On first blush you might ask what the case of Gray vs. The Minister for Planning and Taralga Landscape Guardians vs. The Minister for Planning have in common, other than the reference to the Minister. Answer: ecologically sustainable development (ESD).

ESD has been a sleeper issue in New South Wales (NSW) for five years and it was not until these two cases in the NSW Land and Environment Court that its considerations have come to such prominence in legal circles, particularly in relation to greenhouse gas emissions.

In November 2006, environmental activist Peter Gray argued that the Director-General of Planning’s environmental impact assessment for the proposed Anvil Hill coal mine in the Hunter Valley did not adequately address all environmental requirements, especially the release of greenhouse gases from coal being combusted by potential customers.

Gray argued the assessment did not satisfy the requirement under NSW planning laws as there had been a failure to consider the principles of ESD.

In the Taralga case, the Guardians residents group opposed a 69-turbine wind farm north of Goulburn. But in approving it last month, the court again looked at the application of ESD to the project.

Both cases highlight a significant issue in Australia – our policy response to climate change. In that regard the Land and Environment Court has given an early signal of what is going to be the policy framework imposed on future infrastructure development, whether public or private.

The take-away message is that developers are going to have to take into account the principles of ESD, particularly in NSW, and increasingly this principle will become relevant in other states.

While both these cases happen to relate to energy infrastructure, it equally applies to the environment impact assessment of other new projects, such as water, road and rail, masterplanned residential developments and port expansions. Would the increase in carbon emissions from more frequent shipping movements, in relation to a seaport project for example, have to be taken into account, one wonders?


In both Gray and Taralga, the judges referred to the ‘soft’ law that exists under the UN Framework Convention on Climate Change and noted the release of greenhouse gases in Australia would contribute to global warming, which would impact on our environment, economy and society.

One ESD principle is inter-generational equity, which is about extending the forward horizon and considering indirect impacts. The significance of the Gray judgment is that Justice Nicola Pain was satisfied there was a real and sufficient link between the indirect impact of the mine project, namely the downstream emission of greenhouse gases, and the need for that impact to be internalized as a cost in assessing the economic viability of the project.

Both cases also took into account the latest economic thinking about the true cost of carbon emissions; in one case the indirect costs of a coal mine and in the other the economic viability of a wind farm if carbon is costed, but also if it is not.

NSW Planning Minister Frank Sartor must now decide how to take a carbon emissions price into account in the Anvill Hill development in a way that reflects the real cost on the environment.

Then there is the recent decision in Queensland Conservation Council v Xstrata. The Queensland Land and Resources Tribunal recommended expansion of a coal mine without conditions requiring the abatement or offsetting of even direct greenhouse gas emissions, and in doing so rejected a casual link between the emissions profile of the future mine and harm to the environment.

The tribunal, unlike the NSW Land & Environment Court, discounted both the Stern Review and the latest report of the Intergovernmental Panel on Climate Change as having persuasive weight towards the ultimate decision of whether conditions regulating greenhouse gas emissions should be applied.

This has introduced an element of confusion for businesses, which are looking for regulatory certainty in assessing future projects. However, these proceedings again point to environmental decision-making processes being challenged on climate change grounds.

Business has given a clear message to government that an effective and transparent administrative framework is needed to provide increased predictability, reduce costs and ensure environmental integrity.

Guidelines, principles and best practice notes are needed so ESD does not become a roadblock as major projects are developed in the next few years in response to the challenge of climate change.

P.S. This piece turned up in my e-mail. I have no idea where it came from so I must give attribution to the folk who compiled it but did not append their names.