Ground 3 - Failure to make inquiries
47 This issue arises in the following way. Mr Douglas Anderson had contended that archaeological test pits on the land should have gone deeper than one metre. He contends that they should have gone down to three metres in depth because fill had been placed on the site. The author of the determination report considered Mr Anderson's contention in his report under the heading "Depth of archaeological investigation test pits", as follows (at p 7):
· Douglas Anderson states in his affidavit prepared in relation to previous proceedings that the test pitting should have gone deeper than 1m, and when I met with him on 3 September 2007 he stated they should have gone down to 3m, because fill had been placed on the site during the South Angels beach development.
· The test pitting process described in Davies (2003a) provides a clear analysis and description of the sub surface cultural horizons at Lot 208. 191 test pits were excavated and recorded. The test pitting extended beyond the depth of the soil horizons containing cultural material, and in most cases to 1m, twice the depth of recorded archaeological material, to the A horizon of the Pleistocene sands. Based on these investigations, DECC agrees with the views of Davies that there is no indication that archaeological materials would be expected to occur at depths below 1m.
· This is further corroborated by the comments of Artie Ferguson, who was a sites officer with the Jali LALC and worked on the South Angels Beach development. Mr Ferguson told me in a phone conversation on 12 September 2007 that fill was not dumped on Lot 208, it was dumped elsewhere ("the new fields back towards Ballina"). It is my view that there is no evidence to support the view of Mr Anderson that fill was dumped on the Angels beach site.
· I consider that the number of test pits and the depth to which they were dug was adequate to assess the Aboriginal heritage values of Lot 208.
48 I have referred in par [5] above to the fact that on 20 November 2006 Biscoe J declared that the development consent that had been granted to the second respondent was of no effect on the basis of inadequate assessment and consideration of Aboriginal cultural significance: Anderson v The Minister of Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; [2006] NSWLEC 725. As a consequence, the Department of Planning commissioned Umwelt (Australia) Pty Ltd, a firm of environmental consultants, to review existing documentation relating to the Aboriginal cultural significance of the land. The Umwelt report dated June 2007 is entitled "Review of Aboriginal Cultural Heritage Documentation, Lot 208, Angels Beach, East Ballina". It is a review of substantially the same material that was before the author of the present determination report. An issue which emerged in the review was the testing methodology that had been undertaken. The Umwelt report states (at 3.14.1):
The testing methodology upon which the assessment of the archaeological significance of the project area is largely based did not adequately explore the archaeological potential of the project area. The possibility that archaeological deposits (potentially dating to the Pleistocene) may be present in relatively undisturbed soil horizons below the depth of the majority test pits was not considered or tested .
49 The Andersons submit that this issue was materially relevant to the decision; that although the Umwelt review had been commissioned by the Department of Planning for a different consent authority, the Minister for Planning, nevertheless the Department of Environment and Climate Change either knew or ought to have known of its existence and taken it into account; and that if the Umwelt review was not in the possession of the Department of Environment and Climate Change, it should have made inquiries about reviews undertaken by the Department of Planning, which was known to be involved in the assessment of the development application for the proposed subdivision. There is some evidence that suggests that an officer or officers of the Department of Environment and Climate Change were told of the existence of the Umwelt review, but did not obtain or attempt to obtain a copy of it.
50 The Andersons submit that the author of the determination report thus unreasonably failed to make inquiries and to ascertain facts which were material to the decision and readily available so that the determination is therefore manifestly unreasonable and/or illogical and irrational.
51 I am prepared to assume that the existence of the Umwelt review was known to the Department of Environment and Climate Change. I have described in par [10] above the vast amount of material which was taken into consideration. The Umwelt review was a merely desktop review of the same material that was before the author of the determination report - it did not include any further consideration of the issues raised by the Andersons, it did not involve any sub-surface testing, it did not include any further consultation with the Andersons, it did not include a site visit. In these circumstances, the views expressed in the Umwelt review were not centrally relevant to the Director-General's decision, but on the contrary, the Umwelt review was of, at most, marginal relevance.
52 In particular, the suggestion by the Umwelt that the test pits should have gone deeper flies in the face of the field work that had been undertaken by others, and, in particular, by Ms Elizabeth White of November 2001 and Ms Sue Davies. Ms White notes in her report at 3.1.2 (p 7) that:
Geomorphologically, the area is located atop Pleistocene-age sand dunes, probably dating to the last Interglacial period and c. 120,000 years old. The sand dunes, have formed high ridges and hills interspersed with low swales and flats....
53 Ms White describes the soil profile on the opposite side of Angels Beach Drive to lot 208 as consisting of a bleached white sand 0.5 cm thick over grey sand, 3.5 cm thick over black humic sand, c.10 cm thick with a dark grey gradational boundary over mid-grey sand c.45 cm thick. She identifies the Pleistocene era dune at a depth of one metre, and only the upper four centimetres of white grey sand was recently deposited material.
54 Ms Davies conducted extensive archaeological test excavations on lot 208, as described in her report of February 2003. Ms Davies excavated 191 test pits on lot 208. She reports that the average depth of shell material was 24.59 cm within the study area (at 5.3.3). The average depth of stone artefacts within the test pits was 34.12 cm (at 5.3.3). The undisturbed portion of the Pleistocene A horizon was encountered from 80 cm to one metre. As I understand it, the Pleistocene epoch covers the Earth's most recent period of widespread glaciation. In light of these findings the question of the sufficiency of the test pitting that had been done was a matter for the decision maker, who had all the relevant field testing results before him and considered them.
55 A decision may be unreasonable in the relevant sense, and therefore, an improper exercise of the power, where to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained: Luu v Renevier (1989) 91 ALR 39 at 50, (emphasis added). The Umwelt review does not add any factual material to that which was already before the decision-maker, neither, for the reasons I have discussed, was it of critical importance. The cautionary observation of Basten JA in Kindimindi, noted in par [22] above, is directly on point.
56 Moreover, as Deane J stated in Sean Investment Pty Ltd v MacKellor (1981) 38 ALR 363 (affirmed on appeal: (1982) 42 ALR 676), the duty of a decision-maker to pay regard to relevant matters does not mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that one of them was not specifically taken into account.
57 In my opinion, the allegation that the Director-General's decision was manifestly unreasonable, or irrational, or illogical on this ground must be dismissed.