The NSW Land and Environment Court recently rejected a last-ditch challenge to the $800 million redevelopment of the former CUB site on Sydney's CBD fringe. The challenge, brought by Sydney law student Matthew Drake-Brockman, was funded by NSW Legal Aid and the Sydney City Council.
Mr Drake-Brockman instituted proceedings against the Planning Minister and the current owner of the site alleging that the development was not environmentally sustainable. He claimed procedural irregularities invalidated the environmental assessment, concept plan approval and future assessment determinations and that the Minister failed to take into account the principles of ecologically sustainable development in approving the redevelopment.
The second argument echoed successfully raised in a previous New South Wales case Gray v Minister for Planning that Centennial Coal's environmental assessment of the Anvil Hill coal mine was flawed because it did not address the impact of the mine on climate change.
Mr Drake-Brockman claimed that the redevelopment would increase climate change pollution by its energy use and by increasing the number of cars on the road. He argued that the Minister should have carried out a quantitative analysis of greenhouse gas emissions caused by the redevelopment. Furthermore, Mr Drake-Brockman argued that the re-development should be greener and use solar power, recycle water and sewerage and restrict car spaces.
The developers had argued that the redevelopment incorporated rain and stormwater collection for irrigation and toilet flushing, glazed and shaded windows to reduce air conditioning and met current environmental standards.
The court rejected the argument that the Minister was bound to consider only one aspect of the complex of matters that might be part of the concept of ecologically sustainable development. Rather, it said that principles of ecologically sustainable development applied in combination with the other objects of the Environmental Planning and Assessment Act 1979 (NSW) Act, namely, development and conservation of natural and artificial resources and the orderly and economic use of land.
The court said that the 'unifying theme of ecologically sustainable development explains the ubiquity of the concept in development decisions and discloses the level of generality at which it is capable of operating.' This recognises that ecologically sustainable development principles are not necessarily inconsistent with developments that increase greenhouse gas emissions. Rather, the principles can apply in many and varying ways.
Specifically, the court held that 'the idea that the Minister can only consider ecologically sustainable development by considering a quantitative analysis of greenhouse gas emissions finds no support in the statutory scheme enacted by Parliament.' The court noted that in granting the approval, the Minister had considered the principles of ecologically sustainable development, including the precautionary principle and inter-generational equity. In particular, it referred to the developer's commitments to ABGR and Green Star ratings. Accordingly, Mr. Drake-Brockman had not established any breach of Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW).
The significance of the decision is that the concept of ecologically sustainable development is both broad and can be characterised in different ways. While the court rejected the challenge, it is one of the first ripples of the coming wave of green litigation.
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