(b) it is mandatory, that is, it is a condition of validity, that the Minister consider the public interest when determining a concept plan approval application under Part 3A: at [39] - [40]. That is because it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act, and there is some confirmation of this from cl 8B of the Environmental Planning and Assessment Regulation 2000, s 79C of the EPA Act, and s 39(4) of the Land and Environment Court Act 1979 which requires this Court to have regard to the public interest when dealing with appeals under ss 75L and 75Q of the EPA Act. However, the Court of Appeal held that the public interest here does not embrace ESD because encouragement of ESD is only one of the objectives of the EPA Act : at [52] - [56]. Although "good decision-making" would involve the Minister taking into account whether any objects of the EPA Act were relevant and taking into account those that were relevant, failure to do so would not make the decision void: at [55]. Consequently, my decision and the similar decision in relation to Part 3A in Gray v Minister for Planning [2006] NSWLEC 720, (2006) 152 LGERA 258 were wrong: at [51] - [55].
27 The majority (Hodgson JA, Campbell JA agreeing, Bell JA expressing no view) then held, at [56]:
"However, I do suggest that the 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/or to act bona fide in the exercise of powers granted to the Minister, and thus become capable of avoiding decisions. It was not suggested that this was already the situation at the time when the Minister's decision was made in this case, so that the decision in this case could be avoided on that basis; and I would not so conclude."
28 This is a timing point. As I understand it, if the concept plan approval in Walker had not been given in 2006 but at some later time, there would be a strong prospect that failure to consider the principles of ESD would avoid the decision because of a growing public perception that ESD is plainly an element of the public interest. It appears that the burgeoning global ESD and climate change scientific and legal developments prior to the 2006 concept plan approval, which I surveyed in my judgment in Walker, were insufficient to persuade the majority of the Court of Appeal, as they had persuaded me, that that time was at hand when the 2006 concept plan approval was given. Earlier Preston J, the Chief Judge of this Court, had said in his article, "The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific" (2005) 9 Asia Pacific Journal of Environmental Law 109 at 211: "It is clear that the time for sustainable development has come, and it is essential that individual judges and national judiciaries seize the opportunity".
29 The majority in Walker agreed that the Minister had failed to consider the principles of ESD: at [59] - [60]. They spelt out what that consideration would require, at [60]: