Anglican Retirement Villages (ARV) has won an appeal in the NSW Land and Environment Court that will allow it to carry out investigation works at its controversial Macauley's Beach site in Bulli.
ARV has concept plan approval for a retirement village with 250 independent living units on the site.
The appeal was lodged after Wollongong City Council refused in April 2012 a proposed development by ARV to carry out preliminary investigations on the land.
A portion of the site has in the past been quarried for clay and used for brick-making. The investigations would include drilling 21 bore holes to assess the potential contamination in the soil and groundwater.
While the council later reversed its position and supported the approval of the development, Roy ‘‘Dootch’’ Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy joined proceedings as a second respondent.
Mr Kennedy and other members of the Illawarra Aboriginal community believe the site is a place of social, spiritual and cultural significance for Aboriginal people, principally because it contains a sacred women’s area.
Objections to the development were also made on environmental grounds as the site includes habitat for the green and golden bell frog and areas of rare turpentine forest.
In her judgment Court Commissioner Susan Dixon agreed with ARV’s submission that ‘‘wholesale opposition to this development is ... premature’’.
ARV had argued that the works are relatively minor and non-intrusive and that any further approvals for the actual development of the retirement village will involve notification, public participation and an environmental assessment.
Commissioner Dixon found that the proposed works would have minimal impact on native vegetation at the site. While there was no evidence presented of green and golden bell frogs at the site, she imposed a condition on the development that a frog-proof fence be put in place around the drill holes.
She also ordered that ARV engage a suitably qualified ecologist/herpetologist to undertake pre-clearing surveys for green and golden bell frogs and to direct works to ensure there is no adverse impact upon any green and golden bell frogs or their habitat.
If any green and golden bell frog is observed then all work is required to cease immediately until the ecologist/herpetologist gives approval for it to continue.
With regard to the sacred women’s area, Commissioner Dixon said that ‘‘there is no dispute that the site is of high significance to Aboriginal people’’, and that she understood the prospect of people and machinery working in the forest was considered ‘‘disrespectful and inappropriate by Aboriginal people to whom it is significant’’. However, she said there was no planning reason to refuse the application.