Kirkness v Gosford City Council

Issues 10The central issue in the proceedings relates to the impact of the proposal on Whale Rock and on the Aboriginal cultural heritage significance of Whale Rock in the locality, which includes other sites of Aboriginal cultural heritage significance. The Council contends that the proposed development is located too close to and within the buffer area required to protect Whale Rock, and that it reduces or eliminates the line of sight required from Whale Rock to other Aboriginal heritage sites on other land in the locality.

Planning controls 11The site is zoned 4(a1) General Industrial under the Gosford Local Environmental Plan No 22 (the LEP) and the proposed development is permissible with consent. 12Clause 14 of the LEP provides for setbacks from boundaries. The proposed development does not comply with cl 14(c), and the applicant provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). 13Clause 16A provides for heritage conservation. The objectives of cl 16A include "to conserve places of Aboriginal heritage significance" (cl 16A(1)(d)), and cl 16A(7) applies to consideration of applications for consent to the carrying out of development "in a place of Aboriginal heritage significance". That term is defined in cl 5 by reference to "the Heritage Map". It was common ground that there is no Heritage Map. Accordingly, cl 16A does not apply. 14Part 3 Div 4 was inserted in the LEP on 29 February 2008 by Gosford Local Environmental Plan No 457 (LEP 457). Part 3 Div 4 of the LEP applies to development of land at Somersby Industrial Park, and provides: Division 4 Development of land at Somersby Industrial Park 23 General (1) This Division applies to certain land at Somersby, known as the Somersby Industrial Park (the Industrial Park), as shown edged heavy black (but excluding land shown edged heavy black and cross-hatched) on the map marked "Gosford Local Environmental Plan No 457" deposited in the office of the Council. (2) To the extent of any inconsistency between the provisions of this Division and the other provisions of this plan, the provisions of this Division prevail. 24 Aims of Division This Division aims: (a) to maximise the opportunity for industrial development in the Industrial Park so as to provide employment opportunities in the Gosford local government area, and (b) to protect ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park (as identified as Management Zones 1 and 2 in Plan of Management Somersby Industrial Park (2005), as prepared for the Council), and (c) to ensure that the function and appearance of future subdivision or other development of the Industrial Park: (i) is of a high standard (in terms of both the built form and landscaping), and (ii) protects ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park, and (d) to provide that subdivision of land occurs in a flexible manner to take account of ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park, and (e) to ensure that development on land within Zone No 3 (a2) (Business) is of comparable bulk and scale to industrial development within the Industrial Park, and (f) to facilitate the provision of retail or commercial services to support the workforce of the Industrial Park in a single, central location so as to enable the full range of the workforce's needs to be met efficiently. 25 Development applications In determining a development application relating to land to which this Division applies, the consent authority must have regard to: (a) Plan of Management Somersby Industrial Park (2005), as prepared for the Council, and (b) the aims of this Division (as referred to in clause 24). 26 Ecologically significant and Aboriginal heritage lands (1) In determining a development application involving subdivision of the land to which this Division applies, the consent authority: (a) may take into account whether any part of the proposed subdivision contains land within a hatched area, and (b) is to consider the ability of the proposed lots to accommodate development (in terms of their size, configuration and topography) that will be consistent with the protection of the ecological and Aboriginal heritage characteristics of the Industrial Park. (2) In this clause, hatched area means any area shown hatched on the map marked "Gosford Local Environmental Plan No 457" deposited in the office of the Council, being an area identified on that map as being ecologically significant and Aboriginal heritage lands. 15The term "Aboriginal object" is defined in cl 5 of the LEP: Aboriginal object means any deposit, object or other material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of an area of New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains. 16That definition is similar to that appearing in s5 of the National Parks and Wildlife Act 1974 (the NPW Act). It was common ground that the Whale Rock is not an "Aboriginal object" as defined in the LEP or the NPW Act. 17The site is in the IN General Industrial zone under the draft Gosford Local Environmental Plan 2009. That draft has been exhibited, and it includes the standard savings and transitional provision.

Somersby Industrial Park Plan of Management 18The reference in cl 24(b) and cl 25(a) of the LEP to the "Plan of Management Somersby Industrial Park (2005)" is to a document prepared on behalf of the Council and the NSW Premier's Department for the Somersby Industrial Park. It was common ground that the document headed "Draft Plan of Management Somersby Industrial Park" dated June 2005 (the SIPPOM) is the final version of the plan of management. The SIPPOM was formally adopted by Council on 12 July 2005 (exhibit 6). 19The background to the development of the SIPPOM is provided in the Statement of Evidence provided by Mr Gary Chestnut, Manager Development of the Council. The applicant objected to certain paragraphs in Mr Chestnut's Statement of Evidence. As discussed below, Mr Chestnut's Statement of Evidence was admitted with some deletions. The following summary of the background to the SIPPOM and the now applicable planning controls is based on that Statement of Evidence, and the documents referred to in it, and otherwise in evidence. 20The Somersby Industrial Estate comprises approximately 300ha of land located on the western side of the Gosford interchange on the F3 freeway. It was set aside for industrial development, and formally opened in 1980; the industrial zoning of the land was formalised by the making of the LEP in July 1981. There are a number of threatened species and habitats present in the Somersby Industrial Park, which required consideration of impact on threatened species, and a number of significant Aboriginal sites, which required preparation of an Aboriginal Cultural Heritage Assessment, for each development application. 21In 1999 the Somersby Industrial Park Taskforce (the Taskforce) was established to oversee the preparation of a Plan of Management for the Somersby Industrial Park. The Taskforce had representatives from the Council, the NSW Premier's Department, the Department of Environment and Conservation (formerly National Parks and Wildlife Service), Department of Infrastructure, Planning and Natural Resources, landowner representatives, the Darkinjung Local Aboriginal Land Council, NSW Rural Fire Service and NSW Department of Primary Industry. 22The Taskforce commissioned a consultant to undertake the Plan of Management, addressing issues relating to threatened species and habitats, and Aboriginal cultural heritage. The process of development of the SIPPOM included workshops for environment groups, Gosford Councillors, and landholders (exhibit 1, pp57-58). 23One of the reports considered by the Taskforce was the Australian Museum Business Services 2002 report "Somersby Industrial Park - Aboriginal Heritage Study for Plan of Management" in three volumes (the AMBS Study). The AMBS Study (with the exception of pages 52-57 of Volume 2 being the site description for SIE 18 which contains information dangerous to women) was in evidence (exhibit 5). Volume 1 provides some of the historical background, including reference to an archaeological survey of the area carried out by Lough on commission from the Department of Urban Affairs and Planning in 1981. Volume 2 contains detailed site descriptions, maps and photographs for each of the Aboriginal sites and two historic features recorded within the Industrial Park. Volume 3 contains management objectives and policies. 24The AMBS Study refers to those sites of Aboriginal archaeological significance recorded by Lough using his numbering sequence prefaced by "S.I.E". Other sites and objects referred to in the AMBS Study use the National Parks and Wildlife Service site numbers under the Aboriginal Heritage Information Management System (AHIMS). Specific lots are identified in the AMBS Study by Owner Reference Number (ORN). 25Whale Rock is identified in volume 2 of the AMBS Study as site 45-3-2339. The description of site 45-3-2339 in volume 2 (p 124) is as follows: 45-3-2339 Site Type: Mythological site Site Feature: Natural boulder This site was first recorded by David Pross (DLALC) and Garry Dunnett from the NPWS in 1996. The site is a medium-sized sandstone boulder (3.4m x 2m x 2m) that has a lenticular form, suggestive of the shape of a whale's head. David Pross describes this site as important to the DLALC. The interpretation provided for the site relates to it being the 'keeper' or 'guardian' of the nearby engraving sites of SIE 15, 17, 18 & 19. 26The SIPPOM states Objectives, providing the overall framework for the future management of the Somersby Industrial Park (SIP); Statements of Significance for Environmental, Aboriginal Heritage, and Economic Values; and Performance Management Objectives and Management Actions. 27Part 2 Identification of SIP Values provides the background to the development of the SIPPOM and summarises the investigations carried out as part of its preparation. At 2.7 Aboriginal Heritage it refers to the AMBS Study, noting: The Australian Museum Business Services Aboriginal Cultural Heritage Study of the SIP (AMBS 2002) built upon previous work in the SIP and identified a range of key threats to the values of these sites. The study also outlined a series of management recommendations to preserve and enhance these values. These investigations and management recommendations have been carried out in close consultation with the Darkinjung Local Aboriginal Land Council. 28The Objectives of the SIPPOM are: The objectives of the POM as stated in the study brief are to 1 Identify areas where development can proceed (subject to development assessment and approval processes) 2 Identify areas of biodiversity value that should be protected 3 Identify sites of Aboriginal heritage significance as well as areas of significance to the Darkinjung people 4 Identify management strategies for the future protection and conservation of the SIP, including mitigation and monitoring works required. 29The SIPPOM creates management zones and sub zones based on constraints identified within the SIP. The site is in Zone No. 1(a): "All Aboriginal heritage sites identified by AMBS including management zones"; and Zone No. 3: "Areas with physical constraints to development such as slope, flooding, servicing. Also includes lines of sight between certain Aboriginal heritage sites". 30Table 3.1 provides the Key Development Constraints. The relevant parts of Table 3.1 are: Constraint Type of Constraint Areas Applied Aboriginal heritage sites Level 1 Constraint (a) All sites identified by AMBS (2002) including management zones

Physical Constraints to Development or other limitations Level 3 Constraint (c) Physical limitations to development such as slope or flooding. There are also "sight lines" between Aboriginal heritage sites that impose limits on development, Whilst development could be carried out on this land, limitations on the height of development will need consideration to allow the continuance of lines of sight. These will be defined in future planning controls.

Notes: (a) Level 1 Constraint means that this area cannot be developed for industrial use or adversely impacted by adjacent development. Works such as bushfire management, essential emergency works and the maintenance of already approved works would be permitted. ... (c) Level 3 Constraint means that appropriate control on development is required to minimise potential impacts resulting from future development. In some cases this may mean that some areas may not be able to be developed. 31The SIP Management Objectives are: 4.3 SIP Management Objectives The management of the SIP will be based on the following objectives which reflect the values of the area:

• To accommodate industrial and related development that provides employment opportunities in the Gosford LGA whilst recognising environmental and Aboriginal heritage values
• To ensure that development of the Somersby Industrial Park is sensitive to the environmental conditions of the locality, threatened fauna species and adjacent areas of environmental value
• To protect and conserve area of core habitat for Prostanthera junonis , Hibbertia procumbens and Darwinia glaucophylla
• To ensure that development of the Somersby Industrial Park is undertaken in a manner that conserves and enhances Aboriginal cultural heritage values, specifically Aboriginal objects
• To ensure that the function and appearance of future business subdivision/development is of a high standard in terms of both the built form and landscaping as well as being complementary to the environmental and Aboriginal heritage landscape setting
• To provide certain development controls and restrictions to achieve other objectives of this Plan. This provides a "Whole of SIP" approach that can be augmented by specific controls over areas of key value/significance (see below). It is envisaged that the above objectives would form the core of the LEP/DCP. 32The Statements of Significance for Economic Development, and for Aboriginal Heritage Sites, are: Statement of Significance - Economic Development The Somersby industrial Park represents a significant economic asset and employment area for the Central Coast. It provides opportunities for sustainable employment development that will benefit the Gosford LGA and the Central Coast area. Ensuring the development of the SIP is achieved whilst conserving the natural and Aboriginal heritage will be key for the present generation to pass on to future generations an environment and Aboriginal heritage landscape that is sustainable. ... Statement of Significance - Aboriginal Heritage Sites The natural heritage of the Somersby Industrial Park is also layered with human associations, stories, myths, personal histories and emotions. Aboriginal people have left tangible evidence in the form of Aboriginal objects. Conserving the Aboriginal heritage is fundamental to the identity of present and future generations. 33The Performance Objectives and Management Actions for Aboriginal Heritage Significance are: 4.5.3 Aboriginal Heritage Significance Performance Objectives

1. Retain and conserve all sites and places of Aboriginal heritage significance including Aboriginal objects in accordance with the recommendations of the AMBS Study.
2. Reduce potential impacts on such sites to ensure their long term survival.
3. Be compatible with and, where appropriate, respect the setting of sites and places of Aboriginal heritage significance.
4. Permit access to sites of Aboriginal heritage significance by the Aboriginal community wherever possible.
5. Ensure that the cultural values identified by the Aboriginal community are appropriately incorporated into management zones. Management Actions The management actions for Aboriginal heritage sites are as follows: Retention and Conservation

• Define and establish management zones for Aboriginal heritage sites that allow for long term protection and conservation.
• Encourage landholders to enter into Voluntary Conservation Agreements for Aboriginal management zones.
• Ensure management plans are prepared and implemented for sites that are to be developed which contain Aboriginal heritage sites to include consultations with representatives from the Aboriginal community and DEC (NPWS). Impact Reduction
• An erosion and sediment control plan should be submitted by land owners on any allotments containing Aboriginal heritage sites to prevent soil and water run-off from entering the buffer zone and from accumulating on the surface of rock platforms containing rock art.
• Increase the effectiveness of existing sediment traps where these are not regularly maintained.
• Prior to development, the 'site buffer zone' should be fenced.
• Where vegetation removal is required to protect Aboriginal heritage sites, ensure that DEC (NPWS) has been consulted concerning identification of protected vegetation, and appropriate permits under the National Parks and Wildlife Act have been obtained. Access
• Pursue a process of negotiation with the landholders with Aboriginal sites and the Aboriginal community for permanent access to protected Aboriginal heritage sites.
• Where practicable, use property set-backs or rights of way as the major access corridor to Aboriginal heritage sites within the Park.
• Where access to Aboriginal sites is proposed, rights of way are to be established prior to development proceeding.
• Where lines of site between Aboriginal heritage sites are required, impose limitations on the height of development to continue visibility between sites. Artefact Scatters
• Maintain a 15 metre easement from the banks of Piles Creek to protect potential artefact scatters. *Where development is planned to encroach in areas of artefact scatter potential, on this area a full archaeological assessment must be undertaken to guide planning. Previously Recorded Sites
• Retain a buffer zone of 15 metres radius around any location where it is believed that an Aboriginal heritage site may exist until such time that the existence of the site is confirmed or otherwise.
• Where site existence is confirmed through subsequent research, the buffer zone is to be reduced to 10 metres
• Where the precise location of an Aboriginal heritage site becomes a necessity, a permit for Preliminary Research Permit under the National Parks and Wildlife Act is to be obtained from the NSW DEC (NPWS) to physically remove soil in areas where it is believed that Aboriginal heritage sites are located If sites are rediscovered the relevant general management options regarding that site type, as outlined in this Plan of Management, will apply. Rubbish Dumping
• Monitor Aboriginal heritage sites near road edges and other easements for the presence of dumped rubbish

Evidence 37The matter was the subject of a conciliation conference conducted by Pearson C under s34 of the Land and Environment Court Act 1979 (the Court Act), which included a view. The parties were unable to reach agreement and the conciliation was terminated. The parties consented to Pearson C hearing the matter, and the Chief Judge directed that the matter be heard and disposed of by Pearson C and Sullivan AC: s39(1) of the Court Act. Directions were made in consultation with the parties for the filing of expert evidence on Aboriginal cultural heritage; a statement of evidence detailing the chronology of relevant reports, studies and other matters of historical relevance leading to the adoption of the applicable controls; and a statement by a representative of the Darkinjung Local Aboriginal Land Council. 38The hearing of the matter commenced on site with a view. 39The Council relied on evidence from Mr Gary Chestnut. Mr Chestnut provided a Statement of Evidence dated 30 December 2011 and gave oral evidence. Mr Chestnut has qualifications in natural resource management and law, and is employed by the Council as Manager Development. His previous employment with the Council includes employment as a town planner, environmental officer, environmentalist, and Director Environment and Planning; and his prior employment includes employment with the NSW National Parks and Wildlife Service and in private practice as a natural resource manager. The applicant objected to the admission of certain parts of the Statement of Evidence, on the basis that parts went beyond the directions made, relevance, and expression of opinion. Mr Chestnut's statement of evidence was admitted for the reasons given during the hearing subject to the deletion of certain parts not pressed by the Council. Mr Chestnut's statement of evidence outlines the background to the making of LEP 22, the development of the SIPPOM, and LEP 457. The statement of evidence annexes minutes of various meetings and correspondence. 40Mr Chestnut gave oral evidence relating to the development consent for 2-8 Vere Place, which is the site on which SIE 17 is located; works constructed on that site; and Council's compliance action relating to that site. On the second day of the hearing Mr Chestnut was recalled to give additional evidence concerning the development consents for the sites on which SIE 15 (ORN 127) and SIE 19 (ORN 123) are located. 41Ms Suzanne Naden, Operations Manager at Darkinjung Local Aboriginal Land Council, provided a Statement of Evidence in which she stated: Sites ... Whale Rock is located on 7 Ainsley Close, Somersby is considered by the Darkinjung LALC to be significant. Whale Rock is connected by sight lines to Aboriginal sacred places know as the female area and the male area. These sacred places are on land adjoining the appeal site. Whale Rock, the men's area, the female area and the sight lines connecting these areas with Whale Rock should be maintained for the purpose of maintaining the spiritual, social and cultural ties and beliefs of the Aboriginal people. The Aboriginal sacred places and their related sight lines to Whale Rock link each place and are part of a network of sacred sites and the cultural landscape of Somersby. The intangible connection between Whale Rock, the men's and women's area is of particular significance because of its ceremonial significance. ... Aboriginal Site Lines, the Cultural Landscape the tangible and intangible The landscape surrounding an Aboriginal place or site is seen in a spiritual sense. The sites located on and immediately neighbouring Ainslie Close, Somersby are physical interconnected. Aboriginal sites can also be connected through site lines to other sites or places of significance. These features are all part of the cultural landscape. They are part of Aboriginal site corridors (site lines), their purpose and associated stories connect these site with other site across Darkinjung country. The cultural landscape at Somersby consists of various sites that are linked, including Whale Rock, the Men's and the Women's sites. These site and places form part of a network of sites and trails connecting the coast to the inland. They link to significant Aboriginal places where Aboriginal groups meet on a regular basis for ceremonies and cultural exchange. 42In her Statement of Evidence (exhibit 4) Ms Naden refers to both "sight" and "site" lines. The Council's representative confirmed that the Statement of Evidence contains typographical errors, and the references are intended to be to "sight lines". Ms Naden was not required for cross-examination. 43The applicant relied on evidence concerning Aboriginal cultural heritage issues provided by Dr Susan McIntyre-Tamwoy. Dr McIntyre-Tamwoy has qualifications in anthropology and archaeology and experience in archaeology and cultural heritage management. In her Statement of Evidence (exhibit E) Dr McIntyre-Tamwoy noted that Whale Rock was initially recorded by Gary Dunnet (archaeologist) and Dave Proust (Darkinjung LALC) in 1996. The AHIMS Site card is incomplete, undated and unsigned; there is no reference specifically to sites SIE 17 or SIE18, and no mention of the requirement to maintain "sight lines" or indication that they were thought to exist. Dr McIntyre-Tamwoy states that despite many other sites having been known and recorded in the area, this site appears to have been discovered for the first time at this point, and there is no indication it was known to the Darkinjung people prior to this point. 44Dr McIntyre-Tamwoy noted that the topography means that visual contact between the Whale Rock and the men's area would never have been possible; and as the women's area is downhill, it is possible that it could have been visible although this would require removal of the current tree cover. 45Dr McIntyre-Tamwoy considered the cultural landscape context of the site. She was of the opinion that if as claimed by the Darkinjung LALC the sites were ceremonial sites associated with male and female initiation, the cultural landscape associated with the sites would have been much larger than the small area identified by AMBS Study as the "management zone". At [20] Dr McIntyre-Tamwoy stated: Unfortunately, the destruction of the cultural landscape, which these sites were part of, occurred at the point that the relevant authorities rezoned the land as an industrial estate. This, in effect, deliberately overwrote the Indigenous cultural landscape. If planning authorities had wanted to conserve these sites within a landscape context that allowed at least a more appropriate interpretation of the Indigenous cultural landscape then the logical approach would have been to configure the allotments so that the sites were incorporated into a conservation park or zone. However as it stands the current configuration of allotment and zoning of the area fated these and other sites to a future where they exist as relics of a past landscape. 46Dr McIntyre-Tamwoy noted that several factories or warehouses have been built in the area around the sites, one of which appears to have protruded onto the platform of SIE 17. Dr McIntyre-Tamwoy was of the opinion that given that there are now industrial developments adjacent to and between these sites and the allotments continue to be sold for industrial development it is no longer possible to manage these sites within their cultural landscape, and the best that is now achievable is to manage them in a sympathetic landscape setting which includes native vegetation. 47Dr McIntyre-Tamwoy commented on the AMBS Study and the SIPPOM. In her opinion the AMBS Study is confusing, as it recommends a 15m buffer around Aboriginal site locations, however 45-3-2339 is recommended for inclusion in Management Zone 04 for which the specific management intention is not specified. The SIPPOM identifies all Aboriginal sites and their buffer (as identified in the ASMBS report) to be a level 1 constraint and as sub-zone 1a, where no development is to be permitted except that directly associated with the protection and management of Aboriginal heritage values, however figure 4.5 includes only a reduced area around Whale Rock within the red shaded management Zone 1A. Figure 4.5 from the SIPPOM is Annexure D to these reasons. 48Dr McIntyre-Tamwoy commented on the Aboriginal Cultural Heritage Assessment, stating that no technical conservation justification was provided to explain why a buffer of 20m, with a preference that it be 30m, was considered essential to the conservation of Whale Rock nor why a smaller buffer was considered inadequate. Dr McIntyre-Tamwoy was of the opinion that the objective set out in cl24 of the LEP to "protect land with Aboriginal Heritage characteristics within the Industrial Park" could be achieved with an 8-10m buffer as proposed in the development application. There is little difference in terms of heritage outcomes between the value of a 8m, 10, 15m and 20m buffer zones in terms of the integrity of the site. Dr McIntyre-Tamwoy acknowledged that the larger the buffer the easier it would be to recreate and maintain a sense of the bushland setting of the site however the objective of protecting the site could be achieved with less than the proposed buffer. An existing intrusion to within close proximity of the site already exists from the neighbouring development. It is possible to enhance an 8-10m buffer by adopting an asymmetrical buffer that extends to include the north-western corner of the block and by conserving the rock within this corner it would be possible to maintain a sense of the natural bushland vegetation cover. 49In oral evidence Dr McIntyre-Tamwoy stated that she did not accept sight lines as such, however there could have been a travel route with markers along the way. Dr McIntyre-Tamwoy accepted that if there were a sight line, the placement of a building in the proposed location would end it. A uniform 10 m buffer would no longer be possible because of the adjoining development. Dr McIntyre-Tamwoy agreed that some sites should have a buffer zone larger than 10m. In an ideal world the site should have been a protected area, however in an industrial area where buildings have been allowed the buffer zone can only be defined by what is hoped to be achieved. The AMBS Study had tried to get a solution with a bigger area reserved for conservation. 50The applicant relied on a statement of evidence provided by Mr Mark Hurcum. Mr Hurcum is an architect, who prepared the Statement of Environmental Effects, SEPP 1 objection, and Site Specific Plan of Management on behalf of the applicant. Mr Hurcum's evidence was that based on the figures 4.1 and 4.5 of the SIPPOM, the areas of the site unaffected by Aboriginal significance are not viable to develop for industrial use.

Applicant's case 51The applicant submits that Whale Rock is a natural sandstone boulder feature said to have mythological significance to the Darkinjung Aboriginal people, principally because of its association with the nearby male area and women's area, and that the Site Specific Management Plan aims to provide a framework to preserve and maintain Whale Rock in recognition of its Aboriginal cultural heritage significance while allowing a commercially viable industrial development to be carried out on the land. 52The development would set aside about one third of the total site area as a natural bushland buffer area both to physically protect Whale Rock and to preserve it in a natural bushland context. Due to site constraints which affect the available area for a building envelope, including the drainage reserves, the proposed bushland buffer around Whale Rock is necessarily asymmetrical with the larger portion being to the north and west of Whale Rock. The applicant submits that while the proposed factory would come within about 8 m of Whale Rock, that is a sufficient buffer to preserve the rock physically, while the generous bushland area to the north and west of the rock preserves its context. 53The applicant submits that there will be no obstruction of any sight lines between Whale Rock and the male and female areas because no such sight lines currently exist, in the former instance because of the topography of the land, and in the latter because of the presence of native vegetation between the sites. The applicant submits, relying on the evidence of Dr McIntyre-Tamwoy, that the sight lines are a relatively recent construct. As pictured in figure 4.5, they do not extend beyond the boundaries of the site towards the male and female areas. In any event, the applicant submits that the LEP does not adopt or endorse the "sight lines" control recommended in the SIPPOM and the Court should not attach weight to those controls. The applicant submits that preservation of the "sight lines" would effectively sterilise the site from industrial development. 54The applicant submits that based on the AMBS Study the presence of sites with Aboriginal rock engravings and artefacts in the general Somersby Industrial Estate area was documented in the period from the 1930s to the 1970s; that a detailed archaeological survey was carried out by Lough in 1981; and that it must reasonably be inferred that the decision made in 1980/1981 to set the area aside as an industrial estate was made with the knowledge that there were significant sites in the area. Had the government wished to preserve the integrity of the Somersby Industrial Estate area in terms of its Aboriginal heritage significance, it could have zoned the entire area or discrete areas within it as an environmental conservation zone or zones, or it could have declared the entire area or specific identified sites to be an "Aboriginal place" for the purposes of the NPW Act. 55The applicant did not dispute that Whale Rock has been identified by members of the Darkinjung LALC as having cultural significance to the Darkinjung Aboriginal people, however submitted that there is very little evidence to substantiate this identification, relying on the absence of a reference in volume 1 of the AMBS Study; the brief reference in volumes 2 and 3; and Dr McIntyre-Tamwoy's evidence as to the absence of detail in the AHIMS site card and the fact that despite other sites having been known and recorded in the area, there was no indication that the site was known to the Darkinjung people before 1996. 56In relation to the SIPPOM, the applicant submits that it is relevant that at some time during the consultation process which took place between August 2003 and June 2005, the proposal made in a preliminary draft plan of management considered by the Taskforce in September 2003 that the site not be developed for industrial purposes "due to the need to ensure the 'line of sight' is not impeded" was abandoned. In considering the Zone No 1 and Zone No 3 management controls in the final form of the SIPPOM, the relevant issue is whether an adequate buffer zone is allowed for. The applicant submits that it is not clear that the 10m buffer zone recommended at 4.5.3 is intended to apply to a natural boulder as distinct from sites where Aboriginal objects are present. However, assuming that the intention is to recommend a 10 m buffer zone around Whale Rock, the applicant submits that this recommendation is not to be equated to a development standard. Clause 25 of the LEP requires the Court to have regard to that recommendation, and it is relevant that for the most part a 10 m buffer is proposed; considered as a whole Whale Rock would be provided with a generous buffer zone equating roughly to one third of the total site area; and there are significant site constraints which dictate an asymmetrical buffer zone. Both purposes for the imposition of a buffer zone, being to physically protect the rock and to ensure that it is situated in suitable context, are satisfied. 57The applicant accepted that in considering the Performance Objectives at 4.5.3 of the SIPPOM, Objective 3 "be compatible with and, where appropriate, respect the setting of sites and places of Aboriginal heritage significance" was not the same as a buffer, however submitted that this was a Performance Objective, whereas the 10 m buffer zone was a Management Action. The applicant submitted that while Performance Objective 3 was not exclusively dealt with by a buffer, it is relevant that on this site there is an asymmetrical buffer, which does not materially deviate from the Management Actions, and that the provisions of the LEP are central in determining whether the building should be located further away. 58The applicant submits that in applying cll 24 and 25 of the LEP, the correct approach to be adopted to the SIPPOM is that the consent authority is simply required to have regard to it, and to the objectives in cl 24; insofar as cl 25 requires regard to be had to the aims of cl 24, the objectives expressed in sub-clauses (b) and (c) must be balanced against the objective in sub-clause (a); and cl 24(b) conspicuously does not adopt or endorse as an aim the approach taken in the SIPPOM in relation to Management Zone 3. The applicant submits that the omission to refer to Management Zone 3 in cl 24(b) is deliberate, and the Court should attach no weight to Management Zone 3 constraints in so far as they concern "lines of sight" or "site lines". 59The applicant submits that the provisions of the SIPPOM have not been consistently applied. The "sight lines" were not considered in the development consent for 5 Ainslie Close, because they did not extend beyond the boundaries of the site. The applicant submits that the cultural landscape of the area has been severely compromised, and the Council's order in relation to 2-8 Vere Close and related correspondence indicates that the Council's concerns related to geotechnical issues which appear to have been satisfied.

Council's case 60The Council relies on the provisions in the SIPPOM to which regard must be had under cl 25(a) of the LEP. The applicant has impinged on the required 10m buffer zone, and in the circumstances of this case 10m is not sufficient because having the building in close proximity is not appropriate. The plans indicate that other parts of the proposed development will also encroach into the 10m buffer zone, including the retaining wall and associated fencing; batter for the car parking area; and the awning over the caretaker flat. The Council submits that based on the evidence of Ms Naden the sight lines are not purely visual but provide a spiritual connection, and there is a sight line to the female area. The AMBS Study identified the site as a special site and identified Whale Rock as significant. 61The Council submits that the SIPPOM has been consistently applied, in the context of the difficulties following rezoning of the area in the 1980s in retaining threatened species and recognising and retaining Aboriginal cultural heritage. The Council submits that weight should be given to the attempts to comply with the provisions of the SIPPOM, which are an attempt to implement the AMBS Study, and which is referred to specifically in the LEP.

Consideration 62It was common ground that the Somersby Industrial Park is an area that is rich in Aboriginal heritage sites, and forms part of a broader Aboriginal cultural landscape. We accept the evidence of Mr Chestnut, which is supported by the annexed correspondence and minutes of meetings, that the establishment of the Somersby Industrial Park in 1980, implemented by the making of LEP 22 in 1981 and the consequent subdivision of lots and development for industrial purposes, generated difficulties in development of the area arising from the existence of threatened species and Aboriginal sites. The Taskforce was established to develop a Plan of Management to overcome these planning difficulties. The AMBS Study was an element in that process, and identified areas of significance and proposed management and protection measures to safeguard them. 63The AMBS Study identified a range of types of significance for these sites using the Burra Charter methodology, including contemporary and traditional significance for the local Aboriginal people (exhibit 5 vol 1 pp 58-59). While Dr McIntyre-Tamwoy described (at [24] in her Statement of Evidence) the AMBS Study as "confusing" in that it recommended a 15m buffer around Aboriginal site locations while not stating the specific management intention of Management Zone 04, it was not disputed, and we are satisfied, that the Study was based on good methodology and a robust significance assessment procedure, and made appropriate recommendations for conservation. 64The AMBS Study outlined (at p 9-10, vol 3) the core objectives for management of Aboriginal sites as being to indicate areas of land for which no further development constraints exist regarding Aboriginal heritage; to conserve and manage all engraved and painted art sites; to retain bushland around the perimeter of rock platforms containing engravings and grinding grooves; to promote the management of the Aboriginal sites in a manner that protects and enhances the values and qualities of the Aboriginal sites; and to preserve a representative sample of sites of less significance than the engraving or painted art sites. At p11 of vol 3 the AMBS Study notes that the creation of Management Zones "provides an opportunity to balance landscape change with the preservation of site context", the latter being identified by the Darkinjung LALC as an important component of many sites. 65Volume 3 of the AMBS Study proposed four Management Zones for the Somersby Industrial Estate. The site is within proposed Management Zone MZ-04, referred to at p19: Consideration of this area as a Management Zone would retain three engraving sites and one mythological site, identified as having high cultural significance by the Darkinjung Aboriginal custodians, SIE 17, 18, 19 & 45-3-2339 (Table 4.4). Two of these sites, SIE 17 & 18, were also determined to be significant by other criteria. There is also some evidence to support an argument that these sites had defined cultural links in the past. At least one of these sites may have been part of a larger ceremonial system (see McCarthy 1936a). There is still support for this idea amongst the contemporary Aboriginal community. The Mythological site 45-3-2339, was first recorded in 1996 by David Pross and Gary Dunnett of the NSW NPWS. This site is considered an integral part of this 'site complex'. The 'whale rock' formation is regarded as the guardian of nearby rock engravings. 66Table 4.4 identifies four site types within MZ-04: SIE 17 (Engraving), SIE 18 (Engraving), SIE 19 (Engraving) and 45-3-2339 (Mythological), the latter being described as "Significant mythological site". 67The specific management recommendations for individual sites (Part 8, vol 3, p 80) include in relation to Whale Rock:

• site to be conserved within management zone MZ-04.
• discuss sensitive development options with Darkinjung Local Aboriginal Land Council. 68It is not clear from the AMBS Study how the sites within Management Zone MZ-04 were intended to be conserved. What is clear is that during the course of development of the SIPPOM a modified approach emerged. The initial draft Plan of Management which was considered by the Taskforce at its meeting on 15 August 2003 recommended that no development be permitted on the site. The minutes of the Taskforce meeting held on 12 September 2003 (exhibit 3) note that the AMBS Study indicated that the site (and one other lot) were unable to be developed due to the need to ensure the line of sight is not impeded. A letter dated 22 September 2003 (exhibit 8) from the Premier's Department to the Darkinjung LALC refers to the suggestion in the AMBS Study that the site is one of two lots that should be preserved "due to the need to ensure the line of sight is not impeded", and suggested that an alternative to the recommended options in the AMBS Study was to place a 10m buffer around Whale Rock and impose "special restrictions" to ensure "that the line of sight to the relevant Aboriginal sites in that area is not impeded", as follows: The site on this lot is located on the higher level of ground which would allow for a building to be developed on the lower part of the block. However, to ensure that the building did not impede the line of sight, there would be special restrictions made on any development application that restricted the building height. Council would include these restrictions on the property documents and it would also be included in the Somersby Industrial Park Plan of Management currently being developed. An access pathway to the Aboriginal site would also be provided. 69The attached plan shows lines with arrows from Whale Rock to SIE 15, SIE17, SIE 18 and SIE 19. 70A further letter dated 8 December 2003 makes a similar suggestion, that is, restrictions to preserve the line of sight and to create a buffer zone, noting that on a site visit on 24 October 2003 "a number of Elders questioned the significant nature of this site"; and suggested that another option, being a 10m buffer and an access pathway, without site restrictions, be considered. A letter dated 29 March 2004 notes "proposed changes to the AMBS study" for the two lots, and notes that the Darkinjung LALC had agreed to a 10m buffer, with special restrictions on any development application to restrict the building height to ensure that any buildings do not block the line of sight. 71The provisions of the SIPPOM as adopted in 2005 are set out at [26]-[35] above. 72It was common ground that Whale Rock is a site of significance to the local Aboriginal people as represented by the Darkinjung LALC. The description of the site in the AHIMS is provided at [25] above. The handwritten site card (copied in exhibit 8) notes: Boulder has the lenticular form suggestive of a whale. There are 2 circular holes on one side, in an appropriate position for the eyes. The holes are probably natural, although they may have been enlarged. 73As noted above, Dr McIntyre-Tamwoy (exhibit E) states that this site appears to have been discovered for the first time when it was recorded in 1996, and that there is no indication that it was known to the Darkinjung people prior to this point. This lack of earlier evidence may arise from many causes. In any event, it was not disputed that the site is now of significance to local Aboriginal people and is linked in contemporary belief with other nearby engraving sites as their 'keeper' or 'guardian'. It was not disputed that those sites are of significance for Aboriginal cultural heritage, and would be "Aboriginal objects" as defined in the LEP and NPW Act. 74The decision of Darkinjung LALC outlined at [70] above suggests their confirmation of the significant nature of the site in 2004 at the time when the SIPPOM was being finalised. The significance of the site was reiterated in the evidence of Ms Naden on behalf of the Darkinjung LALC (exhibit 4), and in a letter to the Council from the Chairperson of Guringai Tribal Link Aboriginal Corporation dated 17 February 2011 objecting to the proposed development. 75Based on the site view, and the evidence of Mr Chestnut and Dr McIntyre-Tamwoy, we accept that vegetation now prevents there being a direct line of sight from Whale Rock to SIE 15 or SIE 17 which might otherwise be consistent with the topography of the area (although the AMBS Study suggests that this may not have been the case in the past), and that because of the topography of the area the men's area (SIE 18) cannot be seen from Whale Rock. The surrounding development does not prevent looking towards it with or without vegetation. The inability to see the men's area would be consistent with the perceived Aboriginal significance of the men's area and its restricted nature. 76We accept that in the course of development of the lots in the area surrounding the site there has been some intrusion into the SIPPOM buffer zones and some interference with the relationship between Whale Rock and SIE 15, SIE 17, SIE 18 and SIE 19. No 5 Ainslie Close adjoins the site, and the corner of the building approved for that site in 2008 intrudes into the connection between Whale Rock and SIE 17 (women's area) (exhibit J). SIE 17 is the largest Aboriginal heritage site, and the photographs annexed to Dr McIntyre-Tamwoy's Statement of Evidence confirm that development on 2-8 Vere Close has damaged the rock platform, contrary to the exclusion of that part of the site from earthworks approved as part of development consent 27763/2005 (exhibit 9). In 2009 the Council served an Order under Section 121B of the Act (exhibit 13) which indicates that the focus of concern related not to the impact on Aboriginal cultural heritage, but on geotechnical issues. Mr Chestnut's oral evidence was that the buffer zones in the SIPPOM have been observed since the adoption of the SIPPOM. An example of this was that the Council approval of development on the southern part, but not the northern part, of the site on which SIE 19 is located meets the requirements of the SIPPOM, because of the timing of consideration of the development proposals. Mr Chestnut accepted that there is a telecommunications tower at Raveson Close which is in very close proximity to SIE 18, however this was approved under Commonwealth legislation. 77Dr McIntyre-Tamwoy was of the opinion that the original context - the cultural landscape of the area- has been 'overwritten' by recent subdivision and development. We accept that significant changes to the cultural landscape have diminished its integrity and destroyed some of its context. However, based on the view and the aerial photographs which became exhibits K and L, we are satisfied that the site complex, being the four engraving sites and their 'guardian' Whale Rock identified in Figure 15, vol 3 of the AMBS Study, still exits, and is relatively intact, and that with some minor intrusions there is as much a line of sight to them as there was before the development of the SIP. 78The evidence before us is that regardless of some damage to its integrity, the site complex and Whale Rock in particular, in its present state, is still of significance to the local Aboriginal community. We accept the evidence of Ms Naden that the concept of sight lines should be read in a broad sense and that the key issue is the maintenance of context and connection between the sites. We accept that this context and connection, though to some extent diminished, still exists for the local Aboriginal community. 79The proposed development is permissible in the 4(a1) General Industrial zone under the LEP. While planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted, that may be subject to the need to ensure acceptable environmental impacts: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399. 80The SIPPOM is not a development control plan, to which regard must be had under s79C(1)(a)(iii) of the Act, and which is a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. Clause 25(a) of the LEP requires the consent authority to have regard to the SIPPOM, and by virtue of that provision, the SIPPOM is to be distinguished from more general policy documents relevant to considering the public interest as required by s79C(1)(e) of the Act: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. 81The weight to be given to the SIPPOM as planning policy was considered by Roseth SC in Davis v Gosford City Council [2007] NSWLEC 795. In the circumstances of that case Roseth SC concluded (at [9]) that the SIPPOM should be given significant weight because of the thorough and detailed work on which it was based and the extensive public consultation process that occurred before it was adopted. That case was determined before the amendment of the LEP by LEP 457 in 2008. 82In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 McClellan CJ discussed the approach to be adopted in consideration of policy by a consent authority. McClellan CJ considered (at [86]-[87]) the proper approach to be adopted to a development control plan in undertaking the assessment required by s 79C(1)(a)(iii) of the Act. His Honour went on to consider the proper approach to statements of policy adopted by a council which are not included in a development control plan, noting that "the public interest" as acknowledged as a relevant consideration under s79C(1)(e) of the Act "must extend to any well-founded plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan". McClellan CJ held: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: -the extent, if any, of research and public consultation undertaken when creating the policy; -the time during which the policy has been in force and the extent of any review of its effectiveness; -the extent to which the policy has been departed from in prior decisions; -the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; -the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; -whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 83Based on the evidence before us, we agree with the conclusion of Roseth SC in Davis that the SIPPOM is the outcome of the thorough and detailed work and an extensive public consultation process. While the background to its formulation did include some compromise and modifications to adapt to the realities of the development of the SIP, it was substantially guided by the findings in the AMBS Study. The SIPPOM was adopted in 2005, and given legislative recognition in 2008 as a mandatory consideration in the LEP by LEP 457 which amended the LEP to incorporate specific provisions relevant to development at Somersby Industrial Park. We accept the evidence of Mr Chestnut that the SIPPOM has, since its adoption, been considered in development decision-making in the locality in accordance with its terms. For these reasons, applying Stockland , we consider that the SIPPOM should be given significant weight in determining this development application. 84The Zone 1 Management Controls for Sub Zone 1(a) Aboriginal Heritage Sites (at [34] above]) refer to buffer areas to the actual heritage sites, and require that development within an allotment containing an area identified as Sub Zone 1(a) "will comply" with the Statement of Significance and Performance Objectives/Management Actions (at [33] above). The Zone 3 Management Controls (at [35] above) provide that development will be permitted provided that the "line of sight" between the Aboriginal heritage sites is maintained, and that any such development is "to comply with" the Statement of Significance and Performance Objectives/Management Actions. 85The Statement of Significance refers to "human associations, stories, myths, personal histories and emotions", as well as to "tangible evidence in the form of Aboriginal objects". The Performance Objectives at 4.5.3 refer to "sites and places of Aboriginal heritage", as well as "Aboriginal objects". In our view there is no indication that the buffer zones referred to in the Management Actions are limited, as suggested in the applicant's submissions, to Aboriginal objects or other places where there is evidence of direct physical human intervention. The Management Actions are clear, and require a buffer zone of 15m during investigation of a site, and 10m where site existence is confirmed. 86The proposed buffer zone is asymmetrical, partly as a consequence of the topography and site boundaries, and partly as a consequence of the design of the proposed factory building. While it incorporates the large remnant trees and more densely vegetated part of the site, at the interface with the proposed building it is less than 10m. Part of the proposed building intrudes to 8m from Whale Rock, and other intrusions were identified by the Council's representative in submissions. We accept that owing to the site topography, the buffer zone can, with appropriate conditions being imposed including fencing, assist in the physical protection of Whale Rock both during and after construction. If the buffer zone were extended to 10m it would meet the relevant SIPPOM Management Action, and would ensure the physical protection of the site. However, we are not satisfied that the buffer zone as proposed would meet Performance Objective 3, which requires that it "be compatible with and, where appropriate, respect the setting of sites and places of Aboriginal heritage significance". The proposed building will present a wall 8 m high to anyone standing at Whale Rock and looking out at the prospect, towards the other sites. A reduced buffer zone could possibly be more acceptable if it led into landscaping or car parking around the building, however the proposed solid intrusion would not in our view comply with or meet the Performance Objectives for Aboriginal Heritage Significance in the SIPPOM. 87The Management Actions refer to limitations on the height of development to continue visibility between sites. We are satisfied that while some of the development in the surrounding locality, and vegetation, has intruded into direct lines of sight from Whale Rock to the other sites of significance identified in figure 15 of the AMBS Study, the relatively open and elevated position of Whale Rock in its context means that the relationship between it and the other sites has largely been retained. The erection of a building which would block the visibility between the sites would not be consistent with Management Actions and would not comply with or meet Performance Objective 3. 88Clause 25(b) requires that regard be had to the aims of Part 3 Div 4 of the LEP as referred to in cl 24. The relevant aims are those in cl 24(a), (b) and (c). We accept the applicant's submission that development of the site for industrial purposes would assist in achieving the aim in cl 24(a) of maximising the opportunity for industrial development so as to provide employment opportunities. 89Clause 24(b) includes as one of the aims "to protect ... land with Aboriginal heritage characteristics within the Industrial Park (as identified as Management Zones 1 and 2...)". As noted by the applicant, cl 24(b) does not expressly refer to Zone 3. The site is within Zone 1, and the protection to which cl 24(b) refers should in our view be considered in the context of the Statement of Significance at 4.4 and the Performance Objectives at 4.5.3 of the SIPPOM, which extends beyond physical protection and refers at Performance Objective 1 to the recommendations of the AMBS Study. Clause 24 (c)(ii) aims to ensure that the function and appearance of development "protects ... land with Aboriginal heritage characteristics" within the SIP. The size and location of the proposed factory building and its proximity to Whale Rock do not in our view assist in achieving either of the aims in cl 24(b) or (c). 90We note that in final submissions the applicant accepted that the plans indicated some parts of the proposed development, including the batter for the car parking area, were less than 10 m from Whale Rock, and submitted that this could be addressed by conditions. The applicant's position was that if the Court were to conclude that a 10m buffer zone was required, without requiring retention of the sight lines, the applicant should be given an opportunity to amend the application; that proposal was opposed by the Council. If the Court were to conclude that the sight lines had to be retained, or a buffer of 20m as recommended by the Darkinjung LALC were required, the applicant accepted that the application should be refused. 91For the reasons provided above, we are not satisfied that the proposed development is consistent with the aims of Part 3 Div 4 of the LEP or the requirements of the SIPPOM because of the proximity of the proposed building to Whale Rock, and because the scale and location of the proposed building blocks visibility between Whale Rock and the other sites of significance. The impacts of the proposed development on Whale Rock and on the Aboriginal cultural heritage significance of Whale Rock in the locality are such that the site is not suitable for the proposed development and consent should be refused. 92The orders of the Court are:

1. The appeal is dismissed.
2. Development application 39393/2010 for the erection of a factory building and associated works at 7 Ainslie Close Somersby is refused.
3. The exhibits are returned except for exhibits A and 2. Linda Pearson Commissioner of the Court Sharon Sullivan Acting Commissioner of the Court ATTACHMENT A ATTACHMENT B ATTACHMENT C ATTACHMENT D 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: 19 March 2012