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Tough going in Australian courts for environmental campaigners: judges take limited view of scope for review of administrative decisions

Posted by gmarkets on 11 October, 2007

According to Marcus Priest, in Australia climate change litigation had been limited to planning matters and there had been no nuisance or negligence claims, reported The Australian Financial Review (5/10/2007, p. 59).

Court decisions limit plaintiffs’ scope: Cases since the NSW Land and Environment Court decision in the Anvil Hill project had shown that it was still difficult to overturn a planning decision on climate change grounds. “The Australian courts are developing a jurisprudence as to the impacts of particular developments and activities on the global phenomenon of climate change,” Freehills partner John Taberner told The Australian Financial Review. “Under that emerging jurisprudence, there is a limited scope for plaintiffs to obtain review of administrative decisions.”

Judges take conservative approach: The concerns of Justice Jenkins were echoed by Federal Court judge Margaret Stone when campaigners against the Anvil Hill mine claimed the federal government had failed to properly assess the adverse impact of greenhouse gas emissions arising from the proposed mine. “Whether or not, in terms of greenhouse gas emissions, this approach would materially alter the assessment of the Anvil Hill project, I have difficulty in conceiving how one would go about assessing a proposed action,” Justice Stone said.

EPA does not make sustainable development overriding consideration: Similarly, in rejecting a challenge to the development of the old Carlton United Brewery in inner Sydney, the NSW Land and Environment Court said NSW planning legislation did not require any particular form of quantitative assessment of greenhouse gas emissions. In that case, the plaintiff claimed, the government had failed to take proper account of the greenhouse gas emissions that would be generated by the development. “In enacting the EPA Act, parliament did not subordinate all other considerations to ecologically sustainable development,” judge Jayne Jagot said.

Ironic win for climate change: The most promising case for environment campaigners was a decision by NSW Land and Environment Court chief judge Brian Preston. Ironically, this was a challenge by a group objecting to the construction of a wind farm and the judge referred to recent reports on climate change by the Intergovernmental Panel on Climate Change and UK economist Nicholas Stern in rejecting the objection.

The Australian Financial Review, 5/10/2007, p. 59

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