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. Unlawful Development ? 8It is necessary to examine the approvals that have been granted to see precisely what development they encompass. 9Condition A1 of the major project approval describes the land to be developed as "Lot 2 DP 595478, Lot 235 DP 1048602, Lot 1 DP 1024490, Lot 1 DP 204631, Lot 22 DP 835200, Lot 101 DP 268549, Lots 1 and 2 DP 224431 and land within the adjoining Railway Corridor". In September 2010 Stockland registered a plan of subdivision to divide lot 235 into lots 516 and 517. Stockland then sold lot 517 to the council. Nevertheless, the approval relates to the whole of lot 235, which necessarily includes the newly created lot 517. Lots 1 and 2 DP 224431 comprise the ARV land. 10Condition A3 of the major project approval states: "The project, unless otherwise provided by the conditions of this approval, will be undertaken in accordance with the Environmental Assessment dated September 2007 prepared by Don Fox Planning Pty Ltd and all appendices, except where varied by : .... The following drawings:" 11The following drawings "include drawings Nos. SK09 and SK31, relating to earthworks and batter. 12Condition A6 of the major project approval states: "1) Construction Certificate Prior to the commencement of subdivision works for Stages 1 to 6 inclusive, the Proponent must obtain a construction certificate for each stage of the subdivision before any subdivision work can commence for that stage". 13The Environmental Assessment report referred to in condition A3 contains a number of relevant provisions. At 1.3 the report states that Stockland is the applicant and the project relates "principally" to its land holdings, but goes on to state that it also incorporates land owned by others, including earthworks and the road along the common boundary between stages 3 and 4 of Stockland's land and lot 2 DP 224431 (being ARV land). At 2.2 the report again states : "In addition to Stockland's land holdings set out above, the proposal also involves work on adjoining land including the following ...". The list following describes (inter alia) lot 1 and lot 2 DP 224431 and the purpose is described as: "To construct the shared road between the two land owners". Stockland's land "set out above" includes lot 235 which, as noted at [9] above, was subsequently subdivided into lots 516 and 517. 14At 3.1 the report describes the key elements of the project, including "Boundary re-adjustment between Lot 2, DP 595478 and Lots 1 and 2, DP 224431 to ensure that the roads forming part of the subdivision will be located wholly within Stockland's land holdings". 15This is further explained at 3.5.1 of the report, which states that a boundary re-adjustment is proposed along the northern boundary of Lots 1 and 2 in DP 224431 (the ARV land) and lot 2 in DP 595478 (owned by Stockland) to correspond to the road alignment along this common boundary. The report continues: "The boundary readjustment will transfer land from Lots 1 and 2, DP 224431 to Lot 2, DP 595478. This will ensure that the roads forming part of the subdivision will be located wholly within Stockland's land holdings". 16At 3.5.12, under the heading "Pedestrian and Cycle Access", the report describes the public pedestrian and cycleway linkages, including : "Formalising of the pedestrian access between Sturdee Avenue and the coast (known locally as 'Wilkies Walk') currently located on privately owned land". At 7.3 the report states : "The Project Plan will require cut and fill to suit the proposed road layout and suitable building platforms". 17Drawing No. SK09, noted at [11] above, is a preliminary bulk earthworks plan showing the extent of earthworks over the development site, and which includes the placement of fill and batter in lot 2 DP 224431 (the ARV land) and that part of the lot 235 DP 1148602 which now comprises lot 517. 18I have noted at [10] above that the major project approval requires the work to be undertaken in accordance with the Environmental Assessment dated September 2007 prepared by Don Fox Planning Pty Ltd and all appendices. One of the appendices, is a construction and traffic Management Plan prepared by Cardno Forbes Rigby Pty Ltd. Under the heading "Pedestrian Movements" the management plan relevantly states: "A walking track known as Wilkies Walk runs along the southern boundary of stages 3 and 4. This track currently crosses private land and is used by residents to access McCauley's Beach (albeit unlawfully). The proposed subdivision will ultimately provide a formal public pedestrian route in a similar position. ... During the construction of stages 3 and 4 access along Wilkies Walk will be monitored for safe pedestrian passage. If safe passage cannot be guaranteed the path may need to be closed for a short period of time until the track can be made safe for pedestrian access. Alternative pedestrian routes around the development site, may be provided in the short term, should access be denied along the current route location". 19Cardno subsequently provided a detailed plan of the temporary location of Wilkies Walk pathway (Dwg No. 12003, Rev 2). The plan shows the temporary pathway running roughly parallel to the proposed Wilkies Walk Road which straddles the common boundary between Stockland's land and the ARV land. The plan also shows the extent of bulk earthworks to support Wilkies Walk Road and the subdivided lots within Stockland's land, which is shown as extending to within part of the ARV land and within lot 235 (and which is now lot 517). An examination of the contour lines shows that the height of fill and batter proposed within the present lot 517 is slightly more than 5 metres. 20On 9 September 2011 Mr Michael Braithwaite, on behalf of Stockland, forwarded the Cardno bulk earthworks plan to Mr Andrew Heaven, the Council's senior subdivision engineer. On 17 October 2011 Mr Heaven sent a letter to Stockland which relevantly states: "In regard to the proposed cut and fill works in ARV land as approved by MP - 2007/32, the relocation of the informal access track known as 'Wilkies Walk' as shown in 'Temporary Wilkies Walk Footpath Layout Plan' prepared by Cardno in Dwg No. 12003 Rev 2, is permitted". 21On 27 October 2011 Stockland obtained a construction certificate for engineering design drawings prepared by Cardno, which show bulk earthworks to be placed in Stockland's land and fill and batter to be placed on the ARV land and on that part of lot 235 which now comprises lot 517. The contour lines again show that the height of the fill and batter in what is now lot 517 is 5 metres. This construction certificate and the engineering drawings to which it refers supercedes the preliminary bulk earthworks plan numbered SK09. 22Mr Braithwaite, a development manager of Stockland, acknowledged under cross-examination that an earlier construction certificate issued on 8 September 2010 did not authorise the construction of the temporary pathway. He also acknowledged that the contour intervals on the original plan numbered SK09 shows contour intervals of 0.5 metres, so that the height of the batter shown on what is now lot 527 is between 3 and 4 metres. As noted at [21] above, however, that plan was superceded by the Cardno plan which was approved by the construction certificate issued on 27 September 2011, which allows the fill and batter to a height of 5 metres. 23It follows from what I have set out above that the major project approval includes the construction of the temporary relocation of the Wilkies Walk pathway and includes the bulk earthworks and batter located within the ARV land and within lot 517. In particular the construction certificate of 27 September 2011, which was issued in compliance with condition A6 of the major project approval, details the approved extend of fill and batter in the ARV land and on lot 517. The letter of 17 October from Mr Heaven to Stockland, noted at [20] above, stating that the cut and fill works and the temporary relocation of Wilkies Walk pathway "is permitted" was thus otiose. 24According to the evidence of Mr Heaven, the temporary pathway that has now been provided and the fill and batter in the ARV land and on lot 517 which is now in place is all in accordance with the relevant construction certificate. I note, however, that Mr Braithwaite said that the height of the batter that has been placed on lot 517 is about 4 metres (rather than the 5 metres allowed under the construction certificate). 25In these circumstances it cannot be said that the construction of the temporary pathway or the placement of the fill and batter on the ARV land and in lot 517 is a breach of the Act. Section 76A which is in Part 4 of the Act does not apply : s 75R. The work that has been carried out is the subject of a separate approval regime under Part 3A of the Act, as then in force. Conditions A3 and A6 of the major project approval specifically allows the fill and batter to be placed in its present location as noted at [10] and [12] above; it specifically allows the construction of the temporary pathway as noted at [18] above; and the construction certificate referred to in condition A6 of the major project approval certified the location of the temporary pathway and the fill and batter in accordance with the plan prepared by Cardno. Part 5 of the Act, which relates to the environmental assessment of an "activity", does not apply and is not relevant given the fact of the major project approval : s 75R. Section 75R(1) of the Act, as then in force, stated: "(1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project)." 26The applicant also contends that the temporary pathway is either prohibited or requires development consent where it crosses lot 517, which is zoned E2 (Environmental Protection) under the relevant planning instrument, State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009, cl 11. Under that instrument a road is permissible in the E2 zone with development consent. The temporary pathway is a "road" for the purpose of the instrument. As Sheahan J held in Xerual Pty Ltd v Auburn Council [1999] NSWLEC 64 at [99] : "... the test of a road is not its 'improvements', but the rights which attach to it in favour of the public. If a citizen can pass along it, with whatever degree of difficulty, it is a public road." 27Since the temporary pathway has been approved under Part 3A of the Act, its construction within lot 517 is not unlawful. Moreover, the zoning provisions contained in cl 11 of the instrument do not apply to development that is a project to which Part 3A of the Act applies : cl 6(2). Accordingly, neither the temporary pathway nor the fill and batter within lot 517 are prohibited by the zoning provisions in that clause. 28Moreover, as to the fill and batter that has been placed on lot 517, the evidence of the site superintendent for the development, Mr K J MacDonald, is that its footprint is relatively small, covering an area of about 170 sq. metres, and it is a temporary measure pending the construction of a retaining wall, following which it will be removed. The council (which is a party to these proceedings and which owns lot 517) is accordingly unconcerned. In these circumstances, even if the placement of the fill and batter had been unlawful, a proper exercise of the court's discretion would not result in the grant of relief sought by the applicant. 29It follows that grounds (a) to (e) of the applicant's claim for relief, noted at [4] above, must be dismissed. A Breach of the National Parks and Wildlife Act 1974 ? 30The applicant, Mr Kennedy, has deposed that the original Wilkies Walk had provided access to a bush regeneration team into areas in and around the Turpentine forest (located on the ARV land), which, if damaged or destroyed will cause great distress and consternation within the Aboriginal community. He also deposed that the Aboriginal community has not been consulted regarding the proposed work by Stockland; and on 26 October 2011 he observed machinery working on the ARV land making a new track on the southern side of Wilkies Walk and that some trees had been cleared. Mr Kennedy further deposed to the fact that on 28 October 2011 "Aunty Barbara was present at Sturdee Avenue when the Embassy approached the work site to inform Stocklands that the work they had commenced undertaking was not approved and was causing extensive damage and desecration to part of the Womens Area". Mr Kennedy also states in his affidavit : "We Aboriginal People are very distressed at what is occurring here. I have twice failed to get restraining orders. The work by Stocklands is virtually in the Turpentine Forest." 31Barbara Nicholson has deposed that she is a Senior Elder of the Wadi Wadi people, the traditional owners of the Illawarra including the Sandon Point area. She says that on the 29th of October 2011 she went to the Sandon Point Aboriginal Tent Embassy and walked from there to the top of Wilkies Walk at Sturdee Avenue, and that the access was by way of a new path cleared in the bush south of the original Wilkies Walk. She further states: "4. I observed on the North side of the boundary fence that trees have been felled. These trees were the buffer of the Turpertine forest. Too much of the land was desecrated and dug up. 5. I am one of the recognised cultural knowledge holders of this women's place. My witnessing of the desecration has caused me sickness." 32Mr Braithwaite, however, stated that Stockland is not carrying out any works within the Turpentine forest or any works which have any effect on the forest; and the temporary pathway does not intrude into the Turpentine forest area. Mr Braithwaite's evidence is corroborated by an aerial photograph taken on 3 February this year, which shows the temporary pathway clear of the forested area, but arguably within the edge or buffer area to the forested area. 33I find, therefore, that there has been no disturbance to the Turpentine forest or of its significance to Aboriginal people. Moreover, the Turpentine forest is protected as a Heritage Item under State Environmental Planning Policy (Major Development) 2005. 34The applicant contends that Stockland has not undertaken a cultural heritage assessment on the ARV land or in lot 517 for the temporary walkway (and I assume, for the placement of the fill and batter). An assessment of archeological potential was carried out by Dr Susan McIntyre-Tamwoy in July 2007, whose brief was to prepare an assessment of Aboriginal cultural heritage values of the land which was the subject of the major project application and the major project approval. The applicant relies upon a statement in Dr McIntyre-Tamwoy's report that the ARV land is not included in her assessment and a further statement that the Department of Planning called for additional anthropological assessment relating to part of the ARV development area not the subject of the report. 35Dr McIntyre-Tamwoy's report identifies the land which is the subject of the assessment as including lot 235 (of which the present lot 517 is a part) and small areas of land which were not included in the concept application, including "Lot 1 and Lot 2 DP 224431 ... To construct the shared road between the two land owners". Accordingly, I do not accept the applicant's contention that there has been no Aboriginal cultural assessment of the relevant land. 36Neither can the applicant rely upon cl 22(d) of the Sandon Point State Environmental Planning Policy. That clause relevantly states that development consent is required for any of the following "... disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed". Clause 22 does not, however, apply to development that is a project to which Part 3A of the Act applies : cl 6(2). Moreover, I accept the submission of Stockland that there is no evidence to establish that it knew or had reasonable cause to suspect that the disturbance will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed. 37The applicant contends that Stockland has breached and continues to breach ss 86(1) and/or 86(2) of the National Parks and Wildlife Act, which is as follows: "86. Harming or desecrating Aboriginal objects and Aboriginal places. (1) A person must not harm or desecrate an object that the person knows is an Aboriginal object. Maximum penalty: (a) in the case of an individual - 2,500 penalty units or imprisonment for 1 year, or both, or (in circumstances of aggravation) 5,000 penalty units or imprisonment for 2 years, or both, or (b) in the case of a corporation - 10,000 penalty units. (2) A person must not harm an Aboriginal object. Maximum penalty: (a) in the case of an individual - 500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or (b) in the case of a corporation - 2,000 penalty units." 38An "Aboriginal object" is defined as meaning "any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non - Aboriginal extraction, and includes Aboriginal remains". 39According to the affidavit of Barbara Nicholson noted at [31], it seems that the area having particular cultural significance is the womens' place, which appears to be located in the Turpentine forest on the ARV land. I accept the proposition that although there is no evidence of any actual artefact or other material evidence relating to Aboriginal habitation having been disturbed, there may be some likelihood that such material or evidence would be present within the forest. As noted at [32] above, however, Stockland is not carrying out any works within the forest and the temporary pathway does not intrude into the forest. 40There is no evidence of any harm to any Aboriginal object or of harm to other material evidence of Aboriginal habitation, or of any disturbance to an Aboriginal object or of disturbance to any other material evidence of Aboriginal habitation as a result of Stockland's activities in this case. I note that the work that Stockland is carrying out is not within the Sandon Point Aboriginal Place declared under s 84 of the National Parks and Wildlife Act. In the absence of any such evidence this ground of the applicant's claim must fail. Conclusion: 41I can fully understand Mr Kennedy's concerns and his desire to protect the Aboriginal heritage of the area and his desire to ensure that any development strictly conforms to the terms of any approval that has been granted. In the present case, however, there is no evidence to support his claim that any artefact or other items of Aboriginal cultural heritage has been disturbed and there is no evidence to show that the development is not being carried out in accordance with the major project approval and the construction certificates issued thereunder. 42Accordingly, the orders of the court are as follows: (1) The amended summons is dismissed. (2) Costs are reserved. (3) The exhibits may be returned. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2012