Henry v Shellharbour City Council

[2005] NSWLEC 378

Land and Environment Court

of New South Wales

CITATION:

Henry and Others v Shellharbour City Council and Others [2005] NSWLEC 378

PARTIES:

APPLICANTS
Aaron Broad Henry
Stephen Henry
Roy Kennedy

FIRST RESPONDENT
Shellharbour City Council

SECOND RESPONDENT
Minister for Infrastructure Planning and Natural Resources

THIRD RESPONDENT
Director General of the Department of Infrastructure Planning and Natural Resources

FILE NUMBER(S):

40252 of 2005

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- proper construction of condition in the context of the development consent as a whole - consent to be read in a common sense way that leads to a reasonable and practical result.
Conditions of consent:- whether complied with before commencement of construction.
Development consent:- whether lapsed - identification of engineering or construction work physically commenced.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A(1)(a), s 95(4), s 96

CASES CITED:

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 ;
Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413 ;
Green v Kogarah Municipal Council (2001) 115 LGERA 231 ;
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, unreported;
Iron Gates Developments Pty Limited v Richmond - Evans Environmental Society Inc (1992) 81 LGERA 132;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 ;
Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING:

21/06/2005, 22/06/2005, 23/06/2005

 
DATE OF JUDGMENT: 

07/22/2005

LEGAL REPRESENTATIVES:

APPLICANTS
Mr A Oshlack (Agent)
SOLICITORS
N/A

FIRST RESPONDENT
Mr N J Williams SC
SOLICITORS
Blake Dawson Waldron

SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Department of Infrastructure Planning and Natural Resources

THIRD RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Department of Infrastructure Planning and Natural Resources

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

22 July 2005

40252 of 2005 Henry and Others v Shellharbour City Council and Others

JUDGMENT

Introduction

1 Talbot J: On 26 November 1996 the Minister for Infrastructure Planning and Natural Resources (“the second respondent”) determined an application for development consent made by Shellharbour City Council (“the first respondent”) in respect of the construction of a 350 berth boatharbour/marina, wetland enlargement and enhancement, placement of contaminated landfill into a single engineered landfill cell and placement of an acoustic barrier, by the granting of consent subject to conditions. The consent was modified by the second respondent on 9 November 2001 and 6 September 2004.

2 The boatharbour/marina includes the construction of a 22 hectare boatharbour with breakwater and groynes, a 350 berth marina and the construction of a land platform.

3 The wetland enlargement in the Shadforth wetland is designed to compensate for the loss of a degraded swamp at Shellharbour and will provide a range of wetland habitats together with a strategic plan of management.

4 The landfill development will comprise the removal of contaminated landfill from the present Shellharbour swamp and placement within a series of engineered cells designed to provide landscaped acoustic mounds adjacent to a relocated quarry haul road. Modification of the development consent has allowed the substitution of the earthen mounds with concrete acoustic barriers along the quarry haul road.

5 The following conditions of consent are relevant:-

Form of Development

Shadforth Management

(2)(a) A Shadforth Management Committee is to be established by the Applicant who will meet the reasonable costs, which shall include administration and publication costs, incurred by the Committee. The Committee shall:

[sic] below;

…

- transplanting of seagrasses and saltmarsh;
- creation of saltmarsh habitat;
- comparisons of Shadforth Wetland and Shellharbour swamp to include relationships/associations between communities/habitats;
- the criteria against which the pilot is to be judged;
- monitoring and reporting requirements;
- contingency measures if the pilot study fails; and
- impact of sewage surcharge.

Shell Cove Compliance Committee
(5) (a) A Shell Cove Compliance Committee shall be established by the Director General of the DUAP or her nominee, comprising representatives of DUAP (Chair), EPA, DLWC, one local community representative, one Aboriginal community representative, the Community Liaison Officer and a Council technical officer.
(b) The Applicant shall be responsible for the reasonable costs, which shall include administration and publication costs incurred by the Committee.
(c) The Committee shall report to the Minister for Urban Affairs and Planning on a six monthly basis on compliance with these conditions of consent, and that report shall be publicly available from the Department of Urban Affairs and Planning and Shellharbour Council.
Aboriginal Relics
…
(14)(b) Upon discovery of any previously unidentified Aboriginal relics (including human skeletal material), work shall cease and the NPWS is to be notified immediately and any directions given by the Service in this regard shall be complied with.

…

Environmental Management Plans (EMPs)

(15)(a) An Environmental Management Plan shall be prepared for each of the three components: the boatharbour, Shadforth/Tongarra Creek wetland system and the haul road landfill. The EMPs shall be prepared by the Applicant, for approval by the Director General of the Department of Urban Affairs and Planning, in consultation with the Shell Cove Compliance Committee and Shadforth Management Committee.
(b) An Environmental Management Plan for each of the three components shall be approved before construction of each respective component.
(c) All works shall be undertaken in accordance with each respective Environmental Management Plan for the boatharbour, the Shadforth/Tongarra Creek wetland system, and the haul road landfill components of the proposed development.
(d) Each of the environmental management plans shall contain the following relevant elements:
…
(vi) An Archaeological and Heritage Protection Plan to be prepared by the Applicant in consultation with the local Aboriginal community and NPWS and shall include details relative to:
- maintenance;
- management;
- monitoring; and
- remedial measures

6 The conditions of consent were varied as follows by the modification granted by the Minister under s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) on 9 November 2001.

Conditions 15(a) and (c)
Delete the words “haul road landfill” and insert the words “acoustic barriers adjacent to the quarry haul road” after “Wetland systems, and the”

7 The two modifications of the Development Consent approved by the Minister had the effect of approving:-

(a) the installation of concrete acoustic panels adjacent to the haul road in lieu of the originally approved aboveground landfill cells; and

(b) the extraction of the old landfill from Shellharbour Swamp and its deposition into below ground engineered landfill cells elsewhere within the area covered by the Development Consent.

8 Section 95(4) of the EP&A Act (formerly encompassed by ss 99(2) and 99(4)) provides:-

(4) Development consent for:

(a) the erection of a building, or
(b) the subdivision of land, or
(c) the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

The issues

9 The applicants are Aboriginal Traditional Owners of the land and waters around Shell Cove and Bass Point. They claim declaratory and injunctive relief in relation to the entitlement of the first respondent to rely upon the development consent. Firstly, it is alleged that the consent lapsed on 4 December 2001, being five years from the date of the consent. Secondly, work carried out by the first respondent relying upon the authority of the consent is in breach of s 76A(1)(a) of the EP&A Act. Further or in the alternative they seek a declaration that the first respondent failed to comply with conditions 14(b), 15(a), (b), (c) and (d)(vi) of the consent. Finally, in relation to the consent the applicants contend that approvals of Environmental Management Plans (“EMPs”) by the Director General of Infrastructure Planning and Natural Resources (“the third respondent”) pursuant to the conditions of the consent are invalid as a consequence of the failure to comply with condition 15(d)(vi).

10 There are other claims against the first respondent in respect of the alleged disturbance of artifactual material otherwise than in accordance with the law. A claim in respect of the alleged breach of condition 14(b) of the development consent involves an alleged failure to cease work and notify the Department of Environment and Conservation following disturbance to Aboriginal artefacts.

11 Following preliminary hearings before Justice Bignold in the first instance and subsequently Justice Lloyd in the interlocutory stage, orders were made to split the hearing so that the claims in relation to the lapse of the consent and the breach of the provisions of the EP&A Act (apart from the breach of condition 14(b)) would be heard first and the remaining issues relating to the disturbance of Aboriginal artefacts would be heard later in a separate hearing. The first hearing commenced before me on 21 June 2005 and continued for three days. I am not privy to the grounds relied upon to justify the division of the hearing but it has become apparent in the course of the first hearing that the issues raised by the applicants clearly overlap in several respects. Nevertheless, the parties have requested that I deliver judgment in respect of the matters litigated to date prior to the commencement of the second hearing on 29 August 2005.

12 It is not an essential part of the applicants’ case that any work undertaken by the first respondent prior to the lapsing date of 4 December 2001 did not amount to physical commencement. Rather the allegation is that irrespective of the extent and nature of that work it was carried out in breach of the EP&A Act. Accordingly, it was unauthorised and thus unlawful. Therefore it was not work “relating” to the development for the purposes of s 95(4) of the Act because it was prohibited by the consent (Iron Gates Developments Pty Limited v Richmond – Evans Environmental Society Inc (1992) 81 LGERA 132).

13 The applicants’ case is that the first respondent has failed to comply with the requirements of condition 15(a),(b) and (c) of the consent because the Director General had not given approval to the requisite EMPs prior to 4 December 2001.

14 Further, or in the alternative, the first respondent failed to comply with condition 15(d)(vi) because an Archaeological and Heritage Protection Plan was not prepared in consultation with the local Aboriginal community.

15 Furthermore, EMPs produced for the Shadforth wetland and the quarry haul road acoustic barriers did not address the four matters referred to in condition 15(d)(vi). Moreover, in approving the EMPs the third respondent failed to take account of a relevant consideration, namely that the EMPs did not comply within condition 15(d)(vi) and that in the light of that failure it was manifestly unreasonable for the third respondent to issue an approval.

16 Finally the applicants claim that they and their elders were denied natural justice by the failure to comply with the requirement to consult pursuant to condition 15(d)(vi).

17 Primarily the respondents rely upon the work undertaken for the purposes of the pilot study referred to in condition 2(b) which they say was validly done prior to the satisfaction of condition 15. Secondly they rely upon commencement of the construction of stage 1 of the Shadforth wetlands. As a matter of construction they say the elements of an Aboriginal Archaeological and Heritage Protection Plan referred to in condition 15(d)(vi) were not relevant to any work undertaken in respect of the wetlands construction and therefore such a plan in respect of that work was not required before commencement.

18 Although it may not have a direct bearing on the ultimate outcome of the litigation I nevertheless feel it is appropriate for me to comment upon the requirement under condition 1 to carry out the development generally in accordance with the Environmental Impact Statement (EIS), the Applicant’s submissions to the Commission of Inquiry (including their answers to questions) and as may be modified by the conditions. Setting aside any question of the lack of definitive content, it is a provision that has the potential to create significant practical problems for the implementation of the consent. The EIS is a document comprising 281 pages with 20 appendices some of which are divided into several parts. The submissions to the Commission of Inquiry and answers to questions exceed 500 pages of written material. Fortunately for present purposes it is not necessary to attempt to ascertain whether the development is being carried out “generally in accordance with” the nominated documents. However the provision has added significantly to the proliferation of material tendered by the parties and to which the Court has been caused to refer.

The work relied upon by the first respondent

19 The Shell Cove project is being constructed on behalf of the first respondent by Australand Corporation (NSW) Pty Limited as project manager. Glenn Allan Colquhoun is the development manager employed by Australand with day to day responsibility for the provision of management services to the first respondent.

20 Mr Colquhoun has given evidence that prior to 4 December 2001 the physical work involved in a seagrass and saltmarsh pilot transplant study required by condition 2(b) of the development consent was carried out. This work commenced on or about September 2000. The physical work consisted of survey work, fencing, stormwater works, excavation and earthworks. A saltmarsh transplant program was carried out.

21 Mr Colquhoun has identified the following steps that were undertaken prior to the commencement of the construction of stage 1 of the Shadforth wetlands:-

(a) a survey of the Shadforth Wetlands was prepared by Craven Ellison and Hayes;

(b) geotechnical investigations of the Shadforth Wetlands were undertaken by Golder Associates Pty Ltd (Golder Associates);

(c) a detailed design of the Shadforth Wetlands was prepared by SMEC Australia Pty Ltd (SMEC); and

(d) the Environmental Management Plan for the Shadforth Wetlands was prepared by the Director General of the Department of Urban Affairs and Planning.

22 Mr Colquhoun states that stage 1 of the Shadforth wetlands commenced on 29 October 2001 and involved:-

(a) site establishment;

(b) stripping of topsoil;

(c) cut to fill earthworks;

(d) sewer concrete encasement;

(e) topsoiling;

(f) earthworks stabilisation.

23 Shellharbour City Council appointed Landcom to complete the Shadforth wetland. KR Stubbs and Associates was appointed by Landcom as the superintendent of these works. Stage 1 civil earthworks were carried out by BMD Constructions (NSW) Pty Limited. Documents that record the daily activities in relation to the above work have been tendered and accepted into evidence without objection.

The appropriate test for commencement of the development

24 Although the decision of the Court of Appeal in Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, 23 May 2005 unreported, concentrated primarily on whether survey work could constitute a first step in the performance of the engineering and/or construction work for the creation of a subdivision, nevertheless the principles identified in the judgment of Tobias JA (particularly at [85] and [86]) demonstrate that the requirement that work must be “physically commenced” demands only physical activity which involves an appearance of reality and which is not merely a sham. Following an examination of authorities including the decision by this Court in Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413 Tobias JA concluded at [98] that whether one describes the initiatory step as preparatory is irrelevant provided it is a necessary part of the process. His Honour concluded at [100] as follows:-

Once it is determined that the work relied upon falls within the expression " building, engineering or construction work " and has been "physically commenced on the land to which the consent applies" , the only remaining issue is whether that work was work "relating to" the subdivision, the subject of the development consent.

and at [104]:

I accept that the ambit of the expression "relating to" depends upon the context in which it appears: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487-8 [68] and [69]. It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent.

25 Santow JA and Stein AJA agreed with Tobias JA.

26 In Besmaw the argument was put by the Council that the work relied upon by the developer did not go beyond preparing the site for the construction of a road which the words of s 99(4) (as it then was) did not encompass. I rejected that argument on the basis that the work carried out amounted to preparation of the site and therefore amounted to commencement of the construction work for the road. That conclusion is consistent with the opinion expressed by Giles JA in Green v Kogarah Municipal Council (2001) 115 LGERA 231, namely that clearing forms part of the totality of the activities for erection of a building. This view was embraced by Tobias JA in Hunter Development at [98] when he found that survey and geotechnical investigation work in the context of a development consent to a subdivision was “an initiatory step” in the process of subdividing the relevant land. Tobias JA concluded at [98]:-

Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.

The effect of the pilot study

27 It must first be ascertained whether the work carried out in respect of the pilot study falls within the expression “building engineering or construction work relating to…the work” the subject of the development consent.

28 The EIS contained a support document wherein Marine Pollution Research Pty Ltd recommended that a pilot study be undertaken for saltmarsh and seagrass transplants to establish the optimum growth conditions.

29 At a preliminary meeting on 26 July 2000 the Shadforth Management Committee considered a Summary Report for the Saltmarsh Construction and Seagrass Transplant Pilot Program prepared by Marine Pollution Research Pty Ltd. After some changes to the program the Committee at its first meeting on 9 August 2000 unanimously agreed that the final report was suitable and that it be recommended to the Director General of DUAP for approval consistent with condition 2(b) of the development consent. The delegate for the Director General approved the Pilot Study Program on 31 August 2000.

30 The undertaking of the pilot study as a condition of consent clearly relates to that part of the development referred to as the Shadforth wetland system.

31 The evidence shows that, apart from survey, significant physical work was undertaken in the north east corner of the Shadforth wetland area. This area forms part of the land the subject of the development consent. Planting sites were marked out in an arrangement of four grids and enclosed by temporary fencing. Stormwater works were constructed. After excavation and completion of earthworks saltmarsh plants were collected from Shellharbour swamp and transplanted to the pilot study site.

32 The objective of the pilot study was to use the results as a basis for final detailed site design and identification of suitable transplant methods. It involved construction of the pilot study site which had to be shaped to provide an even gradient over the test site and to accommodate imported Shellharbour saltmarsh soil before transplanting the saltmarsh plant species. I am satisfied there was construction work.

33 There is, in my view, a direct analogy between the survey and geotechnical investigation work accepted by the Court of Appeal in HunterDevelopment and the trial undertaken by the pilot study in the present case. The work for the trial was done pursuant to a condition of development consent for the purpose of investigating the most suitable means of establishing saltmarsh plants on the Shadforth wetlands site. The Shadforth wetland is a specific part of the work approved by the development consent. Therefore the pilot study as a preliminary necessary step was part of the process required and involved in the carrying out of the approved work. The construction work relating to the pilot study was directed to take place under the terms of condition 2. The work itself was significant and not merely a sham.

34 The consequence of commencing the pilot study prior to December 2001 is that within the meaning of s 95(4), engineering and construction work relating to the establishment of the approved compensatory wetland development was physically commenced on the land to which the development consent relates before the consent lapsed. It was not, however, the construction of the wetland itself referred to in condition 15(b).

35 Both condition 15(b) and s 95(4) use the word “construction.” I have concluded that the commencement of the pilot study was relevant for the purpose of s 95(4) as being engineering or construction work relating to the work to which the consent applies. Condition 15(b) is more specific and should be construed as confined to the actual construction of each respective component, that is, for present purposes the Shadforth wetland itself. The work associated with the pilot study is essentially a preliminary or precursory step mandated by condition 2 designed to inform the applicant through the Shadforth Committee in respect of the most appropriate species of seagrasses and saltmarsh to be ultimately used in the development of the compensatory wetland. As a matter of common sense and logic the development consent considered as a whole did not require the preparation and approval of an EMP for the Shadforth wetland component prior to the commencement of the pilot study

36 It is not free from doubt, as the wording is obscure, but the Amended Points of Claim appears to allege that as the first respondent failed to complete the required pilot study prior to commencement of construction of development it cannot rely upon the work of the pilot study as showing commencement of construction. Mr Alan Oshlack, the lay advocate who appears on behalf of the applicants as an agent, did not expand on or fully explain this argument during submissions. It is difficult to comprehend the purpose of the argument. Nevertheless, I am unable to construe the conditions of consent in a way that required the first respondent to complete the pilot study within any particular timeframe or that construction of the wetland system itself could not otherwise commence until the study program was complete.

37 Nonetheless I have found that the carrying out of the works pursuant to the approved pilot study program demonstrates the work to which the consent applies was relevantly commenced.

The effect of the commencement of work in respect of stage 1 of the Shadforth wetlands

38 Following the decision of the Court of Appeal in Hunter Development the work referred to in [21] and [22] of this judgment is undoubtedly construction work “relating to” the carrying out of the work of establishing the compensatory wetland. It was commenced on the land to which the development consent applies at a time before the date on which the consent would otherwise lapse under s 95.

39 At this point it is not necessary to determine whether the survey and geotechnical investigations alone can be regarded as relevant work for the purposes of a development, other than subdivision, because the activities (a) to (f) itemised in [22] taken together with the survey, geotechnical and design steps are uncontrovertibly physical commencement for the purpose of s 95(4).

The alleged failure to comply with condition 15(a), (b), (c) and (d) of the consent

40 A development consent is not a legal instrument drafted by lawyers. It is appropriate to read the words in a common sense way that leads to a reasonable and practical result rather than by using the meticulous methods of interpretation applied to a statute.

41 Taking a practical and common sense approach to the construction of condition 15 and considering it in the context of the development consent there are a number of points to be noted:-

1. Broadly speaking there are three components of the development, namely the boatharbour, the Shadforth wetland system and the acoustic barrier adjacent to the haul road.

2. Each component will occur on three non-contiguous areas of land.

3. Condition 15(a) requires that an EMP be prepared for “each” component.

4. Condition 15(b) stipulates that an EMP for each of the three components “shall be approved before construction of “each” component.”

5. Condition 15(c) stipulates “all” works shall be undertaken in accordance with “each” respective EMP.

42 It is only the word “all” where used in 15(c) that lends any support to an argument from the applicants that the intention is for no work, in respect of any part of the development, to be commenced until each of the EMP’s have been prepared and approved. I do not accept that the drafter contemplated that an EMP in respect of one component would necessarily have direct implications for any work involved in the other components. The wording of the condition read as whole suggests otherwise. The whole question of EMP’s is addressed on the basis that each component is to be treated separately. The overall context of the development consent is that there are three distinct parts albeit that they are the subject of one approval.

43 The applicant for development consent elected to make a single application for consent to three distinct but nevertheless related projects. The development of the compensatory wetland arose from the necessity to replace the existing Shellharbour swamp that will be subsumed in the boatharbour and marina. The acoustic barriers for the haul road are designed to ensure the approved haul road for the quarry can be used without undue impact upon the amenity of future residential development.

44 Although not strictly the case it is appropriate from a practical point of view to construe condition 15 as if there are three separate development proposals. A separate EMP is required for each proposal. On this basis condition 15(b) is to be interpreted as only requiring an approval to the respective EMP for the individual component before construction of that component commences. In other words, and most relevantly to this case, only the EMP for the Shadforth wetland system is required to be approved before construction of the wetland system is commenced. Although not specifically stated the words “is commenced” should be implied at the end of condition 15(b).

45 On 7 September 2001 the Shadforth wetland Environmental Management Plan (Shadforth EMP) was forwarded to members of the Shell Cove Compliance Committee and Shadforth Management Committee to enable members of the Committee to read the EMP before the meeting on 19 September 2001. At that meeting the EMP was unanimously recommended to the Director General. By letter 10 October 2001 the Department of Urban Affairs and Planning advised the first respondent that the Shadforth EMP had been approved.

46 It is common ground that section 5.6 - Archaeological and Heritage Protection Plan of the Shadforth EMP makes no reference to prior consultation with the local Aboriginal community and the NPWS. Nor does it include any specific details referred to in condition 15(d)(vi) relative to maintenance management or monitoring in respect of Aboriginal artefacts or relics. It does contain reference to European historic sites and one potential archaeological deposit.

47 The applicants’ challenge, as traditional owners, is mainly in relation to the protection of Aboriginal archaeological and heritage sites. The following extracts from section 5.6 of the Shadforth EMP are relevant in that respect:-

… the area has not been identified as being of specific cultural significance to the local Aboriginal community.
If any relic, artefact or material suspected of being of Aboriginal origin, or heritage significance, is found during construction, the Contractor shall cease all construction work at the site of that find. The Contractor shall immediately notify the Superintendent who will notify NPWS and arrange for a site inspection. The site and finds shall subsequently be managed in accordance with the measures specified by NPWS.
It is Contractor’s responsibility to ensure that archaeological and heritage protection measures are implemented.

48 It is further stated in section 5.6 that “All construction activities shall be managed in accordance with the National Parks and Wildlife Act 1974”. That Act inter alia deals with the protection of Aboriginal items (for e.g s 90).

49 The documents submitted to the Commission of Inquiry included a Cultural Heritage Assessment by Navin Officer. The assessment concluded in respect of Aboriginal sites within the Shadforth wetland as follows:-

· No Aboriginal sites were located in the Shadforth Wetland study area.

· This is considered to be due to two factors:

· The extensive impact of previous landuse and gross landsurface disturbance (agriculture, channelisation, bypass construction);

· The low potential for occupation sites within the surviving landscape.

50 Navin Officer reported to a similar effect in relation to the proposed haul road landfill development.

51 The Commission report criticises the apparent lack of earlier consultation with Aboriginal elders but found that notwithstanding such lack of consultation the Commission of Inquiry had enabled the relevant issues to be adequately addressed. A lack of agreement within the local Aboriginal community regarding the value of the subject development site, apart from an identified midden in the boatharbour/marina area, was noted. The Commission further found that “the evidence establishes that with the exception of the midden site…it is unlikely the remainder of the development area contains Aboriginal grave sites.”

52 The first respondent complied with the broad requirement to prepare an EMP in respect of the Shadforth wetland component of the development. Some relevant work by way of commencement was done after the date of the approval but before the lapse date. The approval under condition 15 withdrew any caveat against the start of the work subject to determination of the challenge to the decision of the Director General based upon judicial review of the exercise of the discretion to grant an approval on administrative law grounds. (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [88]).

53 The applicants’ primary complaint is that they in particular and Aboriginal elders in general were never consulted in relation to any Archaeological and Heritage Management Plan and that there is no evidence of consultation with NPWS. Moreover, the Shadforth EMP did not address the four specific matters itemised in condition 15(d)(vi). The applicants rely on a lack of procedural fairness on the basis that they and their elders were denied natural justice when the EMP was prepared and approved without consulting them. Furthermore, it is said to be manifestly unreasonable to approve the EMP in circumstances where the Director General as the decision maker did not consider whether condition 15(d)(vi) had been complied with. Finally it is alleged the Director General failed to take into account the relevant consideration that the EMP did not comply with condition 15(d)(vi).

54 The introductory paragraph to clause 15(d) stipulates that each EMP shall contain “the following relevant elements.” A consideration of the elements (i) to (xii) attaches critical meaning to the use of the word “relevant.” Element (ix) refers to a Landscaping Plan “for the quarry haul road mounding.” Element (x) speaks of a Conceptual Marina Plan of Management including the “principles” for the “operation of the marina.” Item (xi) specifies a Beach Nourishment/Rehabilitation Plan providing details about such things as treatment of sand along the breakwater; works to the dune system; beach access; beach cleaning; beach and surf patrolling and triggers for beach nourishment. None of the matters raised by (ix), (x) and (xi) have any relevance to the Shadforth wetland which does not include the marina site the haul road or any beach. I agree with the submission made by Mr Williams SC, on behalf of the first respondent, that as a matter of construction condition 15(d) only applies in respect of those elements relevant to the part of the development the subject of a particular EMP.

55 In the light of the Navin Officer assessment and the report by the Commission of Inquiry it is arguable that there was no issue in regard to Aboriginal archaeological and heritage matters in respect of the Shadforth wetland area and that accordingly paragraph (vi) had little or no relevance in that respect. However the issue was not totally disregarded given the references in section 5.6 quoted at [47] and [48] above. The principles applicable to a legal challenge based on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 require the application of a stringent test that the decision is so devoid of plausible justification that no authority acting reasonably could have made it. Accepting for the purpose of argument that the Wednesbury test applies in the circumstances of this case, I am nevertheless not prepared to find that the decision of the Director General to approve the Shadforth EMP was manifestly unreasonable in the Wednesbury sense on the basis that paragraph (vi) was ignored or that the decision lacked any plausible justification.

56 Although the finding on the relevance of paragraph (vi) renders it strictly unnecessary to deal with the arguments that the first respondent failed to consult with the local Aboriginal community and NPWS I should make some observations in regard to the evidentiary position on that issue.

57 Thelma Henry a Senior Elder of the Dharawal/Eloura Tribe within the Yuin Nation and a Traditional Owner of land and waters around Shell Cove states that she was never consulted in respect of a Cultural Heritage Protection Plan.

58 Allan Carriage an Elder of the Wadi Wadi people and Traditional Owner of land in the Illawarra area states that he has never been consulted concerning cultural heritage issues surrounding the proposed Shell Cove marina development.

59 The evidence of Thelma Henry and Mr Carriage is not challenged and they were not required for cross-examination.

60 By letter 12 January 2000 the Council wrote to Shellharbour Aboriginal Advisory Committee (“SAAC”) noting the formation of the Shadforth Management Committee and inviting SAAC to nominate one representative to the Committee. At a meeting of SAAC on 18 April 2000 it was resolved “That the three organisations (KEJ, Waddi Waddi [sic] and Lands Council) meet to discuss who they wish to represent the three organisations on the Shell Cove Compliance Committee and the Shadforth Management Committee.” Mr Carriage is recorded as being present, as a representative of the Wadi Wadi Coomaditchie Aboriginal Corporation, at the meeting on 18 April 2000.

61 At a further meeting of SAAC on 20 June 2000 it was suggested that two people representing each group be nominated for the committees. Mr Carriage was also present at that meeting. Gary Caines and Mark Milbrya were appointed as representatives on the Shell Cove Compliance Committee at the meeting of SAAC on 15 August 2000. Letters were addressed to Mark Milbrya and Gary Caines by the first respondent on 31 August 2000 whereby they were welcomed as members of the Shell Cove Compliance Committee and Shadforth Management Committee as Aboriginal representatives for these committees.

62 The combined meeting of the Compliance and Management Committees on 19 September 2001 considered the Shadforth EMP and it was unanimously agreed that it was suitable and it be recommended to the Director General of DUAP for approval. The minutes of that meeting record that Mark Milbrya apologised. Both he and Gary Caines were distributed with a copy.

63 The evidence shows that an opportunity was afforded to the Aboriginal community to participate in the process of the preparation and approval of the Shadforth EMP through the representatives nominated by SAAC. The extent to which the consultation took place through that process is not clear. However the applicants do not prove their case solely through the evidence of Thelma Henry and Mr Carriage. Steps were taken to involve the local Aboriginal community in the process of the preparation of the Shadforth EMP through the committee process. In the circumstances I cannot be satisfied on the balance of probabilities that the consultation with the local Aboriginal community contemplated by condition 15(d)(vi) did not take place.

64 Notwithstanding the failure to produce evidence of consultation with the NPWS in answer to a Notice to Produce, calling for production of all correspondence with the NPWS in relation to the Aboriginal Cultural Heritage matters, addressed to the first respondent and even if the Archaeological and Heritage Protection Plan was relevant in respect of Aboriginal heritage the question of satisfaction in relation to the approval of the Shadforth EMP was a matter for the Director General (Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at [41] and [42]). Furthermore the only demonstrated purpose of consultation with the NPWS is in the context of Aboriginal heritage and, as I have said, that was not relevant within the meaning of condition 15(d).

Conclusion

65 The above conclusions and reasons lead to a finding that in respect of the issues litigated to date the applicants have not made out a case that they are entitled to any relief on the grounds relied upon so far in the case.

66 The hearing will continue to deal with evidence and argument in respect of the remaining issues on the dates fixed.

Orders

67 It is appropriate to make the following orders in respect of the relief claimed:-

1. The claims for relief in paragraphs 1, 2, 5, 6, 6A and 7 of the Further Amended Application Class 4 dated 19 June 2005 are dismissed.

2. The exhibits will be retained.

3. Costs to date reserved.