Mackycorp Pty Ltd v Lismore City Council

Before: Walsh C

Decision: The Court orders:
(1) The appeal is dismissed.
(2) Development application DA5.2021.221.1 for land subdivision and associated development on 18 parcels in the Dunoon Road environs within the locality of North Lismore is refused consent.
(3) The exhibits are returned with the exception of Exhibits A, 3, and 2R2, which are retained.

Catchwords: APPEAL – development application – land subdivision – urban release area – North Lismore Plateau – Lismore CBD flood planning response –adequacy of Aboriginal cultural heritage significance assessment – tangible and intangible Aboriginal cultural heritage – whether adequate assessment of Aboriginal cultural heritage impact – relationship of consultation to understanding cultural heritage significance and impact – relevance of Indigenous Land Use Agreement (ILUA) – balancing benefits and impacts

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15
National Parks and Wildlife Act 1974 (NSW), s 90
Protection of the Environment Administration Act 1991 (NSW) s 6
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW)
Lismore Local Environmental Plan 2012
National Parks and Wildlife Regulation 2019, reg 60 State Environmental Planning Policy (Planning Systems) 2021 Sch 6

Cases Cited: Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Goldcoral Pty Ltd v Richmond Valley Council [2024] NSLWEC 77
BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 8 ARLR 127; [2013] NSWLEC 48

Texts Cited: Australia International Council on Monuments and Sites, The Burra Charter: The Australia
ICOMOS Charter for Places of Cultural Significance,
2013
Lismore Development Control Plan
Office of Environment and Heritage, Department of Premier and Cabinet, Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in NSW, April 2011
Department of Environment, Climate Change and Water, Aboriginal cultural heritage consultation requirements for proponents, April 2010

Category: Principal judgment

Parties: Mackycorp Pty Ltd (Applicant)
Lismore City Council (First Respondent)
Michael Ryan (Second Respondent)

Representation: Counsel:
G Farland (Applicant)
H Irish (First Respondent)
R White (Second Respondent)
Solicitors:
Madison Marcus (Applicant)
Local Government Legal (First Respondent)
A Oshlack (Agent) (Second Respondent)

File Number(s): 2023/199715

Publication restriction: Nil

Site and surrounds

Proposal

Background

Evolving contentions and proposal amendments

Second respondent is joined as a party to the proceedings

By hearing’s conclusion, dispute between applicant and the Council resolved

Lay objecting submissions

Key issues for consideration and outline of findings

Introduction to tendered material

Policy and procedural documents

Adequacy of consultation with Aboriginal persons

Purpose of consultation with Aboriginal persons with respect to impact evaluation

The place of earlier consultation in the evaluation of this DA

What consultation did occur in earlier stages

Summary of understandings taken from this background to the site rezoning consultation and related findings

Expectations after earlier consultation including Lismore Development Control Plan provisions

DA consultation

Findings in relation to DA-related consultation

Consultation with the second respondent

Newspaper notice

No action taken when field researcher suggested need for contact with Elders

Two affidavit deponents not consulted by Mr Muhlen-Schulte

Further Comment

Aboriginal cultural heritage significance of the subject land within the wider landscape

Applicant’s ACHAR

Findings on ACHAR v8

Affidavit evidence from Mr Laurie, Mr Walker and the second respondent

Expert evidence

Aboriginal occupation of the DA site area

DA site significance when considering evidentiary references to Aboriginal places and sites wider afield

Findings relating to Aboriginal heritage significance of the subject land within the wider landscape

Public interest

Ecologically sustainable development

Key positive public interest factors relating to the project

Concerns and impacts

Conclusion

Orders

JUDGMENT

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the determination of Development Application DA5.2021.221.1 (DA), as amended. The DA seeks the grant of development consent for a relatively large land subdivision in a location to the north of Lismore CBD.

2. The DA is regionally significant development, as defined in Schedule 6 of State Environmental Planning Policy (Planning Systems) 2021, as the proposed development has a capital investment value of more than $30 million. The Northern Regional Planning Panel (regional panel) is the consent authority. The panel determined to refuse to consent to the DA on 15 December 2022. It is this determination that the applicant seeks to overturn with its appeal to the Court. I note that, mindful of s 8.15(4) of the EPA Act, Lismore City Council (Council) is the respondent to the appeal, subject to the control and direction of the regional panel.

3. As it has come to pass, with various amendments to the proposal over time and agreements reached in relation to certain consent conditions, the Council, as the first respondent in the proceedings, no longer contests the grant of consent to the DA. However, on 15 July 2024, and following consideration of related affidavit evidence, the Court ordered that M Ryan be joined as a second respondent in the proceedings. Mr Ryan (the second respondent) does contest the grant of consent. The particulars of this joinder are outlined later.

Site and surrounds

4. I rely on Council’s Further Amended Statement of Facts and Contentions filed 22 April 2025 (FASOFAC) for much of the descriptive material which follows.

5. There are 18 distinct land parcels comprising the DA site which have a combined area of 126.11ha. The FASOFAC (par 15) lists the street addresses (all within the locality of North Lismore) as follows: 101 Dunoon Road, 103 Dunoon Road, 103A Dunoon Road, 103B Dunoon Road, 103C Dunoon Road, 103D Dunoon Road, 263 Dunoon Road, 273 Dunoon Road, 273A Dunoon Road, 177A Hewitt Road, 15 Pagottos Ridge Road, 9 McLeay Road, 11 McLeay Road, 41 McLeay Road, 43 McLeay Road, 54 McLeay Road, 54A McLeay Road, 84 McLeay Road (DA site). The legal descriptions of each parcel are also documented in the FASOFAC.

6. The DA site is located between about 1.3km and 2.4km north and northwest of Lismore CBD. Much of the site falls within an elevated plateau sitting above the floodplain and well known as the ‘North Lismore Plateau’ (NLP). FASOFAC (par 15) introduces certain aspects of the NLP as follows:

“The plateau sectors typically are bounded by steep rocky slopes extending down to the floodplain below, although the north eastern sector of the site connects to the elevated hamlet of Tullera and more extensive ridgeline and plateau land to the north. The plateau portions of the Site range in elevation from approximately 95m up to 130m, whilst the lower southern and south eastern portions of the Site range from approximately 11m to 55m.”

7. Much of the site and surrounds has been subject to clearing in the past, primarily for agricultural purposes. Existing vegetation cover is a mixture of native rainforest species and exotic species including Camphor Laurel and Privet. Certain threatened flora species (Thorny Pea, Arrow-head Vine and Hairy Jointgrass) have also been identified on the site.

8. The land, otherwise in the surrounds of the site, comprises mainly agricultural holdings and rural residential blocks of various sizes. Lismore Showground, Go- Kart Track, Lismore Saleyards and North Lismore Industrial Estate are all reasonably nearby.

9. Figure 1 shows the site, in red outline, within its local context.

Figure 1 - Site context and zoning, with DA site outlined in red (source: Ex A Tab 3)

10. Figure 1 also shows the zoning for the site environs. The DA site falls within an area rezoned for residential purposes under an amendment to Lismore Local Environmental Plan 2012 (LLEP). The majority of the site is zoned R1 General Residential with considerable areas zoned C2 Environmental Conservation and C3 Environmental Management, with a smaller area zoned E1 Local Centre at the southern entry to the DA site.

11. Land to the immediate south of the DA site and within the rezoned area, known as the 'Winten land', has already been approved for subdivision into 95 residential lots (Development Application 5.2020.462.1 approved 14 September 2021 (FASOFAC par 23)).

Proposal

12. As introduced above, the proposal involves a relatively large scale land subdivision. While particulars are not readily discerned given the image resolution, the general subdivision layout might be understood from Figure 2.

13. According to draft consent conditions agreed between the applicant and first respondent, the DA would create some 667 residential lots, two commercial lots, eight residual lots, 22 public reserve lots, new roads, road widening and road closures and provisioning for essential services. Site preparation would involve demolition of structures on the site, bulk earthworks, and certain clearing including tree removal. Certain landscaping and environmental rehabilitation works are also proposed, among other project aspects. There are also aspects of the proposal which seek to respond to Aboriginal cultural heritage-related considerations.

14. The proposed development is located to the west of Dunoon Road. The residential areas are physically divided into three sections. The southern residential section is closest to Lismore CBD. One of two new significant intersections off Dunoon Road provides the entry to this area and the adjacent local centre area. The southern residential section is separated from the central residential section by areas zoned environmental management and environmental protection (with pathway connections). Significant environmental rehabilitation works are proposed within these areas. The site’s second (northern) vehicle access off Dunoon Road would provide access to both the central and northern residential sections which are separated essentially by land zoned for residential purposes but not included in this DA.

Figure 2 - Site Plan (source: Ex A Tab 1)

15. The proposal was lodged as integrated development with respect to Div 4.8 of Pt 4 of the EPA Act in regard to: (1) a controlled activity approval under the Water Management Act 2000 (NSW) and (2) a bushfire safety authority under s 100B of the Rural Fires Act 1997 (NSW). General Terms of Approval (GTAs) for both of these approvals have now been issued. While it is now recognised that an Aboriginal Heritage Impact Permit (AHIP) under the National Parks and Wildlife Act 1974 (NSW) (NPW Act) would also be required for the development, the applicant indicates this was not clear at the time of lodgement of the DA and the DA was not lodged as integrated development in respect of an AHIP.

Background

Evolving contentions and proposal amendments

16. The Court’s Practice Note – Class 1 Development Appeals sets out the case management procedures for development appeals of this type. An important aspect of these procedures is the filing of a statement of facts and contentions (SOFAC) by the respondent to the appeal which identifies the circumstance that the respondent contends require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or to impose certain conditions. In these proceedings, Council filed its original SOFAC on 1 August 2023. In this filing, the Council indicated a range of contentions which it then indicated warranted dismissal of the appeal and refusal of consent to the DA. Briefly here, contentions were raised in regard to such topics as Aboriginal cultural heritage, traffic, biodiversity, bushfire risk, water quality, stormwater management, geotechnical considerations, noise and utility services, among others.

17. On 5 June 2024, the Court granted leave for the applicant to rely on a large compilation of amending plans and documents, which the applicant claimed in affidavit evidence accompanying its Notice of Motion (NoM), would assist in addressing contentions raised by the Council. In accordance with the Court’s directions, Council then prepared an amended SOFAC (ASOFAC) (filed on 5 July 2024) which narrowed (somewhat) the contentions raised in relation to the refusal of the application. Further work regarding the preparation of evidence examining the amended contentions followed.

18. At this point, the then scheduled hearing listing for 12-16 August 2024 was seen to be achievable, in terms of the finalisation of expert evidence and the like. These listing dates were maintained.

19. Of substantial significance to this hearing is that, with the ASOFAC filed on 5 July 2024, and after the applicant’s preparation of further material in response, the Council no longer pressed Aboriginal cultural heritage-related contentions.

Second respondent is joined as a party to the proceedings

20. On 3 July 2024, a NoM was filed by the second respondent in relation to an application to be joined as a party to the proceedings. On 15 July 2024, the Court granted the second respondent’s NoM and he was joined as a second respondent in the proceedings under s 8.15(2) of the EPA Act. On 5 August 2024, the second respondent filed a SOFAC.

21. By way of a brief introduction and referring to headline topics only, as the essence of the matters raised are considered later in this judgement, the second respondent’s contentions to support a determination to refuse the DA included that:

22. The development will cause irreparable and irreversible harm to the Aboriginal heritage significance of the subject land within the wider landscape warranting refusal of the DA.

23. The applicant's Aboriginal Cultural Heritage Assessment Report (ACHAR) is flawed.

24. The consultation carried out with recognised Aboriginal persons was inadequate.

25. The DA is not in the public interest, including in relation to the 'precautionary principle' and 'inter-generational equity'.

26. In separate orders made on 22 July 2024, the Court directed the second respondent to file intended lay evidence by 31 July 2024, and that an expert report on “Aboriginal cultural heritage”, prepared by T Robins (called by the applicant), be filed by 2 August 2024. At this point, the scheduled listing for the hearing from 12-16 August 2024 was maintained.

27. Three evidentiary affidavits were filed on 5 August 2024 by the second respondent. These were prepared by G Laurie, L Walker and the second respondent himself.

28. In an affidavit filed on 6 August 2024 the applicant indicated that, based on advice from its Aboriginal cultural heritage expert, it could no longer comply with the timetable for evidence. After consideration of submissions, in a procedural judgment (recorded on 8 August 2024 as Mackycorp Pty Ltd v Lismore City Council [2024] NSWLEC 1485) in which I explain the reasoning for this decision, the listing dates from 12-16 August 2024 were vacated. Additional case-management arrangements were set in place which would eventually bring forward anthropological expert evidence into the case, aimed at assisting with the Court’s appreciation of the contentions raised by the second respondent.

By hearing’s conclusion, dispute between applicant and the Council resolved

25. Ultimately, the proceedings were heard on the following dates: 2-4 June (including site inspection on 2 June), and 7-9 October 2025, with final documentary submissions made on 17 October 2025. Key further events preceding the hearing included:

26. The Court’s granting of leave to the applicant to further amend the DA on 28 March 2025 (March 2025 amendments), mindful of further exchanges between relevant experts called by the Council and the applicant.

27. The filing of Council’s FASOFAC on 22 April 2025 in response to the March 2025 amendments. With the FASOFAC, Council indicated that it no longer pressed any contentions that the DA, as now amended, be refused. There was an exception in relation to then outstanding GTAs from two of the relevant approval bodies, however these GTAs were subsequently received. Matters relating to certain conditions of consent remained in dispute.

Lay objecting submissions

26. The matters for consideration in the evaluation of development applications are detailed at s 4.15(1) of the EPA Act. I mention here s 4.15(1)(d) in particular, which requires a consent authority to take into consideration lay submissions. The DA was notified a number of times over the course of its amendments, including after the March 2025 amendments. Lay objecting submissions have been supplied to the Court and I have given consideration to them. In recognition of my overall findings, I need only be relatively brief in addressing them in this judgement.

27. One step in my consideration of lay submissions was my preparation of a series of questions to the parties which, in which I sought to synthesise relevant uncertainties with respect to topics raised in lay submissions. These questions were communicated to the parties on 30 May 2025. I can note here that having regard to:

28. the joint expert reports filed prior to the commencement of the hearing (marked Ex 6 through to Ex 10 in the proceedings),

29. my accompanied site inspection,

30. the Council response (assisted by technical experts) to the questions I raised in relation to lay submissions (part of the documentation marked Ex 17 in the proceedings),

31. a further technical response to matters relating to stormwater management which I had not thought inadequately addressed in Ex 17 (this second response was marked Ex 16 in the proceedings),

32. a supplementary report from the ecology experts (Ex 18) addressing certain queries raised in a lay submission on this topic, and

33. the Council’s written submissions on resolved contentions (Ex 13),

I am satisfied that the matters raised in lay submissions have been adequately addressed in the DA, as amended, and in the consent conditions agreed between the applicant and the Council.

Key issues for consideration and outline of findings

28. The second respondent’s four contentions are documented in Ex 2R2. I have introduced them briefly above, at [20]. In the framing of the matters for attention in this judgment, some re-configuration of the second respondent’s nominated contentions has been adopted, which brings the number of topics to three. This is mindful of the text of the second respondent’s contentions, but also that my responsibility is to make a determination de novo, and mindful of all the relevant evidence and submissions before me. The three topics are as follows.

29. First, I will examine consultation and whether that carried out with Aboriginal persons was adequate.

30. Second, I will examine whether there has been adequate understanding of Aboriginal cultural heritage significance of the subject land within the wider landscape. There is focus on the ACHAR but other information also proves helpful in my consideration.

31. Third, I will examine the wider public interest considerations together. This includes the impacts of the proposal (in particular on Aboriginal heritage significance of the subject land within the wider landscape) but also the benefits of the proposal, including the strategic need for this urban land release.

32. I will say here in summary, there is evidence that the proposed subdivision has potential to bring about serious impacts in relation to Aboriginal cultural heritage significance. It will be seen that I find that the applicant has not provided a satisfactory response in terms of assessment of Aboriginal cultural heritage significance of the subject land within the wider landscape, or the proposal’s impact on this significance, or an adequate mitigative response. The applicant has not been able to demonstrate that the impacts of the proposed development, in regard to this highly significant factor in this particular locational setting on the NLP, are acceptable. While the proposal would bring significant benefits, these do not outweigh the above concerns.

Introduction to tendered material

33. Wide-ranging evidentiary material was tendered into evidence in these proceedings. Table 1 introduces a selected listing of the more significant Aboriginal cultural heritage-related pieces of work which were among those referenced in the proceedings.

34. The naming system for the reports is inconsistent in the various tendered material before me. So, for reference and convenience purposes, an abbreviated form is adopted for this judgment and is indicated in the table.

Table 1- Selected studies and reports

| Consultancy | Report name | Date | Reference abbreviation | | Converge Heritage + Community | North Lismore Plateau, NSW Cultural Heritage Assessment | 22 May 2012 | Converge report (Ex 2R1 Tab 1) | | Remnant Archaeology | An Aboriginal Archaeological Technical Report NLP | 8 April 2016 | Remnant report (Ex 2R1 Tab 4) | | Everick Heritage | Archaelogical Technical Report (Annexure E to ACHAR v6) | January 2024 | Everick Technical Report (Ex 2R1 Tab 9 Appendix E) | | Everick Heritage | Historic Heritage Desktop Assessment version 4 | April 2024 | | | Everick Heritage | Aboriginal Cultural Heritage Assessment Report for Allura Parklands Pty Ltd version 6 | May 2024 | ACHAR v6 (Ex 2R1 Tab 9) | | Everick Heritage | Aboriginal Cultural Heritage Assessment Report for Allura Parklands Pty Ltd version 8 | April 2025 | ACHAR v8 (Ex A Tab 35) | | Everick Heritage | Aboriginal Cultural Heritage Management Plan | April 2025 | ACHMP (Ex A Tab 36) |

35. The material tendered by the second respondent included:

36. Affidavit of M Ryan dated 28 June 2024 (Exhibit 2R1, Tab 28),

37. Affidavit of G Laurie dated 30 July 2024 (Exhibit 2R1 Tab 29),

38. Affidavit of M Ryan dated 31 July 2024 (Exhibit 2R1 Tab 30),

39. Affidavit of L Walker dated 1 August 2024 (Exhibit 2R1 Tab 31),

40. Individual Expert Report of I Riebe (an expert anthropologist) dated 31 March 2025 (Exhibit 2R3), and

41. Exhibits 2R4, 2R5 and 2R6, being further comments from Dr Riebe in response to evidence of the applicant.

42. The material tendered by the applicant included an individual expert report from R Muhlen-Schulte (an expert anthropologist and archaeologist) which was filed 11 December 2024 and marked Ex B in the proceedings. Ex L provided responses from Mr Muhlen-Schulte to Exs 2R4, 2R5 and 2R6. In addition, a joint expert report was prepared by Dr Riebe and Mr Muhlen-Schulte and filed on 14 April 2025 (Ex C).

Policy and procedural documents

37. Section 4.15(1) of the EPA Act brings forward matters for consideration in the evaluation of development applications, with the provisions of LLEP and Lismore Development Control Plan (LDCP) direct points of attention, under subss 4.15(1)(a)(i) and (ii). Among the nominated evaluative considerations, of some particular pertinence here are “the significant likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality” (s 4.15(1)(b) of the EPA Act), “the suitability of the site for the development” (s 4.15(1)(c)), and “the public interest” (s 4.15(1)(e)). The adequacy of consideration of submissions against the proposal (s4.15(1)(d)) has been addressed above.

38. Other documents of particular relevance to the contentions which arose in the proceedings included:

39. NSW Office of Environment and Heritage (OEH) 2011, Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in NSW (OEH Guide),

40. OEH (2010), Aboriginal Cultural Heritage Consultation Requirements for Proponents (ACHCRP), and

41. Australia ICOMOS, Burra Charter, 2013 (Burra Charter).

42. Certain other documents from Australia ICOMOS also come into consideration.

43. Section 90 of the NPW Act also has pertinence. It provides for the department secretary to, after required consultation and assessment, issue Aboriginal heritage impact permits (AHIPs) in appropriate circumstances.

Adequacy of consultation with Aboriginal persons

41. The second respondent contended that the applicant failed to carry out any consultation “meaningful or otherwise” with “any Bundjalung Elder or Aboriginal organisation on the cultural significance of the NLP” (Ex 2R2 par 3.3). It was claimed that DA consultation was only with one traditional owner who “was not a knowledge holder of the NLP and who advised he was unaware of any specific values and that further information should be obtained from the Elders and others in the Aboriginal community” (Ex 2R2 par 3.4). According to the second respondent, an incorrect address was used for contact with Bundjalung Elders who, suggested to be inconsistent with requirements, were denied an opportunity to participate in the assessment process.

42. It is widely accepted that Aboriginal people are the primary determinants of the cultural significance of their heritage (eg ACHCRP p iii). These points made by the second respondent are directly related to the DA stage consultation. But residential subdivision within the NLP has considerable history and years of consultation, including with the local Aboriginal community. I tackle this topic by considering the following subtopics:

43. Purpose of consultation with Aboriginal persons relating to matters like this;

44. The place of earlier stage consultation in the evaluation of this DA;

45. What consultation did occur in earlier stages;

46. Expectations after earlier consultation; and

47. DA-related consultation (including in relation to this appeal).

48. I note that content in this judgement relating to earlier stage consultation is lengthy. However, the content of this particular section has relevance to the other two topics under consideration in this judgment.

Purpose of consultation with Aboriginal persons with respect to impact evaluation

44. Development application evaluation involves assessment of impacts (eg see s 4.15(1)(b) of EPA Act). The assessment of impacts requires an understanding of the significance of that upon which impact may be imparted. Given the acceptance that Aboriginal people are the primary determinants of the cultural significance of their heritage, of course among numerous other outcomes, inadequate consultation with Aboriginal persons can mean there is a missing ingredient in impact evaluation practice.

The place of earlier consultation in the evaluation of this DA

45. To the extent that appropriate evaluation is the point of attention in this judgment, I see no problem in also calling upon earlier stage consultation aspects, including that prior to the rezoning of the land, in the evaluation of this DA if it assists in understanding Aboriginal cultural heritage significance and therefore potential impacts. Indeed, in my experience, it can be a planning aspiration, relating to efficiency and reduced duplication of work with large scale land rezoning projects, that rezoning-related studies seek to reduce the need for individual DA-stage studies. That is, dependent on circumstances and content, contamination, water management, ecological, traffic, acoustic or Aboriginal cultural heritage studies for a rezoning might reduce the need for individual DA-level studies. This is not to say that to do so is always, or ever, appropriate in particular circumstances. For example, as indicated in ACHCRP (section 2.1), Aboriginal cultural heritage is dynamic. The experts in these proceedings also agree that “cultural knowledge can change with time” (Ex C par 2.4).

What consultation did occur in earlier stages

46. Rezoning-related consultation exercises during the pre-rezoning stages were described in the Converge report and the Remnant report (see Table 1), each of which were prepared for a “Project Control Group” (including Council and landowner representatives, among others). The Converge report, indicates that the four stages of consultation under ACHCRP were adopted. This “four stage process” was referenced numerous times in the proceedings and is summarised as follows in ACHCRP (Section 4):

“1. Informing Aboriginal people about the nature and scope of the proposal.

2. Understanding what might be present in the landscape and its cultural significance.

3. Determining the potential impacts and the proposed strategies to deal with them.

4. Reviewing the report.”

47. Consistent with the more detailed actions within the four stages under ACHCRP, after due notification, a group of registered Aboriginal parties (RAPs) was formed in relation to the rezoning. It is indicated that a newspaper notice was placed in two local newspapers on 1 December 2011 with registrations open for two months, in recognition of the holiday period. The Converge Report outlines the various community meetings and exchanges with individuals concerned with gathering information and assessing cultural significance. Certain particulars of field surveys are also described, including that the field team, among others, included “three to four Traditional Custodian representatives,” nominated as J Speeding, M Ryan (second respondent), L Robinson and J Roberts.

48. During the course of the survey over a study area wider than the DA site, undertaken between 20 and 22 February 2012, four Aboriginal sites, each indicated to be of high Aboriginal cultural significance, were located (Converge report Table 9): a water spring site identified as an increase site (Djurbihl) (NLP1-01), a carved/marked tree (NLP1-02), a possible burial location (NLP1-03) and a further water spring site also identified as a “women’s site associated with birthing practice“ (NLP1-04) (Converge report p 7). Sites NLP1-01, NLP1-02 and NLP1-03 are all within the confines of a disused quarry and the now E2 Environmental Conservation zone, and protected. The site for NLP1-04, as identified in the Converge report, is located to the west, in the Booerie Creek area, and not within the DA area environs.

49. It was acknowledged that ground integrity and surface visibility were “poor to fair” which limited capacities to locate items. There was an agreed need for considerable further field inspections aimed at identifying additional sites. Further field inspection and an amount of exploratory site excavation (test pit work) did eventuate.

50. A notable feature of the Converge report was the annexure of submissions from Aboriginal persons with respect to the field surveys and the draft report (Appendix G to the Converge Report - Ex 2R1 folios 119-166). These numerous pages document in a concise manner the views of various Aboriginal persons (generally including the RAPs) giving very direct feedback on stories told and direct memories with respect to the NLP and the DA site. A notable example is provided in the words of J Speeding who was among those undertaking the field surveys (Ex 2R1 folio 126):

“My response to the survey on Bahmngin Hill [NLP] was absolutely, categorically and spiritually fantastic! For me, Bahmngin Hill is all spiritually connected as one. It is respecting, caring, who I am, what I am; it is our children, our families, the land, our people, our ancestors, the livelihood of sites, my beliefs, my understanding of both the natural and spiritual world, and how I express in an unconscious way as a Widjebul man.

According to my Uncle, Bahmngin Hill was used for dances and Corroborees, and also a resting place that was central when our people would walk from place to place: Blakebrook (Ngumbandunmahn), Goolmangar, Kerrong, Boorie Creek, Modanville and Dunoon.”

51. But also outlining wider conceptualisations of, for example, the “Widgebul ways of knowing” (Ex 2R1 folio 121); and the relationship of such ways to the land and protection of cultural knowledge in the face of change. The following quote is also attributed to Mr Speeding (Ex 2R1 folio 159):

“Ways of Knowing

As a Widjebul custodian, and in my opinion, the ways of knowing for Widjebul people are conveyed by a set of Ancestral Laws that can only be described, but not fully understood outside of Widjebul belief and Dreaming*.*

Although limited, and though many Widjebul people living in contemporary times may appear to Europeans to have lost our culture, our concepts of custodianship and identity have always continued, and remain adaptive. Through differing forms of custodianship and identity our people have retained pride in our culture, recorded our languages, and will continue to seek ways to protect our cultural knowledge. Although the meaning of land may have changed in relation to differing aspects of contemporary Widjebul localities, it is still fundamental; our spirits will always continue to thrive through these differing connections with the land. The land for Widjebul peoples is our core existence, our culture, and our heritage through which custodianship and identity is expressed …”

52. It was clear even in this early stage that the second respondent was not a supporter of residential development on the NLP. The opinion was indicated that the area should be reserved as national park and declared “a sacred Aboriginal Place” (Ex 2R1 folio 162).

53. Beyond the findings during the field survey, the commentary headed “Aboriginal Cultural Heritage Background” (Section 2.2 of the Converge Report) referenced numerous other sources (including from researchers and writers and other Aboriginal persons with local knowledge) and, unsurprisingly, provided explanation and drew inferences in relation to tangible and intangible cultural heritage elements, many of which were the subject of consideration in expert material before the Court in the current proceedings. For example, the Converge Report referenced the following (p 26):

“Members of today's Aboriginal community know the cultural name of North Lismore plateau to be Banyam (also spelt Boyam, Bahmngin or Baigham). Traditional belief identifies the plateau as a "Sleeping Lizard" and is associated with the story of a great battle which took place between a goanna and a snake during the time of the Dreaming.”

54. Numerous other tangible and intangible stories relevant to the NLP are cited in this section of the Converge report. Conclusions are drawn, including that (p 32):

“Despite changing values and an interruption to many traditional Aboriginal practices and beliefs an unbroken line of knowledge and cultural connection to the plateau is evident. This indicates that the cultural significance of sites and places identified during the field survey for this assessment remain particularly strong, regardless of private property access constraints of more recent times.”

55. It is indicated that towards the completion of the Converge report, increasing interest from the community was evident, with some expressing outright objections and others feeling “a negotiated outcome was possible” (p 85). The Converge report included recommendations on further investigation of certain areas within the study area, based on a predictive model (Converge report p 92 and Figure 48). The northern portion of these areas for investigation fell within the current DA site.

56. The Remnant report cross referenced earlier consultation documented in the Converge report and that there were 13 Aboriginal parties who registered (12 individuals and one organisation). It appears that the RAPs from the Converge work from some time earlier continued to form the RAP consultation group for the Remnant work (Remnant report section 3.3). The Remnant work reported on previous test pitting (Ian Fox & Associates, Preliminary Report: Archaeological Test Pit Excavations NLP, December 2013 Ex 2R1 Tab 3) mindful of the predictive model. It is indicated that RAPs were kept informed of test pitting and representatives were invited to participate in the fieldwork. The second respondent is indicated to have participated in the field work on a number of occasions (Remnant report table 3).

57. The work is described as an “extended archaeological test-pitting program” (”thirty-nine locations … at which seventy-seven test pits were excavated”) (Remnant report p iv). Seven artefacts were recovered from six of those test pits. Only one artefact was uncovered within the confines of the DA site for these proceedings (PTP-06a – see Figure 11 of Remnant report which appears to correspond with AHIMS site 04-4-0227 (ref: ACHAR v8 p 53 which indicates the artefact is located in Precinct 5 of the project area, and Remnant report p 76), the inference is that the site was registered by Remnant Archaeology in 2015). The Remnant report saw potential to preserve this site with some layout changes, referencing the LDCP structure plan for the NLP release area (Figure 15), and made recommendations to this effect (the finding on p 43 is that PTP-06a “can be avoided”). The current DA does not seem to pick up such changes and the site now identified as 04-4-0227 is nominated among the sites for which an AHIP would be sought, for relocation and reburial (ACHAR v8 par 5.3.1).

58. The Remnant report acknowledged the “high cultural significance” of the NLP but emphasised the levels of disturbance in the site environs associated with cumulative non-Aboriginal human activity (p 35):

“The ethnographic literature and the re-telling of stories handed down by traditional Aboriginal people through the generations to their living descendants have shown North Lismore Plateau to be an important location of high cultural significance. Given the landforms present and the existence of Aboriginal sites in similar landscapes in the surrounding district it would be expected therefore that the NLP would possess a high percentage of various site types that would reflect its known cultural importance. However, landscape disturbance as the result of non-Aboriginal human activity has been the major contributor to the current surface and sub-surface spatial patterning of the archaeological assemblage across the study area on the North Lismore Plateau. The cumulative effect of non-Aboriginal activity on the plateau from cedar cutting in the earliest days, through land clearing for the dairy farms in the late 19th and early-mid 20th centuries has resulted in the disappearance of the greater part of all physical manifestations of the NLPs cultural significance…”

59. The Remnant report’s “significance assessment” referenced the four principal values from the Burra Charter and the OEH “core values” and assigned high historic, aesthetic and socio-cultural significance with direct regard to intangible cultural heritage and beliefs (see Table 13 from Remnant report below).

Remnant report “An assessment of value to Aboriginal people of the North Lismore Plateau study area” (source: Table 13 p 38)

60. In noting the level of disturbance of the NLP and the relative lack of discovered artefacts, the Remnant report (p 40) found that “all artefacts, regardless of their scientific potential, are of importance to Aboriginal People because they represent a tactile link to the pre-contact past.”

61. The Remnant report made wide-ranging findings and recommendations, including that (Remnant report pp 43-45):

“The tangible (archaeological) evidence supporting that significance has been extensively modified if not completely removed across the majority of the study area (See Fig. 10 and Table 13).

Tangible evidence, both Aboriginal and non-Aboriginal (historic) that does remain is of moderate to high value.

…

No further archaeological investigation is required across the NLP study area

…

The RAPs have requested and it is recommended here, that they be involved during the initial first disturbance earthworks and throughout the vegetation removal stage of the development. The areas to be monitored will need to be clarified in the appropriate CHMP.

Once the detailed development footprint is established, the RAPs have requested and it is recommended here, that they advise on the installation and content of interpretive signage and other measures appropriate for cultural recognition of the NLP area. Such measures may include, but are not limited to, connecting cultural stories associated with the plateau to work already undertaken in the Slaters Creek area, naming streets and locations, installation of restricted access fencing around the old quarry area, and ongoing consultation during the development of the required Cultural Heritage Management Plans (CHMPs). It is noted here that the development control plan (DCP) requires an interpretation strategy and this recommendation supports that requirement.

During initial ground surface disturbance and subsequently through any staging of development, the Proponent will remain in contact with the RAPs informing them of progress and of any developments concerning Aboriginal cultural heritage.

In the event of an unanticipated find, all works must cease in the immediate area with an appropriate buffer zone surrounding the find (as determined in the CHMP) to be put in place, and the find spot marked with high visibility barrier fencing. A representative from one or all of the RAPs is to be contacted to verify the status of the find and to determine its significance.”

62. A section of the Remnant report (Appendix J) refers to the second respondent’s submissions in response to the draft report, which again objected strongly to the findings.

Summary of understandings taken from this background to the site rezoning consultation and related findings

63. An outline of the understandings I take from the consultation, prior to the DA and essentially in the lead-up to the rezoning, is that:

64. An effective group of Aboriginal parties were registered and consulted in regard to the proposed rezoning of the NLP area.

65. This group brought important cultural knowledge to the work associated with identification and understanding of the NLP as a landscape of cultural significance, including the DA site.

66. This knowledge in relation to both tangible and intangible places and sites, along with source cross-referencing, has been documented to an extent in the papers before the Court, and particularly in the Converge report's Appendix G where extensive direct commentary from Aboriginal persons was provided.

67. Both the Remnant and Converge reports directly acknowledged the high cultural significance of the NLP to Aboriginal people (eg Remnant report Table 13).

68. A predictive model was developed in regard to potential archaeological Aboriginal occupation and potential sites. One portion, only, of the model was that (Remnant report p 20-21):

“Artefact scatters and/or campsites are most likely to occur on flat areas; within the ridgeline saddles and spurs, on benches that command a strategic view and/or are in close proximity to semi- and/or permanent water.[sic] but not along the minor tributaries that drain into these creeks. Areas of erosion, vehicular tracks and cattle pads are of particular interest.”

6. There was an indication of high historical likelihood of archaeological sites but evidence of heavy post-European settlement disturbance. Only one site had been identified within the DA area at this point.
7. There was nevertheless a sense that more work was to be done in terms of resolving details both in relation to site identification and response.

Expectations after earlier consultation including Lismore Development Control Plan provisions

64. Both tangible and intangible Aboriginal cultural heritage aspects were considerable points of attention in the rezoning decision. It is apparent that the zoning changes took some account of the tangible heritage findings with the extent of land zoned C2 (environmental conservation) in the environs of the former quarry to provide greater separation between cultural sites and residential development (Department of Planning & Environment, Planning Proposal Report Ex 17 Tab 6 p 12-13).

65. It was also evident with the making of the relevant amendment to LLEP, that further decisions relating to Aboriginal cultural heritage were to come. This is evident from LDCP content, considered below, but also from the Planning Proposal Report which indicated that even with the rezoning, further exploratory test pitting was being undertaken, to inform more detailed cultural heritage assessments and subdivision design and relevant consent conditions (Ex 17 Tab 6 p 11):

“Archaeological Exploratory Test Pitting is being undertaken to inform detailed cultural heritage assessments and reports for a future development application for subdivision and is not intended to inform the planning proposal. The detailed findings of the studies prepared to support the development application will inform subdivision design and relevant conditions of development consent.”

66. Chapter 10 of Part B of LDCP (“North Lismore Plateau Urban Release Area”) is an important policy output relating to this DA and the wider rezoned lands. Section 4 is the key point of interest in this appeal entitled “Aboriginal Cultural Heritage Identification, Assessment & Management”. It “acknowledges the high value and importance of the North Lismore Plateau to Aboriginal people and sets out a framework for conservation and on-going management of the cultural heritage values of the land” (LDCP Ch 10 p 2). The objectives of Section 4 are to ensure that:

“• the local Aboriginal community are consulted in the early planning stages for the subdivision in regards to the identification and on-going management of known sites, and potential further sites, of Aboriginal cultural heritage significance

• items and places of Aboriginal cultural heritage significance are identified, conserved and appropriately managed in perpetuity.”

67. Appendix A to LDCP Chapter 10 provides the NLP Release Structure Plan. I will come back to this, mindful of the applicant’s claims that the DA is consistent with the structure plan and the implications of this.

68. In relation to this topic of consultation adequacy, some initial points I take from LDCP Part B Chapter 4 provisions include that:

69. The LDCP objectives are concerned with delivering good levels of consultation with the local Aboriginal community at early subdivision planning stages and there is a concern about both “items” and “places” of cultural heritage significance.

70. I do not take it that the controls applying to the "first development application" under AS A1.2 necessarily limit a second development application’s consultation;

71. I also do not take it that the reference provisions in LDCP to ACHCRP (in particular, the provision at section 4.1.1 of ACHCRP relating to AHIPs and modifying requirements for associated consultation, in instances where there is approved determination of native title, as I might put it focusing on those native title holders or the associated body corporate), would in any way release an applicant from consultation relating to a development application.

72. It is appropriate to provide some explanatory background in relation to point (3) above. In 2022, the Federal Court made a native title determination in favour of the Widjabul-Wiabal People over a large area of land including the NLP, albeit that native title was determined to be extinguished over that part of the land (including the related area of the DA site) in freehold title (Second Respondent’s Closing Written Submissions par 5 and Applicant’s Closing Submissions par 79). I also understand that an associated Indigenous Land Use Agreement (ILUA) has been entered into. I understand the ILUA, ACHCRP and reg 60 of the National Parks and Wildlife Regulation 2019 (NSW) all indicate a modified process of consultation with any associated AHIP application. For example, inter alia, section 4.1.1 of ACHCRP indicates that in such instances proponents “need only consult with native title holders”, or any associated prescribed body corporate. It is my understanding that ACHCRP is concerned with Part 6 of the NPW Act and AHIPs rather than development application assessment under the EPA Act.

73. LDCP Ch10 Part B section 4.1 AS 1.2 does make reference to ACHCRP, along with two other OEH documents. I take the reference to these documents to be concerned with achieving the stated objectives of ensuring consultation with the local Aboriginal community, rather than placing limitations on it. This can be understood from the later provisions at AS1.2 indicating that:

Copies of the ACHAR are to be provided to all registered Aboriginal parties, the Ngulingah Local Aboriginal Land Council, Widjabul Wia-bal Native Title claimants and any other relevant Aboriginal stakeholder group(s).

DA consultation

71. As already indicated at [41], the second respondent contended that DA stage consultation was inadequate. Contact was made inappropriately and not to the address of the “Elders Council”. The second respondent, known as both an Elder and knowledge holder, was not contacted in the ACHAR preparation. The second respondent indicated he has been involved in consultation on every other occasion regarding the North Lismore Plateau since 2012. With some stated exceptions, the majority of the consultation relating to the DA was with (Ex 2R2 par 3.7):

“… various government bodies and the Native Title lawyers for the Widjabal Wiyabal. They do not have authority, and do not purport to have authority, to speak on behalf of the Bundjalung Elders or Traditional Owners in respect to the North Lismore Plateau.”

72. The applicant claims that, as documented in ACHAR v8, the four steps indicated in the ACHCRP were followed. It is indicated that consultation commenced in November 2022. It is indicated that reasonable sources were approached to ascertain the names of Aboriginal people who may hold cultural knowledge, and each were contacted. A newspaper notice was also arranged (ACHAR v8 p 26):

"In accordance with Step 4.1.3 of the Consultation Requirements, an advertisement was placed in the Northern Rivers Times on 17 November 2022, seeking to consult with Aboriginal persons regarding the project and who hold cultural knowledge of the region to register their interest by 24 November 2022."

73. Subsequent to the notification, three parties registered an interest. The position adopted was that this formed the new group of RAPs for the purposes of the DA stage ACHAR consultation. The RAPs referenced in ACHAR v8 are:

74. Widjabul Wia-bal People (via Native Title Services Corporation (NTSCorp))

75. Ngulingah Local Aboriginal Land Council (LALC)

76. AT Gomilaroi Cultural Consultancy.

77. It is indicated in ACHAR v8 that there was a confirmation from the native title holders that the proposed consultation was appropriate (p 28):

“Widjabul Wia-bal were notified by email via NTSCorp on the 6 February 2023 concerning the appropriate consultation process for the proposed project in reference to the native title determination on 19 December 2022. Widjabul Wia-bal confirmed by phone call that the current consultation process was appropriate (Ashley Moran 2023, personal communications, 6 February).”

75. There was some feedback on methodology provided by AT Gomilaroi Cultural Consultancy which apparently was adopted. Otherwise, it seems to be the case that feedback to Everick with respect to the material provided to the RAPs was scarce or non-existent. For example, it is indicated that there was no feedback from RAPs with respect to the draft cultural heritage assessment report (ACHAR v8 p 29). Although I note ACHAR v8’s recommendations at pp 99-100 that:

“The Widjabul Wia-bal Gurrumbil Aboriginal Corporation have requested that a Cultural Heritage monitor/s be present during ground disturbance earthworks in the areas of archaeological sensitivity identified in Figure 5-2 in order to identify and collect any Aboriginal objects that may be exposed during the works.”

76. ACHAR v8 further notes that there was additional consultation following the completion of ACHAR v6 involving Mr Muhlen-Schulte, which I consider separately later.

Findings in relation to DA-related consultation

77. Section 3 of the ACHCRP indicates the purpose of community consultation with respect to its requirements:

“For the purposes of these requirements, community consultation must be an open and honest two-way communication process between the proponent and Aboriginal people who have cultural heritage knowledge relevant to a proposed project area.”

78. The criticisms related to consultation argued by the second respondent can be considered under four themes. First, that the second respondent himself was not consulted. Second is that the newspaper advertisement was inadequate. Third is that there was no consultation with Elders generally, even after it was suggested as needed after field surveys and test excavations. Fourth is that there was inadequate consultation with others preparing affidavit evidence in support of the second respondent’s claims in these proceedings.

Consultation with the second respondent

79. The second respondent is a senior Bundjalung Elder, a Director of the Bundjalung Tribal Society, a lead applicant on the Widjabal Wiyabel Native Claim and a Traditional Owner over the North Lismore Plateau. Mindful of LDCP, if it were the second respondent’s intention to be consulted, it is unfortunate and a deficiency in terms of an exercise in consultation, that in relation to the DA, the second respondent was not consulted. With reference to LDCP, this remained part of “the early planning stages for the subdivision in regards to identification and on-going management of known sites, and potential further sites, of Aboriginal cultural heritage significance” (ACHAR v8 p 19). It is reasonably seen to be to be at odds with the relevant LDCP objective that consultation with Mr Ryan did not occur, and especially notable given his historical interest and experience in the planning process for NLP for many years. The second respondent’s credentials for bringing cultural knowledge, or to connect up to it, with respect to the DA site are high.

80. It is clear that the second respondent is not a supporter of the development of the DA site, but this is unrelated to his capacities to assist in the quest for useful understandings of Aboriginal cultural heritage significance and impact mitigation. I am aware that Mr Muhlen-Schulte did consult with the second respondent in the course of the preparation of Mr Muhlen-Schulte’s evidence in these legal proceedings, but this did not seem to have any practical effect on ACHAR v8. The applicant’s position was that it had written to the Bundjalung Tribal Society inviting registration of interest. The second respondent indicated that the person written to had passed away prior to this correspondence and that the deceased person’s address was not that of the organisation (Affidavit 5 August 2025 par 5). Mr Muhlen-Schulte indicated that this could be explained because the documentation system for the Bundjalung Tribal Society was not up to date, although for me there was insufficient probative evidence.

81. The facts behind the reason no notice was given to the Bundjalung Tribal Society are disputed. Nevertheless, the second respondent’s name would have been well known as a person of interest in this matter, and his non-inclusion was a deficiency of the consultation process, mindful of ACHCRP objectives, although not determinative of itself.

Newspaper notice

82. The second respondent raised concerns in regard to the wording of the newspaper notice (ACHAR v8 Appendix C) which was suggested to have the effect of turning off participants. I do not agree that the wording of the notice was unsatisfactory on these grounds. It is possible that the wording in the third paragraph of the notice, highlighted by second respondent, that the purpose of the consultation was “to assist the proponent in the preparation of an (AHIP)” may have had such an effect. But this part of the notice also indicates that beyond the preparation of an AHIP, the purpose of the consultation is to assist in “consideration and determination” (emphasis added) of an AHIP. I am generally satisfied that the notice indicates an appropriate openness to the consultation outcome, having regard to the full text of the third paragraph and the wording in the first paragraph of the notice and its reference to inviting registration of “Aboriginal people and Aboriginal groups who hold cultural knowledge relevant to determining the significance of Aboriginal objects and places”.

83. The concern I had was that, on the evidence (ACHAR v8 p 26), the notice relied on a seven day period for response (registrations to be received by 24 November when the advertisement was placed in the Northern Rivers Times on 17 November), rather than the minimum of 14 days as required. I note that the newspaper notice relating to the Converge report extended to some two months, albeit mindful that it straddled the holiday period (see [47]).The consequences of this consultation deficiency to the outcome of the ACHAR are not readily apparent. However, a seven day period for registration is very short and could well mean some interested Aboriginal parties missed the deadline.

No action taken when field researcher suggested need for contact with Elders

84. It seems to be undisputed that the RAP representative (and excavation assistant during the test excavation work), N King Jr, did indicate that he was not a knowledge holder with respect to questions asked of him by Everick Heritage and that he pointed to the need for contact with Elders if that information was to be gleaned. This is based on consultation log material within ACHAR v8 (p 124):

“AW – asked Noel about any cultural values associated with the area. Apart from the pathway along the ridgeline to the Goanna, Noel unaware of any specific values. Noel pointed out the ‘Old Man’ from the saddle, and the Hoop Pines on the slope south of the Project Area. This area was important for Noel’s Grandfather. Noel stated further information will need to come from the Elders and community.”

Two affidavit deponents not consulted by Mr Muhlen-Schulte

85. It is also clear that the evidence put by two of the three affidavit deponents, affirming evidence relating to aspects of especially intangible cultural significance were not followed up with personal communication by Mr Muhlen-Schulte. Mr Muhlen-Schulte indicated that he consulted with the second respondent and sought to contact the other deponents, through registered letters, to no effect. While such consultation may have had an effect on Mr Muhlen-Schulte’s evidence, I am not convinced that this is likely to have influenced the DA or the ACHAR.

Further Comment

86. I am aware that Mr Muhlen-Schulte has undertaken further consultation with local Aboriginal people in the course of the preparation of his expert evidence for these proceedings (Ex B). This work did not seem to assist the preparation of ACHAR v8 or, from my point of view, play a function in assisting in enabling the views of local Aboriginal people to feed into the consultation relating to the DA preparation. It has relevance to later aspects of the judgment.

87. As indicated in ACHCRP (sections 4.1.2 and 5.2), it is a responsibility of proponents to ascertain names from reasonable sources to invite participation and to encourage such participation of culturally experienced and appropriate Aboriginal people who hold cultural knowledge. LDCP Chapter 10 section 4.1 A1.3 might, at least, also be read as suggesting that the starting point for further consultation is “the registered stakeholder group” which commenced back in 2012 and carried through until the rezoning, often with long breaks in between.

88. Given the significance of the site, the scale of the actual subdivision and the obvious extent of cultural knowledge held by people who had not responded to the notice, and mindful of LDCP section 4.1 objectives and sections 4.1.2 and 5.2 of the ACHCRP, it would have been much more aligned with policy intent if the participation of the previous RAP group or at least the second respondent, or other knowledge holders were actively chased up for this DA’s round of consultation. The limited feedback of the local Aboriginal community has, I believe, had a significant effect of the applicant’s capacities to respond convincingly to the DA site’s Aboriginal cultural heritage significance and the required impact response.

Aboriginal cultural heritage significance of the subject land within the wider landscape

Applicant’s ACHAR

89. In its second contention, the second respondent claims that the ACHAR is flawed by its failure to properly assess the significance of the subject land that will be impacted by the development. There are further claims of failings in the ACHAR in the second respondent’s first contention.

90. Section 8 of the ACHAR is concerned with cultural values assessment, with section 8.1 focused on cultural landscapes and seemingly establishing some guiding principles for assessment. Dr Riebe saw this section as giving reference to “principles relating to issues of cultural value and significance and the relevance of intangible or non-tangible material cultural values” (Ex 2R4 pp 1-2). Dr Riebe refers to this section of the ACHAR, which is put in abstract terms rather than in relationship to the DA site, and its reference to (Ex 2R4 p 2):

“The recognition of the 'long and complex relationship with that land'

A reference to the 'unity [with the] natural and spiritual environment'

The assertion that 'Aboriginal group or groups have participated in the identification of the place and its significance'

A recognition of the 'inseparability of cultural and natural values'

An acknowledgement that 'Tangible evidence may be largely absent' and the 'attributes primarily in oral and spiritual traditions and in activities related to the place.'"

91. I note that it is evident that the ACHAR v8 does gives apparent recognition of the NLP and DA site area’s cultural significance. For example, it indicates that (ACHAR v8 p iv):

“The ridgeline of the plateau has been identified as an important pathway through the landscape. The NLP is known as Banyam/Baigham (Sleeping Goanna) and is a crucial element of intangible local Aboriginal cultural heritage. Clearly visible within the landscape, the NLP would have served not only as a geographic marker and travel route but also as a key feature in Aboriginal dreaming stories, tying local people to their land.”

92. And (pp 82-83):

“The Project Area forms part of the NLP, which is considered to be a highly culturally significant landscape by the local Bundjalung community. No specific historic values have been identified for the Project Area, although the ridgeline from north to south is a known pathway leading to places of Aboriginal significance such as Banyam/Baigham, Banyam/Baigham Wandarahn, and Djurebil/Djurbuhl.”

93. However, there is a lack of coherence between such commentary and ACHAR v8’s findings.

94. It is notable that 21 subsurface stone artefacts were identified within the relatively small surface area of 11m2 (Everick Technical Report p 4) of test excavations undertaken in association with (ultimately) ACHAR v8. These artefacts were grouped into eight new sites (ACHAR v8 p v). This brought a total of nine identified Aboriginal sites located in various areas of the proposed land subdivision. As far as the associated relics are concerned, the finding is that these would “suffer a total loss of value due to the Project” (p 84). The default position of ACHAR v8 seems to be that the subdivision pattern is essentially fixed (excluding the recommendation on retention of a scarred tree). There is a recommendation for earthworks monitoring in four defined areas of archaeological sensitivity (ACHAR v8 Figure 5-2) and reference to the ACHMP which is indicated to provide for protection and management strategies.

95. Beyond the scarred tree, there is no apparent inquiry as to whether harm may be mitigated at any identified sites, or nominated sensitive areas, through amendments to the proposed subdivision, as had been apparent in earlier iterations of the ACHAR (see [57]).

96. In the Remnant report (pp 38-40), each of the then identified sites were considered with respect to each of the four Burra Charter values (briefly here: historic, aesthetic, socio-cultural and scientific) along with an additional four criteria sourcing the OEH Guide, explained further below. It happened that with respect to then site PTP-06a_1, a moderate to high socio-cultural significance was determined, although a summary conclusion of low significance was found when all eight criteria were seemingly summed up. The Remnant report (p 42) then outlined OEH policy which was said to aim to ensure "impacts to Aboriginal objects and places are avoided or reduced and that where possible Aboriginal sites should be conserved." The report then suggested it would not be difficult to incorporate then item PTP-06a by extension of a park or conservation zone, and made recommendations to this effect.

97. It is fair to understand that the OEH Guide’s provisions for the identification and assessment of cultural significance focus on the Burra Charter values (pp 7-10). At the conclusion of this section, it is indicated that “in applying these criteria, consideration should also be given to (DSEWPC) [Department of Sustainability, Environment, Water, Populations and Communities]” criteria relating to: research potential, representativeness, rarity, and education potential.

98. ACHAR v8 only provided an assessment of individual Aboriginal sites under the DSEWPC criteria (p 78). The assessment of significance under the Burra Charter values for individual sites does not appear in the relevant section of the ACHAR and instead a more generalised commentary is provided. I also accept Dr Riebe’s evidence that the RMS report also did not cover this (Ex 2R3 pars 148-149). This was a shortcoming of the ACHAR approach in my view as it tends to highlight scientific related significance, over cultural significance which I believe should be a key point of attention in this ACHAR. This approach to significance evaluation also seemed a missed opportunity to respond to the principles suggested in section 8.1 (see [90]) and made it more difficult to understand the effect of the proposed development on the heritage significance of the item or area as a consequence of artefact damage or removal. In accordance with LDCP, and as seemed to have occurred with previous ACHAR work, a more direct understanding of effect on cultural significance (associated with “known sites and potential further sites”), would have been assisted were there more pro-active consultation with the local Aboriginal community.

99. Otherwise, the emphasis in the ACHAR is on direct visual impacts, and particularly from identified cultural heritage sites “Jumping Ant Hill, Binyam/Baigham, Banyam/Baigham Wandarahn (Showgrounds Bora) and the Djurebil/Djurbuhl site” (ACHAR v8 p 85). There is a recognition of the proposal’s visual impacts “heightening the sense of historic modification of the surrounding environment and dispossession of Aboriginal persons of their land.” This visual impact is found to be “low” because these key sites are “generally well setback” from the DA site and areas of remnant forest will act as a visual buffer from “some vantage points”; and that there has already been land clearing, otherwise. In the circumstances, this provides a very narrow assessment of cultural significance in relation to this particular site.

Findings on ACHAR v8

100. I did not find ACHAR v8 as adequately responding to the fact of the uncovering of artefacts on the site. I generally accept the finding in the Remnant report (p 40) that “all artefacts, regardless of their scientific potential, are of importance to Aboriginal People because they represent a tactile link to the pre-contact past.” The importance of the artefacts to Aboriginal people is not adequately addressed.

101. I also had understood Aboriginal knowledge fed into the project over time (including historical consultation, the views of Mr Speeding at [50] as just one example) and affidavit deponents in these proceedings, as raising concerns relating to serious and complex inter-relational factors concerning traditional connection with the site and NLP over time which had considerably more to them than visual impact. Section 8 of the ACHAR had already established parameters for cultural values assessment including considerations of cultural landscapes. The task was to assess the impact of the heritage significance of the site as a consequence of the proposed development, in toto, rather than focusing moreso on scientific and visual impacts.

102. As raised by the applicant in closing submissions, I am aware for example of the Chief Judge’s findings in Goldcoral Pty Ltd v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral). In the particulars of that case, it was found that subdivision of that land for residential purposes was “not intrinsically incompatible with the cultural landscape” (at [145]). An inadequate assessment of that question of the cultural landscape was apparent from ACHAR v8. This aspect of the ACHAR presents as an incomplete assessment of potential impacts of the proposed development, particularly significant given the site environs' earlier identification as of high cultural significance to the local Bundjalung community.

103. I can also respond more widely to Goldcoral, the findings of which were suggested to be supportive of the applicant’s case, as follows. In these findings, three impacts on Aboriginal cultural values were considered: (1) the cultural landscape of the “Dirruwung (Goanna) Story”, (2) a midden located on the site, and (3) a burial site in the vicinity of the hill in the west of the land.

104. In relation to the first impact, it is indicated that this concern (Goldcoral at [143]):

“…is not specific to the land proposed to be developed by Goldcoral – it applies to the whole of the Evans River catchment, from the headwaters to the sea. And it is not specific to the development proposed by Goldcoral – any development of land in the broad cultural landscape could have the effect feared.”

105. In contrast, the DA site does have particular, rather than general, locational significance. It sits on the NLP with both tangible evidence (uncovered artefacts) and intangible evidence (from knowledge holders), suggesting its significant place on a network of cultural pathways interrelating with other Aboriginal places and sites. While subdivision for residential purposes may again not here be “intrinsically incompatible with the cultural landscape” (Goldcoral at [145]), consistent with other findings, the particulars of any development need to be responsive to an understanding of the cultural significance of the site in this landscape. There is a question about the sufficiency of the response in the case of the DA before me.

106. In relation to the second and third impacts, the Goldcoral proposal was amended to avoid the proposed midden site and the judgment found the proposal would either have no impact on any burial site or that the site had already been destroyed. In contrast, in this subdivision proposal, all but one of the identified sites would not be avoided.

Affidavit evidence from Mr Laurie, Mr Walker and the second respondent

107. The affidavit evidence of the three knowledge holders (received in written form in each instance with Mr Walker’s evidence also heard through a sound recording) was confirmatory of the earlier research findings explaining the part tangible, part intangible Aboriginal cultural heritage significance of the site, and the concerns about impact. The deponents all indicated that expressed knowledge had been passed down over time by their Elders.

108. There were many other important references to matters of intangible significance, which I would struggle to synthesise (mindful of Mr Speeding’s comments on “ways of knowing” at [51]), but references are made to the area as “the Land of the old sleeping hoop pines” (Ex 2R1, Tab 31 par 4), and “the landscape is part of the Bumidj (Echidna dreaming) and is an increase site for the Goanna the sacred totem of the Bundjalung nation” (Ex 2R1, Tab 28 par 6), along with the site’s proximity to Ngamal, the sleeping goanna. Mr Laurie made direct reference to the proposed development area of the plateau as “the place where the Wiyebal own the strong storyline called the Buninj Mulligaa (the place of the echidna)” (Ex 2R1, Tab 29 par 10). The second respondent indicates that the NLP is recognised by all the Elders and Bundjalung knowledge holders as one of the most significant and sacred Aboriginal places within the Bundjalung nation.

109. In more tangible terms, the NLP was part of a "journey pathline for all tribes" (Ex 2R1, Tab 31 par 17). The DA site and the NLP environs were seen as a significant part of a pathway configuration providing for many different purposeful journeys. I note the DA site’s spatial significance (“main connection”) includes its relationship to the Lismore Showground which was a “a very big meeting place, bringing tribes from all over the country” (Ex 2R1, Tab 29 par 8-9):

“It was like our 'parliament house' where the protocols and lores connected to the surrounding area especially the 'Ngamaal Ngurram Maaleela' were handed down”.

110. The second respondent also indicated that “[t]he Plateau is a link to the Bora rings within the Lismore Showground” (Ex 2R1, Tab 28 par 8).

111. As introduced in evidence, various other sites and places arise as having connection to the NLP, including Cubawee, Tucki-Tucki and many more, including Wollumbin. I do not need to go into them individually here but these sites are argued as part of the cultural landscape and pathways connected to the NLP and the DA site.

112. The deponents saw these areas as “sacred”. The indication was that the development could bring a “desecration” in these terms. There was potential for loss of cultural significance which would mean “[o]ur descendants would be denied the cultural knowledge which is their birthright” (Ex 2R1, Tab 29 par 16).

Expert evidence

113. Having given detailed consideration to the expert evidence, there seems to be two particular points which warrant attention here.

Aboriginal occupation of the DA site area

114. Mr Muhlen-Schulte argued that previous archaeological work had demonstrated little evidence of Aboriginal occupation, with only scant discovery of artefacts from subsurface testing (Ex B exec sum):

“The scientific investigation of the project area over an extended period (twelve years) resulted in the identification of ten (10) Aboriginal Places within the project area. These places represented a few minor occupations associated with knapping/use of flaked stone. The only other cultural marker within the project area is a scarred tree, presumably for the procurement of one coolamon.”

115. I found this argument unpersuasive. Other evidence strongly indicates the high likelihood of additional sites, and that the lack of findings was a result of subsequent site disturbance. For example, in the Remnant report it was indicated (p 40):

“From a scientific/archaeological perspective the NLP study area is of moderate-high importance. When assessing the disturbance that has occurred on the plateau since the arrival of non-Aboriginal people … it becomes clear the reduced scientific significance is more likely to be related to landscape modification and the dislocation/destruction of Aboriginal sites rather than there not having been any sites in the area to begin with.”

116. The additional test excavation that has occurred subsequently, and only of relatively small dimensions if the scale of the site is considered, has revealed significant additional sites. To the extent that the artefacts which were uncovered were principally associated with “knapping/use of flaked stone”, seems entirely consistent with the evidence from knowledge holders that this portion of the NLP was part of a pathway to other places, perhaps especially the “big meeting place” at now, and nearby, Lismore Showground.

DA site significance when considering evidentiary references to Aboriginal places and sites wider afield

117. Mr Muhlen-Schulte acknowledged that the “informants” to his research did show a connection and attachment with the NLP but noted in the executive summary to Ex B his findings that:

“Whilst informants discussed ‘places’ within the North Lismore Plateau which were evidence of occupation and their importance to them, these ‘places’ are not within the project area.”

118. And:

“In interviews with informants, I was not able to document any details which could enable the reporting and recording of a place which held ‘intangible’ significance for Bandjalang (or Widjabul Wia-bal) people within the project area.”

119. Mr Muhlen-Schulte also gave evidence working through each of the many references to other Aboriginal places (tangible and intangible) and suggested evidence of why they are not within the DA site. While attempts were made, Mr Muhlen-Schulte found himself unable to contact Mr Laurie or Mr Walker who gave evidence relating to the significance of the site itself. Mr Muhlen-Schulte did not seem to accept the second respondent’s opinion on the significance of the DA site itself.

120. While I note Mr Muhlen-Schulte’s findings (including that relating to pathways and songlines in Section 4 of Tab 1 to Ex L), I prefer the direct evidence from Aboriginal persons in previous ACHARs (especially Appendix G in Converge report) and the deponents’ affidavit evidence, that the NLP, and including the DA site, is on the direct pathway between the rest of the NLP and “the big meeting place” (also called by Mr Laurie “like our parliament house”) and the “Bora rings” in the now Lismore showground environs; and moreover is culturally significant as part of what has been understood as a connecting network to many Aboriginal places.

121. I am aware that the Burra Charter - Indigenous Cultural Heritage Practice Note does suggest that practitioners seek some precision in relation to the location and extent of places of cultural significance, which Mr Muhlen-Schulte sought to do. But under the same practice note, there should also be a seeking out of the “links or relationships between places” (p 4). Mr Muhlen-Schulte focuses directly on a recorded pathway, which is physically identified near the far north-west corner of the site (Ex B exec sum):

“The ‘pathway’ between recorded places (04-4-0110, Dunoon Rd Reserve) in the north to Cubawee (04-4- 0127) in the south, followed Booerie Creek (see Figure 13), on the western side of the project area. This pathway only abuts the project area in the northwest corner. The pathway was described by two informants during interviews. It is suggested that the pathway followed Booerie Creek to the flat flood plains of the Richmond River.”

122. Mr Muhlen-Schulte’s work missed what for me was an important relational interpretation of the various places and beliefs with respect to the NLP (including the DA site) as part of a connecting up of places of significance. It was also the knowing and sharing of this story as a belief, not just the physical presence, or otherwise, of evidence of its particulars, that was culturally significant. I accept the following evidence of Dr Riebe (Ex 2R3 par 28):

“The concept of 'Landscape' is closely associated with the concept of 'Cultural Routes', which are pathways linking places of significance creating the landscape configuration. In the [Muhlen-Schulte] Report neither wider Landscape relationships nor Cultural Routes are brought to bear in assessing potential significance in relation to this area. The Burra Charter states: 'When identifying a cultural route it is important to consider and document its natural environment and landscape setting and the ways these attributes give shape and character to the route’'(reference cited)”.

Findings relating to Aboriginal heritage significance of the subject land within the wider landscape

123. As indicated previously, development application evaluation, such as required of me here, involves assessment of impacts. The assessment of impact requires an understanding of the significance of that upon which impact may be imparted. Mr Muhlen-Schulte directly indicates that, while he could if so instructed, he did not prepare an assessment of significance for the Aboriginal “places” considered in his report. Dr Riebe saw this as a significant problem:

“This is fundamental. Having regard to the Burra Charter and cl 5.10 of the LEP, the core issue of whether there is significance that will be impacted by the Project needs to be fully assessed in the Muhlen-Schulte Report prior to the determination of whether or not to grant development consent.”

124. However, I can understand Mr Muhlen-Schulte’s assessment of significance in light of his indication of support for the findings of the ACHAR (Ex B par 6.4.2):

“I do not disagree with the assessment, nor the recommendations made [in the ACHAR] but rather note, I have some doubt as to the scarring of the tree (04-4-320) being cultural …”.

125. These comments related to ACHAR v6. In Ex L, Mr Muhlen-Schulte made further comments including in relation to the final ACHAR v8, however nothing new of significance seems to have arisen.

126. In Section 9 of Ex B, Mr Muhlen-Schulte directly considers the contentions raised in Ex 2R2 warranting refusal of the DA. As indicated above, the second respondent’s first contention is that the proposal would cause irreparable and irreversible harm to the Aboriginal heritage significance of the subject land within the wider landscape. In this evidence, Mr Muhlen-Schulte indicates that he has considered the significance of the project area to “First Nations People of the North Lismore Plateau and the Widjabul Wia-bal”. Mr Muhlen-Schulte first focuses on the project area, and indicates that:

“As to the ‘Aboriginal heritage significance’ of the project area and the impact of the proposed ‘Allura Parklands’ project, I note the extensive earthworks which will change the topography and feel of the landscape to allow the development of homes and the associated infrastructure”.

127. The response to the first contention’s reference to, as put by Mr Muhlen-Schulte, “impact within a broader landscape” includes:

“… while commensurate with First Peoples notion of land tenure, is not commensurate with contemporary land tenure systems.”

128. I found both of these points other than illuminating as to how I might understand Aboriginal cultural heritage significance or the proposal’s potential impact upon it. However, part of the work in judgments like this is the drawing of inferences from evidence and it seemed to me that Mr Muhlen-Schulte found himself generally not sharing the view of the Aboriginal cultural significance of the DA site. It would follow, in this construction, that any impacts on cultural significance were acceptable.

129. If this is an accurate understanding of Mr Muhlen-Schulte’s expert evidence, I do not find that it has been effectively supported by other evidence in these proceedings and generally reject it. There are three main points to make broadly on this. First, Mr Muhlen-Schulte did not seem to acknowledge that there has been some considerable occupation of the DA site (evident from test excavation and reasonable extrapolative predictive assessment): [114]-[115]. For me, the artefact evidence suggesting passing occupation is consistent with the notion of the DA site as including areas transited by Aboriginal persons on the way to other places. This point is working in the tangible domain.

130. Second, I disagreed with Mr Muhlen-Schulte’s approach to the consideration of the intangible cultural heritage raised in the evidence (affidavit evidence and evidence from Aboriginal persons directly provided in previous ACHARs). The approach seeking to rely on physical evidence and to validate or reject memories and stories through over-precise geographical cross-referencing seemed to me to downplay the essence of the evidence from Aboriginal persons as an honest explanation of beliefs.

131. Third, I found there to be a coherence to the evidence of the affidavit deponents, often aligning with previous evidence in earlier ACHAR work, of the Aboriginal cultural heritage significance of the site. See for example (ACHAR v8 p 79) in relation to ”identified Aboriginal cultural heritage values”, “identified through background research and community consultation”:

“Within the Project Area cultural values have been largely connected to the NLP as a pathway following the higher ridgelines while traversing the landscape. There are panoramic views across the landscape towards sites of significance and land markers. Resources in the region can be easily observed with the higher elevations with well drained soils being preferred areas of occupation. These pathways provide strong connections between the regional groups and of areas of cultural significance and sites associated with Dreaming stories and song lines.”

132. Overall, the applicant has failed to provide a satisfactory assessment of Aboriginal cultural heritage significance of the subject land within the wider landscape. The implications of this are considered contextually in the next section.

Public interest

Ecologically sustainable development

133. The second respondent’s contentions relating to public interest were focused on ecologically sustainable development (ESD) principles, which are points of reference in the OEH Guide. As indicated in Ex 2R2, the relevant definition of ESD is that at s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). It was noted that the OEH Guide (p 12) specifies that ESD principles must be considered when assessing harm in relation to Aboriginal objects and places. It highlighted the 'precautionary principle' and 'inter-generational equity'. In brief, the precautionary principle is that:

“if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”.

134. The inter-generational equity principle is that:

“the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.”

135. The OEH guide indicates that as a minimum, the consideration of ESD principles should result in:

“• An understanding of the cumulative impact of the proposal; for example, the nature and extent of the Aboriginal object or place proposed to be harmed in relation to other identified sites in the region

• ascertaining how, wherever practicable, harm to significant Aboriginal object(s) or place(s) can be avoided (see stage 2.6)

• establishing and assessing the risks and consequences of various options

• assessing the costs and benefits of various options to future generations

• suggesting actions (either on or off site) which are proposed to help to promote intergenerational equity.”

136. It is a matter of fact that ACHAR v8 did give consideration to ESD principles and referenced the five points immediately above as raised in the OEH Guide. It is indicated that the precautionary principle is addressed essentially as follows (p 92):

“The combination of background research and test excavation results have been used to assess the probable nature of the archaeological nature of the Project Area (Wilkinson and Giang 2023). Monitoring of ground disturbance works in the areas of archaeological sensitivity (Figure 5-2) has been recommended as a condition of an AHIP for proposed works as mitigation against loss of scientific and cultural information.”

137. It is indicated that the intergenerational equity principle is addressed essentially as follows (p 92):

“The principle of intergenerational equity has been addressed through the assessments undertaken by Wilkinson and Giang (2023); Ainsworth (2014); Ainsworth Heritage (2018); Habgood (2012); Fox (2013), and this ACHAR. These assessments for the Project Area ensure that information regarding the NLP is available for future generations.”

138. It is also indicated with respect to the improved valuation, pricing and incentive principle that (p 93):

“Allura Parklands [known as the developer] acknowledge the importance of the Project Area for its cultural values to the Aboriginal people and wish to work with the community on recognition of these cultural values through the development design options.”

139. This section of ACHAR v8 also includes a summary statement on ESD principles, acknowledging the high likelihood of impact, but that positive outcomes would be forthcoming with the avoidance of the scarred tree and “the preferred option [resulting] in the retention of pockets of biodiversity significance within the Project Area”, and further that (pp 93-94):

“The impact from construction of the allotments and infrastructure will result in greater than fifty per cent impact to any original land surfaces within the Project Area. The likely impact on Aboriginal objects or places is high. Therefore, there will be cumulative impacts on Aboriginal objects or places in the region, however, these may be offset by incorporating the intangible cultural heritage values within the project design, such as pathways, or roads signifying the traditional Aboriginal path through the landscape.

An Aboriginal Heritage Interpretation Strategy will be developed for the Project Area in consultation and participation with the Widjabul Wia-bal Gurrumbil Aboriginal Corporation. This will promote intergenerational equity.”

140. I will come back to the topic of ESD response in my conclusions.

Key positive public interest factors relating to the project

141. The site has been the subject of a site specific rezoning. This has occurred after long term planning for the site environs as a residential release area since at least 1992 when it was zoned 1(d), an urban investigation zone. In 2012, the Lismore Growth Management Strategy indicated the site for residential purposes. The steps towards rezoning were initiated and extensive prior consultation, including with the local Aboriginal community, has occurred in the lead up to the making of the statutory planning amendments. This decision on zoning change is an important public policy decision relating to this site. In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]-[118], McClellan CJ found:

“117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Lanham’s Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jannsen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

142. I have considered the zone objectives and while it is not mandatory that this be the case, the proposed residential aspects of the development seem entirely consistent with them. Of more recent relevance, particularly since the devastating floods enveloping the Lismore CBD and wider areas in February and March 2022, the development of this residential release area, in relative proximity to the CBD, has particular spatial strategic significance. As put in the Council assessment report to the regional panel of 28 November 2022 (Ex 4 Tab 2 p 4):

“NLP’s location means it is of strategic importance to the rejuvenation of Lismore providing (predominately) flood free elevated residential land. NLP land release aims to balance Lismore’s growth, which has spread consistently east towards Ballina and the coast and make better use of infrastructure such as schools and open space that exist to the north and west of the CBD.”

143. The fact of the site’s proximity to Lismore CBD and potential relationship to its rejuvenation after the floods is a further positive factor. There is then also the general benefit of additional housing supply in the wider area.

144. The proposal also brings positive environmental credentials, some of which do relate to Aboriginal cultural heritage. The vegetation management plan (VMP) provides for conservation of threatened endemic species and a progressive rehabilitation of endemic vegetation into the C2 and C3 zoned lands. This proposed regeneration of native flora and fauna habitat would seem to be of significance to Aboriginal people. There is considerable mention of hoop pine in the VMP, while there would be some removal of these trees, the VMP also provides for the regeneration in certain of the management zones. Reference is made to measures to conserve the habitat and movement corridors for echidnas, with the VMP indicating knowledge of the recognition of the NLP as an “increase site” (Ex A Tab 20 p 8). I note here that the VMP does not suggest local Aboriginal people have been involved in the development of the VMP to date in particular. But it is not difficult to imagine cultural knowledge from local people and contemporary scientific knowledge blending together for serious and intergenerational beneficial outcomes on this front.

145. There would be greater physical access available to the NLP for all, including Aboriginal people, than currently exists through the proposed new road system, pathways and parks. This is documented in the Landscape Design Package (Ex A Tab 9). Of note in this package is a drawing named: Aboriginal Cultural Heritage, which provides a brief statement on cultural significance referencing ACHAR v6. I note this plan makes clear that it is an “interpretation of relevant heritage reporting only and does not represent the views or beliefs of the local aboriginal community”, and that “consultation with the local aboriginal community must be undertaken for the detailed design phase of the project”. I refer again to my comment in the last sentence at [144]. However, a concern for me here is that the grant of subdivision consent would place limitations on this input into detailed design, perhaps for important matters such as the location of pathways which seek to relate to cultural knowledge (I refer here to the first page of the quote from ACHAR v8 at [139]).

146. The applicant argues that LDCP provisions also solidly support the proposal. Not only that it is consistent with the NLP structure plan but, as I infer, that key cultural impact assessment decisions have already been made, given the fact of the zoning and LDCP. While the applicant also argues other points, including the qualities of ACHAR v8 with which I have some disagreement, it is at least part of the applicant’s argument that key issues of substance in relation to Aboriginal cultural heritage impact were known with the rezoning and making of LDCP. In closing submissions and after citing the Converge report, it is suggested that (Tcpt, 9 October 2025, p 333(22)):

“It must follow that the impacts are known because that is where the DCP says the impact on Aboriginal cultural heritage will be respected by complying with the structure plan.”

Concerns and impacts

147. The key concern of the proposal is its potential impact on the Aboriginal cultural heritage significance of the site in its wider cultural landscape. As put in the Australia ICOMOS Statement of Indigenous Cultural Heritage (2001), and elsewhere, “the Indigenous cultural heritage significance of places can only be determined by the Indigenous communities themselves.” Based on evidence from “Indigenous communities”, I accept that the NLP is one of the most culturally significant places within the Bundjalung nation. The site, which sits on the NLP, is also at almost an interface with modern Lismore, but also within the environs of native title lands. This DA is also large in relative scale, covering the greater part of the NLP residential release.

148. I agree that there is a public policy decision in place that will ensure that the site can be developed for residential purposes along with various environmental improvements. This is very significant. But this and associated policy decisions are also seeking that development minimise harm to Aboriginal cultural heritage significance, as the roll out of subdivision occurs.

149. I am not convinced of the applicant’s view that LDCP provisions solidly support the proposal. It seems to me that there has been an understanding that significant aspects of Aboriginal cultural heritage significance, impact and its mitigation remained to be resolved with the early development application stages. The name of section 4.1 LDCP Part B Ch 10 section 4.1 indicates this directly (“Aboriginal Cultural Heritage Identification, Assessment & Management”). Then the objectives of LDCP Part B Ch 10 section 4.1 also seek to ensure further consultation with the local Aboriginal community in early planning stages for subdivision in regard to identification and on-going management of known and potential further sites of Aboriginal cultural heritage significance. The second of the two objectives also raises the issue of Aboriginal places (ie beyond individual sites) and their identification, conservation and appropriate management.

150. Performance criterion P1, of the same section of LDCP, says that subdivision applications should be in accordance with the structure plan, but also, importantly, with an approved ACHMP. This ACHMP would need to be approved by Council as the consent authority (LDCP Ch 10 Part B section 4.1 A1.3). While not jurisdictional in any sense, as a DCP provision, any such approval in this instance would be understood to be in the hands of the Court. While I note the content of the ACHMP including the various interpretive elements which are referenced along with nominated further consultation, I would not be in a position to approve this ACHMP at this time as I do not have a sense it has brought, at least, accounting for the views of the local Aboriginal community.

151. The OEH guide also highlights the requirement for attention to avoiding harm and that consideration be given to whether or not the proposal can be redesigned to avoid the expected harm. After all options are exhausted (p 13):

“… the next step is to develop management strategies to minimise the harm that was identified at stage 2.5. This must be done in consultation with Aboriginal people.

The type of management strategies proposed must be appropriate to the significance of Aboriginal heritage values, Aboriginal objects and/or Aboriginal places…”

Conclusion

152. There are favourable aspects to the DA. Most importantly, subdivision of the site for residential purposes has an important spatially strategic role to play in response to the 2022 floods [142]. Much good work, also, has been put into the volumes of supportive documentation, which go to a high level of detail, and now respond to all of the contentions raised by Council. The second respondent, in closing submissions, suggested this decision has some alignment with the position put by the Chief Judge in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 8 ARLR 127; [2013] NSWLEC 48 (Bulga) at [27]. I agree with this view. This is a matter where the question before the Court is which is the “preferable decision”, in an instance where there is a requirement for the balancing of considerations which do not have a great deal of alignment (Bulga [42]).

153. As indicated in Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] (Preston CJ), an applicant in Class 1 matters always bears a persuasive burden of proof:

“… the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

154. On the evidence before me, I would understand the potential impact potential of the proposal, on Aboriginal cultural heritage, to be high. That is, with residential development of this land, so obvious on the NLP, there is potential for this to detract significantly from certain of the cultural values and meanings that current Bundjalung people recognise in this place. There is also serious potential associative lost opportunity for future generations. However, there is also evidence of cultural resilience in the face of contemporary change. This is something I take from the quote from Mr Speeding at [51] in relation to “ways of knowing”. It is suggested that “[Widjebul] concepts of custodianship and identity have always continued, and remain adaptive”, and (Ex 2R1 folio 159):

… Although the meaning of land may have changed in relation to differing aspects of contemporary Widjebul localities, it is still fundamental; our spirits will always continue to thrive through these differing connections with the land. The land for Widjebul peoples is our core existence, our culture, and our heritage through which custodianship and identity is expressed

155. This resilience is also evident from the fact of involvement and the particulars of input from the local Aboriginal community into the planning for the NLP for years, across the path of the Converge and Remnant reports and including the affidavit evidence in these proceeding. This has occurred almost in spite of the evident modern development in parts of the broader site environs.

156. There remains potential for impacts to be moderated and beneficial opportunities taken up, post development consent. Section 4.1 of Part B of Chapter 10 of LDCP is certainly aspiring to such an outcome.

157. However, on all of the material before me, I am not persuaded that this development application warrants the grant of consent. Nor do I see that in this instance modifications or conditions of consent are able to be imposed by the Court which address my concerns. The essential reasons for these findings are as follows:

158. Neither the DA material (in particular ACHAR v8 (see [100]-[101])), nor the evidence of Mr Muhlen-Schulte (see [128]-[132]), provide a satisfactory assessment of Aboriginal cultural heritage significance, or proposal impact, mindful of the Burra Charter or the OEH guide, with respect to either tangible or intangible considerations. As put in the Burra Charter (Article 6): “Understanding cultural significance comes first …”. This provides a seriously deficient base for effective post-consent processes, and heightens the likelihood of unreasonable adverse impact. In the circumstances of these deficient foundations, it would be unreasonable to rely on the post consent AHIP approval process to address these development application stage concerns.

159. As the “likely impacts of the development” (s 4.15(1)(b) of the EPA Act) were not adequately understood, the evaluation of impact and its mitigation or management has not been adequately addressed in the DA material. On this point, I am mindful of the ACHAR v8, ACHMP and Mr Muhlen-Schulte’s work.

160. With a mind to LDCP Part B Chapter 10 section 4.1 P1, I would not wish to approve the proposed ACHMP. I accept this (approval of ACHMP) as, in this particular instance, a reasonable DA-level decision requirement, given the objectives of this section of LDCP and in the circumstances of this case. I have reviewed the proposed ACHMP which naturally relies on ACHAR (while not of concern, it nominates v6 rather than v8). I have also reviewed ACHAR v6 and would make similar findings with respect to its inadequate assessment of cultural heritage impact and mitigation. I am dissatisfied with the baseline position adopted in the ACHMP. Also relevant is that the ACHMP does not include an “interpretation strategy” (instead it points to intentions) which, in this instance, I would reasonably see as an important DA inclusion requirement mindful of LDCP Part B Chapter 10 section 4.1 A1.4.

161. The consultation aspects of the project contributed to the inadequacies of the ACHAR. An intended outcome of the ACHCRP is that: “decision making [is] informed by Aboriginal people who hold cultural knowledge relevant to determining the cultural significance of objects and/or places regarding the conservation and management of Aboriginal objects and/or places”. While this outcome was evident in earlier consultation (eg reference Appendix G to the Converge Report where intangible items of beliefs, connection and cultural knowledge were, for me, well documented), it has unfortunately fallen away markedly with this DA. There is evidence of the applicant attempting to meet minimum consultation standards. Although, the evidence also suggests an inadequacy in the newspaper notice, and that a trigger point directly suggesting the need for participation from Elders was not acted upon (see [84]). The consultation section of the ACHAR (pp 26-29), and consultation log indicates little evidence at all of feedback into the process or content, including no feedback with respect to Stage 3 (titled “Gathering information about cultural significance”) (ACHAR v8 p 121).

162. There are commitments to further consultation in association with the AHIP process. Consultation can and would be expected to feed into the VMP and the Landscape Design Package (see [143] and [144]). There is real potential for effective work here. But, given the sensitivities and nuances involved in regard to this important site, the deficiencies of ACHAR v8 and other baseline documentation, dissuades me from thinking positively on this consultation being effective, as things stand.

163. There is an inadequate consideration of ESD principles as raised in the OEH guide, in that in the applicant’s material there is an inadequate consideration of the avoidance of the identified sites (barring the scarred tree), or the assessment of costs and benefits of various options. Instead, an assumption seems to be in place that details of the proposed cadastral land subdivision are finalised. It is not difficult to imagine cultural knowledge from local Aboriginal people and contemporary scientific knowledge joining in constructive ways for serious and intergenerationally beneficial outcomes in relation to the VMP and other plans (eg flora and fauna pathway connection configurations and long term management planning) which might not align precisely with the (“finalised”) subdivision layout. While there is commentary that the applicant wishes to work with the community "on recognition of cultural values through the development design options", the grant of consent would lock-in to a high level of detail the DA subdivision particulars, when some variation to subdivision may better address ESD (and other) concerns. The consideration of intergenerational equity is unreasonably narrow and for example does not satisfactorily consider intangible heritage values and risk of loss of "birthright" cultural knowledge for descendants, as raised by the deponents.

164. It warrants mention that it might be that there is little interest in further participation on the part of the local Aboriginal community. This viewpoint might be based on such evidence as the response (or lack thereof) to the more recent newspaper notice, or the effects of “consultation overload”. Be that as it may. My own view is that this would be unlikely given the relative ease that Mr Multen-Schulte and Dr Reibe were able to make contact with local Aboriginal people, including knowledge holders, through active “chasing up” of people.

165. While I am aware of the importance of proposed higher ground housing nearer to Lismore CBD as a flood planning response and generally in the supply of local housing, there are related further reasons why development consent for subdivision is not the preferred decision:

(a) There are a number of alternative residential land supply areas (Lismore Growth and Realignment Strategy section 2, Ex J Tab 6); and (b) Potential would seem to remain for future subdivision of the DA site.

158. Were consent to be granted to this particular large land subdivision in accordance with the current DA, it would be to do so while incorporating baseline deficiencies in relation to Aboriginal cultural heritage significance understandings and impact response. These deficiencies bring an unacceptable risk that this subdivision would impact adversely on people of the Bundjalung nation (and in particular the Widjabul). That is, in relation to impact on the wellbeing of both current and future generations of these people and, therefore, the wider community. The benefits of the proposal are not sufficient to address such concerns and the grant of consent would not be in the wider public interest.

Orders

159. The Court orders:

160. The appeal is dismissed.

161. Development application DA5.2021.221.1 for land subdivision and associated development on 18 parcels in the Dunoon Road environs within the locality of North Lismore is refused consent.

162. The exhibits are returned with the exception of Exhibits A, 3, and 2R2, which are retained.

P Walsh

Commissioner of the Court

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