Kennedy v NSW Minister for Planning

BACKGROUND The AIR Site 20 The vast majority of the Project Site is on Lot 2 DP 595478, colloquially known as the AIR Site, "AIR" being "Australian Industrial Refractories". The AIR Site is intersected by two creeks that run west to east. One, Woodlands Creek, runs across the middle of the AIR Site where it is now an underground drain. The other, Hewitts Creek, runs across the northern part of the AIR Site.

21 Stockland purchased the AIR Site from BHP in 1999. Previously, that part of the AIR Site north of Woodlands Creek had been used for the manufacture of kiln bricks. The south eastern part of the AIR Site below Woodlands Creek had been used as a brick pit to supply clay bricks for the kilns. This had involved clay extraction to a depth of about 12 metres.

22 A large part of the AIR Site, including all the brick pit areas and areas on the north east, had been used by BHP for the deposit of waste materials. The past uses of the AIR Site resulted in severe degradation of Woodlands Creek and Hewitts Creek.

23 As a condition of the sale of the AIR Site, BHP was required to extensively remediate the AIR Site. The remediation work undertaken by BHP and monitored by a specialist company involved removing all waste material and stripping back the site to the clay levels. This left a number of depressions on the land, some of which (ie the old brick pits) were very deep. As part of the remediation process, BHP backfilled the majority of the excavated depressions.

24 On 24 July 2000, Wollongong Council granted Stockland development consent to demolish the built structure on the AIR Site (AIR consent). The demolition was carried out in 2000-2001, after BHP's remediation work was completed. Concrete material from the demolition works was stockpiled on the area marked "Stockpile Area" in the plan attached to the AIR consent. Stockland intended to use excess fill from the Old Stages 2-6 area to the south (described below) to backfill the balance of the depressions.

25 At the completion of the remediation and demolition work, the AIR Site was essentially a bare site, save for the south western portion below Woodlands Creek in the area marked "Stockpile Area" in the plan attached to the AIR consent. This section remained, for the most part, as clear earth. Two photographs in evidence show the AIR Site before and after the remediation and demolition works carried out by BHP and Stockland respectively. Subdivision of Old Stage 1 and Old Stages 2-6 26 In early 2001, Stockland lodged two applications with Wollongong Council seeking development consent for a subdivision of two areas at Sandon Point known as Stage 1 (Old Stage 1) and Stages 2-6 (Old Stages 2-6). The two areas are adjacent to each other and are located just to the south of the Project Site, below Tramway Creek.

27 The two applications were the subject of separate Class 1 appeal proceedings in this Court before different commissioners who granted development consent for both applications in 2001.

28 For the purposes of the Class 1 appeal proceedings, Stockland engaged Navin Officer, an archaeological consultancy firm, to conduct investigations for potential Aboriginal artefacts on Old Stage 1 and Old Stages 2-6, for the purposes of (the then) s 87 of the NPW Act. At that time, s 87 allowed the Director-General to permit the disturbance and excavation of land where there might be Aboriginal relics (see also s 86 at that time). That report was subsequently prepared by Navin Officer in October 2001 on the archaeological subsurface testing program for Old Stages 2-6 (2001 Navin Officer Report).

29 In summary, Navin Officer concluded that there were Aboriginal artefacts on the Old Stages 2-6. They prepared a plan identifying the locations which might contain artefacts (p 70). They also noted that, because of the presence of Aboriginal relics on that land, consent under s 90 of the NPW Act would be required before the land within the Old Stages 2-6 could be disturbed. They recommended, among other things, a program of salvage and recovery of artefacts.

30 Following the grant of development consent by this Court, Stockland obtained two consents under s 90 of the NPW Act dated 30 January 2002 to carry out the destruction of Aboriginal relics. Consent No 1288 was for Old Stage 1 and consent No 1289 was for Old Stages 2-6. On 30 September 2002, Stockland obtained a third consent under s 90 of the NPW Act, consent no 1427, for areas adjacent to the Old Stages 2-6.

31 All three s 90 consents included a condition requiring a collection and salvage program to be undertaken with the participation of Aboriginal groups. This requirement picked up a recommendation in the 2001 Navin Officer Report.

32 The collection and salvage program required under consent No 1289 took place shortly after that consent was issued. Navin Officer was involved in that program and prepared a report in August 2002 setting out their findings (2002 Navin Officer Report).

33 The collection and salvage programs required by the other two s 90 consents were also undertaken. The final results of the salvage and excavations undertaken pursuant to all three s 90 consents were set out in a further report prepared by Navin Officer in August 2003 titled Sandon Point Residential Subdivision Bulli, NSW: Water Quality Ponds and Lot 235. Archaeological Salvage Program (2003 Navin Officer Report).

34 Work on the Old Stages 2-6 subdivision commenced after the salvage and excavation program was completed. Excess fill from the Old Stages 2-6 was transported to the "Stockpile Area" on the AIR Site, as marked on the plan attached to the AIR consent. Approximately 20,000m3 of soil was taken from the Old Stages 2-6 to, according to the evidence of Mr Hedge for Stockland, the "Stockpile Area". According to the evidence of Mr Carriage and Mr Kennedy, some of that soil was deposited further north on the AIR site between Woodlands and Hewitts Creeks and, according to Mr Carriage, it contained numerous artefacts. Their evidence is in conflict with that of Mr Hedge.

35 The soil was intended to be used for backfilling excavated depressions on the AIR Site which remained from the demolition and remediation works. However, on 20 November 2002, in proceedings commenced by Mr Carriage, the Court made orders prohibiting any disturbance of the stockpiled soil so as to allow Mr Carriage to inspect the stockpiles for artefacts: Carriage v Stockland (Constructors) Pty Ltd & Ors [2002] NSWLEC 216. Although the interlocutory injunction was eventually discharged (Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541), the stockpiled soil remained in situ and slowly diminished in size over the next few years due to rain and weather. Major Project 36 On 11 December 2002, the (then) Minister issued a direction under the EPA Act for a Commission of Inquiry (COI) to be held into (among other things) the preferred use of land in Sandon Point, including land within the Project Site. The COI report in September 2003 made 80 findings and recommendations concerning the development of land within the area considered.

37 On 23 May 2005, the (then) Minister appointed Charles Hill of Planning Workshop Australia to provide an independent review of the COI's findings and recommendations. In Mr Hill's report of November 2005, he recommended a larger development footprint. He also recommended that rezoning for development should be allowed on terms that more than 60 percent should be left as open space and brought mostly into public ownership; and that some hectares towards the western boundary should be deemed suitable for medium density residential development, including aged care facilities.

38 On 12 December 2005, the Department of Planning (the Department) advised Wollongong City Council that the Minister had agreed to consider Sandon Point as a potential State Significant Site under the State Environmental Planning Policy (Major Development) 2005 (Major Projects SEPP) and that it was expected a concept plan would be lodged under Part 3A of the EPA Act. Part 3A had come into effect on 1 August 2005: Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005. 39 On 2 March 2006, HLA Envirosciences Pty Ltd, on behalf of Stockland and Anglican Retirement Villages (ARV), wrote to the Department requesting the Minister to declare that the proposed development of Sandon Point was a "major project" within cl 13 of Sch 1 to the Major Projects SEPP, to which Pt 3A applied: s 75B.

40 The (then) Minister made that declaration on 2 April 2006, having formed the opinion for the purposes of cl 6 of the Major Projects SEPP that the proposed development fell within cl 13 of Sch 1. As a result, the Minister became the approval authority: s 75D.

41 Concomitantly, the Minister authorised Stockland and ARV to submit a concept plan for the Major Project Site, in accordance with s 75M. In turn, the Director-General of the Department of Planning directed Stockland and ARV to prepare a study to justify the inclusion of Sandon Point as a State Significant Site under the Major Projects SEPP. Concept Plan 42 On 19 June 2006, Stockland and ARV submitted a concept plan for residential subdivision and the development of a residential facility, together with a State Significant Study and an Environmental Assessment. The Minister approved the concept plan on 21 December 2006.

43 A challenge to the Minister's approval of the concept plan succeeded at first instance before me: Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124. I concluded that the approval was invalid because the Minister had failed to have regard to the principles of ecologically sustainable development insofar as he did not consider whether the impacts of climate change would lead to an increased flood risk. The Minister's appeal to the Court of Appeal was successful: Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423. Aboriginal Place Declaration 44 On 16 February 2007, approximately 14 hectares of foreshore area at Sandon Point, located south east of the Project Site, along Bulli Harbour, was declared to be an Aboriginal Place under s 84 of the NPW Act (Aboriginal Place Declaration). 45 The Aboriginal Place Declaration provides significant statutory protection to the area covered by the declaration. The declaration was based on an independent and confidential assessment commissioned by the Department of Environment, Climate Change and Water (DECCW), which considered all available information from past archaeological reports and existing and new oral evidence from the Aboriginal community, including Alan Carriage and the applicant. Major Project Determination 46 Stockland as the sole proponent submitted its major project application for the Project Site on 30 July 2007. The application included proposed modifications of the concept plan.

47 In August 2009 the Director-General made a report to the Minister in accordance with s 75I of the EPA Act, which contained a recommendation that the Minister approve the carrying out of the project under s 75J (subject to appended conditions and commitments) and approve modifications of the concept plan. One of the appendices was a July 2007 assessment of Archaeological Potential of Dr Susan McIntyre-Tamwoy, archaeological consultant. She recommended archaeological testing of certain areas of the Project Site with evidence of surviving topsoil based on earlier testing by Network Geotechnics.

48 As stated at [2] above, on 29 November 2009 the Minister approved the major project application subject to conditions and Stockland's statement of commitments. The Minister also approved the modifications to the concept plan, in accordance with s 75W of the EPA Act. Modifications to the Major Project Determination 49 As discussed above at [4] and [8] - [15], on 15 March 2010 Stockland submitted to the Minister a request for modification of the following conditions of the Project approval (Modification 1 Request):

B50 - Conservation Agreement; B 51 - Archaeological Investigations; E30 - Impact of Below Ground (Sub-surface) Works - Non Aboriginal Objects; E31 - Impact of Below Ground (Sub-surface) Works - Aboriginal Objects; E32 - Final Excavation report(s) - Archaeological Works. 50 Stockland also submitted a request for modification of the Concept Plan by the deletion of the following statement of commitment (Modification 2 Request): "Stockland will undertake to enter into a Voluntary Conservation Agreement with DEC" 51 In accordance with cl 8G of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), both Modification Requests were made publicly available on the Department of Planning's website.

52 Subsequently, the Director-General prepared a report titled Residential Subdivision Sandon Point - Proposed by: Stockland Pty Ltd, Modification MP 07_0032 MOD 1, MP 06_0094 MOD 2, August 2010, (Director-General's Modification Report). The Director General's Modification Report was considered by the Minister's delegate when determining the Modification Requests. The Director-General's Modification Report recommended that both requests be approved, subject to conditions.

53 On 9 August 2010, the Minister's delegate approved, pursuant to s 75W of the EPA Act: (a) the modification of the Determination as requested under the Modification 1 Request, being MP 07_0032 MOD 1 ( Modification 1 Approval ); and (b) the modification of the concept plan, as requested under the Modification 2 Request, being MP 06_0094 MOD 2 ( Modification 2 Approval ). GROUND 1: FAILURE TO CONSIDER PROTECTION OF ABORIGINAL CULTURAL HERITAGE AS RECOMMENDED IN 3 REPORTS 54 The first ground of challenge to validity of the Modification Approvals is that the Minister failed to consider the protection of Aboriginal cultural heritage as recommended in three reports:

(a) a 2002 report by Professor Hiscock, archaeologist, prepared for the Sandon Point Aboriginal Tent Embassy and Alan Carriage. He estimated that more than 2.5 million artefacts existed in Old stages 2-6, considerably higher than in earlier archaeological reports by Navin Officer who, however, in a 2002 report in response stood by their earlier conclusions and criticised Professor Hiscock's report; (b) a 2003 report by Michael Therin, archaeologist, prepared for Wollongong City Council titled "Sandon Point Aboriginal Heritage Study"; (c) a 2006 report by Stuart Huys, archaeologist, prepared for the Department of Planning titled "Sandon Point Aboriginal Cultural Heritage Assessment". 55 The issues are whether those reports were mandatory considerations and, if so, whether their recommendations were considered. 56 In my opinion, as the respondents accept, (a) the public interest is a mandatory consideration under s 75W of the EPA Act: Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423; and (b) the public interest required in this case consideration of Aboriginal cultural heritage and protection of Aboriginal artefacts. The respondents submit that Aboriginal cultural heritage and protection of Aboriginal artefacts in fact were considered and that the public interest did not mandate consideration of matters at the level of particularity for which the applicant contends.

57 There is no express mandatory requirement that the Minister consider anything when deciding whether to approve a modification request under s 75W. This may be contrasted with the modification provision in the different regime under Part 4 of the Act which mandates that the consent authority take into consideration such of the matters referred to in s 79C(1) as are of relevance: s 96(3). It may also be contrasted with the express mandatory requirement that the Minister, when deciding whether to approve a Part 3A project, is to consider three matters including the s 75I Director-General's report on the project (and the advices, recommendations and the statement relating to compliance with the environmental assessment requirements (EARS) contained in that report): s 75J. 58 There are other differences between the express language of the Part 3A project approval regime and the express language of the Part 3A modification approval regime which are difficult to rationalise: (a) under the Part 3A project approval regime, the Director-General is obliged to prepare and notify the proponent of the EARS. If the Director-General considers that the proponent's environmental assessment does not adequately address the EARS, the Director-General "may" require the proponent to submit a revised environmental assessment; the Director-General's report to the Minister is to include "a statement relating to compliance with" the EARS; and the Minister must consider the report including that statement: ss 75F(2), 75H(2), 75I(g) 75J(2)(a). There is no express requirement that the proponent's environmental assessment must in fact comply with the EARS: the Director-General's statement is one "relating to compliance" with the EARS. Whether there is an implied requirement that the environmental assessment comply with the EARS is a question which does not arise in the present case;

(b) the question whether compliance with EARS is mandatory did not arise in Kennedy 1 either. There the relevant ground of challenge to validity of the Project Approval was not that it was mandatory to comply with EARS relating to consultation with relevant Aboriginal groups but, rather, that the Minister failed to consider that there had been no consultation with relevant Aboriginal groups as required by the EARS: Kennedy 1 at [53]. A reason why that ground failed was that the facts relating to that EARS requirement and the response thereto were fully disclosed to the Minister in the Director-General's report: Kennedy 1 at [70]; (c) in contrast to the express language of the Part 3A modification of project approval regime, the Director-General has a discretion ("may") but is not bound to notify the proponent of EARS and there is an express requirement that the proponent "must" comply with the EARS before the matter will be considered by the Minister: s 75W(3). Thus, in the modification context the proponent's compliance with EARS (if they are notified) is a jurisdictional fact (in the sense of the Director-General's or the Minister's satisfaction - rather than the Court's satisfaction - that the proponent has complied with the EARS). There is also no express requirement that the Director-General report to the Minister;

(d) it is difficult to understand why the express requirements of the two regimes should differ in these respects. It might be thought that there would be an identical express requirement under both regimes that the proponent must comply with the EARS before the matter will be considered by the Minister, that the Director-General must report to the Minister, and that the Minister must consider the report.

59 In the present case, the Director-General did not notify EARS to the proponent. The modification applications were made publicly available on the Department of Planning's website as required by s 75X(2)(f) of the EPA Act and cl 8G of the EPA Regulation. In addition, Wollongong City Council, relevant Aboriginal groups and the applicant were notified in writing and invited to make submissions. The agent who appeared for the applicant in these proceedings was also notified of the modification applications. Submissions were received from DECCW, the agency responsible for Aboriginal heritage, which supported the modifications; and from various Aboriginal bodies, the Environmental Defender's Office and others. The proponent responded to the issues raised in the submissions.

60 The Director-General's Modification Report of August 2010 was provided to the Minister's delegate who considered it: see [52] above. The report attached the submissions and the proponent's response; discussed the issues raised in the submissions and the Department of Planning's response; and set out each of the conditions proposed to be modified and the Department's comments thereon. The Department recommended that the modifications be approved subject to the modified conditions.

61 Aboriginal cultural heritage, including the possible existence of Aboriginal artefacts, was addressed in some detail in Section 6 of that report where the proposed modifications were considered. The report, among other things, referred to the Aboriginal Place Declaration (see [44] - [45] above); pointed out that the Project Site has been substantially modified and the likelihood of finding intact archaeological remains had been reduced; referred to Dr McIntyre-Tamwoy's 2007 assessment of Archaeological Potential prepared for the purposes of the Major Projects application (see [47] above) and noted that she recommended that sample test excavations be carried out within the areas identified in Figure 6 of her report, being areas which "contain some potential for Aboriginal archaeology".

62 As regards the proposed modification to delete Condition B50, which required a voluntary conservation agreement, the Director-General's Modification Report commented as follows: "A Voluntary Conservation Agreement (VCA) under the National Parks and Wildlife Act, 1974 is an agreement that is registered on title and identifies that part of the land to which the agreement relates. The intent of a VCA is to conserve, amongst other things, areas in which Aboriginal objects or places of special significance are situated.

The proponent argues that the condition should be deleted because it is not practical to attach a VCA to a 181 individual lot subdivision and that it is more practical to apply a VCA to land retained in single ownership. The proponent also states that an Aboriginal Place has been declared over the most significant part of the Sandon Point area along the foreshore to protect Aboriginal heritage. Had studies found Potential Archaeological Deposits (PADs) on the Project Approval site, the declaration would have been extended, but it does not.

The Department considers the modification is acceptable for the following reasons:

The Department is satisfied that a VCA is not necessary because an Aboriginal Place Declaration (APD) along the Sandon Point foreshore has been set aside to protect and conserve Aboriginal Heritage. Other conditions of approval satisfactorily protect Aboriginal heritage and address issues raised in submissions, such as conditions requiring sample test excavation, consultation with Aboriginal groups, collection and management of artefacts if found. DECCW, which would be party to any such agreement, supports deleting the requirement for a VCA. The area subject to the Project Approval has been substantially modified from its natural state as can be seen in the 1982 aerial photo ( Figure 3 ). Past land uses on the site include farming, extractive industry, brick manufacturing and associated heavy industrial uses, all of which have modified and disturbed the natural topsoil reducing the likelihood of finding intact archaeological remains. Previous studies have not identified any PADs on Project Application site."

63 As regards the proposed modification to Condition E31 (renumbered D20), the Director-General's Modification Report commented as follows: "The current condition requires works to cease should any Aboriginal cultural materials be found, and further work unable to resume at the location without the prior written consent of DECCW, the Illawarra LALC and Aboriginal Corporations. The proponent argues that the condition in effect stops works indefinitely if any relics are found and hands over control of timing for the redevelopment to third parties.

The modified condition seeks to remove the requirement for written consent from third parties to enable a more practical solution to be adopted to manage and protect Aboriginal heritage if relics are found.

Although the proposed condition (as modified) removes the requirement for approval to be granted from third parties, it is considered that the modified condition is satisfactory for the following reasons:

The modified condition still requires consultation with Aboriginal groups and direct Aboriginal community involvement by way of a walkover of the site giving local Aboriginal groups an opportunity to collect Aboriginal artefacts if discovered; and The modified condition also requires appropriate management and protection of Aboriginal archaeology if discovered and sign off from DECCW, the agency responsible for Aboriginal heritage, prior to work recommencing on a particular location.

It should also be noted that DECCW, the agency responsible for Aboriginal heritage, supports the modified condition. The condition as modified is therefore considered to be reasonable.

The proponent also requests the Department consider removing the requirement for sample test excavation on areas identified by Figure 6 of the Desktop Assessment of Archaeological Potential, prepared by Susan McIntyre-Tamwoy - April 2007 given no PADs have been found on site.

However the Department considers that sample test excavation should be carried out on the site within the areas identified (Figure 4), which contain some potential for Aboriginal archaeology, consistent with the recommendations in the McIntyre-Tamwoy report. DECCW have also indicated (verbally) that the requirement for sample test excavation be retained.

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…

62 An applicant who undertakes to establish that an administrative decision maker improperly exercised power should not be permitted under colour of doing so to enter upon an examination of the correctness of the decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or the regularity or irregularity of the manner in which the decision maker has proceeded. The correctness or incorrectness of the conclusion reached by the decision maker is entirely beside the question.

63 Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness. A wrong assessment of the consideration the decision maker takes into account is not a reviewable error of law." 68 Accordingly, I do not accept this ground of challenge.

GROUND 2: FAILURE TO CONSIDER ABORIGINAL ARTEFACTS 69 The next ground of challenge to the validity of the Modification Approvals is that the Minister failed to consider the fact that numerous artefacts from the Kuradji Toolmaking Site (ie Old Stages 2-6) had been dumped over the Project Site. 70 The allegation that there were numerous artefacts dumped over the development is based on the evidence of Mr Carriage that during a site inspection in 2002 he saw soil from Old Stages 2-6 dumped between Woodlands and Hewitts Creeks and that it contained numerous artefacts, the evidence of Mr Kennedy that he saw soil being dumped there on that occasion when Mr Carriage identified an artefact, and the 2002 report of Professor Hiscock estimating that there were over 2.5 million artefacts in Old Stages 2-6. That evidence of Mr Carriage and Mr Kennedy is flatly contradicted by Mr Hedge, formerly an officer of Stockland, who was present on that occasion and testified that it was only dumped on the "Stockpile Area" marked on the plan attached to the AIR development application, that he was not aware of any artefacts in that soil, and that the stockpiles slowly diminished in size over the next couple of years (when he left Stockland) due to rain and weather: see [34] - [35] above.

71 None of this evidence nor the Hiscock report was before the Minister when considering the Modification Requests. The applicant had the opportunity to put such matters before the Minister for the Minister's consideration before the Modification Approvals were granted, but did not do so.

72 As noted earlier, the issue of Aboriginal cultural heritage, including the potential existence of Aboriginal artefacts, was addressed in the Director-General's Modification Report which the Minister considered. Areas within the AIR site that had some potential to contain Aboriginal artefacts were identified in Figure 6 of Dr McIntyre-Tamwoy's 2007 Archaeological Assessment, including areas that possibly contained remnant topsoil from elsewhere. Conditions had been put in place permitting testing for artefacts on the Project Site and a walkover which permitted representatives of Aboriginal groups to identify artefacts anywhere on the Project Site. That is sufficient in my opinion to lead to rejection of this ground of challenge.

73 The Minister's obligation to consider the public interest in my view is not of such a level of particularity as required the Minister to somehow find out about and consider that Mr Carriage and Mr Kennedy recollected an occasion in 2002 when soil was being dispersed to the north of the "Stockpile Area" and Mr Carriage's recollection that it contained artefacts and to consider the Hiscock report supplied to others. Had there been such an obligation, it must have extended to also somehow ascertaining and considering the conflicting recollection of Mr Hedge and other competing material. 74 The alleged level of particularity involves a descent into the merits where the Court has no jurisdiction. It would require consideration of (a) the fact that site investigations and test excavations over various parts of the AIR site in August/September 2010 in consultation with representatives of Aboriginal groups has not led to recovery of any unambiguous Aboriginal artefacts; (b) contradiction of Mr Carriage's recollection by Mr Hedge; and (c) the fact that flaws were identified in the Hiscock Report, as discussed by Dr McIntyre-Tamwoy in her evidence in these proceedings and as pointed out in an October 2002 report of Navin Officer Heritage Consultants and by Jagot J in Roy Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456 at [35] and [55].

75 Accordingly, I do not accept this ground of challenge.

GROUND 3: FAILURE TO CONSIDER PRINCIPLES OF ECOLOGICALLY SUSTAINABLE DEVELOPMENT 76 The next ground of challenge to the validity of the Modification Approvals is that the Minister failed to have regard to two principles of ecologically sustainable development (ESD) in relation to Aboriginal cultural heritage and that these principles are mandatory relevant considerations in the consideration of a modification request under s 75W of the EPA Act.

77 The public interest is a mandatory consideration in relation to approval of a concept plan under s 75O of the EPA Act and in relation to development approval: Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [39], [62]. Although the public interest consideration operates at a very high level of generality, it requires consideration of relevant ESD principles at the development approval stage: at [41], [62]. And the time has come in my view (as foreshadowed in that case) when it requires consideration of those principles at the concept plan stage: at [56].

78 Similarly, in my opinion, the public interest is a mandatory consideration in relation to modification of a project approval under s 75W (as the respondents accept) and requires consideration of relevant ESD principles.

79 The applicant places particular emphasis on the failure to consider two ESD principles - the precautionary principle and the principle of inter-generational equity - insofar as they relate to the protection of Aboriginal cultural heritage. These principles are set out in s 6(2) of the Protection of the Environment Administration Act 1991: "(2) Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations…" 80 Given the broad definition of "environment' in s 4 of the EPA Act, Aboriginal artefacts and cultural heritage can be described as forming part of the environment.

81 Once again the respondents accept that the public interest is a mandatory consideration under s 75W of the EPA Act but submit, and I accept, that the Minister did sufficiently take Aboriginal cultural heritage into account in approving the modifications under s 75W.

82 When making the decision to approve the modifications, the Minister had before him the Director-General's Modifications Report which attached public submissions and the proponent's response to the submissions.

83 The report did not expressly refer to the principles of ecologically sustainable development. However, it did refer to the public interest and to the protection of Aboriginal heritage. The executive summary to the Report stated: "The subject conditions (as modified) will adequately protect Aboriginal and European heritage on the site." The body of the report contained a table summarising public submissions and the Department's response. One of the issues raised in the submissions was the "public interest". The Department's response was that: "The proposed modification does not undermine the public interest. The operation of the conditions (as modified) will satisfactorily protect Aboriginal heritage and address issues raised in submissions, such as requiring sample test excavation, consultation with Aboriginal groups, collection and management of artefacts if found. Furthermore an Aboriginal Place has been declared over the most significant part of the site, to protect Aboriginal heritage in the public and Aboriginal cultural heritage interests".

84 In addition, Aboriginal cultural heritage was addressed in Section 6 of the report where the proposed modifications were considered. For example, the report stated that: "an Aboriginal Place has been declared over the most significant part of the Sandon Point area along the foreshore to protect Aboriginal heritage. Had studies found Potential Archaeological Deposits (PADs) on the Project Approval site, the declaration would have been extended…"

85 The report also noted that: "the area subject to the Project Approval has been substantially modified from its natural state…reducing the likelihood of finding intact archaeological remains". In discussing the proposed modification to Condition E31, which governs the procedure to be followed if an Aboriginal artefact is found during excavations, the report stated that: "The modified condition still requires consultation with Aboriginal groups and direct aboriginal community involvement by way of a walkover of the site giving local aboriginal groups an opportunity to collect aboriginal artefacts if discovered; and The modified condition also requires appropriate management and protection of aboriginal archaeology if discovered and sign off from DECCW, the agency responsible for Aboriginal heritage, prior to work recommencing on a particular location." 86 The report concluded that: "The proposed modification does not change the original assessment as to the site's suitability for this development. The proposed modification seeks to amend conditions relating to Aboriginal and European heritage. The modified conditions will still protect and manage Aboriginal heritage if discovered on site. It is also important to note that DECCW (the agency responsible for Aboriginal heritage) support the proposed modifications to the conditions." 87 Given the numerous references in that report to Aboriginal cultural heritage, it is not possible to conclude that the Minister failed to take Aboriginal cultural heritage into account. The report did not expressly refer to the precautionary principle and the principle of inter-generational equity. However, consideration of the principles of ESD does not require "explicit formulation of issues in terms of the four principles and programs specified in s 6(2) of the Protection of the Environment Administration Act 1991": Minister for Planning v Walker at [59]. It is the substance of the principles of ESD that must be addressed.

88 The Director-General's Report appears to address the substance of the precautionary principle and the principle of inter-generational equity. For example, the report draws the Minister's attention to the fact that an Aboriginal Place has been declared over the most significant part of the Sandon Point area to protect Aboriginal heritage. The implication is that the Aboriginal Place is designed to protect Aboriginal heritage for both present and future generations.

89 Additionally, Condition D20 (replacing Condition E31), which provides for sample test excavations to be carried out, gives the Aboriginal community the opportunity to walk over the site to allow for collection of Aboriginal cultural materials and provides that any objects recovered are to be deposited with the Australian Museum or such other place as determined by DECCW. The adequacy of these conditions to protect Aboriginal cultural heritage is not something that can be dealt with by the Court. The conditions merely provide evidence that preserving Aboriginal heritage for future generations (by depositing it with the Australian Museum) was considered and that a precautionary approach was adopted in providing for sample test excavations and giving the Aboriginal community the opportunity to walk over the Project Site to collect Aboriginal artefacts. This is evidence that the substance of the precautionary principle and the principle of inter-generational equity was considered.

90 Accordingly, I do not accept this ground of challenge.

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.

GROUND 5: DENIAL OF PROCEDURAL FAIRNESS 95 The applicant submits that in the Kennedy 1 judgment the project approval was held to be valid due to the imposition of conditions B50, B51, E31 and E32. In these circumstances, the applicant claims he was denied procedural fairness by the Minister consenting to the modification of these conditions following the Kennedy 1 judgment.

96 The applicant further submits that the Minister had an obligation to fully disclose to the Court whether the Director-General had prepared a draft report recommending the approval of the modifications prior to the Kennedy 1 judgment on 26 July 2010.

97 The principles of procedural fairness were addressed by me in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [172] - [180]. The common law duty of procedural fairness was described in Kioa v West (1985) 159 CLR 550 at 584-585 by Mason J: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. … Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. … The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

98 The EPA Act does not manifest a clear intention that procedural fairness is not required in the determination of a modification request under s 75W. Thus I propose to proceed on the basis that it was required: Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 at [54]. The question is what is the content of the duty?

99 The content of the duty of procedural fairness depends on the particular statutory framework within which a decision-maker exercises power and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 at [26].

100 Section 75X(2)(f) of the EPA Act provides that modification requests are to be made publicly available. In this case, this was achieved by placing the modification requests on the Department of Planning's website in accordance with cl 8G of the EPA Regulation.

101 There is no express requirement in the EPA Act to invite public submissions in relation to a modification request under s 75W. Notwithstanding the absence of this requirement the Department notified Wollongong City Council, relevant Aboriginal groups and the applicant of the modification request and invited them to make submissions. A letter was sent to the applicant on 12 April 2010 in the following terms: " Concept Plan MP06_0094 MOD 2 and Project Application MP07_0032 MOD 1 - Residential Development, Sandon Point, Bulli

The Department of Planning has received an application to modify the above Concept Plan and Major Project Approval from Don Fox Planning Consultants (on behalf of Stockland Development Pty Ltd, the Proponent) under s 75W of the Act.

The application seeks to delete a Statement of Commitment relating to the proponent entering into a Voluntary Conservation Agreement with DEC and to modify conditions for the above Major Project approval relating to Aboriginal and European heritage.

Attached is a copy of a letter from the Proponent which describes the proposed Modifications in detail. This information can also be viewed online by going to the Department of Planning's Major Projects website ( http://majorprojects.planning.nsw.gov.au ).

You are invited to comment on the proposed Modifications within 14 days of the date of this letter…"

103 The first issue is whether the applicant should have been given a further opportunity to comment on the proposed modifications after the handing down of the Kennedy 1 judgment on 26 July 2010.

104 It should first be noted that the Kennedy 1 judgment did not hold that the Project Approval was valid due to the imposition of conditions B50, B51, E31 and E32, as submitted by the applicant. These conditions merely provided evidence that the Minister had taken certain matters into account: see Kennedy 1 judgment at [71].

105 It should also be noted that there was no change to the modification request after the Kennedy 1 judgment. The proposed modifications were the same as those advertised on the Department's website in April and notified to the applicant.

106 In SZBEL the Court noted at [32] (quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591): "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."

107 There is no question that the applicant was given an opportunity to be heard when he was invited to make submissions on the modification request. At this time he did not have the Director-General's Modification Report, recommending approval of the modifications, as the report was not finalised until August 2010. It was necessary, however, for the report to be written after submissions were received as the report summarised the issues raised in submissions and appended the submissions and proponent's response for review by the Minister. In any event, there is no requirement that such a report be made publicly available.

108 The only thing the statutory scheme required was that the modification requests be made publicly available, which was complied with. In addition, the applicant was personally notified and given the opportunity to write a submission. In the circumstances of the case, it is not possible to conclude that any more was required. It may be regrettable from the applicant's point of view that the modifications sought to remove conditions that could be regarded as important for preserving Aboriginal cultural heritage. However, as noted in SZBEL at [25], what is required by procedural fairness is a fair hearing, not a fair outcome. The applicant was given the opportunity to be heard. No more could be required.

109 I now turn to the applicant's other submission that the Minister had an obligation to fully disclose to the Court whether the Director-General had prepared a report recommending the proposed modifications prior to the Kennedy 1 judgment. I reject this submission for three reasons.

110 First, the requirement of procedural fairness could impose no obligation on the Minister in this case to disclose matters to the Court. The Court has no interest in the outcome of the modification request.

111 Secondly, the evidence does not establish that a draft of the Director-General's Report on the modification request recommending the approval of the modifications was prepared prior to the Kennedy 1 judgment.

112 Finally, even if a draft report containing that recommendation was prepared prior to the handing down of the Kennedy 1 judgment it could have had no bearing on the outcome of that case, which was concerned with the validity of the Project Approval, not with any proposed modifications.

113 For these reasons I reject the procedural fairness ground.

ORDERS 114 The applicant has been unsuccessful. Subject to hearing the parties, there is a case for not ordering costs against the unsuccessful applicant under the public interest litigation provisions in r 4.2 of the Land and Environment Court Rules 2007. I recently considered the relevant costs principles in Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [169] - [173].

115 The orders of the Court are as follows: 1. The proceedings are dismissed. 2. Costs are reserved. Any application for costs is to be made by letter to the Registrar within seven days accompanied by written submissions, otherwise there will be no order for costs. 3. The exhibits may be returned.

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.