Background
132Cordeaux Pty Ltd appealed Wollongong City Council’s refusal to grant development consent for a subdivision at 132 Staff Road and 64 Tamarind Drive, Cordeaux Heights. The site comprises approximately 52.5 hectares, with 21.27 hectares proposed for subdivision to create 43 residential lots plus one residue lot, including construction of roads, earthworks, and associated infrastructure.
The site is located on the foothills of the Illawarra Escarpment, including part of the Mount Kembla ridgeline, an area with special Aboriginal cultural significance. Council refused the application citing concerns about impacts to Aboriginal heritage sites (particularly site CH-1, an artefact scatter of moderate significance), substantial changes to the ridgeline, and inconsistency with the C3 Environmental Management zone, which limits development to uses that do not adversely affect special ecological, scientific, cultural or aesthetic values.
The case involved extensive expert evidence on heritage, town planning, geotechnical engineering, and ecology. The core dispute was whether the extent of proposed earthworks—up to 6 metres of excavation in some areas—and impacts to Aboriginal heritage could be acceptable given the zone objectives and relevant heritage protection legislation.
The Court’s Holding
Porter C upheld the appeal and granted development consent subject to conditions. The court found that the extent of earthworks and impacts to Aboriginal heritage and the ridgeline were acceptable when assessed holistically. The earthworks were necessary to stabilize the site, which had been subject to historical land slip, and geotechnical experts agreed the proposed works were consistent with geotechnical recommendations.
Although Aboriginal site CH-1 would be destroyed by the subdivision, the court accepted evidence that this impact was unavoidable given the engineering requirements for site stabilization. The proposal included mitigation measures developed in consultation with Aboriginal stakeholders: reburial of affected artefacts, a Heritage Interpretation Plan to communicate cultural values, and provisions for improved access to the Mount Kembla ridgeline and walking tracks. Critically, the registered Aboriginal stakeholders had been consulted on the Aboriginal Cultural Heritage Assessment Report and raised no opposition.
The court also noted that the proposal protected other significant Aboriginal sites (CH-2 and CH-4) by locating them in conservation zones where residential development is prohibited. Heritage NSW had issued General Terms of Approval under the National Parks and Wildlife Act, providing an additional safeguard. Balancing these factors—including the long planning history and strategic assessment that preceded the development application—the court found the proposal consistent with zone objectives and acceptable from a heritage perspective.
Key Takeaways
- Development consent for a residential subdivision may be granted despite impacts to identified Aboriginal heritage sites where Aboriginal stakeholders have been consulted and appropriate mitigation measures are in place.
- Unavoidable impacts to Aboriginal heritage can be justified where they result from necessary engineering works (here, site stabilization) and are coupled with effective management strategies such as reburial and interpretation programs.
- Approval by Heritage NSW under the National Parks and Wildlife Act is relevant but not determinative of compliance with the Environmental Planning and Assessment Act; both frameworks must be satisfied independently.
- Heritage assessment at the development application stage may suffice even if detailed heritage considerations were not undertaken during earlier strategic planning phases.
Why It Matters
This decision provides critical guidance on development in sensitive heritage areas. It establishes that Aboriginal heritage impacts are not automatically fatal to a proposal if proper stakeholder consultation occurs and effective mitigation is designed. The judgment illustrates how courts balance competing policy objectives—heritage conservation, Aboriginal cultural protection, and residential development—in environmentally sensitive areas such as escarpments.
For developers, heritage practitioners, and local governments, the decision clarifies that comprehensive Aboriginal consultation, thorough impact assessment, and well-designed mitigation strategies can justify development in areas of heritage significance, even where some heritage impact is unavoidable. The case also demonstrates the interplay between state heritage legislation and environmental planning law, showing how approvals under different statutory regimes contribute to the overall assessment of heritage impacts and acceptability.