Planning Minister v Walker (appeal)

Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224

 

This case arose out of challenge to a proposed residential subdivision and retirement home on Sandon Point, in New South Wales.  Amongst other things, the applicant (Ms Walker) argued that the Minister had failed to consider the ‘public interest’ in failing to consider the risk of climate change-induced coastal inundation.  Justice Biscoe at first instance accepted that argument, declaring the Minister’s decision invalid on the grounds that the Minister had failed to consider the principles of Ecologically Sustainable Development (‘the ESD principles’), and hence had failed to consider the ‘public interest’.

 

The New South Wales Court of Appeal overturned the decision of Biscoe J, finding that whilst the ‘public interest’ was an implied mandatory consideration, the ESD principles were not.  Accordingly, although the ESD principles were not considered, that oversight only goes to the inadequacy of the ‘public interest’ consideration on the merits, rather than a failure to consider which is susceptible to judicial review.  

 

However, the majority of the Court of Appeal (Bell JA dissenting) also emphasised the importance of the ESD principles to such decisions.  The Court noted that a very serious failure to consider certain relevant aspects of the public interest might be evidence of a failure to consider the public interest altogether.  The majority judgment hinted that the final approval for the development would require consideration of the ESD principles as a condition of validity, which suggests that the threshold for such invalidity is high, but not unattainable.

 

The decision has important repercussions for cases where the ESD principles are not mandatory considerations, but a more general ‘public interest’ consideration is (expressly or impliedly) mandatory: see, for example, Gray v Minister for Planning; Telstra Corporation v Hornsby Shire Council.  In such cases, failure to consider the ESD principles will likely be viewed as a non-reviewable error in the way the public interest was considered, rather than an error in whether it was considered. Mick Power 

On Climate Change, Australia Can’t Lead from Behind

The Rudd government is currently feeling the heat over its climate change policy. And rightly so. If Australia truly aspires to be a global leader in climate change law and policy, then the proposals put forward in the government’s White Paper are no way to go about achieving this goal.

Much of the criticism and debate following the release of the government’s policy White Paper on December 15 has focussed on the target of a five per cent reduction in Australia’s greenhouse gas production from 2000 levels by 2020. On the science, the Greens and many others are right to condemn this target. A five per cent cut in greenhouse emissions won’t save the Reef or many other iconic ecosystems in Australia and around the globe. If we are to avert dangerous levels of global warming, much deeper cuts – of between 25 and 40 per cent – are needed by 2020.

Moreover, the dominant thinking of the government in designing the scheme seems to have been that of pragmatism and politics, rather than principle. In addition to the modest five per cent cut, the scheme incorporates extensive payouts to large polluters, such as existing coal-fired power stations. In Europe, where a similar approach was tried in the first phase of its emissions trading system from 2005 to 2008, such payouts were successful only in generating large windfall gains for these big polluters. Even the government’s own climate change advisor, Professor Ross Garnaut, has been scathing in his assessment of the ‘over the top’ approach taken by the government to compensating polluting industry for the introduction of a carbon price. The result is that the government’s carbon pollution reduction scheme is less implementation of the environmental law principle of ‘polluter pays’ and more an example of ‘pay the polluters’.

In the broader context of the global challenge to tackle climate change, however, Australia’s five percent target and domestic scheme may be largely irrelevant. Whatever scheme Australia adopts, it won’t be able to solve the problem of global climate change by acting alone. As Professor Garnuat has stressed, a global solution is imperative. Consequently, Australia’s efforts should be directed towards fostering a global solution, starting with the critical international negotiations on a ‘post-Kyoto’ climate change treaty, taking place in Copenhagen in December 2009. If the goal is effective international action on climate change, then the real game is not so much our domestic five per cent target, but rather the target the Australian government says it will adopt if a comprehensive global agreement is reached. In this respect, the White Paper pledges a mere 15 per cent cut below 2000 levels on the proviso that ‘all major economies commit to substantially restrain emissions and all developed countries take on comparable reductions to that of Australia’. This means that an Australian target of 15 per cent is conditional upon the world reaching an agreement that incorporates emissions targets for countries currently outside the Kyoto Protocol such as the US. It also requires a firm commitment to reducing emissions from large developing country emitters such as China. The federal government appears to have little faith in the possibility of such an agreement emerging, describing the prospect as ‘challenging’.

Certainly, international negotiations on a new climate change treaty will not be easy. However, by putting down all its chips on a maximum 2020 target of 15 per cent, the federal government appears to have forfeited the game before the match has even started. A commitment of at least a 25 per cent reduction in emissions by 2020 is needed if Australia is to be a real player on the stage of international climate change negotiations in the coming Copenhagen round. Staking its claim as a true international citizen interested in an effective global solution to the problem of climate change is the only way in which Australia can hope to influence the negotiating positions of those countries, such as the US and China, that truly hold the fate of the world’s climate system in their hands.

On this issue, Australia cannot – and cannot afford to – lead from the back of the pack.

Gippsland Coastal Board case (2008)

This judgment is available at:http://www.austlii.edu.au/au/cases/vic/VCAT/2008/1545.html. The following case summary is drawn from my forthcoming article on climate change law to be published in MULR.

In the Gippsland Coastal Board case, the Victorian Civil and Administrative Tribunal (VCAT) refused consent for residential developments in a low-lying coastal region. The local council had previously approved permits for six residential developments in the Grip Road area of Toora, an area zoned for agricultural and mixed land uses. The Tribunal’s refusal was primarily based on inconsistency with zoning and planning controls. Importantly, however, VCAT also applied the precautionary principle to find that development consent should not be granted in view of the ‘reasonably foreseeable risk’ of inundation to the land and proposed dwellings due to sea-level rise induced climate change. This was despite the absence of specific provisions in the Victorian planning legislation requiring consideration of sea-level risk. The Tribunal stated:

“We accept that there is growing evidence of sea level rises and risks of coastal inundation. While we acknowledge that there is uncertainty as to the magnitude of the sea level rise, it is evident that the consequences of such rises in level will be complex due to the dynamic nature of the coastal environment. Put plainly, rising sea levels are to be expected. The range of impacts may well be beyond the predictive capability of current assessment techniques. In the face of such evidence, a course of action is warranted to prevent irreversible or serious harm.” 

Walker case (2007)

This judgment is available at:http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/741.html.The following case summary is drawn from my forthcoming article on climate change law to be published in MULR.  

The case of Walker v Minister for Planning & Ors concerned a concept plan for residential subdivision and a retirement development on coastal plain land north of Wollongong. The Planning Minister’s approval of the plan was challenged by the applicant on various grounds, including that the Minister failed to take account of mandatory considerations, namely ecologically sustainable development (ESD) and the impacts of the proposal on the environment, including whether the flooding impacts of the proposal would be compounded by climate change. In the voluminous documentation presented to the Minister as part of the approval process there was no mention made of increased flood risk consequent upon climate change, suggesting that the relevance of this consideration was not assessed by decision-makers.

Following an extensive review of the scientific evidence supporting the occurrence of global warming and the need to adapt to climate change, Justice Biscoe turned to the question of whether the Minister had failed to take account of ESD through the absence of any consideration of climate change-related flood risks. His Honour remarked that climate change was “a deadly serious issue” and that “climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal plain development”. Whether climate change flood risk was a relevant consideration in the case at hand turned on construction of the subject matter, scope and purpose of the relevant New South Wales planning legislation. Justice Biscoe held that:

“There may be found in the subject matter, scope and purpose of this legislative scheme, as with nearly every statute conferring power to make an administrative decision, an implication that the decision is to be made on the basis of the most current material available to the decision-maker which has a direct bearing on the justice of the decision … So too, in my opinion, with the deadly serious issue of climate change, which has loomed ever larger in the public and political eye for years.”

In the context of the project at issue, the Court found that climate change flood risk could be described as “an aspect of the public interest that potentially has a direct bearing on the justice of the decision”, making it a relevant consideration in decision-making. Consequently, the Minister’s failure to assess the potential relevance of climate change flood risk, and if relevant, to take this risk into account when deciding whether to approve the development concept plan, rendered the original approval void. 

Northcape Properties case (2007/2008)

The judgment of the Environment Resources and Development Court at first instance is available at:http://www.austlii.edu.au/au/cases/sa/SAERDC/2007/50.html. This decision was appealed to the South Australian Supreme Court: see http://www.austlii.edu.au/au/cases/sa/SASC/2008/57.html.

White Paper

The Australian government released its White Paper outlining the design of the proposed national emissions trading scheme (referred to as a ‘carbon pollution reduction scheme in the White Paper) on 15 December 2008.Full copies of the White Paper can be downloaded at http://www.climatechange.gov.au/whitepaper/index.html. 

Massachusetts v EPA

Xstrata Coal cases (2007)

The case at first instance was heard by the Queensland Land and Resources Tribunal. This judgment is available at http://www.austlii.edu.au/au/cases/qld/QLRT/2007/33.html. The Tribunal’s judgment was appealed to the Queensland Supreme Court. The latter judgment is available at http://www.austlii.edu.au/au/cases/qld/QCA/2007/338.html. The following case summary is drawn from my forthcoming article on climate change law to be published by MULR.

The Xstrata case involved an environmental group objecting to the grant of governmental authorisations for new coal mines. President Koppenol of the Land and Resources Tribunal rejected the group’s claims and proposed greenhouse offset conditions, ruling that he was not satisfied:

“that that assumption (relevantly, a demonstrated causal link between this mine’s GHG emissions and any discernable harm – let alone any “serious environmental degradation” – caused by global warming and climate change) has been shown by QCC to be valid.”

In his reasoning, Koppenhol P strongly criticised the findings of the Stern Review and the Fourth Assessment Report of the Inter-governmental Panel on Climate Change, even going so far as to undertake a re-analysis of scientific conclusions on temperature increases over the last half-century. This was extraordinary given that the coal mining company concerned had not disputed the scientific evidence that anthropogenic GHG emissions contribute to global warming and climate change.

The Tribunal’s decision was subsequently appealed to the Queensland Court of Appeal largely on grounds of a failure to ensure procedural fairness. The Court of Appeal agreed that the Tribunal’s processes had denied natural justice to the applicant and ordered a re-hearing. However, that re-hearing never took place as the Queensland government intervened to pass special legislation authorising the mines, thereby by-passing the normal approval processes. 

Drake-Brockman case (2007)

This judgment, issued by the Land and Environment Court, is available at http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/490.html.  In relevant parts of its judgment the Court ruled:  

“the idea that the Minister can only consider ecologically sustainable development by considering a quantitative analysis of greenhouse gas emissions finds no support in the statutory scheme enacted by Parliament. The Minister or Director-General may choose to require such an assessment for a particular project but Parliament has not dictated that outcome.

The fact that the respondents admitted that climate change generally induced by greenhouse gas emissions poses a risk of serious and irreversible harm to the environment and the development would involve the production of greenhouse gases is not (as the applicant appeared to assume) decisive. The respondents did not concede any net increase in greenhouse gases and Mr Lee’s evidence does not establish this. Mr Lee’s evidence is a calculation of absolute emissions disregarding the fact that the project involved redevelopment of a former industrial site and the people who will live and work in the development must already live and work somewhere else. But these observations themselves involve an impermissible trespass on the merits of the decision. The relevant point is that Mr Lee’s report was not before the Minister. I infer that the Minister adopted the Director-General’s conclusion that the project, including its greenhouse gas emissions, would be consistent with the principles of ecologically sustainable development. Nothing in the legislation required the Minister to reach this conclusion of consistency only after considering information about greenhouse gas emissions of the character and extent proposed by the applicant. Mr Lee’s evidence invited a review of the merits of the Minister’s decision and was thus immaterial to these proceedings.” 

Taralga Landscape Guardians case (2007)

The judgment in this case is available at:http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/59.html.The following case summary is drawn from my forthcoming article on climate change law to be published in MULR.

At issue in the Taralga case was a proposed wind farm comprising 62 turbines. The proposal was opposed by local residents and landowners who objected to its potential amenity and environmental impacts, such as blighting of the landscape, aesthetic impacts, noise emissions, and flora and fauna impacts. The objectors brought a merits appeal against approval of the wind farm before the New South Wales Land and Environment Court, which reconsidered the original decision, including the relevance of principles of ecologically sustainable development (ESD) to the decision-making process.

Chief Justice Preston conceived of the dispute as requiring a weighing of the geographically narrower concerns raised by the objectors, versus the global effects of climate change, which the establishment of renewable energy facilities would help to ameliorate. In this respect, his Honour came down on the side of the “broader public good” represented by attempts to address the global problem, citing the principle of inter-generational equity as a key consideration. In particular, the attainment of inter-generational equity in the production of energy was said to involve a requirement:

“as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.”

The result was that the full project as originally planned was permitted to proceed. Nonetheless, the court noted that opposition to the proposal by those representing local interests had resulted in a better development with greater environmental protection. This included a condition providing a public ‘right to know’ as the development unfolded, together with a range of measures founded on the precautionary principle. The latter extended to adaptive strategies designed to respond to any occurrences of threats to flora or grasslands if subsequently discovered during construction of the wind farm. 

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