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Focus: Planning – March 2008

Climate change flooding impacts in NSW project assessment

In brief: The extent to which climate change is relevant to major project assessment in NSW was recently examined by the NSW Land and Environment Court – this time in the context of 'flood impacts' and concept plan approvals under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW). Partner Jim Parker (view CV) and Senior Associate Suzanne Westgate review the court's recent decision in Walker v Minister for Planning and Anor and comment on the potential consequences for major project applications in NSW.

How does it affect you?

  • Principles of ecologically sustainable development relevant to a particular project, such as the increased risk of flooding from climate change, must be taken into account by the Minister in the assessment of Part 3A applications.
  • Proponents for projects where flooding is identified as a potential constraint on development may be required to provide assessments of flooding based on changing weather patterns caused by climate change.
  • Concept plan approvals do not require 'finality' – rather, lack of finality is inherent in the notion of a concept plan approval.

Introduction

Walker v Minister for Planning ([2007] NSWLEC 741) involved a challenge by an individual to the validity of a concept plan approval by the Minister for Planning under Part 3A of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for a residential subdivision and retirement development at Sandon Point, near Wollongong (the proposed development).

The challenge was made on three grounds:

  • the Minister failed to consider an express mandatory consideration under section 75O(2)(c) of the EP&A Act, being a 2003 Report of a Commission of Inquiry into Sandon Point;
  • the Minister failed to take into account implied mandatory considerations, namely the principle of ecologically sustainable development (ESD) and, in particular, the flooding impacts of the project that would be later compounded by climate change; and
  • the concept plan approval lacked finality.

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Background

The Proposed development was first determined by the Minister to be of state significance under the EP&A Act in 2002. Subsequently, the Minister issued a direction for a commission of inquiry to be held in accordance with (the then unamended) s119 of the EP&A Act.

In April 2006, under the new major project provisions under Part 3A of the EP&A Act, the Minister formed the opinion that the proposed development was a major project to which Part 3A of the EP&A Act applied, and at the same time authorised the submission of a concept plan under s75M of the EP&A Act.

A concept plan, environmental assessment for major project approval and state significant site study were duly lodged by the proponents.

In December 2006, the Director-General of Planning recommended in his assessment report to the Minister that approval be granted, and that the rezoning of Sandon Point be pursued to give effect to the proposed development concept plan.

In granting concept plan approval to the proposed development on 21 December 2006, the Minister determined that further project approvals would be required for future aspects of the proposed development.

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The court's findings
First ground of challenge – Commission of Inquiry Report

Firstly, the applicant argued that the 2003 Commission of Inquiry Report was a relevant mandatory consideration that was not taken into account by the Minister. Justice Biscoe rejected that argument on the basis that the findings and recommendations of the Commission of Inquiry were not an inquiry of the current concept plan application, as required under Part 3A of the EP&A Act. In any event, the judge found that the Director General's Report considered the provisions of the Commission of Inquiry report.

Second ground of challenge – ESD

More significantly, the applicant's second ground of challenge was that the Minister failed to take into account the implied mandatory considerations of ESD principals and the impact of the proposal on the environment. Specifically, the applicant argued that the Minister had failed to consider whether the impacts of the proposed development would be compounded by climate change, and in particular whether changed weather patterns would lead to increased flood risk in connection with the proposed development.

His Honour undertook a detailed review of the concept and principles of ESD, both globally and in Australia, as well as a detailed review of 'climate change' litigation. Importantly, Justice Biscoe noted that courts in the US, UK and Australia have now acknowledged the scientific support for a link between a rise in global temperatures and an increase in the atmosphere in the concentration of greenhouse gases resulting from human activities.

In terms of whether the Minister was obligated to take into account ESD principles in determining a concept plan application under Part 3A, the applicant relied on Gray v Minister for Planning (see Focus: Environment & Climate Change – June 2007) as authority for the principle that the Director-General was obliged to take ESD principles into consideration when forming a view as to whether an environmental assessment prepared by a concept plan proponent adequately addressed the Director-General's environmental assessment requirements.

Justice Biscoe accepted that there was no equivalent 'public interest' consideration provision in the Part 3A concept plan provisions as in other areas of the EP&A Act (such as in s79C(1) in relation to Part 4 development applications). However, his Honour decided that the subject matter, scope and purpose of the EP&A Act mandated the Minister to consider the Director General's Report and recommendations when approving a concept plan, in the context of clause 8B of the EP&A Regulation (which requires the Director-General to include in the Director General's Report 'any aspect of the public interest that the Director-General considers relevant to the project'). The judge found that clause 8B of the EP&A Regulation therefore requires the Director-General to form an opinion as to what aspects of ESD (if any) are relevant to the project, and then include those in the Director-General's Report.

The issue then became whether the Minister had an implied obligation to consider if weather patterns, as a result of climate change, would lead to an increased flood risk in circumstances where flooding was identified as a major constraint on the project. In that regard, there was no reference in the Director-General's Report, nor in any other documents before the Minister or the Director-General, to address the risk of climate change flooding.

The judge found that, having regard to the subject matter, scope and purpose of the EP&A Act and the 'gravity of the well-known potential consequences of climate change' in circumstances where neither the Director-General's Report nor any other document before the Minister appeared to have considered whether climate change flood risk was relevant, the Minister was under an implied obligation to consider whether climate change was relevant, and if so, to take it into consideration when approving the concept plan. As the Minister had failed to do so, the judge found the Minister's approval of the concept plan was void.

Third ground of challenge: lack of finality

The third ground of challenge was that the Minister's concept plan approval was invalid because the concept plan lacked finality or deferred questions for later consideration. The applicant argued that the concept plan approval could not defer essential matters or lack finality.

The judge rejected that agreement, stating that the legislation does not contemplate that a concept plan must have finality of a development, the subject of a subsequent project approval – noting that lack of finality is inherent in the notion of a concept plan.

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Implications for future major projects

The importance of the decision is twofold.

Firstly, Walker v Minister for Planning is a significant Land and Environment Court commentary on the 'concept plan' approval provisions of Part 3A of the EP&A Act. The decision is a clear direction that the principles of ESD, where relevant, must be taken into account in Part 3A major project assessments.

Secondly, the decision deals with global and Australian trends in the development of ESD principles and the application of those principles (such as the precautionary principle and inter-generational equity) to major project assessment in NSW, particularly in relation to the assessment of climate change impacts. The court has firmly acknowledged that where 'climate change' is a relevant principle of ESD in an environmental assessment, it must be taken seriously by applicants and decision makers alike.

In particular, where climate change related impacts (such as flooding) are relevant to a proposal, then those impacts must be taken into account in the assessment process.

The judgment is now being appealed and we will continue to monitor this issue. If you have any questions on this or any other planning matter please contact one of the partners below.

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