LAW861 Research Essay: ESD as Overriding Priority in EPAA

This research essay examines the extent to which sustainable development serves as an overriding priority within the Environmental Planning and Assessment Act 1979 (NSW). The essay begins by outlining the historical context of the planning system in Australia and the evolution of ESD as a legal concept. It then delves into the objectives of the EPAA, analyzing the inclusion of ESD and assessing its intended weight within the Act. The discussion explores the definition of sustainable development, its components (economic, social, and environmental), and how it is addressed in the Act through objectives and legislative provisions. The essay further analyzes the implementation of ESD principles, including the precautionary principle, and the judicial interpretations of ESD in cases like Leatch v Director-General of National Parks and Wildlife and Telstra Corp Ltd v Hornsby Shire Council. The essay argues that while sustainable development is not explicitly stated as an overriding priority, it functions as an overarching principle influencing many decisions under the Act and is increasingly emphasized through judicial precedent. The essay concludes with a discussion of the challenges in applying ESD principles and the need for translating policy principles into enforceable legal provisions.

Running head: RESEARCH ESSAY
RESEARCH ESSAY
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Introduction:
The planning system of Australia is at a critical as well as confusing. In 1979, the
planning system was complex, not consistent, over politicized, ad hoc, separated from the local
communities and without any strategy and planning- often resulting in inappropriate
environmental results. In order to combat with these problems, the need of a new and efficient
planning act is felt. Thus the Environmental Planning and Assessment Act 1979(NSW) was
enacted to ensure the objectives of genuine public participation, transparency, accountability,
consistency in decision making and environmental assessment. Since 1979, all these objectives
remained buried under layers of various amendments ending up in substantial change. In the year
of 2010, the planning system was modernized and made up to date by making it more strategic
and consistent, but the end result was not satisfactory as it became more complex and much
politicized, not connected to local communities and resulting into very poor environmental
outputs. It is at the high time for an overhaul of the existing planning laws.
The Environmental Planning and Assessment Act 1979 (NSW) (‘EPAA’) does not
provide the principles of sustainable development that are intended to be an overriding priority of
this act. Although, EPAA declares ecologically sustainable development (ESD) as one of its
aims but further clarification on the application of the concept was not supplied leaving it to the
jurisdiction and discretion of court (Smith and Nadebaum 2016). As revealed later, that the
courts have interpreted ESD to be one of the priorities of the act paving the way for it to be a
dominant priority in future. In this essay, the focus is mainly on the concept of sustainable
development and what weightage is given in the act. It would be later argued that though
sustainable development is not regarded as an overriding priority, it is an extensive and
overarching principle that flows most decisions under the Act.

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Discussion:
If the Australians want to embrace the ESD, they first need to understand the concept and
reality of sustainability. The most common cited definition of sustainable development comes
from the report of 1987 of the World Commission on Environment and the Development called
‘Our Common Future’ also known as the Brundtland Commission Report is that the
development which meets the needs of the present without compromising the ability of the future
generations to meet their own needs (Dunphy 2000). Chief Justice Preston of the NSW Land and
Environment Court has defined sustainable development to comprise of three components
mainly which are economic development, protection of environment and social progress. This
showed that the concept of social development is being added to the definition of sustainable
development by the World Summit 2002.
In Australia, the various legislatures have tried to supply some guidance to decisions
makers to define sustainable development. As a result of this, the terminology ‘sustainable
development’ has been modified as the ‘ecologically sustainable development’ to put emphasis
on the environmental aspects. In the EPA Act, ESD is worked upon through the objective
provisions of the act.
Legislative objectives have always played a crucial role in defining the objective of the
Act and providing guidance for its implementation. The present aims of the EPA act are as
follows to encourage; firstly, the proper management, growth and conservation of natural as well
as artificial resources, that includes natural areas, agricultural land, forests, minerals, water,
cities, towns and villages for the purpose of developing the social and economic welfare of the
community and a better environment, secondly, the promotion and coordination of the orderly

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and economic use and development of land, thirdly, the provision, protection and coordination of
the orderly and economic use and development of land, fourthly, the use of land for public
purposes, fifthly, the provision and coordination of the community services and facilities, sixthly,
the protection of the environment, including protection and conservation of native animals and
plaints, including threatened species, populations and ecological communities and their habitats,
seventhly, ecologically sustainable development, and finally the provision and maintenance of
affordable housing. The other objectives include to promote the responsibility sharing for
environmental planning between the different levels of the Government in the State and the final
one is to provide increased opportunity for public involvement and participation in the
environmental planning and assessment. All these objectives are given under section 5 of the
EPA Act.
When it was introduced in 1979, the act was assumed to be the most progressive one in
the whole world. it was described as the system of planning of environment in which decisions
on land use and management of resources are made within the physical compatibility of the
environment to promote the economic and social development of the people of NSW.
The EPA act understood the importance of public participation not only as a part of good
government system and democracy but also leading to better decisions. Since then, the act has
incorporated several reforms with an intention to streamline the planning system. In reality, these
reforms had eroded the basic and fundamental characteristics of the original act and gradually
created a system which is more complex, uncertain and inaccessible.
In the past thirty years, the population of the country has grown over by 40% almost. As
a result of which need of houses and infrastructure has increased too. The current definition of

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EPA act which adopts the definition in 6(2) of the Protection of the Environment Administration
act 1991 incorporates the key elements of ESD, namely; the precautionary measure to control
and reduce the environment related risk, the inter generational equity by considering the present
and future generations, by conserving the biological diversification and ecological integration
and improved valuation, pricing and incentive mechanisms.
However, the ESD are just a framework to achieve environmental policy. This is the
strength of Australian Government that it provides a universal, systematic approach to solve
environmental problems. Although they do not allow any particular type of solution, yet they
provide a framework to develop solutions to every environmental conflict. It also paved a way to
the proper legal system. Similar to the ESD principles, the legal system also gives provision for
allowing social and economic changes. Cases like Leatch v Director-Genral of National Parks
and Wildlife, and Gray v Minister for Planning have shown us what the ESD principles are able
to do.
In order to put forward the ESD Principles, it is important to understand how they have
implemented and how they have not worked. The way the ESD principles were incorporated in
legislation in the1990s has been highly criticized. There are around 150 pieces of legislation in
Australia that have already included ESD Principles. But these legislations include the ESD
provisions in a very weak manner. Most of them just declared the principles of ESD in their
objectives and purposes of the legislation. It is not practically useful to just incorporate the ESD
principles in the objectives and purposes only, it must be ensured that they must be applied and
achieved. This is not the way the legislation should work. the policies must not be included in the
legislation theoretically only. It requires proper implication.

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Another problem is confusion related to the meaning of the ESD Principles. Some of the
principles contain ambiguous statements some of them are vague, inconsistent and uncertain.
Moreover, there is very little guidance as to how these principles to be applied in the
environmental scenarios. It has showed that the principles do not provide clear ideas and answers
about how they are to be applied in particular situations.
The main problem with the ESD principles is that converting these guiding policy
principles into actual operations. The decision makers are often criticized for giving only
superficial service to the ESD principles instead of applying them. In addition to these, they
make wrong interpretations of these principles. To overcome these limitations and make the
principles actually work, one has to rethink the way they are related to law. It is needed to
translate the policy principles into legal provisions that can be enforced. These can be done
alternatively or concurrently.
Firstly, the major task is to design the legislation in such a way that it reflects the
principles in structure and in effect instead of just including a salutary statement added to the
objectives. Secondly, is has to be done to expressly prohibit the ecologically unsustainable
development through directive and compulsory legislations.
Thus when these principles were not applied properly, it has been left to the courts to take
decision what role it has to play and find out whether it is a major legislative priority at all. The
distinction between encouraging, considering and applying ESD principles as mentioned in the
objective clause of the Protection of the Environmental Administration Act 1991 (NSW) may be
redundant in the light of case law of Leatch v Director-General of National Parks and Wildlife
Service. This case was mainly concerned with the National Parks and Wildlife Act 1974 (NSW),

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Stein J used the precautionary principle in the light of developmental proposal and refused to
grant a license on the basis of doubts on the habitat and behavior of the Giant Burrowing Frog. It
was seen that there was no express provision mentioning the use of the precautionary principle, it
was needed as a part of implementing the object of the Act. Stein J concluded that the decision
makers must be conscious when uncertainty is present in terms of nature or scope of
environmental harm. In the context of this decision, many other judges like Preston CJ has
followed the jurisprudence on ESD as developed by Stein J. Leatch still hold the principle
authority on the utilization of the precautionary principle. However, Stein J has criticized the
legislature’s failure to give guidance as to the role of ESD.
After this, the case of Carstens v Pittwater Council expressly clarified that the principles
of ESD was a significant consideration in the section 79C(1)(e) of the EPAA which indicates the
importance of public interest when taking decision under the Act. Due to the incorporation of the
ESD in the light of public interest, ESD principles are now found to occupy a strong position in
the judicial decision making process in New South Wales. In this regard the cases of Telstra
Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Minister for Planning v Walker
(2008) 161 LGERA 423 can be discussed.
In the case of Telstra v Hornsby Shire Council, the decision provides deep and clear
analysis and discussion of the principles of ESD and the precautionary principle of NSW
environmental law. The judgment also noted that ESD has to be considered when taking into
account ‘public interest’ under section 79(1)(e) of the EPAA. While this decision is clearly a
major forward step in giving priority to ESD, it is still found to be one of the many factors that
had to be taken into account when deciding the result of developmental proposals. Justice
Preston had considered and noted that there exists a number of principles of ESD including the

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principle of sustainable use which is the idea of exploiting natural resources in a manner which is
sustainable, the principle of integration, the precautionary principle, the principle of equity, the
principle that considers both intergenerational equity and intra-generational equity, the principle
that conservation of biological diversity and ecological integrity should be a fundamental
consideration and the principle of the internalization of environmental costs. The decision of J
Preston in this case represents the most important analysis of the precautionary principle in a
judicial approach. The decision of this case was followed in another case of Bentley v BGP
Properties Pty Limited by Preston J.
The case of Walker v Minister for Planning is very important where the Justice Biscoe
reviewed the principles of ESD together with the Australian case law on climate change. He
discovered that the Minister of Planning had failed to consider ESD as it did not consider the
impacts of the proposed development would be compounded by climate change. The case has
important results showing how the Minister shall deal with the major projects under Part 3A of
the EPA act. In this case the Court held that a failure to consider ESD will result into failure to
consider the public interest, making the decision null. At that time it was regarded as a landmark
decision and it supported the argument that sustainable development is an overruling priority in
EPA act. But the NSW court in the appeal overruled the previous decision. The court of Appeal
held that the Minister or the delegates were only bound to consider the relevant objects of the act
in a particular case. It would be at the discretion of them to decide which objects would be
involved in that case. In this regard the court also held that an erroneous decision would not
necessarily make such decision void. Such decision brought a great deal of controversy as it put
questions as to why the principles of ESD were not considered mandatory.

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Much work has been done in this regard and the courts have made serious efforts to
incorporate the ESD principles whenever they find it necessary. even if it is known that there is
positive obligation on the decision maker to consider the ESD ideology, it is at their discretion to
apply them. Without a clear and mandatory provision in the EPA act, it is not possible to
implement these principles in each and every case. Rethinking the ESD principles is a big work.
It needs to be established through extensive research and policy and necessary amendments must
be done to ensure the application of the ESD principles. Unless it is made compulsory, mis
utilization is bound to happen. If ESD has to play a effective ad constructive role on its own
merits, the legislature is required to amend the act to reflect this. Moreover such amendment will
provide a clear and transparent picture to the decision makers on how to implement these
principles. Without a clear duty contained in the Act the decision makers may not be obliged to
apply them, high level of discretion available allow them whether or not to choose the principles
to be applied. The current law does not facilitate this and the courts are yet to take steps to
enforce them as a duty.
It can be lastly said that though EPAA shows ESD as a legislative priority by putting it in
the objectives of the Act, the lack of steps given to its appropriate implication disposes the claim
that ESD is an overruling option. Though the courts have come a long way to achieve this, yet a
long way is yet to be covered to apply the ESD practically. The courts have done a lot to put it up
as an overriding priority in the future.

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References:
Bentley v BGP Properties Pty Limited
Carstens v Pittwater Council
Dunphy, D. and Benveniste, J., 2000. An introduction to the sustainable corporation.
Sustainability: The Corporate Challenge of the 21st Century. D. Dunphy and et al.
Smith, G. and Nadebaum, P., 2016. The evolution of sustainable remediation in Australia and
New Zealand: a storyline. Journal of environmental management, 184, pp.27-35.
The Environmental Planning and Assessment Act 1979(NSW)
The National Parks and Wildlife Act 1974 (NSW
The Protection of the Environment Administration act 1991
Walker v Minister for Planning