MONOGRAPH 40 volume 1

31 Research monograph 40 1. Introduction Native vegetation and wildlife laws prohibit but then enable the clearing of native vegetation or the picking of plants or the harming of animals of threatened species, populations or ecological communities and their habitat by the granting of a clearing approval or a threatened species licence. Planning laws restrict but then enable the carrying out of development such as the use of land and its resources by the granting of a development consent. Pollution laws restrict but then enable the pollution of public resources — the commons — such as the air, rivers, harbours and seashores by the grant of a pollution licence. 263 The resolution of competing and often adversarial uses of the environment is commonly reflected in the decisions of the LEC, such as in the merits-review appeal case of Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd , where a “greater good” was at the heart of a decision to allow the “insertion of wind turbines into a non-industrial landscape” to the detriment of the rural setting and the local inhabitants — both human and non- human. 264 For Preston CJ of the LEC, a greater societal good would be achieved in allowing the construction of a wind farm that would have dramatic and permanent impacts on an otherwise pristine rural environment. That greater good was expressed as “confronting carbon emissions and global warming” and providing “an opportunity to shift from societal dependence on high- emission fossil fuels to renewable energy sources”, representing “one much needed step in policy settings confronting carbon emissions and global warming”. 265 It is a sobering truth to acknowledge that, at times, environmental stewardship has to give way to ecologically sustainable development. 266 1.6.1.1 Defining environmental harm Under Pt 5.7 of the POEO Act , in particular, s 147(1) provides: (a) harm to the environment is material if: (i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or (ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and (b) loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment. 267 Clearly, the concept of harm is broad: environmental harmfulness needs to be considered not only in terms of actual harm; the potential or risk of harm must also be taken into account. 268 263 The Hon Justice B Preston, “The effectiveness of the law in providing access to environmental justice: an introduction”, paper presented at the 11th IUNC Academy of Environmental Law Colloquium, 28 June 2013, Hamilton, New Zealand. 264 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1; [2007] NSWLEC 59 per Preston CJ of the LEC at [1]. 265 ibid at [1]–[2]. 266 As defined in the Ecologically Sustainable Development Steering Committee’s National strategy for ecologically sustainable development — Part 1, 1992 at www.environment.gov.au/about-us/esd/publications/national-esd-strategy-part1#WIESD, accessed 16 May 2017, “ecologically sustainable development” refers to “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”. One of the key principles of ecologically sustainable development is that “decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations”. 267 POEO Act , s 147(1)(a) and (b). 268 As Pepper J stated in Director-General, Dept of Environment, Climate Change and Water v Forestry Commission of NSW [2011] NSWLEC 102 at [66]: “The harm to the environment must not only be considered in terms of actual harm, but must include the potential risk of harm” citing EPA v Waste Recycling & Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 per Preston CJ of the LEC at [145]–[147].