as required by the conditions of the AIR Consent. Thus the First Respondent submits that the stockpiled material to which the Applicant claim relates is material that is placed on the site consistently with, and for the purpose of, implementing the AIR Consent.

51 Evidence as to the volume of fill required in order to abide by the condition of the AIR Consent, which requires the restoration of the ground level to the levels which existed before the excavation authorised by the AIR consent was carried out, is available only from Mr Hedge, the First Respondent’s development manager. Mr Tanner, on behalf of the Applicant, surveyed the stockpiles and calculated their volumes but he made no assessment of the volumetric capacity of the excavated areas to accommodate the stockpiled material.

Finding In Relation to Ground 4

52 It is clear that the AIR Consent required that the land be restored to the level it was before the work commenced once the excavation authorised by the AIR Consent was complete.

53 While there is disagreement between the parties’ respective surveyors as to the volume of material in the five stockpiles located on the AIR land, my view is that these differences are not material, given the parties’ arguments. Mr Atkins attributed the differences to, amongst other matters, different approaches to defining the area of the footprint of the stockpiles. Mr Tanner did not give oral evidence as he was not required for cross-examination.

54 Part of the Applicant’s case was made on the basis that there were “flat” stockpiles spread across the AIR land as well as mounds of stockpiled material. This was because part of the argument mounted by the Applicant relied on the Rose Consulting letter, which referred to the possibility of filling the AIR site to raise it above certain flood levels as opposed to merely filling the AIR land so as to restore it to its pre-excavation levels. No consent was issued for such work and I do not consider that either:

(a) the survey evidence of Mr Tanner, which is unclear both as to which parts of the AIR land surveyed by him have a higher level than that specified in the Building Demolition Layout Plan and as to how much these unspecified parts of the land exceeded the levels shown in that plan; or
(b) the fact that some soil taken from other parts of the Sandon Point site appears to have been spread over the surface of the AIR land;
demonstrates that the First Respondent has deposited fill on the AIR land for any purpose other than that of restoring the AIR land to its pre-excavation level as required by the AIR Consent. Accordingly, I do not consider that the Applicant succeeds on this argument.

55 The Applicant has not adduced any evidence as to the volumetric capacity of the excavated areas which the AIR Consent requires to be filled. Accordingly, the uncontested evidence of Mr Hedge and Mr Atkins is that the quantity of material available in the stockpiles is less than the quantity required to fill the area excavated during demolition. I consider that the AIR Consent authorises the stockpiling of the fill on the AIR land for the purpose of filling the areas excavated during the demolition process. Accordingly, I consider that Applicant has not proved its case in relation to this ground.

56 On 20 November 2003 I granted an interlocutory injunction which prohibited the First Respondent from disturbing the stockpiles on the AIR land until further order: Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216. At that stage two issues were raised in relation to the AIR land. One issue is that raised in these proceedings. The other issue raised was in relation to whether the First Respondent had a permit under s 90(2) of the NP&W Act to destroy any aboriginal artefacts located on the AIR land. This second issue was removed from the pleadings sometime after the interlocutory injunction was granted and I held it could not therefore be argued in the final hearing of the matter. Given my finding I consider that the injunction issued by me in respect of the AIR land should be dissolved.

Ground 5: Validity of Permit No 1427

57 On 30 August 2002 the First Respondent applied to the Director General of National Parks and Wildlife, the Second Respondent, pursuant to s 90(2) of the NP&W Act for a consent to destroy aboriginal objects on land identified as “Sandon Point Stage 2” (“the Application”). On 30 September 2002 the Second Respondent determined to grant the Application and issued Permit 1427 to the First Respondent.

58 Section 90 of the NP&W Act relevantly provides that:

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

59 The discretion of the Director-General to grant consent under s 90 is unconfined other than for s 2A(3) of the NP&W Act which provides that:

(3) In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following:
(a) the objects of this Act,
…

60 The objects of the NP&W Act are contained in s 2A(1) and include:

…
(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i) places, objects and features of significance to Aboriginal people, and
…
(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,…

61 The Points of Claim filed by the Applicant challenge the validity of Permit 1427 on two grounds. In summary, these grounds are as follows:

(a) that contrary to the legitimate expectation held by the Applicant, that he would be consulted by the Second Respondent prior to the determination by the Second Respondent of the Application, the Second Respondent purported to determine the Application without providing the Applicant with a reasonable opportunity to present his case (“the Legitimate Expectation Ground”); and in the alternative
(b) that in determining the Application the Second Respondent failed to take into account relevant considerations (“the Relevant Considerations Ground”).

Whilst these grounds are, to some extent, interconnected in the Applicant’s pleadings, I will first consider the Legitimate Expectation Ground before turning to the Relevant Considerations Ground.

62 The Applicant is the chairman of the Wadi Wadi Coomaditchie Aboriginal Corporation (“the WWCAC”), a body which represents the interests of the Wadi Wadi tribe who occupied land in the Illawarra region, including the Sandon Point area, prior and subsequent to white settlement in Australia. The Applicant claims in the Points of Claim that, as chairman of the WWCAC, he had a legitimate expectation that the Second Respondent would not determine the Application without first consulting him and the WWCAC. Further the Applicant claims that he was not provided with a reasonable opportunity to present his case in relation to the Application. The Points of Claim allege that three separate documentary representations were made by the Policy and Science Director of the National Parks and Wildlife Service and the Minister administering the NP&W Act, to the effect that the Second Respondent has a policy of consulting all relevant aboriginal groups prior to the issue of s 90 permits. The Second Respondent admits the third of these representations which was set out as follows at par 38 of the Points of Claim:

In a letter sent on or about 11 February 2002, the Minister administering the National Parks and Wildlife Act 1974 stated in a letter to Mr David Campbell, the Member for the NSW Electorate of Keira:
It is a firm NPWS policy to consult all relevant local Aboriginal community groups in relation to all Section 90 applications. Aboriginal community groups or organisations are then encouraged to provide written advice. In cases where there are a number of Aboriginal organisations in the local area, the NPWS will generally support the descendants of the original groups within the area or the majority of these groups.

A copy of the letter referred to in par 38 of the Points of Claim is attached as annexure D to an affidavit by the Applicant dated 2 November 2002.

63 The Points of Claim state at par 46 that the Applicant and Mr Roy Kennedy, acting on behalf of WWCAC, sent a letter to the Second Respondent dated 19 September 2002 regarding the Application (“the 19 September letter”). The 19 September letter states as follows:

I refer to recent approaches made to me by Navin Officer Heritage Consultants to provide comments on the above application. As indicated to you earlier by e-mail I am opposed to the grant of this consent.

Please be advised that I intend, with other Aboriginal people from the Illawarra area, to make a written submission to explain my opposition.

I expect to be able to provide this submission to you and Navin Officer by Friday 27 September 2002. I request you avoid making any decision on Stocklands’ application until you have received and considered this submission.

64 On 30 September 2002 the Second Respondent determined the Application by granting Permit 1427 to the First Respondent.

65 The Applicant’s Points of Claim stated at par 48 that a submission relating to the Application was mailed to the Second Respondent on behalf of WWCAC on 30 September 2002 (“the Submission”). The Second Respondent admits that it received a copy of a document entitled “Submission to NPWS in relation to Application by Stockland Constructors for Consent to Destroy with Permit to Salvage various areas at Sandon Point Bulli” signed by the Applicant, amongst others, on 1 October 2002. A copy of the Submission was adduced into evidence.

66 Paragraph 49A of the Points of Claim also alleges that the Second Respondent failed to take into account an electronic format letter allegedly sent to the Second Respondent on 4 September 2002 from a number of Aboriginal groups, including the Applicant (“the Carriage Email”). The Carriage Email states that Aboriginal groups, including the Applicant, “ … will not sanction another National Parks and Wildlife Service Section 90 consent to destroy Aboriginal Heritage on this site.”

67 Thus, based on the Points of Claim, the Applicant’s case in relation to the legitimate expectation ground is that, by reason of:

(a) the stated policy of the Second Respondent that it would “ consult all relevant local Aboriginal community groups in relation to all Section 90 applications ” and;
(b) the fact that written advice from Aboriginal community groups was encouraged in relation to s 90 applications;
the Applicant and WWCAC had a legitimate expectation that they would be consulted prior to the Second Respondent determining the Application. The Applicant argued that procedural fairness required that the Carriage Email be considered. Further, the Applicant argued that, by reason of the 19 September 2002 letter, the Second Respondent was made aware that the Applicant and WWCAC would be providing the Submission and the Applicant had a legitimate expectation that the Application would not be determined without the Second Respondent first receiving the Submission. Contrary to this legitimate expectation, the Second Respondent determined the Application without the benefit of having received the Submission.

68 The Applicant was also critical of the Second Respondent’s Departmental minutes which record the decision-making process in the Department at the time the permit was issued. In particular the Applicant argued that the summary of the 19 September 2002 letter from the Applicant in these Departmental minutes is inaccurate as it states that an extension of time is sought by the Applicant to make a submission to 27 September 2003, and does not record the Applicant’s opposition to the grant of consent.

69 The Applicant’s written submissions largely reflected the Points of Claim in relation to this ground and make it clear that the Applicant relies on the principles enunciated in Kioa v West (1985) 158 CLR 550. In Kioa v West the High Court held that the obligation to afford natural justice or procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard. In Kioa v West Brennan J stated at par 15 that:

The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118:

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.

70 However, the oral submissions made by the Applicant’s agent departed somewhat from those set out in the Points of Claim. In oral submissions the Applicant’s agent argued that:

(a) previous consultations undertaken by the Second Respondent with the Applicant in relation to earlier applications made by the First Respondent for s 90 consents in relation to other parts of the site than that covered by permit 1427 demonstrated a practice of notification on the part of the Second Respondent;
(b) while the Applicant had been consulted in relation to the salvage methodology proposed in relation to the Application by the First Respondent’s consultant, Mr Navin Officer, this consultation was insufficient as the Applicant and WWCAC had not been consulted in relation to the question of whether the Application should be granted at all because of its cultural significance to Aboriginal people; and
(c) s 2A of the NP&W Act , which sets out the objects of the NP&W Act , imposed on the Second Respondent a duty to consult with affected aboriginal groups regarding whether any s 90 consent should be issued by the Second Respondent prior to determining any application for a s 90 consent.

The Second Respondent’s Submissions

71 In relation to the Applicant’s written submissions the Second Respondent submitted that the fact that the Second Respondent did not consider the Submission was correct but irrelevant to the legitimate expectation issue. The Second Respondent argued that any legitimate expectation which the Applicant may have had that they would be consulted before a decision was fulfilled when the Second Respondent received the 19 September 2002 letter.

72 In relation to the Carriage Email, the Second Respondent’s evidence was that it did not receive this document. The Second Respondent argued that the Applicant did not produced any evidence that the Carriage Email was actually sent.

73 Further, the Second Respondent argued that the Applicant had been consulted in relation to the Application on a number of occasions. This is reflected in a letter dated 12 August 2002 from Mr Officer, the appointed heritage consultant of the First Respondent, to the Applicant (“the 12 August letter”) which is also in evidence. The 12 August letter notes that the Application has been made and requests the Applicants “comments and suggestions about the proposed salvage program”. The 12 August letter states that:

We would like to provide a final version of this methodology, which includes your suggestions and comments, to the NPWS for their consideration as soon as possible.

We therefore respectfully ask that you respond to this letter within 2 weeks, by Wednesday the 28th August. A return express post envelope has been included for this purpose.

If you do not respond by this date it will be assumed that you do not wish to comment on the methodology and the Consent application will proceed on that basis.

74 It was not disputed by the Applicant that no response was provided to the 12 August letter by 28 August 2002. The evidence of the Second Respondent is that Mr Officer telephoned the Applicant on 28 August 2002 and left a message inviting him to provide a late response to the 12 August letter by 30 August 2002. The Applicant returned Mr Officer’s phone call on 29 August 2002 and requested that he be allowed the opportunity of visiting the site prior to providing a response. A site visit was subsequently arranged and it is not disputed by the Applicant that a site visit took place on 4 September 2002, as evidenced by the content of a letter dated 4 September 2002, contained at Tab 7 of Exhibit 2, in which Mr Officer wrote to the Applicant noting that the Applicant had visited the site that day and had expressed a wish to further meet with Mr Officer (“the 4 September letter”). The 4 September letter promises the Applicant that a further meeting will be arranged but notes that “the timing of any such meeting will not suspend the NPWS processing of the Consent application.”

75 The Second Respondent’s departmental files relating to the grant of Permit 1427 were tendered in evidence. The files included a minute paper prepared by officers of the Central Aboriginal Heritage Unit of the Second Respondent’s department dated 30 September 2002 and entitled “Central Aboriginal Heritage Unit Review of Proposed Sandon Point Stages 2-6 Storm Water and Drainage Works, Consent to Destroy with Permit to Salvage Aboriginal Sites – Sandon Point Stage 2” which notes that the 19 September letter “asking for an extension of time until the 27th September” for the WWCAC to make a submission was received by NPWS. A handwritten note on this minute states that “as of 30 Sept 2002, no further information has been received.” A further undated minute prepared by Mr Wright, the Policy and Science Director of the NPWS, and entitled “Consent to Destroy with Permit to Salvage Aboriginal Site Sandon Point Stage 2 to be impacted by the proposed stormwater and drainage works at Sandon Point” notes that the “Aboriginal Heritage Officer has reviewed the application and associated community letters and believes that the Aboriginal community have been consulted and have had adequate time in which to bring their legitimate concerns to the process.” The 19 September letter was not attached to the minutes. A copy of the 19 September letter was located at tab 5 of exhibit 2R1. The index to exhibit 2R1 notes that the original of the 19 September letter was “missing from NPWS files, Applicant copy provided.” The Second Respondent did not however deny, and the notation on the first minute paper makes it clear, that the Second Respondent did in fact receive the 19 September letter.

76 The Second Respondent submits that, given this history of repeated requests made by Mr Officer for the Applicant’s written input, the fact that the Submission was late and arrived after the decision had been made cannot support an allegation that there was a denial of procedural fairness by the Second Respondent to the Applicant.

77 Accordingly, the position of the Second Respondent in relation to the Applicant’s written submissions is that, while the Second Respondent admits it had a policy of consultation with affected aboriginal groups, it denied that either the Applicant or WWCAC had a legitimate expectation that the Second Respondent would not determine the Application without first receiving the Submission. The Second Respondent submits that any legitimate expectation that the Applicant or WWCAC may have had was fulfilled by the consultation, outlined above, which occurred prior the decision being made to issue permit 1427. In this regard the Second Respondent relies on the decision of Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 as establishing that, while statements made by a decision maker regarding the decision making process are relevant to the scope and content of the requirements of natural justice in the particular case, such statements do not, without more, define that scope and content as the ultimate question in each case is has there been unfairness.

78 In relation to the oral submissions made by the Applicant’s agent, the Second Respondent submitted that the 19 September letter makes it clear that the Applicant did not see himself as constrained to responding on the salvage methodology only and communicates the Applicant’s opposition, regardless of the salvage methodology offered, to any grant of consent to the Application. The Second Respondent argued that the oral submissions made by the Applicant are beyond the scope of the pleadings as they canvass matters beyond the Points of Claim relating to the general obligations of the Fifth Respondent to consider certain matters when issuing a permit under s 90 of the NP&W Act. The Applicant’s opposition to the grant of Permit 1427 was well known to the Second Respondent in any event at the time the Second Respondent determined the Application. The Second Respondent submitted, in oral submissions, that the previous consultations made in relation to earlier applications for s 90 consents relating to other areas of Sandon Point in which Aboriginal people, including the Applicant, had expressed their general opposition to the grant of any further s 90 consents should be taken into account as showing that the Second Respondent was already aware of the Applicant’s general opposition to the grant of any further s 90 consents.

The First Respondent agreed with the submissions of the Second Respondent.

Finding In Relation To The Legitimate Expectation Ground

79 The NP&W Act does not impose any requirement on the Second Respondent to undertake consultation in relation to applications made for permits pursuant to s 90 of the NP&W Act. However, I accept, and the Second Respondent does not deny, that the Second Respondent had a policy or practice of consulting all relevant aboriginal groups in relation to all applications received by the Second Respondent for s 90 permits prior to determining these applications. It is clear that the existence of such a policy or practice can give rise to a legitimate expectation by affected persons that notice will be given to them and that any representations they make will be considered before any consent is granted, and that a failure to so do denies affected persons natural justice or procedural fairness: Somerville v Dalby (1990) 69 LGRA 422 and Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. However, for the reasons set out below, I am of the view that any legitimate expectation that the Applicant may have had that he would be consulted prior to the determination of the Application was satisfied and that no denial of procedural fairness resulted in these circumstances

80 The submissions made on behalf of the Applicant seem to suggest that the Second Respondent was required to delay its decision in relation to the Application until such time as the Applicant provided it with the Submission. The Second Respondent was under no such obligation. The obligation on the Second Respondent to provide procedural fairness or natural justice to persons affected by its decisions, such as the Applicant, is limited to providing such affected persons notice that an application has been made and giving them a reasonable opportunity to make representations in relation to that application: Kioa v West.

81 The evidence shows that Mr Officer, the consultant of the First Respondent, had first invited the Applicant to make a submission in the 12 August letter, which was sent to the Applicant some 45 days before permit 1427 was issued by the Second Respondent on 30 September 2002. The 12 August letter requested that the Applicant make any submission that he wished to make in relation to the Application by 28 August 2004. When no response was received to the 12 August letter, Mr Officer made further attempts to obtain the Applicant’s input in relation to the Application, granted an extension of the 28 August 2004 deadline and, at the Applicant’s request, arranged for the Applicant to inspect the site the subject of the Application. In the 4 September letter Mr Officer made it clear to the Applicant that a decision on the Application was imminent and could not be further delayed to accommodate the Applicant. Given this history, the request made by the Applicant in the 19 September letter that the Second Respondent delay in determining the Application until such time as the Submission was received cannot, in the absence of any response made on behalf of the Second Respondent indicating that it would delay its decision pending receipt of the Submission, be regarded as creating any legitimate expectation that the Second Respondent would not determine the Application until the Submission was received.

82 The Applicant argued that he was not given the opportunity to make submissions regarding whether or not the Application should be consented to as the consultation undertaken in relation to the Application was confined to the salvage methodology proposed. It is clear that the Applicant did make attempts to draw its opposition to the attention of the Second Respondent, for example, in the 19 September letter which was received by the Second Respondent prior to the issue of permit 1427.

83 The Second Respondent denied receiving the Carriage Email and argued that the Applicant has adduced no evidence to suggest that it was sent. While the Carriage Email indicates on its face that it was addressed to Mr Officer and copied to Mr Hedge, the First Respondent’s development manager, a member of the Wollongong Council Heritage Committee, the NPWS Cultural Heritage Unit, the NSW Heritage Council and the Australian Council of National Trusts, no email addresses for these recipients are specified in the Carriage Email. The evidence concerning the delivery of the Carriage Email was adduced from Mr Kennedy. The oral evidence of Mr Kennedy was that while he himself did not personally send the Carriage Email, he thought he asked someone else to send the Carriage Email to the Second Respondent. No evidence was adduced from that person as to whether they ever sent the Carriage Email. The evidence of Ms Burkett, who searched the Second Respondent’s files, is that no copy of the Carriage Email can be found on those of the Second Respondent’s files which relate to the Application. Similarly, Mr Hedge, one of the other persons named in the Carriage Email as a recipient, gave oral and written evidence that he never received a copy of the Carriage Email.

84 Given the above I do not consider that the Applicant has proved the Carriage Email was sent to the Second Respondent or anyone else. It was obviously impossible for the Second Respondent to consider that document in these circumstances.

85 I accept the submissions made by the Second Respondent that, regardless of whether the Applicant was expressly asked to make a submission as to whether or not the Application should be consented to, the Applicant did in fact have the opportunity to make this submission as indicated in the 19 September letter where, as set out above, the Applicant stated “As indicated to you earlier by e-mail I am opposed to the grant of this consent”. As set out above, a handwritten note on p 3 of a document entitled “Central Aboriginal Heritage Unit Review of proposed Sandon Point Stages 2 – 6 storm water and drainage works, Consent to Destroy with Permit to Salvage Aboriginal sites Sandon Point Stage 2” (tab 4 of exhibit 2R1) indicates that the 19 September letter was received by the Second Respondent and considered as part of the determination process followed by the Second Respondent in determining the Application. Applying ex parte Lam as relied on by the Second Respondent, the Applicant’s argument that the Applicant was not given the opportunity to make any submission, contrary to the requirements of procedural fairness, cannot be sustained in the face of this evidence.

(b) The Relevant Considerations Ground

86 The Applicant also challenged the grant of Permit 1427 on the basis that the Carriage Email, the 19 September letter and the Submission, were not taken into account by the Second Respondent in determining to issue Permit 1427.

87 The Applicant claims that these documents were mandatory relevant considerations which the Second Respondent was obliged to take into account in determining the Application.

88 In relation to the Carriage Email I note that I have already found that there is no evidence that the Carriage Email was ever sent. In relation to the 19 September letter, the Second Respondent argued that it did take into the 19 September 2002 letter into account in determining the Application.

89 In relation to the Submission, the Second Respondent admits that it received the Submission on 1 October 2002, one day after the Second Respondent had determined the Application by issuing Permit 1427 and accordingly, did not take it into account in determining the Application. The Second Respondent relied on the decision of Price v Elder (2000) 97 FCR 218 at 221 to argue that the Submission does not constitute a mandatory relevant consideration for the purpose of determining the Application.

Finding in relation to the Relevant Consideration Ground

90 In relation to the 19 September letter I consider that the evidence indicates that this document was received and considered by the Second Respondent in determining the Application. Accordingly, the Applicant does not succeed on this ground in relation to the 19 September letter.

91 In Price v Elder Black CJ, Sackville and Emmett JJ held at [13] that:

Failure to take into account a relevant consideration can only be made out as a ground of review of an administrative decision if the decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act. Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statutes some implied limitation on the factors to which the decision maker may legitimately have regard. Where a discretion is unconfined by the terms of the statute, a court will not find that the decision maker is bound to take particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40.

92 By its terms, the discretion granted to the Second Respondent by s 90(2) of the NP&W Act to grant consent to the destruction of aboriginal objects or artefacts is unconfined. I agree with the Second Respondent that for the reasons set out below neither the Carriage Email nor the Submission can, in these circumstances, be said to be a mandatory consideration for the purposes of s 90(2) of the NP&W Act.

93 In relation to the Carriage Email, I have already found that there is no evidence to suggest that the Carriage email was ever received by the Second Respondent, or indeed, by the other addressees which the Carriage email indicates it was to be sent to. Accordingly, it simply cannot be a mandatory relevant consideration as the Second Respondent was unaware of its existence.

94 In relation to the Submission, I have found that, given the history of the matter, the Applicant did not have any legitimate expectation that the Second Respondent would not determine the Application until the Submission was received. Given this, I do not consider that the Submission is a document which is a mandatory relevant consideration which the Second Respondent was obliged to consider prior to determining the Application.

95 As already noted at pars 70 and 78 above, the submissions made by the Applicant’s agent go beyond the terms of the amendment to the Points of Claim which I allowed during the final hearing. I allowed par 50A and par 49A to be included in the Points of Claim.

Paragraph 49A of the Points of Claim states that:
Further the Second Respondent in determining Permit 1427 failed to consider letters of the 4th of September from Aboriginal groups including the Applicant of their opposition that they: “… will not sanction another National parks and Wildlife Service Section 90 consent to destroy Aboriginal Heritage on this site.”

Paragraph 50A of the Points of Claim states:
Further or in the alternative the Second Respondent had failed to take a relevant considerations [sic] into account in reaching it’s [sic] decision to grant permit 1427 referred to paragraph 49A above.

96 I allowed these amendments on the basis that no additional submissions or evidence was to be relied on by the Applicant beyond that which had already been brought forward, namely the particular letters and the Submission referred to already in this judgment. In written submissions, however, the Applicant alleged that the Second Respondent failed to consider issues such as the opposition of Aboriginal people, and failed to give Aboriginal people an opportunity to be consulted on the cultural significance of the site or an opportunity to be heard on whether Permit 1427 should be issued. These arguments are beyond the scope of the amendments I allowed the Applicant to make to his pleadings at the final hearing.

97 If it had been open to the Applicant to argue these matters and I held that the Second Respondent was required, as a mandatory relevant consideration, to have regard to the significance to the affected Aboriginal people of the objects which would be destroyed if a s 90 permit were to be granted additional evidence would have to be considered. I note the Second Respondent’s submission that the application for Permit 1427 was not determined in a vacuum, and that regard must be had to the previous involvement of the Second Respondent in relation to the site to determine whether the Second Respondent was aware of and had considered these matters. Letter dated 11 and 12 July 2002, contained at tab 12 of Exhibit 2R1, from Paul Hedge to the Director of the National Parks and Wildlife Service indicates that a report entitled “Sandon Point Residential Subdivision Stages 2-6 Development Area, Bulli, North of Wollongong, NSW – Archaeological Subsurface Testing Program & Aboriginal Consultation” prepared by Navin Officer and dated October 2001 (“the Officer Report”), which had previously been provided to the National Parks and Wildlife Service, was to be regarded as forming part of the documentation supporting the Application. The Officer Report, a copy of which is contained at tab 22 of Exhibit 2R1, contains a section headed “Significance Assessment”. This section, amongst other things, assesses the significance of the land contained in Stages 2-6, which land includes the land covered by the Application, in terms of its significance to contemporary Aboriginal people. The Officer Report contains the following summary of the significance of the site to contemporary Aboriginal people at p 64:

· The Illawarra Local Aboriginal Land Council has yet to pass any formal statement or Council resolution relating specifically to the Aboriginal cultural significance of the Stages 2-6 development areas. However, the Council has previously passed a motion that an Aboriginal Place be declared at Sandon Point under section 84 of the National Parks and Wildlife Act. The Land Council Co-ordinator Basil Smith has indicated that their primary interest is the burial and midden site, though the Council are waiting to see what emerges from the analysis of the excavations.

· The Wodi Wodi Elders Corporation has provided a submission which states that overall it is unlikely that anything of real significance would be found within the development area. This is because the traditional Aboriginal activity in this area would have focussed on the beach dunes and the point itself. The Corporation is awaiting the outcomes of the archaeological analysis but believe generally that the focus of attention should be the conservation and protection of the dunes which contain at least one burial and a known midden site.

· The Korewai Elouera Jerrungarugh Tribal Elders Aboriginal Corporation has provided statements which declare Sandon Point to be a very significant place “of spiritual significance and part of our cultural heritage”. It is stated that the Point was “a meeting place where the chief of the Illawarra would meet the chief of the Gundangara People to trade and tell their stories”. Recommendations are made regarding the conduct of further excavations and the salvage of a larger number of artefacts.

· The Wadi Wadi Coomaditchie Aboriginal Corporation has not as yet provided any formal statement or resolution relating to the Aboriginal cultural significance of the Stages 2-6 development areas. During the field program representatives voiced the opinion that the recovered artefacts were evidence of undisturbed and possibly significant deposits.

· The Sandon Point Aboriginal Tent Embassy has clearly indicated their opposition to the proposed development and their belief that the archaeological deposits revealed by the archaeological excavations have high Aboriginal cultural significance. The archaeological deposits revealed in the testing program are considered to be an integral part of the overall Aboriginal cultural heritage significance of the Sandon Point area. This is based, at least in part, on the cultural association of the Sandon Point headland and surrounding area with the cultural significance of the burial site located adjacent to McCauleys Beach.

98 I consider that information of this nature, which was before the Second Respondent in determining the Application, would be relevant in deciding whether the Second Respondent had adequately considered, as a mandatory relevant consideration, the significance to the affected Aboriginal people of the objects which would be destroyed if a s 90 permit were to be granted. Ultimately this is not a matter I should finally determine here.

The Applicant is unsuccessful in relation to this ground.

99 In relation to Grounds 1 and 2, the parties are required to make further submissions as to the appropriate orders the Court should make. I consider that it is appropriate that I list this matter for mention only in the week commencing 11 October 2004 so that a timetable for these further submissions can be set.

In relation to Ground 3, judgment is postponed pending finalisation of orders in relation to Grounds 1 and 2.

In relation to Grounds 4 and 5, the Applicant is unsuccessful. The following interlocutory order made by the Court on 20 November 2003 in relation to the AIR land is dissolved:
The First Respondent, its employees, contractors, servants and agents are restrained from carrying out any work which involves the disturbance of any soil stockpiled on the land described as Lot 2 DP 595478, the AIR land, taken from the Sandon Point Construction Site Stages 2-6 and the taking of further soil to the AIR land from the Sandon Point Construction Site Stages 2-6 until the further order of this Court.

100 The Court makes the following orders:

1. The interlocutory injunction issued by the Court on 20 November 2002 is dissolved.
2. The matter is listed for mention before me at 9:30 am on 13 October 2004.
3. The question of costs is reserved.