Carriage v Stockland Development Pty Limited & Ors [2004] NSWLEC 320

Land and Environment Court of New South Wales

CITATION : Carriage v Stockland Development Pty Limited & Ors [2004] NSWLEC 320 Allan Carriage (A) Stockland Development Pty Limited (1R) PARTIES : Director-General of Department of Environment and Conservation (2R) Brad & Julie Smith (8 & 9R) Steven & Susan Keogh (10 & 11R) Kevin & Gayle Love (12 & 13 R) FILE NUMBER(S) : 40187 of 2004 CORAM: McClellan CJ Interlocutory Relief :- Application Restraining order KEY ISSUES: Sites of Aboriginal significance Legitimate expectation Failure to consider relevant matters LEGISLATION CITED: National Parks & Wildlife Act 1974 (NSW) Racial Discrimination Act 1975 (Cth) CASES CITED: Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91 DATES OF HEARING: 22 April 2004 EX TEMPORE 04/22/2004 JUDGMENT DATE :

A Oshlack (A) Indigenous Justice Advocacy Network (A)

LEGAL REPRESENTATIVES: M Craig QC (1R, 8-13 R) Baker & McKenzie (1R, 8-13R) A Pearman (2R) Department of Environment & Conservation (2R)

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY, 22 APRIL 2004

40187/04 CARRIAGE v STOCKLAND DEVELOPMENT PTY LIMITED (formerly Stockland Constructors Pty Limited) & ORS

JUDGMENT 1 HIS HONOUR: This matter comes before me on the urgent application of Mr Carriage. Mr Carriage is an elder and traditional owner of the Wadi Wadi Coomaditchie nation whose traditional land is located at Sandon Point on the south coast of New South Wales. Sandon Point is a large area, part of which was acquired by the first respondent who has over many years been pursuing the residential subdivision of the land which it owns. 2 Mr Carriage is represented by Mr Oshlack, who has informed the Court that he is not a qualified lawyer. However, it is apparent that he has knowledge of the principles in relation to judicial review and has been able to articulate Mr Carriage's position with reasonable clarity. 3 However, some of the submissions he puts on this application are not readily understood and no doubt will be clarified before the matter is dealt with at a final hearing. A final hearing has been fixed for the proceedings, commencing on 9 August 2004. 4 The application before the Court today is the second application for interlocutory relief which Mr Carriage has made in this matter. The first application was considered by Pain J and her decision and written reasons were delivered on 19 March 2004. It is submitted that circumstances have changed and evidence has become available which justifies the making of the further application. However, it is not entirely clear to me that this is a correct statement of the position. 5 In any event the application before the Court seeks an order in terms of para 1 of a notice of motion which is in the following terms: "An urgent order until further order restraining the first, eighth to thirteenth respondents from carrying out any further disturbance, excavation or removal of soil or earth from any land described in paragraph 1 of the amended points of claim." 6 In effect, an order is sought to restrain any further work being done on five residential lots within the existing large approved residential subdivision which comprises a total in excess of a hundred lots. 7 The area of Sandon Point has been the subject of environmental concern for more than ten years. I have been informed that significant Aboriginal sites have been identified in the area including a most important burial ground and other sites of great ignificance to Aboriginal people. 8 The five lots which are the subject of the present application do not form part of any of the areas which have been set aside and which have the significance to which I have just referred. However, it is submitted by the Aboriginal people that these five lots form part of areas which contain significant Aboriginal artefacts, the disturbance of which brings considerable concern to those people. 9 I should say immediately that I accept the genuine and real concern which Mr Carriage has expressed on behalf of his people in relation to the proposed development of the area at Sandon Point. However, the genuineness of that concern and the energy which he has applied to articulating it must of course be balanced with the concerns of the wider community in relation to the potential for development of available land zoned for residential purposes. 10 The balance required to be struck is one which is given to those with control of development; in this case it falls to the local council to administer the development process through its environmental planning instruments and, by reason of the existence of Aboriginal artefacts on the land, the Director General of the Department of Environment and Conservation who is required to administer the provisions of the National Parks and Wildlife Act 1974 (NSW). 11 I have also been informed by Mr Oshlack that this litigation raises probably the largest environmental issue on the south coast of New South Wales. So much is plain from the documentary material which I have been informed exists in relation to this area, some of which has been tendered in evidence on this application. 12 What that material demonstrates is that the Aboriginal people have through their representatives been articulating in various forms their concerns in relation to Sandon Point and the development of the Stockland land now for a number of years. 13 There have been many meetings between representatives of the Aboriginal people, including the present applicant, and officers of the National Parks and Wildlife Service as it was previously, now the Department of Environment and Conservation. There have also been meetings between Aboriginal people and officers of the council. There is also a significant volume of correspondence between Aboriginal persons and the relevant consent bodies which expresses concerns in relation to Aboriginal artefacts. That correspondence also reflects both consideration by the relevant bodies of those concerns and an endeavour to understand and give appropriate consideration to them when discharging their particular responsibilities. 14 The Aboriginal people have also brought forward a significant report from Dr Hiscock who is a professor of archaeology at the Australian National University. His report expresses concern in relation to the significance of this land to Aboriginal people and he has urged a re-consideration of decisions which have previously been taken in relation to its development potential. 15 As far as the matter of particular concern in these proceedings is concerned, the evidence before the Court discloses that in 2002 the Director General of National Parks granted consent, subject to conditions, pursuant to s 90 of the National Parks and Wildlife Act, which enabled the potential destruction, defacing or damaging of an Aboriginal object. 16 Relying upon that consent and the development consent granted by the council, I understand that significant works in pursuance of the subdivision have been undertaken. The subdivision having been effected, some of the individual lots have now been sold and five of those lots, two of which have been sold, are the object of these proceedings. Three of the lots in the present matter are still owned by Stockland Development. All of the lots are either in the process of being developed or will shortly be developed. 17 That development will involve the construction of a dwelling on each property with associated pathways and landscaping. It may be expected that each of the sites will be disturbed in that process. Indeed, from three of the five sites soil has already been removed and taken to another site. Evidence of the soil dumps has been tendered before the Court. 18 Mr Oshlack identified thirteen matters of concern to his client. Before I come to those matters I should indicate that the consents which are challenged in these proceedings were those granted by the Director General through her delegate on 15 March 2004. Those consents authorise that which is otherwise prohibited by s 91 to occur on the five individual lots. 19 Mr Oshlack identifies thirteen matters of concern to his client. The first matter which he expresses as an unfulfilled legitimate expectation relates to the fact that his client asserts that although there were various meetings, correspondence and discussion between his client and other Aboriginal people and representatives of the National Parks and Wildlife Service in relation to concerns of Aboriginal people in relation to the subject land, it was not made plain that the Director General had the five applications for individual consents under consideration. 20 The correspondence which has been tendered demonstrates that the Aboriginal people, and in particular the applicant, were informed that the original consents granted to Stockland in 2002 were being reviewed and consideration was being given to the extension of those general consents. However, it was not disclosed to the Aboriginal people that, at the same time, consideration was being given to particular applications in relation to the individual sites. 21 The second matter identified by Mr Oshlack is an alleged failure to consider relevant matters. That is identified as a failure by the delegate of the Director General to have regard to the fact that at the time the decision was being made to grant the consents, an investigation was being undertaken into alleged breaches of the general consents which had been granted. 22 The third matter identified by Mr Oshlack is the allegation that no consideration was given to the views of Dr Hiscock. Although it is apparent from the documentary material that Dr Hiscock's report was considered by officers of National Parks, the allegation as framed by Mr Oshlack is that the way in which the report was ultimately commented upon demonstrates a failure to properly consider the opinions of Professor Hiscock. 23 Fourthly, it is said that there was no consultation with Aboriginal groups, as made plain by the fact that a joint report, being that of Dr Hiscock and Dr Johnson, was submitted but there is no comment upon the material of Dr Johnson. 24 The fifth matter is an allegation that there is an error of fact in that Aboriginal people were not consulted in relation to consent number 1427, which granted the original consent to Stockland. It is said that it is possible to discern from the report and other information upon which that consent was granted that there was not consultation. 25 It is not plain to me how this submission can be sustained in light of the evidence of extensive consultation, both in writing and orally, between National Parks and the Aboriginal people and having regard to the fact that the onus in these matters falls upon the applicant. I do not understand how a failure to document all of that consultation in any report could make the applicant's case. 26 The sixth matter alleged is a failure to give consideration to the problem that artefacts have already been removed from the Stockland site and taken to another site. Again, it is not plain to me how that matter should have featured in a consideration in relation to whether or not future disturbance of any of the five sites should be permitted. 27 The seventh matter is a submission that the decision was made ultra vires. It is said that the decision-maker did not refer to the policies of National Parks when acting to make the decision. It is not plain to me how this submission is supported by any of the evidence. The documents before me make plain that there was a detailed consideration over many years of the problems of Aboriginal concerns, including artefacts on all of the Stockland land. I am satisfied that it is appropriate to consider the ultimate decision in relation to whether or not to grant the individual consents as a decision which was based upon, not only the material brought forward in relation to those particular matters, but also all of the material which had been collected and considered previously in relation to the general consent which was granted. 28 The ninth matter is an allegation that the decision-maker was biased. The foundation for this submission, as I understand it, is that the decision which was taken by various persons, including Mr Hardler, was not one which was urged by the Aboriginal people. Regrettably, when a decision-maker must choose between one side or another, the ultimate decision will obviously have an appearance of bias. However, that is not to say that the decision itself is flawed in law but rather that it is, of necessity, a decision adverse to one party or the other. 29 The tenth matter is a suggestion that there were procedural errors in the application. This was said to have three limbs. Firstly, inadequate fees were proffered with it; secondly, there were no dates in the issue reports; and, thirdly, the application was not properly filled out. No submissions were made in support of these matters. 30 The eleventh matter was a submission that there was evidence of racial discrimination and a breach of the Racial Discrimination Act 1975 (Cth) in the way in which the Aboriginal people had been treated in this application. This, of course, is a most serious submission but from the material tendered before me I can find no foundation for it. The correspondence, and I will come to a portion of it in a moment, evidences many attempts at discussion with Aboriginal people and many opportunities provided for submissions to be made. The submission that, from that correspondence, there is evidence of some deliberate decision to shut the Aboriginal people out from consideration of whether or not to grant a consent is one which, on the material before me, has no foundation whatsoever. 31 The twelfth matter submitted was that there was a failure by National Parks to exercise its statutory duty of care. This was said to arise from the objects of the Act which include the conservation of objects, places and features of cultural value including places, objects and features of significance to Aboriginal people. The submission, as I understand it, was to the effect that, having regard to the perception of Aboriginal people of the significance of the artefacts on the five sites, the only decision available to the Director General was to deny a consent which would have the effect of disturbing those artefacts. 32 The submission, as I understand it, fails to appreciate that the objects of the Act, while of significance, must nevertheless be used to inform the discretion vested in the Director General in sections such as s 90 but, of course, the object cannot be used to dictate the outcome of the exercise of that discretion. That discretion must be exercised balancing all of the relevant factors. 33 The final matter raised by Mr Oshlack is that the consents which were granted did not include conditions that provided a mitigating regime. It is said that conditions should have been imposed which had the effect of ensuring that as sites were disturbed and soil removed a search could be made for Aboriginal artefacts so that they might be retrieved and thereby protected. 34 In essence, the submissions which are made by Mr Oshlack, as he conceded, are that there was a failure in the National Parks to realise the legitimate expectation of Mr Carriage, secondly, that there were matters which should have been considered but which were not and, thirdly, that the consents which were granted were unreasonable by reason of the failure to attach conditions ameliorating the impact of the consents. 35 I referred a moment ago to the correspondence which has been tendered before me. I do not propose to go to it in detail, but should refer to the letter from the applicant dated 10 January 2004 written to Ms Lisa Corbin, the Director General of the Department of Environment and Conservation. In that letter Mr Carriage makes plain his concerns in relation to the work which National Parks has been undertaking at Sandon Point and his concerns in relation to artefacts which have been located during the course of the housing development. 36 He adverts in that letter to complaints he has made to the Wollongong Council and other persons associated with the council. The letter is by way of a general complaint about the work of National Parks addressed particularly to Ms Corbin. 37 The second letter to which I refer is that of Jason Ardler dated 16 February 2004 to Mr Carriage. In that letter, reference is made to the processes normally undertaken by the Director General in relation to consultation with Aboriginal people when consideration is being given to an application under s 90. An explanation is given as to the nature and purpose of that consultation process. Attention is drawn to the fact that both Stockland and the Director General have: "...previously undertaken extensive consultation with Aboriginal people regarding the cultural significance of Aboriginal objects at the Stockland development site at Sandon Point. This consultation has given ample opportunity for the community to raise matters of cultural significance. A further consultation period has now been granted until 29 February 2004 in relation to Stockland's application for an extension of their existing consent. By allowing this extension of time for the Aboriginal community to provide further information in this matter, the community will have been given opportunity for consultation that well exceeds what is normally provided. Therefore, after 29 February 2004, it is considered by the Director-General that all the information that could be obtained through consultation will have been provided. As a result, after this time there will be no further requirement by the Director-General for consultation in regard to the cultural significance of the Aboriginal objects located on the Stockland development site at Sandon Point either by Stockland, owners of individual lots, or the Director-General herself." 38 Mr Oshlack points out in relation to this letter that it does not make plain that, at the relevant time, not only was consideration being given to an extension of the general Stockland consent but also to the applications of concern today. However, the final paragraph of the letter does make plain that because of the consultation processes which have been undertaken, at least the Department's Executive Director of Cultural Heritage is satisfied that adequate consultation has occurred in order to provide the Department with sufficient information to enable it to properly evaluate applications for future consents, including any consent which may be required by the owner of an individual lot. 39 There is nothing before me which would suggest in any way that the view expressed in that letter was not adequately founded and an appropriate conclusion. 40 The final letter to which I should draw attention is that of Teresa Gay, Manager of the Cultural Aboriginal Heritage Unit of the Cultural Heritage Division of National Parks. The letter is to Mr Carriage and is dated 10 February 2003. It provides a detailed account of on site meetings, visitation and consideration of the report of Dr Hiscock. It demonstrates quite clearly that detailed consideration was given to Dr Hiscock's report. The argument, of course, which Mr Oshlack has with this letter and the reflection upon Dr Hiscock's report is that he does not believe that the conclusion which has been reached by officers of National Parks is the appropriate one. However, that, of course, does not say that the conclusion reached by National Parks in relation to the material of Dr Hiscock was not open to it. 41 In her reasons for judgment, Pain J indicated that she was satisfied there was a serious matter to be tried but that she did not believe the prospect of success in the applicant having regard to other discretionary matters was sufficient to justify granting an interlocutory order. 42 It is submitted today that I should come to a different conclusion because there is additional evidence which was not available to Pain J. That evidence is said to be comprised of the documents by way of the report which founded the relevant officer's decision. Secondly, it is submitted that there is information in the evidence before me which demonstrates a breach of specific conditions of the original consents which would justify a different conclusion. 43 Finally, Mr Carriage did not offer an undertaking as to damages in the course of the hearing before Pain J. Mr Oshlack has now tendered a letter from Mr Carriage offering that undertaking. 44 With respect to the undertaking, I believe it should be given little weight. Some days ago I heard an application in this matter for an order for security for costs. One of the matters advanced with respect to that application was the fact that Mr Carriage is impecunious and is dependent upon social welfare. I had regard to that matter in declining to make an order for security. Accordingly, it is apparent that although the undertaking is offered, it has little, if any, substance. 45 As far as discretionary matters are concerned, as I have indicated, three of these sites have already been disturbed pursuant to consents granted on 15 March 2004. I infer that some disturbance may have occurred on some of these sites during the course of the subdivision which was carried out pursuant to the consents granted in 2002. Although material has been removed from the site, it would appear that it has been taken to identified locations and evidence of those locations has been tendered before me. 46 On the other hand, the evidence of the individual lot owners is that if an order was granted to restrain activities on their sites, potential significant harm could be caused to them. The individual owners are in the course of constructing dwellings which, in today's values, are of modest cost. Nevertheless, an interruption to the building process would obviously have significant consequences both in terms of their financial circumstances and the necessity to continue to occupy other premises together with considerable inconvenience to them. As far as Stockland's sites are concerned, there is evidence, which I accept, that if an order was made, the likelihood is that penalty provisions in construction contracts for residential dwellings would come into play with significant daily costs to Stocklands. 47 I accept that there are some questions raised in this matter by Mr Oshlack. However, I have a somewhat different view of the prospects of their success to that which Pain J expressed. For my part, I accept that there is an argument based upon the correspondence to which I have referred that Mr Carriage may have understood that he might, consistent with departmental policy, have an opportunity to comment in relation to particular applications for consent. However, I find nothing inconsistent with that policy as I understand it, nor contrary to any expectation which Mr Carriage could legitimately hold that he was not asked for his particular views in relation to the applications for these particular sites. 48 It is plain to me that over many years, information had been gathered from various sources in relation to the Stockland land and opportunities been provided to the Aboriginal people to make general and particular submissions in relation to all of the land including the lots which are the subject of these proceedings. 49 From the correspondence, it is plain that Mr Carriage was given to understand that the opportunities with which he had been provided and which he was further provided in February 2004 were proffered by National Parks with the express indication that once those processes had been completed, National Parks did not consider that there would be a necessity to consult further, either in relation to a general consent or in relation to a consent which might be issued to an individual owner. 50 Accordingly, I can find nothing in the material before me which could found a breach of any expectation which was legitimately held. 51 With respect to the form of the consents granted and the submission that I understand to be that the failure to impose conditions protecting artefacts which might be disturbed gives rise to an irrationality claim, although there is a question raised, I do not believe from the material before me that that submission would have any real prospects of success. 52 It is plain from the evidence before me that an opportunity for such a condition would have been known to National Parks and, indeed, was expressly recognised by other consents. There is nothing before me which would suggest that the possibility of such a condition was overlooked in granting the particular consents in issue, nor is there any evidence before me which would suggest that any failure to impose that condition in relation to these particular sites renders the consents so unreasonable that no decision-maker could reasonably have granted the consents without these conditions. 53 Beyond these matters, as I have indicated, I place little weight in the offer of an undertaking as to damages. However, recognising the approach which this Court has traditionally taken to that matter, reflected in the decision in Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91. I do not consider that matter to be of significance one way or the other. However, I do believe that the balance of convenience weighs heavily in favour of the respondents. 54 As I have indicated, there has been detailed consideration given to the Aboriginal concerns in relation to these sites both in the consideration of the general subdivision application and in consideration of the particular applications for these sites. Both the individual respondents and Stockland were entitled to commit themselves to contractual obligations upon the assumption that the subdivision had itself been authorised by valid consents and also upon the assumption that the consents granted by National Parks on 15 March were also valid. 55 Having regard to the detailed consideration which has been given to the matter by the relevant authorities, I am satisfied that the respondents were entitled to believe that after all of the attendant controversy, the consents which have been granted were appropriate and they could act upon them. 56 Having regard to the view I hold of the prospects of the applicant succeeding in any of the arguments advanced today, I do not believe the balance of convenience would do other than require me to dismiss this application. Accordingly, the order I make is that the application for interlocutory relief is dismissed. 57 I will reserve the question of costs and that matter can be determined when the final hearing has been determined. **********