Local Gov & Planning Law

The debates surrounding the nature of the ‘environmental problem’ and the processes to tackle it strike at the heart of modern philosophy and public policy. Contemporary environmental agenda seeks to balance economic and social progress with a concern for the environment and its finite resources. Concessions between sustainability and development was initially recognised by the international community, and most famously defined by the Brundtland Report (Our Common Future) in 1987:

“ Sustainable development is development that meets the needs of the present

without compromising the ability of future generations to meet their own needs.”

Australia’s national environmental policy on sustainable development reflects the influences of such international instruments. Unique to the Australian environmental landscape is the concept of ‘ecologically sustainable development’ (ESD) that has developed as a result of Australia’s international obligations. Domestically, ESD has become the most important legislated criteria for environmental management, both as an object of legislation and as consideration for environmental decision-making. The prospect of incorporating ESD as the overarching principle of NSW planning legislation has been received with ambivalence. Although critics argue that ESD principles reveal little about transferring concepts into practical action, ESD elevated to the overarching object of legislation can transform aspirational statements to a functional legal concept. An operative legal ESD agenda will close the demarcation between environmental imperatives and economical outcomes with the aid of supporting mechanisms to achieve such objectives.

ESD: Context in NSW Planning System

There has been considerable support from local councils and planning authorities to have an ESD centred regime on the basis of any planning decision. Australia as a signatory to the United Nations Conference on Environment and Development (UNCED) (with the influence of the Rio Agenda and Agenda 21) has adopted international environmental obligations and has ratified ESD principles into legislation. Domestic initiatives such as the Inter-Governmental Agreement on the Environment and the National Strategy on Ecologically Sustainable Development has articulated the definition of ESD as follows:

“ESD requires the effective integration of economic and environmental considerations in decision-making process. ESD can be achieved through the implementation of the following principles and programs…the precautionary principle, intergenerational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing and mechanisms.”

This definition has been adhered to in several NSW legislations such as section 6(2) of the Protection of the Environment Administration Act 1991 (PEA) and section 4(1) of the Environmental Planning and Assessment Act 1979 (EPAA). Whilst the definition is prescribed in key planning legislation, it dictates no formal implementation strategies for ESD principles. Rather, ESD in the context of legislation requires councils to “have regard to the principles of ESD” or to “encourage ESD” in carrying out