23 May 2013

NSW planning reforms: ESD and changes

by Brendan Bateman

Ecologically sustainable development has now been simplified to the concept of "sustainable development".

In addition to the more significant amendments we've already covered, there are a number of additional proposed changes to the NSW planning regime which warrant mention.

Changes to the offence provisions

The Planning Bill proposes to introduce three tiers of offences, similar to the regime that currently operates under the Protection of the Environment Operations Act.

Tier 1 offences, the most serious which result in, or are likely to result in, environmental harm or death or serious injury. The maximum penalty for corporations for such an offence will be $5million, and $1million for an individual. This is a significant increase on the current maximum penalty for a breach of the Environmental Planning and Assessment Act 1979 (EP&A Act) which is $1.1million.

Tier 2 offences involve less serious breaches and attract maximum penalties for corporations of $2 million and, in the case of an individual, $500,000.

Tier 3 offences which involve breaches of procedural or administrative character will attract maximum penalties of $1million for a corporation and $250,000 for an individual.

One notable omission from the Planning Bill is any provision regarding executive liability for offences of corporations. Unlike other primary environmental protection laws, such as the Protection of the Environment Operations Act 1997 or the Contaminated Land Management Act 1997, there is no provision which deems a director or executive of a corporation to have committed the same offence as the corporation in certain circumstances.

The Land and Environment Court will also be provided with a broader range of orders available to it to deal with criminal conduct. This includes orders for restoration of the environment, publication of orders or requiring attendance at a relevant training course.

In addition to enforcement of the Act for a criminal proceedings, there remains the right for any person to bring civil proceedings in the Land and Environment Court to remedy or restrain a breach of the Act. The equivalent provision in the EP&A Act, section 123, has been a principal means of enforcement of breaches of the Act, including decisions to approve development which has been used extensively by the community and interest groups to challenge large and contentious projects.

ESD remodelled

In a significant departure from the EP&A Act and other environmental protection legislation, the Planning Bill eschews the currently accepted definition of ecologically sustainable development (ESD) and, in particular, the principles of ESD such as intergenerational equity and the precautionary principle.

Considerable jurisprudence has grown up in recent years around these principles and how they are to be applied in the development assessment process. It remains to be seen whether that jurisprudence will continue to be relevant having regard to the manner in which the concept of sustainable development has been defined.

In essence, ESD has now been simplified to the concept of "sustainable development". That concept is expressed in the context of the objects of the Act as being achieved by the "integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development".

Rather than the specific ESD principles, there are now three broad but interdependent "pillars" underpinning the concept of sustainable development:

  • environment: protecting threatened species and habitats, using natural resources wisely and minimising, mitigating or addressing environmental impacts;
  • economic: promoting the development of the economy and the wellbeing of all communities by facilitating housing, business employment and other forms of activity and improving productivity; and
  • social: facilitating housing that meets the needs of the whole community, creating high quality build environment that promotes health of all communities and ensuring accessibility for services and employment opportunities.

Although subtle, the change in emphasis towards economic development and, in particular, housing, would suggest that the Government was intending to rebalance how sustainable development is seen in the context of development assessment and approval.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.