Castledine Gregory Law and Mediation

Tread Cautiously – The Precautionary Principle in Planning Decisions

Content

Introduction

 

A recent decision of the Supreme Court of WA sheds some light on the role of the precautionary principle in planning decisions. The decision is Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279.

 

Background

 

Wattleup and another party (‘Wattleup’) sought approval under the Planning and Development Act (‘PD Act’) from the Western Australian Planning Commission (‘WAPC’) for the subdivision of approximately 10.8 ha of land in Hammond Park, which is located near to the Alcoa refinery.

 

The Minister for Planning ‘called in’ the application under s.246(2) of the PD Act on the basis that the applications for review raised issues of State or regional importance. The Minister directed the SAT to hear the applications and without determining them, refer them with recommendations to the Minister for determination. The SAT gave leave to Alcoa of Australia to intervene in the proceedings and heard evidence over 8 days principally around the health and amenity issues of dust affecting the proposed residential subdivision from adjoining land occupied by Alcoa.

 

The SAT published and delivered its report on 21 November 2014 (‘2014 Report’) recommending the applications for review be dismissed and the subdivision approval refused. Wattleup commenced proceedings for judicial review of the report on the grounds that the SAT took into account irrelevant considerations and therefore erred in law.

 

Supreme Court decision

 

The Supreme Court dismissed all of Wattleup’s grounds for review. Wattleup’s grounds included that the SAT, in concluding that the proposed subdivision was not acceptable in relation to health and amenity impacts of dust (and therefore was not consistent with the applicable planning framework) erred in law by taking into account the precautionary principle as an irrelevant consideration, or alternatively, misdirected itself in applying the principle.

 

The ‘precautionary principle’ is an approach to guide both public and private development originally found in the 1992 Intergovernmental Agreement on Environment. The principle provides that where there are threats of serious of irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. Further all decisions should be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment and an assessment of the risk-weighted consequences of various options.

 

Upon an analysis of the subject matter, scope and purpose of the PD Act Chaney J found that there is nothing in the PD Act which expressly excludes consideration of the precautionary principle. Further he found that as section 3(1)(c) of the PD Act states that a purpose of the PD Act is to ‘promote the sustainable use and development of land in the State’ any such analysis includes consideration of environmental factors. Chaney J stated that this view is reinforced by the apparent importance of environmental considerations to local planning schemes and State planning policies. Chaney J concluded that the SAT did not act in error by having regard to the precautionary principle and did not err in how it applied the principle to the facts of the case.

 

Chaney J reaffirmed that the precautionary principle is not a rule of law (therefore requiring refusal of the application) but one of the factors to be considered where a decision-maker is deciding how to proceed where it is assumed there will be serious or irreversible environmental damage arising from an action.

 

In dismissing Wattleup’s application Chaney J affirmed that the correct application of the precautionary principle was to apply it when balancing planning considerations and considering the matter in the circumstances of the case.

 

Wattleup also argued that the SAT erred in law by failing to consider whether compliance with proposed draft conditions requiring notification of the dust risk on land titles was a proportionate response to the risk to health and welfare from dust. Chaney J noted that whilst the proposed conditions on the land title notified potential residents of the risk, this did not reduce the chances of such risk manifesting and therefore did not make that risk any more acceptable.

 

Wattleup also challenged the conclusion within the 2014 Report that the proposed subdivision would set an adverse planning precedent. On this issue Chaney J stated that an adverse planning precedent is a relevant consideration, even in circumstances where the application itself is unobjectionable but where there is sufficient probability that there will be further applications for similar developments  which in their totality, would bring about an objectionable planning outcome.

 

Relevance to Local Government decisions

 

  • The decision clearly establishes that the precautionary principle is a relevant consideration for the purposes of assessing a development application under the PD Act.

 

  • A purpose of the PD Act is to ‘promote the sustainable use and development of land in the State’ and the consideration as to the sustainable use of land invites the consideration of environmental factors.

 

  • The precautionary principle is to be taken into account in situations where it is assumed there will be serious or irreversible environmental damage and there is scientific uncertainty as to the nature and scope of the threat.

 

  • The precautionary principle is a factor to be considered when balancing the planning considerations and wider circumstances of a development application.

 

 

Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.

 

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