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New South Wales Land and Environment Court (Cowdroy J)
24 February 2006
Development consent — validity — right to consultation — failure to afford procedural fairness — failure to consider relevant considerations under s 79C Environmental Planning and Assessment Act 1979 (NSW).
Ballina Shire Council had issued itself a development consent with respect to a cycleway/pedestrian walkway as well as the upgrade of a car park and road entrance on land at a beach. The applicants sought a declaration the consent was invalid.
Mr Douglas Anderson, one of the applicants, was an Elder of the Bundjalung nation, which is the Aboriginal group from the Ballina area. The Bundjalung nation were the traditional owners of the site, and at the time when the consent was granted, had an undetermined native title claim over the area.
The applicants submitted that it was inappropriate to build the cycleway in the proposed location because it would pass through the area where a massacre of Aboriginal people took place around Angel’s Beach in 1845. This event means that the area continues to be of great significance to local Aboriginal people.
The applicants also claimed that there was a statutory need for a Species Impact Statement to be carried out which was not complied with by the Council, that the Council failed to afford the applicants procedural fairness, that the consent could lead to a breach of s 86 and/or s 90 of the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’) and that the Council failed to consider cultural heritage which was a relevant consideration.
Held, declaring the development consent void and restraining the Council from commencing development without valid consent:
1. There are three circumstances in which procedural fairness arises as a personal right. These include the express terms of (or implication derived from) a statute; a public statement or practice adopted by the decision maker, and; an express promise made to, or arrangement with, the person affected: [122], Country Energy v Williams (2005) 141 LGERA 426 referred to. In this case, the claimants had no personal right to procedural fairness. There was no statutory basis for such a right in the Environmental Planning and Assessment Act 1979 (NSW) (‘EP&A Act’), no established practice of consultation and no promise made to the applicants: [123]–[124].
2. As ss 86 and 90 of the NPW Act only apply to sites that contain Aboriginal artifacts, they will not apply where Aboriginal artifacts have been destroyed by previous activities: [127].
3. In this case, the primary source of Abroriginal cultural heritage was a massacre. This warranted proper evaluation by the Council. which did not take place: [141]–[142].
4. The failure to properly consider the Aboriginal cultural heritage was not an insignificant matter in the Council’s determination. The failure to take this into account may have materially altered the Council’s decision: [147], Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24 referred to.
…
121. There can be no doubt that, on the basis of the published policy of the Council, the Jali LALC [Local Aboriginal Land Council] had a legitimate expectation of being consulted as part of the development application process. However the question is whether the applicants personally had a statutory right to consultation or a legitimate expectation that they would be consulted with respect to any development application.
122. In Country Energy v Williams (2005) 141 LGERA 426 the Court of Appeal discussed the circumstances in which procedural fairness arises. That case considered the issue specifically in the context of consultation with the Aboriginal community in respect of a development application. The Court stated:
An obligation to accord procedural fairness may arise in one of three ways, namely by:
(a) the express terms of, or implication derived from, a statue [sic];
(b) a public statement or practice adopted by the decision-maker, or
(c) an express promise made to, or arrangement with, the person affected.
123. There is no statutory basis within the EP&A Act from which a specific right to consultation accruing to the applicants could be derived. However, the applicants rely on the fact that they were, at the time the development applicant was considered, registered native title claimants, and that the Council had a practice of consulting them as Elders of the Numbahjing clan.
124. The Court does not accept that such a practice has been established. It is clear that the Council had a practice of consulting with Aboriginal people including the applicants, but the record suggests that this contact was usually if not always made through the Jali LALC. This was consistent with the practice of the Council in this case. The Court does not accept that it was ever the practice of the Council to contact the applicants directly. Accordingly the Court does not consider that the applicants had any right of procedural fairness accruing to them personally.
125. In relation to the obligation towards the Jali LALC, the Court considers that such an obligation was fulfilled. It is clear that throughout the process of developing the proposal, both before and after the lodgement of the DA [Development Application], the Council informed the Jali LALC of the proposal and sought their comment. Several meetings between Council officers and representatives of the Jali LALC were convened and individual members of the Jali LALC, including Mr Anderson, were invited to meetings by the Council on several occasions. The Court considers that these actions by the Council fulfilled its requirement to afford procedural fairness to the Jali LALC.
126. The Court also considers that, if a duty to afford procedural fairness to the applicants specifically did arise, such duty was fulfilled. The applicants were clearly aware of the proposal and Mr Douglas Anderson was personally invited (through the Jali LALC) to attend meetings with respect to the proposal on several occasions. Further the applicants wrote several letters of objection to the Council with respect to the proposal, both before and after the lodgement of the DA, and Mr Douglas Anderson and his son Mr Troy Anderson were given the opportunity to address the Council meeting of 13 May 2004 when the consent was granted. The Court does not consider that there is any basis for a claim that procedural fairness was not afforded to the applicants or to the Jali LALC.
127. It is clear from the evidence set out above that the entirety of the site was subjected to large-scale sandmining in previous years. The evidence of both archaeological experts was that if the area had been significantly sandmined and it is almost certain that Aboriginal artefacts in the vicinity would have been destroyed. Accordingly the Court considers that Ms Davies’ report was correct in its assessment of archaeological significance at the site.
128. With respect to the submissions of the applicant that the consent may result in a breach of s 86 or s 90 of the NPW Act, given the findings in the paragraph above, the Court considers it highly unlikely that any Aboriginal artefacts would be disturbed by the construction of the cycleway. However the Court does not accept the submission that, unless sub-surface excavations are carried out, a breach of the Act may occur. Section 86 of the Act has application only where excavation is taking place for the purpose of discovering an Aboriginal object. That is clearly not applicable in the present circumstances.
129. Section 90 relates to the knowing destruction of Aboriginal objects without the consent of the Minister. At present no Aboriginal objects have been identified on the site, which prevents the knowing destruction of any Aboriginal object. The CHMP [Cultural Heritage Management Plan] makes provision for monitoring by Aboriginal persons of the excavation works to ensure any Aboriginal object is identified and construction personnel are required to undergo a cultural heritage induction before commencing work. The Court is satisfied that these procedures ensure any relevant Aboriginal object will be identified. If any Aboriginal object is found, the CHMP requires that work in the vicinity must cease immediately and not recommence until the material has been evaluated and suitable management techniques have been implemented, and NPWS [National Parks and Wildlife Service] must be notified. The Court is satisfied that on the basis of these requirements in the CHMP the consent could not result in a breach of s 90 of the NPW Act.
130. Separately to its claim with respect of procedural fairness, the applicants claimed that the Council had failed to consider a relevant consideration, namely the cultural significance of the site and specifically, the massacre.
131. The Council was bound by the terms of the EP&A Act to take into account certain considerations in the evaluation of the development application. Section 79C(1) provides:
In determining a development application, 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:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(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 …
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
132. Section 111(1) of the EP&A Act provides:
For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
133. Clause 228 of the EP&A Regulation further specifies factors to be taken into account when considering the likely impact of an activity on the environment, including (inter alia):
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations …
134. Further, under cl 92 of the EP&A Regulation, a consent authority must take into account the New South Wales Coastal Policy (‘the Coastal Policy’) where it applies to the site where a development is proposed. Because the site is located within 1 km of the open coast high water mark, the policy applied to it. Accordingly the Council was required to take into account the Coastal Policy. Objective 4.2 of such policy is ‘to recognise the rights and needs of indigenous people and to ensure inputs by Aboriginal communities prior to making decisions affecting indigenous communities’.
135. The Court is satisfied that the impact on the Aboriginal cultural heritage at the site falls within s 79C(1)(b) of the EP&A Act and is therefore a matter which the Council was required to consider. The issue remains as to whether the Council’s consideration of the matter satisfied the requirements of s 79C.
136. The question of the level of consideration required by an administrator was considered in Weal v Bathurst City Council and Anor [2000] NSWCA 88; (2000) 111 LGERA 181. At 185 Mason P observed:
There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J’s formulation of ‘proper, genuine and realistic consideration upon the merits’. …
Sometimes there will be a failure to take matters into consideration where the decision-maker is shown to have had inadequate personal acquaintance with the facts and issues and where the decision-maker was no more than a rubber stamp for someone lower in the administrative hierarchy.
137. His Honour further stated (at 185):
the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration.
140. GHD, the Council’s consultant, engaged Ms Davies to undertake a ‘cultural heritage assessment’ although the extent of her brief is unclear. However, her report related primarily to archaeological matters and dealt fleetingly with the question of cultural values attaching to the site. Although the report included theoretical discussion of cultural heritage assessment, it contained virtually no discussion of the massacre and in particular its relationship to the cultural significance in the area. The highest Ms Davies places the cultural significance of the area is by stating:
The results of the Riebe (2000) and Weiner’s (2003) studies have indicated that although there are no specific sites or places of significance specifically within the study area, the area per se is regarded as culturally significant because of its association and links with other sites and places in the broader area. Additionally, the area would have been utilized by Indigenous people.
141. Ms Davies’ report clearly failed to deal with the main basis of Aboriginal cultural heritage in the locality of the cycleway, being the massacre. Although her report appends the comments of Lois Cook, she simply omits to include the massacre as part of her assessment of cultural heritage.
142. Given the significance to Aboriginal people of the massacre at the site, it warranted proper evaluation by the Council. Section 79C required more than mere mention of the issue of Aboriginal cultural heritage. An evaluation appropriate to the significance of cultural heritage in the area did not take place. The Council may have been under the misapprehension that Ms Davies’ report comprised a comprehensive assessment of both the archaeological and cultural heritage of the area, but it did not properly address Aboriginal cultural heritage. In relation to the site, it was impossible to consider properly the Aboriginal cultural heritage without considering the cultural significance of the massacre.
143. In Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24 the High Court considered whether the failure to take into account additional material provided subsequent to a report invalidated a decision by the Minister. Mason J observed (at 44):
Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.
144. The Court considers that these observations are relevant to the present proceedings. The provisions of the EP&A Act place a more onerous burden upon a decision-maker than the legislation considered in Peko-Wallsend. Section 79C requires the Council not only to consider material made in submissions to it, but also places a duty upon the Council to ensure that it considers all relevant factors. The Council was required to assess the proposal based upon accurate and comprehensive information. Ms Davies’ report was not an accurate or comprehensive assessment of the cultural heritage of the site.
145. As a result, in making its decision the Council did not have material before it which appropriately assessed the cultural heritage significance of the cycleway site. Although it had information which referred to the fact that a massacre took place, it did not have any assessment of the cultural significance of the massacre to local Aboriginal people. Since this was the main source of the cultural significance of the site it was mandatory for the Council to consider it as part of the approval process. In this respect the Council failed to consider a significant issue of both social impact and public interest in relation to the cycleway.
146. The fact that Mr Anderson and Troy Anderson addressed the Council meeting with respect to their concerns was not sufficient to overcome this deficiency in the assessment process. This is especially the case in view of the fact that a cultural heritage study had actually taken place which made no significant findings in relation to the cultural heritage of the area. Ms Davies’ failure to assess properly the cultural heritage may well have detracted from the weight given by the Council to the submissions of the Andersons.
147. The failure to consider properly the Aboriginal cultural heritage was not an insignificant matter in the Council’s determination: see Peko-Wallsend at 40. The site is clearly of great importance to the Bundjalung people and was recommended for a declaration as an Aboriginal Place although a declaration was ultimately not made. The failure to take this matter into account may have materially affected the Council’s decision: see Peko-Wallsend at 46. Accordingly, the Court is satisfied that the decision should be set aside.
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