Walker v Minister for Planning

COURT OR TRIBUNAL

New South Wales Land and Environment Court, Supreme Court of New South Wales - Court of Appeal

DATE FILED (OR FIRST HEARING DATE)

18/09/2007

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Flood risk

REVIEW TYPE

Judicial review

SUMMARY

Walker challenged the Planning Minister's approval of a concept plan for a residential subdivision and retirement development. The Minister had to consider the public interest. The Court found that ecologically sustainable development (ESD) and the heightened flood risk to the development as a result of climate change were part of the public interest. The Court held that the Minister failed to account for these implied mandatory considerations and as a result, the Minister's decision was invalid. The Court regarded climate change as a 'deadly serious issue' that 'presents a risk to the survival of the human race and other species' (at [161]). The Minister appealed to the Supreme Court. See also Kennedy v NSW Minister for Planning.

In the second judgment, the Court overturned L&E Court's decision to invalidate the Minister's decision, on the grounds that failing to consider one aspect of the public interest (ESD, etc) does not necessarily amount to a failure to consider the public interest as the Act has a number of objectives, of which ESD is but one. The Court held that ESD was not a mandatory consideration in this case, however, held that principles of ESD are likely to come to be seen as an element of public interest. The Court expressed surprise and found it 'disturbing' that the environmental impact assessment did not address the princniple of ESD and concluded that it would need to be addressed at the development approval stage. The Court also pointed out that because there is no objector appeal available at the development approval stage, it is even more important that the Minister consider ESD and failure to do so could be a failure to take into account the public interest.

CASE DOCUMENTS

Walker v Minister for Planning [2007] NSWLEC 741; 157 LGERA 124
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423