Editors --- "Anderson (behalf of Numbahjing Clan within the Bundjalung Nation) v Minister for Infrastructure Planning & Natural resources [2006] NSWLEC 725 - Case Summary" [2007] AUIndigLawRw 11; (2007) 11(1) Australian Indigenous Law Review 110

• Anderson v Minister for Infrastructure Planning & Natural Resources
• Facts:
• Held, declaring the development consent void and of no effect and preventing the respondents carrying out work on the land:

Anderson v Minister for Infrastructure Planning & Natural Resources

New South Wales Land and Environment Court (Biscoe J)

20 November 2006

[2006] NSWLEC 725

Administrative law – ministerial discretion – relevant considerations – Wednesbury unreasonableness.

Facts:

The applicants, Aboriginal elders, brought this claim on behalf of the Numbahjing Clan within the Bundjalung Nation. They challenged the validity of a development consent granted on 20 December 2005 by the Minister for Infrastructure, Planning and Natural Resources for a housing subdivision and associated infrastructure at East Ballina, New South Wales. The second respondent is SJ Connelly Pty Ltd, an environmental consultant retained by the third respondent, who lodged the development application. The third respondent is the developer, North Angels Beach Development Pty Ltd.

The applicants argued that the Minister failed to take into account relevant matters pursuant to sections 79C(1)(a), (b) and (e) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’); that the Minister took into account an irrelevant issue, namely that consent to destroy Aboriginal objects had been granted pursuant to section 90 EPA Act; that the decision was manifestly unreasonable because it could not be reasonably ascertained by the average person that the existence of the licence under section 90 EPA Act constituted consideration of the issue of protecting and preserving Aboriginal heritage areas; that the decision was made as a result of misleading conduct by the second and third respondents; and, that the decision was void for uncertainty.

There were two significant issues in determining the efficacy of the applicants’ allegations. First, whether consent was invalid because the Minister was not aware of, and therefore did not consider that a massacre of Aboriginal people occurred in 1854 in the area in which the land is located. Secondly, whether consent was invalid because the Minister did not consider that judgment had been reserved in the Land and Environment Court on another case the same applicants had brought; that application challenged the validity the Minister’s consent, under section 90 of the National Parks and Wildlife Act 1974 (Cth), to destroy Aboriginal objects on the subject land. That consent was held to be invalid in Anderson v Director-General Department of Environment and Conservation (2006) 144 LGERA 43.

Held, declaring the development consent void and of no effect and preventing the respondents carrying out work on the land:

1. The challenge to the Minister’s decision required factual determinations as to whether mandatory considerations had been taken into account, and whether the error made by the Minister was material: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277, 295 (Basten JA) citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J): [38].

2. Development consent cannot be invalid for failure to have regard to a matter unless section 79C(1) EPA Act or State Environmental Planning Policy No 71 expressly or impliedly required the Minister to have regard to that matter or a matter of that kind as a condition of the exercise of power: Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442, 452: [40].

3. An expert anthropological report concerning the significance of the land to Aboriginal people was not given due consideration prior to the granting of the section 90 consent. The Minister was aware of the existence of this report and consequently was obliged to obtain and consider it: [51]. Conversely, an archaeological report considered by the Minister did not consider the basis of the area’s spiritual significance: the 1845 massacre: [49]. These failures were a sufficient basis on which to set aside the Minister’s decision under section 79C(1)(a)(i) EPA Act: [49].

4. The fact that a challenge to the section 90 consent had been lodged in the Land and Environment Court was not a mandatory consideration: [57].

5. The Minister did not have proper and realistic regard to s 79C(1)(b) EPA Act, which requires consideration of the likely social impacts of a development, because he had no regard to the massacre: [59]-[60].

6. In considering the section 90 consent that had already been issued, the Minister had not taken into account an irrelevant matter. The Minister was bound, and certainly permitted, to consider the terms of that consent in order to ensure that his development consent was consistent with those terms. [65]

7. The applicants’ submissions that the Minister failed to take into account the public interest under section 79C(1)(e) EPA Act were not made out. Ministerial consideration of the public interest is not amenable to judicial review: [66]-[69].

8. The decision was not manifestly unreasonable: [70] - [72].

9. Misleading conduct which is not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. This disposed of the submission that the Minister’s decision was vitiated by the misleading conduct of the developer: [79].

10. The condition on the development consent that if any Aboriginal archaeological relics are exposed during construction work the Applicant shall immediately notify the National Parks and Wildlife Service and obtain any necessary approvals to continue the work is not void for uncertainty: [81]-[83].