The Contribution of the Land and Environment Court of NSW to Ecologically Sustainable Development
Introduction
Over the past three decades, the concept of ecologically sustainable development (ESD) or sustainable development has become well-established in international and domestic law.
Despite this, ESD remains an elusive concept, giving rise to many unanswered questions.
In identifying and interpreting legal rules and principles, applying these rules and principles to legal disputes, and determining the appropriate remedy for contraventions of the law, judiciaries across the world have developed substantial jurisprudence on ESD.
The Land and Environment Court of NSW (LEC) has been a leader in ESD jurisprudence.
Outline
This presentation will sketch some of the ways in which the LEC has contributed to the entrenchment and explication of the concept of ESD.
The following principles of ESD will be considered:
The principle of sustainable use
The principle of integration
The precautionary principle
The principles of intergenerational and intragenerational equity
The principle of conservation of biological diversity and ecological integrity
The principle of internalization of environmental costs and improved valuation and pricing.
The Concept of ESD
The meaning of ESD is highly dependent on the legislation that incorporates it, making it difficult to generalize about what ESD means.
In most statutory ESD provisions, the concept embodies an outcome to be achieved through the implementation of the principles of ESD (e.g., s 6(2), Protection of the Environment Administration Act 1991 (NSW) (POEA Act)
→ ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes of Authority NSW. Ecologically sustainable development can be achieved through the implementation of the following principles and programs— (a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by— (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as— (i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.
The fundamental outcome that ESD seeks to achieve is ecological sustainability.
ESD demands that development improves the total quality of life both now and in the future in a way that maintains the ecological processes upon which life depends.
The implementation of the principles of ESD achieves different aspects of this outcome; therefore, the principles must be understood holistically.
The principles of ESD reinforce and complement each other, while also tugging in different directions and requiring a weighing of countervailing considerations.
Implementation of ESD Principles
Environmental protection requires the implementation of the principles of ESD.
Case Example:
In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1, a climate action group sought an order to compel the NSW Environment Protection Authority (EPA) to perform its statutory duty to develop environmental quality objectives, guidelines, and policies to protect the environment from climate change.
The LEC noted that:
“Protection of the environment from climate change implements the principles of ecologically sustainable development, including the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and the polluter pays principle, thereby enabling the achievement and maintenance of ecologically sustainable development.” (at [61])
Reference to Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 at [488], [498].
1. The Principle of Sustainable Use
The Principle
The principle aims to exploit natural resources in a manner that is “sustainable,” “prudent,” “rational,” “wise,” or “appropriate”.
Natural resource use must be within ecological limits.
For example, s 528 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) defines “ecologically sustainable use” as the use of natural resources within their capacity to sustain natural processes while maintaining the life-support systems of nature.
LEC Contributions
Case Example: Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136; [2008] NSWLEC 116
The LEC overturned a development consent for a waste disposal facility on prime agricultural land, citing:
The environmental planning instrument specified that:
Prime agricultural land was to be conserved “in a manner which sustains its efficient and effective agricultural production potential.”
Consent should not be granted unless the development would not adversely affect the long-term use for sustainable agricultural production of prime crop and pasture land.
The provisions of the planning instrument were “part of a law supporting sustainable development” by conserving the valuable resource of prime crop and pasture land for sustained agricultural production.
The proposed facility would impede sustainability, adversely affecting the long-term use for sustained agricultural production on that land.
Refusal of development consent enforced the law supporting sustainable development and upheld the principle of good governance.
Case Example: Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7
The LEC refused a development consent for an open cut coal mine due to incompatibility with existing, approved, and likely preferred uses of the land surrounding the mine.
Considerations included:
High visual impacts
Negative social impacts
Climate change impacts
Balancing benefits and impacts, the LEC concluded:
“The exploitability of a proposed development of a natural resource depends not on the location of the natural resource, but on its sustainability… The use of natural resources should be “within their capacity to sustain natural processes while maintaining the life-support systems of nature.”
Exploiting coal resources in the Gloucester valley was deemed not sustainable and would cause substantial environmental and social harm.
2. The Principle of Integration
The Principle
Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes (s 6(2), POEA Act).
There are three pillars of ESD: economic development, social development, and environmental protection.
Aim: to effectively integrate long-term and short-term economic, environmental, and social considerations into decision-making processes.
Decision-makers must ensure that social and economic development decisions do not disregard environmental considerations, and that environmental protection accounts for relevant social and economic implications. (Cordonier-Segger and Khalfan, Sustainable Development Law (OUP 2004) 104)
Integration Does Not Require Equal Weight
It is incorrect to assume that the three pillars must be given equal weight in decision-making for the following reasons:
ESD requires integration rather than balancing these pillars as separate entities.
Equal weighting may be self-defeating, potentially leading to environmental deterioration.
It is unrealistic to expect equal balancing in every decision for ESD; achieving ESD may require unequal balancing depending on the development.
LEC Contributions
Case Example: Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133
The LEC recognized that the ecologically harmful cycle caused by economic development without regard to the environment can be broken by integrating environmental concerns with economic goals.
Precautionary measures by POEA act need to meet two: uncertainty of nature and scope of threat, and a scientific proof of threat of serious environmental damage
The Court exercised merits review powers under s 39(2) of the Land and Environment Court Act, standing in the shoes of the Council as consent authority
The court ruled if “threat” is not established, precautionary rule cannot be used —> result: no evidence (No threat of serious or irreversible damage: The emissions from the proposed base station complied with the Australian public health and safety standard (ARPANSA))
Case Example: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
The LEC noted that the principle can be facilitated by environmental impact assessments (EIA) of proposed projects and strategic environmental assessments (SEA) of policies, plans, and programs.
EIA and approval are essential means of achieving ESD.
Case Example: Gray v Minister for Planning (2006) 145 LGERA 234; [2006] NSWLEC 720
The environmental impact assessment for a large coal mine was deemed inadequate for not considering downstream effects of greenhouse gas emissions from the burning of the mined coal.
judicial review (Class 4) challenging the Director-General's decision that the environmental assessment was "adequate" for public exhibition under Part 3A of the Environmental Planning and Assessment Act 1979 refer to notes
Result: Director is legally bound to consider principles of ESD when deciding whether the environmental assessment adequately addressed the environmental assessment requirements; Scope 3 need to be considered as “The sole purpose of mining thermal coal is for combustion in power stations; There is a "sufficiently proximate link" between mining the coal and the downstream emissions”
Exemplifying Integration in Appeals
In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48, the LEC balanced economic, social, and environmental benefits and detriments in its decision-making.
Additionally, in Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7, the LEC integrated economic, social, and environmental considerations into its decision-making process.
3. The Precautionary Principle
The Principle
According to Section 6(2)(a) of the POEA Act:
“The precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”
Public and private decisions should be guided by careful evaluation to avoid serious or irreversible damage to the environment and assessment of risk-weighted consequences of various options.
History of the Precautionary Principle
The origins of the precautionary principle emphasize being proactive:
“Better to be safe than sorry” and “an ounce of prevention is worth a pound of cure” (Resnik, 2003).
Early development was observed in West German environmental policy, especially in the early 1970s for clean air legislation.
By 1976, the Vorsorgeprinzip or precautionary principle was explicitly introduced in German law regarding “early detection of dangers.”
1985 Vienna Convention of the Protection of the Ozone Layer acknowledged “precautionary measures.”
By the 1990s, the precautionary principle became a recognized normative principle guiding domestic and international environmental law (notably in the 1992 Convention on Biological Diversity and the 1992 United Nations Framework Convention on Climate Change).
Judicial Interpretation of the Precautionary Principle
The precautionary principle has been the principle of ESD most considered in global jurisprudence. Courts have elucidated its meaning and scope by:
Recognizing it as part of domestic law.
Explaining its application.
Determining required precautionary measures when invoked.
LEC Contributions
Case Example: BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
The LEC recognized that, when considering public interest in development, decision-makers must consider principles of ESD, including the precautionary principle.
Case Example: Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133
The application of the precautionary principle is triggered by two cumulative conditions:
A threat of serious or irreversible environmental damage.
Scientific uncertainty concerning the environmental damage.
Once both conditions are satisfied, precautionary measures may be proportionate to avert anticipated threats.
Determining Threats of Serious or Irreversible Damage
Serious or irreversible damage need not have occurred for the precautionary principle to operate; a threat of such damage suffices.
The term “threat” can vary in interpretation across jurisdictions.
The LEC has extended “threat” to include direct and indirect threats, secondary and long-term threats, as well as cumulative impacts from multiple actions or decisions (Telstra v Hornsby SC at [130]).
Factors to Assess Threat Severity
Several factors aid in assessing if a threat is serious or irreversible:
Spatial scale of the threat (local, regional, national, etc.)
Magnitude of impacts on natural and human systems
Perceived value of the threatened environment
Temporal scale of impacts (timing and persistence)
Complexity and connectivity of impacts
Manageability of impacts given available means
Level of public concern and its rational basis
Reversibility of impacts (time frame and difficulty of reversal) (Telstra v Hornsby SC at [131]).
Examples of Non-Serious or Irreversible Threats
In Telstra v Hornsby SC, the LEC found no serious or irreversible threat to public health due to compliance with regulatory standards.
In Bowyer Group v Cook SC (2022) 255 LGERA 229, the court highlighted non-compliance with performance outcomes due to essential habitat destruction of a vulnerable species by quarry development.
Second Condition: Lack of Scientific Certainty
The relevant uncertainty relates to the nature and scope of the threat (Telstra v Hornsby SC at [140]).
The necessary degree of scientific uncertainty is “considerable” or “substantial” (Telstra v Hornsby SC at [146]-[147]).
Factors to analyze this uncertainty include:
Sufficiency of evidence regarding potential environmental harm
Level and type of uncertainty (technical, methodological, epistemological)
Potential to reduce uncertainty reasonably (Telstra v Hornsby SC at [141]).
Shift in the Burden of Proof
When there is a threat of serious or irreversible damage along with considerable uncertainty, the precautionary principle shifts the burden of proof to demonstrate safety onto the proponent of development.
This ensures preventative action before full scientific certainty is established, favoring environmental protection over remediation (Telstra v Hornsby SC at [151]-[152]).
Types of Precautionary Measures
The appropriate types and levels of precautionary measures depend on the combined effect of threat seriousness and irreversibility alongside uncertainty.
Measures should address the probability of occurrence and seriousness of consequences for a computed risk assessment (Telstra v Hornsby SC at [161]).
Selecting Precautionary Measures
Principles for selecting precautionary measures include:
Proportionality: Actions must be proportional to desired protection levels. Total bans may be unrealistic.
Non-discrimination: Comparable situations must be treated similarly.
Consistency: Actions should align with previously adopted measures.
Cost-benefit analysis: Compare short-term and long-term consequences of action versus inaction.
Scientific developments: Actions must be reassessed with new scientific data.
Burden of proof: Assign accountability for scientific evidence necessary for thorough risk assessment.
Obtaining Further Information
Case Example: Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
The LEC applied the precautionary principle when refusing a statutory license to take an endangered species, emphasizing that knowledge gain could lead to future license approval.
Allowing Margin for Error
Margin for error ensures sound decision-making until the implications of a project are fully known (Telstra v Hornsby SC at [162]).
Case Example: Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274; [2006] NSWLEC 52
Without knowing the spread of the species, The LEC assumed a wide distribution of an endangered ecological community to avoid serious damage risks without needing scientific certainties (at [76]-[81]).
Case Example: BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210
LEC ruled that a proposal likely to cause significant effects on an endangered ecological community required an environmental impact statement (at [73], [88]).
Adaptive Management Approach - a way to cope with uncertainities
Implementing an adaptive management strategy acknowledges uncertainties and expands the affected area as uncertainties decrease.
Conditions include:
Monitoring impacts based on agreed indicators
Promoting research for key uncertainties
Evaluating outcomes regularly and making necessary adjustments
Establishing a compliance system
Case Example: Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48
The LEC called for an adaptive management approach to mitigate environmental damage threats to stygofauna due to quarrying, requiring monitoring linked to adaptive management (at [187]).
Prohibiting Actions
If precautionary measures cannot effectively manage environmental threats, judicial recommendations may lead to prohibiting proposed developments.
Case Example: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48
The LEC refused consent to an open-cut coal mine extension based on anticipated irreversible harm despite proposed compensatory measures being inadequate.
4. The Principles of Intergenerational, Intragenerational, and Interspecies Equity
The Principles
Inter-generational equity emphasizes that current generations must ensure that the environment's health, diversity, and productivity are maintained for future generations (s 6(2)(b), POEA Act).
Intragenerational equity refers to equity among the current generation.
Proposed recognition of interspecies equity argues for considering nonhuman life within equity discussions about ESD.
Intergenerational Equity: LEC Contributions
Case Example: Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136; [2008] NSWLEC 116
The LEC referenced intergenerational equity in its refusal of development consent for a waste facility on agricultural land due to adverse long-term impacts (at [72]).
Case Example: Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59
The LEC recognized sustainable exploitation of finite resources as necessary for intergenerational equity in energy production (at [74]).
Case Example: Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720
The LEC found that not considering greenhouse emissions from coal mining constituted a failure to uphold intergenerational equity (at [126]).
Cultural Heritage and Intergenerational Equity
Case Example: Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205
Clarence Valley Council was prosecuted for harming a culturally significant Aboriginal scar tree, resulting in classes of inter-generational inequity (at [34]-[35]).
The court underscored that protecting cultural heritage through intergenerational equity is crucial for sustainability (at [27]).
Inter-Equity Considerations LEC Contributions
Case Example: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48
The LEC weighed intergenerational, intragenerational, and interspecies equity in refusing a coal mine due to significant impacts on biodiversity and social justice (at [486]-[494]).
On local villagers by limiting their ability to live in a clean and healthy environment (intragenerational equity) 2. On future generations by not maintaining the health, diversity and productivity of the local environment (intergenerational equity) 3. On components of biological diversity, such as endangered ecological communities and threatened fauna, by disturbing the integrity, stability and beauty of the biotic community (interspecies equity) (at [486]-[494]).
Case Example: Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7
Impacts on intragenerational equity stemmed from burdens surrounding the proposed mine affecting local residents, while benefits accrued to distant stakeholders (at [413]-[414]).
Intergenerational inequity resulted as project benefits were short-lived, whereas environmental burdens would endure (at [415]-[416]). The long-term burdens included the permanent alteration of the landscape, social impacts particularly on Aboriginal people and the impacts of climate change.
5. The Principle of Conservation of Biological Diversity and Ecological Integrity
The Principle
Conservation of biological diversity and ecological integrity should be a fundamental consideration (s 6(2)(c), POEA Act).
Conservation of biodiversity includes maintaining diversity within species, between species, and within ecosystems.
Conservation of ecological integrity relates to protecting the health and functioning of ecological processes critical for life.
Decision maker should be aware impact but also the mitigation and preventive measures
LEC Contributions to Biological Diversity and Ecological Integrity
Case Example: Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270
The LEC denied a license for taking endangered species due to insufficient scientific knowledge about the species in relation to ecological impacts (at 284-287).
Case Example: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
The LEC refused development consent affecting the endangered Sydney Freshwater Wetland due to the substantial biodiversity value (at [150]).
Case Example: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48
The LEC rejected a large coal mine development partly due to unacceptable impacts on endangered communities and lack of appropriate mitigation measures (at [255]).
Case Example: Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120
The LEC dismissed an appeal for a manufactured home estate based on expected irreversible impacts on biodiversity (at [156]-[190]).
Applying the Principle in Environmental Sentencing
Case Example: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
The LEC highlighted biological diversity's importance in sentencing for environmental harm, emphasizing that loss affects interconnected ecological relationships (at [145]-[147]).
6. The Principle of Internalisation of Environmental Costs and Improved Valuation and Pricing
The Principle
The principle asserts that environmental factors should be included in the valuation of assets and services (s 6(2)(d), POEA Act).
Internalisation of environmental costs requires accounting for both short-term and long-term environmental costs in developmental planning.
The rationale is that reflecting the true value of environmental components can bring about sustainable management rather than exploitation.
Implementing Internalisation of Environmental Costs
Implementation methods include:
a) Including environmental factors in asset and service valuation.
b) Adopting the polluter pays principle, where generators of pollution bear responsibility for remediation.
c) Adopting the user pays principle, ensuring users of services bear comprehensive costs, including resource usage and waste disposal.
d) Pursuing established environmental goals in a cost-effective way through financial incentives and market mechanisms (s 6(2)(d), POEA Act).
Principles of User Pays and Polluter Pays
Both principles advocate accountability:
User pays principle: Beneficiaries of an investment should pay for its creation.
Polluter pays principle: Individuals causing environmental harm should cover the remediation costs.
Applications of the Polluter Pays Principle
The principle has been applied by courts in various contexts:
Sentencing for environmental crimes.
Imposing civil penalties for breaches.
Reviewing regulatory orders.
Imposing conditions on development approvals in merit review appeals.
Case Example: J.K. Williams Staff Pty Limited v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23
The LEC noted that environmental and economic costs need to be internalized for responsible operations, detailing a case of significant creek bank erosion attributed to water treatment effluent discharge.
Case Example: Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
In sentencing for asbestos waste offenses, the LEC reiterated the need for the polluter pays principle, ensuring persons generating waste incur containment and abatement costs (at [152]-[153]).
Case Example: Environment Protection Authority v Dib Hanna Abdallah Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80
The LEC applied the polluter pays principle in a later case, explaining that making environmental crimes economically irrational forces individuals to internalize prevention costs (at [207]).
Case Example: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
The LEC mandated that polluters must remedy ongoing environmental harm and aim to restore the environment as closely as possible to its state prior to pollution (at [230]).
Conclusion
The LEC has contributed significantly to the understanding of ESD, forming foundational elements of the broader framework.
While progress has been made in recognizing and applying ESD principles, many gaps remain in the overall picture that future decisions must address.
Continued judicial interventions are essential for clarifying and enhancing the concept of ecologically sustainable development in practice.