Australia: Not Strictly Mandatory To Consider ESD Principles

Last Updated: 3 October 2008
Article by Jacinta Studdert and Rebecca Pleming

Last week the New South Wales Court of Appeal, in the decision of Minister for Planning v Walker [2008], ruled that it was not a mandatory condition for the granting of development approval that the Minister for Planning (the Minister) consider principles of ecologically sustainable development (ESD).

The leading judgment provided that whilst consideration of ESD was not a prerequisite for a valid approval for the application, it will be necessary for the Minister to make decisions in the public interest. Those involved in assessing planning and development proposals must, in each and every case, ensure that consideration is given to public interest factors. Inadequate consideration of the public interest will render a decision void.

Specific consideration of ESD principles will only need to occur if they are materially relevant to the particular development. If they were relevant to the development, however were not considered, this will not necessarily mean that the public interest was not adequately addressed and the decision will be open to challenge.

In light of this decision, developers should specifically address, within their development applications, the extent to which principles of ESD will apply to their project. In particular, any potential long-term threats of serious or irreversible environmental damage which may be relevant to their development should be detailed. This information should also be addressed in any supporting documentation in relation to the development application.

It is also essential that those involved in assessing development proposals be aware of the potential implications of not adequately considering such principles.
These implications could include having the decision challenged, or could extend to potential exposure of the decision maker to a claim in negligence.

The initial decision

In November 2007 the New South Wales Land and Environment Court ruled that the approval of a concept plan under Part 3A of the Environmental Planning and Assessment Act (the EPA Act) by the Minister was void because the Minister failed to consider ESD principles. The approval related to a large residential development on the New South Wales south coast and, in particular, it was found that the Minister had not considered climate change-related flood risk, namely, whether changed weather patterns as a result of climate change would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on the development of the site.

The court, in quashing the Minister's approval, referred to the objects of the EPA Act and held that it was mandatory for the Minister to consider the public interest, including the principles of ESD, and addressed the question of the level of particularity at which the Minister was obliged to consider ESD. In making this ruling, the judge upheld the decision in Gray v The Minister for Planning [2006].

Mandatory relevant considerations

In upholding the appeal against the original decision, the Court of Appeal found that it is a condition of validity that the Minister consider the public interest and that any "attempt to exercise powers in which a Minister did not have regard to the public interest could not a bona fide attempt to exercise his or her powers... "However, the court provided that this requirement operates at a "high level of generality" and does not, of itself, require that regard be had to any particular aspect of the public interest.

Specifically, one of the judges stated [at 44] that:

"...a mandatory requirement that the Minister have regard to the public interest is [not] necessarily breached in all cases where the Minister does not have regard to the principles of ESD. The mandatory requirement that the Minister have regard to the public interest does not of itself make it mandatory (that is, a condition of validity) that the Minister have regard to any particular aspect of the public interest, such as one or more of the principles of ESD."

The judge noted that his difficulty with the view that failure to consider ESD principles renders void a Minister's decision is that ESD is just one of many objects set out in s 5 of the EPA Act, some of which will have no relevance to many decisions. As such, the judge found that the better position is that, in order to make a bona fide decision, the Minister must consider whether any of the objects of the EPA Act are relevant to a decision, and must take into account those that are considered relevant. Consideration of ESD would require that the substance of the matters referred to in those four principles be addressed.

Interestingly, the judge further suggested that, in his view, principles of ESD are likely to come to be seen as so plainly an element of the public interest, in relation to most if not all decisions, that failure to consider them will become strong evidence of failure to consider the public interest and will be capable of avoiding decisions. However, the judge did not apply this conclusion to the present case.

In the present case, the Court found that the Minister had considered the public interest and, as such, the decision of the Minister was restored.

Of note, two of the judges commented that it was "somewhat surprising" that the Minister had not considered the precautionary principle or the principle of inter-generational equity and that since the aspects of ESD were not addressed by the Minister in giving his approval to the concept plan, they will need to be addressed when development approval is sought. The judge concluded that:

"It may be that failure to [take into account the principles of ESD] could, having regard to the content of this judgment, be considered evidence of failure to take into account the public interest."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jacinta Studdert
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