IMPACT Public interest environmental law

No 76 December 2004 The Precautionary Principle and the Public Quarterly Journal of the Interest National Environmental Defender’s Office Network Jeff Smith, Director, EDO New South Wales Australian Capital Territory New South Wales This article is based on a paper prepared policies pertaining to the precautionary Northern Territory for a conference entitled ‘The principle reveals a number of interrelated North Queensland Precuationary Principle in strands.6 Queensland Environmental Regulation’, hosted by South Australia the Australian Centre for Environmental Tasmania 1) The classic principle Victoria Law. Western Australia This version states that full scientific cer- Part One: Introduction tainty should not be used as a reason for Website: www.edo.org.au postponing a measure to prevent degra- Public interest environmental law in dation of the environment where there are CONTENTS Australia has continued to evolve threats of serious or irreversible environ- remarkably in the last ten years since mental damage. This is the definition used 4 EDO Network Conference Justice Stein’s seminal judgement in under the Environment Protection and Leatch.1 In contrast, the application of Biodiversity Conservation Act 1999 (sec- 7 EDO Network 20th the precautionary principle in New South tion 391(2)). It is less common, however, Anniversary Wales has not moved forward since this than its classic status might suggest. 9 Case Update: Protecting seminal case. Rather, it is the classic formulation by vir- Whales in the Australian tue of being a shorthand way of referring Whale Sanctuary On the one hand, legislation is poor, to the principle. contradictory and uncertain, as noted by 9 Court Rejects Appeal for others.2 On the other hand, NSW case In Leatch, Stein J took this starting point Environmenal Flows in NSW law has not moved the principle forward and described the precautionary princi- and arguably it has gone backwards. This ple as a ‘statement of common sense’. He 10 Gunns Sues failure is seen as symptomatic of a wider Environmentalists continued: malaise within the Court, namely, a failure 10 Coogee Coastal Action in large part to develop a specialist It is directed towards the prevention of Coalition in WA Court of environmental jurisprudence. serious or irreversible harm to the envi- Appeal ronment in situations of scientific uncer- Part Two: What is the precautionary tainty. Its premise is that where uncer- 11 Group Denied Standing in principle? tainty exists concerning the nature or Airport Land Clearing Appeal scope of environmental harm (whether Many commentators have traced the this follows from policies, decisions or ac- 11 Qld Biodiscovery Legislation development of the precautionary Commences Operation tivities), decision makers should be cau- principle back to concepts in the German tious. socio-legal tradition and Swedish 12 New Marine Parks environmental laws and policies, 3 Legislation for Queensland His Honour then considered relevant pro- through its employment internationally4 visions of the National Parks and Wild- 5 12 Case Update: Mackay and thence into domestic laws. It is not life Act 1974 (NSW) and concluded that the purpose of this paper to revisit this these were aimed at the preservation and 12 New Commonwealth Zoning history. Rather, this part seeks to tease protection of endangered fauna. He ob- Plan for Great Barrier Reef out the different strands of the served that although the precautionary precautionary principle, based on an principle is not expressly stated, the cau- 12 EDO Network News appreciation of the ambiguity of the term. tious approach it suggests is ‘clearly con- Published by Environmental Defender’s Office (NSW) Level 9, 89 York St Sydney 2000 sistent with the subject matter, scope and Ph: 02 9262 6989 Fax: 02 9262 6998 A review of the literature, international Email: [email protected] purpose of the Act.’ ABN: 72 002 880 864 ISSN: 1030-3847 instruments, case law, legislation and Printed on recycled paper Based on a lack of information about irreversible damage to the precautionary principle. I do not think the Giant Burrowing Frog (and con- environment, and that I do any injustice to what Stein J sequently about the impact of the pro- had to say about the precautionary posed road on the survival of the (ii) an assessment of the risk-weighted principle in Leatch v National Parks Frog), His Honour concluded: consequences of various options, and Wildlife Service & Anor (1993) 81 LGERA 270 when I reiterate what Application of the precautionary prin- This definition is in turn derived from I said in Nicholls v Director General cipleKane appears Granville, to me toVolunteer, be most apt EDO in a Newthe South Intergovernmental Wales Agreement on of National Parks and Wildlife & Ors situation of a scarcity of scientific the Environment 1992.7 (1994) 84 LGERA 397 to the effect knowledge of species population, that the precautionary principle adds habitat and impacts. Indeed, one per- 3) The “caution” principle nothing to the consideration that the missible approach is to conclude that Court undertakes by applying common the state of knowledge is such that one Contrary to the classic approach in sense. It is obvious that where should not grant a licence to ‘take or Leatch, this conception conflates development involves the handling and kill’ the species until much more is precaution with caution, rendering processing of materials which have the known. obsolete the distinction between potential to cause significant harm to precautionary action and preventative the health of human beings and Stein J uses the language of common action. In other words, nothing more vegetation, extreme caution must be sense and caution and the need to “take than caution or common sense are used in determining whether a hard look” in applying the required. development consent will be precautionary principle. This is much forthcoming.12 more than simply using common The case of Nicholls v Director- sense and caution General of National Parks and Such an approach leaves no room for Wildlife Service8 and Alumino (Aust) the independent application of the 2) The guiding principle Pty Ltd v Minister Administering the precautionary principle. As was said Environmental Planning and in the Queensland case of CSR v In NSW, the definition of ecologically Assessment Act 19799 exemplifies this Caboolture Shire Council [2001] sustainable development (ESD) is approach. Whilst apparently accepting QPELR 398, the precautionary found under the Protection of the the “common sense” approach principle did not depart in any Environment Administration Act 1991. adopted by Stein J in Leatch,10 Talbot important way from the approach Section 6 provides, amongst other J seemed unsympathetic to the conventionally taken by decision- things, that the objectives of the principle in Nicholls. In fact, the makers. 13 Environment Protection Authority are: conclusion reached more readily exposes the difficulties inherent in a As Nagorcka has argued (a) to protect, restore and enhance the “common sense” approach: quality of the environment in New Instead of “precautionary” and South Wales, having regard to the need while [the precautionary principle] focused on warding off a possible evil to maintain ecologically sustainable may be framed appropriately for the beforehand, it becomes merely development… purpose of a political aspiration, its “cautionary” that is engaged in implementation as a legal standard employing prudence in regard to a One of the elements of ecologically could have the potential to create known evil. Australian and sustainable development, as defined in interminable forensic argument. Taken international documents have conflated the Act, is literally in practice it might prove to these two ideas. be unworkable. Even the applicant (a) the precautionary principle— concedes that scientific certainty is 4) The qualified principle namely, that if there are threats of essentially impossible. It is only 500 serious or irreversible environmental years ago that most scientists were International examples of a qualified damage, lack of full scientific certainty convinced the world was flat. The approach to the principle are to be should not be used as a reason for controversy in this matter further found under both the Rio Declaration postponing measures to prevent demonstrates that all is not yet 1992 and the Climate Change environmental degradation. In the settled.11 Convention 1992, which provide application of the precautionary principle, public and private decisions In Alumino Justice Talbot seemed to In order to protect the environment, should be guided by: effectively undercut the approach the precautionary approach shall be taken in applying the precautionary widely applied by States according to (i) careful evaluation to avoid, principle in Leatch. His Honour noted: their capabilities. Where there are wherever practicable, serious or threats of serious or irreversible dam- Miss Murrell, in her final address, age, lack of full scientific certainty placed considerable emphasis upon the shall not be used as a reason for 2 Impact No 76 - December 2004 application of the so-called postponing cost-effective measures to prevent environmental degradation resolutions to suspend dumping of both the objects and criteria for (Principle 15, Rio Declaration) low-level radioactive waste at sea exercising functions deal with ESD without the prior approval of parties differently. Where there are threats of serious or (as was done under the London and irreversible damage, lack of full Paris Conventions), a moratorium on The principal piece of planning scientific certainty should not be used whaling, commencing again only with legislation, the Environmental as a reason for postponing such approval of parties to the international Planning and Assessment Act 1979, measures, taking into account that Whaling Convention. The effect of seeks to encourage ESD (as one of policies and measures to deal with such devices is to require states to eight factors). In making a decision climate change should be cost- submit proposed activities to as to whether to grant consent to a effective so as to ensure global benefits international scrutiny.18 development, ESD is not mentioned at the lowest possible cost (Article as a factor to be considered.22 3(3), Climate Change Convention 6) The uncertainty principle 1992). Similarly, in the Threatened Species The precautionary principle may differ Conservation Act 1997 one object is This is closely related to the caution according to the level of uncertainty to promote ecologically sustainable principle insofar as it is a weak – and required to trigger it. As Birnie and development. The Director-General arguably conceptually flawed14 - Boyle have noted, the precautionary must have regard to these objects in variant that requires other factors to principle is the same as the preparing threat abatement plans and be weighed, be they as part of a cost- precautionary approach to many guidelines (alongside other aspects benefit analysis or considerations commentators.19 However, the such as likely social and economic under a statutory scheme. As precautionary principle may apply in consequences). In deciding whether Pearlman J stated in Greenpeace situations of high uncertainty with a to grant a licence to take or kill Australia Ltd v Redbank Power risk of irreversible harm entailing high threatened species, the Director- Company Pty Ltd and Singleton costs, while the precautionary General must take into account the Council: approach is more appropriate where principles of ESD (but not the the level of uncertainty and potential objects). The application of the precautionary costs is merely significant and the principle dictates that a cautious harm is less likely to be irreversible.20 Under the Coastal Protection Act approach should be adopted in 1979, the treatment of ESD is reversed evaluating the various relevant factors 7) The harm principle – namely, one of the objects is bounded in determining whether or not to grant by the need to “have regard to ESD”23 consent; it does not require that the Certain instruments also take a while in exercising functions greenhouse issue should outweigh all different approach as to the thresholds throughout the Act, the Minister is to other issues.”15 of harm. Principle 15 of the Rio promote ESD.24 Declaration and Article 3 of the Climate 5) The evidential principle Change Convention speak of serious These three examples highlight both and irreversible harm. By way of the aspirational and inconsistent This construction of the principle contrast, marine environment treaties elements of sustainable development recognizes that the precautionary and the Bamako Convention on the under NSW legislation noted by the principle has evidential implications for Ban of the Import into Africa and the Honourable Paul Stein. the manner in which the courts should Control of Transboundary Movement deal with environmental disputes. and Management of Hazardous Wastes Part Four: The precautionary Beyond this, however, there is little within Africa do not. principle under NSW case law agreement. Some have argued that it involves a reversal of the onus of Part Three: The precautionary This part of the paper will assesses proof16 while others have suggested principle under NSW legislation whether the Land and Environment that the standard of proof is or should Court has developed a discrete be affected.17 Little attention has been The Honourable Paul Stein has noted jurisprudence, consistent with its devoted to how the principle operates that references to ecologically specialist mandate. under different legal circumstances sustainable development and the (such as merits review, judicial review, precautionary principle are largely to i) A public interest jurisprudence? exercise of the discretion). be found in objectives, provide no real guidance, and are often aspirational, It has been strongly argued that the According to the interpretation ambiguous, inconsistent and Court has had a key role in the favouring a reversal of onus, it will be uncertain.21 development of public interest impermissible to carry out an activity environmental law. By and large, these unless it can be shown that it will not This is certainly the case in NSW. The developments have been traced cause unacceptable harm to the following three examples drawn from environment. Examples include 3NSW legislation briefly highlight how Impact No 76 - December 2004 3 elsewhere25 and this paper will not Pty Ltd v Randwick CC31 exemplify, environmental disputes. These include attempt to reproduce them in any the Court has used its “inquisitorial” different approaches towards the depth. However, the paper will briefly powers to ensure a full consideration ordering of costs, security for costs outline a schematic appraisal of public of the issues.32 and undertakings for damages where interest environmental law in three the litigation is brought in the public areas: formal access to justice, Furthermore, the Court has been interest. For instance, the case of substantive access to justice and vigilant in ensuring that notification Oshlack v Richmond River Council psychological or social barriers to provisions in relation to proposals are went to the High Court on the issue of justice. adequate.33 As Stein J said in costs. In this “key case”,38 the High Canterbury District Residents and Court agreed with Stein J at first The first aspect of public interest Ratepayers Association v Canterbury instance in the Land and Environment environmental law in NSW and MC34 misleading notices defeat the Court (as he then was) and affirmed Australia began with the remodeling purpose of notification and the the width of the discretion of that of NSW planning laws and the purpose of the legislation: Court in awarding costs, including the establishment of a specialist Court. relevance of public interest litigation.39 Since the “trail-blazing”26 section 123 This is because it may prejudice the Likewise, in Carriage v Stockland of the Environmental Planning and proper consideration of the draft LEP (Constructors) Pty Ltd and Ors [No Assessment Act 1979 (NSW) and the by the Council. The Council, even if it 5] [2003] NSWLEC 197 Justice Pain oft-quoted passage of Street CJ in accidentally misleads members of the distinguished the case of Melville v Hannan Pty Ltd v The Electricity public as to the contents of a proposed Craig Nolan & Associates Pty Ltd Commission of NSW (No. 3),27 it has plan, may be deprived of the benefit [2002] NSWCA 32.40 Her Honour become abundantly clear that the of the presentation of the objectors’ held, in upholding an earlier decision public interest embraces the notion of views. Put another way, a defective by herself on the issue, that: public participation. Street CJ said: or misleading notice may take away from the public the right to object to a “I did not consider that I was bound the task of the Court is to administer plan and their opportunity to participate by the majority decision in Melville social justice in the enforcement of the in the process. Furthermore, those as the discretion I exercised under legislative scheme of the Act. It is a who do actually respond to the notice section 69(3) of the Court Act is broad task that travels far beyond may have misconceived their and the only limitation on me is that I administering justice inter partes.28 objections or their submissions may exercise that discretion judicially.”41 be incomplete.35 Of course, public participation can In reaching this conclusion she made take many forms apart from the right The fundamental importance of the following finding: to institute proceedings. The Land and providing proper notice was affirmed Environment Court has also been by the Court of Appeal’s decision in “I consider the majority judgments are active in developing the range of Litevale v Lismore CC where it was wrong on this issue because these participatory rights. For example, held that the requirement was a findings essentially undercut the open objectors have no third party rights of principle of law.36 standing provisions which the New appeal in relation to the bulk of South Wales Parliament has conferred development appeals before the Court. The second aspect of public interest in s 123 of the EP&A Act by Such rights are restricted to environmental law in NSW is effectively imposing a requirement on “designated” developments. The exemplified in a passage from Justice those seeking to use that provision to presumption is that Council will look Toohey: demonstrate, in order to resist a after the interests of objectors. security for costs application, that they However, as judges of the Court have Relaxing the traditional requirements have a special interest which would long recognised, Councils’ refusal of for standing may be of little justify not awarding security for costs a proposal may be motivated less by significance unless other procedural because that may result in the planning considerations than by a reforms are made. Particularly is this litigation being barred. This ultimately political desire not to alienate (part of) so in the area of funding of leads, in my view, to a narrowing of its constituency.29 In short, Councils environmental litigation and the the right under s 123 of the EP&A may pass the ball to the Land and awarding of costs. There is little point Act to take action regardless of the Environment Court and oppose a in opening the doors to the courts if nature of the Applicant’s interest in the development in name only. In such litigants cannot afford to come in.37 subject matter of the proceedings circumstances, the Court has because that right could be effectively recognised that all relevant parties are Consequently, the Court has advanced limited by interlocutory processes not before the Court. As cases such and fine-tuned a number of procedural before a final hearing.”42 as Double Bay Marina Pty Ltd v changes to complement the formal Woollahra MC30 and Geoform Design right to institute proceedings. Many of The new Chief Judge, Justice Peter these changes have been triggered by McClellan also recently announced a 4 Impact No 76 - December 2004 the public interest dimension of many number of changes to achieve the best people”.45 For example, the Court for “The creation of an integrated most of its time has never robed, the specialist jurisdiction has heightened EDO Network Court Rules have been rewritten in government, industry and Conference – plain English and the Court welcomes community perception of solicitors as advocates.46 The Court environmental issues and has Public Interest has also established a Court Users facilitated a better integration of Environmental Group for discussion and consultation environmental considerations in about the way the Court is run.47 decision-making processes [emphasis Law in Australia added].50 ” These three aspects show how the Land and Environment Court has In this passage Justice Stein is On 13-14 May 2004, EDO developed a “public interest” invoking the language of the New South Wales will be jurisprudence or “public interest Brundtland Report,51 which argued hosting a two day conference environmental law”. The question that that a key strategy for the achievement on the topic of Public arises, though, is what is the difference of sustainable development is the Interest Environmental between public interest environmental integration of economic and Law in Australia in Sydney. law and public interest jurisprudence environmental considerations in in, say, administrative law or consumer decision-making processes.52 In this This conference marks the law? It is arguable that there is little to sense, the Court can be seen as twentieth anniversary of the public interest environmental law that facilitating the move towards ESD. Environmental Defender’s sets it apart from these areas. Put Office Network. From modest another way, it could perhaps be said Furthermore, the Court’s role in the beginnings, the that the Court has developed a public emergence of a public interest Environmental Defender’s interest jurisprudence in an jurisprudence also has clear Office Network has expanded environmental setting. The next implications for the development of to include nine independently section will analyse whether the Court environmental law. By dismantling the constituted public interest has developed environmental principles barriers to justice and opening up the environmental law centres as an outgrowth of its specialised Court, the Court allows the public to around Australia. knowledge of the area. demand accountability and acts as a conduit for the development of a This conference provides an ii) an environmental jurisprudence? jurisprudence. As Sax has argued, this opportunity to reflect on is a vital arm in the struggle for developments in public interest environmental law in These public interest developments environmental protection: Australia over the last twenty clearly indicate a rich history on the years, to discuss current part of the Court as a special Court. “Litigation, then, provides an issues of importance and to There is also little doubt that the additional source of leverage in explore future directions in establishment of the Court has helped making environmental decision- environmental law and policy in the development of environmental making operate rationally, in Australia. law. For example, acting in its thoughtfully, and with a sense of supervisory role the Court is ensuring responsiveness to the entire range of To register for the that decisions are properly made. citizen concerns. Courts alone cannot conference, please visit Thus, a consistent body of law in and will not do the job that is needed. www.edo.org.au/edonsw. relation to, say, environmental impact But courts can help to open the doors assessment48 may send a message to to a far more limber governmental decision-makers in the first instance process. The more leverage citizens possible outcome for the community that they must take a “hard look” at have, the more responsive and including case Management in the proposal and take their responsible their officials and fellow complex merit cases, Court-appointed environmental obligations seriously. citizens will be.53 ” experts in appropriate circumstances Importantly also, it may allow the and refinements to the rule regarding public to be involved on an informed Furthermore, as Justice Stein argued cots in merit cases.43 These basis.49 in 1995, public participation can also complement other changes such as a help to spawn the development of an liberal approach to discovery and In addition, the fact of establishment environmental jurisprudence itself: inspection, lack of formal pleadings – that is, the creation of the Land and and case management techniques.44 Environment Court itself - coupled “Citizen participation in with a body of law emanating from a environmental decision-making, the The third aspect relates to the long single source may have an educative ability to restrain breaches of the law tradition of making the Court effect in itself. As Stein has argued: by civil enforcement and to judicially accessible to the public in more intangible ways, to be a “court of the 5 Impact No 76 - December 2004 5 review decisions, have the proven for independent judicial activism. environmental matters in the light of capacity to develop a new body of Judges can play the crucial role of contemporary environmental environmental law.54 ” helping to establish, and not merely act principles. In Greenpeace Australia upon society’s values with regard to Ltd v Redbank Power Company Pty The Court has also taken a more active the environment. They can do this by Ltd and Singleton Council68 and KA stance towards the development of giving legal cladding to environmental Cox Constructions v Concord environmental law. A few examples principles such as sustainability, Council69 the Court has noted the demonstrate this. First, Corkill v intergenerational equity and, regarding relationship between the public interest Forestry Commission of NSW (No 2)55 a higher level of proof necessary to and the principles of sustainable (perhaps more commonly known as allow development, the precautionary development. “the Chaelundi case”) placed the issue principle. Another way is, when faced of wildlife conservation on a firm with unclear law to apply in cases, to Nevertheless, as shall be shown by an ecological footing (whilst apparently apply environmental principles.61 analysis of Planning Workshop v also setting back development in Pittwater Council,70 there seems a NSW). Second, the public trust The Court itself is aware of the need general reticence to engage in debates doctrine (much developed in the US) – in appropriate circumstances – to about sustainable development. In this was the basis of the Court’s decision take issue with sustainable case McClellan and Preston of counsel in Willoughby CC v Minister development. As Stein J and Assessor submitted that: Administering the National Parks and Bull noted in Northcompass Inc v Wildlife Act56 . Third, the Court has Hornsby Council: “This case provides an opportunity for been vocal in its preference for civil the Court to exercise its powers to remedies over criminal prosecutions “The applicability of ESD principles promote the concept of ecologically in pollution matters57 and defining the to designated development under Part sustainable development. This would liability of officers and corporations 4 of the EPA Act and the inter- not only be consistent with adopted under pollution law. Finally, it has also relationship of the principles has never policy of all levels of government in stressed the “right to pollute” also been fully explored in the court.”62 Australia. One important benefit of carries obligations.58 merits review by the Court is that it Likewise, as two judges of the Court can lead to the establishment of These examples show that the Land have noted on separate occasions: sensible principles for the guidance of and Environment Court has actively other decision-makers, such as local sought to use its expertise in such “One of the current challenges for the councils in the administration of the matters to involve itself in the Court is how to apply and interpret Act [the (NSW) Environmental development of environmental law and the principles of ESD in order to Planning and Assessment Act principles. attempt to translate them into practical 1979]”71 reality.63 ” However, it is also arguable that a large The submission went on to set out in jurisprudential gap remains and that the “…It will undoubtedly become considerable detail the manner in which Court has not engaged actively in increasingly imperative to come to the Court could use the language and relation to the notion of ESD. In a 1996 grips with the translation of high principles of sustainable development article considering the Court’s sounding principles into practical to determine an “everyday”, garden- incorporation of the precautionary application.”64 variety, development and subdivision principle, Pearson concluded that “the proposal in respect of land at Bilgola. experience in the New South Wales It is true that the Court’s role is For example, the submission argued Land and Environment Court has so circumscribed by the nature of the that the development infringed far not been encouraging”59 in relation adversary system (as discussed numerous principles of ecologically to the precautionary principle and ESD above). However, in the Land and sustainable development – generally. Environment Court this is true in a conservation of biodiversity (by its limited sense only: that is, the selection clearance of native vegetation and It is arguable that the Court has failed of issues and, in this regard, there associated effects); intergenerational to play the lead role in the interpretation have been a number of cases which equity (by virtue of the likely damage of the idea.60 This is based on the idea have raised issues of sustainability to the natural values of the site); intra- of the Court – as a specialist institution directly (and, no doubt, many more generational equity (as occupants of - being a key element in the indirectly).65 Once before the Court, the subdivision would benefit at the development of environmental law: the Court has wide powers to intervene expense of others); and the and act inquisitorially.66 Such powers precautionary principle (as ameliorative While statutory and constitutional – in conjunction with the duty to measures were uncertain).72 provisions provide the stepping stones consider the public interest67 – have for judges, there is nevertheless a role the potential to markedly shape the In short, the submission tried to nature of a matter and use the Court’s facilitate what Justice Talbot has 6 Impact No 76 - December 2004 expertise and powers to determine referred to as “the translation of high continuity of the administrative Part Four: The Way Forward 74 th process. ” EDO Network 20 The failure of the Court to develop an Anniversary – However,Ilona Millar, Justice Principal Pearlman Solicitor dealt with and Cassandraenvironmental May, jurisprudence Volunteer, isEDO easily NSW the submission in the following terms: explicable. There are obvious Visual History difficulties in coming to terms with the Project “Mr McClellan submitted that in these principle(s) of ecologically sustainable circumstances this Court was bound to development. The idea is clearly an apply that principle by virtue of that The National Environmental emerging principle which is in the Defender’s Office Network principle being contained in the IGAE, process of constant regeneration and celebrates its twentieth to which the Australian Local change. As I have argued elsewhere, anniversary in 2005. Government Association is a party, the dynamic nature of the term has and by virtue of its adoption under made it difficult to disentangle ends We are seeking photographs, the TSC Act as part of that Act’s and means, determine its nature (a posters, stickers, banners, objective in promoting ecologically process or a result) and/or decide videos and other materials sustainable development. There are, what we should do with the idea detailing our work Australia-wide however, countervailing arguments. (promote or seek to achieve it).76 The over the last twenty years for a The IGAE does not bind local Court alluded to some of the difficulties visual history project to be government to observe its terms, and in coming to grips with the idea in launched during 2005. the amendments to the EP&A Act Northcompass Inc v Hornsby SC.77 In made by the TSC Act, whilst they that case, the proposal was for a For more information, or to reflect the thrust of the TSC Act, do bioremediation facility to convert green contribute material to the not expressly incorporate into the waste away from landfill sites. Whilst project, please contact EP&A Act the TSC Act’s objective in agreeing that the proposal was “an Samantha Magick, EDO s 3(a) of the promotion of ecologically excellent example of ecologically Public Affairs Officer at sustainable development (thus sustainable development”,78 the Court [email protected]. incorporating the precautionary also noted the manner in which principle). Moreover, the amendments ecologically sustainable development sounding principles into practical to the EP&A Act do not apply to the principles may conflict. In this case, application.”73 By making a decision development application in this case the uncertain aspects of the in these terms, the submission argued, as a consequence of the savings development from a public health point the Court could assist other decision- provisions in sch 7 of the TSC Act, as of view meant that the precautionary makers. In this respect, the submission I have earlier explained. principle might be in conflict with the was very much based on the reasoning principle of intergenerational equity. of Brennan J in Re Drake v Minister I have put very shortly the respective The application was refused on its for Immigration and Ethnic Affairs arguments on this point. They merit merits. (No 2) (“Drake (No 2)”) full consideration in an appropriate case. This case is not, however, an It is also important to note that “There are powerful considerations in appropriate case because, as I have ecologically sustainable development favour of a Minister adopting a said, consideration under s 90(1)(c2) is a relatively new concept (at least in guiding policy. It can serve to focus has in any event led me to the its current manifestation)79 which, for attention on the purpose which the conclusion that development and example, was not current at the exercise of the discretion is calculated subdivision approval ought to be inception of the Land and Environment to achieve, and thereby to assist the refused as a consequence of the Court in 1979. Moreover, as briefly Minister and others to see more clearly, significant effect of the proposed noted above, its reception into in each case, the desirability of development upon the environment of legislation and policy in NSW has been exercising the power in one way or the the squirrel glider.”75 ad hoc and fragmented.80 other. Decision-making is facilitated by the guidance given by an adopted By declining to base its decisions in The third point to note is that the Court policy, and the integrity of decision- the language and logic of sustainable does not consider itself bound by the making in particular cases is better development, the Court has largely principles of ecologically sustainable assured if decisions can be tested failed to provide such guidance to development in the absence of express against such a policy. By diminishing other decision-makers. It has thus statutory provisions81 and “there does the importance of individual failed to help the development of not seem to be strong support for the predilection, an adopted policy can environmental law and principles to the argument that ESD principles are diminish the inconsistencies which extent envisaged in the Parliamentary relevant considerations, that is, might otherwise appear in a series of debates. considerations which must be taken decisions, and enhance the sense of into account.82 At best, then, the satisfaction with the fairness and This experience is mirrored in relation 7to the precautionary principle. Impact No 76 - December 2004 7 principles may be taken into account Second, there is room for judicial Nagorcka has noted, the usual standard by a decision-maker. interpretation. As Pearson has noted, of balance of probabilities would allow the precautionary principle and for development to proceed where it What then can be done? What lies ecologically sustainable development was more likely than not that a threat ahead? presently occupies a middle ground of serious or irreversible environmental under NSW legislation. It is neither an harm would occur. On the other hand, First, one approach would be for irrelevant nor relevant consideration. a criminal standard would seem too legislation to mandate that the This means that it can be taken into high.86 This area is ripe for judicial precautionary principle be taken into account, but failure to do so will not exploration, with an obvious mandate account. Section 391 of the vitiate the decision. To some, this to do so. Environment Protection and offers an opportunity - as Justice Stein Biodiversity Conservation Act 1997 argued whilst at the Court of Appeal: Fourth, if the Government provides a model: commitment to evidence-based “there is the opportunity, if not the programs is to be taken seriously, then “Minister must consider obligation, in the absence of clear the application of the precautionary precautionary principle in making legislative guidance, to apply the principle is likely to become more of decisions common law and assist in the an issue as decision-makers become development and fleshing out of the more conscious of their responsibilities Taking account of precautionary principles. Our task is to turn soft law within this environment. principle into hard law. This is an opportunity to be bold spirits rather than timorous Fifth, the mainstreaming of sustainable (1) The Minister must take account of souls and provide a lead for the development needs to continue. the precautionary principle in making common law world. It will make a Sustainable development is certainly in a decision listed in the table in contribution to the ongoing most environmental and related subsection (3), to the extent he or she development of environmental law”.83 legislation.87 However, it is not built can do so consistently with the other into non-environmental laws, such as provisions of this Act. Third, an independent role for the tax law, corporations law and trade precautionary principle would see it as practices legislation. Provisions such Precautionary principle having implications for the burden of as section 516A of the Environment proof. What has never been clarified Protection and Biodiversity (2) The precautionary principle is that is what these implications might be. Conservation Act 1997, which places lack of full scientific certainty should As Farrier has observed, the obligations on all Commonwealth not be used as a reason for postponing precautionary principle is triggered by agencies and authorities to report, a measure to prevent degradation of proof of threats falling short of the monitor and look forward vis-a-vis the environment where there are threats degree of probability recognized by sustainable development provide of serious or irreversible science as constituting proof. promise in this respect. environmental damage. However, current laws fail to offer clear guidance regarding what degree Conclusion Similarly, section 39Z of the of proof is required before the Commonwealth Great Barrier Reef principle is operational. Nor do they To move the precautionary principle Marine Park Act 1975 provides that address the equity issue of placing this forward in NSW – as has happened in in preparing management plans the burden on those opposing an activity other jurisdictions – legislation in NSW Great Barrier Reef Marine Park or development. As Weeramanty J needs to provide more (and consistent) Authority is to have regard to both the argued in his dissenting opinion in the guidance to decision-makers. At the protection of world heritage values and Nuclear Tests Case (New Zealand v same time, the Court needs to engage the precautionary principle. France),84 France was in the best actively with the idea of sustainable position to provide information about development and the application of the The Queensland Integrated Planning the activity of nuclear testing, being precautionary principle to resolve some Act 1997 seems to go further in the proponent. of the operational issues. The resolve fettering the discretion of decision- of the new Chief Judge to develop makers in order to achieve In fact, it has been argued that the Planning Principles for merit appeals environmental outcomes. It places an precautionary principle reverses the together with other changes to expert obligation on certain decision-makers onus of proof. Indian law reflects this evidence, case management and costs to advance the purpose of the Act approach with the onus being on the arguably signals that the Land and (which is to seek to achieve ecological proponent to demonstrate that the Environment Court is keen to move sustainability). The Act also sets out activity is environmentally benign.85 beyond its admirable history in acts which amount to advancing the However, two issues remain unclear. developing a public interest purpose, one of which is applying the First, it is still unclear what triggers jurisprudence to develop a specialist precautionary principle the reversal (for example, a prima facie jurisprudence befitting a specialist threat). Second, it is unclear to what Court. standard the proponent must 8 Impact No 76 - December 2004 demonstrate an activity is benign. As Continued on page 13 Case Update: Protecting Whales in the Australian Whale Sanctuary

Jessica Simpson, Solicitor and Samantha Magick, Public Affairs Officer, EDO New South Wales

EDO New South Wales will continue to diplomatic channels, rather than legal push for Australian law to be upheld in ones. its case against a Japanese whaling company operating in the Australian The EDO is of a different view. “It is Whale Sanctuary adjacent to Australia’s entirely appropriate to challenge whaling Antarctic Territory. in our courts” says EDO Solicitor, Jessica Simpson. Japanese whalers are expected to resume operations in Australian waters from the “There are laws in place which recognise middle of next month, despite the Australia’s sovereignty over Australia’s creation of an Australian whale Antarctic Territory and which protect sanctuary by the Australian Government whales in Australian waters. Those laws in 2000. should be upheld,” Simpson says.

The Federal Court is yet to rule on If successful in getting approval from the whether EDO New South Wales, Federal Court to proceed, the EDO will representing the Humane Society seek an injunction against the whale International, has the leave to bring a hunt, and a declaration that Kyodo case against Kyodo Senpaku Kaisha Ltd. Senpaku Kaisha’s activities are illegal under the EPBC Act. In a submission recently presented to the court, the Australian government has For more information contact Jessica expressed its preference for pursuing Simpson, Solicitor, EDO New South Photo: Neil Stone Wales on 02 9262 6989. Court Rejects Appeal for Environmental Flows in NSW

Ilona Millar, Principal Solicitor and Samantha Magick, Public Affairs Officer, EDO New South Wales

EDO New South Wales is disappointed water for environmental health prior that the basis for determining by the decision in the New South to allocating water for irrigation and environmental flows is scientifically Wales Court of Appeal on 9 February other consumptive purposes. sound or ecologically sustainable, the 2005 to dismiss an appeal by the NSW general rules provided in the Gwydir Nature Conservation Council The Gwydir River is located in the WSP are considered legally sufficient. challenging the validity of the Water environmentally stressed Murray- Sharing Plan for the Gwydir Darling Basin and comprises the In December 2004, the National Regulated River Water Source 2003. internationally significant Gwydir Competition Council recommended wetlands. In NSW, water sharing that $26 million of NSW competition The Environmental Defender’s Office plans are to set the basis for allocating payments be withheld on the basis that (NSW) and barristers Tim Robertson water for environmental and NSW had failed in its obligation under SC and Jayne Jagot, acting on behalf consumptive uses. The Court of the water reform agreement signed by of the NCC, argued that the plan Appeal’s judgment clearly found that federal, state and territory governments should be declared invalid because it the statutory framework in the Act is in 1994 and the 2004 National Water failed to adequately address intended to prioritise environmental Initiative to demonstrate that it had set environmental necessities, such as flows and maintain the health of the environmental allocations and performance indicators and Gwydir river system and its wetlands. extraction limits using best available environmental flows. science. While the Court of Appeal’s decision The Court’s decision not to invalidate upholds the legal validity of the Gwydir The Environmental Defender’s Office the plan was made notwithstanding the water sharing plan, the fact remains and Nature Conservation Council are Court’s finding that the Minister for that the Minister failed to give effect reviewing their options in light of the Natural Resources had failed to satisfy to the statutory priorities in the Act. It court’s decision. the statutory requirement to set aside is extremely disappointing that, 9although NSW has not demonstrated Impact No 76 - December 2004 9 Gunns Sues Environmentalists

Gunns Limited, Tasmania’s largest The writ includes allegations of Senator Brown said he would fight the logging company, has served writs on machinery sabotage, destruction of writ and it would not stop him from twenty defendants - ‘the Gunns 20’ - property, trespassing, blocking access campaigning for Australian forests. claiming $6.4 million dollars in to land and obstructing police officers damages associated with claims arising at Lucaston, Hampshire, Triabunna “We are elected to speak up for our from the campaign to protect and Styx logging sites. constituency,” said Senator Brown, Tasmania’s old-growth forests. who faces a $305,000 compensation The Wilderness Society faces a total claim. The company is claiming damages for compensation claim of $3.5 million financial loss allegedly suffered as a after being accused of organising a “Neither Gunns nor anybody else will result of protest actions by the campaign against Gunns. silence me for one, nor I am sure any environmental groups and individuals, of the other defendants here when it including the Wilderness Society and The defendents have filed papers comes to defending and campaigning Greens Senator Bob Brown. outlining their intent to contest the for our forests.” company’s claim against them at the Supreme Court.

Coogee Coastal Action Coalition in WA Court of Appeal

The long-running campaign by the The Government is preparing to transfer The Coalition has spent three years Coogee Coastal Action Coalition Inc the seabed at Coogee to the proponent, campaigning for the Port Coogee against the proposed Port Coogee marina as well as large areas of the coastal strip, development to be modified so that the in Cockburn will go to the Court of including old sand dunes and natural beaches are retained and redeveloped Appeal for a hearing on 3 March 2005. limestone headlands. These are to be as the area’s first genuine regional beach sold to the developer for about $50 per node available to the public, but still The proposed Port Coogee marina square metre - far less that market value incorporating appropriate urban involves developing a 1.5 kilometre strip according to a review carried out by the development. of the coast and 37 hectares of foreshore Parliament’s Public Accounts Committee. and seabed which had been rezoned The proponent intends to subdivide Part of the Coalition’s legal challenge ‘urban’ in the Metropolitan Region most of this land and seabed into small claims the development will take away Scheme in June 2004. residential lots, including canal-style lots. the common law rights of the public to access and use the beach and sea area Due to a prior agreement between the Whilst the proposal includes a boutique for activities such as swimming, fishing, developers and the Western Australian marina, the majority of the ocean and diving and navigating. Planning Commission, the rezoned land seabed are to be used solely for private is to be transferred to the developers in houses. Nearly two thirds of the ocean EDO Western Australia and Dr Hannes freehold. In effect the Minister has is to be filled in and there will be no boat Schoombee will present the Coalition’s authorised parts of the foreshore and ramps, boating clubs or boat lifting and argument that the Minister and the ocean to be privatised, in perpetuity. maintenance facilities in this marina. Planning Commission did not properly Indeed, the actual marina component is consider the planning matter but acted Marina and boat harbours have quite small. to carry out the project agreement that traditionally been earmarked as ‘parks was entered into between the Planning and recreation’ or ‘public purpose’ The Coogee Coastal Action Coalition’s Commission and the proponent. reservations in the Metropolitan Region campaign recognises the need for a new Scheme. Under such public reservations boat harbour, but also argues that there For more information, please contact the use of traditional boat harbours has are several alternative sites where a Leigh Simpkin, Principal Solicitor, EDO been regulated successfully for the marina can be built without destroying Western Australia on 08 9221 3030. benefit of the broader community, but the natural beach. has not been alienated.

10 Impact No 76 - December 2004 Community Group Denied Standing in Airport Land Clearing Appeal

Leigh Simpkin, Principal Solicitor, EDO Western Australia

On 19 August 2004, the Administrative with standing to seek review of a purposes of standing to seek review of Appeals Tribunal (AAT) refused an decision under the Airports Act, that of a decision, occurred in the context of an appeal by the Urban Bushland Council course being the Act which confers the attempt to review a ‘master plan’ rather (UBC) against the Federal Minister for jurisdiction on the Tribunal in relation than a ‘major development plan’, was Transport and Regional Service’s to certain decisions under that Act, and rejected. decision to allow clearing of 40 that is in section 242 [of the Airports hectares of bushland at Perth Airport, Act].” In response to the evidence before the to build a Woolworths distribution store. AAT of the UBC’s objects being: “I accept … the intention of Parliament In summary, the basis of the decision was to promote the recognition and regarding the person or persons who • that UBC did not have ‘standing’ under conservation of urban bushland; would have standing to seek review by section 27 of the Commonwealth to promote policy development for the Tribunal of a decision of the Minister • Administrative Appeals Tribunal Act the protection and management of to approve a major development plan 1989, which confers jurisdiction on the urban bushland; or, indeed, to reject a plan or, as in this tribunal to review various administrative to provide an avenue for lobbying case, to approve a plan subject to • decisions, including (in this case) and seek legislative changes for conditions. I accept… that the intention decisions made pursuant to the bushland protection; and of Parliament, having regard to the Commonwealth Airports Act 1996. to raise awareness of the values and subject matter, scope and purpose of that • problems facing urban bushland, Act, is that standing is to be confined Section 27(2) of the AAT Act states that: generally to the relevant airport lessee the Deputy President of the AAT “an organisation or association of body in question and not to be granted concluded that: persons, whether incorporated or not, to third parties – even to bodies such as shall be taken to have interests that are the UBC.” “I’m not prepared to go so far as to say affected by a decision if the decision that there is absolutely no relationship relates to a matter included in the Reference was made to the submissions between the Minister’s decision and objects or purposes of the organisation on behalf of the Minister regarding the those objects but what I do say is that or association.” analysis of Dowsett J in the Federal Court any such relationship is of far too in Brisbane Airport Corporation Ltd v general, insubstantial and tenuous a Although the UBC was recognised as a Wright [2002] FCA 359. The contention nature to give standing …”. peak environmental and conservation by counsel for UBC that the Brisbane body, the Deputy President of the Airport Corporation Ltd’s analysis of And so the bush was, and will remain, Tribunal distinguished this situation the subject, scope and purpose of the cleared. from the general law: Airports Act, which led to its conclusion For more information, please contact that Parliament must be taken to have “We’re dealing here with the question Leigh Simpkin, Principal Solicitor, EDO intended that the Airport-lessee company of standing under the AAT Act but, Western Australia on 08 9221 3030. alone is an ‘interested party’, for the perhaps more to the point, we’re dealing

Queensland Biodiscovery Legislation Commences Operation

Jo Cull, Solicitor, EDO North Queensland

Following the Queensland Biodiscovery submissions on the Draft Bill were not of benefits with owners of traditional Discussion Paper, released in May 2002, addressed prior to its enactment. knowledge are particularly Queensland’s Draft Biodiscovery Bill disappointing aspects of the new was released in June 2003, with the final legislation. Failure to include the precautionary Bill introduced to Parliament in May principle; failure to provide for public 2004. The Bill was passed in August 2004 notification and appeals in relation to For further information contact Joanna and commenced in November, making it collection authorities; exclusion of the Cull, Principal Solicitor, EDO North the first biodiscovery specific legislation application of the Freedom of Queensland on 07 4031 4766. in Australia. Information Act 1992 in a range of circumstances and failure to recognize Unfortunately, a number of the issues and protect Indigenous traditional raised by various interest groups in knowledge and ensure equitable sharing 11 Impact No 76 - December 2004 11 New Marine Parks Legislation for Queensland

Jo Cull, Solicitor, EDO North Queensland

On 7 October 2004, the Queensland Parks Bill originally had detailed objects Conservation Act, to seek judicial review Parliament passed the Marine Parks Bill including ecologically sustainable of decisions made under the Act. 2004. The new legislation is the result development, which suggested that of a review of the Marine Parks Act 1982 development was likely to occur in these The submission also recommended to strengthen the marine parks and areas. These provisions have been allowing third parties to take enforcement achieve modern standards for removed. Further, the revocation action in relation to all of the offences conservation, management and procedures have also been amended to created under this Act. However, the ecologically sustainable use of marine ensure that certain procedures have to third party rights have been limited to parks. The Marine Parks Act 2004 be followed to revoke a marine park, and only two of the nine offences in the Act brings in new provisions to deal with that revocation cannot occur by way of - the power to bring enforcement orders establishment and revocation of marine Regulation, unless there is a to remedy or restrain entry or use of the parks, reclamation of tidal land, zoning parliamentary motion supporting such Park for a prohibited purposes, and and management plans, general revocation and notice given of the unlawful serious environmental harm. enforcement provisions and review debate. procedures. The amended Marine Parks Act 1982 is The new Act also adopts the available online at The EDO Queensland and EDO North recommendations in the submission in www.legislation.qld.gov.au. Queensland made a joint submission on relation to standing, granting the review. Some of the comments environmentalists and groups the same For more information, please contact Jo contained in the submission have been standing rights as under other Acts such Cull, Principal Solicitor, EDO North reflected in the legislation. The Marine as the EPBC Act and Nature Queensland.

New Commonwealth Zoning Plan for the Case Update: Great Barrier Reef Mackay Conservation Group Inc v East Point Pty Ltd and On 1 July 2004, the new Commonwealth activities permitted within a zone Great Barrier Reef Marine Park Zoning adjacent to the GBRMP. The proposed Mackay City Plan 2003 commenced. zoning will have the same use and entry Council provisions as the new Commonwealth The new zoning plan is designed to zoning for GBRMP, and will extend to amalgamate the park into one zoning plan. the high water mark. The EDO-NQ is representing Mackay It also increases the number of marine Conservation Group in a Planning national park zones or green zones (no It will not however include estuaries, and Environment Court appeal that take zones) from 4.5% to 33.1% and rivers, creeks, channels, and mangrove has been set down in the Planning decreases the amount of general use forests that are not already in State and Environment Court in Brisbane zones from 78% to 33.8%. marine parks. Beach fishing will still be for an eight day hearing in March this permitted along 85% of the Great Barrier year. The Commonwealth’s zoning of the Great Reef coastline, while most of the beaches Barrier Reef Marine Park (GBRMP) where fishing will be banned are remote The appeal is against the approval extends from the low water to beyond and barely accessible. Following the of a large coastal development at East the continental shelf. It excludes waters public consultation process, recreational Point in Mackay. The appeal will internal to Queensland which commence fishing will also be permitted in four involve a range of expert witnesses at the low water mark and include internal designated areas-Sabina Point and including a geomorphologist, waters such as estuaries, rivers, creeks, McDonald Point in Shoalwater Bay, an oceanographer, zoologist, ecologist, channels and significant mangrove area next to Charon Point Conservation civil engineer and planner. forests. Park and selected beaches on Bamborough Island. On 20 October 2004, the Queensland Please contact Kirsty Ruddock on Government in response unveiled the More information about the new Great [email protected] for further new Great Barrier Reef Coast Marine Barrier Reef Coast Marine Park can be details. Park. The new marine park took effect on found on the Queensland EPA website 5 November 2004. The park ensures at www.epa.qld.gov.au or by phoning 12 Impact No 76 - December 2004 consistency in application of zoning and 1800 177 291. the environment. If the principle itself involves a cost/ appropriate and as the proper consideration of the Continued from page 8 benefit analysis it loses this ability and we arrive matters before the Court permits” ((NSW) Land and again at the beginning of the problem”: Nagorcka F Environment Court Act 1979 s 38(2)) and the Court (2003) “Saying what you mean and meaning what “obtain the assistance of any person having Footnotes you say: precaution, science and the importance of professional or other qualifications relevant to any 1 Leatch v National Parks and Wildlife Service and language” 20 Environmental Planning and Law issue arising for determination in the proceedings and Shoalhaven City Council (1993) 81 LGERA 270. In Journal 211 at 217. may receive in evidence the certificate of any such this case, the EDO acted for May Leatch in challeng- person” ((NSW) Land and Environment Court Act ing the issue of a licence to kill endangered fauna 15 (1995) 86 LGERA 143. 1979 s 38(3)). Based on the approach taken in these granted to Shoalhaven City Council to construct a cases and the issues arising from resident groups not road through bushland in North Nowra, the land be- being parties, the EDO recently proposed, and the 16 ing habitat for a number of endangered species includ- See Cameron J and Abouchar J (1991) “The government accepted, an amendment to the Land and ing the giant burrowing frog. The case was the first Precautionary Principle: A Fundamental Principle of Environment Court Act to allow for joinder of parties time the Court had applied the precautionary princi- law and Policy for the Protection of the Global where, amongst other things, it is in the public interest: ple – it refused to grant a licence because it had insuf- Environment” 14 Boston College International and see s 39A. ficient information to make a decision. Comparative Law Review 1 at p 22 33 See CSR v Yarrowlumla SC (Unreported, Land and 2 17 The Honourable Justice Paul Stein AM (2000) “Are See Birne and Boyle at pp 117 and 119 and Nagorcka Environment Court, Cripps J, 2 August 1985); Monaro Decision-makers too Cautious with the Precautionary F (2003) “Saying what you mean and meaning what Acclimatisation Society v The Minister (Unreported, Principle 17 Environmental Planning and Law Jour- you say: precaution, science and the importance of Land and Environment Court, Stein J, 2 March 1989); nal 1 at p 3. language” 20 Environmental Planning and Law Porter v Hornsby SC (1989) 69 LGRA 101; Journal 211 at 221. Canterbury District Residents and Ratepayers 3 See, for example, Cameron J and Tim O’Riordan T Association v Canterbury MC (1991) 73 LGRA 317; (1994) Interpreting the Precautionary Principle, 18 Birne and Boyle at p 118. Curac v Shoalhaven CC (1993) 81 LGERA 124; Earthscan and Birnie and Boyle (2002) International Friends of Katoomba Falls Creek Valley Inc. v Law and The Environment, Oxford University Press. 19 Birne and Boyle at p 116. Minister for Planning (Unreported, Land and Environment Court, Pearlman J, 31 January 1996). 4 The Ministerial Declaration of the Second Interna- 20 Birne and Boyle at p 116. tional Conference on the Protection of the North Sea 34 (1991) 73 LGRA 317. 1987 and Principle 15 of the Rio Declaration. 21 The Honourable Justice Paul Stein AM (2000) “Are Decision-makers too Cautious with the 35 Canterbury District Residents and Ratepayers 5 The Honourable Justice Paul Stein AM (2000) “Are Precautionary Principle 17 Environmental Planning Association v Canterbury MC (1991) 73 LGRA 317 Decision-makers too Cautious with the Precautionary and Law Journal 1 at p 3. at p 320. Principle 17 Environmental Planning and Law Jour- nal 1. 36 22 In cases such as Greenpeace Australia Ltd v Redbank (Unreported, Court of Appeal, Cole, Sheppard and Power Company Pty Ltd and Singleton Council (1995) Rolfe JJ, 29 September 1997). 6 See Wyman L (2001) “Acceptance of the Precau- 86 LGERA 143 and Cox Constructions Pty Ltd v tionary Principle – Australian v International Deci- Concord Council (Unreported, LEC, Bignold J, 27 37 Toohey (1989) “Environmental Law – Its Place in sion-Makers” 18 Environmental Planning and Law February 1995 the concept of ESD was considered as the System” in Proceedings of the First NELA/ Journal 395 at 396 who identifies at least three differ- part of the public interest LAWASIA International Conference on Environmental ent formulations from weak to strong. Law June 1989 at p 79. The passage is also contained 23 3b) is “to encourage, promote and secure the orderly in the judgments of Justice Stein in Oshlack v 7 Section 3 of the IGAE sets out a number of principles and balanced utilisation and conservation of the coastal Richmond River Council and Iron Gates Development which the parties agree will inform their decision- region and its natural and man-made resources, having Pty Ltd (Unreported, Land and Environment Court, making in the environmental context, including regard to the principles of ecologically sustainable Stein J, 18 February 1994) at pp 3-4 and Seaton v polluter pays, intergenerational equity and the development”. Mosman Council and The Bathers Pavilion Pty Ltd precautionary principle. (Unreported, Land and Environment Court, Stein J, 25 June 1996) at pp 4-5. 24 See ss 37A and 54A. 8 (1994) 84 LGERA 397. 38 As defined by the former Chief Judge in her Keynote 25 See Stein P (1996) “The Role of the Land and 9 Address to the New Zealand Planning Congress. The (Unreported, Land and Environment Court, Talbot Environment Court in the Emergence of Public Interest Honourable Justice Pearlman AM, Chief Judge of the J, 29 March 1996). Environmental Law” 13 Environmental and Planning Land and Environment Court of New South Wales Law Journal 179. 10 Managing Environmental Impacts - The Role of the See Nicholls v Director-General of National Parks Land and Environment Court of New South Wales and Wildlife Service (1994) 84 LGERA 397 at p 419. 26 An expression used by McClelland J (1983) Paper delivered as a Keynote Address at the Australia - New See also more generally the comments of Justice Presented to the All Nations Club, 4 May 1983 at p 8 Zealand Planning Congress Wellington, New Zealand Talbot in Talbot RN (1995) “Important Decisions of and more recently by Talbot RN (1996) “Approaches 9 April 2002. the Court” Paper Presented to University of NSW to Environment Protection: The Land and Environment School of Town Planning, Planning Law and Practice Court of NSW” Paper Presented to the Australasian 39 See Oshlack v Richmond River Shire Council & Short Course, Wednesday 29 November 1995 at pp Conference of Planning and Environment Courts and Anor (1994) 82 LGERA 236; (1996) 91 LGERA 99; 16-18. Tribunals Shared Goals, Different Approaches held and (1997) 96 LGERA 173]. on 7-8 October 1996, Melbourne at p 6. 11 Nicholls v Director-General of National Parks 40 In Melville v Craig Nolan & Associates Pty Ltd and Wildlife Service (1994) 84 LGERA 397 at p 419. 27 (1985) 66 LGRA 306. [2002] NSWCA 32, the Court of Appeal considered

12 the question of security for costs where a litigant was Alumino (Aust) Pty Ltd v Minister Administering 28 Hannan Pty Ltd v The Electricity Commission of impecunious. At first instance, the impecunious the Environmental Planning and Assessment Act 1979 NSW (No. 3) (1985) 66 LGRA 306 at p 313. claimant had brought proceedings under section 123 (Unreported, Land and Environment Court, Talbot J, of the Environmental Planning and Assessment Act 29 March 1996) at p 14. 29 See McClelland J (1981) Paper Presented to 1979 for injunctive and declaratory relief regarding the Australian Institute of Urban Studies Conference, Sebel invalidity of a development consent. Security for costs 13 Nagorcka F (2003) “Saying what you mean and Town House, Sydney, 22 October 1981 at pp 6-7. were sought and granted in the Land and Environment meaning what you say: precaution, science and the Court under s 69 of the Land and Environment Court importance of language” 20 Environmental Planning Act 1979, which dealt with the power of the Court to 30 (1985) 54 LGRA 313 per Cripps J. and Law Journal 211 at p 216 make orders regarding security for costs. The Court of Appeal held that whilst section 69 did confer a 31 (1995) 87 LGERA 140 per Pearlman J. 14 As Nagorcka has argued: “The precautionary discretionary power, it should not be read to maintain principle exists to overcome the “decision-making the “basic” or general” rule that an order for security paralysis” that results from scientific uncertainty by 32 See, in particular, where the Court may “inform building into these processes a bias towards protecting 13 itself on any matter in such manner as it thinks Impact No 76 - December 2004 13 for costs would not be made against an impecunious Mahony S (1997) Sustainable Development: From sustainable development: see, for example, Simpson v person. Accordingly, the majority of the Court re- Theory to Practice: Incorporating Sustainability Ballina Council (Unreported, Land and Environment exercised the discretion in favour of an order for security Principles in Legislation” Paper Presented to the Court, Stewart A, 27 July 1993); Brecknock v Sydney for costs. Third Environmental Outlook Conference, Australian CC (Unreported, Land and Environment Court, Talbot 41 See Carriage v Stockland (Constructors) Pty Ltd Centre for Environmental Law, 9-10 October 1997 at J, 9 February 1996); Sydney Water Corp Ltd v South and Ors [No 5][2003] NSWLEC 197 at para 36. p 6. Sydney CC (Unreported, Land and Environment Court, Stein J, 21 March 1996); Bottrill v Snowy River Council 53 (Unreported, Land and Environment Court, Watts A, 42 See Carriage v Stockland (Constructors) Pty Ltd Sax JL (1971) Defending the Environment Vintage 30 August 1996); Tymbrand Pty Ltd v Sydney CC, and Ors [No 5][2003] NSWLEC 197 at para 35. Books at p 115. Jensen A, 3 September 1996); and In Adam Pty Ltd v South Sydney CC (Unreported, Land and Environment 54 43 The Honourable Justice Peter McClellan (2003) Stein P (1995) “An Antipodean Perspective on Court, Andrews A, 6 September 1996). “Land & Environment Court – Achieving The Best Environmental Rights” 12 Environmental and Outcome For The Community” Speech Delivered at Planning Law Journal 50 at p 53. 66 See, in particular, (NSW) Land and Environment The EPLA Conference 28-29 November 2003, Court Act 1979 s 38(2). Newcastle 55 (1991) 73 LGRA 126.

67 (NSW) Land and Environment Court Act 1979 s 44 The most recent example is in relation to a new 56 (1992) 78 LGERA 19. For discussion of this case 39(4). Practice Direction for expert witnesses. For a full see Bonyhady T (1995) “A Usable past: The Public discussion of all these issues see generally Stein P Trust in Australia” 12 Environmental Planning and 68 (1996) “The Role of the Land and Environment Court Law Journal 329 at pp 330-331. (1995) 86 LGERA 143. in the Emergence of Public Interest Environmental Law” 13 Environmental and Planning Law Journal 69 57 See Farrell v Dayban Pty Ltd (Unreported, Land (Unreported, Land and Environment Court, Bignold 179. and Environment Court, Cripps J, 7 June 1989) and J, 27 February 1995) at pp 4-6. Hemmings J (1990) “The Role of the Land and 45 As was claimed in the publicity surrounding the Environment Court in Pollution Control” Paper 70 Written submissions by McClellan PD and Preston advent of the Court: see Anon (1991) Land and Presented to National Environmental Law Conference, B in Planning Workshop Ltd v Pittwater Council. Environment Court, 1980-1991: Navel-Gazing Time? 15 June 1990. at p 17. 71 Written submissions by McClellan PD and Preston 58 As Justice Cripps said in SPCC v CSR Ltd: CSR B in Planning Workshop Ltd v Pittwater Council at 46 See (NSW) Land and Environment Court Rules Limited was given a licence to pollute. Its licence pp 1-2 . 1996 generally and on the subject of robing see Part 2 was conditional upon it not polluting any more than r 8. See also (NSW) Land and Environment Court permitted and maintaining certain standards to ensure 72 Written submissions by McClellan PD and Preston Act 1979 s 38(1) in relation to classes 1, 2 and 3 and that its limit was not exceeded. Its licence placed it B in Planning Workshop Ltd v Pittwater Council at p an anonymous paper entitled Land and Environment in a special category over and above other persons 43. Court, 1980-1991: Navel-Gazing Time? in relation and corporations and consequently imposed on it to the success of the Court in meeting its mandate of certain obligations. In effect, CSR was trusted so to 73 informality (at p 17). conduct its operations that it would not pollute the Talbot RN (1996) “Approaches to Environment water more than that for which permission was given. Protection: The Land and Environment Court of NSW” Paper Presented to the Australasian Conference of 47 See Pearlman ML (1996) “Introduction” in Land (Unreported, Land and Environment Court, Cripps Planning and Environment Courts and Tribunals and Environment Court of NSW: Annual Review 1996 J, July 1989). See also the Court’s dismissal of a Shared Goals, Different Approaches held on 7-8 at p 1. submission that licences imposed targets not limits in SPCC v BHP Pty Co Ltd (No 1) (1991) 74 LGRA October 1996, Melbourne at p 17. 351. 48 Ramsay and Rowe, amongst others, have questioned 74 (1979) 2 ALD 634 at p 640. whether there is a link between judicial review in relation to environmental impact assessment and 59 Pearson L (1996) “Incorporating ESD Principles substantive outcomes: see Ramsay R and Rowe G in Land-Use Decision-Making: Some Issues after 75 Planning Workshop Ltd v Pittwater Council (1995) Environmental Law and Policy in Australia Teoh” 13 Environmental and Planning Law Journal (Unreported, Land and Environment Court, Pearlman Butterworths, Sydney at p 512. On the other hand, 47 at p 53. J, 22 August 1996) at pp 30-31. the Forestry Commission (now State Forests) could arguably be seen to have undergone a transformation 60 B Preston SC, and J Smith, Legislation Needed 76 Smith J (1997) “Skinning Cats, Putting Tigers in as a result of the scrutiny of judicial review: see for an Effective Court published in the proceedings Tanks and Bringing Up Baby: A Critique of the Bonyhady T (1993) Places Worth Keeping: of the Nature Conservation Council Conference, 27 - Threatened Species Conservation Act (NSW) 14 Conservationists, Politics and Law Allen and Unwin, 28 August 1999. Environmental Planning and Law Journal 17 at pp Sydney at pp 83-103. 23-24. 61 Robinson D (1995) “Public Interest 49 See, for example, Prineas v Forestry Commission Environmental Law – Commentary and Analysis” in 77 (Unreported, Land and Environment Court, Stein J of NSW (1983) 49 LGRA 402 at 417; Liverpool CC Robinson D and Dunkley J (eds) Public Interest with Assessor Dr C Bull, 26 August 1996). v RTA (NSW) (1991) 744 LGRA 265 at 278 and Perspectives in Environmental Law Wiley Chancery Schaffer Corporation Ltd v Hawksbury CC (1992) 77 pp 294-326 at pp 314-315. 78 (Unreported, Land and Environment Court, Stein J LGRA 21 at p 30. with Assessor Dr C Bull, 26 August 1996) at p 24. 62 Northcompass Inc v Hornsby Council (Unreported, 50 See Stein P (1995) “A Specialist Environmental LEC; Stein J and Assessor Bull 26 August 1996). 79 Justice Stein and Sue Mahony refer to the Court: An Australian Experience” in Robinson D and timelessness of the principle and prefer to see it as Dunkley J (eds) Public Interest Perspectives in 63 Stein P (1995) “An Antipodean Perspective on undergoing a “revival”: see Stein P and Mahony S Environmental Law Wiley Chancery at pp 256-273 Environmental Rights” 12 Environmental and (1997) Sustainable Development: From Theory to at p 264. Planning Law Journal 50 at p 53. Practice: Incorporating Sustainability Principles in Legislation” Paper Presented to the Third 51 The full title is WCED (World Commission on 64 Talbot RN (1996) “Approaches to Environment Environmental Outlook Conference, Australian Centre Environment and Development) (1987) Our Common Protection: The Land and Environment Court of for Environmental Law, 9-10 October 1997 at p 7. Future Oxford University Press, Oxford. NSW” Paper Presented to the Australasian Conference of Planning and Environment Courts and Tribunals 80 For a review of the legislative position in NSW and 52 See, in particular, WCED (World Commission on Shared Goals, Different Approaches held on 7-8 Australia see Stein P and Mahony S (1997) Sustainable Environment and Development) (1987) Our Common October 1996, Melbourne at p 17. Development: From Theory to Practice: Incorporating Future Oxford University Press, Oxford at pp 62-65. Sustainability Principles in Legislation” Paper However, in a recent paper, Justice Stein and Sue 65 Apart from those cases stated throughout the paper, Presented to the Third Environmental Outlook Mahony have argued against the inclusion of economic a number of other cases have also raised issues or Conference, Australian Centre for Environmental Law, factors in the weighing up process: see Stein P and revealed plans related to principles of ecologically 9-10 October 1997 at pp 5-12. The principle of 14 ecologically sustainable development has also been 14 Impact No 76 - December 2004 incorporated in numerous international instruments EDO Network News

Australian Capital PART-TIME SOLICITOR Also, special thanks to Territory Barnaby Ilrath for all his work EDO-NQ is seeking a part time as Solicitor with EDO Vic. EDO Australian Capital solicitor to join our Cairns office. Territory welcomes June Weise Experience in the field of as Administrator. environmental law preferable but Western Australia not essential. The position is 3 days per week at SACS award The EDO WA 2005 ‘Water New South Wales level 5.1 ($41,039) pro rata. Law’ Conference will be held on 8 July 2005. This For a position description and conference will interest EDO New South Wales would selection criteria phone Kirsty anyone who uses water in like to thank Scott King for his Ruddock on 07 4031 4766 or Western Australia. hard work as Scientific Advisor. email [email protected] A range of speakers will look Tom Holden will begin as the Applications close 5pm Monday at how current laws affect the new Scientific Advisor in March 7 March 2005. quality and quantity of our 2005. water resource and how those laws can be improved. Special Queensland attention will be paid to water North Queensland management plans water EDO Queensland has moved pricing and water trading. Two positions are currently offices to Level 9, 193 North Quay Whether or not we have a available at EDO North (Corner Herschel St) Brisbane State Government which plans Queensland. QLD 4000. The new telephone to pump water from the number is 07 3211 4466 and new Kimberley, or desalinate at PART-TIME ADMINISTRATOR fax number is 07 3211 4655. Cockburn Sound, this conference aims to cut EDO-NQ is seeking an through muddy waters and experienced part time office Victoria bring clarity into the decision- administrator with strong office making process. administration and financial EDO Victoria welcomes Thierry management skills (including For further information, contact familiarity with MYOB) to join Basset into the position of Projects and Administration Leigh Simpkin at the EDO WA our Cairns office. The position on 08 9221 3030. is 20 hours per week at SACS Coordinator. award level 4.1 ($36, 7890) pro rata.

and has been the subject of countless articles and also Pearson L (1996) “Incorporating ESD Principles 84 [1995] ICJ Rep 288. discussions. As to the present status of international in Land-Use Decision-Making: Some Issues after Teoh” instruments in domestic law post-Teoh see Pearson L 13 Environmental and Planning Law Journal 47 at p 85 A.P. Pollution Control Board v. Nayudu, Civil (1996) “Incorporating ESD Principles in Land-Use 50. Appeals 368-371 of 1999 (27 January 1999) Decision-Making: Some Issues after Teoh” 13 Environmental and Planning Law Journal 47 and 82 Pearson reaches this conclusion on the basis of an 86 Nagorcka F (2003) “Saying what you mean and Blay S and Piotrowicz R (1996) 13 Environmental analysis of Leatch, Nicholls and Greenpeace: see Planning and Law Journal 40. meaning what you say: precaution, science and the Pearson L (1996) “Incorporating ESD Principles in importance of language” 20 Environmental Planning Land-Use Decision-Making: Some Issues after Teoh” and Law Journal 211 at 221. 81 See Nicholls v Director-General of National Parks 13 Environmental and Planning Law Journal 47 at p 50. & Wildlife Service, Forsetry Commission of NSW 87 and Minister for Planning (1994) 84 LGERA 397 at As noted by the Honourable Justice Paul Stein AM in (2000) “Are Decision-makers too Cautious with p 419; Greenpeace Australia Ltd v Redbank Power 83 The Honourable Justice Paul Stein AM (2000) Company Pty Ltd and Singleton Council (1995) 86 the Precautionary Principle 17 Environmental Planning “Are Decision-makers too Cautious with the and Law Journal 1 at 3. LGERA 143 at p 153; and Planning Workshop Ltd v Precautionary Principle 17 Environmental Planning Pittwater Council (Unreported, Land and Environment and Law Journal 1 at 3 Court, Pearlman J, 22 August 1996) at pp 30-31. See 15 Impact No 76 - December 2004 15 SUPPORT US EDOs provide legal advice and representation to individuals and community The members of the National groups who are working to protect the environment; contribute to law reform; Environmental Defender’s Office Network are independent, non profit run community education programs and develop plain English resources on community legal centres specialising environment laws and public participation. in public interest environmental law.

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