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Port Stephens Pearls Pty Limited v. Minister for Infrastructure and Planning

Country/Territory
Australia
Type of court
Others
Date
Aug 15, 2005
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Talbot
Reference number
NSWLEC 426
Language
English
Subject
Sea
Keyword
Monitoring Precautionary principle Marine area
Abstract
The subject of these proceedings was a development application lodged with the Minister for Infrastructure and Planning by Port Stephens Pearls Pty Limited. The development application sought consent to establish a pearl farm in Port Stephens using sub-surface longlines. The development application was refused for the following reasons: a. That the sensitivity of both the development and the receiving environment and the implications of the proposal for the establishment of a Marine Park in the waters of Port Stephens warranted that no additional level of environmental risk could be tolerated. b. That the ongoing risks associated with the proposal could not be eliminated with any certainty; and c. Given the above and the level of community opposition to the proposal it was not in the public interest. The objectors were generally critical of the level of uncertainty and doubt regarding environmental impacts and they were concerned about a potentially severe impact upon the recreational and scenic values of the Port Stephens area. Conversely the supporters of the proposal referred to the economic potential in terms of employment opportunities and enhancement of the reputation of the area by positive identification with the pearl industry. The court analyzed the impacts on water quality, on marine life and the visual impact. It emphasized that the principles of ecologically sustainable development had to be a factor in the consideration of a development application. The requirement in s 79C(1)(e) of the EP&A Act to take account of the public interest brought with it the obligation to have regard to the principles of ecologically sustainable development including the precautionary principle. The application of the precautionary principle as a driving force behind the consideration of the application did not lead to a determination to refuse consent. The element of caution nevertheless dictated that the Court needed to minimize any potential risk of an adverse impact from the proposal no matter how remotely connected or unlikely the manifestation of that risk was. Conditions requiring ongoing surveys and monitoring with appropriate built in remedial mechanisms in the event of the detection of detrimental effects reflected this cautious approach. The court was satisfied there could be a monitoring regime that would detect any emerging adverse impacts in regard to water quality, the effect on seagrasses and the impact on marine animals (particularly the population of resident dolphins) and thus enable the appropriate authority to require them to be addressed if they arise. In conclusion, the court was satisfied that the proposed development could be approved subject to the conditions outlined above.
Full text
426.htm