ESD principles not ignored
159In the previous section of this judgment I have referred to the briefing notes prepared for the Minister prior to his determination of the Concept Plan Approvals. In order to understand the material that was before the Minister at the time of making its decision on 12 January 2010, it is necessary to note the recommendation contained in that briefing note. It was as follows:
"It is recommended that the Minister:
+ note the information provided in this briefing note;
+ consider the Director-General's assessment report (tagged "B");
+ determine that further environmental assessment is required for the project which is to be addressed under Part 3A of the Enviromental Planning and Assessment Act 1979 ; and
+ grant consent approval to the concept plan by signing the recommended instrument of approval (tagged "C")."
The recommendation was in identical terms for each concept plan application.
160The only mandatory relevant consideration imposed upon the Minister by s 75O(2), at least of present relevance, is the consideration of the Director-General's report. In each case that report contained about 52 pages of text signed by three officers of the Department of Planning, including the Director-General. According to the text, apart from recommended conditions, there were appended to each report the Submission Report, the Statement of Commitments, and Environmental Assessment as well as the expert independent review reports commissioned by the Department of Planning, including that prepared by Arup in respect of greenhouse gas emissions. Notwithstanding the text reference to the respective environmental assessment reports prepared on behalf of each proponent being appended to the Director-General's report, it is accepted that those reports were provided to the Minister in electronic form as a compact disc. There is no evidence before me to suggest that the Minister did not read the briefing notes in each case as well as the report of the Director-General provided to him in respect of each application.
161The plaintiff contends that the environmental assessment reports provided to the Minister in electronic form were not read by the Minister, or at least an inference should be drawn to that effect. As I understand the submission, it is founded upon both the fact that these documents were in electronic form and also upon the length of each document. In hard copy, the Bayswater Assessment was some 1365 pages in length while the Mt Piper Assessment in hard form was about 778 pages.
162It is accepted by the applicant that all this material was provided to the Minister. In the absence of evidence to the contrary, it is properly to be inferred that the material made available was considered. There is no legal impediment under Pt 3A to some or all of that material being provided in electronic form ( Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [111]).
163Reliance by the applicant upon the decision of the Federal Court in Tickner v Chapman [1995] 55 FCR 316; (1995) 133 ALR 74 for the inference that electronic material was not considered would appear to be misplaced. Evidence was adduced in that case that only one day was available between the time when the Minister received representations required by him to be considered and the making of the declaration that the relevant statutory provision called upon him to make, having considered those representations. The evidence disclosed not only that the Minister was not at the office at which the documentary material was located but also that his schedule in the 24 hour period would not have afforded an opportunity to consider the submissions required to be considered except upon the "vague and nebulous" description of them given to him by a member of staff (at 370). It was a case in which the usual inference was properly displaced. There is no evidence before me in the present case indicating that, with or without the assistance of staff, the Minister would not have had an opportunity between 21 December and 12 January to consider the content of the respective environmental assessments prepared by each proponent.
164Although he was required to consider and make the determination on the materials provided to him, he was not disentitled from utilising staff assistance in that process ( Tugun Cobaki at [169] - [170]). The context in which the applicant submits that the principles of ESD were not considered is in their application to anthropogenic climate change. That limited address to the claimed failure on the part of the Minister requires, as the Minister submits, recognition of three important principles. First, the weight to be given to relevant considerations is a matter for the decision-maker alone. While epithets such as 'proper, genuine and realistic consideration' have been applied to this requirement, that epithet needs to be applied with caution lest it involve "a slide into impermissible merit review" ( Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79]). With due respect to those who may have a different view, I do not understand the decision of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122 to have imposed any important qualification to that expressed by the Court of Appeal in Kindimindi.
165Second, the concept of ESD, with its four principles stated in the Protection of the Environment Administration Act operates, at least in the present context, at a high level of generality. The principles are not confined to any specific subject matter such as greenhouse gas emissions or anthropogenic climate change. Moreover, they neither mandate any particular method of analysis of a potentially relevant subject matter nor the outcome that should follow from any consideration ( Drake-Brockman v Minister for Planning at [132(2)]. As Jagot J also observed in that case, there is a unifying theme of ecologically sustainable development, being the effective integration of economic and environmental considerations with the breadth of that unifying theme explaining "the ubiquity of the concept in development decisions" and disclosing "the level of generality at which it is capable of operating" (132(1)]).
166The third matter to be noticed is that consideration of ESD does not require specific reference to the specific principles of ESD in the material presented to the Minister ( Drake-Brockman v Minister for Planning at [132(7)]). It is sufficient that the Minister engage with the substance of those principles ( Walker at [59]).
167It should also be observed that if the precautionary principle as an element of ESD was required to be considered, then any complaint about the failure so to do is, in reality, premature. This observation necessarily follows from the fact that a concept plan only was approved; that conditions earlier identified proscribed the carrying out of any development or even associated development until a project approval had been granted and the condition of granting any project approval required further investigation and updated reports upon the impact of use of either technology on greenhouse gas emissions which, in turn, were and are the identified source of climate change.
168In the context of these observations of principle, it is appropriate to have regard to what it was that the Minister considered. Taking account of the reasons for his decision, as expressed in the endorsement by him of the briefing note in respect of each application and also having regard to those materials that were identified to him and, it must be assumed, informed the giving of those reasons, it seems to me that the extent to which they are applicable, the principles of ESD were considered. That material was voluminous, as was the material before me. It is unnecessary to recite it in detail and sufficient to provide references to that material where appropriate.
169There was considerable material before the Minister identifying the predicted level of greenhouse gas emissions from the projects, if constructed and operated in the manner and at the level identified at the concept stage. As I have earlier recorded, the Director-General required, and each environmental assessment contained, comprehensive greenhouse gas assessments for the projects. These respective assessments were summarised in the Director-General's report submitted to the Minister conformably with s 75O and also further summarised in the briefing notes to which I have referred. The greenhouse gas assessment is contained in Chapter 10 of each environmental assessment and all the materials directed to that topic are drawn together and discussed at length in the Director General's report. That report in each case addresses the topic under the head "Greenhouse Gas Emissions/Climate Change Issues". The correlation between greenhouse gas emissions and climate change and the impacts from climate change are acknowledged in the Director-General's report (see, for example the report in respect of Bayswater at p 35).
170It will also be remembered that during the exhibition of the environmental assessments for each project, the Department commissioned independent reviews of the greenhouse gas assessments. They were provided to the Minister in hard copy, were referred to and commented upon in the Director-General's reports and referred to in each briefing note to the Minister accompanying the respective reports and their attached documents.
171The material provided to the Minister reflected that consideration of the effect which implementation of each project, assuming its implementation in the form then contemplated, was able to meet both State and Australian greenhouse gas and renewable energy targets. So much is reflected in the Director-General's reports for each project.
172The relationship between greenhouse gas emissions and their contribution to climate change was acknowledged in all of the documents. Some of the references in that regard, particularly those from the respective environmental assessments, have been referred to earlier in these reasons. The balancing of considerations and effect flowing from the interaction between greenhouse gas emissions and climate change against the risks of an electricity generation shortfall, with the inability of that shortfall being made good from renewable energy resources or measures presently open, have also earlier been identified. They were the subject of consideration in the briefing note.
173The Minister clearly had brought to his attention the numerous submissions that had been received during the exhibition period of the environmental assessments opposing a gas-fired option in particular and drawing attention to the projected greenhouse gas emissions and the impact they will have upon climate change. These submissions were the subject of specific consideration in the respective Submissions Reports prepared by each proponent, as they were required to do by the Director-General. Those reports were made available to the Minister as appendices to the Director-General's report. Both in the reports and in the Minister's briefing notes, the submissions received by the Director-General, including those directed to climate change were addressed.
174Both as formulated as a concept and to ensure that any project propounded to give effect to that concept was appropriate, the Minister considered that best practice had been demonstrated in respect of the concept and would be required in respect of any project in the context of greenhouse gas emissions. That consideration included the necessity for greenhouse gas emission mitigation or offset measures required to be further addressed at project stage. So much is reflected in all of the material before the Minister, including the Director-General's reports and briefing notes and is further reflected in the conditions imposed to which I have earlier referred.
175It is apparent from the consideration of the Director-General's reports in each matter that the Minister considered whether increased greenhouse gas emissions would be included in the valuation, pricing and incentive mechanisms associated with the projects. This consideration took the form of references to the then anticipated Commonwealth Carbon Pollution Reduction Scheme, it being acknowledged that the scheme may not be implemented, at least as presently then understood, or that its implementation would be delayed.
176In giving this summary, it is relevant to repeat that express reference to the stated principles of ESD need not be made to reflect consideration in substance of those principles. The material to which I have referred, so it seems to me, does reflect the substance of those principles, at least at a level relevant to the concept approval then in contemplation and bearing in mind the conditions upon which it was contemplated such an approval would be given. However, sight ought not be lost of those references that I have earlier given within the reports prepared on behalf of the respective proponents and provided to the Minister in which express reference was made to the principles of ESD both in general and in respect of some of its elements.
177In summary of those matters to which I have referred it is apparent that the Minister:
(i) considered the need for each project and assessed consequences of the project not being undertaken;
(ii) quantified the greenhouse gas emissions as a means of assessing the relative contribution each project would make to climate change;
(iii) considered whether the need would be satisfied by other means predicted to produce lower greenhouse gas emissions;
(iv) considered whether further design development or efficiency would produce lower greenhouse gas emissions in the event that the project proceeded; and
(v) considered whether greenhouse gas emissions would be factored into valuation, pricing and incentives associated with the project.
Having regard to those matters, formulaic recitation of the principles of ESD would have served no relevant purpose.
178There were further claims made by the applicant as to a lack of specific consideration. In the context of the issues raised in this case, these further specific claims are very much related to the fourth ground of challenge, directed to anthropogenic climate change as an element of the public interest. The applicant submits that the Minister was required explicitly to consider the effect of the projects on climate change and not confined to total greenhouse gas emissions.
179There was no evidence adduced before me identifying a means by which the impact on climate change from a specific project could be quantified. At best, it can be acknowledged that a project of the kind contemplated by the approvals will contribute to the overall impacts of climate change. As already recorded, the quantification of emissions from each proposed plant, depending upon the technology used, was quantified without addressing mitigatory measures. The unqualified calculation of emissions were directed to the Minister's attention, including in the Director-General's report, in order to compare those predicted impacts against other coal and gas power stations and the utilisation of other fuel options.
180A submission requiring even greater specificity of consideration was made by the applicant, namely a requirement to consider the effect of climate change on this State. For reasons already stated, there was no evidence to suggest that any available material, to the Minister or otherwise, would have enabled this assessment to be made. Nonetheless, the acknowledgement of impact from the emission of greenhouse gas and its impact on climate change was included in the "need and justification" sections of both the Director-General's report and the briefing note submitted to the Minister.
181In addition to the two projects that are the subject of challenge in these proceedings, there was a further project under consideration by the Minister, namely a proposal for refurbishment of the existing Munmorah Power Station. The applicant submits that the cumulative effect of all three proposals, assuming their implementation, was required to be considered by the Minister.
182An examination of the material before the Minister indicates that this, in fact, occurred. The fact that the predicted capacity of all three projects, if implemented, exceeded the predicted generation shortfall which was being addressed was the subject of reference in the Director-General's report. Without doing disservice to the detail contained in this report, it was the advice given in that report that while all three projects, if implemented, could exceed the predicted generation shortfall, that was not a reason for declining the grant of concept approval for any one project. It identified the possibility that one or more would not be viable for implementation at the time at which it was required because of the likelihood that the market or demand for electrical power would prevent supply outstripping demand to any significant extent. Again, it is to be repeated that by reason of the conditions imposed at the time of concept approval, refinement of proposals and the requirement to include a capacity to add carbon capture facilities as technology was no doubt at least one of the factors reflecting economic and market considerations in the discussion on this topic. These matters do not bespeak a failure to consider the issue of cumulative impact.
183A further matter identified by the applicant that was said to be mandated for consideration by the Minister was the differential effects on climate change as between the gas-fired option and the coal-fired option, and also between the burning of fossil fuel and use of renewable fuels. As would be apparent from my earlier reference to the materials before the Minister, the differential effects of the various fuel options were addressed. Quantified predicted greenhouse gas emissions for each option was provided, including in the briefing note provided to the Minister. The Director-General's report certainly indicated that, all other things being equal, the order of preference for the operation of generating plants were renewable fuels, followed by gas-fired plants, with the least preferred being that of a coal-fired plant. However, for reasons explained, including the inability of renewal fuels alone to meet the predicted energy generation shortfall, the policy of encouraging a competitive electricity generation industry and, significantly, the need to have approvals in place so as to assure energy security, should the predicted demand exceed the available supply, the difference in greenhouse gas emissions among the various fuels considered were not regarded as determinative. Again, the fact that this level of consideration was given to the alternatives does not, to my mind, reflect a failure to consider the differential effects on climate change of the various fuel options.
184This ground of challenge is not sustained.