116 It is first necessary to consider the role of environmental impact assessment in relation to the implementation of ESD principles under the EP&A Act, including Pt 3A. There is extensive literature and case law on the general topic of environmental impact assessment and ESD principles, both national and international, which I would have explored had there not been time constraints in delivering this judgment. More assistance from the Applicant in his case would have been desirable as I consider the case was very "bare bones" as presented. In Bentley v BGP Properties Preston J refers to the important role environmental impact assessment and approval has as a key means of achieving environmentally sustainable development. His Honour stated at [67] - [70]:
Requiring prior environmental impact assessment and approval is a key means of achieving ecologically sustainable development. It facilitates achievement of the principle of integration ("ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes": s 6(2) of Protection of the Environment Administration Act adopted by s 5(1) of NPW Act. See also Principle 4 of Rio Declaration on Environment and Development 1992 Int). If environmental considerations are to be an integral part of decision-making processes, it is necessary to assess the environmental impacts and risks associated with proposed activities. Environmental impact assessment is widely applied to predict the impacts of proposed activities on the environment.
Prior environmental impact assessment and approval are important components in a precautionary approach. The precautionary principle is intended to promote actions that avoid serious or irreversible damage in advance of scientific certainty of such damage. Environmental impact assessment can help implement the precautionary principle in a number of ways including:
(a) enabling an assessment of whether there are threats of damage to threatened species, populations or ecological communities;
(b) enabling an evaluation of the conclusiveness or certainty of the scientific evidence in relation to the threatened species, populations or ecological communities or the effect of proposed development on them;
(c) enabling informed decisions to be made to avoid or mitigate, wherever practicable, serious or irreversible damage to the threatened species, populations or ecological communities and their habitats; and
(d) shifting the burden of proof (evidentiary presumption) to persons responsible for potentially harmful activity to demonstrate that their actions will not cause environmental harm: Conservation Council of SA Inc v Development Assessment Commission [1999] SAERDC 86 at [24] and [25] upheld in Tuna Boat Owners Assn of SA Inc v Development Assessment Commission (2000) 77 SASR 369, 110 LGERA 1 at [27]-[30]. See generally on the issue of the precautionary principle in environmental impact assessment, G Tucker and J Treweek, "The Precautionary Principle in Impact Assessment: An International Review" in R Cooney and B Dickson (eds) Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use (Earthscan, 2005) pp 73-93.
The requirement for prior environmental impact assessment and approval enables the present generation to meet its obligation of intergenerational equity by ensuring the health, diversity and productivity of the environment is maintained and enhanced for the benefit of future generations.
Finally, prior environmental impact and assessment and approval can facilitate the internalisation of external environmental costs by including environmental factors in the valuation and costs of assets and services (such as in the price of allotments created by subdivision and development), by implementing the user pays or polluter pays principle (those who cause harm to the environment should bear the cost of containment, avoidance or abatement) and by ensuring that users of goods and services should pay prices used on the full life cycle costs of providing goods and services including the use of natural resources and assets (such as the full life cycle costs of maintaining reserved, existing habitat and of establishing and maintaining compensatory habitat of threatened species, populations and ecological communities).
117 Bentley concerned a criminal prosecution for the clearing of threatened species. One of the statutory defences was that a development consent has been issued under the EP&A Act which requires environmental assessment, hence Preston J's obiter remarks on the importance of environmental assessment processes, particularly as they relate to ESD. While they are broad statements of principle concerning environmental impact assessment in relation to ESD, and are not directed to any particular part of the EP&A Act, they serve to underscore the significance of environmental assessment under all the relevant parts of the EP&A Act, including Pt 3A. That significance is confirmed by the second reading speech in Parliament when Pt 3A was being introduced, as referred to elsewhere in the judgment.