Ecologically Sustainable Development as EP&A Act's Main Objective?

This essay critically examines the question of whether Ecologically Sustainable Development (ESD) should be the overarching objective of the Environmental Planning and Assessment Act (EP&A Act) in New South Wales. The introduction provides background on the EP&A Act, its three-ti...Read More

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

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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)

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City Council (2004)14 was an appeal in pursuant of s97 of the EP&A15 Act whereby the court
expressly stated that there was no other better way of addressing dispute other than by applying
the principles of ESD. This just shows how the concept is significant in solving disputes. Some
of the principles to discuss below were applied in the case such as the precautionary principle,
the principle of intergenerational equity, and the polluter-pays principle. The Protection of the
Environment Administration Act 1991 Section 6 (2) (a) - (d) provides for these principles16;
(a) The Precautionary principle- the principles targets the risk of serious irreversible
environmental change. When this threat is present, deficiency of full certainty of
scientific facts ought not to be the reason for delaying actions to avert the consequences
of environmental squalor. There is, therefore, a requirement that the ESD concept
suggests; to carefully evaluate private and public decisions in a move to prevent severe
and irreparable harm to the surroundings including a risk assessment of several options17.
In the case of BT Goldsmith Planning Services Pty Limited v. Blacktown City Council
2005,18 the significance of this ESD principle has also been shown. In the case, it was
decided that a development proposal had to be escorted with a Species Impact Statement
if the development application was in respect of project on land that was a significant
habitat or was expected to affect endangered species, populations or ecological societies,
or their habitats in line with s 78A (8) (b) of the Environmental Planning and Assessment
Act19. After the appraisal of the provisions of the Environmental Planning and
Assessment Act in relations to the species Impact Assessment applying principles of ESD,
specifically the precautionary principle. The project was seen posted threats of severe
irreversible harm to the Cumberland Plain which was listed as an rare ecological
community. Since the Cumberland Plain was regarded as a prime, scarce, and vulnerable
project, it was necessary for the court to step in and rely on old incomplete data to
conserve the community. It is for that reason that a precautionary action was necessary by
the court to determine whether it was valuable to remove or alter a significant area of the
ecological community.
14 BGP Properties Pty Limited v. Lake Macquarie City Council (2004) NSWLEC 399
15 EP&A Act 1979 (NSW)
16 Administration Act (n 7)
17 Rosie Cooney and Barney Dickson, Biodiversity And The Precautionary Principle (Taylor and Francis, 2012).
18 BT Goldsmith Planning Services Pty Limited v. Blacktown City Council (2005), NSWLEC 210
19 EP&A Act 1979 (NSW)

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(b) Inter-generational equity- The principles lay down the importance of the generation of
today upholding health, multiplicity and output of the environment for a better good for
the upcoming generations20. This principle carries so much weight, because, through it,
the future generations are assured of a better environment. Seemingly, ESD is not a
selfish concept as it aims at establishing equity for all generations and probably even
better tomorrow for future generations. Form the case of Hub Action Group Inc v
Minister for Planning and Orange. City Council [2008]21, the plaintiff, a cluster of
inhabitants were against a application to develop “the Hub” regional waste facility on
agronomic land. The court held that the agricultural land ought to be respected as it is
going to serve the future generation. The proposed project would limit the usability of the
land for agricultural purposes. The project was therefore not viable, somewhat as it was
going to unfavourably distress the long term use, for unremitting agriculture.
(c) Conservation of biological diversity and ecological integrity- the principle addresses the
significance of preserving biological diversity and ecological diversity in all decision-
making processes involving the environment. Biodiversity is the multiplicity of all life.
Impact Statements of the environmental and species endorse this principle. The recently
decided case of Gloucester Resources Limited v Minister for Planning [2019]22, shows
the significance of conservation of ecological diversity as an ESD principle. The Land &
Environment Court of New South Wales could not allow the Gloucester Resources
Limited company’s application of constructing an open cut mine and one of the reasons
why was the fact that the project risked adverse climatic changes as a result of the mine’s
emissions. The case of BT Goldsmith Planning Services Pty Limited v. Blacktown City
Council discussed above applies this principle together with the precautionary principle.
(d) improved valuation, pricing and incentive mechanisms- The factor proposes that
environmental factors ought to be considered in the valuation of assets and services such
as23;
(i) “Polluter pays—that is, those who generate pollution and waste should
bear the cost of containment, avoidance or abatement,
20 John Roemer and Kotaro Suzumura, Intergenerational Equity And Sustainability (2007).
21 Hub Action Group Inc v Minister for Planning and Orange. City Council [2008] NSWLEC 116.
22 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (8 February 2019) ELAW.
23 Administration Act (n 7)

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(ii) the users of goods and services should pay prices based on the full life
cycle of costs of providing goods and services, including the use of natural
resources and assets and the ultimate disposal of any waste,
(iii) Environmental goals, having been established, should be pursued
in the most cost-effective way, by establishing incentive structures,
including market mechanisms that enable those best placed to maximise
benefits or minimise costs to develop their solutions and responses to
environmental problems.”
(e) Both long term and short term economic, environmental, social and equitable
considerations must be incorporated in the decision making processes. This principle
has not been put in place by 3A(a) of the Environment Protection and Biodiversity
Conservation Act 199924. This is enough to show that ESD is all-encompassing25 and does
only serve only environmental needs26.
Case studies
The concept of Public Interest in ESD
Section 4.15 (1) of the Environmental Planning & Assessment Act27 requires the government to
involve the public when appraising a development application. From the appeal case of Telstra
Corporation Limited v Hornsby Shire Council, 200628, the court made it clear the primary
concept of ESD and its applicability in determining applications of development projects. In the
case, the matter in discussion was the application of the precautionary principle when dealing
with radiofrequency electromagnetic energy. Telstra, a telecommunication hauler wanted to
solve the poor mobile telephone exposure in the Cheltenham Community by setting a project of a
mobile telephone base station. The matter became of so much of concern to the public (a section
of the community of Cheltenham and the Hornsby Shire Council) as it was feared that the plant
would discharge electromagnetic energy that was possible harm to the safety and health of
Cheltenham residents. In that case, the development was feared not to be ecologically
24 Environment Protection and Biodiversity Conservation Act (EPBC Act) (1999) (Cwlth)
25 Mulugeta Abebe Wolde, "Policy And Institutional Reforms: Review Of Reform Experiences Of Five African
Countries" (2017) 14(1) International Journal of Business and Public Administration.
26 David Lindenmayer, Ten Commitments; Reshaping The Lucky Country’S Environment (CSIRO Pub., 2008).
27 EP&A Act 1979 (NSW)
28 Telstra Corporation Limited v Hornsby Shire Council [2006] NSW 133, reported in (2006) 146 LGERA 10

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sustainable, and that became the reason the Hornsby Shire Council could not allow the project’s
proposal. In that case, the court highlighted issues of public interest, and it saw the need to know;
- Telstra’s precautionary principle against the possible effects of the mobile telephone base
station on public health and safety
- How the project could be invoked to address the public fear of the community.
- The ecological sustainably of the mobile telephone base station development.
The decision of the court regarding the appeal favoured Telstra because it was confirmed that
indeed the project addressed the above points and that it was not of any harm to the general
public. The emission levels by the mobile base were within the public health and safety standard.
In that case, the precautionary principle would not necessary as there lacked a danger of grave or
irretrievable environmental harm29. Still, there lacked probative proof on which the court could
find an adversative consequence on the facility of the site or community health and well-being
because of the change. The public concern was, therefore, an irrational and one based on
unfounded perceptions. Better still, the concept of ESD can be seen to play a very vital role in
addressing fears of the public regarding matters30. When development is not ecologically
sustainable, there is a great possibility that the public will be hurt31. The people or rather the
public have the sovereign power and so if there is one thing any law should do is the safety of the
people. In the above case, if the project were by any chance not in adherence with the standards
of health and safety regarding the emissions they released to the community vicinity, the court
would not hesitate to shut it down as a precautionary strategy. The concept of ESD prioritizes
most on the quality of life by maintaining the ecological processes that life depend on32. Human
life has a very special regard in law, and when there is an objective such as ESD that promotes
the quality of life, then it should be given more weight.
The need for ESD as the dominant object
29 Rosie Cooney and Barney Dickson, Biodiversity And The Precautionary Principle (Taylor and Francis, 2012).
30 Geert van Calster, Wim Vandenberghe and Leonie Reins, Research Handbook On Climate Change Mitigation
Law (E. Elgar, 2015).
31 Matt McDonald, Security, The Environment And Emancipation (Routledge, 2012).
32 Rieckmann Marco, Education For Sustainable Development Goals: Learning Objectives (UNESCO Publishing,
2017).

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According to () ESD is “not a factor to be balanced against other considerations; ESD is the
balance between development and environmental imperatives”33, 34. There has been an disparity
that has led to ecological concerns being set aside for cost-effective results, including the EP &A
Act, where cheering ESD one of the ten equally-weighted objectives.
Conclusion
When applied appropriately, ESD recognizes that ecological veracity and environmental
sustainability are essential to social and economic welfare, bearing in mind the needs of ESD,
experts of the contemporary and forthcoming generations. Experts affirm that indeed there is no
alternative reliable contender for an integrative policy agenda. The conception as already
mentioned not only has environmental benefits, but also significant socio-economic uses35.
Ecologically Sustained Development ensures long term social and economic sustainability by;
(i) Prioritizing on the needs of all generations
(ii) Engaging people in the choices that affect their societies
(iii) Establishing healthy and safe communities and long-lasting developments (improving
the quality of life).
(iv) Helping in decision making through the assessment of costs and benefits
(v) Promoting innovation
(vi) Enhancing cleaner production and little pollution
(vii) Promoting the use of sustainable building design
These are among the reasons discussed that make the ESD concept so outstanding compared
to the other objects and therefore should not be given the same weight under the EP &A Act.
33 G. M Bates, Environmental Law In Australia (LexisNexis, 5th ed, 2002).
34 M. D. Farrier, Andrew H. Kelly and A. Langdon, "Biodiversity Offsets And Native Vegetation Clearance In New
South Wales: The Rural/Urban Divide In The Pursuit Of Ecologically Sustainable Development" (2007)
24(6) Environmental and Planning Law Journal, <https://ro.uow.edu.au/erahca/52/>.
35 David Lindenmayer, Ten Commitments; Reshaping The Lucky Country’S Environment (CSIRO Pub., 2008).

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Bibliography
A. Books, Articles and Reports
Bates, G. M, Environmental Law in Australia (LexisNexis, 5th ed, 2002)
Calster, Geert van, Wim Vandenberghe and Leonie Reins, Research Handbook on Climate
Change Mitigation Law (E. Elgar, 2015)
Cooney, Rosie and Barney Dickson, Biodiversity and the Precautionary Principle (Taylor and
Francis, 2012)
Farrier, M. D., Andrew H. Kelly and A. Langdon, "Biodiversity offsets and Native Vegetation
Clearance in New South Wales: The Rural/Urban Divide in the Pursuit of Ecologically
Sustainable Development" (2007) 24(6) Environmental and Planning Law Journal,
<https://ro.uow.edu.au/erahca/52/>
Hawke, A, 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>
Lindenmayer, David, Ten Commitments; Reshaping The Lucky Country’s Environment (CSIRO
Pub., 2008)
Marco, Rieckmann, Education For Sustainable Development Goals: Learning Objectives
(UNESCO Publishing, 2017)
McDonald, Matt, Security, The Environment and Emancipation (Routledge, 2012)
Roemer, John and Kotaro Suzumura, Intergenerational Equity And Sustainability (2007)
von Schirnding, Yasmin (2005) 1(1) Globalization and Health

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Wolde, Mulugeta Abebe, "Policy and Institutional Reforms: Review Of Reform Experiences of
Five African Countries" (2017) 14(1) International Journal of Business and Public
Administration
"Department Of The Environment And Energy", Department Of The Environment And Energy
(Webpage, 2019) <http://www.environment.gov.au/about-us/esd>
"Environmental Planning and Assessment Act | Urbanlex", Urbanlex.Unhabitat.Org (Webpage,
2019) <http://urbanlex.unhabitat.org/law/408>
"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>
"WSSD. Sustainable Development Knowledge Platform", Sustainabledevelopment.Un.Org
(Webpage, 2019) https://sustainabledevelopment.un.org/milesstones/wssd
B. Cases
BGP Properties Pty Limited v. Lake Macquarie City Council (2004) NSWLEC 399
Hub Action Group Inc v Minister for Planning and Orange. City Council [2008] NSWLEC 116.
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (8 February 2019)
ELAW.
Telstra Corporation Limited v Hornsby Shire Council [2006] NSW 133, reported in (2006) 146
LGERA 10
C. Legislation
The Environmental Planning and Assessment (EP & A) Act 1979 (NSW)

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Protection of the Environment Administration Act 1991 (NSW)
Environment Protection and Biodiversity Conservation Act (EPBC Act) (1999) (Cwlth)