This edition of Impact deals with ecologically sustainable development (ESD). It considers the status of ESD in Australia and whether it is being achieved.
The authors who have contributed to this edition seem to agree that ESD is not yet a reality in Australia. Indeed, they argue that in order to realise ESD, it must be elevated beyond an academic construct of a set of legal principles and incorporated into the fabric on environmental laws so that achieving ESD is a legal requirement and the ultimate objective of environmental decision-making.
Making Sense of the Principles of Ecologically Sustainable Development Michael Power, Policy and Law Reform Lawyer, Environment Defender’s Office, Victoria
Michael makes a useful start on unravelling how we can ensure that ESD principles result in development that is actually sustainable. He identifies the problems with the way in which the ESD principles are currently included in Australian law and applied by decision-makers. He goes on to make a number of suggestions about how these problems can be overcome.
Trends in the Application of ESD in NSW Planning Kirsty Ruddock, Principal Solicitor, Environmental Defender’s Office NSW
Kirsty discusses the importance of planning law in achieving ESD and how ESD has been incorporated (or failed to be incorporated) into NSW planning decisions over the past five years. She casts a retrospective look over some key NSW cases which have sought to establish a legal requirement for decision makers to consider ESD when assessing planning proposals and discusses two cases currently before the Court which are using ESD arguments to challenge coal mine approvals. With a new State Government, NSW is undergoing significant planning reform and Kirsty provides a comprehensive overview of the latest incarnation of the NSW planning laws. She argues that it is imperative that the NSW planning system responds to the challenge of achieving ESD but concludes that there is still some way to go before it can be said that planning laws in NSW ensure that NSW is developed sustainably.
Treading Cautiously: How the NSW judiciary appear reluctant to apply the precautionary principle Danielle Scoins, Law Student, Australian National University
Danielle’s article focuses on one of the key principles of ESD - the precautionary principle. She looks at NSW cases in determining how the precautionary principle has been implemented in Australia. Her article reveals that the precautionary principle is not being consistently applied by the NSW judiciary and she attributes this to the inexact nature of the principle which does not dictate the fashion in which it should be applied. The NSW Courts have therefore been left to grapple with this problem and Danielle seeks to extract from these cases some common tenets to guide the application of the precautionary principle in the future.
Are We There Yet? The integration of ESD into environmental decision making Sue Higginson, Senior Solicitor, Environmental Defender’s Office, NSW
Sue Higginson argues that, if the goal is to integrate ESD into the development assessment process, we are simply not there yet. She uses climate change as a matter relevant to ESD to highlight how NSW laws do not yet sufficiently allow for ESD to be considered or achieved in planning decisions. In the absence of any express integration of climate change into planning law, several NSW cases have sought to use ESD as a vehicle for incorporating climate change considerations into planning decisions. While some progress has been made, Sue argues that when it comes to matters as deadly serious as climate change, the need for legislative reforms and policies that actually implement and enforce the principles of ESD is clearer than ever.
