ESD: Overarching Objective of EP & A Act?

ESD 1
Should ESD be the Overarching object of the EP & A Act?
Name of Student
Institutional Affiliation

ESD 2
Introduction
The Environmental Planning and Assessment Act (EP&A Act)1 is a legislation of the New South
Wales No. 203 of 1979. The Act was passed to set up a structure of environmental planning and
evaluation for the Australian State of NSW. It institutes a 3-tiered system (state, regional [now
revoked] and local) in the state2. In the EPA Act, several significant plans have been considered.
They include the duty of the Minister for Planning, the managerial roles of the NSW Department
of Planning, strategic planning roles, and environmental assessment roles. It is a provision of the
Act that a Statement of Environmental Effects must be prepared for most developments. The
statement aforementioned is supposed to show the impacts on both human and natural
environments. The EP&A Act also demands that an Environmental Impact Assessment and
bigger public scrutiny be made for larger projects. Moreover, it lays down a framework for the
execution of such environmental planning instruments. This is in a way addressing the
Ecologically Sustainable Development object of the Act.
Thesis
Ecologically sustainable development is an object of the EP&A Act 3s 5(a)(vii). Apart from the
EP & A Act, ESD is also an objective of other affiliate Acts - Protection of the Environment
Administration Act4 and the Environment Protection and Biodiversity Conservation Act 5(This
paper will look into the EP&A Act in a move to unfold whether Ecologically Sustainable
Development should be the main objective of the EP&A Act.
The Concept of Ecologically Sustainable Development (ESD)
The definition of the ESD concept according to Australia’s National Strategy for Ecologically
Sustainable Development (1992) is;
1 The Environmental Planning and Assessment Act 1979 (NSW)
2 "Environmental Planning And Assessment Act | Urbanlex", Urbanlex.Unhabitat.Org (Webpage, 2019)
<http://urbanlex.unhabitat.org/law/408>.
3 EP&A Act 1979 (NSW)
4 Protection of the Environment Administration Act 1991 (NSW)
5 Environment Protection and Biodiversity Conservation Act (1999) (Cth)

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“‘Using, conserving and enhancing the community's resources so that ecological processes, on
which life depends, are maintained, and the total quality of life, now and in the future, can be
increased”6.
This meaning was adopted from the Commonwealth Government 1990, and Australia’s National
Strategy for Ecologically Sustainable Development suggests that there lacks a definite and
universally accepted definition.
For ecologically sustainable development to be achieved, there must be protection, restoration,
and enhancement of the quality of the environment in NSW. To achieve that, Section 6(2) of
Protection of the Environment Administration Act 19917 provides that;
“Ecologically sustainable development requires the effective integration of social, economic and
environmental considerations in decision-making processes.”
The significance of ESD is not subject to doubt, and that raises concern whether it is the
overarching objective of the EP&A Act8. This ESD concept is globally recognised, and it plays a
central role in environmental law. The World Summit for Sustainable Development of 2002
affirmed it has also been included in sixty pieces of the NSW legislation9. By so doing, the
necessities of the present-day generation are catered for short of bargaining the capability of
future generations also meeting their own needs10. This then is enough to show why the concept
should of ESD should be embraced by the Environmental Planning and Assessment Act.
Objectives of the EP & A Act and the resulting Conflict.
These objects can be found in section 5 of the Act, and they are ten in number;
“ (a) to encourage: (i) the proper management, development and conservation of natural and
artificial resources, including agricultural land, natural areas, forests, minerals, water, cities,
6 "Department Of The Environment And Energy", Department Of The Environment And Energy (Webpage, 2019)
<http://www.environment.gov.au/about-us/esd>.
7 Protection of the Environment Administration Act (1991) NSW
8 A Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act
1999 (2009) <https://www.environment.gov.au/system/files/resources/5f3fdad6-30ba-48f7-ab17-c99e8bcc8d78/
files/final-report.pdf>.
9 Yasmin von Schirnding (2005) 1(1) Globalization and Health.
10 "WSSD .:. Sustainable Development Knowledge Platform", Sustainabledevelopment.Un.Org (Webpage, 2019)
<https://sustainabledevelopment.un.org/milesstones/wssd>.

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towns and villages for the purpose of promoting the social and economic welfare of the
community and a better environment, (ii) the promotion and co-ordination of the orderly and
economic use and development of land, (iii) the protection, provision and co-ordination of
communication and utility services, (iv) the provision of land for public purposes, (v) the
provision and co-ordination of community services and facilities, and (vi) the protection of the
environment, including the protection and conservation of native animals and plants, including
threatened species, populations and ecological communities, and their habitats, and (vii)
ecologically sustainable development, and (viii) the provision and maintenance of affordable
housing, and (b) to promote the sharing of the responsibility for environmental planning between
the different levels of government in the State, and (c) to provide increased opportunity for
public involvement and participation in environmental planning and assessment”11.
ESD is among nine other goals of the EP & A Act. The Act, however, does not give any of the
ten goals a special priority over another. This is what has been deemed to be problematic as there
are objects that are seen to conflict with each other. Planners and enforcers of the Act are left
without a means of solving the controversies. The internal logic of ESD is itself inconsistent with
the equality concept to the other nine objects. In other legislation of NSW, the ESD concept is
seen to be overarching in that it works towards uniting objects that compete against each other12.
An Independent Review of the planning system in 2011 redefined ESD stating that, achievement
of ESD requires that there be efficient incorporation of economic, environmental, social and
equity concerns in the processes of policymaking pertaining plans and developments to cater for
needs of the present and future generations in line with s 2(a) of the Protection of the
Environment Administration Act 199113. The independent review also suggested that ESD should
be the dominant objective of the newfangled planning legislation. Nevertheless, the Planning Bill
lists ESD as an object together with other nine and all of them with equal weight.
Significances of the Principles of ESD
To determine the compelling factors towards the significance of the ESD, it is good to
understand its underlying principles. The case of BGP Properties Pty Limited v. Lake Macquarie
11 EP&A Act 1979 (NSW)
12 "NSW Planning Reforms: Sustainable Development", Parliament.Nsw.Gov.Au (Webpage, 2019)
<https://www.parliament.nsw.gov.au/researchpapers/Pages/nsw-planning-reforms-sustainable-development.aspx>.
13 Administration Act (n7)