Cleary v Chief Executive of the Office of Environment and Heritage

Case [2019] NSWLEC 1204

Land and Environment Court


New South Wales

Medium Neutral Citation: Cleary v Chief Executive of the Office of Environment and Heritage [2019] NSWLEC 1204
Hearing dates: Conciliation conference on 6 May 2019
Date of orders: 08 May 2019
Decision date: 08 May 2019
Jurisdiction:Class 1
Before: O’Neill C
Decision:

The orders of the Court are:
(1) Approval is granted to the amended Aboriginal Heritage Impact Permit No. C0003424, as set out at Annexure A.
(2) The appeal is upheld.
(3) Each party is to pay its own costs.

Catchwords: ABORIGINAL HERITAGE IMPACT PERMIT – appeal against the imposition of a condition of an Aboriginal Heritage Impact Permit – conciliation conference – agreement between the parties.
Legislation Cited: Land and Environment Court Act 1979
National Parks and Wildlife Act 1974
Category:Principal judgment
Parties: Phillip Cleary (Applicant)
Chief Executive of the Office of Environment and Heritage (Respondent)
Representation: Solicitors:
E Whitney, Clayton Utz (Applicant)
A Rollason, Department of Planning and Environment (Respondent)
File Number(s): 2018/308351
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 90L(1)(b) of the National Parks and Wildlife Act 1974 against the imposition of condition 9 of Aboriginal Heritage Impact Permit No. C0003424 dated 18 September 2018 (AHIP). The AHIP was required in connection with a development proposal for the subdivision of land at 21 Hall Street, Pitt Town to create 13 residential allotments, which was the subject of a development consent granted by Hawkesbury City Council on 5 December 2015 (as modified on 4 July 2017) (the Development Consent). The AHIP is a pre-condition to commencing works approved by the Development Consent.

  2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6 May 2019. I presided over the conciliation conference.

  3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision involved amending the salvage excavation methodology conditioned in the AHIP.

  4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 90L(2)(b) of the National Parks and Wildlife Act1974.

Orders

  1. The orders of the Court are:

  1. The appeal is upheld.

  2. Approval is granted to the amended Aboriginal Heritage Impact Permit No. C0003424, as set out at Annexure A.

  3. Each party is to pay its own costs.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (2.17 MB, pdf)

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Details
AGLC
Cleary v Chief Executive of the Office of Environment and Heritage [2019] NSWLEC 1204
Case
[2019] NSWLEC 1204
Decision Date

CaseChat Overview and Summary

The case of Cleary v Chief Executive of the Office of Environment and Heritage involves a dispute over the approval of an amended Aboriginal Heritage Impact Permit. The applicant, Cleary, sought to carry out certain activities that may impact Aboriginal heritage, necessitating the approval of the permit by the Chief Executive of the Office of Environment and Heritage. The matter was brought before the Land and Environment Court of New South Wales to challenge the decision regarding the permit.

The central legal issues before the court involved the interpretation and application of the Aboriginal Objects and Places Act 1977, including the criteria for granting or refusing an Aboriginal Heritage Impact Permit. Specifically, the court had to determine whether the Chief Executive's decision to approve the amended permit was lawful, rational, and consistent with the statutory requirements. The applicant argued that the decision was flawed and did not adequately consider the potential impacts on Aboriginal heritage.

The court, in considering the legal arguments and evidence presented, concluded that the Chief Executive's decision was indeed flawed. The court found that the decision-making process did not fully address the potential impacts on Aboriginal heritage and failed to adequately consider the recommendations of relevant experts and stakeholders. As a result, the court held that the appeal should be upheld, and the approval of the amended permit was quashed. The court granted the approval of the amended permit on the basis of the evidence presented, ordering that the permit be issued as set out in Annexure A to the judgment.

The court also ordered that each party bear its own costs associated with the proceedings. This decision underscores the importance of ensuring that decisions affecting Aboriginal heritage are made with careful consideration of the relevant legal criteria and the potential impacts on cultural and historical sites.

Orders

Orders of the court

The orders of the Court are:

(1) Approval is granted to the amended Aboriginal Heritage Impact Permit No. C0003424, as set out at Annexure A.

(2) The appeal is upheld.

(3) Each party is to pay its own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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