Michael Pollard v Blue Mountains Council

[2017] NSWLEC 1597

Land and Environment Court

New South Wales

Medium Neutral Citation:	Michael Pollard v Blue Mountains Council [2017] NSWLEC 1597
Hearing dates:	23 October 2017
Date of orders:	25 October 2017
Decision date:	25 October 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is dismissed. 2.   Development Application No. X/241/2016 for the construction of a two-storey dwelling and onsite sewage management system at 3 Binstead Street, Faulconbridge, is refused. 3.   The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: whether the development application has adequately demonstrated that the development will not have an unacceptable impact on Aboriginal heritage.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr M. Pollard (Applicant) Blue Mountains Council (Respondent)
Representation:	Counsel: Self-represented (Applicant) Mr A. Seton solicitor (Respondent)   Solicitors: Marsdens Law Group (Respondent)
File Number(s):	2017/142758
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. X/241/2016 for the construction of a two storey dwelling, solid fuel heater and onsite sewage management system (the proposal) at 3 Binstead Street, Faulconbridge (the site) by Blue Mountains City Council (the Council).

2. The appeal was subject to mandatory conciliation on 23 October 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

3. The Council contends that the proposal should be refused because it has not been demonstrated that the development will not have an unacceptable impact on Aboriginal sites that potentially exist on the site. The document submitted in support of the application titled “Aboriginal Due Diligence Assessment” does not include a date or an author and it is not possible, from the document provided, to ascertain if the proposal has the potential to impact on Aboriginal sites.

The site and its context

4. The site is approximately 10.24 hectares in area and is rectangular in shape. It is currently a vacant bushland lot. It contains rock outcrops, cliff overhands and a watercourse approximately 120m downslope from the proposed dwelling location.

The proposal

5. The proposal seeks consent for a two storey dwelling, solid fuel heater and onsite sewage management system. The proposed dwelling is to be constructed on an area of the lot closest to the southern end of the Binstead Street cul-de-sac, approximately 14m from the northern lot boundary. The proposed soil mound onsite sewerage management system is located approximately 4m from the northern lot boundary.

6. Conditions provided by the NSW Rural Fire Service to be imposed on any consent issued include a requirement for the maintenance of an Asset Protection Zone (APZ) around the building of 10-19m (exhibit 3, f 28).

Planning framework

7. The site is zoned E2 Environmental Conservation and E3 Environmental Management, pursuant to the Blue Mountains Local Environmental Plan 2015 (LEP 2015) and the proposal is permissible with consent. The proposed building zone is within the E3 zone. The objectives of the E2 zone and E3 zone, to which regard must be had, are:

E2 Environmental Conservation

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To encourage land restoration works on disturbed bushland areas.

• To restrict the development of private land that would be inappropriate because of physical characteristics or high bush fire hazards, but only where less restricted development is permitted elsewhere on the land due to split zoning.

• To maintain biodiversity in the Blue Mountains.

E3 Environmental Management

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To protect the natural bushland buffer between towns, to avoid ribbon development and to conserve vistas of bushland obtained from public places and the Blue Mountains National Park.

• To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for, and harmonise with, the bushland character of the area.

• To encourage landscaping and regeneration of natural bushland in areas with sparse tree or canopy cover.

8. The principal development area, at cl 4.4B of LEP 2015, applies to land in the E3 zone and prescribes the maximum size of land on which development is to be located for larger lots in response to the environmental capacity of the land. The waste water disposal is outside of the boundary setback requirement and the applicant has provided a cl 4.6 written request to vary this requirement. The Council does not raise an issue in regard to the location of the waste water disposal or the written request.

9. Clause 5.10 of LEP 2015, Heritage Conservation has as an objective to conserve Aboriginal objects and Aboriginal places of heritage significance. Sub-clause 5.10(8) relevantly includes the following:

(8) Aboriginal places of heritage significance

The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance:

(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement)

10. Blue Mountains Development Control Plan 2015 (DCP 2015) relevantly includes the following in relation to Indigenous heritage:

D1.3. Indigenous heritage

Explanation

Indigenous or Aboriginal heritage consists of objects and places that are of significance to Aboriginal people. These may include physical or non-physical elements, for example, objects including stone tools, art sites or ceremonial grounds, as well as places of spiritual and cultural importance.

The Blue Mountains and surrounding region incorporates significant parts of the traditional lands of the Gundungurra and Darug people. Evidence suggests that the Blue Mountains region has been inhabited by Aboriginal people for at least 20,000 years and probably longer.

The recognition and preservation of indigenous heritage and culture is central to ensuring that important spiritual and cultural links to land are maintained. Development pressures have resulted in the destruction of many Aboriginal sites, and those that remain need to be protected.

Relationship to other Legislation

The primary piece of legislation which protects Aboriginal cultural heritage in NSW is the National Parks and Wildlife Act 1974 (NPW Act). Under section 86(4) of this Act, it is an offence to harm or desecrate an Aboriginal object or Aboriginal place, or in relation to an object, move the object from the land on which is has been situated.

Protection of Aboriginal Cultural Heritage is also required under the:

• Environmental Planning and Assessment Act 1979 (EP&A Act) and,

• Blue Mountains Local Environmental Plan 2015 (clause 5.10(8) (Aboriginal places of heritage significance))

D1.3.2. Minimum requirements for initial site analysis and investigation

Explanation

At the planning and design stage, an archaeological investigation may be necessary depending on the location and landscape features of the site, and whether or not the land has been historically disturbed.

The minimum standards in New South Wales for initial site investigations related to Aboriginal Cultural Heritage are specified in Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales (prepared by the then Department of Environment Climate Change and Water; now administered by the Office of Environment and Heritage).

For certain development, it is likely information will also need to be sourced from the Local Aboriginal Community (Refer to ‘Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010’).

Objective

O1. To preserve and protect objects and places of Aboriginal cultural and

archaeological significance.

Controls

C1. All development is to be in accordance with the relevant provisions of Section 86 of the National Parks and Wildlife Act and the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales.

Note: The code is accessible via the Office of Environment and Heritage

C2. Where development including earthworks is proposed on undisturbed bushland, land adjoining undisturbed bushland or on a site containing significant landscape features, it is recommended that a preliminary Aboriginal Cultural Heritage Assessment be undertaken at the planning stage. At this initial stage, this would include:

(a) A search of the Aboriginal Heritage and Information Management System (AHIMS) register, and

(b)    The identification of any significant landscape features located on or adjacent to the site.

Note 1: The New South Wales Office of Environment and Heritage (OEH) administer the Aboriginal Heritage Information Management System (AHIMS) of notified Aboriginal sites and declared Aboriginal places in NSW.

Note 2: For the purpose of C2, significant landscape features include those listed within the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales.

Expert evidence

11. The Council relied on the expert evidence of Mr Christopher Langeluddecke. Mr Langeluddecke is a qualified archaeologist with over 15 years’ experience working in Aboriginal archaeology, community consultation and heritage management planning. Mr Langeluddecke provided an expert report (exhibit 5) which reviewed the “Aboriginal Due Diligence Assessment” (exhibit A) prepared on behalf of the applicant by ARH Management Services.

12. A search of the Office of the Environment and Heritage AHIMS Web Services (Aboriginal Heritage Information Management System) showed that three Aboriginal sites are recorded in or near the site and no Aboriginal places have been declared in or near the site (exhibit 3, f 18).

13. Mr Langeluddecke concluded that it is not possible to determine if the proposal has potential to impact on Aboriginal objects on the basis of the assessment, “Aboriginal Due Diligence Assessment”. According to Mr Langeluddecke, the assessment has not fully complied with the steps outlined in the OEH Code of Practice necessary to ensure due diligence. Mr Langeluddecke identified the following gaps in the assessment and in the absence of contrary expert evidence I accept Mr Langeluddecke’s evidence:

• Impacts and disturbance to the ground surface arising from the proposed driveway and onsite effluent disposal system have not been detailed or assessed;

• It is not possible to confirm that the search of the OEH AHIMS database was undertaken within 12 months of the writing of the assessment;

• A review of previous archaeological and heritage studies relating to the local area has not been undertaken;

• The implications of the presence of AHIMS site 45-5-2370, an artefact scatter recorded as being approximately 100m from the proposed development area on the same ridge line landform, have not been assessed;

• Assessment of the landscape features of the proposed development area likely to indicate the presence of Aboriginal objects, in particular the proximity of the tributary of Numantia Creek and the property’s position on a ridge line, has not been undertaken;

• The potential to avoid impacts to landscape features likely to indicate the presence of Aboriginal objects has not been assessed; and

• It is not possible to identify if a visual inspection of the development area has been undertaken by a person with expertise in locating and identifying Aboriginal objects.

Submissions

14. The applicant submits the following:

• The site has been disturbed. The principal development area is cleared. The land has been bulldozed and burnt in bushfires. There are campfires and broken bottles on the site. Prior to the recent construction of a boundary fence, there were motorbike trails across the site. DCP 2015 is not a relevant consideration because it relates to undisturbed land.

• The waste water management system has been chosen because it only requires shallow excavation.

• The proposal does not affect any Aboriginal sites on or near the site.

• The Flora and Fauna Assessment Report and Bushfire Assessment Report by Abel Ecology found no evidence of Aboriginal sites.

• The applicant intends to follow his own due diligence process and manage his own risk, pursuant to section 7.7 of the ‘Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales’ (exhibit 4, tab 47).

• The “Aboriginal Due Diligence Assessment” was prepared by ARH Management. The applicant does not know who attended the site, or who prepared the report. He does not rely on the report.

15. Mr Seton submits that there are large areas of the site that are undisturbed and the APZ and waste water management system will require areas of the site to be cleared. The relevant provisions of DCP 2015 relate to both disturbed and undisturbed land.

Findings

16. I accept Mr Langeluddecke’s evidence that it is not possible to determine if the proposal has the potential to impact on Aboriginal heritage on the basis of the information provided by the applicant in the development application. The investigation and assessment submitted by the applicant is inadequate to enable a proper consideration of the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place.

17. That parts of the site have been cleared or disturbed is not relevant to the requirement to properly consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object reasonably likely to be located at or near the site.

18. The protection of heritage places and requirements for the proper assessment of the potential for heritage significance are important safeguards for places and items of heritage significance. The applicant’s intention to follow his own due diligence process and manage his own risk is insufficient to meet the requirements of LEP 2015 in relation to the protection of potential Aboriginal objects or sites at or near the site.

Conclusion

19. The Council’s contention that the proposal should be refused because it has not been demonstrated that the development will not have an unacceptable impact on Aboriginal objects that potentially exist on the site is made out on the evidence before me.

Orders

20. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. X/241/2016 for the construction of a two-storey dwelling and onsite sewage management system at 3 Binstead Street, Faulconbridge, is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 25 October 2017