A new planning principal for ecologically sustainable development has recently been provided for in a recent decision in the New South Wales Land 7 Environment Court. In the case of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, consideration was given to the question of what regard should a consent authority give to the principles of ecologically sustainable development.
In this matter, BGP Properties had appealed against the deemed refusal by Lake Macquarie City Council of an integrated development application to subdivide two separate lots into 48 lots (originally 54 lots but amended during the hearing). The site was part low lying and located in an area of ‘undoubted environmental sensitivity.’ The application was ultimately refused based on the impacts of traffic noise on residents, the Sydney Freshwater Wetland and the largest known population of Tetratheca juncea.
In refusing the appeal brought by the developer, the then Chief Justice of the Court, McClellan CJ, raised an argument by the respondent that the correct approach to evaluate the evidence in relation to the matters raised was to apply the principle of ecologically sustainable development, which included the “precautionary approach” to decision making.
In 1998 the Environmental Planning and Assessment Act 1979 (EP&A Act) was amended to state as one of its objectives the encouragement of “ecologically sustainable development” (section 5(a)(vii)). As the term is not defined in the EP&A Act, consideration was given to what the Parliament intended when making the amendment. Furthermore the meaning provided in the Protection of the Environment Administration Act 1991, also defined the term “precautionary principle.” Considering the historical adoption of the phrase by the Australian government Justice McClellan stated the four well-known principles of ecologically sustainable development as being the pre-cautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity.
Section 79C(1) of the EP&A Act provides for matters that must be taken into account when a consent (also known as a planning) authority is considering a development application. Section 79C(1)(e) specifically provides that the public interest must be considered. Consistent with previous judgements Justice McClellan found that the matters specifically stated in section 79(1) are not the only matters that must be taken into account by consent authorities.
In assessing development applications he noted that the consent authority must “have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise.” This requirement arises in having to address the public interest considerations of a development and in taking into account the objectives of the legislation.
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