LEGAL CASE NOTES
The importance of sustainable development should not be overlooked and the cases below provide an insight into the increasing relevance of sustainable development and the recognition of the same in our Australian Courts system.
CARSTENS V PITTWATER COUNCIL [1999] NSWLEC 249; (1999) 111 LGERA 1 In Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 (Carstens) the applicant appealed to a judge of the Land and Environment Court in respect of a decision not to approve a development application for a ‘dwelling house and associated works’. This case considered brings into light whether or not the approval of the certain development application would present a significant impact upon a threatened species or population or an endangered ecological community and if so, whether or not they should be approved. Lloyd J held (at 74) in this case that: “it is not an irrelevant consideration for the decision-maker to take into account a matter relating to the objects of the Act. One of those objects is to encourage ecologically sustainable development (s 5(a)(vii)). Moreover, one of the considerations expressly mentioned in s 79C(1) is “(e) the public interest”. In my opinion it is in the public interest, in determining a development application, to give effect to the objects of the Act. For these reasons I do not accept the submission that the Commissioner erred in holding that the principles of ESD must be a factor in the consideration of a combined development application and construction certificate”.
The comments were made by Lloyd J when determining whether or not the
Commissioner whom made the decision erred in law by holding that section 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW) and the principle of ecologically sustainable development therein were not relevant to his consideration of the development application.
BGP PROPERTIES PTY LTD V LAKE MACQUARIE CITY COUNCIL [2004] NSWLEC 399; (2004) 138 LGERA 237
“DEVELOPMENT THAT MEETS THE NEEDS OF THE PRESENT WITHOUT COMPROMISING THE FUTURE OF GENERATIONS TO MEET THEIR OWN NEEDS.”
In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 (BGP Properties), the New South Wales Land and Environment Court decided what regard, if any, should a consent authority, pursuant to Section 4 of the Environmental Planning and Assessment Act 1979 (NSW), give to the principles of ecologically sustainable development. In this case, the applicant appealed to the Court in respect of a refusal of an application made by the local council to subdivide land owned by the applicant into 48 lots. The applicant’s intention was to use the lots for industrial land and storage upon approval of the application, however, the land was found to home a threatened ecological community and further a threatened species of plant. When considering the concept of the precautionary principle at 110, McClellan CJ referred to Talbot J’s views in Nicholls v Director-General of National Parks and Wildlife & Ors (1994) 84 LGERA 397, whereby Talbot J was “apprehensive about the role of the precautionary principle in environmental decisions…describing it as being “framed appropriately for the purpose of a political aspiration.’ The Precautionary Principle has been defined in, amongst others, section 6(2) (a) of the Protection of the Environment
THE BUILDING ECONOMIST - JUNE 2017 - 37