Anderson v Minister for Infrastructure Planning & Natural Resources

2 The consent was granted by the Minister for Infrastructure, Planning and Natural Resources who is the first respondent. The development application was lodged by S J Connelly Pty Ltd, the second respondent (consultant), on behalf of North Angels Beach Development Pty Ltd, the owner and third respondent (developer). The consultant was an environmental consultant retained by the developer to prepare and submit a master plan and a development application to the Minister. The Minister has filed a submitting appearance save as to costs. The grounds of challenge to the validity of development consent are that the Minister failed to take into consideration matters which he was obliged to take into consideration under s 79C(1)(a), (b) and (e) of the Environmental Planning and Assessment Act 1979 (EPA Act), that he took into account an irrelevant matter, and that the decision was manifestly unreasonable, made as a result of misleading conduct by the other respondents and void for uncertainty.

3 Two issues lie at the heart of the case. The first is whether the consent is invalid because the Minister did not consider an historically recorded massacre of Aboriginal people in about 1854 in the area in which the subject land is located. When the Minister made his decision he knew that the land was of "high significance" to Aboriginal people but it is said that he did not know why, nor that the main reason was the massacre. The second issue at the heart of the case is whether the consent is invalid because the Minister failed to take into consideration that judgment had been reserved in this Court in another case brought by the same applicants. That case challenged the validity of a consent to destroy Aboriginal objects on the subject land which had been issued under s 90 of the National Parks and Wildlife Act 1974 (NPW Act). About a month after the Minister determined to grant the development consent, the s 90 consent was held to be invalid: Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43 (Pain J).

4 The applicants seek declarations (a) that the development consent is invalid; (b) that the Minister in reaching his decision failed to have regard to mandatory relevant matters pursuant to s 79C of the EPA Act; and (c) that any activity undertaken by the consultant and the developer in purported reliance upon the consent would disturb, deface or destroy Aboriginal Objects in breach of ss 86 and/or 90 of the NPW Act. An injunction is also sought restraining the consultant and the developer from carrying out any work or activity in reliance upon the development consent.

5 The land area is 10.52 hectares. It is zoned 2(a) - Living Area Zone, and 7(d) - Environment Protection (Scenic/Escarpment), under the Ballina Local Environment Plan 1987. The development is proposed to be carried out only on the part zoned 2(a).

LEGISLATIVE BACKGROUND 6 A number of planning instruments and policies applied to the development. Their requirements are set out in Part 3 of the Statutory and Policy Planning Report prepared by the consultant which accompanied the development application. Section 79C(1) of the EPA Act obliged the Minister, in determining a development application, to take into consideration a range of matters of relevance to the development the subject of the development application.

7 Pursuant to s 79C(1)(a)(i) of the EPA Act "the provisions of any environmental planning instrument" had to be considered by the consent authority in determining whether to grant consent. The current proceedings focus in large measure on the provisions of an environmental planning instrument entitled State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71). The development was subject to SEPP 71 because the land on which it was proposed to be situated was located within the "coastal zone", as that term is defined in s 4 of the Coastal Protection Act 1979 (NSW): cl 4(1). 8 At the time that the development application was lodged, clause 10(a) of SEPP 71 declared development specified in Schedule 2 to be State significant development, pursuant to s 76A(7) of the EPA Act. The proposed development fell within Schedule 2, being a "subdivision of land within a residential zone into more than 25 lots". The result of its classification as State significant development was that the Minister was the consent authority for the development, in accordance with s 76A(9) of the EPA Act. Clause 10 and Schedule 2 have since been repealed by the State Environmental Planning Policy (State Significant Development) 2005 schedule 4.19 [3]. That policy does not, however, apply in the present case given its transitional provision in cl 14(1) which provides that the new policy "does not apply to or in respect of the determination of [a] development application" that was "made, but not finally determined before the commencement of the Policy".

9 The process leading to development consent involved two stages. First, the formulation and adoption of a master plan in respect of the site pursuant to Part 5 of SEPP 71. Secondly, the submission of a development application and consent to the application, requiring the application of Part 2 of SEPP 71. Clause 18(1) of SEPP 71 provided that a consent authority "must not" grant consent for, "subdivision of land within a residential zone that is not identified as a sensitive coastal location into more than 25 lots", unless the Minister had adopted a "master plan" for the land (or, after consulting the Coastal Council, had waived the need for a master plan). The term "master plan" was defined in cl 17 as "a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies". Clause 19 prohibited a consent authority from determining a development application without first having considered the provisions of any master plan adopted in respect of the land.

10 In addition to considering any applicable master plan, cl 8 of SEPP 71 enumerated a list of matters which, by cl 7, "are to be taken into account by a consent authority when it determines a development application". The matters in cl 8(1) included: ( a) the aims of this Policy set out in clause 2, … (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, … (n) the conservation and preservation of items of heritage, archaeological or historic significance.

11 The aims of SEPP 71 were set out in cl 2(1) and included: … (d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge…

THE PROCESS LEADING TO DEVELOPMENT CONSENT The master plan 12 On 7 August 2003, in compliance with cl 18 of SEPP 71, the consultant on behalf of the developer submitted a draft master plan and companion volume containing technical reports to the Department of Infrastructure, Planning and Natural Resources. After discussions with representatives of the Department about the draft master plan, which resulted in its amendment, it was advertised and exhibited in accordance with cl 21 of SEPP 71. The master plan addressed the cultural heritage significance of the land in a number of sections, including: (a) the overview in section 1.1, in which reference was made to the plan proposing an ecologically sustainable approach to development which, among other things, "sets aside in perpetuity land in the north-western corner of the site because of its archaeological significance and proposes a Cultural Heritage Management Plan with respect to further site development ";

(b) Table 2.4 in which comments were provided in response to each matter listed for consideration in cl 8 of SEPP 71. In relation to cl 8(a), which required the development to satisfy the aims of the SEPP as set out in cl 2(1), the following comment was made about " Aboriginal heritage ": Multiple items of Aboriginal cultural significance including shell, stone, animal bone and ochre artefacts are known to exist on the site. Further, the north western corner of the site has been identified by the Local Aboriginal Land Council as an area of significance. The north western corner of the site will be contained within a proposed open space conservation area. Further, a Consent to Carry out the Destruction of an Aboriginal Object and Permit to Collect and/or Excavate for the Purpose of Salvage (Permit No 1667) has been issued by the NPWS in relation to the artefacts that will be impacted by the proposed development. The comment in response to cl 8(l) of SEPP 71 was cross-referenced to the above entry, and the above entry was reproduced in the comment on cl 8(n);

(c) the Guiding Principles on the subject of Conservation, which provided that any future development would " protect and enhance the heritage significance of the site through retention and interpretation of the Aboriginal heritage significance of the site ". In relation to heritage conservation, the plan noted that a Cultural Heritage Management Plan had been prepared and submitted to the Local Aboriginal Land Council for endorsement and would " ensure that important Aboriginal cultural matters are comprehensively addressed ". Reference was again made to the conservation of the north-western corner of the site, and the use of this area as a " keeping place " for any indigenous items recovered in the course of the development. The master plan noted that while some flexibility was required, to allow for circumstances to change, " it is expected that the ' Guiding Principles ' defined in relation to each of the …Master Plan themes will hold over time and will provide a practical benchmark for Development Application assessment ". 13 A companion volume to the master plan included a more detailed section on Heritage Significance, which referred to archaeological test excavations undertaken on the land by Ms Susan Davies and indigenous representatives nominated by the Jali Local Aboriginal Land Council. Ms Davies charted the location and quantity of artefactual material. She made a series of recommendations which were largely incorporated by the developer into the master plan. This is what was said about Dr Weiner: Further to the archaeological assessment, Dr James Werner [sic] has completed an anthropological study of the subject site. Based on his study, it is concluded that the area is of high significance. Dr Weiner also recommended the preservation of the north-eastern portion of the site and that preservation of the land ' become a direct negotiation between the proponent and relevant custodians of the Angels Beach area '. The words " north-eastern " appear to be erroneous and should have been " north-western".

14 A Planning Assessment Report dated 15 July 2004 prepared by the Department in relation to the master plan referred to a number of the matters noted above, and concluded that the Guiding Development Principles promoted the protection and preservation of Aboriginal cultural heritage on the subject site, despite the section 90 licence issued by the National Parks and Wildlife Service. Accordingly, it considered that the draft master plan "meets the SEPP 71 aims in relation to Aboriginal heritage as best it can".

15 A delegate of the Minister adopted the draft master plan on 15 July 2004. Development application 16 On 3 August 2004 the consultant lodged the development application on behalf of the developer. The Statutory and Policy Planning Report annexed to the application noted that it had been designed "to completely accord" with the provisions of the master plan. In the section of the Report which dealt with the question of compliance with SEPP 71, the entries relevant to Aboriginal heritage were in similar terms to the entries made in the master plan on that issue. Rather than positing that "The north-western corner of the site will be contained within a proposed open space conservation area", the Report now confirmed that "No development is proposed within the north-western corner of the site which is contained within a proposed open space conservation area". Cultural Heritage Management Plan 17 A Cultural Heritage Management Plan was submitted to the Department along with the development application. The consultant sent a further copy to the departmental officer assessing the application, following a request for further information on the subject of Aboriginal cultural heritage. A copy of the s 90 consent was attached to the Cultural Heritage Management Plan. The Cultural Heritage Management Plan outlined the tests carried out by Ms Davies and her findings and included a reference to Dr Weiner. The Plan's stated aim was to "define the processes involved in implementing the above archaeological and anthropological recommendations". It referred to Dr Weiner as follows: Dr James Weiner (2003) has completed an Anthropological study of Lot 208. Based on his study, Weiner (2003) concluded that the area is of high significance. Weiner (2003) noted that 'The Cook family would like to see the northwest section of Lot 208 removed from the planned development so that some part of the site can be preserved and managed by themselves'. Weiner (2003) recommended that the preservation of the northwestern portion 'become a matter of direct negotiation between NABDPL [North Angel's Beach Development (Ballina) Pty Ltd] and the relevant custodians of the Angel's Beach area'. This CHMP seeks to define the processes involved in implementing the above archaeological and anthropological recommendations. Council Report 18 There was before the Minister when he made his decision a copy of a report to the planning committee of the Ballina Shire Council dated 9 October 2003. Under the heading "Indigenous Cultural Issues" there appeared the following: "…an anthropological study of the site has been conduced, which concluded that the area is of high significance to members of the local Aboriginal community". Planning Assessment Report 19 In a Planning Assessment Report signed on 7 and 18 December 2005 and submitted to the Minister's delegate, the lodgement and adoption of the master plan in accordance with the provisions of SEPP 71 was noted. The Report contained a list of the various planning instruments applicable to the land and attached a document, described as a "Compliance Table", which assessed the development against each of the applicable instruments. In relation to the requirement of a master plan pursuant to SEPP 71, the Report stated "Refer to approved site Masterplan 13-8-2003", and commented that "The proposed subdivision is consistent with the approved Masterplan". The Compliance Table recorded: · in relation to cl 2(d) of SEPP 71, that: "A Cultural Heritage Management Plan has been submitted. A Section 90 permit has been granted to the applicant by the NSW National Parks and Wildlife Service". · in relation to cl 8(n) of SEPP 71, that the s 90 permit had been issued by the NPWS, and "GTAs imposed". This was a reference to the general terms of approval referred to in s 91A of the EPA Act and which accompany a permit under s 90 of the NPW Act. The Compliance Table set out the other requirements in s 79C(1) of the EPA Act , and stated that the development satisfied each of them.

20 The conclusion expressed in the Report was that the application and the likely impacts of the proposed development had been considered in accordance with s 79C of the EPA Act, and that "the subject site is considered suitable for the proposed development". The Department's recommendation that consent be granted was subject to a number of conditions. One reason, among others, for the conditions was expressed to be to "protect threatened species and preserve Aboriginal cultural heritage at the subject site". The development consent 21 The development consent dated 20 December 2005 was expressed to be subject to those conditions. The conditions imposed in relation to the construction phase of the development included clause D14 which provided If any Aboriginal archaeological relics are exposed during construction works, the Applicant shall immediately notify the National Parks and Wildlife Service and obtain any necessary approvals to continue the work. The Applicant shall comply with any request made by the NPWS to cease work for the purposes of archaeological recording.

22 The Advisory Notes which accompanied the consent also referred to the "Aboriginal Heritage Conservation Area" and the need to make arrangements regarding who would own and manage it. EVIDENCE OF THE APPLICANTS 23 The evidence of the applicant Douglas Anderson included the following: 2. I am a Bundjalung Elder of the Numbahjing clan, Traditional Owner and Custodian of land the subject of these proceedings known as North Angels Beach, East Ballina. … 4. The land at North Angels Beach is a very sacred site to my family and to the whole of the Bundjalung nation. It is my duty as an Elder and Traditional Owner to do all in my power to protect the site. 5. My grandfather and patriarch of the Aboriginal Community at Cabbage Tree Island Papa John Jack Cook told us stories about the significance and sacredness of the Angels Beach area. This is where he took his family of seven sons and five daughters to camp when the tribes all met in the Angel beach area. 6. By this knowledge and my own observation that [sic] I am aware that there is significant archaeological cultural heritage material buried in the ground on the land. 7. The area around and including Lot 208 not only contains Aboriginal artefacts but is special to us as the site of a recorded massacre that occurred around 1854 of Aboriginal people in which our old people were slaughtered in their hundreds. 8. The massacre took place from the golf course right through to the Condon land at North Angels Beach. This is where the people lived, camped, hunted, fished and performed ceremony. They were killed where they lived all around from Black Rock to Flat Rock, right along the coast. A lot of Koori camped on and along where Lot 208 is now. That's where they had their camps and they got killed there. Many of the bodies got chucked in the little pond at the Southern Cross School site. My Elder, Uncle Douglas Cook told us that.

24 The evidence of the applicant Susan Anderson included the following: 2. I am a Traditional Owner and holder of knowledge in relation to the land known as North Angels Beach. 4. Over the last twenty years many of the Traditional Aboriginal sites have been destroyed or damaged all along East Ballina for development. The North Angels Beach site is one of the few remaining places left. 5. The site at North Angels Beach was part of the massacre that took place there in the nineteenth century. The area was Traditionally part of a huge camp and ceremonial place. There was plenty of fishing, oysters and bush food and many tribes would come and camp and perform ceremonies. 6. When the massacre took place there were tribes from up and down the coast camped around Angels Beach and the East Ballina area for the ceremonial season. Although it is stated in the historical record that 200 people were slaughtered we have strong knowledge within our community that the numbers may have been many times more. Many of the bodies were dumped into a pond right near the North Angels Beach land.

WEINER REPORTS 26 The developer commissioned three anthropological reports by Dr James Weiner which referred to the massacre but which were not before the Minister for consideration when deciding to grant development consent: (a) the first was a draft report entitled " Anthropological Assessment of Aboriginal Significance of Lot 208, North Angel's Beach Development Area " dated February 2003; (b) the second report was entitled " North Angel's Beach Lot 208: Provisional Conclusions and Recommendations" and was dated May 2003. The conclusions in this report were expressed to be preliminary and provisional and an attempt to articulate as accurately as possible a second supplementary report he had been asked to prepare; (c) the third report was entitled " Anthropological Assessment of Aboriginal Significance of Angel's Beach Area: Supplement" , dated May 2003.

27 The second Weiner report (p 2) and the third Weiner report (p 49) both stated: Massacre Sites The same reasoning applies to historical sites where Koori people met violent death. During the well-documented massacres that occurred in 1853-54 in Ballina, local Aboriginal people fled across the land of Angels Beach and undoubtedly died there. Whether their remains can still be found at these sites is not the point - from the Koori point of view, the ground has been sacralised by the spilling of blood of Koori ancestors. Likewise, the spirits of these people still harbour the grief and anguish of their violent passing and are even more sensitive than ancestral spirits that experienced a non-violent death. The sites accordingly must be treated with extreme reverence and respect. These are sites whose significance is defined in terms of Indigenous-Settler contact rather than pre-Settler culture but they are authentic indigenous sites of importance in contemporary Koori culture.

28 The third Weiner report stated at p 9: Massacre sites Places where Aboriginal ancestors were killed as a result of frontier violence constitute one of the most important and impassioned category of contemporary 'sacred' places for all indigenous communities in Australia. First of all, such places are heavily populated by the spirits of the people killed there. These spirits are considered by Koori people to be very sensitive and still bear the grief and terror of their passing. These spirits remain extremely sensitive to disturbances and improper or disrespectful behaviour at such places. They often seek to communicate their sorrow to living people who visit the place. Second, I think there is often a perception of consubstantiality between shed blood and the earth, such that the earth has been hallowed by the shedding of ancestors' blood and the mingling of their flesh with the earth itself. This perception would be analogous and quite possibly related to the consubstantial dimension of the traditional process - that by which sacred sites were commonly brought into being by the shedding of bodily substance by ancestral creator beings. Third, as is the case with sites of significant human death throughout human cultures, there is the contemporary determination to not allow such events to erode in human memory. Indigenous people's desire to acknowledge, mark and record such sites are actions taken against the possibility of forgetting, and to protect such sites from profanation, inadvertent or otherwise, by other people. and at p 56: Coupled with the strategic location of Lot 208 in the landscape of sites of violent Aboriginal death and dispersal in the mid-1800's and the alleged Goana sites nearby Angels Beach itself, and I feel a judgement of high significance can be made…

29 This third Weiner report included excerpts of an interview with the applicant Douglas Anderson, including the following: 35Q Let's also talk about the massacre sites, the actual spots where people lost their lives. Where were these places in Ballina? A: All over Ballina. Angels Beach, that's where they went from the Golf Course, to Black Head, all over South Ballina, right out to Lennox Head, right through Seven Mile Beach, all massacred there… That time, there used to be people came from everywhere, they used to fish, and that's where my grandmother and mother and Auntie Lou spoke about in the video, how the old fellow used to sing out, sing out, to the porpoises in lingo, and the porpoises used to push the fish into the beach.

[At beach near Flat Rock] 64A: There's a lot buried along this way, big massacres along this way…this was where all our people used to eat fish out here, one bloke he used to sing out in lingo to the porpoises, and the porpoises used to bring the fish in… They buried many where the old Southern Cross School was…

S65Q: Was there one attack, or more than one? A: They were massacred all over, they were shot all over. Different tribes used to come down here, sometimes 70, sometimes 100-200 people at a time…

66Q: So it's likely it wasn't just local Ballina people… A: They always used to come down for these… get-togethers…

[At Lennox Head] 71Q: Where was it that you first heard about it, was it Cabbage Tree Island or was it somewhere else?

… 74A: They were massacred all around here too… Just the other side here is Seven Mile Beach…there was a massacre [there]…

[Off the west side of Ballina - Suffolk Park Road near Lennox Head turn-off]

78Q: Any evidence that people camped here? A: Oh they camped all over, that way, and they were all massacred here and at Seven Mile Beach and all…My mother and auntie (Lou [Cook] Smith) talked about it…it's also been documented on video…

… [Corner of Links Avenue and Central Avenue] In that place over there, an Aboriginal woman used to live in the flats there, the Aborigines used to camp there [in early days], and a couple of little Aboriginal boys used to come and play with her [i.e., spirit boys]… There was a swamp there, they threw a lot of bodies in there, when they shot them, the rest they buried at the old Southern Cross School, others they threw into the sea at Black Rock…

DAVIES REPORTS 30 The developer commissioned archaeological reports by Ms Susan Davies. They were not before the Minister for consideration when deciding to grant development consent. They evidence that test pits were excavated on the subject land from which thousands of shellfish pieces in midden complexes were located, as well as many stone artefacts and bone fragments. These come within the following definition of "Aboriginal Object" in s 5 of the NPW Act: Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

31 The Cultural Heritage Management Plan, which was before the Minister, set out the recommendations in one of Ms Davies' reports as follows: 1. The northwestern corner of Lot 208, described by grid reference C9 as shown on Figure 2, be retained as a conservation area; 2. The indigenous groups involved in the project use this area as a keeping place for any Indigenous items that are recovered from the development area of Lot 208; 3. A sign/s acknowledging the significance of the area to the Indigenous community and with words selected and agreed upon by the Indigenous community, be placed within the area described by C9; 4. The area described by C9 is regenerated with native plants. The Indigenous community should have input into the type of species selected; 5. The name of the road closest to, or abutting, C9 be selected by the Indigenous Community. This name should reflect the significance of the area to the Indigenous community; 6. North Angels Beach Development (Ballina) Pty Ltd employs an Indigenous monitor to be present during the construction phase of the development.

It was also recommended that the processes involved in the implementation of recommendations 1 to 6 should be outlined in a Cultural Heritage Management Plan.

7. A Cultural Heritage management Plan (CHMP) should be developed specifically for the project. The CHMP should address and include the following: · A process for including Indigenous people in the management of Indigenous cultural heritage; · The obligations of each party (e.g. Indigenous group, construction company) should be fully outlined and include the obligation of the monitor; · All resources required to implement the CHMP should be outlined and the responsible group or organisation nominated; · A section defining the specific terms used in the plan should be included in the CHMP so there is no confusion or misunderstanding during the implementation phase; · Provisions for the accidental discovery of cultural material, specifically burials; · A conflict resolution process. This process should be fully described so that an agreed process to deal with all potential problems is adequately defined for all parties and cover all phases of the development. 8. North Angles Beach Development (Ballina) Pty Ltd should submit a Heritage Impact Permit to the New South Wales National Parks and Wildlife Service for the remaining area of Lot 208; 9. North Angels Beach Development (Ballina) Pty Ltd endeavour to employ adequately qualified Indigenous tradespeople during the construction period of the development; 10. North Angels Beach Development (Ballina) Pty Ltd consider discussion with National Parks and Wildlife Service the possibility of entering into a Conservation Agreement for the proposed Conservation Area as described in Recommendation 1. THE CONSENT UNDER S 90 OF THE NPW ACT 32 At the time that the Minister made his decision, judgment had been reserved in a case in this Court challenging the validity of the s 90 consent. About a month after the development consent was granted, it was held that the s 90 consent was void: Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43. Destruction of Aboriginal objects 33 The applicants submitted the Minister failed to take into consideration that the development consent allowed total destruction of all Aboriginal objects not salvaged outside the north-west corner of the land. I am not satisfied that he failed to consider that matter. I consider that it also constitutes an impermissible attempt to argue the merits of the Minister's decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41.

FAILURE TO CONSIDER PROVISIONS OF SEPP 71 AS REQUIRED BY S 79C(1)(a)(i) OF EPA ACT 34 The applicants submitted that pursuant to s 79C(1)(a)(i) of the EPA Act and clause 8(a), (l) and (n) of SEPP 71, the Minister was bound to, but did not, take into consideration the following matters: (a) that the land was of high significance to local Aboriginal people because there is evidence, and local Aboriginal people believed, it was part of an area where a massacre of Aboriginal people occurred in about 1854. (b) that a case was pending, and judgment had been reserved, in this Court challenging the validity of a consent to destroy Aboriginal objects on part of the subject land, issued under s 90 of the NPW Act. About a month after the development consent was granted, this Court held that the s 90 consent was void: Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43 (Pain J); (c) the anthropological reports of James Weiner commissioned by the developer which referred to the massacre issue in some detail; (d) an archaeological report of Susan Davies commissioned by the developer; (e) that the development consent allowed total destruction of all Aboriginal objects not salvaged outside the north-west corner of the land. (f) that the whole site was culturally significant to Aboriginal People. (g) a report from a meeting of the Ballina Shire Council on 26 August, 2004 which stated that " an anthropological study of the site has been conducted which concluded that the area is of high significance to members of the local Aboriginal community ". (h) in the summary assessment of significant issues in the Planning Assessment Report, Aboriginal cultural heritage significance. (i) in the Minister's Planning Assessment Report, any consideration of the cultural heritage significance of the site to Aboriginal people. (j) the aim of the policy stated in cl 2(d) of SEPP 71 and the matters referred to in cl 8(n). 35 These matters, as developed by the applicants in their submissions, revolved mainly around two facts which I accept. First, when the Minister made his decision he was unaware that the main reason the land was of high significance was that it was in an area where the massacre of Aboriginal people occurred in about 1854. Secondly, when the Minister made his decision he was unaware that a Court challenge to the validity of the s 90 consent was on foot and judgment had been reserved.

36 Section 79C(1)(a)(i) of the EPA Act provides: 79C(1) Matters for consideration - general 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… …

37 The relevant environmental planning instrument was SEPP 71 which relevantly provided: 2 Aims of Policy (1) This Policy aims: … (d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge …

7 Application of clause 8 matters The matters for consideration set out in clause 8: ... (b) are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies.

8 Matters for consideration The matters for consideration are the following: (a) the aims of this Policy set out in clause 2, … (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, … (n) the conservation and preservation of items of heritage, archaeological or historic significance.

38 The challenge to the Minister's decision requires that the Court make two factual determinations. First, that a mandatory consideration was not taken into account, second that the error was material: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 295 [66] per Basten JA (with whom Handley and Hunt JJA agreed) citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. In the latter case Gibbs CJ held that the duty of the Minister was to consider the matters mentioned in the legislation "in the light of the actual facts as disclosed by the material in his possession", and said (at 30 - 31): Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law… The material in the possession of the Department must clearly be treated as being in the possession of the Minister.

Mason J, with whom Dawson J agreed, said (at 45): It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. Brennan J said: The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered (at 61). A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision (at 66).

39 In Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at 294 [63] Basten JA (with whom Handley and Hunt JJA agreed) said: In Parramatta City Council v Hale (1982) 47 LGRA 319, this Court considered the decision-making process involved in giving approval to a large sports stadium on Cumberland Oval. The decision of the Council was set aside on the basis that it had failed to give proper consideration to matters specified by statute as matters required to be considered. As noted by Street CJ (at 335): A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration. In the circumstances of that case, both the land and Environment Court and the majority in this Court were satisfied, on an objective appraisal of the materials before the Council, that the complexity of the issues, changes made from the recommendations presented by expert officers of the Council, followed by a decision which, in the material respects left important aspects virtually at large, demonstrated that there had been a failure to take mandatory considerations into account.

40 The development consent cannot be invalid for failure to have regard to a matter unless s 79C(1) or SEPP 71 expressly or by implication required the Minister to have regard to that matter or a matter of that kind as a condition of exercising the power: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452 per Gleeson CJ and McHugh J. As Jagot J said in Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [104]: "Failing to consider a matter which the decision-maker was not bound to consider cannot vitiate a decision". The classic statement in that regard is by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40: What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

41 The application of this principle is illustrated by Kennedy v Director General of the Department of Environment and Conservation [2006] NSWLEC 456. There the issue was the validity of a consent to destroy Aboriginal objects issued under s 90 of the NPW Act. Section 90 does not identify any matters which the Director-General must take into account in deciding whether or not to grant the consent. Jagot J held that whether the decision-maker was bound to take a particular matter into account in such circumstances depended upon whether an implication that he was bound to do so was to be found in the subject matter, scope and purpose of the Act: at [100].

42 In two recent cases in this Court, one relating to the land just across the road from the subject land and the other relating to the subject land, statutory consents were held to be invalid because the decision-maker did not properly consider the massacre issue: Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 (Pain J); Anderson v Ballina Shire Council [2006] NSWLEC 76 (Cowdroy). The applicants in those cases are also the applicants in the present case.

43 The NPW Act relevantly provides: 86 Offences relating to Aboriginal objects A person, other than the Director-General or a person authorised by the Director-General in that behalf, who: … (d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area… except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.

87 Permits relating to Aboriginal objects (1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e).

90 Destruction etc of Aboriginal objects or Aboriginal places (1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation). (1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A. (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

44 On 29 May 2003 the Director-General of National Parks and Wildlife issued a consent under s 90(1) which incorporated a permit under s 87. The document stated that the Director-General - In pursuance of Section 90 of the said Act, and subject to the conditions hereunder set out DO HEREBY CONSENT to the destruction of the said Aboriginal objects by the said applicant. AND FURTHER in accordance with the said Conditions and in pursuance of section 87 of the said Act, I DO HEREBY PERMIT the salvage collection of the said Aboriginal objects from the aforesaid land, prior to destruction of the Aboriginal objects, by representatives of the Jali Local Aboriginal Land Council, named in the said conditions.

45 The s 90 permit was the product of a process which was separate from and independent of, the application process for the development consent impugned in these proceedings. The effect of the s 90 permit was to enable the developer to do what it otherwise would be prohibited from doing, namely to destroy Aboriginal objects as defined in the NPW Act, subject to observance of the terms and conditions imposed on that activity.

46 The s 90 consent applied to part of the subject land, estimated to be less than 50 percent. The consent defined Aboriginal objects as meaning Aboriginal objects within the meaning of s 90 but excluding human skeletal remains. "Aboriginal object" is defined in s 5 as meaning "any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains".

47 In the case before this Court which dealt with the validity of the s 90 consent, Anderson v Director-General (above) the decision-maker was aware of and had read the first Weiner report: at [175]. The decision-maker had requested the third Weiner report but made his decision to grant the s 90 consent before receiving it. Pain J held that this amounted to a failure to take into account relevant mandatory material, without which the decision-maker could not have fully appreciated the significance of the site: at 91 [197]. Consequently the decision was invalid. The juridical basis of the decision, I think, was that the decision-maker was under an implied obligation to consider that material: see at [191]. Her Honour held:

[189] … The context of the NPW Act and the objects of the NPW Act clearly suggest that cultural significance is a relevant consideration for the Director-General's delegate to consider in any assessment of a s 90 consent. This is particularly clear from s 2A(1)(b)(i) of the NPW Act. … [193] The connection between the land and the Aboriginal objects is recognised in the anthropological reports of Dr Weiner where he holds that the site was a site of significance for the local Bandjalung [sic] custodians. The final supplementary report was specifically requested by NPWS as part of the processing of the s 90 consent in order to ensure the delegate was properly informed about relevant matters. I accept the applicants' submissions that in the context of this application Dr Weiner's final supplementary report did contain material which was relevant to the question of the significance of the objects on the land as is made clear by the comparative table relied on in the applicants' submissions in reply. Cultural significance of the site was a relevant consideration, and it is important that that consideration is based upon the most recent and accurate information the decision-make has on hand. [194] There were several matters addressed in Dr Weiner's final supplementary report that were not addressed in his draft supplementary report. The final supplementary report includes transcripts of interviews with a number of Aboriginal people who are traditional owners of the site, including Mr Douglas Anderson which are not contained in the draft supplementary report. The final supplementary report also attaches several documents, which are not attached to the draft supplementary report, such as a copy of a written story depicting the local history of the site, notes of an audio tape owned by Mr Ferguson, notes on a video tape owned by the Andersons, and a hand drawn map of the site showing 'sleeping goanna'. [195] While the overall conclusions of the report were known to Mr Naden, as the respondents sought to emphasise, he could not have been aware of all the detail contained in the report given the lengthy interviews enclosed with it including two interviews with one of the applicants, Mr Douglas Anderson. … [197] Accordingly, in the context of the NPW Act and the purpose manifest in the objects of the Act to which Mr Naden is bound to give effect I consider that his failure to review the final supplementary report of Dr Weiner prior to granting the s 90 consent resulted in a failure to take into account relevant mandatory material. Mr Naden was required to consider the most recent and comprehensive information, being the final supplementary report, which was known by him to be in preparation. Without considering the final supplementary report of Dr Weiner, Mr Naden could not have fully appreciated the extent of the cultural significance of the site. The applicants are successful on this ground.

48 In the present case failure to consider the Weiner reports is also put forward as a reason for invalidating the development consent. The respondents sought to distinguish the last-mentioned case because a different statutory scheme under the NPW Act formed the basis of the decision, as it did in another s 90 consent validity case, Country Energy v Williams (2005) 63 NSWLR 699 (CA) (see in particular at 713 - 715 [61] - [67]). It is true that the NPW Act contains a different statutory scheme. For example, the objects of the NPW Act are more strongly supported than the aims of SEPP 71 because s 2A(3) of the NPW Act provides that in carrying out functions under the NPW Act the Minister is "to give effect to …the objects of this Act", whereas s 79C(1)(a)(i) of the EPA Act and clauses 7 and 8 of SEPP 71 require that the aims of SEPP 71 be considered or taken into account. On the other hand, the object of the NPW Act in s 2A(1)(b)(i) (the conservation of places, objects and features of significance to Aboriginal people) is similar to the aim of SEPP 71 in cl 2(1)(d) (to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge). Moreover, the basis of Pain J's decision was that failure to consider a Weiner report resulted in failure to take into account relevant mandatory material, which is an issue before me. I therefore think that the case should be given a little weight in the present context.

49 In Anderson v Ballina Shire Council [2006] NSWLEC 76, which related to land just across the road from the subject land, Cowdroy J made a declaration that a development consent for a cycleway granted by the Ballina Shire Council was void. The decision was based on failure to properly consider the massacre as required by s 79C(1)(b) of the EPA Act. The evidence before the Court was that in around 1845 a massacre of hundreds of Aboriginal men, women and children took place around Angels Beach and that the protection of the place of this massacre was of great significance to the Aboriginal community. The council adverted to the issue of Aboriginal cultural heritage when making its decision and had before it a planning committee report which referred to an archaeological report by Susan Davies. Her report included a theoretical discussion of cultural heritage assessment but contained virtually no discussion of the claimed massacre and in particular its relationship to the cultural significance of the area. Cowdroy J held: 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. … 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… 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. … 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. … 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. Massacre 50 The massacre is a key matter which it is said that the Minister was bound to, but did not, consider. Express mandatory considerations under cl 8 of SEPP 71 included the aims in cl 2, measures to protect the cultural places and beliefs of Aboriginal people, and the conservation and preservation of items of heritage, archaeological or historic significance. The existence and scope of any implied obligation to consider the massacre should be determined having regard to the aims, subject matter and scope of SEPP 71. An aim, in cl 2(1)(d), was to protect and preserve Aboriginal cultural heritage and Aboriginal places, values, customs, belief and traditional knowledge. It is striking that the only group in Australian society singled out in this way in SEPP 71 was the Aboriginal people.

51 The Minister knew that there was an anthropological report by Dr Weiner in the possession of the applicant for development consent which concluded that the area was of high significance. In my opinion, having regard to the considerations to which I have referred, the Minister was obliged to obtain and consider the Weiner reports because they contained information concerning the massacre of vital importance in explaining and understanding the significance of the land to Aboriginal people. Without that knowledge the Minister had no more understanding of the issue than a foreigner who is told that ANZAC day is of high significance to Australians without being told why. Revelation of the massacre would have breathed life, death and tragedy into, and stripped the veil of obscurity from, the bland words "high significance". In my opinion, the revelation could have materially affected the Minister's decision.

52 Another way of analysing the issue is, in my view, that it was necessary for a proper, genuine and realistic consideration of relevant mandatory matters under SEPP 71 for the decision-maker to know the reason why the land was of high significance to Aboriginal people. In Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Gummow J said: "[W]hat was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy… The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense". This passage was cited with approval by Wilcox J in Williams v Minister for the Environment and Heritage [2003] FCA 535 at [30]. In Weal v Bathurst City Council (2000) 111 LGERA 181 at 185 Mason P said: "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"… 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". I take into account that it has been said that the formulation "proper, genuine and realistic consideration on the merits of the case" is one that "trembles on the verge of merits review": J J Spigelman "The Integrity Branch of Government" (2004) 78 ALJ 724 at 735; and that a caution has been issued lest this category of judicial review be "elided into a review on the merits or an appeal on the facts": Bruce v Cole (1998) 45 NSWLR 163 at 186 (CA); Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 297 [74], [75], 298 [79]. The s 90 Consent 53 I turn next to the applicant's contention that the Minister was bound under s 79C(1)(a)(i) read with cl 8(l) and (n) of SEPP 71 to take into consideration that a case was pending in this Court, and judgment had been reserved, challenging the validity of the consent to destroy Aboriginal objects issued under s 90 of the NPW Act. About a month later judgment was delivered and the consent was held to be void: Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43 (Pain J).

54 Subclauses 8(l) and (n) of SEPP 71 referred to "measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals" and "the conservation and preservation of items of heritage, archaeological or historic significance".

55 Section 91A of the EPA Act relevantly provides: (1) This section applies to the determination of a development application for development that is integrated development. (2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent. (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.

56 This development was integrated development. Consequently, the Minister was required to obtain from relevant approval bodies such as the National Parks and Wildlife Service, the general terms of any approval proposed to be granted in relation to the development and which the applicants would ultimately need if development consent were granted: s 91A(2) of the EPA Act. The Minister was obliged to ensure that any development consent granted was consistent with such general terms of approval: s 91A(3). In the present case there was no need to seek general terms of approval from the National Parks and Wildlife Service in relation to the destruction of Aboriginal objects on this site because, even before lodgement of the master plan, the developer had obtained a permit under s 90 of the NPW Act from the Director-General of the National Parks and Wildlife Service to destroy Aboriginal objects. In my view, the Minister was required to ensure that its terms were consistent with the development consent that he granted. The effect of the permit was to enable the developer to destroy items on the land the subject of the permit where such activity would otherwise constitute an offence under s 90 of the NPW Act. A s 90 consent was a precondition to lawful work on parts of the land. The s 90 consent which had been granted at the time that the Minister granted development consent related only to four sites on the subject land which were registered with the National Parks and Wildlife Service and which comprised something less than 50 percent of the whole of the subject land. The s 90 consent was granted on a number of conditions which included: 1. The Consent Holder shall ensure that representatives of the Jali Local Aboriginal Land Council are offered the opportunity to monitor initial construction activities including topsoil stripping, vegetation removal and service trenching on the subject lands with a view to identifying and salvaging significant Aboriginal objects disturbed by works. 2. The Consent Holder shall ensure that the area identified on attached Map 1 (modified 28/5/03) is reserved and dedicated as a special purpose Aboriginal Heritage Conservation Area recognising prior Aboriginal traditional uses of the land. Residential subdivision is not to extend within the limits of the Conservation Area. 3. The Consent Holder shall ensure that should any human remains be located during ground disturbing works, all work must cease immediately and the NSW Police Department and the Northern Aboriginal Heritage Unit of the National Parks and Wildlife Service be notified immediately. Work must not commence in the vicinity of the find until such time as NPWS officers have examined the find and discussed the management of the find and the need for further licensing.

57 These conditions provided, as the respondents submitted, a "measure to protect" the cultural heritage of the development site and a process for "conserving and preserving items of heritage, archaeological or historic significance" within the meaning of subclauses 8(l) and (n) of SEPP 71. When it was declared to be invalid, the parts of the site to which it had been expressed to apply became subject again to the absolute protection of cultural heritage provided for by ss 86 and 90 of the NPW Act. Consequently, some work could not be carried out on the land unless a further s 90 consent was granted. Whilst the Minister was obliged to consider the s 90 permit in order to ensure that its terms were consistent with the development consent that he granted, in my view the fact of the challenge to the validity of the s 90 consent, the outcome of which was unknown, was not a mandatory consideration. Destruction of Aboriginal Objects 58 Next I turn to the applicants' contention that the Minster was bound to, but failed to take into account, the fact that the development consent "allowed total destruction of all Aboriginal objects not salvaged outside the north-west corner of the land". I disagree that this is the effect of the development consent. At the time that the development consent was granted, the s 90 consent was on foot. It, not the development consent, permitted the destruction of Aboriginal objects in respect of parts of the land, subject to conditions. The remainder of the site - and when the s 90 consent was declared invalid, the entire site - was covered by condition D14 to the development consent. Condition D14 provided that if any Aboriginal archaeological relics were exposed during construction works, the applicant was to immediately notify the National Parks and Wildlife Service and obtain any necessary approvals to continue the work. Any necessary approvals to continue the work could only be given by the National Parks and Wildlife Service consistently with the protective objects of the NPW Act which provided substantial protection of Aboriginal objects, including criminal sanctions for breach of the Act.

FAILURE TO CONSIDER MATTERS REQUIRED BY S 79C(1)(b) OF EPA ACT 59 Section 79C(1)(b) of the EPA Act required the Minister to take into consideration "the likely impacts of [the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". The applicant submitted that pursuant to s 79C(1)(b) the Minister was bound to, but did not, take into consideration the following matters: (a) the social and cultural impacts on the Aboriginal community of construction of the development on the massacre site. The Minister's s 79C(1) evaluation makes no express or implied reference to such impact. (b) the reasons why the land was considered to be of high cultural significance to the Aboriginal people. The Minister was made aware that the land was considered to be of high cultural significance but was given no information or assessment and made no inquiry into the reasons why this was so.

60 In the present case, the material before the Minister mentioned s 79C(1)(b) but in a quite different context. After referring to that statutory provision, it stated: "The proposed development is generally designed in accordance with the zoning requirements. The proposed subdivision is not considered to create any adverse environmental impacts on both the natural and built environment as a result of the proposed subdivision. The proposed subdivision will provide new living opportunities in East Ballina". In my opinion, the Minister did not have proper and realistic regard to s 79C(1)(b) because he had no regard to the massacre.

61 In Anderson v Ballina Shire Council [2006] NSWLEC 76, which I have considered earlier, Cowdroy J held that the massacre was a mandatory consideration under s 79C(1)(b) and that a Council development consent for a cycle track/walkway (close to the land that I am considering in the present case) was void because the council failed properly to consider the massacre. The present case is stronger, I think, because in the case before Cowdroy J the council had information which referred to a massacre having taken place, whereas in the present case there was no such information before the Minister. I have earlier indicated that I have found Cowdroy J's decision persuasive in the context of s 79C(1)(a) even though his Honour based his decision on s 79C(1)(b). In the case before his Honour no reliance was placed on SEPP 71 which, it seems, was inapplicable.

62 The respondents submitted that Cowdroy J's decision should not be treated as an authority having persuasive force, even as a matter of judicial comity, in relation to s 79C(1)(b). The respondents submitted that his Honour followed an impermissible chain of legal reasoning because he had regard to s 111(1) of the EPA Act and cl 228 of the EPA Regulation. Section 111 in is Part 5 of the EPA Act and provides that for the purpose of attaining the objects of the Act relating to the protection and enhancement of the environment, "a determining authority in its consideration of an activity shall, notwithstanding any other provision 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". An "activity" was defined in s 110 (to which his Honour did not refer) and excluded any act, matter or thing for which development consent under Part 4 was required or had been obtained. Similarly, cl 228 of the EPA Regulation 2000 sets out factors to be taken into account "for the purposes of Part 5 of the Act" when consideration is given to the likely impact of an "activity" on the environment. The applicants sought to counter this criticism by submitting that the subject of the development consent in that case traversed both formed and unformed tracks and therefore approval was sought pursuant to both Part 4 and Part 5 of the EPA Act. The respondents replied that this did not detract from the fact that Cowdroy J's judgment was in respect of a development consent under Part 4 and in that context it was impermissible to rely on a provision in Part 5.

63 Whether or not this criticism of a particular aspect of his Honour's reasoning is sound, I am not convinced that the decision and the broader thrust of the reasoning behind it has been shown to be wrong such that, notwithstanding judicial comity, I should not follow it: Pancho Properties Pty Ltd v Wingecarribbee Shire Council (1999) 110 LGERA 352 at 369 - 370 (Talbot J); Edwards v Sutherland Shire Council (2006) 146 LGERA 199 at [44]; Commonwealth Custodial Services Ltd as trustee for The Burwood Trust Fund v Valuer General [2006] NSWLEC 400 at [60]. The likely impact of the development which Cowdroy J identified as falling within s 79C(1)(b) was the impact of the development on Aboriginal cultural heritage. The generic word "impacts" in the opening words of para (b) is linked to what follows by the non-exhaustive word "including" and therefore is not necessarily limited to the references thereafter to environmental, social and economic impacts. Thus it may extend to an impact on Aboriginal cultural heritage if that is not itself a type of social impact which, I consider, it is. I note that there is little authority on the meaning of "social" impacts in this context: see New Century Developments v Baulkham Hills shire Council (2003) 127 LGERA 303 at 317 - 318 (Lloyd J) which was concerned with a very different factual situation. I understand Cowdroy J in the Anderson case to be saying, in effect, that the massacre was a salient fact when considering the impact of the development on Aboriginal cultural heritage and that knowledge of that fact was necessary to a proper, genuine and realistic consideration of that matter.

TAKING INTO ACCOUNT AN IRRELEVANT MATERIAL MATTER 64 The applicants submitted that the Minister took into account an irrelevant material matter, namely, that a s 90 consent to destroy Aboriginal objects had been issued. This was said to be irrelevant because, within about a month thereafter, the consent was declared by this Court to be void ab initio.

65 I disagree. This ground has been dealt with in the discussion above in relation to the s 90 consent. If the s 90 consent had not been issued, the Minister would have been bound to take into account the general terms of any approval proposed to be granted by the National Parks and Wildlife Service: s 91A(2) EPA Act. In the present case, such general terms of approval were subsumed within the s 90 consent that had already been issued. It must follow that the Minister was bound, and certainly permitted, to consider the terms of that consent in order to ensure that his development consent was consistent with those terms: s 91A(3) EPA Act.

FAILURE TO CONSIDER THE PUBLIC INTEREST AS REQUIRED BY S 79C(1)(e) EPA ACT 66 Section 79C(1)(e) of the EPA Act required the Minister to take into consideration "the public interest". The applicants submitted that the Minister failed to take into account the public interest because: (a) destruction of a significant Aboriginal site for a housing subdivision, especially a massacre site historically recorded to the knowledge of the consultant and developer, could not be in the public interest; (b) there was no actual consideration of the public interest because the departmental report to the Minister merely said, tautologically, that it was considered to be in the public interest.

67 The first challenge takes issue with the outcome of the Minister's consideration of the public interest, not the consideration itself. Such a challenge, as the respondents submitted, is not amenable to judicial review.

68 Moreover, while SEPP 71 does give a measure of protection to Aboriginal places, in my view the conferral of an express power on the Minister to consent to their development (in circumstances which are not explicitly restricted) generally should not be understood as subject to an implied restriction which would prevent the power being exercised in relation to the development of private land. A similar view was taken in the context of the NPW Act in Country Energy v Williams (2005) 63 NSWLR 699 (CA) at 215 [67].

69 As for the second challenge, the Department's planning assessment report to the Minister concluded in the attached compliance table in respect of s 79C(1)(e) that the proposed development was "considered to be in the public interest". No submissions made pursuant to the statutory process of exhibition and notification raised the question of which complaint is now made. In the circumstances, I reject the second challenge.

UNREASONABLENESS 70 The applicants submitted that the decision was manifestly unreasonable because it could reasonably be ascertained by the average person that a response to a consideration relating to the protection and preservation of significant Aboriginal heritage objects and cultural values was that a s 90 licence had been issued for their destruction.

71 Unreasonableness in the administrative law sense means manifest unreasonableness, often eponymously referred to as "Wednesbury unreasonableness" after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. For a decision to be manifestly unreasonable it must be so unreasonable that no reasonable person could have come to it. In Save Our Street Incorporated v Settree [2006] NSWLEC 570 at [27] - [32] I surveyed the authorities on Wednesbury unreasonableness and the various ways in which the test of manifest unreasonableness has been stated. To this survey may be added the following references. In Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323 Menzies J observed that: "There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court". Attention was drawn to the latter dictum in Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 at [48] by Jagot J; see also her Honour's decision in MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581 at [48]. In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57] it was held that a condition attached to a grant of planning permission will not be valid unless three requirements are satisfied, including that "the condition is not so unreasonable that no reasonable planning authority could have imposed it".

72 In my opinion, the decision in the present case is not manifestly unreasonable. I therefore reject this challenge.

MISLEADING CONDUCT 73 The applicants submitted that the Minister's decision was invalid because the consultant and the developer misled the Minister: (a) by failing to inform the Minister of the legal challenge and reserved judgment in relation to the s 90 consent; (b) by not providing relevant information in their possession to the Minister as to the reasons why the land was culturally significant to the Aboriginal people. This relevant information which was in documents held by the consultant and the developer comprised the following: (i) the land consisted of a number of identified archaeological sites which contained surface and sub surface artefactual deposits made by their ancestors over a long period of occupation prior and during European settlement. (ii) the land was utilised for camping, tool making, ceremonies, burials and gatherings which is borne out by the occurrence of midden material, stone artefacts, red ochre and bones. (iii) the land was within an area subject to an historically recorded massacre that took place around 1854 in which up to hundreds of Aboriginal people were rounded up, driven and slaughtered. (iv) Douglas Anderson and other traditional owners had provided details of the significance of the land for a report and supplement by consulting anthropologist Dr Weiner. This report prepared for the developer was submitted to the Department of Environment and Conservation and is referred to in the Master Plan for the Development and Ballina Shire Council's assessment report to that plan.

74 This claim is made pursuant to amendments to the applicants' Points of Claim allowed during the trial on the basis that they were in terms that did not justify an inquiry into whether any failure to inform or to provide information was fraudulent, intentional, deliberate, negligent or in bad faith.

75 The threshold question, therefore, is whether "innocent" misleading conduct can invalidate a development consent. This kind of misleading conduct is familiar under legislation such as s 52 of the Trade Practices Act 1974 (Cth) but that is in a different area of discourse.

76 An administrative decision may be void in circumstances where there has been "fraud or misrepresentation" on the part of the person benefited by that decision: Lego Australia v Paraggio (1994) 52 FCR 542. The question whether the phrase "fraud or misrepresentation" should be read disjunctively, such that a misrepresentation may also be innocent, or whether the two concepts are subspecies of an overarching genus of "bad faith" does not appear to have been very clearly answered in Australian jurisprudence. In Bou-Simon v Attorney-General of the Commonwealth of Australia (Emmett J, FCA, 8 September 1998, unreported), Emmett J commented, in relation to an application to set aside a search warrant, that: "Questions may arise as to what conduct would be adequate to justify judicial interference in the administrative procedures involved in the issue of a search warrant. For example, a question arises as to whether a mere innocent misrepresentation would be sufficient to result in setting aside a search warrant" (at 21-22). His Honour did not attempt to answer that question.

77 The respondents submitted that there is no room for a concept of innocent misrepresentation within the ambit of administrative law. They submitted that the phrase "fraud or misrepresentation" should be interpreted as "fraud or deliberate misrepresentation". A number of cases in the Federal Court have considered the effect of "fraud or misrepresentation" upon a decision to issue a search warrant. The respondents submitted that use of the term "fraud or misrepresentation" by the Court in these cases lends support to its submission that both "fraud" and "misrepresentation" are concepts within an overarching genus of bad faith. Despite the use of the disjunctive "or" in each of these cases, I think that they do lend some support to the respondents' contention. In Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, Beaumont and Whitlam JJ commented at 555: "It is true that, in an exceptional case, an administrative decision may be vitiated by fraud or misrepresentation even at common law... The AD(JR) Act itself makes such a provision: see s 5(1)(g)". Section 5(1)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not, however, refer to "fraud or misrepresentation", or make any provision for innocent misrepresentation, but simply provides that a person aggrieved by an administrative decision may apply to the Federal Court or the Federal Magistrates Court for an order for review on the ground "that the decision was induced or affected by fraud". In Lego Beaumont and Whitlam JJ also said: "This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see eg R v Kylsant [1932] 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation". A similar comment was made by the Full Court of the Federal Court (Black CJ, Sackville and Emmett JJ) in Price v Elder (2000) 97 FCR 218 at 221 [12].

78 In the Queensland case of Firearm Distributors v Carson [2001] 2 Qd R 26, Chesterman J also addressed this issue. His Honour said at [44]: "It is not clear from the authorities whether 'fraud or misrepresentation' where it operates to allow a decision to be re-opened is limited to fraudulent misrepresentations or whether an innocent misstatement will suffice. On the basis that a mistake as to the facts is not sufficient to overcome the prohibition against re-making decisions it may well be that an innocent misrepresentation is not enough. The word 'misrepresentation' should perhaps be understood as referring to fraudulent misrepresentation and 'fraud' as referring to dishonesty of a more general kind, so that only conduct of that kind will vitiate a decision and allow the power to be exercised afresh".

79 I uphold the respondents' submission that misleading conduct which is not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. That disposes of this ground of challenge.

UNCERTAINTY: CONDITION D 14 80 Condition D14 to the development consent provided that: If any Aboriginal archaeological relics are exposed during construction work the Applicant shall immediately notify the National Parks and Wildlife Service and obtain any necessary approvals to continue the work.

81 The applicants submitted that this condition made the development consent void for uncertainty because there was such a large number of Aboriginal objects in the form of shells, stones, bones and other objects known to exist on the site, that if construction had to halt on every occasion on which archaeological relics were exposed the consent would be virtually impossible to comply with. Evidence of the large number of Aboriginal objects is to be found in the Davies reports. I do not accept the submission.

82 In Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36] and [40] Hodgson JA, with whom Tobias JA agreed, accepted the submission that "as part of upholding the effectiveness of instruments, the Court would try to give them practical effect by avoiding uncertainty. Instruments such as consents and conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results". See also Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 286 [27] - [28]. Clause D14 should be construed in light of the s 90 consent over part of the subject land, a copy of which was before the Minister when he granted development consent. Clause D14 does not require construction work to cease on that part of the land covered by a valid s 90 consent because the "necessary approvals" would already have been obtained. To the extent that no valid s 90 consent applies, condition D14 operates. Even if it operates in the onerous way suggested by the applicants, it does not follow that it is void for uncertainty, nor that the development consent is also void.

83 In my opinion, condition D14 is clear on its face and there is no uncertainty as to the manner in which it would operate, should the triggering event occur, namely, the discovery of an Aboriginal archaeological relic during construction works.

ORDERS 84 Subject to giving the parties the opportunity to address me as to the final form of relief, I propose to grant the following relief: (1) Declaration that development consent number 188-8-2004 granted on 20 December 2005 by the first respondent to the second respondent for the development of land described as Lot 208 DP 851318 on the corner of Angels Beach Drive and the Coast Road, East Ballina, NSW, is void and of no effect. (2) Order that the second and third respondents be restrained from carrying out any works on the said land pursuant to the said development consent.

85 The matter will be listed before me at 9.15 am on Wednesday 22 November 2006 to settle the final form of orders and any issue as to costs.

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.