Did the PAC Correctly and Adequately Consider ESD Principles, Including the Precautionary Principle?
172Having determined that the principles of ESD, which include the precautionary principle, are relevant mandatory considerations that the PAC was obliged to take into account in approving the major project application having regard to the public interest, there are four, possibly five, additional applicable legal principles that should be borne in mind.
173First, regard must also be had to the level of particularity at which the subject matter that is said to be relevant and mandatory is to be considered. As was observed by this Court in Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [60] per Preston J), " the statute must expressly or impliedly oblige the decision-maker to enquire and consider the subject matter at the level of particularity involved in the applicant's submission." Likewise, it was observed in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 (at [23] per Gleeson CJ and McHugh J) that where an allegation is made that a decision maker is required to consider a matter at a level of particularity, "there must be found in the legislation an implied obligation of the Minister to examine and investigate the contention at the level of particularity involved in the submission" (see also Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 374-375 per Deane J).
174In the present case, provided the PAC considers the matters expressly referred to in s 75J(2) of the EPAA, no further statutory detail in Pt 3A informs the level of particularity which the mandatory relevant consideration of ESD principles, as part of the requirement to consider the multifaceted concept of the public interest, is to take. Moreover, the concept of ESD as stated in s 6(2) the Protection of the Environment Administration Act and as incorporated by reference into the EPAA, is stated at a high level of generality. In addition, in enacting the EPAA Parliament did not subordinate ESD principles to all other considerations (see the objects contained in s 5(a) of the EPAA, which are expressed only "to encourage" ESD). But it must be noted that this is a project approval, and not the determination of a concept plan, where more detailed consideration of ESD principles would be premature (Haughton at [167]). Thus all factual matters touching upon ESD principles and, in particular, the precautionary principle and the principle of inter-generational equity, are not necessarily mandatory relevant considerations. Put another way, the level of generality at which these principles are considered does not, in my view, mandate any particular method of analysis nor the outcome that should result from any consideration (Drake-Brockman at [132(2)]). Thus descent to a direct application of the principles to each and every condition imposed in the approval is not required.
175The allegations made by the Alliance that coal seam gas mining presents a threat of serious or irreversible damage to groundwater or other water, are not only unsupported by any evidence, they are, moreover, formulated at such a high level of generality that they cannot found an assessment of the risks associated with the project. In summary, there is no basis for an implication in the terms of Pt 3A, and in particular s 75J, for an obligation to consider matters pertaining to the precautionary principle at the level of particularity for which the Alliance contends.
176Second, consideration of ESD principles does not require specific reference to the particular principles comprising ESD. It is sufficient that the PAC engage with the substance of those principles (Drake-Brockman at [132(7)] and Walker at [59]).
177Third, the weight to be given to any relevant consideration of ESD principles is a matter for the PAC (Peko-Wallsend at 40-41).
178Fourth, a proper, genuine and realistic, in the sense of more than passing or perfunctory, consideration of the principles must, however, be given. While use of this formula has been cautioned against, lest it permit an impermissible slide into merits review (Kindimindi at [79] and Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [57]), its use continues to endure (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26], [32] and [34]).
179Fifth (which is perhaps no more than an application of the third and fourth principles stated above), it is for the PAC, as the decision-maker, to decide whether or not the two preconditions to the application of the precautionary principle exist, and if so, the extent of the risk, the level of scientific uncertainty and what proportionate response, if any, should be made. These are matters of merit that are not the subject of judicial review. An incorrect assessment of the preconditions or the adequacy of the response if met, is not amenable to judicial review as the Alliance's case is presently framed. To do so would be to trespass on the merits of the decision made by the PAC to approve the major project.
The PAC Did Not Incorrectly State or Apply the Precautionary Principle
180The Alliance submitted that the correct formulation of the precautionary principle involved, as stated in Telstra per Preston J, the identification of the two threshold conditions, namely, the threat of serious and irreversible damage and scientific uncertainty about the nature and scope of the threat of environmental damage. Both these conditions precedent were demonstrated, it argued, on the materials before the PAC, and therefore, the burden of demonstrating otherwise shifted to AGL to show that the threat did not exist or was negligible. This not having been discharged by AGL, the PAC was obliged to proceed on the basis that there was a threat of serious or irreversible environmental harm and determine what preventative measures ought to be taken in light of this assumption.
181However, the PAC did not, the Alliance contended, take this approach, misstating and misconstruing its obligation, and therefore, failing to properly, or at all, take into account the precautionary principle in granting the project approval. Rather, the PAC, after identifying issues productive of serious environmental damage and an absence of scientific certainty, accepted the "implicit" recommendation that there would, or could, be an acceptable minimisation of risk through adaptive management. Hence the PAC deferred to the Director-General, at some future date, the task of assessing and responding to identified risks, whereas the legally correct consideration of the precautionary principle required the assumption of the realisation of the risk and consideration of appropriate responsive measure by it. In proceeding to assume that minimal risk was posed, as a consequence of accepting the submissions (both explicit and implicit) of AGL and the Department to the effect that adverse effects were not expected and that the risk of harm was not significant, the PAC did not in substance consider and apply the precautionary principle.
182In the EA, to which the PAC had regard, the principles of ESD and the precautionary principle were described as follows (pp 28-3 - 28-4, emphasis added):
28.3 Ecological Sustainability
Ecologically Sustainable Development (ESD) is a concept firmly enshrined in New South Wales environmental legislation and government policy. Schedule 2 of the EP&A Regulation establishes four guiding principles to assist in achieving ESD, as follows:
· 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.
· Inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
· Conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration.
· Improved valuation and pricing of environmental resources - namely, that environmental factors should be included in the valuation of assets and services, such as polluter pays, full life cycle costing, and utilising incentive structures/market mechanisms to meet environmental goals.
The EPBC Act also identifies a fifth principle for consideration in environmental impact, namely:
'Decision making processes should effectively integrate both long term and short term economic, environmental, social and equitable considerations.'
These five principles are interrelated and need to be considered both individually and collectively as part of determining whether or not a project would be consistent with the principles of ESD in Australia.
28.3.1 The Precautionary Principle
The IGAE states that the precautionary principle is to be a guiding principle for informed policy making and program implementation by all levels of government in Australia. In this manner, it is to guide both the public and private sector in its decision making and assessment of different options, particularly when decisions are being made in the face of uncertainty. In doing so, it requires avoidance of serious or irreversible damage to the environment, whenever practicable.
The Project has taken on board the precautionary principle by carrying out detailed environmental investigations in order to gain as much knowledge about the environmental characteristics of a locality and the processes and interactions of various components of the environment as reasonably as possible. This knowledge has been used to inform project design and the selection of alternatives, identify the potential environmental impacts of the proposal and develop specific environmental management practices and safeguards for the proposed works which aim to avoid significant environmental impacts and manage or minimise residual impacts.
Environmental monitoring would be undertaken throughout the construction, operation and rehabilitation phases of the Project to assess the adequacy of the precautions and safeguards used to minimise environmental impacts. This approach is consistent with the precautionary principle.
With regard to the Concept Area approval, further detailed investigations would be undertaken in this area as part of future project applications prior to the commencement of works, to ensure that the potential environmental impacts of the proposal are fully understood and that appropriate safeguards are
identified to protect the environment.
183In not dissimilar terms is the Director-General's EA Report, to which the PAC also had regard, where s 5 of the EPAA is quoted and express regard is had to the principles of ESD, including the precautionary principle, and to the definition given to ESD in the Protection of the Environment Administration Act (pp 10 - 11, emphasis added, quoted in full earlier in the judgment):
Of particular relevance to the environmental impact assessment and eventual determination of the subject project application by the Minister, are those objects stipulated under section 5(a). Relevantly, the objects stipulated under (i), (ii), (vi) and (vii) are significant factors informing determination of the application (noting that the proposal does not raise significant issues relating to communication and utility services, land for public purposes, community services and facilities or affordable housing). With respect to ecologically sustainable development, the EP&A Act adopts the definition in the Protection of the Environment Administration Act 1991, including the precautionary principle, the principle of inter-generational equity, the principle of conservation of biological diversity and ecological integrity, and the principle of improved valuation, pricing and incentive mechanisms. In applying the precautionary principle, public decisions should be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment and an assessment of the risk-weighted consequences of various options.
184It is the expression "whenever practicable" that is the genesis of the Alliance's submission that the precautionary principle has been misconstrued and therefore not considered by the PAC.
185I do not accept the Alliance's submissions in this regard.
186First, when regard is had to the definition given to the precautionary principle contained in s 6(2)(a) of the Protection of the Environment Administration Act it is plain that no error of construction, and thus consideration, has occurred. Section 6(2)(a) states that, 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" (emphasis added).
187On any view, the test articulated both in the EA and in the Director-General's EA Report is consistent with the statutory description of the precautionary principle in s 6(2) of the Protection of the Environment Administration Act 1991, which in turn is picked up by s 4(1) of the EPAA.
188Second, to the extent that the Alliance places considerable emphasis on the articulation of the precautionary principle in Telstra, not only was that decision concerned with proceedings within Class 1 of this Court's jurisdiction, and not a case concerning judicial review, but the statement by Preston J cannot supplant the plain and unambiguous words of the statute in either s 6(2) of Protection of the Environment Administration Act or s 4(1) of the EPAA.
189Third, the submission impermissibly invites the Court to examine the adequacy, that is to say the merits, of the PAC's assessment of the risk of irreversible environmental damage and scientific uncertainty (Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [117]).
190Fourth, even in the PAC incorrectly assessed either the risk of serious environmental harm or the state of scientific uncertainty accompanying coal seam gas extraction, properly analysed, this amounts to an error of fact, which is not reviewable in these proceedings (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ).