Henry & Ors v Shellharbour City Council & Ors [2005] NSWLEC 600

Henry & Ors v Shellharbour City Council & Ors [2005] NSWLEC 600

The Applicants failed to prove on the balance of probabilities that the First Respondent was responsible for the alleged removal of the Tent Embassy or that vehicle movements caused disturbance of Aboriginal artefacts; failed to prove that Aboriginal objects at SH 1 came from the fence post hole or were disturbed by relevant work; failed to establish any conduct falling within s 86 or any knowing contravention of s 90; and failed to show that the two artefacts found near the 9 December 2004 scrape were disturbed by the bulldozer or that condition 14(b) was engaged. The uncontradicted expert evidence accepted by the Court was that the proposed immediate future works would not adversely...

Jurisdiction
Australia
Judgment Date
21 October 2005
Procedural Posture
Class 4 Proceedings by Further Amended Application Seeking Declarations and Related Relief Concerning Alleged Disturbance of Aboriginal Objects and Compliance With a Development Consent Condition / Final Judgment on the Second Part of the Proceedings
Outcome
Application dismissed in all respects.
Legal Topics
['aboriginal Objects' 'national Parks and Wildlife Act 1974 Ss 86 and 90' 'development Consent Conditions' 'shell Cove Marina Works' 'burden of Proof']
['environmental Law' 'planning and Development' 'aboriginal Cultural Heritage'] ['aboriginal Objects' 'national Parks and Wildlife Act 1974 Ss 86 and 90' 'development Consent Conditions' 'shell Cove Marina Works' 'burden of Proof']

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Procedural Posture

Class 4 Proceedings by Further Amended Application Seeking Declarations and Related Relief Concerning Alleged Disturbance of Aboriginal Objects and Compliance With a Development Consent Condition / Final Judgment on the Second Part of the Proceedings

Legal Issues

  1. 1 ['Whether work carried out in reliance on the development consent had disturbed, moved, damaged, defaced or destroyed Aboriginal objects in breach of sections 86 and/or 90 of the National Parks and Wildlife Act 1974.' 'Whether work would continue to disturb or damage Aboriginal objects in breach of the National Parks and Wildlife Act 1974.' 'Whether the First Respondent failed to comply with condition 14(b) of the development consent by failing to cease work and notify the Department of Environment and Conservation after disturbance to Aboriginal artefacts.' 'Whether the alleged removal of the Aboriginal Tent Embassy, fence post works at SH 1, the 9 December 2004 topsoil scrape, or proposed future works established the claimed contraventions.']

Ratio Decidendi

The Applicants failed to prove on the balance of probabilities that the First Respondent was responsible for the alleged removal of the Tent Embassy or that vehicle movements caused disturbance of Aboriginal artefacts; failed to prove that Aboriginal objects at SH 1 came from the fence post hole or were disturbed by relevant work; failed to establish any conduct falling within s 86 or any knowing contravention of s 90; and failed to show that the two artefacts found near the 9 December 2004 scrape were disturbed by the bulldozer or that condition 14(b) was engaged. The uncontradicted expert evidence accepted by the Court was that the proposed immediate future works would not adversely...

Court Disposition

Application dismissed in all respects.

Orders

  • ['The Application by the Applicants is dismissed in all respects.' 'If no notice of motion seeking orders to the contrary is filed within 14 days, an order will be made that the Applicants pay the costs of each Respondent.' 'The exhibits may be returned.']