Sustainability and planning law in Australia: achievements and challenges

AuthorPeter John Williams, Angelique Mary Williams
PositionFaculty of the Built Environment, University of New South Wales, Sydney, Australia
Pages226-242
Sustainability and planning law
in Australia: achievements
and challenges
Peter John Williams
Faculty of the Built Environment, University of New South Wales, Sydney,
Australia, and
Angelique Mary Williams
Lindsay Taylor Lawyers, Sydney, Australia
Abstract
Purpose – Since 1992, all levels of government in Australia have pursued a policy of ecologically
sustainable development (ESD). Crafted in response to the World Commission on Environment and
Development 1987 report Our Common Future (the Brundtland Report), the principles contained in the
Australian Government’s National Strategy for Ecologically Sustainable Development have been
progressively implemented at the national, state and local levels of government. The purpose of this
paper is not only to track the implementation of these principles, through both policy and law in
Australia, but also to highlight recent challenges to the concept of ESD using the state of New South
Wales (NSW) as a case study.
Design/methodology/approach – Beginning with a description of the Australian concept of ESD,
this paper rst examines the implementation of ESD through both policy and legislation at the national
level. The state of NSW is then selected for more detailed assessment, with examples of key State
government legislation and court decisions considered. Equal emphasis is placed on both the
achievements in ESD policy development and implementation through legislation, statutory planning
procedures and litigation, as well as the challenges that have confronted the pursuit of ESD in NSW.
Findings – Since its introduction in 1992, the concept of ESD has matured into a key guiding principle
for development and environmental decision-making in Australia. However, in recent years, ESD has
been the target of signicant challenge by some areas of government. Noteworthy among these
challenges has been a failed attempt by the NSW Government to introduce new planning legislation
which sought to replace ESD with the arguably weaker concept of “sustainable development”.
Apparent from this episode is strong community and institutional support for robust sustainability
provisions “manifested through ESD” within that State’s statutory planning system.
Originality/value – This paper provides an overview of the implementation of ESD in Australia
within both a broader international context of sustainable development and specic instances of
domestic interpretation and application. It extends this analysis by examining recent public policy
attempts to reposition sustainability in the context of statutory planning system reform in NSW.
Keywords Sustainability, Neoliberalism, Ecologically sustainable development, Judicial
interpretation, Planning legislation, Planning system reform
Paper type Case study
1. Introduction
In 1992, the Australian Government published its National Strategy for Ecologically
Sustainable Development (NSESD) (Commonwealth of Australia, 1992), a policy
document representing Australia’s response to the Brundtland Report, Our Common
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1756-1450.htm
IJLBE
8,3
226
Received 24 June 2016
Accepted 19 August 2016
InternationalJournal of Law in the
BuiltEnvironment
Vol.8 No. 3, 2016
pp.226-242
©Emerald Group Publishing Limited
1756-1450
DOI 10.1108/IJLBE-06-2016-0008
Future (United Nations World Commission on Environment and Development, 1987).
Arguably, Australia has pursued a fundamentally different model for the interpretation
and implementation of sustainable development which involved a modication of that
used in the Brundtland Report. The divergence stems from the adoption of ecologically
sustainable development (ESD) and the changes in conceptual focus which
consequently emerged from this model.
In accordance with Australia’s federal system of government, it was envisaged that
the concept of “ecologically sustainable development” would progressively be
implemented, through both policy and law, at the national, state and local levels of
government. This paper rst examines the implementation of the “principles and
programs” of ESD through both policy and legislation at the national (Commonwealth)
level. Second, it traces the adoption of ESD at state level, using the State of New South
Wales (NSW) as a case study. Third, it considers an attempt to retreat from ESD as part
of recent statutory planning system reform in NSW, manifested in the formulation of a
Planning Bill in 2013 to replace existing planning legislation. This bill lapsed at the end
of 2013, when it failed to be passed by the NSW Parliament.
Replacing the uniquely Australian statutory and policy formulation of ESD, the
Planning Bill 2013 adopted the broader concept of sustainable development. With the
entrenched institutionalisation of ESD and its active implementation in NSW forming a
contextual backdrop, this paper examines the potential implications of the Planning
Bill’s proposed conceptual change from ESD to sustainable development. The paper,
thus, examines how ESD has been implemented and interpreted in NSW and what
changes might have occurred under a new Planning Act. Signicantly, with the failure
of the Planning Bill the NSW Government has instead adopted the approach of a series
of amendments to the existing planning legislation and has emphasised that, in
response to strong stakeholder opposition, it will not replace ESD with sustainable
development as part of these statutory changes.
2. Conceptual framework, hypothesis and methodology
From a conceptual perspective, this article examines the statutory expression of
sustainable development in the NSW Planning Bill and argues that it represents a
signicant departure from the “traditional” Australian ESD framework for
environmental policy. Broadly, this change of focus can be attributed to a general
neoliberal reform process confronting planning systems (including NSW). In particular,
it is contended that the proposed planning legislation alters (indeed removes) ESD
meaning that any express reference to an integrated approach for the purpose of
achieving development that is ecologically sustainable is deleted. As such, this new
conceptual framework ignores the necessary integration of economic, environmental
and social considerations in decision-making so as to encourage development that is
more broadly sustainable.
Pertinently, considerable criticism was directed in stakeholder submissions on the
Planning Bill towards the signicant change in emphasis or approach taken by the NSW
government by its adoption of sustainable development. Specically, the problem
statement examined here is the argument that, as a consequence of this envisaged
change, the depth of environmental analysis of the impact of planning proposals and
projects in NSW would be diminished and economic considerations enhanced, under the
proposed new planning legislation. To this end, the methodology adopted here is to rst
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Sustainability
and planning
law

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