Anderson v Minister for Infrastructure Planning & Natural Resources - [2006] NSWLEC 725 - NSWLEC 1998 case summary — Zoe

NSWNSWLEC

Anderson v Minister for Infrastructure Planning & Natural Resources

[2006] NSWLEC 725

Land and Environment Court (NSW)|1998-09-08|Before: Biscoe J, Emmett J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-09-08

Before

Biscoe J, Emmett J

Source

Original judgment source is linked above.

Judgment (89 paragraphs)

[1]

INTRODUCTION 1 The applicants are Aboriginal elders who bring these proceedings on behalf of the Numbahjing Clan within the Bundjalung Nation. They challenge the validity of a development consent granted on 20 December 2005 for a housing subdivision with associated parks, conservation area, roads and infrastructure works on land on Angels Beach Drive, East Ballina, New South Wales, known as Lot 208 in Deposited Plan 851318.

[2]

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.

[13]

(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".

[15]

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.

[34]

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.

[35]

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.

[43]

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.

[53]

[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.

[55]

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.

[57]

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).

[60]

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.

[61]

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.

[80]

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].

Parties

Applicant/Plaintiff:

Anderson

Respondent/Defendant:

Minister for Infrastructure Planning & Natural Resources

Legislation Cited (3)

Administrative Decisions (Judicial Review) Act 1977(Cth)

Coastal Protection Act 1979(NSW)

Trade Practices Act 1974(Cth)

Cases Cited (27)

CITATION : Anderson v Minister for Infrastructure Planning & Natural Resources [2006] NSWLEC 725

Anderson v Ballina Shire Council [2006] NSWLEC 76; Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; Bou-Simon v Attorney-General of the Commonwealth of Australia (Emmett J, FCA, 8 September 1998, unreported); Bruce v Cole (1998) 45 NSWLR 163 ; Commonwealth Custodial Services Ltd as trustee for The Burwood Trust Fund v Valuer General [2006] NSWLEC 400; Council of the City of Parramatta v Pestell (1972) 128 CLR 305; Country Energy v Williams (2005) 63 NSWLR 699; Edwards v Sutherland Shire Council (2006) 146 LGERA 199; Firearm Distributors v Carson [2001] 2 Qd R 26; Foster v Minister for Customs and Justice (2000) 200 CLR 442; Kennedy v Director General, Department of Environment and Conservation [2006] NSWLEC 456; Kevin R Whelpton & Associates (Aust) Pty Ltd and Anor v Attorney-General (Cth) (1987) 14 FCR 293; CASES CITED: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 268; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Lego Australia v Paraggio (1994) 52 FCR 542; MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; New Century Developments v Baulkham Hills shire Council (2003) 127 LGERA 303 ; Pancho Properties Pty Ltd v Wingecarribbee Shire Council (1999) 110 LGERA 352; Price v Elder (2000) 97 FCR 218; Save Our Street Incorporated v Settree [2006] NSWLEC 570; Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396; Weal v Bathurst City Council (2000) 111 LGERA 181; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245; Williams v Minister for the Environment and Heritage [2003] FCA 535; Zhang v Canterbury City Council (2001) 51 NSWLR 589

(1994) 52 FCR 542

(1986) 162 CLR 24

[2006] NSWLEC 400

(2006) 144 LGERA 43

(1998) 45 NSWLR 163

(1972) 128 CLR 305

(2005) 63 NSWLR 699

(2006) 146 LGERA 199

(2000) 200 CLR 442

(1987) 14 FCR 293

(2006) 143 LGERA 268

(2006) 143 LGERA 277