(e) the public interest."
100 In Carstens v Pittwater Council (1999) 111 LGERA 1, Lloyd J was required to consider whether s 79C(1) was an exhaustive statement of the matters to be considered. His Honour held that it was not and, in coming to this conclusion, he confirmed that the discretion in s 79(C) was to be informed and exercised in a manner which promotes the objects of the Act. With respect to principles of ecologically sustainable development, his Honour said (at LGERA 25):
"The Commissioner's decision contains the following statements:
'The Act requires that the principles of ecologically sustainable development (ESD) must be a factor in an assessment of the impact on the environment of a combined Development Application and Construction Certificate …
To achieve the objects of the Act and in particular ESD principles, a balance needs to be struck between the man-made development and the need to retain the natural vegetation.'
Mr Tomasetti submits that the Commissioner erred in holding that the Act required that the principles of ecologically sustainable development (ESD) must be a factor in the assessment of the impact; it is not a factor which is set out in s 79C(1), neither is the phrase defined in the Act.
Mr Preston submits that having regard to (a) the express object in s 5(a)(ii) of the EP&A Act of encouraging ESD; (b) the fact that one of the central issues in determining the development application concerned the likely effect on a threatened ecological community; (c) the desirability of an administrative decision-maker exercising discretionary statutory powers in a way which promotes the objects of the Act; (d) the fact that the principles of ESD are relevant to many of the s 79C(1) generic categories of matters; (e) the fact that the principles of ESD have been accepted internationally, nationally and within New South Wales as relevant to environmental decision-making; and (f) the absence of any provision in s 79C(1) or elsewhere which states that ESD is an extraneous consideration, the Court should not conclude that ESD is an irrelevant consideration. Mr Preston refers to a number of cases in the Court and elsewhere in which ESD principles have been applied.
I have previously discussed under ground (1) above the relationship between the objects of the EP&A Act described in s 5 and the matters to be taken into consideration in determining a development application set out in s 79C(1). In the light of that discussion and for the reasons which I have there stated, I concluded that s 79C(1) sets out the matters that must be taken into consideration, but that subsection does not exclude from consideration matters not listed and which may be of relevance to the particular development application and which further the objects of the Act. That is to say, it is not an irrelevant consideration for the decision-maker to take into account a matter relating to the objects of the Act. One of those objects is to encourage ecologically sustainable development (s 5(a)(vii)). Moreover, one of the considerations expressly mentioned in s 79C(1) is '(e) the public interest'. In my opinion it is in the public interest, in determining a development application, to give effect to the objects of the Act. For these reasons I do not accept the submission that the Commissioner erred in holding that the principles of ESD must be a factor in the consideration of a combined development application and construction certificate."
101 I respectfully agree with his Honour's conclusion.
102 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 the Court of Appeal was required to consider the breadth of matters which could be considered under s 79(C). Mason P, with whom Spigelman CJ and Ipp JA agreed, said (at LGERA 209-210):
"In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the 'public interest'. For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231 at 235."
103 Although the weight to be given to any particular matter is for the decision-maker to determine, it may be that if a matter of great significance is not given appropriate weight, the decision will be invalid (see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41).
104 In Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86, the Environmental Resources and Development Court of South Australia considered the role of ecologically sustainable development in a decision with respect to a proposal to establish tuna farms in the waters of South Bay in the Spencer Gulf.
105 The court said (at [20]-[25]):
"20. In this matter, it was submitted that the Court should have regard to the precautionary principle, in assessing whether the development would be ecologically sustainable. As each proposed development is fundamentally identical, we will use the singular term. In these reasons, we will refer to the principles of ESD as they are set out in the IGAE, because of the greater detail in that document.
21. To understand the precautionary principle, it is necessary to look at little at the history of its development. It is common knowledge that it has resulted from increasing world-wide concern about the consequences of damage to the environment. The principle has been developed through international fora and declarations with respect to action to limit and minimise environmental damage in the interests of all. An understanding of the precautionary principle and its effect is essential to an understanding of the term 'ecologically sustainable' as it is applied to development. We were not referred by counsel to any authorities or articles with respect to the meaning and consequences of the application of the precautionary principle. We have relied on our own researches and had regard, inter alia, to the following articles:
1. Gunther Handl, Environmental Security and Global Change: The Challenge to International Law 1Yb. Int'l Env. L (1990);
2. James Cameron, The Precautionary Principle - Core Meaning, Constitutional Framework and Procedures for Implementation (1993), Paper presented at the Precautionary Principle Conference, Institute of Environmental Studies, University of New South Wales, September 1993;
3. Warwick Gellett, Environmental Protection and the 'Precautionary Principle': A Response to Scientific Uncertainty in Environmental Management (1997) EPLJ 52;
4. Owen MacIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law 9 J Env. L 221 (1998); and
5. Charmian Barton, The Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine 22 Harv. Envtl.L.Rev 509 (1998).
Generally, the precautionary principle in its various formulations has been said to be 'preventive' (Cameron), and to involve the minimisation of consequential environmental impact (MacIntyre & Mosedale), and the taking of remedial action upon evidence of a significant but not necessarily provable risk of environmental harm (Handl).
22. There would appear to be general agreement amongst the authors of articles on the precautionary principle that it was developed in response to the recognition, based upon observation, that the environment could not assimilate all the consequences of activities impacting upon it. Implicit in this recognition is an acknowledgment that science and the scientific method have limitations. Because of the limitations, it is unlikely that the full consequences of the impact of a particular act or activity upon the environment can be known in advance. The scientific process involves deriving knowledge from the testing of a hypothesis. A number of biases have been identified in the process, giving rise to comments such as 'the normal process of scientific reasoning is not as logically water-tight as one might imagine' (Fisk, David Environmental Science and Environmental Law 10 J Env.L 3 (1998). The scientific method does not necessarily give the quality of certainty to the opinion or assessment of a scientist. Indeed, one writer has suggested that a scientific opinion might be best evaluated for reliability by testing it against seven types of uncertainty he identified as being likely to be found in any scientific assessment or opinion, namely conceptual uncertainty, measurement uncertainty, sampling uncertainty, mathematical modelling uncertainty, causal uncertainty, testing uncertainty and communicative and cognitive uncertainty (P.Brad Limpert, Beyond the Rule in Mohan: A New Model for Assessing the Reliability of Scientific Evidence 54 Univ Toronto L Rev. (1998)). Thus, the inherent uncertainty or bias in the scientific method combined with (generally speaking) a perennial lack of resources and a consequential lack of data to assist scientists, leads inevitably to the conclusion that there is likely to be an incomplete understanding of the full extent of the environmental impacts of any particular act or activity proposed. That prospect, supported by empirical observations gathered world-wide, led to the development of the precautionary principle as a commonsense approach to avoid or minimise serious or irreversible harm to the environment.
23. There have been and are various formulations of the precautionary principle around the world. That which has been adopted by the Government of South Australia through being a party to the IGAE, and which is reflected in the legislation of the State Government (the Environment Protection Act 1993) is broad and non-specific. It is the same formulation set out in the Rio Declaration on Environment and Development (1992), to which Australia is a signatory. We have set it out above.
24. The question arises as to who has the onus of satisfying us that the proposed development would be carried out in an ecologically sustainable way, and located, sited, designed, constructed and managed to be ecologically sustainable. It is well accepted in the literature, and it stands to reason, that the proponent needs to satisfy us that the development would be ecologically sustainable. In the matter before us, is the proponent called upon to prove this, only when the appellant has proved, on the balance of probabilities, that there is a threat of serious or irreversible damage to the environment? That cannot be the case. It is our task, as it was that of the relevant authority, to assess the proposed development against the relevant provisions of the Development Plan. The development should be ecologically sustainable in the terms of Objective 35 and Principle of Development Control 12. The onus lies on the proponent to show that the development would meet the policy set out in the Development Plan. In any event, it cannot be the case that the appellant must prove that the development will threaten serious or irreversible environmental damage, for another reason. Because of the inherent uncertainty in a scientific opinion, an appellant is unlikely to be able to show that a particular development would be likely to result in serious or irreversible damage to the environment. In reasoning thus, we have taken 'threat' to mean 'likelihood' or 'probability': see the relevant word meanings in the Macquarie Dictionary (second edition). However, the appellant must be mindful of its status as appellant and the provisions of Section 17(4) of the Environment, Resources and Development Court Act 1993 and thus would need to show that there is a prospect of serious or irreversible damage to the environment, should the proposed development proceed. If that is shown, the burden of proof switches to the proponent and it will be necessary for the proponent to show, in order to have his or her development classified as ecologically sustainable, the following:
- the measures that the proponent will take (within the limits of practicability) to avoid serious or irreversible damage to the environment; and
- that the risk-weighted consequences of the development assessed together do not suggest that serious or irreversible environmental damage would be sustained.
The above is derived from the IGAE, which recorded the agreement of the parties as to the process for reaching decisions, in the application of the precautionary principle (see above).
25. The proponent would have to satisfy the burden of proof by evidence as to the likely consequences of the proposal, including scientific evidence (with its limitations), evidence as to the proposed management regime and measures, and evidence to assist the Court in the assessment of the risk-weighted consequences of the proposal."
106 The matter later went on appeal to the South Australian Full Court (110 LGERA 1) where it was submitted that the Environmental Resources and Development Court had wrongly imposed an onus on the applicant to justify the grant of consent. The Chief Justice rejected the submission and said (at LGERA 6-7):
"I disagree. It is true that generally there is no onus on an applicant for development consent to establish that the development consent should be granted. The relevant authority must simply assess the proposed development against the relevant Development Plan. But in this case, the DP contains an objective and principle that invokes the concept of ESD. That in turn, in a case like the present, invites the use of the precautionary principle, simply because all of the consequences of the proposed development are not known and fully understood.
In such a case, assessing the proposal against the DP requires a consideration of whether it is a development which is ecologically sustainable. As the longer term consequences of the proposed development are not known, it is appropriate to require measures that will avert adverse environmental impacts that might emerge.
That was the ERD Court's approach. It was open to it to so proceed. The Court did not wrongly impose an onus on the Association in relation to the assessment of the proposal against the DP. The approach of the Court simply reflected what was inherent in one of the matters that the Court had to consider, the issue of ESD.
There can be no hard and fast rules about what is required in a case such as this. Everything will depend upon the circumstances of the particular case, especially the level of knowledge about the environmental impacts of the particular proposal. I agree broadly with what the Court said:
'The proponent would have to satisfy the burden of proof by evidence as to the likely consequences of the proposal, including scientific evidence (with its limitations), evidence as to the proposed management regime and measures, and evidence to assist the Court in the assessment of the risk-weighted consequences of the proposal.'
This should not be taken as a proposition of law, but simply as an expression in the particular case of what, in general terms, was required before the ERD Court could properly find for the Association when considering whether the development would be managed so as to be ecologically sustainable."
107 The Chief Justice also considered the context of the precautionary principle. Emphasising that the principle did not claim that consent should not be granted if all of the consequences of the proposal could not be ascertained, the Chief Justice said (at LGERA 8):
"I do not accept that in reaching the conclusion it did the ERD Court has, in effect, taken the view that the proposed development will not be consented to because all of the consequences that might flow from it are not known. That is not what the Court decided. Obviously, one must take care not to drift into that position. It is clear enough that the ERD Court was saying no more than that it would consent to the proposed development only if there was a monitoring regime that would detect emerging adverse impacts and a scheme of conditions which would enable an appropriate authority to require those impacts to be averted if and when they emerged."
108 The role of the precautionary principle in environmental decisions was considered by this Court in Leatch v National Parks and Wildlife Service & Anor (1993) 81 LGERA 270. The proceedings raised a challenge to the grant of licence to take or kill endangered fauna. Describing the precautionary principle as "a statement of commonsense", Stein J said (at LGERA 282):
"… has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious."
109 In Greenpeace Australia Ltd v Redbank Power Company Pty Ltd & Anor (1994) 86 LGERA 143, Pearlman J said (at LGERA 154):
"The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; it does not require that the greenhouse issue should outweigh all other issues.".
110 In Nicholls v Director-General of National Parks and Wildlife & Ors (1994) 84 LGERA 397, Talbot J was apprehensive about the role of the precautionary principle in environmental decisions. Describing it as being "framed appropriately for the purpose of a political aspiration," his Honour said that "its implementation as a legal standard could have the potential to create interminable forensic argument" (at LGERA 419). With respect, I do not share his Honour's perspective. In Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 I said that statutory recognition of the precautionary principle has made it:
"… a central element in the decision making process and cannot be confined. It is not merely a political aspiration but must be applied when decisions are being made under the Water Management Act and any other Act which adopts the principles." (at [178])
111 In the present case, the respondent argues that "decisions which pay heed to the (precautionary) principle must now not only seek to avoid irreversible damage but to treat conservation of biodiversity as a fundamental consideration." Although it was suggested that there is a "presumptive onus" on the party threatening irreversible damage to the environment, it was accepted by senior counsel that "where the development proposes a permanent input on a complex and dynamic ecosystem that principle will have an important operation."
112 The submission was reinforced by recognition of the fact that, in appropriate cases (of which the present is one), the development must be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the TSC Act and with regard to the obligation imposed on the concurrence authority to take into consideration the principles of ecologically sustainable development (s 79B(g) EP&A Act). Furthermore, on appeal, the Court is required to have regard to the views of any concurrence authority (see Michel Projects Pty Ltd v Randwick Municpal Council (1982) 45 LGERA 410 at 414-415 and Byron Shire Council v Chrestal Pty Ltd (1983) 49 LGRA 88) which will include the principles of ecologically sustainable development (see s 79B(5)(g) EP&A Act).
113 In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.
114 Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.
Significance of the zonings
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
The course of the proceedings
120 The hearing in these proceedings originally commenced on 20 October 2003. However, as I have indicated, the applicant, apparently conscious of some deficiencies in its material, sought an adjournment which was granted. Thereafter, amended plans were prepared and lodged with the council. The amended plans have been considered during the resumed hearing.
121 The issues which were ultimately defined in the proceedings required resolution of the different views of experts in relation to a number of significant matters. As will become commonplace in proceedings in this Court, the oral testimony of the experts was taken by a process of concurrent evidence. This involved the swearing in of the experts with similar expertise, who then gave evidence in relation to particular issues at the same time. Before giving evidence, the experts had completed the joint conferencing process, which enabled the court to identify the differences which remained and which required resolution through the oral evidence. Each witness was then given an opportunity to explain their position on an issue and provided with an opportunity to question the other witness or witnesses about their position. Questions were also asked by counsel for the parties. In effect, the evidence was given through a discussion in which all of the experts, the advocates and the Court participated.
122 Both Commissioner Watts and I found this to be an efficient and effective method to receive expert evidence. It enabled ready identification of fundamental issues and it ensured that court time was devoted to understanding those issues and providing the Court with the material necessary to resolve them. Apart from enhancing the quality of the Court's decision, it ensured that a number of days of hearing time were saved.
The hearing
123 Evidence was tendered on behalf of the respondent council from the following:
· Mr F J Bravo, Wildlife biologist;
· Mr G R Sainty, Wetlands scientist;
· Dr M J Mahony, Ecologist (Frogs);
· Ms T A James, Botanist/ ecologist (Flora);
· Mr G K Warnes, Environmental planner;
· Mr P J Jamieson, Civil engineer (Drainage);
· Mr C Hallam, Traffic engineer;
· Mr M Bridges Acoustic engineer;
· Dr Payne, Ecologist (Tetratheca juncea);
· Mr S O'Connor, Bushfire consultant;
· Mr Humpries, Flora and fauna consultant.
124 Written evidence was received from local residents and oral evidence was also given by some on-site. The resident witnesses were:
· Mr E Tonks, objector;
· Mr W Humphris, resident of No 145 Cowlishaw Road, Redhead;
· Ms A Crumblin, resident of No 137 Cowlishaw Road, Redhead;
· Mr and Mrs C Wallace, No 141 Cowlishaw Road, Redhead;
· Nat and Joe Fitzgerald, No 143 Cowlishaw Road, Redhead;
· Ms K Keir, resident of No 137A Cowlishaw Road, Redhead;
· Ms L Wigney, resident of No 139 Cowlishaw Road, Redhead;
· Ms D Smith, resident of No 119A Cowlishaw Road, Redhead;
· Mr P Davies, Representative of the Cricket Club, Redhead;
· Ms V Morrison, Representative of the Redhead Soccer Club;
· Mr A Fenton, resident of No 118 Collier Street, Redhead;
· Ms J Culshaw, resident of No 60 Burns Street, Redhead;
· Mr Robinson, resident of No 120 Collier Street, Redhead;
· Mr J Whitbread, resident of No 122 Collier Street, Redhead;
· Ms C Gray, resident of No 66 Kalaroo Street, Redhead;
· Ms B Orr, resident of No 75 Kalaroo Street, Redhead;
· Ms S Pullman, Past President of the Redhead Public School P & C Association;
· Mr Whitford, resident of No 147 Cowlishaw Road, Redhead;
· Mr P Fennel, resident of No 28 Seaside Drive, Redhead; and
· Mr J Banfield, resident of No 26 Elsden Street, Redhead.
125 On behalf of the applicant, evidence was given by:
· Mr D F Fanning, Ecological consultant;
· Mr G B Winning, Ecologist;
· Mr J Argue, Civil engineer (Drainage);
· Mr J M Waugh, Traffic engineer;
· Mr D Jurevicius, Acoustic engineer;
· Mr S O'Connor, Town planner;
· Mr F Mohen, Water resources engineer;
· Mr S Downes, Water resources engineer;
· Mr P W Wright, Groundwater consultant;
· Mr S Jones, Groundwater consultant;
· Mr J Ways, Traffic engineer;
126 The experts also prepared joint reports which were tendered during the hearing.
127 The evidence given during the hearing was complex and lengthy reports were provided. It is not possible and it would not be appropriate to refer to it all in these reasons. However, I have attempted to distil the essential elements of the evidence on any issue so that my reasoning process is adequately exposed.
The issues
128 On 28 February 2004 the council filed a further amended statement of issues, which included the following:
"1. Whether the development application is one to carry out designated development and whether the Court has jurisdiction to hear the matter in the absence of an Environmental Impact Statement (section 78A(8)(a)). (EPA Act 1979)