Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465

Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465

There was insufficient credible information about the significance and extent of Aboriginal cultural heritage and the impacts of the quarry project, due to incomplete and inadequate investigations, assessments, and stakeholder consultation. The precautionary principle was engaged as a real threat of serious and irreversible damage to Aboriginal heritage existed, with scientific uncertainty as to affected sites. Approving the project prior to completion of necessary investigations and assessment did not satisfy statutory requirements or policy under the Burra Charter. Therefore, consent for the project could not be granted; the appeals must be upheld and the project refused.

Jurisdiction
Australia
Judgment Date
17 November 2015
Procedural Posture
Appeal / Principal Judgment
Outcome
Appeals upheld; project application refused
Legal Topics
['development Consent' 'major Project Assessment' 'objector Appeal' 'balancing Environmental, Social and Economic Considerations' 'adequacy of Aboriginal Heritage Investigation' 'public Interest']
['administrative Law' 'environmental Law' 'planning Law' 'aboriginal Cultural Heritage'] ['development Consent' 'major Project Assessment' 'objector Appeal' 'balancing Environmental, Social and Economic Considerations' 'adequacy of Aboriginal Heritage Investigation' 'public Interest']

Case Brief

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Procedural Posture

Appeal / Principal Judgment

Legal Issues

  1. 1 ['Adequacy of investigation and assessment of Aboriginal heritage' 'Adequacy of consultation with Aboriginal stakeholders' 'Assessment of cultural significance and impacts' 'Appropriateness of mitigation and management measures' 'Public interest in preservation of Aboriginal cultural heritage']

Ratio Decidendi

There was insufficient credible information about the significance and extent of Aboriginal cultural heritage and the impacts of the quarry project, due to incomplete and inadequate investigations, assessments, and stakeholder consultation. The precautionary principle was engaged as a real threat of serious and irreversible damage to Aboriginal heritage existed, with scientific uncertainty as to affected sites. Approving the project prior to completion of necessary investigations and assessment did not satisfy statutory requirements or policy under the Burra Charter. Therefore, consent for the project could not be granted; the appeals must be upheld and the project refused.

Court Disposition

Appeals upheld; project application refused

Orders

  • ['The appeals are upheld.' 'The amended application for the Calga Sand Quarry Project (06 -0278) is refused.' 'The exhibits are returned.']