CUB court case completed
August 7th, 2007The court case, Matthew Drake-Brockman v the Minister for Planning and others (Foster’s has sold the CUB site to Frasers) regarding the environmental disaster that will be the Carlton United Brewery development has completed.
In two days of debate barristers for both sides argued the case for the importance of ensuring that environmentally sustainable measures were incorporated into the approval process for the site.
With climate change threatening the way we live it was astonishing to hear counsel for the Minister and Frasers argue that “ESD (ecologically sustainability development) should not take primacy over economics” and that under Part 3A the Minister is under “no obligation to take ESD considerations into account.”
Tell that to the future generations when their health, work opportunities and environment are destroyed.
We now await a judgement within the next few weeks.
Below I have included a summary of the arguments in the CUB Hearing including the submission from Francis Douglas QC, counsel for Drake-Brockman.
I would like to thank everyone who took an interest and supported this landmark case that deals with climate change in an urban development. If you would like to read the full submission please email me at charris@cityofsydney.nsw.gov.au and I will send these to you.
Cheers
Deputy Lord Mayor of Sydney
Greens Cr Chris Harris
Summary of arguments in the CUB Hearing conducted on 25−26 July 2007
DRAKE-BROCKMAN v MINISTER FOR PLANNING & ANOR
The proceedings concern a challenge to the approval of the concept plan for the Carlton & United Breweries site located at 26 Broadway, Chippendale (“the CUB site”) granted by the Minister on 9 February 2007.
Francis Douglas QC − who represented Matthew Drake-Brockman − has agreed for us to place his submissions on the website so that those interested can understand the arguments that were put to the court.
These arguments contain crucial well informed statements about the importance of considering Ecologically Sustainable Development (ESD) principles when a government or consent authority approves a large development like the CUB site.
I have edited some of the submission in an attempt to simplify the language and put into plain English the complex legal arguments on some points for those readers who have had little experience with the Law.
However almost all the text is Francis’exact words as delivered to Justice Jagot during the hearing. As you can see he is a very good communicator and he has framed his arguments in powerful and generally easy to understand terms.
At the end of the summary there is a link to the expert report that we prepared as evidence. This report reveals the damaging environmental impact that the current approval will have on our environment if the project goes ahead unchanged.
When the hearing concluded I was approached by the Chief Operating Officer of the new owner - Frasers. He asked that we meet to discuss what environmental initiatives could be included to reduce the climate change impact of the CUB development. This meeting will be attended by Matthew Drake Brockman, Michael Mobbs, Lindsay Charles (Chippendale Community representative) and myself. We are hopeful that Frasers will be open to adopting our suggestions.
Three grounds of appeal
A. The failure to include a statement relating to compliance with the environmental assessment requirements
A summary of our argument follows in paragraphs 1-6
1. If the concept plan is approved, the Minister then has the option of approving the project as a whole without requiring any further application, environmental assessment or report as occurred in relation to the desalination plant in Kurnell.
2. The fact that the Minister has the power to give final project approval without any further application, environmental assessment or report, underlines the significance of the concept plan approval. It is a significant step to give approval to a concept plan for a major project. Another indication of the significance attached by Parliament to the concept plan approval is that most of the steps required for a final approval of a project are also mandatory in the case of a concept plan approval.
3. Accordingly, under the current legislation, the Director General (D-G) must include in his report a statement relating to compliance with the environmental requirements with respect to the project, and the Minister must consider the D-G’s report (including the relevant statement) when deciding whether or not to grant approval for the concept plan. If the report does not contain the compliance statement, then the Minister cannot give approval for the concept plan. The compliance statement is a mandatory relevant consideration which must be taken into account by the Minister in making the determination as to whether or not to grant approval to the concept plan.
4. The statement in the D-G’s report relating to compliance with the environmental assessment requirements serves a very important purpose. Parliament has seen fit to require that the D-G form an opinion about a matter, and then it requires the Minister to take that opinion into account in his or her determination of the concept plan application.
5. The D-G’s report, prepared in February 2007, does not contain any statement relating to whether or not the project complies with the D-G’s environmental assessment requirements. The complete absence of any statement relating to compliance with the D-G’s environmental assessment requirements has the necessary consequence that the Minister’s approval of the concept plan is invalid. The Minister was required to consider the compliance statement in deciding whether or not to grant approval to the concept plan. The failure to consider a mandatory relevant consideration is fatal to the determination to grant approval.
6. The statutory requirement that the D-G’s report contain a statement relating to compliance with the environmental assessment requirements with respect to the project means that there must be a clear and express statement of opinion to that effect, which is plainly what Parliament intended. It follows that the Minister’s determination to approve the concept plan is void and of no effect, and the Court should make a declaration to that effect.
B. Concept plan application lodged after Director-General’s requirements issued
A summary of our argument follows in paragraphs 7-12
7. Under Part 3A, a concept plan application (up to the environmental assessment stage) involves the following clear and unambiguous statutory steps:
(a) the Minister may authorise or require the proponent to apply for approval of a concept plan for a project
(b) the proponent lodges an application for approval of a concept plan with the D-G
(c) consultation by the D-G with relevant public authorities in relation to the preparation of the environmental assessment requirements
(d) D-G issues environmental assessment requirements and notifies proponent
(e) environmental assessment lodged with the D-G which adequately addresses the D-G’s environmental assessment requirements
8. It is only once the formal application for concept plan approval has been submitted that the D-G is to prepare the environmental assessment requirements. In this way, the submission of the application for concept plan approval is a pre-condition to the exercise by the D-G of the power to prepare the environmental assessment requirements in respect of the project. The D-G cannot proceed to prepare the environmental assessment requirements unless and until he/she has a valid application to the Minister for concept plan approval.
9. There are good reasons for this requirement.
a. First of all, those requirements must be project-specific. It is essential that the D-G have sufficient information about the project to enable him or her to prepare the project-specific environmental assessment requirements.
b. Secondly, the clear intent of Parliament is that the relevant public authorities have input into the D-G’s requirements for each major project. They cannot have appropriate input unless there is on foot (existing) a concept plan application. Were it otherwise, it would significantly diminish the ability of the relevant public authorities to have meaningful input into the D-G’s environmental assessment requirements.
10. In the present case, what actually happened was that on 5 July 2006 the proponent sought authorisation to submit a concept plan application. On 28 August 2006, the Minister authorised the proponent to apply for approval of a concept plan for the project. Contrary to law the D-G issued his environmental assessment requirements on 4 October 2006 prior to receiving any application for concept plan approval from the proponent. The application to the Minister for concept plan approval is dated 5 October 2006, however the evidence suggests that it was not lodged until after 20 October 2006. The preparation and issuing of the environmental assessment requirements for the project prior to the submission of a concept plan application amounts to a breach of the EPA Act.
11. We argue that the D-G breached that provision in issuing his environmental assessment requirements without having any concept plan application before him. That is, it is impossible for proper consultation to occur without having the benefit of a concrete application. These are breaches which should lead to invalidity.
12. The consequence is that the D-G’s report (which must contain a statement relating to compliance with the environmental assessment requirements) could not be validly prepared and hence the Minister’s approval could not be given. The Minister’s determination to approve the concept plan in respect of the project is therefore invalid and of no effect.
C. Failure to consider principles of ecologically sustainable development
ESD principles are mandatory relevant considerations under Part 3A
13. One of the objects of the EPA Act is to encourage ecologically sustainable development.
14. Section 4 of the EPA Act defines ESD by reference to s.6(2) of the Protection of the Environment (Administration) Act 1991, which defines the principles of ESD to include the following:
“(a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options;
(b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations…”
15. We argue that when making a decision to approve a concept plan under Part 3A, the Minister was obliged to consider the principles of ESD. In Gray (The Anvil Hill Coal Mine case), Justice Nicola Pain ruled that the D-G was required to take the principles of ESD into consideration when deciding whether a proponent’s environmental assessment was adequate. She said :
“…I consider that he must exercise that broad discretion in accordance with the objects of the Act which includes the encouragement of ESD principles including those referred to by the Applicant.”
16. Her Honour was, with respect, entirely correct in deciding that ESD principles were mandatory relevant considerations in decisions under Part 3A, including a decision concerning the adequacy or otherwise of an environmental assessment. That result applies with even greater force when the relevant decision is whether or not to approve a concept plan for a project, which has far wider ramifications for the project (not to mention the environment) than a decision as to the adequacy of the environmental assessment.
17. We observe that Frasers in its points of defence denies that the Minister was obliged to consider ESD principles. The Minister, for his part, admits that ESD principles are “relevant to the Minister’s consideration when making a determination under the EPA Act” but otherwise denies the proposition that the Minister is obliged to take ESD considerations into account in making a decision under Part 3A. This Court should follow Gray (Anvil Hill) unless convinced that the decision was clearly wrong.
18. If, notwithstanding the decision in Gray, the Court is amenable to re-opening the question of whether ESD principles are mandatory in decisions made under Part 3A, we make the following submissions.
a. First of all, the decisions relied upon by Justice Pain in Gray establish that the principles of ESD are to be applied whenever decisions are made under any legislative enactment or instrument which adopts its principles, and the EPA Act (as a whole) is one such legislative instrument .
b. Secondly, it is well established that an obligation to consider the public interest necessarily involves the requirement to consider ESD principles as mandatory relevant considerations
c. Thirdly, the conclusion that ESD principles are mandatory considerations in decisions under Part 3A does not depend upon the “public interest” being a mandatory relevant consideration. A conclusion as to whether a particular matter is a mandatory relevant consideration may be drawn by implication from the subject-matter, scope and purpose of the statute. It would be unreasonable to assume that it was the intention of the legislature that there should be no mandatory substantive matters which the Minister was obliged to take into consideration. This would lead to an absurd result - for example that the Minister could make a decision under Part 3A without even considering the impact of a proposal on the environment. It should be implied that the legislature intended that certain relevant considerations must be taken into consideration by the Minister when making a decision under Part 3A. The complete scope of these relevant considerations does not need to be determined in this case, but given the centrality of ESD principles in environmental decision-making, one of these mandatory relevant considerations must be the principles of ESD.
d. Fourthly, the very nature of the projects likely to be the subject of regulation under Part 3A supports the proposition that ESD principles were intended to be mandatory. Section 75B(2) prescribes the kind of projects which may be declared as a project to which Part 3A applies:
“(a) major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance,
(b) major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part.”
These are precisely the kind of projects which are likely to have the most significant environmental consequences. Furthermore, the very scale of these kind of projects makes it likely that Parliament intended the Minister to approach his or decision-making functions with the rigour demanded by, inter alia, the precautionary principle (see below).
e. Fifthly the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill, by which Part 3A was introduced to the NSW Parliament, the Minister made the following pertinent remarks:
“New Pt 3A of the Environmental Planning and Assessment Act will strengthen environmental outcomes and provide for earlier consideration of environmental constraints. These changes will provide a more systematic approach to resolving environmental issues, replacing the current single issue considerations. Earlier consideration of environmental constraints will allow earlier and more effective influence over project design and location decisions. This provides better outcomes for the community and the environment without unreasonable cost to the proponent.”
(Hansard, 9 June 2005, p 16767)
The excerpt from the second reading speech quoted above supports the proposition that the amendments to the Act to introduce Part 3A were intended to strengthen environmental outcomes and provide better community outcomes. These objects would not be furthered if the principles of ESD (which are undoubtedly a mandatory relevant consideration under Part 4 of the Act) were excluded from consideration under Part 3A.
The precautionary principle
19. The precautionary principle is one of the principles underlying ecologically sustainable development. That principle provides two pre-conditions a) that if there are threats of serious or irreversible environmental damage and b) lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
20. If both of these pre-conditions are satisfied, then a decision-maker must assume that the threat of environmental damage is no longer uncertain and is a reality. In effect, the burden of showing that this threat does not exist or is negligible reverts to the Minister and Frasers. In an important case Chief Justice McClellan said:
“Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.”
21. In the present case, it is conceded by both the Minister and Frasers that climate change induced by the release of greenhouse gases into the atmosphere poses a risk of serious and irreversible environmental harm. What appears to be in issue is the extent to which this particular proposal poses a risk of serious and irreversible harm to the environment. We submit that all impacts of the subject proposal, including indirect and cumulative effects, must be considered. To quote Chief Justice Preston:
“[The] threats to the environment that should be addressed include direct and indirect threats, secondary and long-term threats and the incremental or cumulative impacts of multiple or repeated actions or decisions. Where threats may interact or be interrelated (for example where action against one threat may exacerbate another threat) they should not be addressed in isolation…”
22. In Gray, the proposers of the coal mine argued that the impacts of burning the coal produced by the coal mine did not need to be considered as part of the environmental assessment for the Anvil Hill coal mine because they were not a direct consequence of the approval of the coal mine, but were more closely related to the developments which would actually use the coal. Justice Pain concluded that there was a sufficient causal link between the proposal and the impacts of burning coal from the mine, requiring the emissions to be treated as part of the environmental impacts of the mine (at [98]):
“The fact [that] there are many contributors globally does not mean the contribution from a single large source such as the Anvil Hill Project in the context of NSW should be ignored in the environmental assessment process. The coal intended to be mined is clearly a potential major single contributor to GHG emissions deriving from NSW given the large size of the proposed mine. That the impact from burning the coal will be experienced globally as well as in NSW, but in a way that is currently not able to be accurately measured, does not suggest that the link to causation of an environmental impact is insufficient.”
23. Decisions in other jurisdictions have confirmed this approach. In the United States, the recent Supreme Court decision accepted that incremental small steps from greenhouse gas emissions should still be regulated despite not being the only cause of these emissions in the global context. The Court rejected an argument that insignificance in the global scheme of greenhouse gas emissions from new motor vehicles meant that small, incremental steps (while not resolving the problem in its entirety, nonetheless contribute to the solution) could or should not be the subject of regulation:
“The EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked…. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not resolve massive problems in one fell regulatory swoop.”
24. Similarly, in a recent New Zealand case the Court drew the following conclusions:
“Mr Brabant submitted that it would be wrong to conclude that because a particular emission to air might have an effect beyond a region, or indeed beyond New Zealand, a regional or district council cannot address that issue. He submitted, that to conclude a regional or district council cannot address an adverse effect on the environment from a discharge to air that has more than just a regional or district effect, is contrary to the wording of the relevant provisions of the Act….
There is merit in Mr Brabant’s argument. We have a significant contributor to the total carbon dioxide emission budget for New Zealand, from a point source. The cumulative effects of greenhouse gas emissions are accepted, by the Global Scientific Community and by the New Zealand government, to be widespread and serious. We can find nothing in the wording of the relevant provisions of the Act… which would limit the application of consideration of effects to within the boundaries of a regional council.”
25. The nature and significance of the threat posed by climate change is well documented. This Court has acknowledged in a number of cases the seriousness of climate change as a global issue. In a 2007 case relating to a wind farm proposal, the Court gave significant weight to the need for renewable energy sources to combat climate change. Chief Justice Preston referred extensively to reports of the Intergovernmental Panel on Climate Change to demonstrate the seriousness of climate change. His Honour stated :
“Addressing the implications of climate change involves a complex intersection of political, economic and social considerations. It is widely recognised that the state of the global environment is in rapid decline, requiring an urgent response if the current quality of life enjoyed by most Australians is to continue and future generations are to have access to the resources of the present.”
26. In Gray, Justice Pain recognised the seriousness of the problem of global warming (at [98]):
“Climate change/global warming is widely recognised as a significant environmental impact to which there are many contributors worldwide but the extent of the change is not yet certain and is a matter of dispute.”
27. As the expert report (see link for the full report) of Mr Lee discloses, the impacts of this project will be substantial. His evidence is that the project is likely to contribute an amount equal to 0.45% of the total annual City of Sydney greenhouse gas emissions. As the cases cited above emphasise, it matters not that the direct impact of the development will be relatively insignificant in terms of global greenhouse gas emissions. It is the incremental effect on climate change that is important. It should also not be forgotten that the project is on a massive scale, involving an area of 5.795 ha, no less than 11 development blocks, more than 1600 units (more than 140,000sqm of residential gross floor area) and more than 92,000sqm of commercial gross floor area. It is the very scale of the project that requires the application of the precautionary principle, particularly in circumstances where an urban development of this scale is unprecedented, in this city at least.
28. The second pre-requisite to the operation of the precautionary principle is that there is scientific uncertainty concerning the nature or extent of environmental damage caused by the proposed project. It is conceded by both respondents that there is scientific uncertainty as to, at the very least, the type and extent of environmental harm likely to be caused by climate change. Thus, assuming that the greenhouse gas emissions involved in this project do make some incremental contribution to climate change, it must follow that there is lack of scientific certainty as to the environmental damage caused by the project. The precautionary principle will therefore apply.
Intergenerational equity
29. In Gray, Justice Pain quoted from an article written by Chief Justice Preston, which identified the 3 fundamental principles underpinning the principle of intergenerational equity :
“(i) the conservation of options principle which requires each generation to conserve the natural and cultural diversity in order to ensure that development options are available to future generations;
(ii) the conservation of quality principle that each generation must maintain the quality of the earth so that it is passed on in no worse condition than it was received;
(iii) the conservation of access principle which is that each generation should have a reasonable and equitable right of access to the natural and cultural resources of the earth.”
30. If the current generation does not reduce greenhouse gas emissions sufficiently to avert catastrophic climate change, this is likely to have a serious adverse effect on the health, diversity and productivity of the environment inhabited by future generations. In addition, as pointed out by Justice Pain in Gray :
“In terms of environmental impact assessment which takes into account the principle of intergenerational equity, as set out above, one important consideration must be the assessment of cumulative impacts of proposed activities on the environment. As I stated in BT Goldsmith (at [90]) failure to consider cumulative impact[s] will not adequately address the environmental impact of a particular development where often no single event can be said to have such a significant impact that it will irretrievably harm a particular environment but cumulatively activities will harm the environment.”
Failure to consider ESD principles
A decision-maker must give “proper, genuine and realistic consideration” to each matter it is bound to consider, and mere advertence to such a matter is insufficient. Further, a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues, and generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it
31. To put it another way, there must be consideration of:
“…the salient facts which give shape and substance of a matter, the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered”.
(Minister for Aboriginal Affairs v Peko Wallsend Limited (1986 High Court case)
32. Further, where a statute prescribes certain matters which must be considered, those prescribed matters must be taken into account and given weight as a “fundamental element in” or “focal point of” the decision making process, and not merely as a matter to be considered along with such other matters as may be relevant
33. Also relevant is the principle that legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment arising from the development. In the case of a concept plan approval, a similar principle would apply. Although the Minister is not empowered to impose conditions on a concept plan approval as such, he undoubtedly has the power to ameliorate the harm to the environment through modifications to the concept plan and/or to require the proponent to submit a revised Statement of Commitments to include further environmental safeguards
34. There are a number of legal errors in the Minister’s consideration of ESD principles (or lack thereof) as follows:
35. The first error is that there was insufficient information before the Minister to enable him to undertake a proper analysis to avoid environmental harm. Shortly stated, the Minister did not have before him any information concerning the quantity of greenhouse gas emissions likely to arise from car usage, mains electricity, mains water, trucks and machinery or from the production of the materials required to construct the development. Had he obtained or been provided with such information, he would have been aware that:
(a) emissions from the embodied energy involved in the production and construction of the development (including those resulting from the operations of the construction crews) would be approximately 597,000 tonnes CO2-e;
(b) the total annual operational emissions would be approximately 21,402 tonnes CO2-e;
(c) placing the CUB development in the wider Sydney context, leaving aside the massive quantity of emissions resulting from embodied energy, the project is likely to contribute an amount equal to 0.45% of the total annual City of Sydney greenhouse gas emissions;
(d) given that the CUB site occupies 5.795 ha out of the 26.15 square kilometres covered by the City of Sydney local government area (0.227% of the total area), the CUB development will involve approximately double the average annual emissions for the City of Sydney;
(e) urban development accounts for almost 25% of the global total carbon dioxide emissions;
(f) substantial reductions in CO2 emissions from energy use in buildings can be achieved using mature technologies for energy efficiencies and have already been widely and successfully used; and
(g) there were alternatives to the proposed development which would have enabled the potential emissions associated with the development to be substantially reduced.
36. In this case, there was no attempt at all (either by the proponent or the Minister or his Department) to quantify the potential adverse environmental impacts of the project the subject of the concept plan. The fact that it may be difficult to quantify such impacts is no reason not to do it. For that reason alone, the Minister’s determination is liable to be set aside.
37. The applicant anticipates that the respondents’ submission is likely to be that this is only a concept plan approval not a final approval of the project, and that there is therefore no obligation on the Minister at this stage of the assessment process to quantify the potential environmental harm associated with the development. However, this argument misconceives the role of the concept plan in the statutory scheme. As stated above, the concept plan is a very important step in the Part 3A process, as evidenced by the fact that the land has been sold to the third respondent relying upon the concept plan approval. Save for perhaps the case of a change of Government (which is clearly not going to happen prior to final project approval), it is highly unlikely that a Minister will reverse the course adopted in a concept plan approval at the final approval stage. Perhaps some tinkering around the edges might be produced as a result of the further assessment required at the final approval stage, but substantial changes to the form and nature of the development (such as the adoption of ecologically sound design principles referred to below) are extremely unlikely. It will be too late at the final approval stage to undertake the proper analysis required by the precautionary principle.
38. The second error is that the Minister failed to apply the precautionary principle by failing to treat the proponent as bearing the onus of proving that the threat of environmental damage does not exist or is negligible. The D-G’s environmental assessment requirements make no mention of the need for the proponent to satisfy any onus concerning environmental harm. The requirements issued by the D-G do require “an environmental risk analysis”, but the way in which this is addressed in the proponent’s environmental assessment shows that the proponent interpreted this to refer only to immediate and obvious environmental risks, such as the risk of contaminated land not to risks in the broader sense such as the risk of contribution to climate change.
39. The third error is that the Minister failed to consider the alternatives to the concept plan that could have reduced the impacts on climate change. As Mr Lee’s (expert witness) report demonstrates, there were alternatives that could have been the subject of modifications to the concept plan or which the proponent could have been required to include in a revised Statement of Commitments, such as:
(a) a commitment to reducing embodied energy emissions by using more environmentally friendly materials, sourcing building materials locally, using recycled materials and employing off-site fabrication;
(b) reducing operational energy by choosing less dense housing forms, selection of energy efficient heating, cooling and water appliances, high efficiency fans and ducts, energy efficient lighting and appliances and co-generation;
(c) a commitment to use renewable energy devices such as solar hot water and solar electrics; and
(d) a commitment to reduce household water consumption by selecting high performance fittings and appliances, use of rainfall harvesting and treatment of grey water and black water.
40. As Mr Lee’s report demonstrates, very substantial reductions in both energy and water use could have been achieved. The failure to consider these alternatives was an error which rendered the Minister’s approval of the concept plan invalid.
41. The fourth error relates to the lack of any risk-weighted assessment of the various options for redevelopment of the site. It is related to the third error. In Gray, Justice Pain concluded that the application of the precautionary principle required such an analysis to be undertaken. There was no consideration given to alternative options for the re-development of the CUB site, save for minor amendments proposed by the Department concerning design changes to certain of the buildings for reasons of aesthetic harmony and amenity and certain other changes, none of which can be said to be directed to lowering greenhouse gas emissions.
42. The fifth error, which infected the Minister’s approval of the concept plan, is that the Minister (and his Department), while referring to “ecologically sustainable development”, paid lip service to that concept without undertaking the proper analysis required by the application of the precautionary principle. The consideration of ESD in the D-G’s report is remarkable for its brevity and lack of attention to detail. The report merely records the proponent’s alleged commitment to meeting certain targets and concludes (without undertaking the necessary analysis to reach that conclusion) that “the Department is satisfied that the proposal is consistent with ESD principles and WSUD objectives”. Nowhere is it stated (either in the D-G’s report, or in the report on which the Department’s conclusions are based) what those principles are, or how they are to be applied. The Departmental consideration of ESD is cursory, and the measures approved by the Minister are derisory and cosmetic, particularly in relation to the residential part of the development, which falls far short of the standard which might be expected in a development of this scale and modernity. There is certainly no analysis of climate change, and the cumulative impact that the proposed development might have on climate change. An opportunity to set a precedent for ecologically sound urban design has been tossed aside in favour of a proposal which will result in very substantial increases in greenhouse gas emissions. There has therefore been no “proper, genuine and realistic consideration” of ESD principles.
43. The sixth error involved in the Minister’s decision is his failure to consider intergenerational equity. The cumulative impacts of this development upon future generations must be considered before the Minister can be said to have taken ESD principles into account, as he was required to do. He did not do so, and the approval he gave is for that reason invalid and of no effect.
Links to expert opinions:
edo-expert-report-cub.pdf
