Kennedy v Stockland Developments Pty Ltd & ors [2012] NSWLEC 168

Land and Environment Court New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd & ors [2012] NSWLEC 168 Hearing dates: 9-10 May 2012; 21-22 June 2012 Decision date: 25 July 2012 Jurisdiction: Class 4 Before: Lloyd AJ Decision: 1) The amended summons is dismissed. 2) Costs are reserved. 3) The exhibits may be returned. Catchwords: CIVIL ENFORCEMENT - major project approval - whether unapproved work carried out - whether work causing harm to any Aboriginal object or place. Legislation Cited: Environmental Planning and Assessment Act 1979, Part 3A National Parks and Wildlife Act 1974, s 86 State Environmental Planning Policy (Major Development) 2005 State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009, cl 11 Cases Cited: Xerual Pty Ltd v Auburn Council [1999] NSWLEC 64 Category: Principal judgment Parties: Roy 'Dootch' Kennedy (Applicant) Stockland Developments Pty Ltd (First Respondent) Wollongong City Council (Second Respondent, submitting) Representation: Mr A Oshlack, Agent (Applicant) Mr J E Robson SC/Mr H El Hage (First Respondent) Herbert Geer Lawyers (First Respondent) J M Reilly (Second Respondent) File Number(s): 40116 of 2012

Judgment 1On 21 December 2006 the Minister for Planning granted a concept plan approval under s 75P of the Environmental Planning and Assessment Act 1979, as then in force, to Stockland Developments Pty Limited and Anglican Retirement Villages for a residential subdivision and a retirement village at Sandon Point, within the City of Wollongong. 2On 29 November 2009 the Minister granted a major project approval to the proponent (Stockland) for the subdivision and associated works in its land under s 75J of the Act, as then in force, and modified the concept plan under s 75W, as then in force. Subsequent modifications of the major project approval were granted on 19 April 2010 and 9 August 2010. Stockland subsequently obtained construction certificates for various stages of the development. Work on the development is proceeding. 3The applicant, Mr Kennedy, is an Aboriginal person of the Yuin Nation with traditional links to the land at Sandon Point and is the founder of the Sandon Point Aboriginal Tent Embassy. He claims in these proceedings that the work is proceeding unlawfully; in particular, work involved in the construction of a temporary pathway and the deposit of filling is being carried out without consent, or alternatively without an environmental assessment under Part 5 of the Act; and the work is causing damage, destruction or desecration of Aboriginal cultural heritage objects in breach of s 86 of the National Parks and Wildlife Act 1974. 4The applicant's claim, as pleaded and as explained by his agent, Mr A Oshlack, is based on the following grounds: (a) Stockland is clearing, excavating and constructing a shared walkway and related infrastructure on land owned by the council known as lot 517 in deposited plan 1156416 which is not authorised by the major project approval. (b) Alternatively, the work is being undertaken without development consent, contrary to s 76A of the Act. (c) Stockland is constructing a temporary pathway on the adjoining Anglican Retirement Villages land and in lot 517 without development consent, contrary to s 76A of the Act. (d) A purported approval by the council on 17 October 2011 for the construction of the temporary pathway is invalid. (e) Alternatively to (b) and (c) the work and pathway amount to an activity requiring an environmental assessment under Part 5 of the Act. (f) The work and the pathway is causing damage, destruction or desecration of Aboriginal cultural heritage objects in breach of s 86 of the National Parks and Wildlife Act. 5Stockland's residential subdivision and the Anglican Retirement Villages development are discrete, but are contiguous with and share a common boundary with Stockland's land to the north and the Anglican Retirement Villages land ("the ARV land") to the south. 6Stockland is presently working on stages 3 and 4 of its development, which includes the construction of a road along the common boundary of its land and the ARV land, which will be known as "Wilkies Walk Road". The work will include a pedestrian pathway to provide pedestrian access from the west to McCauleys beach to the east, to replace an informal pathway which previously provided such access known as Wilkies Walk. 7The applicant's claims relate to a temporary pathway which Stockland has provided on the southern side of its present property boundary and parallel to Wilkies Walk Road to provide pedestrian access to McCauleys Beach during the construction period, and also relate to the extent of fill and batter placed by Stockland on what is now known as lot 517, all of which the applicant says is unlawful.