ESD and the Sustainable Planning Act 2009: Where is the Balance? (Part 1)

(Part 1) (see Part 2)

David Nicholls, Partner at HopgoodGanim Lawyers

Introduction

The subject for this conference session "ESD and the Sustainable Planning Act 2009 - Balance or Precaution?" implies that there may be a question as to whether the principle of "ecological sustainability", which is embedded in the statutory purpose of the Sustainable Planning Act 2009 (SPA)¹, has altered in some way. This paper examines that question.

In an early judgment² which considered the statutory purpose of the Integrated Planning Act 1997 (IPA)³, a submitter appellant asked the Planning and Environment Court to apply the "precautionary principle" which was one of the ways of advancing the IPA's statutory purpose⁴. The precautionary principle remains in the objects of the SPA in exactly the same form. In that case, His Honour Judge Robin QC examined a number of judgments of the New South Wales Land and Environment Court⁵, and an article written by His Honour Justice