MONOGRAPH 40 volume 1

35 Research monograph 40 1. Introduction Environmental standards are cemented in place through environmental planning instruments, regulatory permits and licences, and land use controls and prohibitions. The provisions of environmental planning instruments are legally binding on both government and developers. 291 As Preston CJ of the LEC stated in Telstra Corp Ltd v Hornsby Shire Council , 292 when a Class 1 appeal was brought pursuant to s 97(1) of the EPA Act : 293 Ecologically sustainable development, in its most basic formulation, is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”: World Commission on Environment and Development, Our Common Future , Oxford, Oxford University Press 1987 at p 44 (also known as the Brundtland Report ) … … The principles of ecologically sustainable development are to be applied when decisions are being made under any legislative enactment or instrument which adopts the principles … 294 The [ EPA Act ] is one such legislative enactment. It expressly states that one of the objects of the [ EPA Act ] is to encourage ecologically sustainable development: s 5(a)(vii). The Act defines ecologically sustainable development as having the same meaning as it has in s 6(2) of the Protection of the Environment Administration Act 1991. The LEC has held that, even where provisions of the EPA Act do not expressly refer to ecologically sustainable development, government and regulatory decision makers need to embrace the principles of ecologically sustainable development under the broader doctrine of “the public interest”. 295 Notably, there is a statutory obligation in s 79C(1)(e) of the EPA Act to consider the public interest. Preston CJ of the LEC made it clear in Telstra , that: The consideration of the public interest is ample enough, having regard to the subject matter, scope and purpose of the [ EPA Act ], to embrace ecologically sustainable development. 296 With regard to the judicial view that a consent authority must have due regard to ESD principles, Hodgson JA, in Minister for Planning v Walker , hypothesised on the likely outcome of an appeal, should the LEC have identified issues relevant to the principles of ESD in a s 79C decision, but declined to have regard to those principles: that would be an error of law that could support an appeal to this Court. If the Land and Environment Court did not have regard to the principles of ESD because it did not consider that issues relevant to those principles arose, when on a correct view such issues did arise, then this would be at least an error of fact, if not an error of law. 297 291 Environmental Defenders Office NSW, above n 286, p 9. 292 (2006) 67 NSWLR 256. This was an appeal where an applicant was dissatisfied with the determination of a consent authority with respect to the applicant’s development application. 293 ibid at [108], [121], [122]. 294 ibid at [121] citing Murrumbidgee Ground-Water Preservation Assoc v Minister for Natural Resources [2004] NSWLEC 122 per McClellan (then) CJ of the LEC at [178] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 per Preston CJ of the LEC at [57]. 295 In Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224, Hodgson JA opined at [39]: it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that, in my opinion, it goes without saying. Any attempt to exercise powers in which a Minister did not have regard to the public interest could not, in my opinion, be a bona fide attempt to exercise his or her powers. [Campbell JA agreeing; Bell JA preferring not to express a view.] In Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17, Biscoe J had to consider whether a development consent was invalid because the consent authority (the local council) failed to take into account principles of ecologically sustainable development, in particular, the effect of climate change induced coastal erosion on a beachfront development. 296 Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 per Preston CJ of the LEC at [123]. Concerning judicial decisions being made under any legislative enactment or instrument which adopts the principles, Preston CJ of the LEC at [121] cited Murrumbidgee Ground-Water Preservation Assoc v Minister for Natural Resources [2004] NSWLEC 122 per McClellan (then) CJ of the LEC at [178] and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 per Preston CJ of the LEC at [57]. On consent authorities in relevant cases having regard to the principles of ecologically sustainable development, his Honour at [124] cited Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 per Lloyd J at 25; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 per McClellan (then) CJ of the LEC at [113]; and, Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 per Talbot J at [54]. 297 (2008) 161 LGERA 423; [2008] NSWCA 224 at [43]. Preston CJ of the LEC provides a detailed discussion of six highlighted ESD principles in Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 at [109]–[119].