Ecologically Sustainable Development and the Planning and Environment Act 1987

The objectives of the Planning and Environment Act 1987 (the Act) need to provide a sound foundation for land use planning and development in Victoria. While it cannot be said that the objectives contained in section 4 of the Act contain anything that is objectionable or no longer relevant, we consider that this important part of the Act requires a major overhaul to ensure that it provides a foundation for planning that is capable of delivering ecologically sustainable development (ESD).

This should be done not by just tweaking the current objectives, but instead by introducing much more detailed guidance and direction as to what ESD means and how it is intended to be implemented.

Legislation concerned with land use and land management should be based around modern concepts such as the principle of accountability and ESD principles such as the precautionary principle ¹⁾

This is not confined to conservation-oriented legislation. In fact, the contrary is true. Victorian legislation relating primarily to use and development has begun to include such principles. Inclusion of these principles in relevant Victorian Acts encourages more consistency in decision-making across related land use, planning and environmental legislation.

The principles of ESD are now widely recognised in Australia and overseas to be core components of government decision-making. The Victorian Government formally committed to incorporating ESD principles in land use regulation and decision-making in 1992 in the Intergovernmental Agreement on the Environment ²⁾:

1. The parties agree that the concept of ecologically sustainable development should be used by all levels of Government in the assessment of natural resources, land use decisions and approval processes.
2. The parties agree that it is the role of government to establish the policy, legislative and administrative framework to determine the permissibility of any land use, resource use or development proposal having regard to the appropriate, efficient and ecologically sustainable use of natural resources (including land, coastal and marine resources).

Despite this, ESD principles are not specifically set out anywhere in the Planning and Environment Act.

ESD is now commonly regarded to have four main elements: application of the precautionary principle; consideration of intergenerational equity; protection of biodiversity; and integration of long-term and short-term economic, environmental, social and equitable considerations into decision-making. The ‘polluter-pays’ principle and the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection are also recognised.

The principles of ecologically-sustainable development are included in recent legislation such as the Pipelines Act 2005, Sustainable Forests (Timber) Act 2004 and Mineral Resources (Sustainable Development) Act 1990. These Acts outline the elements of ESD and provide guidance on how they should be used in decision-making. Incorporation of these principles ensures that legislation is responsive to evolving environmental concerns, such as climate change. Similar ESD provisions must be included in the objectives of the Planning and Environment Act if the Act is to remain relevant and forward looking.

Source: Victorian Competition and Efficiency Commission, draft report Inquiry into Environmental Regulation in Victoria 2009. Once the Treasurer has released the final report to the public, it will be made available on the Commission's website.

While the current objectives of the Planning and Environment Act refer indirectly to ESD concepts, the full scope of ESD is not set out and there is no guidance on how the principles are to be used in decision-making. The planning framework recognises some of these concepts through the State Planning Policy Framework (SPPF) of the Victoria Planning Provisions but again, the reference is indirect and lacking in guidance. Clause 11.03-2 of the SPPF establishes that the Intergovernmental Agreement on the Environment forms part of the framework for decision-making concerning the environment.³⁾ ESD principles such as the precautionary principle are included in this national Agreement. Although the Agreement forms part of the planning framework for decision-making through its brief mention in the SPPF, clause 11.03-2 does not specifically refer to ESD or the precautionary principle, nor does it provide guidance on the weight to be given to the precautionary principle or how it is to be applied. These indirect references to ESD are not adequate to appropriately guide planners and decision-makers as to how ESD is to be incorporated into planning in Victoria. The Act must be amended to change this.

• DPBC - Victorian Planning Provisions

There is little analysis or discussion of ESD in VCAT decisions, reflecting the fact that despite the high level commitments to implement ESD, the Act is silent on the issue and the Victoria Planning Provisions contain very little specific direction to apply ESD concepts. Unsurprisingly the few cases in which ESD has been considered demonstrate varied and inconsistent approaches. For example, in Hasan v Moreland CC [2005] VCAT 1931 the Tribunal recognised the importance of sustainability, but stated that ESD conditions should not be imposed on permits where there is overlap with building regulations for similar requirements. The applicant in Jolin Nominees PL v Moreland CC [2006] VCAT 467 relied on the Hansen decision to argue that ESD conditions on its permit should be deleted. Although a number of cases after Hansen did result in ESD conditions being removed, the Tribunal in Jolin did not follow Hansen as the conditions were of a different nature to those in Hansen.

The Tribunal discussion in Jolin indicates that ESD principles are not being consistently used and applied in decision-making. Although the Tribunal recognised that “there is justification at all levels of the planning system for the imposition of objectives, strategies and (perhaps) permit conditions which incorporate best practice ESD principles” ⁴⁾, it also noted that “unless a council can show that an ESD-type condition has a nexus with a transparent council ESD strategy or guideline, the Tribunal would be reluctant to allow such a condition just for the sake of it.” ⁵⁾ As noted in Jolin not all councils have ESD strategies or guidelines and those that do apply differing levels and standards. ESD principles are therefore being developed and incorporated into decisions inconsistently across responsible authorities and planning authorities. It would clearly be preferable for ESD to be incorporated as a fundamental objective of the Act rather simply than relying on planning authorities to develop ESD strategies and guidelines.

The precautionary principle is an important adjunct to ESD. Once again, there is an absence of clear guidance in the Act and in the VPPs. In some cases, such as Gippsland Coastal Board VCAT can be seen to be trying to introduce some clarity about how pressing planning issues such as sea level rise should be addressed by drawing on the precautionary principle. In other cases councils and VCAT have also had difficulty in correctly applying the precautionary principle. For example, Rozen (on austlii)discussed the application of the precautionary principle in the context of contamination of water from septic tanks. At first instance the Council rejected a planning application on the basis of the precautionary principle. This was overturned at VCAT on the understanding that the precautionary principle did not apply as there was no substantial evidence as to the impacts, and any potential impact was not irreversible. On appeal to the Supreme Court the decision was overturned and remitted for hearing on the basis that the precautionary principle had not been properly applied.

Incorporating the precautionary principle in the legislation itself is long overdue. It is a striking fact and an indictment of the failure of the Victorian planning system to keep pace with national and international developments that the recent VPP amendment prompted by the revised Coastal Strategy is the first time that the precautionary principle has found its way into the regulatory framework for planning in Victoria. It needs to be incorporated in the Act.

ESD is not another factor to be weighed up against other economic or social factors to achieve some form of trade-off, as ESD already specifically incorporates those factors. The current requirement contained in the VPPs for conflicts in policy to be resolved in favour of “net community benefit and sustainable development” tends to lead decision-makers to approach their exercise of discretion as an exercise in determining acceptable tradeoffs. ESD should therefore be the framework within which planning decisions are made. This will not require all decisions made under the Act to put environmental considerations above economic or social considerations; it will simply mean that all three factors must be properly considered for short-term and long-term impacts and benefits.

As noted in the recent Victorian Competition and Efficiency Commission (VCEC) paper on environmental regulation in reference to ESD:

Effective and efficient regulatory processes should seek to achieve outcomes that are a ‘synthesis’ of economic, environmental and social objectives. Because the outcome is a synthesis that is qualitatively different from a simple ‘balance’ of considerations, this approach is intrinsically outcomes-focussed.

This is particularly relevant in the planning context where ‘net community benefit’ is usually interpreted as a process of balancing rather than an outcome of a process of synthesis.

ESD is central to modern planning and so should be specifically set out in the objectives of the Act. In addition the Act should be amended to require that all decisions made under the Act be consistent with ESD principles. The current objectives in the Act should remain, but a new section should be added (i.e. section 4A) which specifically refers to ecologically-sustainable development as an object of the Act and outlines the core elements of ESD. This provision could be similar to the ESD provision in the Mineral Resources (Sustainable Development) Act 1990. However the provision should state that all decisions made under the Act must be consistent with ESD principles. Merely requiring decision-makers to ‘have regard to’ ESD principles shows a fundamental misunderstanding of the intent and value of ESD in decision-making.

This type of approach has been recommended in the recent VCEC report which states:

The Victorian Government should amend the Victorian guide to regulation to acknowledge ESD and place it within the context of best practice regulatory principles and processes. It should consider opportunities for adapting and adopting the Commonwealth Government’s approach to incorporating ESD within a regulatory impact statement process. The Victorian Government and its agencies should also ensure they provide guidance on what ESD means in the context of specific environmental policy areas, at the level of implementation.⁶⁾

The use of ESD principles in decision-making has a considerable legal history and it is incorporated into other legislation and applied in other jurisdictions without controversy. Incorporation of ESD principles directly into the Act itself would give all interested parties a better understanding of principles that are already indirectly part of the decision-making framework. It would encourage councils to consider the relevance and application of ESD principles in each decision. It would also arguably encourage development of more consistent principles on how ESD should be applied in practice in Victoria. ⁷⁾

This article is based on the EDO's submission to the review of the Planning and Environment Act 1987, Modernising Victoria's Planning Act.