CITATION : Anderson v Ballina Shire Council [2006] NSWLEC 76
[2]
APPLICANTS
PARTIES : Douglas Anderson and Susan Anderson on behalf of Numbahjing Clan within the Bundjalung Nation
RESPONDENT
Ballina Shire Council
[3]
KEY ISSUES: Judicial Review :- development consent for cycleway in coastal reserve - whether species impact statement was required - whether applicants were owed a duty of procedural fairness - whether development inconsistent with objectives of zoning - whether Council considered cultural heritage in making its decision - adequacy of consideration of cultural heritage
[4]
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 9, s 10
Ballina Local Environmental Plan 1987
Environmental Planning and Assessment Act 1979 s 5A, s 78A(8)(b), s 79C, s 111
LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 92, cl 228
National Parks and Wildlife Act 1974 s 84, s 86, s 90
Native Title Act 1993 (Cth) s 24KA
Threatened Species Conservation Act 1995 Sch 3
[5]
Country Energy v Williams (2005) 141 LGERA 426;
CASES CITED: Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24;
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;
Weal v Bathurst City Council and Anor (2000) 111 LGERA 181
[6]
DATES OF HEARING: 09/11/2005, 10/11/2005, 11/11/2005, 05/12/2005, 06/12/2005, 08/02/2006
[7]
APPLICANTS
A Oshlack (agent)
SOLICITORS
LEGAL REPRESENTATIVES: n/a
RESPONDENT
N Hemmings QC with A Pickles
SOLICITORS
Allens Arthur Robinson
[8]
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
[9]
DOUGLAS AND SUSAN ANDERSON ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION
Applicants
[10]
JUDGMENT
1 Cowdroy J: The applicants (hereafter referred to as "the Andersons" or "the applicants") seek a declaration that Development Consent 2004/746 ("the consent") issued on 13 May 2004 by the respondent ("the Council") to itself is invalid. The consent relates to the construction of a cycleway/pedestrian walkway ("the cycleway") as well as the upgrade of a car park and road entrance on land at Angel's Beach known as Lot 59 in Deposited Plan 827785 ("the site").
2 The site is in an area which has been extensively sandmined in previous years. Vegetation now covers much of the site, although a formed track, previously a vehicle track ("the track") used during the sandmining operations, remains. The track runs through a dunal system approximately 2 km in length, which was rehabilitated following the cessation of mining operations.
The cycleway
3 The consent relates to a portion of cycleway extending from the Coast Road underpass at its southern end to the Flat Rock Tent Park at its northern end. The proposed cycleway would link other cycle paths which have already been constructed by the Council. It forms part of a larger project to establish a network of cycle paths throughout the Ballina area.
4 Construction of the cycleway requires clearing an area 5 m wide along the length of the route. A bitumen track 3 m in width would be laid centrally within this corridor and a 1 m wide zone planted with ground cover would be created on each side.
5 The cycleway is intended to enhance the recreation facilities in the area, and also to facilitate use of the Angels Beach area by families and disabled or aged persons using self-powered vehicles. A large population of retired persons live in the Ballina community and the proposed cycleway would provide easier access to Angels Beach for this section of the local community.
Aboriginal cultural heritage
6 Mr Douglas Anderson, one of the applicants, is an Elder of the Bundjalung nation, which is the Aboriginal group from the Ballina area. The Bundjalung nation were the traditional owners of the site, and at the time when the consent was granted, had an undetermined land claim over the area. Mr Anderson testified about the history of his family and historical events in the locality. He deposed that in around 1845 a massacre of hundreds of Aboriginal men, women and children took place around Angels Beach ("the massacre"). He was taught the history of the massacre by his grandfather, who died in 1961 aged 104 years. Mr Anderson says that that it is inappropriate to build the cycleway in the location proposed because it would pass through the area of the massacre which is of great significance to local Aboriginal people. He does not oppose the construction of the cycleway in a different location, namely adjacent to the existing Coast Road.
7 In 2000, as part of a consideration of whether Blackead, Angels Beach and Flat Rock (in which area the site is found) should be declared an Aboriginal Place under s 84 of the National Parks and Wildlife Act 1974 ("NPW Act"), the National Parks and Wildlife Service ("NPWS") commissioned Inge Riebe to conduct an anthropological study of the area. The Court notes that some parts of Ms Riebe's report were derived from interviews with members of the Bundjalung nation, from whom permission to disclose the conversation was not obtained. The Court will not disclose those parts of the report.
8 Ms Riebe consulted with Elders from various Bundjalung tribes. Ms Riebe's report noted:
There was widespread concern that there were few places left where the evidence of Aboriginal living and activity in the area had not been damaged and it was regarded as important to retain some of these places for the young people of the future. There seemed to be general agreement that the places assessed here for Aboriginal Place Declaration should not be touched other than for regeneration to its original state.
9 Ms Riebe's report stated that:
A major aspect of the significance of this nominated Aboriginal Place is the fact that it is a key part of the area of a major massacre. The historical accounts of massacres and other killings of their ancestors hold a high level of significance for contemporary Bundjalung. The area here being assessed for Aboriginal Place Declaration is part of the area where the 1853/4 massacre of the Ngyabul people by the Moreton Bay Corps of the Native Police took place … Oral accounts say that people fled both to the back of Angels beach and to Black Head. Some people are said to have run away and died to the immediate west of Angels Beach where there is now a housing estate, others dying at Black Head.
10 Ms Riebe's report notes that in Aboriginal culture there are three bases for assessing the significance of a place, which she lists in descending order of importance:
Based on a traditional Aboriginal culture. The meaning of such a site is a contemporary expression of traditional cultural values, which while changed overtime (sic) are the result of continuous transmission about and connection to that site from pre European intrusion.
Based on the commemoration of historic events particular to the experience of Aboriginal people since invasion. The historic experience of Aboriginal people has been unique based on their cultures and their status in Australian society.
Based on archaeology or other scientific sources indicating Aboriginal use, not from oral tradition or folk culture. Such sites are meaningful to Aboriginal people as they give additional insights into Aboriginal prehistory or historic events of concern to Aboriginal people.
11 Ms Riebe assessed the significance of the site on each of these bases. In relation to the historical events at the site, she said:
This Aboriginal community, and Bundjalung in general, continue to struggle to have the loss of lives and the suffering under violence that occurred in their history recognised and to have the ability to honour the deaths of their ancestors with dignity. The protection of the place of this historical massacre is of great significance to this community.
The consent
12 As part of the application, the Council engaged an archaeological consultant (Ms Susan Davies) and an ecological consultant (Mr Peter Parker) to prepare reports on the suitability of the proposal. Council officers prepared a report ("The Planning Committee Report") which addressed issues of, inter alia, cultural heritage. The Planning Committee Report did not refer to the fact that the area was the site of the massacre. It recommended approval of the cycleway subject to various conditions which required, inter alia, the preservation of native vegetation as well as continuing consultations with the Jali LALC and the Cook family. No mention was made of the Anderson family.
13 The development application for the cycleway was approved at a meeting of the Council held on 13 May 2004. At that meeting the Council had available to it the Planning Committee Report as well as the Regulatory Services Group application file (which included the development application, Statement of Environmental Effects and accompanying plans and documents and copies of all public submissions received in relation to the development application) and the Civil Services Group project file (which included all documents relating to the preparation of the development application prior to it being lodged with the Council).
Applicants' claims
14 The points of claim allege that:
(i) The Council denied the applicants procedural fairness by:
(a) failing to inform the Council's consulting archaeologist that the applicants should be consulted;
(b) relying upon the report of the consulting archaeologist, which had been prepared without consulting the applicants, in making its decision;
(b) failing to include in the conditions of consent any condition requiring consultation with the applicants in relation to the development of a Cultural Heritage Management Plan ("CHMP");
(c) failing to include in the conditions of consent any condition requiring that the applicants be entitled to monitor construction work to ensure no artefacts were disturbed;
(d) failing to provide copies of the CHMP or the archaeological assessment to the applicants or to the Jali Local Aboriginal Land Council ("the Jali LALC").
(ii) The Council had a duty to consult the applicants because:
(a) Mr Douglas Anderson was an Elder of the Bundjalung nation;
(b) at the time the report was compiled, the applicants had lodged a native title claim which had not yet been dismissed;
(c) the National Parks and Wildlife Service had recommended that the present views of the Aboriginal community should be sought.
(iii) The Council was required to provide a Species Impact Statement ("SIS") with respect to the threatened flora species, namely stinking cryptocarya. Its failure to do so meant that the Council did not comply with s 78A(8)(b) of the EP&A Act. The Council's assessment was flawed because:
(a) The eight-part test conducted by the Council's ecological expert pursuant to s 5A of the EP&A Act, on the basis of which it was decided that an SIS was not required, failed to consider that stinking cryptocarya would be adversely impacted by weed incursion and herbicide use;
(b) the Council relied in part upon Mr Parker's report of June 2000 which did not consider the factors under s 5A of the EP&A Act;
(c) the stinking cryptocarya in the northern part of the site was not surveyed.
(iv) The Council failed to obtain concurrence from the Director-General of the Department of Environment and Conservation as required under s 79C(3)(b) of the EP&A Act.
(v) The Council failed to consider relevant considerations pursuant to s 79C(1) of the EP&A Act, namely:
(a) the Council's consultant archaeologist did not make any attempt to discern Aboriginal community views of the cycleway, consider alternative route options or undertake an anthropological assessment, as recommended by the Department of Environment and Conservation;
(b) the Council did not take into account that its consultant archaeologist had inspected less than 5% of the route, without being accompanied by an authorised Aboriginal monitor representing the Jali LALC or the applicants;
(c) the Council failed to consider that the site of the cycleway is significant to the local Aboriginal community because it was the location of the massacre.
(d) the Council did not take into consideration s 24KA of the Native Title Act 1993 (Cth) in making its decision.
(vi) The consent would result in a breach of s 86 and/or s 90 of the NPW Act because it was likely to involve the disturbance of Aboriginal objects without a permit to do so;
(vii) The development is prohibited in the 7(f) zoning under the Ballina Local Environmental Plan 1987 ("the LEP") because it would have a significant detrimental impact upon the habitat, landscape or scenic quality of the locality, and it has not been demonstrated that there is an overriding public need for the development.
15 Other claims were made in the applicants' points of claim with respect to the insufficiency of the assessment of the impact of the cycleway upon fauna. These claims were not pursued by the applicants.
Consultation with the Aboriginal Community
16 Mr Rod Willis, Chief Town Planner of the Council, described the consultation procedures agreed between the local Aboriginal community and the Council following a mediation in 1992. Consequent upon that mediation, the Council identified sites of significance to the local Aboriginal community on a map. Procedures for advice to prospective developers and consultation with local Aboriginal people were agreed and set out in a three-page document entitled "Administrative and assessment procedures relating to proposals, enquiries and applications with respect to identified Aboriginal site areas". In relation to pre-lodgement advice, the document stated:
In cases where proposals involve aboriginal sites, the person making the enquiry should, in addition to the normal advices, be requested to discuss the proposal with the Jali Land Council's nominated representative.
17 In relation to the lodgement and assessment of applications, the document stated:
Upon lodgement of applications involving lands containing aboriginal sites, planners/inspectors shall check that the applicant has addressed the issue and preferably that the applicant has consulted with the Jali Local Aboriginal Land Council and National Parks and Wildlife Service.
Such applications should be referred for consultation/affirmation to the Jali Local Aboriginal Land Council and the National Parks and Wildlife Service prior to determination.
18 The Council first began considering the details for construction of a cycleway along Angels Beach in 2000. On 19 June 2000 Mr Willis wrote to Mr Doug Anderson, Mr Lewis Cook and Mr Artie Ferguson care of the Jali LALC, requesting a meeting at Angels Beach to walk over the proposed cycleway route.
19 A meeting was arranged for 14 July 2000 between the Council and Mr Anderson, Mr Cook and Mr Ferguson. On 5 July 2000, Mr Anderson was sent a facsimile (care of the Jali LALC) from the Council reminding him of the meeting. In cross-examination Mr Anderson said he had not received that facsimile. On 14 July 2000 Mr Ferguson walked the route with two representatives from the Council. No Aboriginal archaeological material was found during this inspection. Mr Anderson did not attend.
20 On 17 July 2000 another letter was sent to Mr Lewis Cook and Mr Doug Anderson, requesting a meeting with Council officers on the site. Mr Anderson said in cross-examination that he had received the letter. On 31 July 2000 Jason Sines of the Council sent a facsimile addressed to Darrel Creighton of the Jali LALC. That facsimile stated:
Dear Darrel I have been sending letters to get Doug Anderson to come & meeting with myself & Greg Trent regarding any issues or concerns at the proposed Angels Beach cycleway. To date the only person who met with us was Artie Ferguson, but I know Doug also have some concerns about the cycleway.
If you could pass on a message letting Doug know that he can ring me & make a time to meet with us, cause I know he as got a sore leg at the moment …
21 On 1 August 2000 the Heritage and Culture committee of the Jali LALC held a meeting. Jason Sines of the Council records in a file note dated 2 August 2000 that the committee stated that it would send representatives to Ballina to meet with the Council after a meeting of the whole Aboriginal community to be held on 14 August 2000.
22 On 15 August 2000 the Jali LALC wrote to the Council advising of its recommendations relating to the proposed cycleway. The letter indicated, inter alia, that it was the view of the Jali LALC that the proposed cycleway should be restricted to the existing road corridor. The letter also referred to planned road widening in East Ballina and stated:
JALI Local Aboriginal Land Council does not represent Native Title claimants and therefore Ballina Shire Council should advise and consult with the respective groups before determining wether [sic] works should proceed for this area.
23 On 24 November 2000 Susan Anderson on behalf of the Anderson family sent a letter to the Council again objecting to the proposed cycleway route. The letter stated:
We strongly oppose the proposed cycleway route between Ballina and Lennox Head because it traverses sacred sites, unmarked aboriginal burial grounds, areas which were part of the 1850s massacre, initiation and ceremonial areas and other significant Dreamtime places.
…
We must insist that the Shire Council employ an archaeologist and anthropologist to fully research the above route of the cycleway.
My family and I are in the process of filing a Native Title Claim over all the Crown Lands in the Shire.
24 On 31 March 2001 Councillor Howes from the Council wrote a letter of complaint to the Department of Land and Water Conservation ("DLWC"). Cr Howes noted the area was under consideration for declaration as an Aboriginal Place. Her letter then described a meeting between the Council engineer (Mr Trent), a DWLC officer, Mr Ryan, and Aboriginal Elders on 28 March 2000 and stated:
I was an observer to the proceedings at Angels Beach on the morning of 28th March, and was more than surprised to see Ryan pushing Trent's cause. I asked him why he was telling the aboriginal elders they should let the Council construct the cycleway there, despite repeated "no's" from the elders.
…
I wish to lodge a formal complaint about the way Ryan has been conducting the consultation proceedings with the aboriginal people.
25 Councillor Howes received a reply from DLWC on 20 April 2001. That letter stated:
With regard to the proposed cycleway for the southern section of Angels Beach, the department's correspondence to Ballina Shire Council on 20 December 2000 was clear in its recommendation that the route should be located within the Road Reserve, in recognition of the high conservation value of that area.
26 On 9 April 2001 the Council was sent a letter from Mr Anderson objecting to the cycleway. Attached to the letter was a petition signed by approximately sixty members of the Aboriginal community.
27 On 28 March 2002 the location of the cycleway came before a meeting of the Council. The report prepared for the meeting stated as follows:
The purpose of this report Is to seek Council's further consideration of it's [sic] preference in relation to the location of the Ballina to Lennox Head cycleway in the Angel's Beach precinct.
…
At the last meeting of Council, I advised that I was in the process of reviewing the original proposal and seeking to address the concerns of objectors … Council will also recall that at the last meeting it resolved the following.
"That Council indicate to the Coastal Committee
A declaration that Development Consent 2004/76 issued by the Respondent is void and of no force and effect.
An order that the Respondent, its servants and agents be restrained from taking any steps to construct the proposed walkway and cycleway without first obtaining a valid consent for its construction.
Costs reserved.
The exhibits be returned.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
its strong desire that the Coastal cycleway be progressed
its opinion that the cycleway should not run adjacent to the Coast Road"
…
Whilst the Council's resolution, and previous similar ones, were understood to promote the idea of a direct association by the cycleway to the coast, in essence the environmental concerns at Angel's Beach would suggest that this preference might not be the most appropriate at this location.
28 The report concluded:
Notwithstanding the Council's stated preference for the cycleway to be located east of the coast road, it is suggested to the Council in the area of South Angel's Beach a precautionary approach is required, and hence it is suggested that the cycleway be located in Beachfront Parade.
…
Accordingly, should Council concur, the only remaining issue is the further consultation with the indigenous community. It is assumed that the alternative proposal is more attractive to the indigenous community than the original concept.
Whilst it is understood that this issues has been before the Council for some time and that the alternative proposal represents a change in direction, it is suggested to the Council that such an approach will see the further progress of the project, whilst recognising the concerns of key stakeholders, yet still providing a project that should provide the community benefits intended.
29 It appears from the papers before the Court that a decision on this recommendation was deferred pending an inspection of the site but that the Council rejected the suggested amendment to the proposed location at its meeting of 24 April 2002.
30 On 10 May 2002 the Council sent a facsimile to Mr Anderson care of the Jali LALC inviting him to attend a meeting with the Council on 22 May 2002. A letter regarding the meeting was also sent on 14 May 2002. It is not clear whether this meeting time was ever agreed to by Mr Anderson. The Andersons did not attend at the appointed time. A notation dated 12 June 2002 by the Council's Group Manager, Civil Services was made on a file copy of the Council letter requesting that another meeting be arranged.
31 On 24 June 2002 a design brief was prepared by Ballina Shire Council for the cycleway.
32 On 17 September 2002 Mr Anderson attended a meeting with the Council at which he raised the Aboriginal community's objection to the cycleway proposal. The minutes of the meeting indicate that Mr Anderson asked that the cycleway be constructed beside the road, because the dune area was the site of the massacre and was culturally significant to Aboriginal people.
33 On 21 March 2003 a representative of the Council met with the executive of the Jali LALC. In a follow up letter dated 28 March 2003 the Council stated:
Firstly, I note your initial response reconfirming previous advice of your opposition to any proposal within the reserve. However, notwithstanding this response I am asking, on behalf of the Council, that you again consider the proposal and if you feel able, participate in any consultative forums of your choosing to enable use to establish a proposal acceptable to you.
34 On 4 February 2004 the Council lodged a development application for the cycleway ("the DA") engaged GHD to prepare the application, since the Council was both the applicant and the consent authority. On 20 February 2004 the Council notified the Jali LALC of the DA. On 15 March 2004, the Council received a letter from Douglas and Susan Anderson objecting to the cycleway because of its location in a culturally significant area.
35 Ms Davies was engaged by GHD to undertake an archaeological assessment of the proposal. Ms Davies approached NPWS (now part of the Department of Environment and Conservation) to enquire as to the appropriate Aboriginal groups to consult in relation to the cultural heritage of the area. She was told that the Jali LALC was the appropriate consultative body. Ms Davies was also told that she should separately contact the Cook family, who had indicated to the Department that they were not represented by the Jali LALC.
36 On 10 November 2003 Ms Davies wrote to both the Jali LALC and the Cook family, enquiring whether they wished to participate in the field investigations of the site to be undertaken on behalf of the Council. Ms Davies did not receive a response from either the Jali LALC or the Cook family. She then contacted them by telephone and arranged to meet Lois Cook and Mr Robert Brown, a site officer from the Jali LALC, on the site on 30 December 2003.
37 Ms Davies called Mr Brown on 30 December 2003 to confirm the arrangements. Mr Brown told her that he had now been instructed not to participate, because the study area was the subject of an application for protection under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1986 (Cth). Ms Davies informed him of her understanding that the application had been dismissed but Mr Brown reiterated that he had been told not to attend.
38 Ms Davies inspected the site on 30 December 2003 accompanied by Lois Cook. On 5 January 2004 Ms Davies called Mr Brown to advise him of the results of the field survey.
39 On 28 January 2004 Ms Davies sent a copy of her draft report to the Jali LALC asking for submissions by 6 February 2004. No reply was received.
40 On 6 February 2004 she spoke to Troy Anderson (the Chairman of Jali LALC) by telephone to enquire whether anything was to be added to the draft report. He responded saying that he would try to provide the information but no comments were received.
41 When cross-examined Ms Davies said her report was not an anthropological report, and did not require extensive consultation with all members of the Aboriginal community. The report was purely archaeological. Ms Davies did not believe she was required to consult beyond the Jali LALC or to inquire of the Jali LALC whether other parties should be consulted. Apart from the advice of NPWS concerning Ms Cook, she understood that the entire local Aboriginal community was represented by the Jali LALC, including the Anderson family.
42 Mr Willis testified that the Jali LALC did not make any submissions directly to the Council following the lodgement of the DA for the cycleway, or otherwise participate in the approval process. The prior concerns expressed by the Jali LALC were retained in the Council's records, although they were not specifically referred to in the Planning Committee Report, as they were not submissions made in respect of the DA but rather in relation to the initial consultation process.
43 At the Council meeting of 13 May 2004 the Council considered the DA. The Planning Committee Report, which summarised the relevant material and was before the Council at the time it made its decision, stated as follows:
Council has previously resolved to endorse the concept of expanding the cycleway network to link Ballina with Lennox Head via a shared cycleway/walkway east of the Coast Road. This linkage is part of an overall network based on the Ballina Cycleway Master Plan, which was devised and adopted by Council in the early 1980s.
44 With respect to alternative routes the report stated that:
Council has over recent years given consideration to alternative routes, however the proposed location of the cycleway/walkway was selected following considerable consultation with stakeholders including local Aboriginal groups and the Angels Beach Dunecare and Reafforestation Group and the Beachfront Parade Dunecare Group.
45 Both Mr Douglas Anderson and Mr Troy Anderson attended the Council meeting held on 13 May 2004 when the DA was considered, and addressed the Council with respect to their concerns about the cycleway. However the Council resolved to approve the DA subject to conditions. The conditions imposed upon the consent included the preparation of a cultural heritage management plan ("CHMP"), ongoing consultation with the Cook family and the Jali LALC, and the erection of a plaque acknowledging the cultural value of the area to the local Aboriginal people.
46 On 17 February 2005 a copy of the draft CHMP was sent to the Jali LALC and to Ms Lois Cook, requesting comments from the recipients.
47 Mr Anderson deposed that he was not specifically consulted by the Council regarding the DA for the cycleway, and said that notification of Council meetings always arrived late. His testimony was supported by Susan Anderson.
48 Mr Anderson also deposed that he first saw the archaeological report and CHMP on 13 September 2005 and was dismayed and upset to learn that the report did not consider the significance of the site as a result of the massacre. Mr Anderson says that only an archaeological, not an anthropological, assessment was carried out by the Council, despite the fact that an anthropological study was recommended by NPWS.
Aboriginal Place Applications
State legislation
49 At an unknown date, but apparently at some time during the early 2000 NPWS began investigating whether the Angels Beach area should be declared an "Aboriginal Place" pursuant to s 84 of the NPW Act. It is not clear from the evidence whether this was following a request from the applicants (or others), on the initiative of the NPWS. As referred to in [7] above, NPWS commissioned Inge Riebe to assess the significance of the Angels Beach area and prepare a report and recommendations for the Minister.
50 Ms Riebe's report was completed in June 2000. It found that the protection of the place of the historical massacre was of great significance to the community, and recommended that the Aboriginal Place be declared. It also recommended a conservation agreement be negotiated between Jali LALC, the Council, the dune care groups and the Native Title claimants.
51 On 30 October 2000 NPWS wrote to the Council regarding the possible Aboriginal Place declaration at Angels Beach. The letter stated:
An anthropological report for Angels Beach by consultant Inge Riebe was sent to Jason Sines in your office, approximately three months ago, for the Shire Council's information and to provide any comments regarding the Aboriginal Place nomination. To date the Service has not received any comments from the Shire Council.
52 On 20 November 2000 NPWS sent a further letter to the Council outlining the Aboriginal Place declaration process, and seeking the Council's input. NPWS requested that the matter be placed on the agenda of the next Council meeting. Such letter states, inter alia:
The declaration of an Aboriginal Place affords an area the same protection as automatically provided to an Aboriginal relic. That is, once declared as an Aboriginal Place the area cannot be knowingly destroyed, defaced or damaged without the consent of the Director-General of the National Parks and Wildlife Service.
53 The letter also outlined the cultural significance of the Angels Beach area, stating (inter alia) that:
The Angels Beach area is also the scene of an important historical event. In 1853/54 approximately 2-300 Ngyabul Bundjalung people who were camped at Black Head were massacred by the Moreton Bay Corps of the Native Police in retaliation for a massacre of Europeans to the north of the Tweed River. Oral accounts tell of bodies being dropped off the cliff at Black Head while some people were able to flee inland. Other people fled along the beach up to Flat Rock and towards Lennox and Broken Head. The details of this event have been passed down both through European and Aboriginal oral tradition .
54 The letter notes that during the course of her investigation Ms Riebe had spoken to numerous members of the Council, all of whom were in favour of the Aboriginal Place declaration. The letter noted that if a declaration of an "Aboriginal Place" were made, the consent of NPWS may be required for the cycleway.
55 On 19 February 2001 NPWS again wrote to the Council requesting its comments upon the proposed declaration. That letter reiterated the request for the Council's submissions and for the matter to be put on the agenda of the next Council meeting. The letter also indicated that submissions were required by 9 March 2001.
56 There is no further evidence in relation to the Aboriginal Declaration under the NPW Act. Although there is no evidence of a formal decision being taken not to make the declaration, the Department of Environment and Conservation, which now administers the NPW Act, has confirmed that no declaration has been made.
Federal Legislation
57 On 4 March 2001 Susan Anderson wrote to the Federal Minister for Aboriginal Affairs seeking protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Federal Act"). That letter was forwarded to the Minister for Environment and Heritage who was responsible for the Federal Act.
58 Subsequently on 11 April 2001 the Federal Department of Environment and Heritage ("DEH") wrote to Ms Anderson seeking clarification whether the request was for emergency protection under s 9 of the Federal Act or for permanent protection under s 10 of the Federal Act. On 19 April 2001 Ms Anderson replied to DEH stating that she was seeking permanent protection under s 10 of the Federal Act.
59 In May 2001 the Anderson family made a second application to the Federal Minister for the Environment and Heritage for the protection of the Angels Beach area under s 10 of the Federal Act 1984 (Cth).
60 On 9 May 2003 the Council submitted a proposal to the Federal Minister who was then considering the application for a declaration under s 10 of the Federal Act. The submission referred to the cycleway process and to the consultation with the Aboriginal community as part of the proposal. The submission noted that a key stakeholder group had been set up in which the Jali LALC and Native Title Claimants were included. The submission stated:
The primary goal of the group was to seek to see if a detailed route could be established from the conception options that had formed vigorous debate in the past …
It is fair to say that aboriginal representation at the first meeting advised of general opposition to the project. That is, the representation advised their issues were broad and that they would not be a party to attempting to address same via this detail design process.
61 On 1 December 2003 the Federal Minister for Environment and Heritage determined not to make a declaration under s 10 of Federal Act with respect to the Angels Beach area.
Archaeological evidence
62 The applicant relied upon the evidence of Stuart Huys, a consulting archaeologist, who visited Angels Beach to conduct his assessment. Dr Huys was aware that the area had been extensively sandmined and agreed that sandmining would have resulted in the disturbance or complete destruction of Aboriginal sites in the sandmined area. However Dr Huys said it was not clear whether sandmining had occurred in the area of the road itself. If it had not, Dr Huys said that Aboriginal artefacts may be present along the proposed route. On the basis that some areas had been left undisturbed, he recommended that sub-surface excavations by a qualified archaeologist and representatives from Aboriginal stakeholder groups be conducted before construction work began on the cycleway
63 Dr Huys identified a possible "Aboriginal Heritage site" during his visit on 4 November 2004, on the basis of a small igneous flake piece, two pieces of shell and a small piece of bone found on the surface of the northern section of the sandmining road. The road has been formed using road base.
64 Mr Willis has been a town planner for 26 years and has been employed by the Council for approximately 20 years. He deposed that Council records confirm that the whole of the Angels Beach area including the area of the present track was the subject of intense sandmining between 1956 and 1969. Records from the Department of Mineral Resources show that there were three mining leases in the Angels Beach area, all of which were actively mined. Furthermore, an aerial photograph from 1967 shows the access road in a different location and shows mining activity in the area of the currently existing track.
65 Mr Willis deposed that the sandmining process involved dredging with a floating cutter dredge to depths of up to 10 m. Sand was removed as a slurry and subject to centrifugal or screen separation. The residue sand was stockpiled and eventually replaced in the excavation by bulldozers.
66 Susan Davies, heritage consultant, was engaged by GHD, consultants to the Council, to undertake a cultural heritage assessment in the area of Angels Beach. Ms Davies said because the whole area had been highly disturbed by sandmining, it was "highly unlikely that there are remaining archaeological deposits within this southern portion of the study area".
67 Ms Davies concluded:
In my opinion, it is highly unlikely that areas at Angels Beach that have archaeological significance will be impacted by the construction of the proposed cycleway. A Cultural Heritage Management Plan will protect any items identified before or during construction.
68 Ms Davies inspected the site again in November 2005 but could not locate the flake piece identified by Mr Huys or identify any "site" which would constitute a "definitive aboriginal site". At this time she did locate a small piece of bone at the side of the track, however she considered that it had been imported with the road base. Ms Davies said that Mr Huys's conclusion that the site was an "Aboriginal heritage site" was inconsistent with the known extent of sandmining across the site. Following the November 2005 survey she reiterated her opinion that the site did not contain any Aboriginal archaeological materials.
Assessment of cultural heritage
69 The applicant challenged not only the appropriateness of the archaeological assessment but also claimed that the assessment of Aboriginal cultural heritage was inadequate. It claims that the issue of the Aboriginal massacre on the site, and the significance of the site for that reason, was not considered.
70 On 23 July 2003 GHD sent a tender proposal to the Council for preparation of the DA. GHD was ultimately engaged by the Council to prepare the DA on behalf of the Council. In its proposal, GHD stated as follows with respect to cultural heritage assessment:
The initial task during this phase of the cultural heritage component would be to inform the Jali [LALC] and the Cook Family of the study and to commence consultation, and organisation and co-ordination of the field survey phase of the cultural heritage component. At this stage it is unclear whether there are Native Title Claimants that should be consulted. This information will be sought not only from the Jali LALC and the Regional Land Council but also the National Native Title Tribunal.
… Information regarding reported/known (though unrecorded) sites and places would be sought from the Jali LALC, the Cook Family and any Native Title Claimant Groups.
The above background information, along with appropriate environmental data, will provide not only an archaeological understanding of the study area but would assist in identifying terrain considered to have high archaeological and cultural potential.
71 GHD subsequently sought comment from various State government departments with respect to the preparation of the review of environmental factors for the proposed cycleway. On 1 December 2003 NPWS wrote to GHD outlining its recommendations. In relation to Aboriginal cultural heritage the letter stated as follows:
On several occasions the DEC has been approached by representatives of the Aboriginal community seeking support in opposing the location of the cycleway within the Crown Lands east of the Pacific Highway, particularly in relation to the Angels Beach area. There are several recorded Aboriginal sites in this area including physical Aboriginal sites and places of significance to the Aboriginal community.
It is also understood that an archaeological consultant has been engaged to assess the potential impacts of the proposal on Aboriginal heritage values of the affected lands. However, given the past concerns expressed by Aboriginal community members in relation to the proposal, it is recommended that the archaeological consultant engaged to undertake the assessment should determine the communities [sic] present views regarding the proposal and also present them with alternative route options for the location of the cycleway.
To assist evaluation of the potential impacts of the proposal on Aboriginal heritage values, it is recommended that the proponent undertake a search of the NPWS Aboriginal Heritage Information Management System (AHIMS) … An assessment of the cultural heritage values of the subject land should be undertaken by an appropriately experienced person, in consultation with the local Aboriginal community. The outcome of the assessment and consultation should be incorporated in the REF.
72 Ms Davies was subsequently engaged to conduct the assessment of Aboriginal heritage at the site. Ms Davies' report dealt primarily with the archaeological value of the site. However, her report did refer to cultural heritage values. In explaining cultural heritage management, she states:
The Aboriginal cultural record can generally be divided into two sections: physically identifiable object/s (archaeological sites) and object/s that are not physically identifiable (sites sacred or significant to Aboriginal people which can be unmodified features of the landscape) ... In the latter case, the importance of a cultural heritage area or precinct may be greater than the sum of its individual sites/places.
73 Ms Davies refers to five major criteria against which the significance of Aboriginal cultural heritage can be assessed, namely social and political significance, scientific significance, historical significance, educational and economic significance, and aesthetic significance.
74 Having set out her methodology, Ms Davies report then proceeds to evaluate the site. In relation to cultural values, her report, under the heading "Indigenous Cultural Assessment", states:
Lois Cook does not identify specific cultural sites or items within the study area. However, Ms Cook notes that the terrain would have been part of the Cultural Landscape … and notes that the land would have been traversed and the resources exploited. The area also has important associations and connections with other sites and places within the broader region (See Appendix 1).
Although the Jali LALC did not participate in the survey … the cultural significance of the area to them is demonstrated by the submission of a Section 10 application … The dismissal of this application does not necessarily diminish the significance of the area to the applicants.
75 Appendix 1 to Ms Davies report, referred to in the above extract, contains a report submitted by the Cook family. This report refers to the massacre and the consequent significance of the site to the local Aboriginal people.
76 Ms Davies assessed the impact as follows:
The study area has cultural values for both the Cook family (see Appendix 1) and the Jali LALC which generally relate to the possible prior use of the land and the significant connections and associations with other sites in the broader area. Although the proposed development area has been previously disturbed and tracks and an old sand mining road is located through the area, the cultural values relate to the area per se . Hence, development activities have the potential to impact upon these values.
77 Ms Davies' report referred to Ms Riebe's report:
Reibe [sic] undertook an assessment of significance for Aboriginal Place Declaration of Black Head, Angels Beach and Flat Rock … Reibe [sic] identifies both the Cook and Anderson families as stakeholders for the area … Reibe [sic] states:
"All persons spoken to desire to protect the area and have known it as a site of importance to the Aboriginal community, and an area where no development or other desecrating activity should take place."
Reibe [sic] recommended that the area be declared an Aboriginal Place and further recommended that:
"… a conservation agreement be negotiated between Jali Land Council, the Native Title Claimants, Dune Care and Ballina Shire Council. We recommended that this agreement be supported by New south [sic] Wales National Parks and Wildlife Service, following the wishes set down by the Aboriginal stakeholders of no activity other than those initiated by themselves and regenerative activities as per agreement with Dune Care." [references omitted]
There were no other references to the contents of the Riebe report in Ms Davies' report.
78 In cross-examination it was put to Ms Davies that she had failed to assess properly the cultural significance of the area and in particular had omitted to consider the massacre, which was of specific relevance to the assessment of the cultural significance. Ms Davies was referred to the Riebe report and was asked why she had not referred to the Ms Riebe's findings in more detail. Ms Davies responded that her brief was to do an archaeological assessment, not an anthropological assessment, and that those matters were beyond the requirements of her brief.
79 Following the submission of the DA the Council sought comment from various government departments upon its proposal. On 16 April 2004 the Council received a letter from the Department of Environment and Conservation to this effect. The letter stated:
It is noted that the Cultural Heritage Assessment prepared by Davies Heritage Consultants (January 2004) did not identify any indigenous archaeological sites / items or discrete cultural places within the study area. The recommendations in that report to undertake liaison with the local Aboriginal community and Jali Local Aboriginal Land Council throughout the construction of the cycleway / pedestrian walkway is supported. Likewise the recommendation that a plaque be erected to reflect the significance of the area to the traditional owners of the area is also supported.
80 The Council subsequently prepared the Planning Committee Report. In relation to cultural heritage, the Planning Committee Report noted the objections of the Andersons to the proposed route, stating:
Submissions claim that consultations with indigenous groups have been flawed, with the proposal failing to accurately acknowledge the Aboriginal cultural spiritual interests. Custodians of the Numbahjing Clan (Andersons) have made a Native Title Claim over all Crown Lands in the area of the proposed cycleway and strongly oppose the proposed route of the cycleway.
81 The report then stated:
Throughout preparation of the development application Council's Civil Services Group consulted with the Jali Local Aboriginal Land Council and local members of the aboriginal community. In addition a Cultural Heritage Assessment of the proposed cycleway/walkway has been carried out by Davies Heritage Consultants P/L. This assessment, which included consultations with local Aboriginal groups, did not identify any indigenous archaeological sites/items or discrete cultural places within the study area. Although the proposed development area has been previously disturbed and tracks and an old sand mining road is located through the area, the assessment acknowledges the cultural values that are attached to this locality.
82 Ms Davies was also criticised by the applicants for not having referred to the findings of Dr James Weiner in her report. Dr Weiner had completed an draft assessment of cultural heritage at a site at North Angels Beach in February 2003, which was prepared for the purposes of another proposed development. That report included detailed information about the massacre including excerpts of interview from numerous Aboriginal persons. Ms Davies' report indicated that she had read Dr Weiner's report but it did not refer to any of his findings. Under cross-examination Ms Davies said that this was because the report was clearly marked as confidential and she was not at liberty to refer to the material contained therein.
83 Because of its confidential nature, only part of the report was tendered in these proceedings. That part recorded the interview with Mr Douglas Anderson who was able to give his consent to its tender. At the top of each page of the report the following note appears:
This document has been provided on a confidential and without prejudice basis. It is to be used only for the purposes of mediation.
84 The excerpt of interview of Mr Anderson refers to the massacre as well as to traditional Bundjalung stories relating to Flat Rock.
Ecological evidence
85 Dr Stephen Ambrose, ecologist, provided an affidavit concerning the ecology of the area through which the walkway would be constructed. Dr Ambrose inspected the site on 21 and 22 October 2005, accompanied by Mr Lee Anderson, President of the Angels Beach Dunecare and Reforestation Group.
86 Dr Ambrose concluded the site contained littoral rainforest, which is now listed as an endangered ecological community in the Schedule to the Threatened Species Conservation Act 1995. However, since the Council's decision preceded the listing of littoral rainforest under the Act, there was no statutory obligation to conduct an 8-part test.
87 Dr Ambrose considered that the quality of the littoral rainforest habitat varies considerably across the site. The remnants adjacent to the overpass had a high conservation value because they contained a high proportion of plant species which are characteristic of littoral rainforests. Collectively they contain at least three threatened or rare plant species, of which the species relevant to these proceedings is Stinking Cryptocarya (Cryptocarya foetida). Those areas were relatively free of invasive weeds and introduced grasses except along the edges where weeds had invaded from adjacent areas.
88 Dr Ambrose considered that the littoral rainforest in the far northern and far southern areas of the site had medium conservation value. Those areas had a much higher infestation of weeds, including bitou bush and lantana at the northern end and bridal creeper at the southern end. There was also a lower diversity in richness of rainforest plant species in these areas and although threatened plant species occurred in these remnants, they only occurred in very low numbers.
89 Dr Ambrose considered that the areas of littoral rainforest within the site adjacent to the cycleway were also of medium conservation value, but would improve as the ongoing bushland restoration works proceeded.
90 Dr Ambrose was concerned that the construction of the cycleway may have negative effects upon the population of stinking cryptocarya. He believed the proposal increased the risk of weeds and introduced grasses invading the known habitat of the cryptocarya, and would also require increased use of herbicides in the vicinity of the plants. Dr Ambrose explained this concern as follows:
Well the wider the track the greater potential wind funnelling for the transfer of weeds and also I guess by upgrading the track you're going to attract more bicycles and more pedestrians and they can act as vectors for carrying weed material or introducing material into the area. So if the area isn't treated with herbicides then you've got the potential of further encroachment of weeds into the little rainforest where the threatened plant species are. If it's treated with herbicides then you've got that risk of herbicide sprays then impacting upon young saplings or seedlings of a threatened plant species.
91 Dr Ambrose said that there was a significant risk of herbicide spray drift on still days and that the nearest cryptocarya seedling he observed was only 5 m west of the proposed walkway. Because of sea breezes he believed that herbicide sprays were likely to drift into the littoral rainforest if sprayed aerially.
92 Dr Ambrose considered that these issues should have been addressed in the 8-part test conducted by Mr Parker and subsequently by Mr Gaskell of the Council. Accordingly, Dr Ambrose disagreed with the conclusion of the 8-part test prepared by the Council that the proposed development would not significantly impact upon the status of cryptocarya.
93 Mr Peter Parker, a fauna and flora consultant, provided evidence for the Council. Mr Parker said that the Angels Beach dunal environment was one of the most intensively surveyed areas of native vegetation in northern New South Wales. Two dune care groups are active in this small section of coast line, both of which had taxonomic expertise and the capability to collect and forward her samples of any species.
94 With respect to the applicants' claim that no survey of the northern section of the route was undertaken, Mr Parker responds as follows:
That claim is wrong. Flora surveys were conducted along the entire route of the proposal and no threatened species were located within the construction zone. These results are reported in Parker 2000, Parker 2004 and a letter to Council from Peter Parker Environmental Consultants Pty Ltd dated 28 April 2004.
95 Mr Parker said that the only real dispute between his evidence and that of Dr Ambrose was in relation to the potential impact of herbicides upon the cryptocarya. Mr Parker disagreed with Dr Ambrose's assessment of the risk to cryptocarya, believing that the impact from weed invasion and herbicide spray would be minimal. He noted that herbicide use was to occur only in accordance with the Angels Beach Vegetation Management Plan ("the VMP") which had been designed to minimise adverse effects on native plants. The precautions to be taken in applying herbicides would prevent any negative impact upon the cryptocarya.
96 Further, Mr Parker stated that the concentration of herbicide used by dune care groups is particularly low, being between 1:250 and 1:400. Native plants are not affected at this low concentration when spraying in winter and using protective plant guards. Mr Parker said that dune care groups have used herbicides in the area for over 15 years without any negative impact upon cryptocarya.
97 Mr Parker concluded:
The proposal for management of weeds does not alter in any way the results of the 8 part-test pursuant to s 5A of the EP&A Act which was provided in my flora and fauna reports with respect to the stinking cryptocarya.
98 Mr Andy Erskine also gave evidence for the Council. Mr Erskine is an expert in horticulture, bushland regeneration and landscape design, and a Senior Project Officer at Environmental Training and Employment (EnviTE) Pty Ltd ("EnviTE"). EnviTE is a non-profit organisation which supervises bush regeneration and conducts training for persons receiving unemployment benefits and for community and land care groups. Mr Erskine prepared the VMP and undertook a pre-clearance survey for the purpose of preparing a Revegetation, Rehabilitation and Weed Control Plan ("the RRWCP").
99 Mr Erskine said that prior to work commencing dune care groups will receive training in Aboriginal cultural awareness which, in particular, will ensure they are aware of any Aboriginal artefact which is uncovered during the work.
100 Mr Erskine said that he considered that there would be no adverse impact to threatened species by the creation of the walkway.
101 Mr Willis said that there were several dune care groups which worked in the vicinity of Angels Beach. Weed control is funded by public monies for which an application is made through the Council to Enviro Trust, a national initiative. Mr Willis has extracted from the files correspondence from the Angels Beach Re-afforestation Group Inc. The records show that in 2003 numerous areas of the dunes on each side of the existing walking track (the site of the cycleway) have been sprayed with poisons. The statements of the group record that the dunes have been the subject of management for 13 years. The proposal for funding records the proposal for future spraying to be conducted by an expert.
Applicant's submissions
102 The applicants submit that the construction of the cycleway was likely to have a significant impact on a threatened species which, pursuant to s 78A(8)(b) of the EP&A Act, required the provision of a Species Impact Statement ("SIS"). It is claimed that the respondent breached s 79B(3)(b) of the EP&A Act by granting consent where it is likely to significantly affect threatened species or their habitat without a concurrence from the Director-General of the Department of Environment and Conservation ("DEC").
103 The applicants claim that the Council failed to afford them procedural fairness in granting consent because it failed to consider the significance of the site to the Aboriginal community because of the massacre. Alternatively they say the respondent failed to consider relevant matters within s 79C and s 111 of the EP&A Act and cl 228 of the Environmental Planning and Assessment Regulation 2000 ("EP&A Regulation"). The applicants also claim a denial of natural justice resulted as a consequence of the respondent omitting reference to the applicants in the conditions of the consent requiring further consultation with Aboriginal people.
104 The applicants submit that unless sub-surface excavations are done in accordance with the recommendations of Mr Huys, Aboriginal artefacts may be disturbed by the construction of the cycleway. They submit the consent could thereby lead to a breach of s 86 and/or s 90 of the NPW Act which relates to the destruction of Aboriginal objects.
105 The applicants also claim that the determination to grant consent does not comply with the zoning of the land being the 7(f) Environmental Protection (Coastal Lands) Zone under the LEP and that the Council's decision was therefore unlawful.
Respondent's submissions
106 In relation to an SIS, the Council submits that it had conducted comprehensive studies which indicated that an SIS was not required. It had before it a report of Peter Parker dated June 2000, as well as a report prepared by Mr Parker in 2004 which contained an 8-part test under s 5A of the EP&A Act. The 2004 report was attached to the Statement of Environmental Effects ("SEE") and Review of Environmental Factors ("REF") dated January 2004. Further, a second 8-part test was performed by an officer of the Council, Mr Gaskell, who reviewed Mr Parker's report and carried out a physical inspection. Both experts concluded that an 8-part test for cryptocarya was not required.
107 The Council says that there is no reason to believe that there will be an increase in herbicide spraying as a result of the construction of the cycleway or any greater adverse affects from the use of herbicides. Based upon the conclusions of its experts, it submits an SIS was not required in respect of the cryptocarya.
108 The Council submits that there is no basis for the claim that the applicants were denied procedural fairness. Additionally the Council submits that the claim of the applicants does not, in reality, amount to an allegation of denial of procedural fairness but rather a complaint in respect of the conclusion that was reached by the Council. Even if the applicants were entitled to a legitimate expectation concerning the approval process, they had no entitlement to expect that the decision of the Council would be in their favour: see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The doctrine of procedural fairness only requires the decision-maker to afford the person with an opportunity to be heard, and this opportunity was provided to the applicants since they addressed the Council meeting.
109 As to the requirement for consultation, the Council submits that it has satisfied its duty to consult with all stakeholders. It retained Susan Davies, the heritage consultant, for the specific purpose of assessing the archaeological and cultural significance of the area of the proposed walkway. Ms Davies consulted with the Jali LALC and the Cook family. She was not required to consult with any other specific members of the Aboriginal community. Further, the Anderson family were invited to consult with the Council on numerous occasions throughout the preparation of the development application and GHD also undertook a series of consultative meetings which were attended by the Anderson family.
110 The Council says that there was no obligation to provide either the CHMP or the archaeological assessment to the applicants specifically. Conditions 1.5 and 1.6 of the consent envisage consultation with the Cook family and the Jali LALC, which is the representative body for Aboriginal people in the Ballina area. Furthermore, the Council says the applicants were present at the meeting of Jali LALC in September 2005 where the CHMP was considered, at which time they expressed their views to the Jali LALC. Despite this, the CHMP was approved by a majority of the members in attendance.
111 The Council relies upon the Davies report. Such report confirms that representatives of the Jali LALC and the Cook family were to undertake an inspection of the site. The Cook family participated but the Jali LALC chose not to participate. The allegations concerning the massacre were contained in the Appendix to the Davies report and the Council had before it information gathered over many years which referred to the massacre, including letters from the applicants dated 24 November 2000 and 15 March 2004 and a petition containing more than 50 Bundjalung signatories.
112 The Council submits that the evidence of Mr Huys in relation to potential Aboriginal artefacts has been shown to be based upon a false premise. Mr Huys concluded that the disturbance through sandmining might not have been absolute and that beneath the surface of the road there may be Aboriginal artefacts. Such evidence cannot sustained in view of the overwhelming photographic and other evidence provided by Mr Willis that the entire vicinity of the site was sandmined.
113 The Council submits that the applicants claim that the consent would allow a possible breach of s 86 or s 90 of the NPW Act is a non sequitur. It submits that a breach of s 86 could only occur if excavation for the cycleway were being conducted for the purpose of discovering an Aboriginal object, which is not the purpose in the present case. Similarly, it submits that s 90 could only arise if an Aboriginal object were found and the Council failed to seek consent under s 90 at that time. However, until such object is found, the Council cannot be in breach of s 90. In the event that any Aboriginal object is found, the measures proposed in the CHMP will operate to protect the object.
114 In respect of the applicants' claim that the development is inconsistent with the objectives of the 7(f) zoning, the Council submits that this is not a ground of judicial review and that the applicants could only succeed if they were to meet the onerous requirement of showing that the consent was manifestly unreasonable having regard to the objectives of the zoning. The Council submits that the development is clearly compatible with the objectives of the 7(f) zone because the existing track will be improved and the use and enjoyment of the habitat, landscape and scenic quality of the locality will be improved.
Findings
Was there a need for an SIS?
115 The EP&A Act sets out requirements for environmental assessment in respect of threatened species. Section 78A(8) relevantly provides:
A development application must be accompanied by:
…
(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.
116 Section 5A(2) of the EP&A Act sets out eight criteria which must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats for the purposes of s 78A: see s 5A(1). The criteria set out in s 5A(2) are known as the "8-part test".
117 One of the criteria to be taken into account is "whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process": see s 5A(2)(g). "Key threatening process" has the same meaning as in the Threatened Species Conservation Act 1995 ("TSC Act"), namely a process specified in Sch 3 to the TSC Act. Schedule 3 to the TSC Act lists as key threatening process "Invasion of native plant communities by Chrysanthemoides monilifera", commonly known as bitou bush.
118 Eight-part tests were conducted for a number of species on the site, but it is only in relation to cryptocarya that there is any disagreement between the experts. Mr Parker conducted an 8-part test with respect to cryptocaryaand concluded that there was unlikely to be a significant effect on cryptocarya. A second eight-part test was conducted by Mr Gaskell of the Council, who came to the same conclusion.
119 Dr Ambrose criticised the eight-part tests conducted by or on behalf of the Council because they did not consider the impact of herbicide drift or increased weed invasion upon the cryptocarya. However, there is evidence of significant existing weed invasion in the area as well as of the long term use of herbicide sprays by dune care groups. There is no evidence to suggest that spraying has had a negative impact upon the population of cryptocarya to date. To the contrary, the evidence established that the cryptocarya population in the vicinity is increasing. Further, it was a condition of consent that a management plan for site rehabilitation be prepared, and detailed weed control mechanisms are included in that plan. The safeguards for spraying imposed in the management plan were extensive, including using trained personnel, only spraying in appropriate weather conditions, using marker dyes, spot spraying, covering sensitive species before spraying and using a paint brush for application where appropriate.
120 In the circumstances, given both the history of weed control in the area and the detailed precautions prepared as part of the revegetation plan, the Court is satisfied that the effect of additional weeds and/or herbicide spraying on the cryptocarya will be insignificant. The Court is not satisfied that a different conclusion should have been reached with respect to the 8-part test, and accordingly a SIS was not required.
Were the applicants denied procedural fairness?
121 There can be no doubt that, on the basis of the published policy of the Council, the Jali LALC had a legitimate expectation of being consulted as part of the development application process. However the question is whether the applicants personally had a statutory right to consultation or a legitimate expectation that they would be consulted with respect to any development application.
122 In Country Energy v Williams (2005) 141 LGERA 426 the Court of Appeal discussed the circumstances in which procedural fairness arises. That case considered the issue specifically in the context of consultation with the Aboriginal community in respect of a development application. The Court stated:
An obligation to accord procedural fairness may arise in one of three ways, namely by:
(a) the express terms of, or implication derived from, a statue [sic] ;
(b) a public statement or practice adopted by the decision-maker, or
(c) an express promise made to, or arrangement with, the person affected.
123 There is no statutory basis within the EP&A Act from which a specific right to consultation accruing to the applicants could be derived. However, the applicants rely on the fact that they were, at the time the development applicant was considered, registered native title claimants, and that the Council had a practice of consulting them as Elders of the Numbahjing clan.
124 The Court does not accept that such a practice has been established. It is clear that the Council had a practice of consulting with Aboriginal people including the applicants, but the record suggests that this contact was usually if not always made through the Jali LALC. This was consistent with the practice of the Council in this case. The Court does not accept that it was ever the practice of the Council to contact the applicants directly. Accordingly the Court does not consider that the applicants had any right of procedural fairness accruing to them personally.
125 In relation to the obligation towards the Jali LALC, the Court considers that such an obligation was fulfilled. It is clear that throughout the process of developing the proposal, both before and after the lodgement of the DA, the Council informed the Jali LALC of the proposal and sought their comment. Several meetings between Council officers and representatives of the Jali LALC were convened and individual members of the Jali LALC, including Mr Anderson, were invited to meetings by the Council on several occasions. The Court considers that these actions by the Council fulfilled its requirement to afford procedural fairness to the Jali LALC.
126 The Court also considers that, if a duty to afford procedural fairness to the applicants specifically did arise, such duty was fulfilled. The applicants were clearly aware of the proposal and Mr Douglas Anderson was personally invited (through the Jali LALC) to attend meetings with respect to the proposal on several occasions. Further the applicants wrote several letters of objection to the Council with respect to the proposal, both before and after the lodgement of the DA, and Mr Douglas Anderson and his son Mr Troy Anderson were given the opportunity to address the Council meeting of 13 May 2004 when the consent was granted. The Court does not consider that there is any basis for a claim that procedural fairness was not afforded to the applicants or to the Jali LALC.
Archaeological evidence
127 It is clear from the evidence set out above that the entirety of the site was subjected to large-scale sandmining in previous years. The evidence of both archaeological experts was that if the area had been significantly sandmined and it is almost certain that Aboriginal artefacts in the vicinity would have been destroyed. Accordingly the Court considers that Ms Davies' report was correct in its assessment of archaeological significance at the site.
128 With respect to the submissions of the applicant that the consent may result in a breach of s 86 or s 90 of the NPW Act, given the findings in the paragraph above, the Court considers it highly unlikely that any Aboriginal artefacts would be disturbed by the construction of the cycleway. However the Court does not accept the submission that, unless sub-surface excavations are carried out, a breach of the Act may occur. Section 86 of the Act has application only where excavation is taking place for the purpose of discovering an Aboriginal object. That is clearly not applicable in the present circumstances.
129 Section 90 relates to the knowing destruction of Aboriginal objects without the consent of the Minister. At present no Aboriginal objects have been identified on the site, which prevents the knowing destruction of any Aboriginal object. The CHMP makes provision for monitoring by Aboriginal persons of the excavation works to ensure any Aboriginal object is identified and construction personnel are required to undergo a cultural heritage induction before commencing work. The Court is satisfied that these procedures ensure any relevant Aboriginal object will be identified. If any Aboriginal object is found, the CHMP requires that work in the vicinity must cease immediately and not recommence until the material has been evaluated and suitable management techniques have been implemented, and NPWS must be notified. The Court is satisfied that on the basis of these requirements in the CHMP the consent could not result in a breach of s 90 of the NPW Act.
Consideration of cultural heritage
130 Separately to its claim with respect of procedural fairness, the applicants claimed that the Council had failed to consider a relevant consideration, namely the cultural significance of the site and specifically, the massacre.
131 The Council was bound by the terms of the EP&A Act to take into account certain considerations in the evaluation of the development application. Section 79C(1) provides:
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(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 the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
132 Section 111(1) of the EP&A Act provides:
For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
133 Clause 228 of the EP&A Regulation further specifies factors to be taken into account when considering the likely impact of an activity on the environment, including (inter alia):
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations …
134 Further, under cl 92 of the EP&A Regulation, a consent authority must take into account the New South Wales Coastal Policy ("the Coastal Policy") where it applies to the site where a development is proposed. Because the site is located within 1 km of the open coast high water mark, the policy applied to it. Accordingly the Council was required to take into account the Coastal Policy. Objective 4.2 of such policy is "to recognise the rights and needs of indigenous people and to ensure inputs by Aboriginal communities prior to making decisions affecting indigenous communities".
135 The Court is satisfied that the impact on the Aboriginal cultural heritage at the site falls within s 79C(1)(b) of the EP&A Act and is therefore a matter which the Council was required to consider. The issue remains as to whether the Council's consideration of the matter satisfied the requirements of s 79C.
136 The question of the level of consideration required by an administrator was considered in Weal v Bathurst City Council and Anor (2000) 111 LGERA 181. At 185 Mason P observed:
There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J's formulation of "proper, genuine and realistic consideration upon the merits". …
Sometimes there will be a failure to take matters into consideration where the decision-maker is shown to have had inadequate personal acquaintance with the facts and issues and where the decision-maker was no more than a rubber stamp for someone lower in the administrative hierarchy.
137 His Honour further stated (at 185):
… the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration.
138 In relation to the site of the cycleway, it was clear that Aboriginal cultural heritage was a highly important matter. After a comprehensive study the Riebe report had identified the area as a place of significance to the Aboriginal community and recommended that it be declared an Aboriginal Place. The Council was sent this report by NPWS although it apparently declined the requests by NPWS to comment on the recommendation contained in its letters of 30 October 2000, 20 November 2000 and 19 February 2001.
139 In its letter of tender to the Council dated 23 July 2003 GHD referred to the need to undertake not only an assessment of archaeological heritage but also of cultural heritage. NPWS indicated to GHD that cultural heritage assessment should be undertaken: see [71] above. The Planning Committee Report also referred to the cultural heritage assessment undertaken by Ms Davies. These documents indicate that the Council at least adverted to the issue of Aboriginal cultural heritage.
140 GHD, the Council's consultant, engaged Ms Davies to undertake a "cultural heritage assessment" although the extent of her brief is unclear. However, her report related primarily to archaeological matters and dealt fleetingly with the question of cultural values attaching to the site. Although the report included theoretical discussion of cultural heritage assessment, it contained virtually no discussion of the massacre and in particular its relationship to the cultural significance in the area. The highest Ms Davies places the cultural significance of the area is by stating:
The results of the Riebe (2000) and Weiner's (2003) studies have indicated that although there are no specific sites or places of significance specifically within the study area, the area per se is regarded as culturally significant because of its association and links with other sites and places in the broader area. Additionally, the area would have been utilized by Indigenous people.
141 Ms Davies' report clearly failed to deal with the main basis of Aboriginal cultural heritage in the locality of the cycleway, being the massacre. Although her report appends the comments of Lois Cook, she simply omits to include the massacre as part of her assessment of cultural heritage.
142 Given the significance to Aboriginal people of the massacre at the site, it warranted proper evaluation by the Council. Section 79C required more than mere mention of the issue of Aboriginal cultural heritage. An evaluation appropriate to the significance of cultural heritage in the area did not take place. The Council may have been under the misapprehension that Ms Davies' report comprised a comprehensive assessment of both the archaeological and cultural heritage of the area, but it did not properly address Aboriginal cultural heritage. In relation to the site, it was impossible to consider properly the Aboriginal cultural heritage without considering the cultural significance of the massacre.
143 In Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 the High Court considered whether the failure to take into account additional material provided subsequent to a report invalidated a decision by the Minister. Mason J observed (at 44):
Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.
144 The Court considers that these observations are relevant to the present proceedings. The provisions of the EP&A Act place a more onerous burden upon a decision-maker than the legislation considered in Peko-Wallsend. Section 79C requires the Council not only to consider material made in submissions to it, but also places a duty upon the Council to ensure that it considers all relevant factors. The Council was required to assess the proposal based upon accurate and comprehensive information. Ms Davies' report was not an accurate or comprehensive assessment of the cultural heritage of the site.
145 As a result, in making its decision the Council did not have material before it which appropriately assessed the cultural heritage significance of the cycleway site. Although it had information which referred to the fact that a massacre took place, it did not have any assessment of the cultural significance of the massacre to local Aboriginal people. Since this was the main source of the cultural significance of the site it was mandatory for the Council to consider it as part of the approval process. In this respect the Council failed to consider a significant issue of both social impact and public interest in relation to the cycleway.
146 The fact that Mr Anderson and Troy Anderson addressed the Council meeting with respect to their concerns was not sufficient to overcome this deficiency in the assessment process. This is especially the case in view of the fact that a cultural heritage study had actually taken place which made no significant findings in relation to the cultural heritage of the area. Ms Davies' failure to assess properly the cultural heritage may well have detracted from the weight given by the Council to the submissions of the Andersons.
147 The failure to consider properly the Aboriginal cultural heritage was not an insignificant matter in the Council's determination: see Peko-Wallsend at 40. The site is clearly of great importance to the Bundjalung people and was recommended for a declaration as an Aboriginal Place although a declaration was ultimately not made. The failure to take this matter into account may have materially affected the Council's decision: see Peko-Wallsend at 46. Accordingly, the Court is satisfied that the decision should be set aside.
Zoning of the land
148 The site is zoned 7(f) Environmental Protection (Coastal Lands) Zone under the LEP. The primary objectives of that zone are stated to be as follows:
(a) To be protect environmentally sensitive coastal land; and
(b) To prevent development which would adversely affect or be affected, in both the short and long term, by the coastal processes.
149 A secondary objective of the zone is "to enable the development of public works and recreation amenities where such development does not have significant detrimental effect on the habitat, landscape or scenic quality of the locality."
150 The exceptions to such objectives are:
(a) to permit the development of public works, outside the parameters outlined in the primary and secondary objectives, only in cases of demonstrated and overriding public need and subject to the impact on the coastal lands being minimised, as much as is reasonably practical, and
(b) development of surf life saving, environmental education facilities and like facilities.
151 The applicants submitted that the cycleway did not protect environmentally sensitive coastal lands and would adversely affect the coastal processes in the long and short term and accordingly it is not consistent with the objectives of the zone. They submitted that no overriding public need has been demonstrated to permit the development which would enable the development to proceed as an exception to the objectives.
152 The need for public works and recreation amenities is specifically recognised by the 7(f) zoning. The Court notes that the cycleway is proposed along the route of an pre-existing track which is infested by weeds in some places. In these circumstances, the Court does not consider that the cycleway will have a significant detrimental effect on the habitat, landscape or scenic quality of the locality. The Court considers it will rather enhance the use and enjoyment by the local population of the area and improve the landscape and scenic quality of the site. Accordingly the Court rejects the applicants submission on this issue.
Orders
153 For the reasons above, the Court finds that the challenge to the consent succeeds. Accordingly the Court makes the following declaration and orders: