Gray v The Minister for Planning and Ors [2006] NSWLEC 720

The applicant, Peter Gray, challenged the validity of the decision by the Director- General (DG) of Planning NSW to accept for public exhibition the environmental assessment for the proposed Anvil Hill coal mine on the grounds that it did not contain a detailed greenhouse gas assessment. Justice Payne of the NSW Land and Environment Court found in favour of the applicant, but did not go so far as to strike down the environmental assessment.

While an assessment of greenhouse gas emissions resulting from the burning of coal proposed to be mined form Anvil Hill was central the applicant’s argument, the judgement has implications for all development approvals under Part 3A of the Environmental Planning and Assessment Act 1979 (EPAA).

The case was brought before amendments to the EPAA were introduced by the Environmental Planning Legislation Amendment Bill 2006 (EPLAB). However, the judgment appears to limit the impacts of the particular amendment.

• Pane J found that due to the nature of the projects likely to come under Part 3A of the Environmental Planning and Assessment Act 1979 (EPAA), environmental assessments by a proponent are required (par 70).
• The content of environmental assessments under this Part are however subject to the discretion of the DG in establishing the Environmental Assessment Requirements (EAR). The environmental assessment must comply with the EAR before the DG accepts the assessment for public exhibition (71).
• There are no specific requirements identified for the contents of an environmental assessment and no trigger specified for when it is required in terms of the level of impact on the environment. Part 3A is unlike Pt 5 of the EP&A Act in this regard.
• No guidelines have been published by the Minister under s 75F, and apart from the EAR specified by the Director-General there are no other provisions concerning the contents of the environmental assessment. Nor are there any requirements for the content of the EAR to be specified by the Director-General, these are wholly within the discretion of the Director-General. Further s 75H(2) states that the Director-General may consider if the environmental assessment adequately addresses the EAR.
• Therefore, there is no legal “test” imposed on the Director-General in forming his view on the adequacy of a proponent’s environmental assessment. (82)
• Payne. J., however, found that the DG must exercise his broad discretion in accordance with the objects of the Act which includes the encouragement of ESD principles, and that the failure to take into account ESD principles in relation to the decision by the Director-General that an environmental assessment is adequate is a decision which may give rise to invalidity - s 75X(5) does not prevent this challenge (143). Although ESD principles do not override all other considerations, the ESD principles in their entirety are to be applied so that the information can be considered by the Director-General and ultimately the Minister.
• These principles are referred to in the objects in s 5(a)(vii) of the EP&A Act and are defined in s 6(2) of the Protection of the Environment Administration Act 1991 (PEA Act) as follows:

(2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

(c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as:
(i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

• The relevant amendments to the EPAA introduced by the Environmental Planning Legislation Amendment Bill 2006 (EPLAB) mean that the Minister can now approve a development application under Part 3A whether or not the environmental assessment complies with the EAR of the DG.
• However, the essence of the decision in Gray is that ESD principles are now mandatory considerations for the DG of Planning when accepting an environmental assessment for public exhibition under Part 3A.
• As Payne J found that environmental assessments are required for developments under Part 3A, and while the Minister can now approve a development under 3A without having regard to an environmental assessment that complies with the EAR, an environmental assessment may be found invalid unless the DG exercise his broad discretion in accordance with the objects of the Act which includes the encouragement of ESD principles.
• This now impose a burden on the DG to apply ESD principles to the EAR of an environmental assessment, and despite the amendments under the EPLAB, the assessment must comply with these principles. 12. Under s 75F. (1), the Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements. These guidelines would have to accord with the Judgment in Gray. In doing so, the Minister would avoid confusion and assure confidence in the approval process under Part 3A.