environment

No duty of care to young people concerning future climate change: Federal Court turns off climate control…, for now

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Introduction: evolution of the law: climate change

To paraphrase Charles Darwin, adaptation is the key to survival. The law too is a living organism and needs to continually evolve in line with society to serve its intended purpose. Nowhere is this more pertinent than the law’s relationship with climate change which necessarily involves grappling with future unknown circumstances and unpredicted legal consequences.

In Environment v Sharma [2022] FCAFC 35 (“Sharma”), the Full Court of the Federal Court pumped the brakes on a climate change class action commenced by eight people aged between 13-17, who claimed to represent all Australians under the age of 18.  On appeal, the Full Court overturned Bromberg J’s declaration and unanimously rejected imposing a duty of care on the NSW Environment Minister to young Australians who may suffer harm from the global warming impacts associated with her powers.

What are the key issues for courts to consider?

Globally, recent cases are raising climate change issues and are challenging the traditional formulation of the law of negligence. Courts are being asked questions such as:

  • Do governments and corporations have a legal obligation to protect the population (including future generations) against the negative impacts of greenhouse gas emissions?
  • Is it possible to quantify the liability of governments and corporations in a claim concerning global warming?

Overseas courts led the charge. In May 2021, the District Court of the Hague made orders requiring Shell Plc to reduce its carbon emissions by 45% by the end of 2030 in Milieudefensie et al. v. Royal Dutch Shell C/09/571932.

Sharma: A landmark decision but overturned: change is imminent

In Sharma, Bromberg J delivered a landmark judgement. While granting approval to extend the Vickery Coal Project in New South Wales, his Honour declared that the Minister owed a duty of care to young Australians who may suffer harm from the global warming impacts associated with exercising ministerial powers under the Environment Protection and Biodiversity Conservations Act 1999 (Cth) (“Act”).

The effect of Bromberg J’s (albeit overturned) declaration is hard to understate. It would open the way for any number of companies or government entities to be held liable for damages in negligence in the future due to their contributions to global warming.

While the Full Court held that imposing such a duty on the Minister was a bridge to far, the decision foreshadows that changes to the legal landscape are imminent.

The reasons: why the Court was reluctant to impose a duty : Legal v Policy

The appellate judges reached a unanimous outcome but from different angles. The basis for their decisions can be classified as technical or policy.

From a technical perspective, the judges relied on issues of indeterminacy and causation. That is, any harm flowing from the Minister’s decision could not be considered reasonably foreseeable to result in material harm with respect to climate change outcomes. These technical  considerations are less susceptible to evolution.

By contrast, a number of judges, including Chief Justice Allsop held, based on a policy approach, that a private negligence claim is not a suitable forum for assessing the appropriate legal response to climate change. This logic was also used by the New Zealand Court of Appeal in Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 in a claim brought against a corporate in respect of greenhouse gas emissions.

By definition, this policy based approach is more susceptible to adaptation. In fact, despite agreeing with the technical arguments, Beach J applauded Bromberg J for his innovation in creating the novel duty of care but said it was for the High Court to adjust the traditional elements of negligence to adequately address climate change.

The future: what’s next?

We will know shortly (mid-April) whether the plaintiffs will seek leave to appeal to the High Court. Regardless, these issues will be again scrutinised in Pabai Pabai & Anor v Commonwealth of Australia (“Pabai”) which is currently before the Federal Court. That case concerns a claim by Torres Strait Islanders who assert that the Commonwealth owes them a duty of care to ensure that their traditional lands are not rendered uninhabitable due to rising sea levels.

It is only a matter of time before a negligence claim in relation to climate change comes before the High Court and the tort of negligence may be forced to adapt to its current climate. In this environment, It would be prudent for companies to consider their potential exposure in relation to climate change based claims.

 

~ with Christian Mennilli, Lawyer

Contamination Investigations – the Requirements for Your Next DA

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Consent authorities are becoming increasingly reluctant to grant development consent subject to a condition that investigations into the nature and extent of contamination can be carried out after, instead of before, the granting of consent. This type of condition is known as a ‘deferred commencement condition’.

There have been instances previously where consent authorities have granted development consent subject to a deferred commencement condition for the carrying out of contamination investigations. However, in the current consent climate consent authorities are less willing to grant a deferred commencement condition for this purpose. This is a reflection of a series of Court decisions which clarify the requirements in State Environmental Planning Policy No 55 – Remediation of Land (NSW) (SEPP 55), discussed below.

Determining the Nature and Extent of Contamination

An essential step in preparing a development application (DA) is gathering information about whether, and to what extent, a proposed development is on land that is contaminated, and the remediation that may be required to make the land suitable for development.

SEPP 55 and its related Planning Guidelines address the requirements for the form and substance of these investigations, which will vary from project to project depending on the likelihood and extent of contamination.

Where a development involves changing the use of land, a preliminary site investigation (PSI) must be prepared to be considered by the consent authority. Where a PSI indicates potential contamination and the site is unsuitable for its proposed use, a detailed site investigation (DSI) will also be required.

Preconditions

The aim of SEPP 55 is to promote the remediation of contaminated land in order to reduce the risk of harm to human health and the environment. Clause 7 sets out sequential and interrelated preconditions that a consent authority must be satisfied with before granting consent. These can be separated as follows:

Precondition 1: if contamination is or is likely to be present:

  1. Preparation of a PSI in accordance with the SEPP 55 guidelines;
  2. Preparation of a DSI when a PSI considers one is warranted;

Precondition 2:

  1. Is the land contaminated?
  2. If yes to (3), is the land suitable for the proposed development in its contaminated state? and
  3. If no to (4) and remediation is required to make the land suitable, will the land be remediated before it is used for the new purpose?

Where consent is granted but disregards the above preconditions, it will be invalid. A common example is where a consent authority grants consent based on an inadequate PSI. The repercussions of an invalid consent include the developer being redirected to prepare additional investigations or to have the consent challenged in Court, with added time and expense.

We note that there are plans to replace SEPP 55 with a new Remediation of Land SEPP which is expected to commence in 2020. The new SEPP will incorporate the requirements of the current clause 7, as well as the purposes of a PSI and DSI which are currently set out in the separate SEPP 55 guidelines as referenced in SEPP 55.

Consent Climate

The following cases establish that the nature and extent of contamination is a fundamental planning matter which should be determined before the granting of consent.

In Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230, the applicant alleged that where Council granted consent for a shopping centre subject to a deferred commencement condition for contamination investigations to be carried out at a later time, the consent was invalid because it failed to consider the preconditions in SEPP 55. The Court agreed with the applicant, finding that the council had insufficient information to assess the DA and therefore to grant consent.

In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40, the Court considered the validity of a consent granted for a marina development on a site once used for extractive activities. The consent was granted with a deferred commencement condition which provided that contamination investigations could be carried out at a later time. The Court found that the consent was invalid because the Panel should have been informed of the outcome of the investigations prior to granting consent.

In Lippmann Partnership Pty Ltd v Canterbury – Bankstown Council [2017] NSWLEC 1601, the Court found that the investigations must be prepared as part of the assessment of the DA and therefore before granting consent because:

  • without a DSI Council would fail to consider the nature and extent of contamination;
  • the suitability of a site is a key consideration in s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act);
  • the deferred commencement was not authorised by s 4.16(3) of the EPA Act; and
  • if a DSI is prepared after consent is granted, the substance of the DSI may require the consent to be altered.

Implications

It is important to keep up-to-date with the current consent climate in order to understand the requirements in relation to contaminated land.

With the changing consent climate and the imminent commencement of the new SEPP, approach us for advice on your next development to ensure that you are aware of the requirements for your DA.

Article by Caitlin Polo, Lawyer

 

Clean Up Australia – 29 Years of Caring for Our Environment

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Thirty years ago Clean Up Sydney Harbour was conceived by yachtsman Ian Kiernan. After its inaugural success, Clean Up Australia began its operations in 1990. Fast forward to 2019 and Clean Up Australia is Australia’s largest community event with a range of activities held around the country that serve to bring communities together to care for, and conserve our environment. Communities, youth groups, businesses and schools all pitch in to clear the landscape of rubbish and make Australia a healthier and more pristine environment in which to live. Hunt & Hunt has been proudly providing ongoing pro bono advice to Clean Up Australia for 12 years.

For Hunt & Hunt Partner Brett Hearnden, it has been an impressive 30 year journey:

“We never cease to be amazed at the hard work that goes on behind the scenes to make this event a success year after year. We wish the team at Clean Up Australia Day all the best for another productive weekend making our communities a cleaner and safer place to live. Hunt & Hunt is honoured to once again be the pro bono legal provider for this event.”

Clean Up Australia Day takes place this Sunday 3 March 2019. There are still opportunities to get involved if you think you might be able to spare some time to help in your local area.