COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

AUSTRALIA

Australia - Greenhouse Effect, Precautionary Principle

GREENPEACE AUSTRALIA LTD v. REDBANK POWER COMPANY PTY. LTD. AND SINGLETON COUNCIL

LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 86 LGERA 143 (1994) PEARLMAN CJ.

Introduction

In March 1994 Singleton Council granted development consent to Redbank Power Company for the construction of a power station at Warkworth in the Hunter Valley. Greenpeace Australia objected pursuant to section 98 of the Environmental Planning and Assessment Act 1979 (NSW) which allows a third party objector the right of appeal against development consent.

Greenpeace's main argument was that the impact of air emissions from the power station would unacceptably exacerbate the greenhouse effect in the earth's atmosphere, and that the court should apply the precautionary principle of the National Environmental Protection Agency (NEPA) and refuse development consent for the project.

Legislative Framework

Section 98 Environmental Planning and Assessment Act 1979 (NSW).
Australian Intergovernmental Agreement on the Environment.
Australian National Greenhouse Response Strategy.
1992 United Nations Framework Convention on Climate Change.

Held

The court held that the development project would be allowed to proceed. The application of the precautionary principle mandates a cautious approach in evaluating the various factors to determine whether a development consent should be granted. This principle does not require, however, that the greenhouse effect issue be given precedence over all others.

The Framework Convention on Climate Change, the Intergovernmental Agreement on the Environment and the National Greenhouse Response Strategy outline policy objectives to address the problem of greenhouse gases, but they do not expressly prohibit any energy development which would emit such gases.

This power plant, a fluidised-bed combustion power plant, will produce energy for 100,000 homes. The power plant will use tailing as fuel, and thereby avoid the detrimental environmental effects of tailing disposal in dams, and it will produce lower emissions of sulphur dioxide and carbon dioxide, in comparison with the coal-fired power stations it is meant to displace. It will also reduce the amount of land sterilised by tailing dams, and convert a waste product into a usable one. The court stated that a review of these considerations demonstrates that the development application should be approved.

Cases Cited

Leatch v. National Parks & Wildlife Service (1993) 81 LGERA 270