ESD and the Sustainable Planning Act 2009: Where is the Balance? (Part 1)

(Part 1) (see Part 2)

David Nicholls, Partner at HopgoodGanim Lawyers

Introduction

The subject for this conference session "ESD and the Sustainable Planning Act 2009 - Balance or Precaution?" implies that there may be a question as to whether the principle of "ecological sustainability", which is embedded in the statutory purpose of the Sustainable Planning Act 2009 (SPA)¹, has altered in some way. This paper examines that question.

In an early judgment² which considered the statutory purpose of the Integrated Planning Act 1997 (IPA)³, a submitter appellant asked the Planning and Environment Court to apply the "precautionary principle" which was one of the ways of advancing the IPA's statutory purpose⁴. The precautionary principle remains in the objects of the SPA in exactly the same form. In that case, His Honour Judge Robin QC examined a number of judgments of the New South Wales Land and Environment Court⁵, and an article written by His Honour Justice Paul Stein, "Are decision makers cautious with the precautionary principle?"⁶ His Honour quoted the following paragraph from a Judgment of Her Honour Justice Pearlman of the New South Wales Land and Environment Court:

He went on to note that His Honour Justice Stein had observed, in his article, that:

In applying these observations to the facts in the case which he was deciding, His Honour Judge Robin QC said:

The above passages from Elliott's case usefully set the scene for a debate about the subject of this session.

How has the statutory purpose changed under SPA?

The fundamental elements of ESD set down in the National Strategy for Ecologically Sustainable Development, and politically accepted by the Commonwealth, the States and the Territories in the Inter-Governmental Agreement on the Environment, have not changed and remain reflected in SPA's statutory purpose. The changes that have been made to the IPA's version of the statutory purpose are matters of detail. The SPA's definition of "ecological sustainability" is identical with the definition of the term in the IPA: a balance that integrates ecological, economic and social factors. Further, the primary requirement of the statutory purpose remains "to seek to achieve ecological sustainability"⁹.

The changes are:

1. 1. One of the ways of achieving the IPA's statutory purpose was "managing the process by which development occurs". This is now expressed as:
   
   "Managing the process by which development takes place including ensuring the process is accountable, effective and efficient and delivers sustainable outcomes."¹⁰
   
   The other two ways of achieving the statutory purpose have not altered.
2. 2. The section of the IPA which explained how the Act's purpose could be advanced has been altered under SPA to include references to:
3. • climate change11;
     
     
   • use of alternatives to non-renewable natural resources¹²;
   • urban congestion¹³;
   • considering housing choice and diversity and economic diversity¹⁴.

The Explanatory Guide makes no specific reference to the above changes other than to confirm that the list in section 5 of the SPA, previously contained in section 1.2.3 of the IPA, is not exhaustive and serves as an illustrative guide to entities exercising a power or performing a function under the SPA.

To conclude on this point, the changes effected by the SPA to the statutory purpose as it existed under the IPA are not substantive. Instead, they are illustrative of how the statutory purpose of seeking to achieve the integrated balance of ecological, economic and social factors is to be achieved.

The background to the statutory purpose

I have chosen as my starting point the conclusions I reached in a paper I wrote on this subject a few years after IPA commenced¹⁵. Against the background of IPA having introduced a radically different planning system to Queensland, the statutory purpose of seeking to achieve "ecological sustainability" was seen as consistent with the proper approach to drafting planning schemes and assessing and deciding development applications, which involved weighing competing factors in deciding where the right balance lies in the public interest. Much of what was written in that paper remains relevant because the statutory purpose under the IPA is repeated in the SPA in substantially the same form.

The Inter-Governmental Agreement on the Environment accepted, politically, the principle that "decision making processes should effectively integrate both long and short term economic, environmental, social and equity considerations". Before the IPA, the draft Planning, Environment and Development Assessment Bill, released in 1995 for stakeholder comment, had as its purpose the management of land use and development in a way that contributed to the economic, social and physical wellbeing of people by:

• conserving the aspects of the environment upon which life depends;
• creating and maintaining well serviced and liveable communities; and
• protecting the environment.

In a submission QELA made at the time, it was pointed out that the purpose contained inherent conflicts and did not promote the integrated balance which the National Strategy for Ecologically Sustainable Development required. It was likely that QELA's submission, possibly together with others, resulted in the definition of "ecological sustainability" that was ultimately included in the IPA and subsequently migrated to the SPA.

The guiding principles of the National Strategy for Ecologically Sustainable Development are not confined to planning and development decision making. They are intended to apply to all forms of environmental decision making. The goal of the national strategy is:

The IPA integrated a broad range of statutory decision making processes relating to the development and use of land, natural resources, cultural heritage, conservation and environmental management. The object of the IPA was microeconomic reform by avoiding duplication and red tape, which was said to have enveloped the statutory development processes. The development and use of land had historically been regulated by local governments operating under a combination of State legislation, town planning schemes and local laws. Environmental management, conservation, cultural heritage and natural resource management had been, and remain, largely the province of the State. It is therefore relevant to ask whether these decision making processes have been effectively integrated with the plan making and development assessment systems so as to effectively apply the guiding principles of the National Strategy for Ecologically Sustainable Development?

It may be observed that the guiding principles of the Strategy are not necessarily universally accepted. The concept of balance or "trade-off" of environmental values against economic benefits appears to be rejected by conservation groups. This tension is inherent in seeking to balance the three components of ecological sustainability under the statutory purpose of IPA, and now SPA, and is seen in submissions, press reports and arguments about the cascading effects of damaging the environment and "death by one thousand cuts".

The duty of the decision makers associated with achieving ecological sustainability changes depending on whether the local government is the assessment manager. State agencies are only required to "have regard" to the SPA's purpose in making decisions¹⁶. In this case, section 5 of the SPA expressly creates a relevant consideration to which the decision maker must have regard. Other decisions to which the statutory purpose is relevant, and where that purpose is required to be advanced, concern the making of statutory instruments, such as planning schemes, regional plans, State planning policies and regulatory provisions, and impact assessable development decisions. Failure to consider and seek to advance the statutory purpose when making statutory instruments under the SPA may give rise to a potential legal error rendering the relevant decision to adopt the instrument susceptible to being quashed in declaratory proceedings. Also there appears to be some scope for attacking concurrence agency decisions on the grounds of invalidity where there is evidence, on the face of the decision, that no regard at all has been paid to the statutory purpose, in circumstances where doing so would have had the potential to alter the decision. I am not aware of such an argument being run in declaratory proceedings in the Planning and Environment Court. The extent of any "competition" between the objects of the SPA and those of other applicable legislation or statutory instruments is relevant to whether the principles of ecological sustainability are being implemented as intended under the National Strategy for Ecologically Sustainable Development and the Inter-Governmental Agreement on the Environment. It may therefore be instructive to survey the objects clauses of legislation and statutory instruments which fall within the decisional framework under the SPA. This should identify whether there is any consistency or coherence in the State's approach to ESD across the spectrum of development related legislation.

South-East Queensland Regional Plan 2009-2031 (SEQRP)

The SEQRP is a key statutory instrument which plays a central role in decision making under the SPA for the most populated region of Queensland. Similar plans for other regions will have the same role. The SEQRP is said to be based upon the principles of ESD, as reflected in the Queensland Framework for Ecologically Sustainable Development¹⁷.

This "framework" is said to have informed the principles and policies of the regional plan. No reference is made in the SEQRP to the purpose of the IPA, which was the source of the power to make that plan. The concept of "ecological sustainability", as defined in the IPA, appears to have been replaced with the concepts of "sustainable development" and "sustainable growth" pursuant to the "framework". In making the SEQRP, the Minister for Infrastructure and Planning was required to exercise the regional plan making power in a way which advanced the IPA's purpose, which involved striking a balance between ecological, economic and social factors. However, the SEQRP states that ESD is achieved simply through the application of the "framework", which in turn raises the question of whether that framework is consistent with the purpose of the IPA?

Research for this paper established that the "framework" is contained in a newsletter from the then Premier of Queensland, Peter Beattie MP, to the public dated June 2002¹⁸. This is the document referenced in the SEQRP. The newsletter describes and discusses a broad range of environmental issues that had emerged and been addressed at international and local levels. The key part of the newsletter containing the "framework principles" states that:

The "framework" then lists six principles¹⁹ which are repeated in the SEQRP.

It is self-evident that the drafting of the SEQRP, while purporting to take account of the "framework's" ESD principles, was essentially a broadly based planning exercise that was strongly influenced by the content of existing planning schemes, specific environmental constraints identified by the State, and the desire to promote a compact urban form by controlling urban expansion. The location of the urban footprint boundary, and the prohibition on subdivision and material change of use outside that boundary, was influenced by those factors together with contemporary political considerations, rather than the statutory purpose of "ecological sustainability". The purpose of the IPA that was the source of the statutory plan making power appears to have been ignored in favour of a re-formulated definition of ESD.

It is therefore quite impossible to conclude that any real attempt was made to achieve the IPA's statutory purpose in the formulation of the SEQRP, which leads to the conclusion that, at least with respect to broad scale planning exercises such as regional planning, the statutory purpose is inherently fungible. Any doubt about that is dispelled by the following passage from the Premier's newsletter:

Does this suggest that the statutory purpose of the SPA, at least with respect to planning decisions at the State level, lacks utility and is an inconvenient encumbrance?

Coastal Protection and Management Act 1995 (Coastal Act)

The statutory purpose of the Coastal Act is four-fold, and each component is said to be one of the "main objects" of the Act²⁰. There is some inherent conflict between some of the objects, but overall it is fair to say that the thrust of the objects is application of ESD principles to the coastal zone. The first of the four objects concerns conservation and protection of the coast. The second is to "have regard to" the goal, core objectives and guiding principles of the National Strategy for Ecologically Sustainable Development. The third is to provide a framework, in conjunction with other legislation, for ecologically sustainable development of the coastal zone. The fourth is to encourage better knowledge of coastal resources and the effect of human activities on the coastal zone. "Ecologically sustainable development" is defined in terms of the Strategy²¹.

As a result, there is a large degree of coincidence between the statutory purposes of the SPA and the Coastal Act. Notably, section 5 of the Coastal Act also imposes a duty, where a function or power is conferred on an entity, to perform the function or exercise the power in a way that advances the Act's objects. There will be situations where the duty to "have regard to" the purpose of the SPA, in combination with the duty to advance the purpose of the Coastal Act, will converge and compel a common outcome. This could well prove to be relevant in situations where a discretion is to be exercised concerning a decision involving both the SPA and the Coastal Act.

Urban Land Development Authority Act 2007 (ULDA Act)

The ULDA Act carves out of the development framework under SPA certain land identified by the State and allows it to be regulated by the Urban Land Development Authority in accordance with the ULDA Act. Section 3 of the ULDA Act states its main purposes as providing for particular parts of the State to be declared as areas called "urban development areas", and establishes the Urban Land Development Authority to plan, carry out, promote or coordinate and control the development of land in those areas. The main purposes of the Act are said to be to facilitate:

• the availability of land for urban purposes;
• the provision of a range of housing options to address diverse community needs;
• the provision of infrastructure for urban purposes;
• planning principles give effect to ecological sustainability and best practice urban design;
• the provision of an ongoing availability of affordable housing options for low to moderate income households²².

The section containing the statutory purpose²³ defines "ecological sustainability" similarly to the definition in the SPA.

The Urban Land Development Authority is given plenary power to develop a planning scheme for an urban development area²⁴. The only obligation on the Authority to give effect to ecological sustainability arises where the main purposes of the Act for an area are not achieved by the Authority's land use plan or infrastructure plan for the area. In particular, in making a development scheme, the Authority has to consider, but is not bound by, any requirement of the SPA. Consequently the Authority is freed from the duty contained in section 5 of the SPA to advance the purpose of the Act in exercising its powers or performing its functions. It is therefore in the unique position of being less constrained than the State itself, and the agencies of the State who participate in the IDAS framework. Similarly, section 57 of the ULDA Act, which deals with decision making under that Act, requires the Authority to consider the purposes of the ULDA Act, rather than the purpose of the SPA.

Fisheries Act 1994 (Fisheries Act)

Section 3 of the Fisheries Act states that its main purpose is to "provide for the use, conservation and enhancement of the community's fisheries resources and fish habitats in a way that seeks to:

1. apply and balance the principles of ecologically sustainable development; and
2. promote ecologically sustainable development."

Section 3(2) states that in balancing the principles, each principle is to be given the relative emphasis appropriate in the circumstances. Ecologically sustainable development is defined as meaning using, conserving and enhancing the community's fisheries resources and fish habitats so that:

The principles of ecologically sustainable development referred to in the main purposes of the Fisheries Act are set out in nine paragraphs and are generally consistent with the ways in which ecologically sustainable development is to be achieved under the SPA, although the language used varies slightly from that contained in the SPA.

Again, the conclusion to be drawn is that there is some congruity between the purposes of the SPA and those of the Fisheries Act.

Transport Infrastructure Act 1994 (TI Act)

The TI Act has a lengthy objectives clause with respect to the various types of public and private transport²⁶. Generally speaking, the Act's purposes relate to strategically managing transport in the interests of transport efficiency, safety and community access. The statutory purpose has nothing to say about ecologically sustainable development. This is unsurprising as the TI Act is concerned with essential community services which traditionally have operated, until relatively recently, under the shield of the Crown and with immunity from a range of planning and environment laws. However, overlaid upon the TI Act's statutory regime, at least in the context of development assessment, is the obligation to have regard to the purpose of the SPA which, as mentioned previously, creates a specific relevant consideration for administrative decision making referable to development regulated by the SPA.

1 SPA section 3

2 Elliott v. Brisbane City Council [2002] QPEC 013

3 IPA section 1.2.1

4 IPA section 1.2.3(1)(a)(iii) and (2)

5 Leatch v. National Parks & Wildlife Service [1993] 81 LGERA 270;

Nicholls v. Director-General of National Parks & Wildlife [1994] 84 LGERA 397;

Planning Workshop Limited v. Pittwater Council (1996) NSWLEC 211 (22 August 1996);

Greenpeace Australia Pty Ltd v. Redbank Power Co. [1995] 86 LGERA 143

6 EPLJ Volume 70, page 3

7 Greenpeace Australia Pty Ltd v. Redbank Power Co. (1995) LGERA 143

8 Elliott v. Brisbane City Council at paragraph [40

9 SPA section 3

10 SPA section 3(a)

11 SPA section 5(1)(a)(ii) and (c)(i)

12 SPA section 5(b)

13 SPA section 5(1)(c)(i)

14 SPA section 5(d)

15 Nicholls, D.L. "ESD and the Integrated Planning Act 1997 - A Question of Balance", Local Government Law Journal, Volume 7 No. 3,

16 SPA section 4

17 SEQRP at page 39

18 Premier's Policy Scan, Issue 4, June 2002

19
1. Integrated and long-term decision-making: integrating long and short term environmental, economic and social considerations into decision-making.
2. Intergenerational equity: ensuring that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
3. Intragenerational equity: equitable sharing of resources and opportunity amongst present generations (within and amongst nations).
4. Precautionary principle: ensuring that, where there are threats of serious or irreversible environmental damage, lack of full scientific certainty is not used as a reason for postponing measures to prevent environmental degradation.
5. Conservation of biological diversity and ecological integrity: protecting the variety of all life forms, their genetic diversity and the ecosystems of which they form a part, in recognition of the various services they provide to humans as well as their intrinsic values.
6. Internalising environmental costs: ensuring that the true costs and life cycle costs (ie incurred from the production of inputs, through to waste disposal) of protecting and restoring environmental damage are reflected in the price of a product or service.

20 Coastal Act section 3

21 Coastal Act section 16

22 ULDA Act section 3(2)

23 ULDA Act section 3

24 ULDA Act part 3 division 1

25 Fisheries Act section 3(5)

26 TI Act section 2

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