Biodiversity, Environmental Impact Assessments, Air pollution, Land Use, Polluter Pays, Burden of Proof, Wetlands, Multilateral Environmental Agreements, Precaution, Environmental Defenders
This case arose out of challenge to a proposed residential subdivision and retirement home on Sandon Point, in New South Wales. Amongst other things, the applicant (Ms Walker) argued that the Minister had failed to consider the ‘public interest’ in failing to consider the risk of climate change-induced coastal inundation. The Court of first instance accepted that argument, declaring the Minister’s decision invalid on the grounds that the Minister had failed to consider the principles of Ecologically Sustainable Development (‘the ESD principles’), and hence had failed to consider the ‘public interest’. The NSW Land and Environment Court found that when looking at the whole environmental legislative scheme, ecologically sustainable development principles, particularly the precautionary principle and inter-generational equity, were a mandatory consideration when taking the public interest into account. The judge followed the approach previously taken by the NSW Land and Environment Court in the Anvil Hill case. Namely, that the key purpose of environmental impact assessments (“EIA”) is to provide information about an activity’s impact on the environment. Therefore, if this function is considered in context with the goal of encouraging ESD, it dictates the provision of certain types of information in the EIA process. EIAs should consider information regarding scientific uncertainties arising in relation to serious or irreversible environmental threats as well as cumulative, on-going and long term impacts. Therefore, because the Minister had not considered the risk of climate change flooding, the public interest had not been considered and the Minister’s decision was void.