29 November 2007

You must consider effect of climate change on your development, says Court

The latest NSW court decision on climate change, Walker v Minister for Planning [2007] NSWLEC 741, is important for two reasons:

• first, it confirms that the principles of ecologically sustainable development ("ESD") must be taken into account when approving concept plans under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW).
• secondly, it says that the effects of climate change upon a development need to be considered. Previous cases concerning climate change issues generally focused on the proposed development's potential to contribute to climate change.

The case concerned an application for concept approval of a proposed aged-care development on a coastal plain under Part 3A of the Act. Flooding is a major constraint on the development of the site. The Minister did not consider whether changed weather patterns, caused by climate change, would lead to an increased flood risk.

Judge Biscoe said that the Act requires a consent authority (in this case, the Minister) to have regard to the public interest when determining applications and the concept of the "public interest" is broad enough to encapsulate the principles of ESD. Climate change is a relevant matter to be considered when applying the principles of ESD. Increased flood risk caused by climate change is consequently a relevant matter.

There was no evidence that the Minister, in determining to approve the concept plan for the retirement village had considered the potential for increased flood risk to impact on the proposed development. The Court upheld the challenge to the concept approval and declared it to be invalid.

What should you do now?

An appeal is possible, so we might not have heard the last of this. In the meantime, whether your proposed development is under Part 3A or under Part 4 of the Act, you should not only look at its potential impact on climate change but also predicted climate change's effect on it.