Kennedy v NSW Minister for Planning

Kennedy v NSW Minister for Planning - [2010] NSWLEC 240 - NSWLEC 2010 case summary — Zoe

[44]

Condition E 31 will be deleted and renumbered D20 inserting the condition in the relevant Prior to the commencement of works section of the approval. 64 Figure 4 followed which is a copy of Figure 6 prepared by Dr McIntyre-Tamwoy (referred to in the above quotation) showing black indicative areas to be covered by the sample test excavation. In her 2007 report she indicated that those areas were those with surviving topsoil, based on testing by Network Geotechnics. 65 Thus, the Minister considered the issue of protection of Aboriginal cultural heritage in some detail. The applicant however, contends that the Minister was bound to consider the Hiscock, Therin and Huys reports: see [54] above. 66 The Director-General's 2009 environmental assessment report to the Minister under "Aboriginal Heritage" at [5.7] referred to the Huys Report. Dr McIntyre-Tamwoy's 2007 report appended thereto summarised previous archaeological studies that had been done, including the Therin and Huys reports and recommendations therein. Since the Minister considered that Director-General's report and Dr McIntyre-Tamwoy's report, there is no substance in the applicant's contention that the Minister did not consider the recommendations in the Huys and Therin reports. The Hiscock report was not referred to. 67 Further, I do not accept that the Minister's obligation to consider the public interest was at a level of particularity which required him to find out that the Hiscock report existed and then to consider it, or to consider the Huys and Therin reports to a greater extent than he did. The statutory scheme provided opportunity through submissions, including for the applicant, to bring the Hiscock report to the attention of the Minister but no one did so. Such a level of particularity is inconsistent with the following principles adopted by the Court of Appeal in Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [35] quoting Walsh v Parramatta City Council [2007] NSWLEC 255, 161 LGERA 118 per Preston CJ (omitting citations): "61 The relevant considerations ground is concerned essentially with whether the decision maker has properly applied the law. It is not a ground that is essentially concerned with the process of making the particular findings of facts upon which the decision maker acts…

[64]

91 The next ground of challenge to the validity of the Modification Approvals is that they were manifestly unreasonable because allegedly: (a) they virtually remove all Aboriginal rights to protect and manage their cultural heritage on land identified as containing a large number of significant Aboriginal artefacts; (b) they allow Stockland to abrogate all its previous commitments and the requirements of development conditions and DECCW s 90 consents to provide land for a Keeping Place and to enter into a Voluntary Conservation Agreement; (c) they virtually remove all Aboriginal management and protection conditions; (d) conditions B50, B51, E31 and E32 were significant in determining in Kennedy 1 that the major project approval was valid. 92 In Kennedy 1 at [22] I said: "Manifest unreasonableness as a ground of judicial review conveys the idea that a court should not lightly interfere with administrative decision-making. The test is not whether the Court considers the administrative decision is unreasonable. The test is whether the Court considers the decision is so unreasonable that no reasonable body could have come to it: Notaras at [124]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [123]. To give grossly inadequate weight to a matter of some importance can only qualify as a ground of judicial review if it satisfies the test of manifest unreasonableness as applied to the exercise of power: Minister for Planning v Walker at [35] quoting Notaras at [119] which cited Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450 at [76]-[78]." 93 In my view, the Modification Approvals do not come within those principles. The merit-based claims made in support of this ground essentially concern the applicant's disagreement with the new modified conditions. The new modified conditions do provide a measure of protection for such Aboriginal artefacts as may exist on the Project Site. It was open to a reasonable decision-maker to conclude, on the material considered by the Minister, that the conditions were reasonable.

Parties

Applicant/Plaintiff:

Kennedy

Respondent/Defendant:

NSW Minister for Planning

Cases Cited (17)

CITATION : Kennedy v NSW Minister for Planning [2010] NSWLEC 240

Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Carriage v Stockland (Constructors) Pty Ltd & Ors [2002] NSWLEC 216 Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kennedy v NSW Minister for Planning [2010] NSWLEC 129 Kennedy v NSW Minister for Planning [2010] NSWLEC 177 CASES CITED: Kioa v West (1985) 159 CLR 550 Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 Roy Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124 Walsh v Parramatta City Council [2007] NSWLEC 255, 161 LGERA 118

3 The applicant, Roy "Dootch" Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy, challenged the validity of the Project Approval. On 26 July 2010 I dismissed the challenge: Kennedy v NSW Minister for Planning [2010] NSWLEC 129 (Kennedy 1 judgment). 4 Meanwhile, in March 2010, Stockland made two requests to the Minister to modify the Project Approval under s 75W. The Minister approved both modification requests on 9 August 2010 (Modification Approvals).

5 The applicant now claims: (a) declarations that the two Modification Approvals are invalid; (b) an injunction restraining Stockland from undertaking any activity on the land that may impact on the environment in reliance upon the Modification Approvals; (c) an order for remediation, pursuant to s 124 of the EPA Act , for damage caused "by earthworks, vegetation clearing and desecration of a significant Aboriginal Cultural Heritage Place". 6 On 21 September 2010 I granted an interlocutory injunction restraining Stockland from carrying out certain clearance works on part of the Project Site pursuant to the Project Approval as modified: Kennedy v NSW Minister for Planning [2010] NSWLEC 177. 7 The applicant's grounds of challenge, as pressed at the hearing, may be shortly summarised as follows:

[2007] NSWLEC 741

(1994) 49 FCR 576

(1985) 159 CLR 550