Kennedy v NSW Minister for Planning

[2010] NSWLEC 177

Land and Environment Court

of New South Wales

CITATION:

Kennedy v NSW Minister for Planning [2010] NSWLEC 177

PARTIES:

APPLICANT:
Roy "Dootch" Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy

FIRST RESPONDENT:
NSW Minister for Planning

SECOND RESPONDENT:
Stockland Developments Pty Ltd

FILE NUMBER(S):

40742 of 2010

CORAM:

Biscoe J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- application for interlocutory injunction to restrain activity on land for which modified development approval had been obtained pending determination of challenge to the validity of the modification

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 75W
National Parks and Wildlife Act 1974, s 90

CASES CITED:

Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216
Kennedy v NSW Minister for Planning [2010] NSWLEC 129
Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423
Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124

DATES OF HEARING:

20-21 September 2010

EX TEMPORE JUDGMENT DATE:

21 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr Alan Oshlack (agent)
SOLICITORS:
n/a

FIRST RESPONDENT:
Dr J Renwick
SOLICITORS:
Department of Planning

SECOND RESPONDENT:
Mr J Robson SC with Mr H El-Hage
SOLICITORS:
Herbert Geer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

21 September 2010

40742 of 2010

KENNEDY v NSW MINISTER FOR PLANNING AND ANOR

EX TEMPORE JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is a motion by the applicant, Roy “Dootch” Kennedy, on behalf of the Sandon Point Aboriginal Tent Embassy, for an urgent interlocutory injunction to restrain the second respondent, Stockland Developments Pty Ltd, from carrying out clearance work on land at Sandon Point pursuant to a 2009 major project approval as modified by two modifications approved by the first respondent, the Minister for Planning, on 9 August 2010 under s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act).

2 The applicant is an Aboriginal man from the NSW South Coast and a representative of the Sandon Point Aboriginal Tent Embassy which appears to have been established in or about 2000.

BACKGROUND

3 Development of this and adjacent land has been controversial and has spawned a good deal of litigation in this Court by persons, including Mr Kennedy, challenging the validity of various approvals.

4 In relation to the subject land, in December 2006 a concept plan for a 180 lot residential subdivision, three super lots and an aged care retreat facility was approved by the Minister for Planning under part 3A of the EPA Act. In November 2007 I held that the concept plan approval was invalid: Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124. That decision was overturned on appeal: Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423.

5 In November 2009 the Minister approved, subject to conditions, a project application for a residential subdivision and related works, the application for which had been lodged in July 2007. In accordance with condition A2, the development works are to be carried out over six stages. The Director-General’s environmental assessment report to the Minister had considered the issue of Aboriginal heritage and consultation.

6 In February 2010 the applicant commenced proceedings challenging the validity of the project approval. I heard the proceedings in June and dismissed them on 26 July 2010: Kennedy v NSW Minister for Planning [2010] NSWLEC 129.

7 Meanwhile, in March 2010 Stockland lodged an application under s 75W to modify five conditions of the 2009 approval and an application to modify its statement of commitments included in the concept plan. In April 2010 the Department of Planning notified Aboriginal groups of the Modification applications and invited them to comment on the proposed modifications within 14 days.

8 On 21 April 2010 the Illawarra Local Aboriginal Land Council, of which the applicant was at the time the chair, wrote to the Department of Planning objecting to the proposed modifications.

9 In August 2010 the Director-General’s Environmental Assessment Report was prepared which recommended that the Minister approve the Modification applications.

10 On 9 August 2010 the Minister approved the Modification applications. As I will discuss later, of particular significance for present purposes is that Condition E31 relating to Aboriginal consultation and control was replaced by Condition D20 which significantly reduced the control of Aboriginal groups over the development: see [21] – [22] below.

11 On or about 19 August 2010, Stockland commenced earthworks in Stage 5 of the approved project.

12 On 30 August 2010 the Aboriginal walkover referred to in the new Condition D20 took place. The purpose was to allow for the collection of Aboriginal cultural materials should any be discovered. The applicant was invited to the walkover but did not attend. It was attended by representatives of Aboriginal groups and Stockland representatives and consultants. Previously on 23 August the applicant had inspected the site. It appears from a Stockland note of the walkover that the archaeological test excavation, to which Condition D20 refers, was restricted to a narrow area adjoining the fence along Wilkies walking track which runs along the southern boundary of the Stages 1 and 3 areas shown in Figure 6 to a report of Stockland’s consultant Susan McIntyre-Tamwoy of July 2007.

THESE PROCEEDINGS

13 Last Thursday, 16 September 2010, the applicant commenced these proceedings challenging the validity of the two modification approvals, and arranged for the matter to be listed before me as duty judge at 2.00 pm yesterday (Monday) to hear his motion for an urgent interlocutory injunction.

14 Yesterday morning the applicant arranged for the hearing of his motion to be brought forward to 11.30 am that day because, he said, Stockland was proceeding to clear the land and, in the process, was destroying items of Aboriginal heritage.

15 Yesterday morning after a short hearing and upon the applicant giving the usual undertaking as to damages, I granted an interlocutory injunction until 3.00 pm yesterday restraining Stockland from carrying out works pursuant to the determination as modified and stood the matter over to 2.00 pm yesterday for further argument. The hearing continued from 2.00 pm until after 5 pm when it was stood over to today at noon. Shortly before the adjournment yesterday, the applicant sought a continuation of the interlocutory injunction until noon today. I continued the injunction until noon today in relation to the areas of Stages 2 and 3 of the land shown in figure 6 to a report of a Stockland consultant, Susan McIntyre-Tamwoy, of July 2007.

16 In order to obtain an interlocutory injunction the applicant has to establish that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction. I considered the relevant principles in Shoalhaven City Council v Bridgewater Investments Pty Limited [2010] NSWLEC 103 at [4] – [5]:

“4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]–[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case ( Beecham at 622), in some cases the strength of the applicant’s case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536.

5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court’s anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The ‘usual undertaking as to damages’ is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows:

‘ 25.8 Meaning of “usual undertaking as to damages ’
The ‘usual undertaking as to damages’, if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.’”

17 The summons filed by the applicant is unilluminating as to the precise basis upon which it is said that the Modifications are invalid. The basis has been disclosed during the course of the hearing before me. Yesterday morning the applicant submitted that the modifications are invalid because the Minister made at least two errors of law in approving them:

(a) the Minister failed to consider a mandatory material consideration that the site was covered in artefacts deposited there by Stockland from the clearing of adjacent land;
(b) the Minister erred in holding that he did not have a discretion as to whether to approve the modifications under s 75U of the EPA Act whereas in fact he did have a discretion. Ultimately, this contention was not pressed on the present application.

18 Yesterday afternoon the applicant pressed the submission in (a) above in slightly more refined form but did not press (b) above. Alternatively, the applicant submits that the Minister’s approval of the Modifications was manifestly unreasonable. The latter submission was not well developed.

19 At the heart of the applicant’s case is his contention that condition E31 of the project approval was modified so as to make it “substantially nugatory” by replacing it with condition D20.

20 I referred to condition E31 and other conditions in my earlier judgment in Kennedy v NSW Minister for Planning [2010] NSWLEC 129 at [71]:

“The applicant also submits that the Minister failed to consider that other significant Aboriginal sites or objects will be impacted by the development. I do not accept the submission. There was no specific mandatory requirement to consider other significant Aboriginal sites or objects outside the area the subject of the decision under challenge. In any event, the Minister considered the question of Aboriginal cultural heritage including the existence of significant Aboriginal sites. Conditions of approval B50, B51, E30, E31 and E32 as well as the commitments in the Statement of Commitments (at pp 9-10) include requirements to carry out archaeological investigations on specific areas within the site and to protect Aboriginal cultural materials within the site.”

21 Condition E31 was in the following terms:

“ E31 Impact of Below Ground (Sub-surface) Works – Aboriginal Objects

In the event that future works during any stage of the project disturb Aboriginal cultural materials, works at or adjacent to the material must stop immediately. Temporary fencing must be erected around the site and the material must be identified by an independent and appropriately qualified archaeological consultant. The Regional Archaeologist of the Cultural Heritage Unit of the Department of Environment and Climate Change, the Northern Illawarra Aboriginal Collective, the Illawarra Local Aboriginal Land Council (LALC), the Wadi Wadi Coomaditchie Aboriginal Corporation, the Korewal Eloura Jerrungurah Tribal Elders Aboriginal Corporation, and the Wodi Wodi Elders Corporation must be informed. These groups will advise on the most appropriate course of action to follow. Works must not resume at the location without the prior written consent of the Department of Environment and Climate Change, the Illawarra LALC and Aboriginal Corporations.”

22 One of the Modifications substituted the following condition D20 for condition E31:

“D20 Impact of Below Ground (Sub-surface) Works – Aboriginal Objects

(a) Prior to the commencement of sub-surface works:

Archaeological sample test excavation is to be carried out in the areas identified in Figure 6 of the Desktop Assessment of Archaeological Potential, prepared by Susan McIntrye-Tamwoy, Heritage Consultant dated April 2007;

The Aboriginal community is to be provided with the opportunity to walkover the development area to allow for community collection of Aboriginal cultural materials should any be discovered;

To satisfy (ii) above the Northern Illawarra Local Aboriginal Land Council (LALC), the Wadi Wadi Coomaditchie Aboriginal Corporation, the Korewal Eloura Jerrungurah Tribal Elders Corporation, the Wodi Wodi Elders Corporation and Sandon Point Aboriginal Tent Embassy, shall be given 7 days notice of the time and arrangements for the walkover;

Any community collection of Aboriginal cultural material should be carried out under the supervision of a qualified archaeologist;

The location of each item of cultural material must be recorded using GPS coordinates and analysis of artefacts must occur in a comparable manner as that of any Aboriginal cultural material retrieved from the programme of archaeological test excavation; and

Any objects recovered from community collection must be deposited with the Australian Museum or such other place as determined by DECCW once analysis has taken place.


(b) If human remains are disturbed in, on, or under the land during the course of sub-surface works, the proponent must:

not further disturb or remove those remains;

immediately cease all work at the particular location;

notify DECCW’s Environmental Line on 131 555 and the local police as soon as practicable and provide any available details of the remains and their location; and

not recommence work at the particular location unless authorised in writing by the relevant authority.”

23 It appears that the sample test excavation areas referred to in the first dot point of condition D20 are the areas shown in black on Figure 6 of the report of Stockland’s consultant archaeologist Susan McIntyre-Tamwoy to which I have referred.

24 A Departmental report before the Minister’s delegate when he approved the modifications commented on this change as follows:

“ Department Comment
The current condition requires works to cease should any Aboriginal cultural materials be found, and further work unable to resume at the location without the prior written consent of DECCW, the Illawarra LALC and Aboriginal Corporations. The proponent argues that the condition in effect stops works indefinitely if any relics are found and hands over control of timing for the redevelopment to third parties.

The modified condition seeks to remove the requirement for written consents from third parties to enable a more practical solution to be adopted to manage and protect Aboriginal heritage if relics are found.

Although the proposed conditions (as modified) removes the requirement for approval to be granted from third parties, it is considered that the modified condition is satisfactory for the following reasons:

The modified condition still requires consultation with Aboriginal groups and directs Aboriginal community involvement by way of a walkover of the site giving local Aboriginal groups an opportunity to collect Aboriginal artefacts if discovered; and
The modified condition also requires appropriate management and protection of Aboriginal archaeology if discovered and sign off from DECCW, the agency responsible for Aboriginal heritage, prior to work recommencing on a particular location.

It should also be noted that DECCW, the agency responsible for Aboriginal heritage, supports the modified condition. The condition as modified is therefore considered to be reasonable.”

25 That report also stated in its summary of issues:

“Public Interest The proposed modification does not undermine the public interest. The operation of the conditions (as modified) will satisfactorily protect Aboriginal heritage and address issues raised in submissions, such as requiring sample test excavation, consultation with Aboriginal groups, collection and management of artefacts if found. Furthermore an Aboriginal Place has been declared over the most significant part of the site, to protect Aboriginal heritage in the public and Aboriginal cultural heritage interests.”

26 The “more practical solution” referred to in these comments was from the perspective of Stockland. From the perspective of relevant Aboriginal groups, they lost control over the development in the event that Aboriginal cultural materials were located. Substantially, their rights were reduced to a walkover to collect any Aboriginal cultural materials, on seven days notice.

27 It is common ground that soil from the adjoining land was stockpiled on the subject land as a result of works on the adjoining land pursuant to a subdivision development consent in or about 2002. Stockland accepts that that soil may contain Aboriginal artefacts. I think that the evidence points to a stronger conclusion that the soil is likely to have contained numerous Aboriginal artefacts.

28 In that regard, in a decision in 2002 relating to a challenge to the stockpiling of soil on the subject site from the adjoining land, Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216 at [28], Pain J described the evidence of an enormous archaeological site on the adjoining land containing several million Aboriginal artefact fragments:

“I note that the Applicant filed an affidavit sworn 13 November 2002 of Associate Professor Peter Hiscock who is Head of Archaeology at the School of Archaeology and Anthropology, Australian National University. Attached to the affidavit is his report titled ‘Appraisal of Archaeological Studies at Sandon Point New South Wales’. In his affidavit Dr Hiscock states that the available evidence obtained by archaeologists reveals that within the development area at Sandon Point there is an enormous archaeological site containing several million artefact fragments that, known disturbances notwithstanding, those artefacts are likely to contain significant scientific information that can be obtained from few if any other sites and further, that the archaeological investigations have failed to provide an extensive or detailed characterisation of the site that would stand as a final statement of scientific significance. He further concludes that he believes the proposed development activities will irreparably damage the archaeological material at Sandon Point and that inadequate archaeological salvage actions have been taken to recover an adequate level of cultural information about past Aboriginal activities. His view is that without further investigations the proposed and current development of the archaeological site at Sandon Point will result in the loss of considerable and significant heritage information.”

29 The applicant tendered Professor Hiscock’s report referred to in the above quote. It does not relevantly add much to the passage quoted. It does say that the adjoining site was one of only three or four coastal sites in NSW with artefact assemblages of this size, that such sites are extremely rare along the Australian coast, and that this site represented an assemblage of unusual and valuable qualities.

30 The applicant also tendered a report of Navin Officer, a Stockland heritage consultant, of August 2003 containing a study of the adjoining land apparently after Stockland deposited soil from it onto the subject land. It refers in Table 4.1 to 2,740 artefacts of various types recovered from the adjoining land.

31 An extract from the Sandon Point Vegetation Management Plan in evidence contains a photograph of part of the subject land which is described as showing “fill mounds” on the subject land from the development on the adjoining land which “contain Aboriginal artefacts”. An affidavit of the applicant indicates that such Aboriginal artefacts from the adjoining land were recently identified on the subject land.

32 There is an issue, which is relevant to the balance of convenience and the form of any interlocutory injunction that might be granted, as to where on the subject land the soil containing artefacts from the adjoining land was stockpiled. The oral evidence of Stockland’s solicitor, Mr Wilcher, referred to soil and artefacts pursuant to a 2000 development consent for demolition of buildings on the subject land being placed in stockpiled areas on the subject land in the areas of Stages 2 and 3 south of Woodlands Creek shown in Figure 6 in the report of Susan McIntyre-Tamwoy referred to at [12] above. That 2000 development consent is in evidence. An approved plan attached to it shows a “Stockpile Area” on the subject land which Mr Wilcher’s evidence indicated is on the Stages 2 and 3 area. It appears, as well as I can glean, that the Stages 2 and 3 area to which Mr Wilcher referred is the area marked in black on the subject land south of Woodlands Creek in Figure 6. Mr Wilcher indicated that consequential upon works carried out on the adjoining land pursuant to a subdivision development consent in or about 2002, soil from the adjoining land was also placed on those stockpiles. It is this soil, which I have accepted as likely to have contained many artefacts, that is at the centre of the controversy in this case.

33 Today the applicant sought to read an affidavit of Alan Carriage sworn 20 September 2010. The respondents objected on the basis that they were prejudiced by the late service of this evidence in that they have not had time to meet it. I propose to refer to the contents of that affidavit in order to indicate how I propose to deal with it. Mr Carriage is an Aboriginal person who was the applicant in the legal challenge the subject of the 2002 decision quoted at [28] above. He has deposed that he was present when soil containing artefacts were removed from the adjoining land and taken to the subject land. He said that in November 2002 in company with Mr Paul Hedge of Stockland he inspected the subject land and that in the north-west part, north of Woodlands Creek, artefacts were deposited by Stockland.

34 I reserved my decision on whether to admit that evidence in order to give Stockland the opportunity to obtain instructions from Mr Hedge and otherwise to consider a reply to it. In the time available Stockland has not been able to complete that process. Let it be assumed that Mr Carriage’s evidence were to be admitted. There is then a conflict in the evidence as to where the soil from the adjoining land was deposited which it is not possible to resolve on this interlocutory application. However, on the assumption to which I have referred, the late service would diminish the weight of that evidence, which is a factor to be taken into account when I come to consider the balance of convenience and the form of any interlocutory injunction that might be granted.

35 Assuming that it was mandatory and material for the Minister to consider Aboriginal cultural heritage matters, the respondents submit that they were considered and that it is a judicial review fallacy to drill down into mandatory considerations to the level of particularity for which the applicant contends; that is, to consideration that soil containing Aboriginal artefacts from the adjacent land had been stockpiled on the subject land.

36 Whatever the ultimate fate of such a submission at a final hearing, arguably a question of degree is involved and it is arguable that the applicant’s alleged ground of invalidity does not descend into particularity to an undue degree. I am prepared to hold on the evidence that the applicant’s contention raises a serious question for trial.

37 There are competing considerations on the balance of convenience. Taking into account the evidence of a Stockland manager, Mr Michael Braithwaite, the following are among the matters which weigh against the grant of an interlocutory injunction restraining all the works:

(a) there is no allegation that Stockland has done anything legally wrong, rather the allegation is that the Minister’s approval process was flawed;
(b) Stockland has engaged contractors to carry out site works at $46,000 per day and if work were to completely stop Stockland would not be able to re-engage the contractor on another site or redeploy the machinery elsewhere;
(c) an indefinite delay would result in the contractor’s right to terminate the contract with a payout of about $450,000, and Stockland is also incurring holding costs;
(d) any delay of more than about three weeks is likely to result in lost sales, it is said, given that over 80 lots are anticipated to be sold in the next few months;
(e) the applicant’s undertaking as to damages is not really worth anything because the applicant in the past has represented himself as having no financial worth;
(f) there has been delay by the applicant in commencing the proceedings given that work commenced on 19 August and the walkover was on 20 August. Moreover, the applicant as chair of the Illawarra Aboriginal Land Council and personally had a reasonable opportunity to make the complaint which is now made in a much more timely way. The precise complaint was not identified until after this hearing commenced;
(g) the development on the adjoining land had a consent under s 90 of the National Parks and Wildlife Act 1974 to the destruction of Aboriginal relics on conditions aimed at including Aboriginal groups in a process which would give a measure of protection to Aboriginal relics;
(h) the modified Condition D20 demonstrated some sensitivity to the blackened area of the subject land shown in Figure 6 where, according to Mr Wilcher’s evidence, the soil from the adjoining land was deposited, in that it requires archaeological sample test excavations to be carried out therein.

38 On the other hand, if the Modifications are invalid then the clearing works may not have occurred given the terms of the earlier Condition E31 and the risk of destruction of Aboriginal artefacts by the works now being carried out would have been less or even avoided.

39 I consider that the balance of convenience favours the grant of an interlocutory injunction restraining Stockland from carrying out activities on the Stages 2 and 3 area south of Woodlands Creek, being the area where Stockland accepts that the stockpiles from the adjoining land were located, on the basis that the proceedings be expedited with a final hearing within a few weeks. That area is shown hatched in red on a plan tendered by Stockland which is exhibit 4. I am not prepared to extend the interlocutory injunction to the balance of the subject land. In reaching that conclusion, I have had regard to the strength of the applicant’s case which appears to me, at this stage of the proceedings, to be modest and to the diminished weight of Mr Carriage’s evidence to which I have earlier referred arising out of the late service of his affidavit. Under this interlocutory regime it appears unlikely that there would be any significant detriment to Stockland, as far as I can glean from the evidence, for it may continue clearing over most of the subject land and the case will be heard expeditiously. It will be necessary to have a rigorous timetable for evidence and submissions prior to the hearing.

40 The orders of the Court are as follows:

1. Order that the proceedings be expedited.
2. Upon the applicant giving the usual undertaking as to damages, order that until final determination of the proceedings or further order the second respondent, by its employees, contractors, sub-contractors, servants or consultants be restrained from undertaking any activity on the land hatched in red on the plan which is Exhibit 4.
3. Direct that:
(a) the matter be listed for hearing on 13 to 15 October 2010.
(b) the applicant file and serve points of claim by 24 September 2010.
(c) the respondents file and serve points of defence by 28 September 2010.
(d) the applicant’s evidence and outline of arguments be filed and served by 5 October 2010.
(e) the respondents’ evidence and outline of argument be filed and served by 11 October 2010.
(f) the parties are to cooperate in the preparation of an agreed bundle of documents and endeavour to have affidavits refer to this bundle without duplication of documents.
(g) liberty to apply.
4. The exhibits may be returned except for Exhibit 4.