Walker v Minister for Planning [2007] NSWLEC 741

Land and Environment Court (NSW)|2007-11-27

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.

90 The next case was a decision of the Federal Court of Australia in Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 93 LGERA 249. This was an unsuccessful challenge to the validity of a decision of the Minister to grant consents under the World Heritage Properties Conservation Act 1983 (Cth). The consents related to the development of a proposed tourist resort for the dredging of a marina access channel in an area that formed part of the Great Barrier Reef World Heritage Area proclaimed under the Act. One of the grounds of challenge was failure to have regard to the precautionary principle. The legislation did not expressly refer to the principle. There were submissions based upon principles of international law and the principles in the Australian of May 1992. Sackville J held at 296 - 297:

I do not think that the precautionary principle in the form adopted by the 1992 Intergovernmental Agreement (nine years after the enactment of the World Heritage Act), is a relevant consideration that the Minister is bound to take into account in exercising the powers conferred by the World Heritage Act. There is nothing to suggest that in 1983 any particular formulation of the precautionary principle commanded international approval, let alone endorsement by the Parliament. It may be that the commonsense principle identified by Stein J [in Leatch] is one to which the Minister must have regard. But this would flow from the proper construction of the relevant legislation and of its scope and purpose, rather than the adoption by representatives of Australian governments of policies and objectives relevant to a national strategy on the environment... It would be difficult, for example, for the Minister to have regard only to the protection, conservation and presentation of particular property, as required by s 13(1) of the World Heritage Act, unless he or she takes account of the prospect of serious and irreversible harm to the property in circumstances where scientific opinion is uncertain or in conflict.

To the extent that the Minister was required to take account of the need to exercise caution on the fact of scientific uncertainty, in my opinion he did so...

It is true that the Minister did not expressly refer to the precautionary principle or some variation of it, in his reasons. But it is equally clear that before making a final decision, he took steps to put in place arrangements designed to address the matters of concern identified in the scientific reports and other materials available to him.

His Honour concluded at 297 that the Minister had taken into account "the commonsense principle that caution should be exercised where scientific opinion is divided or scientific information is incomplete".

91 In Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238; (2000) 110 LGERA 1 the applicant sought and obtained development consent for the establishment of tuna farms. There was a successful appeal by the Conservation Council of SA Inc to the Environment, Resources and Development Court of South Australia. Under the relevant legislation, the development had to be assessed against the provisions of a prescribed development plan which contained as an objective that development of the marine environment should be in an ecologically sustainable way. The Environment, Resources and Development Court of South Australia said: "We accept that an adaptive management approach, implemented by way of licence conditions to achieve ecologically sustainable development, which could be varied in response to new knowledge is one means by which the development could proceed in an ecological (sic) sustainable manner". It also held that the onus lay on the proponent to show that the development would meet the policies set out in the development plan. A further appeal to the Full Court of the Supreme Court of South Australia was successful , Doyle CJ, delivering the judgment of the Full Court, held at 6 - 7:

...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 [Development Plan] 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.

92 As regards the "adaptive management approach" accepted by the Environment, Resources and Development Court, Doyle CJ held at 8:

That seems to me to be an appropriate approach in the light of the relevant objectives and principles in the DP, and in the light of the nature of the proposed development and, in particular, bearing in mind that the medium and longer term impacts of the fish farming are unknown. The DP requires the relevant authority to consider the proposed management of marine aquaculture, and the impact of any such proposed development on the environment. Pursuit of ESD requires careful consideration of the longer term consequences of such development. In such cases, the concept underlying the precautionary principle is obviously appropriate. To say that is not to say that the precautionary principle is elevated to a principle of law. Simply that it is sound commonsense in relation to provisions of the DP such as those in question, and a proposal such as that under consideration here.

Thus, as in Leatch, the precautionary principle was categorised as a matter of "commonsense".

A case under the Water Management Act 2000 (NSW)

93 The precautionary principle was held to be a mandatory consideration under the Water Management Act 2000 (NSW) and any other Act which adopts the principles of ESD in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [178] per McClellan CJ. That was an unsuccessful judicial review application to this Court for a declaration that a water-sharing management plan made by the Minister under the said Act was invalid. There was no express provision in that Act that the principles of ESD were a mandatory consideration for the Minister when making such a plan. Section 3 provided that: "The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development..." There follow seven further particulars. The Dictionary to the Act defined ESD by reference to s 6(2) of the Protection of the Environment Administration Act 1991 (NSW): set out above at [72]. Section 24(g) stated that a management plan may deal with "measures to give effect to...the objects of the Act". Thus, by force of s 24(g), the principles of ESD (and the other objects of the Act) were at least relevant and permissible to be considered by a Minister when considering the contents of a plan. However, McClellan CJ went further and held that the principles of ESD were a mandatory consideration. McClellan CJ noted that the Water Management Act 2000 imposed obligations on the Minister when making a Plan to take all reasonable steps to promote the Water Management principles of the Act. His Honour held:

[174] Beyond those matters, the Minister is required to act in a manner consistent with and so as to further the objects of the Act...

[175] By providing that one of the objects of the Act is the application of the principles of ecologically sustainable development, the...Act takes an approach which is now common in environmental legislation. The Dictionary of the Act adopts the principles of ESD as defined in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW).

[178] ...as I have indicated the precautionary principle is now given statutory recognition not only in the Water Management Act but in numerous NSW Statutes...It is 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.

94 It is apparent that the fact that ESD was an object of the statute was a significant factor when reaching the conclusion that ESD principles were obligatory considerations. Nevertheless, McClellan CJ concluded that the applicants were not entitled to relief:

[184] Notwithstanding these matters and accepting the identified anomalies I am not persuaded that bearing in mind the confined role for a court in judicial review proceedings the applicants are entitled to relief. It was for the Minister, and not the Court to balance the desired environmental outcome, and the chosen method of achieving it, with the beneficial and adverse social and economic consequences.

[185] As Mason J said in Peko (at 42) when the decision-maker is required to balance disparate matters when making a decision, a court should be cautious when asked to intervene for otherwise it may inadvertently be engaging in merit review. Perhaps, in the present case, if the Minister had not addressed the potential anomalies by providing a regime for supplementary water, a case for intervention could be made out. However, by providing for supplementary water the Minister has acknowledged the harm which may be occasioned to some irrigators and provided a regime designed to ameliorate it. It is not for the court to determine whether the regime adopted is the best which could have been provided. It is plain that the difficulties were considered and that the Minister, balancing the competing interests, is of the opinion that he has appropriately provided for the social, economic and environmental benefits from the available groundwater. The Minister's decision to provide a management regime which imposed hardship on some in the interests of achieving a satisfactory future regime for the management of the whole of the aquifers cannot be described as irrational.

[186] When deciding to make the Plan the Minister had the ultimate objective of providing for the long term sustainability of the underground water. His decision was required to be informed by, inter alia, the precautionary principle which required a regime to be put in place which was likely to sustain the water source even if, as is the case, full scientific knowledge of the structure and behaviour of the aquifer is not available.

[187] By ensuring the long-term health of the aquifer, the Minister has ensured both an appropriate environmental outcome and sustainable agriculture with the associated social and economic benefits. The mechanism adopted is faithful to the principle in s 5(3)(a) of the Act that sharing of water from a water source must protect the water source and its dependent ecosystems which must not be prejudiced by extraction of water (s 5(3)(c)). By providing supplementary water, the Minister has allowed for a lengthy period of adjustment during which those who can sustain an agricultural enterprise may, although at a cost, acquire water rights.

[188] Others who lose part of their present rights to water and who could not justify, for economic or environmental reasons, the acquisition of additional entitlement may receive some moneys from the sale of entitlement, which they will presumably invest in some manner. To the extent that the Plan impacts adversely on those persons, the sale of the entitlement will ameliorate their position.

[189] Having regard to all of these matters, I am not satisfied that the approach which has been taken is so lacking in logical structure or so fails to have regard to the parameters which the Act imposes on the Minister that it could be said that it was not open to the Minister and that the Minister's discretion in making the Plan has miscarried.

95 An appeal from that decision was dismissed, but ESD was not an issue in the appeal: Murrumbidgee Groundwater Preservation Association Inc v Minister of Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at 47 [143]. Spigelman CJ (Beazley and Tobias JJA agreeing) said that by force of s 21(e) (which was in the same terms as s 24(g) discussed above), the objects of the Water Management Act 2000 were permissible to be considered by the Minister when determining the content of a management plan. Although there is no provision equivalent to ss 21(e) or 24(g) in Part 3A of the EPA Act, in my view the objects of the EPA Act, including the encouragement of ESD, are permissible considerations under s 750. However, in my view, the fact that encouragement of ESD is an object of the EPA Act does not, per se, elevate it to a mandatory consideration under s 750.

96 ESD was considered in a criminal case in this Court in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. Section 118A(2) of the National Parks and Wildlife Act 1974 provided that "A person must not pick any threatened species, population or ecological community, being a plant". By contravening that provision the defendant committed an offence. A plea of guilty was entered. Section 2A(2) of the National Parks and Wildlife Act 1974 provided that "The objects of this Act are to be achieved by applying the principles of ecologically sustainable development". Preston CJ commented at [57]:

Ecologically sustainable development is fundamental to meeting the needs of the present and future generations. It is a touchstone, a central element in decision-making relating to planning for and development of the environment and the natural resources that are the bounty of the environment...

97 Preston CJ described the role of environmental impact assessment and approval as a key means of achieving ESD, as follows (omitting some citations):

[67] 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.

[68] 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] SASC 238; (2000) 77 SASR 369, 110 LGERA 1 at [27]- [30]...

[69] 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.

[70] 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).

98 Focusing on the polluter pays principle, Preston CJ quoted from Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 where Mahoney JA in the NSW Court of Criminal Appeal said that:

...I believe legislation of this kind contemplates that, in general, the cost of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions be undertaken...

I do not mean by this that the legislature saw the legislation as providing, by payment of a fine, a licence to pollute. In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventive measures...

By a court taking such factors into account, it promotes the achievement of ecologically sustainable development. The fourth pillar of ecologically sustainable development is the internalisation of external environmental costs. Ecologically sustainable development requires accounting for the short term and long term, external environmental impacts of development. One way...of doing so is by adoption of the user pays or polluter pays principle...

99 A merits appeal to this Court from refusal of a development consent is available under Part 4 of the EPA Act. Since the object of encouragement of ESD was inserted in the EPA Act in July 1998, a good number of cases in this Court have held that ESD is a mandatory consideration under Part 4_._ The gateway to this conclusion has been s 79C(1)(e) (within Part 4), which requires a consent authority to take into consideration, among other things, "the public interest". The first case was Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1. There Lloyd J dismissed an appeal against a merits appeal decision of a Commissioner of this Court that under the EPA Act the principles of ESD must be a factor in the assessment of the impact on the environment of a combined development application and construction certificate. His Honour held at [74]:

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. (emphasis added)

100 In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 the applicant lodged an integrated development application with a local council seeking consent to subdivide land into 48 lots for industrial use and storage. The site was located in an area of environmental sensitivity and encroached on a wetland. It contained the threatened species known as Crinia tinnula (the Wallum Froglet) and the threatened population Tetratheca juncea. It also contained some threatened ecological communities. A species impact statement prepared in accordance with the Threatened Species Conservation Act 1995 concluded that the proposed industrial subdivision would provide an opportunity to improve the environmental management of the land. There was a deemed refusal by the council of the application. The applicant appealed on the merits to this Court. The EPA Act applied and included within its objects the encouragement of ESD. Matters which a consent authority were required to take into consideration under s 79C(1) of the EPA Act included "the public interest".

101 McClellan CJ held, following Carstens, that by requiring a consent authority to have regard to "the public interest", s 79C obliged the decision-maker to have regard to the principles of ESD in cases where issues relevant to those principles arose. This would have the consequence that, among other matters, consideration had to be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity: at [113]. His Honour held that where there was a lack of scientific certainty, the precautionary principle must be utilised. This meant that the decision-maker must approach the matter with caution but also required the decision-maker to avoid, where practical, serious or irreversible damage to the environment. Consideration of these principles would not preclude a decision to approve an application in cases where the overall benefit of the project outweighed the likely environmental harm. However, care needed to be taken to determine whether appropriate and adequate measures had been incorporated into such a project to confine any likely harm to the environment. The applicant's proposal would destroy a substantial area of the Sydney Freshwater Wetland and, in time, the indirect effects could remove it entirely and affect the resilience and the integrity of the wetland system, both on and off the site. Due to these known impacts, together with the possible future impacts, the development application was refused.

102 In 2005 - 2006, the precautionary principle was considered in four merits appeals to this Court:

(i) In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [68] - [73] Pain J took a precautionary approach to consideration of factors relevant to determining the likelihood of significant impact on an endangered ecological community under the Threatened Species Conservation Act 1995 (NSW).

(ii) In Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 there was a merits appeal against the Minister's decision to refuse development consent for a pearl farm. The Minister was concerned about its likely impacts such as the risks and potential consequences for marine life. Talbot J had regard to the precautionary principle. His Honour acknowledged that as a result of the formal adoption of ESD by various statutes since his dismissive judgment in Nicholls (discussed above), it had become more than a "political aspiration" and there was a legal obligation to have regard to it in relation to the EPA Act that he was considering: at [54]. Although his Honour found that there was no real threat of irreversible environmental damage, he decided that consent should be granted on condition that there be a monitoring regime that would detect any emerging adverse impacts and thus enable the appropriate authority to require them to be addressed if required.

(iii) In Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52; (2006) 147 LGERA 274 there was a merits appeal against a council's refusal to approve a retirement village. There was scientific uncertainty as to the distribution of an endangered ecological community over the development site and, consequently, as to the threat of serious or irreversible damage that might be caused to that community. Bignold J considered that the precautionary principle justified an approach that avoided the risk of serious or irreversible environmental damage by assuming the widespread distribution of the endangered community.

(iv) In Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85; (2006) 146 LGERA 236 there was a merits appeal against a council's deemed refusal to approve a shopping and commercial development. One issue was whether the development application should be accompanied by a species impact statement, which was required by legislation if the proposed development significantly affected a threatened species. Present on the development site was a threatened species, Mitchell's Rainforest Snail (Thersites mitchellae). There was scientific uncertainty as to the extent and location of its most important habitat and the relationship of the habitat to the proposed drainage works. Talbot J, applying the precautionary principle, held that the proposed development was likely to significantly affect the threatened species and that a species impact statement was required before the development application could be determined.

103 There was a comprehensive consideration of ESD by Preston CJ in a merits appeal under Part 4 of the EPA Act in Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10. The respondent council refused a development consent application by Telstra, Australia's largest telecommunications provider, relating to the installation of mobile phone towers disguised as chimneys on the roof of a recreational club in a Sydney suburb. The application was opposed by some members of the local community and councillors who were concerned that the proposed facility would emit radiofrequency electromagnetic energy (RF EME) that would harm the health and safety of residents. Telstra's appeal on the merits to this Court was allowed. The case provides guidance in relation to questions identified by Preston CJ at [9] as follows:

The case raises questions about fear, rationality and the law. How should a responsible decision-maker respond to public fear? Responsiveness to public fear entails a commitment to rational deliberation, in the form of reflection and reason-giving. An approach with some currency at the moment is the precautionary principle. What is the precautionary principle and how is it to be applied when thinking about public health and safety and the environment? How can it be invoked to respond to public fear?

104 The precautionary principle was invoked on the basis of potential public health threats posed by exposure to RF EME emitted by mobile phone towers. A court appointed expert was engaged to provide advice on the health effects of RF EME exposure. He strongly supported the consensus scientific view regarding RF EME risks that the proposed tower could not conceivably cause any adverse biological or health effect. Telstra also presented evidence from two experts who testified that the tower was designed to minimise RF EME exposure and who estimated that its emissions would be less than one fortieth of those permitted under the relevant Australian Standard. The evidence of these three experts was not challenged and there was no expert evidence to the contrary. Some local residents, however, expressed concern over uncertainty about long term health effects and argued the need for the application of the precautionary principle.

105 Following BGP and Carstens, Preston CJ held that under the EPA Act s 79C(1), ESD was one of the matters which the council, and on the appeal the Court standing in the shoes of the council, had to take into account. Preston CJ noted that ESD involves a cluster of elements or principles, six of which he highlighted. First, from the name itself comes the principle of sustainable use. Secondly, ESD requires the effective integration of economic and environmental considerations in the decision-making process. Thirdly, the precautionary principle. Fourthly, the principles of equity: the need for inter-generational equity and the need for intra-generational equity. Fifthly, the principle that conservation of biological diversity and ecological integrity should be a fundamental consideration. Finally, the principle of internalisation of environmental costs.

106 Preston CJ identified two cumulative conditions precedent to the application of the statutory description of the precautionary principle. First, "a threat of serious or irreversible environmental damage". Secondly, "scientific uncertainty as to the environmental damage". His Honour held that once both conditions precedent are satisfied "a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate": [128].

107 As to the first condition precedent, his Honour pointed out two things: (a) it is not necessary that serious or irreversible environmental damage has actually occurred - it is the threat of such damage that is required; and (b) the environmental damage threatened must attain the threshold of being serious or irreversible. Although the assessment of whether the threat is serious or reversible will be enhanced by taking into account the views of relevant stakeholders, the threat "must be adequately sustained by scientific evidence": at [134]

108 The second condition precedent, that there be "a lack of full scientific certainty", was said to concern the nature and scope of the threat of environmental damage. Although, on a literal reading, this condition precedent is satisfied whenever there is a lack of "full" scientific certainty, the literal interpretation would render the condition meaningless because it is impossible to be completely certain about threats of environmental damage. The question then is: how much scientific uncertainty need there be as to the threat of environmental damage before the second condition precedent is fulfilled? His Honour concluded that scientific uncertainty must be considerable. Where, in contrast, the threat of seriously irreversible environmental damage can be classified as relatively certain, measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat, rather than precautionary measures which are appropriate in relation to uncertain threats: at [149].

109 The burden of proof shifts once the two condition precedents are fulfilled: at [150]. At this point the decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible shifts to the proponent of the project. A rationale for this shift in the evidentiary burden is that, to avoid environmental harm, it is better to err on the side of caution. The consequence of failure to discharge the burden is not necessarily fatal and the relevant legislation does not give the precautionary principle overriding weight (at [154]).

...If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. This assumed factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation (such as s 79C(1) of the EPA Act). There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed.

110 Prudence would suggest that some margin for error should be retained until all the consequences of the decision to proceed are known. The precautionary principle should not be used to try to avoid all risks; a zero risk precautionary standard is inappropriate. His Honour said at [159] (citations omitted):

Rationality dictates that the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified...Rather, a preventative measure may be taken only if the risk, although the reality and extent of the risk have not been 'fully' demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken.

111 Where the precautionary principle applies, "measures should be adopted that are proportionate to the potential threats. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs, and the seriousness and irreversibility of the potential threat": at [167]

112 On the facts of the case before him, Preston CJ decided that the first condition precedent for the application of the precautionary principle (that there be a threat of serious or irreversible environmental damage) was not satisfied: at [184]. The level of RF EME emitted from the proposed base station would easily comply with the relevant Australian Standard. Any harm to the health and safety of people or the environment caused by exposure to such extremely low levels was negligible. The same conclusion had been reached by other courts and tribunals dealing with other proposed mobile phone base stations and antennae which emitted RF EME that complied with the relevant regulatory standards. That conclusion did not mean that there had been an avoidance of a precautionary approach. On the contrary, the conclusion was a direct consequence of the fact that a precautionary approach had already been adopted in the standard setting process, the terms of the relevant Australian standard, the design and location of the proposed base station, the equipment to be provided, the operation of the equipment, the application of the Australian Standard to the RF EME generated from the base station, and the likelihood of actual RF EME being significantly less than predicted. The cumulative effect of those precautionary approaches was to prevent any threat of serious or irreversible environmental damage: at [186]. Hence, there was no basis to invoke the precautionary principle.

ESD Cases under Part 3A Environmental Planning and Assessment Act

113 I now come to two recent cases on ESD in this Court, which were judicial review challenges to the validity of different types of decision under Part 3A of the EPA Act, on grounds related to greenhouse gas emissions: Gray v The Minister for Planning (2006) 152 LGERA 258 (Pain J); Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (Jagot J). Part 3A has been reviewed above at [4] - [8].

114 Gray concerned a development proposal for the construction of an open cut coal mine capable of producing up to 10.5 million tonnes of coal per annum over a lifespan of more than 21 years. The coal was destined for use in coal-fired power stations in New South Wales and overseas. The project required environmental assessment under Part 3A of the EPA Act. The applicant sought, and the Court made, a declaration that the view of the Director-General of the Department of Planning that the environmental assessment adequately addressed the Director-General's environmental assessment requirements was void. The reason was failure to take into account the indirect greenhouse gas emissions of the coalmine in assessing its environmental impact.

115 Pain J held that although the principles of ESD were not expressly referred to in Part 3A, the Minister as well as the Director-General, who is subject to the Minister's direction, were obliged to take into account the public interest, which includes ESD (eg see Telstra), when operating under Part 3A. Three reasons were given for that public interest conclusion: at [42] - [44]. First, the second reading speech to the Bill that introduced Part 3A said that it "provides better outcomes for the community and the environment without unreasonable cost to the proponent". Secondly, Part 3A applies to projects the Minister determines are major infrastructure or projects of State or regional planning significance. Thirdly, the Minister is required to act "for the good management of the public affairs of NSW": s 35 CA of the Constitution Act 1902 (NSW). I note that the provision of s 35CA to which her Honour referred is in the following oath of office of a member of the Executive Council: "...I will perform the functions and duties of an Executive Councillor faithfully and to the best of my ability and, when required to do so, freely give my counsel and advice to the Governor or officer administering the Government of New South Wales for the time being for the good management of the public affairs of New South Wales..." Her Honour did not give specific consideration to a concept plan approval under s 75O.

116 In Gray the applicant's case was not that there had been a complete failure to address the principles of ESD, but a failure to make inquiry about facts relevant to those principles. The Director-General had required, as part of the coalmine's environmental assessment to be submitted to the decision maker (the Minister for Planning), a "detailed greenhouse gas assessment": at [16]. The applicant's submission was that consideration of ESD principles obliged the decision-maker to inquire and consider the greenhouse gas emissions not only from sources owned or controlled by the coal mine (scope 1: direct greenhouse gas emissions) and from the generation of purchased electricity consumed by the coal mine (scope 2: electricity indirect greenhouse gas emissions) but also from sources not owned or controlled by the coal mine as a consequence of the activities of the coal mine (scope 3: other indirect greenhouse gas emissions). Scope 3 emissions could include potential greenhouse gas emissions from the burning of coal originating from the coal mine by third parties (mostly overseas) outside the control of the coal mine. The coal mine's environmental assessment report included a study of scope 1 and scope 2, but not scope 3 greenhouse gas emissions. Pain J held that two of the principles of ESD, intergenerational equity and the precautionary principle, in their application to the facts of the case at hand, required assessment of scope 3 emissions: at [126] - [135]. It appears to have been critical to the decision that there was a disjunction between the Director-General's specific requirement for a detailed greenhouse gas emission assessment and what the Director-General had accepted as adequate:

[126]...it is apparent that there is a failure to take the principle of intergenerational equity into account by a requirement for a detailed GHG [Greenhouse Gas] assessment in the EAR [Environmental Assessment Requirements] if the major component of GHG which results from the use of the coal, namely scope 3 emissions, is not required to be assessed. That is a failure of a legal requirement to take into account the principle of intergenerational equity. It is clear from the evidence that this failure occurred on the Director-General's part and that the applicant is able to discharge its onus in that regard...

[133] As this case focuses on the environmental assessment stage not the final decision whether the project should be approved, the extent to which the precautionary principle applies is as yet undetermined. What is required is that the Director-General ensure that there is sufficient information before the Minister to enable his consideration of all relevant matters so that if there is serious or irreversible environmental damage from climate change/global warming and there is scientific uncertainty about the impact he can determine if there are measures he should consider to prevent environmental degradation in relation to this project.

[135] I also conclude that the Director-General failed to take into account the precautionary principle when he decided that the environmental assessment of Centennial was adequate, as already found in relation to intergenerational equity at [126] of these reasons. This was a failure to comply with a legal requirement.

117 Pain J therefore held that the Director-General's decision to accept the coal mine's environmental assessment as adequately addressing the environmental assessment requirements of the Director-General was vitiated by reason of a failure to take into account the precautionary principle and intergenerational equity.

118 The decision in Gray was unsuccessfully relied on by the applicant in Drake-Brockman v Minister for Planning [2007] NSWLEC 490. Like the present case, in Drake-Brockman one of the judicial review challenges was to the validity of the Minister for Planning's approval of a concept plan under s 75O of the EPA Act. The concept plan was for a large redevelopment of the former Carlton United Breweries site at Chippendale. One of the grounds of that challenge was that the Minister had failed to consider the principles of ESD, including the precautionary principle and inter-generational equity, when granting the approval: at [7]. The challenge was not that there had been a total failure to consider ESD and greenhouse gas emissions (for the Minister had specifically considered them). Rather, the particular challenge was that there had been a failure to address one aspect of that subject matter, namely, a quantitative analysis of the greenhouse gas emissions of the redevelopment project: at [7], [126]. Jagot J distinguished Gray as turning on the terms of the Director-General's specific requirement in that case for a detailed greenhouse gas assessment as part of the proponent's environmental assessment under s 75F: at [130]. The grounds of challenge in Drake-Brockman did not include, as appears to have been critical in Gray, any alleged disjunction between what the Director-General had required and what the Director-General had accepted as adequate: at [131]. Instead, the applicant had to establish - but failed to establish - that the EPA Act, by necessary implication, bound the Minister to consider one aspect of the complex of matters that might inform the concept of ESD in the particular manner and to the particular extent alleged by the applicant (a quantitative analysis of greenhouse gas emissions of the project): at [126].

119 Jagot J assumed (without deciding) that Part 3A obliged the Minister to consider the principles of ESD, but concluded that the Minister had not failed to do so: at [132] - [133]. Her Honour reasoned that Parliament, in enacting the EPA Act, did not subordinate all other considerations to ESD; the breadth of the unifying theme of ESD explains the ubiquity of the concept in development decisions and discloses the level of generality at which it is capable of operating; and the statutory scheme does not support the idea that the Minister can only consider ESD by considering a quantitative analysis of greenhouse gas emissions: at [132].

120 The applicant pleads that the Minister failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site. It is convenient to refer to this consideration as the "climate change flood risk".

121 "Global warming" refers to a rise in global temperatures that has coincided with human induced (anthropogenic) increases in concentrations of greenhouse gases in the atmosphere. The "greenhouse effect" is the name given to the natural build up of greenhouse gases in the lower atmosphere that prevent heat from the sun's rays from escaping back into space_._ When the balance of greenhouse gases is disrupted, more heat is trapped and the earth gradually heats up_._ Carbon dioxide (CO2) through the burning of fossil fuels and land clearing is the most important anthropogenic greenhouse gas. Other important anthropogenic greenhouse gases include methane (CH4), nitrous oxide (N2O) and various forms of fluorocarbons.

122 The well known and important United Nations Intergovernmental Panel on Climate Change (IPCC) considers that the two trends, increases in global temperatures and in anthropogenic greenhouse gas concentrations, are related and that global warming presents climate change risks, including sea level rises, increases in the severity and frequency of storms and coastal flooding. The IPCC has produced four climate change Assessment Reports: in 1990, 1995, 2001 and 2007. The IPCC Fourth Assessment Report was launched over some months in 2007 in four volumes entitled: (i) Physical Science Basis Report; (ii) Impacts, Adaptation and Vulnerability Report; (iii) Mitigation of Climate Change Report and (iv) Synthesis Report.

123 The IPCC's First Assessment Report influenced the United Nations Framework Convention on Climate Change in 1992, a non-binding agreement among 191 countries, which Australia has ratified, to reduce atmospheric concentrations of greenhouse gases for the purpose of preventing dangerous anthropogenic interference with the earth's climate system. Article 2 states that its ultimate objective is to achieve "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system". Article 4 section 1(f) contains a commitment to take "Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions".

124 The May 1992 Intergovernmental Agreement on the Environment (referred to above at [62] - [65]) in Schedule 5 addressed the need for Australia to be part of an international response to the problem of greenhouse-enhanced climate change. It adopted an interim planning target to stabilise greenhouse gas emissions, based on 1988 levels, by the year 2000, and to reduce these emissions by twenty percent by the year 2005. However, this was expressed to be "subject to Australia not implementing response measures that would have net adverse economic impacts nationally or on Australia's trade competitiveness, in the absence of similar action by major greenhouse gas emitting countries".

125 The potential vulnerability of Australia and New Zealand to climate change caused by global warming, including increasing coastal vulnerability to storm surges and sea level rises, was addressed in the IPCC Third Assessment Report in 2001, which was summarised in the IPCC Fourth Assessment Report, Volume 2 (Working Group II) in 2007. The latter included the following:

Regional climate change has occurred (very high confidence).

Since 1950, there has been 0.4 to 0.7C warming, with more heatwaves, fewer frosts, more rain in north-west Australia and south-west New Zealand, less rain in southern and eastern Australia and north-eastern New Zealand, an increase in the intensity of Australian droughts, and a rise in sea level of about 70mm [11.2.1].

Potential impacts of climate change are likely to be substantial without further adaptation.

In the IPCC Third Assessment Report (TAR; Pittock and Wratt, 2001), the following impacts were assessed as important for Australia and New Zealand.

· Water resources are likely to become increasingly stressed in some areas of both countries, with rising competition for water supply.

· Warming is likely to threaten the survival of species in some natural ecosystems, notably in alpine regions, south-western Australia, coral reefs and freshwater wetlands.

· Regional reductions in rainfall in south-west and inland Australia and eastern New Zealand are likely to make agricultural activities particularly vulnerable.

· Increasing coastal vulnerability to tropical cyclones, storm surges and sea-level rise.

· Increased frequency of high-intensity rainfall, which is likely to increase flood damage.

· The spread of some disease vectors is very likely thereby increasing the potential for disease outbreaks, despite existing biosecurity and health services.

The overall conclusions of the TAR were that (i) climate change is likely to add to existing stresses to the conservation of terrestrial and aquatic biodiversity and to achieving sustainable land use, and (ii) Australia has significant vulnerability to climate change expected over the next 100 years, whereas New Zealand appears more resilient, except in a few eastern areas.

11.1.2 New findings of this Fourth Assessment Report (AR4)

The scientific literature published since 2001 supports the TAR findings. Key differences from the TAR include (i) more extensive documentation of observed changes in natural systems consistent with global warming, (ii) significant advances in understanding potential future impacts on water, natural ecosystems, agriculture, coasts, Indigenous people and health, (iii) more attention to the role of adaptation, and (iv) identification of the most vulnerable sectors and hotspots. Vulnerability is given more attention - it is dependent on the exposure to climate change, the sensitivity of sectors to this exposure, and their capacity to adapt.

Over 80% of the Australian population lives in the coastal zone, with significant recent non-metropolitan population growth (Harvey and Caton, 2003). About 711,000 addresses (from the National Geo-coded Address File) are within 3 km of the coast and less than 6 m above sea level, with more than 60% located in Queensland and NSW (Chen and McAneney, 2006). These are potentially at risk from long-term sea-level rise and large storm surges.

Rises in sea level, together with changes to weather patterns, ocean currents, ocean temperature and storm surges are very likely to create differences in regional exposure...

Sea-level rise is virtually certain to cause greater coastal inundation, erosion, loss of wetlands and salt-water intrusion into freshwater sources (MfE, 2004a), with impacts on infrastructure, coastal resources and existing coastal management programmes...At Collaroy/Narrabeen beach (NSW), a sea-level rise of 0.2 m by 2050 combined with a 50-year storm event leads to coastal recession exceeding 110 m and causing losses of US$184 million (Hennecke et al., 2004)... Uncertainties in projected impacts can be managed through a risk-based approach involving stochastic simulation (Cowell et al., 2006)...

Box 11.4 Climate change adaptation in coastal areas

Australia and New Zealand have very long coastlines with ongoing development and large and rapidly growing populations in the coastal zone. This situation is placing intense pressure on land and water resources and is increasing vulnerability to climatic variations, including storm surges, droughts and floods. A major challenge facing both countries is how to adapt to changes in climate, reduce vulnerability, and yet achieve sustainable development...

126 Scientific support for a link between a rise in global temperatures and an increase in the atmosphere in the concentration of greenhouse gasses resulting from human activities, has been recognised by the Supreme Court of the United States: Massachusetts v Environmental Protection Agency (2007) 127 S.Ct. 1438; and by courts in the United Kingdom: Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin) (Burton J), and Australia: Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143 (Pearlman J); Gray v Minister of Planning (2006) 152 LGERA 258 (Pain J); Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59 (Preston CJ); Thornton v Adelaide Hills Council (2006) 151 LGERA 1; Australian Conservation Foundation v Latrobe City Council [2004] VCAT 2029; (2004) 140 LGERA 100 (Morris J). It was dismissed by a tribunal in Queensland in Re Xstrata Coal Queensland Pty Ltd and Ors [2007] QLRT 33; however, that decision was overturned on appeal: Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338.

127 The momentum in climate change litigation and legislation has been analysed in a number of legal articles : eg Jacqueline Peel, 'The Role of Climate Change Litigation in Australia's Response to Global Warming' (2007) 24 EPLJ 90; Jan McDonald, ' A Risky Climate for Decision-Making: The Liability of Development Authorities for Climate Change Impacts' (2007) 24 EPLJ 405; Kate McCrossin, 'A Critical Analysis of the Extent to which International Environmental Law has Influenced Commonwealth Legislation and Policies and New South Wales Legislation with Respect to Climate Change' (2007) 12 LGLJ 230; Gary Bryner, 'The Rapid Evolution of Climate Change Law', April 30 2007, Utah Bar Journal.

128 IPCC reports and global developments concerning climate change were addressed by the Supreme Court of the United States in Massachusetts v Environmental Protection Agency (above) as follows at 1448 - 1449:

Meanwhile, the scientific understanding of climate change progressed. In 1990, the Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body organized under the auspices of the United Nations, published its first comprehensive report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded that emissions resulting from human activities are substantially increasing the atmospheric concentrations of...greenhouse gases [which] will enhance the greenhouse effect, resulting on average in an additional warming of the Earth's surface: IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J Houghton, G. Jenkins, & J. Ephraums eds. 1991).

Responding to the IPCC report, the United Nations convened the Earth Summit in 1992 in Rio de Janeiro. The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of prevent[ing] dangerous anthropogenic [ie., human-induced] interference with the [Earth's] climate system. (The industrialized countries listed in Annex I to the UNFCCC undertook to reduce their emissions of greenhouses gases to 1990 levels by the year 2000. No immediate restrictions were imposed on developing countries, including China and India. They could choose to become Annex I countries when sufficiently developed.) S Treaty Doc. No. 102-38 Art. 2, p.5 (1992). The Senate unanimously ratified the treaty.

Some five years later - after the IPCC issued a second comprehensive report in 1995 concluding that [t]he balance of evidence suggests there is a discernible human influence on global climate (IPCC, Climate Change 1995, The Science of Climate Change, p 4) - the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions. Because those targets did not apply to developing and heavily polluting nations such as China and India, the Senate unanimously passed a resolution expressing its sense that the United States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol to the Senate for ratification.

Australia will ratify the Kyoto Protocol shortly, according to the recently elected federal government.

129 In the Massachusetts case a group of private environmental organisations filed a petition requesting the Environmental Protection Agency (EPA) to regulate the emission of greenhouse gases, including carbon dioxide, from new motor vehicles under the Clean Air Act: at 1449. The EPA denied the petition, explaining that it lacked statutory authority to regulate such emissions and that, even if it had such authority, it would decline to exercise it: at 1450. A group of states, local governments and private organisations sought judicial review of the EPA's denial: at 1451. They were successful in the Supreme Court which held (reversing a circuit court decision) that the EPA possessed authority to regulate such emissions and had failed to provide a "reasoned explanation" for its conclusion that it would not regulate such emissions even if it possessed the authority to do so: at 1459-1462. The majority commenced their judgment by stating at 1446:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of the greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species - the most important species - of a greenhouse gas.

The harms associated with climate change are serious and well recognized. Indeed, the NRC [National Research Council] Report itself - which EPA regards as an objective and independent assessment of the relevant science, 68 Fed. Reg. 52930 - identifies a number of environmental changes that have already inflicted significant harms, including the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years... NRC Report 16.

Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930-52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty - which, contrary to Justice Scalia's apparent belief, post, at 1466 - 1468, is in fact all that it said, see 68 Fed. Reg. 52929 (We do not believe...that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time (emphasis added)) - is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding.

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore arbitrary, capricious, ...or otherwise not in accordance with law. 42 USC s7607(d)(9)(A).

Global warming may be a crisis even the most pressing environmental problem of our time...Indeed it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it.

130 Subsequently, in People of the State of California v General Motors Corporation and Ors (2007) WL 2726871 (N D Cal) the State of California sought damages against various automakers for creating and contributing to an alleged public nuisance - global warming. Jenkins J granted the defendant's motion to dismiss the proceedings, holding that it presented a non-justiciable question.

131 In Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin) there was an application to declare unlawful a decision by the Secretary of State for Education and Skills to distribute to every state secondary school in the United Kingdom a copy of former US Vice President Al Gore's film, An Inconvenient Truth. Burton J decided that the film could be shown but on the condition that it was accompanied by a guidance note for teachers to balance Mr Gore's "one-sided" views: at [45] - [46]. Burton J accepted that the four main scientific hypotheses in the film are supported by a vast quantity of research in peer-reviewed journals worldwide and by the great majority of the world's climate scientists: at [17]. First, global average temperatures have been rising significantly over the past half century and are likely to continue to rise ("climate change"). Secondly, climate change is mainly attributable to man-made emissions of carbon dioxide, methane and nitrous oxide ("greenhouse gases"). Thirdly, climate change will, if unchecked, have significant adverse effects on the world and its population. Fourthly, there are measures which individuals and governments can take which will help to reduce climate change or mitigate its effects.

132 However, Burton J held that there are errors and omissions in the film and respects in which it departs from the mainstream view in the sense of the consensus expressed in The Physical Science Basis, IPCC Fourth Assessment Report (Working Group I). For the purposes of the hearing, the defendant was prepared to accept that this report represented the present scientific consensus. Burton J held that the erroneous claims had arisen in "the context of alarmism and exaggeration": at [19]. His Honour identified nine significant errors within the film. One was a claim that sea levels could rise by 20 feet "in the near future", which was dismissed as "distinctly alarmist": at [25]. If such a rise occurred it would be only after, and over, millennia so that the Armageddon scenario Mr Gore predicts, insofar as it suggests that sea level rises of seven metres might occur in the immediate future, is not in line with the scientific consensus: at [25].

133 The first Australian case to consider climate change was Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143, discussed above at [89]. Pearlman J acknowledged the greenhouse effect and analysed the governmental response (at 146-147):

Earth's atmosphere, while composed mainly of nitrogen and oxygen, also contains a number of trace gases such as CO2, methane (CH4) and ozone. Over the past 200 years the global concentrations of a number of these gases have increased due to human activities such as the burning of fossil fuels, deforestation and large scale farming. These naturally occurring gases, together with synthetic chemicals such as chlorofluorocarbons (CFCs), have the capacity to absorb radiation and there is concern that their increased concentrations in the atmosphere is resulting in a change in global temperatures.

The Environment Protection Authority in its report entitled New South Wales State of the Environment 1993 (exhibit 9) discussed global warming. It stated at p 5 of that report that CO2 has been estimated to account for over half of the global warming phenomenon ... . The report continued as follows:

... Australia's CO2 emissions represent approximately 1.4 per cent of the world total. However on a per capita basis, it is estimated that Australia is the world's fourth-largest contributor.

The report went on to discuss other major greenhouse gases -- CH4, nitrous oxide and CFCs -- as well as the question of CO2 sinks (that is, absorbers of CO2), the two major natural ones of which are the ocean and forests.

Due to the intrinsically global nature of the problems associated with the human enhanced greenhouse effect, an international instrument was created in an attempt to co-ordinate a response. The United Nations Framework Convention on Climate Change (exhibit 10, the Framework Convention) was opened for signature in May 1992. Australia ratified the Framework Convention and it entered into force on 21 March 1994. Article 2 of the Framework Convention states as its objective the following:

The ultimate objective of this Convention ... is to achieve ... stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system ...

To that end, the parties to the Framework Convention made certain commitments in Art 4A. These commitments include, among others:

1(f) [To t]ake climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions ...

2(a) [To] adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs ...

While the Australian Government is now bound to act generally in accordance with its international obligations under the Framework Convention, there is no national legislation yet in place aimed at specifically implementing any of its obligations. What there is, however, is the Intergovernmental Agreement on the Environment (exhibit 11, the Intergovernmental Agreement). This document (entered into by the Federal Government, all State and Territory Governments, and the Australian Local Government Association) is designed to enable a cooperative national approach to the environment.

The Intergovernmental Agreement contains general provisions related to its operation and principles to be applied by the parties. In a number of schedules, it deals with specific areas of environmental policy and management. Schedule 5 is entitled Climate Change. This schedule discusses the need for Australia to be part of an international response to the problem of greenhouse-enhanced climate change and details the creation of a National Greenhouse Response Strategy. It also adopts an interim planning target in the following terms:

to stabilise greenhouse gas emissions ... based on 1988 levels, by the year 2000, and reducing these emissions by 20% by the year 2005 ... subject to Australia not implementing response measures that would have net adverse economic impacts nationally or on Australia's trade competitiveness, in the absence of similar action by major greenhouse gas producing countries.

In accordance with Sch 5 of the Intergovernmental Agreement, the National Greenhouse Response Strategy... was produced and endorsed by the Council of Australian Governments in December 1992. The key elements of the National Greenhouse Response Strategy are stated to include, amongst other things:

* a set of general principles underlying all response measures;

* a set of sectoral objectives and sectoral strategies;

134 IPCC reports were considered in Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59. That was an objector appeal to this Court against a wind farm development, which was successful in that a number of strict conditions were put in place to limit the environmental impacts of the development. Preston CJ said:

[68] The Intergovernmental Panel on Climate Change (IPCC) has catalogued the increasing levels of atmospheric greenhouse gases and the processes affecting climate change in recent years. Its 2001 report compiles the research of hundreds of scientists around the world and is approved by the IPCC member countries, including Australia: Intergovernmental Panel on Climate Change, Climate Change 2001 - IPCC Third Assessment Report. It estimates that the rate of global warming over the 20th century is much greater than in the previous nine centuries and it is considered likely that the 1990s was the warmest decade of the millennium. Over the twentieth century the global average surface temperature (the average of near surface air temperature over land, and sea surface temperature) has increased by 0.6 degrees Celsius (+ or - 0.2 degrees Celsius): Intergovernmental Panel on Climate Change, 'Summary for Policymakers', Climate Change 2001: The Scientific Basis, IPCC Third Assessment Report at 1.

[69] The most recent IPCC Report, released earlier this month, makes it clear that the effects of human behaviour on climate change are impossible to ignore: Intergovernmental Panel on Climate Change, IPCC WGI [Working Group I] Fourth Assessment Report, Climate Change 2007: The Physical Science Basis, 'Summary for Policymakers' (as at 8 February 2006). This IPCC report concludes that global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values. It attributes these changes primarily to fossil fuel use and land-use change, while those of methane and nitrous oxide are primarily due to agriculture: at 2.

[70] Although natural and human ecosystems are adaptive in nature, the rate at which the global climate is changing outweighs the rate at which these systems can adjust. Available data indicates that regional climate changes have already affected a wide range of physical and biological systems across the world. Examples given by the IPCC of the effects of climate change include the shrinkage of glaciers, thawing of permafrost, later freezing and earlier break-up of ice on rivers and lakes, lengthening of mid- to high-latitude growing seasons, poleward and altitudinal shifts of plant and animal ranges, declines of some plant and animal populations, and earlier flowering of trees, emergence of insects, and egg-laying in birds, as well as the death of coral reefs, atolls and mangroves. Although some species may thrive under the new conditions, many of these systems will be irreversibly damaged: Intergovernmental Panel on Climate Change, 'Summary for Policymakers', Climate Change 2001:Impacts, Adaptation and Vulnerability, IPCC Third Assessment Report, at 2.1-2.3. The most recent IPCC Report states that average Arctic temperatures have increased at almost twice the global average rate in the past 100 years: Intergovernmental Panel on Climate Change, IPCC WGI Fourth Assessment Report, Climate Change 2007: The Physical Science Basis, 'Summary for Policymakers', at 8. In Australia, the effects of global warming are likely to have serious effects on Australia's natural environment, such as on the Great Barrier Reef.

[71] Human systems are also vulnerable to the effects of climate change, especially in relation to water resources and agriculture: Intergovernmental Panel on Climate Change, 'Summary for Policymakers', Climate Change 2001: Impacts, Adaptation and Vulnerability, IPCC Third Assessment Report, at 2.4. Many of these effects will be manifested in natural disasters including droughts, floods and avalanches. They will also have a disproportionate impact on impoverished people as those with the least resources have the least capacity to adapt: Intergovernmental Panel on Climate Change, 'Summary for Policymakers', Climate Change 2001: Impacts, Adaptation and Vulnerability, IPCC Third Assessment Report, at 2.8. In Australia, climate change seriously threatens to compound the desperate situation in Australia's rural and drought-affected areas.

[74] The attainment of intergenerational equity in the production of energy involves meeting at least two requirements. The first requirement is that the mining of and the subsequent use in the production of energy of finite, fossil fuel resources need to be sustainable. Sustainability refers not only to the exploitation and use of the resource (including rational and prudent use and the elimination of waste) but also to the environment in which the exploitation and use takes place and which may be affected. The objective is not only to extend the life of the finite resources and the benefits yielded by exploitation and use of the resources to future generations, but also to maintain the environment, including the ecological processes on which life depends, for the benefit of future generations. The second requirement is, as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.

135 The link between coal mining and climate change/global warming was recognised in Gray v Minister for Planning (2006) 152 LGERA 258, discussed above at [113] - [117], which was concerned with approval to build a large coal mine known as the Anvil Hill Project in the Hunter Valley in NSW. Pain J held at [100]: "I consider there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming, which is impacting now and likely to continue to do so on the Australian and consequently NSW environment, to require assessment of that GHG contribution of the coal when burnt in an environmental assessment under Pt 3A".

136 Following that decision, an assessment of the environmental impacts was made and the NSW Minister for Planning approved the project. By then opponents of the project had turned their attention to a challenge to the Commonwealth Minister's determination that the project did not require approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The proposed coal mine was referred to the Minister under the Act and the Minister's delegate held that it was not a "controlled action" as defined and hence did not require approval of the Minister under the Act. There was an unsuccessful judicial review challenge to the validity of that decision based on a jurisdictional fact argument: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480. Stone J noted that the delegate "accepted that greenhouse gases in the Earth's atmosphere are causing changes to that atmosphere and to weather patterns and that these changes might affect matters protected [by legislation] such as the Hunter Estuary Wetlands Ramsar site": at [25]. However, Stone J said that the question "is not whether there is an impact [from greenhouse gas emissions] but whether that impact is, will be or is likely to be significant": at [39]. The delegate had decided that a significant impact on matters of national environmental significance was not likely in that regard, the evidence suggested that the mine might contribute per annum the equivalent of 0.04% of the world's greenhouse gas emissions. The applicant submitted that it all added up. However, Stone J held that the Act does not require the Minister or a delegate to look at potential impacts in the context of other hypothetical or potential actions. They only had to look at the proposed action and determine whether its impact is likely to be significant.

137 In Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (Jagot J), reviewed above at [118] - [119], the applicant failed to establish that the Minister was bound to consider ESD at the level of particularity of a quantitative assessment of greenhouse gas emissions.

138 In Australian Conservation Foundation v Latrobe City Council [2004] VCAT 2029; (2004) 140 LGERA 100 brown coal resources which resourced the Hazelwood power station in Victoria were due to run out in 2009. The power station's owner applied to develop another coal field that would extend the power station's operation until 2031. A panel was set up to consider the proposal under the Planning and Environment Act 1987 (Vic). The Minister instructed the panel not to consider matters related to greenhouse gas emissions from the Hazelwood power station. Consequently, the panel excluded from its consideration submissions by environmental groups concerning the environmental impact of greenhouse gases generated by the power station continuing to burn brown coal beyond 2009. Environmental groups brought proceedings in the Victorian Civil and Administrative Tribunal alleging that the panel's exclusion of submissions from its consideration breached s 24 of the Act, which provided that such a panel must consider all submissions referred to it. An environmental effects statement was required under the Act because of the nature of the project and the nature and number of permissions required. Morris J, the President of the Tribunal, construed s 24 to mean that a panel is obliged to consider submissions that are relevant to planning issues and to the particular amendment (at 106). His Honour held that the environmental impacts of greenhouse gas emissions were relevant and therefore the panel should have considered the submissions. Objectives of the Act relating to "maintaining ecological processes" and balancing "the present and future interests of all Victorians" were taken to indicate the importance of inter-generational effects, such as the consequences of burning brown coal over the long term (at 109).

139 In Thornton v Adelaide Hills Council (2006) 151 LGERA 1 residents of the township of Forreston in South Australia appealed against a decision of the Adelaide Hills Council to issue a development consent for the construction of a shed which would house a 4 megawatt capacity coal-fired boiler and associated bunded concrete pad or "bunker" for coal storage subject to conditions. The appellants owned land within Forreston and were concerned about the operation of the coal-fired boiler and its adverse environmental impacts, in particular the pollution of water catchment areas, emissions from the stack and the release of greenhouse gases into the atmosphere. The Environment, Resources and Development Court of SA held that the principles of ESD should be taken into account by a relevant authority when assessing a proposed development and that councils are under an obligation to facilitate development that is sustainable: at [40], [42]. The court noted that the combustion of fossil fuels is the greatest source of greenhouse gases in the world, particularly carbon dioxide, and that the consequences of global warming have already been, and continues to be, observed. The court referred to the Third Assessment Report of the IPCC (2001) and the CSIRO report Climate Change in South Australia (March 2003). In the court's opinion, increasing the emission of greenhouse gases is not consistent with the principles of ESD. However, as the appellants had made no real attempt to provide the court with evidence of the likely increase in greenhouse gas emissions caused by the proposed development compared with the existing operation, the court declined to reject the proposal on this ground. The court acknowledged the effect of greenhouse gases as follows at [43]:

It is well recognised that the combustion of fossil fuels (including coal) is the greatest source of greenhouse gases in the world, particularly carbon dioxide. Greenhouse gases concentrate in the atmosphere, enhancing the natural greenhouse effect and contributing to global warming. The consequences of global warming have already been and are continuing to be observed. They include major impacts on physical and biological systems worldwide, with consequential impacts on human systems. While there will be some seemingly beneficial impacts, generally the impacts will depend on the adaptive capacity of systems to adjust, with some inevitable negative consequences for human life and health and social and economic well-being. So much was reported in the Third Assessment Report of the International [sic] Panel on Climate Change (2001). In 2002, Australia's national greenhouse gas emissions per capita were the highest of all industrial nations...

140 In Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736; (2006) 232 ALR 510 there were proposals to open two new Queensland coal mines. Environmental groups bringing the case alleged that burning the coal would produce significant greenhouse gas emissions contributing to global warming. The legal challenge was to the validity of a decision by the delegate of the federal Minister that the referred proposals were not "controlled actions" under the Environment Protection Biodiversity and Conservation Act 1999. The argument was that the climate change impacts of the proposed mines should have been taken into consideration in deciding whether that Act was applicable. Dowsett J found that the Minister's delegate had in fact taken the greenhouse gas issue into consideration. His Honour also said at [72]: "I have proceeded upon the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter, which impact could be said to be an impact of the proposed action...However, I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described."

141 Against the general trend of cases reviewed above, a Queensland tribunal was dismissive of the IPCC Fourth Assessment Report and the Stern Review on the Economics of Climate Change in Re Xstrata Coal Queensland Pty Ltd and Ors [2007] QLRT 33. The Stern Review (HM Treasury 2006), was commissioned by the UK government as an independent expert review (Sir Nicholas Stern is the former chief economist of the World Bank). The Stern Review's summary of conclusions included that there was still time to avoid the worst impacts of climate change if strong action was taken now; climate change could have very serious impacts on growth and development; the costs of stabilising the climate are significant but manageable whereas delay would be dangerous and much more costly; and that action on climate change is required across all countries and need not cap the aspirations for growth of rich or poor countries. In Xstrata there was an application to the Queensland Land and Resources Tribunal by a mining company, Xstrata, for a statutory licence to extend an open cut coal mine and for a related statutory environmental authority. The function of the tribunal was to make a recommendation to the Minister that the application be granted, with or without conditions, or rejected. There were objections by (inter alia) the Queensland Conservation Council that the increased mining activity would result in an increase in greenhouse gas emissions and would contravene principles of ESD and give rise to an adverse environmental impact unless conditions were imposed to avoid, reduce or offset such emissions resulting from the mining, transport and use of the coal. The presiding member of the tribunal made orders recommending to the Minister that Xstrata's applications be granted without any of the conditions sought by the objectors.

142 An appeal was allowed by the Queensland Court of Appeal and the matter was remitted for determination according to law, on the ground of denial of natural justice by the tribunal: Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd and Ors [2007] QCA 338. It was not a function of the Court of Appeal to express a conclusion whether or not the methodology and analysis relied on by the tribunal was valid or not: at [63]. The Court of Appeal held that "[t]he fact that climate change is occurring and that anthropogenic greenhouse gas emissions have contributed to it, was undoubtedly common ground between the parties at the hearing...What was in issue was the extent to which the proposed mine would contribute to global warming and whether, in the applicable factual and statutory matrix the Tribunal should impose conditions on the recommended granting of Xstrata's applications in response to the mine's potential contribution to global warming": at [41].

143 In the present case there is no submission that climate change is not occurring nor that anthropogenic greenhouse gas emissions have not contributed to it.

144 The applicant pleads in her Points of Claim that ESD and the impacts of the proposal on the environment were mandatory relevant considerations which the Minister failed to take into account, as follows:

33. The Minister failed to take into account a mandatory relevant consideration, namely, the principles of ESD set out in s 6(2) of the Protection of the Environment (Administration) Act 1991.

a. The Minister had before him the D-G's EAR which contained no reference to the principles of ESD set out in s 6(2) of the Protection of the Environment (Administration) Act 1991.

b. The Minister had before him no other material dealing with s 6(2) of the Protection of the Environment (Administration) Act 1991.

34. The Minister failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change.

a. The minister failed to consider whether changed weather patterns as a result of climate change would lead to an increased flood risk in connection with the proposed development, in circumstances where flooding was identified as a major constraint on the development of the site.

35. The Minister failed to consider ESD by failing to consider the impact of the proposal on Endangered Ecological Communities (EEC's) listed under the Threatened Species Conservation Act 1995.

a. The assessment of flora and fauna impact in the EA was based on vegetation mapping carried out in around 2001, which identified the presence on Sandon Pt of an EEC known as Sydney Coastal Estuary Swamp Forest Complex (SCESFC).

b. In 2004 SCESFC was omitted as a listed EEC and replaced with a number of EECs which were similar but not identical in composition to SCESFC.

c. As the consequence of the above, DEC recommended that the proponent should undertake further mapping to verify the extent and nature of the newly-defined EECs occurring at Sandon Point.

d. The proponents failed to undertake any further vegetation mapping.

e. Without up-to-date information about the location and extent of EECs, the Minister was unable to consider the likely impacts of the proposal on EECs.

f. Failure to consider the impact of the proposal on EECs shows a failure to consider the principles of ESD, in particular the principle of the conservation of biological diversity.

36. When making decision under Part 3A of the Act, the Minister was obliged to consider the impacts of the proposal on the environment.

a. The objects and structure of the Act show that it was the intention of the legislature to ensure that the environmental impacts of the proposals were considered.

37. The matters set out in paragraphs 30 - 40 above demonstrate that the Minister has failed to consider the impacts of the proposal on the environment.

38. In light of the matters set out at paragraphs 31-37 above, the Minister's decision to grant the Concept Plan Approval is invalid on the grounds that in making that decision he failed to take into consideration a mandatory relevant consideration.

145 The issues are whether the Minister had an implied obligation to consider the principles of ESD in the following respects and, if so, whether he failed to do so:

(a) whether the impacts of the proposed development would be compounded by climate change. In particular, whether changed weather patterns as a result of climate change would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development on the site (Climate Change Flood Risk); and

(b) the impact of the proposal on Endangered Ecological Communities (EECs) listed under the Threatened Species Conservation Act 1995 because there was no up-to-date mapping to verify the extent and nature of the EECs.

146 Although the pleading refers to an obligation to consider the principles of ESD as well as to an obligation to consider the impacts of the development proposal on the environment, the applicant's submissions focused on the former. For present purposes, the latter is subsumed within the former, given that the principles of ESD are vitally concerned with the impact of development on the environment.

147 The applicant submits as follows that the Minister had an implied obligation under s 750 to consider ESD:

(a) a conclusion as to whether a particular matter is a mandatory relevant consideration may be drawn by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40;

(b) s 75O of the EPA Act expressly provides only a list of documents which the Minister is required to consider rather than a list of substantive matters. It would be absurd if there were no mandatory substantive matters which the Minister is obliged to consider. As a minimum, those implied matters must include the principles of ESD and the impacts of the proposal on the environment;

(c) one of the objects of the EPA Act is to encourage ESD: s 5(a)(vii). Section 4 defines ESD by reference to the definition in s 6(2) of the Protection of the Environment (Administration) Act 1991, which includes descriptions of the precautionary principle, inter-generational equity and conservation of biological diversity and ecological integrity;

(d) "The Minister is required to act in manner consistent with and so as to further the objects of the Act": Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [174] and [178] per McClellan CJ in relation to the Water Management Act 2000 (NSW);

(e) all decisions under the EPA Act, including decisions made under Part 3A, require that ESD principles be considered: Gray v Minister for Planning (2006) 152 LGERA 258 at 291 [114] - [115];

(f) the objects and structure of the Act show that it was the intention of the legislature to ensure that the environmental impacts of the proposal were considered.

148 A matter may be a mandatory relevant consideration by implication from the subject matter, scope and purpose of the statute. That is one of the propositions in Mason J's classic exposition in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 41 (omitting citations):

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the AD(JR) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision...

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision...

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned...It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

149 One of the cases relied on by the applicant is Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources, discussed above at [93] - [95]. The case supports the applicant in the present case to the extent that his Honour's general approach is that for which the applicant contends.

150 The applicant also relies on Gray v The Minister for Planning, discussed above at [113] - [117]. There Pain J held that under Part 3A of the EPA Act the Director-General of the Department of Planning was obliged to take ESD principles into consideration when forming a view as to whether an environmental assessment prepared by a concept plan proponent adequately addressed the Director-General's environmental assessment requirements. The case supports the applicant because, as discussed earlier, her Honour held that the Minister was obliged to take into account the public interest, including ESD. Strictly, that was obiter since it was not an issue for decision in the case.

151 Authorities reviewed above (most recently, Telstra) establish that under Part 4 of the EPA Act a consent authority must consider ESD when granting a development consent. That obligation arises under a different statutory scheme in s 79C(1), which requires a consent authority "to take into consideration such of the following matters as are of relevance to the development the subject of the development application". One of those matters is "the public interest", which has been held to include ESD. In addition, in merits appeals the Court is bound to have regard to the public interest: Land and Environment Court Act 1979 s 39(4).

152 There is no equivalent public interest consideration provision in s 75O or any other provision of Part 3A of the EPA Act. However, one of the documents which s 75O mandates that the Minister must consider when approving a concept plan is the Director-General's report on the project and the reports and recommendations contained in the report. Clause 8B of the Environmental Planning and Assessment Regulation 2000, promulgated pursuant to s 75Z, (set out above at [10]) requires the Director-General to include in the report "any aspect of the public interest that the Director-General considers relevant to the project".

153 In my opinion, the issue under s 75O falls to be determined having regard to cl 8B which, together with Part 3A, forms part of the legislative scheme. In Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 652 Mason J observed: "One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is". That is what Dixon J did in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; (1934) 52 CLR 85 at 89- 95. Mason J's dictum was applied by the Full Federal Court in Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 196 - 197. Similarly, in Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435 at 445 [47] the court referred to the Act and regulations there under consideration as constituting a "single legislative scheme", citing Brayson.

154 In my opinion, the reference to "public interest" in cl 8B includes the principles of ESD. That is consistent with the ESD cases decided under s 79C of the EPA Act to which I have referred. Clause 8B requires the Director-General to form an opinion as to what aspects of ESD (if any) are relevant to the project and, therefore, to be included in the report. The Minister is not obliged to initiate an independent inquiry to verify the Director-General's opinion.

155 The question is whether, in the circumstances, the Minister had an implied obligation to consider ESD at the level of particularity alleged by the applicant. It was on the high level of particularity that the applicant's case foundered in Drake-Brockman (above). There Jagot J considered Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [23] where Gleeson CJ and McHugh J referred to Brennan J's statement of principle in Peko-Wallsend at 55 that "The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power..." Gleeson CJ and McHugh J then observed at [24] that "The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject".

156 I turn to the first specific ESD complaint, that the Minister failed to consider whether the impacts of the proposed project would be compounded by climate change, in particular, whether changed weather patterns as a result of climate change would lead to an increased flood risk where flooding was identified as a major constraint on a coastal plain project ("climate change flood risk").

157 I accept that flooding was identified as a major constraint on development of the site. There was no submission to the contrary.

158 The Director-General's Environmental Assessment Report did not refer to climate change or ESD other than in Appendix E thereto which contained the proponents' reports including an Environmental Assessment Report by Don Fox Planning in response to the Director-General's requirements. Section 10.2 of the Environmental Assessment Report of Don Fox Planning is headed "Ecologically Sustainable Development" and over some four pages assesses the project by reference to the ESD principles in s 6(2) of the Protection of the Environment (Administration) Act 1991: namely, the precautionary principle, intergenerational equity, biological diversity and ecological integrity, and the valuation and pricing of environmental resources. Section 10.3 referred to "Climate Change and Greenhouse Effect" in a limited way as follows:

The various forms of residential development proposed in this Concept Plan can already take place under the current Residential 2(b) zoning applying to the land under Wollongong LEP 1990.

The submission to the Minister for inclusion of the site as a State Significant Site within Schedule 3 of the SEPP (Major Projects) increases the extent open space land uses in the form of the Environmental Protection 7(a) zone thereby reducing the opportunities for development of the Sandon Point locality.

The reduction in development potential of the land from the current zoning regime is a positive contribution in terms of ESD principles and climate change and greenhouse effects.

The Concept Plan also provides opportunities to reduce car usage by locating higher densities in the northern part of the site close to Thirroul Railway station and the incorporation of a bus route along the north-south link.

Sustainable building design practices particularly governed by SEPP 65 and SEPP (BASIX) will apply to all forms of future housing on the site to ensure that water management, energy efficiency, thermal comfort are integral to the design of future buildings. These details will be provided at the Project Plan stage or the DAs for individual houses.

159 There was no reference in that document, nor in any of the other voluminous documents before the Minister and the Director-General, to the climate change flood risk at issue in the present case.

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