Inspections, Property, Wetlands, Land Use, Wildlife, Evidence, Permits, Air pollution, Damages, Civil
This case involved an application for review of the Greater Taree City Council’s decision to grant Australian Equity Investments Pty Ltd consent to construct a new dwelling on a beachfront property at 4/40 Lewis Street, Old Bar outside Taree, on the NSW Central Coast. A neighbouring resident, Mr Aldous, challenged the decision as the proposed dwelling would block his view. As in the earlier Walker case, Justice Biscoe of the Land and Environment Court was confronted with arguments regarding the relevance of future climate change effects for decision-making under the New South Wales Environmental Planning and Assessment Act 1979. One argument raised by the applicant was that the Council had failed to take account of ecologically sustainable development (ESD) principles by failing to provide for the risk of climate change-induced coastal flooding. This argument was the same one rejected by the Court of Appeal in the earlier Walker case. However, in this case, Biscoe J applied the reasoning of the Court of Appeal and came to the opposite conclusion. His Honour took advantage of that part of the Court of Appeal’s judgment where they conceded that ESD principles will be an essential component of many decisions made in the ‘public interest’. Justice Biscoe listed a number of major developments since his first instance decision in Walker, in climate change science, climate change litigation, and coastal flood risk management policy. In these, his Honour found authority to suggest that this decision was one where consideration of the public interest did require the consideration of ESD principles and the risk of climate change induced coastal erosion. Ultimately, however, Biscoe J did not think that the Council had failed in that duty of consideration.