Roy Kennedy v Director-General of the Department of Environment and Conservation

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456

PARTIES:
APPLICANT
Roy "Dootch" Kennedy
FIRST RESPONDENT
Director-General of the Department of Environment and Conservation
SECOND RESPONDENT
Stockland Development Pty Limited

FILE NUMBER(S): 40421 of 2005

CORAM: Jagot J

KEY ISSUES: Judicial Review :- whether consent to destroy Aboriginal objects invalid - uncertainty - relevant considerations - irrelevant considerations - procedural fairness - whether breach of conditions of consent to destroy - construction and interpretation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 23
National Parks and Wildlife Act 1974 s 90
Protection of the Environment Administration Act 1991

CASES CITED: Anderson and Another v Director-General, Department of Environment and Conservation and Others (2006) 144 LGERA 43;
Anthony Tauszik v Gosford City Council [2006] NSWCCA 193;
Cann’s Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210;
Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148;
Country Energy v Williams and Others (2005) 63 NSWLR 699;
F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306;
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33;
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472;
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277;
King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another (1945) 71 CLR 184;
Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230;
Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24;
Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381;
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd and Others (1996) 91 LGERA 31;
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319;
Port Stephens Council v Fidler (1997) 94 LGERA 298;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82;
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115;
Williams v Director-General of the National Parks and Wildlife Service and Others (2003) 127 LGERA 354

DATES OF HEARING: 10/07/2006, 11/07/2006, 12/07/2006, 13/07/2006, 14/07/2006

DATE OF JUDGMENT:
07/26/2006

LEGAL REPRESENTATIVES:
APPLICANT
A Oshlack (agent)
SOLICITOR
N/A
FIRST RESPONDENT
Ms R Pepper
SOLICITORS
Department of Environment and Conservation
SECOND RESPONDENT
Mr P Clay
SOLICITORS
Herbert Geer & Rundle

JUDGMENT:

TABLE OF CONTENTS

Paragraphs

Introduction 1 - 5

Statutory Provisions 6 - 19

Background 20 - 71

Evidence 72 - 73

Is consent 2130 uncertain? 74 - 84

Procedural fairness and legitimate expectations 85 - 99

Relevant considerations

100 - 103

104 – 107

108 – 112

113 - 117

118 - 123

124 – 127

128 – 130

131 - 133

134 - 137

138 – 142

143 – 146

147 - 150

151 - 157

Irrelevant consideration 158 - 160

Failure in statutory duty 161 - 165

Conclusion on validity of consent 2130 166

Special conditions 2 and 3 167 - 190

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

26 July 2006

40421 of 2005

ROY “DOOTCH” KENNEDY
Applicant

THE DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
First Respondent

STOCKLANDS DEVELOPMENT PTY LIMITED
Second Respondent

JUDGMENT

Jagot J:
Introduction
1 In these proceedings the applicant, Mr Roy “Dootch” Kennedy, sought declarations and orders with respect to a consent granted by the first respondent to the second respondent under s 90 of the National Parks and Wildlife Act 1974 (the “NPW Act”). The applicant claimed that the consent was invalid or that, if valid, the second respondent had failed to comply with special conditions 2 and 3 of the consent. The applicant sought orders to remedy and restrain the claimed breaches of the NPW Act (by reason of the alleged invalidity of, or failure to comply with, the consent).

2 Mr Kennedy is an Aboriginal person of the Yuin/Monaro people, who has deposed to the fact that he is associated by bloodline with the Wadi Wadi Group. Further, that the Wadi Wadi are recognised as a distinct language group of indigenous peoples who occupied land in the Illawarra region, including in the Sandon Point area. The applicant is also the Deputy Chairman of the Wadi Wadi Coomaditchie Aboriginal Corporation (a position he has held for the last three years), a former cultural heritage officer of the Illawarra Local Aboriginal Land Council and a spokesperson for the Sandon Point Aboriginal Tent Embassy.

3 The challenged consent is consent 2130 granted on 2 March 2005 in respect of land at Sandon Point. A delegate of the Director-General of National Parks and Wildlife granted the consent.

(1) The consent is uncertain. In particular, the consent: - (i) is a blanket authority allowing destruction of all Aboriginal objects on the land to which the consent applies, (ii) does not include specific detail of the work authorised by the consent, (iii) does not provide specific detail of where that work will take place on the land, and (iv) does not provide specific detail of how that work will impact on Aboriginal objects.

(2) The consent was granted in breach of the requirements of procedural fairness in that: - (i) the consent was granted other than in accordance with the requirements of the first respondent’s policy and practice of consulting or otherwise requiring proponents to consult with interested parties in relation to applications for consents under s 90 of the NPW Act, (ii) the applicant had a legitimate expectation that he would be consulted in relation to the application for the consent, but was not consulted in accordance with his legitimate expectation, and (iii) in consequence, the applicant has suffered unfairness as a result of not being able to participate in the preservation of his cultural heritage.

(4) In deciding the grant the consent, the first respondent took into account an irrelevant consideration in that the first respondent “discounted the Hiscock report because it was of limited value in the Aboriginal assessment process for Sandon Point and does not provide any new information that supports a reconsideration of either s 90’s that had been issued or the archaeological salvage methodology”.

(5) In deciding to grant the consent, the first respondent failed in her statutory duty pursuant to s 2A(1)(b)(i) of the NPW Act, by granting the consent “without any ameliorating conditions to monitor, salvage and curate Aboriginal Objects impacted by proposed work”.

5 I have decided that the applicant’s challenge to the validity of consent 2130 cannot be upheld. I have found that there is a threatened breach of s 90 of the NPW Act by the second respondent. In the exercise of my discretion, I propose to frame orders as identified below, which I consider appropriate to remedy the cause of the threatened breach.

Statutory Provisions

(1) The objects of this Act are as follows:

…

(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

(ii) …

7 According to s 2A(2), the objects of the NPW Act “are to be achieved by applying the principles of ecologically sustainable development”. The “principles of ecologically sustainable development” are defined in s 5(1) as meaning the principles set out in s 6(2) of the Protection of the Environment Administration Act 1991.

(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,

(b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

9 The “Service” means the National Parks and Wildlife Service constituted by the NPW Act (s 6). The Director-General is the Director-General of National Parks and Wildlife (s 5). I understand that, by administrative arrangement, both the Service and the Director-General are within the purview of the first respondent (and neither respondent suggested that the proceedings were other than properly constituted).

… any deposit, object or material evidence (not being a handy craft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

11 An “Aboriginal place” means any place declared to be an Aboriginal place under s 84. Part 6 provides for the declaration of any place as an Aboriginal place for the purposes of the NPW Act (s 84).

(1) The Director-General shall be the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.

(2) In particular, the Director-General shall be responsible:

(a) for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and

(b) subject to section 87, for the proper restoration of any such land that has been disturbed or excavated for the purpose of discovering an Aboriginal object.

13 The land the subject of consent 2130, as I understand it, is privately owned and is not land reserved under the NPW Act.

14 Section 86 constitutes offences in respect of certain dealings with certain Aboriginal objects except in accordance with the terms and conditions of an unrevoked permit under s 87 of the NPW Act.

15 Section 87 provides that the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in s 86(a) to (e). Section 87(2) deals with the restoration of land. Section 87(3) provides that a failure to comply with a term or condition authorised by s 87(2) shall be deemed to be a contravention of s 86. Section 88 regulates the removal of Aboriginal objects from land reserved under the NPW Act, including to the Australian Museum Trust.

16 Section 89 empowers the Minister or the Director-General to acquire Aboriginal objects or to take such other action as they think practicable for the preservation or exhibition of Aboriginal objects or Aboriginal places.

90 Destruction etc of Aboriginal objects or Aboriginal places

(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).

(1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A.

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

(3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister.

(4) ...

18 Section 91 provides for persons to notify the Director-General of the location of an Aboriginal object of which the person is aware, unless the person believes on reasonable grounds that the Director-General is aware of the location of that object.

(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

Background

20 Many facts about the background to the grant of consent 2130 are not in dispute. I record these uncontentious facts below.

21 In or about October 2000, Wollongong City Council informed the National Parks and Wildlife Service that the Council was considering an application by the second respondent (or an entity associated with the second respondent) for development of its land at Sandon Point. The proposed residential development generated significant controversy. Part of the controversy concerned various consents under ss 87 and 90 of the NPW Act to destroy and salvage Aboriginal objects from parts of Sandon Point affected by the residential development.

22 In June 2001, a draft report was prepared for the National Parks and Wildlife Service with respect to a request that the Service investigate the declaration of land at Sandon Point as an Aboriginal place under s 84 of the NPW Act. The draft report was apparently prepared by Ms Alison Nightingale, and is sometimes referred to as the Nightingale report. The draft report recorded that it had been prepared to investigate the significance of Sandon Point Aboriginal Culture and to consider whether an Aboriginal place declaration was warranted. The draft report included sections on tribal and language boundaries (s 3.1), ethnographic and historical observation (s 3.2), the archaeological context (s 4), the Sandon Point site and previous archaeological investigations (s 5), the discovery of human remains at McCauley’s Beach in March 1998 and the reburial of those remains (s 5.3), the background to the second respondent’s proposed residential development (s 5.4), the Aboriginal cultural significance of Sandon Point (s 6), and a discussion of the relevant issues (s 7).

23 On or about 25 October 2001, the second respondent lodged two applications for consent to destroy Aboriginal objects on land described generally as Sandon Point stage 1 and Sandon Point stages 2-6. The application was directed to the attention of “Ms Kathryn Przywolnik”, an officer of the National Parks and Wildlife Service. The application was supported by a report from Navin Officer, Heritage Consultants, dated October 2001 “Sandon Point Residential Subdivision Stages 2-6 Development Area, Bulli, North of Wollongong, NSW –Archaeological Sub-surface Testing Program and Aboriginal consultation” and a summary report by Navin Officer of the same date “Sandon Point Stages 1-6 Development Area – Results of Archaeological Testing and Aboriginal Consultation to Date – Summary Report”.

24 According to a report signed by Dr Przywolnik (which identified Dr Przywolnik as an archaeologist within the National Parks and Wildlife Service’s Central Aboriginal Heritage Unit), dated 30 January 2002, the Aboriginal community considered the area the subject of the applications for consent to destroy to be of “very high cultural significance”.

WHEREAS the Aboriginal relics described in Schedule “A” are situated upon the land described in S chedule “B” , and which constitute relics within the meaning of Section 90 of the National Parks and Wildlife Act 1974, and WHEREAS application has been made by:

Nicholas Duncan, manager residential estates

of (address in full)

Stockland (Constructions) Pty Ltd, Level 16, 157 Liverpool Street, Sydney NSW 1041

FOR CONSENT to destroy those relics in the course of:

Stage 1 Sandon Point, North Wollongong

NOW I, Brian Gilligan, Director-General of National Parks and Wildlife, in pursuance of Section 90 of the said Act, and subject to the Conditions hereunder set out DO HEREBY CONSENT to the destruction of the said relics by the said applicant.

26 “Relics” was a defined term at the time, generally to the same effect as the present definition of “Aboriginal object”.

27 Schedule A to consent 1288 referred to “Sandon Point Stage 1 … being a sub-surface artefact scatter (NPWS Site # 52-2-2142)”. Schedule B said “Sandon Point Stage 1 is located on a broad ridgeline extending east from the Sandon Point headland (refer attached map)”. The special terms and conditions of consent 1288 referred to the establishment of a voluntary conservation agreement involving the establishment of a plan of management “to look at … the establishment of a Keeping Place for the artefacts collected before and during development” (condition 2). Conditions 3 and 4 provided for a “community collection” to take place, with “all Aboriginal groups to be invited to participate”. The artefacts collected from the community collection exercise were required to be “stored at a mutually agreed upon and accessible place in the local area until a Keeping Place is established”.

28 Consent 1289 was in the same terms as consent 1288 other than that the consent was described as a consent to destroy relics in the course of “Stages 2-6 Sandon Point, North Wollongong”. Schedule A to consent 1289 referred to “part of Sandon Points stage 2 … being a sub-surface artefact scatter (NPWS Site # 52-2-2143)”. Schedule B to consent 1289 said “Sandon Point Stage 2 is located on a broad ridgeline extending east from the Sandon Point headland (refer attached map)”. Consent 1289 contained conditions similar to those in consent 1288, other than that condition 3 specified that the scope of works for the required salvage component of the consent was to be carried out in accordance with the methodology set out in the research design provided by Navin Officer, dated 19 October 2001.

29 On or about 11 July 2002, the second respondent lodged a further application for consent to destroy Aboriginal objects under s 90 of the NPW Act. That further application noted that it was intended the additional consent would operate in conjunction with the previous consents and “allow for all works required by the development that are not covered under consents # 1288 and # 1289”. On 30 August 2002, Navin Officer provided to the Service additional information with respect to this further application including a report dated August 2002, “Sandon Point Residential Subdivision Stages 2-6 Development Area, Bulli, North of Wollongong, NSW – Analysis of Surface Collected and Excavated Aboriginal Artefactual Material”. That report presented information on 1170 Aboriginal stone artefacts recovered from Sandon Point as part of a surface collection salvage operation, and a detailed technological analysis of 673 complete artefacts made up from the salvage collection and previously excavated assemblages. Dr Przywolnik co-signed a report in relation to this further application which, amongst other things, identified that requested additional information had been received on 30 August 2002, including the additional salvage information.

WHEREAS the Aboriginal objects described in Schedule “A” are situated upon the land described in Schedule “B” , and constitute Aboriginal object within the meaning of Section 90 of the National Parks and Wildlife Act 1974, and WHEREAS application has been made by:

Nicholas Duncan, Manager Residential Estates - NSW

of (address in full):

Stockland (Constructors) Pty Ltd,
GPO Box 998
Sydney NSW 1041

FOR CONSENT to destroy those Aboriginal objects in the course of:

Proposed subdivision and construction of related storm water, drainage and services infrastructure works Stages 2–6, Sandon Point, (refer attached Map 1)

NOW I, Brian Gilligan, Director-General of National Parks and Wildlife, in pursuance of Section 90 of the said Act, and subject to the conditions hereunder set out DO HEREBY CONSENT to the destruction of the said Aboriginal objects by the said applicant. AND FURTHER, in accordance with the said Conditions and in pursuance of Section 87 of the said Act, I DO HEREBY PERMIT the salvage collection and/or excavation of the said Aboriginal objects from the aforesaid land, prior to destruction of the Aboriginal objects, by Navin Officer, Heritage Consultants.

31 Schedule A to consent 1427 referred to “Sandon Point Stage 2 (NPWS # 52-2-2143), being an open artefact scatter with sub-surface archaeological deposits”. Schedule B said “Sandon Point Stage 2 (# 52-2-2143) is located on a broad ridgeline extending west of the Sandon Point headland, with approximate grid reference of AGM 308770-6199460 (Wollongong 1:25,000). Refer attached Map 1”. Condition 3 of consent 1427 provided that the archaeological salvage of Sandon Point Stage 2 was to be undertaken in accordance with the methodology outlined in a document prepared by Navin Officer dated 30 August 2002, and additional documentation from Navin Officer of 11 September 2002.

32 Consents 1288, 1289 and 1427 operated to permit the knowing destruction of Aboriginal objects within the Aboriginal sites identified in Schedule “A” of the consents for a period of two years.

33 One aspect of the controversy generated by consent 1427 was a requirement to revise the methodology for salvage because of ground disturbance prior to the consent being issued. In correspondence dated 25 October 2002, the National Parks and Wildlife Service noted to the second respondent that the surface of lot 235 had been disturbed absent a permit under the NPW Act. The revised methodology was approved on 2 December 2002.

Archaeological investigations have revealed that the development area contained an enormous archaeological site, containing several million artefact fragments. Such sites are extremely rare along the Australian coast and even if the context of these artefacts was heavily disturbed this represents an assemblage of unusual and valuable qualities. The statements by Navin Officer do not give adequate acknowledgement to the size and potential of such an assemblage.
Multiple processes disturb the site but the archaeological investigations should be considered inconclusive as to the extent and intensity of disturbance processes or the degree of information that remains in the assemblage. The conclusion that little or no information about prehistoric activities remains is not justified on the evidence presented.
The archaeological investigations have provided a useful initial characterization of the site but are not extensive or detailed enough to develop final statements of scientific significance.
The preliminary judgment of the archaeological material contained within Stages 1-6 underestimates the likely potential of such an immense and complex assemblage. It remains possible, even likely, that this site should be considered of national importance for questions of ancient technology and economy.

35 Dr Przywolnik reviewed Dr Hiscock’s report, (I infer) shortly after it was received. Dr Przywolnik concluded that there were “major weaknesses in Hiscock’s argument, which seriously undermine[d] the validity of his conclusions”. Dr Przywolnik said that Dr Hiscock’s report did not provide any new information that supported a reconsideration of either of the consents which had been issued under s 90 for Sandon Point stages 1-6 or the archaeological salvage methodology for consent 1427. Dr Przywolnik’s report contained a number of references, including the reports of Navin Officer dated June 2001, August 2001, October 2001 and August 2002. Dr Przywolnik also recommended that Navin Officer be given an opportunity to comment on Dr Hiscock’s report. Navin Officer provided a response to Dr Hiscock’s report on 15 October 2002 which concluded that they “stand by their analysis and conclusions regarding the adequacy of the sampling strategies, the disturbed nature of the Sandon Point site and the appropriateness of the significance assessment”.

36 On 11 December 2002, pursuant to s 119(2) of the EPA Act, the Minister for Planning constituted a Commission of Inquiry to make recommendations on preferred land uses, planning outcomes and management options for certain land at Sandon Point. The land the subject of the Commission of Inquiry may be described as land generally to the north of the residential development comprised in stages 1-6, although overlap between that land and the land within Sandon Point stages 1 to 6 was one of the issues raised by the applicant in these proceedings.

All areas that may be impacted through development, including riparian, drainage, pathways and other infrastructure should be included in further archaeological investigations.

38 The “Therin report” (I infer) was a draft of the report commissioned by Wollongong City Council in 2002, the final version of which formed part of the applicant’s claim that the Director-General, in deciding to grant consent 2130, failed to have regard to relevant matters.

(1) Section 3 contained the documented Aboriginal history.

(2) Section 4 contained the results of consultation with the six main Aboriginal organisations within the Illawarra Aboriginal community (the Wodi Wodi Elders Corporation, the Korewal Elouera Jerrungerah Tribal Elders Aboriginal Corporation, the Wadi Wadi Coomaditchie Aboriginal Corporation, the Coomaditchie United Aboriginal Corporation, the Sandon Point Aboriginal Tent Embassy and the Illawarra Local Aboriginal Land Council.

(3) Section 6 dealt with various aspects of significance. In s 6.1, Mr Therin recorded that the archaeological significance assessment of Aboriginal heritage is a subjective exercise, and that significance differed between archaeologists “based somewhat on the archaeologist’s personal research agendas, perspective of the landscape and knowledge of the archaeology of the region”.

(4) Mr Therin identified Aboriginal social significance as the significance of an area or site to the contemporary Aboriginal community of the area. Mr Therin observed that, in terms of the study area, none of the interviewees “provided specific spiritual stories, dreaming stories, about the study area, and that the spiritual association, as expressed by Allan Carriage, Reuben Brown, Geoff Simpson, Roy Kennedy and Joyce Donovan, was best summarised as a “spiritual and cultural link to the Illawarra area in general which includes the study area”.

40 In 2003, Navin Officer prepared a further report which appears to have been issued at different times and with different headings. Dr Susan McIntyre-Tamwoy (archaeologist), who gave evidence in the proceedings, identified that the report described as “Sandon Point Residential Subdivision Stages 1-6 and Lot 2335 [sic], North of Wollongong, NSW Archaeological Salvage Program report to Stockland Constructors” was also known as report “Sandon Point Residential Subdivision Bulli, NSW, Water Quality Ponds and Lot 235 – Archaeological Salvage Program” (dated both August and December 2003). This report recorded that salvage operations had been conducted at Sandon Point between October and December 2002 in two main areas pursuant to consent 1427. The analysis recorded that there were 2740 recovered artefacts in total (fragments and complete). I refer to this report as the Navin Officer 2003 report.

A small portion of land in the south-west corner of the CoI area, approved as part of the Stocklands stages 2-6 area, has been included in the CoI area. The CoI area follows the original boundary between the 2(a) and 2(b) zones in this location. The land comprises an approved public road and three approved adjoining residential lots.

42 The land otherwise included within the Commission of Inquiry area was identified in the report as to the north of stages 2-6 including land owned by the second respondent and an entity known as Cookson Plibrico.

43 In February 2004, the second respondent and Dr McIntyre-Tamwoy issued a draft report to the National Parks and Wildlife Service “Sandon Point Stages 1-6 Report to Support the Consent to Destroy Aboriginal Objects Determination for Individual Land Owners”. This report apparently related to individual residential lots within the overall subdivision which had been sold. The report included a schedule of information with respect to Sandon Point held by the Department of Environment and Conservation within its Aboriginal heritage information management system. The report so identified included the two 2001 reports of Navin Officer and the Navin Officer 2003 report. The February 2004 report recorded that work carried out pursuant to consent 1427 was subject to archaeological salvage and that, altogether, 1660 artefacts were salvaged pursuant to consent 1427.

44 On 27 August 2004, development consent was granted by this Court in class 1 of its jurisdiction to a development application for an integrated housing development on stage 5A of the Sandon Point residential subdivision. The development consent was granted subject to conditions, which required a noise attenuation wall to be constructed 5 metres inside the boundary of lot 2 in DP 224431 being land vested in Cookson Plibrico Pty Limited.

45 On 18 October 2004, the second respondent forwarded correspondence to the National Parks and Wildlife Service (Attention: “Lou Ewins”) confirming that a further application would be lodged to encompass the consents which had expired – namely consents 1288, 1289 and 1427 to enable completion of the development activities previously proposed. The letter recorded that, in the view of the Department of Environment and Conservation, further consultation was required prior to the new s 90 application being lodged. The second respondent confirmed that, despite legal advice it had received to the contrary, it would continue to consult regarding the new application.

Documentation, details and outcomes of consultation with the representative Aboriginal community groups regarding the proposed s 90 application and the nature and scope of the development works to be undertaken, and any reasonable concerns and comments regarding the application.
Documentation, details and outcomes regarding the resolution of the outstanding consent conditions of the previously issued s 90 consent for the proposed works, consents #1288, #1289 and #1427. Specifically, this regards the progression of the Voluntary Conservation Agreement for the proposed conservation lands, and the resolution of the long-term management of the collected Aboriginal objects from the Sandon Point area.
A succinct summary of the proposed works and activities to be covered by the s 90 application, which is understood to be outstanding works associated with previously issued development approval.
A map that clearly and accurately indicates the area for which s 90 consent is being sought.
Clarification of what Aboriginal sites will be included in the s 90 application. The Draft document provides conflicting information as to whether the application is applicable to both #52-2-2142 and #52-2-2143.
…

47 Ms Ewins’ letter also emphasised that in consulting with the relevant Aboriginal community groups on the current application, it would be prudent to discuss with them their preferred options for a “Keeping Place” for any artefacts collected at Sandon Point.

48 On 29 November 2004, the second respondent lodged an application for consent under s 90 of the NPW Act. The application was lodged with the Director-General of the Department of the Environment and Conservation, to the attention of Dr Przywolnik. The covering letter to the application explained that the further consent was necessary “to complete works in the same areas that were covered by former consent #1288, #1289 and #1427”, and that some additional works were also applied for as detailed in the application. Amongst other things, the application letter identified that the works now included the construction of noise attenuation walls between the “Cookson’s factory” and the second respondent’s site, which would be constructed inside the boundary of the former. In another letter of the same date (but received on 7 December 2004), the second respondent provided additional information in support of its application. This letter was addressed to Ms Ewins. The letter confirmed that the application was accompanied by a summary of consultation in regard to the application and confirmed that consent was sought with respect to sites 52-2-2142 and 52-2-2143, rather than merely site 52-2-2143. The further letter enclosed a replacement page to be included in the application identifying the “NPWS site numbers” as 52-2-2142 and 52-2-2143.

49 One of the attachments to the application was a summary of consultation carried out by the second respondent (through its agent, Dr McIntyre-Tamwoy). The summary explained that a letter had been forwarded by Dr McIntyre-Tamwoy to the Korewal Elouera Jerrungerah Tribal Elders Aboriginal Corporation (care of Mr Reuben Brown), the Sandon Point Aboriginal Tent Embassy (care of Mr Roy Kennedy, the applicant) at three addresses, the Wadi Wadi Coomaditchie Aboriginal Corporation (care of Mr Allan Carriage at two addresses), the Illawarra Local Aboriginal Land Council (Mr Basil Smith, chairperson) and the Wodi Wodi Tribal Elders Group (Mr Jim Davis, spokesperson). The summary noted that one letter addressed to Mr Kennedy was returned to sender, but the other two letters were not returned and were presumed to have reached Mr Kennedy. Mr Davis of the Wodi Wodi Elders Group sent back a response form saying that he had no objection to the issuing of the consent. A solicitor telephoned on behalf of Mr Allan Carriage and sought further information including in relation to the sound attenuation walls on the Cookson site. As a consequence of a further telephone call with the solicitor for Mr Carriage, Dr McIntyre-Tamwoy issued a second letter clarifying the nature of the works and how they related to the previous consents. This letter of clarification was also forwarded to the Korewal Elouera Jerrungerah Tribal Elders Aboriginal Corporation, the Wodi Wodi Tribal Elders and Mr Kennedy (at the two addresses where the first letter had not been returned to sender). Mr Basil Smith of the Illawarra Local Aboriginal Land Council said in a telephone conversation that he was not intending to respond given that the consents had previously been issued and were undertaken. Otherwise, no responses had been received to the notification letters.

50 An item in the application form said “Outline any proposals for detailed recording or salvage work, provide research design with methodology. (Include details of work already done – provide separate attachment if necessary).” The response to this item was “No further Investigations will be undertaken. No further salvage work is proposed. Previously undertaken see attached list of reports and attached summary for more details”. The summary attached identified the following reports (amongst others) – the report of Michael Therin dated 2003 and the Navin Officer archaeological salvage program report dated 2003.

51 The application also included a copy of the decision of the Land and Environment Court of 27 August 2004 granting development consent to the integrated housing development containing 18 dwellings on 18 residential lots and one community lot within stage 5A of the second respondent’s residential subdivision at Sandon Point, including the conditions of that consent (which required the erection of the acoustic wall on the Cookson site). The plans accompanying the application included plan 1 (application area) showing an area outlined in heavy black. The area outlined in heavy black included a 5 metre strip within lot 2 in DP 224431 (the Cookson site), as well as lot 235 in DP 1048602, lot 235, 238 and 239 in DP 1048602, and land within DP 1048611, DP 1048610, DP 1048603, DP 1048605 and DP 285763. The application included plan 2 showing the lot and DP numbers, and plan 3 showing the location of the “residential riparian and noise area” (hatched) and the “18 houses work area” (outlined heavy black).

52 On 14 February 2005, the second respondent (via Gerald Ward) forwarded an email to Dr Przywolnik and Ms Ewins. Amongst other things the letter referred to an on-site meeting with Mr Kennedy and Mr Carriage on 31 January 2005 with respect to other s 90 consents 2079 and 2081 relating to lots 227 and 214. The email also referred to the “Keeping Place issue” having been discussed with both Mr Carriage and Mr Kennedy and that a letter would be issued the following week”. Mr Ward sent a further facsimile to Dr Przywolnik and Ms Ewins on 15 February 2005 enclosing certain attachments which had been omitted from his earlier email, being letters relating to the Keeping Place and voluntary conservation agreement.

The archaeological investigations recovered 991 stone artefacts, and the consultants concluded that the archaeological deposits existing in the study area were highly disturbed, and had limited archaeological research potential.

Following that issue on this consent, a submission was received in NPWS on 1 October 2002 which included a report prepared for Allan Carriage and the Sandon Point Aboriginal Tent Embassy (SPATE) by Peter Hiscock of the School of Archaeology and Anthropology at the Australian National University. This report was received in CAHU one day after consent #1427 (consent to destroy with permit to salvage) was issued.

While Hiscock has criticised Navin Officer for “underestimating” the importance, this report is considered to “overestimate” the importance and provides no comparative data to support the claim. Hiscock’s report provides no recommendations or suggestions for future direction in the management of the site or Sandon Point area. At such, the report is of limited value in the Aboriginal heritage assessment for Sandon Point, and did not prompt any reconsideration of the decisions made to date. The report “appraisal of archaeological studies at Sandon Point, New South Wales, by Hiscock does not provide any new information that supports a reconsideration of either the current s 90’s that has been issued for Sandon Point stages 1-6 … or the archaeological salvage methodology for consent #1427.

This application has been submitted to cover the outstanding activities associated with the subdivision works which were not completed within the two year period of validity of the previous three s 90 consents. Following the subdivision activity by Stockland (as conditioned by s 90s #1288, #1289 and #1427), Aboriginal objects are still located and within the Stages 1 to 6 area, albeit relocated, redeposited and in a highly disturbed context. Notwithstanding the level of disturbance and the fact that s 90 consent has previously been granted for the same land parcel, s 90 consent is required under the existing legislation prior to disturbing Aboriginal object.

Given that the Stages 1 to 6 area has already been subject to considerable archaeological assessment, excavation, salvage and collection, there has been no further requirement for archaeological assessment for this application. Similarly, the Stages 1 to 6 area has been the subject of multiple rounds of consultation with the representative Aboriginal community groups.

Aboriginal sites #52-2-2142 and #52-2-2143 are medium to high density open artefact scatters with subsurface archaeological deposit. Results of the excavation program indicate that artefact densities tend to be higher closer to Tramway Creek and drop to lower levels on the higher slopes.

That s 90 consent be granted to Stockland Development Pty Ltd for Aboriginal sites “Sandon Point Stage 1” (#52-2-2142) and “Sandon Point Stage 2” (#52-2-2143), for proposed ancillary works associated with the residential subdivision Stages 1 to 6, Sandon Point.

59 A second document was contained in the second respondent’s files, prepared by Victor Zander, identified as the Acting Aboriginal Heritage Planning Officer, Conservation Planning Unit. That document was headed “Review of Aboriginal Consultation for s 90 Application #2130”. Mr Zander’s review contained a short background section about previous consultation with Aboriginal people regarding the cultural significance “of the Stockland development site”, as well as a summary of aspects of the results of previous consultation relevant to the current s 90 application. Part of that summary identified that the applicant, Mr Kennedy, had stated that a voluntary conservation agreement had not been progressed “in the Sandon Point matter” and that a “comprehensive Aboriginal heritage study should occur on stages 1-6 on the western half of the site as this was never adequately done”. Mr Zander’s review also recorded the results of consultation for the previous consents to the effect that that no Aboriginal heritage assessment had been undertaken and the Sandon Point Aboriginal place investigation report had not been completed (which I infer to be a reference to the draft report prepared by Ms Alison Nightingale referred to above). It also recorded a comment that “the Professor Hiscock report has been discounted”.

Stockland have undertaken consultation with the Aboriginal community groups with an interest in the area (those listed in Schedule C of this consent document). Letters were sent to each group outlining the purpose and scope of the s 90 application, and follow-up telephone calls were made. Responses to the s 90 application consultation were:

Wodi Wodi Elders Council provided a letter stating their support of the s 90 application;
Illawarra Local Aboriginal Land Council provided verbal advice that they don’t see the relevance of providing comment on a s 90 application for lands that have already been had [sic] s 90 consent issued, and where work has commenced;
Korewal Elouera Jerrungerah have not responded, and have since provided verbal advice that they are no longer interested in participating in any further consultation regarding this issue;
Sandon Point Aboriginal Tent Embassy have not responded; and
Wadi Wadi Coomaditchie have not provided a response, and Kathy Ridge, the solicitor acting for Allan Carriage has requested further information regarding the nature and scope of the proposed works, which was subsequently provided by Stockland.

61 Mr Zander recommended that consent be granted to the second respondent under s 90 in response to application 2130.

… by Nicholas Duncan (Stockland Development Pty Ltd) for Aboriginal sites “Sandon Point Stage 1” (#52-2-2142) and “Sandon Point Stage 2” (#52-2-2143), for proposed ancillary works associated with the residential subdivision Stages 1 to 6, Sandon Point.

63 Ms Ewins’ document, in a section headed “Background to s 90’s #1288 and #1289 issued to Stockland Constructors Pty Ltd” referred to the Navin Officer archaeological investigation in 1992, the development application lodged by Stockland Constructors with Wollongong City Council in 2000, the proceedings in the Land and Environment Court between Stocklands Constructors and Wollongong City Council and a direction that the Court made for further archaeological investigation. The document also referred to an archaeological excavation program of the stages 1-6 area undertaken in July and August 2001, and that following preparation of reports detailing the archaeological investigation and results, Stockland applied for two s 90 consents in October 2001 which were issued as consents 1288 and 1289 on 30 January 2002.

64 In a section headed “Background to s 90 #1247 issued to Stockland Constructors Pty Ltd”, Ms Ewins’ document referred to a request which Stocklands had made to amend the s 90 consent applying to stages 2-6 so as to include a section of land to the north and north-west, which was not able to be done. Further, that a new application had been received in July 2002, and further information to support that application had been requested and provided on 30 August 2002. Following review, s 90 consent 1427 was issued on 30 September 2002.

This s 90 application has been submitted for an area that is wholly within the areas for which s 90 Consents #1288, #1289 and #1427 were issued (area referred to above).

This application has been submitted to cover the outstanding activities associated with the subdivision works which were not completed within the two year period of validity of the previous three s 90 consents. Following the subdivision activity by Stockland (as conditioned by s 90s #1288, #1289 and #1427), Aboriginal objects are still located and within the Stages 1 to 6 area, albeit relocated, redeposited and in a highly disturbed context. Notwithstanding the level of disturbance and the fact that s 90 consent has previously been granted for the same land parcel, s 90 consent is required under the existing legislation prior to disturbing Aboriginal object.

Given that the Stages 1 to 6 area has already been subject to considerable archaeological assessment, excavation, salvage and collection, there has been no further requirement for archaeological assessment for this application. Similarly, the Stages 1 to 6 area has been the subject of multiple rounds of consultation with the representative Aboriginal community groups.

…

In addition to the material considered in the granting of the previous s 90 Consents for Sandon Point I have also considered the following: -

issues raised in previously provided submissions (Kennedy, Simpson and Carriage) on the Aboriginal cultural heritage values and archaeological values of Stages 1 to 6, and regarding a comprehensive Aboriginal Heritage Study not having been completed. I note there have been substantial consultation and reporting including the consultation and assessments undertaken as part of previously granted s 90 consents, Therin Report commissioned by Council, independent facilitation process undertaken by Rick Farley, the Commission of Inquiry (COI) and briefing undertaken by DEC officers. Further DEC fully supports the COI recommendation for further comprehensive study for the lands subject to the COI at Sandon Point.

issues relating to the Sandon Point burial. …

issues raised regarding the draft Aboriginal Place Investigation Report. I note that the DEC is still awaiting information from knowledge holders to allow for the investigation to be completed. Until this information is provided, which includes the boundary of the proposed place, the Report can not be finalised.

issues raised in regards to the Hiscock Report. I note the Report provides an evaluation of archaeological investigations (essentially scientific assessment) and does not provide a cultural assessment involving the evaluation or discussion of cultural significance (eg does not contain oral histories involving attachments and or associations held by the Aboriginal community).

issues raised in response to recent round of consultations, whereby the DEC requested comment on the draft conditions for this s 90 application from the relevant Aboriginal community groups and Stockland. Written responses were received from Allan Carriage (Wadi Wadi Coomaditchi Aboriginal Corporation), Geoff Simpson (Northern Illawarra Aboriginal Cooperative) and Jim Davis (Wodi Wodi Elders Corporation), and Stockland Pty Ltd. I note that no new additional information was provided which indicates new or additional evidence of significance.

That s 90 consent be granted to Nicholas Duncan for Aboriginal sites “Sandon Point Stage 1” (#52-2-2142) and “Sandon Point Stage 2” (#52-2-2143), for proposed ancillary works associated with the residential subdivision Stages 1 to 6, Sandon Point.

WHEREAS the Aboriginal objects described in Schedule “A” are situated upon the land described in Schedule “B” , and which constitute Aboriginal objects within the meaning of Section 90 of the National Parks and Wildlife Act 1974, and WHEREAS application has been made by:

Stockland Development Pty Ltd
GPO Box 998
Sydney NSW 2000

FOR CONSENT to destroy those Aboriginal objects in the course of:

Proposed ancillary works, including landscaping, signage, riparian and infrastructural works, for the residential subdivision Stages 1 to 6, Sandon Point

NOW I, Lisa Corbyn, Director-General of the Department of Environment and Conservation, in pursuance of Section 90 of the said Act, and subject to the Conditions hereunder set out DO HEREBY CONSENT to the destruction of the said Aboriginal objects by Stockland Development Pty Ltd.

SCHEDULE A:
For Aboriginal site “Sandon Point Stage 1” (#52-2-2142), being an open artefact scatter with associated subsurface archaeological deposit.
For Aboriginal site “Sandon Point Stage 2” (#52-2-2143), being an open artefact scatter with associated subsurface archaeological deposit.

SCHEDULE B:
“Sandon Point Stage 1” is located with an approximate grid reference of AGM 308910-6199190 (Bulli 1:25 000). Refer attached map.
“Sandon Point Stage 2” is located with an approximate grid reference of AGM 308650-6199460 (Bulli 1:25 000). Refer attached map.

SCHEDULE C:
Illawarra Local Aboriginal Land Council
37/39 Princes Highway
Dapto NSW 2530
Contact: Basil Smith

Korewal Elouera Jerrungerah Tribal Elders Aboriginal Corporation
PO Box 94
Berkeley NSW 2506
Contact: Reuben Brown

Sandon Point Aboriginal Tent Embassy
PO Box 314
Thirroul NSW 2515
Contact: Roy Kennedy

Wadi Wadi Coomaditchi Aboriginal Corporation

c/o Shaw Reynolds Lawyers
Suite 24 Jones Bay Wharf
19-21 Pirrama Road
Pyrmont Point NSW 2009
Contact: Allan Carriage

Wodi Wodi Elders Council

484 Northcliffe Drive

Berkeley NSW 2506

Contact: Jim Davis

2 The Aboriginal Keeping Place must be operative within twelve months of the issuing of this consent, and the keeping Place must be made available for any Aboriginal objects collected or salvaged from the area of Sandon Point Stages 1 to 6.

3 The form and location of the Aboriginal Keeping Place and a plan for its management must be negotiated with the Aboriginal community groups listed in Schedule C.

71 Three plans are attached to the consent, being the same three plans as attached to the application lodged by the second respondent.

Evidence

72 The applicant, Mr Kennedy, and Mr Allan Carriage gave evidence in the proceedings. The applicant also read affidavits of Mr Tony Stephenson and Mr Alex Peterson. Ms Ewins gave evidence, as did Dr McIntyre-Tamwoy.

73 I granted the applicant leave to amend its final further amended points of claim (including, with the consent of the respondents, during the applicant’s closing submissions) to ensure that it accurately reflected the arguments ultimately pressed by the applicant. I propose to deal with the evidence below, insofar as relevant to the issues raised in the applicant’s final further amended points of claim. I have caused a copy of that document to be identified as such and maintained on the Court’s file

Is consent 2130 uncertain?

Genkem Pty Ltd v Environment Protection Authority

King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another

Cann’s Proprietary Limited v The Commonwealth and Another

The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a Court of construction, authorise a conclusion that an order … is ultra vires or otherwise void.

Country Energy v Williams and Others

The Director-General’s expression of consent is of no legal consequence unless or until a person is charged with an offence under s 90(1) and there arises a question whether that person had first obtained the Director-General’s consent to the destruction of the Aboriginal object the subject of the charge. The question is then whether the consent is a consent for the purposes of s 90(1). In a sense there is a question of power, but in relation to “generic” consent, it is more correctly whether the consent as expressed is in terms which will exculpate the person.

There is nothing in the words of s 90 limiting a consent to destruction of Aboriginal objects known to exist, and the Act would be unworkable if that limitation were read into it.

77 The applicant’s contention that consent 2130 is uncertain and thereby invalid is misconceived.

78 The first ground (the “blanket authority” ground) pre-supposes a particular construction of consent 2130. Section 90(1) creates an offence. The offence, relevantly, is knowingly to destroy an Aboriginal object without first obtaining the consent of the Director-General. Consent 2130 authorises the second respondent knowingly to destroy the Aboriginal objects described in Schedule A. The consent makes plain that it enables the consent holder to destroy “those Aboriginal objects” and the “said Aboriginal objects”, which are references to those Aboriginal objects described in Schedule A. As such, I do not accept that consent 2130 provides a “blanket authority allowing destruction of all Aboriginal objects on the land” described in Schedule B. The consent, on its face, is not so widely expressed. Specific conditions 1 and 2, moreover, reinforce this conclusion.

79 I do not consider that consent 2130 would be uncertain and necessarily invalid even if (contrary to my construction) it did constitute a consent to destroy all Aboriginal objects on the land in Schedule B. Such a consent, as identified by Basten JA in Country Energy at [52], may be able to be challenged on some ground for error of law but not, in my view, uncertainty. Any such challenge would have to contend with the further observation of Basten JA in Country Energy at [58] and [59] that s 90 empowers the Director-General to grant a consent to the destruction of Aboriginal objects which have not been identified at the date of consent.

80 The second ground (consent 2130 does not include specific detail of the work authorised by the consent) pre-supposes a particular construction of s 90 of the NPW Act. However, there is no requirement in s 90(1) that a consent include specific detail of the work authorised by the consent. Moreover, the action authorised by the consent is not “work” but, rather, the knowing destruction of the Aboriginal objects described in Schedule A. Authority to carry out “work” is not (relevantly) referable to s 90 of the NPW Act, but to other Acts (such as the EPA Act). As such, I do not accept that consent 2130 was required to identify specific detail of the work authorised by the consent in order to constitute a valid exercise of the power conferred by s 90(1). In any event, consent 2130 does identify the proposed work as “proposed ancillary works, including landscaping, signage, riparian and infrastructural works, for the residential subdivision Stages 1-6, Sandon Point” which is a reasonably clear description of the work, in the course of which, it was contemplated that Aboriginal objects would be destroyed.

81 The third ground (consent 2130 does not provide specific details of where the work will take place on the land), also pre-supposes a particular construction of s 90 of the NPW Act. However, there is no requirement in s 90(1) that a consent include specific details of where the work will take place on the land. Section 90 requires that the consent identify the Aboriginal objects authorised to be destroyed (by some means or another). That requirement, as held in Country Energy , may be fulfilled without necessarily knowing of the existence of the particular Aboriginal objects to be destroyed. In this case, consent 2130 identified the Aboriginal objects authorised to be destroyed – those Aboriginal objects described in Schedule A. Nothing in s 90 required consent 2130 to identify specific details of where the work will take place on the land.

82 The fourth ground (consent 2130 does not provide specific detail of how the work will impact on Aboriginal objects), equally, cannot be sustained in the face of s 90. Nothing in that section required consent 2130 to provide specific detail of how the work will impact on Aboriginal objects. For the Aboriginal objects described in Schedule A, moreover, the impact is clear – the consent authorises their destruction.

83 Although not specifically pleaded, the applicant mentioned in submissions, in the context of the claimed uncertainty, the difference between the reference to one Aboriginal site in the application and two Aboriginal sites in consent 2130, and some alleged uncertainty about the land to which the consent applied. Insofar as it might be necessary for me to address these matters, I do not accept either contention. Consent 2130, on its face, is a consent to destroy Aboriginal objects described in Schedule A, which schedule referred to two Aboriginal sites. Although the original application identified one Aboriginal site only, the application was supplemented by subsequent information and a replacement page specifying that the application related to Aboriginal objects within the two Aboriginal sites which appear in Schedule A. The land to which consent 2130 applies is also clear, being the land outlined in heavy black on plan 1 attached to the consent. That is the land within which, I infer, the sites described in Schedule A are located (and the applicant did not adduce any evidence which persuaded me to the contrary).

84 For these reasons, I do not accept the applicant’s challenge to the validity of consent 2130 based on uncertainty.

Procedural fairness and legitimate expectations

85 In Country Energy , Basten JA identified that the argument that the applicant in that matter was not accorded procedural fairness involved steps which needed to be identified with some care (at [72]). These steps were: - (i) identification of the person responsible for according procedural fairness, (ii) identification of the nature of the obligation and, in particular, whether the obligation extended specifically to consultation with the applicant and, if so, what level of consultation was required, and (iii) the legal basis of the obligation in question (which might be from the statute, expressly or by implication, from a public statement or practice adopted by the decision-maker or from an express promise made to or arrangement with the person affected) (at [73] – [74]). At [75], Basten JA put to one side the statute on the basis that it was not suggested that there was any express or implied statutory requirement to consult with the applicant in the NPW Act.

86 As in Country Energy (at [75]) I may put the NPW Act to one side. Nothing in the Act required consultation with the applicant. There was no evidence before me sufficient to found any claim of an express promise made to, or arrangement with, the applicant. Moreover, in the final further amended points of claim, it is clear that the applicant did not allege any such promise or arrangement. As such, the only potential basis of any obligation is a public statement or practice adopted by the decision-maker.

87 The debate between the parties as to whether the applicant was or was not aware of the various policy statements of the first respondent (identified in the final further amended points of claim) was beside the point. Where the claim is founded on a policy and practice, an applicant need not establish subjective reliance on the policy or practice ( Country Energy at [91], citing Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1).

88 The three documents identified by the applicant were “Cultural Heritage Information Policy” dated October 2001, “Cultural Heritage Community Consultation Policy” dated January 2002 and “Statement of Reconciliation” undated. Contrary to the submissions of the first respondent, I am satisfied that the three documents identified by the applicant were documents of the first respondent. The provenance of all the documents is apparent from the face of the documents. Moreover, two of the documents (not the Statement of Reconciliation) were attached to a letter dated 19 February 2004 from the Director-General to Mr Carriage as the “principles and protocols that guide the Department’s consultation with Aboriginal community groups, and also the handling of information provided by communities…”.

89 I am not satisfied that the document “Cultural Heritage Information Policy” dated October 2001 or the document “Cultural Heritage Community Consultation Policy” dated January 2002 remained in force during the period when the application for consent 2130 was lodged and consent 2130 granted. I infer from Ms Ewins’ evidence that the “Statement of Reconciliation” remained extant during this period. Be that as it may, I am also not satisfied that notice was given to persons, including the applicant, of any change of policy (see Country Energy at [98]). Accordingly, it is appropriate that I consider this aspect of the applicant’s claim on the basis that the three documents were capable of being the source of an obligation of the first respondent to the applicant, albeit subject to the caveat expressed in Country Energy at [93], that there “is a danger in viewing a broad statement of principle through the glasses of particular known circumstances, so that an assumption is made that the Policy was intended to apply in these circumstances and, with the knowledge of the particular circumstances, in a particular way”.

90 I am also satisfied that the contents of the three documents must be considered in the context of Ms Ewins’ evidence that the policies and practices of the Department of Environment and Conservation with respect to consultation about s 90 applications, in fact, were generally implemented through the actions of applicants for s 90 consents and their consultants (and not the Department directly), which evidence I accept.

(1) The October 2001 document does not contain any statement relied on by the applicant in these proceedings about consultation in respect of s 90 applications. The document, rather, is concerned with obtaining, storing and using cultural heritage information.

(2) The January 2002 document states in its introduction that it contains principles and protocols “developed to guide NPWS staff and the consultants/contractors it employs in planning and conducting consultation with communities on cultural heritage issues”. The policy statement is that the “NPWS will endeavour to consult all relevant and interested parties in the identification, assessment and management of their cultural heritage and in so doing will adopt the following guiding principles and protocols for consultation”. The “guiding principles” include that “all relevant parties should be notified of the consultations that occur in their area of operation” and that “all the relevant parties should be included in the consultation process, although the decision whether to participate will be made by the individual or organisation”. In attachment 2 to the document, the statement is made that “in determining whether a permit under s 87 and/or s 90 of the Act should be issued, NPWS needs to consider the significance of the Aboriginal object or Aboriginal place. The involvement of Aboriginal people in the assessment of the significance of the object or place, although not required by the Act is sought as a matter of practice”.

92 I am satisfied that: - (i) Dr McIntyre-Tamwoy forwarded to the applicant at three addresses a letter dated 29 October 2004 about the s 90 application, one only of which was returned to sender, (ii) Dr McIntyre-Tamwoy forwarded to the applicant a further letter dated 29 November 2004 about the s 90 application at two addresses, neither of which was returned to sender, and (iii) Dr McIntyre-Tamwoy attempted to contact the applicant by telephone on two occasions prior to the grant of consent 2130, being on 2 November 2004 and 14 December 2004 with respect to the application for consent 2130 (amongst other things).

93 I infer that the applicant received the letters of 29 October and 29 November 2004 from Dr McIntyre-Tamwoy. The applicant claimed that the 29 October 2004 letter was inadequate to discharge the first respondent’s obligations – a claim that assumes the letter was received. Although the applicant originally claimed (in the alternative) that he had not received that letter at all, that claim was abandoned. The second letter was forwarded to the two addresses of the applicant which were not returned to sender with respect to the first letter. I accept the applicant’s evidence that no representative of the first or second respondents talked to the applicant about the application for consent 2130, but I find that the applicant (by reason of the communications from Dr McIntyre-Tamwoy) was aware that the application for consent 2130 had been lodged and, thereby, was aware of the contents of those letters and the invitation extended to him as set out in those letters. This is consistent also with one of the particulars to the applicant’s claim which identified that the application form required the views of relevant local Aboriginal groups to be attached or “attach evidence of attempts to obtain these views”.

94 The letter of 29 October 2004 from Dr McIntyre-Tamwoy to the applicant identified that an application under s 90 was to be lodged, identified the areas to be covered in the application and invited the applicant to contact her with any queries that he might have regarding the application. The letter of 29 November 2004 was a response to a request for further information from Mr Carriage (but which was also provided to the applicant). That letter provided further details clarifying the works proposed to be carried out, the area within which the works would be carried out and annexed a plan showing the area to be covered by consent 2130 (if it were granted).

95 In these circumstances, I am satisfied that any expectation which the applicant might have had as a consequence of the three documents and any practice of prior consultation about Sandon Point was fulfilled. The applicant, as a “relevant party” for consultation in the Sandon Point area, was notified of the s 90 application. The notification extended to the applicant an invitation to meet with or contact Dr McIntyre-Tamwoy to discuss the application. In this manner both of the relevant “guiding principles” were fulfilled – (i) as a relevant party, the applicant was notified of the application, and (ii) as a relevant party, the applicant was included in the consultation process. As contemplated by the “guiding principles”, it was then a decision for the applicant whether to participate further in that process.

96 The applicant nevertheless contended that he had been denied procedural fairness as: (i) the notification letter did not attach a copy of the s 90 application, (ii) the notification letter did not attach copies of relevant archaeological or cultural heritage studies assessing the impacts of the works, (iii) the notification letter did not advise that works other than those addressed in the previous s 90 consents were proposed, (iv) the applicant was not presented with information enabling him to assess the impacts of the works on Aboriginal objects or the cultural significance of the land to which the application related, and (v) the applicant was thereby denied the opportunity to make meaningful comments about the archaeological or cultural significance of the land to which the application related.

97 The applicant did not identify any source of obligation as claimed above other than the three documents to which I have referred. Nothing in those documents is capable of founding any obligation as claimed by the applicant. Hence, while I accept that the letters did not annex copies of the application or the various studies relied on to support the application, I do not accept that there was any obligation to that effect. Otherwise, the 29 October 2004 letter referred to a plan being attached, and I infer that such a plan was attached to the original letter sent to the applicant. In any event, such a plan was attached to the 29 November 2004 letter, which I also infer the applicant received. Both letters also disclosed the land to which the application related, including the 5 metre zone affected in DP 224431. The 29 November 2004 letter expressly identified this land as the “Cookson site” and said that “this is the only new area that is covered by the current consent application”. Finally, nothing in the three documents could found any expectation that, in the notification letter, the applicant would be presented with information enabling him to assess the impacts of the works on Aboriginal objects or the cultural significance of the land to which the application related. The purpose of the notification letter was to make the applicant aware of the application. The letter contained the invitation to contact or meet Dr McIntyre-Tamwoy. It was a matter for the applicant to take up that invitation, or not.

156 Secondly, when Ms Ewins was shown the report she did not recognise it. I do not place any particular significance on Ms Ewins being unable to recognise the report. As I have said above, the relevant matter is the content of the report not the report per se. Moreover, Dr McIntyre-Tamwoy gave evidence, which I accept, that this report had been re-issued at various times (and it bears two dates) under different names. Ms Ewins said that she made no particular assumption about the number of items salvaged pursuant to consent 1427. I accept that evidence. Nor do I consider any such assumption necessary to have been made. The Navin Officer 2003 report was relevant not because of the absolute number of artefacts it identified, but because it provided information about the particular classes of objects salvaged from the land in question and thus enabled inferences to be drawn relevant to an assessment of the Aboriginal archaeological and cultural significance of the land. The applicant has not discharged its onus of establishing that the Director-General failed to consider those matters in granting consent 2130.

157 Thirdly, the report is not referred to in the reports of Dr Przywolnik and Ms Ewins about consent 2130. That fact must be weighed against the other facts, which I have set out above. When so weighed, that fact does not cause me to conclude that the Director-General failed to consider the content of this report.

Irrelevant consideration

158 The applicant submitted that the Director-General took into account an irrelevant consideration in that the Director-General “discounted the Hiscock report because it was of limited value in the Aboriginal assessment process for Sandon Point and does not provide any new information that supports a reconsideration of either s 90’s that had been issued or the archaeological salvage methodology”.

159 Doing the best I can, the claim appeared to be that because of the way in which Dr Przywolnik and Ms Ewins characterised the utility of Dr Hiscock’s report, the Director-General must have also have done so, and in so doing, took into account that characterisation which was itself an irrelevant consideration. I do not accept this argument.

160 The characterisation of the reasonableness or otherwise of the conclusions of Dr Hiscock’s report was a matter for the Director-General and that characterisation, whether or not the applicant believes it to be accurate, was not an irrelevant consideration. In Peko-Wallsend at 40, Mason J explained that, where an enactment does not enumerate matters to be taken into consideration, irrelevant considerations (that is, matters which the decision-maker is bound not to take into consideration) also arise only from some implied limitation to be found in the subject matter, scope and purpose of the statute. I have found that the content of Dr Hiscock’s report was a relevant consideration. The conclusions of Dr Przywolnik and Ms Ewins about the reasonableness of Dr Hiscock’s opinions cannot be transformed into an irrelevant consideration by reason of the applicant’s disagreement with the substance of that characterisation.

Failure in statutory duty

161 The applicant submitted that the Director-General was bound to have regard to s 2A(1)(b)(i), (ii) and (iii) of the NPW Act in deciding to grant consent 2130. So framed, this claim is properly characterised as a failure to take into account relevant considerations. If that is the applicant’s claim, the applicant has not discharged its onus to establish that the Director-General failed to have regard to these sections of the NPW Act in deciding to grant consent 2130. I infer to the contrary as: (i) I infer from Ms Ewins’ evidence that she was aware of the context set by s 2A of the NPW Act, and (ii) s 2A came into force in October 2002 and was part of the statute which enabled the Director-General to grant consent under s 90.

162 The applicant referred to the observations of Bignold J in Williams v Director-General of the National Parks and Wildlife Service and Others (2003) 127 LGERA 354 at 370 with respect to the relevance of s 2A to determining the ambit of mandatory considerations. I do not see how that advances the applicant’s case on this issue.

163 The applicant referred to Anderson and Another v Director-General, Department of Environment and Conservation and Others (2006) 144 LGERA 43 at [189], where Pain J had found that the context and objects of the NPW Act “clearly suggest that cultural significance is a relevant consideration for the Director-General’s delegate to consider in any assessment of a s 90 consent”. I agree. As I have found above, I am satisfied that the Director-General considered the cultural significance of the Aboriginal objects within the two Aboriginal sites referred to in Schedule A to consent 2130.

164 The applicant, in the final further amended points of claim, referred to consent 2130 having been issued without conditions to monitor, salvage and curate Aboriginal objects impacted by the proposed work. I do not accept that the absence of conditions to that effect evidences any failure on the part of the Director-General’s delegate to consider the cultural significance of the relevant Aboriginal objects or s 2A. The power to impose conditions is one that may, but need not, be exercised by the Director-General (s 90(2)). The absence of conditions as identified by the applicant does not found its claim for a breach of statutory duty.

165 Otherwise, Basten JA’s observations about s 2A of the NPW Act in Country Energy are applicable. That is, the section does not operate to restrict the matters to which the Director-General may have regard in giving a consent under s 90 to the “proper care, preservation and protection of” the relevant Aboriginal objects, because the section explicitly recognises that the NPW Act “is but one piece of legislation which must operate in conformity with other legislation governing land development activities” (at [64] – [65]).

Conclusion on validity of consent 2130

166 For the reasons given above, I do not uphold the applicant’s claims that consent 2130 is invalid.

Special conditions 2 and 3

(1) Special conditions 2 and 3 have to be read together. In particular, condition 3 is effectively a pre-condition to condition 2. Condition 3 must be satisfied before condition 2 can be performed.

(2) Special condition 3 requires the second respondent to negotiate the form and location of the Aboriginal Keeping Place with the Aboriginal community groups listed in Schedule C. Unless and until the form and location of that Aboriginal Keeping Place has been so negotiated, the Second Respondent cannot be in breach of condition 2.

(3) Special condition 3 contemplates a consensus being reached. Neither the second respondent nor any other person is in a position to dictate the form and location of the required Aboriginal Keeping Place. The Aboriginal Keeping Place that must be operative within the meaning of condition 2 is that Aboriginal Keeping Place the form and location of which has been negotiated through the consensual process required by condition 3.

(4) The second respondent accepts its ongoing obligation to continue to negotiate in good faith with the groups listed in Schedule C the form and location of the Aboriginal Keeping Place.

(5) The evidence of Dr McIntyre-Tamwoy establishes that the second respondent has discharged this obligation so far in good faith, and the second respondent says that it will continue to do so.

(6) For these reasons, the second respondent is not in breach of special conditions 2 and 3 of consent 2130.

Anthony Tauszik v Gosford City Council

168 The applicant submitted that the “consent” referred to in s 90(1) is the whole consent, including its conditions and restrictions as imposed pursuant to s 90(2). Further, that the Aboriginal Keeping Place had not been provided as required. As the twelve month time period had expired, the special conditions could not now be satisfied. Hence, the second respondent ought to be restrained from carrying out any further work in reliance on consent 2130.

169 I consider that the following general propositions apply. First, the word “breach” in s 76A(1) does not carry with it any notion of “fault” (see, by analogy, Port Stephens Council v Fidler (1997) 94 LGERA 298 at 303). Secondly, the power of this Court to remedy or restrain a breach of the NPW Act is not to be read as conferring a power to make orders against persons who are not themselves in breach of the NPW Act (by analogy to the reasoning in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 and Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230 at [58]). Thirdly, the making of any order against such a person who is in breach of the NPW Act involves the exercise of discretion which must be subject to the same type of considerations identified in F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306.

170 None of the parties submitted that special conditions 2 and 3 were beyond the power of the Director-General to impose. This sets the context within which I must construe the conditions and determine this part of the applicant’s claim.

171 The first issue is breach of the NPW Act. If I am satisfied about breach, the second is the making of an order to remedy or restrain the breach.

172 The consequence of the second respondent’s submissions about construction of s 90, if accepted, is that the obtaining of consent to destroy an Aboriginal object or objects (irrespective of its terms and conditions) must necessarily exculpate the consent holder from any contravention of s 90. Hence, to take the clearest possible example, if a s 90 consent was granted to knowingly destroy Aboriginal object “A”, and the Director-General had imposed a condition on that consent that Aboriginal object “A” may only be destroyed after it has been photographed, the second respondent would say that the fact of the obtaining of the consent necessarily exculpated the consent holder from any contravention of s 90 whether or not the consent holder had photographed the Aboriginal object before destroying it.

173 The submission, if accepted, would render nugatory the power available to the Director-General to impose conditions and restrictions in s 90(2). Section 90(1) cannot be construed in isolation from s 90(2). Once construed in context, it is apparent that the “the consent of the Director-General” in s 90(1), is the consent of the Director-General “subject to such conditions and restrictions as are specified therein” as referred to in s 90(2). If that consent, properly construed, qualifies the authority to (knowingly) destroy Aboriginal object “A” by making the consent subject to “conditions and restrictions”, then the knowing destruction of Aboriginal object “A” other than in accordance with those conditions and restrictions will constitute the knowing destruction of Aboriginal object “A” without first having obtained the consent of the Director-General. In such a case, the knowing destruction of Aboriginal object “A” would be outside of the authority constituted by the qualified consent.

174 I do not consider this construction of s 90 offends any principle with respect to ambiguity in penal provisions. Once it is accepted that a consent may be qualified by conditions and restrictions (as s 90(2) makes plain), then I am unable to see ambiguity in the section. Any consent obtained subject to conditions and restrictions which, properly construed, qualify the authority to knowingly destroy an Aboriginal object, cannot amount to a consent for the purposes of s 90(1) to destroy that same Aboriginal object other than in accordance with the conditions and restrictions. Recourse to s 175 is unnecessary – the relevant provision remains s 90 itself. The fact that s 86 expressly refers to things being done in accordance with terms and conditions, and s 87(3) contains a deeming provision, does not affect my conclusion in this respect. I do not take the absence of equivalent words in s 90 as license to construe that section other than in accordance with the ordinary and natural meaning which the words convey and, by so doing, to read s 90(2) out altogether.

175 The next issue is the proper construction of special conditions 2 and 3. Do they qualify the authority to knowingly destroy the Aboriginal objects within the sites identified in Schedule “A” to consent 2130 and, if so, how? The consent states on its first page that ”I, … Director-General…in pursuance of Section 90 of the said Act, and …subject to the Conditions hereunder set out DO HEREBY CONSENT to the destruction of the said Aboriginal objects…”. Accordingly, prima facie at least, special conditions 2 and 3 qualify the authority to knowingly destroy the Aboriginal objects within the sites identified in Schedule “A” to consent 2130.

(1) The Aboriginal Keeping Place in special condition 2 is the Aboriginal Keeping Place, the form and location of which (and a management plan for which) have been negotiated in accordance with special condition 3.

(2) Special condition 3 requires the form and location of the Aboriginal Keeping Place (and a plan for its management) to be negotiated by the consent holder with the five groups in Schedule “C”. It does not permit the consent holder, or any one of the five groups so nominated, to dictate the form and location of the Aboriginal Keeping Place (or a plan for its management).

(3) The consent holder has no capacity to require any one of the five groups so nominated to negotiate. The consent holder is bound to negotiate, but the five groups are not bound.

177 I accept the evidence of Dr McIntyre-Tamwoy about the steps she has taken on behalf of the second respondent to negotiate the form and location of the Aboriginal Keeping Place (and a plan for its management) with the five groups in Schedule “C”. While Dr McIntyre-Tamwoy accepted that her plans for the negotiation had been delayed for various reasons (the death of the contact person nominated for one of the five groups, disagreements with some of the groups about how the negotiation ought to proceed, and Dr McIntyre-Tamwoy having relocated to Queensland) I am satisfied that her evidence demonstrated that the second respondent, to date, has negotiated the form and location of the Aboriginal Keeping Place (and a plan for its management) as required by special condition 3. The fact that the negotiations remain incomplete does not place the second respondent in breach of special condition 3.

178 Hence, breach (if any) can be founded only on special condition 2. The second respondent asks how it can be in breach of special condition 2 if (first) it is not in breach of special condition 3, and (secondly) special condition 2 cannot be fulfilled unless and until the negotiation required by special condition 3 is completed. In my view, these questions are relevant to remedy rather than breach. As noted, breach is not dependent on default. Further, it is not uncommon for conditions (for example, of development consents) to require matters to be done where the doing of the matter is not within the sole control of the consent holder (see, for example, the observations in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd and Others (1996) 91 LGERA 31 at 96).

179 As noted, none of the parties suggested that special conditions 2 and 3 were beyond the power of the Director-General to impose. Accordingly, I should adopt a construction that does not lead to invalidity of the conditions ( Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115 at [19] per Foster AJA, with whom Mason P and Santow JA agreed). The construction I adopt is that special condition 2 qualifies the Director-General’s consent in the following manner: the consent allowed the knowing destruction of the Aboriginal objects within the sites specified in Schedule “A” for a period of up to twelve months whether or not the Aboriginal Keeping Place was operative. The consent does not authorise the knowing destruction of those Aboriginal objects from twelve months onwards to the expiry of the consent (specific condition 4) unless the Aboriginal Keeping Place is operative.

180 This construction, in my view, is consistent with the terms of consent 2130 as a whole and the context within which it was granted. The consent does not itself require the salvage of any Aboriginal objects from the sites nominated in Schedule “A”. Consent 2130, however, was granted against the background of the three other consents applying to the same area of land (largely), which did require salvage (to varying extents). Moreover, those salvages, as the information available to the Director-General disclosed, had resulted in the collection of many artefacts. In that context, it made sense for the Director-General to qualify the consent by making the continued authority to knowingly destroy Aboriginal objects within the Aboriginal sites (which were the same sites identified in the three earlier consents) conditional on the Aboriginal Keeping Place being operative within the period of twelve months after the issue of the consent. The fact that the second respondent, as the consent holder, was not in sole control of compliance with the special conditions does not lead to the conclusion that the second respondent could never be in breach of special condition 2. As observed in Fidler , the question of breach is not dependent on fault being established. It does, however, mean that the question of any remedy must be closely considered.

181 The evidence does not satisfy me that, after 2 March 2006, the second respondent knowingly destroyed any Aboriginal object without first having obtained the Director-General’s consent as required by s 90 of the NPW Act. Hence, I do not find breach of s 90 by the second respondent. I am satisfied that there is a threatened breach of s 90 of the NPW Act by the second respondent for the following reasons: (i) consent 2130 operates for a period of two years – that is, until 2 March 2007, (ii) the Aboriginal objects within the sites described in Schedule “A” are said by the consent to be located within the land described in Schedule “B”, which I infer from the consent is the land edged heavy black on plan 1 attached to the consent, (iii) the second respondent’s application identified that the consent was necessary to enable works within that area to be completed, (iv) there is no evidence that those works have been completed, (v) I infer that the second respondent intends to complete those works prior to 2 March 2007, and (vi) I have construed the consent as set out above, and special condition 2 has not been satisfied by the second respondent.

182 The next issue is whether any order should be made in the circumstances to remedy or restrain the breach. Although s 176A does not refer to the Court making such order “as it sees fit” to remedy or restrain the breach (in contrast to s 124(1) of the EPA Act), in my view, the power available is equally expansive (see also s 23 of the Land and Environment Court Act 1979), and the discretionary considerations not dissimilar.

183 The applicant sought an order that the second respondent be restrained from carrying out any work in reliance on the consent. This seems to assume that the consent authorises work to be carried out, which it does not. Rather, it authorises Aboriginal objects to be knowingly destroyed. As I understand it, one basis of this claimed order is that because special condition 2 contained a time stipulation which has expired, it can now never be complied with by the second respondent and that consent 2130, thereby, is void. I do not accept the latter part of that submission. The fact that the time specified in special condition 2 has expired does not affect the validity of the consent. The second respondent submitted that no order should be made, given the terms of the consent and the evidence with respect to the second respondent’s conduct to date and intention to continue to comply with special condition 3.

(1) Consent 2130 does not require salvage of Aboriginal objects. The Director-General must be inferred to have been satisfied that all known Aboriginal objects remaining within the two sites identified in Schedule “A” to consent 2130 could be destroyed.

(2) As a necessary consequence of (1) above, the “Aboriginal objects collected or salvaged from the area of Sandon Point Stages 1 to 6” referred to in special condition 2 are Aboriginal objects so collected or salvaged pursuant to the earlier consents.

(3) That is, consent 2130 does not require any Aboriginal objects remaining within the two sites identified in Schedule “A” themselves to be collected or salvaged and placed in the Aboriginal Keeping Place. It contemplates that such Aboriginal objects may be destroyed (subject to its conditions).

(4) Hence, if the second respondent had negotiated (to completion) the form and location of the Aboriginal Keeping Place (and a plan for its management) as required by special condition 3, and had ensured that Aboriginal Keeping Place was operative in accordance with special condition 2 on or before 2 March 2006, then the consent would have authorised the second respondent to destroy all known Aboriginal objects remaining within the two sites identified in Schedule “A”.

185 I accept and have taken into account the evidence of the applicant and Mr Carriage that they view the Sandon Point area (I infer, including the land edged heavy black on Plan 1 attached to consent 2130) as one of the most significant Aboriginal sites in New South Wales, that the Aboriginal objects in the Sandon Point area are sacred to them and that the destruction of these objects causes them great sadness. That evidence must be weighed in a context where, as noted above, the Director-General, as the relevant authority in New South Wales to decide whether a person may knowingly destroy any Aboriginal object, has decided that all known Aboriginal objects remaining within the two sites identified in Schedule “A” to consent 2130 may be destroyed provided that the Aboriginal Keeping Place for objects salvaged under earlier consents is provided.

(1) I am satisfied that the second respondent has negotiated to date in accordance with special condition 3. Nothing in the evidence or the second respondent’s conduct of this matter leads me to the view that the second respondent intends to do anything other than to continue the process of negotiation to its conclusion. To the contrary, the second respondent’s submissions in the proceedings expressly acknowledge its intention to do so.

(2) The negotiations to date have not proven fruitless. Despite the fact that none of the groups nominated in Schedule “C” have any legal obligation to make themselves available for negotiation, they appear to have done so and to have entered into the process in a constructive manner. Although Mr Oshlack for the applicant submitted that the position of the second respondent involved the making of excuses that “blamed the Aboriginal groups”, no such suggestion by the second respondent was apparent to me. The submission also does not accord with either the course of conduct of the Aboriginal groups nominated in Schedule “C” to the consent, as apparent from Dr McIntyre-Tamwoy’s evidence in this regard (which I have accepted) or the fact that each of the Aboriginal groups nominated in Schedule “C” can be presumed to have their own legitimate interests which might quite properly affect their view about the appropriate form and location of (and management plan for) the Aboriginal Keeping Place.

(3) Dr McIntyre-Tamwoy’s evidence disclosed that, as at 2 June 2006, the Aboriginal groups nominated in Schedule “C” had reached a consensus about the location of the Aboriginal Keeping Place, were approaching a consensus about its form and had agreed on a way to progress the issues of management of the Aboriginal Keeping Place. Dr McIntyre-Tamwoy, in consequence, recommended the further steps to be taken to complete the negotiation process – including endorsement of the location by the second respondent (and the Wollongong City Council), and agreement by the second respondent that the Aboriginal Keeping Place be in the form of a building, with an interpretative and commemorative component.

(4) One purpose of special conditions 2 and 3 must be inferred to have been to ensure that the location, form and management of the Aboriginal Keeping Place did not reflect an outcome dictated by the first or second respondents. The conditions give the first respondent no role in the process for determining the location, form and management of the Aboriginal Keeping Place. That outcome is to be reached, by negotiation, between the second respondent and the Aboriginal groups nominated in Schedule “C”. For the condition to be fulfilled, consensus must be reached. None of the persons bound (in the case of the second respondent) or entitled (in the case of the Aboriginal groups nominated in Schedule “C”) to be involved in the negotiation may dictate the outcome.

187 I requested all parties to make submissions about the form of any order that could be made to finalise the negotiations and the interim securing of the Aboriginal objects. Mr Oshlack for the applicant maintained his submission that no such order could be made. The draft orders provided by the respondents (without admission by the second respondent) do not provide an immediate means of securing the Aboriginal objects on an interim basis and are otherwise dependent upon the agreement of a third party (the Australian Museum). In my view, to make an order for that secures the Aboriginal objects on an interim basis, I would need to be satisfied that there is a place which the second respondent can make available (promptly) which would secure the Aboriginal objects under conditions which will not cause the deterioration of those objects pending the completion of the negotiations contemplated by special condition 3. At present, I am not able to be so satisfied. I am minded to make directions requiring the second respondent to file and serve evidence identifying such a place.

188 I have considered whether I should also make orders requiring the second respondent promptly to take further steps to facilitate the completion of the negotiations, particularly having regard to the most recent recommendations of Dr McIntyre-Tamwoy. My present view is that no such order is warranted at this time, but I am willing to hear the parties on that question also. As noted, I infer from Dr McIntyre-Tamwoy’s evidence that the second respondent has complied with, and will continue to comply with, special condition 3, with a view to satisfying special condition 3 as soon as is reasonably practicable.

189 As I have not found breach (but threatened breach of special condition 2), it would be inappropriate for me to make any declaration. Such a declaration would also be inappropriate, in my view, given the findings I have made above with respect to the circumstances of the threatened breach and the absence of fault on the part of the second respondent (see the observations in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 at [26] – [27] about the different considerations applicable where the making of a declaration may appropriately fulfil an educative and deterrent function).

(1) Dismiss paragraph 1 of the Further Amended Application Class 4 dated 12 May 2006.

(2) Order the second respondent, by 2 August 2006, to file and serve evidence of a place available for the interim storage of the Aboriginal objects collected or salvaged from the area of Sandon Point Stages 1 to 6 pursuant to consents under s 90 of the National Parks and Wildlife Act 1974, being consent 1288 and 1289 both dated 30 January 2002 and consent 1427 dated 30 September 2002.

(3) Order the applicant and first respondent, by 9 August 2006, to file and serve any evidence on which they wish to rely (if any) with respect to the suitability of the place identified by the second respondent pursuant to paragraph 2 above.

(4) Direct the parties to approach the Registrar to obtain a date for any further submissions necessary on the form of the interim orders (such to commence at 9.15am), such date to be prior to 31 August 2006.

(5) Otherwise, adjourn the proceedings for mention on 30 September 2006.

(6) Grant each party liberty to restore the proceedings on 7 days’ notice.

(7) The exhibits are returned.

****************************

Citations

Roy Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456

Most Recent Citation

Cases Citing This Decision

8

Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337

Henroth Investments Pty Ltd v Sydney North Planning Panel [2018] NSWLEC 112

Barrak v City of Parramatta Council [2018] NSWLEC 67

Cases Cited

14

Statutory Material Cited

4

Stead v State Government Insurance Commission [1986] HCA 54

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6

Kogarah Municipal Council v Golden Paradise Corporation [2005] NSWCA 230

Actions

Download as PDF Download as Word Document

CITATION:	Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456
PARTIES:	APPLICANT Roy "Dootch" Kennedy FIRST RESPONDENT Director-General of the Department of Environment and Conservation SECOND RESPONDENT Stockland Development Pty Limited
FILE NUMBER(S):	40421 of 2005
CORAM:	Jagot J
KEY ISSUES:	Judicial Review :- whether consent to destroy Aboriginal objects invalid - uncertainty - relevant considerations - irrelevant considerations - procedural fairness - whether breach of conditions of consent to destroy - construction and interpretation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 23 National Parks and Wildlife Act 1974 s 90 Protection of the Environment Administration Act 1991
CASES CITED:	Anderson and Another v Director-General, Department of Environment and Conservation and Others (2006) 144 LGERA 43; Anthony Tauszik v Gosford City Council [2006] NSWCCA 193; Cann’s Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210; Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148; Country Energy v Williams and Others (2005) 63 NSWLR 699; F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another (1945) 71 CLR 184; Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230; Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24; Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd and Others (1996) 91 LGERA 31; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319; Port Stephens Council v Fidler (1997) 94 LGERA 298; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115; Williams v Director-General of the National Parks and Wildlife Service and Others (2003) 127 LGERA 354
DATES OF HEARING:	10/07/2006, 11/07/2006, 12/07/2006, 13/07/2006, 14/07/2006
DATE OF JUDGMENT:	07/26/2006
LEGAL REPRESENTATIVES:	APPLICANT A Oshlack (agent) SOLICITOR N/A FIRST RESPONDENT Ms R Pepper SOLICITORS Department of Environment and Conservation SECOND RESPONDENT Mr P Clay SOLICITORS Herbert Geer & Rundle

[2006] NSWLEC 456

26/07/2006