Kennedy v Stockland Developments Pty Ltd

Part 3A of the EPAA Applies 8These are proceedings under Pt 3A of the EPAA. Although the entirety of that Part was repealed by the Environmental Planning and Assessment (Part 3A Repeal) Act 2011, effective from 1 October 2011, the provisions of the former Part continue to apply to these proceedings by virtue of cls 2 and 3 of Sch 6A to the EPAA.

Stockland Obtains Concept and Major Project Approval for a Residential Subdivision at Sandon Point 9The factual history to the present application is largely uncontroversial and derives primarily from bundles of documents tendered in Court by both parties and the affidavit of Mr Michael Braithwaite affirmed 7 February 2012. Mr Braithwaite is a development manager with Stockland whose responsibilities include development of the land owned by Stockland at Sandon Point. While Mr Braithwaite was cross-examined, the background set out below was not the subject of serious challenge. 10Stockland and ARV submitted a Concept Plan Application to the NSW Minister for Planning ("the Minister") on 19 June 2006. The Concept Plan was for a residential subdivision by Stockland and the development of a retirement village by ARV on land at Sandon Point. 11Sandon Point is a 53ha coastal plain located approximately 14km north of Wollongong. It is a culturally significant site for Aboriginal people and has been the subject of a number of challenges in this Court by the applicant and others over the past decade. 12Each of the developments was discrete, with Stockland's subdivision to be on land purchased by it from BHP in 1999, otherwise known as the Australian Industrial Refractories site ("the AIR land"), and ARV's retirement village to be constructed on Lots 1 and 2 of DP 224431, formally known as the Cookson Plibrico land ("the ARV land"). ARV has not been granted major project approval to construct the retirement village on its land. 13Stockland's residential subdivision is contiguous, and shares a common boundary, with the proposed development by ARV on its land to the south of the AIR land. The shared road was proposed to straddle the boundary between the two developments. 14Located within ARV property and to the south of the AIR land is the Turpentine Forest. The Forest is zoned E2 Environmental Conservation under the State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009 ("the Sandon Point SEPP"). 15In support of the Concept Plan Application, each of Stockland and ARV submitted separate Environmental Assessment Reports ("the 2006 EAR"). Stockland's EAR, dated June 2006 and prepared by Don Fox Planning Pty Ltd ("Don Fox"), comprised the subdivision and ancillary works to be carried out on both the AIR land and the ARV land. 16The Minister approved the Concept Plan (MP 06_0094) on 21 December 2006 pursuant to s 75O of the EPAA ("the Concept Approval"). 17In 2007 Stockland submitted to the Minister for approval a Preliminary Bulk Earthworks Plan Drawing No SK09 dated 19 July 2007, prepared by Forbes Rigby Pty Ltd ("Forbes Rigby") ("drawing SK09"). This drawing identified the location of the earthworks proposed to be undertaken to construct the shared road along the AIR and ARV land, including the placement of fill and batters on Lot 2 DP 224431 (the ARV land) and part of Lot 235 DP 1148602 (the AIR land). 18On 30 July 2007 Stockland submitted a Major Project Application, which included proposed modifications to the Concept Plan Approval, pursuant to ss 75E and 75W of the EPAA. Also submitted was an EAR, again prepared by Don Fox and dated September 2007 ("the 2007 EAR"). 19On 29 November 2009 the Minister modified the Concept Plan Approval under s 75W of the EPAA. 20On the same day the Minister approved the Major Project Application (MP 07_0032), subject to conditions, pursuant to s 75J of the EPPA ("the Project Approval"). 21The Project Approval was for a six stage 181 residential lot subdivision and various associated infrastructure works on a 23.35ha site at Sandon Point. The Approval provided for Stockland's construction of the shared road. 22In March 2010 Stockland made two requests to the Minister to modify the Project Approval (under s 75W of the EPAA) and the Minister approved both requests on 19 April and 9 August 2010 respectively. On 10 August 2010 the Minister also modified the Concept Plan Approval. 23On 8 September 2010 Stockland obtained a construction certificate from a private certifier certifying the carrying out of bulk earthworks for Stages 1-6 of the subdivision on the boundary between the ARV and AIR land and on the northern portion of the ARV land. The construction certificate was based on drawing SK09. 24Drawing SK09 was superseded by engineering design drawings prepared by Cardno Forbes Rigby ("Cardno") on 6 September 2011. In particular, drawing no 12003 Rev 2 depicted bulk earthworks, including the placement of fill and batter, on the AIR and ARV land and the proposed location of the temporary pathway ("drawing 12003 Rev 2"). 25Meanwhile, correspondence had been entered into between Stockland and Wollongong City Council ("the council") with respect to the proposed relocation of Wilkies Walk by way of the construction of a temporary pathway. Thus on 17 October 2011 Mr Andrew Heaven, the council's senior subdivision engineer, sent a letter to Stockland that said: In regard to the proposed cut and fill works in ARV land as approved by MP-2007/32, the relocation of the informal access track known as 'Wilkies Walk' as shown in 'Temporary Wilkies Walk Footpath Layout Plan' prepared by Cardno in Dwg No. 12003 Rev 2, is permitted. 26On 27 October 2011 Stockland obtained a construction certificate certifying the civil works for Stages 3-4 based on drawing 12003 Rev 2. 27On 28 October 2011, after the council had given permission for the establishment of a temporary pathway and associated tree removal following on from the council's acceptance of a pedestrian management plan submitted by Stockland, Stockland commenced carrying out earthworks on Wilkies Walk. 28Stockland is currently working on Stages 3 and 4 of the development, including the construction of the shared road (that is to say, along the boundary of the AIR and ARV lands, part of which is on the ARV land), and the construction of the temporary pedestrian pathway to provide access from the west to McCauleys beach to the east replacing Wilkies Walk. For construction and safety purposes, Stockland has temporarily closed Wilkies Walk until the road is constructed and Stages 3 and 4 have been completed. Mr Braithwaite anticipated that the earthworks would be completed my mid January 2012, that is to say, prior to the conclusion of the hearing.

The Concept and Project Approvals 29It is necessary to examine the Concept and Project Approvals in some detail in order to ascertain what development is permitted by Stockland. 30Clause A1 of Sch 1 of the Concept Approval describes the "Proponents" as both Stockland and ARV. The "land" comprises both the AIR and ARV lands. 31Clause A2 of Sch 1 of the Concept Approval sets out the scope of the developments. It states (emphasis added): A2Approval in details Subject to modifications in Schedule 2 which may reduce the yield of development, concept approval is only to the following development: (1)On Stockland lands, (a)Subdivision into a maximum of 180 detached dwelling lots; (b)Subdivision to create 1 super lot to accommodate up to 80 apartments; (c)Subdivision of 2 super lots for up to 25 town houses; (d)Potential for the development of up to a total of 285 dwellings on the proposed lots. (e)Building envelopes for the 3 super lots; (f)Preliminary road layout; and (g)Associated works will include: (i)recreation of riparian corridors over Hewitt's and Woodlands Creeks including the restoration and replanting of vegetation; (ii)the construction of water quality ponds and structures; (iii)asset protection zones; (iv)flood mitigation works (v)roads, bridges and the construction of utility services; (vi)landscaping; and (vii)an amendment to the Vegetation Management Plan for Tramway Creek to extend and rationalise its boundaries to suit the road locations, provide for asset protection zones, and to incorporate the amended location for the road bridge crossing; 32The term "Stockland lands" is not defined. 33Clause A1 of Sch 2 states (emphasis added): A1Development Footprint (1)The following development shall be restricted to the development footprint shaded grey on the map at (4) below: (a)a subdivision to create a combination of residential detached dwelling allotments and super lots for multi-unit housing, including roads; and (b)a retirement development including a Residential Aged Care Facility, independent living units, communal facilities and services to support the village, access, roads and car parking. (2)The following development may occur on land outside the development footprint shaded grey (including land hatched pink) on the map at (4): (a)On Stockland Lands, Associated works; (b)On ARV lands, (i)Landscaping including rehabilitation of riparian corridors and forest; and (ii)Stormwater management and utility services. 34Clause B1 of that Schedule is concerned with Aboriginal cultural heritage. It states (emphasis added): B1Aboriginal cultural heritage (1)The ARV Statement of Commitments concerning cultural heritage are to be modified to include measures outlined below. (2)The Proponent shall: (a)include an appropriately qualified and practising anthropologist as part of any investigations into the potential Aboriginal cultural heritage values of a "Women's Area", and (b)submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV lands. 35Part 1 of Sch A of the Project Approval describes the land comprising the Major Project Application in respect of which Project Approval has been granted as including not only the AIR land, but also "Lots 1 and 2 DP 224431 and land within the adjoining Railway Corridor", that is to say, the ARV land. 36This is consistent with cl A1 1) of Sch 2 of the Project Approval that provides as follows (emphasis added): A1Project Description Project approval is granted only to carrying out the project described in detail below: 1)The land to be developed includes Lot 2 DP 595478, Lot 235 DP 1048602, Lot 1 DP 1024490, Lot 1 DP 204631, Lot 22 DP 835200, Lot 101 DP 268549, Lots 1 and 2 DP 224431 and land within the adjoining Railway Corridor; 2)Subdivision of 181 allotments: 167 single dwelling lots (FSR 0.5:1) and; 14 townhouse/terrace style house lots (FSR 1:1); 3)Creation of one super lot for apartments with an FSR 1.35:1 up to a maximum of 1.8:1 for design excellence as per Concept Plan Approval (MP06_0094); 4)Boundary re-adjustment to correspond with road alignment; 5)Display Village - Land use approval for 3 dwellings and Construction approval for a temporary sales office and parking for 14 cards; 6)Earthworks over 2 stages unless the timing of the subdivision requires an alternative approach to the staging of earthworks; 7)Roads, bridges, footpaths, cycleways, acoustic wall, utility services and infrastructure as necessary to support the residential development; and 8)Landscaping, creek design and riparian corridor creation. 37Condition A2(3) of Sch 2 of the Project Approval describes "Stage 3" as comprising "(b) The construction of a road shared between Stockland's land and the Cookson Plibrico land - the western part of Wilkies Walk". Condition A2(4) describes "Stage 4" as "Creating the remainder of the lots up to the southern boundary with the Cookson Plibrico site and the construction of the remainder (eastern section) of Wilkies Walk". 38Condition A3 states that the "project, unless otherwise provided by the conditions of this approval, will be undertaken in accordance with the Environmental Assessment dated September 2007 prepared by Don Fox Planning Pty Ltd and all appendices except where varied by... the following drawings" supplied by Cardno. These drawing included drawing SK09. 39Condition A4 provides that Stockland, as the proponent, "shall comply with all relevant conditions of the approved 'Concept Plan'...including any approved modifications to the Concept Plan" (emphasis added). 40According to condition A6 1), Stockland must obtain construction certificates for each stage of the subdivision before any work can commence for that stage.

Mr Kennedy's Claim 41Mr Kennedy's claim, as pleaded and as articulated by his agent, Mr Al Oshlack, is based on the following three grounds: (a) first, that Stockland has breached condition A3 of the Project Approval by undertaking works not authorised by it for the purpose of "clearing, excavating for fill, constructing a 'shared' roadway and related infrastructure" ("the works") on Wilkies Walk and the ARV land; (b) second, that Stockland breached condition A4 of the of the Project Approval by carrying out the works on Wilkies Walk and the ARV land because it failed to comply with cl B1 of Sch 2 of the Concept Approval; and (c) third, that by reason of these breaches, Stockland, in carrying out the works, breached s 76A of the EPAA insofar as it has carried out development without consent. 42In short, Mr Kennedy asserts that to the extent that works were carried out on land not wholly owned by Stockland, namely, on the ARV land, to construct the shared road and the temporary pedestrian path, no development approval was obtained by Stockland and the conditions pleaded above in the Concept and Project Approvals have consequently been breached. 43During the hearing Mr Kennedy, through his agent, raised a number of factual and legal contentions that were not the subject of any pleading by him. Moreover, on the first day of the hearing, the Court rejected an application by Mr Kennedy to expand the ambit of his claims by way of amendment. The Court did so because of the prejudicial effect the proposed amendment would have had on Stockland (see Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21). An application by Mr Kennedy to reopen his case after the evidence of both parties had closed was also refused for a similar reason and because the evidence was not relevant to the pleaded issues in dispute (see Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34). Suffice it to say that the Court has, in determining these proceedings, confined itself to the case as pleaded by Mr Kennedy and has ignored those matters agitated by him that fall outside the ambit of the amended summons and points of claim. 44Mr Kennedy affirmed two affidavits in the proceedings on 27 October and 20 November 2011. In each he described the cultural significance of the land, including the area used for the construction of the shared road and temporary pathway, to the local Aboriginal traditional owners. 45Mr Marcel Van Wijk, who is self-described as a "Bush Regenerator", also affirmed an affidavit on 21 November 2011, in support of the application. Mr Van Wijk is familiar with the area the subject of these proceedings. In his affidavit he described the construction work observed by him during an inspection undertaken along Wilkies Walk. He took a number of photos of his observations of the clearing, excavation and earthworks carried out in and around Wilkies Walk. 46Mr Kennedy's agent, Mr Oshlack, also affirmed an affidavit on 16 November 2011, deposing to the clearing and earthworks in and around Wilkies Walk. 47An affidavit of Ms Barbara Nicholson, a Senior Elder of the Wadi Wadi People, affirmed on 21 November 2011, was rejected by the Court in its entirety because she was not available for cross-examination as notified and required by Stockland.

Stockland Has Not Breached Condition A3 of the Project Approval 48By condition A3 of the Project Approval, Stockland is required to carry out the development at Sandon Point in accordance with the 2007 EAR, its appendices and drawing SKO9. As it transpired, this is exactly what it did. 49The 2007 EAR states that Stockland is the "Applicant" for the purposes of the Major Project Application and that the Application principally relates to its land but that it also incorporates land owned by others, including "Cookson Plibrico for earthworks and the road along the common boundary between Stages 3 and 4 of Stockland's land and Lot 2, DP 224431", namely, or the ARV land. This was repeated later in section 2.2 dealing with "Land Ownership and Legal Description". 50The 2007 EAR noted, in section 3.1, that the proposed project comprised, as a key element, a boundary readjustment between the AIR land and the ARV land "to ensure that the roads forming part of the subdivision will be located wholly within Stockland's land holdings". Further detail on the boundary readjustment was provided for in section 3.5. 51One of the appendices to the 2007 EAR was a document entitled Construction and Traffic Management Plan, Sandon Point North Residential Subdivision, Sandon Point, prepared by Cardno in July 2007. In section 2.4 "Pedestrian Movements" the Plan stated that: A walking track known as Wilkies Walk runs along the southern boundary of stages 3 and 4. This track currently crosses private land... During the construction of stages 3 and 4 access along Wilkies Walk will be monitored for safe pedestrian passage... Alternative pedestrian routes around the development site, may be provided in the short term, should access be denied along the current route location. 52On 8 September 2010 the construction certificate for bulk earthworks was issued for Stages 1-6 as required by condition A6 of the Project Approval. The certificate was based on drawing SK09 and certified the earthworks on the boundary of the AIR and the ARV lands and on the northern part of the ARV land. So much so was expressly stated by the description of the property in the certificate. The certificate authorised the earthworks on the ARV land for the purpose of the construction of the road. Mr Kennedy's challenge to the validity of the construction certificate was dismissed by this Court in Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 (at [156]-[157]). 53Any uncertainty as to the scope of the certification provided by the construction certificate dated 8 September 2010 was rendered otiose when, on 27 October 2011, Stockland obtained a subsequent further construction certificate authorising the carrying out of civil works for Stages 3-4 of the development, including the construction of the shared road and the temporary pathway. 54It is clear, therefore, that Stockland has been granted the requisite statutory approvals for the construction of the road and the temporary pathway associated with Stages 3-4 of the approved development. 55The status, if any, of the 'permission' granted by the council on 17 October 2011 to relocate Wilkies Walk to the proposed temporary pathway is, therefore, irrelevant. 56According to Mr Braithwaite, the temporary pathway is located at its farthest point approximately 21.5m to the south of Wilkies Walk on ARV land. This is consistent with a survey conducted by Mr Craig Robson, a registered surveyor, of the temporary pathway and Wilkies Walk. Although Mr Braithwaite was cross-examined on these distances in an attempt to suggest that the pathway intruded into the ARV land to a far greater extent, I accept his evidence. 57Mr Braithwaite estimates that the temporary pathway is between 2.5-3m wide. It has been formed using gravel deposited in the area levelled by a small excavator. Wilkies Walk, according to Mr Robson's survey, is between 1.75-3.6m in width. Again I accept this evidence in the absence of anything to the contrary. 58Mr Kennedy submitted, and cross-examined Mr Braithwaite to this effect, that the earthworks and construction of the road were not in accordance with drawing SK09. This, according to Mr Kennedy, was evident from the fact that no survey had been undertaken prior to, or during, the earthworks necessary for the building of the road. 59But as a matter of law, no survey was required to be undertaken by Stockland under either the Concept Approval or Project Approval. Moreover, as a matter of fact, a survey was prepared by Mr Robson. 60There is, in addition, no cogent evidence demonstrating that the earthworks carried out by Stockland in constructing the road, including the building of the temporary path, travelled beyond 21.5m south of Wilkies Walk consistent with the survey. The claim by Mr Kennedy that the earthworks for the construction of the road were carried out 25m into the ARV land is not only unsustainable on the evidence, it is, moreover, of no relevance given that the Project Approval does not stipulate the extent to which Stockland may carry out works on the ARV Land provided, of course, the works are for the purpose of constructing the road. 61I also reject the argument that the Project Approval only approved "minor road works" which could not comprise the shared road. There is no basis either as a matter of express construction, or by implication, that condition A3 (or indeed any of the impugned conditions of the Concept or Project Approval) ought to be read down in the manner contended for by Mr Kennedy. The Project Approval provides consent for the construction of the road in accordance with drawing SK09. The evidence does not demonstrate that the building works went beyond these parameters or those contained in the 2007 EAR. 62For similar reasons I do not accept the submission that the boundary readjustment required by condition A1 4) only permitted "minor" boundary adjustments and not those necessary to ensure that the shared road would ultimately be located wholly on Stockland land. 63In his affidavit Mr Braithwaite also deposed to the fact that Stockland was not carrying out any development in the Turpentine Forest or engaging in building works "which have any effect on the Forest". To ensure this, Stockland demarcated the edge of the Forest with brightly coloured temporary fencing that has been positioned "clear of the Turpentine Forest area". In particular, the temporary pathway does not, according to Mr Braithwaite's evidence, intrude into the Turpentine Forest. 64Mr Braithwaite's evidence was challenged in an attempt to demonstrate that he was incorrect and that there had been an incursion into the Forest by the works. In the absence of any reliable evidence to the contrary, I accept that the works the subject of these proceedings have not intruded into or impacted upon the Turpentine Forest. In this regard I found Mr Van Wijk's evidence to be equivocal especially in the absence of anyone having observed Stockland trespassing into the Turpentine Forest in carrying out the works. The aerial photographs dated 14 September and 27 November 2011 did not, in my view, assist Mr Kennedy in proving this contention. 65I further note that according to Mr Braithwaite, once Stages 3 and 4 have been completed, Stockland will revegetate the area along the shared road and what was previously Wilkies Walk. 66Finally, and as noted above, as required by condition A1 4) of the Project Approval, once the new road is constructed, Stockland will lodge an application for a boundary readjustment of the AIR site southwards into the ARV land to ensure that the road will be located entirely on Stockland land. No timeframe is stipulated for this boundary readjustment to occur, but, as Mr Braithwaite anticipates, it is envisaged that the boundary adjustment plan will have been lodged for registration in or about March of this year. 67For these reasons, Mr Kennedy's claim that condition A3 of the Project Approval has been breached must be rejected. On the contrary, the impugned works have been carried out in conformity with that condition.

Stockland has Not Breached Condition A4 of the Project Approval 68Under this ground Mr Kennedy submits that Stockland has breached condition A4 of the Project Approval by reason of its failure to comply with cl B1 of Sch 2 of the Concept Approval because it did not include an appropriately qualified and practising anthropologist as part of any investigations into the potential Aboriginal cultural heritage values of a "Women's Area" in respect of the construction of the shared road on the ARV land and Wilkies Walk. 69Although there was anthropological material before the Minister in granting the Project Approval concerning the potential cultural significance of a "Women's Area" in the vicinity of the proposed works for the construction of the shared road and the relocation of Wilkies Walk, there was no report submitted by Stockland that would otherwise fulfil the description contained in cl B1 of Sch 2 of the Concept Approval. 70However, as a matter of construction I do not accept that Stockland was obliged to satisfy cl B1 of the Concept Approval insofar as I do not accept that it was a "relevant condition" pursuant to condition A4 of the Project Approval with which Stockland was bound to comply. 71The Concept Approval did not grant consent to Stockland to carry out Stages 1-6 of the proposed subdivision (see s 75D(1) and the definition of "approved project" in the EPAA). Further approval was required from the Minister to enable Stockland to carry out the subdivision (s 75J). Similarly, ARV was separately required to obtain approval pursuant to s 75J of the EPAA to carry out its proposed retirement village development. This was because the Concept Approval was for two discrete developments (each of which was the subject of a separate EAR). The Concept Approval therefore contained provisions relevant to either Stockland's proposed subdivision or ARV's retirement village proposal, or, in some instances, both. 72Bearing in mind that conditions attached to the Project Approval are to be construed having regard to the desirable inherent flexibility that the statutory scheme in Pt 3A of the EPAA promotes (Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [23] per Jagot J, Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [80] per Preston J and Pittwater Council v Minister for Planning [2011] NSWLEC 162; (2011) 184 LGERA 419 at [48] per Pain J), there are, in my opinion, both contextual and textual reasons why the "relevant conditions" picked up by condition A4 of the Project Approval do not include cl B1 of Sch 2 of the Concept Approval. 73First, as a matter of context, on any commonsense reading of cl B1, it is plain that it is specific to the proposed development by ARV of the retirement village. It operates upon, and purports to modify, the "ARV Statement of Commitments" (cl B1(1)) in the manner directed by cl B1(2). Clause B1(2) has no existence independent of cl B1(1). Thus "The Proponent" in cl B1(2) can only be a reference to ARV, and not to Stockland. 74Second, such a construction is textually consistent with the language of cl B3. Similar to cl B1(2), cl B3(2) refers generically to "The Proponent" and cl B3(1) refers expressly to "The Stockland Statement of Commitments". But the Design Guidelines referred to therein are plainly directed to the Stockland subdivision and not the ARV retirement village. It would be nonsensical to suggest that ARV would be required to comply with the obligations imposed in cl B3 as part of any subsequent major project approval granted to it. 75Third, this construction is also consistent with subsequent clauses that make it plain that obligations are to apply to both proponents only where reference is made either to "The Statements of Commitments" (cls B4 and B5) or "The Proponents" (for example, cl B5). Clause B1 is not such a clause. 76Mr Kennedy sought to rely on the Director-General's Requirements ("DGRs") for the proposed ARV development issued initially on 17 November 2007, and extended for an additional two years on 17 November 2009, to argue against the above construction of condition A4 and cl B1. It was Mr Kennedy's contention that the DGRs manifested an intention by the Minister that the terms of cl B1 must be literally and strictly adhered to and that an anthropological investigation into the potential Aboriginal cultural heritage values of the site was to be undertaken and a report prepared in accordance with the Concept Approval. Reliance was likewise placed on similar statements in ARV's Preliminary Environmental Assessment Report dated September 2007 ("the Preliminary EAR"). 77I accept the submission of Stockland that these documents are, for the reasons given above concerning the proper construction of condition A4 and cl B1, largely irrelevant, and that any reliance placed on them by Mr Kennedy is misconceived. 78The Concept Approval did not, as discussed above, provide approval to carry out any of the works necessary to construct the shared road on the temporary pathway. Approval to do this work derived exclusively from the Project Approval. The Preliminary EAR was prepared in conjunction with the Concept Plan Application and not the Major Project Application, in relation to the latter of which, ARV was not a proponent. 79The DGRs were issued pursuant to s 75F in respect of ARV's proposed development. They are not relevant to Stockland's Major Project Application or Approval. Separate DGRs were issued for Stockland's subdivision, and in the Director-General's Environmental Assessment Report dated August 2009 prepared for the Minister, the Director-General certified that Stockland had adequately addressed them. 80It therefore follows from the discussion above that there has, in my opinion, been no breach by Stockland of condition A4 of the Project Approval. 81However, if I am incorrect I would nevertheless, in the exercise of the Court's discretion, refuse to grant the relief sought by Mr Kennedy on the basis that: (a)Dr Susan McIntyre-Tamwoy's evidence (an archaeologist who was relied upon by Stockland) demonstrated that extensive ethnographical studies had been conducted into the existence of a "Women's Area" at Sandon Point and the land where the shared road and temporary path were to be built, squarely addressing the matter raised by cl B1. It may be inferred from her oral evidence that these studies would be sufficient insofar as the anthropological report stipulated in cl B1 was, according to Dr McIntyre-Tamwoy, essentially an ethnographic study, and the ethnographical studies of this area had employed techniques and methodologies that would otherwise be employed by an anthropologist. These ethnographical studies found that there was insufficient evidence to verify the existence and location of a "Women's Area" at Sandon Point; (b)Dr McIntyre-Tamwoy's Aboriginal cultural heritage assessment prepared in July 2007 for the Major Project Application (entitled Land Proposed for Residential Development at Sandon Point North Assessment of Archaeological Potential) was before the Minister in determining to grant Project Approval. This Assessment covered not only the AIR land the subject of the Concept Approval, it also extended to "small areas of land which were not included in the Concept Plan application" including "Lot 1 and Lot 2 DP 224431 Cookson Plibrico To construct the shared road between the two land owners". In other words, the relevant ARV land; and (c)following on from an early archaeological assessment in 2007, in 2010 Dr McIntyre-Tamwoy, in accordance with condition D20 of the Project Approval (as modified), undertook test excavations along sections of the the boundary of the AIR land and the ARV land, including parts of Wilkies Walk, with assistance from members of the local Aboriginal community. These tests revealed the presence of no Aboriginal artefacts or sites.

Parts 4 and 5 of the EPAA Do Not Apply 82Mr Kennedy submits that Stockland has breached s 76A of the EPAA insofar as it has undertaken the construction of the shared road and the temporary pathway on ARV land absent having obtained development consent from the council. 83A complete answer to this claim is that s 76A, contained in Pt 4 of the EPAA, does not apply to development the subject of major project approval pursuant to s 75R of the EPAA. That provision relevantly states: 75R Application of other provisions of Act (1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project). (2) Part 3 and State environmental planning policies apply to: (a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and (b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project. (3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project. (3A) The Minister may, by order published on the NSW legislation website, amend an environmental planning instrument to authorise the carrying out of any of the following development (or to remove or modify any provisions of the instrument that purport to prohibit or restrict the carrying out of any of the following development): (a) development that is an approved project, (b) development that is a project for which a concept plan has been approved (whether or not approval for carrying out the project or any part of the project is subject to this Part). 84As noted above, the Project Approval permitted the works necessary for the construction of the shared road, including the bulk earthworks, and the temporary pathway (see conditions A3 and A6 of Sch 2, including the construction certificates, the 2007 EAR and the Construction and Traffic Management Plan appended to the 2007 EAR) and any application of s 76A of the EPAA was thereby precluded by the operation of s 75R. 85Mr Kennedy's alternative claim was that the temporary pathway and shared road were either prohibited by, or required development consent pursuant to, the zoning restrictions set out in the Sandon Point SEPP, in particular, the R2 Low Density Residential Zone (cl 9) and the E2 Environmental Conservation Zone (cl 11). 86But such reliance is misplaced because the application of these zones is, again, specifically excluded to any development to which Pt 3A applies (see cl 6(2) of the Sandon Point SEPP). 87Equally, Mr Kennedy's alternative claim that Pt 5 of the EPAA applies thereby requiring Stockland to undertake an environmental impact assessment in respect of the construction of the road must also fail to the extent that, first, the clauses of the SEPP relied upon by Mr Kennedy in support of this argument are excluded by reason of cl 6(2) of the Project Approval. And second, and in any event, as discussed above in respect of Pt 4, Pt 5 of the EPAA does not apply to the Project Approval (see s 75R(1) of the EPAA and Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [99]-[108] per Preston J). 88I therefore reject this final ground of challenge. 89It follows that Mr Kennedy's amended summons must be dismissed.

Costs 90Usually costs follow the event in Class 4 proceedings, and therefore, Mr Kennedy must pay Stockland's costs of the proceedings. If, however, either party seeks to agitate some alternative form of costs order, they will be given the opportunity of doing so.

Orders 91The orders of the Court are therefore: 1.the amended summons is dismissed; 2.the applicant is to pay the respondent's costs of the proceedings, unless within fourteen days either party files with the Court a notice of motion with an appropriate supporting affidavit seeking some alternative costs order; and 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. Decision last updated: 21 November 2012