25 September 2008
Sydney, 25 September 2008: Decision-makers, local councils and project developers are on notice that failure to take into account long-term environmental risk factors - including climate change flood risk - in the planning and development approval process could leave their decisions open to future challenge as well as expose them to future litigation, a leading environmental lawyer has warned.
Clayton Utz partner Peter Briggs said a NSW Court of Appeal decision handed down yesterday has left the door open for future challenges under the NSW Environmental Planning and Assessment Act 1979 to project consents and approvals in the state which have not taken into account climate change impacts, even though the Minister's decision in this case was ultimately found to be valid.
Mr Briggs said the decision in Minister for Planning v Walker - which concerns a proposed coastal development at Sandon Point in NSW - overturned an earlier Land & Environment Court decision which had held that a Concept Plan under Part 3A was invalid because it failed to take into account the effect of climate change flood risk, including rising sea levels.
"While the Court of Appeal allowed the appeal against that decision, yesterday's decision still serves as a strong warning that failing to properly consider environmental risks such as climate change flood risk in making planning and development decisions could equate to a failure to consider the public interest - leaving the way open for future decisions to be challenged," Mr Briggs said.
"It is important to note that the Court described it as 'somewhat surprising and disturbing' that the Director-General's report did not address the precautionary principle and inter-generational equity, and has warned that ESD principles will need to be considered when any development applications are lodged in relation to the development."
Mr Briggs said it was critical that those involved in assessing planning and development proposals understood the potential implications of not adequately considering the impact of any long-term threats of serious or irreversible environmental damage, including climate change flood risk, which may be relevant to a project.
"Climate change is emerging as a major issue for decision-makers such as councils and other approval authorities. It is important that they understand the potential impacts of climate change on a proposed development, and appreciate that the risks can no longer be ignored in making long-term planning and development decisions.
Failure to do so can invalidate an approval, and could potentially expose the decision maker to future liability in negligence."
