EDO NSW assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.

The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.

It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.

In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.

The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.

The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Ms Walker then sought special leave to appeal to the High Court. The application was heard in March 2009. The High Court declined to grant leave on the basis that while there were valid arguments in her favour, they did not think those arguments would succeed if the appeal was heard by the High Court.

EDO NSW is grateful to barristers Matthew Baird and Greg Young for their assistance in this matter.

Judgment– Order on costs (29 November 2007)

Amended Notice of Appeal (3 April 2008)

Judgment – Appeal (24 September 2008)

Case summary – Appeal (24 September 2008)

Application for special leave to appeal (22 October 2008)

Judgment – Appeal – Order on costs (3 December 2008)