Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors

Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors - [2008] NSWLEC 120 - NSWLEC 2008 case summary — Zoe

[7]

9 If the development satisfies the requirements of SEPP 71 (and those in the other instruments which are relevant to the development), the Minister is still required to consider the more general matters listed in s 79C(1), namely: (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Consent to Destroy Under s 90 National Parks and Wildlife Act 1974 (NSW) 10 On 29 May 2003 the Director-General of National Parks and Wildlife granted to the developer a consent to destroy Aboriginal objects on the land under s 90 and a permit for their salvage collection under s 87 of the National Parks and Wildlife Act 1974 (collectively, s 90 consent). This excluded an area in the north-west corner of the site. The applicants successfully challenged its validity in this Court: Anderson v Director-General, Department of Environment and Conservation (2005) 144 LGERA 43 (Pain J). Further s 90 consents were granted in October 2006 and April 2007. The applicants brought proceedings challenging their validity and, by consent, this Court declared each to be void and of no effect on, respectively, 28 November 2006 and 15 August 2007. Finally, a fresh s 90 consent was issued on 3 October 2007. The applicants commenced, and then discontinued, proceedings in this Court challenging its validity. Events leading to first development consent in 2005 11 On 7 August 2003, in compliance with cl 18 of SEPP 71, Connelly submitted a draft master plan and companion volume containing technical reports to the Department of Planning. The master plan addressed the cultural heritage significance of the land in a number of sections. The companion volume included a more detailed section on Heritage Significance, which referred to archaeological test excavations undertaken on the land by Ms Sue Davies and indigenous representatives nominated by the Jali Local Aboriginal Land Council (Jali LALC), and to an anthropological study conducted by Dr James Weiner.

[10]

The first development consent is declared void and of no effect 14 The applicants successfully brought proceedings in Class 4 of this Court's jurisdiction challenging the validity of the 2005 development consent. I declared the consent to be void and of no effect: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. Of the grounds which the applicants raised in relation to the consent - a number of which are re-agitated in these proceedings - I upheld the ground that the Minister had failed to properly consider matters in SEPP 71, which s 79C(1)(a) of the EPA Act required him to consider, in particular the Minister failed to give proper, genuine and realistic consideration to the reasons why the site was of high cultural significance to Aboriginal people. I held that the existence and scope of any implied obligation to consider the massacre should be determined having regard to the aims, subject matter and scope of SEPP 71, one aim of which included, in cl 2(1)(d), to protect and preserve Aboriginal cultural heritage and Aboriginal places, values, customs, beliefs and traditional knowledge: at [50]. I continued at [51]-[52]: The Minister knew that there was an anthropological report by Dr Weiner in the possession of the applicant for development consent which concluded that the area was of high significance. In my opinion, having regard to the considerations to which I have referred, the Minister was obliged to obtain and consider the Weiner reports because they contained information concerning the massacre of vital importance in explaining and understanding the significance of the land to Aboriginal people. Without that knowledge the Minister had no more understanding of the issue than a foreigner who is told that ANZAC Day is of high significance to Australians without being told why. Revelation of the massacre would have breathed life, death and tragedy into, and stripped the veil of obscurity from, the bland words "high significance". In my opinion, the revelation could have materially affected the Minister's decision.

[44]

32 In recommending that the Minister grant the consent, the Department noted that it had assessed the proposal and considered the public and agency submissions in response to the proposal, with conditions of consent recommended to ensure that key issues resulting from the assessment "are satisfactorily addressed and there are minimal impacts as a result of the proposal". The benefits which the Department identified as flowing from the proposal included: · The subdivision represents a suitable and orderly development of appropriately zoned land contiguous to an existing residential neighbourhood; · The subdivision responds well to the constraints and opportunities presented by the site and the surrounding context; · The area consistently identified as being of high cultural significance to local Aboriginal people, being the north-west corner of the site has been preserved as a Cultural Conservation Area; and · Future generations will benefit from the setting aside of areas of natural and cultural conservation values and significance and from associated public ownership and planned active management strategies. 33 On 18 November 2007 the development consent was granted by the Minister by his delegate Mr Chris Wilson, the Executive Director, Major Project Assessment, who had been quite closely involved in the process leading to the consent. Failing to readvertise and call for submissions 34 The applicants submitted that the Minister failed to consider a mandatory relevant matter pursuant to s 79C(1)(d) because the Minister failed to readvertise the development application and call for submissions before reassessing it. Section 79C(1)(d) is not quite in point, in my view, because it provides that the Minister must consider any submissions made in accordance with the Act or regulations. The applicants' real point may be reframed as a proposition that the Minister was legally obliged to readvertise and call for submissions following my decision that the first development consent was invalid.

[51]

(1) This clause applies to a development application that before being determined by the consent authority, has been amended or substituted, or that has been withdrawn and later replaced, where: (a) the consent authority has complied with this Division in relation to the original application, and (b) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application, referred to in this clause as a replacement application . (2) The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application. (3) The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act. 41 The declaration that I made in the earlier proceedings was that the first consent to the development application was "void and of no effect". The very terms of the order indicate, in my opinion, that the development application remained undetermined. Further, as was said in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] by Gaudron and Gummow JJ: "There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all". Similarly, Callinan J said: "if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised": at [152]. My declaration in the earlier proceedings that the first development consent was void and of no effect was based on the Minister's error of law in failing to take into account a mandatory relevant consideration, which was a jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179. Contrary to the applicants' submission, that declaration did not mean that the process of public notification and exhibition had to start afresh. The declaration had no effect on the validity of the public participation process or anything else that had occurred prior to the invalidated development consent. 42 The Minister complied with the statutory public participation requirements in relation to the original application in 2004. Upon the application being amended in 2007 cl 90 of the EPA Regulation came into play. The opinion contemplated by cl 90(1)(b) was formed that the amended 2007 application differed only in minor respects from the original application. There is no basis for suggesting that that opinion was manifestly unreasonable in the Wednesbury sense (nor do I understand that to have been pleaded or submitted). The Minister therefore had power, which was exercised under cl 90(2), to decide to dispense with further compliance with the Division in relation to the amended application. Consequently, under cl 90(2), compliance with Division 7 in relation to the original application was taken to be compliance in relation to the amended application. In accordance with cl 90(3), written notice to Connelly of the consent authority's decision under the clause was given on 20 August 2007.

[54]

45 The obligation to afford procedural fairness is a common law doctrine which attaches to the exercise of public power, subject to any statutory modification: Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 (CA) at [50] per Spigelman CJ, quoted with approval in Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 (CA) at [56] by Tobias JA (Hodgson and Ipp JJA agreeing). A related object of the EPA Act is "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c). Section 79A gives statutory force to the common law procedural fairness principle by providing for public participation in the development application process: Lesnewski at [57]. Sections 79 and 5(c) provide similarly. The content of the duty to afford procedural fairness depends on the circumstances of the case and was described by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585 in the following passage (most citations omitted), which was cited with approval in the Court of Appeal in Vanmeld at [54] by Spigelman CJ and in Lesnewski at [61] by Tobias JA: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to fairly listen to both sides being a duty lying upon every one who decides anything : Board of Education v Rice ([1911] AC 179, at p. 182). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly…

[63]

54 Additionally, and apart from that rule, the evidence suggests that the Jali LALC chairperson's letter of 24 May 2007 reflected the views of the Jali Cultural and Heritage Committee and of Mr B C Jameson, the Administrator of the Jali LALC from 22 November 2004 to 22 May 2007. With the approval of a general meeting of the Jali LALC held in May 2006, that committee was established to deal with development applications. The committee considered a substantial amount of material relating to the development application concerning the subject site. On 3 August 2006 the Administrator of the Jali LALC wrote a letter to the developer in which, after referring to documents and tabulations presented by the archaeologist Ms Davies, stated: This same data was discussed with and assessed by the Jali Cultural and Heritage Committee on August 3, 2006. It was the collective opinion of the committee that, having regard to the several documents and tabulations presented and noting the relatively low significance afforded Lot 208 in the context of higher ratings for other sites, the likelihood of significant indigenous values being uncovered on that Lot was low and further, the process of evaluation of that Lot was considered appropriate. The letter concluded by stating that, should the developer be formally agreeable to certain points, the Administrator believed that there was no foreseeable reason as to why the re-determination should not be determined in favour of the developer, on the basis of documented, independent evaluation. 55 Prior to the hearing the solicitors for Connelly and the developer wrote to Mr Jameson noting the applicants' pleaded allegation that the letter of 24 May 2007 was written without authority and asking him whether the letter was authorised. Mr Jameson's letter of reply dated 25 February 2008 included the following: The Cultural and Heritage Committee met on several occasions to consider a substantial amount of material relative to Lot 208 Angels Beach. I was guided at all times by the advice of the JLALC Heritage Officers and the C&H Committee's views and opinions. The letter of 3 August 2006 to Mr C Condon was written with the full knowledge and consent of the JLALC C&H Committee.

[71]

61 The Umwelt Report acknowledged the possibility that archaeological deposits might be present below the level of one metre: Based on the review of the documentation provided by DoP, and consultation with Su Davies we consider that there could still be a merit issue relating to the assessment of the archaeological significance of the project area. It is our opinion that the prior archaeological investigations and assessment (as discussed in Davies 2006) do not adequately address the potential for the presence of further subsurface archaeological deposits, including deposits that may possibly be of Pleistocene age. That is, archaeological deposits that may be present below the level of prior disturbance and below the depth of the test excavations undertaken by Davies (2006), which did not exceed one metre. It is possible that this merit issue may be highlighted in a future legal challenge. The issue might be clarified through additional literature review to determine if there are any clear grounds to preclude the potential for archaeological deposits (including Pleistocene deposits) to be present within the project area at depths below one metre. Should this review not resolve the possibility that there may be archaeological deposits at depth, more accurate information regarding the depth of impact of the proposed development (and associated infrastructure including utilities) should be assessed. If it appears that the impacts will extend to depths that may contain previously untested and undisturbed archaeological deposits, resolution of this issue may require further subsurface investigation or the consideration of additional conservation offsets with similar archaeological potential. 62 Earlier, in 2003, a series of ten test borehole logs had been carried out across the site by Coffey Geosciences Pty Ltd to a depth of three metres, apart from two which terminated at (respectively) 2.75 metres and 1.4 metres. On 19 July 2007 Mr Bright of the Department of Planning obtained advice concerning these borehole logs from Mr Reed, Acting Manager, Mining and Extractive Industries, which Mr Bright recorded in the following file note: Interpretation of Coffey Borehole Logs and Presence of a Pleistocene Layer on the Site · Discussed the 10 borehole logs dated 5.2.2003 and carried out by Coffey Geosciences Pty Ltd with Howard Reed, A/Manager, Mining and Extractive Industries. · Howard advised that the logs show a thin layer of topsoil over a layer of windblown sands (Aeolian sand). No clear evidence is provided in any of the borehole logs of the presence of a Pleistocene landscape, within the 3 metre depth tested. Howard also advised that this is not to say that a Pleistocene landscape does not exist at some deeper level.

[102]

The applicants' claims 85 The applicants claimed that Connelly and the developer: a) breached the conditions in Part C of the development consent by undertaking work involving the removal of trees and the clearing of vegetation on or about 8 January 2008, without having approval for the requisite plans required under the development consent for the work to commence; b) commenced work involving the clearing of vegetation and removal of trees without carrying out and having approved the requisite design plans required under Part B of the development consent; and c) commenced work involving the clearing of vegetation and removal of trees without a certified construction certificate. Undertaking to the Court by Connelly and the developer 86 During final submissions Connelly and the developer, by their counsel, gave an undertaking to the Court, without admissions, that "they will not conduct any further clearing work until the conditions in Part C of the consent have been satisfied, and will not conduct further clearing work on any part of the land until a construction certificate has been issued for that part of the work to be conducted". 87 The applicants accepted that this was sufficient relief, subject to the Court ordering that they be given five days' notice by Connelly and the developer of any intention to clear any trees. I am disinclined to make the additional order sought by the applicants, which would in effect specially empower them to police the undertaking. The powerful sanction of punishment for contempt of court is available for breach of an undertaking to the Court. I should not assume that there is a danger that Connelly and the developer will not comply with their undertaking to the Court without such a policing order. 88 The undertaking to the Court by Connelly and the developer substantively disposes of this part of the applicants' claim. However, the applicants are entitled to have the Court determine the liability of Connelly and the developer, which has not been admitted, and this determination may bear on the issue of costs. Therefore, I will address the issue of liability. Findings of fact 89 Under Parts B and C of the development consent, prior to commencement of any works various plans have to be approved and a construction certificate has to be issued. It was not disputed on the pleadings or in evidence, and I find, that Connelly and the developer cleared trees and vegetation as alleged before these plans had been approved and before a construction certificate was issued. 90 The defence of Connelly and the developer is one of confession and avoidance. They submit that the clearing activities were not the subject of, or regulated by, the consent, nor were they prohibited by any environmental planning instrument. The Ballina Local Environment Plan 91 The land on which the clearing occurred is zoned 2(a) under the Ballina LEP. Clause 9 of the Ballina LEP provides that development is only permitted in zone 2(a) with development consent. Clause 5 defines "clearing", in relation to land, as the "destruction or removal in any manner of native plants growing on the land". (It contains two presently irrelevant exceptions). Clause 5 defines "native plants" as "plants indigenous to the State of New South Wales, including trees, shrubs, ferns, vines, herbs and grasses indigenous to the State, but does not include plants grown for commercial purposes". I accept the evidence of Mr Andresen, who observed the clearing, which indicates that the clearing was of native plants. First issue: was clearing permitted under the Ballina LEP? 92 Connelly and the developer submitted that, upon a contextual reading of the entire Ballina LEP, clearing activities in zone 2(a) are not prohibited. This is because the Ballina LEP contains a number of provisions in relation to tree clearing, which are limited to specified zoned areas, and which do not include land zoned 2(a). Connelly and the developer pointed to cl 23, which applies to zones 1(d), 7(c), 7(d), 7(d1), 7(f), 7(i) and 7(l), and cl 24, which applies to zone 7(a). Both cll 23 and 24 expressly prohibit clearing of land without the consent of the council. They submitted that, therefore, when the Ballina LEP is read as a whole, there is a coherent scheme within it to expressly prohibit clearing in certain zones, the result of which is that clearing in zones other than those listed in cll 23 and 24 is not prohibited. 93 Connelly and the developer also noted that, although empowered to do so by cl 8 of the Environmental Planning and Assessment Model Provisions 1980 (NSW), Ballina Shire Council has adopted only one Tree Preservation Order, which does not apply to the relevant area. Connelly and the developer submitted that the making of this Order, combined with the existence of specific prohibitions on clearing in the LEP in specified zones other than zone 2(a), suggests that the construction of the LEP by the council's "Community Information Sheet: Vegetation Removal in Ballina Shire" (CIS) is erroneous. The CIS, upon which the applicants relied, states that the "consent of council is required for the clearing, destruction or removal in any manner of native plants, including trees, shrubs, ferns, vines, herbs and grasses indigenous to NSW". Connelly and the developer submitted that the author of the CIS had mistaken the definition of "clearing" in the Ballina LEP, which the CIS reflects in its use of the defined term "native plants", for a general prohibition on clearing throughout the Shire. 94 I do not agree with the submission of Connelly and the developer that clearing was permitted under the Ballina LEP except where expressly prohibited by cll 23 and 34. If cll 23 and 24 did not exist in the Ballina LEP, the respondents' argument would clearly fail. If their submission is accepted, the result is that a person may clear any tree without consent on any land to which the Ballina LEP applies, other than land that is zoned such that cll 23 and 24 apply. It is most unlikely that this is the legislative intent, for if it were, the result would be that clearing is unregulated in any zone to which cll 23 and 24 do not apply. I do not accept that merely because clearing is expressly prohibited in eight zones by cll 23 and 24, then clearing is permitted in all other zones. Second issue: was clearing incidental to survey and design work required by conditions of consent? 95 Secondly and alternatively, Connelly and the developer submitted that they were permitted to clear the trees because the conditions of the development consent contemplate detailed survey and design work to which the clearing of the trees was necessarily and reasonably incidental. They referred to conditions B5 and B9, which must be satisfied prior to the issue of a construction certificate. Condition B5 requires engineering design drawings to be provided to the council for civil works, relevantly including for the construction of a roundabout at the intersection of Angels Beach Drive and the proposed "entry Road 1", and for temporary turnaround facilities at the appropriate boundaries of the road network. Condition B9 requires final road design plans to be prepared by a qualified practising civil engineer. Therefore, they submitted, before they could be issued with a construction certificate, they needed to prepare engineering design drawings and final road designs. 96 The proposed development involves construction of a roundabout at the intersection of Coast Road and Angels Beach Drive. The proposed entry Road 1 flows from the proposed roundabout into the development site in an approximately north-westerly direction. Entry Road 1 will form a continuation of Coast Road through the roundabout into the development site. However, it appears from the site plans that the width of entry Road 1 will be less than that of the Coast Road. There is a proposed triangular traffic island on entry Road 1, just prior to where it meets the roundabout. 97 The area that was cleared formed part of the approach of entry Road 1 from within the development site to the roundabout. Connelly and the developer submitted that a critical part of the roundabout design, being the direct path to the roundabout, occurred within the area of shrubby trees that was cleared. They argued that the clearing occurred to facilitate the detailed design and survey work necessary to obtain the construction certificate and that the clearing was done directly in the area where the design and survey work for the roundabout needed to be undertaken. They argued that they could not carry out the requisite work without clearing the trees and, therefore, the clearing was necessarily and reasonably incidental to the work required by the conditions of consent. 98 The only evidence before me of the area cleared is that in annexure B to the affidavit of Mr Lee Andresen. Mr Andresen visited the site on 8 and 10 January 2008 and observed the clearing work. Annexure B is a map of the development site, on which Mr Andresen has marked the area of clearing that he observed. This marked area is a semicircle, with a diameter significantly longer than the width of the Coast Road. As noted above, the proposed entry Road 1 appears to have a shorter width than that of the Coast Road. Connelly and the developer objected to annexure B, urging me not to accept Mr Andresen's evidence because he did not say he had entered the land and he did not claim to be a surveyor or to have paced out the distance. They did not put forward any evidence to contradict Mr Andresen's evidence nor did they cross-examine him. I accept his evidence. 99 I do not accept the submissions of Connelly and the developer. First, they put forward no evidence that it was not possible to carry out the survey and design work without clearing the trees. Thus I cannot accept that it was necessary to clear the trees to perform that work. Secondly, they cleared an area that seems to go far beyond anything that could be said to be part of the roundabout. The area cleared appears to include at least in part the proposed entry Road 1, but is far wider than the width of this proposed road. In those circumstances, it cannot be said that it was reasonably and necessarily incidental to the requisite design and survey work that the trees be cleared. It is unnecessary to address the correctness of the assumption in their submissions that if clearing is necessary in order to carry out survey and design work, then the clearing is implicitly authorised by the terms of the development consent.

Parties

Applicant/Plaintiff:

Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation

Respondent/Defendant:

NSW Minister for Planning and Ors

Legislation Cited (6)

Aboriginal Land Rights Regulation 2002(NSW)sch 2

Coastal Protection Act 1979(NSW)s 4

Environmental Planning and Assessment Regulation 2000(NSW)cl 90, Pt

Environmental Planning and Assessment Act 1979(NSW)ss 4, 5(c), 76A(7), 76A(9), 79A, 79C(1)

Land and Environment Court Rules 2007(NSW)r 4.2

National Parks and Wildlife Act 1974(NSW)ss 87, 90

Cases Cited (21)

CITATION : Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120

Anderson v Director-General, Department of Environment and Conservation (2005) 144 LGERA 43 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Annetts v McCann (1990) 170 CLR 596 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Craig v South Australia (1995) 184 CLR 163 Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Kioa v West (1985) 159 CLR 550 CASES CITED: Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 Walker v Minister for Planning [2007] NSWLEC 741

[2007] NSWLEC 741

(2005) 144 LGERA 43

(2006) 151 LGERA 229

(1990) 170 CLR 596

(1995) 184 CLR 163

(2006) 147 LGERA 348

(2000) 200 CLR 442

(1985) 159 CLR 550

(2005) 138 LGERA 207

(2002) 209 CLR 597

(1995) 183 CLR 273

(2003) 198 ALR 59