A NEW SOUTH WALES court has warned that developers and planning authorities can no longer get away with avoiding the issue of climate change.
Justice Peter Biscoe of the NSW Land & Environment Court handed down the decision last month after a Wollongong local resident challenged NSW Minister for Planning Frank Sartor over a concept plan for a mixed residential and aged-care facility at Sandon Point — a largely underdeveloped coastal area situated just north of Wollongong.
Justice Biscoe upheld the challenge, finding that in granting the approval Sartor had failed to take into account the principals of ‘ecologically-sustainable development’ (ESD) and specifically, whether climate change would exacerbate the risk of flooding on what is already a flood constrained site.
Josie Walker, the solicitor from the Environmental Defenders Office who successfully ran the case for resident Jill Walker, told Lawyers Weekly that that decision “will make everyone more conscious that climate change is real and has to be taken into account in all kinds of development decisions, not just how developments might impact climate change but also the need to adapt to climate change in the future.”
According to Andrew Beatty, a partner in Baker & McKenzie’s environment and environmental markets practice, the decision is “evolutionary, not revolutionary”, in the sense that it is just the latest in a series of decisions by the Court expressing the need for developers and planning authorities to consider the effect of developments on the environment, particularly in regards to climate change.
“It represents a further step in the jurisprudence of not only ESD but also climate change litigation in this country.
“It’s fair to say that the phenomena of climate change and its effects on the global environment is probably now the most pervasive and important issue to which the principals of ecologically-sustainable development need to be applied,” he said.
While the case concerned a particularly sensitive flood-prone site and specifically considered the application of Part 3A of the Environment Planning and Assessment Act, which according to Beatty “is still in a state of flux”, he believes the crux of the decision is relevant in a wider sense.
“The principles which Biscoe enunciates in the case I think are of wide application and even if the regulations supporting the law were amended again I suspect that the reasoning and findings of his honour’s decision will be relied upon by others, particularly in climate change litigation which is continuing to expand,” he said.
Walker agrees: “It gives a lot of prominence to the issue of climate change and could perhaps set a precedent in other cases for decision-makers being held to account for not taking climate change into account,” she said.
And although the potential impacts of climate change on any particular site can’t be predicted with complete certainty, Walker’s view is that with the information now available the issue can be given serious consideration.
“They just need to show that the question has been considered. The depth of the consideration would probably be proportional to the scale of the project and the degree of risk and should be based on the scientific knowledge available at the time. Nobody is expecting them to be able to predict with certainty the effects when there are so many uncertainties. In this case it was the fact that the matter was simply not adverted to at all in any of the documentation which was held to be fatal,” she said.
Beatty agreed, adding: “They have to take into account what is generally scientifically accepted … There’s a lot of material out there, particularly as [the issue is] becoming more mainstream.”
Beatty is careful to point out that the decision will not stop environmentally unpopular developments from getting the go-ahead. “This doesn’t mean that a decision-maker will be prevented from giving approval to unpopular things like new coal mines. All it means is that a good deal more work will need to be done by proponents of a project big or small which may have a carbon impact or whose impacts may be exacerbated by the enhanced greenhouse effect,” he said.
What the case will do, however, is send a clear message to developers and planning authorities that climate change is well and truly on the agenda for the judges of the Land & Environment Court, and none more so that Justice Biscoe. In his decision, he said “Climate change presents a risk to the survival of the human race and other species. Consequently; it’s a deadly serious issue”.