Evidence
13The Court visited the site and heard evidence from people who supported the proposal as well as from those who objected to the sculpture. The supporters considered that the sculpture is not offensive and added interest to the tourist precinct. They felt it was an appropriate expression of different cultures, which should not be censored or restricted. The requirement to remove the sculpture was seen as an infringement on civil liberties and freedom of artistic expression, and that council had no role as an arbiter of public taste or opinion.
14The objectors included representatives of the Arts Legal Centre of Australia, New South Wales National Parks Service, the Ngarinyin Aboriginal Corporation as well as local residents from both the indigenous and non-indigenous community. The key concerns of the objectors can be summarised as:
- the depiction of the Wandjina is inappropriate and offensive as they are sacred imagery for the Mowanjum Aboriginal community of the Kimberley region (comprising the Worrorra, Wunambul and Ngarinyin people);
- the depiction of Wandjina imagery incorporating mouths is particularly offensive as they are not depicted in this way;
- the applicant has not been given permission or followed correct procedures to display the Wandjina;
- the display of the Wandjina impacts on the wellbeing of both the local and Kimberley indigenous community and members of the non-indigenous community;
- the sculpture is highly visible on a main tourist route;
- the lack of consultation impacts on relationships with the indigenous community; and
- the sculpture is inappropriate in the setting of the heritage item.
15Ms D Everard, on behalf of the Arts Law Centre of Australia, stated that the proposal has a substantial adverse social impact because it is a public expression of cultural, religious and racial intolerance. Further, she did not agree that removal of the sculpture is an attack on freedom of expression, as it is appropriate to place limits, through planning decisions, to prevent adverse social impacts.
16The Court heard expert planning evidence from Mr W Langevad, for the council, and Mr I Rufus, for the applicant. Mr W Brennan provided evidence, for the council, on anthropology and the social impacts of the proposal. A Statement of Evidence from Mr D Richardson, an art expert, was tendered for the applicant, but he was not required for cross-examination. The applicant, Ms Tenodi, provided a statement that outlined the background to the application and the sculpture.
17The planners agree that the sculpture is a work or structure that requires development consent. They further agree that condition 2(a), requiring removal of the sculpture, gives effect to the partial approval under s 80(4)(b) of the EPA Act for the art gallery and sculpture garden, which excluded the existing unauthorised sandstone sculpture. The sandstone sculpture was not approved on the basis of its social impact and visual prominence.
18The planners did not specifically address the social impacts of the proposed sculpture but agreed that such impacts could result from a sculpture, but the level of impact would depend on whether the concerns of the objectors are well founded.
19The planners agree that the sculpture is visually prominent as a result of its elevated position, proximity to the street frontage, and its size. They disagree on whether the visual prominence of the sculpture is appropriate. Mr Langevad states that the sculpture is clearly visible from the public domain and that:
...The effect of the sculpture's siting is that it may be experienced by members of the community including those not making a choice to visit the site, who may find the sculpture offensive to their cultural values.
20Mr Rufus considered the sculpture was set back in a similar manner to other buildings in the street and does not impact on views to the heritage item. He stated that, if necessary, it could be partially screened, and the open landscape setting of the heritage item retained. Mr Langevad considered screening of the sculpture would be inappropriate as this would impact on the open landscape setting of the dwelling.
21The planners held different opinions about the appropriateness of condition 2(b) which requires a further development application for particular sculptures to be placed on the site. Mr Langevad states that the development application for the art gallery and the sculpture garden only identified the location of the one metre square pads upon which sculptures would be placed, and provided limited information on the form, scale and nature of the proposed sculptures. Further applications are required under s 70(1)(c) of LEP 2005 to assess the impact of each sculpture on the heritage significance of the item. Mr Langevad noted that cl 70(2) of LEP 2005 provides a mechanism whereby consent for minor works is not required.
22Mr Rufus states that information about the size (less than two metres high and about one metre square), and materials of the sculptures has been provided and is sufficient to assess the impact of the sculptures. He considers the size is less than other items in the streetscape, and the materials and scale are consistent with the streetscape and the heritage item.
23Mr Brennan provided evidence about Wandjina and its importance and role in indigenous culture. He also provided evidence on the social impacts of the sculpture which supported the evidence provided by the objectors. Mr Brennan states that:
the Wandjinas are associated with three language groups at Mowanjum, in the Kimberley Region, North Western Australia, the Worrorra, Ngarinyin and the Wunambul.
To these people the Wandjina is supreme creator, the maker of earth and all upon it. Wandjina brought law that governs marriage relationships to people and land.
The Wandjina is of utmost importance to them and Wandjina imagery is sacred it cannot be used by them if it has not been approved.
These mentioned groups as well as the local Aboriginal groups and organisations in the Blue Mountains area, including the Gundungurra people and Durug people find that the unauthorised use of the Wandjina imagery is highly offensive.
24Mr Brennan supported the reasons provided in the written objections which explain why the indigenous community are particularly offended, including:
- the applicant is not from their language group and did not obtain permission to use the imagery;
- the depiction of the Wandjina imagery incorporates mouths and the Wandjina is never depicted in this way (this depiction is particularly offensive to them);
- the applicant is using Wandjina imagery for commercial purposes and thereby abusing their indigenous culture for private gain;
- the Wandjinas are not from this country and do not appear in any rock art or mythology from this area.
- the Blue Mountains Region has its own creational ancestral beings and local Aboriginal groups find it inappropriate to bring these images and interpretation of these images to their country without permission.
25Mr Brennan stated that the prominent siting of the sculpture in public view resulted in members of the community being continually reminded that the Wandjina had been appropriated without permission and created without proper processes. He accepted that the degree of offence could be reduced if the sculpture was not in a public place, although it would not be reduced entirely as the sculpture, and the knowledge of it, would still remain.
26The evidence of Mr Richardson dealt with whether the sculpture is a work of art. However, this was not disputed. Rather, council contends that the sculpture, even if a work of art, has an unacceptable social impact.
Submissions
27Mr Bernie, for the applicant, and Mr Seton, for the council, both submit that questions of appropriation, copyright or intellectual property are not relevant to the appeals before the Court. They agree that social impacts are a relevant consideration under s 79C(1)(b) of the EPA Act which requires:
(1) In determining a de v elopment applicatio n , a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
......
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
28Mr Bernie submits that the main concern of Mr Brennan and the objectors is that the Wandjina had been used without permission or proper authorisation and that this is not a relevant consideration under s 79C. Further, he submits that the other matters raised by the objectors would not constitute a social impact.
29To support his submission, Mr Bernie referred to the decision of Lloyd J in New Century Developments v Baulkham Hills Council [2003] NSWLEC 154 where His Honour reviewed the authorities in relation to the impact of development on the amenity of a locality. At [61] to [64], Lloyd J states:
61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council , NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear ( Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]). 64 The assessment of the specific objections raised by the local residents shows that the concerns raised by them, objectively assessed, must be afforded little weight. As is shown by the consideration of the specific objections, discussed above, they appear to have little basis in fact.
30Mr Bernie submits that the fears and concerns, raised in response to the sculpture, are without rational or justified foundation, and are therefore not a social impact that would warrant the dismissal of the appeals.
31Mr Seton referred to Liu v Fairfield City Council [1996] NSWLEC 272, Perry Properties Proprietary Limited v Ashfield Council (No 2) [2001] NSWLEC 62, and Dixon & Anor v Burwood City Council [2002], NSWLEC 190. In Liu, Murrell AJ states:
In interpreting the scope for s 90(1)(d), regard must be had to s 5 of the Act which contains the objects of the Act. Section 5 provides:
The objects of the Act are:
(a), to encourage:
(i), the proper management, development and conservation of natural and manmade resources... for the purpose of promoting the social and economic welfare of the community and a better environment.
In s 4, 'environment' is broadly defined as follows:
'environment' includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings'.
Section 90(1)(d) extends the scope of what were traditionally regarded as planning considerations. Bauer Holdings Pty Limited v City of Sydney Council [1981] 48 LGRA 356 at 365. However, this head of consideration is not open ended. Rarely, if ever, could material establishing personal upset and offence, or the fears that some individual may hold about a potential for moral corruption demonstrate that a particular development in a particular locality would have detrimental social effect. The position may be different where, by expert or other evidence, antagonism between a particular development and the religious or cultural values of an immediately affected and identifiable group can be demonstrated. Such evidence would need to address the likely effect of the development on the group in question.
32Mr Seton submits that the expert evidence of Mr Brennan supports the concerns of the objectors about the impact of the sculpture on their religious and cultural values. The siting of the sculpture in a prominent location on a major tourist route where it is clearly visible from the public domain upsets sections of the community and results in a detrimental social impact.
33Mr Seton submits that the principles, established by Roseth SC in Martyn v Hornsby [2004] NSWLEC 614 in relation to brothels, are relevant to the application. At [18] the Senior Commissioner establishes criteria for locating brothels, which are a legal, but sensitive land use that:
benefits some sections of the community and offend others...The aim should therefore be to locate brothels where they are least likely to offend.
34Mr Seton submits that if the sculpture were hidden and unable to be viewed from the public domain, the social impact would be mitigated to an acceptable level. However, in its current prominent location the social impact is unacceptable.
35Both Mr Seton and Mr Bernie submit that if I uphold the retention of condition 2(a) in Appeal 10005 of 2011, that the Order should also be upheld in Appeal 10003 of 2011. Mr Seton submits that pursuant to s 121ZK(4)(b) and (c) of the Act, the Order should be amended to be an Order No. 2 (erected without prior development consent) instead of an Order No. 15 (development consent is not being complied with), as the consent may not be taken up. Mr Bernie did not object to this action.
Findings
36I accept the submissions of Mr Seton. The expert evidence of Mr Brennan clearly supports the concerns of objectors that the depiction of Wandjina imagery on the sculpture is highly offensive to their religious and cultural beliefs.
37A large proportion of the concerns raised by objectors relate to the lack of authorisation to use the images. I accept Mr Bernie's submissions that this is not relevant to my consideration under s 79C(1)(b), however, there are other aspects of the sculpture, including the depiction of the mouth, that are offensive and have an unacceptable social impact. Its prominent location, in clear view from the public domain, is an unavoidable reminder to the affected community of the offence that the sculpture causes.
38The applicant did not provide expert evidence to contradict the evidence of Mr Brennan with respect to the offence that is being caused by the sculpture, and therefore its social impact.
39The agreed position of the planners is that due to its size, elevation and proximity to the street, the sculpture is visually prominent. I do not accept that the sculpture has an acceptable impact on the heritage significance of the house and its setting.
40The prominent and public position of the sculpture means that people using the street cannot avoid viewing the sculpture. It is not placed in a discrete location that would assist in mitigating any unacceptable social impacts. I accept Mr Langevad's evidence that screening the sculpture from view would impact on the open landscape and views of the heritage item and would not be appropriate.
41The applicant has not sought approval to relocate the sculpture to an alternate position on the site where it would not be visible from the public domain but could still form part of the sculpture garden. An alternate location would not fully address the concerns of the objectors, but if acceptable on other planning grounds, could mitigate the social impacts to an acceptable level.
42I therefore find that condition 2(a) should be retained, and that Order No 2 should be substituted for Order No 15.
43In respect of condition 2(b), I accept Mr Langevad's evidence that there is insufficient evidence to assess the potential impact of the future sculptures. However, I acknowledge that criteria or parameters could be established to determine dimensions, materials and details of sculptures that would be minor or have an acceptable impact on the heritage significance of the item such that further development approval would not be required. However, at this stage, this information is not before the Court. It is open to the applicant to seek to amend condition 2(b) at a later stage, if such detailed information were to be provided.