- Decisions to classify land as being ‘at risk’ of environmental hazards are often challenged on the basis the science is not certain or the constraint is disproportionate to the predicted risk.
- However, recent NSW decisions suggest a willingness on the part of the courts to support risk-based decision making, even with all the uncertainties and imperfections that entails.
For many of us, a combination of unprecedented events in 2020 catalysed a shifting of attitudes and changing of priorities. Australians experienced extended periods of extreme weather, catastrophic bushfires and enormous losses of biodiversity. The destruction of caves inhabited for millennia at Juukan Gorge prompted long overdue recognition of our shared history, and the global pandemic has, and is still, forcing reconsideration of how and where we work. Despite all this, 2020 gave us useful insights into our future world, changing the boundaries of what we consider ‘normal’ or reasonably foreseeable conditions. The lessons for decision makers required to assess long term projects should be profound. Embedded in environmental and planning law are mechanisms that allow for decision making in a less predictable world and in NSW, the courts have shown a willingness to support risk-based decision making.
Planning for future risks
Planning for future risk is necessarily an imprecise task. Whilst we may accept that sea level rise will occur and that extreme weather events will become more frequent, we cannot today predict precisely when, where and how these will eventuate. Decisions to classify land as being ‘at risk’ of environmental hazards such as flooding, bushfire or coastal erosion and the imposition of planning controls can be challenged (often by landowners or developers) on the basis the science is not certain or that the constraint is disproportionate to the predicted risk.
In Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2)  NSWLEC 202, local residents challenged the making and certification of a Coastal Zone Management Plan (‘CZMP’). In essence, they claimed that there was no rational or proper basis for Council and the Minister preparing, adopting and certifying the CZMP and its underlying assessment of coastal hazards. In dismissing the appeal, the Court reinforced:
- Whether the Minister or Council made an incorrect decision, or one that lacked merit, is irrelevant except where it can be established that the relevant decision-maker made a legal error which was ‘jurisdictional’. The relevant decisions were considered not reviewable, except potentially on the basis of unreasonableness.
- Demonstrating that a decision is so unreasonable that it is unlawful is extremely difficult, requiring the applicant to establish that the decision ‘lacked an evident and intelligible justification’ or is contrary to the ‘overwhelming weight of the material’.
In response to the residents’ claim that Council had not prepared the CZMP strictly in accordance with the relevant government guideline, the Court identified that:
- there is a distinction between ‘in accordance with’ and ‘in compliance with’;
- the guideline did not impose mandatory requirements; and
- in any event the CZMP met its requirements.
Similarly, Council’s adopted risk assessment methodology which involved an analysis of the consequences of an event as well as its likelihood, rather than focussing solely on its probability was, while complex, not legally flawed. Inaccuracies in a table summarising information addressed in detail elsewhere in the CZMP were also not considered determinative.