Carriage v Stockland

10 The Consent does not cover human skeletal remains.

11 A Voluntary Conservation Agreement is to be established for the long term conservation and management of the cultural heritage values in the area. This will involve: a) The transfer of Stockland owned land to public ownership, ie Wollongong City Council

b) The establishment of a Plan of Management to look at: _ The overall protection, conservation and management of the evidence of sites and landscape including the middens, beach, remnant sand dune, burial, estuary and creeklines.

_ Introducing mitigation measures to protect the area, such as boardwalks for access to the beach and controlled access in certain areas such as where the burial is present. _ The establishment of a Plain English report to be provided to the community detailing the story of what has happened here, what has been learned about the heritage of the area, why the VCA was established, what are the heritage values of this landscape and why is it worth protecting. _ continuing consultation with the Aboriginal community ie. Wodi Wodi Elders Group, Illawarra LALC, Wadi Wadi Coomaditchie Aboriginal Corporation, the Sandon Point Aboriginal Tent Embassy and the Korewal Elouera Jerrungarugh Aboriginal Corporation.

2. A Permit covers only that area stated in the Permit.

3. A Consent covers only that area stated in the instrument of Consent and in any Schedules thereto. 15. The holder of the Permit or Consent shall keep field records and a copy of all such records shall be lodged with the National Parks and Wildlife Service at the termination of each field work period. A copy of all field records shall be lodged with The Australian Museum at the time the archaeological material are deposited with the Museum.

There is little or no direct evidence of any breach of Specific Condition 2 or General Condition 15. Apart from the failure of the applicant to press issues in respect of these two conditions, except faintly, the performance to comply with them is generally in the future.

The evidence so far shows that:- (1) Between 22 and 24 May 2002 a grader made three grade lines or scrapes about six inches deep. The first respondent's witness describes this as the salvage operation required by special condition three of consent No. 1289 in accordance with the methodology set out in the research design provided by Navin Officer Heritage Consultants dated 19 October 2001. The finish point of the lowest of the scrapes is admitted to be outside the area of consent No. 1289. It is explained by the first respondent to have been an accident. The site is not pegged. Artefacts were collected in the area disturbed outside consent No. 1289;

(2) Excavation relating to Stages 1 to 6; (3) Installation of stormwater and sewer infrastructure; (4) Installation of major road pavements; and (5) Erection of retaining walls on the southern boundary of Stage 1 and the western boundary of Stages 2-6.

The applicant visited the site of Stages 2-6 on 4 July 2002 in the company of Craig Brown, a representative of KEJ, John Pagett, an experienced senior Aboriginal Sites Officer, Tony Stephenson, a photographer, and Nathan Kennedy. During that visit the following observations were made by Mr Carriage:- (a) Six artefacts lying on the ground outside the fence along the northern side of the site where the earth had been cleared by a machine quite close to the banks of Tramway Creek;

(b) Other excavation had taken place outside the fence;

(c) A number of clumps of kangaroo grass placed over the top of a 20 metre scraped area outside the fence. Artefacts were noticed falling from the roots of the clumps; (d) A clayed area towards the centre of the site where further artefacts were found; and (e) Artefacts were found at seven different locations, including the two places outside the fence described above.

The project manager employed by the first respondent is Paul Hedge. In cross-examination he proffered a number of explanations for the work apparently carried out off the site or, more specifically, outside the perimeter of the man proof fence. The fence is erected generally but not necessarily accurately along the boundary of the first respondent's sites at Sandon Point. The explanations are as follows:- (1) The intrusion into land outside the area covered by consent No. 1289 in May was an accident that occurred while Aboriginal observers and archaeologists were present for the purpose of the salvage operation required by the consent. It was inspected by officers of NPWS on 27 May 2002;

(2) The kangaroo grass observed by Mr Carriage and others on 4 July 2002 had been removed from within the site to a position outside the site to cover an area cleared of lantana. The only clearing at the place outside the site was to remove vegetation;

(3) One of the other sites identified by Mr Carriage, Mr Pagett and the others on 4 July 2002 could be an area disturbed in conjunction with European heritage archaeological investigations of an old coke making, kiln and salt works site in order to determine the extent of the historical use; and

(4) Material had been placed on the ground within a compound outside the fence. So far as he is aware, no clearing was required before materials were placed on the ground.

Mr Hedge has told the Court that no sewerage pipes or infrastructure for sewage and stormwater have been constructed outside the area of the site enclosed by the fence. There is no present intention to provide for water reticulation. Sediment and erosion controls have been built within the fenced site, so far as he is aware. In due course, water quality ponds will be constructed over the general area of one of the grader scrapes made for the purpose of the salvage operation. It is likely the first respondent may need a further s 90 consent to allow these works to progress. They have not been commenced. An application, pursuant to s 90 of the NP&W Act, was lodged with NPWS in March 2002 to cover the contingency of the works.

Some soil has been transported off-site to other land controlled by the company at Thirroul. Some soil is stockpiled on-site.

Mr Hedge is emphatic that:- (1) If any further consent is required pursuant to s 90 of the NP&W Act an application will be made; and

(2) There is no intention for the first respondent to act otherwise than in accordance with the law.

In a letter addressed to the first respondent on 5 July 2002, the Director-General of NPWS states:- The site is described as a subsurface artefact scatter. Given that the investigation out of which the site notification came was a study of the Stages 2-6 area, using a targeted methodology that was appropriate to an assessment of the whole area, it is considered that any relics of the type described by your archaeologists, ie artefacts (but excluding, for example, burials), form part of 52-2-2143 if they are within the area of Stages 2-6.

Accordingly I consider that any destruction defacement or damage that has been carried out by you in accordance with the conditions issued on 30 January 2002, in the area of Stages 2-6 of relics of the type identified by your archaeologists, that is, artefacts, has been carried with my consent.

Further I confirm that any destruction defacement or damage that will be carried out by you in accordance with the conditions issued on 30 January 2002, in the area of Stages 2-6 of relics of the type identified by your archaeologists, that is, artefacts, will be with my consent.

(c) the only area in which you can carry out damage etc to relics is in that part of the development within the boundary indicated on the map by the coloured highlight…

(d) as set out above, within that boundary, that is, on Stages 2-6, damage etc of artefacts is carried out with my consent if in accordance with the conditions.

The above statement is reflected in a final submission made to the Court by Ms Pearman, who appears for the second respondent, that it is not likely or apprehended by the NPWS that there will be a breach of the s 90 consents.

It is difficult to see, as I observed in my first judgment on 28 July 2002, how the destruction of relics within the area covered by either of the consents issued on 30 January 2002 can be held to be contrary to s 90 of the NP&W Act.

Section 90(1) and s 90(2) of the NP&W Act provide as follows:-

Destruction etc of relics or Aboriginal places (8) 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, a relic or Aboriginal place is guilty of an offence against this Act. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (200 penalty units in the case of a corporation)

(9) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

The following matters are relevant to the allegation that destruction has occurred outside the perimeter fence:- (1) The fence is not definitive of the boundary of the site. The first respondent has offered an undertaking to the Court that it will take steps to ensure that the line delineating the site at Sandon Point Stage 2 ("SPS 2") be appropriately marked by surveyors;

(2) Notwithstanding there is a real prospect that relics may have been disturbed in the area outside the development site, there is no present threat of any further activity proposed in those areas or evidence that there will be contravening activity in other areas outside the designated sites;

(3) The allegation that damage was caused by one of the grader blade scrapes is confined to an event of salvage carried out pursuant to an express condition of the consents authorising that activity. Even if that is not so, it is not shown to be more than an accident or error of judgment rather than a wilful disregard of any statutory obligation. Furthermore, an application for a s 90 consent to conduct any further work in that area has been lodged. There is no prospect or threat of new work at that location in the meantime;

(4) There is no evidence to show that soil has been removed to another place from any of the locations identified by the applicant as being off the development sites; and

(5) There is no logical reason why work should be halted within the sites covered by the s 90 consents as a consequence of any alleged breaches of the law elsewhere. 22. Technically, the first respondent would be in breach of the terms of General Condition 3 by disturbing relics outside the area stated in Schedule B of the consents. Clearly, also there could be a breach of s 90 of the NP&W Act in that case. However, either breach would not necessarily lead to the specific orders sought by the applicant.

Subject to resolving the claim of uncertainty in favour of the respondents, if the evidence in respect of the activities of the first respondent up to this point remains the same at any final hearing, there is a possibility the Court could make a declaration that there has been a technical breach of s 90 of the NP&W Act in respect of work off the development sites. Nevertheless it is only a remote and faint possibility that the Court would make orders in the terms sought, in particular the mandatory order, regulating future activity on the actual sites covered by the consents dated 30 January 2002. Furthermore, given there is no present or imminent threat of a further breach of the NP&W Act it would be inappropriate to make interlocutory orders based solely upon past activity at this time.

The applicant is seeking a declaration that consent No. 1288 and consent No. 1289 are void or voidable on the ground of uncertainty. The argument, as can be determined from the submissions made by Mr Oshlack, is that on the face of the consents they do not describe an area that can be readily identified.

The applicant firstly relies on the reference to "Part of Sandon Point Stage 2 (SPS2)" in the description of the relics in consent No. 1289 to support an argument that it is not intended to cover the whole site of Stages 2-6. The difficulty with this approach is that the description of the land in Schedule B refers to an "attached map" whereon an area is enclosed by red edging imposed over what is generally recognised as being the approximate outline of the boundary of Stages 2-6 of the first respondent's development.

The consents were issued by the NPWS after consideration of a report by the first respondent's consultant, Navin Officer. Mr Officer has given evidence that SPS 2 was a name given to the site for ease of reference. The land intended to be covered by that reference is the development area which forms part of Stages 2-6 subdivision as indicated on a plan attached to the application. Mr Officer, together with his partner, prepared site cards, subsequently given the numbers 52-2-2142 and 52-2-2143 by the NPWS.

The evidence of Mr Hedge is that the red line was drawn on the map attached to the consent by Tanya Koeneman, a NPWS officer, in his presence on the day the consent was issued.

Secondly, the applicant asserts that the consent can be construed as being limited to an area hatched black on the relevant map attached to consent No. 1289. There is no apparent logical argument to support this construction given the presence of the more emphatic red line super-imposed on the base map. The base map is extracted and copied from the Navin Officer report. Mr Officer has explained that the map upon which black hatching was drawn was intended to depict an end result of a sub-surface testing programme on the basis of what was discovered. The hatched section was determined as the area where it is most likely artefacts will be found.

The further uncertainty relied upon by the applicant arises from the lack of direct convergence between the super-imposed red line and the original black outline around the development area of Stages 2-6.

The evidence is that the red line was drawn in freehand by Ms Koeneman. In those circumstances any divergence between the two lines is explicable. It is unlikely a Court would place any significant weight on the lack of concurrence in the light of the written description in the body of the consent. The map is probably no more than a corroborative explanation of the words to enable the consent to be read and understood without the necessity to fall back onto other material upon which the consent is founded.

Unlike a development consent, which applies in rem, the s 90 consent is not transferable and is a response to a specific application made by the holder of the consent for a specific purpose to be implemented by the applicant for the consent. General Condition No. 1 specifically states that consents are not transferable. Furthermore, General Conditions No. 4 and No. 5 respectively provide for revocation and variation at any time at the discretion of the second respondent. These provisions suggest that any breach of terms and conditions of a consent can be monitored, controlled and otherwise dealt with by the Director-General according to circumstances as they arise.

A sub-surface artefact scatter described in Schedule A is extremely unlikely to have a defined boundary. If the consent is limited to the hatched area, as the applicant suggests, it would be impractical and unworkable to regard the hatched area as an exhaustive identification of the area containing artefacts. One might ask why a consent to destroy relics would be limited to an area regarded as the most likely to contain artefacts.

Once again, the letter from the Director-General dated 5 July will provide some assistance in determining this aspect of the case. It clearly expresses the intention of the consent authority to encompass the whole of Stages 2-6.

Although it is not appropriate to reach any final conclusions in these interlocutory proceedings, nevertheless there has been extensive evidence and cross-examination of witnesses. That advances the evidence beyond a preliminary point. From this unusually advantageous position the Court has been given significant insight into the arguments the parties will raise at the final hearing based upon what might already be regarded as the major part of the evidence to be relied upon. If that evidence remains the same and the submissions follow the identical pattern it is unlikely that the applicant will succeed in having the consents, namely No. 1288 and No. 1289 declared void or voidable.

No specific argument was directed to consent No. 1288. Accordingly, as there are only a few of the distinguishing circumstances detailed above and applied to consent No. 1289, the applicant's case must be regarded as even weaker in respect of the Stage 1 consent.

I am unable to agree that the applicant is likely to ultimately persuade the Court that the consents can be given no meaning or no sensible or ascertainable meaning as Mr Oshlack contends (see the judgment of Lord Denning in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 at 678). The meaning of the subject consents, including the type of artefacts or relics and the identity of the relevant land, can be given an ascertainable meaning. If there are ambiguities it is the duty of the Court to resolve these. It is my preliminary view that the language used does not lead to absurd results. Although there is some prospect of ambiguity, it is not likely to be resolved by constraining the area of consent No. 1289 in the way submitted on behalf of the applicant. As I have said, no direct argument was aimed at consent No. 1288.

Adopting the first of the principles enunciated in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, referred to in the first judgment, the Court is not satisfied there is a probability that at the trial of the action the applicant will be entitled to relief on the ground that the consents are so uncertain they should be declared void.

There is no contention that damages could be an adequate compensation for, or satisfaction of, the claim. There clearly could be the risk of irreparable damage to artefacts damaged or disturbed otherwise than in accordance with the NP&W Act. The risk of damage alone is not sufficient to grant interlocutory relief when, as in the present circumstances, there is no real likelihood of a grant of the relief sought by the applicant. Moreover, there is no serious question to be tried or prima facie case in respect of the identification of the areas covered by the two consents in the sense referred to by the High Court in Castlemaine Tooheys .

The applicant has offered an undertaking as to damages. He is a pensioner and admits to no assets of significance. The first respondent has produced unrefuted evidence that the costs the company will incur if works are delayed on-site as a result of an interlocutory order requiring work to cease are in the order of $34,500 per day. The public interest in protecting valuable archaeological Aboriginal heritage is self-evident and would need to be taken into account when determining the balance of convenience. In the present case, it does not arise.

Lapse of time is relevant in determining whether to grant interlocutory relief. In this respect the Court recognises that the s 90 consents were issued in late January 2002. In the meantime, no challenge is raised to the validity of the consents until an amended class 4 application is filed in Court at 10:00am on 8 July 2002. Work on the development of the residential subdivision commenced in the last week of May. The first application for interlocutory relief was made on 27 June 2002. No issue about the invalidity of the consents on the ground of uncertainty was raised at that hearing. However, the first evidence of work taking place outside the areas covered by the consents is not obtained, so far as the Court is aware, until 4 July 2002. That latter claim is unlikely to form a basis for the orders that the applicant seeks, for the reasons already given.

The applicant's case, as it was on the last occasion, appears to be proceeding on the apprehension of those behind the applicant that the s 90 consents should be forsaken or overridden as a consequence of a perceived, but lately held, re-assessment of the extent of artefacts on the subject land. The grant of the consents has removed any reasonable prospect of such a review whilever they remain in force.

Having regard to all of the circumstances, the Court is of the view that the application for interlocutory relief should be dismissed. The future conduct of this matter will need to be addressed with appropriate directions being made. 43. The question of costs will be reserved in relation to the application of interlocutory relief, as there have not been any submissions by any party in this respect.

44. The outstanding matter of the first respondent's application for an order for security for costs against the applicant is reserved. A separate judgment in respect of this issue will be published shortly, after the Court has had a proper opportunity to fully appreciate the effect of the recent Court of Appeal decision in Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32, unreported.

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